The US Government Formed a New Understanding of WikiLeaks after 2016

Julian Assange’s substantive extradition hearing starts today. (I’m collating a list of journalists covering it from the live feed.)

I view the proceeding with great ambivalence.

I definitely agree that some of the charges against him — there are two theories of publishing charges: conspiring by asking for specific files, including entire databases, and publishing the identities of informants — pose a threat to the press. That said, the Trump Administration has used one of the same theories it is using against Assange to threaten journalists even in the last week (and was, before his superseding indictment) with virtually no cries of alarm from those defending Assange. In addition, charging him for exposing the identities of US and Coalition sources is a well-established crime in the UK, the Official Secrets Act, and (because Coalition sources were included among those WikiLeaks is accused of exposing) could be charged if the extradition against him fails.

The CFAA charge against Assange — particularly as expanded in the latest superseding indictment — does not pose any unique threat to journalism. Indeed, Assange’s alleged co-conspirators in the bolstered CFAA charge were already prosecuted, on both sides of the Atlantic, so there’s no question that the underlying hacking is a viable charge. WikiLeaks supporters have pointed to the unreliability of Siggi and Sabu to question those charges. They’ve focused less on the immunity granted David House for his testimony, though at trial Assange’s lawyers would focus on that, too. They might argue, too, that the US government has spun this particular conspiracy well outside the bounds where participants had made common agreement (if they kept spinning, after all, FireDogLake might get swept up for Jane Hamsher’s ties to House and defense of Manning back in the day).  But those are complaints about the strength of the government case, not the appropriateness of extradition. I suspect the government case is far stronger than shown in the indictment, which currently relies only on publicly available evidence.

Assange’s defense will call a number of experts (Kevin Gosztola discusses them here), many though not all of whom will present important, valid points. They’ll raise important issues about the free speech implications of this case, the dangers of the Espionage Act, America’s atrocious standards of incarceration, and the EDVA venue; the latter three of these, however, are in no way unique to Assange (and venue for him in EDVA is uncontroversial, unlike it has been for others charged in a district where a jury is virtually guaranteed to include people tied to the national security world). They’ll raise evidentiary complaints to which the lawyer representing the US government will present counterarguments. They’ll talk a lot about the Collateral Murder video, which was not charged.

WikiLeaks’ supporters will also exploit the US government’s Mike Pompeo problem, in this case by misrepresenting a comment he bombastically made about the First Amendment when declaring WikiLeaks a non-state hostile actor in the wake of the Vault 7 release.

No, Julian Assange and his kind are not the slightest bit interested in improving civil liberties or enhancing personal freedom. They have pretended that America’s First Amendment freedoms shield them from justice. They may have believed that, but they are wrong.


Third, we have to recognize that we can no longer allow Assange and his colleagues the latitude to use free speech values against us. To give them the space to crush us with misappropriated secrets is a perversion of what our great Constitution stands for. It ends now.


DIRECTOR POMPEO: Yeah, First Amendment freedoms. What I was speaking to there was, as – was a little less constitutional law and a lot more of a philosophical understanding. Julian Assange has no First Amendment freedoms. He’s sitting in an embassy in London. He’s not a U.S. citizen. So I wasn’t speaking to our Constitution.

What I was speaking to is an understanding that these are not reporters don’t good work to try to keep you – the American government honest. These are people who are actively recruiting agents to steal American secrets with the sole intent of destroying the American way of life. That is fundamentally different than a First Amendment activity, as I understand them, and I think as most Americans understand them. So that’s what I was really getting to.

We’ve had administrations before that have been squeamish about going after these folks under some concept of this right-to-publish. No one has the right to actively engage in the threat of secrets from America with the intent to do harm to it.

This is not the first time the Trump Administration has had a Mike Pompeo problem when prosecuting WikiLeaks-related crimes, nor should it be the last. I believe Joshua Schulte’s attempts to call Pompeo forced the government to back off its claim that Schulte’s decision to leak to WikiLeaks — allegedly in April 2016 and so months before the future CIA Director was still celebrating WikiLeaks leaks of DNC files — was by itself proof of his intent to damage the US. That’s particularly true as Secretary of State Mike Pompeo torches the infrastructure of Human Rights in the world. While I, in no way, believe the Assange prosecution arises from any personal animus Pompeo has for Assange, Pompeo’s role in it and his clear retaliation against the ICC last week will be easy to use to delegitimize the Assange prosecution.

So WikiLeaks will have a lot of good points to present in the next several weeks.

But they’re also expected to tell a number of cynical lies, including with respect to pardon dangles in the US, lies that will detract from the otherwise very important principles they will raise.

I believe the prosecution of Julian Assange as charged poses a number of dangers to journalism.

But I also believe the government has evidence — some of which it may not want to share during extradition and some of which it may not ever share — that Assange is precisely what they say he is, someone with an entire intelligence infrastructure uniquely targeting the US. Of particular note (as I said regarding one of the new allegations in the CFAA charge), I know of multiple allegations, of mixed but in some cases impeccable credibility, that WikiLeaks has used its infrastructure to spy on protected entities — journalists, lawyers, former associates — going back years, long before UC Global allegedly ratcheted up the spying on Assange. The NYT doesn’t spy on its competitors to find out how they might undermine its unique role, and WikiLeaks itself says such spying on Assange is improper, so there’s no basis to claim that when WikiLeaks does it, it’s all good.

Still, even if Assange is the head of a non-state hostile intelligence agency, does that merit prosecution? While the US has sanctioned the heads of hostile state intelligence agencies, with a few notable exceptions, they don’t extend their jurisdiction overseas to prosecute them.

In addition, the allegations of involvement in Russia in all this are well-founded. The folks involved in the LulzSec chatrooms now incorporated into Assange’s CFAA charge acknowledge there were Russians there as well, though explain that the whole thing was so chaotic no one thought that much about it. Only those who aggressively ignore the public case afford WikiLeaks any deniability that it did Russia’s work in publishing the stolen Democratic files in 2016. The Joshua Schulte trial presented evidence he wanted to work with Russia too; while the evidence presented (almost incidentally, a point I hope to return to one day) at trial is quite ambiguous, I first learned about his willingness to work with Russia months before any such allegation made it into a court filing. In addition, I know of one much earlier instance where someone in WikiLeaks’ infrastructure had similar such interests. And that’s before all the allegations that WikiLeaks diverted files damaging to Russia over years.

All of those are my views about the ambivalence of this extradition proceeding, whatever those are worth as someone who has followed WikiLeaks closely from the beginning.

But there’s another point that has gotten virtually no attention, particularly not from WikiLeaks supporters who often make false claims about the investigation into WikiLeaks that conflict with this point. The government’s understanding of WikiLeaks changed after 2016, and so changed after the Obama Administration decided that prosecuting WikiLeaks posed “a New York Times problem.” The multi-volume Senate Intelligence Report talks about this repeatedly, though virtually all instances (such as this passage from Volume III) remain heavily redacted.

A different passage from the same volume, however, explicitly calls WikiLeaks a “coopted third party.”

Despite Moscow’s hist01y of leaking politically damaging information, and the increasingly significant publication of illicitly obtained information by coopted third parties, such as WikiLeaks, which historically had published information harmful to the United States. previous use of weaponized information alone was not sufficient for the administration to take immediate action on the DNC breach. The administration was not fully engaged until some key intelligence insights were provided by the IC, which shifted how the administration viewed the issue.

And, to the very limited extent you can trust the view of a prosecutor trying to coerce testimony from Jeremy Hammond, the people who will prosecute Assange if he’s extradited claim he’s a Russian spy.

This has important implications for the case against Assange, implications that his supporters make aggressive efforts to obscure. First, the surveillance of Assange almost certainly ratcheted up because of actions Assange took in 2016 and 2017, actions that aren’t protected by journalism. As a foreigner who negotiated the receipt of documents with a presumed Russian mouthpiece, Guccifer 2.0 — in what was surely theater played out on Twitter DMs — Assange and WikiLeaks made themselves targetable as foreign intelligence targets in an attempt to learn about the Russian attack on the US. Assange’s multiple efforts to offer Trump’s campaign a unique benefit — picked up in investigative collections targeting others — made Assange a criminal target in a foreign donation investigation, one Mueller declined to prosecute for First Amendment reasons (50 USC 30121 is cited in the single Mueller warrant admitted to be targeting WikiLeaks that has been publicly released). And because of some overt ongoing communications with Joshua Schulte over the course of the former CIA programmer’s prosecution, WikiLeaks’ communications would be collected incidentally off of collection targeting him as the primary suspect in the leak.

Thus, even before Pompeo declared WikiLeaks a non-state hostile actor, Assange had done things that made him targetable in a way that he hadn’t previously been. And burning down the CIA’s hacking capability behind thin claims of public interest and then continuing to communicate with the presumed source surely didn’t help matters.

And, according to multiple public, official government documents, that changed the US government’s understanding of what WikiLeaks is. Public documents make it clear that witnesses (including but not limited to David House) provided new testimony as the government came to this new understanding, even beyond the government’s ill-fated attempt to coerce more testimony out of Chelsea Manning and Hammond. I know of at least two non-public investigative steps the government took as well. On August 20, 2018 — two days before a prosecutor wrote a gag request in EDVA that mistakenly mentioned the sophistication of Assange and the publicity surrounding his case and eight months after Assange was first charged — a Mueller warrant targeting a Guccifer 2.0 email account described an ongoing investigation into whether WikiLeaks and others were conspiring and/or a Foreign Agent, which suggests a similar amount of activity targeting Assange directly in EDVA. The government conducted a great deal of investigation into Assange — predicated off of either activities that have nothing to do with journalism and/or the fact that there was one obvious source for what might be WikiLeaks most damaging publication — that has happened in recent years.

WikiLeaks supporters will cite something that former DOJ Director of Public Affairs, Matthew Miller, said  about how hard it is to distinguish what WikiLeaks does from what the New York Times does.

The problem the department has always had in investigating Julian Assange is there is no way to prosecute him for publishing information without the same theory being applied to journalists.

But Miller made that comment in 2013, before Assange did things that gave the US government reason, entirely independent of things journalists do, to investigate him and WikiLeaks more aggressively. And even in an Administration that might not be in power were it not for Assange’s actions, even after Trump and his associates considered rewarding Assange with a pardon for his help, that has led to a dramatically different understanding of what WikiLeaks is.

That belief — and the government’s still mostly secret evidence for it — does nothing to mitigate the risks of some of the charges against Assange, as currently charged. But it is a fact that should be considered in the debate.

Update: Fixed date of a Mueller warrant I discussed.

Update: Bridges will be posting all the arguments and statements. Thus far they include:

35 replies
  1. bmaz says:

    Is there a “list of journalists” that contains more than blatant in the opaque bag for Assange journalists, and ones that have even a minimal clue about law?

    • bmaz says:

      Seriously, I made one comment to these “journalists” and they have descended on me like angry murder hornets. What a fucking joke. They also seem to think this is a “trial”; it is a limited extradition hearing, even for the High Holy Dear Leader Julian Assange. This bullshit is a mockery, and that is not on the UK court, but the rabid Assange cult.

    • earlofhuntingdon says:

      The normal public gallery in this courtroom seats 80. The magistrate in this nominally public proceeding is seating 9. Covid, she says. Five of those nine seats are for family. Remote digital coverage is by special permission. “Reporters” are individually vetted. Even so, 40 of those remote seats have apparently been revoked, owing to government “mistake.” I think you’ll see plenty of coverage from those opposing Assange’s perspective. Whether they have previously followed the case or have a background in law is anybody’s guess.

      • bmaz says:

        I cannot believe Amnesty is excluded, but some of the shit I have been reading are allowed to “cover” it. There should be no limitation on the remote coverage capability.

      • earlofhuntingdon says:

        Whatever the substantive arguments, the UK’s handling of the procedures here, most immediately through Judge Baraitser, is not a stellar example of even handedness.

        • bmaz says:

          I dunno about that. The court is affording these Assange people all the time they need, just pointing out where they are full of shit. And part of this is because there is a record from the Swedish proceedings and how much rope they gave the guy in those (before he absconded on criminal bail offenses); can’t look like giving less here where the actual stakes are higher.

          The court is being kinder to Assange and his blatherers than they arguably deserve.

        • earlofhuntingdon says:

          How does that description fit the choice of prison, Assange’s solitary confinement, his lack of access to his lawyers, that he received some of the court papers this morning, that they do not include a complete set, the conduct of the court in general, which earlier refused even motions agreed on by the prosecution and defense?

        • bmaz says:

          Golly, courts do the darnedest things when confronted by an army of cultish crackpots. You know, sometimes defendants don’t get certain discovery until the last minute. Still this way today in most US federal criminal courts.

  2. joel fisher says:

    Of course, it’s my lack of knowledge of the subject area, but I struggle to see where legit news collection stops and conspiring to steal data starts. It seems like as a society we should err in favor of the former and not the latter. Does his journalism privilege extend to the distribution of, as opposed to collection of, data? I’m going to keep reading EW and try to wise up. To me the most important thing about Assange is to get his ass under oath and ask what 2016 contacts he had with the Roger Stone and Trump campaign (And might be having now.). Trump and Stone’s (so far) successful cover up–I found it hard to write the words “cover up” in connection with something that is so out in the open–of this is the central part of the obstruction of justice charges that should be brought.

  3. JAFive says:

    I wonder how much of this is just for show as opposed to a serious legal defense.

    It seems to me that one of the strongest defenses Assange could present to extradition is not being discussed here: COVID-19. Given that COVID is utterly rampant in U.S. jails and prisons vs. relatively under control in the UK, I think there’s a very credible claim for anyone being extradited from Europe to the US under Article 3 of the ECHR.

    The European Court of Human Rights recently raised this question sua sponte in Hafeez v. UK ({%22itemid%22:[%22001-202335%22]}): “Having particular regard to the ongoing Covid-19 pandemic, if the applicant were to be extradited would there be a real risk of a breach of Article 3 of the Convention on account of the conditions of detention he would face on arrival?” If Assange’s health is as poor as the report have suggested, then he’s well-positioned to make such a claim, so why isn’t it in the conversation? Just because it lacks political sizzle?

    • bmaz says:

      All of it. The real extradition issues could be considered in a week of less, given the ability of the parties to have briefed this forever. As to Covid, they have a problem in the UK too. That should not fly in any regard. It is a worldwide pandemic. And you do not think it is “in the conversation”? Seriously, have you been paying attention to their health arguments? It is there, just bogus.

      • JAFive says:

        ” Seriously, have you been paying attention to their health arguments? ”

        I guess I’ve missed it. I’ve only been seeing the generic claims that he is in ill health and therefore prison per se will kill him. That obviously doesn’t fly, but I think the COVID argument has legs.

        Sure, it’s a global pandemic, but US cases are way higher than UK cases and US prison cases in particular are off the charts. Not saying the claim necessarily succeeds, but I think it’s good for a medium length delay or better. I can’t really speak to the British process, but all the indications point towards a serious ECHR issue.

        • bmaz says:

          Also, Assange is “in poor health” because he is a Trumpian level asshole, that sold out his friends that posted his bail, in order to have to never even respond to valid Swedish rape victims, and then hid out in a Ecuadoran Embassy broom closet for years. If he is in “poor health” that is on him. “I starved myself to near death, so I cannot face legitimate courts’. What a load of shit.

          Don’t abscond international law, and then whine that it was all too hard on you. The Assange cultists are so full of shit their eyes are brown.

    • emptywheel says:

      Assange has done two things thus far the judge has considered a game — one, asking for charges to be excised without earlier notice, and the second, then asking for a delay until January.

      January, of course, would be when Trump would pardon Assange if he paid off the services in 2016.

  4. jaango says:

    Our national surveillance vehicle is fundamentally out dated in its usage and has to be revisited and revised competently. Of course, I am speaking of FISA, and all this entails..

    Take, for example, a three-judge panel should be its focused, and where the Court approves the Feds surveillance effort, the “surveillance” should consist of ‘time frames,’ from 30 days, 60 days, and to 180 days. Thus, at the completed ‘time date’ the feds should have compiled all their data, submit the results, and subsequently, provide a copy to the person under this ‘new’ surveillance umbrella.

    In doing so, the “subject” is officially notified and consequently, the subject is now well aware that this behavior, civil or criminal, has been addressed and possibly addressed further, into the future. Therefore, “secrecy” by the potential felons, have been notified that their prior historical behavior, is now in the public arena and available for all of us to see and read

  5. Rugger9 says:

    IANAL, but did read with interest bmaz and EoH’s back and forth. However, the question to me seems to be whether a press pass can be used to engage in spying whether for state or corporate actors. It would also seem to me that if Assange prevails in the UK where there is no First Amendment or (IIRC) presumption of innocence I’m not sure he could be prosecuted in the US with the trial protections available if the trial evidence came out in the UK.

    As noted above here, this isn’t a trial but an extradition hearing and FWIW I think the British will keep him there under Official Secrets Act charges and to limit the opportunity of DJT to pardon Assange no matter how much of a buddy BoJo is. HM the Queen and much of her family are veterans too and after Thursday her distaste for DJT has probably turned to blind rage, along with the rest of the MoD.

    • bmaz says:

      Assange will never prevail there on the merits. The agreement for extradition has been contemplated (and quietly agreed to) for quite a while. This stuff is for show. And, no, the UK will not keep Assange there if, in fact, extradition is formalized. And Assange would have to be a blithering idiot to stay in the UK, in the face of the OSA as Marcy described.

      • earlofhuntingdon says:

        So, the result here is pre-arranged between governments – I agree, it’s consistent, for example, with Baraitser’s conduct from the get-go – and the court process is unsatisfying judicial theater, covering the British government’s ample arse. That’s just part of shit happens. OK, then.

        • bmaz says:

          Can’t speak for the propriety of that in the UK. And maybe the Crown courts (is that the right term?) could throw a wrench in it all.

          Given where things went on the Swedish EU warrant though, and how truly badly Assange screwed over the UK jurisdiction, I think he needs a travel pillow.

        • Savage Librarian says:

          Is the Crown Court the appeals process? Are you saying that process might not slow things down as much as it usually might?

        • bmaz says:

          By my limited understanding, the Crown Court might be all of them. but, at root, it is the trial level forum, and only. after the higher courts (appeals). Maybe EoH, or Chetnolian can weigh in.

        • earlofhuntingdon says:

          Swedish authorities started their “preliminary investigation” into two allegations of sex crimes against Julian Assange in 2010. They dropped it in 2017, but restarted the investigation into one allegation after Assange’s arrest by the UK in 2019. They dropped it finally in November 2019, relinquishing their right – and priority – to extradite Assange to Sweden.

          In outline, a foreign state that has an extradition treaty with the UK files an extradition request. The Secretary of State conducts a preliminary review. If the request facially complies with requirements, the government certifies it and issues an arrest order. Assange was re-arrested just before this hearing, owing to the US having filed a revised request, pursuant to a superseding American indictment.

          In England, the Westminster Magistrates Court (for Assange, Vanessa Baraitser) conducts two hearings. An initial hearing is largely mechanical, and for Assange, took place in the spring of 2020. A fuller extradition hearing follows, which is going on now. Appeals are to the High Court – the trial-level court for serious offenses – and, in limited circumstances, to the Supreme Court. Below is a short fact sheet.

        • Rugger9 says:

          While I would agree that a fix ix in, until Judge Baraitser makes his ruling and thwacks the gavel it is possible even if unlikely that the politics will change the options. IIRC, the restrictions made it hard for actual journos to keep tabs in a clear sign of a fix, but let’s speculate that HM the Q decides that Thursday’s DJT pronouncement is too far and points that out to the judge (who I think works for her even if it’s delegated) to not give DJT what he wants: Assange under US control.

          What is the effect of the Swedish warrant now? How does the US have priority over the EU warrant (Brexit or not, this predated the vote)?

        • bmaz says:

          Zero is the answer. The EU warrant based on the Swedish allegations has been withdrawn. By my understanding without prejudice, but there was only one count possible left, and the hard statute of limitations on that remaining count runs very soon. Swedish implications are effectively gone as a result of Assange’s criminal absconding.

    • graham firchlis says:

      IANAL, never taken a law class but I have recieved a legal education.

      In considering “fairness” it must be acknowledged that Assange is a foreign national being tried under the legal system of England and Wales. Crown Court judges have tremendous discretion in the conduct of their cases, including evidence flow. In my experience they are also impatient with obvious delaying tactics. Assange has been given extraordinary leeway, presumably to blunt claims on appeal.

      Assange doesn’t get the benefit of US constitutional law and processes until he is in US custody. He does have a presumption of innocence, but with extradition a US indictment overcomes reasonable doubt.

      If the Brits wanted to prosecute Assange, they would have. UK extradition law clearly states that domestic charges must be fully litigated before extradition can proceed. They don’t want him, or his circus.

  6. Rugger9 says:

    OT but DJT had a presser today that was its usual torrent of lies (and another dig at McCain) including this one about the top brass:
    “I’m not saying the military’s in love with me, the soldiers are, the top people in the Pentagon probably aren’t because they want to do nothing but fight wars so that all of those wonderful companies that make the bombs and make the planes and make everything else stay happy,”

    A couple of observations are in order here. First, the weapons system designers have champions in the DoD but not all of the JCS or their top commanders are part of that since in the USN that is mostly in the realm of the pork chops (Supply Corps) for procurement. The commanders want stuff that works, period, because they remember that their troops are first in line for getting targeted.

    Second, the Military Times said otherwise about the troops even before Thursday, the nonsense around Stars and Stripes and other stuff coming back out. Note also that the families of these soldiers, sailors, Marines, airmen and guardsmen all vote too, and none of them are going to like this stuff. In short, the lie will get worse for the WH because DJT just won’t shut up.

    • Geoff says:

      Yeah, addressing the entire military ranks as Neocons isn’t going to sit well with a lot of them. But keep blathering Don.

  7. tvor_22 says:

    > In addition, I know of one much earlier instance where someone in WikiLeaks’ infrastructure had similar such interests. And that’s before all the allegations that WikiLeaks diverted files damaging to Russia over years.

    Are you referring to Israel Shamir and his son, Johannes Wahlström? (Having to do with the 2010 United States diplomatic cables leak in which “James Ball has said he knew the organization’s denial of its connection to Shamir were untrue because Julian Assange instructed him to give Shamir 90,000 US cables”. “Yulia Latynina, writing in The Moscow Times, alleged that Shamir concocted a cable which allegedly quoted European Union diplomats’ plans to walk out of the Durban II speech by Iranian president Mahmoud Ahmadinejad, for publication in the pro-Putin Russian Reporter in December 2010. Shamir has denied this accusation.” “In an article published on the CounterPunch website in December 2010, Shamir praised the Belarus president, Alexander Lukashenko and said WikiLeaks had exposed America’s “agents” in the country.[40] Shamir has been accused of passing “sensitive cables” to the Lukashenko government.[41] He is believed to have visited Belarus in December 2010 and to have given Vladimir Makei, then Lukashenko’s chief of staff, unpublished and unredacted US diplomatic cables.” (all sources are Shamir’s wikipedia entry))

    The later stuff being the accusations of omissions in the 2012 Syria files and then the refusal to publish Ukrainian Cyber Troops material on the Russian interior ministry in 2014.

  8. Chetnolian says:

    I am going to accept bmaz’s suggestion I join in only to a very limited extent because I am no sort of expert on extradition. But I have just read the current UK Government Guidance on the subject

    First bmaz keeps saying it is a done deal. That cannot be because the legal processes have not been gone through and it is one of the the continuous gripes of our current sub-Trumpian government that they are insufficiently in control of the courts. When you don’t have a written constitution that is a recipe for a mess.

    I hold no brief whatsoever for Assange but his lawyers are entitled to put their views. I expect them to lose at first instance and for sure our current Secretary of State will then order extradition. But the chances of their being at least one unanswerable ground for an appeal are really high in such a complicated case. It would not surprise me if there was something that went all the way to the Supreme Court, though I would be equally unsurprised if there were not.

    And no bmaz you can’t simply lol at the powers of the ECHR. Again not saying it will get involved, but it would not surprise me if it did and Assange’s lawyers could have the right to appeal to it. BTW for those who do not know the ECHR is not an EU body, so it will still have jurisdiction from 1st January 2021 despite Brexit.

    And of course I do have a little bias because the USA does have form in rejecting extradition requests from the UK in the past.

Comments are closed.