Posts

WikiLeaks and Edward Snowden Champion Sociopathic Liars and Sloppy Thinking

/52 Comments/in , , /by

WikiLeaks boosters have embraced a really bizarre new entry in the propaganda case to support Julian Assange this weekend: An article by two Icelandic journalists that purports to prove that, “The veracity of the information contained [in the June 2020 superseding indictment against Julian Assange] is now directly contradicted by the main witness, whose testimony it is based on.” This is an article about Sigurdur Ingi Thordarson, AKA Siggi, the sociopath that Assange chose to hang out with for a period in 2010 to 2011, who does have a role but by no means the “main” role in the case against Assange. The journalists who wrote the article present as credible Siggi’s claim, from someone that everyone agrees is a pathological liar, that he’s telling the truth now, rather than when he testified to US authorities in 2019.

The journalists who wrote the article and all the WikiLeaks boosters who have embraced it are arguing that the article somehow proves that an avowed liar is telling the truth now about lying in the past. Even as WikiLeaks boosters are pointing to the Icelandic legal judgment that Siggi is a sociopath, they are once again welcoming him into the WikiLeaks fold because the avowed liar claims to have lied.

This is what Assange’s boosters are now staking his defense on: convincing you to accept the words of liars as truth.

Except, Siggi retracts nothing substantive that is alleged in the indictment, so this drama is instead a demand that you accept the word of a liar rather than read the documents to show that the liar’s claims are irrelevant to the charges against Assange.

The article proves it doesn’t understand US law

Before I get into how little of what the article presents even relates to the indictment, let me show how badly the authors misunderstand (or misrepresent) US law. The last eight paragraphs of the article insinuate that, because US prosecutors gave Siggi immunity for testimony in 2019, he exploited that immunity to commit new crimes in Iceland. The suggestion starts by claiming that the outdated NYT Problem remained true in 2017 and parroting the WikiLeaks claim that therefore what must have changed was the appointment of Bill Barr (who was confirmed after the initial complaint and first indictment had already been obtained).

Although the Department of Justice had spent extreme resources attempting to build a case against Julian Assange during the Obama presidency, they had decided against indicting Assange. The main concern was what was called “The New York Times Problem”, namely that there was such a difficulty in distinguishing between WikiLeaks publications and NYT publications of the same material that going after one party would pose grave First Amendment concerns.

President Donald Trump’s appointed Attorney general William Barr did not share these concerns, and neither did his Trump-appointed deputy Kellen S. Dwyer. Barr, who faced severe criticism for politicizing the DoJ on behalf of the president, got the ball rolling on the Assange case once again. Their argument was that if they could prove he was a criminal rather than a journalist the charges would stick, and that was where Thordarson’s testimony would be key.

I don’t fault journalists in Iceland from repeating this bit of propaganda. After all, even Pulitzer prize winning NYT journalists do. But the NYT problem was overcome when WikiLeaks did something in 2013 — help Edward Snowden get asylum in Russia — that the journalists involved at the time said was not journalism. What’s novel about this take, however, is the claim that career prosecutor Kellen Dwyer was “Trump-appointed.” Dwyer has been an EDVA prosecutor through four Administrations, since the George W Bush administration.

I assume that the reason why it’s important for this tale to claim that Dwyer was appointed by Barr is to claim the immunity agreement under which Siggi — and several other known witnesses to this prosecution — testified did something it didn’t.

In May 2019 Thordarson was offered an immunity deal, signed by Dwyer, that granted him immunity from prosecution based on any information on wrong doing they had on him. The deal, seen in writing by Stundin, also guarantees that the DoJ would not share any such information to other prosecutorial or law enforcement agencies. That would include Icelandic ones, meaning that the Americans will not share information on crimes he might have committed threatening Icelandic security interests – and the Americans apparently had plenty of those but had over the years failed to share them with their Icelandic counterparts.

All the agreement does is immunize the witness against prosecution for the crimes they admit during interviews with prosecutors they were part of, so as to avoid any Fifth Amendment problem with self-incrimination. This is not about hiding Siggi’s role in WikiLeaks; it has been public for a decade. Moreover the article even described the US sharing just the kind of security threat information this paragraph claims they did not.

Jónasson recalls that when the FBI first contacted Icelandic authorities on June 20th 2011 it was to warn Iceland of an imminent and grave threat of intrusion against government computers. A few days later FBI agents flew to Iceland and offered formally to assist in thwarting this grave danger. The offer was accepted and on July 4th a formal rogatory letter was sent to Iceland to seal the mutual assistance.

All that immunity did was provide DOJ a way to ask Siggi about his role at the time. It didn’t immunize future crime in Iceland, nor did it give him any incentive to claim Assange asked him to hack things he hadn’t.

That’s the extent to which these journalists are spinning wildly: getting the facts about the prosecutors and the law wrong in a piece claiming to assess how Siggi recanting what they assume he told prosecutors in 2019 would affect the indictment.

Siggi’s purportedly retracted claims in several cases don’t conflict with the indictment

And, even beyond claiming Siggi is the “main witness” against Assange, they seem to misunderstand the indictment, in which Siggi’s actions play a role in a limited set of overt acts in a Computer Fraud and Abuse Act charge. Because there are so many ways that Assange allegedly engaged in a long-ranging effort to encourage hackers, jurors could find Assange guilty even if none of the Siggi events were deemed credible, and he is central (though his testimony may not be) to just a portion of the overt acts in the CFAA charge.

In fact, this piece never once cites the indictment directly.

Instead, they cite Judge Vanessa Baraitser’s ruling on Assange’s extradition. They cite fragments though, not the single paragraph about Siggi’s role in the CFAA charge that is relevant (indeed, was key) to her decision:

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

Baraitser includes the overt acts involving Siggi — that Siggi gave Assange “stolen banking documents,” may have been his source for “a list of things he wanted” including recordings from Parliament, and provided Assange access to an Icelandic police website — not for Siggi’s role in the action, but for Assange’s representations to Chelsea Manning about them. “Mr. Assange told Ms. Manning … Mr. Assange told Ms. Manning … Mr. Assange told Ms. Manning” certain things about Siggi, and what mattered most is that Assange made the claims, not whether what Assange claimed to Manning was true or not, because it was part of getting her to leak more documents.

The two times Stundin does cite Baraitser’s judgment, they cite it misleadingly, particularly with regards any claims made about the indictment. The sole citation to the critical paragraph of Baraitser’s ruling I cited above appears this way:

More deceptive language emerges in the aforementioned judgment where it states: “…he [Assange] used the unauthorized access given to him by a source, to access a government website of NATO country-1 used to track police vehicles.”

This depiction leaves out an important element, one that Thordarson clarifies in his interview with Stundin. The login information was in fact his own and not obtained through any nefarious means. In fact, he now admits he had been given this access as a matter of routine due to his work as a first responder while volunteering for a search and rescue team. He also says Assange never asked for any such access.

As noted above in bold, in the critical paragraph pertaining to Siggi of the ruling, this topic matters solely for how it related to Assange’s interactions with Manning. And where she introduces the allegation earlier in her ruling, Baraitser makes no claim that Siggi’s access was unauthorized, only that Assange’s was.

It is alleged that Mr. Assange kept Ms. Manning informed about these hacking activities: on 5 March 2010, he told her that he had received stolen bank documents from a source (Teenager); on 10 March 2010, he told her that, in response to a “list of things we wanted”, a source had provided him with four months of recordings from phones located within the Parliament of a “NATO country 1”; on 17 March 2010, he told her that he had used the access, given to him by a source, to obtain unauthorised access a government website used to track police vehicles, in “NATO country 1”. [italics and bold mine]

No one is claiming that Siggi obtained the access via nefarious means. Rather, Baraitser claims only that Assange’s — who was not an Icelandic first responder — was unauthorized, to which Siggi’s purported retraction is irrelevant.

And the indictment provides further context — context that addresses another of Stundin’s claims.

41. In early 2010, a source provided ASSANGE with credentials to gain unauthorized access into a website that was used by the government of NATO Country-1 to track the location of police and first responder vehicles, and agreed that ASSANGE should use those credentials to gain unauthorized access to the website.

42. On March 17, 2010, ASSANGE told MANNING that ASSANGE used the unauthorized access to the website of the government of NATO Country-1 for tracking police vehicles (provided to ASSANGE by a source) to determine that NATO Country-1 police were monitoring ASSANGE.

43. On March 29, 2010, WikiLeaks posted to its website classified State Department materials regarding officials in the government of NATO Country-1, which Manning had downloaded on February 14, 2010.

Again, what is key here is that the credentials were unauthorized for Assange (which they were), that Assange went on to tell Manning about it, and that those things happened when Manning was leaking documents pertaining to Iceland as well. Nothing in Siggi’s supposed recantation is even relevant to that.

Similarly, Stundin complains that Baraitser referred to a file from an Icelandic bank as “stolen,” when Siggi says that he understood the file to have been leaked by whistleblowers, not stolen.

One is a reference to Icelandic bank documents. The Magistrate court judgement reads: “It is alleged that Mr. Assange and Teenager failed a joint attempt to decrypt a file stolen from a “NATO country 1” bank”.

Thordarson admits to Stundin that this actually refers to a well publicised event in which an encrypted file was leaked from an Icelandic bank and assumed to contain information about defaulted loans provided by the Icelandic Landsbanki. The bank went under in the fall of 2008, along with almost all other financial institutions in Iceland, and plunged the country into a severe economic crisis. The file was at this time, in summer of 2010, shared by many online who attempted to decrypt it for the public interest purpose of revealing what precipitated the financial crisis. Nothing supports the claim that this file was even “stolen” per se, as it was assumed to have been distributed by whistleblowers from inside the failed bank.

As noted above, in the key paragraph in Baraitser’s judgment, she described that, “Mr. Assange was engaged in a wider scheme, to work with computer hackers and whistle blowers to obtain information for Wikileaks.” The inclusion of whistleblowers here makes it clear that she understood some of this to be leaked rather than hacked.

Moreover, in the indictment, the claim is about how Siggi’s actions tie to requests Assange made of Manning and (presumably) David House (both of whom were also given immunity to testify, though Manning refused to do so), both of whom took steps to access Icelandic files.

35. In early 2010, around the same time that ASSANGE was working with Manning to obtain classified information, ASSANGE met a 17-year old in NATO Country-1 (“Teenager”), who provided ASSANGE with data stolen from a bank.

[snip]

39. On March 5, 2010, ASSANGE told MANNING about having received stolen banking documents from a source who, in fact, was Teenager.

[snip]

44. On July 21, 2010, after ASSANGE and Teenager failed in their joint attempt to decrypt a file stolen from a NATO Country-1 bank, Teenager asked a U.S. person to try to do so. In 2011 and 2012, that individual, who had been an acquaintance of Manning since early 2010, became a paid employee of WikiLeaks, and reported to ASSANGE and Teenager.

The indictment doesn’t source the claim that the file was stolen to Siggi (certainly, the FBI has other ways of finding out what happens to financial files, and in many contexts, a whistleblower leaking them would amount to theft). Nor does it say Siggi stole it. Nor does Siggi’s understanding of whether it was leaked or stolen matter to the conspiracy indictment at hand, not least given its import to Assange and Manning’s alleged attempts to hack a password so she could leak documents, just what Siggi claims he believed bank employees had done. What matters, instead, is the joint shared goal of accessing it. Nothing Siggi says in his supposed recantation of this story undermines that claim.

Stundin’s third specific denial — that Siggi didn’t himself hack the phone recordings of MPs, but instead received them from a third party — is the single denial of a specific claim made in the indictment.

Thordarson now admits to Stundin that Assange never asked him to hack or access phone recordings of MPs. His new claim is that he had in fact received some files from a third party who claimed to have recorded MPs and had offered to share them with Assange without having any idea what they actually contained. He claims he never checked the contents of the files or even if they contained audio recordings as his third party source suggested. He further admits the claim, that Assange had instructed or asked him to access computers in order to find any such recordings, is false.

The indictment does claim that Siggi obtained these files after Assange requested that Siggi hack things.

In early 2010, ASSANGE asked Teenager to commit computer intrusions and steal additional information, including audio recordings of phone conversations between high-ranking officials of the government of NATO Country-1, including members of the Parliament of NATO Country-1.

[snip]

On March 10, 2010, after ASSANGE told Manning that ASSANGE had given an “intel source” a “list of things we wanted” and the source had agreed to provide and did provide four months of recordings of all phones in the Parliament of the government of a NATO Country-1, ASSANGE stated, “So that’s what I think the future is like ;),” referring to how he expected WikiLeaks to operate.

Siggi denies he hacked anything to get these files, but he does say he got them. He got them, instead, from a third party, unasked. Even if that’s true (and even if the third party wasn’t the intel source), the key point here is that Assange enticed Manning to keep providing requested documents by claiming he had successfully requested and obtained the recorded calls.

The specific denials in this story, even if true, don’t actually deny anything of substance and in one case is completely consistent with the indictment. More importantly, none of these denials are relevant to the way in which Baraitser used them, which is to discuss how Assange’s interactions with Siggi, Manning, and House were part of a unified effort; that unified effort is the only reason Iceland (but not Siggi alone) is key.

The story is silent about or confirms the more serious allegations about Siggi

And the parts of the indictment where Siggi’s role is key, which pertain to Assange’s alleged entry into a conspiracy with Lulzsec to hack Stratfor and to hack a Wikileaks dissident, are unaddressed in this story. For example, Stundin describes reading chat logs Siggi provided — which is not the full set of chatlogs available to the US government, though Stundin claims they must be comprehensive — and finding no proof in the chatlogs that anyone at Wikieaks ordered him to ask other hackers to hack websites. But their focus is on why Siggi asked other hackers to hack Icelandic sites. There’s no mention of hacking US sites.

The chat logs were gathered by Thordarson himself and give a comprehensive picture of his communications whilst he was volunteering for Wikileaks in 2010 and 11. It entails his talks with WikiLeaks staff as well as unauthorized communications with members of international hacking groups that he got into contact with via his role as a moderator on an open IRC WikiLeaks forum, which is a form of live online chat. There is no indication WikiLeaks staff had any knowledge of Thordarson’s contacts with aforementioned hacking groups, indeed the logs show his clear deception.

The communications there show a pattern where Thordarson is constantly inflating his position within WikiLeaks, describing himself as chief of staff, head of communications, No 2 in the organization or responsible for recruits. In these communications Thordarson frequently asks the hackers to either access material from Icelandic entities or attack Icelandic websites with so-called DDoS attacks. These are designed to disable sites and make them inaccessible but not cause permanent damage to content.

Stundin cannot find any evidence that Thordarson was ever instructed to make those requests by anyone inside WikiLeaks. Thordarson himself is not even claiming that, although he explains this as something Assange was aware of or that he had interpreted it so that this was expected of him. How this supposed non-verbal communication took place he cannot explain. [my emphasis]

More bizarre still, Stundin describes Siggi admitting that “Assange was aware of or that he had interpreted it so that this was expected of him.” This actually confirms the most important key allegation pertaining to Lulzsec, that when Siggi was negotiating all this, he claimed to DOJ and still claims now, Assange knew and approved of it. And in fact the indictment alleges that Siggi proved to Topiary he was working with Assange by filming himself sitting with Assange, a non-verbal communication that — because Siggi deleted it — would not have been included in the chatlogs that Stundin insists had to be comprehensive.

To show Topiary that Teenager spoke for WikiLeaks so that an agreement could be reached between WikiLeaks and LulzSec, Teenager posted to YouTube (and then quickly deleted) a video of his computer screen that showed the conversation that he was then having with Topiary. The video turned from Topiary’s computer screen and showed ASSANGE sitting nearby.

In fact, the only specific denial regarding LulzSec in this piece pertains to Sabu, not any of the people that Siggi is alleged to have spoken with.

Thordarson continued to step up his illicit activities in the summer of 2011 when he established communication with “Sabu”, the online moniker of Hector Xavier Monsegur, a hacker and a member of the rather infamous LulzSec hacker group. In that effort all indications are that Thordarson was acting alone without any authorization, let alone urging, from anyone inside WikiLeaks.

There’s no allegation in the indictment pertaining to Siggi’s conversations with Sabu. It alleges he was part of the conspiracy, but not that he spoke with Siggi.

Finally, the one other key allegation involving Siggi in the indictment — that Assange asked him to hack a WikiLeaks dissident — is actually sourced independently to an Assange comment. Nothing in this article denies it specifically, but it’s not even necessarily sourced to Siggi.

There’s no there there in this article. Moreover, all the claims in it — most notably, that Siggi is a sociopath and a liar — have been long known. What the article misunderstands is where Siggi’s testimony may be important, where it served to explain existing documentary files, and the many ways in which DOJ ensured it didn’t rely on such an easily discredited witness. The article also doesn’t understand how co-conspirator statements — statements that have already been made — get entered at trial.

You go to trial with the sociopaths that a target like Julian Assange has chosen to associate with, not with the Boy Scouts you’d like to have as witnesses. But this indictment relies on that sociopath far less than Stundin would have you believe, and Siggi’s purported retractions do very little to rebut the indictment or Baraitser’s ruling about the case. More importantly, the article claims that the DOJ’s purported reliance on a sociopath is fatal, but their argument is based on the claims of that same sociopath.

WikiLeaks boosters claim it exonerates Julian Assange that someone they claim is a liar claims he lied

Admittedly, this is what WikiLeaks always does with their shoddy propaganda claims. They did it with their misrepresentations about a pardon dangle delivered by suspected Russian asset Dana Rohrabacher, they did it with the admission that former Sputnik employee Cassandra Fairbanks personally ferried non-public information about Assange’s prosecution from Don Jr’s best friend to Assange, and they did it with unsupported allegations about UC Global.

They don’t care what the actual evidence is or supports, so long as they have a shiny object that their army of boosters can point to to claim the indictment says something other than it does.

But this one is particularly remarkable because of shit like this.

Edward Snowden, who explained his theft of vast swaths of secret documents based on a claim that he had the judgment to know what he was seeing was abuse, claims to believe that this article “is the end of the case against Julian Assange.” That is, Ed Snowden has displayed for all the world that his critical reasoning skills are so poor that he doesn’t understand that — even if every single thing Siggi is reported to say in this article were true (including his claim that Assange knew and approved of his efforts to forge ties with LulzSec) — it would do little damage to the indictment against Julian Assange.

It amounts to Ed Snowden putting up a sign saying, “Oh sure, I knew better than the entire NSA, but I have such poor critical thinking skills I can’t read through a misleading headline.”

Worse still, what Ed Snowden is telling you to do is to trust the word of someone that — everyone agrees! — is a lying sociopath!! Ed and the entire WikiLeaks booster community here are endorsing the truth claims of someone they acknowledge in the same breath is a liar and a sociopath. What matters for them is not any critical assessment of whether Siggi could be telling the truth, but that the liar is saying what will help them.

Finally, the craziest thing is that Edward Snowden, who not only is personally named in five of the fifty CFAA overt acts, but whose own book confirms key allegations in those five overt acts, pretends that someone else is the star witness. Snowden’s own book, itself, could result in a guilty verdict on the CFAA claim, and the only way to prevent his book from serving that role is for Ed Snowden to claim he himself is a liar. This indictment could only be “poisoned top-to-bottom with false testimony” if Snowden came out tomorrow and claimed he was lying in his own book.

Ed Snowden’s own claim to be telling the truth distinguishes him as a whistleblower rather than a spy. But here, he affirmatively asks you to believe someone everyone agrees is a liar. And based on the belief that that liar was this time telling the truth, Ed asserts that an indictment that implicates his own truth claims is “poisoned top-to-bottom with false testimony.”

Update: One more thing I didn’t stress enough. This story doesn’t claim that prosecutors lied to the UK. Rather, they claim (without evidence about the full set of witnesses and evidence that DOJ relied on), that Siggi misled DOJ about two claims that don’t affect most of the CFAA charge.

Update: I’ve added language making it clear that the claim that Assange knew Siggi was negotiating ties with Lulzsec is still apparently based on what Siggi told DOJ and what he maintains now. That overt act is not the only one showing Assange entering into an agreement before they hacked Stratfor though.

Update: Subtropolis has convinced me to drop the references to Siggi as a child rapist, as he was underage too at the time.

Update: Corrected that the W administration was four Administrations ago.

Charlie Savage’s Obfuscations in the Service of Claiming Julian Assange Is a Journalist

/21 Comments/in , , , /by

Everyone is fighting for press freedoms again, and therefore lots of people are misrepresenting the facts about Julian Assange’s prosecution in purported defense of press freedom again.

These are the paragraphs with which UK Judge Vanessa Baraitser distinguished what Julian Assange is accused of from what “ordinary investigative journalists” entitled to protection in the UK or European Union do.

99. As part of his assistance to Ms. Manning, [Assange] agreed to use the rainbow tools, which he had for the purpose of cracking Microsoft password hashes, to decipher an alphanumeric code she had given him. The code was to an encrypted password hash stored on a Department of Defence computer connected to the SIPRNet. It is alleged that had they succeeded, Ms. Manning might have been able to log on to computers connected to the network under a username that did not belong to her. This is the conduct which most obviously demonstrates Mr. Assange’s complicity in Ms. Manning’s theft of the information, and separates his activity from that of the ordinary investigative journalist.

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

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

Assange is not an “ordinary investigative journalist,” according to the judge who ruled that his extradition would not violate journalistic protections, because he allegedly:

  • Tried to help Manning hack a password
  • Solicited hacks of Iceland
  • Identified a vulnerability in a US server and encouraged people to use it
  • In a speech invoking WikiLeaks’ role in helping Edward Snowden to flee to what ended up being Russia, allegedly encouraged people to join the CIA with the express intent of stealing files from it

A key point for Baraitser is this was all happening at the same time, Assange was allegedly soliciting hacks in Iceland even as he attempted to help Manning crack a password, and Manning knew about the other hacking.

Charlie Savage mentions none of this in a story explaining that Julian Assange’s extradition and prosecution, “raised the specter of prosecuting reporters.” He doesn’t even mention the second superseding indictment at all, the one that lays out (among other things) the allegation that Assange entered in a conspiracy to hack Stratfor, a hack that at least six people on both sides of the Atlantic already did time for.

But the specter of prosecuting reporters returned in 2019, when the department under Attorney General William P. Barr expanded a hacking conspiracy indictment of Julian Assange, the WikiLeaks founder, to treat his journalistic-style acts of soliciting and publishing classified information as crimes.

From there, Charlie tells a narrative that WikiLeaks has been pushing as part of Assange’s extradition defense, a claim that because DOJ Public Affairs head Matthew Miller said, in November 2013, that DOJ could not distinguish Julian Assange from what the NYT does, that means that the Obama Administration continued to face that challenge for the remaining three years of the Obama Administration, long after Miller left, and right through the time WikiLeaks played a key role in a Russian intelligence-led attack on American democracy. As Charlie presents it — citing no sources or public records, and I asked him if he was relying on any and he didn’t respond — the decision to prosecute Julian Assange arose not so much from a subsequent investigation that came to distinguish Assange’s actions from those of journalists, but instead because the Trump Administration “was undeterred” about the prospect of damaging “mainstream news outlets.”

Obama-era officials had weighed charging Mr. Assange for publishing leaked military and diplomatic files, but worried about establishing a precedent that could damage mainstream news outlets that sometimes publish government secrets, like The Times. The Trump administration, however, was undeterred by that prospect.

For now, the First Amendment issues are on hold as Mr. Assange fights extradition from Britain. Soon after the Biden administration took office, the Justice Department pressed forward with that extradition effort in British court, leaving the charges in place.

But that was before Mr. Garland was sworn in — and before the latest uproar about the escalating aggression of the Justice Department’s leak investigation tactics prompted him to focus on drafting a new approach that, he testified, will be “the most protective of journalists’ ability to do their jobs in history.”

It’s Trump’s doing, not the result of further investigation, Charlie reports, as news.

The WikiLeaks narrative that Charlie repeats unquestioningly is inconsistent with an April 2017 report — one Assange’s journalism professor expert witness claims to have been unable to find with the magic of Google — that what came to distinguish Assange from other journalists was his role in helping Edward Snowden.

The US view of WikiLeaks and Assange began to change after investigators found what they believe was proof that WikiLeaks played an active role in helping Edward Snowden, a former NSA analyst, disclose a massive cache of classified documents.

We now know, four years later, that not just DOJ but even “mainstream news outlets” considered what WikiLeaks did to help Snowden something other than journalism.

Bart Gellman’s book (which was published before the most recent superseding indictment) not only lays out how WaPo’s lawyers told Gellman that he and Laura Poitras could not safely, under the law, play the role (which is referenced in the superseding indictment against Assange that Charlie doesn’t mention) that WikiLeaks would end up playing, helping Snowden get asylum in what ended up be an adversarial nation. Gellman even cites communications he and Poitras sent to Snowden in real time explaining that taking steps to help Snowden get asylum in what might be, and as it happens turned out to be, a hostile country was not journalism.

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]

In other words, WaPo’s own lawyers made it clear that helping an intelligence source obtain asylum in another country is not journalism and might, instead, be viewed by the US government as abetting espionage.

Given Charlie’s focus on the transition from the Trump to Biden Administration, there’s something else glaringly absent from his story: the official record on the government response to WikiLeaks’ role in the 2016 election attack. Admittedly, great swaths of that discussion remain redacted (which suggests there’s stuff we may not know), but the Senate Intelligence Committee’s report the Obama Administration’s response to the 2016 Russian interference campaign discussed how part of that process involved “develop[ing] a complete understanding of WikiLeaks.”

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

In other words, in 2016 — three years after the Miller quote that WikiLeaks has trained obedient journalists to parrot unquestioningly — the government came to some new “complete” understanding of WikiLeaks. One of the most important players in this process was then White House Homeland Security Advisor, Lisa Monaco. Her interview with the committee is cited repeatedly in the unredacted passages of the report.

Admittedly, Monaco’s views on how or whether her own understanding of WikiLeaks changed as part of that process do not appear in the report. The SSCI report redacts what those Obama officials came to understand about WikiLeaks in the waning days of the Obama Administration. But, in a story presented as “news,” it seems important to consider how that process might influence Monaco’s understanding of the case against Assange, given that one of the last things she did when last in government was struggle to respond to an attack on American democracy in part because the government treated WikiLeaks as a journalistic outlet for far too long during the attack. Whatever she believes, Monaco knows far more than Matthew Miller, or us, for that matter. We might not agree with her thus far non-public understanding of WikiLeaks, but even the four year old understanding of WikiLeaks she brought to her position as Deputy Attorney General surely will have a bigger influence on DOJ’s decisions about Assange going forward than what the Public Affairs guy said eight years ago.

It’s not that I disagree that some of the charges against Assange — particularly for publishing the names of US and Coalition informants — present a dangerous precedent. They do, and those risks are important to talk about, accurately and honestly. On that note, though, it’s again worthwhile to see how Baraitser distinguishes Assange (note, the circumstances of the release of the informant names is the area where Assange presented the most evidence to challenge the government’s evidence).

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

[snip]

Free speech does not comprise a ‘trump card’ even where matters of serious public concern are disclosed (see Stoll above), and it does not provide an unfettered right for some, like Mr. Assange, to decide the fate of others, on the basis of their partially informed assessment of the risks.

[snip]

The New York Times published the following condemnation on 25 July 2012:

“The Times and the other news organizations agreed at the outset that we would not disclose —either in our articles or any of our online supplementary material — anything that was likely to put lives at risk or jeopardize military or antiterrorist operations. We have, for example, withheld any names of operatives in the field and informants cited in the reports. We have avoided anything that might compromise American or allied intelligence-gathering methods such as communications intercepts. We have not linked to the archives of raw material. At the request of the White House, The Times also urged WikiLeaks to withhold any harmful material from its Web site.”

This is a distinctly European decision. That’s true because in Europe, unlike the US, such protections are tied to being a journalist. Plus Baraitser argued that under EU law, Assange’s release violated privacy protections that simply don’t exist in the US. Mind you, it’s one thing to say the NYT won’t publish details that might endanger military operations and another thing to say such revelations shouldn’t be protected by the First Amendment. Even if WikiLeaks is a “hostile organization acting intentionally and deliberately to undermine U.S. or allies’ interests,” (as SSCI described), that should not, itself, surpass the First Amendment consideration.

But it underscores the point. There are First Amendment problems with the publication charges and, to a lesser extent, the other Manning-focused ones. But Assange actually wouldn’t be the first person extradited from the UK significantly for publication activities, the same thing happened to Minh Quang Pham for the few months he spent as AQAP’s graphic designer. That precedent has not only gone virtually unnoticed, but did little to harm the press freedom of others in the US. Not only are the First Amendment risks of Assange’s prosecution not tied to whether or not Assange is a journalist, but the effort to reinvent both the history of his prosecution and what he is accused of to turn him into a journalist has led a bunch of journalists and press freedom advocates to violate the principles that are supposed to distinguish journalism.

Welcome to Lisa Monaco’s DOJ, E Jean Carroll Lawsuit Edition

/56 Comments/in , , , , , , , /by

During Lisa Monaco’s confirmation hearing, several people joked about how few questions she was getting. Because Vanita Gupta had been targeted by Republicans, Monaco was left for broad swaths of the hearing, a spectator to that effort.

There were some good exchanges. In addition to complaining about DOJ’s refusal to respond to questions from Democratic members of Congress, Sheldon Whitehouse asked about OLC, to which Monaco provided an anodyne answer that was enough for Whitehouse, who was going to vote for Monaco one way or another. Josh Hawley asked some legitimately good questions, including about end-to-end encryption. To those questions, Monaco hewed a middle ground and an adherence to the laws on the books. John Cornyn asked the same question Republicans harped on with Merrick Garland, whether she would let John Durham finish his work, to which she responded that her job is to make sure he has the resources to do so, which (while more nuanced that it sounded) shut down that line of questioning.

It was a testament to how shallowly Republican staffers interpreted Lisa Monaco’s long career that Chuck Grassley asked Monaco whether she had involvement in Crossfire Hurricane — the answer was obviously no, given her White House role at the time. But Grassley didn’t ask whether her position at the nexus of Mike Flynn’s efforts to obtain information from the Obama White House in advance of making calls with Sergey Kislyak that Flynn lied to hide would affect her view of the Russian investigation. Perhaps only Susan Rice was more personally betrayed by Mike Flynn’s outreach to Russia, and yet Republicans seemed to not even realize that Flynn and KT McFarland sent Tom Bossert to query Monaco in advance of Flynn’s covert call with Russia, making her the Obama person most directly victimized by Flynn’s underhandedness.

That blithe ignorance of how Monaco’s personal history might affect her tenure extended beyond the Senate Judiciary Committee. For example, while every Assange supporter has targeted Biden and Garland for their pleas to drop the Assange prosecution, none have thought about the fact that Monaco was in charge of the response to the 2016 Russian interference campaign that led even WikiLeaks sympathizers in the Obama Administration to completely reconsider Assange’s game and his longterm relationship with Russia (then again, Assange supporters, almost to a one, have convinced themselves to believe bullshit propaganda about that decision being made under Trump).

Most people have failed to ask these questions about Monaco’s career experiences, even though as Deputy Attorney General, Monaco runs DOJ on a day-to-day basis and makes a lot of these decisions and serves as a key advisor to Garland where she doesn’t.

As a result of the very surface approach to Monaco’s career, there were a whole slew of questions in her confirmation hearing that should have been asked (and should be asked before Monaco’s close associate Matt Olsen is confirmed as National Security Division head), but were not. When Lisa Monaco was Robert Mueller’s top advisor in 2006, for example, what role did she play legalizing the phone dragnet aspiring to collect the phone records of all Americans under FISA’s Section 215? Given her past failures to fulfill promises of transparency, specifically as it relates to FISA, what can she do to ensure she will deliver on such transparency as Deputy Attorney General? What was her role in the execution of Anwar al-Awlaki, and what does that say about her willingness to support unfettered executive authority? With the value of hindsight, does Monaco believe that she was suckered into continuing John Brennan’s permissive approach to drone strikes as White House Homeland Security Advisor, and if so what would she do to give herself the leverage to actually change bad policies baked in by her predecessors?

Don’t get me wrong: Monaco has almost unparalleled qualifications to be Deputy Attorney General, she brings a lot of great qualities to the job, and I’m sure she’s a lovely person. But there was almost no consideration about what affect her long tenure at DOJ and in National Security roles would have on her view towards Presidential authority and DOJ institutional precedent before she was confirmed.

Indeed, in perhaps the question that got closest to asking how she would treat initiatives from career DOJ officials already in place, Monaco explained to Amy Klobuchar that she viewed her job as to empower the people at DOJ she believed operated from an inherently unpartisan stance.

Klobuchar: After the last four years where civil servants withstood political interference, what do you see your role is as restoring the trust in the Department of Justice?

Monaco: Well Senator, as I said in my opening remarks, I think that the career men and women of the Justice Department are its backbone. They’re the people that enforce the law independently, faithfully, fairly, impartially, without any consideration of improper motive. I think they simply want to do their job. They want to do their job with the resources and the tools to keep the American people safe, to prosecute violent crime, to administer justice with compassion, and with humility, as Judge Garland talked about before this committee. And they want to see equal justice under law, and they want to do the work that this Committee has done on a bipartisan basis to administer criminal justice reform. And so I think my role is to ensure that they’ve got the tools and resources to do their job and to protect them from improper influence, any partisan motive, because I think they just want to do their job.

This is the belief system that leads Monaco to respond to a question about career DOJ prosecutor John Durham’s clearly politicized investigation by saying that her job is to make sure he has the resources he wants to continue that investigation.

In her role at DOJ, Monaco has overseen some key wins: with the announcement yesterday that FBI had seized much of the ransomware payment that Colonial pipelines had paid Dark Side hackers, with her quiet presence on the public line listening as Paul Hodgkins made the first pure guilty plea of the January 6 investigation, with the decision — on her first full day in office — to let SDNY resume its investigation into Rudy Giuliani’s foreign influence peddling.

But also under her leadership, DOJ has delayed notice to NYT about an effort to get their Internet records in a clearly politicized investigation. DOJ has moved to hide the contents of a Bill Barr memo that clearly abused his authority and the role of OLC (and with that decision, protected career employees who were making similarly dubious claims when Monaco ran the National Security Division). DOJ has defended a lot of legal stances that were obviously political on their face, most recently and egregiously by sustaining DOJ support to give Trump immunity from suit in his attack on alleged rape survivor, E. Jean Carroll. That is, as she did before with Cheney’s Stellar Wind and Brennan’s drone program, Monaco seems to have chosen not to make a clean break from the horrible policies of her predecessors, choosing instead to ensure the continuity of the institution.

Again, Lisa Monaco oozes intelligence and competence; she’s undeniably qualified to be where she’s at. But she also got where she’s at by cleaning up the messes left by Stellar Wind, the torture program, and John Brennan’s drone program by improving those shitty policies without demanding any accountability for the abuse of DOJ and presidential authority they entailed. Plus, as a career DOJ official, she’s going to defend professionals who did stupid things on the orders of a deeply politicized boss.

Particularly in the wake of the decision to defend Trump against Carroll’s suit, people are wondering how Merrick Garland could make such a horrible decision. My suspicion is they would be better asking what Lisa Monaco’s role was in the decision.

Steve Bannon, Roger Stone, and the Ongoing Investigation into Cambridge Analytica

/9 Comments/in , /by

Steve Bannon responded to what may have been Alexander Nix’s pitch to reach out to Julian Assange to help find Hillary Clinton’s missing emails in June 2016 by responding, “Love it.”

DOJ has hidden that email in a series of FOIA releases to BuzzFeed under a b7A redaction, claiming an ongoing investigation prevents its release.

DOJ also continues to hide Roger Stone’s possible involvement in all this.

We can unpack what that email means by piecing together the multiple releases of Steve Bannon’s interviews and backup material liberated by BuzzFeed, which I’ve laid out in this post.

Bannon was first asked about this email — which DOJ released with b7B redactions related to the pending Roger Stone trial — in his February 14, 2018 interview, at which Bannon made a lot of claims that violently conflict with the now public record. Bannon claimed not to remember the email and also claimed not to know whether the person who sent the email ever did reach out to this person. The redactions show that the person in question had a 3-character name, meaning Nix is almost certainly the person at Cambridge Analytica who sent it. And the date of the email, June 12, is the same day that Assange said he had Hillary’s emails, the Assange comments in response to which Nix has said he did reach out.

DOJ released another copy of the same email when it released more of the backup to Bannon’s interviews earlier this month. DOJ redacted the previously released passages under privacy exemptions, and redacted the previously unredacted date under an ongoing b7A exemption. So it’s useless to help determine the full content of the email.

But it makes it possible to connect the email to Bannon’s second explanation of it in his October 28, 2018 interview. Bannon’s attempts to claim that “Love it” means “I don’t love it” were no more convincing in his October 2018 interview than they were in his February 2018 interview. Though by the end of his answer, Bannon admitted that, as someone who ran a media company and not yet a campaign, “there wasn’t any reason why doing it would be wrong.”

In this second explanation of the email, Bannon makes it quite clear that this was part of his effort to find Hillary’s missing 33,000 emails — the same purpose which Alexander Nix has admitted his outreach to Assange served. It appears that this email is a different one than the one that has been reported in the past, where Nix told Rebekah Mercer and someone else who was not (as Bannon was not yet) on the campaign that he had reached out to Assange.

If that’s right, then it’s unclear why the Congressional committees didn’t get this email, or indeed, why SSCI had to rely on the Daily Beast report of the outreach that purportedly sourced to Congressional investigators.

In that second interview, Bannon also described the coverage in 2017, which again strongly suggests this is Nix reaching out to Assange.

But that may not be the most important part of this email.

The passages from Bannon’s February 2018 interview that got reprocessed after Stone’s trial show that the second question after the one about this June 12 email prompted Bannon to explain how he met Stone. There’s even a question about whether Bannon introduced someone — again, a three letter name — to Stone. Stone and this person didn’t have a relationship, Bannon said, but the person was “trying to get business from Stone.” Bannon said he may have introduced the two.

Then there are a series of questions about other emails, several of which were withheld, probably under b7A redactions. Those include:

Bannon’s explanation for the second May 4 email is that it relates to Stone’s May 7 email (described as “Document #17).

All this seems to suggest that, even before Nix reached out to Julian Assange, he or someone else at CA and Stone were in discussions about a very sizable data project.

Seth Rich Conspiracists Liberate Records Showing DOJ Believes They’re Conspiracists

/13 Comments/in , /by

Some Seth Rich truthers — including Matthew Couch and Ed Butowsky — recently got some files in a FOIA on Seth Rich documents liberated. They succeeded in liberating files that show that a conspiracy theory they’ve been chasing is, in fact, easily explained based on how FOIA and time work.

On September 1, 2017, Ty Clevenger FOIAed for Seth Rich documents, including but not limited to everything about his murder. After Clevenger sued, FBI FOIA lead David Hardy issued a declaration dated October 3, 2018 saying that he had found no primary files pertaining to Rich (meaning the FBI didn’t investigate his death, DC did), and that on appeal of this September 1, 2017 FOIA, he had even searched for references to Rich, but found nothing.

Clevenger argued that that claim is inconsistent with the deposition of former AUSA Deborah Sines in one of the related Seth Rich lawsuits where she was asked about claims she made to Michael Isikoff and Andy Kroll. Specifically, Sines revealed that she was interviewed by a Mueller AUSA.

According to Ms. Sines’s testimony, the FBI conducted an investigation into possible hacking attempts on Seth Rich’s electronic accounts following his murder. Ms. Sines also testified that the FBI examined Seth Rich’s laptop computer as part of its investigation, and that there should be emails between her and FBI personnel. Finally, she testified that she met with a prosecutor and an FBI agent assigned to Special Counsel Robert Mueller.

Ms. Sines’s testimony conflicts with the affidavit testimony of David M. Hardy, who claimed that the FBI conducted a reasonable search and could not find any records pertaining to Seth Rich. See October 3, 2018 Affidavit of David M. Hardy (http://lawflog.com/wpcontent/uploads/2020/01/Hardy-Declaration.pdf) and July 29, 2019 Affidavit of David M. Hardy (http://lawflog.com/wp-content/uploads/2020/01/Second-Hardy-Declaration.pdf). Mr. Hardy’s affidavits were also contradicted by email records that Judicial Watch obtained in Judicial Watch, Inc. v. U.S. Department of Justice, Case No. 1:18-cv-00154-RBW (D.D.C.). See August 10, 2016 email string (https://tinyurl.com/wylcu9l or http://lawflog.com/wpcontent/uploads/2020/04/FBI-emails-re-Seth-Rich.pdf). Clearly, the FBI is in possession of email records pertaining to Seth Rich.

Clevenger insists that records of this interview should have shown up in response to his September 1, 2017 FOIA.

Based on what the government released, it is true that Hardy’s declaration was wrong. There was an August 10, 2016 email chain via which a Washington Field Office press person alerted people to press questions after Julian Assange alleged Rich had a role in the email leak; the email chain ultimately included Peter Strzok. There was a September 1, 2016 notation by the San Francisco team that first investigated Guccifer 2.0 about something (probably information shared by either Twitter or WordPress). There were two copies of a 302 reporting on the September 14, 2016 interview of a DNC staffer (possibly Ali Chalupa) whose interview mentioned both Paul Manafort and Rich.

Those are the only things turned over, however, that pre-date Clevenger’s September 1, 2017 FOIA. So they’re the only things that Hardy should have found in his reference check.

That said, the claim that Hardy covered up details about Sines probably doesn’t hold up.

The document opening a case on a Dark Web threat, which may reflect the FBI investigation into allegations that someone tried to hack Rich’s email, is dated November 7, 2017.

And what is almost certainly Sines’ interview with Mueller detailee Heather Alpino took place on March 15, 2018. In addition to the AUSA’s explanation that she (again, almost certainly Sines) had collected all the conspiracy theories floating about Rich’s death, the 302 also reveals that the AUSA reviewed Rich’s financial records and job prospects as part of the investigation.

The 302 is also consistent — as are multiple other documents from this release — with the FBI obtaining Rich’s laptop after Clevinger’s original FOIA, as part of the Mueller investigation. The 302 shows the AUSA “request[ing] a forensic image of the laptop for the homicide investigation” from Alpino. If that’s right, the FBI didn’t even get Rich’s laptop until months after Clevenger first FOIAed for such information. The FBI received voluntary production of something on October 24, 2017, some of which was too large to be uploaded digitally, which could be the laptop. The FBI also received information on May 30, 2018 from the DNC which must include material pertaining to Rich.

Again, all that post-dates the original FOIA, and so would not have been included in Hardy’s search.

Indeed, these records indicate that the Mueller and hacking investigation did a lot of the things that the conspiracists claim they didn’t do, including chasing down the Seth Rich allegations, largely because the allegations floated by Roger Stone and Jerome Corsi became a focus of the investigation. The release includes two consent to search forms signed by Jerome Corsi on October 4, 2018, which suggest his electronic files were of interest in part because of claims he made about Seth Rich.

There are, however, a few interesting tidbits in here.

On April 9, 2019, the “SCO team” referred “information on a potential fraud scheme collected in the course of a Special Counsel’s Office.” That suggests one of the referrals Mueller made had to do with a fraud scheme involving Seth Rich.

A far more interesting document involves two pages of a 15-page 302 reflecting a 4-hour recorded interview that took place on October 2, 2019 between two FBI Agents and Dana Rohrabacher. Rohrabacher doesn’t appear to have had an attorney present. The interview covered “a wide variety of topics,” including people Rohrabacher had known going back to the Reagan administration. But the fragment pertaining to Rich appears among discussions about business relationships Rohrabacher had, including someone being asked to write articles of some sort (it’s not impossible that this is a reference to Corsi). The passage that probably relates to Rich is redacted for ongoing investigation. The circumstances under which alleged Russian asset Dana Rohrabacher would have a 4-hour recorded interview with the FBI are very curious indeed.

A word about what was included in this batch: The FBI put together a collection of 576 responsive pages that only provided pages that provided context to the reference to Rich, along with the page reference itself (so an entire 302 was only included if the entire interview pertained to Rich, otherwise they included the introductory page and the page with the Rich reference). Then, they withheld a bunch of pages in entirety, leaving fewer than 80 pages in the released files. So we don’t get to see every page (and a number of these files are Mueller files that were already released).

But what we do get to see reflect nothing of real interest that was in the FBI files when Clevenger first submitted his FOIA.

Update: This release includes some files (including the Sines one and a Jason Fishbein) that should have been turned over to BuzzFeed as part of that FOIA but I believe were not.

They also reprocessed this Jerome Corsi interview report, which doesn’t disclose anything that wasn’t already known, and this Paul Manafort interview report. The latter newly reveals that every day the week before the Podesta files dropped, Roger Stone told him they were coming, which makes it clear Stone didn’t have a lot of clarity on the timing of the release. It also shows Manafort recalling that, “Stone said things would come out related to Podesta. He did not recall that Stone specifically mentioned Podesta’s emails, just that Stone said it related to Podesta.” Similar Manafort testimony had shown up elsewhere, but this confirms that Manafort repeatedly testified that Stone knew the second WikiLeaks dump would pertain to Podesta.

Update: Corrected the timing of when FBI may have obtained Rich’s laptop.

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

/9 Comments/in , /by

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

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

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

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

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

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

The Most Counterproductive Letter in Defense of Julian Assange

/20 Comments/in , /by

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

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

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

[snip]

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

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

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

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

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

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

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

/19 Comments/in , , , /by

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

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

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

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

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

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

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

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

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

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

[snip]

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

[snip]

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

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

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

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

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

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

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

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

[comparison with other outlets and their condemnation of him]

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

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

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

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

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

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

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

Update: Corrected ECHR thanks to Chetnolian.

Julian Assange Officially Asks Trump to Pardon Him for Helping Him Get Elected

/22 Comments/in , , /by

As I have noted, there’s abundant evidence that Robert Mueller investigated pardon discussions between Julian Assange and Roger Stone; that investigation appeared to be ongoing at least as of October 2020. That should make any Trump pardon of Julian Assange at least as legally fraught as any of the others he has given or is expected to give, short of a self-pardon.

Predictably, Ken Vogel makes no mention of that in his story on two parallel efforts to obtain a pardon for Assange. Nor does Vogel note that the petition submitted by Assange’s US defense attorney, Barry Pollack, includes what would be that quid pro quo in the requested scope of the pardon.

Mr. Assange should be granted a pardon to cover the conduct at issue in the pending criminal case against him and any other conduct prior to the pardon grant that could be the basis for criminal charges against him in the United States.

If Trump gave Assange a pardon with this scope, the language would amount to a pardon for helping Trump get elected, a pardon under discussion within days of Trump’s 2016 victory if not even before it. This would amount to a more generous pardon than Trump gave his own rat-fucker, Roger Stone.

Along with a misrepresentation of what the current CFAA charge against Assange is and a claim that Assange, “has already been confined longer than any person ever charged or convicted under the Espionage Act in its more than 100-year history” (effectively counting time Assange chose to hide out in the Ecuadorian Embassy while still engaged in similar acts to those he’s being prosecuted for), Pollack presents a really hysterical subset of the files Assange leaked in 2016 and 2017:

In 2016, WikiLeaks published:

  • 19,252 e-mails and 8,034 attachments from the Democratic National Party leadership, which resulted in the resignation of five top officials who had taken actions during the primaries in favor of Hillary Clinton over Bernie Sanders.

In 2017,WikiLeaks:

  • exposed lax security in the CIA unit dedicated to malware development, a fact acknowledged by an internal CIA report into the publication, which was subsequently revealed by Senator Ron Wyden; and
  • published the “the Russia Spy files,” documents relating to Russia under Vladimir Putin, including releases about surveillance contractors in Russia.

Pollack leaves off, among other things, the Podesta files involved in the seeming quid pro quo (which I guess might otherwise make him party to the crime). And he includes the Russian files for the same reason WikiLeaks published the already published files — as propaganda to cover up his role as a cut-out for Russia. The Vault 7 release, of course, happened during the period when — Pollack claims — Assange was “confined” as if it had anything to do with Espionage charges.

The real focus of the Vogel story, however, is how — in the wake of Trump’s coup this week — a bunch of Australian buddies of Assange just signed a “pro bono” contract with a lobbyist to push for the pardon.

Mr. Davis, who is now a lawyer specializing in national security and whistle-blower cases, is on the board of Blueprint for Free Speech, an Australia-based nonprofit group that advocates for press freedoms and whistle-blower protections. The group, which was started by Suelette Dreyfus, a former journalist who is an old friend and collaborator with Mr. Assange, signed a pro bono contract on Saturday with the lobbyist Robert Stryk to seek a pardon for Mr. Assange.

During Mr. Trump’s presidency, Mr. Stryk, who is well connected in Trump administration circles, has developed a lucrative business representing foreign clients in precarious geopolitical situations.

He has worked for a jailed Saudi prince who had fallen out of favor with his country’s powerful de facto leader, as well as the administration of President Nicolás Maduro of Venezuela, which the Trump administration considers illegitimate. Mr. Styrk also worked for Isabel dos Santos, the daughter of Angola’s former president, who is accused of embezzling millions of dollars from a state oil company she once headed, as well as the government of the former Congolese president Joseph Kabila, which had faced American sanctions for human rights abuses and corruption.

Disclosure: my travel expenses were paid to speak at events in Australia in 2017 by Dreyfus’ organization.

Again, I’m perfectly happy with the decision that our prisons are too inhumane for Assange. Pollack is a superb lawyer and Assange is certainly entitled to a vigorous defense (the first real hint of which shows up in the petition). But this whole effort is yet more of a propaganda campaign hiding what Assange has become and the role Assange had in electing the guy who just attempted a coup to stay in power. That does not serve journalism, though it may give Trump enough cover to pay off his 2016 campaign dues to Russia.

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

/119 Comments/in /by

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

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

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

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

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

[snip]

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

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

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

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