We’ve learned this week that former airman Reality L. Winner has been arrested by the FBI on suspicion of unlawfully revealing classified information.
Winner is accused of sharing with an online media agency an NSA report detailing Russian attempts to tamper with the US Presidential election. The 25-year-old Texan apparently gained access to the report via her job with a defense contracting firm. It’s just the latest weird development in the hacking saga that has shaken the confidence of many Americans in the sanctity of the electoral process.
Given the divisiveness of the subject matter and the sheer comedic potential of the name of the accused, this debacle is sure to send any number of fringe websites, meme generators, and late-night comics into apoplectic overdrive. A few lucid thoughts are in order before we all lose our skulls.
First, Winner has not yet been convicted of anything. She is accused. Sure, the presumption of innocence is an all but forgotten concept in modern America, and sure, she has reportedly admitted to the substance of the allegation according to several already frothing media outlets. But she’s not yet guilty before the law. So those Facebook comments suggesting she be tarred and feathered are, while charming as a smiling crocodile with gingivitis, a tad premature.
But second, even if we assume she is culpable for leaking to the media, it’s not clear what exactly should happen to her, at least not in the minds of many reasonable people.
There are basically four schools of thought.
March her to the gallows as a traitor. For some, anyone with the temerity to show disloyalty to the country by sharing its secrets is irredeemable, and maybe even subhuman. These pitchfork-wielders see a clear path forward, and it leads to a cauldron of boiling hog fat. This view suffers from a huge flaw in addition to its angry irrationality: it creates a strong incentive for government to classify information that should be held out to the public, and to hang people as a deterrent to revealing such information. This is the shortest path by which republics become dictatorships.
Try her under the law and punish to the max extent. This the “rules are there for a reason” view. People don’t generally hold this perspective because they want people like Winner to spend their lives in prison, but because they value stable rule regimes with guaranteed consequences. Without this stability, important matters become less predictable, with adverse consequences to shared interests. It becomes too cheap and therefore too commonplace that classified information is released unless there is dependable punishment to follow. This commitment to the law keeps releases rare and the Barbarians outside the gate, or so the argument holds.
Plea bargain. This is the approach that holds a leaker accountable but recognizes not all leaks are created alike. It recognizes degrees of betrayal and underlying motives that carry broadly held validity. In this way, plea bargaining captures and reflects prevailing sentiments, and serves the larger political purpose of giving people faith that basic fairness can prevail even when populist tempers are flaring. Pleas often do a better job than trials of tethering the severity of punishment to the actual harm done. In this case, it’s not clear how much America’s security interests could be harmed by confirming an already open secret. Thus it’s not clear how much jail time is actually warranted.
Convict but forgive. In the criminal law, it’s possible to be convicted but suffer no sentence because it is determined that the goodness resident in the criminal act perpetrated is sufficient to extinguish any legal responsibility for the adverse consequences. Committing a murder to prevent a horrific terrorist plot from unfolding is a hypothetical example of this concept.
There is a conceptually related tradition of civil disobedience in the United States that many feel applies to contemporary leaks of classified information in the public interest. A civic-minded individual takes a risk in violating the law and accepts her fate, hoping that the system will spare her punishment but accepting that it might not. Abraham Lincoln’s suspension of the writ of habeas corpus is an example. He felt it necessary to exceed his legal authority to support a more vital objective, and in his case he was spared punishment when Congress passed a law that released him from liability. Many believe the same standard should apply to Edward Snowden, and similar arguments will undoubtedly be made about Reality L. Winner.
Whatever happens to Winner, it’s increasingly evident our country has too many people with security clearances handling too much overclassified information. In too many cases, too much stuff is hidden from the public without a valid reason. This habit of power doesn’t follow the shape of partisan politics. All parties that join the bureaucracy pursue it, because the nature of bureaucracy is to shepherd its own grip on power over its disempowered subjects. Bureaucracies are no less ruthless than kings, and use the tools of Caesarian security with equal malice, mischief, and dark enthusiasm.
Finally, we must ask ourselves one more question. If Reality Winner is a criminal loser for leaking public interest information to the media, how do we deal with Donald Trump’s disclosure of national security information to Russian apparatchiks? Does he get to be automatically correct because he’s the boss?
Personally, I think not. Abe Lincoln got no such exceptional reverence even during the Civil War, and what’s good for the Reality goose is good for the reality TV gander.