Does DOJ Plan to Get Henry Kyle Frese’s Cooperation to Prosecute Journalists?

Henry Kyle Frese, a DIA analyst charged with leaking classified information about China to two NBC journalists in October, pled guilty today. The guidelines laid out in his plea put him well above the 10 year maximum sentence he faces, meaning he may be the rare defendant facing the full prison term allowable. More interesting, his plea includes the possibility of a downward departure for cooperation (though it explicitly says he may get that even if no other charges are brought).

That’s interesting because the bulk of the details laid out in his Statement of Facts describes what he leaked to the two journalists (remember: in investigating this case, DOJ obtained a Title III warrant to eavesdrop on his calls with the journalists). It includes details about Frese accessing information — almost certainly the information relating to China — that was unrelated to his job as a counterterrorism analyst.

In relation to one of the twelve times the defendant orally transmitted TOP SECRET NDI to Journalist 1, in or about mid-April to early May 2018, the defendant accessed an intelligence report unrelated to his job duties on multiple occasions, which contained NDI classified at the TOP SECRET//SCI level (“Intelligence Report 1”).

[snip]

On at least 30 separate occasions in 2018, the defendant conducted searches on classified government systems for information regarding the classified topics he discussed with Joumalists 1 and 2.

The only other person mentioned in the Statement of Facts was an employee of an overseas counterterrorism consulting group.

Between early 2018 and October 2019, the defendant communicated with an employee of an overseas CT consulting group (“Consultant 1”) via social media. On at least two occasions, the defendant transmitted classified NDI related to CT topics to Consultant 1, using a social media site’s direct messaging feature

Consultant 1 was not authorized to receive classified NDI, and at all times during his communications with Consultant 1, the defendant knew that he was not authorized to transmit classified NDI to Consultant 1.

This, then, appears to be the scenario that would also set a precedent before Julian Assange is brought to the US for trial: that journalists asking someone with clearance for information get treated like spies.

Joshua Schulte’s Hot and Cold Snowden Views

I’ve been tracking the government’s claims that the Vault 7 leaks “relate” to earlier WikiLeaks leaks — including Chelsea Manning’s and Anonymous‘ — Edward Snowden, and Shadow Brokers.

With respect to Snowden, specifically, in a warrant application submitted in 2017 (PDF 150) the government cited Schulte’s search for a specific Snowden tweet on August 4, 2016, just as he started searching for WikiLeaks information.

In a November filing laying out their theory of the crime, the government cited his searches on WikiLeaks and “related” topics in that same time period.

Around this time, Schulte also began regularly to search for information about WikiLeaks. In the approximately six years leading to August 2016, Schulte had conducted one Google search for WikiLeaks. Beginning on or about August 4, 2016 (approximately three months after he stole the Classified Information), Schulte conducted numerous Google searches for WikiLeaks and related terms and visited hundreds of pages that appear to have resulted from those searches. For example, in addition to searching for information about WikiLeaks and Julian Assange, its primary leader, Schulte also conducted searches using the search terms “narcissist snowden,” “wikileaks code,” “wikileaks 2017,” “shadow brokers,” and “shadow broker’s auction bitcoin.” “Snowden” was presumably a reference to Edward Snowden, the former NSA contractor who disclosed information about a purported NSA surveillance program, and “Shadow Brokers” was a reference to a group of hackers who disclosed online computer code that they purportedly obtained from the NSA, beginning in or about August 2016. Indeed, in contrast to the period before August 4, 2016, between that date and March 2017 (when the first of the Leaks occurred), Schulte conducted searches for Wikileaks and related information on at least 30 separate days.

Many of these searches, particularly the Snowden ones, could have been innocuous.

When Schulte’s lawyers tried to complain that Paul Rosenzweig’s inclusion of Manning, Anonymous, and Snowden in his expert testimony on WikiLeaks falsely assumed that Schulte knew of those earlier leaks, the government revealed that in contemporaneous chats, Schulte had commented on both Manning and Snowden.

Moreover, even setting aside the dubious assertion that a member of the U.S. intelligence community could have been completely unaware of WikiLeaks’ serial disclosures of classified and sensitive information and the resulting harm, the Government’s proof at trial will include evidence that the defendant himself was well aware of WikiLeaks’ actions and the harms it caused. For example, WikiLeaks began to disclose classified information Manning provided to the organization beginning in or about April 2010, including purported information about the United States’ activities in Afghanistan. In electronic chats stored on the defendant’s server, the defendant discussed these disclosures. For example, on August 10, 2010, the defendant wrote in a chat “you didn’t read the wikileaks documents did you?” and, after that “al qaeda still has a lot of control in Afghanistan.” In addition, on October 18, 2010, the defendant had another exchange in which he discussed Manning’s disclosures, including the fact that the information provided was classified, came from U.S. military holdings, and that (according to the defendant) it was easy for Manning to steal the classified information and provide it to WikiLeaks. Similarly, in a June 9, 2013 exchange, the defendant compared Manning to Edward Snowden, the contractor who leaked classified information from the National Security Agency, and stated, in substance and in part, that Snowden, unlike Manning, “didnt endanger in [sic] people.”

As I noted, that exchange the very day Snowden came forward might suggest Schulte had a much less critical view of Snowden’s leak than Manning’s.

But that’s not what he told his former CIA colleague, who testified this week under the pseudonym Jeremy Weber. To Weber, Schulte condemned Snowden’s behavior in the strongest terms, arguing Snowden was a traitor who should be executed.

A. I don’t believe so, no.

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.

Q. Right. Then he had those same opinions about Chelsea Manning, correct?

A. Possibly. I don’t remember conversations about Chelsea Manning.

Q. And when he was talking about Snowden, it was clear to you that he strongly believed in the mission of the CIA, correct?

A. Yes.

Q. And he strongly believed that you should do nothing against America, correct?

A. Yes.

Q. And he thought Snowden should be executed, correct?

A. I believe I recall specifically him saying that.

Remarkably, Schulte’s lawyer Sabrina Shroff didn’t seem to expect this answer, even though she made much of the prior interviews Weber had had with what she called prosecutors, but which instead probably reflects having gotten 16 302s for Weber, many of them probably interviews with just FBI agents conducting early interviews as part of the investigation.

Q. You met with each one of these prosecutors, correct?

A. I don’t know if I talked to all of them, but, yes.

Q. You’ve talked to them somewhere between 11 and 15 times?

A. I have no idea what the number was.

Q. March 22, 2017, March 27, April 5, May 8th, May 22, June 1st, August 31. This was all in 2017.

A. Okay.

Q. Do you have any idea how many hours you spent with them in 2017?

A. No, I don’t.

Q. 2018, you met with them on January 12, June 1st, June 11, August 6, November 12, December 12, Any idea how many hours you spent with them?

MR. LAROCHE: Objection.

A. No.

THE COURT: Overruled.

Q. Then you met with them in January. Correct?

A. Yes.

Q. January 14, January 21, and January 29. Correct?

A. Possibly, yes.

Still, if Shroff has 16 302s from Weber and she didn’t know how he would answer this question, whether he and Schulte had ever spoken about Snowden’s leaks, it suggests the FBI and prosecutors never thought to ask someone who had worked side by side with Schulte for 6 years, starting around the same time as the Manning leaks and continuing through the Snowden leaks. Which is pretty remarkable.

The government responded by getting Weber to read from Schulte’s prison notebook where he seemingly advocated for sending top secret documents to WikiLeaks.

Q. Can you please read what the defendant wrote here?

A. “This is a huge wake-up call to U.S. intelligence officers. The Constitution you fight to defend will be” —

MS. SHROFF: Denied.

A. — “denied to you if, God forbid, you are ever accused of a crime. If your government has no allegiance in you, why do you have any allegiance towards your government or associates provided info to the NYT.”

MR. LAROCHE: Can we go up to the next, to the top of this page, please.

Q. Again, is this the defendant’s handwriting?

A. Yes.

Q. Can you please read what the defendant wrote?

A. “Your service in” — defense, maybe, “in” — I don’t recognize that word — “security investigations and pristine criminal history can’t even get you bail. As Joshua Schulte has said, you are denied a presumption of innocence. Ironic, you do your country’s dirty work, but when you — when your country accuses you of a crime, you are arrested and presumed guilty. And” — I don’t — “and” something, “your service. Send all of your secrets here: WikiLeaks.”

The chats from 2013 are not yet in evidence, so the government simply relied on what they had already entered with Weber based off his familiarity with Schulte’s handwriting.

But Shroff will — and already has — argued that you can’t argue the views Schulte expressed after he had been in jail for months were the same ones that motivated his actions in 2016, when he allegedly stole all these files. Weber couldn’t place his conversations about Snowden in time, so his views could have also changed before he leaked the files. But the 2018 prison notebooks cannot be said to reflect Schulte’s views in 2016.

The government seems intent on using Snowden et al to prove a level of mens rea that’s more than they need to prove to get convictions on the Espionage Act charges — that Schulte intended to do harm rather than had reason to know, based off his understanding of classification and the import of those hacking tools, that it would do harm. The varying things Schulte has said about Snowden and others may or may not support that, at least for the Espionage charges tied to the 2016 leaks.

That said, if and when Schulte is sentenced for all this, the testimony that he once claimed to believe leakers like Snowden should be executed may not help him avoid a life sentence.

Calyx Institute has generously funded obtaining these Schulte trial transcripts. Please consider a tax deductible donation to support that effort.

The Glenn Greenwald versus the Julian Assange Charges, Compared

Yesterday, Brazil charged Glenn Greenwald as part of the criminal sim swapping group that also leaked The Intercept details of corruption in Sérgio Moro’s efforts to put Lula in prison.

In a criminal complaint made public on Tuesday, prosecutors in the capital, Brasília, accused Mr. Greenwald of being part of a “criminal organization” that hacked into the cellphones of several prosecutors and other public officials last year.

Here’s the indictment.

The indictment comes after a ruling, in December, that Glenn (whom Bolsonaro was already targeting in a financial investigation) could not be investigated.

Those reports led a Supreme Court justice, Gilmar Mendes, to issue an extraordinary order barring the federal police from investigating Mr. Greenwald’s role in the dissemination of the hacked messages.

Prosecutors on Tuesday said they abided by that order until they found audio messages which, they argued, implicated Mr. Greenwald in criminal activity.

Prosecutors have claimed that they were abiding by that order, which relied on a Brazilian law (which sounds like it’s akin to the Bartnicki decision in the US) that says journalists cannot be prosecuted for publishing stolen information. But they found recordings that — they claim — show Glenn was interacting with the hackers while they were engaged in their other crimes, and advised them to delete logs, which (the indictment argues) helped them evade prosecution.

Citing intercepted messages between Mr. Greenwald and the hackers, prosecutors say the journalist played a “clear role in facilitating the commission of a crime.”

For instance, prosecutors contend that Mr. Greenwald encouraged the hackers to delete archives that had already been shared with The Intercept Brasil, in order to cover their tracks.

Prosecutors also say that Mr. Greenwald was communicating with the hackers while they were actively monitoring private chats on Telegram, a messaging app. The complaint charged six other individuals, including four who were detained last year in connection with the cellphone hacking.

The indictment includes long excerpts of the discussion, which (if my combination of shitty Portuguese assisted by Google Translate is correct) they claim shows that, amid news that Moro had been hacked, the source of the Intercept’s files came to Glenn and admitted there were currently monitoring Telegraph channels in the period before the Intercept was going to publish and had a discussion about whether they had to keep the stuff leaked to the Intercept pertaining to corruption. Glenn was quite careful to note he wasn’t offering advice about what the hackers should do, but said they would keep their one copy in a safe place and so the hackers could do whatever they wanted with the stuff they had. Even in spite of Glenn’s clear statement that The Intercept had obtained the files long before the ongoing hacking, the Brazilian prosecutors claim this shows Glenn knew of ongoing hacking and then discussed deleting logs of the prior hacking, making him a co-conspirator.

Apparently, however, this same evidence had already been reviewed before the December ruling, meaning the government is reversing itself to be able to include Glenn in the charges. The government must first get the approval of the judge that issued the initial ruling to prosecute Glenn.

Let me start by saying that this is both an attack on the press and a fairly clear attempt at retaliation against a Jair Bolsonaro critic, part of a sustained attack on Glenn and his spouse, David Miranda. The press in the US has pretty loudly come out in support of Glenn, and no matter what you think of Glenn or his Russia denialism, Glenn deserves support on this issue.

The charges have led a lot of people to say that the charges are just like what is happening with Julian Assange. They are similar. But I think they are distinct, and it’s worth understanding the similarities and distinctions.

Before I do that, since I’ve been accused — because I report on what the prosecution of Joshua Schulte says — of being insufficiently critical of the existing charges against Assange, here’s a post where I talked about the danger of the first charge against Assange (conspiracy to hack information) and here’s one where I lay out how a number of the Assange charges are for publishing information. I don’t support the current charges against Assange, though I think some of Assange’s more recent actions pose closer calls.

Renewing old charges

In both cases, the government took evidence that had already been assessed — in Assange’s case, chat logs from 2010 that the Obama Administration had deemed were not distinguishable from stuff the NYT does, and in Glenn’s case, the recordings that police had already reviewed before the ruling that Glenn should not be investigated — and found reason to charge that hadn’t existed before. In Glenn’s case, that decision was made just weeks later, under the same Administration. In Assange’s case, that decision came by another Administration (one installed in part with WikiLeaks’ assistance), but also came after WikiLeaks engaged in several more leaks that had pissed off the US.

The US government has (Trump flunky efforts to pardon Assange notwithstanding) always hated Assange, but it’s unlikely he would have been charged without 1) the Vault 7 leak burned the CIA’s hacking ability to the ground and 2) an authoritarian Trump administration with a gripe against journalism generally. That said, it’s still not clear why, if DOJ wanted to go after Assange, they didn’t do it exclusively on actions (like extortion using CIA files) that were more distinguishable from journalism, unless the government plans to add such charges to show a pattern over time, one that culminated in the Vault 7 leaks.

Whereas with Glenn, this feels immediately personalized, an effort to keep looking at a leak that exposed Bolsonaro’s hypocrisy until charges could be invented.

The similar conspiracy charge

Where the two cases are most similar is the common charge: a conspiracy involving computer hacking. But even there, there are important differences.

Brazil is arguing (again, relying on my shitty Portuguese) that Glenn is part of the conspiracy his sources are being prosecuted for because in a conversation where he acknowledged that they were still engaged in criminal hacking, he talked about deleting logs. That is, they’re not arguing that he tried to take part in the hacking. They’re arguing that he helped the ongoing hacking by helping the hackers evade discovery.

This is something that the government has shown WikiLeaks to do, for example showing Assange discussing with Chelsea Manning about operational security. The government cites OpSec assistance in the directly comparable “Conspiracy to Commit Computer Intrusion” charged against Assange (count 18):

  1. It was part of the conspiracy that ASSANGE and Manning used the “Jabber” online chat service to collaborate on the acquisition and dissemination of the classified records, and to enter into the agreement to crack the password hash stored on United States Department of Defense computers connected to the Secret Internet Protocol Network.
  2. It was part of the conspiracy that ASSANGE and Manning took measures to conceal Manning as the source of the disclosure of classified records to WikiLeaks, including by removing usernames from the disclosed information and deleting chat logs between ASSANGE and Manning.

But those are described in the “manner and means” section of the conspiracy charge. The overt acts part, however, describes things more commonly described as hacking: Manning’s use of a Linux operating system to obtain Admin privileges, her sharing of a password hash, and Assange’s unsuccessful effort to crack it. That is, Assange is charged with taking an overt act that amounts to hacking, whereas Glenn is charged with advising a source to delete logs (notwithstanding the way Glenn, in very lawyerly fashion, made it clear that he wasn’t offering advice). The inclusion of OpSec in the manners and means is absolutely dangerous in the Assange indictment. But the government alleged something more to include him in a CFAA conspiracy, something not present in the charge against Glenn.

Assange is also charged with another conspiracy charge that reflects ongoing discussions to obtain more information. That’s distinguishable from Glenn’s charge in that Assange was talking about getting more information, whereas all Glenn is alleged to have done is have a discussion at a time he knew his source was committing other ongoing hacking unrelated to and long after obtaining the files he published. But the two conspiracies are similar insofar as the government in question holds a publisher/journalist accountable for continued communication with a source who is engaged in ongoing lawbreaking, but in Assange’s case that crime pertains to obtaining information for Assange, whereas with Glenn it involves an entirely different crime.

More — and in some way, more dangerous — charges against Assange

There’s no parallel between the charge against Glenn and the other charges against Assange, which are some of the most dangerous. As I’ve laid out, there are three theories of prosecution used against Assange:

  • The attempt to hack to obtain additional classified information (described above, along with a charge tied to the things they were trying to obtain by cracking that password)
  • A solicitation of specific files, some of which Manning sought out and provided
  • The publication of three sets of informants names

The last of these is absolutely a charge for publishing information; that’s specifically what (with its contorted thinking) the charge against Glenn tries not to do.

The solicitation request is something both Brazil and the US attempt to insinuate about the Intercept for its advocacy of SecureDrop (which is now used by a slew of outlets). It’s also something that could easily be used to criminalize normal journalism.

The Brazilian charge against Glenn at least attempts to avoid criminalizing any of these things.

Espionage

Of course, that’s a big difference right away. Glenn is not accused of publishing anything classified. Assange is.

And Assange is charged in such a way that gives him liability for releasing classified information under the Espionage Act.

And that’s an added danger of the Assange charges. Thus far, Assange has been charged for leaks that Chelsea Manning has never backed off having a whistleblower interest in leaking (the broad use of State cables she leaked would support that, but that’s less true of the Afghan and Iraqi war logs). As such, Assange is being charged for something that could implicate any journalist publishing classified information.

That said, that could change. That’s why some of the arguments the government is making in the Schulte case are so noteworthy. They are preparing to rely on precedents used for organized crime to argue that, in part because he leaked to WikiLeaks, Schulte intended to harm the US. To the extent that they substantiate that motive, it would put Schulte solidly in the position that the Espionage was designed for. But the government seems to be preparing to apply that argument to WikiLeaks more broadly.

Extradition and international legal process

Finally, though some folks appear to be forgetting this in demanding that the US get involved in Glenn’s case, Glenn was charged as a resident of Brazil for actions taken in Brazil. Assange was charged as an Australian citizen for actions taken in the UK affecting the US government, which has asked the Brits to extradite him for charges (Espionage) that fit under the kind of political crime that often will not merit extradition. Of course, Assange is fighting against Five Eyes governments that, post Vault 7 leak, are likely far less interested in such legal distinctions. Indeed, I suspect that’s one of the reasons the US charged Assange for leaking informant identities; some of those informants were British sources as much as American ones.

Still, the extradition gives Assange a preliminary opportunity to fight these charges, not just because it is a political crime and his health is at risk, but also based on claims (the validity of which I’ve been meaning to unpack) that he was spied on in the Embassy in ways that violate EU if not UK law.

Glenn, however, is facing charges in the increasingly authoritarian country he lives in with his spouse and children. So even though, as I understand it, the high court will have to approve his charges before he is actually prosecuted, Glenn still faces political retaliation within his resident country.

Update: Here’s a Mathew Ingram piece doing similar, though less granular, analysis.

The Government Prepares to Argue that Transmitting Information *To* WikiLeaks Makes the Vault 7 Leak Different

In a long motion in limine yesterday, the government suggested that if Joshua Schulte had just been given a “prestigious desk with a window,” he might not have leaked all of CIA’s hacking tools in retaliation and caused what the government calls “catastrophic” damage to national security.

Schulte grew angrier at what he perceived was his management’s indifference to his claim that Employee-1 had threatened him. Schulte also began to complain about what, according to him, amounted to favoritism toward Employee-1, claiming, for example, that while the investigation was ongoing, Schulte was moved to an “intern desk,” while Employee-1 had been moved to a “prestigious desk with a window.”

[snip]

The Leaks are the largest illegal disclosure of CIA information in the agency’s history and, as noted above, caused catastrophic damage to national security.

Along the way, the motion provides the most detailed description to date about how the government believes Schulte stole the Vault 7 files from CIA. It portrays him as an arrogant racist at the beginning of this process, and describes how he got increasingly belligerent with this colleagues at CIA leading up to his alleged theft of the CIA’s hacking files, leading his supervisors to recognize the threat he might pose, only to bollox up their efforts to restrict his access to CIA’s servers.

The motion, along with several other submitted yesterday, suggests that the government would like to argue that leaking to WikiLeaks heightens the damage that might be expected to the United States.

Along with laying out that it intends to argue that the CIA charges (stealing the files and leaking them to WikiLeaks) are intertwined with the MCC charges (conducting “information war” against the government from a jail cell in the Metropolitan Correction Center; I explained why the government wants to do so here), the government makes the case that cybersecurity expert Paul Rosenzweig should testify as a witness about WikiLeaks.

Rosenzweig will testify about (i) WikiLeaks’s history, technical and organizational structure, goals, and objectives; (ii) in general terms, prior leaks through WikiLeaks, in order to explain WikiLeaks’s typical practices with regard to receiving leaked classified information, its practices or lack thereof regarding the review and redaction of sensitive information contained in classified leaks, and certain well-publicized harms to the United States that have occurred as a result of disclosures by WikiLeaks; and (iii) certain public statements by WikiLeaks regarding the Classified Information at issue in this case.

Rosenzweig’s testimony would come in addition to that of classification experts (probably for both sides) and forensic experts (again, for both sides; Steve Bellovin is Schulte’s expert).

The expert witnesses were allowed to testify as to the background of the organization Wikileaks; how the U.S. Government uses certain markings and designations to identify information that requires special protection in the interests of national security; the meaning of certain computer commands and what they would do; how various computers, servers, and networks work; how data is stored and transferred by various computer programs and commands; and the examination of data that is stored on computers and other electronics.

The only motion in limine Schulte submitted yesterday objected to Rosenzweig’s testimony. Schulte argues that the government’s expert notice neither provides sufficient explanation about Rosenzweig’s intended testimony nor proves he’s an expert on WikiLeaks. More interesting is Schulte’s  argument that Rosenzweig’s testimony would be prejudicial. It insinuates that Rosenzweig’s testimony would serve to substitute for a lack of proof about how Schulte sent the CIA files to WikiLeaks (Schulte is alleged to have used Tor and Tails to transmit the files, which would leave no forensic trace).

In Mr. Schulte’s case, the government has no reliable evidence of how much information was taken from the CIA, how it was taken, or when it was provided to WikiLeaks. The government cannot overcome a lack of relevant evidence by introducing evidence from other cases about how much information was leaked or how information was leaked in unrelated contexts. The practices of WikiLeaks in other contexts and any testimony about alleged damage from other entirely unrelated leaks is completely irrelevant.

Schulte’s claimed lack of evidence regarding transfer notwithstanding, that’s not how the government says they want to use Rosenzweig’s testimony. They say they want to use his testimony to help prove that Schulte intended to injure the US.

The Government is entitled to argue that Schulte intended to harm the United States, by transmitting the stolen information to WikiLeaks, because he knew or had reason to know what WikiLeaks would do with the information. The fact that WikiLeaks’ prior conduct has harmed the United States and has been widely publicized is powerful evidence that Schulte intended or had reason to believe that “injury [to] the United States” was the likely result of his actions—particularly given that the Government will introduce evidence that demonstrates Schulte’s knowledge of earlier WikiLeaks disclosures, including his own statements.

It does so by invoking WikiLeaks’ past leaks and the damage those leaks have done.

Accordingly, proof that it was foreseeable to Schulte that disclosure of classified information to WikiLeaks could cause “injury [to] the United States” is a critical element in this case. Indeed, the Senate Select Committee on Intelligence has explicitly stated “that WikiLeaks and its senior leadership resemble a non-state hostile intelligence service.” S. Rep. 115-151 p. 10. In order to evaluate evidence related to this topic, the jury will need to understand what WikiLeaks is, how it operates, and the fact that WikiLeaks’ previous disclosures have caused injury to the United States. The Government is entitled to argue that Schulte intended to harm the United States, by transmitting the stolen information to WikiLeaks, because he knew or had reason to know what WikiLeaks would do with the information.

Notably, the government motion invokes the Senate’s recognition that WikiLeaks resembles “a non-state hostile intelligence service.” That may well backfire in spectacular fashion. That statement didn’t come until over a year after Schulte is alleged to have stolen the files. And the statement was a follow-up to Mike Pompeo’s similar claim, which was a direct response to Schulte’s leak. If I were Schulte, I’d be preparing a subpoena to call Pompeo to testify about why, after the date when Schulte allegedly stole the CIA files, on July 24, 2016, he was still hailing the purported value of WikiLeaks’ releases.

The thing is, showing that the specific nature of the intended recipient of a leak is an element of the offense has never been required in Espionage leak cases before. Indeed, the government’s proposed jury instructions are based off the instruction in the Jeffrey Sterling case. While the government flirted with naming James Risen an unindicted co-conspirator in that case, they did not make any case that leaking to Risen posed unique harm.

Moreover, even before getting into Schulte’s statements about WikiLeaks (most of which have not yet been made public, as far as I’m aware), by arguing the CIA and MCC charges together, the government will have significant evidence not just about Schulte’s understanding of WikiLeaks, but his belief and that they would lie to harm the US. The government also has evidence that Schulte knew that WikiLeaks’ pretense to minimizing harm with the Vault 7 files was false, and that instead WikiLeaks did selective harm in its releases, though it doesn’t want to introduce that evidence at trial.

In other words, this seems unnecessary, superfluous to what the government has done in past Espionage cases, and a dangerous precedent (particularly given the way the government suggested that leaking to The Intercept was especially suspect in the Terry Albury and Reality Winner cases).

That’s effectively what Schulte argues: that the government is trying to argue that leaking to WikiLeaks is particularly harmful, and that if such testimony goes in, it would be forced to call its own witnesses to testify about how past WikiLeaks releases have shown government malfeasance.

This testimony could also suggest that the mere fact that information was released by WikiLeaks necessarily means that it was intended to—and did—cause harm to the United States. These are not valid evidentiary objectives. Instead, this type of testimony would create confusion and force a trial within a trial on the morality of WikiLeaks and the extent of damage caused by prior leaks. If the government is allowed to introduce this evidence, the defense will necessarily have to respond with testimony about how WikiLeaks is a non-profit news organization, that it has previously released information from government whistle-blowers that was vital to the public understanding of government malfeasance, and that any assertion of damages in the press is not reliable evidence.

The government, in a show of reasonableness, anticipates Schulte’s argument about the prejudice this will cause by stating that it will limit its discussion of prior WikiLeaks releases to a select few.

The Government recognizes the need to avoid undue prejudice, and will therefore limit Mr. Rosenzweig’s testimony to prior WikiLeaks leaks that have a direct relationship with particular aspects of the conduct relevant to this case, for example by linking specific harms caused by WikiLeaks in the past to Schulte’s own statements of his intent to cause similar harms to the United States or conduct. Those leaks include (i) the 2010 disclosure of documents provided to WikiLeaks illegally by Chelsea Manning; (ii) the 2010 disclosure of U.S. diplomatic cables; (iii) the 2012 disclosure of files stolen from the intelligence firm Stratfor; and (iv) the 2016 disclosure of emails stolen from a server operated by the Democratic National Committee.

The selected cases are notable, as all of them (with Manning’s leaks seemingly listed twice) involve cases the government either certainly (with the EDVA grand jury seeking Manning and Jeremy Hammond’s testimony) or likely (with ongoing investigations into Roger Stone) currently has ongoing investigations into.

As a reminder: absent an unforeseen delay, this trial will start January 13, 2020 and presumably finish in the weeks leading up to the beginning of Julian Assange’s formal extradition process on February 25. The government has maintained it can add charges up until that point, and US prosecutors told British courts it won’t provide the evidence against Assange until two months before the hearing (so around Christmas).

Schulte’s trial, then, appears to be the opening act for that extradition, an opening act that will undermine the claims WikiLeaks supporters have been making about the journalistic integrity of the organization in an attempt to block Assange’s extradition. Rosenzweig’s testimony seems designed, in part, to heighten that effect.

Which may be why this instruction appears among the government’s proposed instructions.

Some of the people who may have been involved in the events leading to this trial are not on trial. This does not matter. There is no requirement that everyone involved in a crime be charged and prosecuted, or tried together, in the same proceeding.

You may not draw any inference, favorable or unfavorable, towards the Government or the defendant from the fact that certain persons, other than the defendant, were not named as defendants in the Indictment. Do not speculate as to the reasons why other persons were not named. Those matters are wholly outside your concern and have no bearing on your function as jurors.

Whether a person should be named as a co-conspirator, or indicted as a defendant in this case or another separate case, is a matter within the sole discretion of the United States Attorney and the Grand Jury.

As noted, a number of different WikiLeaks supporters have admitted to me that they’re grateful Assange has not (yet) been charged in conjunction with the Vault 7 case, because even before you get to his attempt to extort a pardon with the files, there’s little journalistic justification for what it did, and even more reason to criticize WikiLeaks’ actions as the case against Schulte proceeded.

Yet the obscure proceedings before the EDVA grand jury suggests the government may be pursuing a conspiracy case that starts in 2010 and continues through the Vault 7 releases, with the same variety of Espionage and CFAA charges continuing through that period.

By arguing the CIA and MCC charges in tandem, the government can pretty compellingly make the case that WikiLeaks’ activities went well beyond journalism in this case. But it seems to want to use Rosenzweig’s testimony to make the case more broadly.

DOJ Holds Big Presser to Make It Clear It Will Use Title III Wiretaps to Prosecute Leaks

John Demers, the Assistant Attorney General who did not think Donald Trump’s extortion by using congressionally appropriated security funding to pressure Ukraine into providing him with campaign propaganda merited an investigation, just had a big press conference to announce the arrest of Henry Kyle Frese, a DIA counterterrorism analyst accused of leaking information about a specific country’s weapons systems to two journalists who work at related media outlets (NBC is one outlet that would fit the presumed arrangement, but there are surely others; Update–it appears this is one of the stories). It sounds like a journalist Freese lived with asked him first to help a more senior journalist from the related outlet, then published a story herself, based off the allegedly leaked materials.

The leak doesn’t sound all that serious, in the grand scheme of things.

What was serious is the warning this press conference was meant to send to journalists. Demers bragged about the sentence imposed on Reality Winner, and boasted of the 6 people the Trump DOJ has prosecuted for leaks. He raised the Jeff Sessions’ speech announcing DOJ would target leaks.

When asked if DOJ was considering prosecuting the two journalists, the speakers on the press conference deferred, as they did about any ongoing investigation. That is, they may well be intending to do so.

Perhaps one of the bigger pieces of news about this arrest is not that DOJ arrested an analyst trying to do a favor for his girlfriend. Rather, it’s that DOJ decided to use a Title III wiretap to intercept Freese’s calls to the journalists, something that would be more proportional to the mob, not journalists.

But that’s where the national security priorities of Trump’s DOJ are. Not investigating him, or at least his personal lawyer, for schemes that obviously make our country less safe. But instead to use wiretaps to go after journalism.

Government Confirms that WikiLeaks Didn’t Release All the Vault 7 Files

Accused Vault 7 hacker Joshua Schulte’s lawyers seem really intent on preventing the government from using evidence obtained while he was using a contraband phone at MCC in his trial for the main leak of CIA’s hacking tools to WikiLeaks.

They’ve already challenged warrants obtained using evidence found in notebooks marked as attorney-client privileged information but then released after a wall team review; in my NAL opinion, that challenge is the most likely of any of his motions to succeed. Last week, they also moved to sever the two MCC charges from the main Espionage ones (they’ve already severed the child porn and copyright violation charges from the Espionage ones), explaining that two of his attorneys, including his lead attorney Sabrina Shroff, would testify to something about discussions from May and June 2018 that would address his state of mind when he leaked and tried to leak CIA materials later in 2018.

To defend against the government’s allegations, Mr. Schulte would call two of his attorneys—Matthew B. Larsen and Sabrina P. Shroff—to present favorable testimony bearing on his state of mind.

This pertains, in some way, to the government’s claim that Schulte wrote classified information in his prison notebooks as part of a plan to leak it.

The government has indicated that its evidence on the MCC Counts will include portions of notebooks seized from Mr. Schulte’s cell, in which he allegedly documented his plans to transmit classified information.

[snip]

Defense counsel expects that at trial, the government will seek to introduce excerpts of Mr. Schulte’s writings in his notebooks as evidence of his specific intent to violate the law.

If they succeed at severing count four from the main Espionage charges, it might make it harder to link what Schulte was doing in jail with what he was allegedly doing over two years earlier. As I noted when Schulte’s team first challenged the MCC warrants, it’s clear why they’re doing this: the MCC evidence indicates he had an ongoing relationship with WikiLeaks.

The FBI investigation proceeded from those notebooks to the WordPress site showing him claiming something identical to disinformation he was packaging up to share with WikiLeaks. They also got from those notebooks to ProtonMail accounts where Schulte offered to share what may or may not be classified information with a journalist. The reason why the defense is pushing to suppress this — one of the only challenges they’re making in his prosecution thus far — is because the stuff Schulte did in prison is utterly damning and seems to confirm both his familiarity with WikiLeaks and his belief that he needed to create disinformation to claim to be innocent.

The government, in a fairly scathing response to Schulte’s motion to sever the trials, confirms that it believes the MCC charges include evidence that help support the main charges on leaking the files to WikiLeaks (what the government calls CIA counts). The government had a “reverse proffer” on December 18, 2018 and laid out all the evidence against Schulte, including pointing out that (as I described) the material seized from MCC helped prove the CIA charges.

About six weeks later, on December 18, 2018, the Government met with defense counsel (the “Reverse Attorney Proffer”). At this meeting, the Government described for defense counsel the theory of the Government’s case with respect to the charges in the Second Superseding Indictment, and answered defense counsel’s questions about the charged counts, including the new counts. The Government also explicitly noted during the Reverse Attorney Proffer that it believed that the material recovered pursuant to the MCC Warrants was relevant evidence with respect to not only the MCC Counts, but also the CIA Counts.

Having laid out the interconnectedness of these charges, the government then explains at some length why having different attorneys defend Schulte in the CIA and MCC counts would cause delays in both, because replacement counsel would need to familiarize themselves with both sets of charges. Now, as I noted, there’s unclassified information that Schulte clearly shared with WikiLeaks both before and while he was in jail. But right there in the middle of this passage is the revelation that Schulte identified classified information in his prison notebooks that he shared with WikiLeaks but that WikiLeaks has not yet published.

Regardless, Schulte’s proposal—further severed trials and new counsel for the MCC Counts—would neither prevent trial delay nor resolve the ethical issue. Rather, it is likely to exacerbate both. First, appointing new counsel on the MCC Counts is likely to cause, rather than prevent, further trial delay and would complicate Schulte’s defense across all counts. Because of the interconnectedness of the MCC Counts and the CIA Counts, as well as the child pornography and copyright counts, new counsel would need to become familiar with the evidence as to all counts in order to appropriately advise and defend Schulte. Indeed, new counsel might determine that the best course with respect to the MCC Counts would be to seek to negotiate a plea that resolves those charges along with some combination of the CIA Counts, child pornography counts, and/or copyright count. Those negotiations could not occur until new counsel was fully familiar with all aspects of the case. This would take a substantial amount of time given that new counsel would have to be cleared and that a substantial portion of the evidence is classified and, thus, must be reviewed in sensitive compartmented information facilities. Moreover, even after new counsel became familiar with the case, it is possible that new counsel might have different views than current counsel concerning a variety of trial strategy decisions, including, among others, the desirability of Schulte testifying, which could impact one or all of the severed trials and would need to be coordinated among all of Schulte’s attorneys. As a result, trial on the CIA Counts could not proceed until new counsel for the MCC Counts was familiar with the entire case. In short, the appointment of new counsel would likely further complicate this case and lead to substantial delays.

Second, severing the CIA Counts from the MCC Counts also would not resolve the purported ethical issue. Even if the trials were severed, evidence of Schulte’s prison conduct, including the Schulte Cell Documents, would still be admissible at the trial addressing the CIA Counts as both direct evidence and Rule 404(b) evidence of those crimes. For example, in the Schulte Cell Documents, Schulte specifically identifies certain classified information that was provided to WikiLeaks but which WikiLeaks has not yet published, which is direct evidence that Schulte transmitted classified information to WikiLeaks as charged in the WikiLeaks Counts. Similarly, Schulte’s prison conduct is also admissible as to the WikiLeaks Counts for a variety of Rule 404(b) purposes including to show, among other things, consciousness of guilt, motive, opportunity, intent, absence of mistake, and modus operandi.5

5 Similarly, during a trial addressing the MCC Counts, the Government would introduce evidence relating to the CIA Counts as direct evidence to complete the story of the crime and, in the alternative, as Rule 404(b) evidence. For example, evidence related to the CIA Counts would establish Schulte’s motive for committing and ability to commit the MCC Counts, as well as his knowledge that the information he unlawfully transmitted was classified national defense information. As a result, even a trial on the MCC Counts would entail introduction of much of the evidence from the Espionage Trial. [my emphasis]

The government doesn’t say whether it knows that WikiLeaks received this information because it found it after seizing Julian Assange’s computers or some other way.

The detail that Schulte referred to information that the government apparently knows WikiLeaks received — but that WikiLeaks has never published — is interesting for an entirely different reason.

On top of asking to sever two more charges, Schulte is also asking for a delay in trial, from November to January. The government says it’s cool with that delay, so long as there won’t be any further delay.

The Government understands that the defendant is seeking to adjourn the Espionage Trial until January 13, 2020. Although the Government is prepared to start trial as scheduled on November 4, 2019, the Government does not oppose the defendant’s adjournment request with the understanding that the defendant will not seek another adjournment of the Espionage Trial absent exceptional and unforeseen circumstances[.]

This story on Jeremy Hammond’s subpoena in EDVA clarifies something about which there has been a great deal of confusion. The US can still add charges against Julian Assange at least until his extradition hearing, which starts on February 25.

Nick Vamos, former head of extradition at the Crown Prosecution Service in England, said the treaty between the two countries still allows for the U.S. to add charges to the Assange case, but that will become more difficult and problematic for the American prosecutors as they get closer to the scheduled extradition hearing in February.

The discussion today has focused on the Stratfor hacks that Hammond is serving time for. Because the five year statute of limitations for CFAA would normally have tolled by now, they are likely pursuing some kind of conspiracy charges, for a conspiracy that continued past 2012.

But given the seeming cooperation while Schulte was in jail and the knowledge that WikiLeaks sat on — or used — one of the other files provided by Schulte, if the government is planning on more conspiracy charges, chances are good that Vault 7 will eventually be included in them.

Joshua Schulte Keeps Digging: His Defensible Legal Defense Continues to Make a Public Case He’s Guilty

To defend him against charges of leaking the CIA’s hacking tools to WikiLeaks, Sabrina Shroff has made it clear that Joshua Schulte is the author of the CIA’s lies about its own hacking.

In a motion to suppress all the earliest warrants against Schulte submitted yesterday, Shroff makes an unintentionally ironic argument. In general, Shroff (unpersuasively) argues some things the government admitted in a Brady letter sent last September are evidence of recklessness on the part of the affiant on those earliest warrants, FBI Agent Jeff Donaldson. She includes most of the items corrected in the Brady letter, including an assertion Donaldson made, on March 13, 2017, that Schulte’s name did not appear among those published by WikiLeaks: “The username used by the defendant was published by WikiLeaks,” the prosecutors corrected the record in September 2018. To support a claim of recklessness, Schroff asserted in the motion that someone would just have to search on that username on the WikiLeaks site to disprove the initial claim.

Finally, the Brady letter explained that a key aspect of the affidavit’s narrative—that Mr. Schulte was the likely culprit because WikiLeaks suspiciously did not publicly disclose his identity—was false. Mr. Schulte’s identity (specifically, his computer username “SchulJo”) was mentioned numerous times by WikiLeaks, as a simple word-search of the WikiLeaks publication would have shown. See Shroff Decl. Exh. F at 7

If you do that search on his username — SchulJo — it only readily shows up in one file, the Marble Framework source code.

That file was not released until March 31, 2017. So the claim that Schulte’s name did not appear in the WikiLeaks releases was correct when Donaldson made it on March 13. That claim — like most of the ones in the Brady letter — reflect the incomplete knowledge of an ongoing investigation, not recklessness or incompetence (Schulte has written elsewhere that he believed the FBI acted rashly to prevent him from traveling to Mexico, which given other details of this case — including that he hadn’t returned his CIA diplomatic passport and snuck it out of his apartment when the FBI searched his place, they were right to do).

By sending her reader to discover that Schulte’s name appears as the author of the Marble Framework, she makes his “signature” that of obfuscation — hiding who actually did a hack.

Marble is used to hamper forensic investigators and anti-virus companies from attributing viruses, trojans and hacking attacks to the CIA.

Marble does this by hiding (“obfuscating”) text fragments used in CIA malware from visual inspection.

[snip]

The source code shows that Marble has test examples not just in English but also in Chinese, Russian, Korean, Arabic and Farsi. This would permit a forensic attribution double game, for example by pretending that the spoken language of the malware creator was not American English, but Chinese, but then showing attempts to conceal the use of Chinese, drawing forensic investigators even more strongly to the wrong conclusion, — but there are other possibilities, such as hiding fake error messages.

Marble was one of the files WikiLeaks — and DNC hack denialists — would point to to suggest that CIA had done hacks (including the DNC one) and then blamed them on Russia. In other words, in her attempt (again, it is unpersuasive) to claim that FBI’s initial suspicions did not reach probable cause, she identifies Schulte publicly not just with obfuscation about a breach’s true culprits, but with the way in which the Vault 7 leak — ostensibly done out of a whistleblower’s concern for CIA’s proliferation of weapons — instead has served as one prong of the propaganda covering Russia’s role in the election year hack.

That’s just an ironic effect of Shroff’s argument, not one of the details in yesterday’s releases that — while they may legally serve to undermine parts of the case against her client — nevertheless add to the public evidence that he’s not only very likely indeed the Vault 7 culprit, but not a terribly sympathetic one at that.

Back when FBI first got a warrant on Schulte on March 13, 2017, they had — based on whatever advanced notice they got from Julian Assange’s efforts to use the files to extort a pardon from the US government and the week of time since WikiLeaks had released the first and to that date only set of files on March 7 — developed a theory that he was the culprit. The government still maintains these core details of that theory to be true (this Bill of Particulars Schulte’s team released yesterday gives a summary of the government’s theory of the case as of April 29):

  • The files shared with WikiLeaks likely came from the server backing up the CIA’s hacking tools, given that the files included multiple versions, by date, of the files WikiLeaks released
  • Not that many people had access to that server
  • Schulte did have access
  • Not only had Schulte left the CIA in a huff six months before the WikiLeaks release — the only  person known to have had access to the backup server at the time who had since left — but he had been caught during the period the files were likely stolen restoring his own administrator privileges to part of the server after they had been removed

But, after it conducted further investigation and WikiLeaks published more stolen files, the government came to understand that several other things that incriminated Schulte were not true.

[T]he government appears to have abandoned the central themes of the March 13 affidavit: namely, that the CIA information was likely stolen on March 7–8, 2016, that Mr. Schulte was essentially “one of only three people” across the entire CIA who could have taken it, and that WikiLeaks’s supposed effort to conceal his identity was telltale evidence of his culpability

There’s no indication, however, that Donaldson was wrong to believe what he did when he first obtained the affidavit; Shroff claims recklessness, but never deals with the fact that the FBI obtained new evidence. Moreover, for two of the allegations that the government later corrected — the date the files were stolen and the number of people who had access to the server, Donaldson admitted those were preliminary conclusions in his initial affidavit (which Shroff doesn’t acknowledge):

It is of course possible that the Classified Information was copied later than March 8, 2016, even though the creation/modification dates associated with it appear to end on March 7, 2016.

[snip]

Because the most recent timestamp on the Classified Information reflects a date of March 7, 2016, preliminary analysis indicates that the Classified Information was likely copied between the end of the day on March 7 and the end of the day on March 8.

[snip]

It is, of course, possible that an employee who was not a designated Systems Administrator could find a way to gain access to the Back-Up Server. For example, such an employee could steal and use–without legitimate authorization–the username and password of a designated Systems Administrator. Or an employee lacking Systems Administrator access could, at least theoretically, gain access to the Back-Up Server by finding a “back- door” into the Back-Up Server.

Between the two corrections, the revised information increases the number of possible suspects from two to five, out of 200 people who would have regular access to the files. A footnote to a later affidavit (PDF 138) describes that on April 5, 2017, FBI received information that suggested the number might be higher or lower. (I suspect Schulte argued in a classified filing submitted yesterday that even more people could have accessed it, not least because he has been arguing that in his various writings posted to dockets and other things,)

But, even though the Brady letter corrects the dates on which Schulte reinstated his administrator privileges for the Back-Up server slightly (he restored his own access on April 11, not April 14, which is when his managers discovered he had done so), Shroff only addresses his loss of privileges as innocent, without addressing that he got that access back on his own improperly.

More importantly, the motion doesn’t address, at all, that Schulte kicked everyone else off one of his programs, the Brutal Kangaroo tool used to hack air gapped networks using thumb drives. Nor does it address allegations against Schulte made in August 2016 as part of his clearance review, including that his demeanor changed for the worse around February 2016, he might be “subject to outside coercion,” and he tended not to abide by “guidelines concerning when and what kinds of media or data (such as external drives) could be connected or uploaded to CIA computer systems.” There are other details in the affidavit — such as Schulte’s attempt to learn what his former colleagues knew of the investigation — that support probable cause too (these may be among the things Shroff addresses in a classified filing).

That is, the probable cause that Schulte was the culprit was pretty strong even with the errors in the original affidavit, and none of the errors suggests malice or incompetence or even the recklessness Shroff alleges.

Shroff is right that the March 13 affidavit doesn’t offer as much probable cause to tie Schulte’s home to the crime; but that’s the magistrate’s fault and fairly standard for computer crimes, not the FBI’s. Shroff obscures the effect of FBI obtaining a second warrant to actually search the 150 storage media and computer devices they found in his home (a list of what they seized starts on PDF 116), as well as a second warrant to obtain child porn.

It is also true, as the defense argues, that the evidence to search for child porn was thin. But given that the government had a warrant to search the computer in question, and given precedents about child porn, that may not matter (though I think it is more likely to succeed than the rest of this). In any case, by the time of the main searches on child porn, three different magistrates had signed off on these searches.

This is a totally understandable attempt to get some of this evidence suppressed. But along the way the affidavits released yesterday provide a slew of damaging new details such as:

  • Schulte conducted a ton of searches on Google in April 2016 about detecting USB insertion, copying big files, deleting files, preventing other admins from seeing what someone was doing on a LAN
  • Schulte made a snapshot of (part of?) the LAN on April 20, 2016
  • In early May, Schulte researched how to use Tor and Tails, which the government alleges he used to send the files
  • On August 4, 2016 — the day after Snowden sent this tweet — Schulte did a Google search for WikiLeaks for the first time ever (note, I believe the Snowden tweet may have been preparation for the misleading IG report on him released the following month)

  • Between then and March 7, Schulte searched on WikiLeaks over 20 more times, reading hundreds of articles on it; but he didn’t visit WikiLeaks for the first time until March 7, 2017, the first day the files posted; he also searched for that Snowden tweet

In short, just Schulte’s Google searches alone provide very strong evidence that he’s the Vault 7 leaker. Which explains why his attorneys are making what will probably be an unsuccessful attempt to claim the Google searches were overly broad and lacked probable cause (something Schulte wrote elsewhere seems to reflect that he has been told this will be treated under a Good Faith exception).

Schulte has been trying to disclose all these materials for over a year. But they really don’t help his case.

On Joshua Schulte and Julian Assange’s 10 Year Old Charges

The WaPo has confirmed what Natasha Bertrand earlier reported: the extradition package for Julian Assange will only include the 10 year old charges related to the publication of Chelsea Manning’s leaks, not any of WikiLeaks more controversially handled charges. I’ve been meaning to write a post on how this is the stupidest available approach, which will satisfy neither those who regard him as a villain, will expose other journalists to similarly dangerous charges, and possibly even fuck up the security establishment’s entire effort to exact some revenge against Assange. I hope to return to that when I get some deadlines and travel done, but suffice it to say this is a big hot mess.

To be clear, I actually think it’s not eleven-dimensional chess on the part of Bill Barr to save Trump some embarrassment once Roger Stone’s trial reveals the extent to which Trump’s campaign tried to “collude” with WikiLeaks (though it will not only have that effect, but make it harder for DNC to sustain its lawsuit against the GOP and WikiLeaks for their actions in the 2016 election). Rather, I think this is an attempt to prosecute Assange with the least cost on the security establishment, being run by people who are utterly tone deaf to the costs it will incur elsewhere.

But I do want to say several things about why and how DOJ is not charging Assange in the Vault 7 leak.

Bertrand noted that I thought that the EDVA charges would be related to Vault 7.

Still, just several months ago, numerous experts felt confident that prosecutors would also hit Assange with charges over Vault 7. Prominent national security journalist Marcy Wheeler predicted in Februarythat DOJ would “very clearly go after Assange” for the Vault 7 disclosure, and that a sealed indictment against him in the Eastern District of Virginia was likely related to that leak — the CIA is, after all, headquartered in Virginia, as ABC noted. Assange himselfreportedly expressed concern that prosecutors would charge him with crimes related to Vault 7.

She didn’t provide even the full context of my tweet, much less my post, arguing that Assange’s efforts to extort a pardon using the Vault 7 files would be something obviously unconnected to journalism. The superseding indictment does mention Assange’s use of “insurance files” to ensure his ability to publish documents in his possession, but no charges were attached to that, which later uses of the tactic and the Vault 7 pardon effort would have supported.

Which is to say the government could have charged Assange for something specifically excluded from Bartnicki’s protection of the publication of stolen materials, but did not. Again, the government has chosen to go about this in the stupidest way possible.

That said, I’m not surprised they’re not going after Assange for the Vault 7 leak itself.

As it is, the CIA has been inexcusably uncooperative with Joshua Schulte’s discovery efforts. At times. some pretty aggressive prosecutors have seemed almost apologetic about it. Schulte has staked a lot on trying to expose details of his initial warrants, and while his later behavior seems to suggest there was something to their targeting of him (or, at the very least, his post-indictment behavior has been self-destructive), at the very least the CIA may have participated in some epically bad parallel construction. They may be trying to hide that as much as the actual details of CIA’s hacking program.

Meanwhile, the government and Schulte have been discussing severing his charges from last year — which include one charge of contempt and a charge of attempted leak of classified information — from everything else.

As the Court is aware, trial in this matter is currently set for April 8, 2019. (See Minute Entry for August 8, 2018 Conference). To afford the parties sufficient time to prepare the necessary pretrial motions, including suppression motions and motions pursuant to the Classified Information Procedures Act (“CIPA”), the parties respectfully request that the Court adjourn the trial until November 4, 2019. The parties are also discussing a potential agreement concerning severance, as well as the order of the potentially severed trials. The parties will update the Court on severance and a pretrial motion schedule at or before the conference scheduled for April 10, 2019.

That might be something they tried to base a plea off of: they’d have video evidence to back their case, so it might avoid the CIPA process CIA is unwilling to engage in.

Back in May, Schulte’s team submitted a motion to vacate his SAMs (Special Administrative Measures limit a prisoner’s communication with others). It was based off the case the government made prior to his superseding indictment and left out all the allegations the government made about the 13 email and social media accounts Schulte was allegedly running from his jail cell, and as such deliberately understated why the government wanted the SAMs. The government asked for and got an extension to respond until Monday — notably, after all decisions about Assange would have had to have been made. Any response (unless it’s sealed) will have to provide more details about what happened last fall, so if they’re trying to get a plea deal, it might come this week in lieu of that SAMs response.

But the question would be what that plea agreement would look like.

Finally, the government is going to have to provide some explanation for why Chelsea Manning remains in jail for contempt. Unless they can claim they’re going after other people related to WikiLeaks, they should not be able to keep her jailed.

The Three Theories of Prosecution for Julian Assange

In this post, I laid out what the 17 new charges against Julian Assange are. In this, I’ll look more closely at three theories of criminalization here:

  • Theory One: Charging Assange for causing Chelsea Manning to leak classified information by soliciting it generally or specifically (and/or discussing its value before she obtained it)
  • Theory Two: Charging Assange for offering to help crack a password and attempting to obtain the documents that would have been available using it
  • Theory Three: Charging Assange for leaking the identities of US government informants in three different databases

Theory One: Obtaining and disclosing documents that were solicited (Counts 2-4 and 6-14)

Effectively, for three sets of documents, they’ve charged Assange for causing Chelsea Manning to obtain (Charges 2 through 4), Assange obtaining himself (Charges 6 through 8), causing Manning to disclose documents she did not have authorized possession of (Charges 9 through 11), and  causing Manning to disclose legally obtained documents (Charges 12 through 13) for three sets of documents: The Gitmo Detainee Assessment Briefs, the State Department Cables, and the Iraq Rules of Engagement.

Assange is not being charged for publishing anything under this theory (that’s not true under Theory Three). He’s being charged with causing Manning to obtain and disclose them to him.

To accuse Assange of causing Manning to do these things, they show how a Most Wanted Leaks list posted on WikiLeaks until September 2010 resembles what Manning looked for on DOD’s networks and what she sent to Assange.

In addition, they show that Manning and Assange discussed some of these leaks before she obtained them.

For example, on March 7, 2010, Manning asked ASSANGE how valuable the Guantanamo Bay detainee assessment briefs would be. After confirming that ASSANGE thought they had value, on March 8, 2010, Manning told ASSANGE that she was “throwing everything [she had] on JTF GTMO [Joint Task Force, Guantanamo] at [Assange] now.” ASSANGE responded, “ok, great!”

[snip]

Manning later told ASSANGE in reference to the Guantanamo Bay detainee assessment briefs that “after this upload, thats all i really have got left.” I

It argued that Manning downloaded the State Department cables in response to the request for bulk databases on the Wish List.

Further, following ASSANGE’s “curious eyes never run dry” comment, and consistent with WikiLeaks’s solicitation of bulk databases and classified materials of diplomatic significance, as described in paragraphs 2,4-5, between on or about March 28, 2010, and April 9, 2010, Manning used a United States Department of Defense computer to download over 250,000 U.S. Department of State cables, which were classified up to the SECRET level. Manning subsequently uploaded these cables to ASSANGE and WikiLeaks through an SFTP connection to a cloud drop box operated by WikiLeaks, with an X directory that WikiLeaks had designated for Marining’s use. ASSANGE and WikiLeaks later disclosed them to the public.

And it showed that the Iraq Rules of Engagement were on the Wish List.

As of November 2009, WikiLeaks’s “Most Wanted Leaks” for the United States included the following:

[snip]

b. “Military and Intelligence” documents, including documents that the list described as classified up to the SECRET level, for example, “Iraq and Afghanistan Rules of Engagement 2007-2009 (SECRET);”

[snip]

Following ASSANGE’s “curious eyes never run dry” comment, on or about March 22,2010, consistent with WikiLeaks’s “Most Wanted Leaks” solicitation of “Iraq and Afghanistan US Army Rules of Engagement 2007-2009 (SECRET),” as described in paragraphs 4-5, Manning downloaded multiple Iraq rules of engagement files from her Secret Internet Protocol Network computer and burned these files to a CD, and provided them to ASSANGE and WikiLeaks.

Thus, for each of these, the government is saying that soliciting specific classified (or protected) materials amounts to Espionage. This is the theory of prosecution I argued would criminalize people like Jason Leopold, who was clearly engaged in journalism when he specifically asked about a specific Suspicious Activity Report from a source.

Theory Two: Attempted hacking to attempt to obtain the documents available via the hack (Counts 5 and 18)

For one vaguely defined set of documents, DOJ has charged Assange for attempting to help Manning crack a password (which was the single previous charge, which is now Charge 18) in order to attempt to obtain unidentified documents on SIPRNet.

15. In furtherance of this scheme, ASSANGE agreed to assist Manning in cracking a password hash stored on United States Department of Defense computers connected to the Secret Internet Protocol Network, a United States government network used for classified documents and communications, as designated according to Executive Order No. 13526 or its predecessor orders.

I believe (though am not certain) that that’s what the documents charged in Count 5 are about.

Between in or about November 2009 and in or about May 2010, in an offense begun and committed outside of the jurisdiction of any particular state or district of the United States, the defendant, JULIAN PAUL ASSANGE, who will be first brought to the Eastern District of Virginia, and others unknown to the Grand Jury, knowingly and unlawfully attempted to receive and obtain documents, writings, and notes connected with the national defense—^namely, information stored on the Secret Internet Protocol Network classified up to the SECRET level— for the purpose of obtaining information respecting the national defense, knowing and having reason to believe, at the time that he attempted to receive and obtain them, that such materials would be obtained, taken, made, and disposed of by a person contrary to the provisions of Chapter 37 of Title 18 of the United States Code.

This theory also doesn’t charge Assange with publishing information. Rather than charging him for soliciting leaks (Theory One), it charges him with helping to obtain documents Manning was not authorized to obtain by attempting to crack a password to get Administrators privileges.

Releasing the names of informants (Counts 15-17)

For each of three sets of US government informants, there’s also a charge tied to the informants’ identities disclosed in bulk databases.

35. Also following Manning’s arrest, during 2010 and 2011, ASSANGE published via the WikiLeaks website the documents classified up to the SECRET level that he had obtained from Manning, as described in paragraphs 12, 21, and 27, including approximately 75,000 Afghanistan war-related significant activity reports, 400,000 Iraq war-related significant activities reports, 800 Guantanamo Bay detainee assessment briefs, £ind 250,000 U.S. Department of State cables.

36. The significant activity reports from the Afghanistan and Iraq wars that ASSANGE published included names of local Afghans and Iraqis who had provided information to U.S. and coalition forces. The State Department cables that WikiLeaks published included names of persons throughout the world who provided information to the U.S. government in circumstances in which they could reasonably expect that their identities would be kept confidential. These sources included journalists, religious leaders, human rights advocates, and political dissidents who were living in repressive regimes and reported to the United States the abuses of their own government, and the political conditions within their countries, at great risk to their own safety. By publishing these documents without redacting the human sources’ names or other identifying information, ASSANGE created a grave and imminent risk that the innocent people he named would suffer serious physical harm and/or arbitrary detention.

For each database, the indictment looks at several instances of the individuals whose identities were released. It then lays out evidence that Assange knew and did not care that by publishing these identities he would be endangering people.

This is the theory of prosecution that does criminalize the publication of true information. And it criminalizes something that journalists do, at times, do.

The government often tries to classify identities that should not be (as they did with Gina Haspel, to hide her role in torture, for example). When journalists learn these identities they sometimes do choose to ignore admonitions against publication, for good reason. That’s what Assange is accused of doing here, but only on a mass scale. But if this is successful, there’s nothing that will prevent the government from charging people for disclosing classified identities at a smaller scale.

I’m also not sure how, as a foreign citizen, this doesn’t invite retaliation against the US for identifying classified identities of other countries.

On the Curious Timing of Daniel Everette Hale’s Arrest

By all appearances, the FBI executed a search on the home of Daniel Everette Hale, an intelligence analyst the government has accused of being Jeremy Scahill’s source for his Drone Papers reporting, on August 8, 2014. In the search, they found a thumb drive with a PowerPoint on drone operations that he had printed off at work over five months earlier.

By that time, Hale had already printed out all 23 documents, unrelated to his work at Leidos, that are charged in his indictment. He also had an unclassified document he printed off at work on his home computer. He had a separate thumb drive with Tails on it, the operating system that the Intercept recommended users use to share files. Somewhere along the way, the government obtained Hale’s location data.

The August 2014 search was done a month after the Intercept published — in July 2014 — the first of the documents Hale printed out, and fourteen months before the Intercept first published that drone war PowerPoint, in October 2015. So the entire time the Intercept was publishing these documents, the government had solid evidence on who their suspected source was.

By the time FBI did that search, Hale had been in contact with Scahill — in largely unsecure form — for fifteen months. Even before Hale left the Air Force in July 2013, Hale had done a Google search on the NSA unclassified computer assigned to him for details on Scahill’s Dirty Wars book tour. He attended an event at Politics and Prose that month, and told a “confidant” he had met Scahill, who wanted to tell his story. Hale played a public role in some of Scahill’s events about the US war on terror. They emailed (including about Edward Snowden) through the summer and spoke at least once on the phone.

It wasn’t until September 2013 that Scahill and Hale switched to Jabber (but even there, the government has evidence of at least three of their Jabber chats before Hale started printing off files from work), perhaps because Hale at least once texted Scahill about getting on Jabber, apparently the day before he printed out a bunch of drone war documents.

All that suggests that, as soon as a month after the Intercept first published documents from Hale, the government had all the same evidence they’ve shown in this indictment substantiating the very strong case that Hale was Scahill’s source.

That was almost five years ago (the statute of limitations for the 793 Espionage Act crimes with which they’ve charged Hale is 10 years).

Just as curious, the government indicted Hale (in EDVA, based off work Maryland FBI Agents did) on March 7, apparently with a newly installed grand jury. The indictment has been sealed since then, waiting for Hale’s arrest in Nashville.

It is not at all surprising that the government indicted Hale. Even under the Obama Administration’s aggressive prosecutions of whistleblowing leakers, the case would be among the type they prosecuted (even though the drone documents he allegedly leaked exposed really damning details about a dysfunctional side of our war on terror, so the prosecution might have embarrassed Obama). The Trump Administration has gotten even more aggressive with journalists.

According to his criminal cover sheet, Hale is represented by Abbe Lowell who, along with being Jared Kushner’s lawyer, is also one of the best lawyers in the country on defending leak cases.

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