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Julian Assange’s First Witness, Journalism Professor Mark Feldstein, Professes to Be Unfamiliar with the Public Record on Assange

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The first day of the Julian Assange extradition hearing was a predictable circus.

Assange’s lawyers tried two legal tactics.

First, they tried to get parts of the second superseding indictment excluded from the proceedings. They claimed they hadn’t had time to review it with Assange. While I’m sympathetic to the difficulties imposed by Assange’s imprisonment amid COVID measures, WikiLeaks supporters have at the same time been (correctly) complaining that the documents on which the new allegations are based have been public for some time.

In any case, it didn’t work. Judge Vanessa Baraister said that she had offered Assange the opportunity to raise this complaint in the last hearing.

Judge Baraister similarly rejected a bid to delay the hearing until January (not incidentally the period when, if a Trump pardon for Assange would be forthcoming, it would take place), on largely the same basis.

Next, Professor Mark Feldstein — a journalism professor at University of Maryland — tried to present his testimony. Technical problems forced Baraister to delay proceedings until tomorrow.

That has left the public with copies of Feldstein’s prepared testimony and a supplement before he has the opportunity to present it and lawyers for the US to grill him in response. That may be unfortunate, because Feldstein’s original testimony has some key errors and omissions, and in his supplement he professes a lack of familiarity with the public record in this case.

Let me be clear: I wholeheartedly agree with large swaths of Professor Feldstein’s testimony. Donald Trump has waged unprecedented attacks on members of the news media, both verbally and through policy. I agree, too, that the First Amendment is not limited to journalists, and that political advocacy like Assange’s has a storied place in the history of journalism. I agree that some of the stories based off Chelsea Manning’s leaks were blockbusters (Feldstein predictably starts by listing Collateral Murder, which is not charged, and his effort to include all the files that were charged strays much further from the ones that have been most important.) His history of classified leaks is useful, though in some places he seems to misunderstand what was new and what wasn’t revealed until the release of declassified documents. His statement speaks at length about the dire problem with overclassification (though in one case, he cites a John McCain accusation about Obama’s motive for leaking as fact, a claim that hasn’t held up to subsequent events; he later cites McCain as a classification villain). I even agree with some, though not all, of his analysis of how the charges against WikiLeaks threaten normal journalistic activities like soliciting, receiving, and publishing documents, and protecting confidential sources. (Feldstein never goes so far as to defend helping a source hack something.) His testimony is valuable for the background on journalism it offers.

But Feldstein’s account of how the Assange prosecution arose out of Donald Trump’s election — which occurred with Assange’s help!!! — not only invents claims he doesn’t support, but makes several telling errors in citation.

Donald Trump’s election changed the calculus. The month after his inauguration, the president met with FBI director James Comey and brought up the issue of plugging leaks. Comey suggested “putting a head on a pike as a message” and Trump recommended “putting reporters in jail.”83 Three days later, he instructed his attorney general to investigate “criminal leaks” of “fake” news reports that had embarrassed the White House.84 According to press accounts, the new administration soon “unleashed an aggressive campaign” against Assange. CIA director Mike Pompeo publicly attacked WikiLeaks as a “hostile intelligence service” that uses the First Amendment to “shield” himself from “justice.” In private, he briefed members of Congress on a bold counterintelligence operation the agency was conducting that included the possible use of informants, penetrating overseas computers, and even trying to directly “disrupt” WiliLeaks, a move that made some lawmakers uncomfortable.85 A week later, Attorney General Jeff Sessions said at a news conference that journalists “cannot place lives at risk with impunity,” that prosecuting Assange was a “priority” for the new administration, and that if “a case can be made, we will seek to put some people in jail.” 86 The new leaders at the Justice Department dismissed their predecessors’ interpretation that Assange was legally indistinguishable from a journalist and reportedly began “pressuring” their prosecutors to outline an array of potential criminal charges against him, including espionage. Once again, career professionals were said to be “skeptical” because of the First Amendment issues involved and a “vigorous debate” ensued. 87 Two prosecutors involved in the case, James Trump and Daniel Grooms, reportedly argued against charging Assange.88 But in April of 2019, Assange was arrested in London—even though “the Justice Department did not have significant evidence or facts beyond what the Obama-era officials had when they reviewed the case.”89

83 Abramson, “Comey’s wish for a leaker’s ‘head on a pike.’”

84 “Remarks by President Trump in Press Conference,” WH.gov (Feb. 16, 2017); Charlie Savage and Eric Lichtblau, “Trump Directs Justice Department to Investigate ‘Criminal Leaks,’” New York Times (Feb. 16, 2017); Barnes, et al, “How the Trump Administration Stepped up Pursuit of WikiLeaks’ Assange.”

85 CIA, “Director Pompeo Delivers Remarks at CSIS” (April 13, 2017): www.cia.gov/news-information/speechestestimony/2017-speeches-testimony/pompeo-delivers-remarks-at-csis.html.

86 “Sessions Delivers Remarks,” Justice.gov. [sic]

87 Matt Zapotosky and Ellen Nakashima, “Justice Department debating charges against WikiLeaks members,” Washington Post (April 20, 2017); Adam Goldman, “Justice Department Weighs Charges Against Julian Assange,” New York Times (April 20, 2017).

88 Devlin Barrett, Matt Zapotosky and Rachel Weiner, “Some federal prosecutors disagreed with decision to charge Assange under Espionage Act,” Washington Post (May 24, 2019). 89 Barrett, et al, “Prosecutors Disagreed.”

The first citation (83) is to a 2018 story on Jim Comey’s memos memorializing conversations about leaks damaging to Trump, not WikiLeaks. The second (84) refers to an effort to go after those who damaged Trump. The next three sentences are attributed to Mike Pompeo’s designation of WikiLeaks as a non-state hostile actor in April 2017 (85), in the wake of the Vault 7 leaks, but two of those sentences (bolded) are not actually sourced to Pompeo’s comments, but instead to news accounts not specified in the relevant footnote. The next sentence combines what Jeff Sessions said on April 20, 2017 and what he said on August 4, 2017; perhaps Feldstein aims to cover that up by not including a date or a citation in the remarks in question (see footnote 86; Sessions’ April 20 comments don’t appear to be on the DOJ website), but suggesting Sessions’ August comments were about Assange is a move that WikiLeaks has made elsewhere. Importantly, Feldstein does not footnote one of the most widely cited reports of that April 20 speech, a CNN report that describes what changed, already in 2017, since DOJ had earlier decided not to prosecute Assange.

The US view of WikiLeaks and Assange began to change after investigators found what they believe was proof that WikiLeaks played an active role in helping Edward Snowden, a former NSA analyst, disclose a massive cache of classified documents.

[snip]

US intelligence agencies have also determined that Russian intelligence used WikiLeaks to publish emails aimed at undermining the campaign of Hillary Clinton, as part of a broader operation to meddle in the US 2016 presidential election. Hackers working for Russian intelligence agencies stole thousands of emails from the Democratic National Committee and officials in the Clinton campaign and used intermediaries to pass along the documents to WikiLeaks, according to a public assessment by US intelligence agencies.

That is, if Feldstein had reviewed the press coverage more broadly, he would have a ready explanation for why DOJ began to rethink its earlier decision not to charge Assange.

Assange’s own filing may attempt to cover for Feldstein’s citation inaccuracy, claiming that Feldstein cited that April WaPo story rather than ““Sessions Delivers Remarks,” Justice.gov”.

Then came the political statement of Attorney General Sessions on 20 April 2017 that the arrest of Julian Assange was now a priority and that ‘if a case can be made, we will seek to put some people in jail’ [Feldstein quoting Washington Post article of Ellen Nakashima, tab 18, p.19].

But even that April 20, 2017 WaPo article he claims to rely on doesn’t help him. In fact, it disputes Feldstein’s account of Trump’s animus towards WikiLeaks.

Trump has had a fluid relationship with WikiLeaks, depending largely on how the group’s actions benefited or harmed him. On the campaign trail, when WikiLeaks released Podesta’s hacked emails, Trump told a crowd in Pennsylvania, “I love WikiLeaks!” But when it came to the release of the CIA tools, he did not seem so pleased.

“In one case, you’re talking about highly classified information,” Trump said at a news conference earlier this year. “In the other case, you’re talking about John Podesta saying bad things about the boss.”

The actual words cited in part to the WaPo in Feldstein’s testimony (naming Ellen Nakashima, not Matt Zapotosky) don’t appear in the April story but in the NYT story cited. The rest relies on a [Devlin Barret and] Zapotosky story fairly obviously sourced to prosecutor James Trump, whom Zapotosky covered in the Jeffrey Sterling case and other EDVA cases but who — the story admits — wasn’t on the team anymore even when Assange was originally charged (presumably meaning December 2017 on just a CFAA charge that would accord with AUSA Trump’s concerns about an Espionage charge), and who would therefore have no visibility into what went into the May 2018 superseding indictment of Assange, much less the one on the table now.

In short, a key paragraph in Feldstein’s testimony, which is cited repeatedly in both Assange’s briefs on the case (one, two), is a scholarly shit-show.

And that’s before you consider the chronology of it, omitting as it does the Vault 7 leak which all the Assange-specific comments were responding to, which started on March 7, 2017.

That’s not the only problem with Feldstein’s citations. Feldstein also footnotes a claim that Assistant Attorney General for DOJ’s National Security Division John Demers, “declared that ‘Julian Assange is no journalist’ and thus not protected under the free press clause of the US Constitution’s First Amendment” with a citation to news reports on the indictment, rather than the remarks as prepared rolling out the indictment. While the story from Charlie Savage that Feldstein cites responsibly quotes Demers in context, the full statement makes it clear that it’s not only not a comment directly about the First Amendment, but that Demers never mentions the First Amendment.

The Department takes seriously the role of journalists in our democracy and we thank you for it. It is not and has never been the Department’s policy to target them for their reporting.

Julian Assange is no journalist. This made plain by the totality of his conduct as alleged in the indictment—i.e., his conspiring with and assisting a security clearance holder to acquire classified information, and his publishing the names of human sources.

Indeed, no responsible actor—journalist or otherwise—would purposely publish the names of individuals he or she knew to be confidential human sources in war zones, exposing them to the gravest of dangers.

This continues WikiLeaks’ longstanding effort to suggest the government has made First Amendment claims about Assange that obscure what they have actually said. (AUSA Gordon Kromberg does appear to have addressed the First Amendment in ways WikiLeaks has claimed that others have, but his affidavit is not yet public.)

While Kromberg’s testimony is not yet public, in one of the government’s filings made public today, the government hints at what Kromberg may have said at more length, noting that Feldstein only cites part of — but not the entirety — of a news report on Assange.

The principal evidence upon which the defence relies to demonstrate the existence of a such a decision is a newspaper article dated 25 November 2013 [Sari Horowitz, “Julian Assange is unlikely to face US Charges over publishing classified documents”, Washington Post]; Cited by Professor Feldstein at §9 page 18. 39.

Professor Feldstein omits important sections of the report upon which he relies to demonstrate a “decision” not to prosecute:

“The officials stressed that a formal decision has not been made, and a grand jury investigating WikiLeaks remains impaneled, but they said there is little possibility of bringing a case against Assange, unless he is implicated in criminal activity other than releasing online top-secret military and diplomatic documents.

And:

“WikiLeaks spokesman Kristinn Hrafnsson said last week that the anti-secrecy organization is skeptical “short of an open, official, formal confirmation that the U.S. government is not going to prosecute WikiLeaks.” Justice Department officials said it is unclear whether there will be a formal announcement should the grand jury investigation be formally closed”.

So, in response to Kromberg, Feldstein dug himself a very much deeper hole.

In a supplemental filing, Assange expert witness Mark Feldstein claimed and exhibited that he’s not familiar with the public record (though he cleaned up some of his prior citation errors). In it, he claimed the only way to know the truth about the Assange prosecution would be from leaks of grand jury or White House documents. “[T]he reporting I cited by the New York Times and Washington Post is to date the only public source of information about the behind-the-scenes maneuvering to prosecute Assange,” he claimed in a filing submitted on July 5, 2020.

The government insists that the Trump administration’s prosecution of Assange is not politically motivated. It dismisses my contrary conclusion—and that of other expert witnesses—by saying that we “primarily rely on a select number of news articles…and the hearsay within them.”

Indeed, my declaration relied on news accounts that the Obama administration decided not to prosecute Assange because of concerns that doing so would violate the First Amendment. 2 In particular, I cited comments that Matthew Miller, the former spokesman for the Obama Justice Department, made in an interview with the Washington Post: “The problem the department has always had in investigating Julian Assange is there is no way to prosecute him for publishing information without the same theory being applied to journalists. And if you’re not going to prosecute journalists for publishing classified information, which the department is not, then there is no way to prosecute Assange.” The Post reported that prosecutors called this the “New York Times problem”—that if they indicted Assange for publishing the documents leaked by Chelsea Manning, then they would also have to also indict the New York Times for doing the same.3

I also noted that the Trump administration decide to reject this interpretation and cited a New York Times report that its new appointees running the Justice Department began “pressuring” prosecutors to indict Assange, although two career prosecutors argued against doing so on First Amendment grounds. I also cited the article’s finding that “the Justice Department did not have significant evidence or facts beyond what the Obama-era officials had when they reviewed the case”4 and concluded that the decision to indict Assange was not an evidentiary decision but a political one.5

As the government knows, internal prosecutorial deliberations are not a matter of public record. White House and Justice Department documents that would shed further light on the political dimensions of the case—emails, internal memos, grand jury transcripts, and other records—are kept secret by the government. Thus, the reporting I cited by the New York Times and Washington Post is to date the only public source of information about the behind-the-scenes maneuvering to prosecute Assange.

Like so much other questionable conduct by the Trump administration, revelations about the unorthodox nature of this prosecution came to light only because of the vigilance of a free and vigorous press.

1 Gordon D. Kromberg, “Declaration in Support of Assange Extradition,” US v. Assange (Jan. 17, 2020), ¶18-19, pp. 8- 9.

You have got to be fucking kidding me!!

I invite Professor Feldstein to assign his undergraduate journalism students with the task of trying to discover any Trump, White House, and National Security views about WikiLeaks and Julian Assange that might explain why DOJ decided not to prosecute in 2013 but did prosecute in 2017, 2019, and 2020.

His first year undergraduate students might note the proximity between the April 2017 Assange-related announcements (the Jeff Sessions of which he obscures with his dodgy citation) and the release of the Vault 7 files in March 2017, which burned the CIA hacking ability to the ground.

They also might point to Trump’s tweets celebrating WikiLeaks to suggest that while Trump might hate the traditional press, he spent most of the 2016 campaign celebrating WikiLeaks.

Feldstein’s second year undergraduate students might look to the obvious places — like the Mueller Report — for some views about how Trump ordered campaign staff to go chase down WikiLeaks’ releases. Not only do the descriptions completely undermine Feldstein’s claim that Trump treats WikiLeaks like he does traditional media outlets, but it shows that the Department of Justice conducted an extensive investigation implicating WikiLeaks after the 2013 Matthew Miller quote he relies on. Indeed, exceptional sophomores might note that a redaction error in the Mueller Report makes it clear that a Mueller prosecutorial decision about foreign donations pertains to WikiLeaks, a detail released in 2019 that James Trump would not have been privy to.

Junior year journalism students might refer to the Stone trial testimony to see what it said about Trump’s relationship with WikiLeaks. Really astute journalism students would note that Randy Credico testified that Donald Trump’s rat-fucker Roger Stone actually reached out to Randy Credico in an effort to broker a pardon for Assange.

Q. Had you put Mr. Stone directly in touch with Ms. Kunstler after the election?

A. Yes, I did.

Q. And why had you done that?

A. Well, sometime after the election, he wanted me to contact Mrs. Kunstler. He called me up and said that he had spoken to Judge Napolitano about getting Julian Assange a pardon and needed to talk to Mrs. Kunstler about it. So I said, Okay. And I sat on it. And I told her–I told her–she didn’t act on it. And then, eventually, she did, and they had a conversation.

The same astute budding journalists might look at the trial record and discover how long those pardon discussions lasted — continuing well past the time Mike Pompeo and Jeff Sessions were discussing prosecuting journalists and/or Assange.

Senior journalism students might even tie that testimony to a question Robert Mueller asked — but didn’t really get an answer about — regarding whether Trump had considered an Assange pardon.

Donald Trump refused to answer a question under oath about whether he considered pardoning Julian Assange during the transition period between when WikiLeaks releases helped get him elected and his inauguration, something that makes it pretty clear the President treats WikiLeaks and Assange, which helped him get elected, differently than he does journalists who did not.

Professor Feldstein says he’d need a leak to discover that.

There’s a slew more that graduate students might discover but that Feldstein professed to be helpless to discover himself, such as the warrant that makes it clear Stone reached out to WikiLeaks lawyer Margaret Kunstler — to discuss an Assange pardon, WikiLeaks supporter Randy Credico testified to under oath — seven days after Trump got elected.

Or the other Stone warrant making it clear that after several of the media reports Feldstein relies on, Mueller’s team was just beginning to obtain warrants implicating Assange, in part for election-related crimes that have nothing to do with the Espionage Act. Or yet another that suggests DOJ was investigating WikiLeaks, in part, for conspiracy and Foreign Agent charges in August 2018.

Diligent journalism students — budding journalists not intimidated by redaction marks — might even look to the multiple SSCI Reports that address the government’s evolving understanding of WikiLeaks, particularly those that show how the many conflicting views in 2016 came to change to believe that WikiLeaks had been coopted by Russia.

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

Here, in public view, is indication that not just DOJ but the entire Intelligence Community came to shift their view of WikiLeaks and Assange as they investigated how Russia had attacked US democracy in 2016. But Mark Feldstein testified in his supplemental testimony that he could only discover that if someone leaked it to him.

Finally, Feldstein’s students might seek to understand the workings of a grand jury from the same place journalists always have, from those called to testify before them. Had they done so, they would at a minimum discover the Jeremy Hammond description of how he refused to testify for what would be the last superseding indictment against Assange, in which he described prosecutors twice claiming (without evidence) that 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.”

The claims of a prosecutor as he’s trying to coerce testimony don’t affirm the veracity of the claim. Hammond’s claims in no way prove that Assange is a Russian spy or even that DOJ believes he is. But it does indicate what DOJ’s then-current claims were, in March 2020, before the most recent superseding indictment against Assange. They would indicate that the prosecutors asking for the extradition of Julian Assange claim to believe he is a Russian spy.

There is an embarrassment of public documents describing how the US government’s view of Assange changed between 2013 and 2020, as well as plenty that show DOJ was obtaining new legal process well after DOJ decided not to prosecute Assange. That doesn’t mean their view is correct or that it in any way mitigates the risk to journalism. But it does mean their view is discoverable by anyone who wants to check the public record.

And yet journalism Professor Mark Feldstein professes to be helpless to explain why DOJ charged Assange in 2017 and 2019 and 2020 but not in 2013, not unless someone leaks to him what DOJ and Trump and the rest of the US government were really thinking. And so instead, he offered a paragraph that falls apart completely if you simply read his source material, to say nothing of the public record.

Feldstein gives himself a bit of an excuse by claiming that his scholarly statement doesn’t address what happened after 2011 (a focus that may come from WikiLeaks’ lawyers — recall that someone close to Assange scolded me for reporting accurately on what WikiLeaks had done in 2016 and afterwards).

It should be noted that this report addresses only WikiLeaks disclosures in 2010-2011, the time period when Assange is accused of violating the Espionage Act; it does not discuss the website’s previous or subsequent document releases.

But you can’t claim to provide expert testimony about what DOJ was doing in 2017 without considering what WikiLeaks had done in the interim, and how that might change investigative tactics and conclusions (and did, in fact, lead DOJ to reconsider the evidence they had).

The record shows that — far from treating Assange with the disdain Trump harbored towards traditional journalists — Trump’s close associates entertained numerous discussions about pardons, and Trump himself refused to deny that under oath to Mueller. It further shows that the targeting of Wikileaks immediately followed the Vault 7 leaks burned the CIA’s hacking capacity to the ground (a prosecution that Trump himself almost blew up hours before the FBI confiscated Schulte’s passports). Finally, there is an abundance of evidence discoverable in the public record by any diligent journalism student that the understanding of WikiLeaks significantly evolved after the decisions not to charge Assange in 2013, in part because a national security investigation sought to figure out how badly Russians had tampered in our election, and in part because Trump got all kinds of help in the election from foreigners (including Assange).

Mark Feldstein claims in his expert testimony that what is happening to Julian Assange is just part of Trump’s larger assault on the press.

Seen in this light, the administration’s prosecution of Julian Assange is part and parcel of its campaign against the news media as a whole. Indeed, Assange’s criminal indictment under the US Espionage Act is arguably its most important action yet against the press, with potentially the most far-reaching consequences.

But he makes that claim while also admitting zero familiarity about the public record concerning Assange which shows the opposite.

The Julian Assange prosecution presents serious risks to journalism. But none of those excuse shoddy journalism — a failure to even consult the public, official record — in support of his case. That’s what Assange’s first witness is planning to do.

Update: Cleaned up the post and fixed a date.

The US Government Formed a New Understanding of WikiLeaks after 2016

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

I view the proceeding with great ambivalence.

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

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

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

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

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

[snip]

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Update: Fixed date of a Mueller warrant I discussed.

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

The Growing WikiLeaks Conspiracy [Indictment]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Government Argues that Edward Snowden Is a Recruiting Tool

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As I noted in my post on the superseding indictment against Julian Assange, the government stretched the timeline of the Conspiracy to Hack count to 2015 by describing how WikiLeaks helped Edward Snowden flee to Russia. DOJ seems to be conceiving of WikiLeaks’ role in helping Snowden as part of a continuing conspiracy designed to recruit more leakers.

Let me make clear from the onset: I am not endorsing this view, I am observing where I believe DOJ not only intends to head with this, but has already headed with it.

Using Snowden as a recruitment tool

After laying out how Chelsea Manning obtained and leaked files that were listed in the WikiLeaks Most Wanted list (the Iraq Rules of Engagement and Gitmo files, explicitly, and large databases more generally; here’s one version of the list as entered into evidence at Manning’s trial), then describing Assange’s links to LulzSec, the superseding Assange indictment lays out WikiLeaks’ overt post-leak ties and claimed ties to Edward Snowden.

83. In June 2013, media outlets reported that Edward J. Snowden had leaked numerous documents taken from the NSA and was located in Hong Kong. Later that month, an arrest warrant was issued in the United States District Court for the Eastern District of Virginia, for the arrest of Snowden, on charges involving the theft of information from the United States government.

84. To encourage leakers and hackers to provide stolen materials to WikiLeaks in the future, ASSANGE and others at WikiLeaks openly displayed their attempts to assist Snowden in evading arrest.

85. In June 2013, a WikiLeaks association [Sarah Harrison, described as WLA-4 in the indictment] traveled with Snowden from Hong Kong to Moscow.

86. On December 31, 2013, at the annual conference of the Chaos Computer Club (“CCC”) in Germany, ASSANGE, [Jacob Appelbaum] and [Harrison] gave a presentation titled “Sysadmins of the World, Unite! A Call to Resistance.” On its website, the CCC promoted the presentation by writing, “[t]here has never been a higher demand for a politically-engaged hackerdom” and that ASSANGE and [Appelbaum] would “discuss what needs to be done if we re going to win.” ASSANGE told the audience that “the famous leaks that WikiLeaks has done or the recent Edward Snowden revelations” showed that “it was possible now for even a single system administrator to … not merely wreck[] or disabl[e] [organizations] … but rather shift[] information from an information apartheid system … into the knowledge commons.” ASSANGE exhorted the audience to join the CIA in order to steal and provide information to WikiLeaks, stating, “I’m not saying doing join the CIA; no, go and join the CIA. Go in there, go into the ballpark and get the ball and bring it out.”

87. At the same presentation, in responding to the audience’s question as to what they could do, [Appelbaum] said “Edward Snowden did not save himself. … Specifically for source protection [Harrison] took actions to protect [Snowden] … [i]f we can succeed in saving Edward Snowden’s life and to keep him free, then the next Edward Snowden will have that to look forward to. And if look also to what has happened to Chelsea Manning, we see additionally that Snowden has clearly learned….”

The following section describes how, “ASSANGE and WikiLeaks Continue to Recruit,” including two more paragraphs about the Most Wanted Leaks:

89. On May 15, 2015, WikiLeaks tweeted a request for nominations for the 2015 “Most Wanted Leaks” list, and as an example, linked to one of the posts of a “Most Wanted Leaks” list from 2009 that remained on WikiLeaks’s website.

[snip]

92. In June 2015, to continue to encourage individuals to hack into computers and/or illegaly obtain and disclose classified information to WikiLeaks, WikiLeaks maintained on its website a list of “The Most Wanted Leaks of 2009,” which stated that documents or materials nominated to the list must “[b]e likely to have political, diplomatic, ethical or historical impact on release … and be plausibly obtainable to a well-motivated insider or outsider,” and must be “described in enough detail so that … a visiting outsider not already familiar with the material or its subject matter may be able to quickly locate it, and will be motivated to do so.”

Effectively, Snowden is included in this indictment not because the government is alleging any ties between Snowden and WikiLeaks in advance of his leaks (Snowden’s own book lays out reasons to think there was more contact between him and Appelbaum than is publicly known, but the superseding Assange indictment makes no mention of any contacts before Snowden’s first publications), but because WikiLeaks used their success at helping Snowden to flee as a recruiting pitch.

Snowden admits Harrison got involved to optimize his fate

This is something that Snowden lays out in his book. First, he addresses insinuations that Assange only helped Snowden out of selfish reasons.

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

This passage is written to suggest Snowden believed these things at the time, describing what “seemed” to be true at the time. But it’s impossible to separate it from Appelbaum’s explicit comparison of Manning and Snowden at CCC in December 2013.

Snowden then describes what he thinks Harrison’s motive was.

By her own account, she was motivated to support me out of loyalty to her conscience more than to the ideological demands of her employer. Certainly her politics seemed shaped less by Assange’s feral opposition to central power than by her own conviction that too much of what passed for contemporary journalism served government interests rather than challenged them.

Again, this is written to suggest Snowden believed it at the time, though it’s likely what he has come to believe since.

Then Snowden describes believing, at that time, that Harrison might ask for something in exchange for her help — some endorsement of WikiLeaks or something.

As we hurtled to the airport, as we checked in, as we cleared passport control for the first of what should have been three flights, I kept waiting for her to ask me for something—anything, even just for me to make a statement on Assange’s, or the organization’s, behalf. But she never did, although she did cheerfully share her opinion that I was a fool for trusting media conglomerates to fairly guard the gate between the public and the truth. For that instance of straight talk, and for many others, I’ll always admire Sarah’s honesty.

Finally, though, Snowden describes — once the plane entered into Chinese airspace and so narratively at a time when there was no escaping whatever fate WikiLeaks had helped him pursue — asking Harrison why she was helping. He describes that she provided a version of the story that WikiLeaks would offer that December in Germany: WikiLeaks needed to be able to provide a better outcome than the one that Manning suffered.

It was only once we’d entered Chinese airspace that I realized I wouldn’t be able to get any rest until I asked Sarah this question explicitly: “Why are you helping me?” She flattened out her voice, as if trying to tamp down her passions, and told me that she wanted me to have a better outcome. She never said better than what outcome or whose, and I could only take that answer as a sign of her discretion and respect.

Whatever has been filtered through time and (novelist-assisted) narrative, Snowden effectively says the same thing the superseding indictment does: Assange and Harrison went to great lengths to help Snowden get out of Hong Kong to make it easier to encourage others to leak or hack documents to share with WikiLeaks. I wouldn’t be surprised if these excerpts from Snowden’s book show up in any Assange trial, if it ever happens.

Snowden’s own attempt to optimize outcomes

Curiously, Snowden did not say anything in his book about his own efforts to optimize his outcome, which is probably the most interesting new information in Bart Gellman’s new book, Dark Mirror (the book is a useful summary of some of the most important Snowden disclosures and a chilling description of how aggressively he and Askhan Soltani were targeted by foreign governments as they were reporting the stories). WaPo included the incident in an excerpt, though the excerpt below is from the book.

Early on in the process, Snowden had asked Gellman to publish the first PRISM document with a key, without specifying what key it was. When WaPo’s editors asked why Gellman’s source wanted them to publish a key, Gellman finally asked.

After meeting with the Post editors, I remembered that I could do an elementary check of the signature on my own. The result was disappointing. I was slow to grasp what it implied.

gpg –verify PRISM.pptx.sig PRISM.pptx

gpg: Signature made Mon May 20 14:31:57 2013 EDT

using RSA key ID ⬛⬛⬛⬛⬛⬛⬛⬛

gpg: Good signature from “Verax”

Now I knew that Snowden, using his Verax alter ego, had signed the PowerPoint file himself. If I published the signature, all it would prove to a tech-savvy few was that a pseudonymous source had vouched for his own leak. What good would that do anyone?

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

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

Alarm gave way to vertigo. I forced myself to reread the passage slowly. Snowden planned to seek the protection of a foreign government. He would canvass diplomatic posts on an island under Chinese sovereign control. He might not have very good choices. The signature’s purpose, its only purpose, was to help him through the gates.

How could I have missed this? Poitras and I did not need the signature to know who sent us the PRISM file. Snowden wanted to prove his role in the story to someone else. That thought had never occurred to me. Confidential sources, in my experience, did not implicate themselves—irrevocably, mathematically—in a classified leak. As soon as Snowden laid it out, the strategic logic was obvious. If we did as he asked, Snowden could demonstrate that our copy of the NSA document came from him. His plea for asylum would assert a “well-founded fear of being persecuted” for an act of political dissent. The U.S. government would maintain that Snowden’s actions were criminal, not political. Under international law each nation could make that judgment for itself. The fulcrum of Snowden’s entire plan was the signature file, a few hundred characters of cryptographic text, about the length of this paragraph. And I was the one he expected to place it online for his use.

Gellman, Poitras, and the Post recognized this would make them complicit in Snowden’s flight and go beyond any journalistic role.

After some advice from WaPo’s lawyers, Gellman made it clear to Snowden he could not publish the key (and would not have, in any case, because the slide deck included information on legitimate targets he and the WaPo had no intent of publishing).

We hated the replies we sent to Snowden on May 26. We had lawyered up and it showed. “You were clear with me and I want to be equally clear with you,” I wrote. “There are a number of unwarranted assumptions in your email. My intentions and objectives are purely journalistic, and I will not tie them or time them to any other goal.” I was working hard and intended to publish, but “I cannot give you the bottom line you want.”

This led Snowden to withdraw his offer of exclusivity which — as Gellman tells the story — is what led Snowden to renew his efforts to work with Glenn Greenwald. The aftermath of that decision led to a very interesting spat between Gellman and Greenwald — to read that, you should buy the book.

To be clear, I don’t blame Snowden for planning his first releases in such a way as to optimize the chances he wouldn’t spend the rest of his life in prison. But his silence on the topic in his own account, even while he adopted the WikiLeaks line about their goal of optimizing his outcome, raises questions about any link between Harrison’s plans and Snowden’s.

The government is using Snowden as inspiration in other cases

The superseding Assange indictment is the first place I know of where the government has specifically argued that WikiLeaks’ assistance to Snowden amounted to part of a criminal conspiracy (though it is totally unsurprising and I argued that it was clear the government was going there based on what they had argued in the Joshua Schulte case).

But it’s not the first place they have argued a tie between Snowden as inspiration and further leaks.

The indictment for Daniel Everette Hale, the guy accused of sharing documents on the drone program with Jeremy Scahill, makes it clear how Hale’s relationship with Scahill blossomed just as the Snowden leaks were coming out (and this detail makes it clear he’s the one referred to in Citizenfour as another source coming forward).

15. On or about June 9, 2013, the Reporter sent HALE an email with a link to an article about Edward Snowden in an online publication. That same day. Hale texted a friend that the previous night he had been hanging out with journalists who were focused on his story. Hale wrote that the evening’s events might provide him with “life long connections with people who publish work like this.”

Hale launched a fairly aggressive (and if it weren’t in EDVA, potentially an interesting) challenge to the Espionage Act charges against him. It included (but was not limited to) a Constitutional motion to dismiss as well as a motion to dismiss for selective prosecution. After his first motions, however, both the government’s response and Hale’s reply on selective prosecution were (and remain, nine months later) sealed.

But Hale’s reply on the Constitutional motion to dismiss was not sealed. In it, he makes reference to what remains sealed in the selective prosecution filings. That reference makes it clear that the government described searching for leakers who had been inspired “by a specific individual” who — given the mention of Snowden in Hale’s indictment — has to be Snowden.

Moreover, as argued in more detail in Defendant’s Reply in support of his Motion to Dismiss for Selective or Vindictive Prosecution (filed provisionally as classified), it appears that arbitrary enforcement – one of the risks of a vague criminal prohibition – is exactly what occurred here. Specifically, the FBI repeatedly characterized its investigation in this case as an attempt to identify leakers who had been “inspired” by a specific individual – one whose activity was designed to criticize the government by shedding light on perceived illegalities on the part of the Intelligence Community. In approximately the same timeframe, other leakers reportedly divulged classified information to make the government look good – by, for example, unlawfully divulging classified information about the search for Osama Bin Laden to the makers of the film Zero Dark Thirty, resulting in two separate Inspector General investigations.3 Yet the investigation in this case was not described as a search for leakers generally, or as a search for leakers who tried to glorify the work of the Intelligence Community. Rather, it was described as a search for those who disclosed classified information because they had been “inspired” to divulge improprieties in the intelligence community.

Hale argued, then, that the only reason he got prosecuted after some delay was because the FBI had a theory about Snowden’s role in inspiring further leaks.

Judge Liam O’Grady denied both those motions (and most of Hale’s other motions), though without further reference to Snowden as an inspiration. But I’m fairly sure this is not the only case where they’re making this argument.

The Superseding Assange Indictment Tidies Up CFAA Charges

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Yesterday, the government released a second superseding indictment against Julian Assange. The EDVA press release explains that no new counts were added, but the language describing the computer hacking conspiracy was expanded.

The new indictment does not add additional counts to the prior 18-count superseding indictment returned against Assange in May 2019. It does, however, broaden the scope of the conspiracy surrounding alleged computer intrusions with which Assange was previously charged. According to the charging document, Assange and others at WikiLeaks recruited and agreed with hackers to commit computer intrusions to benefit WikiLeaks.

It is true the description of the hacking charge has been dramatically expanded, incorporating a bunch of hacks that WikiLeaks was associated with.

But there are a few details of the charges that changed as well. The CFAA charge has actually been reworked, focused on four different kinds of hacks:

  • Accessing a computer and exceeding access to obtain information classified Secret
  • Accessing a computer and exceeding access to obtain information from protected computers at a department or agency of the United States committed in furtherance of criminal acts
  • Knowingly transmitting code that can cause damage,
    • Greater than $5000
    • Used by an entity of the US in furtherance of the administration of justice, national defense, and national security
    • Affecting more than 10 or more protected computers in a given year
  • Intentionally accessing protecting computers without authorization to recklessly cause damage,
    • Greater than $5000
    • Used by an entity of the US in furtherance of the administration of justice, national defense, and national security
    • Affecting more than 10 or more protected computers in a given year

This is a grab bag of hacking charges, and it could easily cover (and I expect one day it will cover) actions not described in this indictment. While adding this grab bag of charges, the indictment takes out a specific reference to the Espionage Act, probably to ensure at least one charge against Assange can in no way be claimed to be a political crime. It also takes out 18 U.S.C. § 641, possibly because the thinking of its applicability to leaking classified information has gotten more controversial.

The indictment also changes the dates on several of the counts. The timeline on the three counts addressing leaking of informants’ identities (something that is criminalized in the UK in ways it is not here, but also the counts that most aggressively charge Assange for the publication of information) now extends to April 2019. The timeline on the hacking charges extends (for reasons I’ll explain below), to 2015. And the overall timeline of Assange’s behavior extends back to 2007, a date that post-dates the earliest WikiLeaks activity and so raises interesting questions about what actions it was chosen to include.

As to the 2015 date, the indictment gets there by discussing WikiLeaks’ role in helping Edward Snowden flee China and the ways WikiLeaks used Snowden’s case to encourage other leakers and hackers. It describes:

  • Sarah Harrison’s trip to Hong Kong in June 2013
  • The presentation Harrison, Jake Appelbaum, and Assange gave in December 2013 encouraging potential leakers to, “go and join the CIA. Go in there, go into the ballpark and get the ball and bring it out,” and claiming that, “Edward Snowden did not save himself … Harrison took actions to protect him”
  • A conference on May 6, 2014 when Harrison recruited others to obtain classified or stolen information to share with WikiLeaks
  • A May 15, 2015 Most Wanted Leaks pitch that linked back to the 2009 list that Chelsea Manning partly responded to
  • Comments Assange made on May 25, 2015 claiming to have created distractions to facilitate Snowden’s flight
  • Appelbaum and Harrison’s efforts to recruit more leakers at a June 18, 2015 event
  • The continued advertisement for Most Wanted Leaks until at least June 2015, still linking back to the 2009 file

I’ll explain in a follow-up where this is going. Obviously, though, the government could easily supersede this indictment to add later leakers, most notably but in no way limited to Joshua Schulte, who first started moving towards leaking all of CIA’s hacking tools to WikiLeaks in 2015.

I argued, in December, that the government appeared to be moving towards a continuing conspiracy charge, one that later hackers and leakers (as well as Appelbaum and Harrison) could easily be added to. Doing so as they’ve done here would in no way violate UK’s extradition rules. And fleshing out the CFAA charge makes this airtight from an extradition standpoint; some of the crimes alleged involving Anonymous have already been successfully prosecuted in the UK.

This doesn’t mitigate the harm of the strictly publishing counts. But it does allege Assange’s personal involvement in a number of hacks and leaks that others — both in the US and UK — have already been prosecuted for, making the basic extradition question much less risky for the US.

Update: I think this allegation in the new indictment is important:

In September 2010, ASSANGE directed [Siggi] to hack into the computer of an individual former associated with WikiLeaks and delete chat logs containing statements of ASSANGE. When Teenager asked how that could be done, ASSANGE wrote that the former WikiLeaks associate could “be fooled into downloading a trojan,” referring to malicious software, and then asked Teenager what operating system the former-WikiLeaks associate used.

I’ve heard allegations from the entire period of WikiLeaks’ prominence of Assange asking to spy on one or another partner or former partner, including protected entities. One relatively recent allegation I know of targeted a former WikiLeaks associate in 2016, after a break on election-related issues. I have no idea whether these allegations are credible (and I know of none who would involve law enforcement). But allegations that Assange considered — or did — spy on his allies undercuts his claim to being a journalist as much as anything else he does. It also raises questions about what WikiLeaks did with the unpublished Vault 7 files.

Update: Dell Cameron, who is the expert on the Stratfor hack, lays out some apparently big holes in the parts of the indictment that pertain to that.

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

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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

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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

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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…

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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

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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.