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The Theory of Prosecution You Love for Julian Assange May Look Different When Applied to Jason Leopold

The WaPo confirmed something Seamus Hughes disclosed last night: Sometime before August 22, EDVA had filed a sealed complaint (not indictment) against Julian Assange.

WikiLeaks founder Julian Assange has been charged under seal, prosecutors inadvertently revealed in a recently unsealed court filing — a development that could significantly advance the probe into Russian interference in the 2016 election and have major implications for those who publish government secrets.

The disclosure came in a filing in a case unrelated to Assange. Assistant U.S. Attorney Kellen S. Dwyer, urging a judge to keep the matter sealed, wrote that “due to the sophistication of the defendant and the publicity surrounding the case, no other procedure is likely to keep confidential the fact that Assange has been charged.” Later, Dwyer wrote the charges would “need to remain sealed until Assange is arrested.”

Dwyer is also assigned to the WikiLeaks case. People familiar with the matter said what Dwyer was disclosing was true, but unintentional.

The confirmation closely follows a WSJ story describing increased confidence that the US will succeed in extraditing Assange for trial.

The confirmation that Assange has been charged has set off a frenzy, both among Assange supporters who claim this proves their years of claims he was indicted back in 2011 and insisting that charging him now would amount to criminalizing journalism, and among so-called liberals attacking Assange lawyer Barry Pollack’s scolding of DOJ for breaking their own rules.

I’ve long been on record saying that I think most older theories of charging Assange would be very dangerous for journalism. More recently, though, I’ve noted that Assange’s actions with respect to Vault 7, which had original venue in EDVA where the Assange complaint was filed (accused leaker Joshua Schulte waived venue in his prosecution), go well beyond journalism. That said, I worry DOJ may have embraced a revised theory on Assange’s exposure that would have dire implications for other journalists, most urgently for Jason Leopold.

There are, roughly, four theories DOJ might use to charge Assange:

  • Receiving and publishing stolen information is illegal
  • Conspiring to release stolen information for maximal damage is illegal
  • Soliciting the theft of protected information is illegal
  • Using stolen weapons to extort the US government is illegal

Receiving and publishing stolen information is illegal

The first, theory is the one that Obama’s DOJ rejected, based on the recognition that it would expose NYT journalists to prosecution as well. I suspect the Trump Administration will have the same reservations with such a prosecution.

Conspiring to release stolen information for maximal damage is illegal

The second imagines that Assange would be charged for behavior noted in the GRU indictment — WikiLeaks’ solicitation, from someone using the persona of Guccifer 2.0, of material such that it would be maximally damaging to Hillary Clinton.

On or about June 22, 2016, Organization 1 sent a private message to Guccifer 2.0 to “[s]end any new material [stolen from the DNC] here for us to review and it will have a much higher impact than what you are doing.” On or about July 6, 2016, Organization 1 added, “if you have anything hillary related we want it in the next tweo [sic] days prefable [sic] because the DNC [Democratic National Convention] is approaching and she will solidify bernie supporters behind her after.” The Conspirators responded, “ok . . . i see.” Organization 1 explained, “we think trump has only a 25% chance of winning against hillary . . . so conflict between bernie and hillary is interesting.”

After failed attempts to transfer the stolen documents starting in late June 2016, on or about July 14, 2016, the Conspirators, posing as Guccifer 2.0, sent Organization 1 an email with an attachment titled “wk dnc link1.txt.gpg.” The Conspirators explained to Organization 1 that the encrypted file contained instructions on how to access an online archive of stolen DNC documents. On or about July 18, 2016, Organization 1 confirmed it had “the 1Gb or so archive” and would make a release of the stolen documents “this week.”

Significantly, WikiLeaks (but not Roger Stone) was referred to in the way an unidicted co-conspirator normally is, not named, but described in such a way to make its identity clear.

This is a closer call. There is a Supreme Court precedent protecting journalists who publish stolen newsworthy information. But it’s one already being challenged in civil suits in ways that have elicited a lot of debate. Prosecuting a journalist for trying to do maximal damage actually would criminalize a great deal of political journalism, starting with but not limited to Fox. Note that when the founders wrote the First Amendment, the norm was political journalism, not the so-called objective journalism we have now, so they certainly didn’t expect press protections to be limited to those trying to be fair to both sides.

Such a charge may depend on the degree to which the government can prove foreknowledge of the larger agreement with the Russians to damage Hillary, as well as the illegal procurement of information after WikiLeaks expressed an interest in information damaging Hillary.

Mueller might have evidence to support this (though there’s also evidence that WikiLeaks refused to publish a number of things co-conspirators leaked to them, including but not limited to the DCCC documents). The point is, we don’t know what the fact pattern on such a prosecution would look like, and how it would distinguish the actions from protected politically engaged journalism.

Soliciting the theft of protected information is illegal

Then there’s the scenario that Emma Best just hit on yesterday: that DOJ would prosecute Assange for soliciting hacks of specific targets. Best points to Assange’s close coordination with hackers going back to at least 2011 (ironically, but in a legally meaningless way, with FBI’s mole Sabu).

This is, in my opinion, a possible way DOJ would charge Assange that would be very dangerous. I’m particularly worried because of the way the DOJ charged Natalie Mayflower Edwards for leaking Suspicious Activity Reports to Jason Leopold. Edwards was charged with two crimes: Unauthorized Disclosure of Suspicious Activity Reports and Conspiracy to Make Unauthorized Disclosures of Suspicious Activity Reports (using the same Conspiracy charge that Mueller has been focused on).

In addition to describing BuzzFeed stories relying on SARs that Edwards saved to a flash drive by October 18, 2017 and then January 8, 2018, it describes a (probably Signal) conversation from September 2018 where Leopold — described in the manner used to describe unindicted co-conspirators — directed Edwards to conduct certain searches for material that ended up in an October story on Prevezon, a story published the day before Edwards was charged.

As noted above, the October 2018 Article regarded, among other things, Prevezon and the Investment Company. As recently as September 2018, EDWARDS and Reporter-1 engaged in the following conversation, via the Encrypted Application, in relevant part:

EDWARDS: I am not getting any hits on [the CEO of the Investment Company] do you have any idea what the association is if I had more information i could search in different areas

Reporter-1: If not on his name it would be [the Investment Company]. That’s the only other one [The CEO] is associated with Prevezon Well not associated His company is [the Investment Company]

Based upon my training and experience, my participation in the investigation, and my conversations with other law enforcement agents familiar with the investigation, I believe that in the above conversation, EDWARDS was explaining that she had performed searches of FinCEN records relating to Prevezon, at Reporter-l’s request, in order to supply SAR information for the October 2018 Article.

Edwards still has not been indicted, two weeks after her arraignment. That suggests it’s possible the government is trying to persuade her to plead and testify against Leopold in that conspiracy, thereby waiving indictment. The argument, in that case, would be that Leopold went beyond accepting stolen protected information, to soliciting the theft of the information.

This is the model a lot of people are embracing for an Assange prosecution, and it’s something that a lot of journalists not named Jason Leopold also do (arguably, it’s similar but probably more active than what James Rosen got dubbed a co-conspirator in the Stephen Jin-Woo Kim case).

Charging Leopold in a bunch of leaks pertaining to Russian targets would be a nice way (for DOJ, not for journalism) to limit any claim that just Assange was being targeted under such a theory. Indeed, it would placate Trump and would endanger efforts to report on what Mueller and Congress have been doing. Furthermore, it would be consistent with the aggressive approach to journalists reflected in the prosecution of James Wolfe for a bunch of leaks pertaining to Carter Page, which involved subpoenaing years of Ali Watkins’ call records.

In short, pursuing Leopold for a conspiracy to leak charge would be consistent with — and for DOJ, tactically advantageous — the theory under which most people want Assange charged.

Using stolen weapons to extort the US government is illegal

Finally, there’s the fourth possibility, and one I think is highly likely: charging Assange for his serial efforts to extort a pardon from the US government by threatening to release the Vault 7 (and ultimately, a single Vault 8 live malware) files.

This post shows how, starting in January 2017, Assange (and Oleg Deripaska) representative Adam Waldman was reaching out to top DOJ officials trying to negotiate a deal and using the release of the Vault 7 documents as leverage.

This post shows how, the second time Assange tweeted Don Jr asking for an Ambassadorship, he included a threatening reference to Vault 8, WikiLeaks’ name for the actual malware stolen and leaked from CIA, the first file from which Assange had released days earlier.

[B]ack in November 2017, some outlets began to publish a bunch of previously undisclosed DMs between Don Jr and Wikileaks. Most attention focused on Wikileaks providing Don Jr access to an anti-Trump site during the election. But I was most interested in Julian Assange’s December 16, 2016 “offer” to be Australian Ambassador to the US — basically a request for payback for his help getting Trump elected.

Hi Don. Hope you’re doing well! In relation to Mr. Assange: Obama/Clinton placed pressure on Sweden, UK and Australia (his home country) to illicitly go after Mr. Assange. It would be real easy and helpful for your dad to suggest that Australia appoint Assange ambassador to DC “That’s a really smart tough guy and the most famous australian you have! ” or something similar. They won’t do it, but it will send the right signals to Australia, UK + Sweden to start following the law and stop bending it to ingratiate themselves with the Clintons. 12/16/16 12:38PM

In the wake of the releases, on November 14, 2017, Assange tweeted out a follow-up.

As I noted at the time, the offer included an implicit threat: by referencing “Vault 8,” the name Wikileaks had given to its sole release, on November 9, 2017 of an actual CIA exploit (as opposed to the documentation that Wikileaks had previously released), Assange was threatening to dump more hacking tools, as Shadow Brokers had done before it. Not long after, Ecuador gave Assange its first warning to stop meddling in other countries politics, explicitly pointing to his involvement in the Catalan referendum but also pointing to his tampering with other countries. That warning became an initial ban on visitors and Internet access in March of this year followed by a more formal one on May 10, 2018 that remains in place.

Notably, Ecuador may have warned Assange back then to stop releasing America’s malware from their Embassy; those warnings have laid the groundwork for the rigid gag rules recently imposed on Assange on risk of losing asylum.

Immediately after this exchange, accused Vault 7/8 leaker Joshua Schulte had some Tor accesses which led to him losing bail. They didn’t, however, lead BOP to take away his multiple devices (!?!?!). Which means that when they raided his jail cell on or around October 1, they found a bunch of devices and his activity from 13 email and social media accounts. Importantly, DOJ claims they also obtained video evidence of Schulte continuing his efforts to leak classified information.

The announcement of that raid, and the additional charges against Schulte, coincided with a period of increased silence from WikiLeaks, broken only by last night’s response to the confirmation Assange had been charged.

I think it possible and journalistically safe to go after Assange for releasing stolen weapons to extort a criminal pardon. But most of the other theories of prosecuting Assange would also pose real risks for other journalists that those rooting for an Assange prosecution appreciate and rely on.

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

Dick Cheney on the Dangers of Internet Spying

There are several notable things about this interview [Playboy link: mostly SFW] with Dick Cheney (in addition to the detail that Cheney has his “slender, mustachioed housekeeper named Gus” provide a never-ending stream of lattes, prepared at the house, but served in paper Starbucks cups). One of the most striking, however, is how he responds to interviewer James Rosen’s suggestion that the Internet is democratizing.

Do you regard the internet as an intrinsically democratizing force?
[Chuckles, pauses] Oh boy, you know, we’re blue-skyin’ it now. I think it clearly has had a significant impact. “A democratizing force.” Um. [pauses]

In the sense that whenever you have a freer flow of information, that’s going to redound to the forces of good.
Yeah, but on the other hand, I suppose you could argue that it provides ways in which the government, an authoritarian government, can exert control over and monitor and keep track of what everybody is up to and what they are doing. It’s not a one-way street. It’s not necessarily—I need to think about that before I comment further.

The man who implemented an illegal dragnet admits that governments (only authoritarian ones, he suggests? or does the use of such methods make a government authoritarian?) might exert control via the Internet.

If it weren’t for Cheney’s long history implementing just that type of monitoring (certainly on the rest of the world, and to an extent on Americans), I might think he’d been hanging around with Edward Snowden!

Friday News Dump Not Dead Yet: Stephen Kim Guilty Plea

Just when Kevin Drum declared the “Friday News Dump” dead, comes proof news of said death was greatly exaggerated.

As Josh Gerstein and others have reported, the plea will be entered this afternoon:

Under the terms of the agreement, Kim will plead guilty to a single felony count of disclosing classified information to Rosen in June 2009, and serve a 13-month prison sentence. Judge Colleen Kollar-Kotelly would have to accept the sentence or reject it outright?, in which case Kim could withdraw his plea. Kim would also be on supervised release for a year, but would pay no fine.

Judge Kollar-Kotelly is expected to accept the guilty plea at today’s hearing, but will not impose a sentence until sometime later.

Well, that is kind of a big deal dropped out of nowhere on a Friday afternoon.

As you may recall, this is the infamous case where the Obama/Holder DOJ was caught classifying a journalist, James Rosen of Fox News, as an “aider and abettor” of espionage. As the Washington Post reported, the scurrilous allegation was clear as day in a formal warrant application filed as an official court document:

“I believe there is probable cause to conclude that the contents of the wire and electronic communications pertaining to the SUBJECT ACCOUNT [the gmail account of Mr. Rosen] are evidence, fruits and instrumentalities of criminal violations of 18 U.S.C. 793 (Unauthorized Disclosure of National Defense Information), and that there is probable cause to believe that the Reporter has committed or is committing a violation of section 793(d), as an aider and abettor and/or co-conspirator, to which the materials relate,” wrote FBI agent Reginald B. Reyes in a May 28, 2010 application for a search warrant.

The search warrant was issued in the course of an investigation into a suspected leak of classified information allegedly committed by Stephen Jin-Woo Kim, a former State Department contractor, who was indicted in August 2010.

The Reyes affidavit all but eliminates the traditional distinction in classified leak investigations between sources, who are bound by a non-disclosure agreement, and reporters, who are protected by the First Amendment as long as they do not commit a crime.

[snip]

As evidence of Mr. Rosen’s purported culpability, the Reyes affidavit notes that Rosen and Kim used aliases in their communications (Kim was “Leo” and Rosen was “Alex”) and in other ways sought to maintain confidentiality.

“From the beginning of their relationship, the Reporter asked, solicited and encouraged Mr. Kim to disclose sensitive United States internal documents and intelligence information…. The Reporter did so by employing flattery and playing to Mr. Kim’s vanity and ego.”

“Much like an intelligence officer would run an [sic] clandestine intelligence source, the Reporter instructed Mr. Kim on a covert communications plan… to facilitate communication with Mr. Kim and perhaps other sources of information.”

Of course, the fully justifiable uproar over the Rosen treatment by DOJ eventually led to “new guidelines”, being issued by the DOJ. The new guidelines are certainly a half step in the right direction, but wholly unsatisfactory for the breadth and scope of the current Administration’s attack on the American free press.

But now the case undergirding the discussion in the Stephen Kim case will be shut down, and the questions that could play out in an actual trial quashed. All nice and tidy!

Frankly, I have mixed emotions about the reported Kim plea itself. It is, all in all, a pretty good deal for Kim and his attorney, the great Abbe Lowell. The case is done, bad precedent does not get etched into a jury verdict and appeal, and the nightmare has an end in sight for the defendant, Stephen Kim. All things considered, given the seriousness of the espionage and false statement charges in the indictment, 13 months is a good outcome. And it is not a horrible sentence to have as a yardstick for other leakers (were I Ed Snowden and Ben Wizner, I would like this result). By the same token, the damage done by the ridiculous antics and conduct of the DOJ in getting to this point is palpable. It will leave a stain that won’t, and shouldn’t, go away.

That still leaves the matter of Jeffrey Sterling, and reporter James Risen, though. Whither DOJ on that? And it is an important question since the much ballyhooed and vaunted “New Media Policies” announced by DOJ left wide open the ability to force Risen (and others that may some day be similarly situated) to testify about his sources of face jail for contempt.

Further Implications of UndieBomb II Leaker Guilty Plea

As you have likely heard by now, a former FBI agent has agreed to plead guilty to leaking material about the second underwear bomb attempt to reporters in May of 2012. Charlie Savage of the New York Times has the primary rundown:

A former Federal Bureau of Investigation agent has agreed to plead guilty to leaking classified information to The Associated Press about a foiled bomb plot in Yemen last year, the Justice Department announced on Monday. Federal investigators said they identified him after obtaining phone logs of Associated Press reporters.

The retired agent, a former bomb technician named Donald Sachtleben, has agreed to serve 43 months in prison, the Justice Department said. The case brings to eight the number of leak-related prosecutions brought under President Obama’s administration; under all previous presidents, there were three such cases.

“This prosecution demonstrates our deep resolve to hold accountable anyone who would violate their solemn duty to protect our nation’s secrets and to prevent future, potentially devastating leaks by those who would wantonly ignore their obligations to safeguard classified information,” said Ronald C. Machen Jr., the United States attorney for the District of Columbia, who was assigned to lead the investigation by Attorney General Eric H. Holder Jr.

In a twist, Mr. Sachtleben, 55, of Carmel, Ind., was already the subject of a separate F.B.I. investigation for distributing child pornography, and has separately agreed to plead guilty in that matter and serve 97 months. His total sentence for both sets of offenses, should the plea deal be accepted by a judge, is 140 months.

Here is the DOJ Press Release on the case.

Here is the information filed in SDIN (Southern District of Indiana). And here is the factual basis for the guilty plea on the child porn charges Sachtleben is also pleading guilty to.

So Sachtleben is the leaker, he’s going to plead guilty and this all has a nice beautiful bow on it! Yay! Except that there are several troubling issues presented by all this tidy wonderful case wrap up.

First off, the information on the leak charges refers only to “Reporter A”, “Reporter A’s news organization” and “another reporter from Reporter A’s news organization”. Now while the DOJ may be coy about the identities, it has long been clear that the “news organization” is the AP and “Reporter A” and “another reporter” are AP national security reporters Matt Apuzzo and Adam Goldman (I’d hazard a guess probably in that order) and the subject article for the leak is this AP report from May 7, 2012.

What is notable about who the reporters are, and which story is involved, is that this is the exact matter that was the subject of the infamous AP phone records subpoenas that were incredibly broad – over 20 business and personal phone lines. These subpoenas, along with those in the US v. Steven Kim case collected against James Rosen and Fox News, caused a major uproar about the sanctity of First Amendment press and government intrusion thereon.

The issue here is that Attorney General Eric Holder and the DOJ, as a result of the uproar over the Read more

Espionage: Now, with No Damage Envisioned

A recently unsealed decision from Colleen Kollar-Kotelly just changed the interpretation of the Espionage Act for Washington DC to cover leaks that wouldn’t even harm the US.

Judge Colleen Kollar-Kotelly ruled that the prosecution in the pending case of former State Department contractor Stephen Kim need not show that the information he allegedly leaked could damage U.S. national security or benefit a foreign power, even potentially.  Her opinion was a departure from a 30 year old ruling in the case of U.S. v. Morison, which held that the government must show that the leak was potentially damaging to the U.S. or beneficial to an adversary.  (In that case, Samuel L. Morison was convicted of unauthorized disclosure of classified intelligence satellite photographs, which he provided to Jane’s Defence Weekly. He was later pardoned by President Clinton.)

“The Court declines to adopt the Morison court’s construction of information relating to the ‘national defense’ insofar as it requires the Government to show that disclosure of the information would be potentially damaging to the United States or useful to an enemy of the United States,” Judge Kollar-Kotelly wrote in a May 30 opinion. The opinion was redacted and unsealed (in partially illegible form) last week.

The prosecution must still show that the defendant “reasonably believed” that the information “could be used to the injury of the United States or to the advantage of a foreign nation” and that the defendant “willfully” communicated it to an unauthorized person.  But it would no longer be necessary for prosecutors to demonstrate that the information itself could potentially damage national security or benefit an adversary.

Imagine how this ruling could empower prosecutors in the AP UndieBomb 2.0 investigation, in which the AP’s story reported only that the US had thwarted an UndieBomb plot. They didn’t report it until after the White House said they had cleared up a sensitive issue relating to the plot (which in practice ended up being the drone death of Fahd al-Quso).

This would make it easier for the government to prosecute AP’s sources for leaking information that even the government had suggested, to the AP, wouldn’t harm US interests.

And of course, all that builds on top of the now routine treatment of leaks to the press as Espionage, something fairly unusual before the Obama Administration.

Frightening.

Why “Members of the News Media” Should Welcome a Shield for the Act of Journalism

As I noted in this piece, the new policies DOJ rolled out in the wake of the AP and James Rosen revelations applies explicitly to “members of the news media,” not journalists per se. The definition might permit the exclusion of bloggers and book writers, not to mention publishers like WikiLeaks.

I’ve been asked what I think a better solution is. My answer is to define — and then protect — the act of journalism, not the news media per se.

That approach would have several advantages over protecting “the news media.” First, by protecting the act of journalism, you include those independent reporters who are unquestioningly engaging in journalism (overcoming the blogger question I laid out, but also those working independently on book projects, and potentially — though this would be a contentious though much needed debate — publishers like WikiLeaks), but also exclude those news personalities who are engaging in entertainment, corporate propaganda, or government disinformation.

But protecting the act of journalism rather than “news media” would also serve to exclude another group that should have limited protection. Included within DOJ’s definition of those it is protecting here are not just the reporters who work for the news media, but also the managers.

“News media” includes persons and organizations that gather, report or publish news, whether through traditional means (e.g., newspapers, radio, magazines, news service) or the on-line or wireless equivalent. A “member of the media” is a person who gathers, reports, or publishes news through the news media.

While I absolutely agree that, say, AP’s editors should have had their phone records protected as they contemplated withholding the UndieBomb 2.0 story after the White House request (those records were included in the subpoena) — that is, as they engaged in a journalistic role. That would protect any discussions they had with sources or other experts to challenge the government’s claim about damage, for example. But the communications of a Tim Russert being pressured after the fact about a critical story by the Vice President’s Chief of Staff should not be protected. Nor should WaPo CEO Katharine Weymouth’s discussions with huge donors like Pete Peterson or potential salon sponsors. While I suspect DOJ sees real benefit in protecting these cocktail weenie means of pressure on news media (as do, undoubtedly, some of the executives involved), I see no journalistic reason to do so.

Moreover, in an era where WaPo is really a testing firm with a journalistic rump and NBC is really the TV content wing of a cable supplier, should we really be protecting the “news media” with no limits? (Bloomberg, I think, presents the most fascinating question here, particularly given their recent spying on users of Bloomberg terminals; where does the journalistic protection for companies that primarily provide privatized information begin and end?)

But even within the scope of Friday’s guidelines, there’s a reason the members of the news media should favor protecting the act of journalism rather than membership in news media.

That’s because two of the most important passages in the new News Media Policies refer to newsgathering activities as a further modification to its otherwise consistent discussion of members of the news media. The phrase appears in what amounts to a mission statement describing why this issue is important.

As an initial matter, it bears emphasis that it has been and remains the Department’s policy that members of the news media will not be subject to prosecution based solely on newsgathering activities. Furthermore, in light of the importance of the constitutionally protected newsgathering process, the Department views the use of tools to seek evidence from or involving the news media as an extraordinary measure. The Department’s policy is to utilize such tools only as a last resort, after all reasonable alternative investigative steps have been taken, and when the information sought is essential to a successful investigation or prosecution.

This is a weird passage, in that it both admits the “newsgathering process” is constitutionally protected, presumably for all, but then suggests the protections within this policy will only apply to members of the news media (one limitation) who cannot be prosecuted exclusively for their newsgathering activities (a second limitation).

Note the parallel limitation in a number of DOJ’s surveillance and investigative guidelines — which say people cannot be investigated solely for their First Amendment protected activities — has not provided adequate protection to Muslims engaging in speech and religion.

The policies again invoke “newsgathering activities” in the passage describing the news media protections in DOJ’s treatment of the Privacy Protection Act.

First, the Department will modify its policy concerning search warrants covered by the PPA involving members of the news media to provide that work product materials and other documents may be sought under the “suspect exception” of the PPA only when the member of the news media is the focus of a criminal investigation for conduct not connected to ordinary newsgathering activities. Under the reviews policy, the Department would not seek search warrants under the PPA’s suspect exception if the sole purpose is the investigation of a person other than the member of the news media.

By limiting protections offered to members of the news media to “ordinary newsgathering activities,” DOJ has just punted one of the crucial issues underlying the James Rosen affidavit (and, along with it, DOJ’s efforts to prosecute WikiLeaks). Because it still permits DOJ to decide, potentially in secret (though, as a laudable part of the new policy, with the input of the Public Affairs Director and the Privacy and Civil Liberties Officer), what constitutes “ordinary newsgathering activities.” And some of the things the FBI officer apparently decided  in that case did not constitute ordinary newsgathering activities, but instead provided evidence that Rosen was part of a conspiracy to commit espionage, include:

  • Soliciting disclosure of intelligence information, including documents, on North Korea
  • Using (in the FBI officer’s description) “covert email communications as a means of compartmentalizing the information” — this includes use of a pseudonym and a code for facilitating non-email communication
  • Exploiting a source “like a rag doll” and the source’s vanity (according to defendant Stephen Jin-Woo Kim’s descriptions); employing flattery (according to the FBI officer’s description)
  • Providing other news articles in advance of their publication to a source not used on that story

While there are other protections for news media in these new policies (including protections from non-NSL Administrative orders, review before using such investigative methods, reporting on how much investigation of news media occurs, and what amount to increased minimization procedures for news media contact information), this is one of the critical new protections in this policy.

If DOJ decides that protecting sources and methods, soliciting information, and sucking up to sources do not constitute “ordinary newsgathering activities,” then how useful are the protections?

DOJ has announced its intention to respect ordinary newsgathering activities and even recognized constitutional protections for them, sort of (I look forward to the legal cases that cite that language, anyway). But until there’s a common understanding about when such activities constitute journalism and when they constitute spying, the protection has limited value.

If the ultimate idea is to protect newsgathering activities, then why not establish what those activities are and then actually protect them, regardless of whether they are tied to a certain kind of institution?

In Bid to Placate Legacy Media, DOJ Moves Closer to Instituting Official Press

The First Amendment was written, in part, to eliminate the kind of official press that parrots only the King’s sanctioned views. But with its revised “News Media Policies,” DOJ gets us closer to having just that, an official press.

That’s because all the changes laid out in the new policy (some of which are good, some of which are obviously flawed) apply only to “members of the news media.” They repeat over and over and over and over, “news media.” I’m not sure they once utter the word “journalist” or “reporter.” And according to DOJ’s Domestic Investigation and Operations Guide, a whole slew of journalists are not included in their definition of “news media.”

DIOG does include online news in its definition of media (PDF 157).

“News media” includes persons and organizations that gather, report or publish news, whether through traditional means (e.g., newspapers, radio, magazines, news service) or the on-line or wireless equivalent. A “member of the media” is a person who gathers, reports, or publishes news through the news media.

But then it goes on to exclude bloggers from those included in the term “news media.”

The definition does not, however, include a person or entity who posts information or opinion on the Internet in blogs, chat rooms or social networking sites, such as YouTube, Facebook, or MySpace, unless that person or entity falls within the definition of a member of the media or a news organization under the other provisions within this section (e.g., a national news reporter who posts on his/her personal blog).

Then it goes onto lay out what I will call the “WikiLeaks exception.”

As the term is used in the DIOG, “news media” is not intended to include persons and entities that simply make information available. Instead, it is intended to apply to a person or entity that gathers information of potential interest to a segment of the general public, uses editorial skills to turn raw materials into a distinct work, and distributes that work to an audience, as a journalism professional.

The definition does warn that if there is any doubt, the person should be treated as media. Nevertheless, the definition seems to exclude a whole bunch of people (including, probably, me), who are engaged in journalism.

The limitation of all these changes to the “news media” is most obvious when it treats the Privacy Protection Act — which should have prevented DOJ from treating James Rosen as a  suspect. They say,

The Privacy Protection Act of 1980 (PPA), 42 U.S.C. § 2000aa, generally prohibits the search or seizure of work product and documentary materials held by individuals who have a purpose to disseminate information to the public. The PPA, however, contains a number of exceptions to its general prohibition, including the “suspect exception” which applies when there is “probable cause to believe that the person possessing such materials has committed or is committing a criminal offense to which the materials relate,” including the “receipt, possession, or communication of information relating to the national defense, classified information, or restricted data “under enumerated provisions. See 42 U.S.C. §§ 2000aa(a)(1) and (b)(1). Under current Department policy, a Deputy Assistant Attorney General may authorize an application for a search warrant that is covered by the PPA, and no higher level reviews or approvals are required.

First, the Department will modify its policy concerning search warrants covered by the PPA involving members of the news media to provide that work product materials and other documents may be sought under the “suspect exception” of the PPA only when the member of the news media is the focus of a criminal investigation for conduct not connected to ordinary newsgathering activities. Under the reviews policy, the Department would not seek search warrants under the PPA’s suspect exception if the sole purpose is the investigation of a person other than the member of the news media.

Second, the Department would revise current policy to elevate the current approval requirements and require the approval of the Attorney General for all search warrants and court orders issued pursuant to 18 U.S.C. § 2703(d) directed at members of the news media. [my emphasis]

The PPA, however, applies to all persons “reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication.”

Notwithstanding any other law, it shall be unlawful for a government officer or employee, in connection with the investigation or prosecution of a criminal offense, to search for or seize any work product materials possessed by a person reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication, in or affecting interstate or foreign commerce;

I’m clearly covered by the PPA. But the FBI could easily decide to exclude me from this “news media” protection so as to be able to snoop into my work product.

Congratulations to the “members of the news media” who have been deemed the President’s official press. I hope you use your privileges wisely.

Update: I’ve learned that the issue of whom this applied to did come up in background meetings at DOJ; in fact, DOJ raised the issue. The problem is, there is no credentialing system that could define who gets this protection and DOJ didn’t want to lay it out (and most of the people invited have never been anything but a member of the news media, making it hard for them to understand how to differentiate a journalist).

Ultimately, I think DOJ is so anxious for Congress to pass a shield law (which they say elsewhere in their report) because it’ll mean Congress will do the dirty work of defining who is and who is not a journalist.

Journalists: Eric Holder Believes You’re Probably a Criminal But Won’t Charge You

As I noted the other day, Eric Holder seems intent on calling journalists whom he believes are co-conspirators in a criminal leak something else.

Which is why I think this detail, from Politico’s leaks-about-a-meeting-about-leaks story, is the most telling I’ve seen on the Holder meeting.

“The guidelines require a balance between law enforcement and freedom of the press, and we all argued that the balance was out of kilter, with the national security and law enforcement interests basically overwhelming the public’s right to get information,” one journalist at the meeting said. “The language concerning ‘aiding and abetting’ comes out of the Privacy [Protection] Act, and they discussed trying to revise that language so that reporters don’t need to be defined as co-conspirators in order to execute search warrants.”

This is a reference to part of the Privacy Act that prohibits the government from seizing media work product unless it is connected to a crime (see pages 5 ff for how it affected the James Rosen warrant application). After claiming Rosen was aiding and abetting a violation of the Espionage Act and therefore his emails could be seized, the FBI then said that since he was potentially criminally liable, he should not get notice. In other words, the aiding abetting was an investigative tactic DOJ used to get around protections put into place just for someone like Rosen.

And DOJ’s solution for abusing a protection meant to protect someone like Rosen is apparently to simply redefine the law, so it can overcome those protections without having to accuse Rosen of being a criminal.

The outcome would remain the same; DOJ would just avoid saying mean things about people associated with powerful media outlets.

But the letter Principal Assistant Deputy Attorney General Peter Kadzik sent to answer Bob Goodlatte and Jim Sensenbrenner’s questions about Eric Holder’s testimony about whether he ever prosecuted a journalist makes it clear he thinks James Rosen probably is a criminal, regardless of what he calls it.

When the Department has initiated a criminal investigation into the unauthorized disclosure of classified information, the Department must, as it does in all criminal investigations, conduct a thorough investigation and follow the facts where they lead. Seeking a search warrant is part of an investigation of potential criminal activity, which typically comes before any final decision about prosecution. Probable cause sufficient to justify a search warrant is different from a decision to bring charges for that crime; probable cause is a significantly lower burden of proof than beyond a reasonable doubt, which is required to obtain a conviction on criminal charges.

Note the slippage here: Kadzik says the standard for a probable cause warrant is different than the standard for charging, then says a probable cause warrant is different from the standard for convicting.

What Kadzik is implicitly suggesting is that while DOJ might think Rosen was a criminal co-conspirator, they’d never win their case against him. So they never considered charging him.

I joked some weeks ago that journalists should take solace in all this: Obviously, Eric Holder holds them in precisely the same category as banksters, those who are guilty of a crime but that DOJ chooses not to charge with one.

This letter seems to support this.

The James Rosen Affidavit Was the 20th Document in the Docket

Screen shot 2013-05-20 at 3.45.46 PMThe is sort of a weedy point.

But if you look at the docket associated with DOJ’s attempt to get James Rosen’s communications, you’ll see it is listed as document 20 in the docket.

Yet no other documents — aside from the order approving the warrant — appear, unsealed, in the docket.

We can’t be sure, but I wonder whether the 19 earlier, still-sealed documents in the docket constitute unsuccessful efforts to get this material. For example, I wonder whether Google initially balked at supplying the material based on the Privacy Protection Act, so DOJ invented the language claiming Rosen was a co-conspirator in Espionage which (at pages 4-5) exempted the materials in question from privacy protection.

In addition, the return associated with the affidavit shows how Google would narrow the search to just those communications between Rosen and Stephen Jin-Yoo Kim. Which suggests some of those 19 earlier documents may have been Google’s successful attempt to limit an earlier much broader request including all of Rosen’s communications.

Particularly given Kim’s quoted blame for being snookered on Rosen, I wonder whether DOJ initially really was going to claim he was responsible for the leak?

In any case, if I were Fox News, I would move to unseal the docket.

First They Came for James Risen …

I don’t mean to suggest the journalism world did not object to the three subpoenas James Risen got in the Jeffrey Sterling case. They did.

But today’s news that Fox’s James Rosen was accused of being an “Aider or Abettor” to Stephen Jin-Woo Kim’s alleged crime of leaking information on Korea is just part of a progression. (See also WaPo’s story which broke this.)

“I believe there is probable cause to conclude that the contents of the wire and electronic communications pertaining to the SUBJECT ACCOUNT [the gmail account of Mr. Rosen] are evidence, fruits and instrumentalities of criminal violations of 18 U.S.C. 793 (Unauthorized Disclosure of National Defense Information), and that there is probable cause to believe that the Reporter has committed or is committing a violation of section 793(d), as an aider and abettor and/or co-conspirator, to which the materials relate,” wrote FBI agent Reginald B. Reyes in a May 28, 2010 application for a search warrant.

The search warrant was issued in the course of an investigation into a suspected leak of classified information allegedly committed by Stephen Jin-Woo Kim, a former State Department contractor, who was indicted in August 2010.

The Reyes affidavit all but eliminates the traditional distinction in classified leak investigations between sources, who are bound by a non-disclosure agreement, and reporters, who are protected by the First Amendment as long as they do not commit a crime.

[snip]

As evidence of Mr. Rosen’s purported culpability, the Reyes affidavit notes that Rosen and Kim used aliases in their communications (Kim was “Leo” and Rosen was “Alex”) and in other ways sought to maintain confidentiality.

“From the beginning of their relationship, the Reporter asked, solicited and encouraged Mr. Kim to disclose sensitive United States internal documents and intelligence information…. The Reporter did so by employing flattery and playing to Mr. Kim’s vanity and ego.”

“Much like an intelligence officer would run an [sic] clandestine intelligence source, the Reporter instructed Mr. Kim on a covert communications plan… to facilitate communication with Mr. Kim and perhaps other sources of information.”

After all, in January 2011 (which was actually after this affidavit, but appeared 10 months before this affidavit was unsealed), DOJ argued that when Jeffrey Sterling leaked information to James Risen about a dangerous plot to deal nuke blueprints to Iran, his actions were worse than what DOJ called “typical espionage.”

The defendant’s unauthorized disclosures, however, may be viewed as more pernicious than the typical espionage case where a spy sells classified information for money. Unlike the typical espionage case where a single foreign country or intelligence agency may be the beneficiary of the unauthorized disclosure of classified information, this defendant elected to disclose the classified information publicly through the mass media. Thus, every foreign adversary stood to benefit from the defendant’s unauthorized disclosure of classified information, thus posing an even greater threat to society.

Then, in March 2011, DOD charged Bradley Manning with aiding the enemy because he leaked a bunch of stuff to us.

In other words, during a period from May 2010 through January 2011, Eric Holder’s DOJ was developing this theory under which journalists were criminals, though it’s just now that we’re all noticing this May 2010 affidavit that lays the groundwork for that theory.

Maybe that development was predictable, given that during precisely that time period, the lawyer who fucked up the Ted Stevens prosecution, William Welch, was in charge of prosecuting leaks (though it’s not clear he had a role in Kim’s prosecution before he left in 2011).

But it’s worth noting the strategy — and the purpose it serves — because it is almost certainly still in effect. FBI Special Agent Reginald Reyes accused Rosen of being a criminal so he could get around the Privacy Protection Act protections for media work product (See pages 4 and following), which specifically exempts “fruits of a crime” or “property … used [] as a means of committing a criminal offense.” Then he further used it to argue against giving notice to Fox or Rosen.

Because of the Reporter’s own potential criminal liability in this matter, we believe that requesting the voluntary production of the materials from Reporter would be futile and would pose a substantial threat to the integrity of the investigation and of the evidence we seek to obtain by the warrant. (29)

While the AP’s phone records weren’t taken via a warrant, it would be unsurprising if the government is still using this formula — journalists = criminals and therefore cannot have notice — to collect evidence. Indeed, that may be one reason why we haven’t seen the subpoena to the AP.

Of course, this is not just about journalists. In this schema, providing information about what our government is doing in our name to citizens constitutes a crime.

This criminalization of journalism is a fundamentally anti-democratic stance.