FBI agent explains how Julian Assange may escape prosecution. And Chelsea Manning is key.

An FBI agent has made it clear that, regarding charges against WikiLeaks founder Julian Assange, further testimony from whistleblower Chelsea Manning will be critical to achieving a successful prosecution. Because if Manning keeps refusing to testify to the courts, the US prosecution against Assange would be seriously harmed, if not jeopardised. The agent also questioned the viability of key evidence that could be raised against Assange.

The WikiLeaks Grand Jury probe was empaneled on 23 September 2010. The eight-page unsealed indictment is dated March 2018, and was finally released in April 2019. But a 40-page affadavit, submitted by FBI agent Megan Brown in December 2017 to the WikiLeaks Grand Jury, gives us clues on how the prosecution of Assange might proceed (or fail).

Chat logs

The evidence in such a prosecution will undoubtedly include the chat logs that formed part of the case against Manning.

An extract of the chat logs between US Army intelligence analyst Chelsea Manning (Bradass87) and FBI grass Adrian Lamo was presented at Manning’s court martial. Another selected chat log between Manning and ‘Nathaniel Frank’ (alleged by US authorities to be Assange) was also presented. These are the fuller version of the chat logs between Manning and Frank.

But there appear to be problems with that evidence.

Lack of evidence

On page 21 of the FBI affidavit, reference is made to a question to Frank about LM [LAN Manager] hash cracking (breaking a password in the network Manning had access to). Frank responded by saying “Yes… we have rainbow tables for LM”. Two days later, Manning asked if there were “any more hints about this LM hash?” Frank stated “no luck so far.”

Crucially, the FBI affidavit adds on page 22:

Read on...

Investigators have not recovered a response by Manning to Assange’s question, and there is no other evidence as to what Assange did, if anything, with respect to the password.

In other words, the affidavit indicates that a successful prosecution of Assange on the critical password cracking charge (and no doubt other charges too) will rely on Manning’s full co-operation.

There also appears to be no firm evidence produced by the US authorities as yet that Frank is indeed Assange.

Manning is key

In August 2013, Manning was convicted to 35 years in prison for disclosing battlefield reports and diplomatic cables to WikiLeaks. Her sentence was commuted by former US president Barack Obama in January 2017.

In March this year, Manning was subpoenaed to give testimony at the WikiLeaks Grand Jury. But she made it perfectly clear that she is not prepared to co-operate, and issued a statement explaining why:

tomorrow i’m facing a sealed contempt hearing for refusing to testify at a secret grand jury over my 2010 disclosures

statement: pic.twitter.com/M1uhssUzXh

— Chelsea E. Manning (@xychelsea) March 7, 2019

Consequently, Manning was imprisoned for contempt. In theory, she could stay in prison until the WikiLeaks Grand Jury completes its deliberations – which could be months off.

Extradition could lead to more charges

Then there is the matter that more charges against Assange could follow, once he is in the US.

The late Michael Ratner, Assange’s US lawyer, was certain such a charge was planned all along:

[T]he Grand Jury’s number is 10, standing for the year it began, GJ which is Grand Jury and then 3793. Three is the Conspiracy Statute in the United States. 793 is the Espionage Statute. So what they’re investigating is 3793: conspiracy to commit espionage.

A guilty verdict under the US Espionage Act could see the death penalty applied. However, under UK law an extradition request can be rejected if the destination country provides for such a penalty and offers no assurance it will not be applied. An extradition request can also be rejected if charges raised are seen as ‘political’’.

A December 2010 New York Times article stated that Assange could be prosecuted not just under the Espionage Act. This would be likely if it is shown he provided technical assistance to Manning:

A government official familiar with the investigation said that treating WikiLeaks different from newspapers might be facilitated if investigators found any evidence that Mr. Assange aided the leaker, who is believed to be a low-level Army intelligence analyst — for example, by directing him to look for certain things and providing technological assistance.

And journalist Chris Hedges believes theft of documents may also end up as an additional charge:

If Manning, a former Army private, admits she was instructed by WikiLeaks and Assange in how to obtain and pass on the leaked material, which exposed US war crimes in Afghanistan and Iraq, the publisher could be tried for the theft of classified documents.

Whether a charge of espionage or theft of documents applies, Manning’s co-operation with the courts will be necessary. And that’s still not forthcoming:

** Today, the 4th Circuit Court of Appeals ruled to keep Chelsea in jail. "I don’t have anything to contribute to this, or any other grand jury … I will not give up," she says.

Full statement from Chelsea and her attorneys: https://t.co/dQUgYtvB3B pic.twitter.com/WM0haQ1TVs

— Chelsea E. Manning (@xychelsea) April 22, 2019

Fates

If Manning continues to withhold her co-operation, that means the US prosecution of Assange could be abandoned, so allowing Manning to go free too.

Their respective fates are inextricably linked.

Featured image via Wikimedia – Tim Travers Hawkins / Flickr – David G Silvers