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With One Dropped Charge and a Major Screw-up, Government in Remarkably Weak Position against Joshua Schulte

The outcome of the Joshua Schulte trial will be unresolved until closing arguments Monday and deliberation next week.

While parts of the case are circumstantial — because Schulte allegedly used TAILS, there’s no smoking gun showing him sharing stolen files with WikiLeaks — in my opinion the case against him is quite strong, particularly given really damning details from his prison notebooks talking about leaking to WikiLeaks.

But the government, having rested and rebutted the scant defense case, is in remarkably weak position right now.

That’s true, first of all, because the government has spent over two weeks trying to recover from an own goal, prosecutors’ failure to provide Schulte with advance notice that one of his closest buddies at the CIA, Michael, got put on paid leave last August because the CIA no longer trusts the developer because of his closeness to and lack of candor about Schulte. In reality, Michael should have been a key witness for prosecutors, providing proof that Schulte was at his computer and logged in when the reversion and copy of the files likely shared with WikiLeaks was accomplished. But because prosecutors didn’t fully disclose the report in real time, Schulte has flipped that on its head. The trial ended with the guy who wrote that report testifying on rebuttal about how this is still all about Schulte — effectively providing emphasis that the CIA maintains that Schulte is the culprit — but it interrupted the narrative arch of the government case.

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.

And on a potentially significant point, FBI Agent Evan James Schlessinger’s unresponsiveness deprived the government of an opportunity to rebut something the defense will do in its close. The defense entered a stipulation that Schulte had been thrown into the SHU on October 1, 2018, before the Bureau of Prisons found the phone he allegedly used to leak classified information to Shane Harris. The phone continued to be used, probably by Schulte’s roommate Omar Amanat, for whom Schulte was writing an expert report. Somebody–again, probably Amanat–sent a Signal text to Harris on October 2, saying “Hi Shane, the anon email is down since Sunday evening Can you resend your questions to [email protected] thanks.” That text seems to be proof that no one besides Schulte had the password to the other email account, [email protected], but the FBI Agent didn’t take this point head on when he could have.

Two weeks ago, one juror apparently complained about another, suggesting she was already making up her mind. Whatever the complaint, the defense seemed to welcome it, which given the focus on the employment dispute may mean the juror sees that dispute as contested.

Finally, the government dropped one of its charges today, eliminating the Illegal Transmission of Lawfully Possessed National Defense Information (Count Two in the superseding indictment). The government dropped it to avoid confusing the jury about whether Schulte had legal access to the files that he stole. But the discussion about it leads me to think the defense could argue that Schulte had legal access to some of the files he sent to WikiLeaks, thereby getting off on that charge. If the jury convicts, that dropped charge won’t much matter in the grand scheme of things. And even an acquittal would not spring Schulte from jail, because he still faces child porn charges.

Still, I have to applaud the job that Shroff and Schulte’s other attorneys did, because she did a remarkable job with one of the most nightmarish clients. She certainly put a lot out there that might lead jurors to find there is a reasonable doubt about this.

And much of that comes from the government being dickish.

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.

Steve Bellovin Weighs in on the Schulte Mistrial Request

Steve Bellovin, who for the reasons I laid out in this post, has impeccable credibility, has now weighed in on accused Vault 7 leaker Joshua Schulte’s bid for a mistrial. Bellovin is Schulte’s technical expert, and lost a bid last August to get direct forensic access to the workstation and servers at issue in his case.

The current bid for a mistrial is based on two complaints: first, DOJ withheld notice that the CIA had put Schulte’s buddy, Michael, on paid administrative leave last August until the day Michael testified. In addition, Schulte argued they had gotten inadequate forensic discovery to challenge the government’s case.

Ultimately, I think this bid — even with Bellovin’s renewed request — will likely not work. With regards to the forensics demand, this is really a complaint about a decision Judge Paul Crotty made under the Classified Information Procedures Act last summer, which Schulte renewed based off unpersuasive claims about the scope of one of the testimony of one of the government’s expert witness, Patrick Leedom, at trial. Schulte certainly can and no doubt will appeal Crotty’s decision, but the government claimed in its response that the defense didn’t make the more tailored requests for information that were permitted under Crotty’s order.

While the defendant has maintained his stubborn insistence on full forensic images, he has failed to actually make use of the information the Government provided, such as the data on the Standalone, to explain why the discovery produced by the Government was inadequate, or to take the Court up on its repeated invitation to the defense to make more narrow requests. In United States v. Hill, the court did order the Government to produce two mirror images of hard drives containing child pornography to the defense. See 322 F. Supp. 2d 1081, 1091 (C.D. Cal. 2004). Hill, however, does not involve the requested disclosure of an unprecedented and staggering amount of classified information without a showing that the information would be both “relevant and helpful,” as required by CIPA.2

With regards to the late notice about Michael’s paid leave, I think (though am not certain) that this is actually a Jencks issue, and I think (though am not certain) the government did comply with the letter of the law even if withholding the report was dickish and unnecessary.

In his declaration, Bellovin makes a frivolous point about Michael as an excuse to complain about both issues raised in the mistrial motion: that there was a common password to Confluence that Michael could have used to access the backup files from which Schulte allegedly stole the files.

The government makes a number of specific assertions that are misleading or simply false. For example, the government states that certain FBI reports “make clear that Michael never had Atlassian administrator privileges and thus did not have the ability to access or copy the Altabackups (from which the Vault 7 information was stolen).” Gov’t Opp. at 8. As a simple factual matter, this statement is untrue. The possession of “Atlassian administrator privileges” had nothing to do with the ability to access or copy the Altabackup files. Rather, what was needed was log-in access, i.e., a working user name and password, to the Confluence Virtual Machine (or “VM”). Michael certainly had such log-in access. As shown in Leedom Slide 60 (GX 1207-10 and GX 1207-11), which is described as “April 16, 2016 Confluence Backup— password and shadow files,” a user name called “confluence” is listed (Slide 60, GX 1207-11, third line from the bottom). The password for this user name was listed on a web page that was accessible to all OSB members, including Michael, and was used for many other log-ins throughout the organization. See GX 1202-5 (listing one commonly used password as “123ABCdef.”). This password was valid both before and after April 16, 2016. So if Michael had simply typed that password into the Confluence VM on April 20, 2016, along with the user name “confluence,” he would have had access to the Altabackup files from which the Vault 7 information was allegedly taken.

Not only has the defense known this for over a year, I even pointed to the availability of root passwords days after the initial leak in March 2017. So nothing about the late notice on Michael prevented Schulte from arguing this from the start. Moreover, this is something the government already addressed in their response.

 Finally, the defense complains that he should have been able to examine the Confluence virtual machine to determine whether another user had “root” access, such as Michael. Again, the defendant’s argument fails. Initially, the defendant has been on notice since December 10, 2018 that Michael had “root” access to the ESXi Server, given that that fact was referenced in three different 302s produced to the defense at that time. Moreover, the defense has been provided with the available ESXi Server logs in discovery, such that he could have tried to determine whether any other user was logged in using the “root” password (there was not any such other user logged in during the reversion). Furthermore, to extent the defendant is complaining about the Confluence log files specifically, his assertion fails for two reasons. First, the Confluence log files of the activity on the Confluence virtual machine were deleted when the defendant reversed the reversion. Second, the Government produced to the defense the remaining Confluence application logs from April 7, 2016 through April 25, 2016 on June 14, 2019.

I remain sympathetic to Bellovin’s request in principle, but doubt that it will work legally in this instance. Plus, given Sabrina Shroff’s strategy on everything else, it seems they didn’t make the expanded requests earlier to leave open this opportunity to complain now.

What happens on appeal is a different issue though, one that goes to the heart of how CIPA gets applied in a computer hacking case like this. The government has, successfully, argued that the forensics of this case amount to classified information that must first qualify under the CIPA requirement that evidence is both relevant and helpful to the defense. I’m reasonably comfortable that the government has given Schulte enough forensics to test their theory of the case — that is, to test whether Schulte did revert backups on April 20, 2016 and access — and so presumably copy — the backup copy of the files published by WikiLeaks. But there are two questions they didn’t provide enough forensics to answer.

The first pertains to whether anyone else ever used the weak protections of these servers to do anything suspicious.

It’s clear that one prong of whatever defense Schulte will offer (and therefore what Bellovin will do in his testimony) is that CIA’s security was woefully inadequate, both in their physical space (Schulte was able to bring in thumb drives on at least two occasions and, the prosecution’s case suggests, even two hard drives) and digitally. Schulte’s lawyers have already brought out aspects of this on cross. What Bellovin won’t be able to do (aside from pointing to a time someone swapped the cables accessing the Internet, which resulted in a massive effort to clean up any data pollution of the CIA network) is point to any damage from real security incidents, aside from Schulte’s. And while that’s not necessary to rebut the government’s theory of the case, it is a part of arguing that Schulte was concerned about security himself (a claim that multiple witnesses have already credibly debunked) but also that the government was not making sufficient efforts to keep this National Defense Information secure, which is an element of the Espionage Act charges.

A far more interesting question pertains to the evidence against Schulte. Schulte is accused of stealing both the “Confluence” files — which are development notes — and “Stash” — which includes source code and user guides. The entirety of the Confluence files were posted on WikiLeaks on March 7, 2017, whereas a bunch of files from Stash were published, drip by drip, until November 2017.

The government has presented a compelling case that Schulte accessed a March 3, 2016 copy of Confluence and made a copy, based on existing logs of that back-up.

But it has not been able to do the same with Stash, I believe because the log files were deleted after the reversions that Schulte did on April 20, 2016, as elicited in cross-examination of “Dave,” the SysAdmin witness.

Q. That was confusing, you saying “yes,” me saying “okay.” Let’s talk about these missing Stash logs, okay? You said that you never would have in a security system or in a secure system lose logs, correct? A. Correct.

Q. And you were asked about missing logs, correct, missing logs from January 14 to April 21, correct? You remember that?

A. I’m sorry, I apologize, not really. But if it’s in the report, I may have talked about it.

Q. Let’s look at 3515-09. Page four. You were asked about missing logs from January 14 to April 21, 2016. Correct?

A. Is this — which exhibit is this? I apologize. I don’t have the right — do I have the right one?

The government has instead tracked file sizes and a copy date range to suggest that Schulte copied those files on that same date, here in testimony from expert witness Michael Berger.

Q. So what was your conclusion as to when the data, the range for the data?

A. For Stash we identified the range of data being from February 26, 2016, at 9:36 a.m., and March 4, 2016, at 9:45 a.m.

Q. Can you remind us, was there an identical hash for the marble file at March 1st?

A. Yes, there was.

Q. Was there a reason why you didn’t use March 1st here instead of February 26?

A. Yes.

Q. What’s that?

A. The reason is because that the files were identical, we didn’t want to assume that the data had to have come after March 1st. We took a more conservative approach and we slid our date back to being as possibly coming from after February 26 instead.

[snip]

Q. Let’s move on to the next. What does this reflect?

A. This reflects both the Stash and Confluence analysis. Looking at Stash, we can see that the data that was on WikiLeaks corresponds to the data from between February 26, at 9:36 a.m. and March 4, at 9:45 a.m. Looking at the Confluence data points, we’re able to get a smaller window that shows between March 2, 3:58 p.m. and March 3, at 6:47 a.m.

To some degree this doesn’t matter: leaking Confluence by itself would be a violation of the Espionage Act and so sufficient for guilty verdicts. But absent that evidence, the defense will be able to point to other questions about the Stash back-up made during the change in privileges on April 18, 2016, notably that the SysAdmin who changed privileges to the network on April 18, 2016, Dave, kept one copy on his desk and one copy on a hard drive he subsequently misplaced.

Q. You never told the FBI, did you, that you ever moved it to a locked compartment in your desk, correct?

A. Correct.

Q. And you also said that you actually couldn’t even recall if you had wiped the information about Stash off of that hard drive, correct?

A. Correct.

Q. And sitting here today, you have not a clue as to where that hard drive is, correct?

A. No, I don’t.

I don’t rule out Schulte using someone else’s privileges to delete the Stash logs (for example, he had and used the credentials of “Rufus,” a guy who was supposed to work in SysAdmin but moved on after a short period, in his April 20 hack). But the government hasn’t shown that, perhaps because doing so would implicate one of their key witnesses.

Given the cross of Patrick Leedom, I think it quite likely Schulte’s team knows what happened and plans to unveil it to maximal advantage during their defense.

Q. And according to you and the government, shortly afterward, during this reversion period, the theory is that he also accessed the Stash backup file, correct?

A. That would be correct.

Bellovin may have a very good idea of where such evidence would be — I’m particularly intrigued by this request, because the government doesn’t appear to understand why Bellovin asked for it — and may even know, via Schulte (who spent a lot of time on obfuscation) that it would look exculpatory (but that’s based on the government’s response, not any understanding of what this might show).

The defendant argues that he could not test the vulnerability of the “DS00 file system,” without access to the mirror image of the NetApp Server. The defendant does not explain why this forensic artifact would demonstrate any vulnerabilities or how any part of Mr. Leedom’s testimony-which did not reference the file system-implicated this assertion. Therefore, the defendant has not established that a mistrial is required based on this claim.

Then there’s a far more interesting question. As of the date of completion of a WikiLeaks Task Force Report on October 17, 2017, as brought in via the testimony of Sean Roche, the CIA had only moderate confidence that WikiLeaks hadn’t obtained the “gold repository” of finished exploits.

Q. Right. All you know is, in 2017, WikiLeaks published it, correct?

A. That’s correct.

Q. And did you by any chance learn that even after 2017 publication, the CIA still did not know whether or not WikiLeaks had the information from the gold repository?

MR. DENTON: Objection.

THE COURT: Overruled.

A. Could you repeat that, please, ma’am.

Q. Sure. Is it fair to say, sir, that the CIA slash you still don’t know if WikiLeaks has the gold repository?

THE COURT: Rebecca, could you read the question back, please. (The record was read)

A. I believe that represents the last conversation I had on what is called the gold repository.

Q. So I’m correct.

A. Yes.

Q. CIA still doesn’t know?

A. I don’t know that, ma’am. I don’t work there anymore.

Q. You know what the WikiLeaks task force report is?

A. Yes, I do.

Q. Could you pull that up for this gentleman, please. Are you happier with a paper copy or the screen?

A. We can do this.

Q. Could we just go to page 45. Could you just focus on the actual text. You see that line, “However we now assess with moderate confidence”?

A. Yes.

Q. Right. “Moderate confidence that WikiLeaks does not possess the gold folder,” correct?

A. Correct.

This is clearly testimony prosecutor David Denton did not want to come in.

That moderate confidence judgment appears to be based on Leedom’s analysis of what privileges Schulte himself had.

Q. You see there a folder at the bottom, “source code and binary gold copies”?

A. Yes.

Q. What are those?

A. These are the delivered completed tools from the work at EDG.

[snip]

Q: Would the defendant have been able to copy the gold source folders?

A: No, he would not have had access to it with his DevLAN account.

But given Schulte’s own behavior, it’s not clear this analysis can rule out the possibility Schulte took the gold repository.

One of the last events in Schulte’s never-ending escalation of grievances came when he sent an email on June 28, 2016 to Meroe Park, the CIA Executive Director (the #3 ranking official at CIA), Andrew Hallmen, who was then the Director of the Directorate of Digital Innovation (and just got ousted as Deputy Director of National Intelligence in the purge of ODNI last week), and Sean Roche, the Deputy Director of DDI. This came in the wake of Schulte first obtaining privileges to his old project, Brutal Kangaroo, and then booting all the other developers off it. In response to the email, as laid in Roche’s testimony, Roche first responded immediately via email and then had a meeting with Schulte on June 30, 2016. In the meeting with the senior most official Schulte met with, he insinuated he still might get his administrator privileges back.

Q. What did you mean when you say you asked him about permissions?

A. On the system that he was working on, an agency network, his — he had — his permissions had been changed, and when his management explained to him, he went back in and changed his permissions back to get access again, and they had issued a letter of warning to him explaining how serious that was and that that behavior is not acceptable.

Q. Why was that something you discussed with him?

A. Because of how serious the nature of that is. Activity on any system that holds agency data, agency tools, things that we call sources and methods, is — is — it is very, very important that we not have a doubt about what people have access to and maintain the integrity and the protection of that information.

Q. What did you discuss with him about his permission changes?

A. I said to him something to the effect of in the post-Edward Snowden era, you don’t do something like that. That’s going to draw attention that you certainly don’t want. It’s really serious, and you cannot be taking that kind of action.

Q. And how did he respond?

A. He talked a little bit about the project that he had been working on and some new work that he had been given, and he was not pleased with it. But at one point, he stopped and he looked at me and said, You know, I could get back on it if I wanted to, something to — that’s not — I won’t say that’s the exact quote, but it’s pretty darn close.

Q. Now, when he said that, did you understand him to be raising a security concern about the network?

A. No. What I, what I realized — it was a striking comment because, to me, it illustrated that after everything that had happened, all the warnings, all of this formal process, that he was determined to undermine the controls on the network.

Brutal Kangaroo is a USB-based tool to exfiltrate from air-gapped machines. Schulte unsuccessfully attempted to delete the copy of Brutal Kangaroo he had worked on at home on April 28, 2016. But he regained access at CIA in June. He also had worked on serious obfuscation tools.

Given the state of the CIA networks, it’s not impossible that Schulte made good on that threat using tools built by the CIA to make it difficult for the CIA to discover if it happened.

Not long after, in August 2016, according to warrant affidavits the substance of which have not yet been entered into evidence at the trial (they’re likely to come in early this week via an FBI Agent laying out the evidence of the rest of the charges, including obstruction and lies in FBI interviews as well as the MCC charges), Schulte started getting really interested in WikiLeaks and Shadow Brokers and Edward Snowden.

Schulte stuck around months after he allegedly first stole data from the CIA, and he threatened a very senior official that he might regain access that would allow him to do so again.

Having access to logs that might suggest that had or had not happened wouldn’t help Bellovin refute the case against him. But it might hide details of still worse compromise that the CIA would like to keep quiet.

I think Schulte can — and will attempt to, on appeal — argue that the forensics behind a hack are a different kind of classified evidence than intelligence itself (that is, information about what the intelligence community knows), both because it is neutral data about potential compromise and because you can’t just substitute a name like you can for other intelligence. In this case, it goes to the heart of a dispute about whether the CIA was really doing what it needed to do to keep these files safe. The evidence doesn’t suggest that Schulte gave a damn about all that; on the contrary, he clearly exploited it. But it’s evidence he can make a claim to need to rebut the Espionage Act charges against him.

But I also wonder whether the CIA refused to grant Bellovin access in this case (who, as I’ve noted, has been trusted by the government in other programmatic ways, including as the technical advisor to PCLOB) not because of any exculpatory evidence they were hiding, but because of inculpatory evidence.

Update: Yikes. The government submitted a scathing “correction” of Bellovin’s declaration.

The Bellovin Affidavit asserts that the log files from the ESXi server produced by the Government in discovery were “demonstrably damaged” as a “result of prior forensic examination.” However, on or about June 14, 2019, in response to the defense’s request, the Government produced unmodified copies in their original format of both log files and unallocated space from the ESXi server.

The Bellovin Affidavit also asserts that the Government only provided “heavily redacted” versions of the Confluence databases, and not “a full copy of the SQL file.” On or about November 5, 2019, the Government provided defense counsel and the defendant’s expert access to a standalone computer at the CCI Office containing, among other things, (1) complete, unredacted copies of the March 2 and 3, 2016 Confluence databases (i.e., a “full copy of the SQL file”) and all of the Confluence data points used by Michael Berger, one of the Government’s expert witnesses, to conduct his timing analysis; (2) complete, unredacted copies of the Stash repositories for the tools for which source code had been released by WikiLeaks; (3) complete, unredacted copies of all Stash documentation released by WikiLeaks; and (4) all commit logs for all projects released by WikiLeaks, redacting only usernames. The Government understands that Dr. Bellovin examined the standalone computer at the CCI Office in December 2019.

It also suggests that Bellovin’s assertion that the Confluence root password would give Michael access to the backups is wrong, but won’t explain why until Bellovin takes the stand.

Finally, the Government does not address Dr. Bellovin’s incorrect assertions regarding Michael’s access to the Altabackups in this letter. Should Dr. Bellovin testify, the Government will cross-examine him regarding, among others, those substantive matters (using information that has already been produced to the defense in discovery). The Government notes, however, that, to assert incorrectly that Michael had access to the Altabackups, Dr. Bellovin relies on information that has been available to him since well before trial, such as the screenshot taken by Michael on April 20, 2016, which was produced by the Government to the defense in December 2018, and data for the Confluence virtual machine, which was produced by the Government to the defense by July 2019, and not on any information disclosed by the Government regarding Michael’s administrative leave status during trial.

Schulte may be yanking Bellovin’s chain on this claim.

The Government Prepares to Argue that Transmitting Information *To* WikiLeaks Makes the Vault 7 Leak Different

In a long motion in limine yesterday, the government suggested that if Joshua Schulte had just been given a “prestigious desk with a window,” he might not have leaked all of CIA’s hacking tools in retaliation and caused what the government calls “catastrophic” damage to national security.

Schulte grew angrier at what he perceived was his management’s indifference to his claim that Employee-1 had threatened him. Schulte also began to complain about what, according to him, amounted to favoritism toward Employee-1, claiming, for example, that while the investigation was ongoing, Schulte was moved to an “intern desk,” while Employee-1 had been moved to a “prestigious desk with a window.”

[snip]

The Leaks are the largest illegal disclosure of CIA information in the agency’s history and, as noted above, caused catastrophic damage to national security.

Along the way, the motion provides the most detailed description to date about how the government believes Schulte stole the Vault 7 files from CIA. It portrays him as an arrogant racist at the beginning of this process, and describes how he got increasingly belligerent with this colleagues at CIA leading up to his alleged theft of the CIA’s hacking files, leading his supervisors to recognize the threat he might pose, only to bollox up their efforts to restrict his access to CIA’s servers.

The motion, along with several other submitted yesterday, suggests that the government would like to argue that leaking to WikiLeaks heightens the damage that might be expected to the United States.

Along with laying out that it intends to argue that the CIA charges (stealing the files and leaking them to WikiLeaks) are intertwined with the MCC charges (conducting “information war” against the government from a jail cell in the Metropolitan Correction Center; I explained why the government wants to do so here), the government makes the case that cybersecurity expert Paul Rosenzweig should testify as a witness about WikiLeaks.

Rosenzweig will testify about (i) WikiLeaks’s history, technical and organizational structure, goals, and objectives; (ii) in general terms, prior leaks through WikiLeaks, in order to explain WikiLeaks’s typical practices with regard to receiving leaked classified information, its practices or lack thereof regarding the review and redaction of sensitive information contained in classified leaks, and certain well-publicized harms to the United States that have occurred as a result of disclosures by WikiLeaks; and (iii) certain public statements by WikiLeaks regarding the Classified Information at issue in this case.

Rosenzweig’s testimony would come in addition to that of classification experts (probably for both sides) and forensic experts (again, for both sides; Steve Bellovin is Schulte’s expert).

The expert witnesses were allowed to testify as to the background of the organization Wikileaks; how the U.S. Government uses certain markings and designations to identify information that requires special protection in the interests of national security; the meaning of certain computer commands and what they would do; how various computers, servers, and networks work; how data is stored and transferred by various computer programs and commands; and the examination of data that is stored on computers and other electronics.

The only motion in limine Schulte submitted yesterday objected to Rosenzweig’s testimony. Schulte argues that the government’s expert notice neither provides sufficient explanation about Rosenzweig’s intended testimony nor proves he’s an expert on WikiLeaks. More interesting is Schulte’s  argument that Rosenzweig’s testimony would be prejudicial. It insinuates that Rosenzweig’s testimony would serve to substitute for a lack of proof about how Schulte sent the CIA files to WikiLeaks (Schulte is alleged to have used Tor and Tails to transmit the files, which would leave no forensic trace).

In Mr. Schulte’s case, the government has no reliable evidence of how much information was taken from the CIA, how it was taken, or when it was provided to WikiLeaks. The government cannot overcome a lack of relevant evidence by introducing evidence from other cases about how much information was leaked or how information was leaked in unrelated contexts. The practices of WikiLeaks in other contexts and any testimony about alleged damage from other entirely unrelated leaks is completely irrelevant.

Schulte’s claimed lack of evidence regarding transfer notwithstanding, that’s not how the government says they want to use Rosenzweig’s testimony. They say they want to use his testimony to help prove that Schulte intended to injure the US.

The Government is entitled to argue that Schulte intended to harm the United States, by transmitting the stolen information to WikiLeaks, because he knew or had reason to know what WikiLeaks would do with the information. The fact that WikiLeaks’ prior conduct has harmed the United States and has been widely publicized is powerful evidence that Schulte intended or had reason to believe that “injury [to] the United States” was the likely result of his actions—particularly given that the Government will introduce evidence that demonstrates Schulte’s knowledge of earlier WikiLeaks disclosures, including his own statements.

It does so by invoking WikiLeaks’ past leaks and the damage those leaks have done.

Accordingly, proof that it was foreseeable to Schulte that disclosure of classified information to WikiLeaks could cause “injury [to] the United States” is a critical element in this case. Indeed, the Senate Select Committee on Intelligence has explicitly stated “that WikiLeaks and its senior leadership resemble a non-state hostile intelligence service.” S. Rep. 115-151 p. 10. In order to evaluate evidence related to this topic, the jury will need to understand what WikiLeaks is, how it operates, and the fact that WikiLeaks’ previous disclosures have caused injury to the United States. The Government is entitled to argue that Schulte intended to harm the United States, by transmitting the stolen information to WikiLeaks, because he knew or had reason to know what WikiLeaks would do with the information.

Notably, the government motion invokes the Senate’s recognition that WikiLeaks resembles “a non-state hostile intelligence service.” That may well backfire in spectacular fashion. That statement didn’t come until over a year after Schulte is alleged to have stolen the files. And the statement was a follow-up to Mike Pompeo’s similar claim, which was a direct response to Schulte’s leak. If I were Schulte, I’d be preparing a subpoena to call Pompeo to testify about why, after the date when Schulte allegedly stole the CIA files, on July 24, 2016, he was still hailing the purported value of WikiLeaks’ releases.

The thing is, showing that the specific nature of the intended recipient of a leak is an element of the offense has never been required in Espionage leak cases before. Indeed, the government’s proposed jury instructions are based off the instruction in the Jeffrey Sterling case. While the government flirted with naming James Risen an unindicted co-conspirator in that case, they did not make any case that leaking to Risen posed unique harm.

Moreover, even before getting into Schulte’s statements about WikiLeaks (most of which have not yet been made public, as far as I’m aware), by arguing the CIA and MCC charges together, the government will have significant evidence not just about Schulte’s understanding of WikiLeaks, but his belief and that they would lie to harm the US. The government also has evidence that Schulte knew that WikiLeaks’ pretense to minimizing harm with the Vault 7 files was false, and that instead WikiLeaks did selective harm in its releases, though it doesn’t want to introduce that evidence at trial.

In other words, this seems unnecessary, superfluous to what the government has done in past Espionage cases, and a dangerous precedent (particularly given the way the government suggested that leaking to The Intercept was especially suspect in the Terry Albury and Reality Winner cases).

That’s effectively what Schulte argues: that the government is trying to argue that leaking to WikiLeaks is particularly harmful, and that if such testimony goes in, it would be forced to call its own witnesses to testify about how past WikiLeaks releases have shown government malfeasance.

This testimony could also suggest that the mere fact that information was released by WikiLeaks necessarily means that it was intended to—and did—cause harm to the United States. These are not valid evidentiary objectives. Instead, this type of testimony would create confusion and force a trial within a trial on the morality of WikiLeaks and the extent of damage caused by prior leaks. If the government is allowed to introduce this evidence, the defense will necessarily have to respond with testimony about how WikiLeaks is a non-profit news organization, that it has previously released information from government whistle-blowers that was vital to the public understanding of government malfeasance, and that any assertion of damages in the press is not reliable evidence.

The government, in a show of reasonableness, anticipates Schulte’s argument about the prejudice this will cause by stating that it will limit its discussion of prior WikiLeaks releases to a select few.

The Government recognizes the need to avoid undue prejudice, and will therefore limit Mr. Rosenzweig’s testimony to prior WikiLeaks leaks that have a direct relationship with particular aspects of the conduct relevant to this case, for example by linking specific harms caused by WikiLeaks in the past to Schulte’s own statements of his intent to cause similar harms to the United States or conduct. Those leaks include (i) the 2010 disclosure of documents provided to WikiLeaks illegally by Chelsea Manning; (ii) the 2010 disclosure of U.S. diplomatic cables; (iii) the 2012 disclosure of files stolen from the intelligence firm Stratfor; and (iv) the 2016 disclosure of emails stolen from a server operated by the Democratic National Committee.

The selected cases are notable, as all of them (with Manning’s leaks seemingly listed twice) involve cases the government either certainly (with the EDVA grand jury seeking Manning and Jeremy Hammond’s testimony) or likely (with ongoing investigations into Roger Stone) currently has ongoing investigations into.

As a reminder: absent an unforeseen delay, this trial will start January 13, 2020 and presumably finish in the weeks leading up to the beginning of Julian Assange’s formal extradition process on February 25. The government has maintained it can add charges up until that point, and US prosecutors told British courts it won’t provide the evidence against Assange until two months before the hearing (so around Christmas).

Schulte’s trial, then, appears to be the opening act for that extradition, an opening act that will undermine the claims WikiLeaks supporters have been making about the journalistic integrity of the organization in an attempt to block Assange’s extradition. Rosenzweig’s testimony seems designed, in part, to heighten that effect.

Which may be why this instruction appears among the government’s proposed instructions.

Some of the people who may have been involved in the events leading to this trial are not on trial. This does not matter. There is no requirement that everyone involved in a crime be charged and prosecuted, or tried together, in the same proceeding.

You may not draw any inference, favorable or unfavorable, towards the Government or the defendant from the fact that certain persons, other than the defendant, were not named as defendants in the Indictment. Do not speculate as to the reasons why other persons were not named. Those matters are wholly outside your concern and have no bearing on your function as jurors.

Whether a person should be named as a co-conspirator, or indicted as a defendant in this case or another separate case, is a matter within the sole discretion of the United States Attorney and the Grand Jury.

As noted, a number of different WikiLeaks supporters have admitted to me that they’re grateful Assange has not (yet) been charged in conjunction with the Vault 7 case, because even before you get to his attempt to extort a pardon with the files, there’s little journalistic justification for what it did, and even more reason to criticize WikiLeaks’ actions as the case against Schulte proceeded.

Yet the obscure proceedings before the EDVA grand jury suggests the government may be pursuing a conspiracy case that starts in 2010 and continues through the Vault 7 releases, with the same variety of Espionage and CFAA charges continuing through that period.

By arguing the CIA and MCC charges in tandem, the government can pretty compellingly make the case that WikiLeaks’ activities went well beyond journalism in this case. But it seems to want to use Rosenzweig’s testimony to make the case more broadly.