Newly published documents, including sealed court orders from the secret Department of Justice grand jury investigating WikiLeaks, shed light on the manner and scope of the criminal and intelligence probes into Julian Assange and civilians associated with the online publisher of censored material.
Diplomatic Security Services, the law enforcement arm of the U.S. Department of State, along with "other elements of the U.S. government," began investigating the unauthorized disclosure of a U.S. diplomatic cable from the U.S. Embassy in Iceland and its publication by WikiLeaks four years ago tomorrow, according to the testimony of a Department of State official in charge of the investigation at Chelsea (formerly Bradley) Manning's trial.
In August 2013, the 26 year old U.S. Army intelligence analyst was convicted to 35 years in prison for disclosing to WikiLeaks low level battlefield reports and U.S. diplomatic cables detailing U.S. complicity in the abuse, torture, and killing of civilians in Afghanistan, Iraq, Yemen, and Somalia.
I am publishing for the first time, two court orders that detail the U.S. Department of Justice's surveillance of Jacob Appelbaum, a WikiLeaks associate, security expert and journalist, who has recently collaborated on articles in Der Spiegel detailing NSA surveillance.
Four days after Assistant U.S. Attorney Andrew Peterson requested an April 2011 subpoena commanding the testimony of an unidentified Cambridge resident at a secret grand jury, empaneled in Alexandria, Virginia, prosecutors also successfully obtained another court order directing a U.S. based internet service provider, Sonic.net, to turn over the Internet Protocol and email addresses of people who had communicated with Appelbaum. See the secret court order here and below.
Recently released emails also reveal that the secret Sonic order for Appelbaum's information was part of a small portion of sealed grand jury materials, which were turned over to Manning's defense at her trial.
Other recently released emails reveal that the three and a half year old Department of Justice grand jury probe was already empaneled on September 23, 2010, two months before the Attorney General publicly acknowledged an ongoing U.S. criminal investigation of WikiLeaks and Julian Assange.
The Department of Justice has also characterized the WikiLeaks criminal probe as a national security investigation. Evidence may also indicate that the case has been categorized as terrorism related. If that is so, it raises questions about the methods (beyond traditional criminal law enforcement) that the Obama administration is employing against the online publisher, its employees, associates, and supporters.
Manning, only received portions of the testimony and materials from the secret grand jury investigating WikiLeaks at her trial.
The material that was turned over to Manning's defense included the Appelbaum Sonic order as well as information from a 2010 secret order issued to Twitter, commanding the social media website to turn over information about individuals associated with WikiLeaks, including Appelbaum.
Recently released emails further confirm that another secret court order from June 2011 (previously reported about here) and an August 2011 search warrant (also reported about here), which sought the IP and email addresses as well as the content of emails from an unidentified Google subscriber, were also part of the WikiLeaks grand jury and were similarly turned over to Manning's defense by federal and military prosecutors.
What is not certain, although likely, is if the January 2011 secret Google Appelbaum order was included among the grand jury materials handed over to Manning's defense. See the secret order here and below.
The Department of Justice criminal investigation of WikiLeaks is broader than the Manning probe. "Private First Class Manning is a piece of the FBI file," said the lead military prosecutor Major Ashden Fein at trial. The FBI file, said Fein, was "42,135 pages or 3,475 documents." Manning represented only 8,741 pages or 636 different documents in that FBI file, said Fein. Most of the file is classified.
Recently released correspondence by military prosecutors detail how the FBI and the U.S. Attorney's Office in the Southern District of New York were also involved in the criminal investigation of Wikileaks, along with the Eastern District of Virginia and the National Security Division of the Department of Justice.
The August 2011, document coincides with the FBI investigation in the Southern District of New York of members of AntiSec, and the subsequent indictment and conviction of Jeremy Hammond for hacking various websites in the summer of 2011 and the website of Strategic Forecasting, a private security firm located in Austin Texas, in December 2011. WikiLeaks later published the Stratfor emails, which detailed how the private security firm surveilled Bhopal activist in India for Dow Chemical Co.
The August 2011 document also coincides with reports that the FBI and Diplomatic Security Service agents were investigating WikiLeaks in Iceland in the summer of 2011 under the pretext of an alleged cyber-attack on the computer system of the Icelandic government.
The Icelandic Minister of Interior, Ogmundur Jonasson, reportedly discovered the FBI's intention to interrogate an Icelandic citizen as part of the U.S. investigation of WikiLeaks and ordered local police to stop cooperating with U.S. agents.
According to anonymous law enforcement sources cited in the Washington Post on November 18, 2013, the Department of Justice does not have a sealed indictment against Assange, but the investigation continues.
Since December 2010, the Department of Justice has been looking at the Espionage Act and other statutes, including the Computer Fraud and Abuse Act, to prosecute Assange.
A regular criminal grand jury consists of 16 to 23 citizens. The grand jury only hears cases brought before it by a prosecutor, who decides which evidence to present, which witnesses to call, and which of those witnesses will receive immunity.
The Department of Justice does not have to use the same grand jury to indict Assange or any other civilian that they also used to present their evidence. While regular grand jury terms are for 24 months, investigative material can be rolled into subsequent grand juries.
For most criminal offenses the statute of limitation is five years, but for the Espionage Act, the statute of limitations is ten. The statute of limitations for alleged offenses is also based on the last criminal act, and could potentially wrap in all prior alleged criminal behavior, says Barry Pollack, defense attorney to Julian Assange.
In December 2010, the Attorney General Eric Holder acknowledged that prosecuting Assange under the Espionage Act for publishing would be difficult. The Espionage Act was originally intended to prosecute U.S. spies, but has been repeatedly employed by the Obama administration to prosecute whistleblowers for their disclosures of classified information to the press.
An anonymous government official familiar with the U.S. investigation told the New York Times in December 2010 that charging Assange under the Espionage Act could be facilitated if investigators could prove a conspiracy, in other words that Assange aided any of WikiLeaks' sources, by for example directing them to find certain information or providing technological assistance.
At Manning's court martial, military prosecutors unsuccessfully alleged that Manning was an employee of WikiLeaks, who had "harvested" information at the direction of Assange. Military prosecutors however, also alleged, that Assange had provided his source with technical assistance.
While the evidence against Assange was circumstantial and Manning admitted that she acted alone, she was nevertheless convicted of a violation of a lawful general regulation for attempting to change the administrator password on her classified work computer. Military prosecutors had alleged at trial that Manning received knowledge from Assange on how to do that.
By also arguing at trial that Manning had leaked an unclassified video of a May 2009 U.S. bombing in the Farah Province of Afghanistan, which massacred 86 to 140 civilians, including women and children, within days of her arrival in Iraq to on or about January 8, 2010 the day WikiLeaks tweet:
Have encrypted videos of US bomb strikes on civilians http://bit.ly/wlafghan2 we need super computer time http://ljsf.org/— WikiLeaks (@wikileaks) January 8, 2010
prosecutors were attempting to build a case for a criminal conspiracy against Manning and Assange.
The time line of the Garani video offense dovetails with the start date (November 1, 2009) of all known secret orders including those for Sonic, Google, Dynadot, and Twitter-- to turn over information about civilians under investigation, including Jacob Appelbaum and Julian Assange.
At Manning's pretrial a U.S. Army agent testified that Adrian Lamo had informed them in July 2010 that he was aware of someone on the Internet, who was allegedly attempting to decrypt the Garani video for WikiLeaks. The FBI, said the agent, was directing the investigation into Jason Katz, an employee at Brookhaven National Laboratory between February 2009 and March 2010. Katz was later fired for engaging in inappropriate computer activity.
An internal investigation into Katz by Brookhaven National Laboratory predated the U.S. investigation of WikiLeaks, but forensic evidence was later acquired by FBI investigators and used by military prosecutors at Manning's trial.
Manning was eventually acquitted of espionage for the Garani airstrike video, but the military prosecution's theory against Katz, Assange, and what one agent referred to the "founders, owners, or managers of WikiLeaks" survives the Manning court-martial.
In December 2010, the Attorney General stated, "It would be a misimpression if the only statute you think we are looking at is the Espionage Act. That is certainly something that might play a role, but there are other statutes, other tools that we have our disposal."
One of those statutes includes the Computer Fraud and Abuse Act. The CFAA was cited in a May 2011 letter, which accompanied the subpoena ordering one of the founders of the Private Manning Support Network to testify at the secret grand jury investigating WikiLeaks. Manning was also convicted under the CFAA for disclosing 116 U.S. diplomatic cables to the WikiLeaks organization, because she used freely acquired software that automated downloading of the material.
The Obama administration's attempt in a recent strategy document to re-frame WikiLeaks by associating the media organization with cyber-crime and intellectual property theft for the publication of "computer files provided by corporate insiders indicating allegedly illegal or unethical behavior at a Swiss bank, a Netherlands-based commodities company, and an international pharmaceutical trade association" is an attempt to bypass a constitutional challenge to prosecuting Assange for publication.
Typically, the Department of Justice simply indicts, keeps the indictment sealed, issues a warrant, and then sits and waits. It is a violation of federal law for an official to disclose the instance of a sealed indictment before an accused is in the custody of law enforcement.
Once an indictment is unsealed or an investigation is concluded, all the secret orders and search warrants related to the case are simultaneously unsealed. All the secret orders and search warrants related to the WikiLeaks investigation that are publicly known, including those published here, remain under seal.
In the Assange case, however, there are public relations concerns, says Stanley Cohen, U.S. defense attorney on numerous high profile terrorism and cyber-crime cases. "The Department of Justice could also list a target as an un-indicted co-conspirator and still get the benefit of him or her fitting within the history and evidence chain presented to the grand jury," says Cohen. An unindicted co-conspirator can later be charged whether on his or her own, or by a superseding indictment along with those previously charged, Cohen added.
In the end, however, Assange (or any other civilian) could be extradited by criminal complaint or by indictment.
Neil MacBride, the former U.S. Attorney for the Eastern District of Virginia, who was in charge of the WikiLeaks grand jury, hired Andrew Peterson (who later requested the Appelbaum secret Sonic Order) to join the Terrorism and National Security Unit, nine days after Manning was arrested in Iraq. The Terrorism and National Security Unit became the National Security and International Crime Unit soon after.
While a grand jury is under the purview of the U.S. Attorney for the Eastern District of Virginia, the criminal investigation of WikiLeaks is under the supervision of the Assistant Attorney General of the National Security Division at the Department of Justice or a higher authority, which includes the Attorney General.
In February 2011 James Clapper, the U.S. director of national intelligence, who is in charge of the 16 agencies and departments that make up the U.S. Intelligence Community, remarked to the Senate Intelligence Committee at a hearing on current and projected national security threats that WikiLeaks disclosures had been damaging to U.S. national security.
Then in March 2011, Clapper declared to the Senate Armed Services Committee that WikiLeaks disclosures were a current and projected counterintelligence threat to the national security of the United States -- on par with corporate espionage, drug trafficking, and climate change.
Evidence may indicate that the National Security Division has characterized the WikiLeaks investigation as a 'Category 2' terrorism case. Category 2 terrorism cases allege "an identified link to international terrorism" including "any link or reference to a designated Foreign Terrorist Organization (FTO)," according to the U.S. Attorney's Manual.
Since the September 11, 2001 terrorist attack, U.S. law enforcement has morphed from its traditional role obtaining evidence to use in a court of law to an agency that employs extra-judicial methods geared towards the prevention of future crimes.
In a law journal article, entitled Addressing Tomorrow's Terrorists, authored by the WikiLeaks grand jury prosecutor, Peterson writes that the Department of Justice declared that it's responsibility was "not simply to prosecute terrorists for crimes, but to '[p]revent, disrupt, and defeat terrorist operations before they occur.'"
Although later acquitted of aiding the enemy, Manning was charged at trial with giving intelligence to the enemy via the WikiLeaks website.
Military prosecutors also identified the enemy as al Qaeda and al Qaeda in the Arabian Peninsula (AQAP). Both entities are designated as terrorist organization on the FTO list maintained by the U.S. Department of State. Aiding the enemy is also one of two articles under the Uniform Code of Military Justice that apply to "any person" and not just military personnel.
Manning was also convicted of making U.S. intelligence accessible to Al Qaeda and AQAP on the Internet. The charge and conviction to 'wanton publication' was unprecedented, because the offence is not actually tied to any existing punitive article under the Uniform Code of Military Justice or U.S. federal criminal statute.
The CFAA also falls under the statutes that can be used in Category 2 terrorism cases. The National Security Division and the Office of the U.S. Attorney for the Eastern District of Virginia declined to comment on the nature of the ongoing investigation.
"It is possible that the WikiLeaks investigation has been characterized as a Category 2 terrorism case," says Pollack, "However, as a practical matter, I think there is no question that the WikiLeaks investigation is being treated as a case the National Security Division must approve and supervise."
Even if the investigation of WikiLeaks were not characterized as a Category 2 terrorism related case and the Department of Justice was simply constructing a case alleging criminal violations of the Espionage Act and the CFAA, says Pollack, the criminal probe would still unambiguously fall under the purview of the National Security Division.
Closing the four-year-old WikiLeaks investigation, therefore, requires the authorization of the National Security Division or a higher authority, such as the Attorney General.