2013-01-17 Senator Ludlam to Foreign Minister Carr 28 November 2012

Senator the Hon Bob Carr
Minister for Foreign Affairs
PO Box 6100
Senate Parliament House
Canberra ACT 2600

28 November 2012

Dear Minister,

Please find below a series of links to evidence relating to the existence of a criminal grand jury investigation into Wikileaks.

As you know, the 2010 diplomatic cable from Australia's Ambassador in Washington released to Fairfax under FOI states that the investigation into Wikileaks and Assange is "unprecedented in scale and nature" and that media reports that a grand jury has been convened in Alexandria, Virginia were "likely true."

This sensible and credible assumption on the part of Australian diplomats was presumably derived from multiple statements made by US Attorney General Eric Holder referring to "an active, ongoing criminal investigation" and " significant things" that he "personally authorized", and statements such as, "I authorized just last week a number of things to be done so that we can hopefully get to the bottom of this and hold people accountable, as they should be". These statements can be found at the following links:

28 July 2010 http://www.mainjustice.com/2010/07/28/doj-probing-wikileaks-disclosure/
29 November 2010 http://www.guardian.co.uk/world/feedarticle/9383387
6 December 2010 http://www.c-spanvideo.org/program/FraudOp

As you know, the US Department of Justice claims "Full Denial" on FOIA requests for "Any and all records pertaining to WikiLeaks Organization," citing exemption (b)(7)(A) saying, "Records or information compiled for law enforcement purposes, the release of which could reasonably be expected to interfere with law enforcement proceedings" http://www.justice.gov/oip/docs/closed-foia-log-jan2012.pdf

Documents arising from the Twitter case refer to investigations underway. On December 14, 2010 Theresa Buchanan, a U.S. Magistrate Judge for the U.S. District Court for the Eastern District of Virginia, ordered Twitter to turn over to the U.S. Government, the non-content communication information of Julian Assange; WikiLeaks; Bradley Manning; Jacob Appelbaum, who is a developer for the Tor project; Rop Gonggrijp, described in court papers as a Dutch activist and businessman; and Birgitta Jonsdottir, a member of the Icelandic Parliament. http://web.archive.org/web/20110112061516/http://www.salon.com/news/opin...

On January 5, 2011, the Court ordered that the original December 14, 2010 Court Order be unsealed, thereby authorizing Twitter to disclose its existence to its subscribers.
http://web.archive.org/web/20110123041606/http://www.salon.com/news/opin...

On January 4, 2012, District Judge Liam O'Grady denied the petitioners' motion to stay the original December 14, 2010 Court Order and ruled that Twitter hand over the information. The docket and public filings for the Appelbaum (Case No. 1:11-dm-00003-TCB -LO-1), Gonggrijp (Case No. 1:11-dm-00003-TCB -LO-2), Jonsdottir (Case No. 1:11-dm-00003-TCB -LO-3), and Twitter (Case No. 1:11-dm-00003-TCB -LO-4) motion to vacate the December 14, 2010 2703(d) Court Order can be found here. http://ia600403.us.archive.org/11/items/gov.uscourts.vaed.262289/gov.usc...

Within those filings is included another docket of secret 2703d orders still under seal in the WikiLeaks Grand Jury investigation. http://www.alexaobrien.com/secondsight/wikileaks/grand_jury/2703d_orders...

The US Attorney for the Eastern District of Virginia, Neil MacBride, whose office is responsible for the Grand Jury empaneled in Alexandria, Virginia, and two of its US assistant attorney prosecutors, including Andrew Peterson, argue against unsealing certain documents in the case of a Grand Jury and write in footnote number two on page six of the February 4, 2011, "Government's Response in Opposition to the Real Parties in Interest Motion For Immediate Unsealing of Motions and Upcoming Hearing": "The Attorney General publicly confirmed the existence of an investigation into disclosures of classified information made by WikiLeaks on November 29, 2010. See page 6 - footnote 2 at this link https://www.eff.org/sites/default/files/filenode/dorders_twitter/19%20Re...

At an April 6, 2011 hearing of the Senate Judiciary Committee entitled, entitled "The Electronic Communications Privacy Act: Government Perspectives on Protecting Privacy in the Digital Age" with Department of Justice, James A. Baker, Esq. cites Judge Buchanan's WikiLeaks Grand Jury 2703(d) order regarding the probable cause standard for early "criminal" and "national security" investigations:

In considering the standard for issuing 2703(d) orders, it is important to consider the role they play in early stages of criminal and national security investigations. In the Wikileaks investigation, for example, this point was recently emphasized by Magistrate Judge Buchanan in the Eastern District of Virginia. In denying a motion to vacate a 2703(d) order directed to Twitter, Judge Buchanan explained that "at an early stage, the requirement of a higher probable cause standard for non-content information voluntarily released to a third party would needlessly hamper an investigation." In re 2703(d), 2011 WL 900120, at *4 (E.D. Va. March 11, 2011). http://www.fas.org/irp/congress/2011_hr/ecpa.pdf

On 11 May 2011 the Guardian reported on the existence of the Grand Jury after revelations from people subpoenaed to appear before it. http://www.guardian.co.uk/media/2011/may/11/us-opens-wikileaks-grand-jur...

As you know from the Australian Ambassador in Washington DC, there are two publicly reported subpoenas compelling witness testimony - one for David House and the second for an unnamed Cambridge resident.

David House made his subpoena public http://www.alexaobrien.com/secondsight/wikileaks/grand_jury/legal_docket...

The unnamed Cambridge resident did also http://www.alexaobrien.com/secondsight/wikileaks/grand_jury/legal_docket...

According to these documents signed by Neil MacBride US Attorney Eastern District of Virginia, Tracy Doherty-McCormick Assistant US Attorney and Andrew Peterson Assistant US Attorney, the Grand Jury in Alexandria, VA is investigating, "possible violations of federal criminal law involving, but not necessarily limited to conspiracy to communicate or transmit national defense information in violation of 18 U.S.C. 793(g) and conspiracy to violate the laws of the United States, in violation of 18 U.S.C. 371 to wit; knowingly accessing a computer without authorization or exceeding authorized access and having obtained information protected from disclosure for reasons of national defense or foreign relations in violation of 18 U.S.C. 1030(a) and knowingly stealing or converting any record of thing of value of the United States or any department or agency thereof in violation of 18 U.S.C. 641"

On 12 July 2012 the Stratfor emails were released, with one dated 26 January 2011 indicating that a sealed indictment existed: http://wikileaks.org/gifiles/docs/375123_fw-ct-assange-manning-link-not-...

You will note in a number of court records pertaining to the Twitter case references to cases that are assigned a GJ number such as references in this document: https://www.eff.org/sites/default/files/filenode/dorders_twitter/Publicd...

A "GJ" number is assigned by the United States Attorney's Office to identify documents related to a grand jury investigation. "GJ" numbers are created by U.S. Attorney's Office staff, and are used to ensure that subpoenas and other documents related to various investigations are appropriately handled and filed. An investigation assigned a "gj" number may become a criminal case, or it may not.

According to the 4 Corners piece conducted by Mr. Andrew Fowler, the docket number for the Grand Jury criminal investigation of WikiLeaks case is 10GJ3793, with 10 standing for the year it began, GJ which is Grand Jury and then 3793. 3 is the Conspiracy Statute in the United States. 793 is the Espionage Statute.

Multiple references to the Grand Jury investigation have been made in evidence given under oath in the Manning trial, at which Australian diplomats have been present. Your representatives will have noted that Judge Lind, Prosecution Fein and the Defence Counsel Coombs have made multiple references.

On 21 June 2012 one reporter present at the hearing stated, "When the defense provided the Court with a two portions of unclassified grand jury testimony that the Government had provided them, consisting of 30 pages of running black redactions, the lead counsel for the Government, jumped up, interrupted the Judge, instructed the Court that the unclassified black portions were under seal. The following unofficial transcript is just one example

"...its grand jury testimony...information protected. And, we will provide the Court the protective order that Mr. Coombs and the whole defense counsel had signed based on off your previous order on the Grand Jury testimony. The Assistant US Attorneys went to a Federal Judge to have it approved to be turned over for limited purposes. So, that should at least in our Court be filed under seal."

Defence Counsel Coombs requested that certain witnesses recuse themselves due to their involvement in Grand Jury Process. http://www.alexaobrien.com/secondsight/wikileaks/bradley_manning/transcr...

Mark Mander, US Army Computer Crime Investigative Unit special agent, told the pre-trial hearings that the FBI was targeting seven civilians, including "the founders, owners or managers of WikiLeaks," for criminal activity and espionage. He said a US military investigation into WikiLeaks began in early June 2010, a few days after Manning was arrested. Mander revealed that the investigation was receiving legal advice from Neil McBride, who is the US Attorney for the Eastern District of Virginia that has signed the subpoenas to appear at the Grand Jury empanelled in Alexandria.

Minister, I look forward to discussing these issues with you in the near future.

Sincerely

Senator Scott Ludlam