September 25, 2021 / by 

 

At Lunchtime on March 15, 2017, Joshua Schulte Went Home and Got His Passport[s]

“Whoever committed the leak” of CIA hacking tools Joshua Schulte stands accused of, Schulte said in his first FBI interview on March 15, 2017, “was guilty of espionage and deserved to be executed.”

Schulte submitted the 302 from that interview to accompany a motion to suppress the initial search of his cell phone (remember, he went pro se last month, so he’s formulating this defense himself, and this challenge not one the supremely competent Sabrina Shroff mounted when she was in charge of his defense). Schulte based his motion to suppress on a claim that the FBI used a subpoena, not a warrant, to authorize the seizure of his phone.

Schulte’s challenge is, from a legal standpoint, transparent garbage. He claims that the FBI seized his phone with a subpoena. That’s not what the record he submits shows. It shows, instead, that the FBI handed him a subpoena for both grand jury testimony and his phone, then walked back to his apartment with him, then executed a search warrant that included his electronic devices among the items to be searched.

[Schulte, referred to as KP, for either Kinetic Panda or Kinetic Piranha] was presented with a subpoena to appear at a grand jury hearing, scheduled to occur on March 17, 2017. KP was also served with a subpoena, authorizing the FBI to seize KP’s phone. From PERSHING SQUARE, the interviewing Agents and KP walked to KP’s residence, 200 East 39th Street, Apartment 8C, New York, New York, where FBI personnel executed a search warrant.

[snip]

SSA HUI thereafter served KP with a subpoena to appear at a grand jury hearing on March 17, 2017 and a subpoena that authorized the FBI to seize KP’s phone. SSA HUI also stated the FBI would soon execute a search warrant at KP’s residence. KP read the documents and stated he did not know what it all meant. KP was told by the interview Agents that he had every right to seek legal counsel. KP was also told by the interview Agents that he could return to the residence and be present during the search. KP voluntarily agreed to return to the residence and provide access to the search team.

The FBI obtained two warrants to search items including Schulte’s electronic devices first one permitting a covert search and then a second one that permitted that overt search. He knew of the warrant before the search of the phone occurred.

Which means the other details of the 302, which don’t help Schulte but which provide new insight on him and the investigation, are the most interesting details of this new release.

Consider his comment that the leaker should be executed. In the interview, he places blame on “Karen,” for lax security. “KP stated he didn’t want to place blame on anyone in terms of being negligent, but her approach to security was lax.” Trial testimony makes it clear this is a reference to the second-level supervisor he blamed for being disciplined at CIA. So from the very first moment, he seemed to frame Karen as a target of a ruthless Espionage investigation. He would continue from jail, suggesting the “Information War” he launched from a jail cell was actually continuous with an earlier effort to blame Karen, contrary to what Schulte argued at his first trial.

Just as interesting, the comment claiming such a leaker would be guilty of espionage matches something he said to his co-worker, “Jeremy Weber” (whom he also tried to blame for the leak) in conversations about Edward Snowden.

Q. You don’t remember him ever discussing leakers with you?

A. I, I do remember talking about leakers.

Q. Okay. What do you recall?

A. There was discussion around Snowden.

Q. Okay. And?

A. Schulte felt that Snowden was a — had betrayed his country.

Q. That doesn’t, you know, he seems to have strong opinions on everything. You sure he didn’t say more?

A. He probably would have call him a traitor. Said he should be executed for sure. I don’t remember specific verbiage, but he did express his typical strong opinions.

Schulte made those comments to Weber, even though the government claims to have chat logs in which Schulte said that Snowden, unlike Chelsea Manning, didn’t endanger anyone with his leaks.

More recently, Schulte has been fighting to have a home server, including a selection of Snowden files on it, returned to him.

But I’m particularly interested in the comments Schulte made about his planned trip to Cancun.

KP advised that he planned to travel to Cancun, Mexico on Thursday, March 16, 2017 with his brother who lived in Dallas, Texas. KP stated he has three younger brothers who all lived in Texas. KP had discussed moving back to Texas at some point and running a business with his brother in Dallas. KP stated the trip cost him approximately $1,200.00 and they planned to stay at a resort. KP stated he had no plans to meet up with anyone other than his brother during the trip, and he planned to return to the U.S. on March 20, 2017. KP stated he and his brother wanted to take a trip to either Cancun or Denver, Colorado, but they ultimately chose Cancun.

KP stated he returned to his residence during lunchtime earlier in the day to retrieve his passport so he could check-in online. KP said his passport was currently located inside his backpack, which was on the floor next to KP at PERSHING SQUARE. KP said he printed out his travel documents earlier. (Agent Note. KP reached inside his backpack and showed SA DONALDSON the documents he printed for the Cancun trip.)

KP said he understood how his potential travel abroad could cause angst at high levels of government; however, KP said if he was guilty, then he would have already left the country. KP stated he booked the Cancun trip prior to the WIKILEAKS publication. [my emphasis]

According to the trial interview of Robert Evanchec, one of the agents who conducted this investigation, they already knew of this trip when then went to interview him (indeed, they included it in the warrant affidavits). “[W]e learned that within a week’s time he was planning to travel, for the second time in his life, outside the United States.” As described in that testimony, it was why they chose to interview Schulte so early in the investigation.

Q. I think you said earlier that early in the investigation, you learned that the defendant was traveling or planning to travel?

A. That’s correct.

Q. Where was he planning to travel to?

A. To Cancun, Mexico.

Q. When was the defendant scheduled to travel?

A. He was scheduled to depart on March 16, 2017.

Q. How, if at all, did that impact your investigation?

A. It accelerated our need to quickly understand what this defendant had done, and what his intentions were in traveling to Cancun. As I said earlier, it was only the second time in his life that he left the United States. And certainly his departure this close to the WikiLeaks release was of concern to us, and necessitated that we escalate our investigation and look into other ways to find out why he was traveling.

Q. What did you do as a result of that?

A. As a result of that, we had planned and actually ended up interviewing the subject Mr. Schulte.

While the 302 doesn’t record it, according to Evanchec’s testimony, after telling the FBI he had gone home at lunch to retrieve “his passport,” Schulte then told FBI Agents his diplomatic passport was back at his apartment.

Q. Did the defendant say anything about a diplomatic passport at the residence?

A. He did.

Q. What did he say about that?

A. He indicated that he had retained a diplomatic passport from his time at the CIA that he had not returned that was inside of his residence.

Schulte accompanied the FBI back to the apartment, let them in, hung around for a bit, then returned to Bloomberg, staying longer than he told them he would.

While he was at Bloomberg, FBI got far enough in their search of Schulte’s apartment to determine that the diplomatic passport was not there.

Q. You testified that the defendant told you that that diplomatic passport was in his apartment; is that correct?

A. That’s correct, sir.

Q. Was the diplomatic passport found in his apartment?

A. It was not.

When Schulte didn’t return when he said he would, Evanchec intercepted Schulte again as he was about to leave Bloomberg. The 302 redacts the reference to the FBI telling him they did not find his diplomatic passport at the apartment.

As Evanchec testified, when they intercepted Schulte on his way out, he admitted that he had stashed his diplo passport at his work station at Bloomberg, and they all went to his workstation and got both passports.

A. I believe it was just after midnight, around 12:15 p.m. We observed him again in the lobby of the Bloomberg building at 120 Park Avenue.

Q. Did you approach him?

A. We did.

Q. Who was with you at that time?

A. At the time it was myself, Special Agent Gary Ido, and Special Agent John Summers.

Q. What, if anything, did you say to the defendant at that time?

A. We indicated to him that we had obtained classified information or found classified information in his residence. And we also indicated that we had not recovered his diplomatic passport.

Q. What, if anything, did the defendant say in response?

A. He indicated the diplomatic passport was actually in his office at Bloomberg.

Q. Did he go anywhere after that?

A. Yes, he escorted us along with a security official from Bloomberg to his desk where we took possession of the diplomatic passport.

Q. Did you take possession of any other passport at that time?

A. Yes.

Q. What passport?

A. His personal passport.

Now, virtually all of this has previously been made public (presumably, Evanchec reviewed the 302s before testifying at the trial).

What’s new is that, at least per Schulte, he went home in the middle of the day to get his passport(s). His excuse for doing so might make sense — he was trying to check in online, which you can only do a day in advance. He might have been able to check in from his house, at lunch, unless he tried and discovered he could only check in 24-hours before his flight (he was scheduled to leave work before the end of the day on March 16).

Except none of that would require Schulte to bring two passports back to work, his regular passport and his diplomatic passport (the latter of which he should have but did not turn in when he left the CIA the previous November). Indeed, given the scrutiny Schulte had to have known he would be under, flying under the diplo passport would provoke alarm all by itself, so presumably he was checking in with his regular passport.

What I find particularly interesting, however, is the timing.

That’s because sometime between 10:50 AM and 3:30 PM that same day, Trump said the following in a recorded interview with Tucker Carlson, leaking classified information that would have alerted Schulte, if he had a way to hear it, that the government had determined that “a lot of things were taken” from the CIA under Obama, not under Trump.

Trump: Because I don’t want to do anything that’s going to violate any strength of an agency. You know we have enough problems. And by the way, with the CIA, I just want people to know, the CIA was hacked and a lot of things taken. That was during the Obama years. That was not during, us, that was during the Obama situation. Mike Pompeo is there now, doing a fantastic job. But we will be submitting certain things, and I will be perhaps speaking about this next week. But it’s right now before the Committee, and I think I want to leave it at that. I have a lot of confidence in the committee.

If Schulte had some way of seeing this, then, he would have been alerted that FBI had learned enough to know that he was a likely culprit for the leak.

Around the time Trump said this, Schulte (by his own telling) left work and got the passport he needed to check in for his second-ever flight out of the country — he reserved the flight on February 27. He never showed which passport he had in his bag to the FBI Agents, so it’s possible he also got the diplo passport he shouldn’t have even had, much less needed to check in for a flight.

For what it’s worth, it doesn’t seem possible that Schulte would have gotten advance notice he was the suspect for the leak from Trump’s blabbing to Tucker Carlson. I’ve not found any evidence that that interview played live; rather, it appears to have first aired at 9PM, by which point Schulte would have already been intercepted by FBI Agents in the Bloomberg lobby as he left from work.

But the 302 shows that, at around the same time that Trump was blabbing non-public details of the investigation into Schulte to a cable TV personality, Schulte left work and got his passport, possibly even the diplomatic passport he shouldn’t have had.


More on Joshua Schulte’s Attempted Hack of the Justice System

A few weeks ago, I described what I believed was an attempt by Joshua Schulte to hack the judicial system — not by using computer code, but by exploiting legal code. In a status hearing, he claimed that he had informed prosecutors that he wanted to proceed pro se (representing himself). The sole remaining member of the prosecution team, David Denton, said he hadn’t heard of it.

A letter submitted by Denton and AUSA Michael Lockard today, who has joined the team, explains why: after they reviewed one of many appeals Schulte had filed (this one a demand for the judge in this case to recuse), he actually informed of his purported decision Judge Paul Crotty ex parte, before he sent a contrary filing, also ex parte. Crotty, having gotten no unequivocal indication that Schulte intended to proceed pro se, did nothing, which is part of the basis for Schulte’s mandamus filing.

On June 9, 2021, the defendant filed a pro se petition for a writ of mandamus in the Second Circuit seeking to recuse the District Court, claiming, among other things, that the defendant “petitioned [the Court] to represent himself in multiple letters throughout November 2020,” and that the Court “did not hold a Faretta hearing as required by law.” In Re: Joshua Schulte, 21-1445, Dkt. 1 at 10 (2d Cir. 2021). At the status conference in this matter on June 15, 2021, the Government noted that no such request appeared on the docket for this case, and that the Government was not aware of the defendant expressing “an unequivocal intent to forego the assistance of counsel.” Williams, 44 F.3d at 100. At the conference, defense counsel, at the defendant’s apparent request, stated that this was incorrect, and the defendant did wish to proceed pro se. Following the conference, defense counsel forwarded the Government a copy of a letter dated November 6, 2020, in which the defendant indicated his desire to proceed pro se, and informed the Government that the request had been submitted by the defendant to the Court ex parte. Defense counsel further explained that, in subsequent ex parte communication with the Court following the defendant’s November 2020 letter, defense counsel had advised the Court that the defendant intended to continue with counsel.

Much of the letter submitted today is routine process for when a defendant claims to want to represent himself. Among the precedents the government cites are two (one in this circuit) holding that a defendant cannot be co-counsel with his defense attorney, which is effectively what Schulte has done.

(4) a defendant who elects to proceed pro se “has no constitutional or statutory right to represent himself as co-counsel with his own attorney,” United States v. Tutino, 883 F.2d 1125, 1141 (2d Cir. 1989); see also Schmidt, 105 F.3d at 90 (“[T]here is no constitutional right to hybrid representation.”).

And while at the hearing Sabrina Shroff had suggested she and Deborah Colson serve as stand-by counsel, the government rightly notes that in his mandamus petition, Schulte raised conflicts reviewed before his first trial, which is something amounting to advice from Shroff that Schulte write down everything he wanted to leak in his prison notebook. They’re using that to ask that Crotty appoint someone besides Shroff (though they don’t name her) as standby counsel.

With regard to the appointment of standby counsel, the Government notes that the defendant’s recently filed pro se mandamus petition reiterates his prior claims that he wishes to call as witnesses certain of his prior and current counsel from the Federal Defenders of New York, although that claim is framed in the context of arguing that the Court’s prior rulings on this issue demonstrate bias that requires the Court’s recusal, rather than seeking relief from the Court’s orders themselves. See In Re: Joshua Schulte, 21-1445, Dkt. 1 at 4-9 (2d Cir. 2021). Accordingly, in order to avoid later claims alleging any purported conflict-of-interest, the Government respectfully suggests that it would be prudent for the Court to appoint as standby counsel one of the defendant’s current or former attorneys not implicated in the defendant’s claims asserting conflict or implicating the attorney-witness rule.

So the letter explains what, in a normal court room, is going on. But I maintain that Schulte is (and has been, for some time) attempting to do what he did with CIA’s computer systems: send a bunch of conflicting messages to get the machine to operate in a way entirely unexpected. Indeed, one tactic he’s using is one he used several times at CIA, the same tactic small children use when one parent gives them a response they don’t like: Schulte is bypassing his criminal docket (both through the use of the ex parte letters and the non-associated dockets, to ensure the government didn’t learn of this ploy until all the Speedy Time would, if the ploy is successful, have elapsed).

If I were the government I’d have some good hacking investigators review the docket to try to understand it all from a hacker’s brain. Because, at the very least, I suspect Schulte plans to claim that the government simply forgot to hold his second trial.


Insurance File: Glenn Greenwald’s Anger Is of More Use to Vladimir Putin than Edward Snowden’s Freedom

Glenn Greenwald risks making his own anger more valuable to Vladimir Putin than Edward Snowden’s freedom.

When WikiLeaks helped Snowden flee Hong Kong eight years ago, both WikiLeaks and Snowden had the explicit goal of using Snowden’s successful flight from prosecution to entice more leakers.

In his book, Snowden described that Sarah Harrison and Julian Assange’s goal in helping him flee Hong Kong was to provide a counterexample to the draconian sentence of Chelsea Manning.

People have long ascribed selfish motives to Assange’s desire to give me aid, but I believe he was genuinely invested in one thing above all—helping me evade capture. That doing so involved tweaking the US government was just a bonus for him, an ancillary benefit, not the goal. It’s true that Assange can be self-interested and vain, moody, and even bullying—after a sharp disagreement just a month after our first, text-based conversation, I never communicated with him again—but he also sincerely conceives of himself as a fighter in a historic battle for the public’s right to know, a battle he will do anything to win. It’s for this reason that I regard it as too reductive to interpret his assistance as merely an instance of scheming or self-promotion. More important to him, I believe, was the opportunity to establish a counterexample to the case of the organization’s most famous source, US Army Private Chelsea Manning, whose thirty-five-year prison sentence was historically unprecedented and a monstrous deterrent to whistleblowers everywhere. Though I never was, and never would be, a source for Assange, my situation gave him a chance to right a wrong. There was nothing he could have done to save Manning, but he seemed, through Sarah, determined to do everything he could to save me. That said, I was initially wary of Sarah’s involvement. But Laura told me that she was serious, competent, and, most important, independent: one of the few at WikiLeaks who dared to openly disagree with Assange. Despite my caution, I was in a difficult position, and as Hemingway once wrote, the way to make people trustworthy is to trust them.

[snip]

It was only once we’d entered Chinese airspace that I realized I wouldn’t be able to get any rest until I asked Sarah this question explicitly: “Why are you helping me?”

She flattened out her voice, as if trying to tamp down her passions, and told me that she wanted me to have a better outcome. She never said better than what outcome or whose, and I could only take that answer as a sign of her discretion and respect.

It’s not just Snowden’s impression, though, that WikiLeaks intended to make an example of him. The superseding indictment against Assange cites several times when Assange invoked WikiLeaks’ role in Snowden’s successful escape to encourage others (including CIA Systems Administrators like Joshua Schulte, who had a ticket to Mexico when the FBI first interviewed him and seized his passports) to go do what Snowden did. British Judge Vanessa Baraitser even included one of those speeches in paragraphs distinguishing what Assange is accused of from legal journalism. And as early as 2017, public reporting said that WikiLeaks’ assistance to Snowden was what changed how DOJ understood WikiLeaks and why it began to consider prosecuting Assange. It wasn’t Trump that led DOJ to stop treating Assange as a journalist, it was Snowden.

According to Snowden’s own words, he shared WikiLeaks’ goal of setting an example to inspire others. In an email that Snowden must have sent Bart Gellman weeks before the exchange between him and Harrison above, Snowden described steps he took to give other leakers (this may be Gellman’s paraphrase), “hope for a happy ending.”

In the Saturday night email, Snowden spelled it out. He had chosen to risk his freedom, he wrote, but he was not resigned to life in prison or worse. He preferred to set an example for “an entire class of potential whistleblowers” who might follow his lead. Ordinary citizens would not take impossible risks. They had to have some hope for a happy ending.

To effect this, I intend to apply for asylum (preferably somewhere with strong internet and press freedoms, e.g. Iceland, though the strength of the reaction will determine how choosy I can be). Given how tightly the U.S. surveils diplomatic outposts (I should know, I used to work in our U.N. spying shop), I cannot risk this until you have already gone to press, as it would immediately tip our hand. It would also be futile without proof of my claims—they’d have me committed—and I have no desire to provide raw source material to a foreign government. Post publication, the source document and cryptographic signature will allow me to immediately substantiate both the truth of my claim and the danger I am in without having to give anything up. . . . Give me the bottom line: when do you expect to go to print?

Citizenfour also quotes Snowden describing how he hoped that proof that his “methods work[]” would encourage others to leak.

If all ends well, perhaps the demonstration that our methods worked will embolden more to come forward.

Snowden’s “methods” don’t work — they certainly haven’t for Daniel Hale, Reality Winner, or Joshua Schulte. But for each, Snowden played at least some role (there is ambiguity about how Schulte really felt about Snowden) in inspiring them to ruin their lives with magical thinking and inadequate operational security.

One of Snowden’s “methods” appears to entail quitting an existing job and then picking another at an Intelligence Community contractor with the intent of obtaining documents to leak. Snowden did this at Booz Allen Hamilton, and his book at least suggests the possibility he did that with his earlier job in Hawaii.

The government justified the draconian sentence that it had negotiated with Winner’s lawyers, in part, by claiming that she premeditated her leak.

Around the same time the defendant took a job with Pluribus requiring a security clearance in February 2017, she was expressing contempt for the United States, mocking compromises of our national security, and making preparations to leak intelligence information

Along with evidence Winner researched The Intercept’s SecureDrop before starting at her new job, the government supported this claim by pointing to three references Winner made to Snowden as or shortly after she started at Pluribus, including texts in which Winner told her sister she was on Assange and Snowden’s side the day the Vault 7 leak was revealed. That was still two months before she took the files she would send to The Intercept.

Had Hale gone to trial, the government would have shown that Hale discussed serving as a source for Jeremy Scahill by May 30, 2013, the day before he left NSA, and discussed Snowden — and hanging out with the journalists reporting on him — the day Snowden came forward on June 9. Then, on July 25, Hale sent Scahill a resume showing he was looking for counterterrorism or counterintelligence jobs. In December, Hale started the the job at Leidos where he would print out the files he sent to The Intercept.

You can think these leaks were valuable and ethical without thinking it a good idea to leave a months-long trail of evidence showing premeditation on unencrypted texts and social media.

Similarly, one of Snowden’s “methods” was to claim he had expressed concerns internally, but was ignored, a wannabe whistleblower stymied by America’s admittedly failed support for whistleblowers, especially those at contractors.

In the weeks before Snowden left NSA, he made a stink about some legal issues and NSA’s training programs (about how FISA Section 702 interacted with EO 12333) that he subsequently pointed to as his basis for claiming to be a whistleblower. The complaint was legit, and one NSA department actually did take notice, but it was not a formal complaint; indeed, it was more a complaint about US law. But his complaint had nothing to do with the vast majority of the documents that have been published based off his files, to say nothing of the far greater set of documents he took. And he made the complaint long after having prepared for months to steal vast amounts of files.

Similarly, Joshua Schulte wrote two emails documenting purported concerns about CIA security, one to a colleague less than a month before he left, which he didn’t send, and then, on his final day, one to CIA’s Inspector General that he falsely claimed was unclassified, a copy of which he was seen taking with him when he packed up. In the first search warrant for Schulte’s house obtained on March 13, 2017, less than a week after the initial Vault 7 release, the FBI had already found those emails and deemed Schulte’s treatment of them as suspect. And when they found a copy of the classified letter to the IG stashed in his headboard, it gave them cause to seize Schulte’s passports on threat of arrest. Snowden’s “methods” didn’t deliver Schulte a “happy ending;” they made Schulte’s apprehension easier.

To the extent Schulte could be shown to be following Snowden’s “methods” (again, that question was not resolved at his first trial) it would be a fairly damning indictment of those methods, since this effort to create a paper trail as a whistleblower was such an obvious attempt to retroactively invent cover for leaks for which there was abundant evidence Schulte’s motivation was spite and revenge. Maybe that’s why someone close to Assange explicitly asked me to stop covering Schulte’s case.

Had Daniel Hale gone to trial, the government undoubtedly would have used the exhibits showing that Hale had never made any whistleblower claims in any of the series of government jobs where he had clearance as a way to push back on his claim of being a whistleblower, though Hale was outspoken about his criticisms of the drone program before he took most of the files he shared with The Intercept. Indeed, given the success of Hale’s earlier anti-drone activism, his case raises real questions about whether leaking was more effective than Hale’s frank, overt witness to the problems of the drone program.

Worse still, Snowden’s boasts about his “methods” appear to have made prosecutions more likely. An early, mostly-sealed filing in Hale’s case, reveals that the government set out to investigate whether Hale was The Intercept’s source because they were trying to figure out whom Snowden had “inspired” to leak.

Specifically, the FBI repeatedly characterized its investigation in this case as an attempt to identify leakers who had been “inspired” by a specific individual – one whose activity was designed to criticize the government by shedding light on perceived illegalities on the part of the Intelligence Community.

That explains why the government required Hale to allocute to being the author of an essay in a collection of Hale’s leaked documents involving Snowden: by doing so, they obtained sworn proof that Hale is the person Snowden and Glenn Greenwald were discussing, while the two were sitting in Moscow, in the closing sequence of Citizenfour. In the scene, Glenn flamboyantly wrote for Snowden how this new leaker and The Intercept’s journalist were communicating, what appears to be J-A-B-B-E-R. That stunt for the camera would have tipped the government off, in cinema release just two months after they had raided Hale’s home, to look for and reconstruct Hale’s Jabber communications with Jeremy Scahill, which they partly succeeded in doing.

Rather than being means to a “happy ending,” then, prosecutors have found Snowden’s “methods” useful to pursuing increasingly draconian prosecutions of people inspired by him.

And now, after Snowden and Greenwald failed to persuade Trump to pardon Snowden, Assange — and in a secondary effort — The Intercept’s sources (perhaps, like Assange, they find the association with Schulte counterproductive, because they didn’t even try to get him pardoned, even though Trump himself almost bolloxed that prosecution), Snowden is left demanding pardons on Twitter for the people he set out to convince leaking could have a “happy ending.”

By associating these leaks with someone being protected by Russia so that — in Snowden’s own words — he could encourage more leaks, Snowden only puts a target on these people’s back, making a justifiable commutation of Winner’s sentence less likely (Winner is due to get out on November 23, two days before the most likely time for Joe Biden to even consider commuting her sentence).

I’m grateful for Snowden’s sacrifices to release the NSA files, but his efforts to lead others to believe that leaking would be easy was bound to, and has, ended badly.

If Vladimir Putin agreed to protect Snowden in hopes that he would inspire more leakers to release files that help Russia evade US spying (as Schulte’s leak did, at a time when the US was trying to understand the full scope of what Russia had done in 2016), the US prosecutorial focus on Snowden-related leakers undermines his value to Putin, probably by design. As that happens, Snowden might reach the moment that observers of his case have long been dreading, the moment when Putin’s utilitarian protection of Snowden will give way to some other equally utilitarian goal.

This is all happening as Putin adjusts to dealing with Joe Biden rather than someone he could manipulate by (at the very least) feeding his narcissism, Donald Trump. It is happening in the wake of new sanctions on Russia, in response to which Putin put US Ambassador John Sullivan on a plane to deliver some message, in person, to Biden. It is happening as Biden’s response to the Colonial Pipeline attack, in which ransomware criminals harbored by Putin shut down US critical infrastructure for fun and profit, includes noting that he and Putin will meet in person soon, followed by the unexplained disabling of the perpetrators in the wake of the attack.

Meanwhile, even as Snowden is of less and less use to Putin, Glenn Greenwald’s utility continues to grow. Snowden, for example, continues to speak out about topics inconvenient to Putin, like privacy. The presence in Russia of someone like Snowden with his own platform and international credibility may become increasingly risky for Putin given the success of protests around Alexei Navalny.

Greenwald, by contrast, seems to have dropped all interest in surveillance and has instead turned many of his grievances — even his complaint that former NSA lawyer Susan Hennessey will get a job in DOJ’s National Security Division, against whom one can make a strong case on privacy grounds — into a defense of Russia. Greenwald spends most of his time arguing that a caricature that he labels “liberals” and another caricature that he labels “the [American] Deep State,” followed closely by another caricature he calls “the  [non-right wing propaganda] Media,” are the most malignant forces in American life. In his rush to attack “liberals,” “the Deep State,” and “the Media,” Greenwald has coddled the political forces that Putin has found useful, including outright racists and other right wing extremists. By the end of the Trump presidency, Greenwald was excusing virtually everything Trump did, up to and including his attempted coup based on the utter denigration of democratic processes. In short, Greenwald has become a loud and important voice in support of the illiberalism Putin favors, to say nothing of Greenwald’s use of a rhetoric unbound by facts.

That Greenwald spends most of his days deliberately inciting Twitter mobs is just an added benefit, to those who want to weaken America, to Greenwald’s defense of fascists.

Most of us who used to know Greenwald attribute his Russian denialism and his apologies for Trump at least partly to his desire to free Snowden from exile. Yet Greenwald’s tantrums, because of their value to Putin, may have the opposite effect.

Stoking Greenwald’s irrational furor over what he calls “liberals” and “the Deep State” and “the Media” would actually be a huge incentive for Putin to deal Snowden to the US, in maximally symbolic fashion. There is nothing that could light up Greenwald’s fury like Putin bringing Snowden to a summit with Biden, wrapped up like a present, to send back on Air Force One. (That’s an exaggerated scenario, but you get my point.)

Plus, if Putin played it right, such a ceremonial delivery of Snowden might just achieve the completion of the Snowden operation, the public release of all of the files Snowden stole, not just those that one or another journalist found to have news value.

The Intelligence Community has, over the years, said a bunch of things about Snowden that were outright bullshit or, at least, for which they did not yet have evidence. But one true thing they’ve said is that Snowden took a great many files that had no imaginable privacy value. Even from a brief period working in the full archive aiming to answer three very discrete questions about FISA, I believe that to be true. While some (including Assange) pressured Snowden and others to release all these files, Snowden instead ensured that journalists would serve a vetting role, and after some initial fumbling, The Intercept did a laudable job of keeping those files safe. So up to now, the fact that Snowden took far more files than any privacy concern — even privacy concerns divorced from all question of nationality — could justify may not have mattered.

But as far as I know there are still full copies out there and Russia would love to spin up Glenn Greenwald’s fury so much he would attempt to burn down his caricature of “The Deep State” in retaliation — much like Schulte succeeded in badly damaging the CIA — by releasing his set.

I believe Russia has been trying to do this since at least 2016.

To be very clear, I’m not claiming that Greenwald is taking money from or is any way controlled by Russia. I am very much not claiming that, in part because it wouldn’t be necessary. Why pay Greenwald for what you can get him to do for free?

And while I assume Greenwald would respect Snowden’s stated wishes and protect the files, like Trump, Greenwald’s narcissism and resentment are very, very easy buttons to push. Greenwald has been heading in this direction without pushing. It would be child’s play to have people friendly to Russia’s illiberal goals (people like Steve Bannon or Tucker Carlson) exacerbate Greenwald’s anger at “the Deep State” to turn it into the frenzy it has become.

Meanwhile, custody of Edward Snowden would be a very enticing dangle for Putin to offer Biden as a way to reset Russia’s relationship with the US. One cannot negotiate with Putin, one can only adjust the points of leverage over each other and hope to come to some stable place, and Snowden has always been at risk of becoming a bargaining chip in such a relationship. By turning Snowden over to the US to be martyred in a high profile trial, Putin might wring the last bit of value out of Snowden. All the better, from Putin’s standpoint, if Greenwald were to respond by releasing the full Snowden set.

For the past four years, Greenwald seems to have believed that if he sucked up to Putin and Trump, he’d win Snowden’s freedom, as if either man would ever deal in good faith. Instead, I think, that process has had the effect of making Greenwald more useful to Russia than Snowden is anymore. And at this point, Greenwald seems to have lost sight of the likelihood that his belligerent rants may well make Snowden less safe, not more.

Update: According to the government sentencing memo for Hale, they didn’t write up the statement of offense, Hale did.

Hale pled guilty without any plea agreement, and submitted his own Statement of Facts. Def.’s Statement of Facts, Dkt. 197 (“SOF”).


Peter Debbins Claims He Stopped Spying for Russia in 2011

The government has submitted its sentencing memorandum for Peter Debbins, the former Special Forces guy who pled guilty to spying for Russia’s GRU last November. They are asking for 17 years, arguing that gives him a slightly favorable sentence because he admitted to the spying, but one in line with other recent sentences for people who spied for foreign countries.

The memorandum provides more specifics about where Debbins was assigned and deployed when, how many of his colleagues he IDed to GRU as potential recruiting targets, and what was the security violation that got his clearance suspended in 2005 (he moved his wife to Azerbaijan and gave her a US government phone). It describes how, in spite of that past violation, he was still granted at TS/SCI clearance in 2010, shortly before (according to Debbins’ admissions) he stopped spying.

In January 2010, the U.S. Army notified Debbins via letter that he had been granted a TS/SCI security clearance. Id. ¶ 54. The letter, however, noted concerns about his business connections and father-in-law, and his prior relief of command in Azerbaijan. Id. It cautioned that a foreign intelligence service could exploit such situations and emphasized his “responsibilities for reporting any possible contact by representatives or citizens of foreign countries.”

An appendix includes a picture they found of Debbins wearing a Russian military uniform in 1994.

DOJ notes that Debbins claims he quit spying in 2011.

Debbins has claimed that his conspiracy with the Russian intelligence agents did not continue past January 2011.

But it’s clear they don’t believe him.

For example, they describe how one GRU officer used his business activities as cover for spying and then lay out how Debbins was discussing “business” with that person in 2010, shortly before he claims to have quit spying for Russia.

During this time, Debbins knew that RIS 7 used business affiliations as a cover for Russian intelligence activities. In either the 2008 or 2010 meetings, “RIS 7 provided [Debbins] with the name of his cover company and gave [Debbins] his contact information.” Id. ¶ 46. “RIS 7 instructed [Debbins] to tell his family that he was working with the cover company to explain any calls that he might have with the Russian intelligence service.” Id.

After Debbins returned to the United States from Russia in September 2010, he began exchanging a series of emails with the Russian National. See id. ¶ 60. Many of the emails referenced, at least on their face, the infrastructure project or other business projects.4 See id.

Through these emails, Debbins kept the Russian National apprised of his efforts to move from Minnesota to the Washington, D.C. area. In early November 2010, the Russian National emailed Debbins and stated that he had not heard from him in a long time. See id. ¶ 61. The Russian National specifically noted that “Ivan”—the first name of RIS 7—sent his greetings, see id., an apparent effort to prompt a response from Debbins. Sure enough, Debbins responded to the Russian National three days later, noting that he was about to move to “the capital.” See id. ¶ 62. Then, on January 3, 2011, Debbins emailed the Russian National, informing him that he had moved to “the capital” and that he was working on their business matter. See id. ¶ 63.

The sentencing memo describes how Debbins moved to DC without a job, and only then — in the wake of these conversations about “business” with a known GRU officer — applied to (but didn’t get) a bunch of agency positions, before he settled for military intelligence.

During this time, Debbins moved from Minnesota to Northern Virginia and began applying for positions in the U.S. intelligence community. He moved first to Virginia Beach in December 2010 and then to Manassas in January 2011. See Ex. A, ¶ 34. On or about December 17, 2010, Debbins applied for four positions at the Central Intelligence Agency (CIA). See id. ¶¶ 9-10(a). The following month, Debbins applied for seventeen positions at the National Security Agency. See id. ¶ 11. Debbins did not obtain any of these positions. See id. ¶ 10-11.

Debbins ultimately secured a position with an intelligence branch of the U.S. Army

[snip]

Throughout this period from 2011 to 2019, Debbins also applied unsuccessfully for numerous other positions in the U.S. intelligence community. As detailed in the attached declaration, he unsuccessfully applied for positions at the CIA and DIA. See Ex. A, ¶¶ 10, 12. In 2015, he applied to be a Special Agent at the FBI but later withdrew his name from consideration. See id. ¶ 13. After the 2016 presidential election, Debbins even applied to the White House, seeking to obtain a position on the National Security Council. See id. ¶ 14.

The sentencing memo doesn’t say it — but WaPo has reported that he had ties to both Mike Flynn and Erik Prince, who were being cultivated by Russia at the time he applied for the NSC job, and in the job he would have played a key Russian policy role in the Administration that Russia helped get elected.

Debbins was a graduate of and teacher at the D.C.-based Institute of World Politics, a small but influential school in conservative foreign policy circles. Former Trump national security adviser Michael Flynn and military contractor Erik Prince both have ties to the school.

In early 2017, according to emails reviewed by The Washington Post, Debbins told a friend that he was a candidate for a position on the National Security Council, “specifically Special Assistant to the President and Senior Director for Russia and Central Asia.”

The sentencing memo even describes how, for the entire time Debbins claims to have quit, he was still a security risk because of his past spying.

To make matters worse, Debbins lied about and concealed his contacts with the Russian intelligence agents for nearly a quarter of a century, even after the alleged conspiracy. By deliberately concealing the contacts during background investigations (when he had a legal obligation to report them), Debbins was able to obtain employment in sensitive positions in the U.S. intelligence community, with access to highly classified information, from April 2011 until July 2019. Debbins, a serious security vulnerability considering his history of espionage activity, put national security further at risk by lying and deceiving his way into those positions. Debbins did not reveal his contacts with the Russian intelligence agents to law enforcement until after he failed a polygraph as part of a security clearance reinvestigation in early July 2019.

A person does not harbor (as the sentencing memo describes) an ideological affinity for Russia and only quit spying once he restores his TS/SCI clearance.

And if the government, at any time over the next seventeen years (or however long his sentence) finds evidence to prove that he kept spying, then the boilerplate in his plea deal will mean they only need to prove by a preponderance of evidence that he was lying when he claimed to have quit spying to declare the deal void and sentence him to life in prison. And if that happened, that would make it easy to prosecute him for sharing what presumably would have been Top Secret information without having to risk that Top Secret information at trial.

Peter Debbins claims he quit spying in 2011. But if DOJ ever obtains proof he did not, then his lenient seventeen year sentence would very quickly become a life sentence.


Treasury States as Fact that Konstantin Kilimnik Shared Polling Data with Russian Intelligence

Today, the Biden Administration rolled out a package of new sanctions against Russia. The package includes new authorities, including limitations on doing business with Russia’s Sovereign Debt. It sanctions some companies with ties to Russian intelligence, including for their role in the Solar Winds breach, which is the kind of precedent that may backfire against the US. As Russia expands its military presence in or just outside Ukraine, it imposes sanctions on Russians involved in Crimea. It expands sanctions for disinformation, targeting both Yevgeniy Prigozhin’s fronts and his money laundering vehicles as well as a GRU front.

A number of those measures will be controversial. And the imposition of sanctions on Prigozhin without an accompanying criminal complaint (as happened under Trump) may suggest a change of strategy.

But one of the bigger pieces of news is that the Treasury press release states as fact that Konstantin Kilimnik shared the polling data that Paul Manafort gave to him (or had Rick Gates pass on) with unnamed Russian intelligence.

Konstantin Kilimnik (Kilimnik) is a Russian and Ukrainian political consultant and known Russian Intelligence Services agent implementing influence operations on their behalf. During the 2016 U.S. presidential election campaign, Kilimnik provided the Russian Intelligence Services with sensitive information on polling and campaign strategy. Additionally, Kilimnik sought to promote the narrative that Ukraine, not Russia, had interfered in the 2016 U.S. presidential election. In 2018, Kilimnik was indicted on charges of obstruction of justice and conspiracy to obstruct justice regarding unregistered lobbying work. Kilimnik has also sought to assist designated former President of Ukraine Viktor Yanukovych. At Yanukovych’s direction, Kilimnik sought to institute a plan that would return Yanukovych to power in Ukraine.

Kilimnik was designated pursuant to E.O. 13848 for having engaged in foreign interference in the U.S. 2020 presidential election. Kilimnik was also designated pursuant to E.O. 13660 for acting for or on behalf of Yanukovych. Yanukovych, who is currently hiding in exile in Russia, was designated in 2014 pursuant to E.O. 13660 for his role in violating Ukrainian sovereignty. [my emphasis]

This comes just one month after the Intelligence Community associated Kilimnik with FSB rather than GRU, as had previously been alleged.

This announcement could be particularly interesting for pardoned Trump campaign manager Paul Manafort. As Andrew Weissmann pointed out at the time, Manafort’s pardon only includes the stuff he was convicted of, arguably leaving open the possibility of prosecution even for stuff he admitted but was not convicted of.

But Manafort’s role in feeding Russia information that was useful for their election operation in 2016 was only ever addressed in Manafort’s plea breach hearing. He was never charged for his lies to protect Kilimnik during the period he was supposed to be cooperating. Just as interesting, around the time (in June and August of last year) that FBI was offering $250,000 for information leading to Kilimnik’s arrest and adding him to their Most Wanted list, a lawsuit by media outlets for Manafort’s breach filings died out with no explanation. One possible explanation for that (it’s not the only one) is that DOJ weighed in and said those filings could not be released because of the ongoing investigation that would lead Treasury to have more confidence about what Kilimnik did with that information.

Yes, it’s interesting that the government now seems to have more clarity about what Russian agency Kilimnik worked for and what he did with Trump campaign information. But it may be acutely interesting for Paul Manafort.


Grits: The Difference between Joshua Schulte’s Complaints about SAMs and Those of His Attorneys

Accused Vault 7 leaker Joshua Schulte got himself back in the news with a challenge to the Special Administrative Measures he has been under since he tried to leak information from jail in October 2018.

His latest complaints closely mirror those he made in a separate lawsuit in April 2019 (though in the earlier one, Schulte claimed that Chapo Guzmán was one of the few people on the same floor, not like that should have mattered).

You can tell this one is self-indulgent from Schulte’s claim that there’s no legitimate reason to require his meetings with his family be monitored.

There is no “legitimate governmental objective” to denying a pre-trial detainee the ability to see both his parents at once, to have a contact visit with them, to visit with them in private, or to contact them as often as other inmates. The government has never charged Mr. Schulte with disclosure of classified information through social visits or phone calls. Regardless, the government cannot take a preventative measure of limiting free speech to stop future potential crimes.

Not only did Schulte share protected information via his family in the past, but he was caught sharing information he recognized was protected (which the government suggests may have been classified) on a phone with someone appearing to be a journalist. Sure, he wasn’t charged for that. The government waited until he did it again, this time using ProtonMail, before charging him.

Plus, some of his complaints really address the sheer arbitrariness of prison life, not SAMs per se.

The MCC bans 10S inmates from equal commissary. These randomly banned items include mouthwash, vitamin E, a book light, a bowl, a radio, earbuds, composition notebooks, reading glasses, honey, A&D ointment, artificial tears, gas relief tabs, prilosec tabs, Tylenol, mirrors, dish soap, pens, albums, Sudoku puzzles, mugs, socks, shorts, V05 body soap, suave lotion, herbal essence shampoo, bagels, BBQ sauce, grits, salt and pepper, honey buns, jolly ranchers, shabangs, combs, sharp cheddar cheese, crackers, soy sauce, wheat thins, assorted tea, and coffee, among many, many more items. It’s so random that “raisin brand” cereal is allowed, but “cheerios” cereal is banned (sold in same bag).

One can best measure of the merit of Schulte’s claim, however, by comparing that April 2019 complaint with what his attorneys submitted in a formal challenge to his SAMs shortly thereafter.

B. The SAMs are unconstitutional.

i. The SAMs unconstitutionally punish Mr. Schulte because they are not rationally related to the legitimate governmental interests underlying 28 C.F.R. § 501.

ii. The SAMs impose restrictions on Mr. Schulte’s defense counsel and attorney-client communications in violation of the Sixth Amendment.

C. Limitation on the “dissemination” of communications.

a. Restrictions on third-party communications.

D. Overall chilling effect on defense counsel.

E. The SAMs violate Mr. Schulte’s First Amendment rights by prohibiting non-legal contact with anyone who is not an immediate family member.

That filing, written by experienced defense attorneys who understand the real difference between Schulte’s treatment and that of other defendants, focused on his ability to defend himself and maintain as much contact with his family as possible.

Judge Paul Crotty, in an August 2019 response to Schulte’s lawyers’ motion, upheld most of the SAMs but modified both his contact with lawyers and his family slightly. There’s no reason to believe Crotty will be more amenable to changing the SAMs now, not least given another Schulte filing that suggests his cell may have been raided back on March 8, on a day he would have had contact with the public at his trial. The government claims the officers in question did no more than deliver him to and from the loading dock that day. A separate judge instructed him to refile the complaint by December 23, but any response has yet to appear on the docket.

SAMs are undoubtedly onerous and some of Schulte’s complaints go to the core of whether such restrictions are humane.

But he also has demonstrated repeatedly that he’s a shameless liar aiming to try his case in public.


The Hack or Attack Debate: Answer Old Questions While Waiting to Learn Enough to Answer That One

As people in government, particularly members of Congress posturing for the cameras, start responding to the SolarWinds compromise, some have adopted a bellicose language unsupported by the facts, at least those that are public. Dick Durbin, for example, called it, “virtually a declaration of war.” That has led to some necessary pushback noting that as far as we know, this is an act of espionage, not sabotage. It’s the kind of thing we do as well without declaring war.

As usual, I substantially agree with Jack Goldsmith on these issues.

The lack of self-awareness in these and similar reactions to the Russia breach is astounding. The U.S. government has no principled basis to complain about the Russia hack, much less retaliate for it with military means, since the U.S. government hacks foreign government networks on a huge scale every day. Indeed, a military response to the Russian hack would violate international law. The United States does have options, but none are terribly attractive.

[snip]

The larger context here is that for many reasons—the Snowden revelations, the infamous digital attack on Iranian centrifuges (and other warlike uses of digital weapons), the U.S. “internet freedom” program (which subsidizes tools to circumvent constraints in authoritarian networks), Defend Forward, and more—the United States is widely viewed abroad as the most fearsome global cyber bully. From our adversaries’ perspective, the United States uses its prodigious digital tools, short of war, to achieve whatever advantage it can, and so adversaries feel justified in doing whatever they can as well, often with fewer scruples. We can tell ourselves that our digital exploits in foreign governmental systems serve good ends, and that our adversaries’ exploits in our systems do not, and often that is true. But this moral judgment, and the norms we push around it, have had no apparent influence in tamping down our adversaries’ harmful attacks on our networks—especially since the U.S. approach to norms has been to give up nothing that it wants to do in the digital realm, but at the same time to try to cajole, coerce, or shame our adversaries into not engaging in digital practices that harm the United States.

Goldsmith’s point about the Defend Forward approach adopted under Trump deserves particular focus given that, purportedly in the days since the compromise became known, Kash Patel is taking steps to split NSA and CyberCommand, something that would separate the Defend Forward effort from NSA.

Trump administration officials at the Pentagon late this week delivered to the Joint Chiefs of Staff a proposal to split up the leadership of the National Security Agency and U.S. Cyber Command. It is the latest push to dramatically reshape defense policy advanced by a handful of key political officials who were installed in acting roles in the Pentagon after Donald Trump lost his re-election bid.

A U.S. official confirmed on Saturday that Joint Chiefs Chairman Gen. Mark Milley — who along with Acting Defense Secretary Chris Miller must certify that the move meets certain standards laid out by Congress in 2016 — received the proposal in the last few days.

With Miller expected to sign off on the move, the fate of the proposal ultimately falls to Milley, who told Congress in 2019 that the dual-hat leadership structure was working and should be maintained.

As Reuters has reported, General Nakasone was pretty hubristic about NSA’s recent efforts to infiltrate our adversaries (Nakasone has, in unprecedented fashion, also chosen to officially confirm efforts CyberCom has made, which he must think has a deterrent effect that, it’s now clear, did not).

Speaking at a private dinner for tech security executives at the St. Regis Hotel in San Francisco in late February, America’s cyber defense chief boasted how well his organizations protect the country from spies.

U.S. teams were “understanding the adversary better than the adversary understands themselves,” said General Paul Nakasone, boss of the National Security Agency (NSA) and U.S. Cyber Command, according to a Reuters reporter present at the Feb. 26 dinner. His speech has not been previously reported.

Yet even as he spoke, hackers were embedding malicious code into the network of a Texas software company called SolarWinds Corp, according to a timeline published by Microsoft and more than a dozen government and corporate cyber researchers.

A little over three weeks after that dinner, the hackers began a sweeping intelligence operation that has penetrated the heart of America’s government and numerous corporations and other institutions around the world.

The failures of Defend Forward to identify this breach may raise questions about the dual hatting of NSA and CyberCommand, but there’s no good reason for these Trump flunkies to take any substantive steps in the last month of a Lame Duck period while it is serially refusing briefings to President Elect Biden’s team. All the more so because the more pressing issue, it seems, is giving CISA, the government’s defensive agency, more resources and authority.

More importantly, while it is too early to determine whether this goes beyond traditional espionage, there are questions that we can identify. For example, one detail that might suggest this was intended to do more than espionage is that the hackers stole FireEye’s Red Team tools. There are information gathering purposes for doing so, but they’re probably not important enough to risk blowing this entire operation, as happened. So we should at least consider whether the SolarWinds compromise aimed to pair intelligence (including that gathered from FERC, one of the agencies targeted) with the means to launch deniable sabotage on key critical infrastructure using FireEye’s tools.

Measurements of whether this is a hack or attack must also consider that the hackers are in a position where they could alter data. Consider what kind of mayhem Russia could do to our economy or world markets by altering data from Treasury. That is, the hackers are in a position where it’s possible, at least, to engage in sabotage without engaging in any kinetic act.

Finally, adopting the shorthand the industry uses for such things, there’s a bit of sloppiness about attribution. The working assumption this is APT 29, and the working reference is that APT 29 works for SVR, Russia’s foreign intelligence agency (even though when it was implicated in key hacks in 2016, it was assumed to work for FSB). I’ve been told by someone with more local knowledge that the relationship between these hackers and the intelligence agencies they work for may be more transactional. The people who’ve best understood the attack, including FireEye, think this may be a new “group.”

While intelligence officials and security experts generally agree Russia is responsible, and some believe it is the handiwork of Moscow’s foreign intelligence service, FireEye and Microsoft, as well as some government officials, believe the attack was perpetrated by a hacking group never seen before, one whose tools and techniques had been previously unknown.

Which brings me to a question we should be able to answer, one I’ve been harping on since the DNC leak first became public: what was the relationship between the hackers, APT 28 (the ones who stole files and shared the with WikiLeaks) and APT 29 (who then, and still, have been described as “just” spying). From the very first — and even in March 2017, after which discussions of the hack have become irredeemably politicized beyond recovery — there was some complexity surrounding the issue.

I have previously pointed to a conflict between what Crowdstrike claimed in its report on the DNC hack and what the FBI told FireEye. Crowdstrike basically said the two hacking groups didn’t coordinate at all (which Crowdstrike took as proof of sophistication). Whereas FireEye said they did coordinate (which it took as proof of sophistication and uniqueness of this hack). I understand the truth is closer to the latter. APT 28 largely operated on its own, but at times, when it hit a wall of sorts, it got help from APT 29 (though there may have been some back and forth before APT 29 did share).

When I said I understood the truth was closer to the latter — that there was some cooperated between APT 28 and 29, it was based on what a firsthand witness, who had been involved in defending a related target in 2016, told me. He said, in general, there was no cooperation between the two sets of hackers, but on a few occasions APT 29 seemed to assist APT 28. That’s unsurprising. The attack in 2016 was ambitious, years in planning, and Putin was personally involved. He would obviously have the ability to demand coordination for this operation, so intelligence collected by APT 29 may well have dictated choices made in where to throw GRU’s efforts.

The point is important now, especially as people like CrowdStrike’s former CTO Dmitri Alperovitch recommends responses based on the assumption that this is SVR and therefore that dictates what Russia intends.

So we should assume this is espionage and therefore avoid escalating language for the moment. But having had our assess handed to us already, with a sophisticated campaign launched as we were busy looking for election hackers, it would be a big mistake IMO to rely on easy old categories to try to understand this.

Update: Corrected to reflect that Alperovitch is no longer with CrowdStrike.


Tom Bossert Gives Trump the Advice Trump Refused Four Years Ago

Almost exactly four years ago, at a time when (seemingly unbeknownst to Trump’s incoming Homeland Security advisor Tom Bossert) Mike Flynn and his Deputy KT McFarland were secretly making asks of the Russian government, top Transition team officials discussed what to do about sanctions Obama imposed, in part, to punish Russia for interfering in the just finished election.

As part of that discussion, Bossert asked his predecessor Lisa Monaco how the Russians were responding to sanctions. At 4:01 PM on December 29, he reported back to Flynn, McFarland, Steve Bannon (at Bannon’s personal email), Keith Kellogg, and Reince Priebus:

[Monaco] confirms the Russiand [sic] have already responded with strong threats, promising to retaliate. [She] characterized the Russian response as bellicose. My thoughts, sans the Russia angle, on which I defer to Mike and KT: [redacted] : Cyber attacks by forcing [sic] governments or anyone else are unacceptable and must be taken seriously. The alleged Russian hack of US entities involved in the US political process is a problem. Of course we must separate their attempts to influence our election from the rash conclusion that they succeeded in altering the views of any American voter. We must be wary of escalatory retaliation to follow.

Immediately after receiving this call, Flynn called McFarland using the phone in his Dominican Republic hotel room. They spoke for 11 minutes.

Approximately eight minutes after Flynn and McFarland hung up, at 4:20, Flynn called Sergey Kislyak from that same hotel room phone to a phone at the Russian Embassy wiretapped by the FBI. The person who transcribed the intercept observed that it sounded like Flynn might be using his speaker phone.

On the call, Flynn raised the sanctions. He asked the Russian Ambassador not to box the Trump Administration in and further asked not to escalate things to avoid getting into a tit-for-tat.

Approximately 12 minutes after the end of Flynn’s call with Kislyak, KT McFarland responded to Bossert’s email, claiming Flynn would call Kislyak later than evening, yet quoting the phrases “tit-for-tat” and “box” Trump in directly from the call Flynn had just made to the Ambassador — the one the transcriber believed may have been made on a speaker phone.

On Dec. 29, a transition adviser to Mr. Trump, K. T. McFarland, wrote in an email to a colleague that sanctions announced hours before by the Obama administration in retaliation for Russian election meddling were aimed at discrediting Mr. Trump’s victory. The sanctions could also make it much harder for Mr. Trump to ease tensions with Russia, “which has just thrown the U.S.A. election to him,” she wrote in the emails obtained by The Times.

[snip]

Mr. Obama, she wrote, was trying to “box Trump in diplomatically with Russia,” which could limit his options with other countries, including Iran and Syria. “Russia is key that unlocks door,” she wrote.

She also wrote that the sanctions over Russian election meddling were intended to “lure Trump in trap of saying something” in defense of Russia, and were aimed at “discrediting Trump’s victory by saying it was due to Russian interference.”

“If there is a tit-for-tat escalation Trump will have difficulty improving relations with Russia, which has just thrown U.S.A. election to him,” she wrote.

Either because Trump’s incoming Homeland Security advisor was, like Bannon, also conducting this discussion on his personal email (Kislyak would make a comment that may reflect knowledge of the email exchange in his next call with Flynn) or because he somehow had access to his Transition email later, Tom Bossert was able to share this very damning exchange with investigators before they obtained the counterparties to it using a warrant.

Between the time of the Kislyak call and the time when Bossert shared those emails with investigators, he would be involved in the alteration of the MemCon recording Trump’s first face-to-face meeting with Russia, in which Trump said he didn’t much care that Russia had interfered in the election.

Tom Bossert has seen firsthand, more than once, how Trump has refused to hold Russia accountable.

Which is very interesting background to this NYT op-ed Bossert wrote, trying to convince his former boss to put the national interest ahead of his own temper tantrum and respond with leadership and cooperation to the SolarWinds hack.

After describing what a dangerous time a Presidential transition is for such a compromise, Bossert lays out the significance of the SolarWinds hack, explaining that the US government has no idea which of its networks Russia has control over.

The magnitude of this ongoing attack is hard to overstate.

The Russians have had access to a considerable number of important and sensitive networks for six to nine months. The Russian S.V.R. will surely have used its access to further exploit and gain administrative control over the networks it considered priority targets. For those targets, the hackers will have long ago moved past their entry point, covered their tracks and gained what experts call “persistent access,” meaning the ability to infiltrate and control networks in a way that is hard to detect or remove.

While the Russians did not have the time to gain complete control over every network they hacked, they most certainly did gain it over hundreds of them. It will take years to know for certain which networks the Russians control and which ones they just occupy.

He then explains that with that access, the Russians could alter data (at Treasury, among other places) or impersonate people, potentially using official credentials to sow disinformation.

The actual and perceived control of so many important networks could easily be used to undermine public and consumer trust in data, written communications and services. In the networks that the Russians control, they have the power to destroy or alter data, and impersonate legitimate people. Domestic and geopolitical tensions could escalate quite easily if they use their access for malign influence and misinformation — both hallmarks of Russian behavior.

Bossert provides some steps the government must take to respond — including replacing entire networks — and then turns to advising his old boss. He starts with soft-pedaling, the way one has to when advising a President who is a narcissist, suggesting that Trump’s threats to veto an NDAA that broad majorities of both parties support because he’s mad at Twitter are instead a partisan dispute.

The National Defense Authorization Act, which each year provides the Defense Department and other agencies the authority to perform its work, is caught up in partisan wrangling. Among other important provisions, the act would authorize the Department of Homeland Security to perform network hunting in federal networks. If it wasn’t already, it is now a must-sign piece of legislation, and it will not be the last congressional action needed before this is resolved.

Then Bossert gets more direct: Trump has to rebuke the Russians in a way he refused to in December 2016 and refused to do again in May 2017 and refused again in July 2018 in Helsinki (though Bossert had been fired before Helsinki).

While all indicators point to the Russian government, the United States, and ideally its allies, must publicly and formally attribute responsibility for these hacks. If it is Russia, President Trump must make it clear to Vladimir Putin that these actions are unacceptable. The U.S. military and intelligence community must be placed on increased alert; all elements of national power must be placed on the table. [my emphasis]

Bossert then gets close to, without actually, describing how Trump could be blamed for this if he doesn’t punish Russia.

President Trump is on the verge of leaving behind a federal government, and perhaps a large number of major industries, compromised by the Russian government. He must use whatever leverage he can muster to protect the United States and severely punish the Russians.

And, finally, the guy who got sent out to report back on President Obama four years ago to prepare Flynn for a call that Bossert probably had no way of knowing would undermine sanctions designed to punish Russia for the last attack, tells his former boss, who from start to finish has refused to cooperate with Democrats, that he has to cooperate now.

At this moment, the two teams must find a way to cooperate.

President Trump must get past his grievances about the election and govern for the remainder of his term. This moment requires unity, purpose and discipline. An intrusion so brazen and of this size and scope cannot be tolerated by any sovereign nation.

We are sick, distracted, and now under cyberattack. Leadership is essential.

Tom Bossert is trying to convince his former boss to serve the good of the country when Bossert never managed to do that when he actually was Trump’s direct advisor.

He would do better to threaten to make it clear the degree to which Trump has been “colluding” with Russia all along.

Update: Relatedly, Trump’s White House tried to gag IC leaders from reporting on how bad this is to Congress.

Rubio’s counterpart on the committee, Vice Chair Mark Warner (D-Va.), said the government is “still assessing the extent of the penetration,” but lamented that “the current president of the United States has not said a word about this.”

Despite the series of briefings, there are signs that the White House was trying to muzzle top officials seeking to fill in lawmakers on what they know.

During a National Security Council meeting on Tuesday night, national security leaders were instructed not to reach out to Capitol Hill for briefings on the massive hack without explicit approval from the White House or ODNI, according to people familiar with the episode.


Missing the National Security Crises for the Trump Temper Tantrums

Even after Republicans and Vladimir Putin have conceded that Donald Trump will no longer be President in 35 days, key parts of the press corps seem unable to look beyond Trump’s temper tantrums to the state of the country.

NBC,  for example, has a 17-paragraph story about Pat Cipollone’s efforts to persuade Trump not to fire Chris Wray and maybe Chad Wolf and maybe Gina Haspel and who knows maybe some more national security figures Trump is pissy about because they haven’t catered to his personal demands. The story doesn’t once mention that these same national security officials — especially Wray and Wolf — are neck deep in a crisis attempting to assess and respond to the SolarWinds compromise of multiple US agencies.

While Trump’s frustrations with Attorney General Bill Barr boiled over in recent days, and Barr resigned on Monday, the president’s advisers hope he’s been persuaded against ousting Wray. Multiple current and former senior administration officials said firing Wray does not appear imminent, but they also point out that the president could make such a decision on a whim at any time. Indeed officials said they are prepared for Trump to go on a firing spree before leaving office next month.

“I wouldn’t take anything off the table in coming weeks,” the senior administration official said of personnel changes, as well as presidential pardons. The official said to expect “some more fairly significant terminations in the national security or intelligence community.”

That this story could even be reported with an unrelenting focus on Trump’s revenge fantasies and not, instead, an extended discussion of the way these revenge fantasies have distracted the entire Administration from urgent crises which Trump’s past revenge fantasies have invited and made worse is an alarming failure of basic framing.

Similarly, in the middle of a 19-paragraph AP story on the transition at DOJ from Bill Barr to Jeffrey Rosen, it summarizes the main point of the story: the biggest issue before DOJ as it prepares for pardonpalooza, continues to cope with running prisons and fraud investigations during a pandemic, sues some of the world’s biggest tech companies, and deals with Mexico’s withdrawal from virtually all drug enforcement cooperation is whether or not the Attorney General, some Attorney General, any Attorney General appoints a special counsel to investigate Hunter Biden.

As Barr exits, the biggest thing by far hanging over the Trump Justice Department is its investigation into Hunter Biden, which involves multiple U.S. attorney offices and FBI field offices.

The AP is so deep inside Trump’s manic delusions that it states, as fact, that appointing a special counsel would by itself make for a more complicated investigation, as if someone could just chase Rudy Giuliani conspiracies for four years without Biden’s Attorney General making a solid case the person should be fired.

Appointing a special counsel for the Hunter Biden probe would also signal a more prolonged and complicated investigation than the current inquiry, so far largely centered on his taxes.

DOJ has already spent something like 4 US Attorney years investigating Hunter Biden and has yet to charge him with a single crime; while it remains to be seen whether the tax charges are real, at some point an investigation will butt up against the reality that even the politicized Scott Brady one did: most of the allegations against Hunter Biden are the product of very frothy conspiracy theorizing and aggressive disinformation that straight reporters are not obliged to adopt.

It is useful — important even — to report on the Trump’s temper tantrums. But his tantrums, at this point, are most important for the way they’ve paralyzed and corrupted the entire government during a time it faces multiple urgent crises. Don’t let sources dodge how indulging the President’s childish whims means they, too, are failing to do their real job serving the country.

The country is burning. It is burning, in significant part, because the President has always prioritized his own personal vendettas over the good of the country.

If you need to report on how Trump has put his own revenge fantasies over all else during his Lame Duck, do so as a first step towards holding him accountable for the wreckage that has resulted, not to indulge those fantasies as if the rest of us should care about them anymore.


Joshua Schulte Undermines the WikiLeaks Claim to Publish “Whistleblowers”

In this post, I noted that The Intercept — including Micah Lee — had fairly systematically ignored the most recent superseding indictment against Julian Assange, and as such had ignored the overt acts in it tied to helping Edward Snowden flee. I think the outlet has real ethical responsibility to actually report the truth of that detail — which they should do in any case to address the legally suspect aspects of some of the claims made about Snowden.

I’d like to look at an earlier Micah Lee post, not because of anything it (necessarily) says about The Intercept, but as background for a larger post about WikiLeaks I hope to move towards. In an article subtitled, “The Trump Administration Is Using the Full Power of the U.S. Surveillance State Against Whistleblowers,” Micah laid out how (according to his read of what he claimed were the court filings) the government had found a bunch of “whistleblowers.” Before he gets there, though, he describes the subjects of his post to be “government whistleblowers” who, only after they see something wrong, do they reach out to journalists and share information.

GOVERNMENT WHISTLEBLOWERS ARE increasingly being charged under laws such as the Espionage Act, but they aren’t spies.

They’re ordinary Americans and, like most of us, they carry smartphones that automatically get backed up to the cloud. When they want to talk to someone, they send them a text or call them on the phone. They use Gmail and share memes and talk politics on Facebook. Sometimes they even log in to these accounts from their work computers.

Then, during the course of their work, they see something disturbing. Maybe it’s that the government often has no idea if the people it kills in drone strikes are civilians. Or that the NSA witnessed a cyberattack against local election officials in 2016 that U.S. intelligence believes was orchestrated by Russia, even though the president is always on TV saying the opposite. Or that the FBI uses hidden loopholes to bypass its own rules against infiltrating political and religious groups. Or that Donald Trump’s associates are implicated in sketchy financial transactions.

So they search government databases for more information and maybe print some of the documents they find. They search for related information using Google. Maybe they even send a text message to a friend about how insane this is while they consider possible next steps. Should they contact a journalist? They look up the tips pages of news organizations they like and start researching how to use Tor Browser. All of this happens before they’ve reached out to a journalist for the first time.

Having laid out certain assumptions not just that all these people are whistleblowers, but also about what whistleblowing entails (and made certain claims about motive that don’t necessarily match the claimed motive of some of the subjects of the story, though some of that has become public since Micah wrote this), Micah explains that Joshua Schulte is an exception with regards to how he was caught.

Of the four Espionage Act cases based on alleged leaks in the Trump era, the most unusual concerned Joshua Schulte, a former CIA software developer accused of leaking CIA documents and hacking tools known as the Vault 7 disclosures to WikiLeaks. Schulte’s case is different from the others because, after the FBI confiscated his desktop computer, phone, and other devices in a March 2017 raid, the government allegedly discovered over 10,000 images depicting child sexual abuse on his computer, as well as a file and chat server he ran that included logs of him discussing child sexual abuse images and screenshots of him using racist slurs. Prosecutors initially charged Schulte with several counts related to child pornography and later with sexual assault in a separate case, based on evidence from his phone. Only in June 2018, in a superseding indictment, did the government finally charge him under the Espionage Act for leaking the hacking tools. He has pleaded not guilty to all charges.

He doesn’t return to Schulte’s case for the rest of the piece.

About the rest of the subjects of the story, Micah describes how, whether the subject took some measure to protect himself (such as with Terry Albury and James Wolfe) or did not (such as Reality Winner), they all got caught. What they all have in common is that they were among a very limited circle of people who had access to the stuff that got leaked, and therefore could be ultimately identified with more investigation.

I think Micah’s comment was meant to suggest that Schulte wasn’t identified that same way, but was instead identified only after he was busted for child porn. I texted Micah at the time and let him know that’s not what the court records reflect (he had not, in fact, reviewed the affidavits in the court docket). By that point, a slew of the warrants in the case had been revealed, including the first ones, which showed that Schulte was identified as a suspect almost immediately, in part the same way the others were — because he was one of three people who had access to the files believed to have been leaked. (It would later become clear that at least a few more people had access to the server and that the files were copied on a different, more incriminating date than FBI originally suspected.)

Micah never corrected his post.

Of note, however, even that initial warrant raised real questions about any claim that Schulte was a whistleblower — a claim WikiLeaks made it its first Vault 7 post.

In a statement to WikiLeaks the source details policy questions that they say urgently need to be debated in public, including whether the CIA’s hacking capabilities exceed its mandated powers and the problem of public oversight of the agency. The source wishes to initiate a public debate about the security, creation, use, proliferation and democratic control of cyberweapons.

That first warrant revealed that Schulte,

  • Had already restored his access to the exact files in question without authorization once (FBI would later discover he did this at least two more times)
  • Was pissy about something that had nothing to do with the hacking CIA did with the tools that Schulte wrote, basically a juvenile work dispute with a colleague
  • Had laid a paper trail in the weeks before he left CIA, making a claim to be a whistleblower, but the claim was not backed by any prior record of concern (per the FBI agent who admittedly should not be trusted on face value)

That is, even that first affidavit suggested that Schulte had used the claim to be a whistleblower as cover.

Schulte declined to present much of a defense at his first trial, a decision that (given the hung jury) absolutely was the right decision. So we can’t claim to have fully assessed all his claims to be a whistleblower, claims he made in pro se filings and deceitful Tweets he intended to post from jail. He chose not to make that case personally and he didn’t need to make the case to avoid a guilty verdict.

That said, all the evidence presented at trial strongly backs the initial FBI assessment that he was just an angry shithole who thought he was god, aiming to get back at people at the CIA he thought had dissed him. Indeed, two pieces of evidence submitted seriously undermine his claim to be a whistleblower, because they show he acted in ways that would be inconsistent from someone who genuinely had the concerns Schulte claimed to have — both a concern about the role of contractors and about security.

First, at one point when he was pissy because the CIA had contracted with a consultant to finish off a project that had been taking too long under him, Schulte actually considered become a contractor. Yes, he was pissy that a contractor could take away his project. But considering a job as a contractor is inconsistent with his claims about the use of them. It makes the claims translated into the WikiLeaks statement yet another cover for Schulte’s own resentment.

Then, at trial, the government showed that Schulte himself was responsible for setting up a root password that he allegedly used to steal the files. That is, to the extent the files were totally insecure from someone like Schulte, they were insecure because Schulte set them up to be. So not only was he not complaining to anyone else about the insecurity of these files, he was the one making them insecure.

Again, maybe Schulte could make a persuasive case he leaked these files to expose wrong-doing. But thus far, every piece of evidence suggests not only that Schulte was not a whistleblower, that every time he wrote up a claim to be one he otherwise told identifiable lies, and that he’s mostly just a rage-driven dude who decided to burn the CIA to the ground for spite.

Now, if WikiLeaks is a publisher, as it claims, that doesn’t necessarily matter. Journalists get information from sources operating out of a variety of motives, and personal pique is a common one. Except it raises the stakes on the newsworthiness of the files published. And on that front, WikiLeaks (on Twitter especially) vastly oversold the newsworthiness of the CIA files it published. Yes, it was useful for security firms to have CIA’s files identified publicly. But there was never anything published showing that CIA was operating outside of its mandate, and much of what was published showed tools that would be narrowly targeted. Just as importantly, CIA wasn’t actually doing anything particularly exotic with its hacking files. Spies were spying, news at 11.

I’ve written before about how a close associate of Assange’s sternly asked me to downplay Schulte because he hurt the public case for Julian Assange. I think that’s partly the allegations of child porn, racism, and sexual assault against him. People associated with WikiLeaks also knew before it was public that there was evidence involving Schulte implicating Russia (though the record on what the import of various pieces of evidence about Schulte pertaining to Russia mean is very mixed; Sabrina Shroff argued fairly convincingly that some of what is there stems from work Schulte was doing for his cellmate). Still, that may be another reason WikiLeaks boosters don’t want anyone to talk seriously about Schulte, because in the wake of Julian Assange working with Russia to get harm Hillary, their next big source also had some tie, of uncertain nature, to Russia.

But the existing record on Schulte, at least, not only undermines WikiLeaks’ claim to facilitate whistleblowers. On the contrary, WikiLeaks gave a disgruntled spook an easy way to burn the place down. More importantly, somewhere along the way, Schulte decided to cloak his bitter revenge plot inside a false claim to be a whistleblower.

People can certainly still defend WikiLeaks as an outlet permitting disgruntled spooks to burn their agencies to the ground out of spite. Certainly, if you believe the CIA is inherently, uniquely evil, you might still champion this leak. But on the Vault 7 leak, WikiLeaks boosters should be clear that’s what they’re doing.

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Originally Posted @ https://www.emptywheel.net/cybersecurity/