FBI Seized Legally Privileged Materials From Julian Assange
Above photo: Photo by groovysoup on Flickr.
After arrest in Ecuador Embassy.
“One record of [Assange’s] entire archive” was effectively purloined, and without it, attorney Gareth Peirce mentioned it has made putting together a defense in his extradition case more difficult.
The FBI in the United Kingdom enlisted the Ecuador government’s help in seizing legally privileged materials from WikiLeaks founder Julian Assange after he was arrested and expelled from their embassy in London on April 11, 2019.
According to Gareth Peirce, one of Assange’s attorneys, that day she “made immediate contact with the embassy in regard to legally privileged material, an issue of huge concern.” Assange wanted the material—in addition to “confidential medical data”—”identified and released to his lawyers.”
“Repeated requests by telephone, email and recorded delivery mail were entirely ignored by the embassy,” and in testimony submitted during the final day of evidence in Assange’s extradition trial, the embassy has never responded.
“One record of [Assange’s] entire archive” was effectively purloined, and without it, Peirce mentioned it has made putting together a defense in his extradition case more difficult because the initial allegations relate to communications, meetings, and events from 2010 and 2011.
Proceedings in the evidentiary portion of Assange’s extradition trial concluded on October 1, and Judge Vanessa Baraitser announced she would rule on the request from the United States government on January 4, 2021.
Before the last day wrapped, multiple statements from Peirce related to abuses of process in the case were entered into the record. They included details related to the espionage operation the Spanish security company UC Global carried out against Assange with the support of U.S. intelligence.
Peirce’s law firm Birnberg, Pierce & Partners asked the Australian Consulate in London for intervention because Assange is an Australian citizen. The Metropolitan Police in the United Kingdom claimed they played no role in the seizure or retention of any legally privileged materials.
On May 20, 2019, the Australian Consulate received a request for Assange’s property to be “transferred to Ecuador.” The firm was invited to collect any “remaining possessions” that were not seized.
When Assange’s property was collected shortly after, Peirce stated, “All legally privileged material was missing save for two volumes of Supreme Court documents and a number of pages of loose correspondence.”
Gordon Kromberg, assistant United States attorney for the Eastern District of Virginia, where Assange was indicted, stated that a “taint team” would excise material so it was not used in any trial in the United States.
“However,” Peirce stated, “no suggestions have been made for the return of that material by the DOJ in these proceedings, even though attention has been drawn to the existence of recordings of meetings that could play an evidential part in the extradition hearing. Nor has any reassurance been given that the ongoing representation of Mr. Assange has not been, is not being, and will not be the subject of unlawful intrusion by U.S. agencies.”
‘Exceptionally High Level Of Anxiety And Fear’ Has Prevailed
Peirce was spied upon when she attended legal meetings that occurred on December 6 and 19 in 2017 and January 14, 2018.
“I was wholly unaware of that surveillance, although I was aware that Mr. Assange maintained suspicions throughout that period, fearing intrusion,” Peirce declared. “I do not comment here upon my own reactions to the discovery, but comment only generally that there has prevailed as a consequence an exceptionally high level of anxiety and fear that legal interviews with Mr. Assange are continuing to be monitored.”
“This fear, triggered by the clear evidence that had been taking place over a number of years has had a chilling effect upon preparation for these extradition proceedings.”
Assange was charged by the U.S. Justice Department with 17 counts of violating the Espionage Act and one count of conspiracy to commit a computer intrusion that, as alleged in the indictment, is written like an Espionage Act offense.
The charges criminalize the act of merely receiving classified information, as well as the publication of state secrets from the U.S. government. It targets common practices in newsgathering, which is why the case is widely opposed by press freedom organizations throughout the world.
In July 2012, weeks after entering the Ecuador embassy to request asylum, Spanish lawyer Baltasar Garzón was appointed by Assange to “coordinate legal advice.” His legal team included “lawyers in Ecuador, Spain, the United Kingdom, Sweden, the USA, Australia and a number of other European countries,” Peirce recalled
“Assange met on numerous occasions during the years that followed whilst he remained in the embassy until his arrest on April 11, 2019, with lawyers and other visitors including his doctors, his health requiring treatment throughout the period in which he was in the embassy.”
UC Global handled security for the embassy from 2015 to mid-2018, and an email from September 29, 2017, shows UC Global director David Morales instructed employees to create and update profiles on at least three of Assange’s lawyers—their relationship with the “guest” (Assange), telephone numbers, emails, number of visits, and any personal data.
“All of them appear in the lists and entry records, you have to do your best to know their data,” Morales wrote.
As Peirce described, Morales “requested extreme caution” with the transmitted information because Senain, which is Ecuadorian intelligence, was “investigating” the company. He asked his employees to map out the internal structure of the embassy and collect photos of embassy employees. He wanted profiles that included their “functions or activities in the headquarters” as well.
Witness #1, a former UC Global employee, told the court in submitted testimony that Morales “showed at times a real obsession in relation to monitoring and recording the lawyers who met with the ‘guest’ (Julian Assange) because ‘our American friends’ were requesting it.”
“UC Global established a security protocol that obliged all visitors including lawyers to leave personal ID documents as well as telephones and electronic devices with belongings at the entry desk,” Peirce described. “Thus, operators could ensure that they could scan and photocopy the individual’s personal documentation, search their belongings, photograph the contents, and potentially intrude and obtain the potential for future intrusion into the electronic devices.”
“Subsequently, detailed reports were made of those who visited Mr Assange, sent to the company’s headquarters in the form of reports. A web portal was established that could be accessed remotely from May 2017.”
Morales insisted upon “exhaustive detailed profiles” of all visitors as well as embassy staff that could be accessed remotely from the United States,” Peirce noted.
“Details of telephones were photographed, as well as photographs of messages within telephones whilst their owners were attending meetings.”
“On two occasions,” Peirce highlighted, “visiting doctors observed that after they had left the Embassy briefly and then returned notes had been taken into the office of the security workers. The personal details of Mr. Assange’s visiting [doctor] were specifically requested and collected including the details from his telephone.”
“Separately surveillance was conducted on senior Ecuadorian diplomats when they visited the embassy as well as the head of Ecuadorian intelligence.”
Ecuador Instructed To ‘Hand Over Property To U.S.A.’
Evidence that Garzón was followed, photographed, and had his office burglarized weeks after Morales discussed breaking into his office “continues to affect the confidence of Mr. Assange’s lawyers as a whole as to the confidentiality of their work on his case,” according to Peirce.
On April 8, 2019, the U.S. Justice Department was prepared for Assange’s arrest and instructed Ecuador to seize property and hand over “evidence” to a “representative of the UK FBI,” who would “hand over the property to the U.S.A.”
A document from April 9, 2019, was marked, “Highly confidential from the Deputy Director’s Office of International Affairs,” and contained instructions to give the U.S. government Assange’s property.
Prom Security had taken over security in 2018 and 2019, and their guards “went in and out of relevant rooms” in the embassy, along with Pablo Roldan, who according to Peirce is related to an Ecuador ambassador and a close associate of Ecuador President Lenin Moreno.
Roldan apparently inventoried property in the rooms, but when Assange’s lawyers in Ecuador reviewed files related to Assange’s property, they found no inventory from Roldan in the system.
“Although rooms were purported to be sealed, Embassy staff who were not permitted to return for approximately one week saw the original seals had been replaced, the re-seals marked ‘for judicial purpose,’” Peirce recalled.
“Highly unusually two diplomatic pouches were taken in person to Quito from the embassy containing USB sticks, one by Jose Luis, an employee of the Ecuadorian intelligence and the second by Pablo Roldan shortly after Mr. Assange’s arrest.”
Carlos Poveda, one of Assange’s lawyers in Ecuador, requested that the Ecuador prosecutor make a copy of records on Assange’s property for the extradition proceedings on December 16, 2019. “The Ecuadorian prosecutor refused that request,” Peirce noted.
One inventory in the “remaining records in the Ecuadorean files” referred to a “plastic bag with legal documents” from 2010 to 2018.
On May 20, 2019, an Ecuadorean judicial authority signed a document that confirmed property was taken from Assange in London. By June 12, the seized material was provided to Ecuador’s criminal division.
Documents that Assange’s lawyer in Ecuador inspected contained photographs that showed the seals on the doors to the front room of the embassy and a room that held computers were broken. And as noted by Peirce, photographs, folders, portfolios, and notebooks, some clearly marked “WGAD” (UN Working Group on Arbitrary Detention), “Pompeo,” and “Legal Planning,” were taken. (Mike Pompeo, who is currently the Secretary of State, called WikiLeaks a “hostile non-state intelligence agency” when he was CIA director.)
Guy Goodwin-Gill, an international law professor, attended a meeting at the Ecuador embassy on “international legal aspects of asylum” on June 16, 2016. The foreign minister of Ecuador, senior Ecuadorian officials, and members of Assange’s legal team attended.
“Before entering the ground floor meeting room, I left my passport, phone, and tablet ‘at the door,’ together with unlocked luggage (I was en route to give lectures in Italy),” Goodwin-Gill recalled. “I naturally assumed that, given the precautions taken before entry, such a legal conference would be secure and confidential.”
”I was therefore somewhat shocked, to say the least, to learn in late 2019 that my name featured in papers lodged in connection with legal proceedings in Spain concerning the disclosure of confidential information, that the occasion of my visit and participation had been shared with various parties, and that my ‘electronic equipment’ may have been copied and the contents also shared,” Goodwin-Gill added.
Witness #2 recalled one of the members of UC Global showed him Goodwin-Gill’s iPad. It had “many messages and emails in the home screen.” He was told the “contents of the iPad had been copied.”
Goodwin-Gill placed the spying backed by U.S. intelligence into the context of international law, referring to Australia’s actions against Timor-Leste in the early 2000s. He suggested the “unlawful interference” into the “sovereign affairs” of Ecuador for the purpose of advancing a prosecution against an individual, who the embassy was trying to protect, was similar.
”The violation of one state’s sovereignty would then be joined by the likely violation of the individual’s fundamental rights to due process and equality of arms, if confidential, privileged information were to be used in trial,” Goodwin-Gill concluded.
He told the court that surveillance and the sharing of “confidential privileged information” needs to be considered an indication of political motivation, intent, and purpose of the extradition request.
Assange Obstructed From Working On His Defense
Peirce outlined for the court how the passage of time has impacted the ability of Assange’s attorneys to reconstruct the “actions and communications of WikiLeaks and of Mr. Assange himself.” They have struggled to locate evidence related to when WikiLeaks received data that Pfc. Chelsea Manning said she disclosed to the media organization.
If the U.S. government had charged Assange in 2011, all of these records, as well as the records of associates would likely be available. They could compile records from computers, telephones, and documents from media partners and members of WikiLeaks that would reflect how encrypted data was controlled and accessed.
Three individuals Assange relied on for advice, especially on legal matters, died in the past few years: John Jones, who was a barrister (April 2016), Gavin MacFadyen, who was a mentor for WikiLeaks (October 2016), and Michael Ratner, the Center for Constitutional Rights president who was one of the most engage lawyers in Assange’s case (May 2016).
“Assange is unable to reconstruct his consultations and discussions with them and access any records they might have retained,” Peirce told the court.
Because archive material Assange kept in the Ecuador embassy was seized, his legal team could not access it when putting together his defense for the September extradition trial.
Up until February 12, 2020, Assange was apparently denied “the most basic of access to the bare minimum needs for proper representation,” including the ability to share documents with Assange, the ability to have “adequate legal visits,” and the ability to access a computer to view data for the case.
Only at the end of January this year did Assange’s legal team receive a “letter of apology” from the Government Legal Department that claimed they misunderstood Assange’s needs. It authorized Belmarsh prison to provide a hard drive to his lawyers so they could load data for him to view on a laptop provided by the prison.
For the first time, Assange was permitted to review material his legal team had urged the prison and Government Lawyers Department to let him access for half of a year.
Yet, in March, the global COVID-19 pandemic hit. It delayed Assange’s extradition trial from May to September and made it impossible for Assange to meet with his attorneys.
It was not until the first day of the extradition trial on September 7 that Assange met in person with Edward Fitzgerald, who was one of the key defense attorneys involved in questioning witnesses and making arguments in front of the judge.
In fact, Assange’s legal team arranged for Assange to be made available a half hour before each day of proceedings so that they could sidestep barriers that have interfered with their ability to consult with Assange while he is in Belmarsh prison.