In Lawsuit Against Spying On Assange Visitors, CIA Will Invoke 'State Secrets Privilege'

The CIA has perfected the art of thwarting this type of lawsuit by invoking the protection of "state secrets."

In Lawsuit Against Spying On Assange Visitors, CIA Will Invoke 'State Secrets Privilege'
Screen shot from the Central Intelligence Agency's government website and in the public domain.

Editor's Note: Publication of the next entry in the 10-part "Countdown To Day X" series was delayed to cover this news.

The CIA plans to invoke the “state secrets privilege” to block a lawsuit against the agency for allegedly spying on Americans, who visited WikiLeaks founder Julian Assange while he was living under political asylum in Ecuador’s London embassy.

In December, United States Judge John Koeltl dismissed multiple claims brought by four American attorneys and journalists 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.

The Americans alleged that the CIA and CIA Director Mike Pompeo directed UC Global, a Spanish security company, to carry out a spying operation against Assange. The security company copied the contents of their electronic devices and provided the data to the CIA.

On February 8, U.S. Attorney Damian Williams and Assistant U.S. Attorney Jean-David Barnea notified the court [PDF] that the CIA would assert the state secrets privilege.

“After the court’s recent decision on the government’s motion to dismiss, the sole remaining claim in this case is the plaintiff’s allegation that, at the CIA’s request, the Spanish defendants illegally downloaded the contents of the plaintiffs’ electronic devices when they visited Julian Assange at the Ecuadorian embassy in London and transmitted these materials to the CIA.”

The government continued, “Any factual inquiry into these allegations—whether they are true or not—would implicate classified information, as it would require the CIA to reveal what intelligence-gathering activities it did or did not engage in, among other things.”

“Because the CIA cannot publicly reveal the very facts over which it is seeking authorization to assert the state secrets privilege,” the government indicated that it would not respond to the Americans’ discovery requests or any allegations in the complaint. 

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.

Richard Roth, an attorney for the Americans, told The Dissenter, “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.” 

Nonetheless, Koeltl granted the government’s request for a two-month delay so that the CIA may obtain authorization from Attorney General Merrick Garland to claim “state secrets” would be compromised if the lawsuit is not dismissed.

A Privilege Born Out Of Deceit

The state secrets privilege has its roots 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.”

Even though the U.S. government acknowledged the “apparent dearth of sensitive information in the accident investigation report and witness statements,” the U.S. Supreme Court ruled in 2005 that there had been no fraud. 

The deceit of government officials in the Justice Department (DOJ)—and their defense of government actions a half century ago—established a mechanism for military and intelligence agencies to conceal civil liberties and human rights violations as well as flagrant abuses of power. 

President George W. Bush’s administration invoked the privilege more than any other previous president. The privilege was wielded by the CIA to cover up torture and abuse at “black site” prisons, where alleged terrorism suspects were held captive. It also was invoked to prevent AT&T customers from learning details about a warrantless wiretapping program at the National Security Agency (NSA). 

A 2009 report from the Brennan Center for Justice shows that President Barack Obama’s administration continued this secrecy abuse and “defended invoking the state secrets privilege to prohibit judicial consideration of entire subject matters.” Officials used the privilege to “deny attorneys with top-level security clearances access to documents they [had] already seen.” They even “suggested that judges’ rulings on the privilege [could] be evaded by taking the documents away from them.”

Under President Donald Trump, the abuse of the privilege was on full display as the DOJ asserted that deputy CIA director Gina Haspel (who later became the CIA director) could not testify about her role in torture at CIA black site prisons without compromising state secrets.

There have been at least two glaring abuses by President Joe Biden’s administration. In 2022, the DOJ invoked state secrets to prevent Abu Zubaydah, a Guantanamo detainee, from officially confirming whether the CIA tortured him at a black site in Poland. That same year the Supreme Court ruled in favor of the state secrets privilege in a case brought against the FBI for allegedly spying on Muslim Americans.

A Tool For Escaping Accountability and Justice

Numerous cases from the past decades illustrate how the state secrets privilege has morphed into a tool that the U.S. government may use to escape accountability and justice: 

  • A racial discrimination lawsuit against a CIA agent who initiated proceedings challenging his treatment in the workplace (Sterling v. Tenet)
  • A sex discrimination lawsuit against the CIA (Tilden v. Tenet)
  • A workplace retaliation lawsuit against the FBI for whistleblower conduct after a translator uncovered infiltration by foreign agents (Edmonds v. Department of Justice)
  • A lawsuit against warrantless eavesdropping by the CIA, State Department, and another government agency against a Drug Enforcement Agency (DEA) agent stationed in Burma (Horn v. Albright)
  • A lawsuit against the rendition of an individual from the U.S. to Syria (Arar v. Ashcroft)
  • A lawsuit against the abduction, beating, drugging, and transportation of a German citizen to a secret CIA prison in Afghanistan (El-Masri v. Tenet)
  • A lawsuit against the placement of a US citizen on a kill list (Al-Aulaqi v. Obama
  • A lawsuit against the murder of an American community worker by U.S.-backed Contras in Nicaragua (Linder v. Calero)

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 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.

But by invoking the state secrets privilege, the CIA not only expects to stop the Americans from seeking redress in court. The agency also intends to ensure that a court never forces the CIA to reveal any information that would further expose the U.S. government's war on WikiLeaks and potentially undermine the prosecution against Assange.

Further reading: "Guilty of Journalism: The Political Case Against Julian Assange"