The decision in October of an Augusta, Georgia, judge to deny former National Security Agency contractor Reality Winner’s bail request was “baseless and unprecedented,” according to her defense team, which is asking the U.S. Court of Appeals to reverse it and grant her release before her trial. Winner, who was charged in June with violating the Espionage Act for allegedly releasing national security information, has been behind bars for more than six months now. With her trial set to start as soon as this spring — and potential added delays looming in the complex proceedings — Winner may end up serving more time in pretrial confinement than she would be sentenced to if she is found guilty. Denying Winner bail is out of step with virtually every prosecution under the Espionage Act on record. The lone exception comes in a bizarre case involving, as Winner’s lawyers put it, “a defendant who allegedly hoarded 50 terabytes of classified information over a 20-year period and had ongoing issues with mental health and alcohol abuse.” The cases are wholly incomparable.

Winner may end up serving more time in pretrial confinement than she would be sentenced to if she is found guilty.

One needs only glance at recent headlines — and the case of Donald Trump’s former campaign manager Paul Manafort, who was charged with conspiracy and money laundering, among other counts — to see how absurd it is to deny Winner bail. Manafort, whose alleged criminal endeavors involved foreign government patrons, has millions of dollars at his disposal and was the owner of three passports. Not only did Manafort get bail, he was given permission to spend Christmas in the Hamptons. Winner, on the other hand, is incarcerated indefinitely for, as officials have said, allegedly mailing an NSA document about Russian election hacking to The Intercept. (The Intercept had no knowledge of the source’s identity.) It’s an injustice that is not only out of step with precedent, but also creating an undue burden on her defense team. That’s why they’re taking these steps to appeal the bail decision again. The defense, however, is still coming up against secrecy as an obstacle. In an example of the way the government’s push for secrecy burdens Winner’s defense team with restrictions and undue burdens, the government’s response to Winner’s bail appeal was already public for a week before the motion for appeal was released, after it languished in a government process to cleanse it of purportedly restricted information. In a bizarre demonstration of the government’s overreach on secrecy, the cleansed document contained five redactions; two of them were seemingly in reference to public statements made by the president of the United States. “In May, after hearing persistent public denials by the President [redacted], Ms. Winner’s frustrations purportedly boiled over,” read one of the redacted sentences. Another said: “The allegation is that she disclosed one document regarding [redacted] as a specific reaction to persistent, public denials by the President about [redacted].”

Winner’s request for bail was rejected by the lower courts largely on the basis that she is somehow “dangerous” to society. According to her lawyers, that is doubly fallacious argument: Winner is neither dangerous, nor is her purported dangerousness the standard by which the court is supposed to decide whether someone in her position receives bail or not. The law is crystal clear on this question. As the defense brief to the Court of Appeals makes clear, “dangerousness” should only be the basis for withholding bail in specific and narrowly prescribed circumstances constituting: (A) a crime of violence, (B) an offense with a maximum punishment of life imprisonment or death, (C) a serious narcotics offense, (D) a felony for certain recidivists, or (E) certain felonies involving minors. This is backed up by case law in every single court of appeals circuit that has looked at the issue. Since none of those attributes apply to Winner, “flight risk is,” the defense notes, “the only valid basis for detention as every court of appeals to consider the question has concluded.”

The government is making a case that taking an interest in Muslim-majority countries is tantamount to being on the cusp of treason.