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“A Digital Pearl Harbor:” The Ways in Which the Vault 7 Leak Could Have Compromised US and British Assets’ Identities

The Julian Assange extradition defense yesterday started presenting evidence that Assange suffers from conditions — Aspergers, depression, and suicidal tendencies — that would make US prisons particularly lethal. It’s the defense that Lauri Love used to avoid extradition, and is Assange’s most likely chance of success. And given our inhumane prisons, it’s a perfectly fair defense against his extradition.

Before that, though, the most interesting evidence submitted by Assange’s team pertained to the three charges that he identified the identities of US and Coalition (and so, British) informants in the Afghan, Iraq, and Cablegate releases. For each of those releases, Assange’s team presented evidence that someone else — Cryptome, in one case, some Guardian journalists in another — released the informants’ identities first. At one point, the lawyer for the US seemed to suggest that Assange had made such disclosures more readily available after the identities had already been published. But Assange can only be extradited for charges that are illegal in the UK as well, and while the UK’s Official Secrets Act explicitly prohibits the publication of covert identities, it does not prohibit republication of names.

In other words, it’s the one evidentiary question where I think WikiLeaks might have the better case (the government has yet to present its own counter-evidence, and Assange has to prove that the charges are baseless to prevent the extradition, so it’s a high hurdle).

The question is particularly interesting for several reasons. Publishing the names of informants is the one charge specifically tied to publication, rather than conspiring to get Chelsea Manning to leak, making it dangerous for journalism in a different way than most of the other charges (save the CFAA charge).

But also because — in a Mike Pompeo screed that many WikiLeaks witnesses have cited completely out of context, in which the then-CIA Director named WikiLeaks a non-state hostile intelligence agency — he accused WikiLeaks of being like Philip Agee, a disillusioned CIA officer who went on to leak the identities of numerous CIA officers who was credibly accused of working with Cuban and Russian intelligence services.

So I thought I’d start today by telling you a story about a bright, well-educated young man. He was described as industrious, intelligent, and likeable, if inclined towards a little impulsiveness and impatience. At some point, he became disillusioned with intelligence work, and angry at his government. He left the government and decided to devote himself to what he regarded as public advocacy: exposing the intelligence officers and operations that he had sworn to keep secret. He appealed to agency employees to send him leads, tips, suggestions. He wrote in a widely-circulated bulletin quote “We are particularly anxious to receive – and anonymously, if you desire – copies of U.S. diplomatic lists and U.S. embassy staff,” end of quote.

That man was Philip Agee, one of the founding members of the magazine CounterSpy, which in its first issue, in 1973, called for the exposure of the CIA undercover operatives overseas. In its September 1974 issue, CounterSpy publicly identified Richard Welch as the CIA station chief in Athens. Later, Richard’s home address and phone number were outed in the press, in Greece. In December 1975, Richard and his wife were returning home from a Christmas party in Athens. When he got out of his car to open the gate in front of his house, Richard Welch was assassinated by a Greek terrorist cell.

At the time of his death, Richard was the highest-ranking CIA officer killed in the line of duty. He had led a rich and honorable life – one that is celebrated with a star on the agency’s memorial wall. He’s buried at Arlington National Cemetery, and has remained dearly remembered by his family and colleagues.

Meanwhile, Philip Agee propped up his dwindling celebrity with an occasional stunt, including a Playboy interview. He eventually settled down as the privileged guest of an authoritarian regime – one that would have put him in front of a firing squad without a second thought had he betrayed its secrets instead of ours.

Today, there are still plenty of Philip Agees in the world, and the harm they inflict on U.S. institutions and personnel is just as serious today as it was back then. They don’t come from the intelligence community, they don’t all share the same background, or use precisely the same tactics as Agee, but they are soulmates. Like him, they choose to see themselves under a romantic light as heroes above the law, saviors of our free and open society. They cling to this fiction even though their disclosures often inflict irreparable harm on both individuals and democratic governments, pleasing despots along the way.

The one thing they don’t share with Agee is the need for a publisher. All they require now is a smartphone and internet access. In today’s digital environment, they can disseminate stolen U.S. secrets instantly around the globe to terrorists, dictators, hackers and anyone else seeking to do us harm.

The reference to Richard Welch is inaccurate (in the same way the claim that WikiLeaks is responsible for release of these informants’ identities could be too). Much of the rest of what Pompeo said was tone-deaf, at best. And that Pompeo — who months earlier had been celebrating WikiLeaks’ cooperation with Russia in interfering in the 2016 election — said this is the kind of breathtaking hypocrisy he specializes in.

Still, I want to revisit Pompeo’s insinuation, made weeks after the release of the Vault 7 files, that Julian Assange is like Philip Agee. The comment struck me at the time, particularly given that the only thing he mentioned to back the claim — also floated during the Chelsea Manning trial — was that WikiLeaks’ releases had helped al-Qaeda.

And as for Assange, his actions have attracted a devoted following among some of our most determined enemies. Following the recent WikiLeaks disclosure, an al-Qaida in the Arabian Peninsula member posted a comment online thanking WikiLeaks for providing a means to fight America in a way that AQAP had not previously envisioned. AQAP represents one of the most serious threats to our country and around the world today. It’s a group that is devoted not only to bringing down civil passenger planes but our way of life as well. That Assange is the darling of these terrorists is nothing short of reprehensible. Have no doubt that the disclosures in recent years caused harm, great harm, to our nation’s national security, and they will continue to do so for the long term.

They also threaten the trust we’ve developed with our foreign partners when that trust is crucial currency among allies. They risk damaging morale for the good officers at the intelligence community and who take the high road every day. And I can’t stress enough how these disclosures have severely hindered our ability to keep you all safe.

But given what we’ve learned about the Vault 7 release since, I’d like to consider the multiple ways via which the Vault 7 identities could have — and did, in some cases — identify sensitive identities. Pompeo’s a flaming douchebag, and the CIA’s complaint about being targeted like it targets others is unsympathetic, but understanding Pompeo’s analogy to Agee provides some insight into why DOJ charged WikiLeaks in 2017 when it hadn’t in 2013.

Vault 7, justifiably or not, may have changed how the government treated WikiLeaks’ facilitation of the exposure of US intelligence assets.

Before I start, let me emphasize the Vault 7 leak is not charged in the superseding indictment against Assange, and Assange’s treatment of Vault 7 may be radically different than his earlier genuine attempts to at least forestall or delegate the publication of US informant identities. Even if DOJ’s understanding of WikiLeaks’ facilitation of the exposure of US intelligence assets may have changed with the Vault 7 release, DOJ understanding may not be correct. Nor do I think this changes the risk to journalism of the current charges, as charged.

But it may provide insight into why the government did charge those counts, and what a superseding indictment integrating the Vault 7 leak might look like.

First, although WikiLeaks made a big show of redacting the identities of the coders who developed the CIA’s hacking tools (as they did with the 2010 and 2011 releases), some were left unredacted in the content of the release. That may be unintentional. But the first FBI affidavit against accused Vault 7 leaker Joshua Schulte noted that the pseudonyms of the two other SysAdmins who had access to the files were left unredacted in the first release, something that suggests more intentional disclosure, one that would presumably require the involvement of Schulte or someone else who knew these identities.

i. Names used by the other two CIA Group Systems Administrators were, in fact, published in the publicly released Classified Information.

ii. SCHULTE’s name, on the other hand, was not apparently published in the Classified Inforamtion.

iii. Thus, SCHULTE was the only one of the three Systems Administrators with access to the Classified Information on the Back-Up Server who was not publicly identified via WikiLeaks’s publication of the Classified Information.

A subsequent WikiLeaks release (after the FBI had already made it clear he was a, if not the, suspect) would include Schulte’s username, but I believe that is distinguishable from the release of the other men’s cover names.

Schulte would later threaten to leak more details (including, presumably, either his cover or his real name) on one of those same guys, someone he was particularly angry at, from jail, including the intriguing hint that he had been exposed in the Ashley Madison hack.

 

At trial, Schulte’s lawyer explained that the leaking he attempted or threatened from jail reflected the anger built up over almost a year of incarceration, but there’s at least some reason to believe that the initial Vault 7 release intentionally exposed the identities of CIA employees whom Schulte had personal gripes with, or at the very least he hoped would be blamed other than him.

Then there’s the damage done to ongoing operations. At trial, one after another CIA witness described the damage the Vault 7 leak had done. While the testimony was typically vague, it was also more stark in terms of scale than what you generally find in CIA trials.

After describing the leak the “equivalent of a digital Pearl Harbor,” for example, Sean Roche, who was the Deputy Director for Digital Innovation at the time of the leak, testified how on the day of the first release, the CIA had to shut down “the vast, vast majority” of operations that used the CIA tools (at a time, of course, when the CIA was actively trying to understand how Russia had attacked the US the prior year), and then CIA had to reach out to those affected.

It was the equivalent of a digital Pearl Harbor.

Q. What do you mean by that?

A. Our capabilities were revealed, and hence, we were not able to operate and our — the capabilities we had been developing for years that were now described in public were decimated. Our operations were immediately at risk, and we began terminating operations; that is, operations that were enabled with tools that were now described and out there and capabilities that were described, information about operations where we’re providing streams of information. It immediately undermined the relationships we had with other parts of the government as well as with vital foreign partners, who had often put themselves at risk to assist the agency. And it put our officers and our facilities, both domestically and overseas, at risk.

Q. Just staying at a very general level, what steps did you take in the immediate aftermath of those disclosures to address those concerns?

A. A task force was formed. Because operations were involved we had to get a team together that did nothing but focus on three things, in this priority order. In an emergency, and that’s what we had, it was operate, navigate, communicate, in that order. So the first job was to assess the risk posture for all of these operations across the world and figure out how to mitigate that risk, and most often, the vast, vast majority we had to back out of those operations, shut them down and create a situation where the agency’s activities would not be revealed, because we are a clandestine agency.

The next part of that was to navigate across all the people affected. It was not just the CIA. There were equities for other government agencies. There were, of course, equities at places and bases across the world, where we had relationships with foreign partners. People heeded immediately, were calling and asking what do I do, what do I say?

And the third part of that was to communicate, which was — in the course of looking at this as a what systemic issues led to the ability to have our information out there — was to document that and write a report that would serve as a lessons learned with the idea of preventing it from ever happening again. [my emphasis]

Notably, given that Assange could be vulnerable to Official Secrets Act charges in the UK if this leak affected any British intelligence officers or assets, Roche mentioned “foreign partners” twice in just this short passage. You don’t get very far down the list of CIA’s foreign partners before you’ve damaged MI6 assets.

Of course, shutting down ongoing operations would not have been enough to protect CIA’s assets. It took just 40 days for Symantec and Kaspersky to publicly identify the tools described in the Vault 7 releases as those found targeting their clients. If the CIA (or its foreign partners) had used human assets to introduce malware into target computers, as a number of these tools required, then those assets might be easily identifiable to the organizations affected.

Part of that same leak Schulte attempted from jail explains how this might work. He described how a tool from a particular vendor (which he would have named) was actually “Bartender,” by name presumably a watering hole attack, which had been released in Vault 7.

Had he succeeded in tweeting this out, Schulte would have identified either a cover organization or one in which CIA had recruited assets which was loading malware onto target computers while also loading some kind of vendor software.

I’m not defending CIA’s use of such assets to provide a side-helping of malware when targeted organizations install real software, though all major state-actors do this. But what Schulte (without any known active involvement of WikiLeaks, though he did continue to communicate with WikiLeaks, at least indirectly, while in jail) was allegedly attempting to do was burn either a cover organization or CIA assets, who would have been immediate targets if not exfiltrated. And it provides a good example of what could have happened over and over again on March 7, 2017, when these files were first released.

But there’s one other, possibly even more significant risk.

WikiLeaks has, in the past, preferentially withheld or shared files with Russia and other countries. Most obviously, at least one file hacked as part of the Syria Files which was damning to Russia never got published, and Emma Best claimed recently there were far more. The risk that something like that would have happened in this case is quite real. That’s because the files were leaked at a time when WikiLeaks was actively involved in another Russian operation. There was a ten month delay between the time the files were allegedly shared (in early May 2016) and the time WikiLeaks published them on March 7, 2017. The government has never made any public claim about how they got shared with WikiLeaks. Details of contacts between Guccifer 2.0 and WikiLeaks demonstrate that it would have been impossible to send the volume of data involved in this hack directly to WikiLeaks’ public facing submission system in the time which Schulte did so, and several people familiar with the submission system at the time of that hack have suggested it served more as cover than a functional system. That suggests that Schulte either would have had to have prior contact with WikiLeaks to arrange an alternate upload process, or shared them with WikiLeaks via some third party (notably, Schulte bragged in jail that compressing data to do this efficiently was one of his specialties at CIA).

At trial, even though the government in no way focused on this evidence themselves, there was (inconsistent) evidence that Schulte planned to involve Russia in his efforts to take revenge on the CIA. I’ve heard a related allegation independently.

Remember, too, that WikiLeaks has never published the vast majority of the code for these tools, even though Schulte did leak it, which would make it still easier to identify anyone who had used these tools.

So imagine what might have happened had Russia gotten advance notice (either via WikiLeaks, a WikiLeaks associate, or Schulte himself) of these tools? Russia would have had months — starting well before US intelligence had begun to understand the full extent of the election year operation — to identify any of the CIA tools used against it. To be clear, what follows is speculative (though I’m providing it, in part, because I’m trying to summarize the Vault 7 information so people who are experts on other parts of the Russian treason case can test the theory). But if it had, the aftermath might have looked something like Russia’s prosecution of several FSB officers for treason starting in December 2016. And the response — if CIA recognized that its assets had already been compromised by the Vault 7 release — might look something like the Yahoo indictment charging one of the same FSB officers rolled out, with great fanfare, on March 15, just over a week after the Vault 7 release (DOJ obtained the indictment on February 28, after the CIA knew that WikiLeaks had the release coming and months after the treason arrest, but a week before the actual release). That is, Russia might move to prosecute months before the CIA got specific notice, using the years-old complaints of Pavel Vrublevsky to hide the real reason for the prosecution, and the US might move to disclaim any tie to the FSB officers by criminally prosecuting them and identifying many of the foreign targets they had used Yahoo infrastructure to spy on. Speaking just hypothetically, then, that’s the kind of damage we’d expect if any country — and Russia has been raised here explicitly — got advance access to the CIA tools before the CIA did its damage mitigation starting on March 7, 2017.

This scenario (again, it is speculative at this point) is Spy versus Spy stuff, the kind of thing that state intelligence agencies pull off against each other all the time. But it’s not journalism.

And even the stuff that would have happened after the public release of the CIA files would not just have exposed CIA collection points, but also, probably, some of the human beings who activated those collection points.

WikiLeaks would have you believe that nothing that happened after 2013 could change DOJ’s understanding of those earlier exposures of US (and British) assets.

But the very same Mike Pompeo speech that they’ve all been citing explained precisely what changed.

The US Asks Spain to Pin Down the UC Global Accusations before Responding

Back in February, I noted some wild inconsistencies and unsupported claims in various reports that UC Global — a security firm employed at the time by Ecuador to protect their London embassy — worked with Sheldon Adelson and the CIA to spy on Julian Assange’s meetings with his lawyers.

As I noted, the actual details of the surveillance (which I don’t contest or minimize) are actually most consistent with UC Global head David Morales being served a subpoena and follow-up legal process served on UC Global’s US location by the known grand jury investigation in Alexandria, VA targeting both Assange and accused Vault 7 leaker Joshua Schulte, who appears to have remained in active communication with WikiLeaks at the time.

In his talk, AMM mentions that the US was unhappy about certain “publications,” plural, without describing them. There’s good reason to be silent about it — the same silence that WikiLeaks supporters like to enforce elsewhere. WikiLeaks was not only publishing CIA’s hacking tools with thin — and inaccurate — claims to justify doing so in the guise of journalism, but WikiLeaks was and is sitting on CIA’s actual hacking tools.

At the time, WikiLeaks was in ongoing communications with accused Vault 7 leaker Joshua Schulte (communication it continued at least as long as June 2018, when WikiLeaks posted the blogs Schulte published from jail, but probably even after that). The targeting of Schulte, himself, might explain some of this surveillance. And Morales’ presence in Alexandria (which AMM misstates as Arlington) is utterly consistent with someone subject to US subpoena appearing before a grand jury in EDVA; surveillance records are considered business records in the US subject to subpoena.

Certainly, questions about what WikiLeaks was doing with the still unpublished hacking tools might have elicited the surveillance. And in the months before the surveillance actually ratcheted up in December 2017 (which is when the surveillance in question really began), Schulte was doing some things on Tor that may have included reactionary communications with WikiLeaks.

Even AMM’s presentation, however, confirms that before December 2017 — that is, before the US finally detained Schulte and charged Assange — much of Assange’s private space was not covered by the surveillance.

Given the way WikiLeaks’ claims about this surveillance don’t match the public details of it, I’m particularly interested in the way that the US responded to Spain’s request for more information about it: They’re demanding that Spain nail down precisely what they’re claiming happened, who is behind the accusations, and what IP addresses Spain believes the US government had some tie to.

US prosecutors have now sent a letter to María de las Heras, a liaison judge for Spain in the US, asking her to convey their demands to De la Mata. These include showing proof that the requested IP addresses are “relevant and substantial to the investigation.” The document requests further details about the Spanish probe, including the sources of information for most of the assertions made in the request for judicial cooperation.

The Spanish judge has been asked to answer a long list of questions regarding every aspect of his investigation, including who he believes that Morales was providing information to, or whether the judge thinks Morales was working for a foreign information service or as an agent for a foreign power – or whether it was simply a case of bribery.

US prosecutors have asked for all this information to be relayed before October 16, otherwise “we will assume that Spanish authorities are not interested” and the request will be shelved.

The Spanish accusations, as released to the public, make no sense. At the very least, the US may be trying to get Spain to pick one of the inconsistent explanations for the surveillance before denying or explaining it to avoid playing whack-a-mole regarding all the other claims.

The US may be asking totally inappropriate questions about a sovereign Spanish investigation. But they do have a point about the nature of the claims.

The US Government Formed a New Understanding of WikiLeaks after 2016

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

I view the proceeding with great ambivalence.

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

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

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

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

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

[snip]

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Update: Fixed date of a Mueller warrant I discussed.

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

“These Actions Have Targeted Not Only against Russia, But Also Against the President Elect”

Given the news that Donald Trump is considering pardoning Edward Snowden, there has been a lot of discussion about why Trump would do this.

It’s actually not a deviation from past actions. Just seven days after the election, Trump’s rat-fucker started working on a pardon for Julian Assange, something that Trump offered a very circumscribed answer to Mueller about. He continued to entertain such proposals, and even ordered then CIA Director Mike Pompeo to consider a theory purporting to undermine the Russian attribution of the hack, one understood to be tied to an Assange pardon.

And on March 15, 2017, Trump shared information with Tucker Carlson that would have tipped off Joshua Schulte that the FBI considered him the culprit behind the Vault 7 leaks. While Trump shared that information hours before the FBI searched Schulte’s residence and seized his passports (including a diplomatic passport he never returned to CIA), there’s no evidence that information was made public before the FBI confronted Schulte that night. Had it, though, Trump’s comments might have led Schulte to accelerate a trip to Mexico he already had scheduled. John Solomon would even go on to blame Jim Comey for not pardoning Assange in advance of the Vault 7 releases.

So Trump has repeatedly undermined the prosecution of people who released large amounts of intelligence community secrets. Snowden would just be part of a pattern.

There’s some complaint that Trump opponents — including Adam Schiff — have suggested Trump would do this (dramatically altering his prior stance) because of Putin.

In fact, Russia has deliberately encouraged Trump to believe Russia and Trump were on the same side, opposed to the US intelligence community, since weeks before he was even inaugurated.

When, on December 31, 2016, Sergey Kislyak called Mike Flynn to tell him that his intervention to undermine sanctions on Russia for interfering in the 2016 election had succeeded in persuading Putin to take no action, Kislyak told Flynn that Russia considered the sanctions — for a hostile attack on this country!!! — to be an attack targeting not just Russia, but Trump himself.

KISLYAK: Uh, you know I have a small message to pass to you from Moscow and uh, probably you have heard about the decision taken by Moscow about action and counter-action.

FLYNN: yeah, yeah well I appreciate it, you know, on our phone call the other day, you know, I, I, appreciate the steps that uh your president has taken. I think that it is was wise.

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 tell you that we found that these actions have targeted not only against Russia, but also against the president elect.

FLYNN: yeah, yeah.

“Yeah, yeah,” Trump’s weak-kneed National Security Advisor with 30 years intelligence experience said in reply.

We don’t need to speculate about whether Russia has encouraged Trump to view Russia as an ally against a hostile American Intelligence Community. We have proof. And even Mike Flynn, with a victim complex only a fraction as Yuge as Trump’s own, simply nodded along.

I mean, if Trump does pardon Snowden, by all means he should accept it — it likely would save his life.

But if you believe Trump is considering this out of any belief in whistleblowing or transparency — or even opposition to the surveillance that has ratcheted up and gotten less accountable under his Administration — you’re simply deceiving yourself.

And, yes, there is concrete evidence that Russia has cultivated Trump’s antagonism against the IC — well before Trump’s own actions led the FBI investigate him personally — so much that he might pardon Snowden to harm them.

The Growing WikiLeaks Conspiracy [Indictment]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Government Argues that Edward Snowden Is a Recruiting Tool

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

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

Using Snowden as a recruitment tool

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

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

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

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

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

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

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

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

[snip]

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

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

Snowden admits Harrison got involved to optimize his fate

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

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

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

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

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

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

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

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

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

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

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

Snowden’s own attempt to optimize outcomes

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

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

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

gpg –verify PRISM.pptx.sig PRISM.pptx

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

using RSA key ID ⬛⬛⬛⬛⬛⬛⬛⬛

gpg: Good signature from “Verax”

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

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

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

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

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

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

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

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

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

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

The government is using Snowden as inspiration in other cases

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

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

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

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

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

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

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

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

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

The Other Things the Press Missed by Ignoring the Details Revealed in the Joshua Schulte Prosecution

The WaPo got a copy of the WikiLeaks Task Force report introduced as evidence in the Joshua Schulte from Ron Wyden’s office and so, four months after it was first made public, is declaring the scathing report “news”. (Note, WaPo does not reveal that InnerCity Press made this report public months ago after fighting for its release.)

If the report is news it’s a testament to all the news from the trial that didn’t get reported

The report is scathing. But it describes what any news outlet that covered the trial closely would have reported in real time (as well as the evidence that one after another Schulte denial had been contradicted by evidence submitted at trial), and as such is a confession that besides some passing coverage, few national security journalists did cover this trial and all its alarming disclosures.

The trial showed that Schulte tried to make sure 1TB of data got transferred properly in early May 2017 and then wiped two TB disk drives; this report from early in the investigation assesses that Schulte stole “at least 180 gigabytes to as much as 34 terabytes of information,” something CIA later got more certainty about. The government provided evidence that Schulte inserted outside CDs and thumb drives into his CIA workstation, made a copy of a months-old backup file, and set an Admin password for the files he is accused of stealing, which is why the report focuses so closely on the findings that, “users shared systems administrator-level passwords, there were no effective removable media controls, and historical data was available to users indefinitely.”

The report was published on October 17, 2017, weeks before WikiLeaks published the source code for Hive on November 9, 2017, making this claim (though not necessarily the assessment that Schulte didn’t get the “Gold File”) out of date:

To date, WikiLeaks has released user and training guides and limited source code from two parts of DevLAN: Stash, a source code repository, and Confluence, a collaboration and communication platform. All of the documents reveal, to varying degrees, CIA’s tradecraft in cyber operations.

The trial showed that everyone from Schulte’s colleagues to then-CIA Executive Director Meroe Park had concerns about Schulte’s reliability, but none put him on leave or successfully cut off his access to the vulnerable systems, which makes this passage seem like a breathtaking understatement.

We failed to recognize or act in a coordinated fashion on warning signs that a person or persons with access to CIA classified information posed an unacceptable risk to national security.

The trial also showed that the CIA waited almost two years after this report to put “Michael,” Schulte’s CIA buddy who testified to seeing him stealing files in real time, on paid leave, making it clear they didn’t address this issue even though it appeared in the report.

The report also doesn’t include unredacted descriptions of how the leak led all of CIA’s hack-based spying to grind to a halt, such as that offered by Sean Roche, who had been Deputy Director of the Directorate for Digital Innovation.

Our capabilities were revealed, and hence, we were not able to operate and our — the capabilities we had been developing for years that were now described in public were decimated. Our operations were immediately at risk, and we began terminating operations; that is, operations that were enabled with tools that were now described and out there and capabilities that were described, information about operations where we’re providing streams of information. It immediately undermined the relationships we had with other parts of the government as well as with vital foreign partners, who had often put themselves at risk to assist the agency. And it put our officers and our facilities, both domestically and overseas, at risk.

[snip]

Because operations were involved we had to get a team together that did nothing but focus on three things, in this priority order. In an emergency, and that’s what we had, it was operate, navigate, communicate, in that order. So the first job was to assess the risk posture for all of these operations across the world and figure out how to mitigate that risk, and most often, the vast, vast majority we had to back out of those operations, shut them down and create a situation where the agency’s activities would not be revealed, because we are a clandestine agency.

Nor does the October 2017 report include details about the exploits — such as that these tools were USB drives that NOCs and/or assets would stick into target computer systems, making it likely the leak endangered people who had used the tools — that provide some idea of the kinds of damage the leak did.

Schulte claims the “classified” information on his server consisted of Snowden documents

Meanwhile, there have been several updates in the government’s attempt to retry Schulte.

First, on May 21, the court docketed a hand-written letter from Schulte to Judge Paul Crotty, dated April 12. In it, he claimed He had no counsel,” which is confusing because he has appeared in court subsequent to the letter and its posting with the same trial team (though in a recent filing, his lawyers said Steve Bellovin may not be available to serve as expert in his retrial). Based on his claim to have no lawyers, he asked for access to a bunch of things withheld in discovery, a number of which are things his lawyers had tried but failed to obtain already. That includes his own server, which (according to Schulte, who has proven utterly unreliable) the government withheld because it held “classified” information consisting of the publicly released Snowden files.

The claim is interesting in any case. If Schulte viewed the files while still at CIA, it would be a violation of the government’s ridiculous claims that clearance holders could not view those files without violating their clearance. It’s also interesting given Schulte’s claims, to colleagues, that Snowden should be executed, even while saying elsewhere that Snowden didn’t harm anyone.

The government floated — and then did not fully develop (possibly as part of an agreement to avoid a subpoena to Mike Pompeo) a theory about Schulte’s ties to other leaks, including Snowden’s. That makes the fact they’re still sitting on these files far more interesting. (Schulte used the reports about the hacking of Angela Merkel in his defense.)

DOJ’s superseding indictment tries to make the retrial easier to win

Then there are the circumstances surrounding a third superseding indictment obtained against Schulte on June 8 (which the WaPo notes but doesn’t explain). As the government had explained, they got the indictment to make the specific allegations more clear for the jury than the second indictment, which was released before CIA had declassified the things used at trial.

These counts are based on the same conduct that was at issue during the February trial, namely, the defendant’s theft and transmission of the Backup Files, his destruction of log files and other forensic data on DEVLAN in the course of committing that theft, his obstruction of the investigation into the leak of the Backup Files, and his transmission and attempted transmission of national defense information while detained at the MCC. The modifications in the Proposed Indictment, however, are intended to make clear what conduct is covered in the specific counts. Thus, the Proposed Indictment (i) contains two separate § 793(e) counts related to (1) the defendant’s transmission of writings containing national defense information from the MCC and (2) the defendant’s attempted transmission of writings containing national defense information from the MCC, whereas the S2 Indictment grouped that conduct together in a single count; (ii) clarifies that all the § 793(e) counts, pertaining both to the transmission of the Backup Files and the defendant’s conduct in the MCC, charge the transmission of documents and writings, which does not require proof that the defendant had reason to believe the information therein could be used to harm the United States; (iii) contains two separate § 1030(a)(5)(A) counts specifying that the charged harmful computer commands at issue are (1) the defendant’s manipulation of the Confluence virtual server and (2) the defendant’s log deletions, whereas the S2 Indictment grouped that conduct together in a single count; and (iv) lists the false statements underlying the obstruction charge, which had previously been identified for the defendant in a bill of particulars, whereas the S2 Indictment did not do so.

Here’s a table that shows the difference between the second superseding indictment and the new one.

The government had dropped Count Two during the trial to make it clear that Schulte was exceeding his access when he stole the files he allegedly sent to WikiLeaks. And Schulte had challenged the 641 charge on legal grounds, which explains the dropped charges (marked in black). Jury questions had made it clear that jurors were fighting over what Schulte leaked and tried to leak from jail, and couldn’t agree upon whether Schulte’s various manipulations of the backup servers amounted to a crime. By turning each into two charges, the government not only tells the jury precisely what to look for, but might even get prosecutors to focus on describing why the forensics prove the crime rather than describing the CIA’s personnel disputes. In other words, this superseding indictment is an effort to make it more likely Schulte will be found guilty for the actions described at trial.

Meanwhile, whereas elsewhere the new indictment aims to make things more explicit for the jury, the new one does not mention two things that were laid out in the bill of particulars laying out his false statements and obstruction in the second indictment: any reference to the Brutal Kangaroo tool that Schulte was working on at home and then may have brought back into work, and a discussion of a proffer session that took place on November 16, 2017 where Schulte falsely claimed to have been approached by an unknown male on the way to a court appearance. The government dropped the latter before Schulte’s trial. As to the former, it’s unclear whether the government has decided Brutal Kangaroo (which might have been used to help steal the files or unknown follow-up ones) is too sensitive to explain, or whether they want to make the obstruction charges more generalized.

Now that a bunch of journalists have effectively confessed they missed all this in real time, maybe they’ll finally get around to explaining why the government is having to revamp their charges to try they guy the CIA claims burned their hacking ability to the ground, which seems as newsworthy as this out-of-date, already published report.

Schulte doesn’t want a suburban jury

Nothing the government has done, however, will prevent jury nullification, which appears to have been a key factor in the first trial. Given the notes from the jury, at least two jurors seemed to be unwilling consider fairly clear evidence, and one of them hid that she had outside knowledge (comments she made publicly after she was dismissed suggested she believed Schulte’s claims that the government was using child porn to frame him for this leak).

Ultimately, prosecutors are going to have to explain to a NY jury why they should care that the CIA department in charge of hacking everyone else got hacked itself, all while Schulte’s lawyers make claims about what CIA does when it hacks that the CIA is not about to rebut publicly.

Which may explain why Schulte is preparing to challenge the circumstances of the most recent indictment. The grand jury on the most recent indictment is a White Plains one, not a Manhattan one.

The unusual circumstances of the S3 indictment—the grand jury was sitting in White Plains as opposed to Manhattan, and most members of the public in the Southern District of New York were still under a stay-at-home order—may have compromised the defendant’s right to a grand jury selected from a fair cross-section of the community. Accordingly, through this letter-motion and the accompanying declaration of statistician Jeffrey Martin, Mr. Schulte respectfully requests access to the records and papers used in connection with the constitution of the Master and Qualified Jury Wheels in the United States District Court for the Southern District of New York, pursuant to the Fifth and Sixth Amendments to the United States Constitution and the Jury Selection and Service Act (“JSSA”), 28 U.S.C. § 1867(a) and (f).

While this motion to get records of how this jury was chosen may not lead to a challenge, ultimately, he seems prepared to argue that the pandemic prevented him from being tried by a jury of his peers. And that’s happening all while he’s refusing (as is his right) to toll Speedy Trial rights during the pandemic. (Plus, I’m not sure prosecutors are being very attentive to excluding the time that the defense itself has asked for.)

The press is only now waking up to what the trial (and the prior court filings) has shown. Perhaps now that they’ve tuned in they’ll bother to explain why the guy who allegedly burned the CIA to the ground may well get off on all his Espionage and hacking related charges?

Prosecutors Have Discovered the Joshua Schulte Is a Hack-and-Leak Case, Not a Personnel Dispute

While I’ve been buried in the Mike Flynn beat, on Monday, there was a status hearing in the Joshua Schulte case.

There were three main news items in the hearing.

First, prosecutors revealed unsurprisingly that they’re going retry Schulte. More interesting, they said they planned to supersede the indictment against Schulte, alleging the same charges, but providing more information on them. They cited the notes from jurors, which made it crystal clear that the jurors were confused by the forensic testimony and how the charges related to that testimony. What the limits of Schulte’s legal access were seemed to be particularly confusing (something that is not sufficiently clear in the law anyway). At the time of both the initial Espionage indictment and the superseding one, the CIA was still trying to keep secret specifically what had been stolen when and how, but now that that’s public. I expect the superseding indictment to explain more clearly what was stolen and how Schulte allegedly exceeded his legal accesses to do that.

In discussions around that superseding indictment, prosecutor David Denton said something to the effect that grand juries are only available in emergencies. As far as the public record goes, however, grand juries aren’t available at all, so Denton’s disclosure was news. That only matters in the Schulte case insofar as he’s going to refuse most Speedy Trial exclusions (meaning prosecutors may be forced to find some way to start a new trial before COVID lockdowns end). But it’s an interesting admission more generally.

Finally, prosecutors said they didn’t think the retrial will take as long as his initial trial. In my summary of why the prosecution was in a remarkably weak position as the last trial went to the jury, I described how prosecutors had made it look like the Vault 7 breach was just a really nasty personnel dispute to which burning the CIA’s hacking abilities to the ground was just a side dispute.

Add that to the pace of the trial, which feels like a nasty employment dispute to which the massive breach of the CIA’s hacking tools became just a side-dispute. That’s often true of CIA trials — it certainly was for Jeffrey Sterling. But the long parade of CIA witnesses — Schulte’s buddy, two other colleagues, his boss, his boss’s boss, his boss’s boss’s boss, her boss, and then yet another boss, plus a CIA SysAdmin and a security guy — all describing a series of disputes escalating from a nerf gun fight to WikiLeaks burning the CIA’s hacking capabilities to the ground refocused the trial onto whether Schulte’s complaints had merit and not on what the forensic evidence showed.

And Sabrina Shroff did a superb job of defending not the forensic case (indeed, defense expert Steve Bellovin did not take the stand to float any of the alternate theories that Schulte has been offering for two years, and in so doing will leave Shroff to claim Michael could have accessed the backup without prosecutors having gotten him to admit that wouldn’t have worked), but instead arguing that her client was maligned by the entire CIA. The boss, the boss’s boss, the boss’s boss’s boss, the boss’s boss’s boss’s boss, and then the senior-most boss are all lined up against Schulte for being an asshole. She even defused utterly damning notes about working with Russia (which I’ll return to). From the transcripts, it seemed like Shroff rattled a good many government witnesses, too, and a number of them (one of the FBI agents and the classification expert, especially) seemed to come off as unresponsive as a result.

I expect prosecutors will shorten the trial by limiting this testimony to just the four or so people who have first-hand knowledge of Schulte’s actions (and in the retrial, the government won’t have to backpedal as they try to fix their late disclosure that Schulte’s buddy Michael had been put on paid leave by the CIA). If so, that should make it easier for prosecutors to focus on why the circumstantial forensic evidence strongly supports Schulte’s involvement.

All that said, prosecutors also seemed to be fighting jury nullification in Schulte’s trial, with at least two jurors who were determined to acquit Schulte no matter what other jurors said. That may be a WikiLeaks thing (one that would be far less likely to happen if this were tried in EDVA, which is why Julian Assange says he can’t get a fair trial in EDVA). But it also may be the case that CIA’s hacking department doesn’t make a very sympathetic hacking victim.

“ur submission form is too fucking slow, spent the whole day uploading 1 gb.”

As I noted, one of the Roger Stone-related warrant applications released last week includes more details on the communications between the Guccifer 2.0 persona and WikiLeaks leading up to the DNC release. Emma Best examines the filing from a perspective of how someone, purportedly with no prior relationship to WikiLeaks, would go about transferring even a marginally significant submission to WikiLeaks. Almost a month of back-and-forth transpires between the first contact with Guccifer 2.0 and the successful transfer of the DNC files.

A key exchange, however, happened on July 6, 2016. After Guccifer 2.0 inquires whether WikiLeaks received some documents Guccifer 2.0 sent, the persona gets cranky because it took so long to upload a 1 GB file to WikiLeaks submission system. [I’m using Best’s conversion of this filing into a nifty transcription.]

Guccifer 2.0: “fuck, [I] sent 4 docs on brexit on jun 29, an archive in gpg[.] ur submission form is too fucking slow, [I] spent the whole day uploading 1 gb”

WikiLeaks: “We can arrange servers l00x as fast. The speed restrictions are to anonymise the path. Just ask for custom fast upload point in an email.”

Guccifer 2.0: “will u be able to check ur email?”

WikiLeaks: “We’re best with very large data sets. e.g. 200gb. these prove themselves since they’re too big to fake”

Almost two weeks into this exchange, WikiLeaks says they can arrange for a custom server to transfer larger data sets — of around 200 GB.

These exchanges should, to a significant extent, be considered theater. Both sides of this conversation knew that the FBI would be watching all DMs between WikiLeaks and the Guccifer 2.0 persona. So it can’t be taken as a definitive indication of how any files get sent.

Still, it shows how WikiLeaks would respond, using the public communication accounts, to a request to submit data in July 2016.

That’s significant because it shows how things might have proceeded, two months earlier, when Joshua Schulte allegedly sent 1TB of data to WikiLeaks on May 1, 2016.

While the prosecution in Schulte’s case provided forensic evidence to explain when he stole the CIA files and sent them to WikiLeaks, key gaps remain (perhaps most notably, how he got the files out of his building, though that may be because of certain classification decisions). And because Schulte used Tails and wiped his devices afterwards, there’s no record of him actually sending the files.

Here’s how prosecutor Matthew Laroche described that process in his closing arguments.

Just as a general matter, you know this information was transmitted to WikiLeaks because they posted it on the internet. They obviously got it, and the question is when did he send it?

And that’s answered by what he did on the 30th and May 1. Let’s look at the evening of the 30th.

At 6:47 p.m., he is searching for Google history and Google view browsing history. He is concerned about what he’s been searching for. On the evening, that night, he is searching for digital disk-wipe utility on several occasions, and at 10:52 p.m., he visits a website Kill Your Data Dead With These Tips and Tools. The defendant is interested in finding out how to securely delete information that might connect him to the leak, anything that he might’ve brought home with the leak on it, anything that he might’ve used to transfer it.

And at 10:55 p.m., he runs a similar search for SSD wipe utility. And you’ll remember all those hard drives that were recovered from his home. He was wondering how to wipe them to make sure that there was no evidence of his activities.

Now, overnight, he continues working.

At 12:19 a.m., the defendant mounted his D drive onto his virtual machine, the same D drive that had those encrypted files, data2.bkp through data6.bkp. They’re in his D drive. He mounts his D drive.

Then, overnight, he is constantly looking at his computer. On at least four occasions, he is unlocking his virtual machine in the middle of the night: 1:57 a.m.; 2:34 a.m.; 2:56 a.m.; 3:18 a.m. He is doing that because he is transferring data and he wants to make sure it’s happened correctly. And you know that is the case because of the Google searches he runs at of the end the night and the early morning.

At 3:18 a.m., just after he unlocks his screen saver, the defendant searches for How Long Does It Take to Calculate MD5?

Remember, calculating an MD5 is a way to confirm that what you transferred from one place to another is the same, that it went correctly, that there were no errors. You calculate an MD5 to confirm that what you transferred transferred correctly, and that’s what he’s looking for at 3:18 a.m.

Then at 3:21 a.m., the defendant visits a website, How Can I verify That a 1TB File — one terabyte file — transferred correctly?

That description is based off this forensic testimony from Michael Berger.

Prosecutors described this as happening overnight. Overnight transmission of a 1TB file using WikiLeaks’ public submission site would be utterly impossible given the state of it at the time and the volume of data Schulte was transferring, and probably impossible regardless of how much time someone spent. Overnight transmission of 1TB of data using Tails, even to a dedicated server, would be difficult enough. Best describes that, “1 TB over Tor in one night is unlikely.”

The government timeline does have Schulte in possession of the data earlier than that, potentially giving him a week to transfer the data, with this process describing just the end of the process.

Still, the way this would happen, normally, would be for WikiLeaks to set up a dedicated server to accept the files. And that would take prior communication. Such communication likely would have happened over Jabber, not Twitter (Schulte’s opsec was piss poor in many ways but he did use Jabber).

Such a prior conversation is entirely consistent with testimony provided elsewhere, where prosecutors focused on the website’s alternative submission process.

But the seeming necessity for prior communication before this transfer happened suggests Schulte’s alleged theft and transfer of the files might not have been as reactive a decision as portrayed in his prosecution.

It would take premeditation to send WikiLeaks a 1TB file, whatever the timing. Prosecutors may know that, and have an explanation for when such prior communications happened, but they’re withholding those details for any of a number of reasons. Or it may be a big hole in this story. Schulte insists he didn’t do it and a jury failed to convict.

One way or another, however, the state of the WikiLeaks’ submission system as it existed in 2016 presents a big gap in prosecutors’ current story.

Update: Two important details for those trying to figure out how long this transfer would really take. First, Schulte ran a commercial server specifically focused on video streaming at the time, so his upload speeds would not limit the transfer time at all. Second, Schulte at least claimed that hiding data for exfiltration was his speciality. That by itself wouldn’t help him send stuff to WikiLeaks, at least not without prior contact. But it does mean that the means by which he transferred this file relied on tools he has developed at CIA.

King Josh in Jail, Part One: The Informant

The testimony on accused Vault 7 leaker Joshua Schulte’s conduct in MCC raised more questions than answers. So I want to do a series of three or four posts to look more closely at it (I’m using the term “King Josh” because it was one of his passwords at the CIA).

In this post I want to look at the jail house informant who is the publicly acknowledged basis by which prosecutors discovered that Schulte had a phone in jail, Carlos Bentances Luna Mera.

Betances is a 41 year old citizen of the Dominican Republic who twice migrated to the US without documentation, the first time in 1996 (he was deported in 2001), and then again around 2008. At some point, Betances married and had children. During both periods, he began to work as a low level cog in narcotics trafficking.

Betances was arrested on March 15, 2018 in conjunction with the trafficking. The only federal complaint unsealed in the docket is for illegal reentry, and in that magistrates docket, proceedings were continued in both April and May 2018, something that would happen if Betances were forgoing indictment and moving directly to a plea. Given his testimony, there must be a sealed criminal docket showing a guilty plea on nine counts covering multiple narcotics trafficking and conspiracy counts, illegal reentry, identity fraud, mail fraud, and taking a phone into jail.

That suggests that Betances flipped almost immediately, perhaps, at first, to cooperate against his network of suppliers. That’s consistent with an answer Betances gave when Schulte’s lawyer, Sabrina Shroff, suggested that cooperation on using a phone in jail, “was the most valuable to the government,” more than on all his narcotics charges. Betances responded, “Well, may I remind you that I had been cooperating before I talked to them?”

According to the testimony, Betances didn’t start spying on Schulte until sometime in summer 2018, at least four months after he was jailed, and didn’t first meet with prosecutors until September 2018. So the public story is that Betances got busted and flipped, managed to play a role in smuggling and hiding phones in jail that put him in a key spot to interact with Schulte and his cellmate, Omar Amanat (I’ll look at Amanat and his brother in the next post), and only after that happened witnessed something that led him to start taking pictures and videos of Schulte’s phone use. That went on for maybe a month before — aware that something big was going to go down in the library — Betances sent a note to the guards, who thwarted it. Some days later, Schulte was thrown in the SHU and a big hunt started for the phones and Schulte’s other activities in jail.

That thing that led Betances to prepare to inform on Schulte (again, per the testimony) is that one day sometime in the summer, Schulte said he wanted Russia’s help.

[W]e were in Chino’s cell [Chino was also part of the cell phone smuggling and sharing network] and I heard Josh saying that Russia had to help in in the things that he was doing.

Here’s how Betances described it on cross (through a translator) to a very dubious Sabrina Shroff:

Shroff: So anyway, it’s you who walks in when Mr. Schulte and Omar are talking, correct?

Betances: Yes, correct.

Shroff: And you walk in to give them a heads-up that somebody’s coming, correct?

Betances: Yes, correct.

Shroff: And just as you walk in, you hear him say the word “Russia,” correct?

Betances: That’s correct, yes.

Shroff: And that’s what prompts fear into you to go cooperate with the United States Attorney’s Office?

Betances: It sounded interesting to me.

Shroff: Right.

Hearing Schulte mention Russia led Betances to do a remarkable amount of surveillance on Schulte’s phones, which he stored for him behind his cell locker.

He took two pictures of the apps Schulte loaded onto the phone, and — per his testimony — got Schulte and Amanat to explain the function of WhatsApp, Signal, Proton Mail, Orbot, Turbo VPN, and Secure Delete. Betances also got pictures of the things Schulte was writing on his phone, including the initial emails to Shane Harris that would form part of the basis for the Espionage Act charges on which the jury was hung.

He took several videos of Schulte using his phone.

After having taken these pictures on September 1, Betances waited around three weeks before he alerted the guards that something big was going down in the library, and then was removed from MCC when guards found at least some of these phones in his cell.

Shroff: And before you decided to cooperate, you simply decided to take photos, is that your testimony?

Betances: Just to be clear with the defense attorney’s question in deciding to cooperate, when they were working on sending whatever they were going to send from the library, that’s when I decided to cooperate.

Shroff: My only question was when did you take this photograph?

Betances: In the summer of 2018.

Shroff: Right. Months before you’re now saying that you decided to cooperate, right?

Betances: Could you repeat that question? You confused me.

Shroff: You took the photo before you decided to cooperate, according to you, correct?

Betances: Yes, yes.

Shroff: Right. And you’re saying you just decided to take these photos for no reason at all, right?

Betances: May I remind you that the reason I took it was because I head the conversation that I heard?

According to his testimony on redirect, Betances did all this without government instruction.

Karamarju: Now, all of the photographs that you testified about, did the government tell you to take any of those photographs?

Betances: No.

The remarkable coincidence that a jailhouse informant would end up first smuggling in and then guarding her client’s illegal phones and then taking pictures from them is not the only thing Shroff was skeptical about. She also doubted the circumstances by which Betances exposed his wife to the risk of smuggling phones into jail as well as his ability — with little English — to figure out what Schulte was doing, to the extent he did.

Still, all that is explicable if Betances’ attorney negotiated a plea deal with narcotics prosecutors and the attorney coached Betances through how to dramatically increase the value of his cooperation by catching Joshua Schulte attempting to leak classified information from his jail cell.

Betances’ surveillance was critical to obtaining the jail warrants that would lead to the discovery of Schulte’s very damning prison notebooks, several phones, three of the Proton Mail accounts he was using, and his Signal traffic. And that’s just what prosecutors revealed in this case.

Betances met with prosecutors in Schulte’s case a bunch of times: first in September 2018, then October and December 2018, several times in 2019, and then perhaps five times in 2019.

None of that means Betances made this stuff up. He certainly doesn’t have the English skills to write those emails to Shane Harris. And while the evidence regarding Schulte’s comments about Russia are contradictory, there is corroboration for it.

But it does present a number of remarkable coincidences that just ended up providing Schulte the means to communicate “securely” from his jail cell, only to have that activity thwarted at the moment he attempted to act.