The Growing WikiLeaks Conspiracy [Indictment]

I want to revisit the superseding Julian Assange indictment with a view to unpacking how the conspiracy charges work in it. Alexa O’Brien and Dell Cameron — both experts on some of the acts described in the indictment — have written really useful pieces on the indictment that don’t, however, fully account for the way DOJ built the charges around two conspiracy charges, one a conspiracy to obtain and disclose national defense information (18 USC 793(g)) and one a conspiracy to commit computer intrusions (18 USC 371). While commenters are right to argue that the Espionage Act related charges risk criminalizing journalism, the CFAA conspiracy charge — particularly as expanded in this superseding indictment — does nothing unusual in charging the conspiracy.

As background to what the government has to do to prove a conspiracy, see this Elizabeth de la Vega thread from 2018. As she notes,

  • A conspiracy needs not succeed
  • Co-conspirators don’t have to explicitly agree
  • Conspiracies can have more than one object
  • But all co-conspirators have to agree on one object of the conspiracy
  • Co-conspirators can use multiple means to carry out the conspiracy
  • Co-conspirators don’t have to know what all the other conspirators are doing
  • Once someone is found to have knowingly joined a conspiracy, he is responsible for all acts of other co-conspirators
  • Statements of any co-conspirator made to further the conspiracy may be introduced into evidence against any other co-conspirator
  • Overt acts taken in furtherance of a conspiracy need not be illegal

Conspiracy charges are a powerful way for the government to charge groups of people (and also a way to charge crimes without showing all the evidence for them). But that’s true whenever it is used, not just against Assange. So if this associative kind of guilt bothers you (often with justification), your problem is with the law and precedents, not with the treatment of Assange.

For the moment, there are two key takeaways from de la Vega’s list: to prove Assange guilty of conspiring to hack various victims, the government only needs to show that he entered into an agreement to break US law and took overt acts to advance that conspiracy.

Here’s how the government presented the elements of this very same hacking conspiracy in Jeremy Hammond’s change of plea hearing (though Assange is charged with conspiring to violate four different CFAA charges, so the conspiracy is larger than what Hammond pled guilty to).

The crime of conspiracy, which is what he’s charged with, the elements are that there existed an agreement or implicit understanding between two or more people to violate a law of the United States, that the defendant knowingly and willingly joined that agreement, and that any one member of the conspiracy committed at least one overt act in the Southern District of New York. And the object of the conspiracy here is computer hacking to obtain information in violation of 18 U.S.C. 1030(a)(2)(A).

The elements of that offense are that, without authorization, members of the conspiracy agreed to intentionally access a computer, that they obtained information  from a protected computer, and that the value of the information obtained was greater than $5,000.

With regard to venue, I believe that defendant said that, I believe he did say that information was intentionally uploaded to a server located in the Southern District of New York.

The venue for Assange is different — EDVA rather than SDNY. The venue would be uncontroversial in any case, given that the Chelsea Manning-related leaks tie to the Pentagon and so EDVA. That said, when the US government extradites someone from overseas, they get venue wherever the person first enters the US (which is why EDNY, where JFK is located, has a lot of interesting precedents tied to foreigners violating US law). The indictment against Assange notes repeatedly that Assange “will be first brought to the Eastern District of Virginia,” so they plan on obtaining venue in EDVA, with all its harsh precedents on the Espionage Act, by landing him there if and when they get him, on top of the venue they’d already get via the leaks themselves.

Thus, so long as the government can prove that Assange entered into an agreement with co-conspirators to commit illegal hacks, then the government will have plenty of evidence to prove that the conspiracy happened, not least because co-conspirators Chelsea Manning, Jeremy Hammond, and Sabu pled guilty to them. Sigurdur Thordarsson (Siggi) is another key co-conspirator; the reason the government refers to him as “Teenager,” is to signal he was part of the conspiracy while explaining whey he wasn’t prosecuted for it (because he was a minor). The government also refers to Daniel Domscheit-Berg (WLA-2), Jake Appelbaum (WLA-3), and Sarah Harrison (WLA-4) in a way that treats them as co-conspirators; it’s unclear whether that numbering system starts at 2 because it treats Assange as WLA-1 or whether there’s some unnamed conspirator who will be added in the future.

The indictment alleges Assange entered into an agreement to commit CFAA in a number of ways:

  • Agreeing to help Manning crack a password on the same day Manning said the Gitmo detainee briefs were “all [she] really have got left” and Assange said, “curious eyes never run dry in my experience” (¶¶18-21)
  • Asking Siggi to hack Iceland (¶36)
  • Asking David House to decrypt a file stolen from Iceland before going on to hire him (¶44)
  • Agreeing that Siggi should meet with Gnosis, which included getting Laurelei and Kayla to agree to hack for WikiLeaks (¶¶48-49)
  • Publicly stating a link with LulzSec in June 2011 (¶62)
  • Validating Siggi’s outreach to Topiary, in which Siggi said, “WikiLeaks cannot publicly be taking down websites, but we might give a suggestion of something or something similar, if that’s acceptable to LulzSec” (¶¶63-64)
  • Cooperating with Jeremy Hammond, as reflected in Hammond’s statements to Sabu (¶70)
  • Providing Hammond a script to search the emails hacked from Stratfor (¶72)
  • Responding to a Sabu request for targets first by saying they could not do that “for the obvious legal reasons” but then suggesting a target (¶73)
  • Providing Sabu a script for searching emails (¶75)

The reason (one reason, anyway, I suspect there are a bunch more) that — as Cameron notes — the indictment doesn’t describe the earlier parts of the Stratfor hack is because they don’t matter at all to proving Assange was part of the conspiracy. The indictment provides evidence Assange agreed to enter into a conspiracy with LulzSec long before the hack and further evidence he remained actively involved as Hammond tried to exploit it.

Cameron’s piece is inconsistent, as well, when it attributes the hack to Hyrriiya but then claims that Sabu initiated the crime. Neither ultimately matters in the Assange conspiracy indictment, because — to the extent that Hyrriiya’s letter taking credit can be believed without corroboration — he laid out the basis for a conspiracy in the letter in any case, and he, too, would be a member of the conspiracy and that letter, if it could be validated, would be admissible.

As de la Vega described, once someone joins a conspiracy, that person becomes implicated in the acts of all the others in the conspiracy, whether or not one knows about those other acts. Assange agreed to enter into a conspiracy before and after the actual hack of Stratfor, so he’s on the hook for it.

Finally, given that the contemporaneous statements of all the co-conspirators would be admissible, concerns about the credibility of Siggi or any lack of cooperation from Manning and Hammond are less serious than they might otherwise be.

That principle of conspiracies — that once someone joins the conspiracy he is on the hook for everything else — is why (as O’Brien notes), the Espionage abetting charges all take place after the March 8 agreement to help hack a password. Before that, DOJ might be thinking, Assange might be playing a typical role of a publisher, publishing classified information provided to him, but after that, they seem to be arguing, he was part of the crime. An awful lot hangs on that agreement to crack a password (remember, a conspiracy doesn’t need to be successful to be charged), which is the main thing that distinguishes the Manning-related charges from journalism. But the government may be planning to tie WikiLeaks’ targeting of Iceland — which was not charged as a Manning-related crime but which involves conspiring to hack materials related to materials that Manning provided — with the Espionage charges.

As I’ve repeatedly argued, though, this dual structure — one conspiracy to hack, and another to steal National Defense Information from the US — sets up the Vault 7 leak perfectly, the charge that for some reason WikiLeaks associates want no tie to. The government will show, among other things, that even after WikiLeaks published the Vault 7 files, WikiLeaks published Joshua Schulte’s blogs, in which he attempted to provide details of the skills he deployed at CIA. The government will likewise show that Schulte, in attempting, from prison, to convince others to leak, fits into their theory that WikiLeaks was recruiting others to leak.

That’s one of many reasons why I expect Vault 7 to eventually be added to this indictment. Thus far, the government has obtained two indictments just as statutes of limitation might toll on the overt acts (the first being the agreement to crack a password, and the second to be the recruiting efforts five years ago). So I wouldn’t be surprised if, in April of next year, the government supersedes this again to include Vault 7, including some of the same charges (such as exposing the identities of covert officers) we already see in this indictment.

The real question, however, is if the government includes Russians as co-conspirators in a future superseding indictment. There were Russians in the chat rooms behind the Stratfor hack. And the existing conspiracy to hack charge is the same charge (though with slightly different counts) as two of the charges against the GRU officers who hacked the Democrats in 2016. Plus, there are repeated references in the Schulte trial about outreach to Russia (these references are quite ambiguous, but I hope to explain why that might be in the nearish future); I had heard about that outreach before it was publicly disclosed.

When the government made its last ditch attempt to get Hammond to testify before the grand jury, according to Hammond’s account, they twice claimed to Hammond that Assange was a Russian spy. And when he asked why Assange wasn’t charged in the 2016 hack-and-leak, the prosecutor appears to have suggested the extradition would take a long time, which might mean they could add those charges in a superseding indictment.

If the government eventually argues that Russians were part of this conspiracy from very early on, then the charges will look very different if and when Assange gets extradited.

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61 replies
  1. Jamie says:

    Nothing really surprises me anymore. Anyone who REALLY wants to know whats going on should definitely check this out, its a pretty scary warning from a history and religion professor. Pretty damn eye opening: ht tps://ancientprophecy.weebly.com/

    • Dopey-o says:

      “School board” at a “state university”? “Young students”? Too many red flags above the fold!
      Did anyone sit thru the video? Subject / gist? I am willing to consider any conspiracy theory, because you never know where the next great joke is coming from.

      I once bought a pamphlet from a man in front of the SF City Hall. Long multi-page explanation of how Stephen King was John Lennon’s killer. Best $2.00 i ever spent! *

      Serious question: why is Barr’s DOJ pursuing Assange et al? Doesn’t this run the risk of exposing the Trump campaign’s involvement with the Russians?
      —————
      * Stephen King would not just wave a handgun from the sidewalk. But that pamphlet went around to several bars and coffee shops, and entertained many friends.

      • joel fisher says:

        A serious question, indeed; the only answer I could think of is making the US vs Assange more and more complex, thus not getting any resolution until after November.

        • bmaz says:

          US v. Assange doesn’t have much, if anything, to do with “November”. In fact, the delay is entirely based at this point on the UK justice system and Assange’s mad desire to play it out there. You know they have their own system over there, right? It took years just over the Sweden EU warrant, and this is more complex and critical.

          • joel fisher says:

            So, by adding to the US indictment, the Justice Department can make Regina v. Assange more complex and time consuming. I think you answered the question.

            • bmaz says:

              No, I did not say that at all. What the DOJ did as Marcy describes in this post does not affect the timeline in the UK justice system whatsoever.

    • missing george carlin says:

      Sorry, but “ancient prophecy” sounds like a huge steaming pile of crap and nobody needs any more of that.

      [FYI – this was hung up in moderation because username is similar but not identical to what may have been last comment. I’m pointing this out in case someone is impersonating a community member. /~Rayne]

  2. bmaz says:

    Say, I think I noted Mr. Cameron did not seem to understand conspiracy prosecution in the previous Superseding Indictment post!

  3. Chetnolian says:

    Could a significantly increased indictment result in substantially increased possible incarceration? If so DoJ had better be careful or they might prejudice extradition.

    • bmaz says:

      No, not really, not at all. And there is not a chance in hell the UK will not extradite Assange. That deal is already done.

      • Chetnolian says:

        I defer to your knowledge of all things US, bmaz, but in my view the US could still blow this one. And to exactly what “deal” do you refer? We still have a fully functioning legal system, unlike some.

          • drouse says:

            For a while there I thought that the race would go to whatever car managed to make it to the end. Then there was the final lap by Norris. McLaren had a good day with Redbull clearing the way.

            • bmaz says:

              Heh, yes, it was starting to look like that if you could finish, you were in the points. But 11 managed somehow to make it to the end. It really was nice to see McLaren have a good day again. And Ferrari somehow managed to have a decent day as well. Leclerc drove his ass off and needed a lot of luck from attrition and penalties, but still kind of amazing.

          • Chetnolian says:

            That all? My comment stands. The wheels could come off a deal if the US makes charges and thus punishment unclear. And yes F1 was more interesting than expected.

            • bmaz says:

              As Marcy noted, the charges did not change. Although I suspect they still may, but have good reason to believe that is already cooked in. He will be extradited. The rest is a stage show.

              • skua says:

                I got no confidence that the stageshow won’t include Assange being tortured at Gitmo.
                Though they seemed to manage that on Manning while she was inside USA borders.

              • earlofhuntingdon says:

                The US doesn’t need Gitmo. Solitary confinement seems to be doing enough already.

            • earlofhuntingdon says:

              I’d like to think you’re right. But under Boris, with Cummings advising, and Raab and Patel behind? It’s hard to imagine they would resist the US over Assange, if Trump comes up with another, “We’d like you to do us a favor, though.” Not with the laundry list of open items on the post-Brexit negotiating table. Not even if Ghislaine Maxwell means it when her spokesperson claims she will keep schtum.

              Assange’s being held – on an extradition matter – in solitary confinement in a highest-security prison suggests a certain lack of disinterested treatment.

          • quebecois says:

            That was a huge surprise, attrition rate was unexpected for F1. McLaren brings a smile, they deserve it. Racing Point seems to be another midfield contender, but are lacking in the driver department. Leclerc and Norris are truly talented.

            Ecclestone is an ass.

              • quebecois says:

                Thanks bmaz.

                This morning I’m wondering if Sainz’s move to Ferrari from Mclaren is that good of an idea. Rumour mill is pointing to Alonso back next year with Renault. I

                I’m a lucky man with outstanding genetics. met my new médecin yesterday on zoom, he’d taken a look at my dossier and was expecting to see a walker and urine bag attached to it. He was happy to see me in better shape than most healthy 60 years old. Last week, I did my traditional sunday morning 90 km bike ride, I’m feeling better now than last year. Cheers.

                • bmaz says:

                  Very good to hear. Ferrari seems confident about next year. I’ll wait until after Hungary I guess, but this year looks rough for the boys in red.

        • earlofhuntingdon says:

          That would be hard to tell from the magistrate’s rulings in Mr. Assange’s case. Even when the prosecution agrees with defense motions, the magistrate uniformly denies them. It would appear that the fix is in. (I hold out as little hope for the UK establishing de novo trade relations with the US following Brexit, especially regarding food and agri-chemical imports.)

        • emptywheel says:

          In any case, they didn’t add charges, just expanded the scope of the CFAA conspiracy.

          • Savage Librarian says:

            I’m still wondering about Caputo’s offhand remark about the Rasputin Project and imagining if and/or how Assange might factor in.

              • Savage Librarian says:

                I knew it was in his 302s but for some reason I had the impression that he didn’t mean to reveal that info. I thought he may have let it slip when he was talking about Henry Greenberg (or other alias.) But maybe he was just referring to a previous conversation that may have been redacted. My choice of word was actually lazy on my part, expedient. I even thought about that at the time. Can’t get anything by you. Thanks so much for all you do!

      • AndTheSlithyToves says:

        “And there is not a chance in hell the UK will not extradite Assange.”
        Yeah. Interesting how the arrest of Ghislane Maxwell just occurred–a little more incentive for GB to be cooperative, possibly helping to keep Andrew’s name out of the papers.

  4. elise bowen says:

    terrific job. thank you.
    i was planning to ignore it, bc of other cases i’m following.
    glad i changed my mind.
    regards.

  5. Eureka says:

    Thanks for, as usual, being so good to your readers, telling us where you’re (and the case may be) going next: it always makes the current post even richer. Also the suspense factor is fun.

  6. Max404 says:

    I’m a bit on the dumb side.

    Does

    If the government eventually argues that Russians were part of this conspiracy from very early on, then the charges will look very different if and when Assange gets extradited.

    mean that, if this goes beyond January 21, 2021, certain operatives of the Trump campaign could join the list of conspirators?

    • Ginevra diBenci says:

      Not exactly OT, but a tangent. This post made me reread EW’s June 26 one titled “Billy Barr’s OLC Declinations.” Comments closed, or I would have put this there. These Assange-related maneuvers and the potential Russia connection made me wonder if Mueller’s squandered opportunity (autopsied by Jeffrey Toobin in The New Yorker, will try to get link when cats aren’t jumping on keyboard) might have been further torpedoed by the OLC tampering Marcy described, thus proscribing future prosecutions. (Sorry. Inarticulate, I know. I’m just an amateur trying to follow the connections.)

  7. SaltinWound says:

    Conspiracy charges seem so sweeping. If there had been the will to use this on Trump and associates, instead of all the toothless collusion talk, could it have been done?

    • Silly but True says:

      It was done: this was the point of the appointnent of Mueller and use of Special Counsel statutes to perform the Russia investigation; his scope was the authorizing subject matter: Mueller was essentially more than a US Att’y and with his cointel authority added in nearly a de facto Attorney General, but for limits (whatever they were if any) Rosenstein placed on $, vested with authority to complete a hybrid counterintel investigation using criminal procedures and whatever resources to do it he asked for to identify whatever “contacts” with Russia there were, legal or illegal. As such, much of the normal investigatory procedures did not apply; Mueller was free to execute whatever case the facts led him.

  8. bloopie2 says:

    In honor of Ennio Morricone, I re-listened to this Danish National Orchestra live performance of The Good The Bad and the Ugly. They get all the sound effects, it’s six minutes long, just tremendous Surely this was a man of whom it can be said that he left the world a better place that when he came in.

    • Ginevra diBenci says:

      Agree. Heard it this morning and got transported to another place, for the first time in five months. Arrivaderci, Maestro.

    • Savage Librarian says:

      Yes, extraordinary! Thanks so much for sharing. Very moving. This demonstrates all the positive implications of the word “collaboration.” It was fun to see the ocarina (toward the beginning of the piece.) I have a few of those but in very different shapes.

      Leaving the world a little better is something that might be good to teach in school. It’s something we can each strive to do.

  9. Rugger9 says:

    OT but so typical:
    https://crooksandliars.com/2020/07/michael-flynn-pledges-allegiance-qanon

    https://www.thedailybeast.com/michael-flynn-finally-embraces-his-qanon-cult-following

    C&L updated Will Sommer’s Daily Beast reporting about the oath the Q-people take, and all one needed to know about Flynn is that he did so on July 4th. As I understand the current situation, Judge Sullivan stayed action on the DCC mandamus ruling pending an en banc hearing. One wonders how this will play with Judge Sullivan (possibly granting that his options are limited here) or with the future en banc since it appears Flynn is not contrite in the least.

  10. viget says:

    Project Rasputin–

    Someone mentioned that upthread…today’s revelations about Stone’s sockpuppeting accounts on FB and Instagram made me think about that today, wonder why?

  11. tvor_22 says:

    No mention of the Bradley Manning Support Network skype hack JA solicited from Siggi. I guess it’s not really in the scope of being of any use in the conspiracy charges.

    > “Julian wanted to know everything they were doing,” says Siggi. On October 7th, Siggi hacked into a Skype conference call of the BMSN and sent the recording to Assange. In the wee hours of November 11th, with word of another Skype call that evening, he asked Assange if he should do it again. “Do you want me to record the BMSN conference?” Siggi wrote.

    > “YES,” Assange replied.

    • bmaz says:

      I don’t think that is right, and it goes directly to the lack of understanding by Cameron and Alexa of how conspiracy prosecutions, and defense thereof, are conducted in court as opposed to hacker forums. There was, as continues to be, no reason to specify everything in a charging document. Sometimes charging docs are “speaking”; but usually not, and they are normally notice pleading at best. Especially when the defendant has not even been extradited to the shores of the US yet. And Marcy is right, Assange is likely to be transported directly into Alexandria.

        • bmaz says:

          In short, yes. The “details” of a conspiracy can always be added later as they are facts, not necessarily different and additional charges. I am still not convinced there might not be new additional charges for Vault 7 and whatnot, but there no longer has to be as that could fit into the expansion of the previously existing conspiracy charges timeline as Marcy described.

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