As a private citizen, the options for suing an intelligence agency are few and far between. The US Central Intelligence Agency, as with other members of the secret club, pour scorn on such efforts. To a degree, such a dismissive sentiment is understandable: Why sue an agency for its bread-and-butter task, which is surveillance?
This matter has cropped up in the US courts in what has become an international affair, namely, the case of WikiLeaks founder and publisher, Julian Assange. While the US Department of Justice battles to sink its fangs into the Australian national for absurd espionage charges, various offshoots of his case have begun to grow. The issue of CIA sponsored surveillance during his stint in the Ecuadorian embassy in London has been of particular interest, since it violated both general principles of privacy and more specific ones regarding attorney-client privilege. Of particular interest to US Constitution watchers was whether such actions violated the reasonable expectation of privacy protected by the Fourth Amendment.
Four US citizens took issue with such surveillance, which was executed by the Spanish security firm Undercover (UC) Global and its starry-eyed, impressionable director David Morales under instruction from the CIA. Civil rights attorney Margaret Ratner Kunstler and media lawyer Deborah Hrbek, and journalists John Goetz and Charles Glass, took the matter to the US District Court of the Southern District of New York in August last year. They had four targets of litigation: the CIA itself, its former director, Michael R. Pompeo, Morales and his company, UC Global SL.
All four alleged that the US Government had conducted surveillance on them and copied their information during visits to Assange in the embassy, thereby violating the Fourth Amendment. In doing so, the plaintiffs argued they were entitled to money damages and injunctive relief. The government moved to dismiss the complaint as amended.
On December 19, District Judge John G. Koeltl delivered a judgment of much interest, granting, in part, the US government’s motion to dismiss but denying other parts of it. Before turning to the relevant features of Koeltl’s reasons, various observations made in the case bear repeating. The judge notes, for instance, Pompeo’s April 2017 speech, in which he “‘pledged that his office would embark upon a ‘long term’ campaign against WikiLeaks.’” He is cognisant of the plaintiffs’ claims “Morales was recruited to conduct surveillance on Assange and his visitors on behalf of the CIA and that this recruitment occurred at a January 2017 private security industry convention at the Las Vegas Sands Hotel in Las Vegas, Nevada.”
From that meeting, it is claimed that “Morales created an operations unit, improved UC Global’s systems, and set up live streaming from the United States so that surveillance could be accessed instantly by the CIA.” The data gathered from UC Global “was either personally delivered to Las Vegas; Washington, D.C.; and New York City by Morales (who travelled to these locations more than sixty times in the three years following the Las Vegas convention) or placed on a server that provided external access to the CIA”.
Koeltl preferred to avoid deciding on the claims that Morales and UC Global were, in fact, “acting as agents of Pompeo and the CIA”. Such matters were questions of fact “that cannot be decided on a motion to dismiss.”
A vital issue in the case was whether the plaintiffs had standing to sue the CIA in the first place. Citing the case of ACLU v Clapper, which involved a challenge to the National Security Agency’s bulk telephone metadata collection program, Koeltl accepted that they did. In doing so, he rejected a similar argument made by the government in Clapper – that the injuries alleged were simply “too speculative and generalized” and that the information gathered via surveillance would necessarily even be used against them. “In this case, the plaintiffs need not allege, as the Government argues, that the Government will imminently use their information collected at the Ecuadorean Embassy in London.” If the search of the conversations and electronic devices along with the seizure of the contents of the electronic devices “were unlawful, the plaintiffs have suffered a concrete and particularized injury fairly traceable to the challenged program and redressable by favorable ruling.”
Less satisfactory for the plaintiffs was the finding they had no reasonable expectation of privacy regarding their conversations with the publisher given that “they knew Assange was surveilled even before the CIA’s alleged involvement.” The judge thought it significant that they did “not allege that they would not have met Assange had they known their conversations would be surveilled.” Additionally, it “would not be recognized as reasonable by society” to have expected conversations held with Assange at the embassy in London to be protected, given such societal acceptance of, for instance, video surveillance in government buildings.
This reasoning is faulty, given that the visits by the four plaintiffs to the embassy did not take place with their knowledge of the operation being conducted by UC Global with CIA blessing. In a general sense, anyone visiting the embassy could not help but suspect that Assange might be the object of surveillance, but to suggest something akin to a waiver of privacy rights on the part of attorneys and journalists aiding a persecuted publisher is an odd turn.
The US Government also succeeded on the point that the plaintiffs had no reasonable expectation to privacy regarding their passports or their devices they voluntarily left at the Embassy reception desk. In doing so, they “assumed the risk that the information may be conveyed to the Government.” Those visiting embassies must, it would seem, be perennially on guard.
That said, the plaintiffs convinced the judge that they had “sufficient allegations that the CIA and Pompeo, through Morales and UC Global, violated their reasonable expectation to privacy in the contents of their electronic devices.” The government even went so far as to concede that point.
Unfortunately for the plaintiffs, the biggest fish was let off the hook. The plaintiffs had attempted to use the 1971 US Supreme Court case of Bivens to argue that the former CIA director be held accountable and liable for violating constitutional rights. Koeltl thought the effort to extend the application of Bivens inappropriate in terms of the high standing nature of the defendant and the context. “As a presidential appointee confirmed by Congress […] Defendant Pompeo is in a different category of defendant from a law enforcement agent of the Federal Bureau of Narcotics.” More’s the pity.
Leaving aside some of the more questionable turns of reasoning in Koeltl’s judgment, public interest litigants and activists can take heart from the prospect that civil trials against the CIA for violations of the US Constitution are no longer unrealistic. “We are thrilled,” declared Richard Roth, the plaintiffs’ attorney, “that the court rejected the CIA’s efforts to silence the plaintiffs, who merely seek to expose the CIA’s attempt to carry out Pompeo’s vendetta against WikiLeaks.” The appeals process, however, is bound to be tested.