A Hard Transparency Choice: What is WikiLeaks?

I’ve written on Lawfare about the intelligence community’s transparency plan and have previously outlined a framework for how we might think about transparency efforts. In July 2016, in light of emerging information regarding Russian efforts to influence the American presidential election—and confirmation at that time that the FBI was investigating the Democratic National Convention hack—I wrote:

[T]he Intelligence Community will need to wrestle in the coming weeks with how much more information it can – or should – provide to the public on a matter of significant public interest - fair, honest and open elections.

It was not until October 2016—one month before the election—that the Office of the Director of National Intelligence and Department of Homeland Security released a joint statement summarizing the intelligence community’s analysis regarding the ongoing Russian influence efforts. The three-paragraph document stated, in part:

The U.S. Intelligence Community (USIC) is confident that the Russian Government directed the recent compromises of e-mails from US persons and institutions, including from US political organizations. The recent disclosures of alleged hacked e-mails on sites like DCLeaks.com and WikiLeaks and by the Guccifer 2.0 online persona are consistent with the methods and motivations of Russian-directed efforts. These thefts and disclosures are intended to interfere with the US election process. Such activity is not new to Moscow—the Russians have used similar tactics and techniques across Europe and Eurasia, for example, to influence public opinion there. We believe, based on the scope and sensitivity of these efforts, that only Russia's senior-most officials could have authorized these activities.

In early January 2017, the ODNI released a longer and more detailed assessment. The publicly-released document was a declassified version of what presumably was a lengthier and even more detailed classified accounting of Russian hacking activity and related influence efforts. The assessment included the following specific statements regarding WikiLeaks:

We assess with high confidence that the GRU relayed material it acquired from the DNC and senior Democratic officials to WikiLeaks. Moscow most likely chose WikiLeaks because of its self-proclaimed reputation for authenticity. Disclosures through WikiLeaks did not contain any evident forgeries.

• In early September, Putin said publicly it was important the DNC data was exposed to WikiLeaks, calling the search for the source of the leaks a distraction and denying Russian “state-level” involvement.
• The Kremlin’s principal international propaganda outlet RT (formerly Russia Today) has actively collaborated with WikiLeaks. RT’s editor-in-chief visited WikiLeaks founder Julian Assange at the Ecuadorian Embassy in London in August 2013, where they discussed renewing his broadcast contract with RT, according to Russian and Western media. Russian media subsequently announced that RT had become "the only Russian media company" to partner with WikiLeaks and had received access to "new leaks of secret information." RT routinely gives Assange sympathetic coverage and provides him a platform to denounce the United States.

Further, the January 2017 U.S. intelligence assessment drew a line from WikiLeaks’ role in releasing the election-related material to its prior involvement in releasing sensitive or classified U.S. government information:

Russia’s effort to influence the 2016 US presidential election represented a significant escalation in directness, level of activity, and scope of effort compared to previous operations aimed at US elections. We assess the 2016 influence campaign reflected the Kremlin’s recognition of the worldwide effects that mass disclosures of US Government and other private data—such as those conducted by WikiLeaks and others—have achieved in recent years, and their understanding of the value of orchestrating such disclosures to maximize the impact of compromising information.

Since then, intelligence community officials in the Trump administration have reaffirmed the intelligence assessment regarding the Russian influence campaign that had begun during the prior administration. In congressional testimony and related statements, intelligence community leaders have made clear—despite the president’s rhetoric to the contrary—that there is no daylight between the intelligence community’s intelligence assessment in the current administration and that of the prior administration. In the national security community, that continuity is expected; but as part of the greater public dialogue, it is notable and important to highlight.

CIA director Mike Pompeo has made specific public remarks regarding WikiLeaks. Last April, he said it was “time to call out WikiLeaks for what it really is: a non state, hostile intelligence service often abetted by state actors, like Russia.” Pompeo spent a significant portion of remarks at the Center for Strategic and International Studies explaining, in general terms, why Assange and WikiLeaks have caused harm to U.S. national security and should not be viewed as pro-privacy and civil libertarian champions. A draft intelligence authorization bill contained similar language characterizing WikiLeaks, but that language was not included in the final authorizing omnibus bill.

It is now reported that Trump campaign affiliate Roger Stone sent an email to associate Sam Nunberg claiming to have had dinner with Julian Assange in August 2016. The email was sent around the same time that Stone made separate public comments previewing WikiLeaks’ forthcoming release of information that would be damaging to the Clinton campaign. (CNN has a timeline of Stone’s statements.)

Let’s assume that investigators will eventually uncover whether Roger Stone met personally with Assange, if or when they were in communication—and what, if anything, Stone knew in advance about public releases of hacked information. Regardless of how the details of Stone’s personal involvement play out, as well as the important question of whether he served as any type of conduit vis a vis the Trump campaign, a separate question persists: What was, and is, WikiLeaks’ role?

As far as I know, consistent with practice, the U.S. government has not ever confirmed publicly whether it has an open counterintelligence investigation of WikiLeaks, although the Washington Post reported last spring that “the FBI has spent years investigating WikiLeaks…” and continued to do so in the context of the exfiltration of sensitive CIA hacking tools.

As a result, the U.S. intelligence community has made specific statements about WikiLeaks—without really saying what it is, who funds it, who controls it and how it obtains information it releases. This makes it difficult for the public to accurately understand how to interpret WikiLeaks’ activities and releases. The current approach also makes it difficult for consumers of information released by WikiLeaks, including but not limited to professional journalists, to understand whether they are reviewing information that has been released as a public service, or as an orchestrated effort intended to manipulate, which activities may be supported, conducted or encouraged by a foreign intelligence service.

If we assume that WikiLeaks is subject to a longstanding investigation, and that there is a possibility that it or its officials have exposure to criminal charges, it may be that the FBI, Justice Department, special counsel, or all three would strongly oppose any further public disclosure by the intelligence community regarding what WikiLeaks is or how it operates. Yet, if WikiLeaks is, as director Pompeo has said, a “nonstate, hostile intelligence service often abetted by state actors, like Russia,” then there is a competing interest favoring a release of meaningful information that supports the assessment, by the intelligence community through appropriate transparency processes that have been developed in recent years. If such a public disclosure can be made, consistent with the need to protect classified information and accommodating ongoing investigative prerogatives, this seems like the right time to make it.