This transcript was automatically generated and might contain errors.

[0:00] Sally Horchow: Welcome to episode 12, Freedom for the Press.

[0:08] Dori Berinstein: With a world bearing witness to the terrorism of Vladimir Putin, it's essential to revisit the case against highly decorated NSA Air Force linguist Reality Winner.

[0:20] Dori Berinstein: In 2017, Reality Winner was charged with leaking proof of Russian interference in the 2016 election.

[0:29] Dori Berinstein: A fact well documented in the Mueller report.

[0:32] Dori Berinstein: When Reality exposed that truth to the American public, it was embarrassing to Trump because it put his victory in question.

[0:39] Dori Berinstein: Calling Reality a terrorist and convicting her under the Espionage Act of 1917 was the Trump administration's way of saving face and burying the truth.

[0:50] Dori Berinstein: Reality received the longest prison sentence ever imposed for the unauthorized release of government information.

[0:56] Dori Berinstein: Five years and three months.

[1:00] Dori Berinstein: And it's important to remember Reality did not leak U.S. secrets to a foreign enemy, nor was she seeking any personal benefit whatsoever.

[1:10] Dori Berinstein: Reality had a singular goal to help protect democracy.

[1:15] Sally Horchow: I'm Sally Horchow, and I'm Dori Berinstein.

[1:18] Dori Berinstein: And this is Reality.

[1:40] Trevor Timm: Trevor Timm, co-founder and executive director of the Freedom of the Press Foundation and co-founder of Stand with Reality, explains how the Espionage Act of 1917, used to convict Reality Winner, has been employed over and over in recent years against whistleblowers and journalists.

[2:00] Trevor Timm: I have been working on issues involving whistleblowers' rights and in particular sources and whistleblowers who were charged under the Espionage Act for almost a decade.

[2:41] Trevor Timm: You know, here was somebody who was accused of leaking one single document to a news organization.

[3:10] Trevor Timm: And the government eventually succeeded in getting one of, if not the largest sentence against a source of a journalist in modern history.

[3:23] Trevor Timm: And to me, it was just a total miscarriage of justice.

[3:27] Trevor Timm: The other issue at the time was that despite the fact that the story about Russia and the United States was generally front-page news in the United States all the time.

[3:40] Trevor Timm: Unfortunately, many people were ignoring Reality's case, despite the fact here was somebody who came forward at great risk to herself to add to the story.

[3:50] Trevor Timm: You know, she wasn't getting at the time a lot of support from the people that were making the story about Russia kind of the number one story in the United States.

[4:03] Trevor Timm: I was so taken by Reality's case and its impact on the freedom of the press that I co-founded Stand with Reality.

[4:11] Trevor Timm: And so we started Stand with Reality to number one, kind of raise a bit of money for her legal defense, but also just to call attention to her case.

[4:20] Trevor Timm: Later on, I would actually cover the case extensively for The Intercept.

[4:25] Trevor Timm: And it was very disappointing to see that, you know, despite the fact, again, that this was such a key story in the Trump administration that there weren't a lot of journalists regularly covering her trial, even though there were huge injustices that were regularly coming up.

[4:42] Trevor Timm: For some reason, news organizations in many cases kind of take an arm's length view of these cases.

[4:51] Trevor Timm: And it's a real shame because it has a huge effect on press freedom in general.

[4:57] Trevor Timm: The fact that the U.S. government has been able to use the Espionage Act in the last decade to go after sources and whistleblowers means that there are so many other sources and whistleblowers who are potentially scared to come forward as a journalist who know something about wrongdoing inside of our government or corruption or illegality.

[5:16] Trevor Timm: And so what ends up happening to these sources will end up affecting the journalists eventually.

[5:25] Kevin Gosztola: Kevin Gosztola, American journalist and author, explains further.

[5:31] Kevin Gosztola: The Espionage Act is a valuable tool because we do not have an official secrets act.

[5:31] Kevin Gosztola: An official secrets act is what they have in the United Kingdom.

[5:38] Kevin Gosztola: In the United Kingdom, it's a crime to publish secrets or classified information, or it can be.

[7:00] Kevin Gosztola: Because if you want to silence that person and get them to stop, or if you want to make an example out of them, it's very easy.

[7:10] Kevin Gosztola: The history of the Espionage Act being used against journalistic sources dates back to Daniel Ellsberg during the Nixon administration.

[7:18] Kevin Gosztola: Ellsberg leaked the Pentagon Papers to The New York Times.

[7:21] Kevin Gosztola: This was the first case to be tried under the Espionage Act and set the precedent for how whistleblowers could be prosecuted in the future.

[7:30] Kevin Gosztola: In the late 60s, working as an analyst for the Rand Corporation, Ellsberg helped write the Pentagon Papers before he turned against the war and leaked them.

[7:39] Kevin Gosztola: He was not only charged with a felony for the leak.

[7:42] Kevin Gosztola: The Nixon White House also sent a team of burglars, including some who would later participate in the Watergate break-in to steal files from his psychiatrist.

[8:05] Kevin Gosztola: So he was on the stand, the his lawyer asked the question, and then the prosecution objected.

[8:11] Kevin Gosztola: Um, and the judge would not let it go forward.

[8:14] Kevin Gosztola: Ellsberg's lawyer at the time literally said, like, I've never heard of a case where the defendant can't tell the jury why he may have committed a crime.

[8:24] Kevin Gosztola: Uh, but the judge didn't allow it, and no judge has allowed it since.

[8:27] Kevin Gosztola: Even though Ellsberg was charged in 1971, there weren't any other Espionage Act cases until 14 or 15 years later in the 1980s.

[8:36] Kevin Gosztola: And then after that, there wasn't another one until 14 or 15 years later, during the end of the Bush administration.

[8:42] Kevin Gosztola: But in the past 10 years, there have been a dozen or more of these Espionage Act cases.

[8:49] Kevin Gosztola: Um, so it, you know, essentially, the government has taken this law that was rarely, if ever used, and is now using it with increasing regularity because they see how effective it is against muzzling whistleblowers, unfortunately.

[9:07] Kevin Gosztola: I would love there to be a bigger movement to attempt to get this law reformed or repealed, or at least changed as far as people giving information to the press.

[9:19] Kevin Gosztola: Unfortunately, the law is called the Espionage Act.

[9:22] Kevin Gosztola: And so, as you can imagine, many members of Congress are very wary of going anywhere near it because they don't want to be seen as the Congressman who is, you know, repealing a law called the Espionage Act.

[9:40] Kevin Gosztola: You know, because the public, the general public doesn't know how this act is being used, you can imagine that probably 80% of the people in the country, when they hear the phrase Espionage Act, think, oh, well, you know, that's probably a very important law that we use to prosecute spies when the vast majority of cases are against these whistleblowers.

[10:01] Kevin Gosztola: And so it's unfortunately very hard to get members of Congress to work on this issue.

[10:08] Kevin Gosztola: But we're not going to give up trying.

[10:10] Kevin Gosztola: And hopefully, cases like Reality's and other whistleblowers of conscience can bring more attention to this unjust law.

[10:20] Kevin Gosztola: In 2020, Representative Tulsi Gabbard and colleagues in the Senate presented a bipartisan bill to reform the Espionage Act.

[10:27] Kevin Gosztola: However, it failed to get enough support.

[10:29] Kevin Gosztola: Here is Representative Gabbard speaking out about the importance of reform on Twitter.

[10:34] Tulsi Gabbard: I've introduced legislation to stand up for and to protect brave whistleblowers who've come forward to expose illegal actions within our own government or egregious abuses of power and to reform the Espionage Act to make sure that if a whistleblower is prosecuted under the Espionage Act, that they will have their fair day in court, something that is currently not allowable under the law as it stands today.

[11:02] Kevin Gosztola: One reason that Congress is hesitant about repealing the Espionage Act is the lack of public knowledge about this law.

[11:08] Kevin Gosztola: Espionage Act cases typically receive very limited coverage, if any, in the media.

[11:12] Trevor Timm: Trevor discusses why changing this is important.

[11:36] Trevor Timm: And, you know, just to give kind of a brief overview of that, in almost any case where there is a defendant accused of a crime, even when we're talking about, you know, the most serious crimes like murder, a defendant is allowed to tell the jury his or her intent.

[11:55] Trevor Timm: So, you know, even in these most serious cases, if a person was killed, the person who was being charged can say, um, you know, I did this for this reason, or it was in self-defense, or it was in the heat of the moment, um, or, uh, you know, it was in response to this.

[12:14] Trevor Timm: In Espionage Act cases, that is not allowed.

[12:17] Trevor Timm: And you can get charged under the Espionage Act if you are a patriotic American who sees its government committing wrongdoing behind closed doors and brings it to a journalist in order to bring it to the public's mind, and then hopefully some accountability will come of it.

[12:35] Trevor Timm: A jury isn't allowed to hear this motivation if you are charged under the Espionage Act.

[12:42] Trevor Timm: So take Reality Winner's case. She cannot say to a jury, hey, I was really worried, you know, I saw the Russian story in the news, and I felt it was important for the American public to have proof that this happened. And so a person, because they're not allowed to tell their motivation, um, they are not, they are also not essentially allowed to have a public interest defense. So even if they were exposing the illegality, um, blatant illegality of the president of the United States, they are not allowed to essentially put that up as a defense. Um, they can't even tell it to a jury. Uh, and so, really, a source's hands are tied behind their back almost immediately. And that's why almost all sources charged under the Espionage Act have to plead guilty because they have no other choice.

They will be found guilty no matter what, even if what they did was the most noble thing in the world. And so the US government has figured out that they can essentially use this law as a sword against more and more sources. And um, so it not only leads to more sources in jail, but it probably chills the speech of countless others inside government who don't want to end up with the same fate.

[13:57] Trevor Timm: Reality's case, with a record-breaking sentence of five years and three months, makes it easier for whistleblowers to receive longer and harsher sentences. The clear goal is to disincentivize anyone from sharing classified information with the public. Reality's case was particularly egregious because in a lot of these espionage cases, um, the defense have leaked multiple documents, um, you know, hundreds and hundreds of pages potentially. Um, Reality released or leaked a single document. Like literally, there were state election officials who said afterwards, hey, we didn't know that our systems were potentially being attacked. And because we saw this story, we took action. Um, and so you would think that that would, you know, if Reality was doing a public service because of that.

Um, yet she was being prosecuted. And so we have a single document that was helping state election officials secure their systems, that was discussing information that was already in the public sphere. And uh, we also had a situation which I reported for The Intercept at the time, that you know, the information that the government considered the most secret in that document, um, which they begged The Intercept not to publish, and which The Intercept complied with, um, was later released in the Mueller report, like a year later. In time and again in these cases, the government ends up saying that something is secret when it's actually not. Um, and they just use it as a sword and a shield to go after people like Reality.

And so, because there was this single document, Reality faced five years in prison. Um, and it means that, you know, potentially next time the government is going to point to this and say, look, Reality got five years only for a single document. This person leaked 10 documents, they should get way longer. Um, and it means that people are going to face many, many more years in jail, potentially, because the government can point to this as precedent. And so it's very worrying from that perspective, and it's all the more reason why we need to do away with this unjust and draconian law.

[16:04] Kevin Gosztola: The government uses the act as a way to continue to manipulate public opinion. The government has a way of, whether it's Barack Obama or Donald Trump, of insisting on national security and military matters, uh, foreign policy matters, that they set the narrative, they set the spectrum of debate. They expect that the uh media, the establishment media or the mainstream media, however you want to view it, will have conversations within the spectrum of debate that they are willing to allow. You will hear from public officials that they are frustrated if the media is having a conversation they do not want to participate in. And so what happens is whistleblowers come forward and they force discussions on issues that are not being had.

And that's why I find them to be so worthy of support, because uh so often you'll see uh officials in uh are in the White House for either party, depending on who's in control, working in tandem with people who are on cable news shows, working on Sunday morning television shows uh together to, you know, they claim that they're informing us about what's happening in the world. And then a whistleblower comes forward and immediately they want to push that person aside or attack that messenger because that person wants to have a different discussion than they're having.

[17:37] Kevin Gosztola: Ever since our nation was founded, leaks occur on a regular basis. Yet most leaks, often by government officials, are ignored. The issue of who gets punished for leaking is one in which you really get to see who has the power in Washington, DC and who doesn't. So people like Reality Winner get punished because they're just a contractor working for the NSA. And obviously, if they wanted to come forward and share their experience and allege corruption and wrongdoing, they're gonna have a difficult time going to an inspector general. They're going to have a difficult time going to Congress, uh, getting somebody who's uh a leader of a committee, let's say an intelligence committee or an armed services committee or foreign affairs committee.

They're going to have a difficult time calling up The New York Times or Washington Post and convincing them that they're in a position to know what is happening. People are going to doubt them as to whether they're credible source because of their position. Those who are high ranking, those are the ones that get away with being able to leak. And they're able to abuse their position in order to take advantage of their access to state secrets in a way that you don't normally see lower level people do.

[19:11] Kevin Gosztola: So the biggest illustration of how you have this disparity between how one gets punished and the other one actually gets rewarded, is actually the David Petraeus example. And there are other examples, but David Petraeus illustrates it the best. And he was uh CIA director, he also led the Pentagon for a short amount of time, and he was having an affair with his biographer, Paula Broadwell, who wrote this book called All In, uh, which was going to be this fawning portrait of this four-star general that everyone reveres. And he brought these highly sensitive documents to her or gave her access to these highly sensitive documents, including something called Black Books that were really, really highly classified material from his own personal conversations and meetings with President Barack Obama on conflicts in the Middle East, including ISIS talking about like the threat of the Islamic State in Syria and Iraq.

David Petraeus, the highly acclaimed commanding general of U.S. forces in Iraq and Afghanistan, and director of the CIA will plead guilty to unlawfully handling top secret documents, which he allegedly shared with his mistress. Petraeus, while head of the CIA, provided eight black books of classified material to Paula Broadwell. The black books contain top secret information about the Afghanistan war and identities of covert officers. Prosecutors recommend two years' probation and a $40,000 fine. But for someone once considered a national hero and possible presidential candidate, it appears Petraeus has already paid a pretty heavy.

[21:03] Kevin Gosztola: And eventually, because of who he is, his attorneys were able to bargain with the Justice Department and convince them not to charge him with a felony. And he only was given a misdemeanor offense. He was able to plead to this misdemeanor offense. He received probation and no jail time. He never was inside of a prison cell, uh, whether it was before a trial or after. Uh, he never had a trial. He was never put under this position where he was facing a trial. And he paid a fine, but he paid a fine that was so modest because he's somebody who does the speaking circuit. And all he would really have to do is have a few university speaking events. So it really was, if you could call it that, less than a slap on the wrist because there was no impact on him reputationally.

And you saw that people who were in Congress, senators, those are former government officials, uh, were character witnesses for him, said they did not believe he had done anything wrong. Um, he's still a consultant uh throughout the Obama administration after he had uh been found to have committed these, you know, objectively, we can call them crimes. He violated the law just like Reality Winner was accused of violating the law. And he was able to continue on as a consultant when it came to what was happening with violence and terrorism in Iraq. Continue to go there and and help advise on the way the U.S. government should respond to ISIS. And so there's been no hit to him. In fact, uh, as we are recording this, you might see David Petraeus asked to come on uh CNN or MSNBC to comment on the war in Ukraine.

And meanwhile, Reality Winner is uh trying to rebuild her life and still is going through probation, uh the interference, the way that probation hampers you and makes it difficult for you to move forward after you've left prison. That's something that she has to deal with. You know, meanwhile, you know, David Petraeus got out from under probation a long, long time ago and hasn't been sidelined at all as far as his career.

[23:20] Kevin Gosztola: As Trevor and I have made clear, the way that our government selectively pursues leaks has become a threat to the freedom of the press and the health of our democracy. In our next episode, we will continue to explore how increasingly harsh prosecution of whistleblowers severely curtails freedom of the press and mutes important conversation about the state of our country. You can support Reality by signing her petition for clemency at standwithreality.org. Please join us for the next episode of This Is Reality, and make sure to check out all the podcasts on the Broadway Podcast Network. We're incredibly grateful to our guests, Trevor Timm and Kevin Gosztola. Reality's interrogation by the FBI was captured in the critically acclaimed Broadway show, Is This a Room, conceived and directed by Tina Satter.

This podcast is created, written, and produced by Dori Berinstein, Sally Horchow, Rebecca Aparicio, and the Broadway Podcast Network. Sound engineers are Alan Seals and Kimberly Garris. Podcast editor is Alan Seals. Executive producer is Liz Armstrong. This is Reality is part of the Gotham's Fiscal Sponsorship Program under the Sound and Light Project. Please join us for our next episode of This Is Reality by following and finding out more information on bpn.fm/thisisreality. And finally, special thanks to Bea Westby and the rest of the team at the Broadway Podcast Network.