US v. Assange – Alleged Cyber and Information Operations in a declared U.S. war

I would not be surprised if the U.S. government kept the prosecution of WikiLeaks founder Julian Assange to the scope of Chelsea Manning's 2010 unauthorized disclosures.

First, the U.S. Intelligence Community hates espionage trials, because of the potential for disclosure and/or declassification of tons more information (often at a higher level) for the legal proceedings; and as well contending with graymail by defendants.

Secondly, much of the material relevant to the charges against Assange (so far) has already undergone a classification review from Manning's court-martial.

Thirdly, that the material was allegedly stolen from a Department of Defense network in an area of hostility in a declared U.S. war lends itself to a possible criminal theory that WikiLeaks waged a hostile cyber and information operation against U.S. armed forces.

In order to execute information operations, cyber capabilities and tactics may be employed. Cyber warfare and/or operations attack systems; whereas information warfare and operations use information or data as the weapon, according to experts.

The hypothetical narrative could wrap in that the organization has been focused on CENTCOM area of operations since its 2007 publication of the "US Military Equipment in Iraq" list.

 

 

Spying in War

Civilians, including journalists, have been subject to the Uniform Code of Military Justice (UCMJ) during a time of war since the founding of the U.S.

There are two punitive articles of the U.C.M.J. that apply to "any person" during a time of war: i.e. Article 104 (or aiding the enemy) and Article 106 (spying).

During World War II, war correspondents, who were embedded with the armed forces, were subject to the UCMJ.

In the 1950s the Supreme Court of the U.S. upheld that military jurisdiction over civilians in the field during time of war rests on the governments war powers. During the 1960s, SCOTUS narrowed such jurisdiction for civilians during peacetime.

In 2006, however, " Congress resurrected military-criminal jurisdiction for the tens of thousands of U.S. civilians working for, with, or perhaps even in proximity to the armed forces in Iraq, Afghanistan, and other locations designated as contingency operations by the Secretary of Defense [emphasis added]" the latter does not require a formal declaration of war.

Some legal commentators have suggested that the amendment is applicable to embedded journalists. Such an application would undoubtedly be extreme, but plausible, according to one legal scholar, given the legislative history of the U.C.M.J. at the time of its enactment.

However, such an application rests on that civilian, including embedded journalists, agreeing to submit to military jurisdiction in a signed writing. Such an application remains more an uncertainty and dependent on existing case law, as well as Department of Defense policy.

Moreover, it would be more likely embedded journalists would be referred to the DOJ or host nation for prosecution, according to another legal expert I spoke with.

 

 

Modern Conflict: Airpower, Journalism, Cyber & Information

Journalists today have fewer chances to embed-- in part because U.S. warfare has increasingly become dominated by airpower with smaller contingents of ground forces since the First Persian Gulf War.

Wars are increasingly fought by the projection of force and influence at greater and greater distances. Notably, in the face of fewer opportunities to embed-- from the lack of U.S. or friendly forces on the ground, increasing violence by belligerents in war zones, and other socio-economic trends that have impacted news media in recent years-- for example, declining foreign bureaus, staff, and budgets, and the rise of digital technology-- journalists are increasingly reporting on war remotely. (See the 60-page report I recently wrote for Airwars.)

That such capabilities permit the "incursion of less bodily risk" by the U.S. and its allie (and removed the "politically onerous requirement" or obtaining public consent "for deploying overwhelming ground forces") does not remove the harm from a lack of news reporting on such wars or its role in informed consent. (See an article I co-authored on this subject.)

A lack of reporting may be said to harm the ability of self-government by informed consent, *but also* military objectives-- because the deficit of reporting cedes the information space to adversaries of the U.S. and its allies. (See an op-ed I wrote for Defense One.)

 

 

Freedom of information in modern times under threat?

Determining if the status quo quasi-truce between the press and the U.S. government has changed since World War II remains anecdotal to some degree, in part because some of the information to make a complete analysis is unavailable (or secret).

It is often been noted that the administration of former U.S. President Barack Obama oversaw "nine criminal cases involving unauthorized disclosures of government secrets for public consumption"(per, for example, Charlie Savage). "[U]nder all previous presidents combined, there had been only about four such cases, depending on how they are counted," Savage continues. "[I]t was virtually unheard of, until very recently, for the government to treat as a crime the unauthorized public disclosure of military and intelligence information," Savage concludes.

Moreover, according to former Attorney General Jeff Sessions, under the Trump administration's Justice Department is pursuing about three times as many leak investigations as the Obama administration had.

Yet, it is *unclear* whether the proportion of administrative and/or criminal investigations into unauthorized disclosure of classified information for ostensibly public consumption have increased or decreased relative to the volume of classified information created or obtained by the federal government since 1947, when the classification system was established.

 

 

Some of DoD material published by WikiLeaks between 2007 and 2013 and/or allegedly stolen from Department of Defense network in CENTCOM AOR

    --Iraq.xls concerning all US Army managed military equipment in Iraq ("Operation Iraqi Freedom") as recorded by US battle planning systems on November 4, 2007
    --WikiLeaks tweets tweets "Update: Pentagon taken the whole of oneteam.centcom.mil offline in reponse to http://tinyurl.com/c6rgkbs_Master_Narrative_for_Afghanistan and Pentagon takes town entire oneteam.centcom.mil site in respone to http://wikileaks.org/wiki/n1" on February 27, 2009. See also
    --In 2010 and 2011, WikiLeaks published over 250,000 diplomatic cables from the Department of State. 24,234 of those cables concern or are addressed to CENTCOM officials.
    --Detainee Assessment Briefs from JTF-GTMO that originated in a SOUTHCOM on April 25, 2011
    --While not published by WikiLeaks, Manning was found guilty of unauthorized disclosure to WikiLeaks for the following documents related to military activity in the Farah province of Afghanistan in May 2009:

 

    --Farah Brief FINAL v1 22 May 09
    --Farah Brief FINAL v8 24 May 09
    --Strategic Intel brief, 10 May 2009 "Farah INS Probably Deliberately Instigated"
    --FINAL - IO's Report (052000Z JUN 09) (SIGNED) (minimized) (3)
    --TAB a Appendix 1 (CISOTF FRAGO 02 - Operational Guidance) 29 January 2009
    --TAB A Appendix 5 (USCENTCOM Tactical Directive - OEF AFG 12 Sep 2008)
    --TAB A Appendix 10 (USFOR-A FRAGO08-003-CIVCAS PROCEDURES) Sep 08
    --TAB D APPENDIX 6 (8213QRFCONOP) 4 May 2009
    --TAB D Appendix 7 (8141 Initial TIC Slide) 4 May 09
    --TAB A Appendix 2 (FRAGO 429-2008 COMISAF TAC DIR) 8 Dec 08
    --TAB A Appendix 12 (US CENTCOM CONSOLIDATED SERIAL ONE RULES OF ENGAGEMENT FOR OPERATION ENDURING FREEDOM MOD 002) 15 Dec 06
    --Brief to GEN P [Petraeus] Findings and Recs 8 June, No year found
    --QRF SUPPORT FARAH ETT (8141) Powerpoint document May 2009

 

 

 

WikiLeaks and Strategic Surprise

WikiLeaks reportedly did not contact the Department of Defense regarding harm-minimization until after the U.S. government had finished initial review of the material itself-- i.e. after it published the Afghanistan Significant Activities database in July 2010 and for a later publication of the same for Iraq in October 2010. This lends itself to a pattern by the organization of strategic surprise.

On July 28,2010, Robert Gates instructed then director of DIA, Ronald Burgess, to establish an Information Review Task Force (IRTF) to lead a comprehensive Department of Defense review of classified documents thought or known to be in WikiLeaks possession from the 2010 Manning related breach. IRTF completed its comprehensive review of more than 740,000 records known or believed compromised to WikiLeaks.

The task force--led by counterintelligence expert Brig. Gen. Robert Carr (now retired) was made up of 80 to 125 people including intelligence analysts and counterintelligence experts from the DIA; Pacific Command; Central Command (CENTCOM); and the Under Secretary of Defense for Intelligence.

The initial review concludedin the Summer of 2010 "that all the information allegedly leaked was either dated, represented low-level opinions, or was commonly understood and known due to previous public disclosures."

At that time, Gates wrote a letter to the chair of the Senate Armed Services Committee, Sen. Carl Levin, stating that the initial assessment of the IRTF "in no way discount[ed] the risk to national security; however, the review to date ha[d] not revealed any sensitive source and methods comprised by this exposure."

John Kirchofer was the deputy in charge of the DIA IRTF and a former deputy chief of counterintelligence at DIA.

 

 

Cost & Impact to U.S. forces per IRTF

There are multiple damage and impact assessment from the WikiLeaks breaches; but in terms of the initial and comprehensive review on the releases impact to U.S. forces, this is what we know as of August 2013.

Kirchofer testified that over 300 individuals transitioned through the IRTF during its 10 month existence. The cost of the IRTF was approximately $6.2 million."

Carr and Kirchofer also testified as to how PFC Manning's misconduct could have caused damage.

Specifically, they said

 

    that the information could have informed adversary as to how much information that the United States knew or did not know;
    could have endangered individuals identified as sources for the United States;
    could have further traumatized family members of soldiers that were either killed or injured during combat due to being named in the released;
    could have impacted U.S. information sharing down to the lower levels because superiors would no longer trust individuals at lower levels to protect classified information; and
    that the damage could have been much worse if it were not for the IRTF
.

 

Kirchofer did the final executive review of the DIA IRTF final report.

Kirchofer testified: "We did not use the term damage. We were very careful. That's a statutory authority within the ONCIX [Office of the National Counterintelligence Executive]. We were just trying to look at impact on DOD..."

Carr testifiedthat the DIA IRTF final report was completed and the task force shut down by summer of 2011. Kirchofer also testified that by May 2011 was not producing any more reporting.

Carr also testified that the impact of the disclosures continues. The report, since released and heavily redacted, reportedly concluded that the risk at the time of Manning's court-martial was moderate to low presumably after mitigation efforts.

 

 

Names, Duty to Warn, & Military to Military Relationships

Carr testified that the DIA IRTF was tasked with reviewing documents possessed and/or published by WikiLeaks in order to lift that task from CENTCOM's on the ground troops.

Carr testified that the DIA IRTF went to great lengths to work with CENCTOM regarding the Iraq SigActs, which included reporting to the Iraq government. No information was given about the number of names in the Iraq database published by WikiLeaks.

Kirchofer testified that the DIA IRTF worked with CENTCOM and IRTF to look at impact from disclosures regarding IEDs. This analysis was more focused on Iraq SigActs.

Carr also testified regarding the DIA reporting regarding CENTCOM's program known as "duty to inform" regarding names in the SIGACT releases. Carr testified that DIA IRTF worked with (and through) CENTCOM regarding the names found in the CIDNE databases.

Carr testified that the disclosures did not contain direct references to HUMINT (Human Intelligence). He also testified, that the data did show cooperative relationships of people talking to U.S. service personnel.

Carr testified that the CIDNE Afghanistan database contained around 900 names.

Manning was responsible for disclosing 24 percent of the entire CIDNE Iraq and Afghanistan databases to WikiLeaks. Carr also testified that many of those names were of people that are already dead, had died at some point in the battlefield. According to Carr:

 

    --Some were notified
    --Some could not be found
    --Some were in places deemed to be too dangerous to send soldiers
    --Some were part of the insurgency (or playing both sides) and not informed

 

Carr testified to DIA IRTF reporting regarding risks to CENTCOM coalition forces.

Carr testified that IRTF sent letters information NATO partners in Afghanistan of the information in the disclosures.

Kirchofer testified that the week of October 18, 2010, just before the publication of the CIDNE Iraq Significant Activities by WikiLeaks, he had briefed NATO officials (at the annual counter-intelligence counter conference at SHAP, Supreme Headquarters Allied Powers). The individuals who were briefed by Kirchofer (civilian and military) were one star level. Kirchofer said that the reaction from officials was varied.

DIA also reviewed disclosures for Personal Identifying Information (PII) and pushed out that reporting; so that service members were notified.

Kirchofer testified that the DIA IRTF reported to various agencies of the government.

Kirchofer said that the Department of State and other DIA IRTF IC partners saw everything before DIA IRTF published.

Carr, in his capacity as the head of the Defense Counterintelligence and Human Intelligence Center, which is responsible for the defense attache system, also testified that defense attaches in a number of different countries were impacted. Carr cited Pakistan as one example of such impact to defense attaches.

Carr testified that the disclosures impacted information sharing and that DoD lost investment and capacity.

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