Assange Legal Battle Moves to New York: The 4th Amendment Is Still On the Books
The 4th Amendment Is Still On the Books
[Image: Julian Assange: Photo: David G Silvers. Cancillería del Ecuador]
Publication date: 2022-08-17
Update 2022-08-18: Judge Koeltl has been assigned to the case. Your author needs eat a little crow. An additional source, that of Richard Medhurst’s interview with the lead attorney, Roth, and one of the plaintiffs, Hrbek, is provided.
Update 2022-10-17: acTVism Munich have published a video update on the case. This has been added to sources.
A reading of this article has been published, should you enjoy audio over text. The audio does not include the Update added.
Defending Civil Rights
On the morning of August 14th, 2022, USA Senator Rand Paul called for the repeal of the 1917 USA Espionage Act. The Act was used to jail civil rights advocate Eugene Debbs who opposed the USA's involvement in World War I. On the same morning a press conference was held to announce a civil rights case filed in the Southern District of New York.
The plaintiffs in the case are lawyers and journalists who are USA citizens. The complaint alleges that their 4th Amendment rights of security from unreasonable search and seizure were violated by the Spanish security firm, UC Global, under the instruction of then CIA director Mike Pompeo.
Mr. Pompeo is being sued in civil court based on a 1971 case heard by the USA Supreme Court, Bevins vs. 6 unknown agents of the Federal Bureau of Narcotics. The judgement of this case provides the legal precedent for officers of the state to be tried in civil court for their actions in their government role.
[Image: Kunstler, from the press conference.]
Kunstler, Hrbek, Glass and Goetz vs. the CIA, Mike Pompeo, David Morales Guillen and Undercover Global
The press conference hosts the two key lawyers who have submitted the complaint, Richard Roth and Robert Boyle, and the three of the four plaintiffs, two lawyers Margaret Ratner Kunstler and Deborah Hrbek, and two journalists Charles Glass and John Goetz. Joining them to ask pertinent questions are a pair of journalists who have doggedly pursued reporting on the persecution of Julian Assange, Joe Lauria and Mohammed Elmaazi. They, in turn, are joined by other concerned citizens including Margaret Kimberly (Black Agenda Report), Mary Kostikidas (Australian journalist), and Chip Gibbins (Jacobin Magazine).
An article which summarizes the complaint and places it in context is provided by the ever reliable Kevin Gosztola, editor of The Dissenter. Mr. Gosztola also published the video of the press conference via his Shadowproof youtube channel, which is included in sources below.
[Image: Roth, from the press conference.]
Much Ado About Nothing
On the one hand a question may be asked of why the UK's judicial branch did not just throw the extradition proceedings out of court. They had learned of evidence brought before a Spanish High Court judge which detailed the spying on legal council visiting Mr. Assange in the Ecuadorian Embassy in London. On the other hand is the informed and somewhat tired doubt held by those who expect justice from the Department of Justice.
A first call of acknowledgment must be given to Goszstola, Lauria and Elmaazi for their dedication. The persecution of Julian Assange by now two successive USA administrations is the greatest threat to freedom of the press in the USA since the Elsberg case half a century ago. The extradition request for Assange needs also to be placed in the context of 9 prosecutions of whistleblowers under the same Espionage Act by the Obama administration. Obama tripled the number of prosecutions under this act. This needs be seen as a 14 year effort of suppressing documentation of government malfeasance across three administrations. Mr. Assange just happens to be the biggest truth teller via his publishing organisation Wikileaks.
Why Install Microphones if You Don't Want the Recordings?
One may view the filing of this case in the Southern District as a minor event, a blip on the radar of news. It does, however, have quite some teeth. Despite continuous efforts to undermine legal protections afforded USA citizens by their constitution and specifically its amendments, these are the supreme laws of the land. The protections enshrined in the constitution against abuse of citizens by their government has no geographic scope, they are global. This, in combination with the 1971 Bevins ruling by the USA's Supreme Court enables the filing of this complaint.
There is no certainty of outcome. A sequence of legal moves will need to be pursued, with the most important being discovery. The complaint uses information obtained by the Spanish legal process in combination with statements made by Mr. Pompeo to allege that data from peoples' phones and other electronic devices like laptops, including microphones installed in the embassy, were delivered to the CIA. To anyone sane who has been following the affair it is obvious that this is what has occurred. It is however incumbent upon the case lawyers to provide reasonable evidence for this to enable discovery. The Department of Justice will be calling on many a favour to have this case assigned to a judge who will make this process as difficult as possible.
The key targets of discovery are affidavits by UC Global employees and official documents from the company to demonstrate delivery of data to their USA "client".
Asking the Obvious
While subtle and incisive questions were asked by journalists, the most natural and pertinent question was asked by a British citizen (assumed based on accent). To paraphrase:
How do the plaintiff's feel about having their data gathered and delivered to the CIA?
Both Kunstler and Hrbek responded calling it an outrage.
While it is certain that the case will be entangled in legal "horizontal scrub", the power of the litigation is this outrage against the 4th Amendment’s protections. Two USA lawyers had their privileged conversations with Mr. Assange spied on by an USA executive agency. If this can be conclusively established there is no escape.
This behaviour is unconscionable. It invalidates the entire extradition process. For this reason, the legal challenge will be mired, stymied, prolonged, undermined and compromised. The advantage is that the lawyers representing the plaintiffs know this.
[Image: Boyle, from the press conference.]
Mr. Boyle, the constitutional lawyer consulting in the case calls for calm by the doubtful questioners. Mr. Morales, the CEO of UC Global, which ran security at the Ecuadorian Embassy in London is on record as stating that he was recruited by USA intelligence and provided data to his client. This, Mr. Boyle claims, is not circumstantial, but direct evidence.
Outcomes
The case seeks the return of data gathered illegally. This implies the destruction of these data. Though this is technically almost impossible, it would make the data unusable directly in any legal procedure against Assange in the USA. A discovery process would make the existence of these data known, and that is the risk against which the USA government must guard.
Because of where the case leads, the outcome of it is unlikely to lead to any relief for the plaintiffs or Mr. Assange. It will, however, reveal the extents to which the USA government is prepared to subvert its own legal system to continue its vendetta against a publisher of embarrassing truth.
I am certain that Mr. Sheehan would applaud Mr. Roth and Mr. Boyle for their submission. I wish the case every success.
Postscript
I wish to thank again the maintainers of the Cornell Law School’s Legal Information Institute website. This author is filled with glee when able to cite their reliable pages.
Update
Mr Gosztola at The Dissenter reports that a judge has been assigned to the 4th Amendment case lodged in the Southern District of New York.
Attorney Richard Roth, who is representing plaintiffs in the lawsuit, welcomed the assignment.
“Appointed to the bench in 1994, Judge Koeltl is a bright, experienced, and hard working judge in the Southern District,” Roth said. “He has presided over some of the highest profile cases in the SDNY, including the World Trade Center bombing case.”
“We are fortunate to have such a seasoned jurist,” Roth added.
[Image: Jusge Koeltl, from The Dissenter article.]
Mr. Gosztola's article provides background on Judge Koeltl's ruling on the Democratic National Committee's attempt to hold Wikileaks at fault for publishing their emails which revealed the rigging of the 2016 Democrat party's presidential primary by Mrs Clinton:
Koeltl previously presided over a case involving Assange and WikiLeaks.
"In 2019, Koeltl ruled that the Democratic National Committee (DNC) could not hold Assange or WikiLeaks liable for publishing DNC emails or emails from Hillary Clinton’s presidential campaign, which Russian agents were accused of stealing.
The decision Koeltl issued highlighted the Pentagon Papers case, where the US Supreme Court ruled there was a “heavy presumption” against suppressing the publication of information. He concluded Assange and WikiLeaks had a First Amendment right to publish, even if WikiLeaks knew the materials were obtained illegally.
“The First Amendment prevents such liability in the same way it would preclude liability for press outlets that publish materials of public interest, despite defects in the way the materials were obtained,” Koeltl asserted.
Koeltl added, “So long as the disseminator did not participate in any wrongdoing in obtaining the materials in the first place,” publishing was protected.
“This was not a solicitation to steal documents but a request for material that has been stolen. Journalists are allowed to request documents that have been stolen and to publish those documents,” Koeltl declared.
Democratic National Committee vs The Russian Federation et al.
The DNC alleged in their complaint to Judge Koeltl that which is the standard media narrative, that Russia hacked the DNC and having obtained (exfiltrated) data, provided it to Wikileaks who then published the information which was damaging to their candidate, Mrs Clinton's, electoral campaign.
Koeltl's judgement grants the request to dismiss made by the defendants who represented The Russian Federation, the Trump political campaign and various persons. The defendants also applied for sanctions against the DNC and its attorneys which Koeltl denied. One could summarize his decision as "get this rubbish out of my court".
However, in his judgement he is required to render the arguments made. He cites legal precedent for the level of belief he is required to grant the plaintiffs' arguments and evidence, though with a balancing caveat. Thus, the internecine complexities of the allegations are required to be rendered in the judgement, though these are not necessarily the views of the judge. What Judge Koeltl did not know at the time of judgement was that Shaun Henry the CEO of Crowdstrike, the firm which the DNC hired to investigate the "hack", had stated under oath before a congressional committee that they had found no evidence of the exfiltration of any data.
In his judgement, Koeltl carefully explains to the DNC that:
The remedies for hostile actions by foreign governments are state actions
rather than wasting the time of his court.
One can learn from his judgement that he was wholly unimpressed by the DNC's use of the court for political purposes. This bodes well for his assignment of the new 4th Amendment complaint before him. While there is a clear political component to the case, at its core it is about the rights of citizens and their protection from government abuse.
Eating a Little Crow
That Attorney Roth is pleased with the assignment of this judge is most welcome. It would be grossly unfair to suggest that Judge Koeltl has any prejudice in the matter before him. Thus, the outcome of the case will depend upon the skill of the lawyers, the legitimacy of the case and the soundness of evidence presented. My alarmist rhetoric above at the end of the initial article was wholly premature. To borrow a phrase from Mark Twain "Reports of my death judicial bias are greatly exaggerated".
Should you, reader, be as interested in the case as I, I suggest keeping an eye on Mr. Gosztola's reporting at The Dissenter. An additional dedicated reporter on the Assange saga is Richard Medhurst, who interviewed the lead attorney and one of the plaintiffs on August 16th. During Medhurst’s interview with Hrbek, she speaks quite openly of her shock learning of the theft of her data and the relentless efforts of elements of the USA government to make an example of Assange for his embarrassing them. Mr. Roth reveals some of their legal strategy and confirms the importance of statements by UC Global employees provided in the Spanish case.
Another important place to follow developments is Consortium News. The editor-in-chief thereof, Mr. Joe Lauria, was a participant in the press conference. He has been a dependable reporter on the Assange cases for many years. His report on the lodging of the complaint is detailed and cuts to the heart of the matter:
In seeking discovery, the plaintiffs may face the imposition of the states secrets privilege, which would allow the C.I.A., with the judge’s assent, to prevent classified material from being made available.
“We don’t think this will be an easy task,” Roth said. “Discovery will be a difficult process, however we will have a federal court judge who presumably will be non-biased, who will insist that certain documents and certain individuals be produced and be presented. That is a process we are willing to take on.”
That such a seasoned and impartial judge has been assigned to the case demonstrates a welcome lack of political influence in the Southern District. Koeltl’s laborious task will be to balance the rights afforded USA citizens by the 4th Amendment against a desire by the state to withhold classified information, as Mr. Lauria clearly illustrates.
Judge Koeltl displayed in his judgement for the DNC case that his concern is the uniform application of the law. Should he be able to maintain that honor as he presides over the current case before him, we may be in for quite a ride.
Simplicity
Roger Waters relates a story of his coming to his mother with a problem which perplexed him at the young age of 13. Rather than responding to the specifics of the perplexing problem, his mother offered sagely advice.
Roger, you will suffer these problems during your life. Read. Learn all you can about the topic. Read all opinion. When you have done this, the heavy lifting is done. Then, it is easy.
Do, the right, thing.
Sources
Webster BIVENS, Petitioner, v. SIX UNKNOWN NAMED AGENTS OF FEDERAL BUREAU OF NARCOTICS., Legal Information Institute, Cornell Law School
Fourth Amendment, Legal Information Institute, Cornell Law School
CIA, Pompeo Sued For Allegedly Spying On US Attorneys And Journalists Who Met With Assange, Kevin Gosztola, The Dissenter, 2022-08-15
CIA sued over alleged spying on lawyers, journalists who met Assange, Kanishka Singh, Reuters, 2022-08-15
‘The American friends’: New court files expose Sheldon Adelson’s security team in US spy operation against Julian Assange, Max Blumenthal, The Grayzone, 2020-05-14
Rand Paul calls for repeal of Espionage Act after Trump FBI search, Ivana Saric, Axios, 2022-08-14
Judge Assigned To Lawsuit Alleging CIA Spied On Assange Visitors Previously Upheld WikiLeaks' Right To Publish, Kevin Gosztola, The Dissenter, 2022-08-16
Pompeo Sued Over Surveillance of Assange Visitors, Joe Lauria, Consortium News, 2022-08-14
DNC Loses Racketeering Suit Over 2016 Election Hack, Adam Klasfeld, Courthouse News, 2019-07-30
Democratic National Committee vs The Russian Federation et al., United States District Court Southern District of New York, 2019-07-30
PRESS CONFERENCE: Lawyers, Journalists Sue CIA, Pompeo Over Spying On Visits With Assange, Shadowproof, 2022-08-15
CIA and Mike Pompeo Sued for Illegally Spying on Assange, Richard Medhurst interviews Richard Roth and Deborah Hrbek, Medhurst’s youtube channel, 2022-08-16
Lawyer Takes on the CIA for Spying during Assange visit, acTVism Munich, 2022-10-17
Culture
Bob Marley - Get Up Stand Up, Bob Marley and the Wailers, from the 1973 album Burnin’
“You can fool some people sometimes, but you can’t fool all the people all the time.”
If you like what you read here, you can please the author by sharing it.
Notification:
Subscription is optional. Subscribers can expect notifications for most articles. Better is to use RSS, or bookmark the "Archive" page and visit at leisure. If you use Twitter, following @YesXorNo1 is also an effective notifications strategy.
Copyright and Licensing
This work is copyright to the blog's author with CC BY-SA 4.0 licensing. Have fun, reuse, remix etc. but give credit and place no further restrictions. Lets build culture.