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Chelsea Manning’s Release May Not Be the End of Her Troubles

When I wrote this post noting that Judge Anthony Trenga had ordered Chelsea Manning be released, I admitted, I don’t know what it means. I was hoping that when her lawyers released a statement it would bring more clarity. But that statement — released hours after the release — offered no such clarity (though it does make it clear that right now her focus is on recovering from the suicide attempt and malign effects of incarceration, not any celebration of her freedom). It attributed her release to “the apparent conclusion” of the grand jury.

Judge Anthony Trenga today ordered Chelsea Manning’s release from confinement, after the apparent conclusion of the grand jury to which she had been subpoenaed, and before which she refused to testify. He further ordered that she pay $256,000 in fines which accrued each day she refused to cooperate with the grand jury.

Needless to say we are relieved and ask that you respect her privacy while she gets on her feet.

That tells us no more than Trenga’s opinion revealed and arguably shifts the emphasis from “the business of” the grand jury to the grand jury itself. There’s no reason to believe this grand jury expired (it was understood to be a newly seated one last May, which should mean it would have two more months). Rather, written two days after the grand jury appearance scheduled, Trenga’s opinion says the grand jury is done with whatever it was doing.

That’s one of the reasons I focused so closely on what prosecutors told Jeremy Hammond Tuesday, when he also refused to testify before the grand jury. They asserted that Julian Assange is a Russian spy.

“What could the United States government do that could get you to change your mind and obey the law here? Cause you know” — he basically says — “I know you think you’re doing the honorable thing here, you’re very smart, but Julian Assange, he’s not worth it for you, he’s not worth your sacrifice, you know he’s a Russian spy, you know.”

[snip]

He implied that all options are on the table, they could press for — he didn’t say it directly, but he said they could press for criminal contempt. … Then he implies that you could still look like you disobeyed but we could keep it a secret — “nobody has to know I just want to know about Julian Assange … I don’t know why you’re defending this guy, he’s a Russian spy. He fucking helped Trump win the election.”

Amid suggestions that prosecutors were considering further legal means against Hammond, one of them used the example of Bartleby the Scrivener — whose example Hammond had followed in the grand jury in preferring not to answer questions — to remind that refusing to answer questions led Bartleby to die in prison.

Let me be clear, I’m not saying I agree with that observation, nor am I ceding that prosecutors definitely have proof that Assange is a Russian spy. But unless you believe that Hammond entirely made up these two exchanges, then everyone on all sides of the WikiLeaks divide would do well to take note of it. Julian Assange’s prosecutors are asserting to a witness that he is a Russian spy, which is far more than they’ve put into any indictment, yet.

Hammond suggested that when prosecutors “implied that all options are on the table,” he took that to mean he might be held in criminal contempt. Manning’s camp was expressing similar concerns before the grand jury appointment on Tuesday, that they believed the government might respond to her bid to be released by ratcheting up her legal exposure. But if prosecutors really do believe Assange is a Russian spy, it would give them tools far beyond criminal contempt.

It is a crime by itself in the US to refuse to tell authorities about espionage. As Ron Wyden’s bill to fix the Espionage Act makes clear, prosecutors can charge someone under the Espionage Act for conspiracy, aiding and abetting, accessory after the fact, or misprision of a felony. Misprision is effectively not telling a court or other authority about what you know as soon as possible.

Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years

And under the Espionage Act statute Assange has already been charged under as well as 18 USC § 794 (sharing defense information with a foreign government like Russia), such conspiracy language exposes the person found conspiring not to just three years, but to the same punishments as the person himself. If Julian Assange shared with Russia some of the information Manning shared with him, for example, that may expose her for his acts.

This is why I focused so intently on the language that prosecutors in the Joshua Schulte case were using, treating WikiLeaks as a criminal organization. If the federal government currently conceives of WikiLeaks in these terms, it means Hammond and Manning’s silence may expose them far more than they or their current advisors seem to be envisioning. And that was based off language describing WikiLeaks like an organized crime entity, not someone led by (as prosecutors claimed the other day) a Russian spy.

Again, I am not defending this stance. I’m not saying I agree with it. I’m making an observation that people on all sides of the WikiLeaks divide — but especially those caught in the spell of the lies that Assange’s people are telling to combat extradition — would do well to note.

The government is using language that is far, far more serious than virtually anyone seems to be accounting for, including Manning and Hammond. Prosecutors may well have been blowing smoke to try to cow Hammond into cooperating. Or they may have been putting Hammond on notice of the stakes he was facing.

Chelsea Manning Released from Jail … with a Massive Fine

Judge Anthony Trenga just ordered Chelsea Manning released from jail, a day before her attempt to be released based off a claim that coercion would never get her to testify.

Trenga declared that motion moot, though. The reason he released her is because the work of the grand jury has finished.

By Order dated March 12, 2020, after finding that the business of Grand Jury 19-3 had concluded, the Court dismissed Grand Jury 19-3.

Upon consideration of the Court’s May 16, 2019 Order, the Motion, and the Court’s March 12, 2020 Order discharging Grand Jury 19-3, the Court finds that Ms. Manning’s appearance before the Grand Jury is no longer needed, in light of which her detention no longer serves any coercive purpose. The Court further finds that enforcement of the accrued, conditional fines would not be punitive but rather necessary to the coercive purpose of the Court’s civil contempt order.

Her total fine amounts to $256,000.

I have no idea, yet, what this means. But I’m glad she has been released.

Update: Jeremy Hammond has also been released back to federal prison.

 

Hours before She Attempted to Kill Herself, Prosecutors May Have Told Chelsea Manning that Julian Assange Is a Russian Spy

Back when the government first subpoenaed Chelsea Manning, I laid out why that was likely to be counterproductive.

[U]nless there’s a really good legal reason for the government to pursue its own of evolving theory of WikiLeaks’ activities, it doesn’t make sense to rush where former WikiLeaks supporters are headed on their own. In virtually all venues, activists’ reversed understanding of WikiLeaks is bound to have more credibility (and almost certainly more nuanced understanding) than anything the government can offer. Indeed, that would likely be especially true, internationally, in discussions of Assange’s asylum claim.

A charge against Assange in conjunction with Vault 7 or the 2016 election operation might accelerate that process, without foreclosing the government’s opportunity to present any evolved understanding of WikiLeaks’ role in the future (especially if tied to conspiracy charges including the 2016 and 2017 activities).

But getting into a subpoena fight with Chelsea Manning is likely to have the opposite effect.

That’s true, in part, because post-commutation a lot of people worry about the impact renewed pressure from the government against Manning will have, regardless of the legal soundness of it. The government wanted Aaron Swartz to become an informant when they ratcheted up the pressure on him between 2011 and 2013. They didn’t get that information. And his suicide has become a key symbol of the reasons to distrust law enforcement and its ham-handed legal tactics.

Yesterday, Manning tried to kill herself. While the statement released by her lawyers notes that she has a hearing tomorrow on whether she should be freed because no amount of coercion will make her cooperate with the grand jury, the statement is silent about the fact that she was brought before the grand jury yesterday, hours before the suicide attempt.

I know of no account of what happened in that grand jury appearance. But Jeremy Hammond was also brought before the grand jury in advance of a hearing, also on Friday, in a bid to be freed (in Hammond’s case, he’d be released back into federal prison to serve out his sentence for hacking Stratfor). He gave an account of the appearance in an interview yesterday (the part about the grand jury starts after 41:20). Hammond described how, before entering the grand jury, the prosecutor asked whether there was anything the government could do to get him to change his mind about not testifying.

“What could the United States government do that could get you to change your mind and obey the law here? Cause you know” — he basically says — “I know you think you’re doing the honorable thing here, you’re very smart, but Julian Assange, he’s not worth it for you, he’s not worth your sacrifice, you know he’s a Russian spy, you know.”

The questions he was asked in the grand jury were apparently no surprise: the prosecutor asked whether Assange asked Hammond to hack any websites. Hammond describes the questions as the same as were asked in his last appearance, in September. Because Hammond decided to answer in the same way Bartleby the Scrivener answered questions — by saying he preferred not to answer — the prosecutor afterwards tried to chat up Hammond about world literature. He even reminded that Bartleby died in prison. The prosecutor then repeated that Assange is a Russian spy.

He implied that all options are on the table, they could press for — he didn’t say it directly, but he said they could press for criminal contempt. … Then he implies that you could still look like you disobeyed but we could keep it a secret — “nobody has to know I just want to know about Julian Assange … I don’t know why you’re defending this guy, he’s a Russian spy. He fucking helped Trump win the election.”

Hammond asked why Assange wasn’t charged in the 2016 operation, and the prosecutor appears to have responded that the extradition would take a long time. One of the prosecutors reminded Hammond that one of his Anonymous co-defendants was now a professor in the UK. One asked whether Hammond would discuss Sabu, which surprised him. Hammond said that Sabu was the only one who asked him to hack into any websites. The FBI officer in the room pulled out a notebook and started taking notes.

There’s no indication that prosecutors said the same things to Manning as they did to Hammond, though this is the same grand jury and same prosecutors and both are obviously being asked about Assange.

Which means it is likely that hours before Manning attempted to kill herself, prosecutors tried to get her to answer questions about the man she sent entire databases of secrets to by claiming he is a Russian spy. They may well now have evidence of that — but if they used that tack, they were basically asking Manning to testify that the understanding she has of her own actions are entirely wrong and that the sacrifices she made were for a purpose other than the one she believed in.

Sadly, if Hammond is any indication, Manning is also getting a distorted view of the extradition fight over Assange. As I have noted, WikiLeaks supporters are telling at least three outright lies by:

  • Pretending that discussions of a pardon only started in August 2017, in exchange for testimony claiming that Russia didn’t hack the DNC, rather than started well before the FBI investigation into Trump’s campaign was public, as either an implicit or explicit payoff for election assistance
  • Claiming that Mike Pompeo’s designation of WikiLeaks as a non-state hostile intelligence agency was part of the larger attack on the press that formally started four months afterwards and presenting his claim that the First Amendment doesn’t protect someone stealing American secrets solely to destroy America out of context
  • Distorting the timing of UC Global’s increased surveillance of Assange to hide that it followed the Vault 7 publication

These are cynical, transparent lies being spread by a bunch of people claiming to support journalism. Probably, WikiLeaks supporters are also lying about how Assange repeatedly got tipped off to prosecutorial steps against him, presenting that as proof of Trump’s hostility against Assange.

Earlier in yesterday’s interview, Hammond adopted the distorted claim about Pompeo as “proof” that Assange’s prosecution is political and also that Trump has hostility to the guy who helped him get elected. I doubt whether having an accurate understanding of this would have changed Hammond’s decision not to testify, but he does, apparently, believe the lies.

And I doubt whatever prosecutors told Manning yesterday was the sole cause of yesterday’s attempt. Her attorneys had tried unsuccessfully to prevent yesterday’s testimony, which doesn’t make sense in the context of this week’s hearing unless they believed that even appearing before the grand jury would cause Manning a great deal of stress.

I have no idea what Assange’s relationship with Russia is — that’s presumably the entire point of the grand jury. There’s no doubt there were Russians in chat rooms where the Stratfor hack happened and that Assange was in discussions during the hacks. Obviously, Assange played a key role in the 2016 Russian operation as well as efforts after the fact to invent hoaxes to disclaim Russian involvement. And Joshua Schulte expressed (sometimes contradictory) willingness to seek Russian help after he allegedly sent CIA’s hacking tools to WikiLeaks.

But making such claims amid the stress of a grand jury appearance — if they, in fact, did so — isn’t going to help someone who has a history of self-harm.

When Julian Assange Testified before a Nation-State Investigation of a Suspected Spy…

Back on December 20, 2019, Julian Assange testified in a nation-state’s investigation of someone suspected of spying for another nation-state. He testified pursuant to international legal process that got challenged on jurisdictional grounds, but ultimately upheld. While El País provided a report of his testimony, the testimony itself was not open to the press.

As he testified, Chelsea Manning and Jeremy Hammond sat in jail in Alexandria, VA, being held in contempt for refusing to testify, under a grant of immunity, in their own nation-state’s investigation of someone suspected of working with the intelligence services of another nation-state. Related charges are being challenged on jurisdictional issues. Manning, at least, claims she won’t testify because any hearing — like the one Assange testified in — would not be public. Tomorrow, prosecutors in EDVA will bring Manning before the grand jury again, in a third attempt to get her to testify before a hearing on Friday over her motion to be released based on an assertion the coercion of contempt will never bring her to testify.

This is just one irony about the way WikiLeaks supporters are treating the investigation of David Morales, the owner of a security contractor that provided the security for Ecuador’s embassy until 2018. Morales is accused of spying for the CIA — that is, spying for a third country’s intelligence service.

There are some problems or obvious alternative explanations for the accusations against Morales, but even assuming the allegations are true, there is little that separates what Morales would have done from what Assange did on at least one occasion: work as a willing participant in a third country’s intelligence service operation compromising the privacy of private citizens. Indeed, there are allegations of Russian involvement in two other WikiLeaks-related publications: there were Russians active in Stratfor hack chat rooms, and Joshua Schulte allegedly expressed an interest in Russian help (though the allegations are contradictory and post-date the initial leak to WikiLeaks, which I’ll return to).

You might argue that Morales’ surveillance of Assange — on whoever’s authority — constituted a far more serious privacy violation than those WikiLeaks has committed by publishing the private emails of John Podesta and the private information of Turkish, Saudi, and third party citizens. That might be true in first instance, but since some of the people exposed by WikiLeaks’ publications live in authoritarian countries, the secondary effects of WikiLeaks’ publication of details about private individuals might not be.

(I have heard, directly and indirectly, multiple consistent allegations about WikiLeaks itself engaging in practices that constitute privacy violations of the sort implicated by the surveillance of Assange, but it would take a law enforcement investigation to substantiate such claims, most of the affected parties would never want to involve law enforcement, and some investigations would be barred by privilege protections.)

Ultimately, though, Spain’s investigation into UC Global is the same thing the US investigation into WikiLeaks is: a properly predicated nation-state investigation into someone suspected of engaging in espionage-related activities with a foreign intelligence service. There are legitimate reasons why those who respect privacy might support both investigations.

WikiLeaks supporters might argue that it’s different because it’s the United States. That’s a perfectly justifiable stance, but if it’s the basis of supporting one investigation and another, should be admitted explicitly. WikiLeaks supporters might argue it’s different because Assange is the alleged victim, but that doesn’t change that there are victims (and not just spy agencies) that the US is trying to protect with its investigation.

Manning and Hammond say they are refusing to testify because they object to American grand jury practices. That amounts to civil disobedience, which is certainly their prerogative. They are paying a steep price for that civil disobedience (as both already paid with their decisions not to cooperate after pleading guilty). But when WikiLeaks supporters complain about the treatment Manning is suffering for her stance, they might think about the fact that — when it came to testifying in an equivalent inquiry — Julian Assange had none of the objections to testifying.

The State of Play: Joshua Schulte and Julian Assange

Last year, it looked like the Joshua Schulte trial, rescheduled in the fall to start January 13, would be done before the extradition hearing for Julian Assange started. Two things changed since then: Schulte got a delay until February 3, and then last month, Assange convinced Judge Vanessa Baraitser to split his extradition hearing into two, the first part lasting a week starting Monday, and then resuming on May 18 for three more weeks.

As a result, both men are in court during the same week, intersecting in interesting ways.

Thus far, Assange’s argument is threefold:

  1. His prosecution is hopelessly political, merely retaliation by the hated President that Assange helped elect, Donald Trump
  2. The evidence in the case against Assange is so weak as to be abusive
  3. A person cannot be extradited for political crimes like the Espionage Act

The first argument is a load of horseshit covering up the fact that the timing of the treatment of WikiLeaks as a non-state hostile intelligence service, the increased surveillance of Assange, and the initial December 21, 2017 charge all stem from WikiLeaks’ burning the CIA by publishing all its hacking tools. It’s horseshit, but it garners a lot of enthusiasm among WikiLeaks supporters who like to conveniently forget that, whatever Assange’s motivations were in 2010 (when he engaged in the acts he is charged with), he nevertheless helped Russia help Trump get elected. That said, even though the claims about what changed in 2017 are horseshit, it doesn’t change that the existing charges against Assange pose a real danger to journalism.

The second argument is far stronger. For each of the theories of prosecution under which Assange is charged — attempting to help Chelsea Manning crack a password, soliciting certain files via WikiLeaks’ wish list, and publishing a bunch of files in which the names of US and British sources were later revealed — Assange has at least a credible defense. Assange never succeeded, and could not have succeeded, in cracking that password. Manning didn’t leak the precise files that WikiLeaks had on its wish list (though did leak some of the same sets). WikiLeaks originally went to some effort to redact the names of sources, only to have a Guardian journalist release the password revealing them. Mind you, the extradition hearing is not the trial itself, so for these defenses to be relevant, WikiLeaks has to prove that the case against Assange is abusively weak.

The third argument, which is being argued today, is a more interesting legal question. Assange claims that the existing Anglo-US extradition treaty, passed in 2003, still prohibits extradition for political offenses like theEspionage Act. The US argues that Assange’s extradition is governed by the Extradition Act of 2003, which did not include such a bar (and also disagrees that these are political crimes). The lawyers are even arguing about the Magna Carta! Judge Vanessa Baraitser seems inclined to side with the US on this point, but the question will surely be appealed. Mind you, one of the charges against Assange, CFAA, is in no way a political offense, and the UK has not barred its own citizens, much less foreign citizens hanging out in foreign embassies, from being extradited on the charge (though several hackers, most recently Lauri Love, have challenged their extradition to the US for CFAA on other grounds).

Yesterday, Assange’s defense spent a good deal of time making the second argument. The US didn’t respond. Rather, it said it would deal with those issues in the May hearing.

Meanwhile, the Schulte trial is wrapping up, with Schulte doing little to mount a defense, but instead preparing an appeal. Yesterday, Schulte asked that an instruction on the defendant not testifying be added to the jury instructions (normally, these are included from the start, but Schulte has been claiming he would testify all this time). Today, Schulte told the court that Steve Bellovin won’t testify because he never got access to all the data Judge Paul Crotty ruled he couldn’t have access to (not mentioning, however, that the restrictions stemmed from Crotty’s own CIPA judgment).

I’m still unclear on the status of the witness, Michael. Schulte is trying to submit his CIA investigative report in lieu of finishing cross-examination (which is where things had left off). But it still seems possible that Crotty would require his testimony to be resumed, giving the government another opportunity to redirect his testimony. This is all likely happening today, but given that there’s so little coverage of the trial, we won’t know until Thursday.

Before all this happened, however, the jailhouse informant provided very damning testimony against Schulte, not only describing how Schulte obtained a phone (swapping an iPhone for a Samsung that he could load all the apps he wanted on it), but also claiming that Schulte said, “Russia had to help him with what he was doing,” launching an information war.” I had learned of similar allegations of ties or willingness to forge them with Russia via several sources in the past. And Schulte’s own jailroom notebooks include hints of the same, such as a bullet point describing how Russia could help the US “destroy itself.”

And his final plan — which the informant alerted his handlers to just before Schulte launched it — included some “Russia pieces.”

As part of the same plan to get fellow SysAdmins to leak all their secrets to WikiLeaks, then, Joshua Schulte was also hoping to encourage Russia to attack the US.

I’ve long said the Vault 7 case, if it were ever added to Julian Assange’s charges (including an extortion charge, which would also not be a political crime), would be far more damning and defensible than the ones currently charged. Filings from November suggested that the government had come to think of Schulte’s leaks to WikiLeaks as the last overt act in an ongoing conspiracy against the United States.

And by 2018, Schulte had come to see leaking to WikiLeaks as part of the same plan encouraging Russian attacks on the US, precisely the allegation WikiLeaks has spent years trying to deny, especially in the wake of Assange’s cooperation in Russia’s election year operation.

It’s not clear whether the US will add any evidence to the original 2010 charges against Assange before May (though Alexa O’Brien has pointed to where additional evidence might be), but the statement they’re waiting until then to rebut the solid defense that WikiLeaks is now offering suggests they might. That might reflect a hope that more coercion against Chelsea Manning will produce that additional evidence (she has renewed her bid to be released, arguing that such coercion has obviously failed). Or it might suggest they’ve got plans to lay out a broader conspiracy if and when Schulte is convicted.

Assange’s lawyers pushed for the delay to May in the first place. If the US government uses the extra time to add charges related to Vault 7, though, the delay may make a significant difference in the posture of the case.

Methinks Joshua Schulte Doth Protest Too Much over Anonymous

Accused Vault 7 leaker Joshua Schulte — whose trial starts Monday — and the government are having a fight over Paul Rosenzweig’s expert witness testimony again (see this post for the most comprehensive coverage of this dispute). Rosenzweig submitted the Powerpoint he plans to use at trial. Schulte raised objections to the Powerpoint as a whole and to specific slides on it. And the government responded, offering to make some modifications.

The general complaint from Schulte is that the government is using Rosenzweig to introduce otherwise inadmissible hearsay. In one case, the government has agreed to withdraw the claim (a quote from Fred Kaplan, who in my opinion is not particularly reliable with respect to WikiLeaks in any case). The government makes two responses of particular interest. First, that experts are allowed to draw on periodicals to make their conclusions.

Moreover, the defendant’s objection to the introduction of statements from respected news publications ignores that the Rules of Evidence expressly provide for the introduction of such material. Federal Rule of Evidence 803(18) expressly permits the recitation of “[a] statement contained in a . . . periodical . . . if . . . the statement is . . . relied on by the expert on direct examination; and . . . the publication is established as a reliable authority by the expert’s admission or testimony, by another expert’s testimony, or by judicial notice.”

After pulling the Kaplan quote, there’s not really much left in the slide deck that quotes journalistic sources, aside from direct quotes about the diplomatic backlash to the State cables. But what the government doesn’t say is that WikiLeaks presents itself as a respected news publication, which if they truly believe is true should allow introducing the WikiLeaks material as such.

But the government wants to prevent that from coming into evidence (even though Schulte warned that calling Rosenzweig would invite it). Indeed, rather than including material from the About page that Schulte would like to include that makes that point,

The excerpts from the WikiLeaks website are taken out of context. If the government is permitted to introduce two sentences from the lengthy “about” page on WikiLeaks.org, the defense would be entitled to introduce other portions of that page, including that WikiLeaks is a “multi-national media organization and associated library,” that it has “contractual relationships” with more than 100 major media organizations, and that it has won numerous media awards. See https://wikileaks.org/What-is-WikiLeaks.html.

The government has offered to pull this slide:

Rather than conceding (or even mentioning) WikiLeaks’ claim to be a respected media outlet, the government says it can introduce the vast majority of the clips from WikiLeaks’ site because they are not assertions at all.

Indeed, other than WikiLeaks’ statements regarding the content of the Vault 7 leaks, the particular statements from WikiLeaks and Assange about which Mr. Rosenzweig will testify are not “statements” or “assertions” such that the rule against hearsay is even applicable.

That’s true. Some of what Rosenzweig plans to submit includes the pre-release hype WikiLeaks gave the Vault 7 release, including the release purporting to show the US had infiltrated French political parties (which it claimed provided justification for the Vault 7 release) and slides emphasizing the spookiness of the release, including this one invoking Chelsea Manning and Edward Snowden in the same breath as Julian Assange.

Other slides capture the instructions WikiLeaks gives to leakers, including to contact WikiLeaks if you have very large submissions (as this was) and to format and dispose of hard drives.

The government will claim Schulte followed some — but not all — of these instructions, in part because he couldn’t dispose of his CIA workstation, and in part because he kept the hard drives and a thumb drive he used to exfiltrate the files.

Mind you, WikiLeaks didn’t warn leakers not to Google everything they were doing as they did it, which is the really damning evidence against Schulte.

In any case, I can’t help but imagine we’ll be seeing this very same slide deck in a trial in EDVA (if Assange is ever extradited), as it shows a continuation of the kinds of activities charged in the existing Assange indictment. Assange’s extradition hearing has been split into two, with the second starting in May, so the government would have plenty of time to add such charges after this trial (which may last a month).

In addition to Rosenzweig’s refusal to include WikiLeaks’ awards (which I would imagine Schulte will bring out on cross in any case, though I honestly wonder why they didn’t bring in their own expert to present such material), one Schulte claim that absolutely has merit is that Rosenzweig should not use the WikiLeaks logo on all these slides.

Each page of the power point has the WikiLeaks logo and name from the WikiLeaks website as if the power point document itself was created by WikiLeaks. This creates a misleading impression and should be removed.

Schulte doesn’t lay out what misleading impression the logo provides, but I would argue it suggests that WikiLeaks endorses some of the content in the slide deck, pertaining to damage or the characterization of certain leaks. The government says this misleading impression can be avoided with an instruction.

With respect to the inclusion of the WikiLeaks logo on the relevant pages of the Demonstrative, WikiLeaks is the subject of his testimony, and it is reasonable to include it as a header. To avoid any confusion, the Government will elicit from Mr. Rosenzweig that the Demonstrative as a whole was prepared as a demonstrative aid for his testimony and was not produced by WikiLeaks.

I vehemently disagree with this stance. Over half of people are visual learners (indeed, the government will rely on visual reenactments to show how they claim Schulte stole the files). The logo on this slide deck ascribes to WikiLeaks things that they would strongly dispute. Particularly given that Rosenzweig is claiming there are three official WikiLeaks channels — the site, the WikiLeaks Twitter account, and Assange’s Twitter account — it is imperative that he differentiate in his presentation between what is official and what is his own analysis.

All of which is to say that, as predicted, calling Rosenzweig will invite a dispute over what kind of organization WikiLeaks really is (which is probably the point).

All that said, I’m frankly stunned that, amidst all the other slides in this presentation — including the one showing convicted leaker Chelsea Manning (whose leaks, the government will show, Schulte viewed as damaging in real time) and admitted leaker Edward Snowden (whom the government will show Schulte was Googling at a key time in August as he was also Googling WikiLeaks for almost the first time) — Schulte objects, again, to the invocation of Anonymous in this slide.

Having not objected that the government will raise Chelsea Manning and not objected that the government will raise Edward Snowden, Schulte is objecting that they’re raising Jeremy Hammond — like Manning, a confessed WikiLeaks source — and a 2010 operation to punish Paypal and others for blacklisting WikiLeaks.

We renew our objections to references to Anonymous, which are irrelevant and prejudicial.

As I have laid out, the way in which Schulte himself adopted the identity of Anonymous as part of his effort to leak to the WaPo from jail links together the three main pieces of evidence of that — his Signal texts with Shane Harris, his ProtonMail account in the name of Anonymous, and his prison notebooks. Schulte’s the one who claimed to be Anonymous, whether or not it’s true (and given the ethics the group adopts about membership, by claiming to be a member he basically is one). Anonymous’ tie to WikiLeaks is clearly admissible evidence based on Schulte’s own actions.

Schulte deems the invocation of Anonymous to suggest “concerted activity” that is more disturbing than simply stealing CIA’s hacking tools and leaking them to WikiLeaks in an effort to burn CIA to the ground out of spite for being made to sit in what Schulte considered an “intern desk” rather than a “prestigious desk with a window,” which is the motive the government says it will present.

The evidence of claimed participation in a shadowy, underground group infamous for cyber-attacks and dumping on WikiLeaks is unduly prejudicial as it suggests concerted activity of a type even more disturbing than what is charged.

The evidence suggests that Schulte adopted at least three personalities to leak from jail, deliberately attempting to present the illusion of concerted activity. Given the concerted concern about Anonymous amid all the equally damning references, perhaps some of Schulte’s imaginary friends aren’t actually imaginary?

As I disclosed in 2018, I provided information to the FBI in 2017. The government recently stated publicly that matters on which I shared information are related to Schulte. Aside from two press inquiries, I have not spoken with the government about Schulte.

Joshua Schulte Wanted to Include Instructions to Contact WikiLeaks in a Pro Se Motion

The lawyers for accused Vault 7 leaker Joshua Schulte made a last ditch effort yesterday to limit how much information from his prison notebooks can be admitted as evidence in his trial starting next week. Perhaps inadvertently, the letter provides new details about why the government believes Schulte was trying to leak from jail, as well as some hints about why his lawyers claim they may be responsible for some of his exposure on those charges.

As I had noted, the government wants to include a passage from his notebooks instructing somebody to “ask WikiLeaks” if they need help to prove that Schulte had knowledge of what WikiLeaks had received.

“Ask WikiLeaks” (014099) (undated): In the middle of the page, the defendant writes, “If you need help ask WikiLeaks for my code.”3 The defendant’s direction to consult WikiLeaks about his “code” is admissible as Nonpublic Information Evidence, because it is a statement that WikiLeaks is in possession of source code for tools upon which the defendant worked and that are contained in the back-up file that was stolen, even though WikiLeaks has not publicly disclosed that it possesses any source code for all of the tools. Schulte’s knowledge of non-public aspects of the information that was given to WikiLeaks helps to demonstrate that he was the one who gave that information to WikiLeaks in the first place.

Schulte’s lawyers argue, unpersuasively, that this is not relevant, though they also argue that it is “privileged information or work product” because the passage is part of a pro se motion Schulte was trying to draft.

  • “If you need help ask WikiLeaks for my code.” Gov. Ltr. 8. The government says that this sentence means that “WikiLeaks is in possession of source code for tools upon which the defendant worked and that are continued in the backup file that was stolen, even though WikiLeaks has not publicly disclosed that it possesses any source code for all of the tools.”

Nothing in the unredacted portion of Page JAS_022627 (classified #014099) is relevant to the government’s case. On the contrary, the beginning of the page is clearly part of a legal motion that Mr. Schulte was drafting. The top of the page states: “You can create a forensic copy of the device & then have control over it. There has been no reason over this past year that we would not have had access to this critical evidence except that the prosecutors have lied to your honor & played games.” This is privileged information or work product and is therefore not admissible.

Obviously, Schulte’s lawyers are wrong that this is not relevant to the government’s case, either on the MCC charges or the charges in chief. They don’t deny that this reflects knowledge that WikiLeaks has source code that Schulte wrote; they simply remain silent about it.

They’re instead making a half-hearted attempt to argue that it pertains to Schulte’s defense. That is, they’re arguing that in a pro se motion addressed to Judge Crotty, Schulte included instructions about how to use the code he wrote for the CIA to do something, possibly obtain forensic evidence from the CIA that the government had not yet turned over.

While the privilege claim, half-hearted as it is, is an interesting one, Schulte’s argument in some ways makes this passage more damning. After all, he had already, by this point, included allegedly classified information in a pro se bail motion. Around this period he tried to release information publicly via a pro se motion again, though the government pulled it from PACER before most people could access it. Schulte eventually would submit a pro se lawsuit challenging his SAMs designation that happened to make many of the same claims he had made in his “Presumption of Innocence” blog and alluded to some of the same challenges he had tried to make to warrants by leaking protected or classified information (though the government has not claimed it included classified information). That is, the record suggests that Schulte was using his pro se motions to communicate publicly as much as to mount legal arguments (though his pro se motion raises some important points about our shitty criminal justice system amid a lot of dreck and lies).

That makes the second part of what Schulte’s lawyers claim was a planned pro se motion all the more interesting. The government wants to present a page that appears 37 Bates stamp numbers later in Schulte’s notebook which lists a bunch of potentially classified topics.

“What We Expect to Find in Emails” (014136) (undated): At the top of this page, the defendant writes “What we expect to find in emails.” On the remainder of the page, the defendant writes a list of items, many of which contained classified information. This portion of the Blue Notebook is admissible as Intent Evidence and MCC Classified Information Evidence, because it shows the defendant cataloguing classified information that, if publicly disclosed, would likely be harmful to the United States. Indeed, some of the categories of information identified by the defendant on this page—such as certain operations—is the same as the classified information contained in the Fake Authentication Tweet, which serves to show that the defendant’s intent was to collect these materials for dissemination, not for any legitimate purpose related to his defense.

As noted, Schulte claims that this passage was not part of Schulte’s planned “New Articles,” which appears 22 pages earlier in the notebook, but instead the pro se motion. His defense claims this was a Fifth Amendment one, which I’m not sure I understand; it seems more like a selective prosecution challenge, but then they’re not engaging with the substance here.

What We Expect to Find in Emails (014136) (undated). This page is clearly part of Mr. Schulte’s pro se motion to dismiss under the Fifth Amendment for prosecutorial misconduct. The Fifth Amendment is referenced at the top of the right-hand page. As such it is privileged work product. In addition, the government has not specified which part of this page contains classified information and because the handwriting is not always legible the defense cannot fairly guess the offending part. Again this seems more a statement of Mr. Schulte’s political viewpoint, now as a wrongfully charged and detained defendant, and even were it not privileged, it would be irrelevant and unduly prejudicial.

In any case, even Schulte’s own lawyers are saying that Schulte wanted to submit a pro se motion that, first, instructed someone to use a tool he wrote for the CIA that could be obtained by asking WikiLeaks, possibly to find a bunch of email that includes classified information about CIA operations.

I can see how, in the wake of being busted once trying to spread protected information via pro se motion, his attorneys might advise him to draft any pro se motions in his notebook (at the time he had a classified discovery computer, but it’s not clear what he could write and save on it), which they could then review to make sure he wasn’t getting himself in more legal trouble. But then, when it was discovered, the government used it to claim he intended to leak more classified information.

Yet Schulte’s letter — in conjunction with evidence the government has said they’d submit at trial if the attorney-client advice issue came up — makes it clear that he was unhappy with his lawyer, Sabrina Shroff’s advice.

Finally, the government’s more general assertion that the conflict surrounding the MCC notebooks has somehow “disappear[ed]” based on the court’s ruling over objection that Mr. Schulte may not raise an advice-of-counsel defense is also incorrect. Gov. Ltr. 1. Indeed, the specific pages the government seeks to introduce include work product in preparation for Mr. Schulte’s defense. Some the pages that the government seeks to introduce also specifically mention “Sabrina” and refer to his family reaching out to different defense lawyers, strongly implying that Mr. Schulte had concerns about his current defense team. These portions of the notebooks only highlight the inherent conflict that the current defense team faces in representing Mr. Schulte. Additionally, if Mr. Schulte is convicted, this issue will surely be taken up on appeal, and may well cause a reversal of a conviction. The issue will only begin to “disappear” if the notebooks are excluded from the trial.

The government could easily show — and will, when Schulte appeals based on this argument — that at the time Shroff was trying to get him to stop trying to go public, he was threatening to go around her.

For example, the Government has described to the defense how, if the defendant offered his counsel’s testimony, the Government would likely rely on recorded prison calls in which the defendant criticized defense counsel’s advice, including, for example, calls in which the defendant stated that he would “go around” Ms. Shroff to disclose information to the media, despite her objections to this strategy.

In other words, written at a time when Schulte was trying to bypass Shroff, submitting a pro se motion including instructions on how to get and use one of the hacking tools he wrote, possibly to obtain classified emails, it could be seen as an attempt to use the pro se motion to leak information (or instruct others how to get and leak it). There’s no chance that that address, “If you need help ask WikiLeaks for my code,” was intended for Judge Crotty (who, in his writings, Schulte describes in very unfavorable terms), after all. Nor is it clear how someone as smart as Schulte is would include information confirming his role in the leak in a pro se motion claiming that prosecutors had unfairly targeted him.

All of which makes it interesting, to me, that this last-ditch letter addressing Schulte’s notebooks mounts an effort to get all reference to Anonymous, specifically, excluded from trial.

The government also again makes repeated reference to the “Anonymous” group. Dkt 257, at 5, 12, 17. As explained in our response to the motions in limine, all reference to Anonymous should be excluded under Rule 404(b).

[snip]

The defense continues to object to any mention of Autonomous [sic] as unduly prejudicial and because it may confuse the jury.

The government has said it will introduce evidence that Schulte, in real time in 2010, opined that Chelsea Manning’s leaks to WikiLeaks had done damage, which not only proves that he followed historical WikiLeaks releases but believed that the way WikiLeaks had released her leaks did some damage. That piece of evidence is utterly damning in support of a claim that Schulte intended to damage the US with his alleged leaks. And the defense is focusing, instead, on Schulte’s self-proclaimed reference to Anonymous?!?!?

While Schulte’s team doesn’t specifically reference which arguments it relies on here, weeks ago, the defense made this argument about why mentioning Anonymous would be prejudicial.

The government has provided no justification to introduce comments about Anonymous, which must be excluded under Rule 404(b). The government offers no support why it should be allowed to introduce “additional communications with the Reporter, including encrypted communications in which [Mr.] Schulte claims to have been [a] member of the group Anonymous, which is a group known for conducting cyber-attacks that has provided documents to WikiLeaks in the past.” Gov. Mot. 33. This “additional” evidence is clearly not part of the charged offenses nor is it inextricably intertwined with them. The jury will discern no gaps in the government’s case if it is not included in the proof. Instead, it is just classic “bad act” evidence that would be purely prejudicial. The evidence of claimed participation in a shadowy, underground group infamous for cyber-attacks and dumping on WikiLeaks is unduly prejudicial as it suggests concerted activity of a type even more disturbing than what is charged.

[snip]

The government also states that Mr. Rosenzweig will testify that in 2012 “Anonymous and WikiLeaks worked together to release information.” Gov. Res. 13. This testimony will “aid the jury in understanding the hacking group’s relationship with WikiLeaks” and that Mr. Schulte had “contact with access to WikiLeaks. Gov. Res. 13. As explained above, supra Point II(C)(1), information about Anonymous should be excluded from the trial.

That is, when Schulte’s team wrote this weeks ago (when they were trying unsuccessfully to exclude Paul Rosenzweig’s testimony about what Anonymous is and its past relationship with WikiLeaks), they focused only on the prejudicial aspect. Now, they’re claiming that discussion of Anonymous will confuse the jury, except that’s precisely why the government wanted Rosenzweig to explain what Anonymous is.

But we now know how inadequate this argument is.

Remember: the letter Schulte sent yesterday is an attempt to get Schulte’s notebooks (or at least the most damning parts of them) excluded from trial. But their reference to the government’s plan to introduce references to Anonymous in the letter actually draws from four different kinds of evidence: his notebooks, the Samsung phone he used in jail, and Signal texts and ProtonMail he used to contact a reporter (who warrant affidavits and recent filings have confirmed is WaPo’s Shane Harris).

Partly, the references to Anonymous prove that Schulte used the Samsung phone and the Annon ProtonMail account (the passwords for the ProtonMail accounts were also in the notebook), and that therefore the Signal texts that remain on the phone were sent by him.

In his correspondence with the Reporter, the defendant, pretending to be the defendant’s family and friends, asked the Reporter to send him the versions of the defendant’s articles that the defendant and his family had previously provided to the Reporter. When the Reporter demurred and sought confirmation from the defendant’s family whether the Reporter could provide the defendant’s articles to the user of the Annon Account, the defendant, posing as a member of his family, used a secure messaging application, Signal, to authorize release of the articles. In these Signal communications (the “Signal Messages”), the defendant claimed that the user of the Annon Account was a member of the hacktivist group Anonymous, of which, according to the defendant, the defendant was once a member. Anonymous has collaborated in the past with WikiLeaks to disclose stolen sensitive information.

[snip]

Signal and Twitter to Send Articles and Tweets (014327) (Sept. 2, 2018): In this portion of the Red Notebook, Schulte writes, among other things, “Well its September now. Locked in all day. Hopefully tonight I can setup Signal from my cell & msg [last name of the Reporter] to confirm anon’s permission and get my fucking articles. I also need to confirm my twitter.” This page contains Use Evidence. In particular, the defendant references setting up Signal “from my cell”—which supports that the defendant was using Signal on the Samsung Phone—to confirm “anon’s permission”—which shows that the defendant was using the Anon Account to “get [his] fucking articles.” The defendant also made clear that he had created a Twitter account when he wrote “I also need to confirm my twitter.”

[snip]

The Samsung Phone: Although the Samsung Phone was not found in the defendant’s cell, the Government intends to show that it was one of the cellphones that the defendant used at the MCC through various pieces of evidence, including by comparing identifying information appearing on the Samsung Phone to one of the images taken by CW-1 of one of the cellphones the defendant used in prison. The Samsung Phone contains, among other things, evidence that Encrypted Email Accounts were accessed on the cellphone, but not the actual communications from those accounts. The Samsung Phone also contains the Signal Messages in which the defendant, among other things, pretended to be a third person and attempted to convince the Reporter that the user of one of the Encrypted Email Accounts with whom the Reporter was corresponding (but who was in fact the defendant) is a member of the online hacktivist group Anonymous who is trying to help the defendant.

The Encrypted Email Accounts: The Annon Account contains the defendant’s correspondence with the Reporter, including the September 2018 Emails that attached the classified Network Structure Document and the Protected Search Warrant. The other Encrypted Email Accounts also contain records related to the defendant’s use and control of the Social Media Accounts, such as, for example, email notifications when the defendant modified the Social Media Accounts.

If I understand all this correctly, not only did Schulte use a ProtonMail account claiming to be a member of Anonymous to send details of CIA’s network structure to Harris (one of the charged pieces of classified information), but also used it to try to get him to send Schulte the original copies of his blog posts. Schulte was pretending to be a member of Anonymous on ProtonMail and a member of his family on Signal. And Schulte documented that scheme in his notebook in some of the references that Schulte’s lawyers want to exclude (though which they don’t lay out in such a way to show how it glues everything Schulte was doing from jail together).

But there’s still one more reference of Anonymous, tying it directly to the content that Schulte wanted to release: the Malware of the Mind article that reportedly discussed what he did at CIA.

Identifying Malware of the Mind as Article 10 (014319): On this page, the defendant identifies the Malware Article as article 10: “I’m hoping to write /edit my 9 articles. I don’t know how I can them—oh I may text [the Reporter] from [my cousin’s] number. Omar claims that some service exists to do this – I’m dubious. [Redacted]. Although I feel this may not work either . . . IDK Basically on hold for my publication. Secondly, I want to rewrite article #10: Malware of the Mind!” After a line drawn on the page, the page also includes, among other things, the phrase “Anonymous,” and the phrase “classified information.” This entry includes Intent Evidence, in that it shows that the defendant plans to re-draft his articles, including the Malware Article. Furthermore, the defendant’s statement that he might text the Reporter from his cousin’s telephone number, thus continuing to conceal his identity during those communications, is Guilty Conscience Evidence. Finally, the defendant’s reference to “Anonymous” and “classified information” is consistent with the defendant’s claims in his Signal messages that Anonymous is seeking to help prove his innocence by providing information to the Reporter.

The defense claims all this is prejudicial because, “it suggests concerted activity of a type even more disturbing than what is charged.” Except, by claiming that Schulte planned to include instructions in a pro se motion that people other than Judge Crotty — people with access to WikiLeaks — might use go get the code he wrote from WikiLeaks, possibly to obtain emails of classified information suggests that may well be what Schulte was attempting.

The government and Schulte are also arguing over what measures the government can use to protect the identities of a slew of CIA witnesses who will testify. Schulte has good reason to complain. In past trials (Jeffrey Sterling’s trial is being cited as precedent), the government engaged in a great deal of theater to make CIA witnesses — including witnesses whose CIA tie had already been declassified, as some of the witnesses here have been — seem especially momentous. Some of that is undoubtedly going on here. But if the government believes (and this letter from his defense does nothing to rebut that belief) that Schulte is using every opportunity in his prosecution to leak more information, there’s actually a solid case for some of those measures.

As I disclosed in 2018, I provided information to the FBI in 2017. The government recently stated publicly that matters on which I shared information are related to Schulte. Aside from two press inquiries, I have not spoken with the government about Schulte.

Joshua Schulte Spoke Positively of Edward Snowden the Day Snowden Came Forward

Here I thought that Joshua Schulte’s lawyers had finally come up with a decent argument, that Paul Rosenzweig’s testimony would be pointless to prove that Schulte, in choosing to leak to WikiLeaks, intended to damage the US because the government would have to prove Schulte knew of WikiLeaks when he allegedly first stole the CIA documents in May 2016.

But after pointing out that Schulte’s lawyers already blew their chance to make that argument, in a response the government  then pointed out how bad this argument is: because Schulte’s lawyers have already admitted that, “of course, Mr. Schulte knew” about Chelsea Manning’s leaks.

As an initial matter, the defendant’s Reconsideration Motion directly contradicts the argument he made in his original motions in limine concerning Mr. Rosenzweig’s testimony. The defendant argues in the instant motion that Mr. Rosenzweig’s testimony should not be admitted because there is no evidence that the defendant knew of, for example, Chelsea Manning’s disclosures to WikiLeaks. In his original opposition to the Government’s motions in limine, however, the defendant argued the exact opposite:

Next, the government says that it intends to introduce evidence of Mr. Schulte’s “knowledge of [Ms.] Manning’s leak.” Gov. Res. 11. The release of documents by Ms. Manning was front page news in every major news publication for numerous days. Of course, Mr. Schulte knew about it; so did everyone else who picked up a newspaper. It is not clear what the expert would have to add to this information. (Dkt. 242 at 44).

Worse, the government lays out not just that Schulte wrote about both Manning’s leaks to WikiLeak and Edward Snowden’s leaks, but discloses that they intend to introduce those chats at trial.

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.”

Effectively, the government is going to show that Schulte — who like Snowden worked at both CIA and NSA (though in reverse order) — had decided the day that Snowden revealed himself that he hadn’t endangered someone.

I suggested in this post that the government appears to be preparing to use Schulte as an exemplar of an ongoing conspiracy, complete with their reliance on organized crime precedents.

[T]he government is preparing to argue that Schulte intended to harm the United States when he leaked these files to WikiLeaks, a stronger level of mens rea than needed to prove guilt under the Espionage Act (normally the government aims to prove someone should have known it could cause harm, relying on their Non-Disclosure Agreements to establish that), and one the government has, in other places, described as the difference between being a leaker and a spy.

To make that argument, the government is preparing to situate Schulte’s leaks in the context of prior WikiLeaks releases, in a move that looks conspicuously like the kind of ongoing conspiracy indictment one might expect to come out of the WikiLeaks grand jury, one that builds off some aspects of the existing Assange indictment.

That is, the government appears to be using Schulte to lay out their theory — rolled out in the wake of the Vault 7 leaks — that WikiLeaks is a non-state hostile intelligence service.

To be sure, there’s nothing in the least bit incriminating about talking about Snowden in real time. But it will make it a lot easier to hold Schulte accountable for leaking stuff in a far more damaging way in 2016 than Snowden did in 2013.

As I disclosed in 2018, I provided information to the FBI in 2017.

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 WikiLeaks Conspiracy: The Government Prepares to Argue WikiLeaks Has Always Been an Organized Crime Syndicate

Last June, I ran into some folks who remain very close to Julian Assange. One of them scheduled dinner with me solely to scold me for writing honestly about the things that WikiLeaks had done in the past three years rather than focusing exclusively on the EDVA Espionage indictment charging Assange for things he did almost a decade ago.

The person complained that my factual reporting on 2016 election and — especially — the Vault 7 leak (I think this was the offending post) would undercut whatever unanimity there was among journalists (unanimity that I joined) that the existing charges against Assange were a dangerous precedent for actual journalists. Reporting true details about shitty things Assange had done in recent years on my humble little blog, it was claimed, would dangerously and singlehandedly undercut Assange’s defense.

No, I did not much appreciate the irony of being criticized for accurate reporting by someone purportedly defending journalism.

But I also thought the concerted effort to suppress what Assange had done recently, while perhaps necessary to generate the statements of support from journalists that were forthcoming, was short-sighted, because it misrepresents what Assange is actually facing. The grand jury in EDVA remains (as far as we know) active. The government specifically said, in June, that it needed Chelsea Manning’s testimony for subjects or charges not yet charged and said such charges were not time barred (as would be true of any ongoing conspiracy).

As the government’s ex parte submissions reflect, Manning’s testimony remains relevant and essential to an ongoing investigation into charges or targets that are not included in the superseding indictment. See Gov’t’s Ex Parte Mem. (May 23, 2019). The offenses that remain under investigation are not time barred, see id., and the submission of the government’s extradition request in the Assange case does not preclude future charges based on those offenses, see Gov’t’s Supplement to Ex Parte Mem. (June 14, 2019).

Since then, Jeremy Hammond has joined Manning in believing he can wait out whatever EDVA has in store.

Most of all, Joshua Schulte’s prosecution for the Vault 7 leak — a leak almost no WikiLeaks supporters I know will offer an enthusiastic defense of — kept chugging along. In recent weeks, Schulte has submitted a number of questionable filings claiming the dog ate his homework so he can’t be prepared in time for his trial:

  • The attorney appointed after defense attorneys said they needed one more attorney to prep for trial in time said he couldn’t prep for trial in time, but can’t talk about why not until he’s done with a week-long vacation
  • The government’s (admittedly long) motion in limine repeating details the government disclosed several times before took the defense by surprise
  • The defense can’t make a constitutional challenge to CIPA generally until the judge rules on CIPA specifically (this is the one arguably reasonable request)
  • The defense had no idea the government wasn’t claiming Schulte downloaded a terabyte of data onto a thumb drive that can’t hold that terabyte even though the government told the defense that a year ago and then again in November

But as of now, Schulte’s trial is due to start on January 13, a month and a half before Assange’s first substantive extradition hearing starting on February 25.

And at that trial, the government is preparing to argue that Schulte intended to harm the United States when he leaked these files to WikiLeaks, a stronger level of mens rea than needed to prove guilt under the Espionage Act (normally the government aims to prove someone should have known it could cause harm, relying on their Non-Disclosure Agreements to establish that), and one the government has, in other places, described as the difference between being a leaker and a spy.

To make that argument, the government is preparing to situate Schulte’s leaks in the context of prior WikiLeaks releases, in a move that looks conspicuously like the kind of ongoing conspiracy indictment one might expect to come out of the WikiLeaks grand jury, one that builds off some aspects of the existing Assange indictment.

In a motion opposing Schulte’s effort to disqualify Paul Rosenzweig as an expert witness (see this post for background), the government lays out some of the things it plans to have Rosenzweig explain to the jury. Some of this is dangerous criminalization of security, most notably tying WikiLeaks’ endorsement of Tor and Tails to Schulte’s own use of it.

But some of it fleshes out the scope the government laid out when it first requested to call Rosenzweig.

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.

For example, it will tie WikiLeaks’ failure to redact the identities of US sources in Chelsea Manning’s leaks — something charged in counts 15 through 17 of Assange’s indictment — to Schulte’s behavior. It sounds like Rosenzweig will explain something I’ve alluded to: WikiLeaks apparently left the names of some of Schulte’s colleagues unredacted, which given WikiLeaks’ big show of redacting the files could only have been intentional and would have required coordination with Schulte to do.

Mr. Rosenzweig will testify that WikiLeaks does not typically redact the information that it publicly discloses (even when that information may reveal confidential sources). The Government will introduce evidence, however, that the Classified Information was purportedly redacted when posted online. Mr. Rosenzweig’s testimony will help the jury understand the significance of WikiLeaks’ unique claim to have redacted the Classified Information, including, for example, the period of delay between when Schulte disclosed the Classified Information to WikiLeaks (in or about the spring of 2016) and when WikiLeaks first announced that it would begin to disclose the Classified Information (in or about the spring of 2017). [my emphasis]

One reason Assange made a show of redacting the identities was because he was attempting to extort a pardon at the time, so he had to appear willing to negotiate with DOJ. But it seems likely Rosenzweig will explain that that was just a show and that even as WikiLeaks was making that show it was also ensuring that other CIA SysAdmins might be targeted by foreign governments.

Likewise, Rosenzweig will tie the embarrassment caused by Manning’s releases to Schulte’s own intent to cause damage with his self-described Information War against the US.

The Government intends to introduce evidence (including his statements) of Schulte’s knowledge of Manning’s leak and the need for the U.S. government to maintain secrecy over certain information. Furthermore, the Government also plans to introduce evidence of how Schulte, from the Metropolitan Correctional Center (the “MCC”), declared an “information war” against the United States, pursuant to which he intended to publicly disclose classified information and misinformation, including through WikiLeaks (such as the Fake FBI Document), for the purpose of destroying the United States’ “diplomatic relationships,” and encouraged other U.S. government employees to disclose confidential information to WikiLeaks. Mr. Rosenzweig will explain to the jury generally information other leakers have transmitted to WikiLeaks that the organization published and how foreign governments reacted negatively to WikiLeaks’ disclosure of that information—leading, for example, to the highly-publicized resignation of the U.S. Ambassador to Mexico.

Effectively, the government will argue that if you want to conduct an Information War on the US, you choose to leak to WikiLeaks and ensure it will be as damaging as possible. Whatever the circumstances of Manning’s leaks, this uses Schulte’s stated desire to damage the US to retroactively taint what WikiLeaks has claimed in the past was mere journalistic exposure of wrong-doing. That doesn’t necessarily change the First Amendment danger in charging Assange. But it surely attempts to undercut WikiLeaks’ brand as a journalistic entity.

Most interestingly, the government will point to a claim Schulte made to a journalist while writing from jail (one that is plausible given some of his past public postings, but if true, is an unfathomable indictment of CIA’s vetting process) that he once belonged to Anonymous. Rosenzweig will tie this to Anonymous’ decisions to leak the Stratfor cables to WikiLeaks in 2012.

As described in the Government Motions in Limine, in encrypted communications from one of the Contraband Cellphones, Schulte (posing as a third person) stated that he had previously been a member of Anonymous, a group of online hacker activists. Mr. Rosenzweig will testify about how, in 2012, Anonymous and WikiLeaks worked together to release information from a private U.S. intelligence firm.

Of course, Anonymous didn’t just leak the Stratfor cables to WikiLeaks. They also shared files stolen during the Arab Spring and the Syria files. The latter leak provides one of the earliest indicators where the process by which WikiLeaks obtained files may have involvement of Russia, because somehow a file that would have been very damning for Russia never got published. But both would make the story the US wants to tell more complex (though still potentially consistent).

In any case, the focus on Stratfor may explain why the government is holding Jeremy Hammond in contempt to try to get him to testify in the EDVA grand jury, particularly if the government has reason to believe that Schulte was part of that hack.

Finally, the government will use Rosenzweig to explain how, in the wake of the DNC leak and at a time he was in a huff at his CIA bosses again, Schulte did … something in August 2016.

The Government intends to introduce evidence that Schulte transmitted the Classified Information to WikiLeaks in the spring of 2016, that WikiLeaks did not begin to disclose the Classified Information until March 2017, that Schulte was angry with CIA management in August 2016 over a performance review he received, that Schulte’s protective order against Employee-1 was vacated in August 2016, and that, around that same time (i.e., in August 2016), Schulte began to conduct extensive research online about WikiLeaks. The Government intends to offer evidence relating to those searches, including the specific queries Schulte conducted. Schulte has argued in his writings that his August 2016 research was related to WikiLeaks’ August 2016 disclosure of information stolen from a Democratic National Committee server (the “DNC Leak”). Mr. Rosenzweig will testify about the DNC Leak, including the type of information that WikiLeaks actually disclosed in connection with that leak, which will demonstrate why Schulte’s WikiLeaksrelated searches include queries that had nothing to do with the DNC Leak

Side note: Part of the media blitz Assange did in the wake of the DNC leaks included a claim to Chuck Todd that if WikiLeaks ever received information from US intelligence, they would publish it.

Well, it’s a meta story. If you’re asking would we accept information from U.S. intelligence that we had verified to be completely accurate, and would we publish that, and would we protect our sources in U.S. intelligence, the answer is yes, of course we would.

No one else would have, but Schulte would presumably have recognized this as a nod to him, reassurance provided on heavily watched TV that WikiLeaks was progressing towards releasing the files Schulte had leaked. Which is why the likelihood that Schulte also stole a single file reflecting CIA collecting information on who might win the 2012 French presidential election, which WikiLeaks subsequently falsely portrayed as proof that CIA had infiltrated political parties in France rather than asked well-placed sources for readily available information, is of particular interest.

The government, however, is going to point to other Google searches by Schulte from August 2016 that lump Edward Snowden and Shadow Brokers in with WikiLeaks.

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.

I have long wondered whether Vault 7 was not a free-standing leak but instead part of the Shadow Brokers operation.  This seems to suggest the government knows they are. If that’s right, it would suggest that in the period when the government was trying to figure out precisely what Russia had done in 2016, both the NSA and CIA’s ability to spy on Russia (and other countries) would have been been deliberately burnt to the ground. And if Schulte knowingly participated in that — in an effort to ensure that the US would struggle to even learn what Russia had done in 2016 — it would explain why they’re planning on arguing he is more of a spy than a leaker.

Which would, in turn, explain why they took the first steps towards arresting Assange as FBI started putting together the evidence needed to charge Schulte on these leaks in 2017.

Let me be clear: I’m not saying I’m sure they’ll fill all these details in a superseding Assange indictment (though the government said it could not provide Assange the underlying evidence even for the 2010 charges until around Christmas — at which point Schulte will have gone through the CIPA process of declassifying classified information for use in his defense, and they could add charges at least until the February 25 hearing). It may still be that the government won’t want to get into the level of classified detail they’d need to to flesh out that case, particularly if they can’t coerce Manning and Hammond to cooperate.

I’m also not making a normative judgment that this eliminates the very real problems with the way Assange is charged now. Without seeing the government’s case, it’s too soon to tell.

What I’m trying to do is lay out what the government seems to be preparing to argue about WikiLeaks in the Schulte case. No doubt this will get me invited for another stern scolding at dinner, but it’s time to stop pretending Assange is being prosecuted for the understanding of WikiLeaks that existed in 2010. By all means, people can and will still defend Assange for taking on an imperialist America. For much of the world (though presumably not among any Five Eyes governments, including Assange’s home country), that still makes him an important dissident taking on a superpower. There is some merit to that stance, but it also requires arguing that superpowers shouldn’t have democratic elections.

But the government is preparing to argue that, after helping Russia tamper in America’s election, WikiLeaks deliberately burned some of CIA’s collection abilities to the ground, making it harder for the US to figure out how Russia did so. The government is preparing to argue that such actions are consistent with what WikiLeaks has been up to since 2010.

I’ve been expecting we might see an indictment alleging WikiLeaks and its associates were and remain engaged in an ongoing conspiracy (a possibility that, if Manning and Hammond’s lawyers haven’t warned them about, they are being utterly negligent, because the government could well argue that obstructing this investigation by refusing to provide immunized testimony is an overt act furthering the conspiracy).

The citations the government has used to justify Rosenzweig’s testimony are heavily focused on terrorism and mob cases (United States v. Farhane and United States v. Mustafa, which are al Qaeda cases; United States v. El Gammal, which is an ISIL one, and United States v. Rahimi, the self-radicalized Chelsea bomber; United States v. Lombardozzi and United States v. Locascio which are Gambino cases, United States v. Amuso, a Lucchese case), including one RICO case. That’s undoubtedly why Schulte’s lawyers really want Rosenzweig’s testimony excluded, to avoid having WikiLeaks treated like an organized crime syndicate.

But if the government is preparing to claim that WikiLeaks worked with Schulte not only to obtain files it tried to use to extort a pardon but then released them in a way that would hurt America’s efforts to respond to Russia’s 2016 operation, that’s a pretty compelling analogy.

Update: After comments from Stefania Maurizi, I’ve rephrased how I described what happened with the Syria Files. I want to be clear the statement in the post was not based on what I’ve been told by reliable sources about the process by which those files got shared with WikiLeaks.

As I disclosed last year, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post.