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As the Belmarsh Tribunal gathered in Washington, DC, to make the case for freeing WikiLeaks founder Julian Assange, there was a development in the lawsuit against the Central Intelligence Agency and former CIA director Mike Pompeo for allegedly spying on Americans who visited Assange in the Ecuador embassy in London.
Judge John Koeltl in the Southern District of New York (SDNY) held a proceeding to discuss the CIA’s intent to dismiss the lawsuit. He determined that the complaint was incomplete and suggested the plaintiffs might want to request a preliminary injunction from the court.
A preliminary injunction typically requires the defendants in a lawsuit to cease a specific action while a case is litigated. For example, the plaintiffs in the case—Margaret Ratner Kunstler, Deborah Hrbek, John Goetz, and Charles Glass—could ask the court to enjoin the CIA and Pompeo from using or sharing any of the information they obtained.
While SDNY Assistant United States Attorney Jean-David Barnea, according to Matthew Russell Lee, insisted there should be no “injunctive relief” available, Koeltl apparently saw the matter differently.
Richard Roth, attorney for the plaintiffs, agreed to amend the complaint by January 27 so that the court could properly review whether there are valid Fourth Amendment claims in the lawsuit.
In 1971, a US Supreme Court case known as Bivens created a process for bringing cases against federal government officials who violate a person’s constitutional rights. However, 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.
The lawsuit against the CIA and Pompeo, along with UC Global and UC Global director David Morales, was brought under the Bivens doctrine.
'Brazenly' Ignoring The 'Court's Mandate'
On January 13, 2023, a letter was submitted to the court that laid out the CIA and Pompeo’s basic arguments for seeking dismissal of the lawsuit.
The CIA and Pompeo maintained that the alleged acts detailed in the lawsuit involved “intelligence gathering and implicate national security.” They insisted that the alleged acts also “took place outside the United States.” They also asserted that the complaint failed to establish any violations of privacy under the Fourth Amendment of the US Constitution so they should not have to face accountability.
However, the letter was supposed to be a motion to dismiss. US prosecutors missed a court deadline set for January 13, and Roth accused them of “brazenly” ignoring the “court’s mandate.”
Roth further contended that the letter had contained “erroneous assertions.” He restated for the court that the CIA is not being sued for “monetary damages.” They “seek injunctive relief only against the CIA.”
“Plaintiffs seek to enjoin the government from utilizing or revealing to any third party the content of materials seized from plaintiffs in the course of their visits to Julian Assange while he was a political asylee in the Ecuadorian Embassy in London and requiring the government to purge all such materials from their files.”
Unlike the CIA, Pompeo in his individual capacity can be sued for monetary damages, and he is being sued for such damages.
US prosecutors invoked the Supreme Court decision in Ziglar v. Abbasi, which ruled against a damages remedy for detainees who rounded up by officials and detained without charge or trial by officials in President George W. Bush’s administration after the September 11th attacks.
Roth specifically highlighted the part of the Supreme Court’s decision that stated, “This opinion is not intended to cast doubt on the continued force, or even the necessity of Bivens in the search and seizure context.”
Put another way: the Supreme Court did not issue a ruling that entirely barred future lawsuits against current or former US officials for privacy violations under the Fourth Amendment.
'A Level Of Misconduct' That 'Cannot Be Tolerated'
Kunstler, who has represented WikiLeaks, was one of the delegates who spoke during the Belmarsh Tribunal at the National Press Club.
"This is a lawsuit that we hope will, in fact, be one of the major ingredients about why the United States can’t try Julian [Assange] in this country," Kunstler declared. "They can’t try Julian because they’ve overdone their misconduct. They’ve engaged in [a] level of misconduct in interfering in the defense of Julian Assange that cannot be tolerated."
Kunstler recounted how lawyers, doctors, and other professionals who visited Assange had their private conversations recorded. Their phones and computers were taken by security, and contractors sifted through their contents and copied the contents in several instances.
When Pompeo took over the CIA, as Kunstler said, his very first speech labeled WikiLeaks a "non-state hostile intelligence agency." It signaled that the CIA believed "they could go in. They could kill [Assange]. Anything that they wanted to do was fair game."
"Pompeo's effect was so outrageous that he deserves to really suffer under this lawsuit, and I don’t know that he’s going to suffer enough," Kunstler added. "He was served in a very embarrassing way, and he was very unhappy about how he was served. He was served publicly, and we got footage of him being served and we were very thrilled about that."
"To have someone suffer, and to treat someone so vilely, for telling the truth is really astounding," Kunstler concluded.
*NOTE: The Dissenter will have an update on the amended complaint on January 27 after it is filed.