U.S. Tries to Build Case Against WikiLeaks Founder

http://www.nytimes.com/2010/12/16/world/16wiki.html

U.S. Tries to Build Case for Conspiracy by WikiLeaks
By CHARLIE SAVAGE

WASHINGTON — Federal prosecutors, seeking to build a case against the
WikiLeaks leader Julian Assange for his role in a huge dissemination
of classified government documents, are looking for evidence of any
collusion in his early contacts with an Army intelligence analyst
suspected of leaking the information.

Justice Department officials are trying to find out whether Mr.
Assange encouraged or even helped the analyst, Pfc. Bradley Manning,
to extract classified military and State Department files from a
government computer system. If he did so, they believe they could
charge him as a conspirator in the leak, not just as a passive
recipient of the documents who then published them.

Among materials prosecutors are studying is an online chat log in
which Private Manning is said to claim that he had been directly
communicating with Mr. Assange using an encrypted Internet
conferencing service as the soldier was downloading government files.
Private Manning is also said to have claimed that Mr. Assange gave him
access to a dedicated server for uploading some of them to WikiLeaks.

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. But the sections in which
Private Manning is said to detail contacts with Mr. Assange are not
among them. 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 while prosecutors have used such laws to go after leakers and
hackers, they have never successfully prosecuted recipients of leaked
information for passing it on to others — an activity that can fall
under the First Amendment’s strong protections of speech and press
freedoms.

Last week, Attorney General Eric H. Holder Jr. said he had just
authorized investigators to take “significant” steps, declining to
specify them. This week, one of Mr. Assange’s lawyers in Britain said
they had “heard from Swedish authorities there has been a secretly
impaneled grand jury” in northern Virginia.

Justice Department officials have declined to discuss any grand jury
activity. But in interviews, people familiar with the case said the
department appeared to be attracted to the possibility of prosecuting
Mr. Assange as a co-conspirator to the leaking because it is under
intense pressure to make an example of him as a deterrent to further
mass leaking of electronic documents over the Internet.

By bringing a case against Mr. Assange as a conspirator to Private
Manning’s leak, the government would not have to confront awkward
questions about why it is not also prosecuting traditional news
organizations or investigative journalists who also disclose
information the government says should be kept secret — including The
New York Times, which also published some documents originally
obtained by WikiLeaks.

“I suspect there is a real desire on the part of the government to
avoid pursuing the publication aspect if it can pursue the leak
aspect,” said Daniel C. Richman, a Columbia law professor and former
federal prosecutor. “It would be so much neater and raise fewer
constitutional issues.”

It has been known that investigators were looking for evidence that
one or more people in Boston served as an intermediary between Private
Manning and WikiLeaks, taking a disc of files he had copied from a
computer while deployed in Iraq and somehow delivering it to the Web
site.

But Mr. Lamo said Private Manning also sometimes uploaded information
directly to Mr. Assange, whom he had initially sought out online. The
soldier sent a “test leak” of a single State Department cable from
Iceland to see if Mr. Assange and WikiLeaks were who they claimed to
be, Mr. Lamo said.

“At some point, he became satisfied that he was actually talking to
Assange and not some unknown third party posing as Assange, and based
on that he began sending in smaller amounts of data from his
computer,” Mr. Lamo said. “Because of the nature of his Internet
connection, he wasn’t able to send large data files easily. He was
using a satellite connection, so he was limited until he did an actual
physical drop-off when he was back in the United States in January of
this year.”

Still, prosecutors would most likely need more than a chat transcript
laying out such claims to implicate Mr. Assange, Professor Richman
said. Even if prosecutors could prove that it was Private Manning
writing the messages to Mr. Lamo, a court might deem the whole
discussion as inadmissible hearsay evidence.

Prosecutors could overcome that hurdle if they obtain other evidence
about any early contacts — especially if they could persuade Private
Manning to testify against Mr. Assange. But two members of a support
network set up to raise money for his legal defense, Jeff Paterson and
David House, said Private Manning had declined to cooperate with
investigators since his arrest in May.

Meanwhile, WikiLeaks is taking steps to distance itself from the
suggestion that it actively encourages people to send in classified
material. It has changed how it describes itself on its submissions
page. “WikiLeaks accepts a range of material, but we do not solicit
it,” its Web site now says.

It also deleted the word “classified” from a description of the kinds
of material it accepts. And it dropped an assertion that “Submitting
confidential material to WikiLeaks is safe, easy and protected by
law,” now saying instead: “Submitting documents to our journalists is
protected by law in better democracies.”

WikiLeaks is also taking steps to position itself more squarely as a
news organization, which would it easier to invoke the First Amendment
as a shield. Where its old submissions page made few references to
journalism, it now uses “journalist” and forms of the word “news” 23
times.

Another new sentence portrays its primary work as filtering and
analyzing documents, not just posting them raw. It says its
“journalists write news stories based on the material, and then
provide a link to the supporting documentation to prove our stories
are true.”

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