Reality Winner: Espionage or Whistle-Blowing?
By UMS LobbyTweet
In advance of UMS’s presentations of Is This A Room: Reality Winner Verbatim Transcription, Brian Willen, lawyer and member of the UMS Board of Directors, sat down with Barbara McQuade, law professor at the University of Michigan and a legal analyst for NBC News/ MSNBC, and Greg Stejskal, former special agent with the Federal Bureau of Investigation (FBI). They discussed aspects of Reality Winner’s case, including her interview with the FBI and the Espionage Act. The below transcription has been edited and condensed from their original November 2019 conversation.
Brian Willen: Is This A Room documents and dramatizes a particular moment in the Reality Winner story — her June 3, 2017 interview with the FBI, which ended with her arrest and ultimately a fairly long prison sentence. The show puts us in the room with Reality and the FBI agents, but we don’t see the rest of the story. So, I thought we could examine a little bit of that bigger picture and provide a context and information for people who are seeing the play.
The law that Reality violated is called the Espionage Act, which is a pretty evocative name for a statute. Can you tell us what it is, where it comes from, and what it does?
Barbara McQuade: The Espionage Act is a rather clumsy statute, and it gets used for a lot of purposes. It was passed during World War I as an effort to deter and punish people who disclosed secrets to the enemy. It covers both people who have clearances and obtain the information in the course of their employment, and has certain prohibitions for those people…as well as anybody who receives the information. That’s the piece that can be controversial, because in theory even the news media could be prosecuted for even having or publishing it.
Typically, the justice department has not done that, but has focused on those who have a sworn duty to protect secrets through their employment. And those people are prosecuted. The Espionage Act includes prosecution for people who give secrets to foreign adversaries — hostile foreign adversaries — and those crimes would then be punished more severely. But it also applies to people like Reality Winner, who disclose it to someone who doesn’t have permission to receive it, including the news media.
BW: Many people might think there’s a pretty big difference between those scenarios…between sharing classified information with a foreign government, and sharing it with a journalist. So why do you think the Espionage Act doesn’t make a distinction?
BMcQ: I agree with you, I think those are two very different harms, to very different degrees. When the statute was first passed, it was probably intended to address just the situation of someone who had access to military secrets sharing it with a hostile foreign adversary.
And then, a famous example of its use in a media sense came in the case known as the Pentagon Papers, when Daniel Elsberg shared a long study about the Vietnam War that was classified that he had worked on with the New York Times. The Justice Department sent a letter to the effect of “if you keep this or publish it, it will be a violation of the Espionage Act…be warned, you should return this right away.” And they filed a civil case to get a restraining order against them further publishing (they already published one or two days of stories about the Pentagon Papers). So it may have simply been a creative use of the statute, because there’s no other statute that addresses it.
BW: That’s an interesting point. Here, Reality Winner disclosed classified information to The Intercept. Do you think it would have been possible to bring a case against The Intercept for publishing this document?
BMcQ: Under the Espionage Act as it currently exists, yes, but the Justice Department has restrained itself from doing that. During the Obama administration, I know that there was concern about leak investigations including search warrants to reporters, and even referring to a reporter as a co-conspirator even though that reporter wasn’t charged.
After the Justice Department’s internal review of how to handle these types of situations, Attorney General Holder announced that he didn’t want to do anything that would interfere with the legitimate news gathering functions of the media. That’s a good goal, but it could be difficult to achieve in practice, when you think about how difficult it is nowadays to define who is the media. Certainly most people would agree with traditional media outlets like the New York Times, but how about something like The Intercept, or WikiLeaks, or just Greg in his basement on his blog. Is that media? So that’s where it becomes difficult.
BW: Let’s bring Greg into the conversation. As a former FBI agent, how do you think about this differentiation between spying and leaking? Should it matter to the FBI or to the justice system that someone like Reality Winner did what she did not for money or for some desire to harm national security, but because she thought she was doing the right thing for the country?
Gregory Stejskal: I do think it makes a difference. But, you have to realize that there can be substantial harm to national security, whether it’s given to a foreign power or ends up in the media. And I would cite the Snowden thing as a good example of the damage that can be done. Presumably, at least according to him, he thought he was doing the right thing. You don’t get to have that kind of discretion when you have the federal government’s trust to not violate classified regulations that you’re working under.
On the other hand, a whistle-blower who decides to speak up has certain procedures and things that they follow, and the first stop isn’t the media.
BW: In Reality Winner’s case, this is a document that reveals certain efforts that the Russian government and intelligence services were making to interfere with US election machinery in the run-up to the 2016 election. Reality’s lawyers argued that the disclosure of this information, rather than harming national security, actually helped national security because it alerted state and local officials to threats to the integrity of the election system that they might not have otherwise been aware of. What do you make of that argument?
GS: If the material is classified, that individual is not given discretion to determine the harm done or anything like that. Again, there are things that you can do, under the whistle-blower statute, or just talk to your supervisor. But you don’t have the right to say, “Oh, you know, this is something that the public should be aware of,” or, “These are things that we’re doing that I don’t agree with.”
BW: Gregory makes an important point. This is why we have whistle-blower laws. If someone thinks that there is an abuse, waste, fraud, some sort of issue…we want to deter people from taking it upon themselves to share the secret with the world, and instead, encourage them to follow this whistle-blower track, where you can go to an inspector general.
As we saw recently in the current case involving Ukraine — the process there is that the inspector general first makes a determination as to whether the claim is frivolous. If not, he’ll go investigate and talk to people. We have intelligence committees in Congress, in the house, and senate, so that they can exercise oversight and investigate if things are being done improperly. We want to encourage people like Reality Winner to go that route, and not taking it upon themselves to share information with the world.
One concern I have about what we’re currently seeing is, when President Trump is, I believe, intimidating the whistle-blower to identify him and out him, and keep demanding that he testify. We are going to push people into the Reality Winner channel, and I worry that President Trump’s conduct is diminishing faith in the system by people who are public servants who want to do things the right way.
BW: I want to shift gears a little bit. I want to go back to Reality’s interview with the FBI agents. I think people have a particular intuition about the way that the FBI might question suspects, and what we see in this show is something more informal, more meandering, more conversational. So it’d be interesting I think for you, Greg, to talk about how the FBI approaches interviews like this and the strategies that you use to try to get people to talk when you think they’ve done something wrong but you don’t necessarily have all the evidence.
GS: It’s dependent on the agent, and you do receive training, but, you know there are certain things I would do to try to develop rapport. What I found early on is that threatening people and doing the classic “third-degree kind of thing” — the light in the face and all of that — generally is not very productive. I wanted to be able to convince the person, if possible, that it would be in their best interest to be cooperative.
When I would interview somebody, I would never have a table or anything else in between me and the person I’m interviewing. I would actually sit on the same side of the table as he or she did, or she did. And I would spend time, before I would ever ask them a question, and even if I was going to Mirandize him, and talk to him, explain to him the situation, and try to develop that rapport. It would not be in a threatening manner. There have been times I arrested people where I might’ve been a bit more forceful, but that was only because of exigent circumstances.
BMcQ: What Greg is describing is common among all the agencies that we worked with at the US Attorney’s office. I, as a prosecutor, was really gratified when we began recording the interviews, because I think there’s a perception from TV and movies that agents are really tough on people, that they’re beating them up, that they’re intimidating. And in fact it’s usually, perhaps because it is more effective, that the agents are usually very nice to the person. Being able to show that in the courtroom to a jury could usually cut off any suggestion that the person was brow beaten or something, to confess.
BW: What about Miranda Warnings? One of the interesting things about this case is that Reality Winner was never told during her interview that she had “the right to remain silent or the right to a lawyer. Why wouldn’t the FBI have given Miranda Warnings here, and what would you have done if she had said, “I want to talk to my lawyer?”
GS: Well, once she says that, then that’s it. You’re done. That’s again one of the reasons why you want to have an opportunity to talk to them before you specifically ask them a question or you Mirandize, because you want them to understand why it’s in their best interest to talk.
The whole Miranda Warning thing was developed almost word-for-word by the FBI. Our policy was that unless they’re in custody (which means if a reasonable person would believe they’re in custody), you don’t have to provide them with their Miranda Rights. In Reality’s case, they didn’t even have an arrest warrant…they arrested her after the fact, after the surge, and after they spoke to her.
BMcQ: The legal test is looking at the totality of the circumstances: would a reasonable person have felt that they were either free to leave or free not to answer the questions? Miranda requires both being in custody and being interrogated. So if either of those are not true, then there’s not a requirement for a Miranda Warning. And as I read the transcription here, at least twice the agent said to Reality: “Talking to us is completely voluntary, right, just want you to understand that.” I’m sure it was very deliberate…it’s probably part of their training to make that statement known. And so by saying that twice, they alerted her that even if you don’t feel like you’re free to go, you also don’t have to answer our questions.
BW: Let me just ask you one final question. The three of us are joining the post-performance artist Q&A right after opening night of Is This A Room on January 29, and I’m just curious what each of you will be looking for when you see the show. Are there particular things that you are going to be paying attention to or looking for?
BMcQ: I suppose I will be looking for things that ring true or that seem unusual. I mean, this is a real scenario, so it’s not fictional. This really happened. But, to what extent is it typical, and to what extent is it aberrational? I think that would be useful for an audience to know if this is the way it goes down most of the time, all the time, or, if this was a really unusual, outlier-type situation. I’ll be looking for that, and then maybe just opportunities to explain how the law works in these situations, for better or worse. Most laws make sense — there’s a reason we came up with them — but others have flaws, and sometimes things evolve in society and a law is not caught up with that yet. So I’ll be looking for any areas like that that I might be able to flag for the audience after the show.
GS: I’m going to be interested in seeing how the agents handled it and be sort of critiquing it…I might find myself going “hey that’s an interesting technique,” or “boy, that’s not the way to do it guys.” So, I look for that, whether you see it in the media, like on TV or in movies, and then in real life. The other thing I think, and given the opportunity to talk about after the show it is what we’ve said…you know you have to understand that as an FBI agent, or as a US attorney, you have to enforce the laws. We don’t have discretion either. But, irrespective of what this person’s motive is — and that she’s a wonderful person and all of that — there is a reason for these laws being there. And in our job, we’re sworn to uphold the constitution, and with that goes the laws that are passed in pursuit of the constitution. It’s not our job to question that. It’s our job to enforce the laws.
Barbara L. McQuade is a law professor at the University of Michigan, where she teaches criminal law, criminal procedure, and national security law. She is also a legal analyst for NBC News and MSNBC. From 2010 to 2017, Ms. McQuade served as the US Attorney for the Eastern District of Michigan. Ms. McQuade was appointed by President Barack Obama, and was the first woman to serve in her position. Ms. McQuade also served as vice chair of the Attorney General’s Advisory Committee and co-chaired the Terrorism and National Security Subcommittee. Before becoming US Attorney, Ms. McQuade was an Assistant US Attorney in Detroit for 12 years, serving as Deputy Chief of the National Security Unit.
Greg Stejskal, SA/FBI (1975–2006), was born and raised in Omaha, Nebraska. He attended and graduated from the University of Nebraska and received a bachelor and juris doctorate (‘74) degrees. In 1975 he entered on duty as special agent with the Federal Bureau of Investigation. Following new agent training, he was assigned to the Detroit field office which covers all of Michigan. In 1981 he was assigned to the Ann Arbor resident agency (a satellite office of Detroit). During his career, he was involved in numerous and varied cases within the FBI’s jurisdiction including foreign counterintelligence (espionage). In 2006, he retired from the FBI with over 31 years of service. He resides in Ann Arbor with his wife, Pat, who is a retired Ann Arbor Public Schools teacher. They have two grown children, Taryn and Andrew; both are graduates of the University of Michigan.
Brian Willen is a partner at the law firm Wilson Sonsini Goodrich & Rosati. He litigates cases on behalf of leading technology and Internet companies (including Google, Twitter, Dropbox, and Pinterest) focusing on intellectual property, online content-regulation, the First Amendment, national security, and privacy. Mr. Willen is also an adjunct professor at the University of Michigan Law School where he teaches classes on Internet law, and is a member of the UMS Board of Directors.