Daniel Hale, Citizenfive

Jeremy Scahill: So if I have a confidential source who’s giving me information as a whistleblower and he works within the US government and he’s concerned about what he perceives as violations of the Constitution, and he gets in touch with me…

Bill Binney: From there on they would nail him and start watching everything he did, and if he started passing data, I’m sure they’d take him off the street. I mean, the way you have to do it is like Deep Throat did in the Nixon years — meet in the basement of a parking garage. Physically.

— Citizenfour

Last week, drone whistleblower Daniel Hale pled guilty. In pleading guilty, Hale admitted that he was the source behind The Intercept‘s Drone Papers package of stories that provided new details about the drone program as operated under President Obama. He also may have made clear that Laura Poitras’ film, Citizenfour, isn’t so much about Snowden, as it has always been described, but about Hale.

Hale pled guilty to one of five counts against him, Count 2 of the superseding indictment, 18 USC §793(e), for retaining and transmitting National Defense Information to Jeremy Scahill (Scahill was referred to as “the Reporter” in charging documents).

Before Hale pled guilty, the government released a list of exhibits it planned to use at trial. The exhibit list not only shows the government would have introduced a picture of Hale meeting publicly with Scahill at an event for the latter’s Dirty Wars, texts Hale sent to his friend Megan describing meeting Scahill, emails between Scahill and Hale sent months before they moved their communication to Jabber (those all were mentioned in the Indictment), but it included texts Hale and Scahill exchanged between January 24 and March 7, 2014, continuing after Hale had started the process of printing off documents at the contractor where he worked which he would ultimately send to Scahill. (The exhibit list doesn’t describe via what means they sent these texts and there are no correlating Verizon records prepared as exhibits covering that period, meaning they may not be telephony texts but instead could be the Jabber chats mentioned in the indictment, or maybe Signal texts). The government also would have introduced up to seven types of proof that Hale had printed each of the documents he was charged with, and badge records showing he was in his office and logged onto the relevant work computer each time those documents were printed out.

The government would also have submitted, for each of the agencies where Hale ever held clearance — NSA, DOD, a JSOC Task Force, NGA, and Air Force — a certification that the agency had no evidence that Hale had made any whistleblower complaints.

Unless those 2014 texts were from Jabber, there’s nothing in the exhibit list that obviously shows that the government was intending to introduce proof of three Jabber chats the government reconstructed that Hale had with Scahill, though those were mentioned in the indictment.

At the change of plea hearing last Thursday, the government refused to dismiss the four other counts against Hale, which Hale’s attorney, Todd Richman, said raised concerns that the government might revert to those charges if Judge Liam O’Grady didn’t sentence Hale harshly enough. O’Grady (who seemed as concerned about the possibility Hale might harm himself between now and the July 13 sentencing as anything else) as much as said that, if the government tried that, it would still amount to the same sentence, signaling he would have sentenced Hale with a concurrent sentence for all counts, had he gone to trial.

The plea agreement has not been released yet, but pleading guilty days before the trial was to start will give Hale a slight reduction in his sentence, but he’s still facing a draconian sentence for revealing details about the drone program.

That said, given what EDVA prosecutors — including Hale prosecutor Gordon Kromberg, who is the lead prosecutor on the Assange case — did to Chelsea Manning and Jeremy Hammond, I worry they might try something similar with Hale. From the start, the government has been interested in Hale for how he fit in the series of document leaks that started with Chelsea Manning and continued through Vault 7. That came up in mostly sealed filings submitted early in Hale’s prosecution.

[T]he 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.

And the government intended to submit exchanges between Hale and Scahill about Snowden and Chelsea Manning at trial.

There are two things that appear in the Statement of Facts Hale pled guilty to that don’t appear in the indictment.

First, the biographical language that explains how Hale enlisted in the Air Force, quit in May 2013, and only then got a job at a defense contractor where he had access to the files he ultimately leaked, is slightly different and generally abbreviated (leaving out, for example, that Hale was assigned to the NSA from 2011 to 2013, overlapping with Snowden). However, the Statement of Facts adds the detail that, “In July 2009, while the United States was actively engaged in two wars,” Hale first enlisted. It’s as if to suggest that Hale knew he would end up killing people when he signed up to join the Air Force.

Of more interest, the Statement of Facts includes an admission that Hale authored an anonymous document that prosecutors had planned to use at trial.

Mr. Hale authored an essay, attributed to “Anonymous,” that became a chapter in a book published by the Reporter’s online news outlet (defined as Book 2 in the Superseding Indictment).

It’s a chapter in The Assassination Complex, a free-standing publication based on the documents Hale released.

The government first requested to use this document at trial in a sealed motion, accompanied by 6 exhibits, submitted on September 16, 2019 as part of the first wave of motions. But the judge didn’t resolve that request until November 17, 2020, a month after a hearing on that and other requests. In his order, O’Grady permitted the government to enter the chapter into evidence, but reminded them the jury gets to decide whether they believe the evidence is authentic or not.

The Court hereby ORDERS that the Government’s Motion to Admit an Anonymous Writing as an Admission of the Defendant (dkt. 54) is GRANTED, as the Court stated in the October 13 hearing; the government will be permitted to present the book chapter attributed to an anonymous author. Federal Rule of Evidence 901(a) requires the proponent of a piece of evidence to authenticate it before it can be admitted. United States v. Smith, 918 F.2d 1501,1510 (11th Cir. 1990). The Court’s role in determining whether evidence is authentic is limited to that of a gatekeeper in assessing whether the proponent has offered a satisfactory foundation.” United States v. Vidacak, 553, F.3rd 344, 349 (4th Cir. 2009). The court finds that the government has laid satisfactory foundation for the purpose of admitting the evidence at trial. It now falls to the jury to determine whether the evidence is indeed what the government says it is: an anonymous writing that was written by Defendant admitting to the conduct of which he is accused.

At trial, it seems, the government would have treated this chapter as a confession. There are three exhibits in their trial exhibit list — stills and video of an Obama event in June 2008 — that suggest they planned to authenticate it, in part, by pointing to the anonymous author’s admission that he shook then-Candidate Obama’s hand in 2008 and showing pictures of the exchange.

In 2008 I shook hands with Senator Obama when he came through my town on his way to the White House. After his inauguration he said, “Transparency and the rule of law will be the touchstones of this presidency.” I firmly believe those principles are crucial to an open society, which is why I was compelled to reveal this information. If this administration lacks the courage to uphold its promises to the people, then I and others like me will do so for them.

So after having made their case that this was Hale, they then would have asked the jury to consider it a confession that he was the leaker described throughout The Intercept‘s reporting on the drones.

But with Hale’s guilty plea, there’s no evidentiary value to this chapter anymore. (That is, unless the government wants to argue that the specific Tide Personal Numbers Hale listed in the chapter — TPN 1063599 for Osama bin Laden and TPN 26350617 for Abdul Rahman al-Awlaki — amount to new disclosures not included in the charged releases.) Hale has already admitted, under oath, to being the anonymous source referred to by journalists throughout the rest of the book.

What the admission that he was part of the book publication does do, however, is tie Hale far more closely with Snowden, who wrote a hubristic introduction for the book. In it, he tied his leaks with Manning’s and in turn his with Hale’s.

[U]nlike Dan Ellsberg, I didn’t have to wait forty years to witness other citizens breaking that silence with documents. Ellsberg gave the Pentagon Papers to the New York Times and other newspapers in 1971; Chelsea Manning provided the Iraq and Afghan War logs and the Cablegate materials to WikiLeaks in 2010. I came forward in 2013. Now here we are in 2015, and another person of courage and conscience has made available the set of extraordinary documents that are published here.

I noted, when Snowden called for Trump to pardon Hale along with The Intercept‘s other sources, Terry Albury and Reality Winner, he effectively put a target on Hale’s back, because it suggested those leaks all tied to him. All the more so, I now realize, given the way this Snowden essay suggests Hale’s leaks have some tie to him.

Snowden ended the introduction by suggesting there were far more people like Manning, himself, and Hale waiting to drop huge amounts of documents than there were the “insiders at the highest levels of government” guarding the monopoly on violence.

The individuals who make these disclosures feel so strongly about what they have seen that they’re willing to risk their lives and their freedom. They know that we, the people, are ultimately the strongest and most reliable check on the power of government. The insiders at the highest levels of government have extraordinary capability, extraordinary resources, tremendous access to influence, and a monopoly on violence, but in the final calculus there is but one figure that matters: the individual citizen.

And there are more of us than there are of them.

Yet the book suggests the links between Manning, Snowden, and Hale are merely inspirational.

Not so Citizenfour.

There’s a scene of the movie, quoted above, where Bill Binney warns Jeremy Scahill that if he wanted to publish documents from a source we now know to be Hale, with whom (trial exhibits would have shown) Scahill had already met in public, emailed, and texted during the period Hale was leaking, then (Binney instructed Scahill) he needed to do so by meeting in person, secretly.

It was probably too late for Hale by the time Binney gave Scahill this warning.

Then there’s the film’s widely discussed closing scene, showing a meeting where Glenn Greenwald flew to Moscow to update Snowden about “the new source” that has come to The Intercept. Apparently believing he’s using rockstar operational security, he’s writing down — on camera!!! — how The Intercept is communicating with this new source, bragging (still writing on camera about a source that had first reached out to Scahill via email and in person) that “they’re very careful.” One of the things he seems to write down is “Jabber,” chats from which the government obtained and might have released at Hale’s trial. In the scene, Greenwald continues to sketch out the contents of several of the documents — including one of the first ones to be published — that Hale just admitted he shared with The Intercept.

But in retrospect, the most important part of this sequence is where — against video footage showing Snowden and Lindsey in Moscow together — Poitras reads an email, dated April 2013 (a month before Hale quit the Air Force and NSA within days after Snowden fled to Hong Kong). She offers no explanation, not even naming the recipient of the email.

Let’s disassociate our metadata one last time, so we don’t have a clear record of your true name and our final communication chain. This is obviously not to say you can’t claim your involvement. But as every trick in the book is likely to be used in looking into this, I believe it’s better that that particular disclosure come on your own terms. Thank you again for all you’ve done. So sorry again for the multiple delays but we’ve been in unchartered territory with no model to benefit from. If all ends well, perhaps the demonstration that our methods worked will embolden more to come forward.

That email has received far less attention than Greenwald’s confident descriptions to Snowden of how someone inspired by his actions has come forward. But I remember when first viewing Citizenfour (which I watched long after it first came out), I had the feeling that Snowden was only feigning surprise when Greenwald told him of this new source and described the signals intercepts for the drone program going through Ramstein Air Base in Germany.

That is, that unexplained email may suggest that Hale met Snowden while both were at the NSA, and that days before the first Snowden releases, Hale quit, reached out to a close associate of Greenwald, then (months later) found a new job in the intelligence community where he could get files that would expose certain details of the drone program. The government had planned to introduce other movies at Hale’s trial. But Citizenfour was not on the exhibit list.

Update: PseudonymousInDenver has persuaded me this is a reference to Poitras, not to someone else.

That’s a detail I hadn’t realized before: Hale reached out to Scahill, then quit the Air Force and NSA, and only then got a new job that gave him access to files he ended up leaking.

I have no idea what the government intends to do, now that it has Hale admitting that he participated in this book in which Snowden promised a legion of similar leakers. I have always been concerned the government would go after Scahill. But now I think this is about Snowden.

Since last year, the government has explicitly argued that WikiLeaks considered its help to Snowden as part of a recruiting effort for further leakers (a detail of Julian Assange’s most recent superseding indictment that literally every one of Snowden’s closest associates has studiously avoided mentioning). They’re not making that up. It’s something Snowden admitted in his own book, and Bart Gellman described that Snowden was thinking the same as he leaked to Gellman. As noted, the government appears to have made a similar argument in sealed filings with Hale.

But one thing they seem to have demanded before they let Hale plead out before trial was a further admission, one that makes the Snowden tie more explicit.

Update: On Twitter, Hale corrected me that that TPN is for Awlaki’s son, not for Awlaki himself.

On January 12, UK Granted Exception to Rule of Specialty in Minh Quang Pham Case

Back in September, I argued that the case of Minh Quang Pham should be considered a precedent of sorts for Julian Assange. Pham is a Vietnamese refugee to the UK who was stripped of his UK citizenship and extradited to the US in 2015 on charges relating to AQAP. When he was originally extradited, most of what he was charged with was serving as a graphic designer for AQAP’s Inspire magazine, which was charged as material support for terrorism. He was also charged with terrorist training while wielding a firearm. That is, like the charges Assange faces, Pham was extradited for publication activities that the US deemed to threaten US national security.

Pham is held in Florence SuperMax, one of the prisons that Assange might be detained in if he were extradited and convicted.

After Pham tried to get his sentence lowered under the US v Davis precedent on his firearm charge, the government moved to vacate his plea deal and supersede his indictment to include a terrorist attack on Heathrow they claim Pham agreed to carry out with Anwar Awlaki. The charge relies on the testimony of Ahmed Warsame, whose cooperation with the US has allowed him to avoid prosecution for his very significant leadership role in al-Shabab. But to supersede Pham’s indictment, the government first had to ask the UK for an exception to the Rule of Specialty.

It seemed likely the UK would grant it — such things normally happen between the US and UK, and this was a case where the UK was happy to pawn off Pham to the US for its far more draconian prosecution. But the tensions around Anne Sacoolas and the high profile of the Assange extradition made the question more interesting.

It turns out, at least on terrorism cases, the UK and US remain happy to subject former UK citizens to the harshest aspects of US’ legal system.

According to a status report filed today, the UK granted the exception on January 12, and Pham will soon be re-indicted in preparation for a trial at which — having little to lose given his current sentence at Florence — he will vigorously contest both what he said in interviews he gave while in transit and the evidence provided by Warsame.

The Most Counterproductive Letter in Defense of Julian Assange

How seriously do you think the Joe Biden Administration is going to take a letter that,

  • Implicitly treats helping Edward Snowden flee Hong Kong to Russia (one of the overt acts Julian Assange is currently charged with) as a journalistic activity
  • Was written by an organization on the board of which Edward Snowden serves, without any disclosure of the relationship (or that another Freedom of the Press Foundation board member, Laura Poitras, decided in real time that such activities weren’t journalism, thereby eliminating the New York Times problem the letter claims still exists)
  • Treats the Julian Assange extradition request as a Trump Administration decision at a time when Biden is trying to emphasize that DOJ represents the country, not one president
  • Ties the Assange prosecution to Trump’s other politicization of DOJ when the evidence shows the opposite happened, that Trump abused power to attempt to protect Assange (in her ruling, Judge Baraitser also noted that Trump in no way treated WikiLeaks like he treated journalistic outlets)
  • Relies on dated 2013 reporting about the sum total of WikiLeaks’ actions targeting the US, ignoring much of the public record since, not to mention the grave damage incurred by a release — Vault 7 — that had almost no news value, which was allegedly leaked while Acting Deputy Attorney General John Carlin (who will probably field this letter) was in charge of DOJ’s National Security Division
  • Exhibits zero familiarity with the 54-page report — citing testimony from Biden Administration members Avril Haines, Lisa Monaco, Susan Rice, Tony Blinken, Samantha Power, Denis McDonough, and John Kerry — that concluded one reason the Obama Administration didn’t respond in more timely fashion to Russia’s attack on the 2016 election was because of a delayed understanding of how WikiLeaks had been “coopted” by Russia:

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

[snip]

The executive branch struggled to develop a complete understanding of WikiLeaks. Some officials viewed WikiLeaks as a legitimate news outlet, while others viewed WikiLeaks as a hostile organization acting intentionally and deliberately to undermine U.S. or allies’ interests.

The letter claims to want to protect a “robust” press. But this letter fails to meet journalistic standards of transparency or accuracy.

Nevertheless, the following organizations signed onto such a (in my opinion) counterproductive letter:

  • Access Now
  • American Civil Liberties Union
  • Amnesty International – USA
  • Center for Constitutional Rights
  • Committee to Protect Journalists
  • Defending Rights and Dissent
  • Demand Progress
  • Electronic Frontier Foundation
  • Fight for the Future
  • First Amendment Coalition Free Press
  • Freedom of the Press Foundation
  • Human Rights Watch
  • Index on Censorship
  • Knight First Amendment Institute at Columbia University
  • National Coalition Against Censorship
  • Open The Government
  • Partnership for Civil Justice Fund
  • PEN America
  • Project on Government Oversight
  • Reporters Without Borders
  • Roots Action
  • The Press Freedom Defense Fund of First Look Institute
  • Whistleblower & Source ProtectionProgram (WHISPeR) at ExposeFacts

I have a great deal of respect for these organizations, have worked for several of them, and have received funding in the past from Freedom of the Press Foundation. I agree with the sentiment of the letter that some of the current charges against Assange pose a risk to journalism. I believe these organizations could have written an effective letter to Acting Attorney General Monty Wilkinson (or, more effectively and with better targeting, to Carlin).

Instead, they signed onto a letter that violates several of the principles of journalism they claim to want to defend.

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

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

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

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

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

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

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

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

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

B. The SAMs are unconstitutional.

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

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

C. Limitation on the “dissemination” of communications.

a. Restrictions on third-party communications.

D. Overall chilling effect on defense counsel.

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

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

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

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

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

The Baraitser Decision’s Impact (or Not) on Journalism

Before and since Joe Biden was inaugurated, Julian Assange supporters are unsurprisingly pushing for Biden to direct DOJ to adopt a different stance in the prosecution of Assange.

I suspect that’s unlikely. Indeed, while I’m not sure how any of this would work under the extradition law or be tempered by the UK’s rejection of extradition based on humanitarian grounds and ongoing appeal of that decision, I think it more likely that DOJ does one of the following:

  • Supersedes the existing indictment to incorporate (at least) Vault 7
  • Adds conspiring with Russia, potentially showing a timeline of doing so that goes back up to a decade
  • Charges non-national security crimes (the quid pro quo for the pardon and possibly extortion) as a way to get around the finding that he’d be put in a SuperMax
  • Indicts an omnibus conspiracy naming others, or
  • Asks the UK to prosecute Assange under the equivalent crimes (including, possibly, for Vault 7)

I think that not because I believe Joe Biden will be shitty or good on issues pertaining to journalism or because I have it in for Assange. I think that because unlike virtually everyone weighing in on this topic (Alexa O’Brien is the sole exception I know of) I’ve actually been covering what has happened to WikiLeaks cases in the US and the public record shows that the US government as a whole and DOJ as an institution — not Presidents Obama, Trump, or Biden — have come to the conclusion that WikiLeaks is not a journalistic institution.

To that end, I want to return to Vanessa Baraitser’s ruling in Assange’s case, because most people weighing in about how and why Biden might change course are misrepresenting what she said about two issues.

The first issue pertains to the impact of her ruling on journalism. Yes, Baraitser ruled for the US. But all she had to do on this issue was weigh whether the crimes alleged in the indictment have a parallel in UK law (which in this case would be the far more onerous Official Secrets Act) and are permitted under European Convention on Human Rights law’s Article 10.

With regards to the former, Baraitser could have just noted that the Official Secrets Act clearly criminalizes the publication of classified information like that covered by the indictment. That was what most people I know honestly expected (even if they didn’t say as much publicly).

She didn’t. With regards most charges, her ruling relied heavily on the intersecting conspiracies alleged in the superseding indictment that most Assange boosters have not read, one to violate the Espionage Act and the other to violate CFAA (hacking). For the bulk of the charges (the ones covered by Theory One in this post), Baraitser described what Assange does to include a hacking element.

Mr. Assange is accused of aiding and abetting Ms. Manning in her theft and disclosure of the information, as an accessory to her offending. The defence submits that no offence is committed by Mr. Assange unless he has engaged in a criminal activity separate from Ms. Manning’s act of whistle-blowing. However, in my judgment, Mr. Assange’s alleged activities went beyond the mere encouragement of a whistle-blower.

Tseehe [sic] design and purpose of WikiLeaks, it is alleged, was to obtain protected information and publish it. Mr. Assange was willing to achieve this, it is alleged, through computer hacking, both by engaging in hacking activities himself but also by recruiting and soliciting others to do the same. This is amply demonstrated in the request in his work with various hacking groups. His work with Ms. Manning, it is alleged, was part of this plan.

[snip]

At the same time as these communications, it is alleged, he was encouraging others to hack into computers to obtain information. This activity does not form part of the “Manning” allegations but it took place at exactly the same time and supports the case that Mr. Assange was engaged in a wider scheme, to work with computer hackers and whistle blowers to obtain information for Wikileaks. Ms. Manning was aware of his work with these hacking groups as Mr. Assange messaged her several times about it. For example, it is alleged that, on 5 March 2010 Mr. Assange told Ms. Manning that he had received stolen banking documents from a source (Teenager); on 10 March 2010, Mr. Assange told Ms. Manning that he had given an “intel source” a “list of things we wanted and the source had provided four months of recordings of all phones in the Parliament of the government of NATO country-1; and, on 17 March 2010, Mr. Assange told Ms. Manning that he used the unauthorised access given to him by a source, to access a government website of NATO country-1 used to track police vehicles. His agreement with Ms. Manning, to decipher the alphanumeric code she gave him, took place on 8 March 2010, in the midst of his efforts to obtain, and to recruit others to obtain, information through computer hacking

[snip]

In relation to Ms. Manning, it is alleged that Mr. Assange was engaged in these same activities. During their contact over many months, he encouraged her to obtain information when she had told him she had no more to give him, he identified for her particular information he would like to have from the government database for her to provide to him, and, in the most obvious example of his using his computer hacking skills to further his objective, he tried to decipher an alphanumeric code she sent to him. If the allegations are proved, then his agreement with Ms. Manning and his agreements with these groups of computer hackers took him outside any role of investigative journalism. He was acting to further the overall objective of WikiLeaks to obtain protected information, by hacking if necessary. Notwithstanding the vital role played by the press in a democratic society, journalists have the same duty as everyone else to obey the ordinary criminal law. In this case Mr. Assange’s alleged acts were unlawful and he does not become immune from criminal liability merely because he claims he was acting as a journalist.

Thus, even though she didn’t have to do so to rule for the US on this point, she nevertheless distinguished what Assange does from what journalists do because, as alleged in the indictment and in actual fact, hacking is such a central part of what Assange does. It’s not clear she would have gotten to this ruling without the language included in the superseding indictment (a superseding indictment which, again, virtually all Assange boosters either willfully ignore or are genuinely ignorant exists). But as it happened, she relied heavily on the language in the superseding indictment and very clearly distinguished what Assange does from what journalists do.

Of particular interest (because this is the language in the indictment that I believe sets up adding Vault 7 to the indictment), Baraitser accepted the US government’s description of Assange recruiting people to hack.

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

Again, it’s not just that Assange solicited people to share classified information with him (which journalists do), but that he also explicitly encourages people to hack to get it.

And while the way Baraitser distinguished Assange from others in her ruling on the three most dangerous charges, publishing informants’ identities (Theory Three in this post), is less compelling, she nevertheless went beyond a ruling on the act itself. She distinguished Assange’s publication online (in bulk, though that distinction is less clear and not one of great comfort to someone who also publishes online) from traditional journalism.

More importantly, Baraitser talked about the balancing involved in Article 10 (particularly with regards to the right of private life).

The defence submits that, by disclosing Ms. Manning’s materials, Mr. Assange was acting within the parameters of responsible journalism. The difficulty with this argument is that it vests in Mr. Assange the right to make the decision to sacrifice the safety of these few individuals, knowing nothing of their circumstances or the dangers they faced, in the name of free speech. In the modern digital age, vast amounts of information can be indiscriminately disclosed to a global audience, almost instantly, by anyone with access to a computer and an internet connection. Unlike the traditional press, those who choose to use the internet to disclose sensitive information in this way are not bound by a professional code or ethical journalistic duty or practice. Those who post information on the internet have no obligation to act responsibly or to exercise judgment in their decisions. In the modern era, where “dumps” of vast amounts of data onto the internet can be carried out by almost anyone, it is difficult to see how a concept of “responsible journalism” can sensibly be applied.

[comparison with other outlets and their condemnation of him]

The law already constrains in various ways what may be published in order to avoid damage to private interests. For example, the High Court recently awarded damages against the Associated Newspaper Ltd, after the MailOnline website published an article , reporting on the arrest of the claimant in the aftermath of the Manchester Arena bombing, and disclosing details capable of leading to his identification (Alaedeen Sicri v Associated Newspapers Limited, [2020] EWHC 3541 (QB)). Free speech does not comprise a ‘trump card’ even where matters of serious public concern are disclosed (see Stoll above), and it does not provide an unfettered right for some, like Mr. Assange, to decide the fate of others, on the basis of their partially informed assessment of the risks.

This was not necessarily a national security stance. Rather, in language that would apply equally to Assange’s indiscriminate publication of the DNC and Podesta emails (as well as the publication of the Turkish and Saudi emails), Baraitser argued that Assange’s publication in bulk was not protected because it did not and could not properly weigh the risk to others.

This part of the ruling, in particular, would not translate into US law. There is no such privacy balance in the US outside of much weaker defamation laws. And so this part of the ruling does not offer much comfort with regards the existing charges as precedent in the US context.

But that’s an issue Assange supporters have with US law, not with the Baraitser ruling.

With regards to the impact on journalism, Baraitser ruled that the charges before her (which contrary to a lot of WikiLeaks propaganda, doesn’t include the Collateral Murder video) were distinguishable from what journalists do.

As such, unless press organizations want to claim hacking is within the job description of journalists, this ruling should not chill journalism.

There’s certainly real concern about the charges as precedent in the US, particularly the publishing charges. But that’s different than the Baraitser ruling itself.

Update: Corrected ECHR thanks to Chetnolian.

UK Judge Refuses to Extradite Julian Assange on Humanitarian Grounds [Update with Bail Denial]

Update: On Wednesday, Baraitser denied Assange bail while the US appeals based largely on the fact that he jumped bail the last time he was trying to avoid extradition. Assange’s team tried to make the case that COVID should get him released but provided Baraitser different numbers than the official ones.

UK judge Vanessa Baraitser has just released her ruling on Julian Assange’s extradition. While she found for the prosecution on all substantive legal issues, she found that Julian Assange was suicidal and extradition to what would almost certainly be confinement under Special Administrative Measures in the US would likely lead to his suicide.

Mr. Assange faces the bleak prospect of severely restrictive detention conditions designed to remove physical contact and reduce social interaction and contact with the outside world to a bare minimum. He faces these prospects as someone with a diagnosis of clinical depression and persistent thoughts of suicide. Whilst I found Professor Fazel’s approach to risk to be helpful, I accepted Professor Kopelman’s view that statistics and epidemiology take you only so far. As he puts it, whether the evaluation of risk is “high” or “very high” the risk is one which is “very real”.

Seventhly, notwithstanding the strong and constant support he receives from his family and friends, Mr. Assange has remained either severely or moderately clinically depressed throughout his detention at HMP Belmarsh. He has remained on an ACCT, the care planning process for prisoners identified as being at risk of suicide or self-harm, since his arrival at HMP Belmarsh, aside from a brief period at the end of December 2019. His prison medical notes record numerous occasions on which he had told the In-Reach prison psychologist, Dr. Corson, and other medical staff (for example a prison nurse) that he had suicidal or self-harming thoughts, felt despairing or hopeless and had made plans to end his life. He has made frequent requests for access to the prison’s Samaritans phone. On 5 May 2019, half of a razor blade was found in his cell, inside a cupboard and concealed under some underwear. Shortly after this, on 19 May 2019, an ACCT review stated that Mr. Assange was finding it hard to control the thoughts of self-harm and suicide. In the healthcare wing, concerns about his health and his suicidality led to a plan for him to be monitored with observations nocturnal checks. Mr. Assange is prescribed anti-depressants (citalopram and mirtazapine) and a low dose of quetiapine (used as an anti-depressant, mood stabiliser or anti-psychotic, with a mildly sedating effect in low doses). I accept that there are entries in the notes which indicate a much better mood and lighter spirits at times, however the overall impression is of a depressed and sometimes despairing man, who is genuinely fearful about his future.

For all of these reasons I find that Mr. Assange’s risk of committing suicide, if an extradition order were to be made, to be substantial.

[snip]

I am satisfied that, if he is subjected to the extreme conditions of SAMs, Mr. Assange’s mental health will deteriorate to the point where he will commit suicide with the “single minded determination” described by Dr. Deeley.

This outcome was always the most likely way Assange would be able to avoid extradition, and in many ways it is the most just. It means that the good things that Assange has done — in helping expose American human rights abuses — were also the reason he avoided extradition.

Unless I missed it, she has yet to rule whether she’ll let Assange out on bail while the US appeals.

Update: Assange’s lawyers will submit a bail application for him on Wednesday, and the US government has immediately asked for an appeal.

Russian Flight: The Timing of the Assange Charges

The Department of Justice charged Julian Assange when they did to stave off an attempt to help Assange flee to Russia.

That’s one important takeaway from the date of the complaint, December 21, 2017. Days earlier, Ecuador had submitted diplomatic credentials for Assange to the British government, with the intent that he would move (or, according to the less reliable Guardian, be secretly exfiltrated) to Russia under protection of diplomatic status.

Ecuador last Dec. 19 approved a “special designation in favor of Mr. Julian Assange so that he can carry out functions at the Ecuadorean Embassy in Russia,” according to the letter written to opposition legislator Paola Vintimilla.

“Special designation” refers to the Ecuadorean president’s right to name political allies to a fixed number of diplomatic posts even if they are not career diplomats.

But Britain’s Foreign Office in a Dec. 21 note said it did not accept Assange as a diplomat and that it did not “consider that Mr. Assange enjoys any type of privileges and immunities under the Vienna Convention,” reads the letter, citing a British diplomatic note.

Ecuador abandoned its decision shortly after, according to the letter.

British authorities have said they will arrest Assange if he leaves the embassy, meaning he would have needed to be recognized as a diplomat in order to travel to Moscow.

The US finalized the complaint the same day the UK rejected the Ecuadorian request (though the accompanying 26-page affidavit suggests it been in the works for some time). The next day the US sent a formal extradition warrant to the UK. All this happened under dramatically increased (and visible) surveillance from Ecuador’s security contractor, UC Global; Assange boosters have tried to spin this attempt as a US kidnapping attempt, which is presumably what they would have called a failed exfiltration attempt.

The timing of two of the other sets of charges against Assange can also be fairly readily explained. Assange was formally indicted on March 6, 2018, the day before the 8-year statute of limitations on the CFAA charge would expire. The most recent superseding indictment, obtained on June 24, 2020, expanded the CFAA conspiracy charge through 2015, which seems to be another effort to expand the conspiracy before statutes toll. The next overt acts in WikiLeaks’ efforts to undermine the US came in March and April 2016. Unless Assange is pardoned and released (as I’ve noted, a pardon may not have the effect Assange boosters want it to), I think it highly likely DOJ will supersede again after inauguration to include, at a minimum, the Vault 7 publication, and probably some overt acts tied to the 2016 election interference. Depending on UK willingness to add to the total charges, the US might well add foreign agent charges they’ve alluded to.

Only the timing of the indictment adding the Espionage charges on May 23, 2019 can’t be readily explained (though it came in the wake of the Mueller Report and the larger Russian investigation which is, per the SSCI Report, what led to a better understanding of the degree to which Russia had “co-opted” WikiLeaks).

It is a testament to the power of WikiLeaks’ propaganda efforts that the entire focus on Julian Assange’s prosecution has been on false claims about why DOJ decided to prosecute him while Trump was President and not on the specific timing of the first charge against him, which ties it to Assange’s relationship with Russia.

Quite honestly, the US probably would have been far better off had Assange’s attempt to flee to Russia succeeded. That would have made clear even to the dead-enders that Assange had become little more than a Russian tool, and thereby diminished WikiLeaks’ allure and efficacy as a cover for leaks going forward. Instead, they’ve made of Assange a martyr about whom most journalism organizations in the world are enthusiastically repeating false propaganda.

Footnote: The Day Before Roger Stone Received a Pre-Written Pardon, He Lied about the Ongoing Investigation into His Conspiracy with Russia

As I noted here, Roger Stone’s pardon appears to have been all packaged up, covering only the crimes for which he has already been found guilty, before Billy Barr left DOJ and the pardons were rolled out.

Which is why I’m intrigued that Roger Stone went on The Gateway Pundit to lie about the investigation into him just yesterday. In what appears to be an interview of himself, Stone makes several assertions. First, he includes me among those who — he claims — were “obsessed with the idea that I was working with WikiLeaks and WikiLeaks was working with the Russians.”

It wasn’t just the nut jobs like Mother Jones ,the Daily Beast , Salon and nutty bloggers like Marcy Wheeler but allegedly responsible media outlets like the New York Times, the Washington Post, the Wall Street Journal and CNN and MSNBC became obsessed with the idea that I was working with WikiLeaks and WikiLeaks was working with the Russians.

I’m flattered Stone felt the need to include me in this esteemed list without, this time, threatening to sue me for reporting things that would later be confirmed in court documents. It’s a testament to how closely Stone has always read me.

Stone wrote this self-interview for a more specific purpose, however: To claim that the Mueller Report passages unsealed the day before the election concluded he had no ties to WikiLeaks.

At midnight on election day November 3rd, 2020- the busiest news day of the year and timed to get as little press coverage as possible, the United States Department of Justice released the remaining unredacted sections of the Mueller Report regarding me specifically, in which they had admitted that despite two years of intense investigation, spending millions to pour through every aspect of my life, dragging 36 witnesses to the grand jury and after obtaining all my electronic communications for four years ( literally millions of e-mails and pages of documents, tax returns, banking and financial records –they found no factual evidence of any collaboration or coordination between me and WikiLeaks regarding the release of emails regarding John Podesta, the Democratic National committee or Hillary Clinton or that I had any advance knowledge of the timing, content or source of their disclosures).

He says that this passage proves that:

“The Office determined that it could not pursue a Section 1030 conspiracy charge against Stone for some of the same legal reasons. The most fundamental hurdles, though, are factual ones.1279 As explained in Volume I, Section III.D.1, supra, Corsi’s accounts of his interactions with Stone on October 7, 2016 are not fully consistent or corroborated. Even if they were, neither Corsi’s testimony nor other evidence currently available to the Office is sufficient to prove beyond a reasonable doubt that Stone knew or believed that the computer intrusions were ongoing at the time he ostensibly encouraged or coordinated the publication of the Podesta emails. Stone’s actions would thus be consistent with (among other things) a belief that he was aiding in the dissemination of the fruits of an already completed hacking operation perpetrated by a third party, which would be a level of knowledge insufficient to establish conspiracy liability. See State v. Phillips, 82 S.E.2d 762, 766 (N.C. 1954) (“In the very nature of things, persons cannot retroactively conspire to commit a previously consummated crime.”) (quoted in Model Penal Code and Commentaries § 5.03, at 442 (1985).

[additional content that Stone doesn’t include]

“Regardless, success would also depend upon evidence of WikiLeaks’s and Stone’s knowledge of ongoing or contemplated future computer intrusions-the proof that is currently lacking.”

Unsurprisingly, Stone does not include the footnote modifying this passage which, as I noted at the time, made it clear there were still ongoing investigations, plural, into this question at the time Mueller closed up shop on March 22, 2019.

1279 Some of the factual uncertainties are the subject of ongoing investigations that have been referred by this Office to the D.C. U.S. Attorney’s Office.

That is, the passage said the exact opposite of what Stone said it did. It said that, presumably in part because Roger Stone’s aide Andrew Miller had stalled on his grand jury testimony for a year, the investigation into whether Stone could be charged in the CFAA conspiracy with Russia was not yet complete, not after two years of investigation.

And having lied about what the unsealed passage says, Stone then complains that Judge Amy Berman Jackson withheld it from his lawyers.

Judge Amy Berman withheld this from my lawyers at trial. The Mueller’s dirty cops concluded in their report that even if they had found evidence that I had received documents from Assange of WikiLeaks and passed them to anyone, which I did not and for which they found no evidence whatsoever, it would not have been illegal. The whole thing was a hoax.

ABJ withheld it, of course, because DOJ was still investigating, even as recently as April 2020 when DOJ unsealed warrants that made that clear. DOJ withheld that passage so Stone wouldn’t know that the witness tampering case into him was just one step in an ongoing investigation, one that remained focussed on whether Roger Stone conspired with Russia or — indeed — had even served as an Agent of Russia.

Stone goes on to complain that only BuzzFeed, along with right wing propaganda sites Washington Examiner (who launched the investigation into Stone in the first place) and Zero Hedge, misreported the significance of this detail.

The only three news outlets who reported on this shocking election day admission that there was no evidence found that would support this narrative were BuzzFeed, who successfully brought the lawsuit for the release of this material, the Washington Examiner and ZeroHedge. Where were the New York Times, the Washington Post, the Wall Street Journal, the Huffington Post, The Atlantic, The Hill, Politico, Salon, Vox, Vice, CNN, MSNBC, NBC and the Business Insider – all of who were quick to smear me as a “go-between for WikiLeaks and the Trump Campaign” but none of whom reported on the stunning conclusions of Mueller’s thugs.

He didn’t mention me in this case, because I correctly reported that the Mueller language actually said the exact opposite of what Stone claims.

Hours before he received a pardon for lying to cover up his real go-between with WikiLeaks — which a good deal of evidence suggests was Guccifer 2.0 — Roger Stone did an interview of himself where he falsely claimed the Mueller Report had finished its investigation only to fall short of proving that he was conspiring with Russia.

That’s a crime, it should be noted, for which Stone was not pardoned.

The WaPo Solution to the NYT Problem: Laura Poitras’ Misrepresentation of Assange’s 18th Charge

If you were the average NYT reader who is unfamiliar with the developments in the prosecution against Julian Assange, reading this excellent Laura Poitras op-ed calling for, “the Justice Department [to] immediately drop these charges and the president [to] pardon Mr. Assange,” might lead you to believe there were 17 charges under the Espionage Act and the original password cracking as the single overt act in a CFAA (hacking) charge, all of them 10 years old.

That was when the Justice Department indicted Julian Assange, the founder and publisher of WikiLeaks, with 17 counts of violating the Espionage Act, on top of one earlier count of conspiring to violate the Computer Fraud and Abuse Act.

The charges against Mr. Assange date back a decade, to when WikiLeaks, in collaboration with The Guardian, The New York Times, Der Spiegel and others, published the Iraq and Afghanistan war logs, and subsequently partnered with The Guardian to publish State Department cables. The indictment describes many activities conducted by news organizations every day, including obtaining and publishing true information of public interest, communication between a publisher and a source, and using encryption tools.

Of course, as emptywheel readers, you know that DOJ superseded the indictment against Assange in June, and with it extended the timeline on the CFAA conspiracy charge through 2015.

Even the original CFAA charge described a relationship between Assange and Manning that goes beyond what journalists do (I think I understand why DOJ charged it and may return to explain that in days ahead). But the current one credibly charges Assange in the same conspiracy to hack Stratfor that five other people have already pled guilty to, meaning the only question at trial would be whether DOJ can prove Assange entered into the conspiracy and took overt acts to further it, something they appear to have compelling proof he did.

The superseding indictment also describes Assange ordering up the hack of a WikiLeaks dissident. That’s not something anyone should be defending, and there’s good reason to believe it was not an isolated incident.

Poitras’ silence about the superseding indictment, however, is all the more striking given that it includes WikiLeaks’ efforts to help Edward Snowden to flee among the overt acts in the CFAA conspiracy. (I emailed Poitras to ask whether she even knows of the superseding indictment, which she may not, given the crappy coverage of it; I will update if she responds.)

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 associate [Sarah Harrison] traveled with Snowden from Hong Kong to Moscow.

[snip]

87. At the same presentation [where Assange and Jake Appelbaum encouraged people to join the CIA to steal files, 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 we look also to what has happened to Chelsea Manning, we see additionally that Snowden has clearly learned….”

[snip]

90. In an interview of May 25, 2015, ASSANGE claimed to have arranged distraction operations to assist Snowden in avoiding arrest by the United States. [listing several operations, including using “presidential jets,” suggesting that the US may have searched Evo Morales’ plane in response to disinformation spread by WikiLeaks] [bolded brackets original, other brackets my own]

With these passages, DOJ wrote the first draft of what I suspect will be expanded in the near future into a dramatically different story than the one we know about Edward Snowden (whether it will be sustainable or not is another thing). And Laura Poitras, who didn’t mention these overt acts in her op-ed, was at least adjacent to many key events in this story. For example, Poitras is likely one of the few people who would know if Snowden was in contact with Jake Appelbaum before he got a job in Hawaii and started scraping files related and unrelated to programs of concern, as Snowden himself hinted in his book. If he was, then several parts of the story that Snowden has always told are probably not true.

Similarly, Poitras’ film Risk briefly hints at tensions between Poitras and Assange over how the Snowden files would be released. That, too, suggests that WikiLeaks may have had a bigger role on the front end in Snowden’s theft of NSA documents than is publicly known.

Most importantly, at least as Bart Gellman tells it in his book, both he and Poitras were quite explicit, in the wake of requests from Snowden to help him prove his identity to obtain asylum in a foreign country, about where journalism ended and sharing classified files with foreign governments might begin.

Snowden had asked Gellman to ensure that the WaPo publish the first PRISM file with his PGP key attached. At first, Gellman hadn’t thought through why Snowden made the request. Then he figured it out.

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.

Idiot. Remember “chain of custody”? He came right out and told you he wanted a historical record.

My mind raced. When Snowden walked into a consulate, evidence of his identity in hand, any intelligence officer would surmise that he might have other classified information in reach. Snowden said he did not want to hand over documents, but his language, as I read it that night, seemed equivocal. Even assuming he divulged nothing, I had not signed up for his plan. I had agreed to protect my source’s identity in order to report a story to the public. He wanted me to help him disclose it, in private, as a credential to present to foreign governments. That was something altogether different.

Gellman realized — and Poitras seemed to agree in texts Gellman published in the book — that this request might amount to abetting Snowden’s sharing of secrets with a hostile government.

LP: oh god fuck

BG: He’s in a position to provide that material. He may be under compulsion. We REALLY can’t do anything that could abet or be perceived to abet that.

LP: of course

BG: I just wanna be a goddam journalist

Gellman and Poitras discussed the request with the lawyers WaPo consulted regarding the Snowden publications. In what might be the chilling consultation with a First Amendment lawyer that Poitras describes in her oped, one lawyer seems to have raised concerns about aiding and abetting charges, and had them both write explicit notes to Snowden denying his request to publish his key. In those notes, as published by Gellman, both drew a bright line between what they considered journalistic — protecting his identity and publishing the newsworthy files while balancing risk — and what was not.

Everyone on the call agreed that we would carry on with our story plans and protect the source’s identity as before. No one but Poitras and I knew Snowden’s name anyway. But Kevin Baine, the lead outside counsel, asked me in a no-bullshit tone to level with him. Had I ever promised to publish the full PRISM presentation or its digital signature? I had not, and Poitras said the same. Our source framed both those points as “requests” before he sent the document. Poitras and I had ducked and changed the subject. Why engage him in a hypothetical dispute? Depending on what the document said, publication in full might have been an easy yes. “You have to tell him you never agreed to that,” Baine said. Poitras and I faced a whole new kind of legal exposure now. We could not leave unanswered a “direct attempt to enlist you in assisting him with his plans to approach foreign governments.”

[snip]

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.”

Poitras wrote to him separately.

There have been several developments since Monday (e.g., your decision to leave the country, your choice of location, possible intentions re asylum), that have come as a surprise and make [it] necessary to be clear. As B explained, our intentions and objectives are journalistic. I believe you know my interest and commitment to this subject. B’s work on the topic speaks for itself. I cannot travel to interview you in person. However, I do have questions if you are still willing to answer them. [my emphasis]

If Assange (or anyone associated with him) is ever tried on the superseding indictment, I’d be surprised if these passages weren’t introduced at trial. Here you have two of the key journalists who published the Snowden files, laying out precisely where WikiLeaks fails the NYT problem that DOJ, under Obama, could never get past in any prosecution of Julian Assange.

“The problem the department has always had in investigating Julian Assange is there is no way to prosecute him for publishing information without the same theory being applied to journalists,” said former Justice Department spokesman Matthew Miller told the Post. “And if you are not going to prosecute journalists for publishing classified information, which the department is not, then there is no way to prosecute Assange.”

In 2013, before the first Snowden files got published, Gellman and Poitras and the Washington Post solved the New York Times problem. Helping Snowden flee to a foreign country — which, given Snowden’s plan to meet them in Hong Kong, they assumed might include to an adversarial nation like China — was not journalistic and, seemingly even according to the journalists, might be abetting Snowden’s sharing of files with a hostile foreign government.

Which is why Poitras’ silence about these charges in her bid to dismiss the charges against Assange undermines her argument.

Again, I absolutely agree with Poitras that the Espionage charges, as charged, pose a real risk to journalism. But the government is going to use the CFAA charge to explain how Assange’s methods are different from journalists. And Poitras’ own actions may well be part of that proof.

Joshua Schulte Undermines the WikiLeaks Claim to Publish “Whistleblowers”

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

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

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

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

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

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

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

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

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

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

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

Micah never corrected his post.

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

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

That first warrant revealed that Schulte,

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

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

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

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

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

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

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

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

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

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

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

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