Throwing our PATRIOT at Assange

Last week, U.S. Attorney General Eric Holder admitted what bmaz laid out yesterday — the problems with prosecuting WikiLeaks’ Julian Assange under the Espionage Act. But at the same time, he said, the Espionage Act may play a role in a possible Assange indictment.

“I don’t want to get into specifics here, but people would have a misimpression if the only statute you think that we are looking at is the Espionage Act,” Mr. Holder said Monday at a news conference. “That is certainly something that might play a role, but there are other statutes, other tools that we have at our disposal.”

So even with all the problems in applying the Espionage Act to Assange, Holder is still invoking the provision in his discussion of the “tools that we have at our disposal” to combat Assange.

Legally, the stance could have import beyond the question of whether or not they can indict him.

Consider, for example, this language on the National Security Letter provision of the PATRIOT Act, which allows the FBI, with no court oversight, to require financial service and telecommunications providers to  turn over data pertaining to any investigation the Department of Justice asserts is an espionage investigation:

A wire or electronic communication service provider shall comply with a request for subscriber information and toll billing records information, or electronic communication transactional records in its custody or possession made by the Director of the Federal Bureau of Investigation under subsection (b) of this section.

The Director of the Federal Bureau of Investigation, or his designee in a position not lower than Deputy Assistant Director at Bureau headquarters or a Special Agent in Charge in a Bureau field office designated by the Director, may—

request the name, address, length of service, and local and long distance toll billing records of a person or entity if the Director (or his designee) certifies in writing to the wire or electronic communication service provider to which the request is made that the name, address, length of service, and toll billing records sought are relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities, provided that such an investigation of a United States person is not conducted solely on the basis of activities protected by the first amendment to the Constitution of the United States; [my emphasis]

Or this language from Section 215 of the PATRIOT Act, which allows the FBI, with FISA Court approval, to require private businesses to secretly turn over a broad range of business records or tangible items pertaining to any investigation DOJ asserts is an espionage investigation.

The Director of the Federal Bureau of Investigation or a designee of the Director (whose rank shall be no lower than Assistant Special Agent in Charge) may make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution. [my emphasis]

Between these two provisions, the government can collect a wide range of information on US persons — things like donations via credit card and server data — simply by claiming the investigation involves spying. They don’t have to even claim there’s a connection between those US persons making those donations or accessing the particular server and the alleged spy. They don’t have to prove that the case involves spying or that they have the ability to indict under the Espionage Act. They only have to claim they are pursuing an authorized — ultimately, the AG does the authorizing — investigation to protect against spying.

Which is what the Attorney General is suggesting here, that they are investigating Assange and the Espionage Act might play a role.

Mind you, they’d also have to claim (to themselves, in the case of the NSL, to FISC in the case of Section 215) that they were collecting data on a US person for reasons above and beyond that person’s First Amendment right to read stuff on the InterToobz or donate to people the government is loosely alleging may be sort of like a spy. Mind you, if the government did collect — say — the names of Americans donating to WikiLeaks via MasterCard or Visa or Paypal, or the names of Americans accessing the WikiLeaks site for the day Amazon hosted it, those people might have a great lawsuit claiming they had been targeted for First Amendment protected activities.

If they ever found out they were targeted.

But of course, we don’t have any way of knowing whether the government decided to use the PATRIOT Act provisions allowing them to collect data on Americans so long as they assert a connection to an Espionage investigation. Because that all remains secret.

Now, I have no idea whether the government is doing this (though I could imagine that if financial service providers like MasterCard and Visa got a really onerous request from DOJ, they might choose to end their relationship with Assange rather than provide ongoing compliance with the DOJ request).

But it seems these PATRIOT provisions are just the tip of the iceberg of potential investigative techniques they could have access to (FISA wiretaps are another) based on the stance that DOJ is investigating Assange for spying, whether or not they ever intend to charge him with spying.

The Misplaced US Determination To Indict Assange

I have stayed out of the WikiLeaks scrum to date, mainly because the relatively few cables published to date (only 1,269 of the more than 250,000 cables they possess have been released so far) did not provide that much new on the subjects I normally write on as opposed to just confirming or further supporting previous knowledge and/or suppositions. This is certainly not to say they have not been interesting reading or useful to many others, the WikiLeaks material has been all that.

But now comes the bellicose fixation of the United States government on criminally prosecuting WikiLeak’s editor-in-chief Julian Assange. What started out as the usual idiotic yammering of Rep. Peter King and Sen. Joe Lieberman has turned into an apparently dedicated and determined effort by the Department of Justice to charge Assange. As the following discussion will demonstrate, it will require dicey and novel extrapolation of legal theories and statutes to even charge Assange, much less actually convict him.

The interesting thing is this type of prosecution flies directly in the face of the written charging guidelines of the DOJ which prescribe a prosecution should be brought only where the admissible facts and evidence are “sufficient to obtain and sustain a conviction”. As we have seen in so many instances over the last few years, the DOJ uses this requirement to decline prosecution on a whole host of matters they simply do not want to touch, even where the evidence for conviction of serious crimes is crystal clear and unequivocal. Take for instance the case on the blatant destruction of the abu-Zubaydah and al-Nashiri torture tapes for instance (see here and here), where the DOJ and John Durham used just this basis to decline prosecution because the DOJ just does not, you know, go out on limbs.

So, why would the Obama Administration be so aggressive against Assange when doing so flies in the face of their written guidelines and standard glib protocol? Is it really all about prosecuting Assange? That would be hard to believe; more likely it is not just to monkeywrench Assange and WikiLeaks, but to send a hard and clear prior restraint message to the American press. This is almost surely confirmed by the rhetoric of Joe Lieberman, who is rarely more than a short ride away from his disciple and friend Barack Obama on such matters, and who is making noises about also prosecuting the New York Times.

Never before has the Espionage Act, nor other provisions of the criminal code, been applied to First Amendment protected American press in the manner being blithely tossed around by US officials in the WikiLeak wake. Avoidance of First Amendment press and publication has been not just the general position of the DOJ historically, it has been borne out by significant caselaw over the years. If you need a primer on the hands off attitude that has been the hallmark of treatment of press entities, you need look no further than New York Times v. United States, aka the “Pentagon Papers Case”. In NYT v. US, the government could not even use the Espionage Act in a civil context against the press, much less a criminal one as they propose for Assange, without being forcefully shot down. Daniel Ellsberg is right when he says that “Every attack now made on WikiLeaks and Julian Assange was made against me”.

The Barack Obama Administration, who rode into office on a platform and promise of less secrecy, more transparency and a respect for Constitutional principles, has proved itself time and again to be anything but what it advertised. And to the uninformed populous as a whole, ill served by the American press that is being pinched in this process, Julian Assange presents an attractive vehicle for this prior restraint demagoguery by the US government. The public, especially without strong pushback and fight from the press, will surely bite off on this craven scheme. Read more

Hatfill and Wen Ho Lee and Plame and al-Awlaki and Assange

Last night I appeared on a panel on the Scooter Libby case. It was Judge Reggie Walton, Peter Zeidenberg, Alexandra Walsh from the Libby team, Lee Levine (who represented Andrea Mitchell and Tim Russert), Walter Pincus and I.

The panel itself was good. My high point came after Walsh had explained why the Defense had argued that bloggers might embarrass the nice people who had written leniency letters for Libby. I said, “well I was flattered we were considered such a threat. But there were at least three people who submitted letters who were implicated in the case. And I was shocked that I was one of only two or three people who demonstrated the many conflicts of those who wrote letters.”

But I also had several weird moments when we were talking about reporter’s privilege, when I was acutely aware that I was sitting between Judge Walton–who had forced journalists to reveal who had blamed Steven Hatfill for the anthrax case [see Jim White’s post for an update on the anthrax case]–and Walter Pincus–who said he had had eight or nine sources for his stories implicating Wen Ho Lee in security leaks. Walton made the very good point that if he hadn’t held AP reporter Toni Locy in contempt, then Hatfill might not have gotten the huge settlement he did for having had DOJ ruin his life. Walton’s comment suggested he had had to choose between reporter’s privilege or government impunity for attacking one of its citizens.

The collection of people sitting there had all touched on three major cases recently where the government had ruined civil servant’s lives and then hid behind reporter’s privilege to try to get away with it.

I had that in mind when I read this Jay Rosen piece, in which he suggests the behavior best incarnated by the Judy Miller-Michael Gordon aluminum tubes story created the need for Wikileaks.

The aluminum tube story, Rosen suggests, marks the moment when top journalists came to see their role as simply repeating what the government said.

This was the nadir. This was when the watchdog press fell completely apart: On that Sunday when Bush Administration officials peddling bad information anonymously put the imprimatur of the New York Times on a story that allowed other Bush Administration officials to dissemble about the tubes and manipulate fears of a nuclear nightmare on television, even as they knew they were going to war anyway.

The government had closed circle on the press, laundering its own manipulated intelligence through the by-lines of two experienced reporters, smuggling the deed past layers of editors, and then marching it like a trained dog onto the Sunday talk shows to perform in a lurid doomsday act.

Rosen argues that the NYT was not only on the wrong side of the facts with that story, but also on the wrong side of secrecy.

But it has never been recognized that secrecy was itself a bad actor in the events that led to the collapse, that it did a lot of damage, and that parts of it might have to go. Our press has never come to terms with the ways in which it got itself on the wrong side of secrecy as the national security state swelled in size after September 11th. (I develop this point in a fuller way in my 14-min video, here.)

The failures of skepticism back then, Rosen argues, creates the need or opportunity for Julian Assange today.

Radical doubt, which is basic to understanding what drives Julian Assange, was impermissible then. One of the consequences of that is the appeal of radical transparency today

Now, I think Rosen actually misses a key step here: from where the press sees itself as the neutral conduit of what the government is thinking, to where the press thinks its leaks from the government can stand-in for due process in the Anwar al-Awlaki case, and from there to Assange. Read more

Will WikiLeaks Be the Internet’s Titanic?

Back in the early days of radio, there was a great amateur radio culture that in key ways resembled early internet culture: it was predominantly male, highly competent, espousing a belief that this new technology could democratize the world.

And in spite of the amateur radio community’s offer to set up an alternative communication system in the country–one that would provide a horizontal communication network in case the more centralized one failed in time of crisis–the powers that be were none too comfortable with the radio guys. Partly, it was just about decentralization of power. Partly, it was that the amateur operators were technically more skilled than the radio operators in the employ of the Navy.

And then the Titanic happened.

And in spite of the fact that the disaster had a lot more to do with hubris and incompetence and negligence, the amateur operators provided a handy scapegoat, based on the weak claim that amateur operators had hogged bandwidth that rescuers might have used. More importantly, the amateurs offered not only a convenient scapegoat, but the Titanic provided a wonderful opportunity to go after the radio guys, the fearmongering excuse to curtail the power of the operators, which the government did with bandwidth restrictions and a national regime covering broadcast, among other measures. Which launched the process that resulted in the top-down broadcast model offered by Westinghouse and CBS rather than the democratized horizontal network of people speaking in their own voices that might have been.

I’ve been waiting for our Titanic moment–the moment when the government would use some convenient excuse to shut down the imperfect but still better than broadcast model of the Internet. The moment when–as the government did with the Titanic and its demand for Navy hegemony of the airwaves–the government could sow fears about national security to shut down citizen media.

And as I was reading this post from Ian Welsh…

Let’s just state the obvious here: we’re seeing the end of the open internet with what is being done to WikiLeaks.  It’s one thing for Amazon to toss them, it’s another thing entirely to refuse to propagate their domain information.  This has been coming for quite some time, and WikiLeaks is not the first domain to be shut down in the US, it is merely the highest profile.  Combined with the attempt to make NetFlix pay a surcharge or lose access to customers, this spells the end of the free internet.

The absurdity, the sheer Orwellian stupidity of this is epitomized by Hilary Clinton telling students at elite colleges not to read the leaks, or they won’t get jobs at State.  As if anyone who isn’t curious to read what is in the leaks, who doesn’t want to know how diplomacy actually works, is anyone State should hire.  In a sane world, the reaction would be the opposite: no one who hadn’t read them would be hired.

This is reminiscent of the way the old Soviet Union worked, with everyone being forced to pretend they don’t know what they absolutely do know, and blind conformity prized over ability.

And as I contemplate Federal Communications Commission Chairman Julius Genachowski’s fake net neutrality proposal, and as I read news of MasterCard and Visa both freezing Julian Assange’s funds, I can’t help but think this is the Titanic moment I’ve been expecting for years.

Sure, the crackdown–which puts our counterterrorism efforts to shame–is a response to the scope of this latest leak. Sure, it’s an attempt to prevent the next leak, on Bank of America.

But just as much, it’s about creating the excuse they need–the government and the legacy media protecting their turf–to undercut the power of the Internet.

The Leaked Cables I Want to See

As you’ve no doubt heard, on Wednesday, both and Ecuador decided they didn’t want to be associated with Wikileaks.

In’s case, it’s not entirely clear they would have known Wikileaks had switched to their servers on Sunday. But on Tuesday, some of Joe Lieberman’s flunkies contacted the company to let them know that Holy Joe disapproved of the book store-and-server helping Wikileaks facilitate its leaks.

The company announced it was cutting WikiLeaks off yesterday only 24 hours after being contacted by the staff of Joe Lieberman, chairman of the Senate’s committee on homeland security.


Lieberman said: “[Amazon’s] decision to cut off WikiLeaks now is the right decision and should set the standard for other companies WikiLeaks is using to distribute its illegally seized material. I call on any other company or organisation that is hosting WikiLeaks to immediately terminate its relationship with them.”

The department of homeland security confirmed Amazon’s move, referring journalists to Lieberman’s statement.

Now, given DHS’ confirmation referencing Lieberman, it’s not clear whether the government officially contacted, or only Holy Joe. But it is worth noting that presumably gets requests for “tangible things” from the government under the PATRIOT Act’s Section 215. And while the Obama Administration has not branded Julian Assange as a terrorist the way Peter “Material Support for Irish Terrorists” King has, they could presumably claim a counter-intelligence interest in obtaining records about Wikileaks under Section 215. So the government could make legitimate requests for information on Wikileaks’ hosting use, if not request it be closed down.

Then there’s Ecuador, which I find even more interesting. On Monday, Deputy Foreign Minister Kintto Lucas had said Ecuador was prepared to offer Assange asylum. But then yesterday, President Rafael Correa stated that Lucas had no authority to make the offer. As Al-Jazeera’s article on the Correa comment makes clear, Ecuador has shown as much resistance as just about anyone to US demands, particularly since the US backed a Colombian raid on FARC in Ecuadoran territory.

Nevertheless, presumably the US said something to Ecuador to make it rethink Lucas’ offer of asylum to Assange. What carrots or sticks, I wonder, would be revealed if the diplomatic cables between the US and Ecuador regarding this matter were leaked?

The point being, of course, that if Correa’s retraction of the asylum order was a response to US pressure, it means that even as the US’ heavy-handed ways are exposed in the Wikileaks dump, they continue to use those same ways to combat Assange.

Picking and Choosing Which Journalistic Outlets to Treat as Journalistic Outlets

Tuesday, Philip Shenon reported that Wikileaks wanted the Defense Department’s help reviewing the next batch of documents it will release for names that should be redacted.

Julian Assange wants the Pentagon’s help.

His secretive WikiLeaks website tells The Daily Beast it is making an urgent request to the Defense Department for help reviewing 15,000 still-secret American military reports to remove the names of Afghan civilians and others who might be endangered when the website makes the reports public.

[snip]In a phone interview Tuesday with The Daily Beast, Schmitt said the site wanted to open a line of communication with the Defense Department in order to review an additional 15,000 classified reports in an effort to “make redactions so they can be safely published.” Schmitt said that these reports also relate to American military operations in Afghanistan.

It was a good play from Wikileaks, as it would place Wikileaks in the same position as newspapers like NYT and WaPo which occasionally spike information the government says is particularly sensitive. However, the government chose to pretend it doesn’t have this kind of conversation all the time, and also to pretend that it doesn’t regularly do FOIA reviews for this kind of information.

Instead, DOD spokesperson Geoff Morrell, doing his best Agent Smith imitation, “demand[ed]” that Wikilieaks return all the documents it has received, repeating “do the right thing” over and over.

Of course, no other journalistic outlet would do what Morrell called “doing the right thing.” (To the credit of some of the journalists covering Morrell’s Agent Smith show, they seem somewhat dubious of the claims logic.)

Meanwhile, DOD has also revoked Michael Hastings’ permission embed in Afghanistan, claiming the unit in question does not trust Hastings (though the move appears to be retaliation for Hastings’ refusal to cooperate in a DOD IG probe of Hastings’ article).

The government is not supposed to license favored press in this country. But what DOD is doing is choosing only to play ball with those outlets with which it is chummy enough to largely influence the coverage of.

Which I suppose makes it different than a license. It’s like a membership in a secret tree house that you’ve got to know the secret password to belong to.

Dick Cheney’s Chief Apologist Advocates Kidnapping Leakers

This is a rather stunning suggestion coming from the chief apologist for the guy who ordered Valerie Plame’s identity to be exposed.

The United States should make clear that it will not tolerate any country — and particularly NATO allies such as Belgium and Iceland — providing safe haven for criminals who put the lives of NATO forces at risk.With appropriate diplomatic pressure, these governments may cooperate in bringing [Wikileak’s Julian] Assange to justice. But if they refuse, the United States can arrest Assange on their territory without their knowledge or approval. In 1989, the Justice Department’s Office of Legal Counsel issued a memorandum entitled “Authority of the Federal Bureau of Investigation to Override International Law in Extraterritorial Law Enforcement Activities.”

This memorandum declares that “the FBI may use its statutory authority to investigate and arrest individuals for violating United States law, even if the FBI’s actions contravene customary international law” and that an “arrest that is inconsistent with international or foreign law does not violate the Fourth Amendment.” In other words, we do not need permission to apprehend Assange or his co-conspirators anywhere in the world.

Frankly, I think it would be downright cruel to render Dick Cheney for having leaked national security information, given that he has not yet left the hospital where he had his new pulse-free pump installed. (h/t Political Carnival) And it’s too late the render the functional equivalent of Julian Assange–which would be Robert Novak.

But I’m guessing Marc Thiessen didn’t mean his op-ed to endorse the kidnapping of all his buddies who leak highly sensitive national security information. On Thiessen’s pig farm, some leakers are more equal than others.

Did Adrian Lamo Have Two Days Worth of IM’s with Bradley Manning on May 25?

As I noted in my earlier post on Wikileaks leaker Bradley Manning’s charging document, there’s an apparent discrepancy between the timing Wired gives for Manning’s arrest and what the charging document shows. Wired said that the FBI told Adrian Lamo on May 27 that Manning had been arrested the previous day–that is, May 26.

At their second meeting with Lamo on May 27, FBI agents from the Oakland Field Office told the hacker that Manning had been arrested the day before in Iraq by Army CID investigators.

But the charging documents actually says Manning’s alleged activities continued until “on or about 27 May 2010,” and it says his pretrial detention started on May 29 (though see scribe’s comments on a possible explanation).

And as I pointed out in comments, there’s also a problem with the story Lamo gave Wired as to why he turned in Manning. He claimed he turned in Manning because he had told him he had already leaked 260,000 cables to Wikileaks.

Lamo decided to turn in Manning after the soldier told him that he leaked a quarter-million classified embassy cables. Lamo contacted the Army, and then met with Army CID investigators and the FBI to pass the agents a copy of the chat logs from his conversations with Manning.

But the charging document only accuses Manning of leaking [more than] 50 cables; it alleges he got information from [more than] 150,000 cables, but did not even load the cables onto his own computer. Now, Wired has repeatedly published a quote from Manning telling Lamo that he had leaked the quarter-million cables.

But the most startling revelation was a claim that he gave Wikileaks a database of 260,000 classified U.S. diplomatic cables, which Manning said exposed “almost-criminal political back dealings.”

“Hillary Clinton and several thousand diplomats around the world are going to have a heart attack when they wake up one morning, and find an entire repository of classified foreign policy is available, in searchable format, to the public,” Manning told Lamo in an online chat session.

But they didn’t include that quote in their publication of what they claimed to be all the chat logs, save those that revealed personal information about Manning or classified information. Note, WaPo published a longer version of the same quote after Wired first published it. It appears that such a quote would have fit in the chat logs on May 22 (Manning says, “Everywhere there’s a U.S. post, there’s a diplomatic scandal that will be revealed”–note the WaPo includes an ellipses here Wired does not that may indicate IM breaks–and in the May 22 log Lamo asks “what kind of scandal”), but for some reason, Wired didn’t include it there. He may well have said it and said it on May 22, but out of context, we don’t know whether Manning was talking about around 50 cables–what he is accused of leaking–or all 260,000, or the [more than] 150,000 that he is accused of having accessed. And we don’t know whether Manning really did claim to have already leaked the cables–the context doesn’t say he did (though Manning’s list of things he leaked in the very last IMs seem to include some State Department cables).

Which is why I find another oddity of the Wired publication of the chat logs so funky.

Look at the chat logs for May 25–according to Wired, the day before Manning was arrested. They start at 2:03:10 AM (you can tell from the May 23 chat logs that the times are for Lamo, presumably in CA) and go through 2:32:53 AM. They start again at 2:26:01 PM, then go through 3:12:16 PM. Then–at least as Wired presents them–they start again at 1:52:30 PM and go in spurts through 4:46:29 PM. That is, though Wired has presented the IM logs for all other days in straight chronological order, they have no done so for May 25. The chronology starts, goes through 3:12:16 PM, then goes back in time and starts again at 1:52:30. The time sequences overlap.

Now even assuming there’s nothing funky about that, if Lamo were in CA, an IM he received at almost 5 PM on May 25 would be 3 AM Iraq time on May 26, very early on the day Lamo says Manning was arrested.

But the only way that would be true is if Wired segmented and rearranged the IM chats for some reason of narrative. I’ve shown what all the overlapping IM logs in question would look like below the fold (the “parts” refer to the order in which they first appear in the Wired post). But the following chunks of IM discussion–combining the section that Wired presents 5th with that it presents 2nd–would be combined as follows (everything from part 2 is underlined):

Part 2 (underlined)/Part 5 continued

(02:26:01 PM) Manning: i dont believe in good guys versus bad guys anymore… i only a plethora of states acting in self interest… with varying ethics and moral standards of course, but self-interest nonetheless

(02:26:18 PM) Manning: s/only/only see/

(02:26:18 PM) Manning: because another state would just take advantage of the information… try and get some edge

(02:26:47 PM) Lamo: the tm meant i was being facetious

(02:26:55 PM) Manning: if its out in the open… it should be a public good

(02:26:59 PM) Manning: gotchya

(02:27:04 PM) Manning: *do the

(02:27:23 PM) Manning: rather than some slimy intel collector

(02:27:47 PM) Manning: i mean, we’re better in some respects… we’re much more subtle… use a lot more words and legal techniques to legitimize everything

(02:28:00 PM) Manning: its better than disappearing in the middle of the night

(02:28:19 PM) Manning: but just because something is more subtle, doesn’t make it right

(02:29:04 PM) Manning: i guess im too idealistic

(02:29:18 PM) Manning: im crazy like that

This order is not implausible–everything sort of flows. But there are signs that Part 5 and Part 2 did not happen simultaneously. Manning’s good versus evil comment at 2:26:01 is not entirely out of place, but it’s a big non sequitur from the comment less than 2 minutes earlier. This order would require Manning to have typed two IMs in one second at 2:26:18 which seems unlikely if not impossible for reasons of computer speed and human typing skills. Lamo’s “tm” comment at 2:26:19 appears to refer to a comment Wired didn’t replicate in any case. Furthermore, elsewhere Manning always corrects typos in the IM directly after the one in which he makes an error. But the typo “it should be a public good” at 2:26:55 and the correction “it should do the public good” at 2:27:04 would be split by the interjection “gotchya.” Plus those two comments with the interjection “gotchya” at 2:26:59 are quicker–all three in nine seconds–than almost any other series that Wired published (aside from the two IMs in one second already noted).

In other words, I can’t prove it, but it is likely those 2 chunks of IM were not simultaneous, suggesting those 5 chunks of text did not happen on the same day or their timestamps are wrong. Which in turn suggests they didn’t all come from May 25. And if they didn’t, one likely possibility is that Wired did publish the IM chats in sequence, but simply didn’t label ones from a different day–most likely, either the first series came form May 24 or the second series came from May 26–with that different day.

Now, that introduces two problems into the narrative as captured by CJR. If the IMs starting with what I’ve labeled as part 1 were actually sent May 24, it would mean Lamo was asking whether Manning suspected Army CID of investigating before–apparently–he ever talked to Kevin Poulsen about Manning. That’s not fatal for the story–but it does seem to show Lamo asking probing questions in the service of law enforcement before he first talks to Poulsen about Manning.

The other alternative is even more problematic for their story. If the second series of IMs labeled as May 25 actually came from May 26, it would mean the latest ones–which appear to have reached Lamo in late afternoon on May 26–would have been sent in Iraq in the early hours of May 27, suggesting that the story that Manning was arrested on May 26 was not correct (though that does seem to correlate better with the charging document).

All this may not be a big deal. It may be that the full series of the IMs make sense in full context. It may be that the apparent discrepancy between the Wired report and the charging document are either not discrepancies at all or not very interesting to the story.

But there does appear to be something funky here.

Update: “More than” added to references to numbers of cables per scribe.

Read more

Wikileaks Leaker Bradley Manning Finally Charged

The government has finally charged Bradley Manning, the Wikileaks leaker. He is charged with two counts of violating the UCMJ, one related to loading onto his own unsecure computer a set of information and adding unauthorized software to a military network computer, and the other related to accessing and passing information onto someone not entitled to have it.

I find the charge sheet particularly interesting for two reasons. What the government says that Manning did with the material he accessed, and an apparent discrepancy between the government’s depiction of the timing and Wired’s depiction of it.

What the government knows about what Manning did with the information

First, it describes the information he accessed differently as follows:

  • The video of the July 12, 2007 Apache killing of Reuters journalists (obtained via unauthorized access, loaded onto his unsecured computer, transmitted to someone unauthorized to receive it)
  • The Rejkjavik State Department cable leaked by WikiLeaks (obtained via unauthorized access, transmitted to someone unauthorized to receive it)
  • 50 State Department cables (loaded onto his unsecured computer, transmitted to someone unauthorized to receive them)
  • 150,000 State Department cables (obtained information from them via unauthorized access)
  • A classified Microsoft Powerpoint presentation (obtained via unauthorized access, loaded onto his computer)

Now, these details are interesting for more than the way they add up to what might be a 52-year sentence if convicted of all of them. They may reflect what the government knows about Manning’s activities.

Note, first of all, the absence of any reference to the Gharani video, which Wikileaks also claims to have but has not yet released, and which Manning claimed to have passed onto Wikileaks. That may suggest that the government doesn’t have evidence tying Manning to the leak of that video (as opposed to the Iraqi one). It may suggest someone entirely different leaked it to Wikileaks. Or it may simply suggest the video wasn’t successfully leaked (which I raise because of the possibility that the government may have managed to sabotage an attempted leak).

Next, note how the charge sheet treats the diplomatic cables differently. The charge sheet traces the Rekjkjavik cable via Manning’s alleged unauthorized access, loaded onto his computer, and transmitted to someone unauthorized to receive it. It alleges 50 State Department cables (which may or may not include the Rejkjavik one) were loaded onto Manning’s computer and transmitted to someone unauthorized to receive them.That means the government has some kind of proof that 50 cables were transmitted. That’s particularly curious given that, on May 22, Manning told Adrian Lamo that he would have to ask Julian Assange to learn if he had leaked anything beyond the Rejkjavik cable.

(1:44:11 PM) Manning: you missed a lot…

(1:45:00 PM) Lamo: what kind of scandal?

(1:45:16 PM) Manning: hundreds of them

(1:45:40 PM) Lamo: like what? I’m genuinely curious about details.

(1:46:01 PM) Manning: i dont know… theres so many… i dont have the original material anymore

(1:46:18 PM) Manning: uhmm… the Holy See and its position on the Vatican sex scandals

(1:46:26 PM) Lamo: play it by ear

(1:46:29 PM) Manning: the broiling one in Germany

(1:47:36 PM) Manning: im sorry, there’s so many… its impossible for any one human to read all quarter-million… and not feel overwhelmed… and possibly desensitized

(1:48:20 PM) Manning: the scope is so broad… and yet the depth so rich

(1:48:50 PM) Lamo: give me some bona fides … yanno? any specifics.

(1:49:40 PM) Manning: this one was a test: Classified cable from US Embassy Reykjavik on Icesave dated 13 Jan 2010

(1:50:30 PM) Manning: the result of that one was that the icelandic ambassador to the US was recalled, and fired

(1:51:02 PM) Manning: thats just one cable…

(1:51:14 PM) Lamo: Anything unreleased?

(1:51:25 PM) Manning: i’d have to ask assange

So if the government charged that Manning leaked 50 cables, it presumably didn’t come from his own confession, unless he leaked those cables to someone after May 22. That means they either got proof from Wikileaks that it received the cables, Manning leaked the cables after May 22, or someone else (Lamo?) received the cables and therefore offered proof they got leaked.

So there are 50 cables that got leaked, which have not yet been released to the public yet which the government is sufficiently certain have been leaked so as to charge Manning with that leak.

Then the charge sheet alleges that Manning obtained information from 150,000 State Department cables. Read more