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

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

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

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

Of course, as emptywheel readers, you know that DOJ superseded the indictment against Assange in June, and with it extended the timeline on the CFAA conspiracy charge through 2015.

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

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

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

84. To encourage leakers and hackers to provide stolen materials to WikiLeaks in the future, ASSANGE and others at WikiLeaks openly displayed their attempts to assist Snowden in evading arrest.

85. In June 2013, a WikiLeaks associate [Sarah Harrison] traveled with Snowden from Hong Kong to Moscow.

[snip]

87. At the same presentation [where Assange and Jake Appelbaum encouraged people to join the CIA to steal files, Appelbaum] said “Edward Snowden did not save himself. … Specifically for source protection, [Harrison] took actions to protect [Snowden]. … [I]f we can succeed in saving Edward Snowden’s life and to keep him free, then the next Edward Snowden will have that to look forward to. And if we look also to what has happened to Chelsea Manning, we see additionally that Snowden has clearly learned….”

[snip]

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

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

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

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

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

In the Saturday night email, Snowden spelled it out. He had chosen to risk his freedom, he wrote, but he was not resigned to life in prison or worse. He preferred to set an example for “an entire class of potential whistleblowers” who might follow his lead. Ordinary citizens would not take impossible risks. They had to have some hope for a happy ending.

To effect this, I intend to apply for asylum (preferably somewhere with strong internet and press freedoms, e.g. Iceland, though the strength of the reaction will determine how choosy I can be). Given how tightly the U.S. surveils diplomatic outposts (I should know, I used to work in our U.N. spying shop), I cannot risk this until you have already gone to press, as it would immediately tip our hand. It would also be futile without proof of my claims—they’d have me committed—and I have no desire to provide raw source material to a foreign government. Post publication, the source document and cryptographic signature will allow me to immediately substantiate both the truth of my claim and the danger I am in without having to give anything up. . . . Give me the bottom line: when do you expect to go to print?

Alarm gave way to vertigo. I forced myself to reread the passage slowly. Snowden planned to seek the protection of a foreign government. He would canvass diplomatic posts on an island under Chinese sovereign control. He might not have very good choices. The signature’s purpose, its only purpose, was to help him through the gates.

How could I have missed this? Poitras and I did not need the signature to know who sent us the PRISM file. Snowden wanted to prove his role in the story to someone else. That thought had never occurred to me. Confidential sources, in my experience, did not implicate themselves—irrevocably, mathematically—in a classified leak. As soon as Snowden laid it out, the strategic logic was obvious. If we did as he asked, Snowden could demonstrate that our copy of the NSA document came from him. His plea for asylum would assert a “well-founded fear of being persecuted” for an act of political dissent. The U.S. government would maintain that Snowden’s actions were criminal, not political. Under international law each nation could make that judgment for itself. The fulcrum of Snowden’s entire plan was the signature file, a few hundred characters of cryptographic text, about the length of this paragraph. And I was the one he expected to place it online for his use.

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

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

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

LP: oh god fuck

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

LP: of course

BG: I just wanna be a goddam journalist

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

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

[snip]

We hated the replies we sent to Snowden on May 26. We had lawyered up and it showed. “You were clear with me and I want to be equally clear with you,” I wrote. “There are a number of unwarranted assumptions in your email. My intentions and objectives are purely journalistic, and I will not tie them or time them to any other goal.” I was working hard and intended to publish, but “I cannot give you the bottom line you want.”

Poitras wrote to him separately.

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

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

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

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

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

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

Is the US Thwarting China’s Anti-Corruption (and Political Crime) Campaign to Retaliate for the OPM Hack?

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Screen Shot 2015-08-17 at 6.13.36 PMTwo weeks after floating a story to the NYT the Obama asked for some creative ways to retaliate against China for the OPM hack, the NYT reported (in both English and a prominently linked Chinese translation) that “in recent weeks” the US told agents trying to chase down Chinese nationals accused of corruption to get out.

The Obama administration has delivered a warning to Beijing about the presence of Chinese government agents operating secretly in the United States to pressure prominent expatriates — some wanted in China on charges of corruption — to return home immediately, according to American officials.

The American officials said that Chinese law enforcement agents covertly in this country are part of Beijing’s global campaign to hunt down and repatriate Chinese fugitives and, in some cases, recover allegedly ill-gotten gains.

The Chinese government has officially named the effort Operation Fox Hunt.

The American warning, which was delivered to Chinese officials in recent weeks and demanded a halt to the activities, reflects escalating anger in Washington about intimidation tactics used by the agents. And it comes at a time of growing tension between Washington and Beijing on a number of issues: from the computer theft of millions of government personnel files that American officials suspect was directed by China, to China’s crackdown on civil liberties, to the devaluation of its currency.

Operation Fox Hunt is not new — or secret. It has been covered before by the US press, including updates on how many people official Chinese sources claim they have gotten to return for prosecution. The NYT follow-up admits — though the original didn’t provide the same level of detail — that DHS agreed in April to prosecute Chinese economic fugitives (which would extend the US habit of asserting jurisdiction where none exists) if provided real evidence of corruption.

But in April, the Department of Homeland Security worked out a new arrangement with China’s Ministry of Public Security, which oversees Operation Fox Hunt, to assist Beijing’s efforts to prosecute economic fugitives according to United States law. American officials, however, say China has so far failed to provide the necessary evidence.

Both NYT articles mention what the WSJ reports in more depth, including details of how these operatives are working: Among the economic fugitives in the US China is aggressively pursuing is Ling Wangcheng, the brother of a former top Hu Jintao aide

Mr. Ling’s brother was a top aide to China’s previous president, Hu Jintao, but was placed under investigation by the Communist Party in December and formally accused in July of bribe-taking, adultery and illegally obtaining state secrets.

For much of 2014, Mr. Ling was living under an alias in a mansion in a gated community in Loomis, Calif., near Sacramento, with Mr. Yuan’s ex-wife, neighbors said. The couple hasn’t been seen there since around October.

Mr. Ling is now the focus of political intrigue that could overshadow a visit to the U.S. in September by China’s leader, Xi Jinping.

Diplomats and analysts said Mr. Ling might have had access through this brother to sensitive information about Chinese leaders. If he sought political asylum, Mr. Ling would be the most significant Chinese defector in decades.

It isn’t clear why Mr. Ling, 55 years old, moved to the U.S. in 2013 or 2014. He lost touch with many friends in China around last fall, a family acquaintance said, but later reassured friends he was safe in the U.S.

The implication from this — and other recent reporting on Ling — is that he did get asylum in October, and has been cooperating with US authorities.

All that is probably only tangentially related to the US leak of its earlier decision — taken precisely as the US tries to find a way to retaliate for the OPM hack — to start cracking down on this Chinese effort.

There are two things I haven’t seen mentioned in coverage of this. First, remember that the US has engaged in a similar effort, using an offer of amnesty for rich tax cheats who had stashed their money in Swiss banks (though there have been what I believe to be similar efforts on the part of the US to expose tax cheats that have mostly focused on non-US citizens).

And don’t forget the lengths to which the US went to get someone who had top secrets to come back to the US, including when it had Austria ground Evo Morales’ plane so it could search for Edward Snowden.

In any case, I suspect the US used Operation Fox Hunt as an opportunity to let China know it knew of these admitted agents. Sort of a way for the US to tell China we know where its operatives in the US are, just as it knows where our operatives are in China, thanks to the OPM hack.

For its part, China’s Xinhua paper has scolded the US for harboring crooks (and provided slightly different details of the agreement pertaining to Fox Hunt).

Corruption is not only a serious problem in China, but also in the rest of the world. And in a world which is more and more connected, countries should take coordinated efforts in fighting corruption.

Although there is no extradition agreement between the United States and China, the two countries actually have already agreed on anti-corruption cooperation.

In April 2015, U.S. Homeland Security Secretary Jeh Johnson met Chinese Public Security Minister Guo Shengkun in Beijing, and they agreed to strengthen cooperation in law enforcement.

They agreed not to provide shelter for the other side’s fugitives and would try to repatriate them in accordance with law. Specifically, Johnson also promised to actively support China’s “Sky Net” and “Fox Hunt” operations, which aim to bring back corrupt officials.

So the U.S. government’s decision to force China’s law enforcement stuff to leave the country obviously reveals that Washington lacks sincerity and has failed to translate its words into action.

Some analysts even say that the United States is reluctant to repatriate those corrupt officials for the sake of their money of course.

Therefore, the United States, as a country that often stresses the rule of law, should clarify the issue and by no means become a safe haven for Chinese criminal suspects.

The US may have decided this would be an easy way to push back on China, but that won’t prevent China from scoring points from it.

Edward Snowden’s Extradition Request

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Screen shot 2013-07-06 at 9.31.58 AMAs I noted last night, Venezuelan President Nicolás Maduro offered Edward Snowden asylum last night. (The Spanish was “hemos decidido” and “he decidido ofrecerle asilio” which included none of the sense of hypothetical that Nicaragua’s President Daniel Ortega used.)

The government has released the extradition request they’ve sent to the Venezuelan government.

Perhaps the most interesting detail is the date: July 3. Way back when Maduro was (unless I’ve lost track of his chronology), still in Russia or Belarus, and when Bolivian President Evo Morales was making a big stink about being “kidnapped” in Vienna.

Since that time, Maduro finished his visit in Belarus. Flew (presumably with a refueling stop somewhere and possibly a stop at home) to Cochabamba, Bolivia, where at least 6 South American leaders either were personally or had sent a representative (in addition to Morales and Maduro, the Presidents of Ecuador, Suriname, Argentina, and Uruguay were present, Brazils Dilma Rousseff had sent a representative, as had, according to some reports, Peru and Chile).

Then Maduro returned home in time for Venezuela’s Independence Day celebration, where he issued his statement offering asylum.

It appears that after the US issued the extradition request to Venezuela, they issued an arrest warrant to Ireland.

Now, perhaps the US has real intelligence saying that Snowden remains in Russia. But these are the people who were sure he was on Morales’ plane just a few days ago. And they don’t really seem all too sure about where Snowden is.

Update: This is one of the few stories I’ve seen that affirmatively said Snowden was still in Russia after Maduro’s departure, based on a single Russian security source.

Update: And this has more Russian sources stating he remains stuck in Russia.

Europe again stuck saying, “They told us they were sure”

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The NATO members who refused overflight privileges for Bolivian President Evo Morales are, in the process of trying to justify what they did, revealing more details of what led them to risk such a diplomatic affront. Among other explanations, the Spanish foreign minister explained that “they” told the Spanish “they were sure” Snowden was on board Morales’ plane.

“They told us they were sure… that he was on board,” Mr Garcia-Margallo told Spanish television, without indicating who “they” are.

“And so the reaction of all the European countries that took measures – whether right or wrong – was because of the information that had been passed on. I couldn’t check if it was true or not at that moment because it was necessary to act straight away.”

In point of fact, it’s not yet clear Snowden wasn’t on the plane. While Austrian authorities checked the passports of the known passengers on the plane, they apparently did not conduct a thorough search. And 3 Spaniards who showed up to conduct a search were denied entry (though Morales did stop in the Canary Islands, which would have provided another opportunity to conduct a search on Spanish territory, but by that point Morales was already making a literal international incident about his treatment).

Then yesterday the heads of state from 5 other South American countries gathered in Cochabamba, Bolivia (why not La Paz?) to bitch about the actions of those NATO countries that had insulted Morales. If Snowden was on Morales’ plane, he may well be in any of 6 other countries by now (Brazil’s Dilma Rousseff sent an advisor — and note several attendees would have had to fly over Brazilian airspace to return home).

Or Snowden could be in Austria, which was one of the countries that had said Snowden would need to be in their country before it could consider an asylum request (there were pictures of Morales and Fischer from Morales’ layover that made them look quite jolly).

Or Snowden could still be in Sheremetyevo, though no one has ever seen him there. Russia’s Deputy Foreign Minister Sergei Ryabkov signaled impatience with Snowden today, even though in the past Putin said he would not extradite the leaker. But who knows whether the Russians, who are enjoying this game, are telling the truth?

So Snowden could foreseeably be in Argentina, Austria, Bolivia, Brazil, Ecuador, Russia, Suriname, Uruguay, or Venezuela. And there’s no reason to believe we’d know one way or another.

Meanwhile Ecuador chose yesterday, in the wake of the Morales slight, to complain about a bug placed in its Embassy in London. A bug they claim to have found last month.

Foreign Minister Ricardo Patino told a news conference in Quito the bug was found last month when Ecuadorean technicians reviewed the embassy’s wiring.

Now, Ecuador reportedly found the bug in connection with Patino’s trip to London June 16. Which ought to raise questions about why they’ve chosen this moment to make a stink about it. Did they leave it in place to sow disinformation? In any case, the bug has given Ecuador reason to raise tensions with England, which has avoided the badgering the other NATO European countries have.

So who knows where Snowden is? But in the meantime, US intelligence (presumably the “they” who were “sure” Snowden was on Morales’ plane) has been exposed in another potential false certainty, and the South American nations skeptical of the Washington consensus have reasons to make fun of Europe for playing Washington’s poodle.

This entire stink is supposed to be about America’s omnipotent SIGINT dragnet (the power of which is presumably one of the reasons the NATO members are being so compliant with US demands). But somehow that SIGINT hasn’t pinpointed Snowden yet, and may have gotten badly embarrassed by listening into one of its own bugs.

Update: Nicolas Maduro has granted Snowden asylum, as has Nicaragua’s Daniel Ortega. Which leaves the logistics of getting Snowden to Venezuela if he is not already there.