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Rat-Fucker Rashomon: Four Stories about Roger Stone (Introduction)

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As background for some other things and because I’m a former scholar of narrative, I want to lay out the four different stories that have been told of Roger Stone’s actions in 2016 and after:

One day there might be a fifth story, the investigative records, but those are still so redacted (and the subjects were such committed liars) to be of limited use right now, so while I will integrate them and other public records into this series, I won’t treat them as a separate story.

I observed in this post that a September 2018 affidavit revealed that the Stone indictment and trial were, in part, investigative steps in a larger investigation, an investigation that Bill Barr appears to have since substantially killed. The affidavit asked for (and received) a gag because, it explained, investigators were trying to keep Stone from learning that the investigation into him was broader than he thought.

It does not appear that Stone is currently aware of the full nature and scope of the ongoing FBI investigation. Disclosure of this warrant to Stone could lead him to destroy evidence or notify others who may delete information relevant to the investigation.

Partly, the larger investigation must have been an effort to determine — and if possible, obtain proof beyond a reasonable doubt — of how Stone optimized the release of (at least) the Podesta emails. I think the evidence shows Stone did partly optimize the release, though I also believe doing so served as much to compromise Stone and others as to help Trump get elected. In an unreliable Paul Manafort interview, Trump’s former campaign chair describes a conversation (this may have taken place in spring 2018, during a period when Manafort unconvincingly claims he was not engaged in concocting a cover story with his lifelong buddy) where Stone clarified that he was just a conduit in the process of optimizing the Podesta release, not the decision maker.

Stone said to Manafort that he was not the decision maker or the controller of the information. Stone said he may have had advance knowledge, but he was not the decision maker. Stone was making clear to Manafort that he did not control the emails or make decisions about them. Stone said he received information about the Podesta emails but was a conduit, not someone in a position to get them released.

That’s Stone and Manafort’s less damning explanation, that Stone did have advance knowledge but didn’t control the process! It may also be true, though Stone likely believed he was controlling things in real time, when he was making stupid promises. Being a reckless rat-fucker can make a guy vulnerable to rat-fuckery himself.

I also believe that prosecutors did confirm how Stone got (information on) the emails and what stupid promises he had to make to get them, though not until after Stone was charged in his cover-up and probably not beyond a reasonable doubt. But, likely for a variety of reasons, they never told us that in any of the four stories that have been released about Stone.

So I want to examine what story each of the four narratives tell, because what an author withholds [wink] is always at least as interesting as what storyline the author uses to engage her readers.

The Mueller Report

All these stories are constrained, in part, by their genre.

For example, legally, the Mueller Report fulfills a requirement of the regulation under which Mueller was appointed.

Closing documentation. At the conclusion of the Special Counsel’s work, he or she shall provide the Attorney General with a confidential report explaining the prosecution or declination decisions reached by the Special Counsel.

You finish your work, and you tell the Attorney General overseeing your work whom you charged, whom you didn’t, and why. The Mueller Report, consisting of two volumes and some appendices laying out referrals from the investigation itself, therefore had to tell a story to support these decisions:

  • To charge a bunch of IRA trolls but none of the Americans unwittingly cooperating with them
  • To charge a bunch of Russian intelligence officers but not WikiLeaks or Roger Stone (though note that Rod Rosenstein has said the WikiLeaks investigation always remained at EDVA)
  • Not to charge Don Jr and Stone for accepting or soliciting illegal campaign donations from foreigners
  • Not to charge a bunch of Trumpsters for their sleazy influence peddling
  • To charge a bunch of Trumpsters with lying and (in the case of Manafort and Gates) various kinds of financial fraud, but not to charge other Trumpsters for equally obvious lying
  • Effectively (and this is my opinion), to refer Trump to Congress for impeachment
  • To refer a bunch of other matters, ranging from Trumpsters’ financial fraud, George Nader’s child porn (though given the releases from the other day, it’s not clear that’s formally in the report), and a number of counterintelligence matters, for further investigation

That’s not all. Technically, one investigation into someone either close to or Trump himself wasn’t even done at the time Mueller finished. Documents show a campaign finance investigation–AKA bribery–involving a bank owned by a foreign country was ongoing; Bill Barr has recently publicly bitched about the legal theory behind the investigation (one SCOTUS approved) and it has been closed. And, significantly, for the purpose of this series, Mueller had not obtained Stone aide Andrew Miller’s testimony when the Report got written either, though at the minute Miller agreed to testify, Mueller was giving a presser closing up shop, presumably (though not definitely) making Miller’s testimony part of the ongoing investigation related to Stone.

Aside from those two details, the story the Mueller Report has to tell has to explain those prosecutorial decisions. For the sake of this series, then, the story has to tell why Stone wasn’t charged for soliciting illegal campaign donations from WikiLeaks, why he was charged for lying to obscure who his go-between was and whether he had discussed all that with Trump and others on the campaign, and why Trump should be impeached for his promises to pardon Stone (among others) for covering up what really happened in 2016.

Significantly for this story, Stone was not charged because he lied about having a go-between (he lied to Congress to cover up who it was), nor was he charged for any actions he took with his go-between to get advance information. I’m not certain, but such charges may actually not be precluded by double jeopardy; if not, this story may have been written to ensure no double jeopardy attached. In any case, we shouldn’t expect details of his go-between to be fully aired in the report (or encompassed by it), because it was not a prosecutorial decision that needed to be explained.

The timeline of the Stone part of this story starts in early June 2016, and (for the main part of his story) ends the day the Podesta emails got released, October 7, leaving out a bunch of Stone activities that were key prongs of the investigation.

The Stone prosecution

The story told by the Stone prosecution unsurprisingly adopts the same general scope as the Mueller Report.

As noted above, the government took a number of investigative steps in 2018 that they kept secret from Stone, explicitly because they wanted Stone to continue to believe he was only under investigation for his lies about his claims about having a go-between with WikiLeaks. Because of that, I think the story the Stone prosecution told is best understood as a way to use the prosecution to advance a larger investigation, without compromising the rest of it. As such, it makes the way in which prosecutors controlled this narrative all the more interesting. That dual objective — advancing the larger investigation but keeping secrets –meant that prosecutors needed to provide enough detail to win the case — possibly even to get testimony about specific details to achieve other objectives in their investigation — but not disclose details that would give away the rest or require unreliable witnesses.

The Stone prosecutors provided us a handy timeline to show the scope of its story, split into two sections. The first starts with Assange’s promise of additional Hillary files on June 12, 2016 and ends on October 7, 2016.

While Rick Gates did testify that Stone predicted a WikiLeaks drop even before June 12, his testimony focused far more closely on discussions they had in the wake of the June 14 DNC announcement they’d been hacked. So the prosecution left out interesting details about what Stone was up to in spring 2016.

By ending the earlier, election-related timeline on October 7, prosecutors didn’t include a presumed Stone meeting with Trump on October 8 or the evidence that he and Corsi had advance knowledge of certain Podesta files, which became clear around October 13, to say nothing of what happened in the days after the election.

Then, the prosecution adopted a later timeline covering obstruction and witness tampering. It starts on January 6, 2017 and — at least on this timeline — goes through January 28, 2018 (though FBI Agent Michelle Taylor introduced evidence and Randy Credico testified to events that took place after that date).

That’s the scope of the story: an abbreviated version of 2016, starting after Stone first starting claiming to have advance warning of the email dumps, and ending well before things started to get interesting in the lead-up to and aftermath of the election.

A simplified version of the plot this story tells is how Stone used Credico to make sure no one would look too closely at what he had been up to with Corsi.

The SSCI Report

As I said, most of these stories were dictated, in part, by genre and a specific goal. Prosecutors writing the Mueller Report could only tell a story that explained prosecutorial decisions, and in this case, they had an ongoing investigation to protect (which Barr appears to have since substantially killed). Prosecutors scoping the Stone prosecution only had to present enough evidence to get their guilty verdict, and presumably didn’t want to produce evidence that would disclose the secrets they were trying to keep or expose a weakness in an otherwise airtight case. As for the warrants, every affidavit an FBI agent writes notes that they are including only as much as required to show probable cause. With a caveat laid out below, the FBI agents wouldn’t want to include too much for fear of giving defendants reason to challenge the warrants in the future. So the Stone affidavits, like all probable cause affidavits, are an exercise in careful narrative, telling a story but not telling too much.

Thus, the SSCI Report (clocking in at almost 1,000 pages) is the only one of these four stories that even pretends to be revealing all it knows. But it also didn’t try to tell the whole story. It limited the scope of the investigation in various ways (most notably, by refusing to investigate Trump’s financial vulnerabilities to Russia). And over and over again, the SSCI Report pulled punches to avoid concluding that the President is a glaring counterintelligence risk. The imperative of protecting the President (and getting Republican votes in Committee to actually release it) affected the way SSCI told its story in very tangible ways.

Because it is a SSCI Report, this story has a ton of footnotes which are (as they are in most SSCI Reports) a goldmine of detail. But the decision of what to put in the main body of a story and what to relegate to a footnote is also a narrative question.

Importantly, SSCI had outside limitations on its investigation — and therefore its story — that the FBI did not have. Rick Gates, Jerome Corsi, and Paul Manafort largely invoked the Fifth Amendment. Stone refused to testify. SSCI only received a limited subset of Mueller’s 302s, and none pertaining to the GRU investigation. SSCI had limited ability to demand the content of communications. The White House and the Trump Org withheld documents, even some documents they otherwise provided to Mueller. Plus, the version of the report we have is heavily redacted (including much of the discussion about WikiLeaks), sometimes for classified reasons but also sometimes (if you trust Ron Wyden’s additional views) to protect the President. That means we don’t even get the full story SSCI told.

Nevertheless, while SSCI left out parts of the story that the FBI seems to have considered important, the SSCI Report also includes a lot that DOJ and FBI had to have known, but for reasons that likely stem, in part, from the stories they wanted or were obligated to tell, they chose not to disclose. That makes the SSCI Report really useful to identify what must be intentional gaps in the other stories.

Like the Mueller Report (in part because it relied heavily on it), the story that the SSCI Report tells about Stone adopts an uneven timeline, narrowly focusing on Stone’s election season activities even while for others it adopts a broader timeframe. More generally, though, the SSCI Report tells a story about the dangerous counterintelligence threats surrounding the President, while stopping short of fully considering how he is himself a counterintelligence threat.

The warrant affidavits

As noted, FBI warrants deliberately and explicitly try to find a sweet spot, establishing probable cause but not including stuff that either might be challenged later or might give away investigative secrets. That said, Andrew Weissmann’s book reveals that Mueller’s team included more detail than needed in affidavits to provide a road map if they all got fired.

We also realized we could use the courts as a kind of external hard drive to back up our work. The applications for search warrants we filed with the court only had to set out a minimum of facts from which the court could find probable cause—a fairly low standard. But by packing those documents with up-to-date details of our investigation, we could create a separate record of our activities—one that would be deposited securely in the judicial system, beyond the reach of the Department of Justice, the White House, or Congress. (Putting such a substantial record before the court had the added benefit of eliciting quick rulings on our applications and demonstrating that we were not tacking too close to the line in establishing the necessary probable cause.)

The affidavits in the Stone case — written by at least 5 different FBI agents — actually tell two stories: The first is a narrative of how allegations were made and then removed, often for emphasis but also, probably in some cases, because suspicions were answered. The second is an evolving narrative of some of the core pieces of evidence that Stone did have advance notice of the releases, and so may have had legal liability — either as a co-conspirator, or someone who abetted the operation — for the hack-and-leak. It came to double in on itself, investigating Stone’s extensive efforts to thwart the investigation. Near the end of the investigation, that story came to incorporate Foreign Agent charges (though it’s not entirely sure how much Stone, or other people like Assange, are the target of those warrants, and virtually all that story is redacted). I lay out how these two narratives intersect here.

For some of the investigation, the affidavits adopted a timeline starting in June 2015 (when Stone worked on the Trump campaign) and continuing through the election, but ultimately that timeline extended through to the present in 2018 and 2019, ostensibly to support the obstruction investigation.

The gaps

The differences between the stories may be easiest to identify by observing what each leaves out. Each of these stories leaves out some pieces of evidence of one or more of the following:

  • The extent and nature of Stone’s provable interactions about WikiLeaks with Trump: While all of these stories do include evidence that Stone kept Trump apprised of his efforts to optimize the Podesta release, the SSCI Report — completed without Trump’s phone records or those of many others, with a very limited set of witness 302s, and limited power to access evidence of its own — describes damning interactions that none of the other stories do.
  • The extent to which either Corsi or Stone succeeded in dictating the release of the Podesta emails on October 7, 2016 and why: Several stories consider only whether Corsi managed to get WikiLeaks to drown out the Access Hollywood video, without considering whether Stone did.
  • What Stone and Corsi did with advance knowledge that WikiLeaks would release information on John Podesta’s ties with Joule holdings: Manafort’s unreliable testimony (and a bunch of other evidence) seems to confirm that Stone and Corsi had at least advance notice of, if not documents themselves, on Podesta’s ties with Joule Holdings that were later released by WikiLeaks. Only one of these four stories — the affidavits — include this process as a central story line, but it’s one way to show that the rat-fucker and the hoaxster did have advance knowledge (and show what their fevered little brains thought they were doing with it).
  • Proof that Stone had foreknowledge: While much of this is inconclusive, the affidavits make it clear that investigators believed Stone’s knowledge went beyond and long preceded what Corsi obtained in early August 2016. Once you establish that foreknowledge, then all question of Corsi versus Credico is substantially meaningless window-dressing (albeit convenient window dressing if you’re trying to hide a larger investigation).
  • Steve Bannon’s knowledge of and possible participation in Stone’s schemes shortly after he came on as campaign manager: The government almost certainly has grand jury testimony laying this out. But we’ve only seen glimpses of what happened after Stone wrote Bannon and floated a way to win the election the day he came onto the campaign, and not all of these stories were even curious about what happened.
  • Stone’s social media efforts to undermine the Russian attribution: I’m agnostic at this point about the significance of investigators’ focus on Stone’s efforts to undermine the Russian attribution for the operation, but some stories cover it and others ignore it conspicuously.
  • Stone’s extended effort to get a pardon for Julian Assange: It is a fact that Stone pursued a pardon for Julian Assange after Trump won. While it’s not yet proven whether Stone reached out to WikiLeaks on or even before November 9 or waited until days later, several of these stories incorporate details of that effort. Others ignore it.
  • Stone’s interactions with Guccifer 2.0: This story is virtually identical, albeit with additive bits, in three of the four stories. It is — almost — entirely absent from the prosecution.

The Manafort-Stone connection

One other detail to consider as you look at the different stories told here: Not a single one of them treats Manafort and Stone as a unit or a team. Partly this is just convenience. It’s hard to tell a story with two villains, and there is so much dirt on both Manafort and Stone, there’s more than enough material for one story for each. We also know that from the very beginning of the investigation, the Mueller team largely kept these strands separate, a team led by Andrew Weissmann focusing on Manafort and a team led by Jeannie Rhee focusing on Russian outreach (though 302s and other documents show that Rhee definitely participated in both, and Weissmann describes working closely with Rhee in his book).

But Roger Stone played a key role in getting Manafort hired by the Trump campaign. They were friends from way back. They used each other to retain a presence on the campaign after they got booted. Stone made reckless efforts to obtain the Podesta files partly in a bid to save Manafort. So while it’s easy to tell a story that keeps the Manafort corruption and the Stone cheating separate, that may not be the correct cognitive approach to understand what happened.

None of these stories tell the complete story. Most deliberately avoid doing so, and the one that tried, the SSCI Report, stopped short of telling all that’s public and didn’t have access to much that remains secret. Reading them together may point to what really happened.

Links to all posts in the series

“A Digital Pearl Harbor:” The Ways in Which the Vault 7 Leak Could Have Compromised US and British Assets’ Identities

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The Julian Assange extradition defense yesterday started presenting evidence that Assange suffers from conditions — Aspergers, depression, and suicidal tendencies — that would make US prisons particularly lethal. It’s the defense that Lauri Love used to avoid extradition, and is Assange’s most likely chance of success. And given our inhumane prisons, it’s a perfectly fair defense against his extradition.

Before that, though, the most interesting evidence submitted by Assange’s team pertained to the three charges that he identified the identities of US and Coalition (and so, British) informants in the Afghan, Iraq, and Cablegate releases. For each of those releases, Assange’s team presented evidence that someone else — Cryptome, in one case, some Guardian journalists in another — released the informants’ identities first. At one point, the lawyer for the US seemed to suggest that Assange had made such disclosures more readily available after the identities had already been published. But Assange can only be extradited for charges that are illegal in the UK as well, and while the UK’s Official Secrets Act explicitly prohibits the publication of covert identities, it does not prohibit republication of names.

In other words, it’s the one evidentiary question where I think WikiLeaks might have the better case (the government has yet to present its own counter-evidence, and Assange has to prove that the charges are baseless to prevent the extradition, so it’s a high hurdle).

The question is particularly interesting for several reasons. Publishing the names of informants is the one charge specifically tied to publication, rather than conspiring to get Chelsea Manning to leak, making it dangerous for journalism in a different way than most of the other charges (save the CFAA charge).

But also because — in a Mike Pompeo screed that many WikiLeaks witnesses have cited completely out of context, in which the then-CIA Director named WikiLeaks a non-state hostile intelligence agency — he accused WikiLeaks of being like Philip Agee, a disillusioned CIA officer who went on to leak the identities of numerous CIA officers who was credibly accused of working with Cuban and Russian intelligence services.

So I thought I’d start today by telling you a story about a bright, well-educated young man. He was described as industrious, intelligent, and likeable, if inclined towards a little impulsiveness and impatience. At some point, he became disillusioned with intelligence work, and angry at his government. He left the government and decided to devote himself to what he regarded as public advocacy: exposing the intelligence officers and operations that he had sworn to keep secret. He appealed to agency employees to send him leads, tips, suggestions. He wrote in a widely-circulated bulletin quote “We are particularly anxious to receive – and anonymously, if you desire – copies of U.S. diplomatic lists and U.S. embassy staff,” end of quote.

That man was Philip Agee, one of the founding members of the magazine CounterSpy, which in its first issue, in 1973, called for the exposure of the CIA undercover operatives overseas. In its September 1974 issue, CounterSpy publicly identified Richard Welch as the CIA station chief in Athens. Later, Richard’s home address and phone number were outed in the press, in Greece. In December 1975, Richard and his wife were returning home from a Christmas party in Athens. When he got out of his car to open the gate in front of his house, Richard Welch was assassinated by a Greek terrorist cell.

At the time of his death, Richard was the highest-ranking CIA officer killed in the line of duty. He had led a rich and honorable life – one that is celebrated with a star on the agency’s memorial wall. He’s buried at Arlington National Cemetery, and has remained dearly remembered by his family and colleagues.

Meanwhile, Philip Agee propped up his dwindling celebrity with an occasional stunt, including a Playboy interview. He eventually settled down as the privileged guest of an authoritarian regime – one that would have put him in front of a firing squad without a second thought had he betrayed its secrets instead of ours.

Today, there are still plenty of Philip Agees in the world, and the harm they inflict on U.S. institutions and personnel is just as serious today as it was back then. They don’t come from the intelligence community, they don’t all share the same background, or use precisely the same tactics as Agee, but they are soulmates. Like him, they choose to see themselves under a romantic light as heroes above the law, saviors of our free and open society. They cling to this fiction even though their disclosures often inflict irreparable harm on both individuals and democratic governments, pleasing despots along the way.

The one thing they don’t share with Agee is the need for a publisher. All they require now is a smartphone and internet access. In today’s digital environment, they can disseminate stolen U.S. secrets instantly around the globe to terrorists, dictators, hackers and anyone else seeking to do us harm.

The reference to Richard Welch is inaccurate (in the same way the claim that WikiLeaks is responsible for release of these informants’ identities could be too). Much of the rest of what Pompeo said was tone-deaf, at best. And that Pompeo — who months earlier had been celebrating WikiLeaks’ cooperation with Russia in interfering in the 2016 election — said this is the kind of breathtaking hypocrisy he specializes in.

Still, I want to revisit Pompeo’s insinuation, made weeks after the release of the Vault 7 files, that Julian Assange is like Philip Agee. The comment struck me at the time, particularly given that the only thing he mentioned to back the claim — also floated during the Chelsea Manning trial — was that WikiLeaks’ releases had helped al-Qaeda.

And as for Assange, his actions have attracted a devoted following among some of our most determined enemies. Following the recent WikiLeaks disclosure, an al-Qaida in the Arabian Peninsula member posted a comment online thanking WikiLeaks for providing a means to fight America in a way that AQAP had not previously envisioned. AQAP represents one of the most serious threats to our country and around the world today. It’s a group that is devoted not only to bringing down civil passenger planes but our way of life as well. That Assange is the darling of these terrorists is nothing short of reprehensible. Have no doubt that the disclosures in recent years caused harm, great harm, to our nation’s national security, and they will continue to do so for the long term.

They also threaten the trust we’ve developed with our foreign partners when that trust is crucial currency among allies. They risk damaging morale for the good officers at the intelligence community and who take the high road every day. And I can’t stress enough how these disclosures have severely hindered our ability to keep you all safe.

But given what we’ve learned about the Vault 7 release since, I’d like to consider the multiple ways via which the Vault 7 identities could have — and did, in some cases — identify sensitive identities. Pompeo’s a flaming douchebag, and the CIA’s complaint about being targeted like it targets others is unsympathetic, but understanding Pompeo’s analogy to Agee provides some insight into why DOJ charged WikiLeaks in 2017 when it hadn’t in 2013.

Vault 7, justifiably or not, may have changed how the government treated WikiLeaks’ facilitation of the exposure of US intelligence assets.

Before I start, let me emphasize the Vault 7 leak is not charged in the superseding indictment against Assange, and Assange’s treatment of Vault 7 may be radically different than his earlier genuine attempts to at least forestall or delegate the publication of US informant identities. Even if DOJ’s understanding of WikiLeaks’ facilitation of the exposure of US intelligence assets may have changed with the Vault 7 release, DOJ understanding may not be correct. Nor do I think this changes the risk to journalism of the current charges, as charged.

But it may provide insight into why the government did charge those counts, and what a superseding indictment integrating the Vault 7 leak might look like.

First, although WikiLeaks made a big show of redacting the identities of the coders who developed the CIA’s hacking tools (as they did with the 2010 and 2011 releases), some were left unredacted in the content of the release. That may be unintentional. But the first FBI affidavit against accused Vault 7 leaker Joshua Schulte noted that the pseudonyms of the two other SysAdmins who had access to the files were left unredacted in the first release, something that suggests more intentional disclosure, one that would presumably require the involvement of Schulte or someone else who knew these identities.

i. Names used by the other two CIA Group Systems Administrators were, in fact, published in the publicly released Classified Information.

ii. SCHULTE’s name, on the other hand, was not apparently published in the Classified Inforamtion.

iii. Thus, SCHULTE was the only one of the three Systems Administrators with access to the Classified Information on the Back-Up Server who was not publicly identified via WikiLeaks’s publication of the Classified Information.

A subsequent WikiLeaks release (after the FBI had already made it clear he was a, if not the, suspect) would include Schulte’s username, but I believe that is distinguishable from the release of the other men’s cover names.

Schulte would later threaten to leak more details (including, presumably, either his cover or his real name) on one of those same guys, someone he was particularly angry at, from jail, including the intriguing hint that he had been exposed in the Ashley Madison hack.

 

At trial, Schulte’s lawyer explained that the leaking he attempted or threatened from jail reflected the anger built up over almost a year of incarceration, but there’s at least some reason to believe that the initial Vault 7 release intentionally exposed the identities of CIA employees whom Schulte had personal gripes with, or at the very least he hoped would be blamed other than him.

Then there’s the damage done to ongoing operations. At trial, one after another CIA witness described the damage the Vault 7 leak had done. While the testimony was typically vague, it was also more stark in terms of scale than what you generally find in CIA trials.

After describing the leak the “equivalent of a digital Pearl Harbor,” for example, Sean Roche, who was the Deputy Director for Digital Innovation at the time of the leak, testified how on the day of the first release, the CIA had to shut down “the vast, vast majority” of operations that used the CIA tools (at a time, of course, when the CIA was actively trying to understand how Russia had attacked the US the prior year), and then CIA had to reach out to those affected.

It was the equivalent of a digital Pearl Harbor.

Q. What do you mean by that?

A. Our capabilities were revealed, and hence, we were not able to operate and our — the capabilities we had been developing for years that were now described in public were decimated. Our operations were immediately at risk, and we began terminating operations; that is, operations that were enabled with tools that were now described and out there and capabilities that were described, information about operations where we’re providing streams of information. It immediately undermined the relationships we had with other parts of the government as well as with vital foreign partners, who had often put themselves at risk to assist the agency. And it put our officers and our facilities, both domestically and overseas, at risk.

Q. Just staying at a very general level, what steps did you take in the immediate aftermath of those disclosures to address those concerns?

A. A task force was formed. Because operations were involved we had to get a team together that did nothing but focus on three things, in this priority order. In an emergency, and that’s what we had, it was operate, navigate, communicate, in that order. So the first job was to assess the risk posture for all of these operations across the world and figure out how to mitigate that risk, and most often, the vast, vast majority we had to back out of those operations, shut them down and create a situation where the agency’s activities would not be revealed, because we are a clandestine agency.

The next part of that was to navigate across all the people affected. It was not just the CIA. There were equities for other government agencies. There were, of course, equities at places and bases across the world, where we had relationships with foreign partners. People heeded immediately, were calling and asking what do I do, what do I say?

And the third part of that was to communicate, which was — in the course of looking at this as a what systemic issues led to the ability to have our information out there — was to document that and write a report that would serve as a lessons learned with the idea of preventing it from ever happening again. [my emphasis]

Notably, given that Assange could be vulnerable to Official Secrets Act charges in the UK if this leak affected any British intelligence officers or assets, Roche mentioned “foreign partners” twice in just this short passage. You don’t get very far down the list of CIA’s foreign partners before you’ve damaged MI6 assets.

Of course, shutting down ongoing operations would not have been enough to protect CIA’s assets. It took just 40 days for Symantec and Kaspersky to publicly identify the tools described in the Vault 7 releases as those found targeting their clients. If the CIA (or its foreign partners) had used human assets to introduce malware into target computers, as a number of these tools required, then those assets might be easily identifiable to the organizations affected.

Part of that same leak Schulte attempted from jail explains how this might work. He described how a tool from a particular vendor (which he would have named) was actually “Bartender,” by name presumably a watering hole attack, which had been released in Vault 7.

Had he succeeded in tweeting this out, Schulte would have identified either a cover organization or one in which CIA had recruited assets which was loading malware onto target computers while also loading some kind of vendor software.

I’m not defending CIA’s use of such assets to provide a side-helping of malware when targeted organizations install real software, though all major state-actors do this. But what Schulte (without any known active involvement of WikiLeaks, though he did continue to communicate with WikiLeaks, at least indirectly, while in jail) was allegedly attempting to do was burn either a cover organization or CIA assets, who would have been immediate targets if not exfiltrated. And it provides a good example of what could have happened over and over again on March 7, 2017, when these files were first released.

But there’s one other, possibly even more significant risk.

WikiLeaks has, in the past, preferentially withheld or shared files with Russia and other countries. Most obviously, at least one file hacked as part of the Syria Files which was damning to Russia never got published, and Emma Best claimed recently there were far more. The risk that something like that would have happened in this case is quite real. That’s because the files were leaked at a time when WikiLeaks was actively involved in another Russian operation. There was a ten month delay between the time the files were allegedly shared (in early May 2016) and the time WikiLeaks published them on March 7, 2017. The government has never made any public claim about how they got shared with WikiLeaks. Details of contacts between Guccifer 2.0 and WikiLeaks demonstrate that it would have been impossible to send the volume of data involved in this hack directly to WikiLeaks’ public facing submission system in the time which Schulte did so, and several people familiar with the submission system at the time of that hack have suggested it served more as cover than a functional system. That suggests that Schulte either would have had to have prior contact with WikiLeaks to arrange an alternate upload process, or shared them with WikiLeaks via some third party (notably, Schulte bragged in jail that compressing data to do this efficiently was one of his specialties at CIA).

At trial, even though the government in no way focused on this evidence themselves, there was (inconsistent) evidence that Schulte planned to involve Russia in his efforts to take revenge on the CIA. I’ve heard a related allegation independently.

Remember, too, that WikiLeaks has never published the vast majority of the code for these tools, even though Schulte did leak it, which would make it still easier to identify anyone who had used these tools.

So imagine what might have happened had Russia gotten advance notice (either via WikiLeaks, a WikiLeaks associate, or Schulte himself) of these tools? Russia would have had months — starting well before US intelligence had begun to understand the full extent of the election year operation — to identify any of the CIA tools used against it. To be clear, what follows is speculative (though I’m providing it, in part, because I’m trying to summarize the Vault 7 information so people who are experts on other parts of the Russian treason case can test the theory). But if it had, the aftermath might have looked something like Russia’s prosecution of several FSB officers for treason starting in December 2016. And the response — if CIA recognized that its assets had already been compromised by the Vault 7 release — might look something like the Yahoo indictment charging one of the same FSB officers rolled out, with great fanfare, on March 15, just over a week after the Vault 7 release (DOJ obtained the indictment on February 28, after the CIA knew that WikiLeaks had the release coming and months after the treason arrest, but a week before the actual release). That is, Russia might move to prosecute months before the CIA got specific notice, using the years-old complaints of Pavel Vrublevsky to hide the real reason for the prosecution, and the US might move to disclaim any tie to the FSB officers by criminally prosecuting them and identifying many of the foreign targets they had used Yahoo infrastructure to spy on. Speaking just hypothetically, then, that’s the kind of damage we’d expect if any country — and Russia has been raised here explicitly — got advance access to the CIA tools before the CIA did its damage mitigation starting on March 7, 2017.

This scenario (again, it is speculative at this point) is Spy versus Spy stuff, the kind of thing that state intelligence agencies pull off against each other all the time. But it’s not journalism.

And even the stuff that would have happened after the public release of the CIA files would not just have exposed CIA collection points, but also, probably, some of the human beings who activated those collection points.

WikiLeaks would have you believe that nothing that happened after 2013 could change DOJ’s understanding of those earlier exposures of US (and British) assets.

But the very same Mike Pompeo speech that they’ve all been citing explained precisely what changed.

A Month after Trump Learned that Mueller Knew of the Pardon Deal, Cassandra Fairbanks Learned the Pardon Was Off

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Cassandra Fairbanks gave a statement in the Julian Assange extradition hearing yesterday that WikiLeaks supporters seem to believe will help Assange.

Mostly it reveals that Don Jr’s buddy, Arthur Schwartz, knew and shared highly classified details about the WikiLeaks investigation with a known WikiLeaks associate, one who had recently worked for Russia’s Sputnik and was visibly close with Guccifer 2.0 during the election operation. (Fairbanks rather pointedly avoided disclosing that she used to work for the Russian propaganda outlet, saying only she had been “involved in similar areas of work” as the propaganda she does for Gateway Pundit). Fairbanks’ statement reveals that she repeatedly shared the information she learned with Assange, but not publicly. She didn’t do so immediately. Rather, she did so around January 7, 2019, just  weeks before Roger Stone was indicted (Fairbanks met Stone in 2016 through far right channels), and then again on March 25, after Bill Barr revealed that Trump and his failson had avoided conspiracy charges.

Fairbanks’ statement further reveals that after Fairbanks had exposed Schwartz (and his source for the information) legally for sharing the information, Schwartz reacted like a lot of right wing men do when put in danger, by espousing violence, in this case, the death penalty for WikiLeaks associates. Fairbanks also described how both Schwartz and Ric Grenell are assholes who throw around their power, which might make Fairbanks reconsider the right wing nutjobs she chooses to hang out with, but likely won’t help Assange avoid extradition.

So far, that doesn’t help Assange all that much. It says that a former propagandist for Russia shared non-public information with Julian Assange and in response, her source for that information responded furiously.

Fairbanks also repeats Grenell’s name a lot, though without corroborating that he — and not Don Jr — was Schwartz’s source. Indeed, at one point, Fairbanks suggested that Schwartz, in October 2018, implied that “lifelong friends” might be affected, which she seems to have taken to mean Jr.

Fairbanks did one more thing. DOJ charged Assange on December 21, 2017. Fairbanks, by her own description, was lobbying for WikiLeaks in her right wing chat room in that period, but Schwartz didn’t reveal the charges then. Assange was indicted on March 6, 2018. By her own description, Fairbanks was still lobbying for Assange in that right wing chatroom, but Schwartz didn’t reveal the charges.

But on October 30, 2018, when Fairbanks lobbied for Assange, Schwarz not only revealed the charges (in great detail), but he also told Fairbanks, “a pardon is not going to fucking happen.”

Just over a month earlier, on September 17, 2018, by submitting questions to be answered, Robert Mueller had revealed to Donald Trump that he knew of the pardon discussions for Assange (it’s unclear whether that was the first Trump learned Mueller had this question, but it wasn’t in the set posed earlier in 2018). Trump would eventually answer — after the election — without even denying that those pardon discussions happened, but only denying that he recalled them starting prior to the 2016 election.

Did you have any discussions prior to January 20, 2017, regarding a potential pardon or other action to benefit Julian Assange? If yes, describe who you had the discussion(s) with, when, and the content of the discussion(s).

I do not recall having had any discussion during the campaign regarding a pardon or action to benefit Julian Assange.

This is a pardon discussion that Roger Stone appears to have kicked off. But it is also one that WikiLeaks has, twice, nudged Don Jr about. The second of those times, Julian Assange implicitly threatened — with the hashtag #Vault 8 — further leaks of CIA hacking tools.

It may be the case that the US government didn’t move to provide concrete assurances to the UK that Assange wouldn’t be executed until that time, though Fairbanks doesn’t specifically tie Schwartz’ knowledge to the agreement, and the ABC news article she claims does so would actually place it a month earlier, in September.

It may in fact be the case that Trump didn’t take concrete steps to facilitate the arrest that his DOJ had already put in motion until after he realized that providing the pardon offered so long before would put him, Trump, in concrete legal danger, to say nothing of his failson, Schwartz’s buddy.

Roger Stone (and possibly Don Jr) pursued a pardon for a guy who at that very time was burning the CIA to the ground. That’s, at the very least, politically awkward. It likely exposed Jr in ways that made Schwartz furious and defensive.

But this is, by Fairbanks’ own account, still about that pardon — the one that WikiLeaks keeps pretending doesn’t exist.

Randy Credico Refuses to Answer Whether Roger Stone Called Him about an Assange Pardon on November 9, 2016

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As I wrote back in April, the available evidence indicates that Roger Stone reached out to WikiLeaks lawyer Margaret Kunstler just seven days after the election. Randy Credico testified in Stone’s trial that “some time” after the election, Stone reached out and said he needed to talk to Kunstler about a pardon.

A. Well, sometime after the election, he wanted me to contact Mrs. Kunstler. He called me up and said that he had spoken to Judge Napolitano about getting Julian Assange a pardon and needed to talk to Mrs. Kunstler about it. So I said, Okay. And I sat on it. And I told her — I told her — she didn’t act on it. And then, eventually, she did, and they had a conversation.

A warrant affidavit released in April reveals that on November 15, 2016, Stone texted Kunstler with a link to use to download Signal. Kunstler responded,  saying she would call Stone.

Additionally, text messages recovered from Stone’s iCloud account revealed that on or about November 15, 2016, Stone sent an attorney with the ability to contact Julian Assange a link to download the Signal application. 15 Approximately fifteen minutes after sending the link, Stone texted the attorney, “I’m on signal just dial my number.” The attorney responded, “I’ll call you.”

15 This attorney was a close friend of Credico’s and was the same friend Credico emailed on or about September 20, 2016 to pass along Stone’s request to Assange for emails connected to the allegations against then-candidate Clinton related to her service as Secretary of State.

These stories are somewhat inconsistent (when Credico first explained the timing of this to me, he said Stone’s call happened before the end of 2016). Credico says that first he “sat on it.” And then, after he told Kunstler that Stone wanted to talk to her, “she didn’t act on it.” Only after Credico sat on it for some time and Kunstler also didn’t act immediately, “eventually, she did” act on it.

There’s not a whole lot of time for Credico to sit on a Stone request and Kunstler to not act on it after Credico passed it on in the seven day span between the time Donald Trump got elected and this affidavit says Stone and Kunstler first spoke.

One way to explain the discrepancy, though, is if Roger Stone called Randy Credico the day after the election to start talking about a pardon. That’d leave time for Credico to “sit on it,” and Kunstler to not act on it before, “eventually, she did.”

Of course, that would mean that on the same day that the WikiLeaks account DMed Roger Stone (having chastised him three weeks earlier for reaching out), and said, “Happy? We are now more free to communicate,” Stone called (or texted) Credico and said he wanted to approach Margaret Kunstler about a pardon. In any case, it had to have happened shortly thereafter.

It would mean that hours after Trump won the election, with help from Julian Assange, the WikiLeaks Twitter account wrote Stone and said they were more free to communicate, which would mean (if this indeed happened the same day), Stone immediately reached out to Credico, saying he wanted to talk to Kunstler about a pardon.

Randy Credico and I just got into a bit of a Twitter spat because I quoted something else he said at Stone’s trial. That led me to ask him for more details about this pardon dangle, the first (known) one. After Credico said he did not recant on his testimony and said he had nothing to hide, he then dodged and dodged and dodged, refusing to answer either of two questions: 1) when Stone first called him or 2) whether it was on November 9.

So in spite of my persistence, Randy Credico refused to answer basic questions about something that Trump also refused to answer about–pardon dangles during the transition period (though Trump also professed memory failure going back into the election).

Whatever date Stone actually called Credico, by all appearances Julian Assange gave the President’s rat-fucker a green light to reach out and Stone immediately set about pursuing a pardon for Assange.

And WikiLeaks would like to distract you with the pardon dangle from the suspected Russian asset, instead.

Trump’s rat-fucker started paying off Assange’s election assistance immediately after the election, and Donald Trump won’t deny that that started before votes were even cast.

Wherein WikiLeaks Brags about Entertaining a Pardon Dangle from a Suspected Russian Asset and a White Supremacist

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Yesterday, Julian Assange’s lawyer Jennifer Robinson had a statement (which has not been released) read at his extradition hearing describing that she witnessed a meeting between Assange and Dana Rohrabacher on August 15, 2017 (Neo-Nazi Chuck Johnson was also present), where the Congressman said he had a win-win deal to offer: Trump would pardon Julian Assange if Assange would say that the source of the stolen DNC emails was not Russia.

Robinson stated that Assange did not disclose the source. Based on reports, though, she did not appear to deny that Assange had claimed his source was not Russia, which is what Rohrabacher reported at the time.

A lawyer representing the United States did not contest Robinson’s report, agreeing that the offer occurred. But representatives from the US did state that Trump had not agreed to it (which, without access to the exact statement, could mean any thing, but Trump certainly hasn’t pardoned Assange, yet).

Amid a laudable parade of arguments at Assange’s extradition hearing about the Espionage Act and discussions of all the important disclosures associated with the 2010 WikiLeaks releases for which Julian Assange is fighting extradition — including testimony read from German torture victim Khaled al-Masri, one of the first times he has had his say in public — including this statement was a cynical, and I would argue, damning, ploy.

In spite of the frenzy from the US press about the statement, the claim is not new. It was reported immediately by the Daily Caller (I covered that report here). Then Assange tweeted and then released on Facebook a statement asserting that reports from others should not be deemed authoritative. “Only unmediated statements coming directly from me can be considered authoritative.” Rohrabacher issued a statement, in which he promised to divulge what Assange stated to Trump.

Neither explicitly admitted what was obvious, that it was a pardon quid pro quo.

In a follow-up interview with the Daily Caller, Rohrabacher claimed not to remember whether he spoke to anyone at the White House about the meeting. Then, in a follow-up interview with Sean Hannity, Rohrabacher said, “It is my understanding from other parties who are trying to arrange the rendezvous that a rendezvous with myself and the President is being arranged for me to give him the firsthand information from him.” Earlier this year (when WikiLeaks announced that Robinson was going to resuscitate this story), Kim Dot Com released texts describing how he had pushed Trump’s best friend (whom he claimed not to identify) to accept the deal.

Those texts identified the best friend as Sean Hannity, the same guy who hosted Rohrabacher to explain that, “other parties [were] trying to arrange the rendezvous that a rendezvous with myself and the President is being arranged for me to give him the firsthand information from him.”

Ultimately, Chief of Staff John Kelly refused to let the President meet with Rohrabacher, just like he refused other agents of disinformation about the Russian hack to meet with him in the same period.

Mr. Rohrabacher confirmed he spoke to Mr. Kelly this week but declined to discuss the content of their conversation. “I can’t confirm or deny anything about a private conversation at that level,” he said in a brief interview. He declined to elaborate further.

A Trump administration official confirmed Friday that Mr. Rohrabacher spoke to Mr. Kelly about the plan involving Mr. Assange. Mr. Kelly told the congressman that the proposal “was best directed to the intelligence community,” the official said. Mr. Kelly didn’t make the president aware of Mr. Rohrabacher’s message, and Mr. Trump doesn’t know the details of the proposed deal, the official said.

In the call with Mr. Kelly, Mr. Rohrabacher pushed for a meeting between Mr. Assange and a representative of Mr. Trump, preferably someone with direct communication with the president.

On its face, the pardon dangle story proves only that Julian Assange was willing to meet with someone widely presumed to be Russian asset, Dana Rohrabacher, and a far right white nationalist to help float false claims about Russia’s role in getting Trump elected. It also proves that, at the time (when Trump was desperately trying to shut down the investigation into his coordination with Russia in the 2016 election and one after another were giving false prepared statements denying such coordination), the President had a Chief of Staff with the ability to look out after his legal interests.

And while I doubt lawyers for the US will go there, in context, the fact that WikiLeaks’ defense team presented just one of the at least four pardon dangles — including one for which the import of Russian disinformation is more obvious than others — is a testament to the degree to which the true story of those pardon discussions would make WikiLeaks’ compromise by Russia clear.

Here are the known discussions of pardons since WikiLeaks released emails in such a way as to optimize their benefit to getting authoritarian torture fan Donald Trump elected.

  • Starting at least by November 16 (and probably earlier) and lasting at least through January 11, 2018, Roger Stone tried to broker a pardon; according to sworn testimony by Randy Credico, Margaret Kunstler was involved in this effort (and threatening to expose whatever role Kunstler had in the process is one of the ways Stone used to discourage Credico’s testimony).
  • Starting at least by January 12 and continuing until at least March 28, 2017, Adam Waldman — the lawyer that Assange shared with Oleg Deripaska, whom the SSCI Report shows had a central role in the 2016 operation — tried to negotiate a deal via which Assange would provide limited information to mitigate the harm of the Vault 7 leak and DOJ (or if that failed, SSCI) would give him immunity, effectively a pardon. Given WikiLeaks’ history of sharing raw documents with Russia and others, the entrée would have come long after WikiLeaks had had the opportunity to broker the files, which would have helped Russia not only identify CIA’s hacks of Russian computers, but also NOCs working for CIA. (I’ve started to wonder whether the Russian treason case from late 2016 has a tie.) John Solomon — who has spread Deripaska’s propaganda before — even blamed Jim Comey for the compromise that resulted. In short, the offer was far too late to be meaningful, but it was an effort to give Assange impunity for burning the CIA to the ground.
  • From August to October 2017, Rohrabacher pursued his pardon for disinformation deal.
  • Last week, in the guise of defending journalism, Glenn Greenwald went on Tucker Carlson’s show (where a number of people have successfully lobbied for a pardon) and pitched pardons for both Assange and Ed Snowden not, as he claimed, out of any defense of journalism or whistleblowers — both things that Trump affirmatively reviles — but instead because it’s a great way to stick it to the Obama Deep State.

So one pardon pitch immediately after Assange worked with Russia to get Trump elected, another one brokered by Oleg Deripaska’s lawyer, a third pitched by a Congressman widely believed to be a Russian asset, and finally Glenn’s pitch for a pardon as a great way to do damage to the intelligence community.

Not only did Russia figure in all of those pardon dangles, but each was pitched not as a way to honor Assange’s debt to journalism, but instead to serve Russia’s purposes. And for some reason WikiLeaks thinks that raising just one of these — while remaining silent about perhaps the most damning pardon dangle — helps prove its case that Julian Assange is a journalist and not the Russian spy the prosecutors in this case claim to believe he is.

The Minh Quang Pham Precedent to the Julian Assange Extradition

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WikiLeaks supporters say that extradition of Julian Assange to the United States threatens journalism. That is true.

They also say that his extradition would be unprecedented. I believe that’s true too, with respect to the Espionage Act.

But it’s not entirely without precedent. I believe the case of Minh Quang Pham, who was extradited to the US in 2015 for activities related to AQAP — the most substantive of which involve providing his graphic design expertise for two releases of AQAP’s magazine, Inspire — provides a precedent that might crystalize some of the legal issues at play.

The Minh Quang Pham case

Minh Quang Pham was born in 1983 in Vietnam. He and his parents emigrated to the UK in 1989 and got asylum. In 1995, he got UK citizenship. He partied a lot, at a young age, until his conversion to Islam in 2004, after which he was drawn to further Islamic study and ultimately to Anwar al-Awlaki’s propaganda. Pham was married in 2010 but then, at the end of that year, traveled to Yemen. After some delays, he connected with AQAP and swore bayat in early 2011. While he claimed not to engage in serious training, testimony from high level AQAP/al-Shabaab operative Ahmed Warsame, who — after a two month interrogation by non-law enforcement personnel on a ship — got witness protection for himself and his family in exchange for cooperation, described seeing Pham holding a gun, forming one basis for his firearms and terrorist training charges (though the government also relied on a photo taken with Pham’s own camera).

On my arrival, Amin had a Kalashnikov with him and a pouch of ammunition. I am not certain if he had purchased the gun himself but he did say he had been trained by Abu Anais TAIS on how to use it, I can say from my knowledge of firearms that this weapon was capable of automatic and single fire.

Warsame’s role as informant not only raised questions about the proportionality of US treatment (he was a leader of al-Shabaab, and yet may get witness protection), but also whether his 2-month floating interrogation met European human rights standards for interrogation.

Pham reportedly sucked at anything military, and by all descriptions, the bulk of what Pham did in Yemen involved helping Samir Khan produce Inspire. After some time and a falling out with Khan — and after telling Anwar al-Awlaki he would accept a mission to bomb Heathrow — he returned to the UK. He was interrogated in Bahrain and at the airport on return, and again on arrival back home, then lived in London for six months before his arrest. At first, then-Home Secretary Theresa May tried to strip him of his UK citizenship in a secret proceeding so he could be deported (and possibly drone killed like other UK immigrants), but since — as a refugee — he no longer had Vietnamese citizenship, her first attempt failed.

The moment it became clear the British effort to strip him of citizenship would fail, the US indicted Pham in SDNY on Material Support (covering the graphic design work), training with a foreign terrorist organization, and carrying a firearm. Even before he ultimately did get stripped of his citizenship, he was flown to the US, in February 2015. The FBI questioned him, with no lawyer, during four days of interviews that were not recorded (in spite of a recently instituted FBI requirement that all custodial interviews be recorded). On day four, he admitted that Anwar al-Awlaki had ordered him to conduct an attack on Heathrow (which made the 302), but claimed he had made it clear he only did so as an excuse to be able to leave and return to the UK (a claim that didn’t make the 302; here’s Pham’s own statement which claims he didn’t want to carry out an attack). While Pham willingly pled guilty to the training and arms charges, at sentencing, the government and defense disputed whether Pham really planned to conduct a terrorist attack in the UK, or whether he had — as he claimed — renounced AQAP and resumed normal life with his wife. He failed to convince the judge and got a 40 year sentence.

The question of whether Pham really did plan to attack Heathrow may all be aired publicly given that — after Pham tried to get a recent SCOTUS case on weapon possession enhancements applied to his case — the government has stated that it wants to try Pham on the original charges along with one for the terrorist attack they claim Pham planned based on subsequently collected evidence.

The parallels between the Assange and Pham cases

Let me be clear: I’m not saying that Assange is a terrorist (though if the US government tries him, they will write at length describing about the damage he did, and it’ll amount to more than Pham did). I’m arguing, however, that the US has already gotten extradition of someone who, at the time of his extradition, claimed to have injured the US primarily through his media skills (and claimed to have subsequently recanted his commitment to AQAP).

Consider the similarities:

  • Both legal accusations involve suspect informants (Ahmad Warsame in Pham’s case, and Siggi and Sabu in Assange’s)
  • Both Pham and Assange were charged for speech — publishing Inspire and publishing the names of US and Coalition informants — that is more explicitly prohibited in the UK than the US
  • Both got charged with a substantive crime — terrorism training and possession of a gun in the case of Pham, and hacking in the case of Assange — in addition to speech-based crimes, charges that would (and did, in Pham’s case) greatly enhance any sentence on the speech-related charges
  • Pham got sentenced and Assange faces a sentence and imprisonment in SuperMax in the US that is far more draconian than a sentence for the same crimes would be in the UK, which is probably a big part of the shared Anglo-American interest in extraditing them from the UK
  • Whatever you think about the irregularity and undue secrecy of the Assange extradition, Pham’s extradition was far worse, particularly considering the way Theresa May was treating his UK citizenship

Unlike the Pham charges — all premised on Pham’s willing ties to a Foreign Terrorist Organization, AQAP — the US government has not included allegations that it believes Julian Assange conspired with Russia, though prosecutors involved in his case trying unsuccessfully to coerce Jeremy Hammond’s testimony reportedly told Hammond they believe him to be a Russian spy, and multiple other reports describe that the government changed its understanding of WikiLeaks as it investigated the 2016 election interference (and, probably, the Vault 7 release). Even if it’s true and even if they plan to air the basis for their belief, that’s a claimed intelligence tie, not a terrorism one.

This distinction is important. Holder v. Humanitarian Law clearly criminalizes First Amendment protected activity if done in service of a designated Foreign Terrorist Organization, so Pham’s graphic design by itself made him fair game for charges under US precedent.

The government may be moving to make a similar exception for foreign intelligence assets. As the Congressional Research Service notes, if the government believes Assange to be a Foreign Agent of Russia, it may mean the Attorney General (Jeff Sessions for the original charge, and Bill Barr for all the indictments) deemed guidelines prohibiting the arrest of members of the media not to apply.

The news media policy also provides that it does not apply when there are reasonable grounds to believe that a person is a foreign power, agent of a foreign power, or is aiding, abetting, or conspiring in illegal activities with a foreign power or its agent. The U.S. Intelligence Community’s assessment that Russian state-controlled actors coordinated with Wikileaks in 2016 may have implicated this exclusion and other portions of the news media policy, although that conduct occurred years after the events for which Assange was indicted. The fact that Ecuador conferred diplomatic status on Assange, and that this diplomatic status was in place at the time DOJ filed its criminal complaint, may also have been relevant. Finally, even if the Attorney General concluded that the news media policy applied to Assange, the Attorney General may have decided that intervening events since the end of the Obama Administration shifted the balance of interests to favor prosecution. Whether the Attorney General or DOJ will publicly describe the impact of the news media policy is unclear.

There’s a filing from the prosecutor in the case, Gordon Kromberg, that seems to address the First Amendment in more aggressive terms than Mike Pompeo’s previous statement on the topic.But it may rely, as the terrorism precedent does, on a national security exception (one even more dangerous given the absence of any State Department FTO list, but that hardly makes a difference for a foreigner like Pham).

Ultimately, though, the Assange extradition, like the Pham prosecution, is an instance where the UK is willing to let the US serve as its willing life imprisoner to take immigrants to the UK off its hands. Assange’s extradition builds off past practice, and Pham’s case is a directly relevant precedent.

The human rights case for Julian Assange comes at an awkward time

While human rights lawyers fought hard, at times under a strict gag, on Pham’s immigration case, Assange’s extradition has focused more public attention to UK’s willingness to serve up people to America’s draconian judicial system.

Last Thursday, Paul Arnell wrote a thoughtful piece about the challenge Assange will face to beat this extradition request, concluding that Assange’s extradition might (or might have, in different times) demonstrate that UK extradition law has traded subverted cooperation to a defendant’s protection too far.

We need to reappraise the balance between the conflicting functions of UK extradition law.

Among the UK’s most powerful weapons are its adherence to the rule of law, democracy and human rights. Assange’s extradition arguably challenges those fundamental principles. His case could well add to the evidence that the co-operative versus protective pendulum has swung too far.

He describes how legal challenges probably won’t work, but an appeal to human rights might.

British extradition law presumptively favours rendition. Extradition treaties are concluded to address transnational criminality. They provide that transfer will occur unless certain requirements are met. The co-operative purpose of extradition more often than not trumps the protection of the requested person.

The protective purpose of extradition is served by grounds that bar a request if they are satisfied. Those particularly applicable in Assange’s case are double criminality, human rights and oppression.

There are several offenses within the Official Secrets Acts 1911/1989 and the Computer Misuse Act 1990 that seemingly correspond to those in the US request. However, human rights arguments offer Assange hope.

Three are relevant: to be free from inhuman and degrading punishment, fair trial rights and freedom of expression. Previous decisions have held that life-terms in supermaximum-security prisons do not contravene the “punishment” provision, while the right to freedom of expression as a bar to extradition is untested.

Assange’s best prospect is possibly the oppression bar. Under it, a request can be refused on grounds of mental or physical health and the passage of time. To be satisfied, however, grievous ill health or an extraordinary delay are required.

It’s a good point, and maybe should have been raised after some of the terrorism extraditions, like Pham’s. But it may be outdated.

As I noted, Arnell’s column, titled, “Assange’s extradition would undermine the rule of law,” came out on Thursday. Throughout the same week that he made those very thoughtful points, of course, the UK publicly disavowed the rule of law generally and international law specifically in Boris Johnson’s latest effort to find a way to implement Brexit with no limits on how the UK deals with Northern Ireland.

The highlight – something so extraordinary and constitutionally spectacular that its implications are still sinking in – was a cabinet minister telling the House of Commons that the government of the United Kingdom was deliberately intending to break the law.

This was not a slip of the tongue.

Nor was it a rattle of a sabre, some insincere appeal to some political or media constituency.

No: law-breaking was now a considered government policy.

[snip]

[T]he government published a Bill which explicitly provides for a power for ministers to make regulations that would breach international and domestic law.

[snip]

Draft legislation also does not appear from nowhere, and a published Bill is itself the result of a detailed and lengthy internal process, before it is ever presented to Parliament.

This proposal has been a long time in the making.

We all only got to know about it this week.

[snip]

No other country will take the United Kingdom seriously in any international agreements again.

No other country will care if the United Kingdom ever avers that international laws are breached.

One of the new disclosures in a bunch of Roger Stone warrants released earlier this year is that, in one of the first Dms between the persona Guccifer 2.0, the WikiLeaks Twitter account explained, “we’ve been busy celebrating Brexit.” That same Brexit makes any bid for a human rights argument agains extradition outdated.

The US Asks Spain to Pin Down the UC Global Accusations before Responding

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Back in February, I noted some wild inconsistencies and unsupported claims in various reports that UC Global — a security firm employed at the time by Ecuador to protect their London embassy — worked with Sheldon Adelson and the CIA to spy on Julian Assange’s meetings with his lawyers.

As I noted, the actual details of the surveillance (which I don’t contest or minimize) are actually most consistent with UC Global head David Morales being served a subpoena and follow-up legal process served on UC Global’s US location by the known grand jury investigation in Alexandria, VA targeting both Assange and accused Vault 7 leaker Joshua Schulte, who appears to have remained in active communication with WikiLeaks at the time.

In his talk, AMM mentions that the US was unhappy about certain “publications,” plural, without describing them. There’s good reason to be silent about it — the same silence that WikiLeaks supporters like to enforce elsewhere. WikiLeaks was not only publishing CIA’s hacking tools with thin — and inaccurate — claims to justify doing so in the guise of journalism, but WikiLeaks was and is sitting on CIA’s actual hacking tools.

At the time, WikiLeaks was in ongoing communications with accused Vault 7 leaker Joshua Schulte (communication it continued at least as long as June 2018, when WikiLeaks posted the blogs Schulte published from jail, but probably even after that). The targeting of Schulte, himself, might explain some of this surveillance. And Morales’ presence in Alexandria (which AMM misstates as Arlington) is utterly consistent with someone subject to US subpoena appearing before a grand jury in EDVA; surveillance records are considered business records in the US subject to subpoena.

Certainly, questions about what WikiLeaks was doing with the still unpublished hacking tools might have elicited the surveillance. And in the months before the surveillance actually ratcheted up in December 2017 (which is when the surveillance in question really began), Schulte was doing some things on Tor that may have included reactionary communications with WikiLeaks.

Even AMM’s presentation, however, confirms that before December 2017 — that is, before the US finally detained Schulte and charged Assange — much of Assange’s private space was not covered by the surveillance.

Given the way WikiLeaks’ claims about this surveillance don’t match the public details of it, I’m particularly interested in the way that the US responded to Spain’s request for more information about it: They’re demanding that Spain nail down precisely what they’re claiming happened, who is behind the accusations, and what IP addresses Spain believes the US government had some tie to.

US prosecutors have now sent a letter to María de las Heras, a liaison judge for Spain in the US, asking her to convey their demands to De la Mata. These include showing proof that the requested IP addresses are “relevant and substantial to the investigation.” The document requests further details about the Spanish probe, including the sources of information for most of the assertions made in the request for judicial cooperation.

The Spanish judge has been asked to answer a long list of questions regarding every aspect of his investigation, including who he believes that Morales was providing information to, or whether the judge thinks Morales was working for a foreign information service or as an agent for a foreign power – or whether it was simply a case of bribery.

US prosecutors have asked for all this information to be relayed before October 16, otherwise “we will assume that Spanish authorities are not interested” and the request will be shelved.

The Spanish accusations, as released to the public, make no sense. At the very least, the US may be trying to get Spain to pick one of the inconsistent explanations for the surveillance before denying or explaining it to avoid playing whack-a-mole regarding all the other claims.

The US may be asking totally inappropriate questions about a sovereign Spanish investigation. But they do have a point about the nature of the claims.

Glenn Greenwald Moves to Close the Deal on Trump’s Election Help Quid Pro Quo

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Two days ago, Glenn Greenwald started teasing a cable appearance where he was going to discuss — he claimed — the dangers an Assange extradition poses to press freedom. He was coy, however, about what outlet it was.

When he announced that his appearance had been postponed, he was again coy about what outlet this was.

The next day he described how “tyrannical” the hawkish civil servants who inhabit the Deep State are.

Last night, shortly before he went on, he revealed the cable outlet was Tucker Carlson’s show, which, he claimed, was “one of the few places on cable” where he could discuss the dangers of the prosecution of Julian Assange and the persecution of Edward Snowden. He excused his appearance on a white supremacist’s show by explaining that he cares more about having an opportunity to speak to “millions of Americans” about the “abuse of power by CIA/DOJ in persecuting those who expose the truth” than he does about the “sentiments of online liberals.”

Here’s the appearance, with my transcription to follow.

Tucker: WikiLeaks’ Julian Assange has been held in a high security prison since his arrest last spring in the Ecuadorian Embassy where he effectively was held for many years, in isolation. His extradition hearing is now finally under way. Assange’s lawyer estimates he could face 175 years in prison if he’s extradited to the United States. He faces Espionage charges here. WikiLeaks exposed all kinds of things, some of which it was good to know — including corruption by the Democratic National Committee in 2016. So what is the story on Julian Assange. Why is the DOJ pursuing this case so aggressively? Glenn Greenwald has followed this from the very beginning. He is of course a journalist, founded The Intercept. And we’re happy to have him tonight. So Glenn, thanks for coming on. I think a lot of people have heard for years that Julian Assange is a bad guy who hurt the United States, now the United States is going to bring justice in this case. What’s your view of this? Tell us what we should know, in 3 minutes, about Julian Assange.

Glenn: Let’s remember, Tucker, that the criminal investigation into Julian Assange began by the Obama Administration because in 2010 WikiLeaks published a slew of documents — none of which harmed anybody, not even the government claims that. That was very embarrassing to the Obama Administration. It revealed all kinds of abuses and lies that they were telling about these endless wars that the Pentagon and the CIA are determined to fight. They were embarrassing to Hillary Clinton, and so they conducted, they initiated a grand jury investigation to try and prosecute him for reporting to the public. He worked with the New York Times, the Guardian, to publish very embarrassing information about the endless war machine, about the Neocons who were working in the Obama Administration. To understand what’s happening here, we can look at a very similar case which is one that President Trump recently raised is the prosecution by the Obama Administration, as well, of Edward Snowden for the same reason — that he exposed the lies that James Clapper told, he exposed how there’s this massive spying system that the NSA and the CIA control, that they can use against American citizens. Obviously this isn’t coming from President Trump! He praised WikiLeaks in 2016 for informing the public. He knows, firsthand, how these spying systems that Edward Snowden exposed can be abused and were abused in 2016. This is coming from people who work in the CIA, who work in the Pentagon, who insist on endless war, and who believe that they’re a government unto themselves, more powerful than the President. I posted this weekend that there’s a speech from Dwight Eisenhower warning that this military industrial complex — what we now call the Deep State — is becoming more powerful than the President. Chuck Schumer warned right before President Obama — President Trump — took office that President Trump challenging the CIA was foolish because they have many ways to get back at anybody who impedes them. That’s what these cases are about Tucker, they’re punishing Julian Assange and trying to punish Edward Snowden for informing the public about things that they have the right to know about the Obama Administration. They’re basically saying to President Trump, “You don’t run the country even though you were elected. We do!” And they’re daring him to use his pardon power to put an end to these very abusive prosecutions. One which resulted in eight years of punishment for Julian Assange for telling the truth, the other which resulted in seven years of exile for Edward Snowden of being in Russia simply for informing the public and embarrassing political officials who are very powerful.

Tucker: So, in thirty seconds, the President could pardon Julian Assange right now, and end this. Is that correct?

Glenn: He could pardon him and Edward Snowden and there’s widespread support across the political spectrum on both the right and the left for doing both. It would be politically advantageous for the President. The only people who would be angry would be Susan Rice, John Brennan, Jim Comey, and James Clapper because they’re the ones who both of them exposed.

As has become the new norm for Glenn, there’s a lot that is exaggerated or simply made up in this rant (I’ve bolded the four main claims above):

  • It is not the case that the government claims no one was harmed by Assange’s releases (even assuming we’re limiting the discussion to those already charged, and ignoring Vault 7, where the government presented hours and hours of testimony on the subject). The government has repeatedly claimed they caused a great deal of harm, even if they have not released their damage assessments publicly.
  • The files that Assange has been charged for do include the first (in the case of the Afghan and Iraq War Logs) and the first two years of Obama’s term (in the case of Cablegate). They also include details about Guantanamo that were helpful to Obama’s failed efforts to shut down the gulag set up by Bush. The files did cause grave embarrassment to the Obama Administration, both for some policy stances (Yemen remains, to my mind, one of the most important disclosures), and because the Obama Administration had to explain how candid conversations could leak. But to the extent one wants to (as Glenn appears to) make this about tribalism, they exposed far more about the Bush Administration, and many of the policies exposed (like support for torture and Saudi Arabia) are policies Trump is more supportive of than Obama was.
  • Glenn insinuates that the spying systems revealed by Edward Snowden were abused in 2016. He suggests that Trump was targeted by them. Glenn has made this error before, in his invention-filled defense of Mike Flynn. But there is no relationship between Snowden’s disclosures of NSA programs and the FBI surveillance that caught Flynn incidentally or FBI’s FISA targeting of Carter Page. And the worst abuses on the Page targeting happened in 2017, under Trump. Crazier still, Trump himself is worse on surveillance issues than Obama was! He has had enemies targeted by contract spies to thwart a peace deal. His DOJ got a Title III warrant on a suspected leaker to capture evidence implicating the journalists he was leaking to. Various of his agencies have been purchasing location data to bypass a Supreme Court prohibition on warrantless surveillance of location. ICE and other agencies have ratcheted up earlier spying on immigrants and those who advocate for them. And Trump’s Attorney General — the guy who unilaterally approved the predecessor of the spying systems Snowden exposed — has said the government doesn’t need Section 215 (one authority Snowden exposed) to conduct the surveillance it had been using it for until March 15, 2020; the suspicion is Barr has resumed reliance on legal claims rejected in 2010. It is, frankly, insane for Glenn to suggest that Trump is better on surveillance than his predecessors.

And while WikiLeaks releases have been embarrassing in certain ways to John Brennan, Jim Comey, and (especially) James Clapper, I’m particularly astounded that Glenn claims that Susan Rice was “exposed” by the releases.

I checked. I found just three Cablegate releases involving Susan Rice. One discusses efforts to remain engaged in the Democratic Republic of Congo. One discusses a meeting between Rice, Dennis Ross, and Ban Ki-moon where Obama’s officials described wanting to establish a bilateral channel with Iran in pursuit of peace.

Ambassador Rice and Special Advisor for the Gulf and Southwest Asia Ambassador Dennis Ross on June 9 met with UN Secretary-General Ban Ki-moon to explain key elements of U.S. diplomatic outreach to Iran and to hear Ban’s assessment. Ambassador Ross explained that President Obama in various fora and particularly from Cairo has made it clear that the USG will engage Iran without any preconditions.

[snip]

Ambassador Ross said the USG values the P5 1 structure for dealing with Iran because it is a statement of the international community’s resolve to deal with the nuclear issue in a coordinated fashion, and he said the USG will be a full participant in the P5 1 structure. Despite its importance, Ambassador Ross said the USG aims to engage Iran bilaterally, because that would allow for a broader treatment of the issues, which is more difficult to achieve in a multilateral context.

And one describes Rice engaging with UN Relief and Works Agency (UNRWA) Director for Gaza John Ging to learn how supporting infrastructure projects in Gaza would counter the growth of Hamas.

In an October 22 meeting with USUN Ambassador Susan Rice, UN Special Coordinator for the Middle East Peace Process (UNSCO) Robert Serry and UN Relief and Works Agency (UNRWA) Director for Gaza John Ging emphasized the need to restart essential infrastructure projects in Gaza, including shelters and schools. As a result of the Israeli “blockade,” both Serry and Ging noted that Hamas now controls Gaza’s tunnel-driven economy, increasing people’s dependency on Hamas. Ging described a population in Gaza suffering from massive physical devastation. He pointed out that while Hamas has all the cement it needs to build a new checkpoint near Erez, the UN cannot get the cement it needs to build a single school. Serry stressed the need for a new strategy on Gaza, suggesting that the current policy has only strengthened Hamas’ position.

In short, purported anti-imperialist Glenn Greenwald claims that Susan Rice was “exposed” because Cablegate revealed her involvement in efforts to make peace in Iran and Gaza.

But Glenn’s lies and exaggerations aren’t the craziest thing about this appearance.

The craziest thing about the appearance is that Glenn doesn’t talk about the danger to journalism of an Assange extradition.

What Glenn does instead of discussing the very real dangers that the Assange extradition poses to journalism is instead push Trump’s buttons — the very same buttons that Sergei Kislyak first started pushing on December 31, 2016, when he called Flynn to tell him that Putin had not retaliated against Obama’s sanctions because, in part, the sanctions were “targeted not only against Russia, but also the president elect.”

KISLYAK: I, I just wanted to tell you that our conversation was also taken into account in Moscow and …

FLYNN: Good

KISLYAK: Your proposal that we need to act with cold heads, uh, is exactly what is uh, invested in the decision.

FLYNN: Good

KISLYAK: And I just wanted to tel I you that we found that these actions have targeted not only against Russia, but also against the president elect.

FLYNN: yeah, yeah

KISLYAK: and and with all our rights to responds we have decided not to act now because, its because people are dissatisfied with the lost of elections and, and its very deplorable. So, so I just wanted to let you know that our conversation was taken with weight.

Glenn’s case — made in an appearance that was transparently an attempt to lobby the President directly — wasn’t about journalism. It was about sticking it to the “tyrannical” civil servants in the Deep State™ who had the audacity to try to protect the country from Russian interference. Glenn pitched this as one more way for Trump to damage Obama (which is presumably why Glenn falsely claimed that Obama was the most embarrassed by the disclosures), spitting out the names — Jim Comey, James Clapper, and Susan Rice’s tyrannical consideration of how to improve life in Gaza — that serve as triggers to the President.

And, remarkably, at a time when all the messaging of WikiLeaks supporters is focused on claiming that Trump has targeted Assange as part of his larger war on the press (a bullshit claim, but politically useful in an effort to mobilize press advocates in support of Assange), Glenn does the opposite, suggesting that Trump wants to pardon Assange (and Snowden), but the Deep State that Trump has been in charge of for 45 months, that Trump has purged of any disloyalty and much competence, is preventing him.

Of course, Tucker knows his audience of one, and so tees this up perfectly, reminding Trump of the only information Assange exposed that Trump cares about: Democratic emails that Russia released to help Trump get elected.

Seven days after the election, Trump’s rat-fucker, Roger Stone, started pursuing a pardon for Julian Assange. I’m increasingly convinced that effort started earlier, as part of Stone’s efforts to optimize the release of the emails in August 2016. Up until now, the overt signs of the effort to pay off Trump’s debt to Assange (and Russia) for help getting elected seemed to cease in 2018, after the nihilistic damage of the Vault 7 releases made such an effort increasingly toxic (and perhaps because the Mueller investigation made it legally dangerous).

But last night, Glenn Greenwald joined Tucker Carlson to renew the effort explicitly, claiming to defend press freedoms but instead pitching it as an opportunity to stick to to a Deep State™ that both Glenn and Trump have inflated so ridiculously that they prefer real tyranny to civil servants pursuing draconian measures within the dregs of law that Trump hasn’t already blown away.

For four years, this campaign debt has been hanging over Trump’s head. And Glenn Greenwald, pushing all the same buttons Russia did starting in 2016, last night moved to close the deal.

Julian Assange’s First Witness, Journalism Professor Mark Feldstein, Professes to Be Unfamiliar with the Public Record on Assange

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The first day of the Julian Assange extradition hearing was a predictable circus.

Assange’s lawyers tried two legal tactics.

First, they tried to get parts of the second superseding indictment excluded from the proceedings. They claimed they hadn’t had time to review it with Assange. While I’m sympathetic to the difficulties imposed by Assange’s imprisonment amid COVID measures, WikiLeaks supporters have at the same time been (correctly) complaining that the documents on which the new allegations are based have been public for some time.

In any case, it didn’t work. Judge Vanessa Baraister said that she had offered Assange the opportunity to raise this complaint in the last hearing.

Judge Baraister similarly rejected a bid to delay the hearing until January (not incidentally the period when, if a Trump pardon for Assange would be forthcoming, it would take place), on largely the same basis.

Next, Professor Mark Feldstein — a journalism professor at University of Maryland — tried to present his testimony. Technical problems forced Baraister to delay proceedings until tomorrow.

That has left the public with copies of Feldstein’s prepared testimony and a supplement before he has the opportunity to present it and lawyers for the US to grill him in response. That may be unfortunate, because Feldstein’s original testimony has some key errors and omissions, and in his supplement he professes a lack of familiarity with the public record in this case.

Let me be clear: I wholeheartedly agree with large swaths of Professor Feldstein’s testimony. Donald Trump has waged unprecedented attacks on members of the news media, both verbally and through policy. I agree, too, that the First Amendment is not limited to journalists, and that political advocacy like Assange’s has a storied place in the history of journalism. I agree that some of the stories based off Chelsea Manning’s leaks were blockbusters (Feldstein predictably starts by listing Collateral Murder, which is not charged, and his effort to include all the files that were charged strays much further from the ones that have been most important.) His history of classified leaks is useful, though in some places he seems to misunderstand what was new and what wasn’t revealed until the release of declassified documents. His statement speaks at length about the dire problem with overclassification (though in one case, he cites a John McCain accusation about Obama’s motive for leaking as fact, a claim that hasn’t held up to subsequent events; he later cites McCain as a classification villain). I even agree with some, though not all, of his analysis of how the charges against WikiLeaks threaten normal journalistic activities like soliciting, receiving, and publishing documents, and protecting confidential sources. (Feldstein never goes so far as to defend helping a source hack something.) His testimony is valuable for the background on journalism it offers.

But Feldstein’s account of how the Assange prosecution arose out of Donald Trump’s election — which occurred with Assange’s help!!! — not only invents claims he doesn’t support, but makes several telling errors in citation.

Donald Trump’s election changed the calculus. The month after his inauguration, the president met with FBI director James Comey and brought up the issue of plugging leaks. Comey suggested “putting a head on a pike as a message” and Trump recommended “putting reporters in jail.”83 Three days later, he instructed his attorney general to investigate “criminal leaks” of “fake” news reports that had embarrassed the White House.84 According to press accounts, the new administration soon “unleashed an aggressive campaign” against Assange. CIA director Mike Pompeo publicly attacked WikiLeaks as a “hostile intelligence service” that uses the First Amendment to “shield” himself from “justice.” In private, he briefed members of Congress on a bold counterintelligence operation the agency was conducting that included the possible use of informants, penetrating overseas computers, and even trying to directly “disrupt” WiliLeaks, a move that made some lawmakers uncomfortable.85 A week later, Attorney General Jeff Sessions said at a news conference that journalists “cannot place lives at risk with impunity,” that prosecuting Assange was a “priority” for the new administration, and that if “a case can be made, we will seek to put some people in jail.” 86 The new leaders at the Justice Department dismissed their predecessors’ interpretation that Assange was legally indistinguishable from a journalist and reportedly began “pressuring” their prosecutors to outline an array of potential criminal charges against him, including espionage. Once again, career professionals were said to be “skeptical” because of the First Amendment issues involved and a “vigorous debate” ensued. 87 Two prosecutors involved in the case, James Trump and Daniel Grooms, reportedly argued against charging Assange.88 But in April of 2019, Assange was arrested in London—even though “the Justice Department did not have significant evidence or facts beyond what the Obama-era officials had when they reviewed the case.”89

83 Abramson, “Comey’s wish for a leaker’s ‘head on a pike.’”

84 “Remarks by President Trump in Press Conference,” WH.gov (Feb. 16, 2017); Charlie Savage and Eric Lichtblau, “Trump Directs Justice Department to Investigate ‘Criminal Leaks,’” New York Times (Feb. 16, 2017); Barnes, et al, “How the Trump Administration Stepped up Pursuit of WikiLeaks’ Assange.”

85 CIA, “Director Pompeo Delivers Remarks at CSIS” (April 13, 2017): www.cia.gov/news-information/speechestestimony/2017-speeches-testimony/pompeo-delivers-remarks-at-csis.html.

86 “Sessions Delivers Remarks,” Justice.gov. [sic]

87 Matt Zapotosky and Ellen Nakashima, “Justice Department debating charges against WikiLeaks members,” Washington Post (April 20, 2017); Adam Goldman, “Justice Department Weighs Charges Against Julian Assange,” New York Times (April 20, 2017).

88 Devlin Barrett, Matt Zapotosky and Rachel Weiner, “Some federal prosecutors disagreed with decision to charge Assange under Espionage Act,” Washington Post (May 24, 2019). 89 Barrett, et al, “Prosecutors Disagreed.”

The first citation (83) is to a 2018 story on Jim Comey’s memos memorializing conversations about leaks damaging to Trump, not WikiLeaks. The second (84) refers to an effort to go after those who damaged Trump. The next three sentences are attributed to Mike Pompeo’s designation of WikiLeaks as a non-state hostile actor in April 2017 (85), in the wake of the Vault 7 leaks, but two of those sentences (bolded) are not actually sourced to Pompeo’s comments, but instead to news accounts not specified in the relevant footnote. The next sentence combines what Jeff Sessions said on April 20, 2017 and what he said on August 4, 2017; perhaps Feldstein aims to cover that up by not including a date or a citation in the remarks in question (see footnote 86; Sessions’ April 20 comments don’t appear to be on the DOJ website), but suggesting Sessions’ August comments were about Assange is a move that WikiLeaks has made elsewhere. Importantly, Feldstein does not footnote one of the most widely cited reports of that April 20 speech, a CNN report that describes what changed, already in 2017, since DOJ had earlier decided not to prosecute Assange.

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.

[snip]

US intelligence agencies have also determined that Russian intelligence used WikiLeaks to publish emails aimed at undermining the campaign of Hillary Clinton, as part of a broader operation to meddle in the US 2016 presidential election. Hackers working for Russian intelligence agencies stole thousands of emails from the Democratic National Committee and officials in the Clinton campaign and used intermediaries to pass along the documents to WikiLeaks, according to a public assessment by US intelligence agencies.

That is, if Feldstein had reviewed the press coverage more broadly, he would have a ready explanation for why DOJ began to rethink its earlier decision not to charge Assange.

Assange’s own filing may attempt to cover for Feldstein’s citation inaccuracy, claiming that Feldstein cited that April WaPo story rather than ““Sessions Delivers Remarks,” Justice.gov”.

Then came the political statement of Attorney General Sessions on 20 April 2017 that the arrest of Julian Assange was now a priority and that ‘if a case can be made, we will seek to put some people in jail’ [Feldstein quoting Washington Post article of Ellen Nakashima, tab 18, p.19].

But even that April 20, 2017 WaPo article he claims to rely on doesn’t help him. In fact, it disputes Feldstein’s account of Trump’s animus towards WikiLeaks.

Trump has had a fluid relationship with WikiLeaks, depending largely on how the group’s actions benefited or harmed him. On the campaign trail, when WikiLeaks released Podesta’s hacked emails, Trump told a crowd in Pennsylvania, “I love WikiLeaks!” But when it came to the release of the CIA tools, he did not seem so pleased.

“In one case, you’re talking about highly classified information,” Trump said at a news conference earlier this year. “In the other case, you’re talking about John Podesta saying bad things about the boss.”

The actual words cited in part to the WaPo in Feldstein’s testimony (naming Ellen Nakashima, not Matt Zapotosky) don’t appear in the April story but in the NYT story cited. The rest relies on a [Devlin Barret and] Zapotosky story fairly obviously sourced to prosecutor James Trump, whom Zapotosky covered in the Jeffrey Sterling case and other EDVA cases but who — the story admits — wasn’t on the team anymore even when Assange was originally charged (presumably meaning December 2017 on just a CFAA charge that would accord with AUSA Trump’s concerns about an Espionage charge), and who would therefore have no visibility into what went into the May 2018 superseding indictment of Assange, much less the one on the table now.

In short, a key paragraph in Feldstein’s testimony, which is cited repeatedly in both Assange’s briefs on the case (one, two), is a scholarly shit-show.

And that’s before you consider the chronology of it, omitting as it does the Vault 7 leak which all the Assange-specific comments were responding to, which started on March 7, 2017.

That’s not the only problem with Feldstein’s citations. Feldstein also footnotes a claim that Assistant Attorney General for DOJ’s National Security Division John Demers, “declared that ‘Julian Assange is no journalist’ and thus not protected under the free press clause of the US Constitution’s First Amendment” with a citation to news reports on the indictment, rather than the remarks as prepared rolling out the indictment. While the story from Charlie Savage that Feldstein cites responsibly quotes Demers in context, the full statement makes it clear that it’s not only not a comment directly about the First Amendment, but that Demers never mentions the First Amendment.

The Department takes seriously the role of journalists in our democracy and we thank you for it. It is not and has never been the Department’s policy to target them for their reporting.

Julian Assange is no journalist. This made plain by the totality of his conduct as alleged in the indictment—i.e., his conspiring with and assisting a security clearance holder to acquire classified information, and his publishing the names of human sources.

Indeed, no responsible actor—journalist or otherwise—would purposely publish the names of individuals he or she knew to be confidential human sources in war zones, exposing them to the gravest of dangers.

This continues WikiLeaks’ longstanding effort to suggest the government has made First Amendment claims about Assange that obscure what they have actually said. (AUSA Gordon Kromberg does appear to have addressed the First Amendment in ways WikiLeaks has claimed that others have, but his affidavit is not yet public.)

While Kromberg’s testimony is not yet public, in one of the government’s filings made public today, the government hints at what Kromberg may have said at more length, noting that Feldstein only cites part of — but not the entirety — of a news report on Assange.

The principal evidence upon which the defence relies to demonstrate the existence of a such a decision is a newspaper article dated 25 November 2013 [Sari Horowitz, “Julian Assange is unlikely to face US Charges over publishing classified documents”, Washington Post]; Cited by Professor Feldstein at §9 page 18. 39.

Professor Feldstein omits important sections of the report upon which he relies to demonstrate a “decision” not to prosecute:

“The officials stressed that a formal decision has not been made, and a grand jury investigating WikiLeaks remains impaneled, but they said there is little possibility of bringing a case against Assange, unless he is implicated in criminal activity other than releasing online top-secret military and diplomatic documents.

And:

“WikiLeaks spokesman Kristinn Hrafnsson said last week that the anti-secrecy organization is skeptical “short of an open, official, formal confirmation that the U.S. government is not going to prosecute WikiLeaks.” Justice Department officials said it is unclear whether there will be a formal announcement should the grand jury investigation be formally closed”.

So, in response to Kromberg, Feldstein dug himself a very much deeper hole.

In a supplemental filing, Assange expert witness Mark Feldstein claimed and exhibited that he’s not familiar with the public record (though he cleaned up some of his prior citation errors). In it, he claimed the only way to know the truth about the Assange prosecution would be from leaks of grand jury or White House documents. “[T]he reporting I cited by the New York Times and Washington Post is to date the only public source of information about the behind-the-scenes maneuvering to prosecute Assange,” he claimed in a filing submitted on July 5, 2020.

The government insists that the Trump administration’s prosecution of Assange is not politically motivated. It dismisses my contrary conclusion—and that of other expert witnesses—by saying that we “primarily rely on a select number of news articles…and the hearsay within them.”

Indeed, my declaration relied on news accounts that the Obama administration decided not to prosecute Assange because of concerns that doing so would violate the First Amendment. 2 In particular, I cited comments that Matthew Miller, the former spokesman for the Obama Justice Department, made in an interview with the Washington Post: “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. And if you’re not going to prosecute journalists for publishing classified information, which the department is not, then there is no way to prosecute Assange.” The Post reported that prosecutors called this the “New York Times problem”—that if they indicted Assange for publishing the documents leaked by Chelsea Manning, then they would also have to also indict the New York Times for doing the same.3

I also noted that the Trump administration decide to reject this interpretation and cited a New York Times report that its new appointees running the Justice Department began “pressuring” prosecutors to indict Assange, although two career prosecutors argued against doing so on First Amendment grounds. I also cited the article’s finding that “the Justice Department did not have significant evidence or facts beyond what the Obama-era officials had when they reviewed the case”4 and concluded that the decision to indict Assange was not an evidentiary decision but a political one.5

As the government knows, internal prosecutorial deliberations are not a matter of public record. White House and Justice Department documents that would shed further light on the political dimensions of the case—emails, internal memos, grand jury transcripts, and other records—are kept secret by the government. Thus, the reporting I cited by the New York Times and Washington Post is to date the only public source of information about the behind-the-scenes maneuvering to prosecute Assange.

Like so much other questionable conduct by the Trump administration, revelations about the unorthodox nature of this prosecution came to light only because of the vigilance of a free and vigorous press.

1 Gordon D. Kromberg, “Declaration in Support of Assange Extradition,” US v. Assange (Jan. 17, 2020), ¶18-19, pp. 8- 9.

You have got to be fucking kidding me!!

I invite Professor Feldstein to assign his undergraduate journalism students with the task of trying to discover any Trump, White House, and National Security views about WikiLeaks and Julian Assange that might explain why DOJ decided not to prosecute in 2013 but did prosecute in 2017, 2019, and 2020.

His first year undergraduate students might note the proximity between the April 2017 Assange-related announcements (the Jeff Sessions of which he obscures with his dodgy citation) and the release of the Vault 7 files in March 2017, which burned the CIA hacking ability to the ground.

They also might point to Trump’s tweets celebrating WikiLeaks to suggest that while Trump might hate the traditional press, he spent most of the 2016 campaign celebrating WikiLeaks.

Feldstein’s second year undergraduate students might look to the obvious places — like the Mueller Report — for some views about how Trump ordered campaign staff to go chase down WikiLeaks’ releases. Not only do the descriptions completely undermine Feldstein’s claim that Trump treats WikiLeaks like he does traditional media outlets, but it shows that the Department of Justice conducted an extensive investigation implicating WikiLeaks after the 2013 Matthew Miller quote he relies on. Indeed, exceptional sophomores might note that a redaction error in the Mueller Report makes it clear that a Mueller prosecutorial decision about foreign donations pertains to WikiLeaks, a detail released in 2019 that James Trump would not have been privy to.

Junior year journalism students might refer to the Stone trial testimony to see what it said about Trump’s relationship with WikiLeaks. Really astute journalism students would note that Randy Credico testified that Donald Trump’s rat-fucker Roger Stone actually reached out to Randy Credico in an effort to broker a pardon for Assange.

Q. Had you put Mr. Stone directly in touch with Ms. Kunstler after the election?

A. Yes, I did.

Q. And why had you done that?

A. Well, sometime after the election, he wanted me to contact Mrs. Kunstler. He called me up and said that he had spoken to Judge Napolitano about getting Julian Assange a pardon and needed to talk to Mrs. Kunstler about it. So I said, Okay. And I sat on it. And I told her–I told her–she didn’t act on it. And then, eventually, she did, and they had a conversation.

The same astute budding journalists might look at the trial record and discover how long those pardon discussions lasted — continuing well past the time Mike Pompeo and Jeff Sessions were discussing prosecuting journalists and/or Assange.

Senior journalism students might even tie that testimony to a question Robert Mueller asked — but didn’t really get an answer about — regarding whether Trump had considered an Assange pardon.

Donald Trump refused to answer a question under oath about whether he considered pardoning Julian Assange during the transition period between when WikiLeaks releases helped get him elected and his inauguration, something that makes it pretty clear the President treats WikiLeaks and Assange, which helped him get elected, differently than he does journalists who did not.

Professor Feldstein says he’d need a leak to discover that.

There’s a slew more that graduate students might discover but that Feldstein professed to be helpless to discover himself, such as the warrant that makes it clear Stone reached out to WikiLeaks lawyer Margaret Kunstler — to discuss an Assange pardon, WikiLeaks supporter Randy Credico testified to under oath — seven days after Trump got elected.

Or the other Stone warrant making it clear that after several of the media reports Feldstein relies on, Mueller’s team was just beginning to obtain warrants implicating Assange, in part for election-related crimes that have nothing to do with the Espionage Act. Or yet another that suggests DOJ was investigating WikiLeaks, in part, for conspiracy and Foreign Agent charges in August 2018.

Diligent journalism students — budding journalists not intimidated by redaction marks — might even look to the multiple SSCI Reports that address the government’s evolving understanding of WikiLeaks, particularly those that show how the many conflicting views in 2016 came to change to believe that 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.

Here, in public view, is indication that not just DOJ but the entire Intelligence Community came to shift their view of WikiLeaks and Assange as they investigated how Russia had attacked US democracy in 2016. But Mark Feldstein testified in his supplemental testimony that he could only discover that if someone leaked it to him.

Finally, Feldstein’s students might seek to understand the workings of a grand jury from the same place journalists always have, from those called to testify before them. Had they done so, they would at a minimum discover the Jeremy Hammond description of how he refused to testify for what would be the last superseding indictment against Assange, in which he described prosecutors twice claiming (without evidence) that Assange is “a Russian spy.”

“What could the United States government do that could get you to change your mind and obey the law here? Cause you know” — he basically says — “I know you think you’re doing the honorable thing here, you’re very smart, but Julian Assange, he’s not worth it for you, he’s not worth your sacrifice, you know he’s a Russian spy, you know.”

[snip]

He implied that all options are on the table, they could press for — he didn’t say it directly, but he said they could press for criminal contempt. … Then he implies that you could still look like you disobeyed but we could keep it a secret — “nobody has to know I just want to know about Julian Assange … I don’t know why you’re defending this guy, he’s a Russian spy. He fucking helped Trump win the election.”

The claims of a prosecutor as he’s trying to coerce testimony don’t affirm the veracity of the claim. Hammond’s claims in no way prove that Assange is a Russian spy or even that DOJ believes he is. But it does indicate what DOJ’s then-current claims were, in March 2020, before the most recent superseding indictment against Assange. They would indicate that the prosecutors asking for the extradition of Julian Assange claim to believe he is a Russian spy.

There is an embarrassment of public documents describing how the US government’s view of Assange changed between 2013 and 2020, as well as plenty that show DOJ was obtaining new legal process well after DOJ decided not to prosecute Assange. That doesn’t mean their view is correct or that it in any way mitigates the risk to journalism. But it does mean their view is discoverable by anyone who wants to check the public record.

And yet journalism Professor Mark Feldstein professes to be helpless to explain why DOJ charged Assange in 2017 and 2019 and 2020 but not in 2013, not unless someone leaks to him what DOJ and Trump and the rest of the US government were really thinking. And so instead, he offered a paragraph that falls apart completely if you simply read his source material, to say nothing of the public record.

Feldstein gives himself a bit of an excuse by claiming that his scholarly statement doesn’t address what happened after 2011 (a focus that may come from WikiLeaks’ lawyers — recall that someone close to Assange scolded me for reporting accurately on what WikiLeaks had done in 2016 and afterwards).

It should be noted that this report addresses only WikiLeaks disclosures in 2010-2011, the time period when Assange is accused of violating the Espionage Act; it does not discuss the website’s previous or subsequent document releases.

But you can’t claim to provide expert testimony about what DOJ was doing in 2017 without considering what WikiLeaks had done in the interim, and how that might change investigative tactics and conclusions (and did, in fact, lead DOJ to reconsider the evidence they had).

The record shows that — far from treating Assange with the disdain Trump harbored towards traditional journalists — Trump’s close associates entertained numerous discussions about pardons, and Trump himself refused to deny that under oath to Mueller. It further shows that the targeting of Wikileaks immediately followed the Vault 7 leaks burned the CIA’s hacking capacity to the ground (a prosecution that Trump himself almost blew up hours before the FBI confiscated Schulte’s passports). Finally, there is an abundance of evidence discoverable in the public record by any diligent journalism student that the understanding of WikiLeaks significantly evolved after the decisions not to charge Assange in 2013, in part because a national security investigation sought to figure out how badly Russians had tampered in our election, and in part because Trump got all kinds of help in the election from foreigners (including Assange).

Mark Feldstein claims in his expert testimony that what is happening to Julian Assange is just part of Trump’s larger assault on the press.

Seen in this light, the administration’s prosecution of Julian Assange is part and parcel of its campaign against the news media as a whole. Indeed, Assange’s criminal indictment under the US Espionage Act is arguably its most important action yet against the press, with potentially the most far-reaching consequences.

But he makes that claim while also admitting zero familiarity about the public record concerning Assange which shows the opposite.

The Julian Assange prosecution presents serious risks to journalism. But none of those excuse shoddy journalism — a failure to even consult the public, official record — in support of his case. That’s what Assange’s first witness is planning to do.

Update: Cleaned up the post and fixed a date.

The US Government Formed a New Understanding of WikiLeaks after 2016

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Julian Assange’s substantive extradition hearing starts today. (I’m collating a list of journalists covering it from the live feed.)

I view the proceeding with great ambivalence.

I definitely agree that some of the charges against him — there are two theories of publishing charges: conspiring by asking for specific files, including entire databases, and publishing the identities of informants — pose a threat to the press. That said, the Trump Administration has used one of the same theories it is using against Assange to threaten journalists even in the last week (and was, before his superseding indictment) with virtually no cries of alarm from those defending Assange. In addition, charging him for exposing the identities of US and Coalition sources is a well-established crime in the UK, the Official Secrets Act, and (because Coalition sources were included among those WikiLeaks is accused of exposing) could be charged if the extradition against him fails.

The CFAA charge against Assange — particularly as expanded in the latest superseding indictment — does not pose any unique threat to journalism. Indeed, Assange’s alleged co-conspirators in the bolstered CFAA charge were already prosecuted, on both sides of the Atlantic, so there’s no question that the underlying hacking is a viable charge. WikiLeaks supporters have pointed to the unreliability of Siggi and Sabu to question those charges. They’ve focused less on the immunity granted David House for his testimony, though at trial Assange’s lawyers would focus on that, too. They might argue, too, that the US government has spun this particular conspiracy well outside the bounds where participants had made common agreement (if they kept spinning, after all, FireDogLake might get swept up for Jane Hamsher’s ties to House and defense of Manning back in the day).  But those are complaints about the strength of the government case, not the appropriateness of extradition. I suspect the government case is far stronger than shown in the indictment, which currently relies only on publicly available evidence.

Assange’s defense will call a number of experts (Kevin Gosztola discusses them here), many though not all of whom will present important, valid points. They’ll raise important issues about the free speech implications of this case, the dangers of the Espionage Act, America’s atrocious standards of incarceration, and the EDVA venue; the latter three of these, however, are in no way unique to Assange (and venue for him in EDVA is uncontroversial, unlike it has been for others charged in a district where a jury is virtually guaranteed to include people tied to the national security world). They’ll raise evidentiary complaints to which the lawyer representing the US government will present counterarguments. They’ll talk a lot about the Collateral Murder video, which was not charged.

WikiLeaks’ supporters will also exploit the US government’s Mike Pompeo problem, in this case by misrepresenting a comment he bombastically made about the First Amendment when declaring WikiLeaks a non-state hostile actor in the wake of the Vault 7 release.

No, Julian Assange and his kind are not the slightest bit interested in improving civil liberties or enhancing personal freedom. They have pretended that America’s First Amendment freedoms shield them from justice. They may have believed that, but they are wrong.

[snip]

Third, we have to recognize that we can no longer allow Assange and his colleagues the latitude to use free speech values against us. To give them the space to crush us with misappropriated secrets is a perversion of what our great Constitution stands for. It ends now.

[snip]

DIRECTOR POMPEO: Yeah, First Amendment freedoms. What I was speaking to there was, as – was a little less constitutional law and a lot more of a philosophical understanding. Julian Assange has no First Amendment freedoms. He’s sitting in an embassy in London. He’s not a U.S. citizen. So I wasn’t speaking to our Constitution.

What I was speaking to is an understanding that these are not reporters don’t good work to try to keep you – the American government honest. These are people who are actively recruiting agents to steal American secrets with the sole intent of destroying the American way of life. That is fundamentally different than a First Amendment activity, as I understand them, and I think as most Americans understand them. So that’s what I was really getting to.

We’ve had administrations before that have been squeamish about going after these folks under some concept of this right-to-publish. No one has the right to actively engage in the threat of secrets from America with the intent to do harm to it.

This is not the first time the Trump Administration has had a Mike Pompeo problem when prosecuting WikiLeaks-related crimes, nor should it be the last. I believe Joshua Schulte’s attempts to call Pompeo forced the government to back off its claim that Schulte’s decision to leak to WikiLeaks — allegedly in April 2016 and so months before the future CIA Director was still celebrating WikiLeaks leaks of DNC files — was by itself proof of his intent to damage the US. That’s particularly true as Secretary of State Mike Pompeo torches the infrastructure of Human Rights in the world. While I, in no way, believe the Assange prosecution arises from any personal animus Pompeo has for Assange, Pompeo’s role in it and his clear retaliation against the ICC last week will be easy to use to delegitimize the Assange prosecution.

So WikiLeaks will have a lot of good points to present in the next several weeks.

But they’re also expected to tell a number of cynical lies, including with respect to pardon dangles in the US, lies that will detract from the otherwise very important principles they will raise.

I believe the prosecution of Julian Assange as charged poses a number of dangers to journalism.

But I also believe the government has evidence — some of which it may not want to share during extradition and some of which it may not ever share — that Assange is precisely what they say he is, someone with an entire intelligence infrastructure uniquely targeting the US. Of particular note (as I said regarding one of the new allegations in the CFAA charge), I know of multiple allegations, of mixed but in some cases impeccable credibility, that WikiLeaks has used its infrastructure to spy on protected entities — journalists, lawyers, former associates — going back years, long before UC Global allegedly ratcheted up the spying on Assange. The NYT doesn’t spy on its competitors to find out how they might undermine its unique role, and WikiLeaks itself says such spying on Assange is improper, so there’s no basis to claim that when WikiLeaks does it, it’s all good.

Still, even if Assange is the head of a non-state hostile intelligence agency, does that merit prosecution? While the US has sanctioned the heads of hostile state intelligence agencies, with a few notable exceptions, they don’t extend their jurisdiction overseas to prosecute them.

In addition, the allegations of involvement in Russia in all this are well-founded. The folks involved in the LulzSec chatrooms now incorporated into Assange’s CFAA charge acknowledge there were Russians there as well, though explain that the whole thing was so chaotic no one thought that much about it. Only those who aggressively ignore the public case afford WikiLeaks any deniability that it did Russia’s work in publishing the stolen Democratic files in 2016. The Joshua Schulte trial presented evidence he wanted to work with Russia too; while the evidence presented (almost incidentally, a point I hope to return to one day) at trial is quite ambiguous, I first learned about his willingness to work with Russia months before any such allegation made it into a court filing. In addition, I know of one much earlier instance where someone in WikiLeaks’ infrastructure had similar such interests. And that’s before all the allegations that WikiLeaks diverted files damaging to Russia over years.

All of those are my views about the ambivalence of this extradition proceeding, whatever those are worth as someone who has followed WikiLeaks closely from the beginning.

But there’s another point that has gotten virtually no attention, particularly not from WikiLeaks supporters who often make false claims about the investigation into WikiLeaks that conflict with this point. The government’s understanding of WikiLeaks changed after 2016, and so changed after the Obama Administration decided that prosecuting WikiLeaks posed “a New York Times problem.” The multi-volume Senate Intelligence Report talks about this repeatedly, though virtually all instances (such as this passage from Volume III) remain heavily redacted.

A different passage from the same volume, however, explicitly calls WikiLeaks a “coopted third party.”

Despite Moscow’s hist01y 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.

And, to the very limited extent you can trust the view of a prosecutor trying to coerce testimony from Jeremy Hammond, the people who will prosecute Assange if he’s extradited claim he’s a Russian spy.

This has important implications for the case against Assange, implications that his supporters make aggressive efforts to obscure. First, the surveillance of Assange almost certainly ratcheted up because of actions Assange took in 2016 and 2017, actions that aren’t protected by journalism. As a foreigner who negotiated the receipt of documents with a presumed Russian mouthpiece, Guccifer 2.0 — in what was surely theater played out on Twitter DMs — Assange and WikiLeaks made themselves targetable as foreign intelligence targets in an attempt to learn about the Russian attack on the US. Assange’s multiple efforts to offer Trump’s campaign a unique benefit — picked up in investigative collections targeting others — made Assange a criminal target in a foreign donation investigation, one Mueller declined to prosecute for First Amendment reasons (50 USC 30121 is cited in the single Mueller warrant admitted to be targeting WikiLeaks that has been publicly released). And because of some overt ongoing communications with Joshua Schulte over the course of the former CIA programmer’s prosecution, WikiLeaks’ communications would be collected incidentally off of collection targeting him as the primary suspect in the leak.

Thus, even before Pompeo declared WikiLeaks a non-state hostile actor, Assange had done things that made him targetable in a way that he hadn’t previously been. And burning down the CIA’s hacking capability behind thin claims of public interest and then continuing to communicate with the presumed source surely didn’t help matters.

And, according to multiple public, official government documents, that changed the US government’s understanding of what WikiLeaks is. Public documents make it clear that witnesses (including but not limited to David House) provided new testimony as the government came to this new understanding, even beyond the government’s ill-fated attempt to coerce more testimony out of Chelsea Manning and Hammond. I know of at least two non-public investigative steps the government took as well. On August 20, 2018 — two days before a prosecutor wrote a gag request in EDVA that mistakenly mentioned the sophistication of Assange and the publicity surrounding his case and eight months after Assange was first charged — a Mueller warrant targeting a Guccifer 2.0 email account described an ongoing investigation into whether WikiLeaks and others were conspiring and/or a Foreign Agent, which suggests a similar amount of activity targeting Assange directly in EDVA. The government conducted a great deal of investigation into Assange — predicated off of either activities that have nothing to do with journalism and/or the fact that there was one obvious source for what might be WikiLeaks most damaging publication — that has happened in recent years.

WikiLeaks supporters will cite something that former DOJ Director of Public Affairs, Matthew Miller, said  about how hard it is to distinguish what WikiLeaks does from what the New York Times does.

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.

But Miller made that comment in 2013, before Assange did things that gave the US government reason, entirely independent of things journalists do, to investigate him and WikiLeaks more aggressively. And even in an Administration that might not be in power were it not for Assange’s actions, even after Trump and his associates considered rewarding Assange with a pardon for his help, that has led to a dramatically different understanding of what WikiLeaks is.

That belief — and the government’s still mostly secret evidence for it — does nothing to mitigate the risks of some of the charges against Assange, as currently charged. But it is a fact that should be considered in the debate.

Update: Fixed date of a Mueller warrant I discussed.

Update: Bridges will be posting all the arguments and statements. Thus far they include: