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posted by hubie on Friday August 19 2022, @07:22AM   Printer-friendly

Assange lawyers sue CIA for spying on them:

Lawyers for WikiLeaks founder Julian Assange sued the US Central Intelligence Agency and its former director Mike Pompeo on Monday, alleging it recorded their conversations and copied data from their phones and computers.

[...] They said the CIA worked with a security firm contracted by the Ecuadoran embassy in London, where Assange was living at the time, to spy on the Wikileaks founder, his lawyers, journalists and others he met with.

[...] Richard Roth, the New York attorney representing the plaintiffs in the lawsuit, said the alleged spying on Assange's attorneys means the Wikileaks founder's right to a fair trial has "now been tainted, if not destroyed."

[...] It said Undercover Global, which had a security contract with the embassy, swept information on their electronic devices, including communications with Assange, and provided it to the CIA.

In addition it placed microphones around the embassy and sent recordings, as well as footage from security cameras, to the CIA.

This, Roth said, violated privacy protections for US citizens.

Anyone knowledgeable on the law who can help unpack all the legal angles here (non-US citizen, US lawyers, in an embassy in a foreign country involving a private company)?

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  • (Score: 5, Informative) by Spook brat on Friday August 19 2022, @03:01PM (1 child)

    by Spook brat (775) on Friday August 19 2022, @03:01PM (#1267506) Journal

    Anyone knowledgeable on the law who can help unpack all the legal angles here (non-US citizen, US lawyers, in an embassy in a foreign country involving a private company)?

    #include .std_disclaimer
    I am not a lawyer. This is not legal advice. I've been out of the game for a while, so my training may or may not be applicable here. I do, however, have U.S. National Security legal training and field experience, so my opinions may be relevant here.

    To start: everything the CIA does is illegal in the jurisdictions where they operate, pretty much. We may have some sort of Status of Forces Agreement or something SoFA-like in place with Great Britain, but for the most part the CIA does not operate in the realm of "building a case towards criminal prosecution." Instead, their goal is to prevent threat actors (people who want to steal/disclose sensitive information about the US) from having access to the information the Threat is interested in. I have no expectation that they would even care about the civil rights of the people they investigate, or know how to prepare/preserve evidence for a successful Stateside prosecution.

    So now we're in a situation where the Justice department is trying to prosecute Assange in the United States, for crimes against U.S. law committed outside the United States, with evidence that was probably collected with no regard for civil rights of U.S. persons. Here's how I see this shaking out:

    1) Julian Assange is not a U.S. person, so generally is not afforded the benefit of U.S. constitutional protections. In my shop we wouldn't have ever considered prosecuting him: the arm of the law might be long, but the whole "not here, not one of us" issue would have put him out of my jurisdiction, and we'd have focused on his collaborators who were U.S. persons. BUT, since he's being extradited and tried on U.S. soil, stateside rules of evidence and procedures will probably be enforced during the trial. Assange's lawyers will have access to the evidence being brought, and will have an opportunity to make pre-trial motions to suppress anything they think is impermissible under U.S. rules of evidence. Unfortunately for Julian, the judge will probably be sympathetic to the Government's argument that evidence collected against him on foreign soil by the CIA is not covered by constitutional protections.

    2) The lawyers ARE U.S. persons, and in a U.S. prosecution their attorney-client privilege probably WILL be respected by the judge. I expect that any information directly obtained from the meetings between Assange and his lawyers will be ruled inadmissible. The lawyers will probably argue that having their defense strategy laid bare prior to trial is prejudicial against their client, and they have a point. I don't know what way a judge should rule on that, but given the political nature of the case I have trouble seeing a Federal judge simply dismissing all charges and letting Assange walk free. Even worse, the blind eye judges often give to "parallel construction" means that, unless the defense can prove that a specific piece of evidence could only have been obtained using the illegal surveillance of the lawyers as a starting point, the "fruit of the poisonous tree" doctrine won't apply and most of the evidence brought by the Feds will be ruled admissible.

    3) The fact that the surveillance happened in the UK or at an Ecuadorean Embassy pretty much doesn't matter. The relevant question would be, "is the subject of the investigation a U.S. person and therefore afforded constitutional protection." Assange: no. U.S. Lawyers: yes. The Brits and the Ecuadoreans have a right to complain, and if they can identify a specific agent who they think acted badly that agent can be tagged with "persona non grata" status and deported from Britain/Ecuador/Ecuadorean Embassy property as the case may be; however, generally they have no recourse against the CIA doing what the CIA does. Again, most of what the CIA does is illegal in the locations where it occurs, and they do it because the host nations don't have the ability to detect or prevent it. Welcome to the world of International Espionage.

    4) The private company, if contracted by the CIA to do the surveillance, will be ruled to have been acting under color of law. The CIA cannot pay someone to do its dirty work and then say that rules against U.S. Government agencies intruding on U.S. persons' privacy don't apply to the information obtained. That's not a thing. See point 1 about how much the CIA generally cares about such things. The courts, though, generally do care, so if the Feds try to admit evidence found that way they may have an uphill battle keeping it admissible during trial (see point 2).

    All that being said, I would not have chosen to prosecute this. The legal basis for the prosecution is shaky: he's being charged under the U.S. Espionage act. Basically the Feds are arguing that Assange was effectively trespassing on U.S. soil when he helped someone else break into U.S. data systems to steal the data he published. I find that... questionable. Yes, crimes committed in America by non-citizens are prosecutable in the relevant jurisdiction. Yes, U.S. data systems located on foreign soil in a U.S. run facility are arguably under Federal jurisdiction. Assange, however, did not personally step into that facility, nor did he log into those systems. The target of prosecution here should be the U.S. citizen who is subject to U.S. law, has signed a confidentiality agreement as a condition of being granted access to the data system, and then exceeded their access limitations and unlawfully removed data from the system and facility. I've never heard that person's name. Assange knows who it is, and like any good journalist is protecting their source. The Feds are understandably angry about this, but I have doubts that the Act applies to Assange personally. Criminal conspiracy? Maybe, I guess? I'd have to ask someone who knows a LOT more than me how to make that charge stick.

    The correct course of action from the CIA would have been to closely monitor Assange's future actions and aggressively investigate any U.S. person he contacts in the future. There are many ways besides prosecution to prevent Assange from having future access to sensitive information, including revoking the security clearance of any Federal employee who ever talks to him. They wouldn't even need to give a reason, the clearance would simply evaporate and the employee would suddenly be looking for a non-government job. It would be polite to warn the intel community in advance, but I could see the CIA choosing to make a public example of someone first. Naturally Assange would never be allowed on U.S. soil again in his life.

    Alternately, if the Feds knew they were seeking prosecution then a different agency (like the Defense Intelligence Agency or one of its branches), who has experience actually prosecuting Espionage cases in court, should have been sent to do the job. I can see this going wrong a bunch of different ways for the Feds' case. Not sure if it will be enough to get Assange declared "Not Guilty", but time will tell.

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  • (Score: 1) by khallow on Saturday August 20 2022, @12:16AM

    by khallow (3766) Subscriber Badge on Saturday August 20 2022, @12:16AM (#1267595) Journal

    and if they can identify a specific agent who they think acted badly that agent can be tagged with "persona non grata" status and deported from Britain/Ecuador/Ecuadorean Embassy property as the case may be

    While not likely in this case, sanctions can go on to any interests of the offending country. A typical escalation might be to kick out suspected agents or even every government employee (such as the ritual cleaning out of embassy staff during the Cold War when some significant offense occurred), or even penalties against various interests of parties associated with the country (tariffs or trade treaty complaints, restricting citizens from the country, for example).

    I see three possible avenues for how this case could matter in the larger scheme of things: generate positive publicity for Assange's main case, throw out evidence on the basis of illegal collection, and perhaps, a little opportunity for discovery - a lot of time FOIA requests can only happen once the requester is aware of the information source (repeated requests to eventually discover basic information aren't rare).