Reality Winner.
Reality Winner. (Credit: Lincoln County, Georgia, Sheriff’s Office)

Attorneys for a former National Security Agency contractor charged with leaking information about Russian hacking of the nation’s election infrastructure to an online magazine say that FBI agents violated her constitutional rights when they detained and questioned her prior to her arrest.

In court papers filed late Tuesday, former contractor Reality Winner’s defense team—including the former general counsel of the U.S. Department of Homeland Security—contends that federal agents detained Winner while executing search warrants of her home and car. They claim agents interrogated her at length as the only suspect but failed to administer a Miranda warning that anything she told them might be used against her or that she had a right to counsel. The defense has asked for an evidentiary hearing on the potential Fifth Amendment violation.

The Daily Report reviewed the motion and accompanying brief before the documents—which, while critical of the FBI, did not appear to contain classified information—were sealed and barred from public access Wednesday morning. The FBI’s spokesman in Atlanta did not comment by deadline.

The defense filings provide new details of the FBI’s search of 25-year-old Winner’s home and her subsequent arrest, which differ markedly from the U.S. Department of Justice’s account. In a June 5 news release, the prosecutors announced they had charged Winner with violating federal espionage laws by removing classified material from a government facility and mailing it to a news outlet.

According to the DOJ, Winner “agreed to talk with agents during the execution of the warrant” and during that exchange “admitted intentionally identifying and printing the classified intelligence reporting at issue despite not having a ‘need to know,’ and with knowledge that the intelligence reporting was classified.” The DOJ also said Winner admitted “removing the classified intelligence reporting from her office space, retaining it, and mailing it from Augusta, Georgia to the news outlet, which she knew was not authorized to receive or possess the documents.” Defense attorneys said in court papers that they have been given only a redacted transcript of that interview.

Winner is accused of leaking to online publication The Intercept a classified document that detailed Russian efforts to hack America’s voting infrastructure and documented to what extent hackers may have succeeded. The Intercept published a story based on that document and posted a redacted copy online within hours of Winner’s arrest. The Intercept editors have said the document was delivered anonymously. They have also said they do not know whether Winner was the source.

The defense said Winner’s questioning by the FBI and the circumstances under which agents did so amounted to a custodial interrogation that required a Miranda warning.

Winner’s lawyers said 10 armed law enforcement agents with search warrants for her home, car and person confronted Winner when she arrived home from a trip to the grocery on June 3. After Winner secured her dog and surrendered her car keys, agents escorted Winner to a 7-by-9-foot unfurnished room at the back of her house that she had always considered “creepy,” never used and was reluctant to enter, her lawyers said in court papers.

Two male agents, both armed, accompanied her to the room, where she sat with her back against the wall, according to defense briefs. Both men stood over her as they interrogated her, blocking her access to the door, which was almost shut, her lawyers said.

For more than two hours, until Winner was arrested, law enforcement agents “never expressly advised Winner that she could leave, nor did they advise Winner she was under arrest,” defense lawyers said. Agents suggested to Winner that they—and she—were there “voluntarily” and that they were not “forcing” her to do anything, Winner’s lawyers said. But when Winner asked if she was going to be arrested, “Her male questioners kept her in the dark, telling her they did not ‘know the answer to that yet,’” defense attorneys said.

Winner, according to the defense, “never believed she was free to leave or terminate her interrogation. Indeed, she believed quite the opposite.”

It also was clear, her lawyers added, that “Winner was not free to leave, law enforcement agents never told Winner that she was free to leave, and Winner’s movements were entirely restricted and dictated by law enforcement up until her arrest.”

“No reasonable person would have felt free to leave and terminate the interrogation,” they contended, “especially when (among many other things) that person knew law enforcement had a warrant to search her person and had not effectuated that search.”

The agents also told Winner she was “‘far and away’… the most likely candidate to be their prime suspect,” defense attorneys said. Agents also suggested that the leaked document might have compromised national security, a characterization to which Winner has objected, defense lawyers said.

According to the defense, agents also told Winner they thought she had “made a mistake,” that she had “a good career” and that “if she was the culprit and did it because she was angry at the current state of politics, then that idea would make law enforcement ‘feel a little better’ and that they would not ‘have a real serious problem here.’”