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In August, a lawsuit against the CIA, former CIA director Mike Pompeo, UC Global, and UC Global director David Morales was filed that alleged Americans who visited WikiLeaks founder Julian Assange when he was living in the Ecuador embassy had their privacy rights violated.

Attorney Richard Roth filed a complaint on behalf of two attorneys, Deborah Hrbek and Margaret Ratner-Kunstler, and two journalists, Charles Glass and John Goetz. They say they were spied upon by the CIA-backed operation when they met with Assange.

The lawsuit will be deliberated over in a United States court in the Southern District of New York. It was assigned to Judge John Koeltl.

Kevin Gosztola recently spoke with Richard about the status of the lawsuit and what happens next.

 

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GOSZTOLA: What is the status of the case?

ROTH: The current status is we have filed a complaint, which has received a tremendous amount of attention (for good reason). And we are in the process of serving the summons and complaint. We served it on Mike Pompeo. We served it on the CIA, which is the United States’ Attorney’s Office which represents the CIA. And we are in the middle of serving it on two Spanish—one entity and one individual—but the two defendants who live in Spain.

Once we do that, we have a conference schedule. I think it’s January 17, and we will set a roadmap for discovery and ultimately the trial of this case.

GOSZTOLA: I know one of the issues for this case when you are proving that people’s rights were systematically violated. Particularly, when you are involving the Central Intelligence Agency, you have to have standing. If you went into court tomorrow and you had to prove to the judge you had standing, what would you say to the judge?

ROTH: So great question. I like how you artfully asked it. The bottom line is that I would say the following. I would say we have four US individuals, all of whom were on embassy soil. That is diplomacy soil. And each of them are protected by the Fourth Amendment. The Fourth Amendment provides protection from any search and seizure—whether you’re in the US or whether you’re in Bangladesh—for any US citizen.

Here they happen to have been in London at the Ecuador embassy, and they because they’re US citizens have that right to not be violated, not be invaded by the CIA or any governmental entity. There’s a process, Your Honor, and the process essentially requires the CIA, or whoever it may be that wants to tape record conversations, to go and get a search warrant. They have to show probable cause. They have to go before a judge. They have to get an order.

Only upon those events can they go and actually listen in on conversations or copy conversations. Without that, it gives us standing, and it’s a violation of the Fourth Amendment.

GOSZTOLA: Just to make sure I cover all the bases, up to this point are there any responses from the lawyers or attorneys that will be representing the CIA? I know you issued a complaint to Mike Pompeo in his private capacity. Have you received any response?

ROTH: We have not. They have been radio silent. One thing we know, which gives us tremendous confidence, is that there’s a lawsuit pending in Spain, and El País, which is the largest newspaper reports on it frequently. And we’ve amassed a series of information from that Spanish lawsuit. So we’re very comfortable in our position. We believe that we can prove what we need to prove, but to date, nobody has given a response.

GOSZTOLA: Part of the lawsuit that you have filed is enabled by some of that journalism that has been done, as you’re saying. We have El País  who has investigated. We have the Yahoo! News from September 2021 that laid out some details; actually made Mike Pompeo a central figure. So a lot of evidence that you’re bringing into court, a lot of it’s public now. But by bringing this lawsuit, you believe that there will be an opportunity for a discovery phase in order to investigate and uncover even more detail on the violations of people’s privacy rights.

ROTH: We believe there’s a tremendous amount of discovery. We believe that there are hundreds of communications by and between the defendants, which went into the New York and Washington offices of the CIA (at minimum). We believe we’re entitled to all those communications. We believe we’re also entitled to what they actually imaged.

Remember, the allegations are that when you went to the embassy, you gave the embassy personnel every computer device you had, whether it be a phone, an iPad, a laptop. And they imaged everything while you were meeting Assange.

So, we will be able to get a tremendous amount of information, and we are looking forward to the judge giving us an opportunity to get that.

GOSZTOLA: You believe that this could have potentially affected over a thousand of people from the US, who you could consider US persons in one way or another. Put that in perspective. In terms of a case involving people’s privacy rights, what does that really mean? What does that number mean?

ROTH: The number is for anyone that visited embassy. Remember, Julian Assange was in there for seven years. He had friends. He had family. He had doctors. He had journalists. He had people that he worked with visited him, and he had lawyers visit him. So that number is not all US citizens, meaning they can’t all be plaintiffs, but people have come forward since the filing of the complaint saying hey, I’m a US citizen. I want to be a plaintiff.

It means a lot because not only did the CIA violate the Fourth Amendment by wrongfully taking information of everyone, but there’s a lot of other things they violated, like for example, every attorney has attorney-client privilege. If I represented you, any communications we would have either oral or in writing are privileged. By going in and listening to the conversations between Assange and either Ms. Hrbek or Ms. Kunstler, the CIA essentially violated the sanctity of attorney-client privilege.

Not only that, but if they went in and imaged, as we alleged, the computers of these lawyers, then they have attorney-client privileged information of the lawyers, which doesn’t even relate to Assange. So Deborah Hrbek has a memo to a client, to her client in her computer, and the CIA actually imaged it. Then they have additional information, which has nothing to do with Assange.

Add to that [Assange] saw doctors so they have doctor-patient information. So there’s a lot of information that we think they have, all illegally, which we want.

GOSZTOLA: Then, of course, there’s the two journalists. You’ve got Charles Glass and John Goetz, and those two individuals as journalists—at least as far as the norms that are accepted within the society in the United States—is that you should not be explicitly targeting those individuals.

And I suppose it’s worth pointing out while this lawsuit is unfolding that it’s now been codified by the Justice Department that they are not supposed to target journalists. That is to allow them to become collateral damage in prosecutions, whether those involve leaks or other criminal investigations. So there could not be a justification for targeting your two journalist clients.

I suppose they could argue in retrospect they did have the justification if they think they were spying on them in the context of a criminal investigation. But by and large, we accept those people are entitled to their privacy.

ROTH: Absolutely. So we have journalists that went in and interviewed Assange, and they went in and the CIA went and took that. Can you imagine what that does to investigative journalism, if an investigative journalist that he’s being tape recorded by the CIA?

And on top of that even, the doctors, there are doctors that went to visit Julian Assange. There’s a doctor-patient privilege, which he has. If he is going to see a doctor for an ailment or illness, why in god’s name would the CIA be entitled to that information?

Yes, the journalists, the doctors, the lawyers. It’s just really, really inappropriate. And it’s overreaching, and the irony is that the US has indicted Julian Assange for essentially wrongfully disclosing information. In the meantime, what is the CIA doing? They are worse than Assange because they are wrongfully taking information. So, yeah, it’s interesting how what’s good for the goose as they say is not necessarily good for the gander.

GOSZTOLA: You mention there are people who have come to you who say they’ve been spied on too. Is there any likelihood that this gets certified as some kind of a class action because there are a number of people who have been targeted allegedly?

ROTH: There are people who have come to us. Some of them we exclude because they are not US citizens. Tomorrow I’m meeting with somebody else. There is a chance that it goes to a class action lawsuit, although the goal is not to complicate the litigation. Class action lawsuits by definition complicates it because you got to certify the class, and there’s motions over that.

Our goal here really is to essentially seek grievance for the four people who did come to us, and say listen, you just can’t do this. So right now, our only clients are these four, but there’s a likelihood it will expand.

GOSZTOLA: It’s worth pointing out that what you’re doing is a valuable check on the power of the executive branch when in fact what we’ve seen is an incredible lack of interest and action on the part of the legislative branch in order to investigate. Which is to say that we know that the House intelligence committee, or the Senate intelligence committee, could find that this is very troubling that the CIA engaged in this activity against a diplomatic outpost or an embassy.

I can’t imagine what would happen if we found out that a country was targeting explicitly [a United States] embassy while they were hosting somebody who was an asylum seeker, say a rival power was targeting people as they came in and out, and they investigated those visitors. That they violated their privacy. We know the outrage that we would hear from the US State Department, and yet there hasn’t been any public assessment or address when it comes to this issue.

Your lawsuit is very important I think for forcing that out into the open. Because even if for some reason the CIA is able to stifle this lawsuit—or Pompeo is able to stifle your lawsuit, you’ve at least made this a public issue.

ROTH: That’s correct. And let’s not forget, not only did they go in and image each of the plaintiffs’ computers, laptops, and phones while they left it with security. The CIA actually had recording devices, audio and video recording devices, in the conference room where they met Assange. So they have everything, and what we learn in the Spanish case, these individuals that worked for UC Global essentially were asking their bosses, why am I tape recording and sending these tapes back to Washington? I don’t understand what Washington had to do with it.

There were individuals who were employees of this company that were stuck in the middle. They wanted to keep their job, and they couldn’t understand why information about Julian Assange would go to the CIA. So, we have some very, very damning information against the CIA and Pompeo, and we intend on pursuing it.

GOSZTOLA: One of the final questions I have for you is to point out that, yes, people might be cynical. If they are following this Assange case closely and if they are following things related to this spying operation, they might have seen that the Spanish court has had some significant difficulties when it comes to getting information from the Justice Department, to get compliance. I know they want to know the IP addresses, who was making those connections, where were those computers, what were those computers that were receiving this data.

But why don’t you take a moment just to point out what you’ll be able to do as somebody who is a US lawyer and in a US court in order to force the discovery of this information. It won’t be as easy to not comply and deny you information that the Spanish court is not able to get.

ROTH: That’s absolutely right. What we’ve learned from the Trump era, four years, is that they are masterful at avoiding processes. They have avoided everything that the Spanish court has sought, even by subpoena. We know what they did with the January 6th committee, where they wouldn’t produce documents and testify. We know what happened with the impeachment proceedings and the entire presidential organization.

So, they essentially are very good at either stonewalling or refusing to produce documents. Recently, when the tax documents were ordered to be produced, Trump appealed that again.

To your point, [the Spanish court does] not have the federal authority of a federal court judge. A federal court judge was appointed to the case, a guy by the name of Judge Koeltl. As is true of all federal court judges, he was appointed by the President of the United States. They have tremendous power. They can compel Mike Pompeo and the CIA to produce documents. If they don’t, they could be held in contempt of court and could go to jail.

When you have federal court judge, someone you don’t mess with, whoever it may be, you can’t play the games that they played in Spain with the Spanish court. They played with the January 6th committee. They played with other organizations. This is the judge, and the judge is going to say to them I want you to produce it and I want you to produce it now. That’s going to help us out much more than any other dispute before another foreign organization.

GOSZTOLA: It’s important to mention that Judge Koeltl already had a case before him that  involved WikiLeaks and already came down on the side of protecting freedom of the press when the Democratic National Committee chair Tom Perez tried to lump WikiLeaks with alleged Russian agents and with the Trump campaign, when it came to their alleged examples of interference in the 2016 election. He said no, if you obtain hacked materials, which is what WikiLeaks did, then they have an absolute right to publish just as anybody in the United States does under the First Amendment.

You must feel pretty good knowing that you’ve got somebody who is going to preside over this case, who has a history with WikiLeaks and isn’t going to see just see that this involves Julian Assange and have some kind of irrational response to your efforts.

ROTH: I think we are very fortunate to get Judge Koeltl, not necessarily because of that prior decision but because of his experience. He’s a Harvard grad. He worked at a major law firm. He was involved with the Watergate prosecution team. He was appointed by President Bill Clinton in 1994. So, he’s been at the federal court bench almost thirty years.

You don’t say no to a federal court judge that’s been there for a year. He’s been there for twenty-eight, I believe. Certainly, it’s a really great force that we have, and if the federal government wants to reckon with it, then Judge Koeltl will definitely be on our side.

Listen, he’s very unbiased. He very professional. He’s unbelievably experienced. Nothing is going to slip past him. So, we’re lucky we have a judge with such experience and stamina.

GOSZTOLA: The last thing I’ll ask, I think we have to make clear that you’re not on Julian Assange’s legal team. You’re representing these people that are coming before court or will come before the court and argue that their privacy rights were violated and present the evidence as best possible. But that extradition case and the potential for Julian Assange to be put on trial in the United States is going to be a backdrop and could potentially be happening at the same time that this moves through the court.

Is there anything that you want to say about this dynamic and what it means for your lawsuit?

ROTH: You hit it on the head. There’s not much more to say except that, think about this. If the CIA is in Assange’s conference room, listening in on conversations that he had with his lawyer for that case—Remember, years ago he brought a very experienced DC lawyer to help him defend against this indictment, which was released three years ago, but it was sealed initially.  

Could you imagine if the CIA, the government prosecuting Assange already has conversations between Assange and his lawyer? And even documents? So, there really is a stink to it.

In the other case, we don’t represent Assange in the other matter, but I have even as a lawyer and American, I have a problem with the government going in and actually taking information against if you will its adversary in that case.

We’ll see how it plays out. I’m not sure what’s going to happen. He’s probably going to be extradited. He’ll probably be tried in Virginia. It is a very complicated case. It’s a difficult case. The First Amendment cries out in that case. So, we will see what happens in that case, and this is somewhat intertwined to the extent that the government, his adversary, went and took information from him—which is a subject matter of this case—for that case.

GOSZTOLA: It’s kind of intertwined because your lawsuit is going to hopefully succeed in proving even more than we already know. That the CIA was connected to this private security company. I think it’s like a half dozen or so people. It’s a small outfit that was engaged in providing the security for the Ecuador embassy.

But hopefully we’ll be able to actually, truly through your lawsuit connect that, and then I imagine even though that’s not the goal of your lawsuit immediately, it might open some doors for the Assange defense because they’ll be able to introduce that into their evidence.

In fact, I imagine the cases move in the same way that the extradition proceedings have in some ways been affected and influenced periodically by what’s happening in Spain. Just because you cannot separate these issues. Like you’re saying, if the CIA is targeting the person who the US is trying to prosecute, it’s hard to believe that you could get fair justice.

ROTH: That’s exactly right. And we will see how this plays out. They’re very important cases, both of them, in our country. They have tremendous significance. Listen, we all believe in the CIA and its powers, and we believe it’s a necessity to know what’s going on in Ukraine and Russia, to know what’s going on in the Middle East. But every federal government, every organization, every branch of government has to stay within its boundaries. And our lawsuit really tests those boundaries to see whether or not the government, the CIA in particular and Mike Pompeo, are really going way over the line.

GOSZTOLA: You mentioned that your judge was involved in the Watergate prosecution, and it seems like we’re looking at similar excesses here. And so, it’s not unheard of. Americans are pretty familiar with the periods in history when their government agencies acted out of line, crossed into trampling on rights, and they know that it’s the job of people, whether it be attorneys, journalists, or elected representatives, judges and courts, to rein those people in.

ROTH: That’s right. It’s interesting. It’s not going to be easy. We’re going to have a lot of obstacles. We’re going to have a lot of road blocks. But we will get there.

Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."