On Joshua Schulte and Julian Assange’s 10 Year Old Charges

The WaPo has confirmed what Natasha Bertrand earlier reported: the extradition package for Julian Assange will only include the 10 year old charges related to the publication of Chelsea Manning’s leaks, not any of WikiLeaks more controversially handled charges. I’ve been meaning to write a post on how this is the stupidest available approach, which will satisfy neither those who regard him as a villain, will expose other journalists to similarly dangerous charges, and possibly even fuck up the security establishment’s entire effort to exact some revenge against Assange. I hope to return to that when I get some deadlines and travel done, but suffice it to say this is a big hot mess.

To be clear, I actually think it’s not eleven-dimensional chess on the part of Bill Barr to save Trump some embarrassment once Roger Stone’s trial reveals the extent to which Trump’s campaign tried to “collude” with WikiLeaks (though it will not only have that effect, but make it harder for DNC to sustain its lawsuit against the GOP and WikiLeaks for their actions in the 2016 election). Rather, I think this is an attempt to prosecute Assange with the least cost on the security establishment, being run by people who are utterly tone deaf to the costs it will incur elsewhere.

But I do want to say several things about why and how DOJ is not charging Assange in the Vault 7 leak.

Bertrand noted that I thought that the EDVA charges would be related to Vault 7.

Still, just several months ago, numerous experts felt confident that prosecutors would also hit Assange with charges over Vault 7. Prominent national security journalist Marcy Wheeler predicted in Februarythat DOJ would “very clearly go after Assange” for the Vault 7 disclosure, and that a sealed indictment against him in the Eastern District of Virginia was likely related to that leak — the CIA is, after all, headquartered in Virginia, as ABC noted. Assange himselfreportedly expressed concern that prosecutors would charge him with crimes related to Vault 7.

She didn’t provide even the full context of my tweet, much less my post, arguing that Assange’s efforts to extort a pardon using the Vault 7 files would be something obviously unconnected to journalism. The superseding indictment does mention Assange’s use of “insurance files” to ensure his ability to publish documents in his possession, but no charges were attached to that, which later uses of the tactic and the Vault 7 pardon effort would have supported.

Which is to say the government could have charged Assange for something specifically excluded from Bartnicki’s protection of the publication of stolen materials, but did not. Again, the government has chosen to go about this in the stupidest way possible.

That said, I’m not surprised they’re not going after Assange for the Vault 7 leak itself.

As it is, the CIA has been inexcusably uncooperative with Joshua Schulte’s discovery efforts. At times. some pretty aggressive prosecutors have seemed almost apologetic about it. Schulte has staked a lot on trying to expose details of his initial warrants, and while his later behavior seems to suggest there was something to their targeting of him (or, at the very least, his post-indictment behavior has been self-destructive), at the very least the CIA may have participated in some epically bad parallel construction. They may be trying to hide that as much as the actual details of CIA’s hacking program.

Meanwhile, the government and Schulte have been discussing severing his charges from last year — which include one charge of contempt and a charge of attempted leak of classified information — from everything else.

As the Court is aware, trial in this matter is currently set for April 8, 2019. (See Minute Entry for August 8, 2018 Conference). To afford the parties sufficient time to prepare the necessary pretrial motions, including suppression motions and motions pursuant to the Classified Information Procedures Act (“CIPA”), the parties respectfully request that the Court adjourn the trial until November 4, 2019. The parties are also discussing a potential agreement concerning severance, as well as the order of the potentially severed trials. The parties will update the Court on severance and a pretrial motion schedule at or before the conference scheduled for April 10, 2019.

That might be something they tried to base a plea off of: they’d have video evidence to back their case, so it might avoid the CIPA process CIA is unwilling to engage in.

Back in May, Schulte’s team submitted a motion to vacate his SAMs (Special Administrative Measures limit a prisoner’s communication with others). It was based off the case the government made prior to his superseding indictment and left out all the allegations the government made about the 13 email and social media accounts Schulte was allegedly running from his jail cell, and as such deliberately understated why the government wanted the SAMs. The government asked for and got an extension to respond until Monday — notably, after all decisions about Assange would have had to have been made. Any response (unless it’s sealed) will have to provide more details about what happened last fall, so if they’re trying to get a plea deal, it might come this week in lieu of that SAMs response.

But the question would be what that plea agreement would look like.

Finally, the government is going to have to provide some explanation for why Chelsea Manning remains in jail for contempt. Unless they can claim they’re going after other people related to WikiLeaks, they should not be able to keep her jailed.

The Logic of Assange’s EDVA Indictment Is Inconsistent with Mueller’s Apparent Logic on Assange’s Declination

As Emma Best has noted, shortly before GRU targeted John Podesta in a spear-phishing attack, WikiLeaks offered a reward for Hillary’s speech transcripts like the excerpts that were released as part of the John Podesta release.

Hours before Russian hacking operations targeted Hillary Clinton’s campaign in the spring of 2016, WikiLeaks discussed offering a monetary reward for transcripts of her speeches at Goldman Sachs. Soon after, Russian hackers launched a spear phishing campaign that resulted in John Podesta’s email account being compromised. Emails containing excerpts from the speeches were included in the first day of the Podesta email releases. A week later, emails containing the transcripts themselves were released. WikiLeaks heralded these transcripts as their “holy grail.”

The story began on March 9, 2016, when WikiLeaks sent a tweet with a poll asking if they should add Hillary Clinton’s Goldman Sachs speeches to their ”Most Wanted” page for six figure rewards for materials. When the poll completed twenty four hours later, 93% of respondents said that WikiLeaks should offer a reward for the speeches. The Russian hackers at Fancy Bear may have been listening and been inspired by WikiLeaks’ comment. Unpublished targeting data collected by Secureworks shows the hacking campaign began earlier than the Mueller indictment reveals. A week and a half later, after dozens of attempts to penetrate the accounts of Podesta and other Clinton staffers and associates, Fancy Bear sent the phishing email that successfully tricked Podesta into compromising his account and the Goldman Sachs speeches along with it.

Secureworks’ unpublished breakdown of the Russian spear phishing and hacking effort, which AP described last year, shows that the campaign to penetrate the account began hours after WikiLeaks teased the possibility of offering a reward for the information. The tweet first mentioning the potential of a reward for the Goldman Sachs transcripts was sent at 8:16 P.M. Moscow time. At 11:56 AM the next day, less than sixteen hours later, Russian hackers began a campaign that would target “over 300 individuals affiliated with the Clinton Campaign, DCCC, and DNC.“ Podesta’s emails accounts were targeted in the days that followed and successfully compromised a week later, resulting in the exfiltration of nearly 60,000 emails.

Under what I’ve called Theory One of the superseding Julian Assange indictment, WikiLeaks’ publication of a wish list that was subsequently fulfilled would qualify it (or Julian Assange) for a conspiracy charge. Given what we’ve seen of Roger Stone’s actions, it might qualify him for a conspiracy charge as well (though we still don’t know via what means he contacted WikiLeaks).

But this 2.5 page redaction in the Mueller Report appears to explain why they didn’t charge WikiLeaks (and so by association, Stone) in that conspiracy.

We don’t know what that redaction says, though the unredacted footnote makes it clear that in the case of emails stolen from Hillary, DOJ determined that sharing of stolen property does not constitute a crime.

We do, however, have a sense of how the Attorney General understands this declination, because he used it to exonerate Trump, even in spite of Trump’s active role in pushing Roger Stone to optimize the WikiLeaks releases for the campaign. In one of his explanations for the WikiLeaks declination — one that may more directly allude to Stone’s involvement — Bill Barr said that publication of stolen emails would not be criminal “unless the publisher also participated in the underlying hacking conspiracy.”

The Special Counsel also investigated whether any member or affiliate of the Trump campaign encouraged or otherwise played a role in these dissemination efforts.  Under applicable law, publication of these types of materials would not be criminal unless the publisher also participated in the underlying hacking conspiracy.  Here too, the Special Counsel’s report did not find that any person associated with the Trump campaign illegally participated in the dissemination of the materials.

In the case of election interference, then, Barr does not consider the publication of documents identified on a wish list that hackers subsequently steal to amount to joining a conspiracy.

But in the case of Chelsea Manning’s leak, his DOJ does.

There’s obviously a distinction: John Podesta’s risotto recipes are not classified, whereas much of the stuff (but not all) Manning leaked was. But the role of a wish list is not functionally different, and Russian officers were charged both for hacking and dissemination.

I’m still working on a post describing how unbelievably stupid the EDVA case is, both for the press and for DOJ’s hopes to lay a precedent.

But at least at a structural level, the prosecution is also inconsistent with the decisions DOJ made about WikiLeaks on the election year operation.

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

The Three Theories of Prosecution for Julian Assange

In this post, I laid out what the 17 new charges against Julian Assange are. In this, I’ll look more closely at three theories of criminalization here:

  • Theory One: Charging Assange for causing Chelsea Manning to leak classified information by soliciting it generally or specifically (and/or discussing its value before she obtained it)
  • Theory Two: Charging Assange for offering to help crack a password and attempting to obtain the documents that would have been available using it
  • Theory Three: Charging Assange for leaking the identities of US government informants in three different databases

Theory One: Obtaining and disclosing documents that were solicited (Counts 2-4 and 6-14)

Effectively, for three sets of documents, they’ve charged Assange for causing Chelsea Manning to obtain (Charges 2 through 4), Assange obtaining himself (Charges 6 through 8), causing Manning to disclose documents she did not have authorized possession of (Charges 9 through 11), and  causing Manning to disclose legally obtained documents (Charges 12 through 13) for three sets of documents: The Gitmo Detainee Assessment Briefs, the State Department Cables, and the Iraq Rules of Engagement.

Assange is not being charged for publishing anything under this theory (that’s not true under Theory Three). He’s being charged with causing Manning to obtain and disclose them to him.

To accuse Assange of causing Manning to do these things, they show how a Most Wanted Leaks list posted on WikiLeaks until September 2010 resembles what Manning looked for on DOD’s networks and what she sent to Assange.

In addition, they show that Manning and Assange discussed some of these leaks before she obtained them.

For example, on March 7, 2010, Manning asked ASSANGE how valuable the Guantanamo Bay detainee assessment briefs would be. After confirming that ASSANGE thought they had value, on March 8, 2010, Manning told ASSANGE that she was “throwing everything [she had] on JTF GTMO [Joint Task Force, Guantanamo] at [Assange] now.” ASSANGE responded, “ok, great!”

[snip]

Manning later told ASSANGE in reference to the Guantanamo Bay detainee assessment briefs that “after this upload, thats all i really have got left.” I

It argued that Manning downloaded the State Department cables in response to the request for bulk databases on the Wish List.

Further, following ASSANGE’s “curious eyes never run dry” comment, and consistent with WikiLeaks’s solicitation of bulk databases and classified materials of diplomatic significance, as described in paragraphs 2,4-5, between on or about March 28, 2010, and April 9, 2010, Manning used a United States Department of Defense computer to download over 250,000 U.S. Department of State cables, which were classified up to the SECRET level. Manning subsequently uploaded these cables to ASSANGE and WikiLeaks through an SFTP connection to a cloud drop box operated by WikiLeaks, with an X directory that WikiLeaks had designated for Marining’s use. ASSANGE and WikiLeaks later disclosed them to the public.

And it showed that the Iraq Rules of Engagement were on the Wish List.

As of November 2009, WikiLeaks’s “Most Wanted Leaks” for the United States included the following:

[snip]

b. “Military and Intelligence” documents, including documents that the list described as classified up to the SECRET level, for example, “Iraq and Afghanistan Rules of Engagement 2007-2009 (SECRET);”

[snip]

Following ASSANGE’s “curious eyes never run dry” comment, on or about March 22,2010, consistent with WikiLeaks’s “Most Wanted Leaks” solicitation of “Iraq and Afghanistan US Army Rules of Engagement 2007-2009 (SECRET),” as described in paragraphs 4-5, Manning downloaded multiple Iraq rules of engagement files from her Secret Internet Protocol Network computer and burned these files to a CD, and provided them to ASSANGE and WikiLeaks.

Thus, for each of these, the government is saying that soliciting specific classified (or protected) materials amounts to Espionage. This is the theory of prosecution I argued would criminalize people like Jason Leopold, who was clearly engaged in journalism when he specifically asked about a specific Suspicious Activity Report from a source.

Theory Two: Attempted hacking to attempt to obtain the documents available via the hack (Counts 5 and 18)

For one vaguely defined set of documents, DOJ has charged Assange for attempting to help Manning crack a password (which was the single previous charge, which is now Charge 18) in order to attempt to obtain unidentified documents on SIPRNet.

15. In furtherance of this scheme, ASSANGE agreed to assist Manning in cracking a password hash stored on United States Department of Defense computers connected to the Secret Internet Protocol Network, a United States government network used for classified documents and communications, as designated according to Executive Order No. 13526 or its predecessor orders.

I believe (though am not certain) that that’s what the documents charged in Count 5 are about.

Between in or about November 2009 and in or about May 2010, in an offense begun and committed outside of the jurisdiction of any particular state or district of the United States, the defendant, JULIAN PAUL ASSANGE, who will be first brought to the Eastern District of Virginia, and others unknown to the Grand Jury, knowingly and unlawfully attempted to receive and obtain documents, writings, and notes connected with the national defense—^namely, information stored on the Secret Internet Protocol Network classified up to the SECRET level— for the purpose of obtaining information respecting the national defense, knowing and having reason to believe, at the time that he attempted to receive and obtain them, that such materials would be obtained, taken, made, and disposed of by a person contrary to the provisions of Chapter 37 of Title 18 of the United States Code.

This theory also doesn’t charge Assange with publishing information. Rather than charging him for soliciting leaks (Theory One), it charges him with helping to obtain documents Manning was not authorized to obtain by attempting to crack a password to get Administrators privileges.

Releasing the names of informants (Counts 15-17)

For each of three sets of US government informants, there’s also a charge tied to the informants’ identities disclosed in bulk databases.

35. Also following Manning’s arrest, during 2010 and 2011, ASSANGE published via the WikiLeaks website the documents classified up to the SECRET level that he had obtained from Manning, as described in paragraphs 12, 21, and 27, including approximately 75,000 Afghanistan war-related significant activity reports, 400,000 Iraq war-related significant activities reports, 800 Guantanamo Bay detainee assessment briefs, £ind 250,000 U.S. Department of State cables.

36. The significant activity reports from the Afghanistan and Iraq wars that ASSANGE published included names of local Afghans and Iraqis who had provided information to U.S. and coalition forces. The State Department cables that WikiLeaks published included names of persons throughout the world who provided information to the U.S. government in circumstances in which they could reasonably expect that their identities would be kept confidential. These sources included journalists, religious leaders, human rights advocates, and political dissidents who were living in repressive regimes and reported to the United States the abuses of their own government, and the political conditions within their countries, at great risk to their own safety. By publishing these documents without redacting the human sources’ names or other identifying information, ASSANGE created a grave and imminent risk that the innocent people he named would suffer serious physical harm and/or arbitrary detention.

For each database, the indictment looks at several instances of the individuals whose identities were released. It then lays out evidence that Assange knew and did not care that by publishing these identities he would be endangering people.

This is the theory of prosecution that does criminalize the publication of true information. And it criminalizes something that journalists do, at times, do.

The government often tries to classify identities that should not be (as they did with Gina Haspel, to hide her role in torture, for example). When journalists learn these identities they sometimes do choose to ignore admonitions against publication, for good reason. That’s what Assange is accused of doing here, but only on a mass scale. But if this is successful, there’s nothing that will prevent the government from charging people for disclosing classified identities at a smaller scale.

I’m also not sure how, as a foreign citizen, this doesn’t invite retaliation against the US for identifying classified identities of other countries.

The Charges Against Julian Assange

As expected, EDVA rolled out a bunch more charges, under the Espionage Act, against Julian Assange. I’m going to do a follow-up post on how stupid the way they’ve done this is, but first wanted to lay out the charges.

The indictment charges Assange with 17 new counts (in addition to the single CFAA charge they’ve already charged him with, which is now Count 18).

  • Count 1: Conspiracy to Obtain, Receive, and Disclose National Defense Information (18 USC §793(g)
  • Count 15: Unauthorized Disclosure of National Defense Information — informants in Afghan Significant Activity Reports (18 USC §793(e))
  • Count 16: Unauthorized Disclosure of National Defense Information — informants in Iraq Significant Activity Reports (18 USC §793(e))
  • Count 17: Unauthorized Disclosure of National Defense Information –informants in State Department Cables (18 USC §793(e))
  • Count 18: Conspiracy to Commit Computer Intrusion (18 USC §641, 793(c) and 793(e)

Then there are a set of throw-everything-at-the-wall charges that charges Manning giving three sets of files — the Detainee Assessment Briefs, the State Department Cables, and the Iraq Rules of Engagement — to Assange in four different ways.

The attempt, Count 5, is related to the files Chelsea Manning would have gotten had the password crack been successful.

So effectively, there are three main sets of documents, the Gitmo Detainee Assessment Briefs, the State Department Cables, and the Iraq Rules of engagement, for which EDVA has charged Assange for causing Manning to obtain them, Assange obtaining them himself, causing Manning to disclose documents she had legal access to to Assange, and causing Manning to disclose documents she had unauthorized possession of to Assange. (It’s worth noting that three of these four steps are replicated in the existing Joshua Schulte indictment.)

Then there are three sets of informants that Assange disclosed — those not redacted in the Afghan Significant Activity Reports, those not redacted in the Iraq Significant Activity Reports, and those not redacted in the State Department cables.

Then there are the two charges associated with what Manning would have gotten had Assange succeeded in cracking that password — the CFAA charge and the attempt to obtain charge.

Finally, there’s an overriding conspiracy.

Rick Gates’ Status Report Suggests Trump Will Be a Focus of Roger Stone’s Trial

As I noted yesterday, the government submitted a status report in Rick Gates’ case yesterday — the first since Mueller submitted his report. In the past several prior reports, the government had asked for sixty day extensions, but here, the government is asking for over three months.

The prosecutors who submitted the report — who are both on the Greg Craig prosecution team — make one reason for the longer extension clear: they’re scheduling the next status report for after Craig’s trial is expected to finish.

To date: (1) defendant Gates continues to cooperate with the government as required by his Plea Agreement, and (2) this Court has scheduled a trial in United States v. Craig, 19-CR-125 (ABJ), to begin on August 12, 2019,

Gates is not obviously mentioned in Craig’s indictment, but Paul Manafort is central to it, so presumably prosecutors want to have Gates explain why Manafort thought it so important that Craig hide the source of the funding for the Skadden Arps payment, Victor Pinchuk, which parallels the reasons why Manafort wanted everyone else who worked for him to keep their Ukrainian paymasters secret.

But prosecutors also mention Roger Stone’s November trial (though none of Stone’s prosecutors are on this filing).

another trial, United States v. Stone, 19-CR-18 (ABJ), to begin November 5, 2019

That’s interesting given the way the very redacted passages treating Stone’s charges in the Mueller Report flesh out Gates’ role as a liaison between Trump and Stone in the effort to optimize the WikiLeaks releases. Stone’s indictment had been coy on this point (so much so, I’ve wondered whether Big Dick Toilet Salesman told Mueller to stop mentioning Trump in charging documents after the Michael Cohen plea). It describes senior members of the campaign contacting Stone to find out what WikiLeaks had coming.

During the summer of 2016, STONE spoke to senior Trump Campaign officials about Organization 1 and information it might have had that would be damaging to the Clinton Campaign. STONE was contacted by senior Trump Campaign officials to inquire about future releases by Organization 1.

[snip]

By in or around June and July 2016, STONE informed senior Trump Campaign officials that he had information indicating Organization 1 had documents whose release would be damaging to the Clinton Campaign.

And there’s this very pregnant passage using the passive voice to describe someone — the indictment doesn’t name who — directing a senior campaign official to contact Stone about further releases, which would lead to Stone’s efforts to find out, in part via Jerome Corsi, what was coming in late July and early August.

After the July 22, 2016 release of stolen DNC emails by Organization 1, a senior Trump Campaign official was directed to contact STONE about any additional releases and what other damaging information Organization 1 had regarding the Clinton Campaign. STONE thereafter told the Trump Campaign about potential future releases of damaging material by Organization 1.

Stone has denied it happened but said if it did, Gates would have been the one who reached out to him.

And while the passage of the Mueller Report describing all this is heavily redacted, it does seem to confirm that — after Trump and Manafort both showed great interest in the WikiLeaks releases, at least Manafort and probably both (given the reference to Manafort “separately” telling Gates to stay in touch with Stone) told Gates to reach out to Stone.

[snip]

In addition, Gates seems to have witnessed Trump take a call from Stone at which the then candidate’s rat-fucker informed him about the upcoming WikiLeaks releases.

Given all the documentary evidence the government has against Stone, Gates’ testimony is probably not necessary to prove that Stone lied to the House Intelligence Committee about his efforts to optimize the WikiLeaks releases. But it may serve several prosecutorial roles.

First, given that Stone was interacting with Trump directly on the WikiLeaks releases, Gates’ (as well as Michael Cohen and even Manafort’s, the latter of whom seems to have uncharacteristically told the truth on this to the grand jury) confirmation that such contacts occurred could easily explain Stone’s motive to lie to HPSCI — which would serve to protect Trump. This is all the more true given how brazenly Trump lied about this point in his sworn answers to Mueller.

I recall that in the months leading up to the election there was considerable media reporting about the possible hacking and release of campaign-related information and there was a lot of talk about this matter. At the time, I was generally aware of these media reports and may have discussed these issues with my campaign staff or others, but at this point in time – more than two years later – I have no recollection of any particular conversation, when it occurred, or who the participants were.

I do not recall being aware during the campaign of any communications between [Stone, Donald Trump, Jr., Manafort, or Gates] and anyone I understood to be a representative of WikiLeaks or any of the other individuals or entities referred to in the question.

[snip]

I was in Trump Tower in New York City on October 7, 2016. I have no recollection of being told that WikiLeaks possessed or might possess emails related to John Podesta before the release of Mr. Podesta’s emails was reported by the media. Likewise, I have no recollection of being told that Roger Stone, anyone acting as an intermediary for Roger Stone, or anyone associated with my campaign had communicated with WikiLeaks on October 7, 2016.

I do not recall being told during the campaign that Roger Stone or anyone associated with my campaign had discussions with [WikiLeaks, Guccifer 2.0, or DCLeaks] regarding the content or timing of release of hacked emails.

I spoke by telephone with Roger Stone from time to time during the campaign. I have no recollection of the specifics of any conversations I had with Mr. Stone between June 1.2016 and November 8, 2016. I do not recall discussing WikiLeaks with him, nor do I recall being aware of Mr. Stone having discussed WikiLeaks with individuals associated with my campaign, although I was aware that WikiLeaks was the subject of media reporting and campaign-related discussion at the time.

Gates will not only help to prove that Trump knew all this was going on, but that the campaign had dedicated resources to make use of Stone’s disclosures.

In addition, the government’s ability to tie the President directly to this part of the operation will make it harder (though nothing is beyond Trump) to pardon Stone before the trial, even while it will provide incentive to Trump to do so. Trump’s centrality in all this may be one reason William Barr is so aggressively protecting the Stone related disclosures, including with his refusals to share unredacted copies of the report with Congress: because Trump’s documented role in encouraging Stone’s efforts is far stronger than it is in any of the other potential incidences of election tampering.

Finally, all this may change the calculus if and when Julian Assange gets extradited to the US. Trump was asked about — but refused to answer — whether he considered a pardon for Assange.

Trump’s lies to Mueller are perhaps best documented as they pertain to WikiLeaks. Using Gates as a witness at Stone’s trial will make the trial an exhibition of the President’s lies as much as those of his rat-fucker.

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

Sweden Reopens Assange Rape Case

There was a bit of drama and excitement that went down in the middle of the night. The Swedish Prosecution Authority has officially reopened the case against Assange on the remaining rape allegation. Here is the official statement:

Deputy Director of Public Prosecution Eva-Marie Persson has today decided to reopen the Assange case that was previously discontinued.

The prosecutor will shortly request that Julian Assange be detained in his absence suspected on probable cause for an allegation of rape from August 2010. To be able to execute a detention order, the prosecutor will issue a European Arrest Warrant. An application for a detention order will be submitted to Uppsala District Court, as the suspected crime took place in Enköping municipality.

– On account of Julian Assange leaving the Ecuadorian embassy, the circumstances in this case have changed. I take the view that there exists the possibility to take the case forward. Julian Assange has been convicted of a crime in the UK and will serve 25 weeks of his sentence before he can be released, according to information from UK authorities. I am well aware of the fact that an extradition process is ongoing in the UK and that he could be extradited to the US. In the event of a conflict between a European Arrest Warrant and a request for extradition from the US, UK authorities will decide on the order of priority. The outcome of this process is impossible to predict. However, in my view the Swedish case can proceed concurrently with the proceedings in the UK, says Deputy Director of Public Prosecution Eva-Marie Persson.

Reopening the investigation means that a number of investigative measures will take place.

– In my opinion a new interview with the suspect is required. It may be necessary, with the support of a European Investigation Order, to request an interview with JA be held in the UK. Such an interview, however, requires JA’s consent, says Eva-Marie Persson.

Case number in Stockholm District Court: B 12885-10.

Here is a pdf of the full opinion and decision.

Few thoughts. It appears clear that Sweden will be filing a new European Arrest Warrant EAW), and I would expect they lodge that forthwith. Which will result in competing extradition requests from the United States and Sweden. There are many factors that will play into the decision by the UK of where to ship Assange when his sentence on the bail jumping offense is done. The final decision is in the hands of the UK Home Secretary Sajid Javid.

Several factors, but most critically the pending expiration of the Swedish statute of limitations in August 2020 militate in favor of giving the nod to Sweden over the US. Here is the excellent David Allen Green on that. Also, there is no question of “political prosecution” with the Swedish charge, where in many regards there are such concerns with the current, and potentially future, US charges.

If Assange was smart (no given), he might consider fighting extradition to the US and waiving it as to Sweden. I have always maintained that if Assange wants to fight US extradition, he is much better situated to do so from Sweden than he is from the UK. Several international law experts agree, for instance Mark Klamberg, as cited by Kevin Jon Heller in Opinio Juris gives some great background on that issue, even though Mr. Klamberg’s original post was written back in 2012.

Another interesting thing is the SwedishProsecution Authority has indicated they will request a formal interview with Assange via video link while he is in UK prison custody. That would appear to require consent by Assange, and it is far from certain he would give that.

Also, there is still the matter of what charges will be the final ones submitted by the US to the UK. The US has until June 12 to submit its final charges to the UK per a court order. As you may recall, the Rule of Specialty makes this a critical factor, as I detailed in this post a month ago. Adding to this issue is the US looks to get a long reprieve on that if Assange is sent by the Brits to Sweden first. At that point, the US would have to file a new extradition request with the Swedes, so, obviously, they would look to have a lot more time in that circumstance.

On another front, Ecuador will give Julian Assange’s embassy computers and files to the US. Not shocking, but it is news.

Lastly, the other factor is that Assange litigated extradition to Sweden previously, and lost in every court of jurisdiction. He could fight extradition to the US for a very long time, but looks dead in the water already as to Swedish extradition.

So, in closing, there was a lot of excitement early this morning, and there will surely be more to come regarding Assange

What if Julian Assange Flipped?

I’ve said this before, I’ll say it again: I hope to hell Chelsea Manning’s advisors are cognizant of the ways her attempts to avoid testifying against Julian Assange may put her in unforeseen legal jeopardy.

I’m thinking of that anew given my consideration of what I consider to be a distant, but real, possibility: that the US government would offer Assange a plea deal on the current charge he faces in exchange for testimony in a range of other issues. The idea is crazy, but perhaps not as crazy as it sounds.

As I laid out in this post, it seems the US government has been carefully orchestrating the Assange arrest since Ecuador first applied for diplomatic status for him in 2017 in an attempt to exfiltrate him, possibly to Russia. They’re now on the clock, with (depending on which expert you ask) just 44 more days to lard on the additional charges multiple outlets have reported are coming. Meanwhile, he’s being held at Belmarsh, with conflicting stories about what kind of visitors he’s been permitted — though the UN Special Rapporteur for Privacy did visit him this week. Though I’ve asked some top experts, it’s not entirely clear whether, if he were being interrogated right now, that’d be under UK law or US law; the former has fewer protections against self-incrimination for people being detained.

One passage of the Mueller Report may provide an explanation for why his prosecutors didn’t obtain Julian Assange’s testimony.

The Office limited its pursuit of other witnesses and information-such as information known to attorneys or individuals claiming to be members of the media-in light of internal Department of Justice policies. See, e.g., Justice Manual §§ 9-13.400, 13.410.

Assange would fall squarely within DOJ policy covering people who are subjects or targets of an investigation for activities related to their news-gathering activities.

Member of the news media as subject or target. In matters in which a member of the Department determines that a member of the news media is a subject or target of an investigation relating to an offense committed in the course of, or arising out of, newsgathering activities, the member of the Department requesting Attorney General authorization to use a subpoena, 2703(d) order, or 3123 order to obtain from a third party the communications records or business records of a member of the news media shall provide all facts necessary to a determination by the Attorney General regarding both whether the member of the news media is a subject or target of the investigation and whether to authorize the use of such subpoena or court order. 28 C.F.R. 50.10(c)(5)(i). If the Attorney General determines that the member of the news media is a subject or target of an investigation relating to an offense committed in the course of, or arising out of, newsgathering activities, the Attorney General’s determination should take into account the principles reflected in 28 C.F.R. 50.10(a), but need not take into account the considerations identified in 28 C.F.R. 50.10(c)(5)(ii) – (viii). Id. Members of the Department must consult with the PSEU regarding whether a member of the news media is a subject or target of an investigation related to an offense committed in the course of, or arising out of, newsgathering activities.

The EDVA case appears to have gotten over this policy (perhaps by distinguishing the assistance on cracking a password from newsgathering activities); but it’s not clear Mueller did (especially given the discussion of First Amendment considerations in passages relating to WikiLeaks). In any case, this calculus may change given that he’s in British, not US custody.

And there has been very little reporting on what’s going on with him — or with US investigations into him.

There are a number of investigations the government would love to get his testimony on, including:

Testimony against Joshua Schulte

Schulte is the accused Vault 7 leaker. WikiLeaks has been far less circumspect about the possibility he’s their source than with other leakers (while also engaging in far less of an effort to lay the case that he’s a whistleblower). Plus, the government has video evidence of Schulte attempting to leak classified information.

But thus far, Schulte’s prosecution has been slowed by CIA’s reluctance to share the classified information Schulte needs to defend himself. Plus, the FBI apparently bolloxed up the initial search warrants for Schulte (in what I suspect was a sloppy effort at parallel construction), which Schulte has been trying to win the ability to speak publicly about for over a year; he recently appealed a decision denying him a request to exempt those initial warrants from his protective order.

To the extent that Assange and Schulte (if he is really the Vault 7 source) communicated — and there’s good reason to believe WikiLeaks did communicate in advance of this publication — then Assange might be able to provide testimony that would get beyond the classification problems.

Testimony about the response to his pardon requests (including Roger Stone’s role in it)

I also believe that DOJ continues to investigate the long effort — an effort that includes Roger Stone, whom prosecutors say is still under investigation — in brokering a pardon for Assange, possibly in part for Assange providing disinformation about where the Democratic documents came from. Consider that, as recently as November, Mueller was trying to learn whether Trump had discussed pardoning Assange before his inauguration, a question about which Trump was especially contemptuous, even given his overall contempt for responding to questions.

Then there’s a subtle point I find really interesting. When the Mueller Report lays out all the times Don Jr magnified Russian trolls, it noted that the failson’s fondness for Russian propaganda continued after the election.

96 See, e.g., @DonaldJTrumpJr 10/26/16 Tweet (“RT @TEN_GOP: BREAKING Thousands of names changed on voter rolls in Indiana. Police investigating #VoterFraud. #DrainTheSwamp.”); @DonaldJTrumpJr 11/2/16 Tweet (“RT @TEN_GOP: BREAKING: #VoterFraud by counting tens of thousands of ineligible mail in Hillary votes being reported in Broward County, Florida.”); @DonaldJTrumpJr 11/8/16 Tweet CRT @TEN_GOP: This vet passed away last month before he could vote for Trump. Here he is in his #MAGA hat. #voted #ElectionDay.”). Trump Jr. retweeted additional @TEN_GOP content subsequent to the election.

[snip]

103 @DonaldJTrumpJr 11/7/16 Tweet (“RT @Pamela jetonc13. Detroit residents speak out against the failed policies of Obama, Hillary & democrats . . . . “) [my emphasis]

The page-long section (page 60) that lays out Don Jr’s innocuous pre-election interactions (which is how I described them when they were first published) does not, similarly, note the President’s son’s more damning interactions with WikiLeaks that took place after the election, where Assange once privately

Hi Don. Hope you’re doing well! In relation to Mr. Assange: Obama/Clinton placed pressure on Sweden, UK and Australia (his home country) to illicitly go after Mr. Assange. It would be real easy and helpful for your dad to suggest that Australia appoint Assange ambassador to DC “That’s a really smart tough guy and the most famous australian you have! ” or something similar. They won’t do it, but it will send the right signals to Australia, UK + Sweden to start following the law and stop bending it to ingratiate themselves with the Clintons. 12/16/16 12:38PM

And then publicly asked for an Ambassadorship that would amount to a pardon.

Given the thoroughness of the report, I find the silence about these exchanges to be notable.

Admittedly, one aspect of the pardon campaign implicates Assange far more than (at least given the public details) it does Trump: his seeming attempt at extortion using the CIA’s hacking tools. But that doesn’t mean the government wouldn’t like his testimony about the larger effort, and I have reason to suspect that is something they were pursuing via other channels as well.

WikiLeaks’ ongoing interactions with Russia

Finally, I’m sure the US government would be willing to give Assange some consideration if he offered to describe his interactions with Russia over the years. The most public aspect of that was the WikiLeaks effort to get Snowden safely out of Hong Kong, which ended unexpectedly in Russia. But there are also credible allegations WikiLeaks engaged in some catch-and-kill of damning documents, most publicly with an incriminating document from the Syria Files. Emma Best looks more closely at that incident in a longer profile of a Russian hacker, Maksym Igor Popov, who seemed to shift loyalties back and forth from the US to Russia even while cultivating Anonymous.

Simultaneously, Sabu, who had been boasting about an alleged breach of Iranian systems, pivoted to the then-pending Syria files. “We owned central syrian bank and got all their emails,” he told Popov. There were “a lot of scandals” in those emails. In the 2012 exchange, Popov is told about an alleged email revealing that Syria had secretly sent Russia billions of Euros. Sabu appears to confuse the amount, which was 2 billion, with an amount from a similar transfer involving an Austrian bank. Reporting by The Daily Dot implies that the two emails were often discussed in the same conversation, while also revealing that the email Sabu was describing to the alleged Russian contractor was omitted from WikiLeaks’ eventual release.

WikiLeaks responded to the reporting by claiming that they “either never had the data or [that it was] in some strange MIME format so it isn’t indexed,” and that the reporting was an attack on WikiLeaks that was meant “to help HRC.”

Popov was impressed by Sabu’s description of the Syria emails, though he briefly confused them with another, unspecified cache that Sabu hinted Popov helped release. “If you want real access to the emails, I can [give it to you],” Sabu offered. Popov responded ecstatically, saying he could use it to create disinformation and fabricate conspiracies. Undaunted by Popov’s intended use for the emails, Sabu said he’d “try to set it all up soon.”

This exchange occurred several months after WikiLeaks received the first batch of the Syria files and several weeks after WikiLeaks gave the LulzSec hackers private access to a search engine to help parse the Stratfor emails which the group had also provided to WikiLeaks.

19:16 <Sabu> though we did very well on syria.. we owned central syrian bank and got all their emails 19:16 <LoD> and Nepalese hack 19:16 <Sabu> a lot of scandals ... like syria sending russia 5 billion euros before civil unrest and when russia sent warsip to trait of whateves its called 19:16 <LoD> Ive actually checked it RESPECT syria gave me some things to mastermind my next operations those email accounts were of much help to improve our strategy 19:17 <LoD> i give you thumbs up 19:17 <Sabu> well we didn't realease it yet ... that was another small hack you released. if you want real access to emails I can ive you 19:17 <LoD> really? 19:17 <LoD> can you? 19:17 <LoD> man I WILL BE in DEBT 19:17 <LoD> I can utilize it in my release 19:18 <LoD> to create a conspiracy 19:18 <Sabu> ya I'll try to set it all up soon

If Popov acquired early access to the Syria files, it would have been the score of a lifetime, giving him an exclusive early inside look at corporations and governments. However, as any later logs of discussions between Popov and Sabu aren’t part of the leaked file, it’s unclear if Popov actually received early access to the Syria files.

Already by this time period in 2011, some former Anons were expressing concern that their operations were being facilitated by Russian infrastructure.

Some followers came to believe that the leaders sought only personal aggrandisement or were effectively in cahoots with the organised criminals who may have raided Sony’s credit-card hoard after Anonymous knocked down the door. Even stalwarts such as Housh are unhappy that much of Anonymous’s infrastructure is now housed on computers used by Russian criminals. “It’s not like the Russians wanted us to get HBGary, but I want to know personally why they are doing this,” he says of the chat hosts. “Where is the money coming from?”

To be sure: a tie with Anonymous is different than a tie directly with WikiLeaks, even if Anonymous was serving as one of WikiLeaks’ important source streams at the time. Further, Best notes that there’s no evidence in available files that Popov interacted directly with WikiLeaks — nor would there be, given the scope of the publicly available chat logs.

But, particularly given the allegations that Assange fed the Seth Rich hoax as part of an effort to deny that he knew he had gotten the Democratic files from Russia, I’m sure the US government would love to know from him about any ties between WikiLeaks and Russia.

Offering Assange a plea deal might be one way to close the book on WikiLeaks without the political controversy of a trial.

The question, of course, is whether Assange would take one. Admittedly, it’s highly unlikely.

Still, as noted, he repeatedly claimed he’d love to tell all if he could avoid prison altogether. But even in a best case scenario, he’s looking at a long extradition fight from Belmarsh in conditions that are reportedly pretty shitty. A plea deal might be one way to limit how much more time in custody he faces.

Which could bode poorly for people like Chelsea Manning, making significant sacrifices to protect Assange.

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

The Assange Complaint Was Filed the Day the UK Rejected Assange’s Diplomatic Status

EDVA has released the affidavit and original complaint charging Julian Assange with conspiring with Chelsea Manning to crack a password. Two things support the likelihood that this extradition request arose in response to Ecuador’s attempt to get Assange diplomatic status that would allow it or Russia to exfiltrate him from London.

As I noted earlier, the extradition warrant itself dates to December 22. But the complaint and supporting affidavit date to December 21, 2017. That’s the day, according to multiple reports, that the British government denied Ecuador’s request to grant Assange “special designation” as a diplomat.

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.

The Guardian (which is less reliable when it pertains to stories about Assange) claims that this effort was meant to support an exfiltration attempt, possibly to Russia.

Russian diplomats held secret talks in London last year with people close to Julian Assange to assess whether they could help him flee the UK, the Guardian has learned.

A tentative plan was devised that would have seen the WikiLeaks founder smuggled out of Ecuador’s London embassy in a diplomatic vehicle and transported to another country.

One ultimate destination, multiple sources have said, was Russia, where Assange would not be at risk of extradition to the US. The plan was abandoned after it was deemed too risky.

The operation to extract Assange was provisionally scheduled for Christmas Eve in 2017, one source claimed, and was linked to an unsuccessful attempt by Ecuador to give Assange formal diplomatic status.

The supporting affidavit is notable because it is even more troubling than the indictment itself is for its description of Assange’s work with Manning to publish classified documents.

But it’s also notable for the case it makes that Assange took refuge in the Ecuadorian embassy not to hide from the Swedish prosecution but from US prosecution.

Assange has made numerous comments reflecting that he took refuge in the Ecuadorian embassy to avoid extradition and charges in the United States.

For example, in 2013, the WikiLeaks website posted an affidavit by Assange concerning alleged monitoring of his activities and the search and seizure of his property. In the affidavit, Assange acknowledged that he was “granted asylum after a formal assessment by the government of Ecuador in relation to the current and future risks of persecution and cruel, inhuman and degrading treatment in the United States in response to my publishing activities and my political opinion. I remain under the protection of Ecuador in London for this reason.” See https://wikileaks.org/IMG/html/Affidavit_of_Julian_Assange.html.

On May 19, 2017, in response to Sweden’s decision to discontinue its investigation regarding suspected rape by Julian Assange, Assange publicly stated, “While today was an important victory and an important vindication … the road is far from over The war, the proper war, is just commencing. The UK has said it will arrest me regardless. Now the United States, CIA Director Pompeo, and the U.S. Attorney General have said that I and other WikiLeaks staff have no rights … we have no first amendment rights.. .and my arrest and the arrest of our other staffis a priority…. The U.K. refuses to confirm or deny at this stage whether a U.S. extradition warrant is already in the U.K. territory. So, this is a dialogue that we want to happen. Similarly, with the United States, while there have been extremely threatening remarks made, I am always happy to engage in a dialogue with the Department of Justice about what has occurred.” https://www.bloomberg.eom/news/articles/2017-05-19/swedishprosecutors-to-drop-rape-investigation-against-assange.

It seems likely that the UK rejected Ecuador’s request, in part, because the US lodged an extradition request, possibly because they learned of the exfiltration plan.

If so, that may change the extradition calculus significantly, even if Sweden refiles its request. The UK may have already agreed that Assange was only ever fleeing US prosecution. Indeed, their decision back in December 2017 may have served precisely to enable the arrest that occurred last Thursday.

If that’s right, there’s little chance the UK will give precedence to Sweden — though Labour within the UK and a number of entities in the EU are fighting this extradition request.

As I’ve noted, this all took place against the background of the Vault 7 prosecution which implicated Assange in far more activities unrelated to journalism, ones that the United States’ Five Eyes partner would likely be very sympathetic to. And that may well be what this indictment was always a placeholder for. Yes, the government may fill in a larger conspiracy in-between 2010 and 2017. But this action seems to have as much to do with what Assange did in 2017 as he was doing in 2010.

Update: Corrected indictment dating to December 22; I meant the extradition warrant.

The Logistics of the Julian Assange Indictment

The extradition request and indictment have been pending while Vault 7 and Roger Stone have percolated

According to a BuzzFeed report from yesterday’s bail hearing in London, Julian Assange’s extradition warrant was dated December 22, 2017.

That means the extradition request came amid an effort by Ecuador to grant him diplomatic status after which he might be exfiltrated to Ecuador or Russia; the extradition request came the day after the UK denied him 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.

Both events came in the wake of the revocation of Joshua Schulte’s bail after he got caught using Tor, in violation of his bail conditions. And the events came days before Donald Trump’s longtime political advisor Roger Stone told Randy Credico he was about to orchestrate a blanket pardon for Assange.

In early January, Roger Stone, the longtime Republican operative and adviser to Donald Trump, sent a text message to an associate stating that he was actively seeking a presidential pardon for WikiLeaks founder Julian Assange—and felt optimistic about his chances. “I am working with others to get JA a blanket pardon,” Stone wrote, in a January 6 exchange of text messages obtained by Mother Jones. “It’s very real and very possible. Don’t fuck it up.” Thirty-five minutes later, Stone added, “Something very big about to go down.”

The indictment used to submit an extradition request yesterday was approved by an EDVA grand jury on March 6, 2018, 13 months ago and just a few months after the extradition request.

That means the indictment has been sitting there at EDVA since a few days before Mueller obtained warrants to obtain the contents of five AT&T cell phones, one of which I suspect belongs to Roger Stone (see this post for a timeline of the investigation into Stone). The indictment has been sitting there since a few weeks before Ecuador first limited visitors for Julian Assange last March. It has been sitting there for three months before the government finally indicted Joshua Schulte, in June 2018, for the leak of Vault 7 files they had been pursuing for over a year (see this post for a timeline of the investigation into Schulte). It was sitting there when, in July, Mueller rolled out an indictment referring to WikiLeaks as an unindicted co-conspirator with GRU on the 2016 election hacks, without charging the organization. It was also sitting there last July when David House testified about publicizing Chelsea Manning’s case to the grand jury under a grant of immunity. It was sitting there when Schulte got videotaped attempting to leak classified information from jail, making any prosecution far easier from a classified information standpoint; that happened right around the time Ecuador ratcheted up the restrictions on Assange. It had been sitting there for 10 months by the time Mueller indicted Roger Stone for lying about optimizing the WikiLeaks release of documents stolen by Russia, again while naming but not charging WikiLeaks. It had been sitting there for 11 months when Chelsea Manning first got a subpoena to testify before an EDVA grand jury, and a full year before she went public with her subpoena. It had been sitting there for over a year when Mueller announced he was finishing on March 22; likewise it has been sitting there ever since Bill Barr announced Trump’s team hadn’t coordinated with the Russian government but remained silent about coordination with WikiLeaks.

In short, the indictment has been sitting there for quite some time and the extradition warrant even longer, even as several different more recent investigations appear to be relentlessly moving closer to WikiLeaks. It has been sealed, assuming it’s the same as the complaint the existence of which was accidentally revealed late last year because, “due to the sophistication of the defendant and the publicity surrounding the case, no other procedure is likely to keep confidential the fact that Assange has been charged.”

There’s a somewhat obvious reason why it got indicted when it did. As WaPo and others have pointed out, the eight year statute of limitations on the CFAA charges in the indictment would have run last year on March 7, 2018.

But that doesn’t explain why DOJ decided to charge Assange in this case, when Assange’s actions with Vault 7 appear far more egregious, or why the indictment is just being unsealed now. And it doesn’t explain why it got released — without any superseding allegations — now, even while WaPo and CNN report more charges against Assange are coming.

Here’s what I suspect DOJ is trying to do with this indictment.

The discussion of cracking the password takes place as Manning runs out of files to share

First, consider these details about the indictment. As I noted earlier, the overt act it charges as a conspiracy is an agreement to crack a password.

On or about March 8, 2010, Assange agreed to assist Manning in cracking a password stored on United States Department of Defense computers connected to the Secret Internet Protocol Network, a United States government network used for classified documents and communications, as designated according to Executive Order No. 13526 or its predecessor orders.

[snip]

The portion of the password Manning gave to Assange to crack was stored as a “hash value” in a computer file that was accessible only by users with administrative-level privileges. Manning did not have administrative-level privileges, and used special software, namely a Linux operating system, to access the computer file and obtain the portion of the password provided to Assange.

Cracking the password would have allowed Manning to log onto the computers under a username that did not belong to her. Such a measure would have made it more difficult for investigators to identify Manning as the source of disclosures of classified information.

More specifically, the overt act relates to some exchanges revealed in chat logs that have long been public, dating to March 2010 (see this post for a timeline of some related activities from this period, but not this chat; this post describes a chronology of Manning’s alleged leaks). This is a period when Manning had already leaked things to WikiLeaks, including the Collateral Murder video they’re in the process of editing during the conversation and the Iraq and Afghan war logs that were apparently a focus of the David House grand jury testimony.

In the logs, Manning asks whether WikiLeaks wants Gitmo detainee files (a file that, in my opinion, was one of the most valuable leaked by Manning). Assange isn’t actually all that excited because “gitmo is mostly over,” but suggests the files may be useful to defense attorneys (they were! to some of the same defense attorneys defending Assange now!) or if Afghanistan heats up.

Manning says she’s loading one more archive of interesting stuff.

This appears to be the Gitmo files.

Manning explicitly says that’s all she’s got, and then talks about taking some years off to let heat die down, even while gushing about the current rate of change.

Some hours later, amid a discussion about the status of the upload of the Gitmo files that are supposed to be the last file she’s got, Manning then asks Assange if he’s any good at cracking passwords.

He says he has, “passed it onto our lm guy.”

Two days later Assange asks for more information on the hash, stating (as the indictment notes) that he’s had no luck cracking it so far. Then there’s a six day break in the chat logs, at least as presented.

The next day Assange floats getting Manning a crypto phone but then thinks better of it.

These chat logs end the next day, March 18, 2010. As the indictment notes, however, it’s not until ten days later, on March 28, 2010, that Manning starts downloading the State cable files.

Following this, between March 28, 2010, and April 9, 2010, Manning used a United States Department of Defense computer to download the U.S. Department of State cables that WikiLeaks later released publicly.

It’s unclear whether Assange ever cracked the password — but the chat log suggests he involved another person in the conspiracy

Most people have assumed, given what the indictment lays out, that Assange never succeeded in cracking the password. I have no idea whether he did or not, but I’m seeing people base that conclusion on several faulty assumptions. (Update: HackerFantastic notes that Assange couldn’t have broken this password, but goes on to describe how using other code it might be possible; that’s interesting because Manning was alleged to have added additional software onto the network after the initial Linux device, on May 4, 2010.)

First, some people assume that if Assange had succeeded in cracking the password, the indictment would say so. I’m not so sure. The indictment only needs to allege that Assange and Manning entered into a conspiracy — which the indictment deems a password cracking conspiracy — and took an overt act, whether or not the conspiracy itself was successful. The government suggests that Assange’s comment that he’s had “no luck so far” shows that he has taken an overt act, trying to crack it. Nothing else is required for the purposes of the indictment.

Further, several things about the chat log, as received, suggests there may be more going on in the background. There’s the six day gap after that conversation. There’s the contemplation of getting Manning a crypto phone. And then the chat logs as the government has chosen to release them end, though as the government notes, ten days after they end, Manning starts downloading the State cables.

But the record at least suggests that this conspiracy involves at least one more person, the “lm guy.” Maybe Assange was just falsely claiming to have a guy who focused on cracking certain kinds of hashes. Or maybe the government knows who he is.

The reference to him, however, suggests that there’s at least one more person in this conspiracy. The indictment notes there are “other co-conspirators known and unknown to the Grand Jury,” which is the norm for conspiracy indictments. But there are no other details of who else might be included.

Yes, this particular conspiracy is incredibly narrowly conceived, focused on just that password decryption. But there’s also the “Manner and Means of the Conspiracy” language that has (rightly) alarmed journalists so much, describing the goal of acquiring and sharing classified information that WikiLeaks could disseminate, and describing the operational security (Jabber and deleted chat logs) and inducement to accomplish that goal.

In other words, this indictment seems to be both an incredibly narrow charge, focused on a few Jabber conversations between Assange and Manning, and a much larger conspiracy in which Assange and other unnamed co-conspirators help her acquire and transmit classified documents about the US.

The logistics of the conspiracy prosecution(s)

Which brings me back to how this indictment might fit in amidst several larger, parallel efforts to prosecute WikiLeaks in the last 16 months.

This indictment may be the formalization of a complaint used as the basis for what seems to be a hastily drawn extradition request in December 2017, at a time when Ecuador and Russia were attempting to spring Assange, possibly in the wake of the government’s move to detain Schulte.

The indictment does not allege the full Cablegate conspiracy. David House testified months ago. And the government currently has Manning in jail in an attempt to coerce her to cooperate. That coercive force, by the way, may be the point of referencing the Espionage Act in the indictment: to add teeth to the renewed legal jeopardy that Manning might face if she doesn’t cooperate.

But what the indictment does — and did do, yesterday — is serve as the basis to get Assange booted from the embassy and moved into British custody, kicking off formal extradition proceedings.

As a number of outlets have suggested, any extradition process may take a while. Although two things could dramatically abbreviate it. First, Sweden could file its own extradition on the single remaining rape charge against Assange, which might get priority over the US request. Ironically, that might be Assange’s best bet to stay out of US custody for the longest possible time. Alternately, Assange could simply not contest extradition to the US, which would leave him charged in this bare bones indictment that even Orin Kerr suggests is a fairly aggressive charging of CFAA.

Barring either of those things happening, however, the US government now has one suspect in any conspiracy it wants to charge in the custody of a friendly country. It has accomplished that with entirely unclassified allegations, which means any other suspects won’t know anything more than they knew on Wednesday. Anything else it wants to charge — or any other moving parts it needs to pursue — it can now do without worrying too much that Assange will be put in the “boot” of a Russian diplomatic vehicle to be exfiltrated to Russia.

It has between now and at least May 2 — when Assange has his next hearing — to add any additional charges against Assange, while still having them charged under the Rule of Specialty before any possible extradition. It has maybe a month left on the Mueller grand jury.

Meanwhile, several things have happened recently.

First, in recent weeks two things have happened in the Schulte case. His lawyers made yet another bid to get the warrants that justified the initial searches excluded from the protective order. Schulte and his lawyers have been complaining about these warrants from the start, and Schulte’s public comments or leaks about them are part of what got him charged with violating his protective order. From description, it sounds like FBI was parallel constructing other information tying him to the Vault 7 leaks, and fucked up royally in doing so, introducing errors in the process (though the Hal Martin case makes me wonder whether the errors aren’t still more egregious). The government objected to this request, arguing that the warrants would disclose how the CIA stored its hacking documents and asserting that the investigation is definitely ongoing.

The Search Warrant Materials discuss, among other things, the way that the U.S. Intelligence Agency maintained a classified computer system that was integral to the Agency’s intelligence-gathering mission. Broadly disseminating that information would permit a host of potentially hostile actors to glean valuable intelligence about the way the U.S. Intelligence Agency maintained its computer systems or its security protocols, which would harm national security.

[snip]

The defendant’s abbreviated argument for de-designating the Search Warrant Materials is speculative, conclusory, and misguided. First, the defendant claims that the “time for investigation is long gone.” (Def. Let. at 1). The defendant is neither in a position to judge nor the arbiter of when it is appropriate for the Government to end its investigation into one of the largest-ever illegal disclosures of classified information. Simply put, while details are not appropriate for discussion in a public letter, the Government confirms that its investigation is not done and can supply the Court with additional information on an ex parte basis if the Court wishes.

Meanwhile, the government suggested severing the most recent charges — in which it has video surveillance showing Schulte leaking classified or protected information — from the underlying child porn and Vault 7 leaks.

As the Court is aware, trial in this matter is currently set for April 8, 2019. (See Minute Entry for August 8, 2018 Conference). To afford the parties sufficient time to prepare the necessary pretrial motions, including suppression motions and motions pursuant to the Classified Information Procedures Act (“CIPA”), the parties respectfully request that the Court adjourn the trial until November 4, 2019. The parties are also discussing a potential agreement concerning severance, as well as the order of the potentially severed trials. The parties will update the Court on severance and a pretrial motion schedule at or before the conference scheduled for April 10, 2019.

The defense didn’t weigh in on this plan, which (it would seem) would go a long way to eliminating the government’s parallel construction problem. They were supposed to talk about the severance issue in a hearing Monday, but it sounds like the only thing that got discussed was CIA’s refusal to comply with discovery. My guess is that Schulte will try to get those initial warrants and any fruit of them thrown out, and if that doesn’t work then maybe plead down to prevent a life sentence.

Meanwhile, Ecuador has taken steps to roll up people it claims have ties to Assange.

Tuesday, it fired a staffer in the embassy who had been extremely close to Assange (which may be how he learned about the plans to arrest him last week). Then, yesterday, Ecuador detained Swedish coder Ola Bini, alleging he was involved in some of the hacking they’ve accused Assange of. They also claim to know of two Russian hackers involved.

I have no idea if these developments are just Ecuador trying to cover-up corruption or real ties to WikiLeaks or perhaps something in between. There are no trustworthy actors here.

But — as William Arkin also notes — there’s an effort to test whether WikiLeaks has been at the front end of many of these leaks. Aside from WikiLeaks’ reported source for its Saudi Leaks files from Russia, Arkin focuses less on the reasons there are real questions about WikiLeaks’ relationship with Russia. I think we honestly won’t know which of the untrustworthy sides is being more trustworthy until we see the evidence.

Whichever it is, it seems that DOJ is poised to start building out whatever it can on at least one conspiracy indictment against WikiLeaks. The indictment and its implementation yesterday seems primarily to have served as a way to lock down one part — the most volatile one — of the equation. What comes next may assuage concerns about the thinness of this indictment or it may reveal something far more systematic.

In the meantime, Assange is represented by some great lawyers, both in the UK and here. Which at least increases the chances any larger claims DOJ plans to roll out will be tested aggressively.

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

The Dangers of the Julian Assange Indictment

I was traveling yesterday when Julian Assange was arrested and pretty fried once I got back. Thanks to bmaz and Rayne for interesting pieces on his arrest. My initial thoughts on his indictment are influenced by CNN’s early report that DOJ expects to add charges and WaPo’s report on how this case moved forward in the last year, along with Orin Kerr’s opinion — which I share — that this is just a placeholder indictment. I’m going to do two or three posts laying out my thoughts on the indictment. This post will argue that the indictment, as written, is both dangerous and counterproductive to what I presume is a larger effort on DOJ’s behalf to go after Assange for actions that are far more removed from core journalistic ones.

Back in November, I laid out four possible theories of prosecution for Assange (I’ve since came to realize we may see more theories, but these are a good rubric for now) as a way to understand how dangerous such an indictment might be for journalism.

  1. Receiving and publishing stolen information is illegal
  2. Conspiring to release stolen information for maximal damage is illegal
  3. Soliciting the theft of protected information is illegal
  4. Using stolen weapons to extort the US government is illegal

In my opinion, this indictment, as written, is closest to the third theory, which I described this way.

Then there’s the scenario that Emma Best just hit on yesterday: that DOJ would prosecute Assange for soliciting hacks of specific targets. Best points to Assange’s close coordination with hackers going back to at least 2011 (ironically, but in a legally meaningless way, with FBI’s mole Sabu).

This is, in my opinion, a possible way DOJ would charge Assange that would be very dangerous.

At its core, Assange is accused of entering into a password cracking conspiracy with Chelsea Manning on March 8, 2010 to be able to access more files on SIPRNet using someone else’s username and password.

On or about March 8, 2010, Assange agreed to assist Manning in cracking a password stored on United States Department of Defense computers connected to the Secret Internet Protocol Network, a United States government network used for classified documents and communications, as designated according to Executive Order No. 13526 or its predecessor orders.

[snip]

The portion of the password Manning gave to Assange to crack was stored as a “hash value” in a computer file that was accessible only by users with administrative-level privileges. Manning did not have administrative-level privileges, and used special software, namely a Linux operating system, to access the computer file and obtain the portion of the password provided to Assange.

Cracking the password would have allowed Manning to log onto the computers under a username that did not belong to her. Such a measure would have made it more difficult for investigators to identify Manning as the source of disclosures of classified information.

Now, I say this is a dangerous indictment for the reasons I laid out in my earlier post. In cases where the sheer act of obtaining leaked files amounts to a crime — as it is in the case of BuzzFeed source Natalie Edwards leaking Suspicious Activity Reports — then a journalist encouraging his source’s leaks, as Jason Leopold allegedly did when he asked Edwards to look up Prevezon, may be criminalized by this indictment.

That said, actually cracking a password (or trying to do so) is something different than simply directing content requests. Making a journalistic request is not itself a criminal act. Attempting to crack a password with the intent to assume the identity of the person probably amounts to identity theft. So while this indictment, as charged, poses real dangers for Leopold, there is a difference of degree.

What is alleged here is perhaps better translated into the brick-and-mortar situation of a journalist going undercover. There are sometimes real ethical problems when doing so, but going undercover is also sometimes necessary to really get to important stories. Going undercover and committing crimes adds yet another ethical problem — but that, too, might be justified ethically if the law itself is designed to protect the powerful or systematic governmental crime (for example, in the case of some financial misconduct or abusive prison conditions). But going undercover using the real identity of someone else to get a story that amounts to committing a crime is something else entirely, because by doing so, you may end up framing the person whose identity you assume in the crime of obtaining that information.

That said, attempted identity theft is not charged here, and so the indictment, as laid out, is closer to the Jason Leopold situation and so poses real risks for important journalism.

DOJ made the risks worse by language describing the matter and means of the conspiracy to include operational security like using Jabber and deleting chat logs and — worst of all — “Assange encourag[ing] Manning to provide information and records from departments and agencies of the United States.” I think all this language, which describes the techniques many journalists working in classified areas may use — could become important to DOJ’s larger project down the road. But I also think including it in this bare bones indictment unnecessarily exposes DOJ to claims that it is trying to criminalize core journalistic behaviors. It also exhibits DOJ’s long-standing suspicion of civilians, of any sort, who take reasonable measures using legal tools to preserve privacy. DOJ is effectively making a normative judgment about privacy tools when it is in the business of making legal judgments.

Moreover, including these descriptions of non-criminal conduct legitimately opened DOJ up for justifiable panic among journalists, who are focusing on this language rather than the password cracking language that is the overt act alleged in the conspiracy, that this indictment sets a dangerous precedent. This is not an indictment for publishing true information that a source broke the law to provide, as many responses to the indictment are claiming, but the press can be excused for describing it as such because of this extraneous language that does relate to core journalistic functions (this is basically the argument Margaret Sullivan makes in this great column).

Finally, one more thing contributed to the justifiable panic among the press. The indictment itself charges only conspiracy to commit computer intrusion and violations of the Computer Fraud and Abuse Act (which Kerr, in his thread, suggested may be aggressive charges in and of themselves). But then in the body of the indictment, it states,

to intentionally access a computer, without authorization and exceeding authorized access, to obtain information from a department and agency of the United States in furtherance of a criminal act in violation of the laws of the United States, that is, a violation of Title 18, United States Code, Sections 641, 793(c), and 793(e).

While it otherwise doesn’t allege a violation of the Espionage Act, here it invokes it, effectively shifting the described crime from CFAA to Espionage. There are likely tactical reasons why DOJ did this, which I’ll address in the second posts of this series. But whatever reason they had for invoking the Espionage Act, it rightly heightened the panic among journalists.

Had DOJ done it differently, it might have gotten a different response to the Assange arrest, but now, because of its bone-headed suspicion of civilians using privacy measures and premature invocation of the Espionage Act, DOJ rightly lost the initial round of PR in what will likely be a long campaign and caused justifiable panic among the press.

But as I said above: this indictment is likely just the first installment of a larger set of descriptions of what Assange has done.

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