CIA Director Claims Lawsuit Against Alleged CIA-Backed Spying On Assange Visitors Could Damage US Security

CIA Director William Burns claimed that a lawsuit involving alleged spying on Americans, who visited WikiLeaks founder Julian Assange, must be dismissed or there could be “serious” and “exceptionally grave” damage to the “national security of the United States.”

In a declaration [PDF] that invokes the “state secrets privilege,” Burns also maintained that the CIA could not provide any explanation in open court for why the agency believes damage could occur if the lawsuit proceeds. 

“[T]he complete factual bases for my privilege assertions cannot be set forth on the public record without confirming or denying whether CIA has information related to this matter and therefore risking the very harm to the U.S. national security that I seek to protect,” Burns added. 

Four Americans, two attorneys and two journalists, allege that the CIA and CIA Director Mike Pompeo directed UC Global, a Spanish security company, to carry out a spying operation against Assange that violated their privacy. UC Global allegedly copied the contents of their electronic devices and provided the data to the CIA.

In December, U.S. Judge John Koeltl dismissed multiple claims that were filed against the CIA. But Koeltl also determined that the Americans had grounds to sue the CIA for violating their “reasonable expectation of privacy” under the Fourth Amendment of the United States Constitution.

A prior decision in Amnesty v. Clapper, which challenged the “legality of the bulk telephone metadata collection program” operated by the NSA, helped Koeltl determine that the allegedly targeted Americans had standing to sue the CIA.

“If the government’s search (of their conversations and electronic devices) and seizure (of the contents of their electronic devices) were unlawful, the plaintiffs have suffered a concrete and particularized injury fairly traceable to the challenged program and redressable by a favorable ruling,” Koeltl declared.

Not long after the judge determined that the Americans had standing to sue the CIA, U.S. Attorney Damian Williams and Assistant U.S. Attorney Jean-David Barnea notified the court that the CIA would assert the state secrets privilege to block the lawsuit. 

Richard Roth, an attorney for the allegedly targeted Americans, said, "[W]e find it extremely disheartening that the CIA refuses to even file an answer to the complaint. Instead, it chooses to hide behind the State Secrets Privilege when it is indisputable that our clients have nothing to do with any investigation by the CIA or any governmental agency."

The Americans, who sued the CIA, are: Margaret Ratner Kunstler, a civil rights activist and human rights attorney; Deborah Hrbek, a media lawyer who represented Assange or WikiLeaks; journalist John Goetz, who worked for Der Spiegel when the German media organization first partnered with WikiLeaks; and journalist Charles Glass, who wrote articles on Assange for The Intercept.

"The CIA’s position raises one logical question: if there were truly no facts to support the allegations in the complaint, then why can’t the CIA simply deny each of them?" Roth added.

Burns submitted a “classified declaration” that only the judge may read. As Burns stated, that declaration “fully defines the scope of information” at issue and “explains the harm that reasonably could be expected to result from the unauthorized disclosure of classified information.”

Roth called it "patently unfair and unjust" and "impossible" for the plaintiffs to "oppose a 'secret' motion submitted by the CIA exclusively to the court that neither plaintiffs nor their counsel are even allowed to read."

Despite rigorous processes that would undoubtedly take into account national security interests, Burns essentially equated the sharing of documents through discovery to a national security leak. (Note: The Classified Information Procedures Act is a law that applies to criminal prosecutions. However, that does not mean courts cannot adopt their own procedures in a civil lawsuit.)

The state secrets privilege is rooted in a 1953 case known as United States v. Reynolds, where the U.S. government refused to tell victims’ families how their loved ones had died in a military plane crash because they contended “secrets” would be revealed. 

Decades later, declassified Air Force documents led victims’ families to sue the U.S. government. “The government concealed its fraud for decades, holding the accident reports and witness statements as ‘classified materials’ until the 1990s, even though they contained no secrets and had no conceivable further utility,” the families alleged. “Indeed, that was the Air Force’s purpose in classifying them—to bury them so deep and so long that no one would find them.”

The U.S. Supreme Court ruled in 2005 that the government had not committed fraud, even as the court recognized the lack of “sensitive information in the accident investigation report and witness statements.” 

Particularly, under the “global war on terrorism,” the U.S. Justice Department allowed agencies, like the CIA, to invoke the privilege so that cases involving human rights abuses and civil liberties violations may be dismissed. 

“From our vantage point, we cannot imagine how there is any privilege at all that relates to proprietary information of American citizens who visited the Ecuadorian embassy,” Richard Roth, an attorney for the Americans, told The Dissenter in February. 

Additionally, Burns contended that the CIA Act exempts the CIA from publishing or disclosing the “organization, functions, names, official titles, salaries, or numbers of personnel employed by the CIA.”

The CIA Act, a law passed in 1949, has been wielded by the agency to prevent the disclosure of records under the Freedom of Information Act (FOIA). It would appear Burns asserted this “statutory privilege” if Koeltl does not conclude that information related to the copying of Americans’ electronics involves “state secrets.” 

Under the CIA Act, information is only supposed to be kept secret if it would reveal that the CIA engages in a function involving “personnel employed by the Agency" that has not been publicly confirmed by the government.

Does the CIA routinely copy the contents of Americans’ electronics when they visit foreign embassies? If no, then it is hard to understand how what is alleged in this lawsuit would not be an abuse of power in the context of a typical espionage operation against an individual—Assange—who was designated a target.

Should the state secrets privilege and the CIA Act fail to end the lawsuit, Burns invoked the National Security Act as well. That law can prevent the disclosure of records containing “intelligence sources and methods.”

The CIA has repeatedly used the state secrets privilege and laws like the CIA Act or National Security Act to evade accountability for wrongdoing. Burns would like the public to believe that there is "vital classified intelligence information" at risk, but the sheer amount of lies that the CIA spread in order to hide details related to the torture program suggests that this case is yet another shameless effort to thwart justice.