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On Nappies and Law Enforcement Spying

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One of the most scandalous revelations from the Julian Assange extradition hearing — that the company that handled the security for the Ecuadoran Embassy, UC Global, sought to obtain a diaper from one of Stella Morris’ children — may have a very logical explanation: The FBI would need to know whether they had to treat communications between Assange and Morris with spousal privilege. The FBI did precisely the same thing with Roger Stone when they went to some length to figure out whether Kristin Davis’ son was Stone’s child before they interviewed her in the investigation of Stone.

Indeed, once you read through the muddles and inconsistencies, what the two witnesses who submitted testimony about UC Global’s surveillance of Assange (Witness One, Witness Two) described is utterly consistent with FBI surveillance and inconsistent with CIA surveillance.

Witness Two is more detailed and credible than Witness One. That’s easily shown in two ways. First, Witness Two admits that after David Morales got a contract with Sheldon Adelson in 2016, it led to speculation that he was working with US authorities. UC Global employees discussed how he “could” be cooperating with US authorities (a dumb speculation to begin with).

I remember that after David Morales had returned from the United States, at a meeting with the rest of the staff he affirmed that we were moving into “the premier league”. After this I became aware that David Morales was making regular trips to the United States, the context of which my boss, David Morales, repeated to his having “gone to the dark side”. I also recall Morales’s wife’s social media recording the recurring trips to the United States, specifically to New York and Washington, via her Instagram account (with the profile @moda_koko), which prompted ongoing commentary from staff that Mr Morales could be cooperating with US authorities. [my emphasis]

Witness One presents that as fact (unlike Witness Two, Witness One has none of the records or claims he makes documented, another thing that makes Witness Two far more credible).

After returning from one of his trips to the United States, David Morales gathered all the workers in the office in Jerez and told us that “we have moved up and from now on we will be playing in the big league”. During a private conversation with David, I asked him what he was referring to when he said we had moved up into “the big league”. David replied, without going into further detail, that he had switched over to “the dark side” referring to cooperating with US authorities, and as a result of that collaboration “the Americans will get us contracts all over the world”.

In addition to the new contract, after Morales’s return from Las Vegas and his comments about “the big league” and switching to “the dark side”, I learned through my conversation with Davis Morales that he had entered into illegal agreements with U.S. authorities to supply them with sensitive information about Mr. Assange and Rafael Correa, given that UC Global was responsible for the embassy security where Mr. Assange was located.

He does so, even though he didn’t leave UC Global — because Morales was selling everything to “the enemy, the United States” — until 2017 (or possibly even later, after Assange’s arrest).

Thus, I came to realize that David Morales decided to sell all the information to the enemy, the United States, which is the reason I put an end to my professional relationship with him.

If he were certain Morales was working for the dark side in 2016, by his own claims, he would have left then.

Similarly, Witness Two includes the details that explain why Adelson would give Morales a contract when his yacht already had security: it was to protect his kids when they were in Europe.

I remember that Sheldon Adelson himself – who is on the public record as being very close to President Donald Trump—increased his ties with UC Global because at one point David Morales was personally put in charge of the security of the magnate and his children when they visited Europe, in their Summer trips to Nice and Ibiza.

Witness One doesn’t consider such explanations.

That is to say, the contract was to provide security to the luxury boat during the short period during which it found itself in Mediterranean waters. But the most striking thing about it was that the boat had its own security, which consisted of a sophisticated security detail, and that the contract consisted in adding an additional person, in this case, David Morales, for a very short period of time, through which David Morales would receive an elevated sum.

The difference in credibility is important, because Witness One focuses closely on Adelson, whereas Witness Two barely focuses on it. Witness Two — who unlike Witness One had a direct role in the increased surveillance on Assange — mentions it only in passing.

For good reason. Any claim of a connection between the 2016 Adelson contract and surveillance that ratcheted up much later makes no sense.

And that’s important because, while Witness Two describes UC Global being vetted as early as January 2017, he describes (and Witness One agrees) that the increased surveillance started in June or July of that year, with the most intense surveillance starting in December 2017.

I recall that between June and July 2017, I was summoned by David Morales to form a task force of workers at our headquarters in Jerez. The purpose of this unit was to execute, from a technical perspective, the capture, systematization and processing of information collected at the embassy that David Morales requested. So, I was tasked with executing David Morales’s orders, with the technical means that existed in the embassy and additional measures that were installed by order of Morales, in addition to the information gathered by the UC Global employees who were physically present in the diplomatic mission. This unit also had to travel to London every month to collect information.

There are still inconsistencies with Witness Two’s testimony, mind you, including a request in May that he says was part of the task force that didn’t start until a month later. But effectively he provides compelling evidence that, starting in June 2017, the surveillance that UC Global was doing on Assange went up, and then in December it went up considerably.

That’s consistent with the substance — though not the headline claims — of a presentation that Andrew Müller-Maguhn did on this almost a year ago. Add in the report that Morales shared information with an IP in Alexandria, VA, and the surveillance is completely consistent with being part a criminal investigation conducted out of the EDVA grand jury known to be investigating not just Assange, but also accused Vault 7 source Joshua Schulte at the time. Within months, there would be several more investigations predicated against Assange, investigations that would have nothing to do with journalism (and, if DOJ investigated Assange’s attempt to extort immunity using the Vault 7 files, that too would have nothing to do with journalism).

That almost seems like what this paragraph, from the prosecution closing argument, suggests — that, sure, they did have Assange under surveillance but that’s because he was sitting on CIA’s hacking tools and was planning an exfiltration from the embassy to Russia.

Fifth: allegations which Assange makes about being surveilled in the Embassy are not evidence that this prosecution is politically motived. In short, taking the defence evidence at its highest, even if Assange was surveilled by or on behalf of the United States, which is not admitted, that does not demonstrate that this prosecution is politically motivated. Surveillance may evidence wider concern about a risk an individual poses or concern to know their movements. Surveillance may demonstrate a state’s interest in apprehending an individual but that does not make a prosecution for criminal conduct politically motivated.

As I’ve said before, UC Global had a legal presence in the US and as such would be subject to subpoena by a grand jury. Surveillance records are routinely obtained from grand juries. While I imagine they’d get Ecuador’s consent for this, by fall 2016 — and especially after the Vault 7 releases — Ecuador was pretty sensitive about the way Assange was using their embassy as a base for crimes that were pissing off multiple countries.

You can argue this level of surveillance was really overbearing (and you’d be right). But WikiLeaks’ backers keep telling the story without mentioning that it came during precisely the period when the FBI was investigating Assange for a whole bunch of stuff, almost all of which had nothing to do with journalism. You can argue that the 2010 charges are dangerous (they are!). But to argue that Assange shouldn’t be investigated for extortion, conspiring with those who hacked Americans, illegally participating in an American election, and entering into a quid pro quo to get a pardon is not an argument about journalism.

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.

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: