Reality Winner, the contractor who was supporting the NSA and secreted Top Secret classified materials out of her classified environment in her pantyhose in order to mail them to the media outlet The Intercept was sentenced to 63 months in prison and three years of probation.

Social media ignited in an uproar. The Assistant U.S. Attorney noted that the sentencing was the most severe ever levied on an individual for the crime. The statute allowed for up to 120 months sentencing and up to $250,000 in fines. The majority of pundits expressed outrage and surprise at the length of sentence, with only a few noting that it is the precise term which the defendant and her team of lawyers negotiated as part of her plea agreement.

It is certainly worth noting how the sentence term was determined. The plaintiff (the U.S. government) makes their suggestions and the defendant makes theirs. We dug into the sentencing memo from Winner and her defense team, as well as the memorandum from the U.S. Bureau of Prisons. Winner’s team urged the reduction to 63 months, and that Winner be sentenced to a federal prison in Texas in order to be closer to family.

The judge apparently reviewed the agreed terms between Winner and the prosecutor and made no adjustment. No fine was imposed.

Unauthorized disclosure and espionage

One aspect of the discussion within social networks, as well as fully articulated in Winners’ own sentencing memorandum, was the apparent inappropriateness of the use of Espionage statutes, when what occurred was an unauthorized disclosure – 18 U.S. Code § 793 – Gathering, transmitting or losing defense information.

The current statutes treat unauthorized disclosure with the same set of laws as one treats espionage. The word-dense statute, reads as you would expect: monotonous and with enough “if and or” to choke a horse.

Is it time the legislative branch of government be called upon to split the U.S. Code into two parts?  Neither the prosecutor, nor the defense viewed Winner’s action as espionage on behalf of a foreign nation, though there is little doubt that all nations who had access to The Intercept’s online publication would benefit by gleaning the internal NSA documentation of capability vis-a-vis the Russian Federation’s clandestine activities against the United States.

Reality Winner sentence compared

We can pull three instances of leaks of information from within the intelligence community to unauthorized personnel where the sentences ranged from slaps on the wrist to half of what Winner received:

In an informal poll (conducted by this writer on social networks, of which there were only a handful of responses) out of 30 respondents, 19 thought five years was just right, 9 thought five years was too long, and two thought probation would be appropriate.

The question may never be answered as to why Winner’s defense team negotiated a 63 month sentence for their client. But regardless of how one views it in ‘fairness’ it certainly came as no surprise to Winner and her legal team.

There is no doubt that former FBI Special Agent Terry Albury who also leaked classified information to The Intercept is looking at this sentencing with a great deal of interest as his own case progresses.

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Christopher Burgess (@burgessct) is an author and speaker on the topic of security strategy. Christopher, served 30+ years within the Central Intelligence Agency. He lived and worked in South Asia, Southeast Asia, the Middle East, Central Europe, and Latin America. Upon his retirement, the CIA awarded him the Career Distinguished Intelligence Medal, the highest level of career recognition. Christopher co-authored the book, “Secrets Stolen, Fortunes Lost, Preventing Intellectual Property Theft and Economic Espionage in the 21st Century” (Syngress, March 2008). He is the founder of