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.

In Subpoenaing Chelsea Manning, the Government Picks a Likely Needless Fight with the Transparency Community Again

I’m bumping this post from earlier in the week. After refusing to answer questions before the grand jury under a grant of immunity, the Judge in this matter, Claude Hilton, held Chelsea Manning in contempt. She has been booked into the Alexandria jail until she either answers the questions or the grand jury expires. 

Here’s an interview Manning did just before going in for her contempt hearing. 

As NYT first reported, a grand jury in EDVA has subpoenaed Chelsea Manning to testify. She has said she’ll fight the subpoena.

Ms. Manning, who provided a copy of the subpoena to The New York Times, said that her legal team would file a motion on Friday to quash it, arguing that it would violate her constitutional rights to force her to appear. She declined to say whether she would cooperate if that failed.

“Given what is going on, I am opposing this,” she said. “I want to be very forthright I have been subpoenaed. I don’t know the parameters of the subpoena apart from that I am expected to appear. I don’t know what I’m going to be asked.”

The WaPo adds details about a grand jury appearance last year by David House. Notably, he appears to have been asked about the Iraq and Afghan war logs, not the State department cables that have been more central to public reporting based off WikiLeaks releases.

Last July, computer expert David House, who befriended Manning in 2010 at a hacker space in Boston he founded, testified for 90 minutes before the grand jury. In an interview, House said he met the WikiLeaks founder in January 2011 while Assange was under house arrest at Ellingham Hall, a manor house 120 miles northeast of London. Assange was fighting an extradition request by Sweden, where he faced an inquiry into allegations of sexual assault.

Assange asked House to help run political operations for WikiLeaks in the United States. “Specifically, he wanted me to help achieve favorable press for Chelsea Manning,” he said.

House, who testified in exchange for immunity, said the grand jury was interested in his relationship with Assange. “They wanted full insight into WikiLeaks, what its goals were and why I was associated with it,” he said. “They wanted explanations of why certain things occurred and how they occurred. . . . It was all related to disclosures around the war logs.”

The WaPo also argues that Manning will have a tough time fighting this subpoena, which is probably right, though I’m not sure how her legal exposure works given the commutation. She may have a real basis to challenge the subpoena (or at least invoke the Fifth) based off a double jeopardy claim.

Setting aside the legal questions though, I think this subpoena raises real tactical ones. Unless the government believes they need to show a newly-understood pattern of behavior on the part of WikiLeaks dating to before the time Julian Assange took refuge in Ecuador’s embassy as part of a bid to boot him, I think this move is likely to backfire, even from the most hawkish government perspective.

Subpoenaing people for stuff that happened nine years ago, when WikiLeaks’ actions are more immediately suspect in the context of the Vault 7 releases, only makes sense if prosecutors are pursuing some new theory of criminal activity. Contra what Steve Vladeck says to the WaPo (that Assange’s charges last year may be about a 10 year statute of limitations tied to the Espionage Act), prosecutors may be pursuing a conspiracy charge that has continued to more recent years, of which the 2009 actions were the first overt acts (which would also toll the statutes of limitation).

But it’s not just the US government that appears to have a new understanding of WikiLeaks’ actions. So do people who have been involved with the organization over the years, particularly in the wake of WikiLeaks’ 2016 efforts to help Russia elect Donald Trump. The public reversals on supporting Assange from Xeni Jardin, Barrett Brown, and Emma Best have been accompanied by a whole lot of reporting (some of it obviously based on leaks of communications from other former insiders) that lay out activities that go beyond the passive receipt of public interest documents and subsequent publication of them. More will surely be coming.

What journalists and activists are presenting about WikiLeaks doesn’t necessarily get the government beyond a First Amendment defense — certainly not one that might put a lot of respectable investigative reporting at risk. But it does undermine Assange’s claims to be a mere publisher.

And unless there’s a really good legal reason for the government to pursue its own of evolving theory of WikiLeaks’ activities, it doesn’t make sense to rush where former WikiLeaks supporters are headed on their own. In virtually all venues, activists’ reversed understanding of WikiLeaks is bound to have more credibility (and almost certainly more nuanced understanding) than anything the government can offer. Indeed, that would likely be especially true, internationally, in discussions of Assange’s asylum claim.

A charge against Assange in conjunction with Vault 7 or the 2016 election operation might accelerate that process, without foreclosing the government’s opportunity to present any evolved understanding of WikiLeaks’ role in the future (especially if tied to conspiracy charges including the 2016 and 2017 activities).

But getting into a subpoena fight with Chelsea Manning is likely to have the opposite effect.

That’s true, in part, because post-commutation a lot of people worry about the impact renewed pressure from the government against Manning will have, regardless of the legal soundness of it. The government wanted Aaron Swartz to become an informant when they ratcheted up the pressure on him between 2011 and 2013. They didn’t get that information. And his suicide has become a key symbol of the reasons to distrust law enforcement and its ham-handed legal tactics.

There’s even good reason to believe history will likely eventually show that FBI’s use of Sabu as an informant likely didn’t get them what they thought they got. And it’s not just Sabu. It is my strong suspicion that we’ll eventually learn that at key moments, the known instincts and habits of the FBI were exploited just as badly as the good faith efforts of transparency activists, even before the Bureau’s bumbling efforts played the perhaps decisive  role in the 2016 election.

We’re at a moment when, amid rising tribalism, both federal law enforcement and the transparency community are actually reassessing. That reassessment is key to being less susceptible to exploitation, on both sides.

But ratcheting up the stakes, as a subpoena of Manning at this moment amounts to, will reverse that trend.

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. 

Government Requests Harsh New Conditions Governing Joshua Schulte’s Access to Classified Discovery

When we last heard from Joshua Schulte, he had been thrown in solitary in response to FBI’s discovery that he had a cellphone in his jail cell at Metropolitan Correctional Center, after which FBI discovered he had other devices and 13 email and social media accounts.

In or about early October 2018, the Government learned that Schulte was using one or more smuggled contraband cellphones to communicate clandestinely with third parties outside of the MCC. The Government and the FBI immediately commenced an investigation into Schulte’s conduct at the MCC. That investigation involved, among other things, the execution of six search warrants and the issuance of dozens of grand jury subpoenas and pen register orders. Pursuant to this legal process, in the weeks following the Government’s discovery of Schulte’s conduct at the MCC, the FBI has searched, among other things, the housing unit at the MCC in which Schulte was detained; multiple contraband cellphones (including at least one cellphone used by Schulte that is protected with significant encryption); approximately 13 email and social media accounts (including encrypted email accounts); and other electronic devices.

Today, the government asked for supplemental protective order governing Schulte’s access to a special secure facility from which he can review classified discovery. Among other things, it requires his attorney to be searched for devices upon entering the facility, it requires him to remain in manacles throughout the time he is there, and sets up a clean team to monitor both what happens in the room and the computer the defense uses to review discovery.

The defense council will be screened for electronic devices prior to entering the SCIF when she meets with her client. Once inside the Secure Area, the defendant will be allowed to meet with cleared counsel during normal business hours. The Secure Area contains equipment (the “Computer Equipment”) to allow the defendant and cleared defense counsel to review the Classified Information produced by the Government. The Computer Equipment shall be used only for purposes of preparing the defense, and is enabled to log computer activity occurring on the equipment and is equipped with security measures. These logs may be reviewed by law enforcement agents or personnel who are not involved in the prosecution of the defendant (the “Wall Team”). In the event the Wall Team determines the Computer Equipment has been used in an unauthorized manner, including by attempting to circumvent any security measures or logging features, the Wall Agent will report that information to the CISO, who will notify the Court for further action.

When the defendant is present in the Secure Area, the Secure Area will be monitored for security purposes through closed circuit television (“CCTV”) by the Marshals and an authorized FBI agent for all scheduled productions. The CCTV will allow only for visual monitoring of the defendant and cleared defense counsel, and will not include audio. The CCTV will not be recorded. Should any Marshal or member of the Wall Team hear any conversation between the defendant and any of his counsel, those conversations will not be communicated to any member of the government prosecution team, including, but not limited to attorneys, agents, and support staff.

The Defendant will be in full restraints during the time he is in the SCIF and secured to a bolt in the floor. The Defendant will be stripped searched after departing the SCIF at the conclusion of each session. The Defense attorney will sign a waiver of liability due to the fact she will be alone and in close proximity to the defendant. The USMS reserves the right to terminate these meetings if security issues arise during any session.

While there’s no hint that one of Schulte’s defense attorneys was responsible for the past acquisition of contraband, the FBI sure seems intent on making sure that avenue isn’t possible going forward.

I believe when Schulte was arraigned on the new charge of leaking from jail, the government said that CIA hadn’t continued to give Schulte access to classified information after he left. Which suggests the stuff he tried to leak from jail included information he saw in discovery (presumably including how the FBI figured out he was the one leaking CIA’s tools).

As I disclosed in 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 Year Long Trump Flunky Effort to Free Julian Assange

The NYT has an unbelievable story about how Paul Manafort went to Ecuador to try to get Julian Assange turned over. I say it’s unbelievable because it is 28 paragraphs long, yet it never once explains whether Assange would be turned over to the US for prosecution or for a golf retirement. Instead, the story stops short multiple times of what it implies: that Manafort was there as part of paying off Trump’s part of a deal, but the effort stopped as soon as Mueller was appointed.

Within a couple of days of Mr. Manafort’s final meeting in Quito, Robert S. Mueller III was appointed as the special counsel to investigate Russian interference in the 2016 election and related matters, and it quickly became clear that Mr. Manafort was a primary target. His talks with Ecuador ended without any deals.

The story itself — which given that it stopped once Mueller was appointed must be a limited hangout revealing that Manafort tried to free Assange, complete with participation from the spox that Manafort unbelievably continues to employ from his bankrupt jail cell — doesn’t surprise me at all.

After all, the people involved in the election conspiracy made multiple efforts to free Assange.

WikiLeaks kicked off the effort at least by December, when they sent a DM to Don Jr suggesting Trump should make him Australian Ambassador to the US.

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

Weeks later, Hannity would go to the Embassy to interview Assange. Assange fed him the alternate view of how he obtained the DNC emails, a story that would be critical to Trump’s success at putting the election year heist behind him, if it were successful. Trump and Hannity pushed the line that the hackers were not GRU, but some 400 pound guy in someone’s basement.

Then the effort actually shifted to Democrats and DOJ. Starting in February through May 2017, Oleg Deripaska and Julian Assange broker Adam Waldman tried to convince Bruce Ohr or Mark Warner to bring Assange to the US, using the threat of the Vault 7 files as leverage. In February, Jim Comey told DOJ to halt that effort. But Waldman continued negotiations, offering to throw testimony from Deripaska in as well. He even used testimony from Christopher Steele as leverage.

This effort has been consistently spun by the Mark Meadows/Devin Nunes/Jim Jordan crowd — feeding right wing propagandists like John Solomon — as an attempt to obstruct a beneficial counterintelligence discussion. It’s a testament to the extent to which GOP “investigations” have been an effort to spin an attempt to coerce freedom for Assange.

Shortly after this effort failed, Manafort picked it up, as laid out by the NYT. That continued until Mueller got hired.

There may have been a break (or maybe I’m missing the next step). But by the summer, Dana Rohrabacher and Chuck Johnson got in the act, with Rohrabacher going to the Embassy to learn the alternate story, which he offered to share with Trump.

Next up was Bill Binney, whom Trump started pushing Mike Pompeo to meet with, to hear Binney’s alternative story.

At around the same time, WikiLeaks released the single Vault 8 file they would release, followed shortly by Assange publicly re-upping his offer to set up a whistleblower hotel in DC.

Those events contributed to a crackdown on Assange and may have led to the jailing of accused Vault 7 source Joshua Schulte.

In December, Ecuador and Russia started working on a plan to sneak Assange out of the Embassy.

A few weeks later, Roger Stone got into the act, telling Randy Credico he was close to winning Assange a pardon.

These efforts have all fizzled, and I suspect as Mueller put together more information on Trump’s conspiracy with Russia, not only did the hopes of telling an alternative theory fade, but so did the possibility that a Trump pardon for Assange would look like anything other than a payoff for help getting elected. In June, the government finally got around to charging Schulte for Vault 7. But during the entire time he was in jail, he was apparently still attempting to leak information, which the government therefore obtained on video.

Ecuador’s increasing crackdown on Assange has paralleled the Schulte prosecution, with new restrictions, perhaps designed to provide the excuse to boot Assange from the Embassy, going into effect on December 1.

Don’t get me wrong: if I were Assange I’d use any means I could to obtain safe passage.

Indeed, this series of negotiations — and the players involved — may be far, far more damning for those close to Trump. Sean Hannity, Oleg Deripaska, Paul Manafort, Chuck Johnson, Dana Rohrabacher, Roger Stone, and Don Jr, may all worked to find a way to free Assange, all in the wake of Assange playing a key role in getting Trump elected. And they were conducting these negotiations even as WikiLeaks was burning the CIA’s hacking tools.

Time Machine: 2011 to 2012 WikiLeaks Is not 2018 WikiLeaks

Since DOJ confirmed last week that it does have at least one sealed criminal complaint against Julian Assange, WikiLeaks has adopted a notable defense strategy. In most of their responses, WikiLeaks has claimed a continuity between what it has done in the last two years and what it was doing in 2010, when the US government first took aggressive action against WikiLeaks.

For example, this timeline claims vindication of persistent claims among WikiLeaks supporters that Assange had already been indicted, even while linking to reports that make it clear DOJ has changed its approach recently (and ignoring, entirely, the NYT report that says the charge dates to this summer and which WikiLeaks’ Twitter feed attacks elsewhere).

November: US prosecutors inadvertently reveal that Julian has been charged under seal (i.e., confidentially) in the US – something which WikiLeaks and others have long said but which has been denied by some US officials. The document making the admission was written by Assistant US Attorney Kellen S Dwyer. The Wall Street Journal reports that “over the past year, US prosecutors have discussed several types of charges they could potentially bring against Mr. Assange”. It notes that charges against Julian could include violating the US Espionage Act, which criminalises releasing information regarding US national defence.

Assange’s UK lawyer, Jennifer Robinson, did the same in an appearance with MSNBC. She claimed  that the charge came out of the investigation started in 2010 in response to WikiLeaks’ publication of US Diplomatic cables, the Iraq war logs, the Afghan war logs, which she argues (correctly, I’d agree) was demonstrated to be in the public interest and had been published by other media outlets, including the NYT. She says this criminal charge proves it was correct for Assange to have sought asylum from Ecuador. And she emphasized that Assange would be extradited “for publishing truthful information.” She repeated “public interest” over and over.

Another Tweet RTed by WikiLeaks claims that Assange had been indicted as early as 2011 and the Australian government knew about it.

Finally, another Tweet purports to lay out the possible charges against Assange, which it describes as:

  • Espionage: 18 U.S.C. § 793(d) – imprisonment up to 10 years
  • Conspiracy to commit espionage: 18 U.S.C. § 793(g) – imprisonment up to 10 years
  • The theft or conversion of property belonging to the United States government: 18 U.S.C. § 641 – imprisonment up to 10 years
  • Violation of the Computer Fraud and Abuse Act: 18 U.S.C. § 1030 – imprisonment up to 10 years
  • (general) Conspiracy: 18 U.S.C. § 371 – imprisonment up to 5 years

It bases that claim on this post from early 2015 describing the late 2014 notice to WikiLeaks of warrants served on Google two and a half years earlier (so around June 2012, which is when Assange first took refuge in the Ecuadorian embassy).

In other words, WikiLeaks is working public opinion by pretending it is being prosecuted for the stuff it did in 2011, even to the point of claiming that news of a recent complaint proves that Assange has been indicted all this time. It is true that the prosecutor who made the cut-and-paste error that revealed the existence of a complaint, Kellen Dwyer, has reportedly been on the WikiLeaks investigative team for years. But that doesn’t mean, at all, that the US prosecution is in any way related to those earlier actions.

The reports of both the WSJ and NYT seem to prove the opposite. Whether because the Trump Administration that WikiLeaks worked so hard to elect turned out to be far less respectful of freedom of the press than the Obama Administration, or because the US started collecting more aggressively on WikiLeaks and therefore learned more about its operations, or because the nature of Assange’s more recent actions are fundamentally different from what he did in 2011, DOJ came to charging Assange this summer when Eric Holder refused to do so. Indeed, while no one has confirmed this one way or another, the assumption has been that Assange’s charges relate either to his involvement in the 2016 Russian hack-and-leak (though that would presumably be charged in DC) or his involvement in the 2017 Vault 7 and Vault 8 files as well as his exploitation of them.

The possible crimes may have expanded, too. Espionage is definitely still a possibility, particularly given how DOJ charged accused Vault 7 leaker Joshua Schulte, including possibly suggesting his leaks were designed to help another nation (presumably Russia). If Assange had advance knowledge of any of the Russian hacks (or the Peter Smith negotiated efforts to obtain Hillary’s server emails), he might be exposed to CFAA as well. And if he is charged by Mueller, he will surely be charged with at least one conspiracy charge as well; WikiLeaks was already described as an unindicted co-conspirator in the GRU indictment.

But there may well be other charges, starting with extortion or something akin to it for the way Assange tried to use the threat of the release of the Vault 7 documents to obtain a pardon. Some of his actions might also amount to obstruction. Yochai Benkler’s latest post also imagines Assange may have coordinated more closely with Russian intelligence, which might lead to different charges.

WikiLeaks’ attempts to rest on its earlier laurels is telling, for several reasons. It suggests they and their supporters don’t seem to want to defend Assange’s more recent actions. I find it remarkable, for example, that Robinson didn’t mention how many stories the NYT and WaPo wrote based on the 2016 files, which would support her argument that the files were newsworthy.

The attempt to pretend Assange is being prosecuted for his earlier actions seems to serve another purpose — to defend his years of asylum claims, which are also the basis for his claims to be a victim of US political targeting (and the premise for his demands for immunity on threat of releasing the Vault 7 files). Don’t get me wrong. I think some of the things DOJ is known or suspected to have done in 2010 and 2011 are problematic. But those did not directly merit an asylum claim (and in fact they preceded Assange’s asylum claim by over a year).

That may, in turn, serve to obscure what Assange wanted immunity for in coercive negotiations that started in 2017: Was it 2011, his role in publishing the State cables? Or was it 2016, as his offers to explain what (he claims) really happened in 2016 would suggest?

Whichever it is, WikiLeaks seems to have a lot staked on making a defense of Assange’s 2011 activities. Which suggests they’re a lot less confident they can defend his 2016 and 2017 activities.

The Theory of Prosecution You Love for Julian Assange May Look Different When Applied to Jason Leopold

The WaPo confirmed something Seamus Hughes disclosed last night: Sometime before August 22, EDVA had filed a sealed complaint (not indictment) against Julian Assange.

WikiLeaks founder Julian Assange has been charged under seal, prosecutors inadvertently revealed in a recently unsealed court filing — a development that could significantly advance the probe into Russian interference in the 2016 election and have major implications for those who publish government secrets.

The disclosure came in a filing in a case unrelated to Assange. Assistant U.S. Attorney Kellen S. Dwyer, urging a judge to keep the matter sealed, wrote that “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.” Later, Dwyer wrote the charges would “need to remain sealed until Assange is arrested.”

Dwyer is also assigned to the WikiLeaks case. People familiar with the matter said what Dwyer was disclosing was true, but unintentional.

The confirmation closely follows a WSJ story describing increased confidence that the US will succeed in extraditing Assange for trial.

The confirmation that Assange has been charged has set off a frenzy, both among Assange supporters who claim this proves their years of claims he was indicted back in 2011 and insisting that charging him now would amount to criminalizing journalism, and among so-called liberals attacking Assange lawyer Barry Pollack’s scolding of DOJ for breaking their own rules.

I’ve long been on record saying that I think most older theories of charging Assange would be very dangerous for journalism. More recently, though, I’ve noted that Assange’s actions with respect to Vault 7, which had original venue in EDVA where the Assange complaint was filed (accused leaker Joshua Schulte waived venue in his prosecution), go well beyond journalism. That said, I worry DOJ may have embraced a revised theory on Assange’s exposure that would have dire implications for other journalists, most urgently for Jason Leopold.

There are, roughly, four theories DOJ might use to charge Assange:

  • Receiving and publishing stolen information is illegal
  • Conspiring to release stolen information for maximal damage is illegal
  • Soliciting the theft of protected information is illegal
  • Using stolen weapons to extort the US government is illegal

Receiving and publishing stolen information is illegal

The first, theory is the one that Obama’s DOJ rejected, based on the recognition that it would expose NYT journalists to prosecution as well. I suspect the Trump Administration will have the same reservations with such a prosecution.

Conspiring to release stolen information for maximal damage is illegal

The second imagines that Assange would be charged for behavior noted in the GRU indictment — WikiLeaks’ solicitation, from someone using the persona of Guccifer 2.0, of material such that it would be maximally damaging to Hillary Clinton.

On or about June 22, 2016, Organization 1 sent a private message to Guccifer 2.0 to “[s]end any new material [stolen from the DNC] here for us to review and it will have a much higher impact than what you are doing.” On or about July 6, 2016, Organization 1 added, “if you have anything hillary related we want it in the next tweo [sic] days prefable [sic] because the DNC [Democratic National Convention] is approaching and she will solidify bernie supporters behind her after.” The Conspirators responded, “ok . . . i see.” Organization 1 explained, “we think trump has only a 25% chance of winning against hillary . . . so conflict between bernie and hillary is interesting.”

After failed attempts to transfer the stolen documents starting in late June 2016, on or about July 14, 2016, the Conspirators, posing as Guccifer 2.0, sent Organization 1 an email with an attachment titled “wk dnc link1.txt.gpg.” The Conspirators explained to Organization 1 that the encrypted file contained instructions on how to access an online archive of stolen DNC documents. On or about July 18, 2016, Organization 1 confirmed it had “the 1Gb or so archive” and would make a release of the stolen documents “this week.”

Significantly, WikiLeaks (but not Roger Stone) was referred to in the way an unidicted co-conspirator normally is, not named, but described in such a way to make its identity clear.

This is a closer call. There is a Supreme Court precedent protecting journalists who publish stolen newsworthy information. But it’s one already being challenged in civil suits in ways that have elicited a lot of debate. Prosecuting a journalist for trying to do maximal damage actually would criminalize a great deal of political journalism, starting with but not limited to Fox. Note that when the founders wrote the First Amendment, the norm was political journalism, not the so-called objective journalism we have now, so they certainly didn’t expect press protections to be limited to those trying to be fair to both sides.

Such a charge may depend on the degree to which the government can prove foreknowledge of the larger agreement with the Russians to damage Hillary, as well as the illegal procurement of information after WikiLeaks expressed an interest in information damaging Hillary.

Mueller might have evidence to support this (though there’s also evidence that WikiLeaks refused to publish a number of things co-conspirators leaked to them, including but not limited to the DCCC documents). The point is, we don’t know what the fact pattern on such a prosecution would look like, and how it would distinguish the actions from protected politically engaged journalism.

Soliciting the theft of protected information is illegal

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. I’m particularly worried because of the way the DOJ charged Natalie Mayflower Edwards for leaking Suspicious Activity Reports to Jason Leopold. Edwards was charged with two crimes: Unauthorized Disclosure of Suspicious Activity Reports and Conspiracy to Make Unauthorized Disclosures of Suspicious Activity Reports (using the same Conspiracy charge that Mueller has been focused on).

In addition to describing BuzzFeed stories relying on SARs that Edwards saved to a flash drive by October 18, 2017 and then January 8, 2018, it describes a (probably Signal) conversation from September 2018 where Leopold — described in the manner used to describe unindicted co-conspirators — directed Edwards to conduct certain searches for material that ended up in an October story on Prevezon, a story published the day before Edwards was charged.

As noted above, the October 2018 Article regarded, among other things, Prevezon and the Investment Company. As recently as September 2018, EDWARDS and Reporter-1 engaged in the following conversation, via the Encrypted Application, in relevant part:

EDWARDS: I am not getting any hits on [the CEO of the Investment Company] do you have any idea what the association is if I had more information i could search in different areas

Reporter-1: If not on his name it would be [the Investment Company]. That’s the only other one [The CEO] is associated with Prevezon Well not associated His company is [the Investment Company]

Based upon my training and experience, my participation in the investigation, and my conversations with other law enforcement agents familiar with the investigation, I believe that in the above conversation, EDWARDS was explaining that she had performed searches of FinCEN records relating to Prevezon, at Reporter-l’s request, in order to supply SAR information for the October 2018 Article.

Edwards still has not been indicted, two weeks after her arraignment. That suggests it’s possible the government is trying to persuade her to plead and testify against Leopold in that conspiracy, thereby waiving indictment. The argument, in that case, would be that Leopold went beyond accepting stolen protected information, to soliciting the theft of the information.

This is the model a lot of people are embracing for an Assange prosecution, and it’s something that a lot of journalists not named Jason Leopold also do (arguably, it’s similar but probably more active than what James Rosen got dubbed a co-conspirator in the Stephen Jin-Woo Kim case).

Charging Leopold in a bunch of leaks pertaining to Russian targets would be a nice way (for DOJ, not for journalism) to limit any claim that just Assange was being targeted under such a theory. Indeed, it would placate Trump and would endanger efforts to report on what Mueller and Congress have been doing. Furthermore, it would be consistent with the aggressive approach to journalists reflected in the prosecution of James Wolfe for a bunch of leaks pertaining to Carter Page, which involved subpoenaing years of Ali Watkins’ call records.

In short, pursuing Leopold for a conspiracy to leak charge would be consistent with — and for DOJ, tactically advantageous — the theory under which most people want Assange charged.

Using stolen weapons to extort the US government is illegal

Finally, there’s the fourth possibility, and one I think is highly likely: charging Assange for his serial efforts to extort a pardon from the US government by threatening to release the Vault 7 (and ultimately, a single Vault 8 live malware) files.

This post shows how, starting in January 2017, Assange (and Oleg Deripaska) representative Adam Waldman was reaching out to top DOJ officials trying to negotiate a deal and using the release of the Vault 7 documents as leverage.

This post shows how, the second time Assange tweeted Don Jr asking for an Ambassadorship, he included a threatening reference to Vault 8, WikiLeaks’ name for the actual malware stolen and leaked from CIA, the first file from which Assange had released days earlier.

[B]ack in November 2017, some outlets began to publish a bunch of previously undisclosed DMs between Don Jr and Wikileaks. Most attention focused on Wikileaks providing Don Jr access to an anti-Trump site during the election. But I was most interested in Julian Assange’s December 16, 2016 “offer” to be Australian Ambassador to the US — basically a request for payback for his help getting Trump elected.

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

In the wake of the releases, on November 14, 2017, Assange tweeted out a follow-up.

As I noted at the time, the offer included an implicit threat: by referencing “Vault 8,” the name Wikileaks had given to its sole release, on November 9, 2017 of an actual CIA exploit (as opposed to the documentation that Wikileaks had previously released), Assange was threatening to dump more hacking tools, as Shadow Brokers had done before it. Not long after, Ecuador gave Assange its first warning to stop meddling in other countries politics, explicitly pointing to his involvement in the Catalan referendum but also pointing to his tampering with other countries. That warning became an initial ban on visitors and Internet access in March of this year followed by a more formal one on May 10, 2018 that remains in place.

Notably, Ecuador may have warned Assange back then to stop releasing America’s malware from their Embassy; those warnings have laid the groundwork for the rigid gag rules recently imposed on Assange on risk of losing asylum.

Immediately after this exchange, accused Vault 7/8 leaker Joshua Schulte had some Tor accesses which led to him losing bail. They didn’t, however, lead BOP to take away his multiple devices (!?!?!). Which means that when they raided his jail cell on or around October 1, they found a bunch of devices and his activity from 13 email and social media accounts. Importantly, DOJ claims they also obtained video evidence of Schulte continuing his efforts to leak classified information.

The announcement of that raid, and the additional charges against Schulte, coincided with a period of increased silence from WikiLeaks, broken only by last night’s response to the confirmation Assange had been charged.

I think it possible and journalistically safe to go after Assange for releasing stolen weapons to extort a criminal pardon. But most of the other theories of prosecuting Assange would also pose real risks for other journalists that those rooting for an Assange prosecution appreciate and rely on.

As I disclosed in 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. 

US Government Reveals It Has Video Evidence of Joshua Schulte Sharing Classified Information as Ecuador Restricts Assange’s Legal Visits

In a letter sent Thursday to Paul Crotty, the judge in the case of alleged Vault 7 WikiLeaks source, Joshua Schulte, prosecutors described the investigation conducted when, “in or about early October 2018,” they discovered he had been communicating clandestinely with third parties outside of the Metropolitan Corrections Center, where he has been held since December. They described discovering a truly stupendous amount of communications gear to store in a jail cell, amounting to multiple cell phones and other devices, from which Schulte was running 13 email and social media accounts.

In or about early October 2018, the Government learned that Schulte was using one or more smuggled contraband cellphones to communicate clandestinely with third parties outside of the MCC. The Government and the FBI immediately commenced an investigation into Schulte’s conduct at the MCC. That investigation involved, among other things, the execution of six search warrants and the issuance of dozens of grand jury subpoenas and pen register orders. Pursuant to this legal process, in the weeks following the Government’s discovery of Schulte’s conduct at the MCC, the FBI has searched, among other things, the housing unit at the MCC in which Schulte was detained; multiple contraband cellphones (including at least one cellphone used by Schulte that is protected with significant encryption); approximately 13 email and social media accounts (including encrypted email accounts); and other electronic devices.

Now, the prosecutors use that word “encrypted” twice, as if it means extra spooky, but these days, a cellphone with significant encryption could mean an iPhone (though in jail Schulte might be able to get state of the art spook or crook phones) and “encrypted email accounts” often means ProtonMail.

In any case, that’s a whole lot of legal process for a one month investigation of someone sitting in a jail cell (Schulte was moved to solitary when the investigation started on October 1), but then Schulte allegedly had a shit-ton of hardware. The 6 search warrants were presumably used for Schulte’s devices, and the “dozens of grand jury subpoenas and pen registers” would probably have been used for those email and social media accounts, perhaps with both used for each account (I have a working theory that for encrypted comms it may take more than one pen register to get the data).

Schulte was using all this hardware and software, according to the prosecutors, to — among other things — do two things: send details about the search warrants to investigate him, as well as yet more classified information, to third parties.

As a result of these searches and other investigative steps, the Government discovered that Schulte had, among other things, (i) transmitted classified information to third parties, including by using an encrypted email account, and (ii) transmitted the Protected Search Warrant Materials to third parties in direct contravention of the Court’s Protective Order and the Court’s statements at the May 21 conference.

The prosecutors included a superseding indictment with their letter, adding two extra counts to his already life sentence-threatening indictment: a new Count Eleven, which is contempt of court for blowing off the protective order covering his search warrant starting in April, and a new Count Four, which is another count of transmitting and attempting to transmit unlawfully possessed national defense information (793(e)) during the period he has been in MCC.

With regards to Count Eleven, on Monday a letter Schulte sent to Judge Crotty that was uploaded briefly to PACER (I believe this is the third time Schulte has succeeded in getting such letters briefly uploaded to the docket), revealing that he had been moved to solitary, but also complaining about corrections the government had made to his original search warrant:

I beg you Judge Crotty to read the first search warrant affidavit and the government’s Brady letter; the FBI outright lied in that affidavit and now acknowledge roughly half of these lies. Literally, they [sic] “error” on seeing dates of 3/7 where there were only 3/2 dates and developing their entire predicate based on fallacious reasoning and lies. They “error” in seeing three administrators where there were “at least 5” (ie. 10). They [sic] “error” in where the C.I. was stolen who had access, and how it could be taken — literally everything.

While I absolutely don’t rule out the government either focused on Schulte back in March 2017 for reasons not disclosed in the search warrant application, or that they parallel constructed the real reasons badly (both of which would be of significant interest, but both of which his very competent public defender can deal with), the docket suggests the Vault 7 case against him got fully substantiated after the porn case, perhaps because of the stuff he did last year on Tor that got him jailed in the first place. As I noted, that Tor activity closely followed one of Julian Assange’s more pubic extortion attempts using the Vault 8 material Schulte is accused of sharing, though Assange has made multiple private extortion attempts both before and since.

Which brings me to the second new charge, transmitting and attempting to transmit national defense information to a third party, with a time span of December 2017 to October 2018. Effectively, the government claims that even after Schulte was jailed last December, he continued to share classified information.

I’m particularly interested in the government’s use of “attempted” in that charge, not used elsewhere. The time period they lay out, after all, includes a period when Ecuador restricted Julian Assange’s communication. Effectively, the government revealed on Wednesday that they have video evidence of Schulte sharing classified information with … someone.

Meanwhile, in the Ecuadoran embassy in London, things have been heating up between Assange and his hosts.

About halfway through the period after which Schulte had been put into solitary so the government could investigate a bunch of communications devices they claim they didn’t know about before around October 1, Ecuador announced what seemed to be a relaxation of restrictions on Assange, but actually was more of an ultimatum. He could have visitors, but first they’d have to apply 3 days in advance and supply their social media handles and identifying details for any devices they wanted to bring with them. Assange, too, has to register all his devices, and only use Ecuador’s wifi. If anyone uses unapproved devices, they’ll be deemed a security threat to Ecuador under the protection of the UK, basically giving the UK reason to prosecute them to protect Ecuador. Assange has to have regular medical exams; if he has a medical emergency, he’ll be treated off site. Starting on December 1, he has to start paying for food and other supplies. He has to start cleaning up the joint. He has to start taking care of his cat.

Assange immediately sued over the new rules. But he lost that suit on Monday. But even as he appeals that verdict, according to Courage Foundation, Ecuador has restricted even legal visits, something that hadn’t been the case before. Those restrictions appear to have been put in place on Wednesday, the same day the new Schulte charges were rolled out. They’ll remain in place until Monday.

A piece by Ryan Goodman and Bob Bauer renewed discussion this morning about the First Amendment limits on suing or prosecuting WikiLeaks for conspiring with Russia to swing the 2016 election; I hope to respond to it later, but wrote about the same lawsuit in this post. I think their view dangerously risks political journalism.

But I also think that you don’t necessarily need to charge WikiLeaks in the conspiracy to sustain a conspiracy charge; you can make them unindicted co-conspirators, just like Trump would be. I have long noted that you could charge Assange, instead, for his serial attempts to extort the United States, an effort that has gone on for well over 18 months using the very same files that Schulte is alleged to have leaked to WikiLeaks (extortion attempts which may also involve Roger Stone). Assange has accomplished those extortion attempts, in part, with the assistance of his lawyers, who up until this week (as far as I understand from people close to Assange) were still permitted access to him.

Say. Have I observed yet that these events are taking place in the last days before Mueller’s election season restrictions end?

As I disclosed in 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. 

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