Prosecutors are looking for anything that would suggest Assange encouraged or helped Manning leak classified information by giving him instructions on how to download files or even requesting Manning obtain certain kinds of documents to send to WikiLeaks.

As Threat Level reported earlier this week, a conspiracy charge for helping steal classified documents would help prosecutors avoid First Amendment issues that would arise if they tried to prosecute Assange under the Espionage Act.

The Times doesn’t cite any sources but says to make a conspiracy case prosecutors have been sifting through online chat logs of Manning’s discussions with former hacker Adrian Lamo, in which he confessed to leaking classified material to WikiLeaks and of having a unique relationship with Assange that went beyond what other sources might have with the enigmatic leader of the secret-spilling site.

Their investigation has also included border searches of laptops and cell phones of people connected tangentially to Manning or WikiLeaks.

Manning is charged under the Espionage Act as well as the Computer Fraud and Abuse Act (CFAA), the federal anti-hacking statute that prohibits unauthorized computer access or access that exceeds authorization.

If prosecutors were to charge Assange for publishing classified documents under the Espionage Act, it would be a political landmine since it would open traditional media outlets, such as the New York Times, to similar prosecutions for publishing classified information, a quagmire the Justice Department likely wants to avoid.

But charging Assange with conspiracy under the CFAA instead would help them avoid the constitutional issues. While journalists have generally been protected from prosecution for publishing classified documents, encouraging a source to obtain documents in a manner known to be illegal is not protected.

According to the Times, prosecutors have been scouring one of Manning’s chats with Lamo in which he described being in direct communication with Assange using an encrypted service and having a special relationship with him. Manning told Lamo in the chats that Assange at one point offered him a position at WikiLeaks. Manning said he wasn’t “interested right now” in a position with WikiLeaks because he had “too much excess baggage” that he was trying to work through.

Prosecutors are also looking at claims Manning made that Assange provided him with a special FTP address to upload classified documents so that his submissions would go to the top of the queue for review by WikiLeaks.

The Times points out that Threat Level has published excerpts from the logs of Manning’s chats with Lamo, but wrongly states that the parts in which Manning discusses his contact with Assange and the FTP server were not among those excerpts. In the excerpt below, published last June, Manning discusses the FTP server:

(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: wl.org 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…

Manning also discussed his role as a source for WikiLeaks and indicated that he had developed a relationship with Assange:

(2:04:29 PM) Manning: im a source, not quite a volunteer
(2:05:38 PM) Manning: i mean, im a high profile source… and i’ve developed a relationship with assange… but i dont know much more than what he tells me, which is very little
(2:05:58 PM) Manning: it took me four months to confirm that the person i was communicating was in fact assange

See also:

• Friend of Accused WikiLeaks Source Detained at Border
• Another Hacker’s Laptop, Cellphones Searched at Border
• Why WikiLeaks Is Good for America
• Unpublished Iraq War Logs Trigger Internal WikiLeaks Revolt
• Suspected Wikileaks Source Described Crisis of Conscience Leading to Leaks
• ‘I Can’t Believe What I’m Confessing to You’: The WikiLeaks Chats
• U.S. Intelligence Analyst Arrested in Wikileaks Video Probe

Authors: Kim Zetter

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