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The Government's Case Against Julian Assange Is Falling Apart

Julian Assange

First Posted: 02/09/11 12:49 PM ET Updated: 05/25/11 07:30 PM ET

With popular uprisings in Tunisia and Egypt spinning along, each with a certain amount of world-reshaping potential, there's been a lot of new attention focused on the role that WikiLeaks has played in these events. Ian Black, the Middle East editor of The Guardian, one of the key newspapers disseminating diplomatic cables from WikiLeaks' trove, told NPR last night that he didn't feel the leaked cables were the primary driver of these uprisings. Nevertheless, WikiLeaks seems to have helped to remove the people now demonstrating on the streets from their isolation by providing a "confirmation of what people in these countries know and feel intuitively," about the conditions under which they have lived.

If you spend any time at all reading about Bradley Manning, the young U.S. Army private who stands accused of providing WikiLeaks with massive amounts of intelligence pulled from the Secret Internet Protocol Router Network used by the Pentagon and the State Department, the picture that emerges is one of a young man who also felt isolated, one who saw WikiLeaks as a means of ameliorating that feeling. Manning remains in custody -- a particularly brutal form of solitary confinement, actually -- at the Marine Corps brig in Quantico, Va.

Manning still faces charges of his own, but he's played a larger role in the tensions between U.S. government officials and WikiLeaks, in that he is seen as the key figure in building a larger criminal case against WikiLeaks founder and figurehead Julian Assange. That Manning willingly provided WikiLeaks with classified information does not appear to be in dispute. The issue, rather, is one of "did Manning jump or was he pushed?"

U.S. officials have been gamely attempting to make the case that Assange induced Manning to provide WikiLeaks with government documents. Now, according to the Wall Street Journal's Julian Barnes and Evan Perez, that case has cratered:

New findings suggest Pfc. Bradley Manning, the intelligence analyst accused of handing over the data to the WikiLeaks website, initiated the theft himself, officials said. That contrasts with the initial portrait provided by Defense Department officials of a young man taken advantage of by Mr. Assange.

Further denting the push by some government officials to prosecute Mr. Assange, the probes have found little to link the two men, though others affiliated with WikiLeaks have been tied to Pfc. Manning, officials said.

For the U.S. to bring its preferred case against Mr. Assange of inducing the leak, it would have to show that the WikiLeaks founder specifically encouraged Mr. Manning to hand over the documents, which included thousands of State Department cables, as well as low-level intelligence reports on the wars in Iraq and Afghanistan.

Federal Bureau of Investigation agents and Justice Department lawyers continue to gather evidence for a possible conspiracy charge against Mr. Assange, but that's a harder case to make, government officials said.

This is not going to come as any surprise to Jane Hamsher and Marcy Wheeler of Firedoglake, or Glenn Greenwald of Salon, who have been arguing that such a case against Assange could not be made for weeks.

This case against Assange -- that he had pursued Manning, with the intention of inducing the soldier into proving WikiLeaks with thousands of classified diplomatic cables -- relied heavily on the word of Adrian Lamo, a high-profile hacker-turned-"threat analyst," to whom Manning reached out in May of 2010, revealing that he had taken classified material and leaked it to Assange. Lamo reported this to authorities, and provided the contents of his chat logs with Manning to Wired Magazine.

In a December 15, 2010 article in the New York Times, Lamo told Charlie Savage that the case against Assange could be made by studying his chat logs with Manning:

Adrian Lamo, an ex-hacker in whom Private Manning confided and who eventually turned him in, said Private Manning detailed those interactions in instant-message conversations with him.

He said the special server's purpose was to allow Private Manning's submissions to "be bumped to the top of the queue for review." By Mr. Lamo's account, Private Manning bragged about this "as evidence of his status as the high-profile source for WikiLeaks."

Wired magazine has published excerpts from logs of online chats between Mr. Lamo and Private Manning. Mr. Lamo described them from memory in an interview with The Times, but he said he could not provide the full chat transcript because the F.B.I. had taken his hard drive, on which it was saved.

Since WikiLeaks began making public large caches of classified United States government documents this year, Justice Department officials have been struggling to come up with a way to charge Mr. Assange with a crime. Among other things, they have studied several statutes that criminalize the dissemination of restricted information under certain circumstances, including the Espionage Act of 1917 and the Computer Fraud and Abuse Act of 1986.

But the chat logs that Wired made available to the public were heavily redacted and fell well short of the mark in terms of bolstering Lamo's claim. That's when Greenwald and Firedoglake opened up a two-front attack on this allegation. Greenwald waged a high-profile battle with Wired on journalistic grounds. Meanwhile, Hamsher and Wheeler dived into the available information in an attempt to ascertain what could be divined from it.

Wheeler -- whose preternatural gift for taking massive amounts of data and synthesizing a throughline helped to earn her a Hillman Award for investigative journalism -- immediately starting picking holes in the government's case. Through this work Hamsher and Wheeler were able to construct a definitive timeline of events concerning Lamo's dealings with and about Manning, and -- lo and behold -- what they found were a ton of inconsistencies.

In turn, that spurred Greenwald to demand that Wired release the remaining chat logs between Manning and Lamo. Wired responded in oozingly self-serving fashion, in a two-pronged attack on Greenwald that Greenwald subsequently took apart in meticulous fashion. The final upshot on all of this? Wired admitted to BoingBoing's Sean Bonner and Rob Beschizza that "the chat logs in fact contained no unpublished references to Assange or private servers" for Manning's use.

And in terms of making the case that Assange was actively trying to induce or assist Manning in leaking classified information, that was, as they say, the whole shooting match. As Bonner and Beschizza point out: that left "no new smoking guns in the unpublished portion or the logs, and little to suggest the degree of collaboration between Pvt. Manning and Wikileaks that prosecutors may need to pursue charges."

As for what evidence there was to be had in the previously published portions of the chat logs, Bonner very deftly takes it apart. (Forgive the lengthy blockquote coming, it's important for clarity.) Per Bonner:

Given that those logs have been public for months now, anything incriminating in them has already been seen and noted a bajillion times over-- that's my assumption, anyway. There is some confusion about the already-published reference to an FTP server, and some people suggest that this backs up Lamo's claim. But I read these logs very carefully before making any comment, and didn't come to that conclusion.

The section in question is as follows:

(02:48:52 PM) Lamo: How long between the leak and the publication?

(02:49:18 PM) Manning: some time in february

(02:49:25 PM) Manning: it was uploaded

(02:50:04 PM) Lamo: uploaded where? how would i transmit something if i had similarly damning data

(02:51:49 PM) Manning: uhm... preferably openssl the file with aes-256... then use sftp at prearranged drop ip addresses

(02:52:08 PM) Manning: keeping the key separate... and uploading via a different means

(02:52:31 PM) Lamo: so i myself would be SOL w/o a way to prearrange

(02:54:33 PM) Manning: not necessarily... the HTTPS submission should suffice legally... though i'd use tor on top of it...

(02:54:43 PM) Manning: but you're data is going to be watched

(02:54:44 PM) Manning: *your

(02:54:49 PM) Manning: by someone, more than likely

(02:54:53 PM) Lamo: submission where?

(02:55:07 PM) Manning: submission system

(02:55:23 PM) Lamo: in the massive queue?

(02:55:54 PM) Manning: lol, yeah, it IS pretty massive...

(02:55:56 PM) Manning: buried

(02:56:04 PM) Manning: i see what you mean

(02:56:35 PM) Manning: long term sources do get preference... i can see where the "unfairness" factor comes in

(02:56:53 PM) Lamo: how does that preference work?

(02:57:47 PM) Manning: veracity... the material is easy to verify...

(02:58:27 PM) Manning: because they know a little bit more about the source than a purely anonymous one

(02:59:04 PM) Manning: and confirmation publicly from earlier material, would make them more likely to publish... i guess...

(02:59:16 PM) Manning: im not saying they do... but i can see how that might develop

(03:00:18 PM) Manning: if two of the largest public relations "coups" have come from a single source... for instance

(03:02:03 PM) Manning: you yeah... purely *submitting* material is more likely to get overlooked without contacting them by other means and saying hey, check your submissions for x...

I've bolded the two parts I believe are relevant. In the first part, people are citing Manning's answer to Lamo's question as evidence, but this ignores the fact that Lamo's question is hypothetical. The question is presented as hypothetical, so I read the answer as hypothetical, too. Taking the answer out of context makes it sound like Manning is saying he used that system, when in fact he's merely suggesting the the type of system Lamo might use if he was in this situation. That's how I read it, anyway.

The second bit is worth noting because it suggests Manning was submitting files somewhere also used by other submitters‐ hence the queue they might get lost in-- and the reference to after submitting something, someone needs to take further steps to let Wikileaks know about it. To me, that doesn't sound like a preferential setup, or a private or secret FTP server setup for someone specific.

That said, I didn't talk to Manning or Lamo, and I only have these logs to go on. Your interpretation may be different. But I don't see this conversation as evidence of anything special or preferential as Lamo has suggested, which is why I said the logs don't back up Lamo's claims.

The more you shine sunlight on this matter, the more the case that Assange induced Manning to provide WikiLeaks with classified information, or otherwise assisted in the procurement of same, falls apart. So last night's news that investigators have failed to "uncover evidence that WikiLeaks founder Julian Assange induced an Army private to leak government documents to his website," is pretty unsurprising. But this definitively vindicates the arguments that have heretofore been made by Greenwald, Hamsher, and Wheeler.

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