Above Photo: Julian Assange speaking from balcony of Ecuador embassy in London, December 2018. Snapperjack / Wikimedia Commons.
Guests who visited WikiLeaks publisher Julian Assange in the Ecuador embassy have sued the C.I.A., former C.I.A. Director Mike Pompeo and Spanish security firm UC Global for allegedly violating their 4th Amendment rights.
Four U.S. citizens who were surveilled by the C.I.A. during visits to WikiLeaks publisher Julian Assange in the Ecuador embassy in London have sued the C.I.A, former C.I.A. Director Mike Pompeo, the Spanish security firm UC Global and its director David Morales Guillen for allegedly violating their constitutional rights protecting them from illegal searches and seizure.
The lawsuit was filed at 8 a.m. Monday in the Southern District of New York federal court.
Assange spent seven years in the embassy as a political asylee. He is being held on remand in London’s Belmarsh prison after the U.S. indicted him in 2019 under the Espionage Act for alleged possession and dissemination of defense information. Assange is awaiting a decision by the High Court of England and Wales on whether it will hear his appeal of the ruling by the High Court, signed by the home secretary in June, to extradite him to the United States.
The plaintiffs say in the lawsuit that private information from their electronic devices was seized and transmitted to the C.I.A. while they were visiting Assange at the embassy between January 2017 and March 2018. They say the C.I.A. also surveilled them by video and audio while meeting with Assange.
Evidence in a Spanish criminal case against Morales shows that his company, UC Global, contracted with the C.I.A. to provide the agency with the surveillance. Pompeo was C.I.A. director at the time.
Ascribing a possible motive, the lawsuit notes that Pompeo called WikiLeaks a “non-state hostile intelligence agency” and that he plotted to kidnap or assassinate Assange in the embassy.
“It is somewhat startling that in light of the 4th amendment protection we have in the constitution that the federal government would actually go ahead and take this confidential information, some of which is attorney-client privilege, some of which is from journalists, and even some of which were doctors who visited Mr. Assange,” Richard Roth, the lead attorney in the suit, told a press conference announcing the suit on Monday.
The suit says the victims of the surveillance also included:
“(a) Assange’s criminal defense attorneys in the United States who visited the Embassy to advise Assange … (b) international human rights attorneys with active cases defending Guantanamo Bay Detention Center detainees and others with open matters against the United States government; (c) national security journalists whose sources might be in jeopardy if exposed; and (d) physicians, including medical professionals who interviewed Assange on numerous occasions as part of a 5-year study into the effects of involuntary detention on physical and mental health.”
The suit points out that the plaintiffs’ “devices contained, among other things, confidential and privileged information and documents from or about: (a) the Plaintiff journalists’ confidential sources; and (b) the Plaintiff attorneys’ clients. The information contained on the Plaintiffs’ devices was copied and, ultimately, given to the CIA.”
The suit says, “Defendant Pompeo was aware of and approved the copying of information contained on Plaintiffs’ mobile electronic devices and the surreptitious audio monitoring of their meetings with Assange.”
The lawsuit asks for monetary damages from Pompeo; injunctive relief from the C.I.A. and that the defendants not share the plaintiffs’ confidential information with a third party. It also asks for the C.I.A. to return the material to the plaintiffs and to “purge from its files any such information.”
The plaintiffs are attorneys Margaret Ratner Kuntsler and Deborah Hrbek and journalists Charles Glass and John Goetz.
The Suit’s Influence on Assange Case
“Mr. Assange’s rights have now been tainted if not destroyed,” Robert Boyle, a New York constitutional lawyer advising the case, told the press conference. “The recordings of meetings with … his lawyers … taints the criminal prosecution, because now the government knows the contents of those communications and there should be sanctions, even up to dismissal of those charges or withdrawal of the extradition request.”
Kunstler added: “As a criminal attorney, I don’t think there is any thing worse than your opposition listening in on what your plans are. It is treated by the United States courts as a terrible thing. … The result has very often been a dismissal of the indictment.”
The U.S. Department of Justice contends that there is a “Chinese wall” between itself and the C.I.A. and that it has not been privy to surveillance of Assange and his lawyers. Roth skirted a question at the press conference about whether it was known if the C.I.A. shared the seized data with the DOJ.
But Boyle said, “The government would have to prove that the information that it has is not tainted by the illegal searches and seizures, so the onus will be on the government.” He said it’s not enough for “the government to stand up and say we have this wall, nothing will be shared. It’s unclear whether any such wall will protect Mr. Assange’s due process rights.”
British Magistrate Vanessa Baraitser, who presided over Assange’s 2020 extradition hearing, sided with the U.S. in her Jan. 4, 2021 decision, saying:
“The US would be aware that privileged communications and the fruits of any surveillance would not be seen by prosecutors assigned to the case and would be inadmissible at Mr. Assange’s trial as a matter of US law. … US statutory provisions and case law … would enable Mr. Assange to apply to exclude any evidence at his trial which is based on privileged material.”
The plaintiffs in any case hope the publicity surrounding the lawsuit will put pressure on the Justice Department to drop the indictment against Assange.
“I and many of my colleagues, some of whom are plaintiffs, are calling on the DOJ to drop the charges,” Hrbek, a media lawyer and one of the plaintiffs, told the press conference.
The lawsuit is unlikely to influence the High Court or the British home secretary to reverse her order to extradite Assange as they were aware of the C.I.A.’s surveillance of Assange and his guests throughout his extradition process and ignored it.
In her lower court ruling, Baraitser wrote: “A possible alternative explanation for US surveillance (if there was any) is the perception that Mr. Assange remained a risk to their national security.”
Discovery Hurdles
In seeking discovery, the plaintiffs may face the imposition of the states secrets privilege, which would allow the C.I.A., with the judge’s assent, to prevent classified material from being made available.
“We don’t think this will be an easy task,” Roth said. “Discovery will be a difficult process, however we will have a federal court judge who presumably will be non-biased, who will insist that certain documents and certain individuals be produced and be presented. That is a process we are willing to take on.”
The plaintiffs may also face a jurisdictional battle as the suit was filed in the Southern District of New York, rather than in the Eastern District of Virginia, where the C.I.A. resides, and where Assange has been indicted. Judgments from that notorious court, dubbed the “espionage court,” overwhelming side with the national security state.
“We are not trying to avoid any jurisdiction,” Roth said. “The bottom line is that if there is substantial conduct … in transacting business in New York State then there is jurisdiction in New York. The C.I.A. has jurisdiction in every state … and there was plenty of activity in New York State.”