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Five Years after WikiLeaks Exposed CIA Identities in Vault 7, UK Moves Closer to Assange Extradition

Last November, in response to an order from Judge Jesse Furman, DOJ said that they were fine with accused Vault 7 leaker Joshua Schulte’s request for a delay before his retrial. In fact, they didn’t think a Schulte retrial could start before March 21.

Although the Government is available for trial at any time in the first or second quarters of 2022, the Government does not believe it would be practical to schedule the trial prior to March 2022. In particular, although the Government believes that the Court’s prior rulings pursuant to Section 6 of CIPA address the vast majority of questions concerning the use of classified information at trial in this matter, it appears likely that the defendant will seek to use additional classified information beyond that previously authorized by the Court. The process for pretrial consideration of that application pursuant to Section 6 is necessarily complex, entailing both briefing and hearings in a classified setting. To the extent the Court authorizes the defendant to use additional classified information, implementation of the Court’s rulings can also take time, such as through either declassification of information or supplemental briefing regarding the application of Section 8 of CIPA (authorizing the admission of classified evidence without change in classification status). The proposed trial date also takes into consideration matters discussed in the Government’s ex parte letter submitted on August 4, 2021. Accordingly, in order to afford sufficient time both for the likely upcoming CIPA litigation and for the parties to prepare for trial with the benefit of any supplemental CIPA rulings, the Government believes that the earliest practical trial date for this matter would be March 21, 2022.

Part of this delay was to revisit the Classified Information Procedures Act decisions from the first trial because, now that he’s defending himself, Schulte likely wanted to use more classified information than Sabrina Shroff had used in the first trial. It turns out March 21 was overly optimistic for CIPA to be done. Because of an extended debate over how to alter the protective order, the government will only file its CIPA motion tomorrow (it just asked to submit a much longer filing than originally permitted, and got permission to file a somewhat longer one).

It’s the other part of the government’s interest in delay — its references to “matters discussed” in a sealed letter from August 4 — that I’ve been tracking with interest, particularly as the Assange extradition proceeded. As I noted earlier, that August 4 letter would have been sent five years to the day after Schulte started searching on WikiLeaks, Edward Snowden, and Shadow Brokers (according to the government theory of the case, Schulte stole and leaked the CIA’s hacking tools earlier, in late April and early May 2016).

Since those mentions of a sealed letter last year, the government has asked for and gotten two meetings to discuss classified information with Judge Fruman under section 2 of CIPA, first for February 8 (after which a sealed document was lodged in Chambers), and the second one for March 9.

Section 2 provides that “[a]t any time after the filing of the indictment or information, any party may move for a pretrial conference to consider matters relating to classified information that may arise in connection with the prosecution.” Following such a motion, the district court “shall promptly hold a pretrial conference to establish the timing of requests for discovery, the provision of notice required by Section 5 of this Act, and the initiation of the procedure established by Section 6 (to determine the use, relevance, or admissibility of classified information) of this Act.”

That second CIPA Section 2 meeting, on March 9, would have taken place days after the five year anniversary for the first Vault 7 publication, and with it the publication of the names or pseudonyms and a picture of several colleagues Schulte had vendettas against.

Schulte acknowledged that publication in a recently-released self-justification he wrote to an associate after the Vault 7 release (it’s unclear when in 2017 or 2018 he wrote it), one he’s making a renewed attempt to suppress.

The names that were allegedly un-redacted were pseudonyms — fake names used internally in case a leak happened. Those of us who were overt never used last names anyway; This was an unwritten rule at the agency — NEVER use/write true last names for anyone. So I was convinced that there was little personal information revealed besides a picture of an old boss of mine that was mistakenly released with the memes.

Not long after he acknowledged the rule against using people’s names in that self-justification, Schulte used the names of the three colleagues he was most angry at: His boss Karen, his colleague “Jeremy Weber,” and another colleague, Amol, names that were also central to his efforts to leak from jail. If the FBI could ever develop evidence that Weber’s name was deliberately left in WikiLeaks’ Vault 7 publication, both Schulte and anyone else involved would be exposed to legal liability for violating the Intelligence Identities Protection Act, among other crimes.

On Monday, one week short of the day DOJ thought might be a realistic start day for the retrial, the British Supreme Court refused Assange’s bid to appeal a High Court decision accepting (flimsy) US assurances that Assange would not be held under Special Administrative Measures, finding that the appeal “does not raise an arguable point of law.”

Given the timing of the sealed filings in the Schulte case and the way the 2020 superseding indictment accuses Assange of “exhort[ing a Chaos Computer Club] audience to join the CIA in order to steal and provide information to WikiLeaks,” effectively teeing up Schulte’s alleged theft, I would be unsurprised if one of the things DOJ was delaying for weren’t this moment, some resolution to the Assange extradition.

To be sure: the Assange extradition is not over, not by a long shot. As a letter from his attorneys explains, this decision will go back to Vanessa Baraitser, who will then refer the extradition to Home Secretary Priti Patel. Assange will have four weeks to try to persuade Patel not to extradite him.

And, as the same letter notes in classically British use of the passive voice, Assange could still appeal Baraitser’s original ruling.

It will be recollected that Mr Assange succeeded in Westminster Magistrates’ Court on the issue subsequently appealed by the US to the High Court. No appeal to the High Court has yet been filed by him in respect of the other important issues he raised previously in Westminster Magistrates’ Court. That separate process of appeal has, of course, has yet to be initiated.

But an appeal on these issues would be decidedly more difficult now than they would have been two years ago.

That’s true, in part, because the Biden Administration’s continuation of Assange’s prosecution has debunked all the bullshit claims Assange made about being politically targeted by Donald Trump.

I also expect at least one of the purportedly exculpatory stories WikiLeaks has been spamming in recent months to be exposed as a complete set-up by WikiLeaks — basically an enormous hoax on WikiLeaks’ boosters and far too many journalist organizations. WikiLeaks has become little more than a propaganda shop, and I expect that to become clearer in the months ahead.

Finally, if the US supersedes[d] the existing indictment against Assange or obtains[ed] a second one in the last seven months, it will badly undermine any remaining claim Assange has to doing journalism. That’s true for a slew of reasons.

As I laid out here, the part of the Baraitser ruling that distinguished Assange’s actions from journalism based on his solicitation of hacks relied heavily on the language that directly teed up the hack-and-leak Schulte is accused of.

Mr. Assange, it is alleged, had been engaged in recruiting others to obtain information for him for some time. For example, in August 2009 he spoke to an audience of hackers at a “Hacking at Random” conference and told them that unless they were a serving member of the US military they would have no legal liability for stealing classified information and giving it to Wikileaks. At the same conference he told the audience that there was a small vulnerability within the US Congress document distribution system stating, “this is what any one of you would find if you were actually looking”. In October 2009 also to an audience of hackers at the “Hack in the Box Security Conference” he told the audience, “I was a famous teenage hacker in Australia, and I’ve been reading generals’ emails since I was 17” and referred to the Wikileaks list of “flags” that it wanted captured. After Ms. Manning made her disclosures to him he continued to encourage people to take information. For example, in December 2013 he attended a Chaos computer club conference and told the audience to join the CIA in order to steal information stating “I’m not saying don’t join the CIA; no, go and join the CIA. Go in there, go into the ballpark and get the ball and bring it out”. [emphasis Baraitser’s]

If the government proves what is publicly alleged, Schulte’s actions have nothing to do with whistleblowing and everything to do with vindictive hacking to damage the CIA, precisely what Assange was eliciting. Plus, even if such a hypothetical superseding indictment added just Vault 7/Vault 8 charges against Assange, it could put extortion and IIPA on the table (the latter of which would be a direct analogue to the UK’s Official Secrets Act), to say nothing of the still unexplained fate of the CIA source code which — as Schulte himself acknowledged — would have provided an unbelievable benefit had Russia had received it.

And that assumes that Vault 7/Vault 8 would be the only thing the US wanted to supersede with. When Jeremy Hammond asked prosecutors why they hadn’t charged Assange for helping Russia tamper in US elections, they appeared to respond by describing the long time it would take to extradite Assange, implying that they still had time to charge Assange. To be sure, Mueller concluded that he “did not have admissible evidence that was probably sufficient to obtain and sustain a Section 1030 conspiracy conviction of WikiLeaks [or] Assange.” But the implication was that Mueller had evidence, just not stuff that could be submitted at trial. The extradition of Vladislav Klyushin — whose lawyer believed the US was particularly interested in his knowledge of the 2016 operation — might change that. (Like Assange, Klyushin’s extradition was also pending when DOJ submitted that first sealed filing; Klyushin’s case has been continued to share more discovery.)

There are several other operations WikiLeaks was involved in in 2015 and afterwards that would undermine any claim of being a journalistic outlet — and would add to the evidence that Assange had, at least by those years, been working closely to advance the interests of the Russian government.

It would be very hard to argue that Assange was being prosecuted for doing journalism if the US unveiled more credible allegations about the multiple ways Assange did Russia’s bidding in 2016 and 2017, even in normal times. All the more so as Russia is continuing its attack on democracy with its invasion of Ukraine.

And that’s what Assange faces as he attempts to stay out of the US.

More on Joshua Schulte’s Attempted Hack of the Justice System

A few weeks ago, I described what I believed was an attempt by Joshua Schulte to hack the judicial system — not by using computer code, but by exploiting legal code. In a status hearing, he claimed that he had informed prosecutors that he wanted to proceed pro se (representing himself). The sole remaining member of the prosecution team, David Denton, said he hadn’t heard of it.

A letter submitted by Denton and AUSA Michael Lockard today, who has joined the team, explains why: after they reviewed one of many appeals Schulte had filed (this one a demand for the judge in this case to recuse), he actually informed of his purported decision Judge Paul Crotty ex parte, before he sent a contrary filing, also ex parte. Crotty, having gotten no unequivocal indication that Schulte intended to proceed pro se, did nothing, which is part of the basis for Schulte’s mandamus filing.

On June 9, 2021, the defendant filed a pro se petition for a writ of mandamus in the Second Circuit seeking to recuse the District Court, claiming, among other things, that the defendant “petitioned [the Court] to represent himself in multiple letters throughout November 2020,” and that the Court “did not hold a Faretta hearing as required by law.” In Re: Joshua Schulte, 21-1445, Dkt. 1 at 10 (2d Cir. 2021). At the status conference in this matter on June 15, 2021, the Government noted that no such request appeared on the docket for this case, and that the Government was not aware of the defendant expressing “an unequivocal intent to forego the assistance of counsel.” Williams, 44 F.3d at 100. At the conference, defense counsel, at the defendant’s apparent request, stated that this was incorrect, and the defendant did wish to proceed pro se. Following the conference, defense counsel forwarded the Government a copy of a letter dated November 6, 2020, in which the defendant indicated his desire to proceed pro se, and informed the Government that the request had been submitted by the defendant to the Court ex parte. Defense counsel further explained that, in subsequent ex parte communication with the Court following the defendant’s November 2020 letter, defense counsel had advised the Court that the defendant intended to continue with counsel.

Much of the letter submitted today is routine process for when a defendant claims to want to represent himself. Among the precedents the government cites are two (one in this circuit) holding that a defendant cannot be co-counsel with his defense attorney, which is effectively what Schulte has done.

(4) a defendant who elects to proceed pro se “has no constitutional or statutory right to represent himself as co-counsel with his own attorney,” United States v. Tutino, 883 F.2d 1125, 1141 (2d Cir. 1989); see also Schmidt, 105 F.3d at 90 (“[T]here is no constitutional right to hybrid representation.”).

And while at the hearing Sabrina Shroff had suggested she and Deborah Colson serve as stand-by counsel, the government rightly notes that in his mandamus petition, Schulte raised conflicts reviewed before his first trial, which is something amounting to advice from Shroff that Schulte write down everything he wanted to leak in his prison notebook. They’re using that to ask that Crotty appoint someone besides Shroff (though they don’t name her) as standby counsel.

With regard to the appointment of standby counsel, the Government notes that the defendant’s recently filed pro se mandamus petition reiterates his prior claims that he wishes to call as witnesses certain of his prior and current counsel from the Federal Defenders of New York, although that claim is framed in the context of arguing that the Court’s prior rulings on this issue demonstrate bias that requires the Court’s recusal, rather than seeking relief from the Court’s orders themselves. See In Re: Joshua Schulte, 21-1445, Dkt. 1 at 4-9 (2d Cir. 2021). Accordingly, in order to avoid later claims alleging any purported conflict-of-interest, the Government respectfully suggests that it would be prudent for the Court to appoint as standby counsel one of the defendant’s current or former attorneys not implicated in the defendant’s claims asserting conflict or implicating the attorney-witness rule.

So the letter explains what, in a normal court room, is going on. But I maintain that Schulte is (and has been, for some time) attempting to do what he did with CIA’s computer systems: send a bunch of conflicting messages to get the machine to operate in a way entirely unexpected. Indeed, one tactic he’s using is one he used several times at CIA, the same tactic small children use when one parent gives them a response they don’t like: Schulte is bypassing his criminal docket (both through the use of the ex parte letters and the non-associated dockets, to ensure the government didn’t learn of this ploy until all the Speedy Time would, if the ploy is successful, have elapsed).

If I were the government I’d have some good hacking investigators review the docket to try to understand it all from a hacker’s brain. Because, at the very least, I suspect Schulte plans to claim that the government simply forgot to hold his second trial.

Joshua Schulte Attempts to Hack the Court System

Joshua Schulte attempted to complete a hack of the court system yesterday.

I don’t mean that Schulte used computer code to bring down the court systems. His laptop doesn’t connect to the Internet, and so he does not have those tools available. Rather, over the 3.5 years he has been in jail, he has tested the system, figured out which messages can be used to distract adversaries, and which messages have an effect that will lead the system to perform in unexpected ways. He identified vulnerabilities and opportunities — SDNY arrogance, the pandemic and related court delays, Louis DeJoy’s postal system, and even the SAMs imposed on him — and attempted to exploit them.

As a reminder, a jury hung on the most serious charges against Schulte in March 2020. Afterwards, the government moved to retry Schulte quickly, but his defense attorneys said they needed more time, in part because their expert, Steve Bellovin, was for health reasons unwilling to serve as an expert during COVID. Last November, Judge Paul Crotty scheduled a trial to start June 7, 2021, which would have been a week ago Monday. In March, Schulte’s superb attorney, Sabrina Shroff, moved to delay the trial once more, to October, still citing Bellovin’s withdrawal.

Meanwhile, starting in January, Schulte started submitting pro se filings, some filed through Shroff, and some sent directly. The government responded to a motion for habeas corpus (basically, to point out he needs to file suit against the Warden of MCC, not the prosecution), but did not respond to his motion to suppress evidence seized from the MCC jail. When Schulte filed to request direct access to Lexus Nexis, the government responded, in part, by asking Judge Crotty to force Schulte to decide whether he was representing himself, pro se, or, if not, then to solely allow Shroff and her team to make filings on his behalf.

The defendant’s request appears to be an attempt to further his pattern of engaging in inappropriate, quasi-pro se litigation. The Court should not consider the defendant’s instant letter for that reason. “A defendant has a right either to counsel or to proceed pro se, but has no right to ‘hybrid’ representation, in which he is represented by counsel from time to time, but may slip into pro se mode for selected presentations.” United States v. Rivernider, 828 F.3d 91, 108 (2d Cir. 2016). Although the Court has “discretion to hear from a represented defendant personally,” id. at 108 n.5, “the interests of justice will only rarely be served by a defendant’s supplementation of the legal services provided by his . . . counsel,” United States v. Swinton, 400 F. Supp. 805, 806 (S.D.N.Y. 1975). To the extent the defendant has any colorable claims for relief, his attorneys can present them to the Court, and the Court should reject the defendant’s attempts to “slip into pro se mode,” Rivernider, 828 F.3d at 108, whenever it suits him. See, e.g., United States v. Crumble, No. 18 Cr. 32 (ARR), 2018 WL 3112041, at *4 (E.D.N.Y. June 25, 2018) (“As Markus has not elected to represent himself, he does not have a right to make a motion on his own behalf, nor does he have a right to insist that the district court hear his applications. While I have previously exercised my discretion to entertain Markus’s pro se submissions, I will do so no longer. If Markus wishes to file any further motions, he is directed to ask his trial counsel—or appellate counsel— to adopt this motion. I trust that assigned counsel will file any motions that they do not view as frivolous on Markus’s behalf. Any pro se motions made by Markus, however, will be summarily denied.” (cleaned up)).

In any event, even if the Court considers the defendant’s submission, it is without merit. As his letter acknowledges, he has access to legal databases (a fact confirmed by the volume of his recent pro se filings), but additionally he demands special access to “filings, briefs, modern search, and the ability to print.” The defendant’s claims about the purported deficiencies of the databases to which he does in fact have access do not support such demands or establish a basis for relief. “[A]n inmate cannot establish relevant actual injury simply by establishing that his prison’s law library or legal assistance program is subpar in some theoretical sense.” Lewis v. Casey, 518 U.S. 343, 351 (1996). The defendant identifies no reason he should be afforded special access beyond that which the facility provides in the normal course, and at bottom, he is represented by counsel who have the ability to make well-researched and thoroughly prepared legal claims on his behalf.

Crotty denied Schulte’s request for Lexus Nexis, but didn’t address the pro se request.

Meanwhile, two of the three prosecutors on the team, Matthew LaRoche and Sidhardha Kamaraju, withdrew from the case, both because they’ve left government. LaRoche was involved in a prosecution that collapsed because the government committed a Brady violation, but Kamaraju was not. Kamaraju, however, probably has the most computer expertise of the original three.

Yesterday there was a remarkable status hearing. Crotty started by asking the remaining prosecutor, David Denton, when replacement prosecutors will file an appearance. Imminently, Denton said, though it sounded like he didn’t believe that.

Crotty asked whether Shroff has found an expert. Curiously, she explained that Bellovin still can’t do it, even with the waning risk of COVID, because of his schedule at Columbia University. Crotty noted that it is her responsibility to find an expert (she had said in a November status conference that it would amount to ineffective assistance not to have one).

But the real stunner came at the end, when Shroff said that Schulte wanted her to tell the court that he had told the government back in November that he was proceeding pro se. Denton responded that this was the first he had heard of such a thing, and Shroff responded that he was incorrect; Schulte had informed the government in November.

The hearing ended with a commitment to brief whether Schulte can proceed pro se.

It is almost without exception an insanely bad idea for a defendant to represent themselves, and this is probably not that exception. Still, there are advantages that Schulte would get by representing himself. He’s brilliant, and clearly has been studying the law in the 3.5 years he has been in prison (though he has made multiple errors of process and judgment in his own filings). He has repeatedly raised the Sixth Amendment problems with Special Administrative Measures, notably describing how delays in receiving his mail make it impossible for him to respond to legal developments in timely fashion. So I imagine he’d prepare a Sixth Amendment challenge to everything going forward. He’d be able to demand access to the image of the server he is alleged to have hacked himself. By proceeding pro se, Schulte could continue to post inflammatory claims to the docket for sympathetic readers to magnify, as happened with a filing he submitted earlier this year. And after the government has made clear it will reverse its disastrous strategy from the first trial of making the trial all about Schulte’s conflicts with the CIA, by questioning witnesses himself, Schulte would be able to make personality conflicts central again, even against the government’s wishes. Plus, by not replacing Bellovin, Schulte would serve as expert himself. In that role, Schulte would present the false counter story he has been telling since he was jailed, but in a way that the government couldn’t cross-examine him. So it would probably be insanely detrimental, but less so than for most defendants that try it. It certainly would provide a way to mount the defense that Schulte clearly wants to pursue.

But I think that’s just Schulte’s fall-back plan.

I think his current plan is to argue that, because anything his attorneys did in his name after he purportedly informed prosecutors he was proceeding pro se would be a legal nullity, then two things have happened since that allegedly occurred that will permit him to demand immediate release. First, if his attorneys’ agreements to exclude time from the Speedy Trial clock were not valid, then it would mean the government has run out of time to prosecute Schulte. Additionally, if a request that Shroff made in March to reschedule the trial was not valid, then the trial would have still been scheduled for last week. I suspect Schulte will try to argue that the government forgot to hold their trial and so must be released.

Mind you, there’s no evidence in the docket that Schulte informed prosecutors, much less the court, that he was proceeding pro se. There’s a filing he made in April 2020 that claimed he had no lawyers and made requests as if he was proceeding pro se, one that everyone ignored. But according to Shroff, that’s not the notice; the notice took place in November. Still, given how Schulte has carefully tested how the mail system works with SAMs and COVID, I don’t rule out him sending a letter directly to prosecutors.

The other problem with his claim to be proceeding pro se is that in a May filing, Schulte referred to the October trial (meaning, he recognizes the validity of both that request and Shroff’s exclusion of time under the Speedy Trial Act) and complained that his attorney-client mail was being opened. If he were proceeding pro se without Crotty formally appointing Shroff as standby counsel, their communications would have no privilege. So he has said two things in a pro se filing that are inconsistent with really proceeding pro se.

Certainly, Shroff has said things — in multiple venues — that indicate she believed she remained Schulte’s lawyer.

Given that Schulte claims everything his legal team has done since November was done without his sanction, though, the government would seem to have cause to ask Crotty to assign entirely different lawyers to serve as Schulte’s stand-by counsel, if indeed he does proceed pro se going forward. Which would make his plan for the actual trial, if it ever happens, untenable.

To be sure, I’m not saying this is going to work. But the government — what’s left of the prosecution team, anyway — had better understand that Schulte has been treating the court system with the same adversarial approach as he allegedly did the CIA’s servers. Schulte is claiming to have entered a command into his prosecution back in November that hacked the system, effectively changed the effect of everything that has happened since. Just trusting that such a possibility cannot happen under the legal system is probably a bad idea given where the CIA’s trust that Schulte wouldn’t hack the system turned out.

Update: Via InnerCity Press, there’s the transcript of the hearing.


April 12, 2020: Schulte claims he has no attorneys, claims only a few months remain on Speedy Trial

May 31, 2020: Shroff asks for a week extension to respond to government scheduling motion

June 8, 2020: Schroff requests a status conference for August or September 2020, acting as if Schulte’s request did not exist

June 15, 2020: Shroff initiates White Plains grand jury challenge

June 19, 2020: SDNY extends Speedy Trial to July 1, 2020

July 16, 2020: Shroff informs Judge Crotty Schulte will not reply to Rule 29 motion

July 27, 2020: Shroff asks for extension on grand jury challenge

July 28, 2020: Shroff asks for ESXi server (basically a repeat of Schulte’s April request)

July 30, 2020: Shroff asks for two week delay on status hearing citing (in part) Steve Bellovin’s withdrawal

August 14, 2020: Shroff asks for two week extension on reply to request for ESXi server

September 15, 2020: Shroff reply on ESXi laptop

September 16, 2020: SDNY proposes schedule, with January 2021 trial date

September 21, 2020: SDNY responds to Bellovin submission of ex parte declaration

October 14, 2020: SDNY asks for 30 day exclusion

October 30, 2020: Shroff requests Schulte appear remotely

November 4, 2020: Status conference, trial set for June 7, 2021, with time excluded; Shroff maintains it would be ineffective counsel to go to trial without expert

THE COURT: Are you entitled to an expert?

MS. SHROFF: In a case like this, yes. I’m quite certain I’m entitled to an expert. I think it would be clear error and ineffective assistance of counsel to try this case without an expert, without a doubt.

November 16, 2020: Shroff-submitted motion to dismiss on White Plains grand jury

November 19, 2020: Shroff submits request for VTC meeting with Schulte’s family

January 1, 2021: Schulte motion to suppress MCC evidence (docketed February 24)

January 7, 2021: Shroff requests 2 week extension on White Plains grand jury reply

January 19, 2021: Shroff files Schulte pro se motion for writ of habeas corpus regarding SAMs, dated December 25, 2020

January 22, 2021: Shroff requests two week extension on January 21 deadline for reply on White Plains grand jury reply

January 22, 2021: Shroff requests funds for new laptop for Schulte

January 27, 2021: Civil Division AUSA asks Crotty to dismiss motion for writ so it can be refiled naming Warden as defendant

February 22, 2021: Shroff submits reply on White Plains grand jury challenge

February 24, 2021: Schulte files motion to reconsider decision on habeas (docketed March 4)

March 19, 2021: Schulte calls on Crotty to decide his motion to suppress on the merits, given government non-response (docketed April 5)

March 22, 2021: Shroff moves, with consent of Schulte, to reschedule trial to last quarter of 2021

March 24, 2021: Crotty denies motion to dismiss; Crotty reschedules trial for October 25, excludes time

April 12, 2021: Schulte asks for Lexus Nexis (docketed April 29)

May 5, 2021: Schulte complains about mail delays (docketed May 19); among other things it reflects an October trial date and references attorney-client mail

May 7, 2021: Matthew LaRoche withdraws

May 11, 2021: SDNY submits opposition to Lexus Nexis request, including request for order that Schulte not submit pro se

June 3, 2021: Sidhardha Kamaraju withdraws

June 7, 2021: Date of trial scheduled in November 2020

June 15, 2021: Status hearing at which Schulte claims to have been representing himself pro se since November

Grits: The Difference between Joshua Schulte’s Complaints about SAMs and Those of His Attorneys

Accused Vault 7 leaker Joshua Schulte got himself back in the news with a challenge to the Special Administrative Measures he has been under since he tried to leak information from jail in October 2018.

His latest complaints closely mirror those he made in a separate lawsuit in April 2019 (though in the earlier one, Schulte claimed that Chapo Guzmán was one of the few people on the same floor, not like that should have mattered).

You can tell this one is self-indulgent from Schulte’s claim that there’s no legitimate reason to require his meetings with his family be monitored.

There is no “legitimate governmental objective” to denying a pre-trial detainee the ability to see both his parents at once, to have a contact visit with them, to visit with them in private, or to contact them as often as other inmates. The government has never charged Mr. Schulte with disclosure of classified information through social visits or phone calls. Regardless, the government cannot take a preventative measure of limiting free speech to stop future potential crimes.

Not only did Schulte share protected information via his family in the past, but he was caught sharing information he recognized was protected (which the government suggests may have been classified) on a phone with someone appearing to be a journalist. Sure, he wasn’t charged for that. The government waited until he did it again, this time using ProtonMail, before charging him.

Plus, some of his complaints really address the sheer arbitrariness of prison life, not SAMs per se.

The MCC bans 10S inmates from equal commissary. These randomly banned items include mouthwash, vitamin E, a book light, a bowl, a radio, earbuds, composition notebooks, reading glasses, honey, A&D ointment, artificial tears, gas relief tabs, prilosec tabs, Tylenol, mirrors, dish soap, pens, albums, Sudoku puzzles, mugs, socks, shorts, V05 body soap, suave lotion, herbal essence shampoo, bagels, BBQ sauce, grits, salt and pepper, honey buns, jolly ranchers, shabangs, combs, sharp cheddar cheese, crackers, soy sauce, wheat thins, assorted tea, and coffee, among many, many more items. It’s so random that “raisin brand” cereal is allowed, but “cheerios” cereal is banned (sold in same bag).

One can best measure of the merit of Schulte’s claim, however, by comparing that April 2019 complaint with what his attorneys submitted in a formal challenge to his SAMs shortly thereafter.

B. The SAMs are unconstitutional.

i. The SAMs unconstitutionally punish Mr. Schulte because they are not rationally related to the legitimate governmental interests underlying 28 C.F.R. § 501.

ii. The SAMs impose restrictions on Mr. Schulte’s defense counsel and attorney-client communications in violation of the Sixth Amendment.

C. Limitation on the “dissemination” of communications.

a. Restrictions on third-party communications.

D. Overall chilling effect on defense counsel.

E. The SAMs violate Mr. Schulte’s First Amendment rights by prohibiting non-legal contact with anyone who is not an immediate family member.

That filing, written by experienced defense attorneys who understand the real difference between Schulte’s treatment and that of other defendants, focused on his ability to defend himself and maintain as much contact with his family as possible.

Judge Paul Crotty, in an August 2019 response to Schulte’s lawyers’ motion, upheld most of the SAMs but modified both his contact with lawyers and his family slightly. There’s no reason to believe Crotty will be more amenable to changing the SAMs now, not least given another Schulte filing that suggests his cell may have been raided back on March 8, on a day he would have had contact with the public at his trial. The government claims the officers in question did no more than deliver him to and from the loading dock that day. A separate judge instructed him to refile the complaint by December 23, but any response has yet to appear on the docket.

SAMs are undoubtedly onerous and some of Schulte’s complaints go to the core of whether such restrictions are humane.

But he also has demonstrated repeatedly that he’s a shameless liar aiming to try his case in public.

Joshua Schulte Undermines the WikiLeaks Claim to Publish “Whistleblowers”

In this post, I noted that The Intercept — including Micah Lee — had fairly systematically ignored the most recent superseding indictment against Julian Assange, and as such had ignored the overt acts in it tied to helping Edward Snowden flee. I think the outlet has real ethical responsibility to actually report the truth of that detail — which they should do in any case to address the legally suspect aspects of some of the claims made about Snowden.

I’d like to look at an earlier Micah Lee post, not because of anything it (necessarily) says about The Intercept, but as background for a larger post about WikiLeaks I hope to move towards. In an article subtitled, “The Trump Administration Is Using the Full Power of the U.S. Surveillance State Against Whistleblowers,” Micah laid out how (according to his read of what he claimed were the court filings) the government had found a bunch of “whistleblowers.” Before he gets there, though, he describes the subjects of his post to be “government whistleblowers” who, only after they see something wrong, do they reach out to journalists and share information.

GOVERNMENT WHISTLEBLOWERS ARE increasingly being charged under laws such as the Espionage Act, but they aren’t spies.

They’re ordinary Americans and, like most of us, they carry smartphones that automatically get backed up to the cloud. When they want to talk to someone, they send them a text or call them on the phone. They use Gmail and share memes and talk politics on Facebook. Sometimes they even log in to these accounts from their work computers.

Then, during the course of their work, they see something disturbing. Maybe it’s that the government often has no idea if the people it kills in drone strikes are civilians. Or that the NSA witnessed a cyberattack against local election officials in 2016 that U.S. intelligence believes was orchestrated by Russia, even though the president is always on TV saying the opposite. Or that the FBI uses hidden loopholes to bypass its own rules against infiltrating political and religious groups. Or that Donald Trump’s associates are implicated in sketchy financial transactions.

So they search government databases for more information and maybe print some of the documents they find. They search for related information using Google. Maybe they even send a text message to a friend about how insane this is while they consider possible next steps. Should they contact a journalist? They look up the tips pages of news organizations they like and start researching how to use Tor Browser. All of this happens before they’ve reached out to a journalist for the first time.

Having laid out certain assumptions not just that all these people are whistleblowers, but also about what whistleblowing entails (and made certain claims about motive that don’t necessarily match the claimed motive of some of the subjects of the story, though some of that has become public since Micah wrote this), Micah explains that Joshua Schulte is an exception with regards to how he was caught.

Of the four Espionage Act cases based on alleged leaks in the Trump era, the most unusual concerned Joshua Schulte, a former CIA software developer accused of leaking CIA documents and hacking tools known as the Vault 7 disclosures to WikiLeaks. Schulte’s case is different from the others because, after the FBI confiscated his desktop computer, phone, and other devices in a March 2017 raid, the government allegedly discovered over 10,000 images depicting child sexual abuse on his computer, as well as a file and chat server he ran that included logs of him discussing child sexual abuse images and screenshots of him using racist slurs. Prosecutors initially charged Schulte with several counts related to child pornography and later with sexual assault in a separate case, based on evidence from his phone. Only in June 2018, in a superseding indictment, did the government finally charge him under the Espionage Act for leaking the hacking tools. He has pleaded not guilty to all charges.

He doesn’t return to Schulte’s case for the rest of the piece.

About the rest of the subjects of the story, Micah describes how, whether the subject took some measure to protect himself (such as with Terry Albury and James Wolfe) or did not (such as Reality Winner), they all got caught. What they all have in common is that they were among a very limited circle of people who had access to the stuff that got leaked, and therefore could be ultimately identified with more investigation.

I think Micah’s comment was meant to suggest that Schulte wasn’t identified that same way, but was instead identified only after he was busted for child porn. I texted Micah at the time and let him know that’s not what the court records reflect (he had not, in fact, reviewed the affidavits in the court docket). By that point, a slew of the warrants in the case had been revealed, including the first ones, which showed that Schulte was identified as a suspect almost immediately, in part the same way the others were — because he was one of three people who had access to the files believed to have been leaked. (It would later become clear that at least a few more people had access to the server and that the files were copied on a different, more incriminating date than FBI originally suspected.)

Micah never corrected his post.

Of note, however, even that initial warrant raised real questions about any claim that Schulte was a whistleblower — a claim WikiLeaks made it its first Vault 7 post.

In a statement to WikiLeaks the source details policy questions that they say urgently need to be debated in public, including whether the CIA’s hacking capabilities exceed its mandated powers and the problem of public oversight of the agency. The source wishes to initiate a public debate about the security, creation, use, proliferation and democratic control of cyberweapons.

That first warrant revealed that Schulte,

  • Had already restored his access to the exact files in question without authorization once (FBI would later discover he did this at least two more times)
  • Was pissy about something that had nothing to do with the hacking CIA did with the tools that Schulte wrote, basically a juvenile work dispute with a colleague
  • Had laid a paper trail in the weeks before he left CIA, making a claim to be a whistleblower, but the claim was not backed by any prior record of concern (per the FBI agent who admittedly should not be trusted on face value)

That is, even that first affidavit suggested that Schulte had used the claim to be a whistleblower as cover.

Schulte declined to present much of a defense at his first trial, a decision that (given the hung jury) absolutely was the right decision. So we can’t claim to have fully assessed all his claims to be a whistleblower, claims he made in pro se filings and deceitful Tweets he intended to post from jail. He chose not to make that case personally and he didn’t need to make the case to avoid a guilty verdict.

That said, all the evidence presented at trial strongly backs the initial FBI assessment that he was just an angry shithole who thought he was god, aiming to get back at people at the CIA he thought had dissed him. Indeed, two pieces of evidence submitted seriously undermine his claim to be a whistleblower, because they show he acted in ways that would be inconsistent from someone who genuinely had the concerns Schulte claimed to have — both a concern about the role of contractors and about security.

First, at one point when he was pissy because the CIA had contracted with a consultant to finish off a project that had been taking too long under him, Schulte actually considered become a contractor. Yes, he was pissy that a contractor could take away his project. But considering a job as a contractor is inconsistent with his claims about the use of them. It makes the claims translated into the WikiLeaks statement yet another cover for Schulte’s own resentment.

Then, at trial, the government showed that Schulte himself was responsible for setting up a root password that he allegedly used to steal the files. That is, to the extent the files were totally insecure from someone like Schulte, they were insecure because Schulte set them up to be. So not only was he not complaining to anyone else about the insecurity of these files, he was the one making them insecure.

Again, maybe Schulte could make a persuasive case he leaked these files to expose wrong-doing. But thus far, every piece of evidence suggests not only that Schulte was not a whistleblower, that every time he wrote up a claim to be one he otherwise told identifiable lies, and that he’s mostly just a rage-driven dude who decided to burn the CIA to the ground for spite.

Now, if WikiLeaks is a publisher, as it claims, that doesn’t necessarily matter. Journalists get information from sources operating out of a variety of motives, and personal pique is a common one. Except it raises the stakes on the newsworthiness of the files published. And on that front, WikiLeaks (on Twitter especially) vastly oversold the newsworthiness of the CIA files it published. Yes, it was useful for security firms to have CIA’s files identified publicly. But there was never anything published showing that CIA was operating outside of its mandate, and much of what was published showed tools that would be narrowly targeted. Just as importantly, CIA wasn’t actually doing anything particularly exotic with its hacking files. Spies were spying, news at 11.

I’ve written before about how a close associate of Assange’s sternly asked me to downplay Schulte because he hurt the public case for Julian Assange. I think that’s partly the allegations of child porn, racism, and sexual assault against him. People associated with WikiLeaks also knew before it was public that there was evidence involving Schulte implicating Russia (though the record on what the import of various pieces of evidence about Schulte pertaining to Russia mean is very mixed; Sabrina Shroff argued fairly convincingly that some of what is there stems from work Schulte was doing for his cellmate). Still, that may be another reason WikiLeaks boosters don’t want anyone to talk seriously about Schulte, because in the wake of Julian Assange working with Russia to get harm Hillary, their next big source also had some tie, of uncertain nature, to Russia.

But the existing record on Schulte, at least, not only undermines WikiLeaks’ claim to facilitate whistleblowers. On the contrary, WikiLeaks gave a disgruntled spook an easy way to burn the place down. More importantly, somewhere along the way, Schulte decided to cloak his bitter revenge plot inside a false claim to be a whistleblower.

People can certainly still defend WikiLeaks as an outlet permitting disgruntled spooks to burn their agencies to the ground out of spite. Certainly, if you believe the CIA is inherently, uniquely evil, you might still champion this leak. But on the Vault 7 leak, WikiLeaks boosters should be clear that’s what they’re doing.

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.

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.

Judge Crotty Declares a Mistrial in Joshua Schulte Case

This morning, Judge Paul Crotty declared a mistrial in the Joshua Schulte case. Jurors found Schulte guilty on the two least serious charges — false statements and contempt — but didn’t even find him guilty of obstruction, to say nothing of the Espionage and CFAA charges tied to his alleged theft of the CIA’s hacking tools. A sentence on those two charges would not even amount to the time he has already served since being jailed in December 2018.

This is an absolutely stunning rebuke for the government on the most serious Espionage case in years, and an unbelievable success for Schulte’s lawyers, especially Sabrina Shroff.

The two sides will have a conference on March 26 to decide what to do. The government will certainly push to retry Schulte; Sabrina Shroff asked for an extended deadline to file motions. She may try to do something further about the government’s late notice that Michael, a key witness, got put on paid leave last August (though the government has argued compellingly that Michael’s underlying lack of candor has been noticed to the defense throughout). She also may make yet another bid to get more access to the forensics, something I’ve argued that the government should have permitted in the first place.

That said, I think the government’s failure in this case stemmed largely from too much focus on the CIA and too little focus on the (abundant) evidence against Schulte. In addition, they do not appear to have shown — via the abundant evidence available to them — that Schulte is a compulsive liar, and that exhibits that show Schulte offering alternate theories of the theft all fall flat.

Plus, there were problems with two jurors, problems that I think Judge Crotty did not adequately manage.

That is, I think the government can learn from its failures in this case. I wouldn’t be surprised, either, if the vaunted SDNY is forced to add a cybersecurity prosecutor to their team, to ensure that the forensic case is presented more clearly to jurors.

I highly doubt Schulte can pull this off a second time. If he can, it will be a remarkable comment on the government’s ability to obtain justice against insider threats.

20 Questions (Plus 5): The Joshua Schulte Jury Is Lost, Possibly Hopelessly

According to InnerCity Press (virtually the only press covering the Schulte verdict watch), by end of day today the jurors had sent out 25 notes, most questions but also problems with two of the jurors. At the end of the day they told the Court they “aligned” on two of the charges, but were at an impasse on the other. Given that there’s slam dunk evidence that he committed the least serious crimes (false statements and contempt), that suggests at least some members of the jury have reasonable doubt that the guy who wrote a virtual signed confession to committing the most damaging leak in CIA history actually did so.

I wanted to collect the known questions from jurors to give a sense of what issues have driven this uncertainty.

Note 1: A request for a summary of exhibits

Note 2: A request for a transcript of the testimony of David, a CIA Sysadmin, particularly as regards what jurors may have mislabeled 1209-8 (David testified about Schulte’s failed attempt to access Altabackups with regards to exhibit 1202-8).

Note 3 asked 7 questions:

  1. What is included in Count Three? We aren’t sure what the purview is — articles, search warrants, tweets? This pertains to the Espionage Charge tied to posting classified information in one of his diaries, sending a diagram of CIA’s servers to WaPo reporter Shane Harris, and planning to reveal details about how a CIA hacking tool, Bartender, was used in the field (which certainly would expose CIA officers, and probably NOCs).
  2. In 2015, when DevLAN went down, was Schulte called to fix the problem? How did he fix it? Schulte’s lawyer, Sabrina Shroff, had made much of the fact that when Schulte was at a conference he got called about DevLAN going down. It’s not directly related to any of his charges.
  3. Can you please reread what was found on Schulte’s home computer? This would have focused on deleted materials (and the lack of classified information), but given that Juror 5 almost certainly knew about the child porn allegations and there was a focus on Schulte’s hosting of movies, this may have been what they were looking for.
  4. Did GX 809 reference Schulte’s taking a drug (“took my last piece”)? If so, what was it? Was it regular use? This refers to part of one page of his prison notebook in which he discusses  taking his “last piece” and envisioning himself as a Cardinal. It is entirely unrelated to his charges.
  5. Is it confirmed that Schulte’s been diagnosed with Aspergers Syndrome? One of the very senior CIA managers suggested to another that Schulte might have Asperbergers. It is entirely unrelated to his charges.
  6. For Count One, is Altabackups inclusive of Brutal Kangaroo? Is it inclusive of OSB libraries? The backup that Schulte is alleged to have stolen included both the libraries (which were not leaked) and Brutal Kangaroo (materials on which were leaked), but it included far more, but the parties did not answer this because they weren’t sure whether this was a network question or a charging one.
  7. Where were OSB libraries housed/where did they live? They were part of Stash.

Note Four: Can we please have simplified badge times/formats for Schulte on 4/20/16 in a format similar to GX 115. One piece of evidence that Schulte did the reversion during which the backup sent to WikiLeaks was stolen was that he was the only one in his SCIF with his computer during the time the commands doing the reversion were entered into it. The badge records would show that. Jurors did get simplified badge records.

Note Five: In Exhibit GX 107, what does lock/unlock computer mean in columns Source and Type? Is the computer locking itself? What is someone unlocking? This pertains to something tracked on CIA badge records and was not explained in testimony.

Note Six includes four questions:

  1. Is there evidence that April 18 and 20 were the only two times in 2016 that Schulte left the vault last? April 18, the day Schulte allegedly conducted reconnaissance on the backup files, and April 20, the day he allegedly stole him were the only two days he was the last person in his SCIF at RDB (the time period for which may include just the last seven months he worked at CIA).
  2. What does mount the Altabackups mean? This refers to how the CIA networks were set up, and Schulte’s role in doing that.
  3. What does create data store mean? This pertains to testimony about one attempt Schulte made to regain access to files he had been booted from.
  4. When someone logs out of a virtual machine, what happens to the log files from that session? There was no testimony on this point (jurors likely asked it to try to assess whether Schulte’s buddy Michael could have stolen the files).

Note Seven (Exhibits 16-17, I think) asked for the transcripts of Michael Berger (the FBI forensics expert who presented evidence of Schulte’s efforts to wipe evidence at home) and Michael (Schulte’s buddy who took a screen cap of him deleting logs).

Note Eight: Jurors complained that one of the jurors, Juror 4, was not deliberating with the rest of the jury and coming in late.

Note Nine included two questions:

  1. Can we please have testimony from Richard Evanchec. Evanchec is one of the FBI agents that interviewed Schulte and searched his home, and so is central to the false statements charges.
  2. What testimonies covered GX 1305-8 and GX 1305-9. Can we please have transcripts about that. These are Schulte’s Google records, which Evanchec also testified about.

Note Ten: Juror five has prior information, probably including details of Schulte’s child porn charges. She also looked up one of the lawyers. It became clear in a later sidebar that this is the juror who had said something inappropriate to another juror, possibly about deliberations, on February 13, during the trial.

Note Eleven included two questions:

  1. What happened to Schulte’s computers and workstation after he went to Bloomberg (after November 10)? This is likely a question testing a theory about whether someone — possibly Michael? — could have altered logs on Schulte’s computer after he left on November 10, 2016.
  2. When and where was Rufus’s SSH key found? Was it found in the home directory or was it found forensically? Schulte had stored the key of someone, Rufus, who had had Admin access but left, on his home directory. He used it when he was deleting logs on April 20. Sabrina Shroff had gotten one witness to testify that it was very easy to access other people’s home drives, so this is likely another effort to test an alternate culprit theory.

There were two more questions today (which I’ll update on Monday when that transcript is released):

  • Something about the CFAA charge, suggesting jurors are not treating the reversion as a hack, but might be treating Schulte booting his colleague off Brutal Kangaroo as one.
  • Something about unanimity on charges, possibly relating to the leaks from jail.

And then jurors told the court that they’re only in agreement on two charges, but stuck on the others.

For the reasons I laid out here — as well as the two problem jurors — I’m not surprised about that. And given the questions, it seems clear that the extended focus on Schulte’s employment disputes at the CIA made at least some of the jurors sympathetic to the idea that someone at CIA framed Schulte. Keep in mind, too, that Schulte adopted the moniker Jason Bourne in prison, so he fed that idea. And — as Shroff noted in her close — there was no good reason to focus on the continued employment disputes that extended two months after Schulte allegedly stole the files.

When the CIA puts its formers on trial, in my opinion, it believes the general population will be as outraged by a violation of CIA’s sacred trust as they themselves are. That may be why prosecutors aired that entire nasty employment dispute. But that’s generally not the case outside of EDVA, especially not in SDNY.

Between that, and the forensic complexity of this case, it appears the jury is lost.

Reminder; Calyx Institute and other donors sprung for the transcripts of this trial.

The State of Play: Joshua Schulte and Julian Assange

Last year, it looked like the Joshua Schulte trial, rescheduled in the fall to start January 13, would be done before the extradition hearing for Julian Assange started. Two things changed since then: Schulte got a delay until February 3, and then last month, Assange convinced Judge Vanessa Baraitser to split his extradition hearing into two, the first part lasting a week starting Monday, and then resuming on May 18 for three more weeks.

As a result, both men are in court during the same week, intersecting in interesting ways.

Thus far, Assange’s argument is threefold:

  1. His prosecution is hopelessly political, merely retaliation by the hated President that Assange helped elect, Donald Trump
  2. The evidence in the case against Assange is so weak as to be abusive
  3. A person cannot be extradited for political crimes like the Espionage Act

The first argument is a load of horseshit covering up the fact that the timing of the treatment of WikiLeaks as a non-state hostile intelligence service, the increased surveillance of Assange, and the initial December 21, 2017 charge all stem from WikiLeaks’ burning the CIA by publishing all its hacking tools. It’s horseshit, but it garners a lot of enthusiasm among WikiLeaks supporters who like to conveniently forget that, whatever Assange’s motivations were in 2010 (when he engaged in the acts he is charged with), he nevertheless helped Russia help Trump get elected. That said, even though the claims about what changed in 2017 are horseshit, it doesn’t change that the existing charges against Assange pose a real danger to journalism.

The second argument is far stronger. For each of the theories of prosecution under which Assange is charged — attempting to help Chelsea Manning crack a password, soliciting certain files via WikiLeaks’ wish list, and publishing a bunch of files in which the names of US and British sources were later revealed — Assange has at least a credible defense. Assange never succeeded, and could not have succeeded, in cracking that password. Manning didn’t leak the precise files that WikiLeaks had on its wish list (though did leak some of the same sets). WikiLeaks originally went to some effort to redact the names of sources, only to have a Guardian journalist release the password revealing them. Mind you, the extradition hearing is not the trial itself, so for these defenses to be relevant, WikiLeaks has to prove that the case against Assange is abusively weak.

The third argument, which is being argued today, is a more interesting legal question. Assange claims that the existing Anglo-US extradition treaty, passed in 2003, still prohibits extradition for political offenses like theEspionage Act. The US argues that Assange’s extradition is governed by the Extradition Act of 2003, which did not include such a bar (and also disagrees that these are political crimes). The lawyers are even arguing about the Magna Carta! Judge Vanessa Baraitser seems inclined to side with the US on this point, but the question will surely be appealed. Mind you, one of the charges against Assange, CFAA, is in no way a political offense, and the UK has not barred its own citizens, much less foreign citizens hanging out in foreign embassies, from being extradited on the charge (though several hackers, most recently Lauri Love, have challenged their extradition to the US for CFAA on other grounds).

Yesterday, Assange’s defense spent a good deal of time making the second argument. The US didn’t respond. Rather, it said it would deal with those issues in the May hearing.

Meanwhile, the Schulte trial is wrapping up, with Schulte doing little to mount a defense, but instead preparing an appeal. Yesterday, Schulte asked that an instruction on the defendant not testifying be added to the jury instructions (normally, these are included from the start, but Schulte has been claiming he would testify all this time). Today, Schulte told the court that Steve Bellovin won’t testify because he never got access to all the data Judge Paul Crotty ruled he couldn’t have access to (not mentioning, however, that the restrictions stemmed from Crotty’s own CIPA judgment).

I’m still unclear on the status of the witness, Michael. Schulte is trying to submit his CIA investigative report in lieu of finishing cross-examination (which is where things had left off). But it still seems possible that Crotty would require his testimony to be resumed, giving the government another opportunity to redirect his testimony. This is all likely happening today, but given that there’s so little coverage of the trial, we won’t know until Thursday.

Before all this happened, however, the jailhouse informant provided very damning testimony against Schulte, not only describing how Schulte obtained a phone (swapping an iPhone for a Samsung that he could load all the apps he wanted on it), but also claiming that Schulte said, “Russia had to help him with what he was doing,” launching an information war.” I had learned of similar allegations of ties or willingness to forge them with Russia via several sources in the past. And Schulte’s own jailroom notebooks include hints of the same, such as a bullet point describing how Russia could help the US “destroy itself.”

And his final plan — which the informant alerted his handlers to just before Schulte launched it — included some “Russia pieces.”

As part of the same plan to get fellow SysAdmins to leak all their secrets to WikiLeaks, then, Joshua Schulte was also hoping to encourage Russia to attack the US.

I’ve long said the Vault 7 case, if it were ever added to Julian Assange’s charges (including an extortion charge, which would also not be a political crime), would be far more damning and defensible than the ones currently charged. Filings from November suggested that the government had come to think of Schulte’s leaks to WikiLeaks as the last overt act in an ongoing conspiracy against the United States.

And by 2018, Schulte had come to see leaking to WikiLeaks as part of the same plan encouraging Russian attacks on the US, precisely the allegation WikiLeaks has spent years trying to deny, especially in the wake of Assange’s cooperation in Russia’s election year operation.

It’s not clear whether the US will add any evidence to the original 2010 charges against Assange before May (though Alexa O’Brien has pointed to where additional evidence might be), but the statement they’re waiting until then to rebut the solid defense that WikiLeaks is now offering suggests they might. That might reflect a hope that more coercion against Chelsea Manning will produce that additional evidence (she has renewed her bid to be released, arguing that such coercion has obviously failed). Or it might suggest they’ve got plans to lay out a broader conspiracy if and when Schulte is convicted.

Assange’s lawyers pushed for the delay to May in the first place. If the US government uses the extra time to add charges related to Vault 7, though, the delay may make a significant difference in the posture of the case.