An affidavit from the United States Justice Department’s prosecution of WikiLeaks founder Julian Assange shows prosecutors are focused on criminalizing the publication of the Iraq and Afghanistan War Logs.
The focus on the publication of the Iraq and Afghanistan War Logs is baselessly linked to an alleged “password cracking agreement” that prosecutors believe existed between Assange and Pfc. Chelsea Manning, who disclosed over a half million documents to WikiLeaks.
Assange was expelled from the Ecuador embassy in the United Kingdom and arrested by British police on April 11. The expulsion and arrest was linked to an indictment and extradition request that was filed by the U.S. government over a year ago.
FBI Special Agent Megan Brown, who was assigned to the “counterespionage squad” at the Washington Field Office in the District of Columbia, was tasked with sifting through information to compile the “basis” for a case against Assange.
Using language derived from the Espionage Act, which has been wielded by the Justice Department to aggressively crack down on whistleblowers, Brown contended, “Manning and Assange had reason to believe that public disclosures of the Afghanistan War reports and Iraq War reports would cause injury to the United States.”
“Documents included in the Afghanistan War reports contained information the disclosure of which potentially endangered U.S. troops and Afghan civilians and aided enemies of the United States,” Brown added. “Numerous [‘Secret’] reports, for example, related to the identity and significance of local supporters of United States and coalition forces in Iraq and Afghanistan.”
The affidavit highlighted a New York Times story from July 30, 2010, which was headlined, “Taliban Study WikiLeaks To Hunt Informants.”
“After the release of the Afghanistan War reports, a member of the Taliban contacted the New York Times and stated, ‘We are studying the report. We knew about the spies and people who collaborate with U.S. forces. We will investigate through our own secret service whether the people mentioned are really spies working for the U.S. If they are U.S. spies, then we will know how to punish them,’” Brown recalled.
Brown referenced the raid of Osama bin Laden’s compound in Abbottabad, Pakistan, on May 2, 2011.
“During the raid, they collected a number of items of digital media, which included, among other things, (1) a letter from bin Laden to another member of the terrorist organization al Qaida in which bin Laden requested that the member gather the DoD material posted to WikiLeaks, and (2) a letter from that member of al Qaida to bin Laden with information from the Afghanistan War reports released by WikiLeaks.”
Brown asserted the significant activity reports, or SigActs, were detailed reports on improvised explosive device attacks on U.S. and coalition forces. “The enemy could use these reports to plan future IED attacks because they described IED techniques, devices, and explosives, and revealed the countermeasures used by United States and coalition forces against IED attacks and potential limitations to those countermeasures.”
Manning gave a lengthy statement on February 28, 2013, where she meticulously detailed her work with the SigActs that were in databases on the Combined Information Data Network Exchange (CIDNE). She asserted the reports were largely historical and “not very sensitive.”
“The events encapsulated within most SigActs involve either enemy engagements or casualties. Most of this information is publicly reported by the public affairs office or PAO, embedded media pools, or host nation (HN) media,” she said.
The New York Times published a number of articles on IED attacks and how the U.S. military responded to them between November 1, 2009, and March 30, 2010. Any of that reporting was presumably available for Taliban or other militant groups in Afghanistan to browse and use as counterintelligence.
If WikiLeaks is guilty of aiding or abetting espionage through the publication of reports from the Afghanistan War, then so, too, are journalists and editors at the New York Times.
The mention of the bin Laden raid is notable because it formed a key part of the “aiding the enemy” case that military prosecutors put forward in the court-martial against Manning in 2013. However, Denise Lind, the military judge who presided over the trial, found Manning was not guilty of “aiding the enemy.”
David Coombs, Manning’s attorney during the court-martial, argued, “No case has ever been prosecuted under this type of theory, that an individual by the nature of giving information to a journalistic organization would then be subject to a 104 offense [aiding the enemy].”
“In this instance what the government is advancing here today, at least is extremely bad precedent, if what happens is you can give information to who you think is a journalistic organization that would publish it, and by the fact that you should have known that the enemy might eventually get it, you can be punished by 104 [aiding the enemy],” Coombs added.
Yet, Manning was acquitted of this most serious charge, making this aspect of the affidavit exceptionally troubling because the Justice Department labeled Assange a co-conspirator in “aiding the enemy,” when a military judge rejected that charge during a military trial.
The chat logs allegedly between Assange and Manning and described in the affidavit are from March 2010. By this time, Manning already decided—without any alleged solicitation or encouragement from Assange—to disclose the Iraq and Afghanistan War Logs.
Manning shared in her statement during her court-martial that she downloaded the entire databases containing Iraq and Afghanistan reports to CD-RWs because it made her job as an intelligence analyst easier. This occurred between late December 2009 and January 2010.
On January 8, 2010, Manning saved these reports to her laptop to take with her on “mid-tour leave,” which she partly spent at her aunt’s house in Maryland. There she debated what to do with the war logs, contacted both the New York Times and Washington Post, and when that did not work out, she submitted the documents on February 3 to WikiLeaks so the documents would be made public.
It is a choice that the U.S. government knows she made independently without the encouragement or assistance of Assange, and yet, the affidavit attempts to tie this publication of U.S. military documents to an alleged “password cracking agreement” that was established in March 2010—around a month after the Iraq and Afghanistan War Logs were disclosed to WikiLeaks.
Retired Brigadier General Robert Carr, who served as the chief of the Information Review Task Force (IRTF), testified during Manning’s sentencing. The only Afghan death Carr referred to was not named in the disclosures. In fact, Carr informed the court that the Taliban killed the individual and then tied him to the disclosures. But the man’s name was not in the logs.
“It was a terrorist act on behalf of the Taliban threatening all others out there,” Carr said.
Over 900 names appeared in the disclosed reports, but according to Carr, most of the individuals named in the reports were already dead.
“What I don’t have is a specific example of somebody tying this to this to this, and he died as a result of it,” Carr stated.
So, to be clear, the U.S. government never confirmed that Manning, Assange, or WikiLeaks beared responsibility for the death of a single person in Afghanistan because their name was in a report that was published.
Within the section focused on chats that allegedly occurred between Assange and Manning, Brown wrote the “two collaborated on Manning’s disclosure of classified information to WikiLeak for WikiLeaks to disseminate publicly.”
It explicitly targets the relationship and rapport Assange, a publisher, developed with a source.
Brown recounted the following exchange on March 7, 2010, involving Guantanamo detainee assessment reports:
…Manning asked Assange, “how valuable are JTF GTMO detention memos containing summaries, background info, capture info, etc?” Assange replied, “time period?” Manning answered, “2007-2008.” Assange responded “quite valuable to the lawyers of these guys who are trying to get them out, where those memos suggest their innocence/bad procedure…also valuable to merge into the general history. politically gitmo is mostly over though.”
According to Brown, Manning made the decision after this discussion to release the detainee assessments to WikiLeaks. However, at no point in this alleged exchange did Assange specifically ask for the reports to be provided nor did he say WikiLeaks would publish the documents. All Assange allegedly confirmed is that the documents were in the public interest.
Manning was already contemplating whether to release the assessments on Guantanamo detainees because she was concerned about her role in the Iraqi federal police’s detention and abuse of individuals responsible for “printing anti-Iraqi literature.” She provided materials related to this work to WikiLeaks on March 4, 2010, but the organization chose not to publish the information.
Part of the affidavit deals with the alleged conversation that occurred over these materials. Manning was concerned if some of the documents were published it would be easy for U.S. military officers to identify her.
Essentially, the FBI criminalized Assange for discussing how to protect Manning from being discovered as the source for publications on WikiLeaks. This is common to journalism. Pulitzer Prize-winning reporters have taken into consideration the concerns of their sources for their protection, and yet, the FBI in this case includes this in an affidavit describing an alleged criminal conspiracy.
What the affidavit further confirms is the Justice Department is alleging a computer crime as a way of targeting the publication of information by an organization that should be protected under the First Amendment.
The affidavit is also further proof that the U.S. government is attempting to criminalize a foreign journalist by maintaining that journalist had an obligation to adhere to U.S. secrecy regulations. This constitutes a potentially grave threat to world press freedom, especially if this were to set a precedent where more countries impose their secrecy laws on American journalists.
Finally, with Chelsea Manning jailed for over a month for refusing to testify before the grand jury investigation into WikiLeaks, the affidavit reflects why the government wants to question her. They are punishing her because they need her to talk so the government’s political case can be improved. As it stands, they probably doubt whether it is substantial enough to survive concerns over whether Assange’s human rights will be violated if he is extradited to the United States.