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The International Manhunt for WikiLeaks

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One of the things DOJ is protecting from FOIA in Electronic Privacy Information Center’s suit is information other governments have shared with the US on the investigation.

According to FBI’s David Harvey, this includes classified information from foreign governments.

(45) E.O. 13526, § 1.4(b) authorizes the classification of foreign government information. E.O. 13526, § 6.1(s) defines foreign government information as: “(1) information provided to the United States Government by a foreign government or governments, an international organization of governments, or any element thereof, with the expectation that the information, the source of the information, or both, are to be held in confidence; (2) information produced by the United States Government pursuant to or as a result of a joint arrangement with a foreign government or governments, or an international organization of governments, or any element thereof, requiring that the information, the arrangement, or both, are to be held in confidence; or (3) information received and treated as ‘foreign government information’ under the terms of a predecessor order.”

(46) Many foreign governments do not officially acknowledge the existence of some of their intelligence and security services, or the scope of their activities or the sensitive information generated by them. The free exchange of information between United States intelligence and law enforcement services and their foreign counterparts is predicated upon the understanding that these liaisons, and information exchanged between them, must be kept in confidence.

(47) The release of official United States Government documents that show the existence of a confidential relationship with a foreign government reasonably could be expected to strain relations between the United States and the foreign governments and lead to diplomatic, political, or economic retaliations. A breach of this relationship can be expected to have at least a chilling effect on the free flow of vital information to the United States intelligence and law enforcement agencies, which may substantially reduce their effectiveness. Although the confidential relationship of the United States with certain countries may be widely reported, they are not officially acknowledged. (48) Disclosure of such a relationship predictably will result in the careful analysis and possible compromise of the information by hostile intelligence services. The hostile service may be able to uncover friendly foreign intelligence gathering operations directed against it or its allies. This could lead to the neutralization of friendly allied intelligence activities or methods or the death of live sources, cause embarrassment to the supplier of the information, or result in economic or diplomatic retaliation against both the United States and the supplier of the information.

(49) Even if the government from which certain information is received is not named in or identifiable from the material it supplies, the danger remains that if the information were to be made public, the originating government would likely recognize the information as material it supplied in confidence. Thereafter, it would be reluctant to entrust the handling of its information to the discretion of the United States.

(50) The types of classified information provided by foreign government intelligence components can be categorized as: (a) information that identifies a named foreign government and detailed information provided by that foreign government; (b) documents received from a named foreign government intelligence agency and classified “Secret” by that agency; and (c) information that identifies by name, an intelligence component of a specific foreign government, an official of the foreign government, and information provided by that component official to the FBI.

[snip]

(51) The cooperative exchange of intelligence information between the foreign governments and the FBI was, and continues to be, with the express understanding that the information will be kept classified and not released to the public. Disclosure of the withheld information would violate the FBI’s promise of confidentiality. Read more →

The Government Can’t Make Up Its Mind Whether WikiLeaks Amounts to Aiding Al Qaeda or Not

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The government’s arguments in Hedges v. Obama are getting more and more inconsistent.

This is the case, recall, where Chris Hedges, Birgitta Jonsdottir, and several other people challenged the section of the NDAA that affirmed the President’s authority to militarily detain or deport (among other things) “covered persons.” Because the government repeatedly refused to say that the plaintiffs were not covered by the section, Judge Katherine Forrest not only found they had standing to sue, but she enjoined enforcement of the law.

Now the government is trying to unfuck the fuckup they made at oral arguments by offering caveated assurances that none of the plaintiffs would be covered by the law. (h/t Ben Wittes) But look carefully at what they say:

The government argued in its briefs that the plaintiffs cannot reasonably believe that section 1021 would extend to their conduct, in light of law of war principles, First Amendment limitations, and the absence of a single example of the government detaining an individual for engaging in conduct even remotely similar to what is alleged here. See Gov’t Initial Mem. 12-13. But at argument the government did not agree to provide specific assurance as to each plaintiff, a request that the government considers problematic. As a result, this Court deemed the government’s position to be unclear regarding whether section 1021 could apply to the conduct alleged by plaintiffs in this case. To eliminate any doubt, the government wants to be as clear as possible on that matter. As a matter of law, individuals who engage in the independent journalistic activities or independent public advocacy described in plaintiffs’ affidavits and testimony, without more, are not subject to law of war detention as affirmed by section 1021(a)-(c), solely on the basis of such independent journalistic activities or independent public advocacy.5 Put simply, plaintiffs’ descriptions in this litigation of their activities, if accurate, do not implicate the military detention authority affirmed in section 1021.

5 This case does not involve the kind of independent expressive activity that could support detention in light of law of war principles and the First Amendment. In contrast, for example, a person’s advocacy, in a theater of active military operations, of military attacks on the United States or the intentional disclosure of troop movements or military plans to the enemy, or similar conduct that presents an imperative security threat in the context of an armed conflict or occupation, could be relevant in appropriate circumstances. See Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War, arts. 5, 41-43, 78. As discussed further below, it is not appropriate to expect the government to make categorical statements about the scope of its detention authority in hypothetical scenarios that could arise in an armed conflict, in part, because that authority is so context-dependent.

The government is not being at all clear here! It is reaffirming it stance that it would be problematic to offer assurances about the plaintiffs. It is saying it “wants to be as clear as possible” on this issue, but then says only if plaintiffs’ descriptions of their activities are accurate, then they don’t implicate military detention authority.

Let me spoil the surprise. The government doesn’t believe all the plaintiffs’ descriptions are accurate.

For a hint of why, look at the footnote. First, you’ve gotta love their caveat that “in a theater of active military operations.” The government has repeatedly said the entire world, including the US, is the battlefield in this war on terror. So they really mean “anywhere.”

But note they include “intentional disclosure of troop movements or military plans” to the enemy. That passage gets at their problem here.

That’s because, in spite of the fact that they say, “Section 1021 has no application to unarmed groups like WikiLeaks,” and remind they’ve offered assurances that Jonsdottir “could [not] possibly be deemed to fall within the scope of section 1021,” the government’s actions against WikiLeaks belie those claims.

That’s true, first of all, because DOJ specifically excludes entities like WikiLeaks from their definition of protected journalistic activities. (Indeed, I’ve deemed this passage from the DIOG the “WikiLeaks exception.”)

As the term is used in the DIOG, “news media” is not intended to include persons and entities that simply make information available. Instead, it is intended to apply to a person or entity that gathers information of potential interest to a segment of the general public, uses editorial skills to turn raw materials into a distinct work, and distributes that work to an audience, as a journalism professional.

Reassurances from DOJ that “journalistic activities” would not make Jonsdottir a covered person for her WikiLeaks work are worthless since DOJ doesn’t consider WikiLeaks’ activities journalistic activities.

More importantly, the government has already made it clear that they believe WikiLeaks amounts to aiding al Qaeda in DOD’s case against Bradley Manning. In fact, they base their Aiding the Enemy charge against Manning on the claim that by leaking materials to WikiLeaks, he knowingly made it available to al Qaeda.

In deliberations over a defense motion to dismiss the “aiding the enemy” charge, the government argued that the “enemy” had gone regularly to a “specific website and Pfc. Bradley Manning knew the “enemy” would do this when he allegedly provided information to the website.

The deliberations occurred in the second day of a pre-trial motion hearing at Fort Meade in Maryland. Manning, who is accused of releasing classified information to WikiLeaks, is charged with “aiding the enemy,” an Article 104 offense under the uniform code of military justice (UCMJ). It is a federal offense that could carry the death penalty (although the government has indicated it will not press for that in sentencing).

Judge Col. Denise Lind asked military prosecutor Capt. Joe Morrow if “the government intends to show that there is a particular website that this information was sent to and the accused was aware the enemy used that website.” Morrow said yes.

What this means is that the government is essentially arguing that “the enemy”—which the government has said is al Qaeda or any terror groups related—frequently accessed WikiLeaks and any “intelligence” provided. Manning knew that by handing over information to website he would provide assistance to “the enemy.”

And Judge Lind bought off on this argument, at least in theory.

So long as the government sustains this bogus Aiding the Enemy charge against Bradley Manning, then they implicitly are also arguing that Jonsdottir, by actually publishing the information allegedly provided by Manning, also intentionally provided intelligence to al Qaeda.

It seems, after being embarrassed by their past obstinance, the government is willing to say anything to avoid individuals from getting standing to challenge their counterterrorism abuses. Are they worried enough to drop that Aiding the Enemy charge yet?

WikiLeaks: Court Upholds US Subpoena For Twitter Records

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In a 21 page opinion, US Magistrate Judge Theresa Buchanan of the Eastern District of Virginia District Court has just granted the United States Department of Justice subpoena demand for records in the WikiLeaks investigation.

Three people associated with WikiLeaks – Jacob Appelbaum, Birgitta Jonsdottir, and Rop Gonggrijp – had petitioned the court to vacate the subpoena and to unseal the court pleadings. The court held:

For the foregoing reasons, petitioners’ Motion to Vacate is DENIED. Petitioners’ Motion to Unseal is DENIED as to docket 10- gj-3793, and GRANTED as to the 1:11-dm-00003 docket, with the exception of the government attorney’s email address in Twitter’s Motion for Clarification (Dkt. 24), which shall be redacted. Petitioners’ request for public docketing of the material within 10-gj-3793 shall be taken under consideration. An Order shall follow.

The three WikiLeaks individuals had argued the subpoena violated constitutional protections for free speech and association; the court disagreed. Appelbaum, Gonggrijp and Jonsdottir have already stated they will appeal.

You can read the full opinion here. I will be updating the post as I read the decision.

In December of last year, the US government, upon ex parte motion, moved the EDVA Court to enter a sealed Order (“Twitter Order”) pursuant to 18 U.S.C. § 2703(d) of the Stored Communications Act, which governs government access to customer records stored by a service provider. The Twitter Order, which was unsealed on January 5, 2010, at the request of Twitter, required Twitter to turn Read more →

What the Government Might Be After with Its Twitter Subpoena

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After a member of Iceland’s Parliament and former Wikileaks volunteer, Birgitta Jónsdóttir, revealed on Twitter yesterday that Twitter has been subpoenaed for details on her Twitter account, Glenn got a copy of the subpoena. The subpoena was first submitted to Twitter on December 14, and asked for account information for six people as well as any account associated with Wikileaks, going back to November 1, 2009. Of particular note, they ask for:

records of user activity for any connections made to or from the Account, including the date, time, length, and method of connections, data transfer volume, user name, and source and destination Internet Protocol address(es).

non-content information associated with the contents of any communication or file stored by or for the account(s), such as the source and destination email addresses and IP addresses.

By getting the IP addresses, they might be able to tie a location to the Wikileaks activity (though I would imagine some of the subpoenaed people shield that kind of information).

Here’s what they might be after.

There’s a passage in the chat logs in which Manning describes how he confirmed he was communicating directly with Julian Assange. This passage comes on May 22, allegedly before Adrian Lamo was cooperating with investigators (but there are reasons to question that).

(2:05:58 PM) Manning: it took me four months to confirm that the person i was communicating was in fact assange

(2:10:01 PM) Lamo: how’d you do that?

(2:12:45 PM) Manning: I gathered more info when i questioned him whenever he was being tailed in Sweden by State Department officials… i was trying to figure out who was following him… and why… and he was telling me stories of other times he’s been followed… and they matched up with the ones he’s said publicly

(2:14:28 PM) Lamo: did that bear out? the surveillance?

(2:14:46 PM) Manning: based on the description he gave me, I assessed it was the Northern Europe Diplomatic Security Team… trying to figure out how he got the Reykjavik cable…

While Manning doesn’t say that these conversations took place on Twitter (I’ll come back to this), we know that Wikileaks, at least, was revealing details of the government’s surveillance of it on Twitter. A series of Tweets from late March describe heavy State Department surveillance. Several of the tweets reference the production of the Collateral Murder video. Now mind you, this was a month or more after Manning would have leaked the video itself. But this tweet makes me wonder whether Manning didn’t continue monitoring surveillance and response.

We know our possession of the decrypted airstrike video is now being discussed at the highest levels of US command.

In other words, this may be evidence on Twitter of the Wikileaks team learning information that Manning might have provided them.

As Glenn points out, three of the people covered by the subpoena were involved in the production of the video.

the three named producers of the “Collateral Murder” video — depicting and commenting on the U.S. Apache helicopter attack on journalists and civilians in Baghdad — were Assange, Jónsdóttir, and Gonggrijp (whose name is misspelled in the DOJ’s documents).  Since Gonggrijp has had no connection to WikiLeaks for several months and Jónsdóttir’s association has diminished substantially over time, it seems clear that they were selected due to their involvement in the release of that film.

One of the things the government may be trying to do is to pinpoint what IP was involved in the tweets revealing the surveillance, to try to tie any conversation about that surveillance to conversations with Manning, and in turn tie those conversations to their theory that the Wikileaks team conspired to leak this information.

Manning says he tracked this kind of surveillance to confirm that he was contacting Assange directly. The government may be trying to retrace his tracks in confirming Assange’s identity, too.

[This post was updated after it was first posted.]