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In a dramatic move, convicted WikiLeaks source Joshua Schulte was sentenced to 33 years and four months in prison for giving to WikiLeaks CIA hacking tools dubbed “Vault 7.” His sentence caught many in the press freedom community off guard. In an original piece for Defending Rights & Dissent, our Policy Director and renowned Espionage Act expert, Chip Gibbons, analyzes this disparate sentence and lays out how using an isolated and unpopular defendant, the government dramatically expanded its arsenal against media sources and journalists. Gibbons pays close attention to what this case may mean for the Julian Assange trial.
On February 2, 2024, a federal judge sentenced Joshua Schulte to 40 years in prison. This sentence includes 33 years and four months for disclosing CIA hacking tools to WikiLeaks and a six year and eight month sentence for child sex abuse materials.
The government had sought a life sentence.
Schulte faced multiple counts under §793 of the Espionage Act, the infamous statute used to go after whistleblowers Daniel Ellsberg, Chelsea Manning, Thomas Drake, Daniel Hale and journalist Julian Assange. He also faced multiple counts under the Computer Fraud and Abuse Act (CFAA), which has been used in other whistleblower and media freedom cases, including against Manning, Drake, and Assange.
As is often the case with media disclosure cases, the government’s case against Schulte was based exclusively on circumstantial evidence, such as downloading a computer program recommended by WikiLeaks. In the initial trial, the jury deadlocked on the Espionage Act and CFAA accounts, but convicted Schulte of lying to the FBI and contempt of court. After a mistrial was declared, the government again tried Schulte. This time Schulte represented himself. He was convicted on all eight counts under the Espionage Act and CFAA. The jury also found Schulte guilty of obstructing justice, but a judge threw out their verdict on this count. In a separate trial, Schulte was convicted on counts pertaining to child sexual abuse materials.
Throughout most of Schulte’s trials, he has been held under Special Administrative Measures (SAMs), a form of extremely restrictive, isolating confinement. Schulte and his lawyers have described his treatment as torture.
Many have argued that Schulte’s case had key differences from those of whistleblowers. However, the statutory framework the government pursued against Schulte was indistinguishable from many whistleblowers’ and even press freedom cases. The use of these statutes and the underlying offense–giving information to WikiLeaks–means the case has potential ramifications for press freedom cases regardless of whether one believes Schulte was a bad actor.
Sentencing Under the Espionage Act
Each count under the Espionage Act carries ten years in prison and each CFAA account carries five years. Nonetheless, defendants seldom face the maximum sentence. And in disclosure cases, judges often order sentences to be served concurrently as opposed to consecutively. Since 2017, not a single person convicted under §793 has been sentenced to the statutory maximum, with sentences ranging from 18 months to 9 years in prison.
Donald Trump made headlines for facing 32 counts under the same section of the Espionage Act as Schulte. In theory, Trump could be facing nearly 300 years in prison. But nearly all media and legal analysis of Trump’s potential sentence treat that as an impossibility, focusing both on the past sentences of those convicted under §793 of the Espionage Act and the complex, convoluted federal sentencing system.
During the extradition proceedings against journalist Julian Assange, who is charged for publishing truthful information about US war crimes, his defense has correctly stressed that Assange faces a potential sentence of 175 years. British prosecutors, acting on behalf of their American counterparts, have waved away these valid concerns. They’ve noted the significantly shorter sentences given to Espionage Act defendants in US courts. While bringing up these other sentences, the US has never promised not to upwardly depart from them when it comes to Assange. And as discussed below, Schulte’s sentencing completely calls into question these already unreliable comments.
The Government’s Shocking Request
Given how the range of sentences possible under §793 are commonly understood, it was shocking that the government sought a life sentence for Schulte. The probation officer suggested Schulte serve 25 years in prison for the leaks and an additional five years for the charges relating to child sex abuse material. While far less than life, it certainly far exceeds the range of 18 months to 9 years. The defense objected to both the government’s and the probation office’s suggested sentences.
In seeking a life sentence, the government cited a number of sentence enhancements. This included an enhancement for “abuse of a position of trust or use of a specialized skill” based on his “use of anonymizing tools like Tor and Tails,” an enhancement for releasing top secret information, and a terrorism enhancement. My friend, Kevin Gosztola, has correctly warned that the specialized skill enhancement allows the government to criminalize privacy tools, whichare routinely used by both journalists and their sources, or anyone justly concerned with personal privacy.
The terrorism enhancement is distressing, because, in the words of the judge, it allows the prosecution to take a “wrecking ball” to federal sentencing guidelines. Under federal sentencing guidelines, a terrorism enhancement is applied if “the offense is a felony that involved, or was intended to promote, a federal crime of terrorism.” Federal crimes of terrorism are defined by 18 U.S.C. § 2332b(g)(5). This statute gives a list of 57 predicating offenses that, if calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct, constitutes a federal crime of terrorism. §1030(a)(1) of the CFAA is one of those 57 offenses.
The fight between the defense and the prosecution (as well as a probation office) about the terrorism enhancement turned on whether, by violating the CFAA, Schulte was seeking to coerce or retaliate against the government. The government argued that since Schulte sought to avenge his workplace disciplinary actions, he was engaged in retaliation. The defense lambasted this as a stretch of the meaning of § 2332b(g)(5). It was a far cry, they argued, from the type of retaliation and coercion of Timothy McVeigh or Osama Bin Laden, which is what lawmakers had in mind when creating the enhancement.
Unsurprisingly, Schulte’s defense pointed out the massive disparity between the sentences sought by both the probation office and the government compared to what past defendants had received. Here the government pulled a troubling sleight of hand. They cited the life sentences of convicted spies Aldrich Ames and Robert Hanssen. While comparing Schulte to Ames and Hanssen, they contrasted him to whistleblowers Reality Winner and Jeffrey Sterling, whom the government describes as acting under “misguided altruism.” Both Winner and Sterling were convicted under §793 and received what were considered exceptionally draconian sentences at the time–five years and three months and three years and six months respectively. The government argued that, unlike Winner and Sterling, but like Ames and Hanssen, Schulte had the specific intent to harm US national security (note: Under Defending Rights & Dissent’s proposed reforms to the Espionage Act, the government would be required to prove beyond a reasonable doubt specific intent to harm the United States).
Ultimately, the government did not secure a life sentence. Nonetheless the sentence passed by the judge was unprecedented and he did agree to apply many of the enhancements, including the terrorism enhancement.
Misguided Altruism Today, “Hates America” Yesterday
Even those who stridently defended whistleblowers like Manning and Snowden, and WikiLeaks publisher Assange, seemed reluctant to embrace Schulte. Many advocates have taken the position that Schulte is not a whistleblower, but likely acted out of revenge. This is in part because Schulte never sought the whistleblower mantle for himself. He focused on painting himself as an innocent scapegoat for lax government security. While professing his innocence, Schulte went so far as to say the actual Vault 7 source should be executed. Schulte’s public image problems were compounded further by his serious conviction for child sexual abuse materials, as well as a sexual assault charge in Virginia.
The Vault 7 revelations as released by WikiLeaks were in the public interest. And the government’s actions against Schulte are extremely disturbing. The conditions he has been confined under clearly have constituted torture and should have threatened both the viability of the case in chief, and certainly been in consideration during sentencing. And even if one believes Schulte acted solely out of vengeance against his employer, there are no meaningful legal guardrails to prevent the extreme arguments the government has now pioneered against whistleblowers or journalists.
Defending Rights & Dissent unequivocally considers Winner and Sterling to be whistleblowers persecuted by the US government. Yet, it must be noted that at the time of their trials the government struck a dramatically different tone about them than in the Schulte sentencing memo. They were not portrayed as having a “misguided sense of the public interest.” The US government successfully had Winner denied bail and accused her of sympathizing with the Taliban. They successfully convinced a judge that Winner “hates the United States and desires to damage national security on the same scale as Julian Assange and Edward Snowden.”
The government similarly cast aspersions about the character of Sterling. Sterling, who maintains he was falsely convicted, had, prior to his trial, sued the CIA for racial discrimination. He also alerted the Senate Intelligence Committee about a CIA program he believed to be dangerous and reckless. The government later contended he also alerted journalist James Risen about the same program and charged him under the Espionage Act for doing so. At sentencing, the government argued Sterling’s actions were uniquely egregious, thus requiring a more severe sentence than other people convicted of similar offenses. They claimed Sterling never had good faith concerns about the CIA program, but after his racial discrimination complaint was blocked, he came “up with the idea that the program was ill-conceived and poorly run, a story he concocted […]so he could have a vehicle through which to inflict as much damage as possible on the agency he believed had treated him unfairly.” The government bombastically claimed Sterling endangered the life of a human asset and, by causing an operational program to be terminated, implied he was responsible for the proliferation of nuclear weapons.
From Daniel Ellsberg to Daniel Hale, the government has always sought to paint whistleblowers in the worst possible light. They literally charged Chelsea Manning with aiding the enemy. In order to believe what the government is claiming about Schulte is true (and it may well be), then one must also believe the government lied to courts about Sterling, Winner, and others. When it comes to worrying about whether the extreme sentence sets a new precedent, the government’s attempts to distinguish Schulte from Sterling, Winner, and others offer a cold comfort. After all, they had previously sought to portray those whistleblowers in many of the same terms as Schulte.
WikiLeaks: From Aiding the Enemy to Becoming the Enemy
The government’s citing of the sentences of Ames and Hanssen are also disturbing on a number of grounds. For starters, neither of those two spies were convicted under the same statute as Schulte. Instead, they were charged under §794 of the Espionage Act, which covers actual espionage. Whereas §793 carries a maximum sentence of ten years per count, §794 carries a maximum penalty of death. In its sentencing memo, the government conceded that legally Schulte could not be charged under §794 as he did not commit the necessary elements of the offense. Whatever one thinks of Schulte, it is a complete abuse of power to cite sentences received under an inapplicable statute that carries a wildly more severe penalty range as a comparator.
Part of the claims for analogizing Schulte to actual spies rest on the fact that Schulte, per the government, had the intent to harm national security and, in “virtually all cases identified” where defendants had intended to harm the US, they were charged under §794. The government claims Schulte’s case is more like giving information to a hostile foreign power than in those cases in which national defense information is “shared with media organizations with a misguided sense of the public interest.”
What then does this say about how the government views WikiLeaks? WikiLeaks is a news site. And it remains one of the most exciting journalistic projects of the 21st century. But following the Vault 7 release, then-CIA Director Mike Pompeo declared WikiLeaks was a “hostile non-state intelligence agency.” Secretly, the CIA used this language to engage in offensive counterintelligence operations against WikiLeaks, activities previously reserved only for state intelligence services. The government has already analogized the groundbreaking media organization to a hostile state intelligence agency. This sentencing memo would appear to be a further solidification of this dangerous approach.
When Manning gave WikiLeaks revelations about US foreign policy, she was charged with (and acquitted of) aiding the enemy. Military prosecutors did not argue that WikiLeaks itself was the enemy, but instead that Manning had indirectly aided al-Qaeda. The military judge rejected this expansive theory. But if the government is now arguing WikiLeaks itself is the enemy, that giving information to WikiLeaks is the same as giving it a foreign intelligence service, it’s unclear how Manning would have fared.
The CFAA and the Terrorism Enhancement
Finally, there is the issue of the terrorism enhancement. The government argued that since Schulte’s aim was to retaliate against the government for transferring him and taking action against his workplace misconduct, the enhancement applied. The defense argued that such an action hardly constituted terrorism as commonly understood. The judge sided with the prosecution.
The terrorism enhancement is applied to the CFAA charges. There is no terrorism enhancement for Espionage Act violations. However, since Espionage Act defendants are sometimes charged with the CFAA, this is alarming. First, the government frequently argues whistleblowers are motivated not by altruism, but spite about their workplace situation (as they did with Sterling). Mark Felt, the FBI agent involved in some of the agency’s worst civil liberties abuses, was motivated to become “Deep Throat” after Richard Nixon passed him over for a promotion. While Felt may be a complex moral figure, few would accept that his role in exposing Watergate constituted terrorism. Felt was neither an Espionage Act nor a CFAA defendant, but his case illustrates how concerning the government’s logic is. Second, most of the defense’s evidence that Schulte did not merit a terrorism enhancement centered on the non-ideological nature of Schulte’s offense. If someone truly is a whistleblower, and is working to end the war in Vietnam or opposing the drone program, this means the government is more likely, not less likely, to succeed on a terrorism enhancement.
We’ve, in fact, already seen the computer-abuse-as-terrorism argument made in the biggest press freedom case of our times. Early in Assange’s case, the US government relied on it to extend the statute of limitations for Assange’s alleged violations of the CFAA.
To understand how this argument factored in at the early stages of the case against Assange, some procedural history is necessary. The US has brought three indictments against the Australian publisher and journalist. An initial indictment on March 6, 2018 (which remained sealed until April 11, 2019), a superseding indictment on May 23, 2019, and a second superseding indictment on June 24, 2020.
The initial indictment of Assange was for a single count of conspiracy to commit computer intrusion. The count cited three provisions of the CFAA statute and 18 U.S.C. 371–the general conspiracy statute. In the government’s version of events laid out in the indictment, Manning asked Assange to help crack a password. The alleged goal here was to allow Manning to access information she already had access to, but with a different account–thus covering up her digital footprints.
Absent from the government’s indictment is the fact that Manning was talking to an online account using the alias. Both during her court martial and in her memoir, Manning made clear she had no idea the identity of who was operating the account–the point of using an alias. The government’s indictment point blank asserts she was talking to Assange. Additionally, actual technology experts have lambasted the government’s case as not technologically feasible.
All non-capital crimes in the US, unless otherwise specified by statute, have a five year statute of limitations. Conspiracy allows this statute of limitations to begin after the last overt act of the conspiracy. Yet, according to the indictment, the conspiracy began on March 2, 2010 and ended March 10, 2010. As mentioned above, a grand jury returned the indictment in 2018.
This is well outside the statute of limitations. So how did the US government get around it? Federal law allows for an extension of the statute of limitations to 8 years if the offense is a federal crime of terrorism as defined by a§ 2332b(g)(5). This is the same definition of federal crimes of terrorism the terrorism enhancement was based on in Schulte’s case.
This put the government within the statute of limitations–by four days.
Is The Government Planning To Take a “Wrecking Ball” To The Sentencing Guidelines If Assange is Convicted?
At this point, the big question is: is the government planning on pursuing a terrorism enhancement against Assange if convicted? Absent an admission from the government, it is impossible to know that. But if the government’s extension of the statute of limitations depends on Assange’s offense being a crime of terrorism, is there any reason to suspect they would not pursue the terrorism enhancement? This alone is alarming.
While it’s important not to speculate too much, the procedural history of the Assange indictments and the fate of Schulte, give us cause for grave concern.
There is more than a hint of desperation to the government’s initial reliance on the CFAA being a possible federal crime of terrorism to stretch the statute of limitations just barely enough to capture Assange. Things take a peculiar turn when we look at the two superseding indictments. As discussed below, subsequent charges make this initial stretching of the statute of limitations no longer necessary to ensnaring Assange in very serious legal trouble. Yet, even as the government adds more troubling charges, it continues to hold on tight to the “conspiracy to violate the CFAA count,” – a count that should be barred under the statute of limitations.
A month after the government unsealed its conspiracy to commit computer intrusion charge, it brought a superseding indictment. This kept the conspiracy to commit computer intrusion count as drafted, but added 17 unprecedented counts against Assange under §793 of the Espionage Act. These include counts for violating the Espionage Act by publishing and by allegedly aiding and abetting Chelsea Manning. It also includes a second conspiracy count, “conspiracy to obtain, receive, and disclose national defense information” in violation of §793(g) of the Espionage Act. This conspiracy allegedly took place from November 2009 to September 2011.
Whereas the CFAA has a five year statute of limitations, the Espionage Act has a ten year statute of limitations. In response to the Alger Hiss case, Congress extended the act’s statute of limitations as part of the Internal Security Act of 1950. Thus, Assange’s publishing of Manning’s revelations were within the statute of limitations. Nonetheless, the DOJ kept the conspiracy to commit computer intrusion charges. Since at this juncture they continued to allege the conspiracy was limited to 8 days in March 2010, presumably they were still claiming the actions remained within the statute of limitations as they were a federal crime of terrorism.
In June 2020, the government brought a second superseding indictment (the third indictment total). Because this came in the middle of the already ongoing extradition proceedings, they could not actually alter counts brought against Assange. But they did expand the narrative of the crime and the dates of the conspiracy. Now, instead of being 8 days in March, the conspiracy to commit computer intrusion extended from 2009 to 2015. The Espionage Act conspiracy dates were also changed to the same time frame– they now appear to be overlapping conspiracies. This would mean that even without the terrorism extension, the conspiracy to commit computer intrusion charges were within a five year statute of limitation. Although, yet again, just barely.
It is unclear if changing the dates was an attempt to double down on making sure there were no statute of limitations challenges to the conspiracy to commit computer intrusion count.
What exactly is in the expanded conspiracy? Much of the media focusing on this expansion centered on parts of the added narrative cannibalized from a hacking investigation staged by the FBI’s New York Field Office. For unclear reasons, this investigation was shut down in 2011 by “ senior officials, who wanted to focus on an espionage case against Assange in Virginia.”
However, none of these events bring us up to 2015 (and thus within a five year statute of limitations). As far as I can tell, the overt acts of the Espionage Act and Computer intrusion conspiracies from 2015 are as follows:
- A tweet for nominations for WikiLeaks most wanted leaks lists
- Giving an interview with Amy Goodman for Democracy Now! about his role in helping Snowden receive asylum.
- Giving a talk about at the Rosa Luxemburg Foundation stating that if anyone had obtained classified information similar to Snowden, WikiLeaks would publish
- Maintaining the “Most Wanted Leaks of 2009” list on WikiLeaks website as late as June 2015 (exactly five years before the second superseding indictment was returned)
All of these actions are clearly examples of First Amendment protected speech, yet in the government’s warped indictment they constitute recruiting and encouraging people “to hack into computers and/or illegally obtain and disclose classified information to WikiLeaks.” Much like the pure publishing Espionage Act charges, this criminalization of such speech runs a tremendous risk to well-established First Amendment principles. And if the goal of adding them is to game the statute of limitations to keep the conspiracy to commit computer intrusion charge in play, it’s a tremendous abuse of power.
Like the initial indictment, the expanded computer intrusion conspiracy also reeks heavily of desperation on the government’s part. If it’s an attempt to avoid a statute of limitations challenge, it’s extremely weak. Yes, the government no longer needs the terrorism extension. But now they are expecting people to buy appearing on Democracy Now! to discuss Edward Snowden constitutes an overt act in a half decade-conspiracy largely centering around publishing Manning’s revelations in 2010.
The question again arises, why is the government working so hard to keep the conspiracy to commit computer intrusion charge in play? Especially when they have also charged Assange with 17 counts under the Espionage Act.
To be clear, there are many reasons why the government could want to keep the conspiracy to violate the CFAA charge in play. If they convince a jury Assange conspired with Manning over the password, they have an easier time proving he aided and abetted Manning. The Espionage Act charges will almost certainly be challenged by the defense on constitutional grounds. And the government could be hedging their bets in the event of a split verdict.
And we should never underestimate the lengths at which the US is willing to go to carry out its obsessive vendetta against Assange. I suspect there are elements of our government that would devote millions of dollars and hundreds of hours to ensnaring Assange for jaywalking if that was the only charge available to them.
Unfortunately, the fact that this is not a normal prosecution, but an obsessive effort to destroy a journalist, only makes it more likely the terrorism enhancement would play a role in sentencing. At the very least, the potential terrorism enhancement certainly provides a great incentive for keeping the conspiracy to commit computer intrusion charges in play. It certainly further calls into question the representations British and US prosecutors have made about the likely sentence Assange would face.
The successful use of the terrorism enhancement against Schulte, and the government’s increasingly dire depiction of WikiLeaks bode very poorly for how a prosecution Assange would go. Even if one accepts the worst case depictions of Schulte, the government’s expansive sentencing powers won in this case cast a shadow over the future of press freedom.