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Human Rights and Global Wrongs
Attorneys and journalists whom the CIA spied on when they visited WikiLeaks publisher Julian Assange in the Ecuadorian Embassy in London have filed a lawsuit against the CIA, its former director Mike Pompeo, UC Global and its director, David Morales, in U.S. District Court.
Assange is in a London prison fighting extradition to the United States. He is charged with violating the Espionage Act for exposing U.S. war crimes and faces 175 years imprisonment. During the seven years he lived in the Ecuadorian Embassy under a grant of asylum, Assange was visited by more than 100 attorneys, journalists and doctors. They included Assange’s criminal defense attorneys in the United States, international human rights lawyers, national security journalists whose sources could be jeopardized if exposed, and physicians and medical professionals.
The CIA commissioned Undercover Global (UC Global), a private Spanish security company, to send images from Assange’s visitors’ cellphones and laptops as well as video streamed from their meetings to the CIA.
“Unbeknownst to anyone there, they actually put recording devices and cameras in the rooms where Mr. Assange was, which essentially live streamed what he was doing and saying back to Washington,” attorney Richard Roth, who filed the lawsuit, told me and my co-host Michael Smith on Law and Disorder radio. “I think that there was clearly a desire to bring down Julian Assange any way possible.”
Defendant Morales announced to his employees that UC Global would be operating “in the big league” and on the “dark side” with the CIA, the complaint says. Former employees of UC Global said the deal included selling information gathered as a result of the illegal surveillance.
The four plaintiffs, all U.S. citizens, allege that the defendants violated their Fourth Amendment rights to be free from unreasonable searches and seizures. They are requesting compensatory and punitive damages, an injunction to prevent the CIA from revealing their private communications, and the purging of CIA files of this information.
One of the plaintiffs is Deborah Hrbek, a media attorney who visited Assange several times in the embassy. Speaking at an online news conference, Hrbek noted:
On arrival, there was a strict protocol, for the protection of Julian, we were told. Passports, mobile phones, cameras, laptops, recording devices and other electronic equipment were turned over to the security guards in the lobby. We learned much later, through a criminal investigation under the supervision of a court in Spain, that while visitors like me were meeting with Julian in the embassy conference room, the guards next door were taking apart our phones, removing and photographing SIM cards and, we believe, downloading data from our electronic equipment.
Attorney Margaret Ratner Kunstler, another plaintiff, is a member of Assange’s legal team. She said at the news conference, “As a criminal attorney, I don’t think there is anything worse than your opposition listening in on what your plans are, what you intend to do, on your conversations. It is treated by the United States courts as a terrible thing … The result has very often been a dismissal of the indictment.”
Journalists John Goetz and Charles Glass are the other two plaintiffs; they interviewed Assange while he was in the embassy.
In addition to the Fourth Amendment, the defendants violated the attorney-client privilege and the physician-patient privilege, according to Roth.
This lawsuit came nearly a year after the release of a Yahoo News report documenting the CIA’s plans to kidnap and assassinate Assange when he was in the embassy. Pompeo was furious at the 2017 WikiLeaks revelation of the CIA’s “Vault 7” program, which enabled the CIA to tap into people’s cell phones and smart TVs, turning them into listening devices. The CIA called the exposé “the largest data loss in CIA history.” Pompeo labeled WikiLeaks a “non-state hostile intelligence service.” Senior CIA and administration officials ordered “sketches” and “options” to assassinate Assange. Donald Trump personally “asked whether the CIA could assassinate Assange and provide him ‘options’ for how to do so,” according to the report.
In 2019, the Trump administration filed an indictment against Assange for WikiLeaks’ 2010 publication of evidence of U.S. war crimes in Iraq, Afghanistan and Guantánamo, which were provided to them by whistleblower Chelsea Manning. They include the 2007 “Collateral Murder” video, which shows a U.S. Army Apache helicopter gunship target and fire on unarmed civilians in Baghdad. At least 18 civilians were killed, including two Reuters journalists and a man who came to rescue the wounded. Two children were injured. An Army tank then drove over one of the bodies, severing it in two. That video contains evidence of three separate war crimes prohibited by the Geneva Conventions and the U.S. Army Field Manual.
The Obama administration, which indicted more whistleblowers than all its predecessors combined, refused to indict Assange because WikiLeaks did what The New York Times does. No journalist or media outlet has ever been prosecuted under the Espionage Act for publishing truthful information. The First Amendment protects the right of journalists to publish material that was illegally obtained from a third person if it’s a matter of public concern. The U.S. government has never prosecuted a journalist or media outlet for publishing classified information, an essential tool of journalism.
Nevertheless, the Biden administration is vigorously pursuing the extradition and prosecution of Assange.
In January 2021, British Magistrate Vanessa Baraitser ruled against extradition because of the likelihood that Assange would commit suicide due to the onerous prisons conditions he would face and his fragile mental health.
The Biden administration came forward with conditional “assurances” that Assange would be treated humanely and the U.K. High Court overturned Baraitser’s ruling in spite of the CIA’s plot to assassinate him. The U.K. Supreme Court refused to hear Assange’s appeal.
Significantly, Baraitser warned that in Assange’s trial, the U.S. court would not admit evidence obtained through surveillance if it reveals communications subject to privilege (such as attorney-client and doctor-patient privileges). She wrote:
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.
On July 1, Assange appealed to the U.K. High Court to review the issues on which the magistrate ruled against him. They include:
- The fact that the extradition treaty between the U.S. and the U.K. prohibits extradition for a political offense and “espionage” is a political offense;
- Extradition is barred because the U.S. request is based on Assange’s political opinions;
- The request for extradition constitutes an abuse of process because it was politically motivated and not made in good faith;
- The charges against Assange do not meet the “dual criminality test” as they encompass acts that are not criminal offenses in both the U.S. and the U.K.;
- Extradition would be oppressive or unjust because too much time has elapsed; and
- Extradition would violate Assange’s rights to free expression and a fair trial. In addition, it would violate the prohibition against inhuman and degrading treatment enshrined in the European Convention on Human Rights.
Assange will also raise the CIA’s plot to kidnap and assassinate him when he was in the Ecuadorian Embassy under a grant of asylum.
If Assange is ultimately extradited, tried, convicted and imprisoned, it will send an ominous message to investigative journalists who would publish evidence of government wrongdoing. Jameel Jaffer, executive director of the Knight First Amendment Institute at Columbia University, told Amy Goodman on Democracy Now! that “the point of the prosecution [of Assange] is to criminalize national security journalism.” It goes to the heart of what journalists do, he said: “[P]rotecting confidential sources, communicating with them confidentially, cultivating sources, publishing classified secrets. These are the pillars of investigative journalism, of national security journalism in particular.”
The stakes not just for Julian Assange but also for the survival of investigative journalism itself could not be higher.
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