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Daniel Hale, Citizenfive

Jeremy Scahill: So if I have a confidential source who’s giving me information as a whistleblower and he works within the US government and he’s concerned about what he perceives as violations of the Constitution, and he gets in touch with me…

Bill Binney: From there on they would nail him and start watching everything he did, and if he started passing data, I’m sure they’d take him off the street. I mean, the way you have to do it is like Deep Throat did in the Nixon years — meet in the basement of a parking garage. Physically.

— Citizenfour

Last week, drone whistleblower Daniel Hale pled guilty. In pleading guilty, Hale admitted that he was the source behind The Intercept‘s Drone Papers package of stories that provided new details about the drone program as operated under President Obama. He also may have made clear that Laura Poitras’ film, Citizenfour, isn’t so much about Snowden, as it has always been described, but about Hale.

Hale pled guilty to one of five counts against him, Count 2 of the superseding indictment, 18 USC §793(e), for retaining and transmitting National Defense Information to Jeremy Scahill (Scahill was referred to as “the Reporter” in charging documents).

Before Hale pled guilty, the government released a list of exhibits it planned to use at trial. The exhibit list not only shows the government would have introduced a picture of Hale meeting publicly with Scahill at an event for the latter’s Dirty Wars, texts Hale sent to his friend Megan describing meeting Scahill, emails between Scahill and Hale sent months before they moved their communication to Jabber (those all were mentioned in the Indictment), but it included texts Hale and Scahill exchanged between January 24 and March 7, 2014, continuing after Hale had started the process of printing off documents at the contractor where he worked which he would ultimately send to Scahill. (The exhibit list doesn’t describe via what means they sent these texts and there are no correlating Verizon records prepared as exhibits covering that period, meaning they may not be telephony texts but instead could be the Jabber chats mentioned in the indictment, or maybe Signal texts). The government also would have introduced up to seven types of proof that Hale had printed each of the documents he was charged with, and badge records showing he was in his office and logged onto the relevant work computer each time those documents were printed out.

The government would also have submitted, for each of the agencies where Hale ever held clearance — NSA, DOD, a JSOC Task Force, NGA, and Air Force — a certification that the agency had no evidence that Hale had made any whistleblower complaints.

Unless those 2014 texts were from Jabber, there’s nothing in the exhibit list that obviously shows that the government was intending to introduce proof of three Jabber chats the government reconstructed that Hale had with Scahill, though those were mentioned in the indictment.

At the change of plea hearing last Thursday, the government refused to dismiss the four other counts against Hale, which Hale’s attorney, Todd Richman, said raised concerns that the government might revert to those charges if Judge Liam O’Grady didn’t sentence Hale harshly enough. O’Grady (who seemed as concerned about the possibility Hale might harm himself between now and the July 13 sentencing as anything else) as much as said that, if the government tried that, it would still amount to the same sentence, signaling he would have sentenced Hale with a concurrent sentence for all counts, had he gone to trial.

The plea agreement has not been released yet, but pleading guilty days before the trial was to start will give Hale a slight reduction in his sentence, but he’s still facing a draconian sentence for revealing details about the drone program.

That said, given what EDVA prosecutors — including Hale prosecutor Gordon Kromberg, who is the lead prosecutor on the Assange case — did to Chelsea Manning and Jeremy Hammond, I worry they might try something similar with Hale. From the start, the government has been interested in Hale for how he fit in the series of document leaks that started with Chelsea Manning and continued through Vault 7. That came up in mostly sealed filings submitted early in Hale’s prosecution.

[T]he 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.

And the government intended to submit exchanges between Hale and Scahill about Snowden and Chelsea Manning at trial.

There are two things that appear in the Statement of Facts Hale pled guilty to that don’t appear in the indictment.

First, the biographical language that explains how Hale enlisted in the Air Force, quit in May 2013, and only then got a job at a defense contractor where he had access to the files he ultimately leaked, is slightly different and generally abbreviated (leaving out, for example, that Hale was assigned to the NSA from 2011 to 2013, overlapping with Snowden). However, the Statement of Facts adds the detail that, “In July 2009, while the United States was actively engaged in two wars,” Hale first enlisted. It’s as if to suggest that Hale knew he would end up killing people when he signed up to join the Air Force.

Of more interest, the Statement of Facts includes an admission that Hale authored an anonymous document that prosecutors had planned to use at trial.

Mr. Hale authored an essay, attributed to “Anonymous,” that became a chapter in a book published by the Reporter’s online news outlet (defined as Book 2 in the Superseding Indictment).

It’s a chapter in The Assassination Complex, a free-standing publication based on the documents Hale released.

The government first requested to use this document at trial in a sealed motion, accompanied by 6 exhibits, submitted on September 16, 2019 as part of the first wave of motions. But the judge didn’t resolve that request until November 17, 2020, a month after a hearing on that and other requests. In his order, O’Grady permitted the government to enter the chapter into evidence, but reminded them the jury gets to decide whether they believe the evidence is authentic or not.

The Court hereby ORDERS that the Government’s Motion to Admit an Anonymous Writing as an Admission of the Defendant (dkt. 54) is GRANTED, as the Court stated in the October 13 hearing; the government will be permitted to present the book chapter attributed to an anonymous author. Federal Rule of Evidence 901(a) requires the proponent of a piece of evidence to authenticate it before it can be admitted. United States v. Smith, 918 F.2d 1501,1510 (11th Cir. 1990). The Court’s role in determining whether evidence is authentic is limited to that of a gatekeeper in assessing whether the proponent has offered a satisfactory foundation.” United States v. Vidacak, 553, F.3rd 344, 349 (4th Cir. 2009). The court finds that the government has laid satisfactory foundation for the purpose of admitting the evidence at trial. It now falls to the jury to determine whether the evidence is indeed what the government says it is: an anonymous writing that was written by Defendant admitting to the conduct of which he is accused.

At trial, it seems, the government would have treated this chapter as a confession. There are three exhibits in their trial exhibit list — stills and video of an Obama event in June 2008 — that suggest they planned to authenticate it, in part, by pointing to the anonymous author’s admission that he shook then-Candidate Obama’s hand in 2008 and showing pictures of the exchange.

In 2008 I shook hands with Senator Obama when he came through my town on his way to the White House. After his inauguration he said, “Transparency and the rule of law will be the touchstones of this presidency.” I firmly believe those principles are crucial to an open society, which is why I was compelled to reveal this information. If this administration lacks the courage to uphold its promises to the people, then I and others like me will do so for them.

So after having made their case that this was Hale, they then would have asked the jury to consider it a confession that he was the leaker described throughout The Intercept‘s reporting on the drones.

But with Hale’s guilty plea, there’s no evidentiary value to this chapter anymore. (That is, unless the government wants to argue that the specific Tide Personal Numbers Hale listed in the chapter — TPN 1063599 for Osama bin Laden and TPN 26350617 for Abdul Rahman al-Awlaki — amount to new disclosures not included in the charged releases.) Hale has already admitted, under oath, to being the anonymous source referred to by journalists throughout the rest of the book.

What the admission that he was part of the book publication does do, however, is tie Hale far more closely with Snowden, who wrote a hubristic introduction for the book. In it, he tied his leaks with Manning’s and in turn his with Hale’s.

[U]nlike Dan Ellsberg, I didn’t have to wait forty years to witness other citizens breaking that silence with documents. Ellsberg gave the Pentagon Papers to the New York Times and other newspapers in 1971; Chelsea Manning provided the Iraq and Afghan War logs and the Cablegate materials to WikiLeaks in 2010. I came forward in 2013. Now here we are in 2015, and another person of courage and conscience has made available the set of extraordinary documents that are published here.

I noted, when Snowden called for Trump to pardon Hale along with The Intercept‘s other sources, Terry Albury and Reality Winner, he effectively put a target on Hale’s back, because it suggested those leaks all tied to him. All the more so, I now realize, given the way this Snowden essay suggests Hale’s leaks have some tie to him.

Snowden ended the introduction by suggesting there were far more people like Manning, himself, and Hale waiting to drop huge amounts of documents than there were the “insiders at the highest levels of government” guarding the monopoly on violence.

The individuals who make these disclosures feel so strongly about what they have seen that they’re willing to risk their lives and their freedom. They know that we, the people, are ultimately the strongest and most reliable check on the power of government. The insiders at the highest levels of government have extraordinary capability, extraordinary resources, tremendous access to influence, and a monopoly on violence, but in the final calculus there is but one figure that matters: the individual citizen.

And there are more of us than there are of them.

Yet the book suggests the links between Manning, Snowden, and Hale are merely inspirational.

Not so Citizenfour.

There’s a scene of the movie, quoted above, where Bill Binney warns Jeremy Scahill that if he wanted to publish documents from a source we now know to be Hale, with whom (trial exhibits would have shown) Scahill had already met in public, emailed, and texted during the period Hale was leaking, then (Binney instructed Scahill) he needed to do so by meeting in person, secretly.

It was probably too late for Hale by the time Binney gave Scahill this warning.

Then there’s the film’s widely discussed closing scene, showing a meeting where Glenn Greenwald flew to Moscow to update Snowden about “the new source” that has come to The Intercept. Apparently believing he’s using rockstar operational security, he’s writing down — on camera!!! — how The Intercept is communicating with this new source, bragging (still writing on camera about a source that had first reached out to Scahill via email and in person) that “they’re very careful.” One of the things he seems to write down is “Jabber,” chats from which the government obtained and might have released at Hale’s trial. In the scene, Greenwald continues to sketch out the contents of several of the documents — including one of the first ones to be published — that Hale just admitted he shared with The Intercept.

But in retrospect, the most important part of this sequence is where — against video footage showing Snowden and Lindsey in Moscow together — Poitras reads an email, dated April 2013 (a month before Hale quit the Air Force and NSA within days after Snowden fled to Hong Kong). She offers no explanation, not even naming the recipient of the email.

Let’s disassociate our metadata one last time, so we don’t have a clear record of your true name and our final communication chain. This is obviously not to say you can’t claim your involvement. But as every trick in the book is likely to be used in looking into this, I believe it’s better that that particular disclosure come on your own terms. Thank you again for all you’ve done. So sorry again for the multiple delays but we’ve been in unchartered territory with no model to benefit from. If all ends well, perhaps the demonstration that our methods worked will embolden more to come forward.

That email has received far less attention than Greenwald’s confident descriptions to Snowden of how someone inspired by his actions has come forward. But I remember when first viewing Citizenfour (which I watched long after it first came out), I had the feeling that Snowden was only feigning surprise when Greenwald told him of this new source and described the signals intercepts for the drone program going through Ramstein Air Base in Germany.

That is, that unexplained email may suggest that Hale met Snowden while both were at the NSA, and that days before the first Snowden releases, Hale quit, reached out to a close associate of Greenwald, then (months later) found a new job in the intelligence community where he could get files that would expose certain details of the drone program. The government had planned to introduce other movies at Hale’s trial. But Citizenfour was not on the exhibit list.

Update: PseudonymousInDenver has persuaded me this is a reference to Poitras, not to someone else.

That’s a detail I hadn’t realized before: Hale reached out to Scahill, then quit the Air Force and NSA, and only then got a new job that gave him access to files he ended up leaking.

I have no idea what the government intends to do, now that it has Hale admitting that he participated in this book in which Snowden promised a legion of similar leakers. I have always been concerned the government would go after Scahill. But now I think this is about Snowden.

Since last year, the government has explicitly argued that WikiLeaks considered its help to Snowden as part of a recruiting effort for further leakers (a detail of Julian Assange’s most recent superseding indictment that literally every one of Snowden’s closest associates has studiously avoided mentioning). They’re not making that up. It’s something Snowden admitted in his own book, and Bart Gellman described that Snowden was thinking the same as he leaked to Gellman. As noted, the government appears to have made a similar argument in sealed filings with Hale.

But one thing they seem to have demanded before they let Hale plead out before trial was a further admission, one that makes the Snowden tie more explicit.

Update: On Twitter, Hale corrected me that that TPN is for Awlaki’s son, not for Awlaki himself.

The Most Counterproductive Letter in Defense of Julian Assange

How seriously do you think the Joe Biden Administration is going to take a letter that,

  • Implicitly treats helping Edward Snowden flee Hong Kong to Russia (one of the overt acts Julian Assange is currently charged with) as a journalistic activity
  • Was written by an organization on the board of which Edward Snowden serves, without any disclosure of the relationship (or that another Freedom of the Press Foundation board member, Laura Poitras, decided in real time that such activities weren’t journalism, thereby eliminating the New York Times problem the letter claims still exists)
  • Treats the Julian Assange extradition request as a Trump Administration decision at a time when Biden is trying to emphasize that DOJ represents the country, not one president
  • Ties the Assange prosecution to Trump’s other politicization of DOJ when the evidence shows the opposite happened, that Trump abused power to attempt to protect Assange (in her ruling, Judge Baraitser also noted that Trump in no way treated WikiLeaks like he treated journalistic outlets)
  • Relies on dated 2013 reporting about the sum total of WikiLeaks’ actions targeting the US, ignoring much of the public record since, not to mention the grave damage incurred by a release — Vault 7 — that had almost no news value, which was allegedly leaked while Acting Deputy Attorney General John Carlin (who will probably field this letter) was in charge of DOJ’s National Security Division
  • Exhibits zero familiarity with the 54-page report — citing testimony from Biden Administration members Avril Haines, Lisa Monaco, Susan Rice, Tony Blinken, Samantha Power, Denis McDonough, and John Kerry — that concluded one reason the Obama Administration didn’t respond in more timely fashion to Russia’s attack on the 2016 election was because of a delayed understanding of how 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.

[snip]

The executive branch struggled to develop a complete understanding of WikiLeaks. Some officials viewed WikiLeaks as a legitimate news outlet, while others viewed WikiLeaks as a hostile organization acting intentionally and deliberately to undermine U.S. or allies’ interests.

The letter claims to want to protect a “robust” press. But this letter fails to meet journalistic standards of transparency or accuracy.

Nevertheless, the following organizations signed onto such a (in my opinion) counterproductive letter:

  • Access Now
  • American Civil Liberties Union
  • Amnesty International – USA
  • Center for Constitutional Rights
  • Committee to Protect Journalists
  • Defending Rights and Dissent
  • Demand Progress
  • Electronic Frontier Foundation
  • Fight for the Future
  • First Amendment Coalition Free Press
  • Freedom of the Press Foundation
  • Human Rights Watch
  • Index on Censorship
  • Knight First Amendment Institute at Columbia University
  • National Coalition Against Censorship
  • Open The Government
  • Partnership for Civil Justice Fund
  • PEN America
  • Project on Government Oversight
  • Reporters Without Borders
  • Roots Action
  • The Press Freedom Defense Fund of First Look Institute
  • Whistleblower & Source ProtectionProgram (WHISPeR) at ExposeFacts

I have a great deal of respect for these organizations, have worked for several of them, and have received funding in the past from Freedom of the Press Foundation. I agree with the sentiment of the letter that some of the current charges against Assange pose a risk to journalism. I believe these organizations could have written an effective letter to Acting Attorney General Monty Wilkinson (or, more effectively and with better targeting, to Carlin).

Instead, they signed onto a letter that violates several of the principles of journalism they claim to want to defend.

Snowden

Like Glenn Greenwald, Roger Stone Links a Pardon for Edward Snowden to a Corrupt Pardon for Julian Assange

After being pardoned for his crime of lying to Congress last night, Roger Stone called for a pardon for Julian Assange and Edward Snowden.

Stone welcomed the pardon and complained he’d been subjected to a “Soviet-style show trial on politically-motivated charges.”

The longtime political provocateur also urged the president to extend clemency to a key figure in the release of hacked emails during the 2016 campaign, Julian Assange, and to National Security Agency leaker Edward Snowden.

“Other good Americans have been victims of a corrupt system made to serve venal power-seekers,rewarding deceit and manipulation, rather than reason and justice. President Trump can be the purveyor of justice over the vile machinations of wicked pretenders to the mantle of public service,” Stone wrote.

Unless Bill Barr shut it down in preparation for the pardons to come (a very good possibility), DOJ has an ongoing investigation into the circumstances under which Roger Stone started pursuing a pardon for Assange, one that ties a pardon for Assange to Stone’s successful optimization of the release of the John Podesta files in October 2016. That might even make Stone’s call a new overt act in a conspiracy that started in 2016.

What it also does, though, is tie a hypothetical Snowden pardon — one that otherwise would have nothing to do with Trump’s crimes — to this quid pro quo.

Stone is not the first to do so in a corrupt way, of course. So did Glenn Greenwald, when he pitched such a dual pardon as a way for Trump to get back at The [American] Deep State on Tucker Carlson’s show, back in September.

Glenn: Let’s remember, Tucker, that the criminal investigation into Julian Assange began by the Obama Administration because in 2010 WikiLeaks published a slew of documents — none of which harmed anybody, not even the government claims that. That was very embarrassing to the Obama Administration. It revealed all kinds of abuses and lies that they were telling about these endless wars that the Pentagon and the CIA are determined to fight. They were embarrassing to Hillary Clinton, and so they conducted, they initiated a grand jury investigation to try and prosecute him for reporting to the public. He worked with the New York Times, the Guardian, to publish very embarrassing information about the endless war machine, about the Neocons who were working in the Obama Administration. To understand what’s happening here, we can look at a very similar case which is one that President Trump recently raised is the prosecution by the Obama Administration, as well, of Edward Snowden for the same reason — that he exposed the lies that James Clapper told, he exposed how there’s this massive spying system that the NSA and the CIA control, that they can use against American citizens. Obviously this isn’t coming from President Trump! He praised WikiLeaks in 2016 for informing the public. He knows, firsthand, how these spying systems that Edward Snowden exposed can be abused and were abused in 2016. This is coming from people who work in the CIA, who work in the Pentagon, who insist on endless war, and who believe that they’re a government unto themselves, more powerful than the President. I posted this weekend that there’s a speech from Dwight Eisenhower warning that this military industrial complex — what we now call the Deep State — is becoming more powerful than the President. Chuck Schumer warned right before President Obama — President Trump — took office that President Trump challenging the CIA was foolish because they have many ways to get back at anybody who impedes them. That’s what these cases are about Tucker, they’re punishing Julian Assange and trying to punish Edward Snowden for informing the public about things that they have the right to know about the Obama Administration. They’re basically saying to President Trump, “You don’t run the country even though you were elected. We do!” And they’re daring him to use his pardon power to put an end to these very abusive prosecutions. One which resulted in eight years of punishment for Julian Assange for telling the truth, the other which resulted in seven years of exile for Edward Snowden of being in Russia simply for informing the public and embarrassing political officials who are very powerful.

While there’s abundant evidence (which press organizations and journalists who’ve been personally involved are dutifully ignoring) that Julian Assange has been something other than he has been claiming for years, I have always believed a Snowden pardon is an entirely different thing, something far more justified. But if these people who were running interference for Guccifer 2.0 back in 2016 and have continued to do so to this day keep linking a corruptly negotiated Assange with a Snowden one, it does raise questions about whether there’s some closer tie.

The WaPo Solution to the NYT Problem: Laura Poitras’ Misrepresentation of Assange’s 18th Charge

If you were the average NYT reader who is unfamiliar with the developments in the prosecution against Julian Assange, reading this excellent Laura Poitras op-ed calling for, “the Justice Department [to] immediately drop these charges and the president [to] pardon Mr. Assange,” might lead you to believe there were 17 charges under the Espionage Act and the original password cracking as the single overt act in a CFAA (hacking) charge, all of them 10 years old.

That was when the Justice Department indicted Julian Assange, the founder and publisher of WikiLeaks, with 17 counts of violating the Espionage Act, on top of one earlier count of conspiring to violate the Computer Fraud and Abuse Act.

The charges against Mr. Assange date back a decade, to when WikiLeaks, in collaboration with The Guardian, The New York Times, Der Spiegel and others, published the Iraq and Afghanistan war logs, and subsequently partnered with The Guardian to publish State Department cables. The indictment describes many activities conducted by news organizations every day, including obtaining and publishing true information of public interest, communication between a publisher and a source, and using encryption tools.

Of course, as emptywheel readers, you know that DOJ superseded the indictment against Assange in June, and with it extended the timeline on the CFAA conspiracy charge through 2015.

Even the original CFAA charge described a relationship between Assange and Manning that goes beyond what journalists do (I think I understand why DOJ charged it and may return to explain that in days ahead). But the current one credibly charges Assange in the same conspiracy to hack Stratfor that five other people have already pled guilty to, meaning the only question at trial would be whether DOJ can prove Assange entered into the conspiracy and took overt acts to further it, something they appear to have compelling proof he did.

The superseding indictment also describes Assange ordering up the hack of a WikiLeaks dissident. That’s not something anyone should be defending, and there’s good reason to believe it was not an isolated incident.

Poitras’ silence about the superseding indictment, however, is all the more striking given that it includes WikiLeaks’ efforts to help Edward Snowden to flee among the overt acts in the CFAA conspiracy. (I emailed Poitras to ask whether she even knows of the superseding indictment, which she may not, given the crappy coverage of it; I will update if she responds.)

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 associate [Sarah Harrison] traveled with Snowden from Hong Kong to Moscow.

[snip]

87. At the same presentation [where Assange and Jake Appelbaum encouraged people to join the CIA to steal files, 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 we look also to what has happened to Chelsea Manning, we see additionally that Snowden has clearly learned….”

[snip]

90. In an interview of May 25, 2015, ASSANGE claimed to have arranged distraction operations to assist Snowden in avoiding arrest by the United States. [listing several operations, including using “presidential jets,” suggesting that the US may have searched Evo Morales’ plane in response to disinformation spread by WikiLeaks] [bolded brackets original, other brackets my own]

With these passages, DOJ wrote the first draft of what I suspect will be expanded in the near future into a dramatically different story than the one we know about Edward Snowden (whether it will be sustainable or not is another thing). And Laura Poitras, who didn’t mention these overt acts in her op-ed, was at least adjacent to many key events in this story. For example, Poitras is likely one of the few people who would know if Snowden was in contact with Jake Appelbaum before he got a job in Hawaii and started scraping files related and unrelated to programs of concern, as Snowden himself hinted in his book. If he was, then several parts of the story that Snowden has always told are probably not true.

Similarly, Poitras’ film Risk briefly hints at tensions between Poitras and Assange over how the Snowden files would be released. That, too, suggests that WikiLeaks may have had a bigger role on the front end in Snowden’s theft of NSA documents than is publicly known.

Most importantly, at least as Bart Gellman tells it in his book, both he and Poitras were quite explicit, in the wake of requests from Snowden to help him prove his identity to obtain asylum in a foreign country, about where journalism ended and sharing classified files with foreign governments might begin.

Snowden had asked Gellman to ensure that the WaPo publish the first PRISM file with his PGP key attached. At first, Gellman hadn’t thought through why Snowden made the request. Then he figured it out.

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.

Idiot. Remember “chain of custody”? He came right out and told you he wanted a historical record.

My mind raced. When Snowden walked into a consulate, evidence of his identity in hand, any intelligence officer would surmise that he might have other classified information in reach. Snowden said he did not want to hand over documents, but his language, as I read it that night, seemed equivocal. Even assuming he divulged nothing, I had not signed up for his plan. I had agreed to protect my source’s identity in order to report a story to the public. He wanted me to help him disclose it, in private, as a credential to present to foreign governments. That was something altogether different.

Gellman realized — and Poitras seemed to agree in texts Gellman published in the book — that this request might amount to abetting Snowden’s sharing of secrets with a hostile government.

LP: oh god fuck

BG: He’s in a position to provide that material. He may be under compulsion. We REALLY can’t do anything that could abet or be perceived to abet that.

LP: of course

BG: I just wanna be a goddam journalist

Gellman and Poitras discussed the request with the lawyers WaPo consulted regarding the Snowden publications. In what might be the chilling consultation with a First Amendment lawyer that Poitras describes in her oped, one lawyer seems to have raised concerns about aiding and abetting charges, and had them both write explicit notes to Snowden denying his request to publish his key. In those notes, as published by Gellman, both drew a bright line between what they considered journalistic — protecting his identity and publishing the newsworthy files while balancing risk — and what was not.

Everyone on the call agreed that we would carry on with our story plans and protect the source’s identity as before. No one but Poitras and I knew Snowden’s name anyway. But Kevin Baine, the lead outside counsel, asked me in a no-bullshit tone to level with him. Had I ever promised to publish the full PRISM presentation or its digital signature? I had not, and Poitras said the same. Our source framed both those points as “requests” before he sent the document. Poitras and I had ducked and changed the subject. Why engage him in a hypothetical dispute? Depending on what the document said, publication in full might have been an easy yes. “You have to tell him you never agreed to that,” Baine said. Poitras and I faced a whole new kind of legal exposure now. We could not leave unanswered a “direct attempt to enlist you in assisting him with his plans to approach foreign governments.”

[snip]

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.”

Poitras wrote to him separately.

There have been several developments since Monday (e.g., your decision to leave the country, your choice of location, possible intentions re asylum), that have come as a surprise and make [it] necessary to be clear. As B explained, our intentions and objectives are journalistic. I believe you know my interest and commitment to this subject. B’s work on the topic speaks for itself. I cannot travel to interview you in person. However, I do have questions if you are still willing to answer them. [my emphasis]

If Assange (or anyone associated with him) is ever tried on the superseding indictment, I’d be surprised if these passages weren’t introduced at trial. Here you have two of the key journalists who published the Snowden files, laying out precisely where WikiLeaks fails the NYT problem that DOJ, under Obama, could never get past in any prosecution of Julian Assange.

“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,” said former Justice Department spokesman Matthew Miller told the Post. “And if you are not going to prosecute journalists for publishing classified information, which the department is not, then there is no way to prosecute Assange.”

In 2013, before the first Snowden files got published, Gellman and Poitras and the Washington Post solved the New York Times problem. Helping Snowden flee to a foreign country — which, given Snowden’s plan to meet them in Hong Kong, they assumed might include to an adversarial nation like China — was not journalistic and, seemingly even according to the journalists, might be abetting Snowden’s sharing of files with a hostile foreign government.

Which is why Poitras’ silence about these charges in her bid to dismiss the charges against Assange undermines her argument.

Again, I absolutely agree with Poitras that the Espionage charges, as charged, pose a real risk to journalism. But the government is going to use the CFAA charge to explain how Assange’s methods are different from journalists. And Poitras’ own actions may well be part of that proof.

The Intercept’s Silence about Edward Snowden’s Inclusion in Julian Assange’s Charges

Back in October, I beat up The Intercept’s Micah Lee for writing a post that purported to cover the “crumbling” hacking case against Julian Assange by working from an outdated indictment rather than the superseding one that added 50-some paragraphs to the overt acts alleged in the single count for conspiracy to hack. Micah made a half-assed and still factually inaccurate “correction” (without crediting me for pointing out the embarrassing error) that utterly misunderstands US conspiracy law, and claimed events since 2011 had tolled whereas the original password hacking attempt had not.

In the 2020 indictment, attempting to portray Assange as a hacker rather than a journalist, the government listed other instances of Assange allegedly directing hacking activity by people other than Manning — but did not add to the charges against him, prompting a discussion of whether the statute of limitations on the alleged new crimes had expired. Assange’s lawyers called the newest evidence “‘make weight’ allegations designed to bring all of this back within the limitation period.” It remains to be seen if the U.S. government will pursue this reaching strategy. At the moment it seems that these supplemental allegations are peripheral to the first, and only clearly chargeable, instance described by the government that could be conceived as a conspiracy to commit a computer crime — providing marginal support for a case which is, at its core, already weak.

In short, having been alerted to the superseding indictment, The Intercept’s resident expert on hacking utterly dodged the allegations made in that expanded charge, not so much as mentioning what they were.

At the time, I promised to return to Micah’s embarrassing piece after I finished some more pressing issues.

It turns out, the problem at The Intercept is broader than just Micah’s piece.

A recent post from Charles Glass suggests that if President Biden were to “remove the Espionage Act charges against Assange,” it would amount to the withdrawal of his extradition application entirely.

WHEN JOE BIDEN becomes president of the United States on January 20, a historic opportunity awaits him to demonstrate America’s commitment to the First Amendment. He can, in a stroke, reverse four years of White House persecution of journalism by withdrawing the application to extradite Julian Assange from Britain to the U.S.

[snip]

By removing the 1917 Espionage Act charges against Assange, Biden would be adhering to the precedent established by the administration in which he served for eight years as vice president. President Barack Obama’s Department of Justice investigated Assange and WikiLeaks for three years until 2013 before deciding, in the words of University of Maryland journalism professor Mark Feldstein, “to follow established precedent and not bring charges against Assange or any of the newspapers that published the documents.” Equal application of the law would have required the DOJ to prosecute media outlets, including the New York Times, that had as large a hand in publicizing war crimes as did Assange himself. If prosecutors put all the editors, publishers, and scholars who disseminated WikiLeaks materials in the dock, there would not be a courtroom anywhere in America big enough to hold the trial. Obama decided against it, knowing it would represent an unprecedented assault on freedoms Americans hold dear.

Glass went on to repeat the grossly erroneous claims about the history of Assange’s prosecution made at the extradition hearing by journalism history professor Mark Feldstein, who literally submitted a filing to the hearing admitting he wasn’t familiar with what the public record actually says about it.

That Glass ignored the hacking charge against Assange is remarkable given that, along with the erroneous piece from Micah, an earlier post from him is one of the few that addressed the (now superseded) CFAA count.

In addition, The Intercept did a Deconstructed show on the hearing in October. It, too, adopted the erroneous fairy tale about why the Trump Administration charged Assange when the Obama Administration did not. And while it introduced the allegation that Assange is a hacker, it then reverted to the so-called New York Times test, suggesting that if the publishing activities of Assange cannot be distinguished from the NYT’s, then it means Assange cannot and should not be prosecuted.

RG: Supporters of the prosecution of Assange make a number of arguments: That Assange is not a “real” journalist. He’s a hacker. He’s a traitor. He recklessly endangered lives and so he deserves no protection as a journalist. All of this is wrong.

The First Amendment isn’t worth the parchment it’s written on if it’s not respected, and defended, in the broader culture of the United States. People have to support it. Once that support erodes, it tends not to come back. That’s why authoritarians, when they want to curtail a particular freedom, usually find the most unsympathetic target they can, hoping nobody will come to his defense. Then once a new precedent is established, all bets are off. With Assange, Trump and Barr think they’ve found just such a man. It’s up to us not to take the bait.

[snip]

Kevin Gosztola: I think the key thing about Trevor Tim[m]’s testimony is destigmatizing the work of WikiLeaks, or even demystifying it. Because what you have through the U.S. government’s targeting of Wikileaks over the past decade is a concerted effort to make it seem like what WikiLeaks does is not journalism. And so the counter to that through the defense’s case is to make it abundantly clear that this is not reasonable; that in fact, everything that WikiLeaks does, from when it accepts the documents, when it tries to authenticate them, to when it makes media partnerships, to also make sure that names are redacted, to make sure that sensitive details are understood fully before the documents are published. And I think you see that this is the way to keep investigative journalism robust in the 21st century.

RG: I thought Trevor’s point was interesting that The New York Times does not get a press badge from the U.S. government. You know, it isn’t, and it shouldn’t be, up to the U.S. government to decide who is and who is not a journalist.

And the idea of who is or is not a responsible journalist is different from what is illegal or legal conduct, which I also thought was important because the prosecution wants to say: Well, he’s an irresponsible person, so therefore, he doesn’t have these protections. And the counter is no, it’s not up to the government to say what’s responsible or irresponsible journalism. You know, the government creates laws, and if the laws are violated, then you can start your prosecution. But if not, you can’t. And it’s never been against the law to publish classified information. It’s against the law to leak it, if you have access to it. But it’s not against the law to publish it.

As I have said over and over, I agree that the Espionage Act charges against Assange, as charged, pose a real threat to journalism (though so do the Trump DOJ’s other prosecutions of Espionage as a conspiracy, including the Henry Kyle Frese case where DOJ used a Title III wiretap to obtain evidence, and the Natalie Sours Edwards case where the Treasury Department attempted to achieve prior restraint on Jason Leopold, prosecutions that have gotten far less attention).

But I also think the sheer amount of shitty propaganda and outright lies people are telling in service of Julian Assange do their own damage to journalism. It is possible to discuss the risk that Assange’s prosecution on the Espionage charges poses without ignoring large swaths of the public record or even, as The Intercept has done in these three pieces and much of their earlier coverage, the actual charges.

The Intercept’s silence on the superseding indictment is all the more notable because of the way its founding act plays a part.

As I laid out here and here, the superseding charge incorporates a number of other overt acts in the CFAA conspiracy, going through 2015 (and seemingly setting up another superseding indictment that covers publications from 2015 through 2017). The new overt acts include a number of things that absolutely distinguish Assange and WikiLeaks from journalists and publishers. Of particular note, they allege that Julian Assange:

  • Entered into an agreement with individuals involved in Gnosis and Lulzsec before those individuals carried out the hack of Stratfor and remained in the agreement during and after the hack. This is a case where five of the people Assange allegedly entered into a conspiracy with have already pled guilty, in both the UK and US (as well as Ireland), making the primary proof required at trial that Assange did enter into agreement with the other co-conspirators, not that the hack occurred.
  • Directed Siggi to hack a WikiLeaks dissident to destroy incriminating evidence implicating Assange. While I’m less certain whether Siggi took steps to advance this conspiracy (and Siggi has credibility problems as a witness), I know of multiple different allegations that dissidents, sources, and competing outlets were similarly targeted for surveillance, with one WikiLeaks dissident claiming to have been hacked and threatened after a political split with the group.
  • Helped Edward Snowden flee, both by sending Sarah Harrison to facilitate his flight and creating distractions, and then using WikiLeaks’ assistance as a means to recruit further hackers and leakers.

The last one seems particularly irresponsible for The Intercept to suppress as they have, particularly given four other details:

  • Snowden’s description of setting up Tor bridges for Iranians with other Tor volunteers in the extended Arab Spring, making it highly likely he had a relationship with Jake Appelbaum before he took his NSA job in Hawaii.
  • Bart Gellman’s description of how Snowden worked to “optimize” his own outcome to encourage others to leak, mirroring Harrison’s stated motive for helping him flee.
  • The government’s suggestion that Daniel Everette Hale — Jeremy Scahill’s alleged source for his drone reporting — was inspired to leak by Snowden.
  • Snowden’s own (recent) treatment of three Intercept sources — along with Hale, Reality Winner and Terry Albury — as a group meriting a Trump pardon, something that will likely make Hale’s defense at trial next year more difficult.

The government’s theory about Snowden as a recruitment tool is really problematic (though I suspect the government plans to make it a lot more specific after inauguration, even before Hale’s trial next year). But it is also the case that publishers don’t usually help their sources flee as a way to ensure they’ll recruit future leakers and hackers (indeed, in his book, Gellman talked at length about how careful he was to avoid crossing that line when Snowden tried to trick him into it).

One can argue that WikiLeaks was heroic for doing so. One can argue that the US empire has what’s coming to it and so WikiLeaks was right to help Snowden flee. But one can’t argue that the overt acts alleged in the CFAA count of the superseding indictment are things that journalists routinely do. And, if proven, that gets the government well beyond the New York Times test.

Importantly, if you’re engaging in a debate about Assange’s fate but ignoring credible allegations that Assange did a bunch of things that journalists do not do, you should not, at the same time, claim you’re serving journalism. You’re serving propaganda (particularly if you’re also telling a fairy tale about what changed in 2016 and 2017).

All the more so if you’re The Intercept. The government has alleged that one thing that distinguishes Julian Assange from journalists — and they’re right — is that he sent someone halfway around the world to save the guy who created the opportunity to create The Intercept in the first place. Unless Assange is pardoned before Trump leaves (and maybe even then, since many of the acts Assange is charged with are more obviously illegal in the UK), this allegation is going to remain out there.

The founding possibility for The Intercept has now been included as an overt act in a hacking indictment. One way or another, it seems The Intercept needs to address that.

Wherein WikiLeaks Brags about Entertaining a Pardon Dangle from a Suspected Russian Asset and a White Supremacist

Yesterday, Julian Assange’s lawyer Jennifer Robinson had a statement (which has not been released) read at his extradition hearing describing that she witnessed a meeting between Assange and Dana Rohrabacher on August 15, 2017 (Neo-Nazi Chuck Johnson was also present), where the Congressman said he had a win-win deal to offer: Trump would pardon Julian Assange if Assange would say that the source of the stolen DNC emails was not Russia.

Robinson stated that Assange did not disclose the source. Based on reports, though, she did not appear to deny that Assange had claimed his source was not Russia, which is what Rohrabacher reported at the time.

A lawyer representing the United States did not contest Robinson’s report, agreeing that the offer occurred. But representatives from the US did state that Trump had not agreed to it (which, without access to the exact statement, could mean any thing, but Trump certainly hasn’t pardoned Assange, yet).

Amid a laudable parade of arguments at Assange’s extradition hearing about the Espionage Act and discussions of all the important disclosures associated with the 2010 WikiLeaks releases for which Julian Assange is fighting extradition — including testimony read from German torture victim Khaled al-Masri, one of the first times he has had his say in public — including this statement was a cynical, and I would argue, damning, ploy.

In spite of the frenzy from the US press about the statement, the claim is not new. It was reported immediately by the Daily Caller (I covered that report here). Then Assange tweeted and then released on Facebook a statement asserting that reports from others should not be deemed authoritative. “Only unmediated statements coming directly from me can be considered authoritative.” Rohrabacher issued a statement, in which he promised to divulge what Assange stated to Trump.

Neither explicitly admitted what was obvious, that it was a pardon quid pro quo.

In a follow-up interview with the Daily Caller, Rohrabacher claimed not to remember whether he spoke to anyone at the White House about the meeting. Then, in a follow-up interview with Sean Hannity, Rohrabacher said, “It is my understanding from other parties who are trying to arrange the rendezvous that a rendezvous with myself and the President is being arranged for me to give him the firsthand information from him.” Earlier this year (when WikiLeaks announced that Robinson was going to resuscitate this story), Kim Dot Com released texts describing how he had pushed Trump’s best friend (whom he claimed not to identify) to accept the deal.

Those texts identified the best friend as Sean Hannity, the same guy who hosted Rohrabacher to explain that, “other parties [were] trying to arrange the rendezvous that a rendezvous with myself and the President is being arranged for me to give him the firsthand information from him.”

Ultimately, Chief of Staff John Kelly refused to let the President meet with Rohrabacher, just like he refused other agents of disinformation about the Russian hack to meet with him in the same period.

Mr. Rohrabacher confirmed he spoke to Mr. Kelly this week but declined to discuss the content of their conversation. “I can’t confirm or deny anything about a private conversation at that level,” he said in a brief interview. He declined to elaborate further.

A Trump administration official confirmed Friday that Mr. Rohrabacher spoke to Mr. Kelly about the plan involving Mr. Assange. Mr. Kelly told the congressman that the proposal “was best directed to the intelligence community,” the official said. Mr. Kelly didn’t make the president aware of Mr. Rohrabacher’s message, and Mr. Trump doesn’t know the details of the proposed deal, the official said.

In the call with Mr. Kelly, Mr. Rohrabacher pushed for a meeting between Mr. Assange and a representative of Mr. Trump, preferably someone with direct communication with the president.

On its face, the pardon dangle story proves only that Julian Assange was willing to meet with someone widely presumed to be Russian asset, Dana Rohrabacher, and a far right white nationalist to help float false claims about Russia’s role in getting Trump elected. It also proves that, at the time (when Trump was desperately trying to shut down the investigation into his coordination with Russia in the 2016 election and one after another were giving false prepared statements denying such coordination), the President had a Chief of Staff with the ability to look out after his legal interests.

And while I doubt lawyers for the US will go there, in context, the fact that WikiLeaks’ defense team presented just one of the at least four pardon dangles — including one for which the import of Russian disinformation is more obvious than others — is a testament to the degree to which the true story of those pardon discussions would make WikiLeaks’ compromise by Russia clear.

Here are the known discussions of pardons since WikiLeaks released emails in such a way as to optimize their benefit to getting authoritarian torture fan Donald Trump elected.

  • Starting at least by November 16 (and probably earlier) and lasting at least through January 11, 2018, Roger Stone tried to broker a pardon; according to sworn testimony by Randy Credico, Margaret Kunstler was involved in this effort (and threatening to expose whatever role Kunstler had in the process is one of the ways Stone used to discourage Credico’s testimony).
  • Starting at least by January 12 and continuing until at least March 28, 2017, Adam Waldman — the lawyer that Assange shared with Oleg Deripaska, whom the SSCI Report shows had a central role in the 2016 operation — tried to negotiate a deal via which Assange would provide limited information to mitigate the harm of the Vault 7 leak and DOJ (or if that failed, SSCI) would give him immunity, effectively a pardon. Given WikiLeaks’ history of sharing raw documents with Russia and others, the entrée would have come long after WikiLeaks had had the opportunity to broker the files, which would have helped Russia not only identify CIA’s hacks of Russian computers, but also NOCs working for CIA. (I’ve started to wonder whether the Russian treason case from late 2016 has a tie.) John Solomon — who has spread Deripaska’s propaganda before — even blamed Jim Comey for the compromise that resulted. In short, the offer was far too late to be meaningful, but it was an effort to give Assange impunity for burning the CIA to the ground.
  • From August to October 2017, Rohrabacher pursued his pardon for disinformation deal.
  • Last week, in the guise of defending journalism, Glenn Greenwald went on Tucker Carlson’s show (where a number of people have successfully lobbied for a pardon) and pitched pardons for both Assange and Ed Snowden not, as he claimed, out of any defense of journalism or whistleblowers — both things that Trump affirmatively reviles — but instead because it’s a great way to stick it to the Obama Deep State.

So one pardon pitch immediately after Assange worked with Russia to get Trump elected, another one brokered by Oleg Deripaska’s lawyer, a third pitched by a Congressman widely believed to be a Russian asset, and finally Glenn’s pitch for a pardon as a great way to do damage to the intelligence community.

Not only did Russia figure in all of those pardon dangles, but each was pitched not as a way to honor Assange’s debt to journalism, but instead to serve Russia’s purposes. And for some reason WikiLeaks thinks that raising just one of these — while remaining silent about perhaps the most damning pardon dangle — helps prove its case that Julian Assange is a journalist and not the Russian spy the prosecutors in this case claim to believe he is.

Snowden

Snowden Lies about Outreach about a Pardon and Puts a Target on Daniel Everette Hale’s Back

I’m going to make three observations about this Edward Snowden interview, to mark it.

The interview was filmed live, Friday night US time, September 11, as the other clip indicates.

In it, Snowden repeatedly and categorically denied any outreach to the US government for a pardon.

Williams: Have you had any contact with the Administration. Did you initiate any? Have they initiated any? Have you sought a pardon from the United States?

Snowden: I have not. And this is something people have actually forgotten. There was a pardon campaign back during the Obama Administration. But I at no point actually asked for pardon myself. It was tremendously gratifying to have this level of support. But as I said, my condition for return is simply a fair trial. Now we didn’t see the Obama Administration talking about a pardon in this way and I think Trump has commented again since then that he thought treatment was very unfair, or could be. And there’s been a lot of speculation that’s come from this. But there’s been no contact. I was as surprised as anyone else to see this. But it’s very interesting to see this President thinking pardoning what a lot of people would consider [laughs] one of the big names in this new war on whistleblowers. And that’s something that we should all support seeing come to an end.

Williams: So no representative for you has done any outreach. No representative for you or you yourself has heard anything from the White House, the Administration, any government types?

Snowden: No. By hook or by crook, there’s been nothing. No contact, anything like that. I think [laughs] if that were happening, it would be certainly news that we would hear through other channels.

Williams: Let’s use plain English. The price for pardons appears to be lavish praise for this President after the fact. Is that something you’re willing to do?

Snowden: Certainly not. I don’t think a pardon is — or should be — conditioned on anything. When you look at the pardon power, it’s constitutionally derived. It’s Article II Section 2. A pardon is not a contract. A pardon is not something that you accept or reject. And it certainly shouldn’t be used as a political tool. And this is why, while I haven’t asked for pardon from the President, I will ask for A Pardon for others. When I mentioned the war on whistleblowers, this is an ongoing and continuing thing. The reason pardon is even being considered, even being debated, the fact that comments from the Attorney General are even hitting the news are because everyone who has followed these cases know, being charged under the Espionage Act as a whistleblower means no fair trial is permitted. And there are people in the United States today, serving time in prison for doing the right thing. And this is why we should see Donald Trump — or any President — end the war on whistleblowers. He should pardon Reality Winner for trying to expose election interference. He should pardon Daniel Hale for revealing abuses in the drone program. Or Terry Albury for trying to expose systemic racism within the FBI. And these are all people who are deserving of pardon. But this, when we look at pardon, pardon is intended to ameliorate unfairness, to fix fundamental flaws in our system of laws or the way they’re being applied. And there’s nowhere this is more clear right now than in the prosecution of whistleblowers under the Espionage Act.

It is, of course, a blatant lie that there has been no outreach.

Just hours earlier (I think about three?), Glenn Greenwald went onto Tucker Carlson’s show — a show that has repeatedly served as a platform for people to pitch pardons — and argued that Trump should pardon Snowden and Julian Assange. Though Glenn had promised he would be talking about journalism, he instead pitched the pardon as a good way for Trump to stick it to the Deep State. Glenn’s pitch was not only premeditated (it had been rescheduled days earlier), but it was delivered to fit Tucker’s 3 minute time slot.

So Glenn lied about defending journalism (rather than just damaging the Deep State), and Snowden lied about there being no outreach. Snowden also, in the other clip, lied about Putin taking no interest in him.

There was one truth told. When Snowden said, “if that [outreach about a pardon] were happening, it would be certainly news that we would hear through other channels,” he was effectively telling the truth. This was news on another channel: Glenn Greenwald, appearing on Fox News, just hours earlier, pitched Trump on a pardon.

Snowden, in turn, suggested that Trump was thinking of ending the “war on whistleblowers” and — at a time when Trump is ending the careers of people who make legal whistleblowing claims upholding democracy, with glee — claimed that there is no place where unfairness is more clear than the prosecution of whistleblowers under the Espionage Act.

I’ll spot Snowden that one for his own self-interest.

Then Snowden calls for a pardon for three others he suggests are serving time in prison. Reality Winner and Terry Albury are serving time. But Daniel Hale is not. He’s out on bail awaiting trial. In other words, Snowden is actually just calling to pardon everyone who leaked to The Intercept.

In fact, unless Trump decides to pardon Hale, who doesn’t have anyone lobbying him on Tucker Carlson’s show, Snowden just made Hale’s life worse.

That’s because the government believes that Hale was “inspired” by 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.

That is, Snowden — who with WikiLeaks’ Sarah Harrison made sure to avoid capture so he could be an inspiration to others to follow — effectively just confirmed what the government has only alleged, and in secret, that there is a tie between him and Hale. In so doing, he has also confirmed an allegation in the superseding Assange indictment.

Between them, Snowden and Glenn are feigning that Trump would pardon anyone out of any concern for journalism or whistleblowing. Both claims are utterly absurd.

And in so doing, they’re going to make sure that any pardon Snowden gets is not because Trump cares about journalism or even wants to rein in spying (he has done the opposite, on both counts), but is done exclusively in the name of damaging the Deep State.

Glenn Greenwald Moves to Close the Deal on Trump’s Election Help Quid Pro Quo

Two days ago, Glenn Greenwald started teasing a cable appearance where he was going to discuss — he claimed — the dangers an Assange extradition poses to press freedom. He was coy, however, about what outlet it was.

When he announced that his appearance had been postponed, he was again coy about what outlet this was.

The next day he described how “tyrannical” the hawkish civil servants who inhabit the Deep State are.

Last night, shortly before he went on, he revealed the cable outlet was Tucker Carlson’s show, which, he claimed, was “one of the few places on cable” where he could discuss the dangers of the prosecution of Julian Assange and the persecution of Edward Snowden. He excused his appearance on a white supremacist’s show by explaining that he cares more about having an opportunity to speak to “millions of Americans” about the “abuse of power by CIA/DOJ in persecuting those who expose the truth” than he does about the “sentiments of online liberals.”

Here’s the appearance, with my transcription to follow.

Tucker: WikiLeaks’ Julian Assange has been held in a high security prison since his arrest last spring in the Ecuadorian Embassy where he effectively was held for many years, in isolation. His extradition hearing is now finally under way. Assange’s lawyer estimates he could face 175 years in prison if he’s extradited to the United States. He faces Espionage charges here. WikiLeaks exposed all kinds of things, some of which it was good to know — including corruption by the Democratic National Committee in 2016. So what is the story on Julian Assange. Why is the DOJ pursuing this case so aggressively? Glenn Greenwald has followed this from the very beginning. He is of course a journalist, founded The Intercept. And we’re happy to have him tonight. So Glenn, thanks for coming on. I think a lot of people have heard for years that Julian Assange is a bad guy who hurt the United States, now the United States is going to bring justice in this case. What’s your view of this? Tell us what we should know, in 3 minutes, about Julian Assange.

Glenn: Let’s remember, Tucker, that the criminal investigation into Julian Assange began by the Obama Administration because in 2010 WikiLeaks published a slew of documents — none of which harmed anybody, not even the government claims that. That was very embarrassing to the Obama Administration. It revealed all kinds of abuses and lies that they were telling about these endless wars that the Pentagon and the CIA are determined to fight. They were embarrassing to Hillary Clinton, and so they conducted, they initiated a grand jury investigation to try and prosecute him for reporting to the public. He worked with the New York Times, the Guardian, to publish very embarrassing information about the endless war machine, about the Neocons who were working in the Obama Administration. To understand what’s happening here, we can look at a very similar case which is one that President Trump recently raised is the prosecution by the Obama Administration, as well, of Edward Snowden for the same reason — that he exposed the lies that James Clapper told, he exposed how there’s this massive spying system that the NSA and the CIA control, that they can use against American citizens. Obviously this isn’t coming from President Trump! He praised WikiLeaks in 2016 for informing the public. He knows, firsthand, how these spying systems that Edward Snowden exposed can be abused and were abused in 2016. This is coming from people who work in the CIA, who work in the Pentagon, who insist on endless war, and who believe that they’re a government unto themselves, more powerful than the President. I posted this weekend that there’s a speech from Dwight Eisenhower warning that this military industrial complex — what we now call the Deep State — is becoming more powerful than the President. Chuck Schumer warned right before President Obama — President Trump — took office that President Trump challenging the CIA was foolish because they have many ways to get back at anybody who impedes them. That’s what these cases are about Tucker, they’re punishing Julian Assange and trying to punish Edward Snowden for informing the public about things that they have the right to know about the Obama Administration. They’re basically saying to President Trump, “You don’t run the country even though you were elected. We do!” And they’re daring him to use his pardon power to put an end to these very abusive prosecutions. One which resulted in eight years of punishment for Julian Assange for telling the truth, the other which resulted in seven years of exile for Edward Snowden of being in Russia simply for informing the public and embarrassing political officials who are very powerful.

Tucker: So, in thirty seconds, the President could pardon Julian Assange right now, and end this. Is that correct?

Glenn: He could pardon him and Edward Snowden and there’s widespread support across the political spectrum on both the right and the left for doing both. It would be politically advantageous for the President. The only people who would be angry would be Susan Rice, John Brennan, Jim Comey, and James Clapper because they’re the ones who both of them exposed.

As has become the new norm for Glenn, there’s a lot that is exaggerated or simply made up in this rant (I’ve bolded the four main claims above):

  • It is not the case that the government claims no one was harmed by Assange’s releases (even assuming we’re limiting the discussion to those already charged, and ignoring Vault 7, where the government presented hours and hours of testimony on the subject). The government has repeatedly claimed they caused a great deal of harm, even if they have not released their damage assessments publicly.
  • The files that Assange has been charged for do include the first (in the case of the Afghan and Iraq War Logs) and the first two years of Obama’s term (in the case of Cablegate). They also include details about Guantanamo that were helpful to Obama’s failed efforts to shut down the gulag set up by Bush. The files did cause grave embarrassment to the Obama Administration, both for some policy stances (Yemen remains, to my mind, one of the most important disclosures), and because the Obama Administration had to explain how candid conversations could leak. But to the extent one wants to (as Glenn appears to) make this about tribalism, they exposed far more about the Bush Administration, and many of the policies exposed (like support for torture and Saudi Arabia) are policies Trump is more supportive of than Obama was.
  • Glenn insinuates that the spying systems revealed by Edward Snowden were abused in 2016. He suggests that Trump was targeted by them. Glenn has made this error before, in his invention-filled defense of Mike Flynn. But there is no relationship between Snowden’s disclosures of NSA programs and the FBI surveillance that caught Flynn incidentally or FBI’s FISA targeting of Carter Page. And the worst abuses on the Page targeting happened in 2017, under Trump. Crazier still, Trump himself is worse on surveillance issues than Obama was! He has had enemies targeted by contract spies to thwart a peace deal. His DOJ got a Title III warrant on a suspected leaker to capture evidence implicating the journalists he was leaking to. Various of his agencies have been purchasing location data to bypass a Supreme Court prohibition on warrantless surveillance of location. ICE and other agencies have ratcheted up earlier spying on immigrants and those who advocate for them. And Trump’s Attorney General — the guy who unilaterally approved the predecessor of the spying systems Snowden exposed — has said the government doesn’t need Section 215 (one authority Snowden exposed) to conduct the surveillance it had been using it for until March 15, 2020; the suspicion is Barr has resumed reliance on legal claims rejected in 2010. It is, frankly, insane for Glenn to suggest that Trump is better on surveillance than his predecessors.

And while WikiLeaks releases have been embarrassing in certain ways to John Brennan, Jim Comey, and (especially) James Clapper, I’m particularly astounded that Glenn claims that Susan Rice was “exposed” by the releases.

I checked. I found just three Cablegate releases involving Susan Rice. One discusses efforts to remain engaged in the Democratic Republic of Congo. One discusses a meeting between Rice, Dennis Ross, and Ban Ki-moon where Obama’s officials described wanting to establish a bilateral channel with Iran in pursuit of peace.

Ambassador Rice and Special Advisor for the Gulf and Southwest Asia Ambassador Dennis Ross on June 9 met with UN Secretary-General Ban Ki-moon to explain key elements of U.S. diplomatic outreach to Iran and to hear Ban’s assessment. Ambassador Ross explained that President Obama in various fora and particularly from Cairo has made it clear that the USG will engage Iran without any preconditions.

[snip]

Ambassador Ross said the USG values the P5 1 structure for dealing with Iran because it is a statement of the international community’s resolve to deal with the nuclear issue in a coordinated fashion, and he said the USG will be a full participant in the P5 1 structure. Despite its importance, Ambassador Ross said the USG aims to engage Iran bilaterally, because that would allow for a broader treatment of the issues, which is more difficult to achieve in a multilateral context.

And one describes Rice engaging with UN Relief and Works Agency (UNRWA) Director for Gaza John Ging to learn how supporting infrastructure projects in Gaza would counter the growth of Hamas.

In an October 22 meeting with USUN Ambassador Susan Rice, UN Special Coordinator for the Middle East Peace Process (UNSCO) Robert Serry and UN Relief and Works Agency (UNRWA) Director for Gaza John Ging emphasized the need to restart essential infrastructure projects in Gaza, including shelters and schools. As a result of the Israeli “blockade,” both Serry and Ging noted that Hamas now controls Gaza’s tunnel-driven economy, increasing people’s dependency on Hamas. Ging described a population in Gaza suffering from massive physical devastation. He pointed out that while Hamas has all the cement it needs to build a new checkpoint near Erez, the UN cannot get the cement it needs to build a single school. Serry stressed the need for a new strategy on Gaza, suggesting that the current policy has only strengthened Hamas’ position.

In short, purported anti-imperialist Glenn Greenwald claims that Susan Rice was “exposed” because Cablegate revealed her involvement in efforts to make peace in Iran and Gaza.

But Glenn’s lies and exaggerations aren’t the craziest thing about this appearance.

The craziest thing about the appearance is that Glenn doesn’t talk about the danger to journalism of an Assange extradition.

What Glenn does instead of discussing the very real dangers that the Assange extradition poses to journalism is instead push Trump’s buttons — the very same buttons that Sergei Kislyak first started pushing on December 31, 2016, when he called Flynn to tell him that Putin had not retaliated against Obama’s sanctions because, in part, the sanctions were “targeted not only against Russia, but also the president elect.”

KISLYAK: I, I just wanted to tell you that our conversation was also taken into account in Moscow and …

FLYNN: Good

KISLYAK: Your proposal that we need to act with cold heads, uh, is exactly what is uh, invested in the decision.

FLYNN: Good

KISLYAK: And I just wanted to tel I you that we found that these actions have targeted not only against Russia, but also against the president elect.

FLYNN: yeah, yeah

KISLYAK: and and with all our rights to responds we have decided not to act now because, its because people are dissatisfied with the lost of elections and, and its very deplorable. So, so I just wanted to let you know that our conversation was taken with weight.

Glenn’s case — made in an appearance that was transparently an attempt to lobby the President directly — wasn’t about journalism. It was about sticking it to the “tyrannical” civil servants in the Deep State™ who had the audacity to try to protect the country from Russian interference. Glenn pitched this as one more way for Trump to damage Obama (which is presumably why Glenn falsely claimed that Obama was the most embarrassed by the disclosures), spitting out the names — Jim Comey, James Clapper, and Susan Rice’s tyrannical consideration of how to improve life in Gaza — that serve as triggers to the President.

And, remarkably, at a time when all the messaging of WikiLeaks supporters is focused on claiming that Trump has targeted Assange as part of his larger war on the press (a bullshit claim, but politically useful in an effort to mobilize press advocates in support of Assange), Glenn does the opposite, suggesting that Trump wants to pardon Assange (and Snowden), but the Deep State that Trump has been in charge of for 45 months, that Trump has purged of any disloyalty and much competence, is preventing him.

Of course, Tucker knows his audience of one, and so tees this up perfectly, reminding Trump of the only information Assange exposed that Trump cares about: Democratic emails that Russia released to help Trump get elected.

Seven days after the election, Trump’s rat-fucker, Roger Stone, started pursuing a pardon for Julian Assange. I’m increasingly convinced that effort started earlier, as part of Stone’s efforts to optimize the release of the emails in August 2016. Up until now, the overt signs of the effort to pay off Trump’s debt to Assange (and Russia) for help getting elected seemed to cease in 2018, after the nihilistic damage of the Vault 7 releases made such an effort increasingly toxic (and perhaps because the Mueller investigation made it legally dangerous).

But last night, Glenn Greenwald joined Tucker Carlson to renew the effort explicitly, claiming to defend press freedoms but instead pitching it as an opportunity to stick to to a Deep State™ that both Glenn and Trump have inflated so ridiculously that they prefer real tyranny to civil servants pursuing draconian measures within the dregs of law that Trump hasn’t already blown away.

For four years, this campaign debt has been hanging over Trump’s head. And Glenn Greenwald, pushing all the same buttons Russia did starting in 2016, last night moved to close the deal.

[Photo: National Security Agency, Ft. Meade, MD via Wikimedia]

Basaaly Moalin Wins His Appeal — But Gets Nothing

Basaaly Moalin is a Somali-American prosecuted for funding Al-Shabaab in 2010 who, years later, was used by FBI to justify the phone dragnet. After Edward Snowden revealed the Section 215 dragnet, the FBI pointed to his case, claiming they would not have found him were it not for the dragnet.

He just won an appeal of his case in the 9th Circuit, which found that the Section 215 dragnet may violate the Fourth Amendment. But it doesn’t do him any good, because the 9th Circuit panel determined that the government had been lying about how central the dragnet was in identifying him in the first place. The ruling is important, however, because it affirms that if the government is going to use evidence obtained from surveillance in court — or derived from surveillance — they need to notify the defendant.

The opinion argued that the Third Party doctrine probably doesn’t apply here, because current metadata collection obtains so much more than old-style pen registers.

There are strong reasons to doubt that Smith applies here.
Advances in technology since 1979 have enabled the
government to collect and analyze information about its
citizens on an unprecedented scale. Confronting these
changes, and recognizing that a “central aim” of the Fourth
Amendment was “to place obstacles in the way of a too
permeating police surveillance,” the Supreme Court recently
declined to “extend” the third-party doctrine to information
whose collection was enabled by new technology. Carpenter
v. United States, 138 S. Ct. 2206, 2214, 2217 (2018) (quoting
United States v. Di Re, 332 U.S. 581, 595 (1948)).

Carpenter did not apply the third-party doctrine to the
government’s acquisition of historical cell phone records
from the petitioner’s wireless carriers. The records revealed
the geographic areas in which the petitioner used his cell
phone over a period of time. Id. at 2220. Citing the “unique
nature of cell phone location information,” the Court
concluded in Carpenter that “the fact that the Government
obtained the information from a third party does not
overcome [the petitioner’s] claim to Fourth Amendment
protection,” because there is “a world of difference between
the limited types of personal information addressed in Smith
. . . and the exhaustive chronicle of location information
casually collected by wireless carriers today.” Id. at 2219–
20.

There is a similar gulf between the facts of Smith and the
NSA’s long-term collection of telephony metadata from
Moalin and millions of other Americans.

[snip]

The distinctions between Smith and this case are legion
and most probably constitutionally significant. To begin
with, the type of information recorded in Smith was
“limited” and of a less “revealing nature” than the telephony
metadata at issue here. Carpenter, 138 S. Ct. at 2219. The
pen register did not disclose the “identities” of the caller or
of the recipient of a call, “nor whether the call was even
completed.” Smith, 442 U.S. at 741 (quoting United States v.
New York Tel. Co., 434 U.S. 159, 167 (1977)). In contrast,
the metadata in this case included “comprehensive communications routing information, including but not limited to session identifying information (e.g., originating and terminating telephone number, International Mobile station Equipment Identity (IMEI) number, International Mobile Subscriber Identity (IMSI) number, etc.), trunk identifier, telephone calling card numbers, and time and duration of call.” In re Application II, 2013 WL 5741573, at *1 n.2. “IMSI and IMEI numbers are unique numbers associated with a particular telephone user or communications device.” Br. of Amici Curiae Brennan Center for Justice 11. “A ‘trunk identifier’ provides information about where a phone connected to the network, revealing data that can locate the parties within approximately a square kilometer.” Id. at 11–12.

Although the Smith Court perceived a significant distinction between the “contents” of a conversation and the phone number dialed, see 442 U.S. at 743, in recent years the distinction between content and metadata “has become increasingly untenable,” as Amici point out. Br. of Amici Curiae Brennan Center for Justice 6. The amount of metadata created and collected has increased exponentially, along with the government’s ability to analyze it. “Records that once would have revealed a few scattered tiles of information about a person now reveal an entire mosaic—a vibrant and constantly updating picture of the person’s life.” Klayman v. Obama, 957 F. Supp. 2d 1, 36 (D.D.C. 2013), vacated and remanded, 800 F.3d 559 (D.C. Cir. 2015). According to the NSA’s former general counsel Stewart Baker, “[m]etadata absolutely tells you everything about somebody’s life. . . . If you have enough metadata you don’t really need content . . . .” Laura K. Donohue, The Future of Foreign Intelligence 39 (2016). The information collected here was thus substantially more revealing than the telephone numbers recorded in Smith.

Importantly, it pointed to how much more revealing Moalin’s metadata was collected in conjunction with that of millions of other people (a point I made shortly after the District Court rejected Moalin’s original challenge).

Also problematic is the extremely large number of people from whom the NSA collected telephony metadata, enabling the data to be aggregated and analyzed in bulk. The government asserts that “the fact that the NSA program also involved call records relating to other people . . . is irrelevant because Fourth Amendment rights . . . cannot be raised vicariously.” Br. of United States 58. The government quotes the FISA Court, which reasoned similarly that “where one individual does not have a Fourth Amendment interest, grouping together a large number of similarly-situated individuals cannot result in a Fourth Amendment interest springing into existence ex nihilo.” In re Application II, 2013 WL 5741573, at *2. But these observations fail to recognize that the collection of millions of other people’s telephony metadata, and the ability to aggregate and analyze it, makes the collection of Moalin’s own metadata considerably more revealing.

After suggesting that Carpenter would apply to this dragnet, the panel then concluded that it doesn’t matter, because the dragnet wasn’t all that central to obtaining a warrant against Moalin.

Having carefully reviewed the classified FISA applications and all related classified information, we are convinced that under established Fourth Amendment standards, the metadata collection, even if unconstitutional, did not taint the evidence introduced by the government at trial. See Wong Sun v. United States, 371 U.S. 471, 488 (1963). To the extent the public statements of government officials created a contrary impression, that impression is inconsistent with the contents of the classified record

This will be a working thread.

The Government Argues that Edward Snowden Is a Recruiting Tool

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.