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A federal judge ruled that four American attorneys and journalists, who visited WikiLeaks founder Julian Assange while he was in the Ecuador embassy in London, may sue the Central Intelligence Agency (CIA) for their role in the alleged copying of the contents of their electronic devices.
The Americans sufficiently alleged that the CIA and CIA Director Mike Pompeo—through the Spanish security company UC Global and its director David Morales—“violated their reasonable expectation of privacy” under the Fourth Amendment of the United States Constitution.
Richard Roth, attorney for the four Americans, reacted, "We are thrilled that the court rejected the CIA’s efforts to silence the plaintiffs, who merely seek to expose the CIA’s attempt to carry out Pompeo’s vendetta against WikiLeaks."
In August 2022, four Americans sued the CIA and Pompeo: 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.
Glass, Goetz, Hrbek, and Kunstler alleged that they were required to “surrender” their electronic to UC Global employees, who were hired by the Ecuador government to provide security for the embassy.
On June 4, the Spanish newspaper El País reported that Morales had a folder on his laptop marked “CIA.” (Both UC Global and Morales were also sued by Glass, Goetz, Hrbek, and Kunstler.)
The United States government moved to dismiss the claims against the CIA and Pompeo. Judge John Koeltl of the U.S. District Court in the Southern District of New York granted several parts of the government’s motion, but he refused to dismiss a claim related to allegations that the CIA copied their electronics and violated their privacy [PDF].
“In an April 2017 speech,” Koeltl noted, “Pompeo ‘pledged that his office would embark upon a ‘long term’ campaign against WikiLeaks.’ The plaintiffs allege that Pompeo and the CIA recruited Morales to conduct surveillance on Assange and his visitors at a January 2017 private security industry convention at the Las Vegas Sands Hotel in Las Vegas, Nevada.”
“Shortly after returning from the Las Vegas convention, Morales created an operations unit and improved UC Global’s systems to implement the alleged agreement with the CIA. Copying the contents of the plaintiffs’ electronic devices was part of this alleged agreement.”
Koeltl added, “Additionally, the plaintiffs allege that the data collected by UC Global was either personally delivered to Las Vegas; Washington, D.C.; and New York City by Morales (who traveled to these locations more than sixty times in the three years following the Las Vegas convention) or placed on a server that provided external access to the CIA.”
According to Koeltl, “Whether Morales and UC Global were indeed acting as agents of Pompeo and the CIA is a question of fact that cannot be decided on a motion to dismiss.”
“In this case, the misconduct alleged is a violation of the plaintiffs’ reasonable expectation of privacy in the contents of their electronic devices under the Fourth Amendment. The Government concedes that the plaintiffs had a right to privacy in the contents of their electronic devices,” Koeltl stated.
At a November hearing, Koeltl took an interest in the apparent fact that the government had not obtained a warrant to access the contents of the attorneys or journalists’ electronics.
A prior decision in Amnesty v. Clapper, which challenged the “legality of the bulk telephone metadata collection program” operated by the National Security Agency (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.
He also contended that the Americans did not have to demonstrate that the government planned to “imminently use” the information that they collected from their electronic devices.
However, Koeltl dismissed three additional claims against the CIA—one involving surveillance of the American attorneys and journalists’ conversations with Assange, one involving photographs of passports and devices that were allegedly taken, and one claim specifically against Pompeo in his individual capacity as a former official.
Koeltl agreed with the government that the allegedly targeted Americans “knew Assange was surveilled even before the CIA’s alleged involvement.” He considered it relevant that they did not indicate they they would not have met with Assange if they had known their conversations were under surveillance.
Since security personnel could have easily overheard their conversations, there was no “reasonable expectation of privacy.”
He also sided with the government when it came to their argument that the Americans voluntarily handed their devices over to Embassy security so they assumed the risk that their passports and devices might be photographed by the government.
Importantly, what Koeltl ignored is the fact that those who visited Assange could not have known that the security company working at the Ecuador embassy had some kind of off-the-books relationship with the CIA to help the U.S. government target Assange.
Assange was the editor-in-chief of WikiLeaks, a media organization that routinely performed acts of journalism. The publication of classified documents from the U.S. government upset military and security agency officials enough that they retaliated. That retaliation should not be so easily justified as being a part of protecting “national security.”
Finally, in 1971, a U.S. Supreme Court case known as Bivens created a process for bringing cases against federal government officials for violating a person’s constitutional rights. Pompeo was sued under that doctrine.
Courts have been extremely reluctant to allow plaintiffs to pursue damages when a case may set a precedent or lead to a court intruding upon national security and foreign policy matters. This case was no different, as Koeltl refused to allow the Americans to use Bivens to hold Pompeo accountable.
The U.S. government on behalf of the CIA will likely appeal the decision. Nevertheless, it is a remarkable development because there is a distinct possibility that there may be a civil trial, where CIA spying on Americans is challenged. And all while the U.S. government pushes forward with the unprecedented act of putting a publisher on trial for engaging in journalism.