The United States government would like a staunch opponent of WikiLeaks to testify against former CIA employee Josh Schulte, who is accused of leaking the “Vault 7” files to WikiLeaks. But Schulte’s defense attorney contends such testimony would be “irrelevant, prejudicial, and confusing.”
Paul Rosenzweig is the founder of a homeland security consulting company called Red Branch Consulting. He is a senior advisor to the Chertoff Group, founded by former Homeland Security director Michael Chertoff and is a former Homeland Security official. He is a “professional lecturer in law” at George Washington University and a contributor to the popular Beltway blog, Lawfare.
In December 2010, after WikiLeaks published U.S. military incident reports, several thousand State Department cables, and the “Collateral Murder” video, he contended WikiLeaks has a “malevolent intent.” He urged Congress to update espionage laws so prosecuting those involved in the media organization would be easier and more efficient.
Schulte allegedly released files that brought scrutiny to the CIA’s hacking arsenal, which targeted smartphones and computers. A program called “Weeping Angel,” that allowed the CIA to attack Samsung F8000 TVs and convert them into spying devices was exposed. They also showed how the CIA targeted Microsoft Windows, as well as Signal and WhatsApp users, with malware.
In June 2018, Schulte was charged with 13 offenses, including four counts of violating the Espionage Act.
The government would like a federal court [PDF] to certify Rosenzweig as an “expert” on WikiLeaks. In particular, prosecutors believe Rosenzweig can “explain WikiLeaks’ typical practices with regard to receiving leaked classified information” and “its practices or lack thereof regarding the review and redaction of sensitive information contained in classified leaks and certain well-publicized harms to the United States that have occurred as a result of disclosures by WikiLeaks.”
But Schulte’s defense argues [PDF] Rosenzweig’s purpose will be to “suggest to the jury that WikiLeaks is an inherently criminal or evil organization that harms the United States.”
His attorneys say prosecutors may want to use the former Homeland Security official’s testimony to convince the jury that Schulte’s decision to pass the information to WikiLeaks is proof that he intended to harm the United States.
Several questions about the nature of Rosenzweig’s proposed testimony are raised.
“About what prior leaks does he plan to testify? What damage to the United States will he assert occurred as a result of these leaks? Has he done an analysis to determine that the ‘well-publicized harms’ of prior leaks were in fact accurate? Does he have any personal experience with the WikiLeaks organization? Has he done any specialized research about the organization?” they ask.
Schulte’s defense moved to prevent testimony from Rosenzweig.
According to the government, which replied [PDF], they maintain Rosenzweig will testify about “Schulte’s knowledge of prior WikiLeaks’ disclosures,” “Schulte’s heightened interest in WikiLeaks after he illegally transmitted classified information to the organization,” Schulte’s alleged involvement with online hackers organizing under the banner of Anonymous, who “previously worked with WikiLeaks,” and “Schulte’s avowed intention to destroy the United States’ diplomatic relationships (relationships that were publicly affected by prior WikiLeaks disclosures).”
It is unclear how Rosenzweig can possibly know what Schulte knew when he allegedly disclosed the “Vault 7” materials. It is also unclear how Rosenzweig can possibly know what Schulte’s “heightened interest” was at the time of his alleged leaks.
If the government intends to prosecute Schulte like it has in most recent Espionage Act cases, what Schulte did or did not know about WikiLeaks is irrelevant. All the government has to prove is that Schulte made the disclosures, and they violated the law.
Schulte’s defense asserts, “This type of testimony would create confusion and force a trial within a trial on the morality of WikiLeaks and the extent of damage caused by prior leaks.”
“If the government is allowed to introduce this evidence, the defense will necessarily have to respond with testimony about how WikiLeaks is a nonprofit news organization, that it has previously released information from government whistleblowers that was vital to the public understanding of government malfeasance, and that any assertion of damages in the press is not reliable evidence.”
Yet, his attorneys add, “That would create a sideshow irrelevant to any of the elements that the government must prove at trial.”
A federal judge may find value in allowing the jury to hear testimony from an expert. In 2013, during the court-martial against Pfc. Chelsea Manning, the defense convinced a military judge that Professor Yochai Benkler of Harvard University was an expert on the “networked Fourth Estate” and could discuss his research on WikiLeaks and how it fit into this new information economy.
David Coombs, a defense attorney for Manning, asked Benkler about a 2008 Army Counterintelligence Center (ACIC) report that explored whether WikiLeaks posed a threat to the United States Army and if it “undercut the determination that WikiLeaks is an investigative journalistic organization.” Benkler did not think it did. “There’s a point at which, for example, the report describes WikiLeaks reaching out to national ground intelligence of staff to verify a particular report regarding the battle of Fallujah and actually says, they had high journalistic professionalism in reaching out to try to assure fair use.”
Manning was charged with releasing this report, which acknowledged WikiLeaks’ “attempts to verify the information were prudent and show journalist responsibility to the newsworthiness or fair use of the classified document if they are investigated or challenged in court.”
In contrast, Rosenzweig’s grasp of WikiLeaks seems spiteful and unsophisticated.
Rosenzweig declared in July 2018, “WikiLeaks is at best a pawn of Russia intelligence and at worst a part of the coordinated Russia operation. They took information from Guccifer 2.0. They solicited it, and anybody who seriously treats them as a journalism outlet after this is just beyond credulousness.”
The report from Special Counsel Robert Mueller’s investigation failed to confirm, without a doubt, that WikiLeaks publications were part of a Russian intelligence operation.
In 2015, Rosenzweig spoke out against WikiLeaks when they compiled a database so the public could search all of the files hacked from Sony Pictures. He said, “When this kind of behavior is considered acceptable, when news organizations profit off of this kind of behavior, it provides encouragement it seems to me to other cyber-extortionists to do the same thing.”
He unquestionably bought into the allegation that North Korea was responsible for the hack and said WikiLeaks assisted “North Korea’s efforts in trying to threaten Sony.” (One hypothesis for why the hack occurred was that the North Korea government was upset about the portrayal of their leader in “The Interview.”)
The certainty with which Rosenzweig expressed his opinion undermines his credibility. Five years after the hack, there are still many questions as to who was responsible.
When Rosenzweig was a visiting fellow at the Heritage Foundation, a conservative think tank, he argued the lesson of WikiLeaks was that the U.S. needed to develop a “cyber-insurgency doctrine,” much like the military developed a counter-insurgency doctrine for waging war in Iraq.
WikiLeaks founder Julian Assange is charged with 18 charges, including 17 counts of violating the Espionage Act. He is in prison and faces potential extradition.
In 2013, Rosenzweig declared, “I think Assange’s assertion[s] of a ‘good government/transparency’ motive are patently self-serving flummery, but a jury might buy it. I have no doubt that a colorable [seemingly valid] case can be made against Assange—but conviction is much less certain.”
“My opinion is that Assange is not a journalist and WikiLeaks is not a news organization,” Rosenzweig added. “News organizations pride themselves on adding value to news—they analyze and provide context. WikiLeaks does none of that. It’s more like a telephone directory—just a compiler of information, not a discriminating purveyor —and it demeans real news organizations to make the comparison.”
Prosecutors would like nothing more than to convince a judge that an “expert” like Rosenzweig is not prejudicial and possesses facts or data relevant to their prosecution just so they can have him express these opinions in a courtroom. In fact, if Rosenzweig testifies, he may be auditioning for the role of “expert” witness in the United States’ trial against Julian Assange.