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The Government Argues that Edward Snowden Is a Recruiting Tool

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

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

Using Snowden as a recruitment tool

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

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

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

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

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

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

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

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

[snip]

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

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

Snowden admits Harrison got involved to optimize his fate

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

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

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

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

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

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

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

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

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

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

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

Snowden’s own attempt to optimize outcomes

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

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

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

gpg –verify PRISM.pptx.sig PRISM.pptx

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

using RSA key ID ⬛⬛⬛⬛⬛⬛⬛⬛

gpg: Good signature from “Verax”

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

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

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

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

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

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

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

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

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

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

The government is using Snowden as inspiration in other cases

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

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

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

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

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

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

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

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

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

How the Wyden/Khanna Espionage Act Fix Works (But Not for Julian Assange)

Last week, Ron Wyden and Ro Khanna released a bill that they say will eliminate much of the risk of prosecution that people without clearance would face under they Espionage Act. They claim the bill would limit the risk that:

  • Whistleblowers won’t be able to share information with appropriate authorities
  • Those appropriate authorities (including Congress) won’t be able to do anything with that information
  • National security journalists will be prosecuted for publishing classified information
  • Security researchers will be prosecuted for identifying and publishing vulnerabilities

I want to look at how the bill would do that. But I want to do so against the background of claims about how the bill would affect the ability to prosecute Julian Assange.

After explaining that under the bill Edward Snowden could still be prosecuted, the summary of the bill states in no uncertain terms that the government could still prosecute Julian Assange under the bill.

Q: How would this bill impact the government’s prosecution of Julian Assange?

A: The government would still be able to prosecute Julian Assange.

It doesn’t say how, but immediately after that question, it explains that the government could still prosecute hackers who steal government secrets.

Q: What about hackers who break into government systems and steal our secrets?

A: The Espionage Act is not necessary to punish hackers who break into U.S. government systems. Congress included a special espionage offense (U.S.C § 1030(a)(1)) in the Computer Fraud and Abuse Act, which specifically criminalizes this.

Khanna, in an interview with The Intercept, seems to confirm that explanation — that Assange could still be prosecuted under CFAA.

Khanna told The Intercept that the new bill wouldn’t stop the prosecution of Assange for his alleged role in hacking a government computer system, but would make it impossible for the government to use the Espionage Act to charge anyone solely for publishing classified information.

Indeed, that is sort of what Charge 18 against Assange is, conspiracy to commit computer intrusion, though, as written, it invokes the Espionage Act and theft of government secrets as part of the conspiracy (the Wyden/Khanna bill would limit the theft of government property bill in useful ways). Never mind that as charged it’s a weak charge for evidentiary reasons (though that may change in Assange’s May extradition hearing); it would still be available, if not provable given existing charged facts, under this bill.

But given the claims the US government makes about Assange, that may not be the only way he could be prosecuted under this bill. That’s because the bill works in two ways: first, by generally limiting its application to “covered persons,” who are people who’ve been authorized to access classified or national defense information by an Original Classification Authority. Then, it defines “foreign agent” using the definition in FISA (though carving out foreign political organizations) and says that anyone who is not a foreign agent “shall not be subject to prosecution” under the Espionage Act unless they commit a felony under the act — by aiding, abetting, or conspiring in the act — or pays for the information and wants to harm the US. The bill further carves out providing advice (for example, on operational security) or an electronic communication or remote computing service (such as a secure drop box) to the public.

So:

  • If you don’t have clearance or are sharing information not obtained illegally or via your clearance and
  • If you aren’t an agent of a foreign power and
  • If you’re not otherwise paying for, conspiring or aiding and abetting in some way beyond offering operational security and drop boxes with the specific intent to harm the US or help another government

Then you shouldn’t be prosecuted under the Espionage Act.

Below, I’ve written up how 18 USC §793 and 18 USC §798 would change under the bill, with changes italicized (18 USC §794 already includes the foreign government language added by this bill so would not change).

In the wake of the 2016 election operation, where Julian Assange helped a Russian operation hiding behind thin denials, Assange might well meet the definition of “foreign agent.” Three of WikiLeaks’ operations — the Stratfor hack (in which Russians were involved in the chat rooms), the 2016 election year operation, and Vault 7 (in which Joshua Schulte, between the initial leak and the alleged attempts to leak from jail, evinced an interest in Russia’s help) — involved some Russian activity.

And it’s not clear how Congress’ resolution — passed in last year’s NDAA — that WikiLeaks is a non-state hostile intelligence service often abetted by state actors would affect Assange’s potential treatment as a foreign agent.

It is the sense of Congress that WikiLeaks and the senior leadership of WikiLeaks resemble a nonstate hostile intelligence service often abetted by state actors and should be treated as such a service by the United States.

But even with all the new protections for those who don’t have clearance, this bill specifically envisions applying it to someone like Assange. That’s because it explicitly incorporates aiding and abetting (18 USC § 2) — which is how Assange is currently charged in Counts 2-14 — as well as accessory after the fact (18 USC § 3), and misprison of a felony (18 USC § 4) into the bill. That’s on top of the conspiracy to commit an offense against the US (18 USC § 371), which is already implicitly incorporated in 18 USC § 793(g), which is Count 1 in the Assange indictment. Arguably, explicitly adding the accessory after the fact and misprison of a felony would make it easier to prosecute Assange for assistance that WikiLeaks and associated entities routinely provide sources after the fact, such as publicity and legal representation, to say nothing of the help that Sarah Harrison gave Edward Snowden to flee to Russia.

And those charges don’t require someone formally fit the definition of agent of a foreign power so long as the person has “the specific intent to harm the national security of the United States or benefit any foreign government to the detriment of the United States.” (I’ve bolded this language below.) That’s a mens rea requirement that might otherwise be hard to meet — but not in the case of Assange, even before you get into any non-public statements the US government might have in hand.

This is a bill from Ron Wyden, remember. Back in 2017, when he first spoke out when SSCI first moved to declare WikiLeaks a non-state hostile intelligence service, he expressed concerns about the lack of clarity in such a designation.

I have reservations about Section 623, which establishes a Sense of Congress that WikiLeaks and the senior leadership of WikiLeaks resemble a non-state hostile intelligence service. The Committee’s bill offers no definition of “non-state hostile intelligence service” to clarify what this term is and is not. Section 623 also directs the United States to treat WikiLeaks as such a service, without offering further clarity.

To be clear, I am no supporter of WikiLeaks, and believe that the organization and its leadership have done considerable harm to this country. This issue needs to be addressed. However, the ambiguity in the bill is dangerous because it fails to draw a bright line between WikiLeaks and legitimate journalistic organizations that play a vital role in our democracy.

I supported efforts to remove this language in Committee and look forward to working with my colleagues as the bill proceeds to address my concerns.

While this bill does much to protect journalists (and in a way that doesn’t create a special class for journalists or InfoSec researchers that would violate the First Amendment), it provides the clarity that would enable charging Assange, even for things he did after the fact to encourage leakers.

Update: Two more points on this. First, as I understand it, the explicit references to 18 USC §§ 2-4 are designed to protect reporters, meaning the protections apply to those as well.

I also meant to note that the way this bill is written — which is clearly meant to allow for prosecution of people working at state-owned media outlets (Russia, China, and Iran all use their outlets as cover for spies) — would then by design not protect reporters at the BBC or Al Jazeera, both of which have done reporting on stories implicating US classified information in the past.


18 USC § 793

(a) Whoever, for the purpose of obtaining information respecting the national defense with intent or reason to believe that the information is to be used to the injury of the United States, or to the advantage of any foreign nation, goes upon, enters, flies over, or otherwise unlawfully obtains nonpublic information concerning any vessel, aircraft, work of defense, navy yard, naval station, submarine base, fueling station, fort, battery, torpedo station, dockyard, canal, railroad, arsenal, camp, factory, mine, telegraph, telephone, wireless, or signal station, building, office, research laboratory or station or other place connected with the national defense owned or constructed, or in progress of construction by the United States or under the control of the United States, or of any of its officers, departments, or agencies, or within the exclusive jurisdiction of the United States, or any place in which any vessel, aircraft, arms, munitions, or other materials or instruments for use in time of war are being made, prepared, repaired, stored, or are the subject of research or development, under any contract or agreement with the United States, or any department or agency thereof, or with any person on behalf of the United States, or otherwise on behalf of the United States, or any prohibited place so designated by the President by proclamation in time of war or in case of national emergency in which anything for the use of the Army, Navy, or Air Force is being prepared or constructed or stored, information as to which prohibited place the President has determined would be prejudicial to the national defense; or

(b) An individual who, while a covered person, for the purpose aforesaid, and with like intent or reason to believe, copies, takes, makes, or obtains, or attempts to copy, take, make, or obtain, any sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, document, writing, or note of anything connected with the national defense; or

(c) A foreign agent who, for the purpose aforesaid, and with like intent or reason to believe, receives or obtains or agrees or attempts to receive or obtain from any person, or from any source whatever, any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note, of anything connected with the national defense, knowing or having reason to believe, at the time the foreign agent receives or obtains, or agrees or attempts to receive or obtain it, that it has been or will be obtained, taken, made, or disposed of by any person contrary to the provisions of this chapter; or

(d) Whoever, lawfully having possession of, access to, control over, or being entrusted with any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note, or information relating to the national defense, which document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted or attempts to communicate, deliver, transmit or cause to be communicated, delivered or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it; or

(e) An individual who—

(1) while a covered person, gains unauthorized possession of, access to, or control over any non public document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note of anything connected with the national defense; and

(2)(A) with reason to believe such information could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits, or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit, or cause to be communicated, delivered, or transmitted, the same to any person not entitled to receive it; or

(B) willfully—

(i) retains the same at an unauthorized location; and

(ii) fails to deliver the same to the officer or employee of the United States entitled to receive it; or’

(f) Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance,  (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer—

Shall be fined under this title or imprisoned not more than ten years, or both.

(g)(1) A foreign agent who—

(A) aids, abets, counsels, commands, induces, or procures the commission of an offense under this section shall be subject to prosecution under this section by virtue of section 2 of this title;

(B) knowing that an offense under this section has been committed by another person, receives, relieves, comforts, or assists such other person in order to hinder or prevent the apprehension, trial, or punishment of such other person shall be subject to prosecution under section 3 of this title;

(C) having knowledge of the actual commission of an offense under this section, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States shall be subject to prosecution under section 4 of this title; or

(D) conspires to commit an offense under this section shall be subject to prosecution under section 371 of this title.

(2) Any person who is not a foreign agent shall not be subject to prosecution under this section by virtue of section 2 of this title or under section 3, 4, or 371 of this 7 title, unless the person—

(A) commits a felony under Federal law in the course of committing an offense under this section (by virtue of section 2 of this title) or under section 3, 4, or 371 of this title;

(B) was a covered person at the time of the 13 offense; or

(C) subject to paragraph (3), directly and materially aids, or procures in exchange for anything of monetary value, the commission of an offense under this section with the specific intent to—

(i) harm the national security of the United States; or

(ii) benefit any foreign government to the detriment of the United States.

(3) Paragraph (2)(C) shall not apply to direct and material aid that consists of—

(A) counseling, education, or other speech activity; or

(B) providing an electronic communication service to the public or a remote computing service (as such terms are defined in section 2510 and 2711, respectively).

(h)

(1)Any person convicted of a violation of this section shall forfeit to the United States, irrespective of any provision of State law, any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, from any foreign government, or any faction or party or military or naval force within a foreign country, whether recognized or unrecognized by the United States, as the result of such violation. For the purposes of this subsection, the term “State” includes a State of the United States, the District of Columbia, and any commonwealth, territory, or possession of the United States.

(2)The court, in imposing sentence on a defendant for a conviction of a violation of this section, shall order that the defendant forfeit to the United States all property described in paragraph (1) of this subsection.

(3)The provisions of subsections (b), (c), and (e) through (p) of section 413 of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. 853(b), (c), and (e)–(p)) shall apply to—

(A)property subject to forfeiture under this subsection;

(B)any seizure or disposition of such property; and

(C)any administrative or judicial proceeding in relation to such property, if not inconsistent with this subsection.

(4)Notwithstanding section 524(c) of title 28, there shall be deposited in the Crime Victims Fund in the Treasury all amounts from the forfeiture of property under this subsection remaining after the payment of expenses for forfeiture and sale authorized by law.

(i) In this section—

(1) the term “covered person” means an individual who—

(A) receives official access to classified information granted by the United States Government;

(B) signs a nondisclosure agreement with regard to such classified information; and

(C) is authorized to receive documents, writings, code books, signal books, sketches, photographs, photographic negatives, blueprints, plans, maps, models, instruments, appliances, or notes of anything connected with the national defense by—

(i) by the President; or

(ii) the head of a department or agency of the United States Government which is expressly designated by the President to engage in activities relating to the national defense; and

(2) the term “foreign agent”—

(A) has the meaning given the term “agent of a foreign power” under section 101 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801); and

(B) does not include a person who is an agent of a foreign power (as so defined) with respect to a foreign power described in section 101(a)(5) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801(a)(5)).

18 USC §798

(a)Any individual who knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information obtained by the individual while the individual was a covered person and acting within the scope of his or her activities as a covered person

(1) concerning the nature, preparation, or use of any code, cipher, or cryptographic system of the United States or any foreign government; or

(2) concerning the design, construction, use, maintenance, or repair of any device, apparatus, or appliance used or prepared or planned for use by the United States or any foreign government for cryptographic or communication intelligence purposes; or

(3) concerning the communication intelligence activities of the United States or any foreign government; or

(4) obtained by the processes of communication intelligence from the communications of any foreign government, knowing the same to have been obtained by such processes—

Shall be fined under this title or imprisoned not more than ten years, or both.

(b)As used in subsection (a) of this section:

(1) The term ‘classified information’—

(A) means information which, at the time of a violation of this section, is known to the person violating this section to be, for reasons of national security, specifically designated by a United States Government Agency for limited or restricted dissemination or distribution and;

(B) does not include any information that is specifically designated as ‘Unclassified’ under any Executive Order, Act of Congress, or action by a committee of Congress in accordance with the rules of its House of Congress.

(2) The terms ‘code’, ‘cipher’, and ‘cryptographic system’ include in their meanings, in addition to their usual meanings, any method of secret writing and any mechanical or electrical device or method used for the purpose of disguising or concealing the contents, significance, or meanings of communications.

(3) The term “communication intelligence” means all procedures and methods used in the interception of communications and the obtaining of information from such communications by other than the intended recipients.

(4) The term ‘covered person’ means an individual who—

(A) receives official access to classified information granted by the United States Government;

(B) signs a nondisclosure agreement with regard to such classified information; and

(C) is authorized to receive information of the categories set forth in subsection (a) of this section—

(i) by the President; or

(ii) the head of a department or agency of the United States Government which is expressly designated by the President to engage in communication intelligence activities for the United States

(5) The term “foreign government” includes in its meaning any person or persons acting or purporting to act for or on behalf of any faction, party, department, agency, bureau, or military force of or within a foreign country, or for or on behalf of any government or any person or persons purporting to act as a government within a foreign country, whether or not such government is recognized by the United States.

(6) The term “unauthorized person” means any person who, or agency which, is not authorized to receive information of the categories set forth in sub10 section (a) of this section by—

(A) the President;

(B) the head of a department or agency of the United States Government which is expressly designated by the President to engage in communication intelligence activities for the United States; or

(C) an Act of Congress.

(c)Nothing in this section shall prohibit the furnishing of information to—

(1) any Member of the Senate or the House of Representatives;

(2) a Federal court, in accordance with such procedures as the court may establish;

(3) the inspector general of an element of the intelligence community (as defined in section 3 of the National Security Act of 1947 (50 U.S.C. 3003)), including the Inspector General of the Intelligence Community;

(4) the Chairman or a member of the Privacy and Civil Liberties Oversight Board or any employee of the Board designated by the Board, in accordance with such procedures as the Board may establish;

(5) the Chairman or a commissioner of the Federal Trade Commission or any employee of the Commission designated by the Commission, in accordance with such procedures as the Commission may establish;

(6) the Chairman or a commissioner of the Federal Communications Commission or any employee of the Commission designated by the Com2 mission, in accordance with such procedures as the Commission may establish; or

(7) any other person or entity authorized to receive disclosures containing classified information pursuant to any applicable law, regulation, or executive order regarding the protection of whistleblowers.

(d)

(1) In this subsection, the term ‘foreign agent’—

(A) has the meaning given the term “agent of a foreign power” under section 101 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801); and

(B) does not include a person who is an agent of a foreign power (as so defined) with respect to a foreign power described in section 101(a)(5) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801(a)(5)).

(2) A foreign agent who—

(A) aids, abets, counsels, commands, induces, or procures the commission of an offense under this section shall be subject to prosecution under this section by virtue of section 2 of this title;

(B) knowing that an offense under this section has been committed by another person, receives, relieves, comforts, or assists such other person in order to hinder or prevent the apprehension, trial, or punishment of such other person shall be subject to prosecution under section 3 of this title;

(C) having knowledge of the actual commission of an offense under this section, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States shall be subject to  prosecution under section 4 of this title; or

(D) conspires to commit an offense under this section shall be subject to prosecution under section 371 of this title.

(3) Any person who is not a foreign agent shall not be subject to prosecution under this section by virtue of section 2 of this title or under section 3, 4, or 371 of this title, unless the person—

(A) commits a felony under Federal law in the course of committing an offense under this section (by virtue of section 2 of this title) or under section 3, 4, or 371 of this title;

(B) was a covered person at the time of the offense; or

(C) subject to paragraph (4), directly and materially aids, or procures in exchange for anything of monetary value, the commission of an offense under this section with the specific intent to—

(i) harm the national security of the United States; or

(ii) benefit any foreign government to the detriment of the United States.

(4) Paragraph (3)(C) shall not apply to direct and material aid that consists of—

(A) counseling, education, or other speech activity; or

(B) providing an electronic communication service to the public or a remote computing service (as such terms are defined in section 2510 and 2711, respectively)

(e)

(1)Any person convicted of a violation of this section shall forfeit to the United States irrespective of any provision of State law—

(A)any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of such violation; and

(B)any of the person’s property used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, such violation.

(2)The court, in imposing sentence on a defendant for a conviction of a violation of this section, shall order that the defendant forfeit to the United States all property described in paragraph (1).

(3)Except as provided in paragraph (4), the provisions of subsections (b), (c), and (e) through (p) of section 413 of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. 853(b), (c), and (e)–(p)), shall apply to

(A)property subject to forfeiture under this subsection;

(B)any seizure or disposition of such property; and

(C)any administrative or judicial proceeding in relation to such property,
if not inconsistent with this subsection.

(4)Notwithstanding section 524(c) of title 28, there shall be deposited in the Crime Victims Fund established under section 1402 of the Victims of Crime Act of 1984 (42 U.S.C. 10601) [1] all amounts from the forfeiture of property under this subsection remaining after the payment of expenses for forfeiture and sale authorized by law.

(5)As used in this subsection, the term “State” means any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, and any territory or possession of the United States.

A Discussion of a Pardon for Assange Is Why Stone’s Threats against Credico Worked

Given events of the last several days, I want to return to an exchange from Roger Stone trial. It came during Aaron Zelinksy’s questioning of Randy Credico. The exchange started with a discussion of a May 21, 2018 email exchange between Stone and Credico.

It started when Credico told Stone “you should have just been honest with the house intel committee… you opened yourself up to perjury charges like an idiot…”

Stone responded by threatening Margaret Kunstler.

You are so full of shit. You got nothing. Keep running your mouth and I’ll file a bar complaint against your friend Margaret.

Without any more context, Credico responded,

Go right ahead she’s no Assange lawyer never has been…

Several months earlier, Stone had threatened to expose that, in September 2016, Credico had forwarded a Stone request to find out of Assange had any emails relating to Libya and R.K. Paul to Kunstler.

But the questioning in the trial suggested this May 2018 threat related to something else. After getting Credico to read through the May 2018 email, Zelisnky immediately pivoted to something else: how Credico put Stone in touch with Kunstler in 2016 to discuss a pardon for Assange.

Q. What did you write to Mr. Stone on May 21st, 2018?

A. “Go right ahead. She’s not Assange’s lawyer.”

Q. I’m sorry. Below that. Let’s start at the first message, “You should have.” All the way at the bottom.

A. Where? Where am I? Here, “You should have.”

“You should have just been honest with the House Intel Committee. You’ve opened yourself up to perjury charges like an idiot. You have different versions. Maybe you need to get into rehab and get that memory straight.”

Q. What did Mr. Stone respond?

A. I don’t see it here.

Q. Just above that, do you see —

A. Oh, yes. “You are so full of S-H-I-T. You got nothing. Keep running your mouth and I’ll file a bar complaint against your friend Margaret.”

Q. And when he says “your friend Margaret,” who is he referring to?

A. Margaret Ratner Kunstler.

Q. Had you put Mr. Stone directly in touch with Ms. Kunstler after the election?

A. Yes, I did.

Q. And why had you done that?

A. Well, sometime after the election, he wanted me to contact Mrs. Kunstler. He called me up and said that he had spoken to Judge Napolitano about getting Julian Assange a pardon and needed to talk to Mrs. Kunstler about it. So I said, Okay. And I sat on it. And I told her–I told her–she didn’t act on it. And then, eventually, she did, and they had a conversation.

Q. And at this time period, in May of 2018, how did you feel about having put Ms. Kunstler directly in touch with Mr. Stone?

A. I was — I was ashamed of myself that I had done that. I should have never done that, you know. I don’t blame him; I blame me for doing that.

Q. For the remainder of 2018, did you continue to be concerned about Mr. Stone?

A. Remainder of 2018?

Q. Yes, sir.

A. Well, yes, I did.

Q. Why were you concerned about Mr. Stone?

A. Well, this is it, right here. This is the crux of it, is bringing Margaret into this, Mrs. Kunstler into it. That was the crux of it.

The suggestion — at least in the context of this particularly threat — is that it was the late 2016 contact, not the September 2016 one, that Credico primarily worried about.

For what it’s worth, this is not the only time Credico denied that Kunstler was Assange’s lawyer (even though he bragged about that colloquially during the election). During cross-examination from Robert Buschel, Credico dodged mightily, even claiming — in a statement that might put complaints about surveillance of Assange at the Ecuadorian embassy in a different light — that Assange has “about 1,000 lawyers.” Though ultimately Credico said that Kunstler represented Sarah Harrison, not Assange.

Q. Margaret Kunstler is one of WikiLeaks’s lawyers?

A. You’ll let — she’s going to have to describe her role as a — what her role is with WikiLeaks. You know, I don’t — he has — Julian Assange has about 1,000 lawyers. You know, Michael Ratner was one of his lawyers. Alan Dershowitz was one of his lawyers.

Q. Thank you.

A. There are a lot of lawyers. All right? But, that — you know, who’s a lawyer —

THE COURT: The question is, do you know —

THE WITNESS: I don’t consider —

THE COURT: — do you have personal —

THE WITNESS: — her to be his lawyer. I consider her to be — to know people, be part of a team.

BY MR. BUSCHEL: Q. That was —

A. Yes.

Q. — giving legal advice to WikiLeaks?

A. I don’t know if they gave to WikiLeaks or somebody else. I think it was somebody else, Sarah Harrison, maybe, but not — I don’t think she was giving legal advice.

That’s consistent with what Kunstler herself testified, though she also said that she “sometimes represented WikiLeaks.”

Q. Who have you represented who is connected to WikiLeaks?

A. I have represented Sarah Harrison. I still represent Sarah Harrison. She was — did work at WikiLeaks, but she no longer does.

Q. How long had you represented her?

A. For about four and a half years.

Q. How did Ms. Harrison become your client?

A. She became my client because the lawyers representing Mr. Assange decided that it would be helpful to have a second lawyer for Ms. Harrison, and I was asked to do that.

Q. Do you know who the founder of WikiLeaks is?

A. Yes.

Q. Who is it?

A. Julian Assange.

Q. Have you, as an attorney, ever represented Mr. Assange?

A. Only to the extent that I sometimes represented WikiLeaks, so it kind of overlaps. But technically, I don’t know.

Q. Have you ever spoken with Mr. Assange?

A. Yes.

Q. How often have you spoken with him?

A. I think about a total of under ten times.

Q. When is the last time that you have spoken with Mr. Assange, if you can remember?

A. Probably the end of 1918.

Q. I’m sorry, do you mean 2018?

A. Yes, I’m sorry, 2018.

So something about what happened in late 2016 served as a point of leverage over Credico.

As I have noted, Stone used Credico’s shared support for a pardon for Assange as leverage through early January 2018, by which point Stone’s buddy’s government had charged Assange as part of a bid to stave off an Ecuadorian-Russian exfiltration attempt.

Right in the middle of Credico’s claims about what WikiLeaks was up to in early October 2016, for example, on October 3, he pushed Stone to get Trump to back asylum for Assange.

Then there are the exchanges on the topic that MoJo reported on a year ago from early January 2018.

In the wake of Stone’s successful effort to get Credico to plead the Fifth, the President’s rat-fucker suggested that if Credico publicly revealed that he couldn’t be Stone’s back channel, it might screw up efforts he claimed he was making to get Assange a pardon.

They resumed the discussion about a pardon several days later, when Stone sent Credico Jerome Corsi’s story on Ecuador’s grant of a diplomatic passport to Assange.

Remarkably, given what has transpired since, Credico informed Stone that the British government was not honoring the diplomatic passport, observed that “Infowars ” — which in this case would be Corsi — “doesn’t know what they’re talking about,” then taunted, ‘Maybe your back Channel knows more than I do.”

The current operative story, of course, is that Corsi was the backchannel, though Credico wouldn’t have known that at the time.

It’s certainly possible that Stone was blowing smoke, raising something he knew Credico cared deeply about, pardoning Assange, to get him to toe the line. It’s likely, too, he was just taking reporting on efforts made in late 2017 to liberate Assange and claiming credit for it.

But at the very least, it shows that Stone used a pardon for Assange — something Credico still spends a lot of time pushing — as leverage to try to get Credico to sustain his cover story. It doesn’t explain why that point of leverage was so effective, though.