A federal judge has determined the government does not have to release records related to its investigation into WikiLeaks. The judge indicated the court was “persuaded” there is a “criminal investigation.” The government had provided “sufficient specificity” as to the investigation’s status and a “sufficient explanation as to why the investigation is of long-term duration.”

The Electronic Privacy Information Center (EPIC) submitted a Freedom of Information Act request for records on “individuals targeted for surveillance” for their support or interest in WikiLeaks. They requested records of any lists of names of people placed on lists for their support or interest in WikiLeaks. They requested records of communications with Internet or social media companies on any lists of individuals who have shown support for WikiLeaks.

The organization also requested records on any communications with financial services companies, including Visa, MasterCard and PayPal, on lists of individuals who have donated money and shown support for WikiLeaks.

When EPIC failed to obtain the records, the organization sued the FBI and the Justice Department’s National Security Division (NSD) and Criminal Division (CRM).

Even though there were records released related to Twitter litigation involving “customer account information” for Chelsea Manning, a WikiLeaks spokesperson, Jacob Appelbaum and WikiLeaks editor-in-chief Julian Assange, EPIC is not entitled to the release of records with “investigatory techniques” similar to techniques in the Twitter litigation. That may “reveal information regarding the scope of this ongoing multi-subject investigation.” [PDF]

The records are exempt from release, according to Judge Barbara Rothstein, because they were related to the “unauthorized release of classified material on the WikiLeaks website.” Such files are “obviously related” to the FBI and CRM’s duties to “enforce criminal laws and to protect against national security threats.”

Defendants FBI and CRM have filed seven declarations in this case, three of which were filed ex parte and in camera. David Hardy from the FBI states that “responsive records are contained in files pertaining to the FBI’s investigation of the disclosure of classified information that was published on the WikiLeaks website.” Similarly, John Cunningham from CRM states that “the responsive records in the possession of the Criminal Division are all part of the Department of Justice’s investigation into the unauthorized disclosure of classified information that resulted in the publication of materials on the WikiLeaks website.” [emphasis added]

Rothstein adds that defendants’ search for documents “has not produced documents” because “there are no surveillance records for individuals, who ‘simply support’ or have interest in WikiLeaks.”

…[T]here is no support for the notion that Defendants’ investigation into the unauthorized publishing of classified material on WikiLeaks is pretext and that Defendants are conducting illegal investigations of innocent WikiLeaks supporters. The FBI specifically states that it “is not investigating individuals who simply support or have an interest in WikiLeaks,” and “does not . . . maintain lists of individuals who have demonstrated support for or interest in WikiLeaks, and thus has no records responsive to this portion of Plaintiff’s request.”… [emphasis added]

The judge, however, did find that the Justice Department’s National Security Division had failed to conduct an adequate search for records. It did not appear the division had used any search terms to search records. The division allowed one lead attorney to claim all responsive files were in one location and took that person’s word for it.

While Manning’s case is on appeal, the government assured the court that the investigation into WikiLeaks is a separate matter.

Now, the court decision is probably more significant for what it says about the ongoing investigation into the “unauthorized publishing” of classified information. WikiLeaks is a media organization. Its “unauthorized publishing” of information was as legal as the New York Times, The Guardian or Der Spiegel’s publishing of classified information. This is not a crime, which attorneys in the National Security Division should be devoting resources to investigate.

Rothstein’s claims about the investigation not involving surveillance of individuals who “simply support” WikiLeaks is belied by documents released by NSA whistleblower Edward Snowden, which point to covert surveillance of WikiLeaks and its supporters.

This is classic parsing of language. All the FBI has to do is categorize supporters they suspect of more involvement in WikiLeaks as aiders, abettors or conspirators and then they can sweep up any of their communications in their fishing expedition against WikiLeaks and the organization’s associates.

Earlier in January, WikiLeaks published copies of search warrants that were served against WikiLeaks staff’s Google accounts.

The United States government served search warrants on Google in March 2012 and demanded that the company hand over data from WikiLeaks staff members for the purpose of an investigation into violations of the Espionage Act, Computer Fraud and Abuse Act (CFAA), a larceny statute and a “conspiracy to commit offense or to defraud the United States” statute.

What this “long-term duration” investigation into WikiLeaks and its associates exemplifies is a criminalization of a select group of people the US government refuses to recognize as journalists because they were embarrassed.

Agents and attorneys conspire together to find alleged misconduct so they can show the world these people are not worthy of protections typically afforded to members of the press. They use the fact that WikiLeaks is a new media organization and different from the Times to assist them in fabricating a case.

Officials circumvent principles of freedom of the press to pursue WikiLeaks, which is one of the prime reasons why they must withhold the type of documents EPIC went to court to have released.

Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."