By Matthew Russell Lee, Patreon Maxwell Book
SDNY COURTHOUSE, May 25 – When jury selection was completed for the retrial of accused CIA Vault 7 leaker Joshua Schulte, U.S. District Court for the Southern District of New York Judge Jesse M. Furman told the jurors, Do not read or say anything about the case. Inner City Press was there, and live tweeted here.
[July 20 denial of access here; Brutal Kangaroo]
On August 15, 2022 after conviction Schulte, a group of lawyers and journalist who visited Julian Assange in the Ecuador Embassy in London sued Mike Pompeo for surveillance in violation of the US Fourth Amendment. They held a press conference, and Inner City Press asked if they will seek emergency relief. Not for now (video here; Complaint here).
On October 12, plaintiffs' counsel asked to adjourn and postpone the October 17 conference in the case: "Plaintiffs had difficulty locating the accurate addresses for the two Spanish defendants, David Morales (“Morales”), a Spanish citizen, and Undercover Global S.L. (“UC Global”), a Spanish corporation."
On January 13, 2023, the US Attorney's Office wrote to Judge Koetlt requesting a pre-motion hearing for them to dismiss the complaint against Pompeo and the CIA. DOJ argues that there is no "Bivens" remedy available, and states that "matters intimately related to foreign policy and national security are rarely proper subjects for judicial intervention."
On January 18, the plaintiffs responded that the CIA and Pompeo have defaulted, and waited until the last day to filed a letter for a pre-motion conference. They note they are not suing the CIA for money, only an injunction against sharing information. They say the Court will conclude that the Defaulted Defendants motion to dismiss should be denied.
On Saturday, January 14, Judge Koeltl ordered that "the parties are directed to appear on January 20, 2023 at 2:00 p.m. (Signed by Judge John G. Koeltl on 1/13/2023) (jca)
On January 20, Inner City Press covered and live tweeted it, thread here.
On February 16, US DOJ requested and obtained another 30 day extension, saying the Fourth Amendment claim requires it. The plaintiffs did not consent, but the extension was granted. Letter on Patreon here.
On March 16, Judge Koeltl granted a joint request under which the CIA and Pompeo expanded their word limit to 14,000 - and the plaintiff's delayed their opposition to May 8, reply May 30.
But on May 4, plaintiffs' counsel wrote in asking for an additional money due to being on trial and traveling. On May 5 Judge Koeltl granted the extra month.
On March 20, the US filed its 42 page motion to dismiss, arguing among other things that Plaintiffs Had No Reasonable Expectation in their alleged conversations with Assange, and that the "incident" capture of US Citizen info during extraterritorial surveillance of foreign targets does not violation the 4th Amendment." More on Substack here.
On June 6, the plaintiffs filed a memo of law against the motion to dismiss, among other things quoting from Pompeo's memoir "Never Gave an Inch" that "I was sitting with Susan and Nick... reading an unclassified summary of the US government's rules and guidelines on extrajudicial killings," - Assange was being contemplated? Full memo on Patreon here.
On November 16, 2023 Inner City Press live tweeted the oral argument - the motion to dismiss seemed to stall, with letter due in a week. Thread:
Assistant US Attorney Barnea, "for the Federal defendants," goes to the podium: At the outset -
Judge Koeltl: The claims against Pompeo is sole for damages, under Givens, and against the government if for injunction relief?
AUSA Barnea: Yes, your Honor.
AUSA Barnea: On standing, the plaintiffs allege no ongoing harm. Nothing has happened in seven or eight years. They do not allege any imminent plans. The information could be a file cabinet.
Judge Koeltl: They do allege an ongoing concern, that the information seized could be disseminated. They want the return of the information now. AUSA Barnea: They are just hypothesizing.
Judge Koeltl: They are saying, your continuing detention of my information is harmful. Do you have any case law? AUSA: The Phillips case from the 9th Circuit, albeit different... The Court said for seek expungement, plaintiff had to assert some imminent harm
AUSA: This was a one-time event. The cases they cite are about ongoing harm, like siphoning up metadata and querying it. That was ongoing, in ACLU v. Clapper. Here, they can't ask for injunctive relief.
AUSA: Plaintiffs allege with the Spanish defendants were approached by the CIA. But even if true, it doesn't prove that the CIA controlled the Spanish defendants. Seeking information from a foreign police force does not show control
Judge: But contemporaneous monitoring was from in the US, no? AUSA: I imagine they are alleging that. But the test is not involvement, but control by the US government. Were those doing the searches controlled by the US government? Money and training is not enough
Judge: What about direction, if not control? AUSA: The Second Circuit uses the combined phrase, direction and control. So we can only hypothesize. Maybe a contractor... Even if the 4th Amendment applied, they did not have a reasonable expectation of privacy
AUSA: Government buildings commonly have security cameras. There is no expectation of privacy, like in a police station, except if privacy is promised, like in attorney meeting rooms. No one told plaintiffs that. The question is not if the CIA was listening
AUSA: Turning over their passports and electronics waived any expectation of privacy. Even if they did, surveillance would have been reasonable. The 4th Amendment does not apply to a search of a foreign citizen outside of the US. No warrant is needed
AUSA: Assange was being investigated for various criminal acts. So surveillance was reasonable. Judge Koeltl: What about the content of their electronic devices? AUSA: No warrants are required outside of the US. Judge Koeltl: What case?
AUSA: Bombings in E Africa Judge: Your papers imply a warrant is required for the contents of the phones-- AUSA: Let me clarify. They just allege conclusorily it was illegal. We put in a footnote about that. Judge: I frankly don't understand what you just said. [Laughter in the courtroom]
Judge: Don't you say the plaintiffs haven't even alleged that no warrant was obtained? I can re-read them, they were read with care initially... AUSA Barnea: No doubt, your Honor. Judge: The government should know if a warrant was obtained. Now you're saying, No
AUSA: No warrant requested under the Constitution outside the US. There are statutory -- Judge Koeltl: You reply on East Asia bombings - AUSA: East Africa bombings, In Re... Maybe it's in the reply brief... Page 8, we cited it. 2d Circuit 2008.
Judge: So all the plaintiffs have to do to make this claim survive is to replead that the warrant was required & it wasn't reasonable? AUSA: If they had standing. We'd have to study how they repleaded. If they made that type of allegation it could solve the issue
AUSA: All they allege is that someone took their phone and it was illegal. Now in a footnote they say they have more. Judge: It would seem to me unnecessarily wasteful to tell the plaintiff, motion to dismiss ruled on..
AUSA: I apologize
Judge Koeltl: Never apologize
AUSA: I was just getting to the Bivens point. Judge Koeltl: I understand it has never been applied in the context of national security and abroad. I envision that Congress would not be amenable to providing this remedy overseas AUSA: There are alternate remedies
Judge: What about qualified immunity? AUSA: I'm happy to summarize it for the court. Judge: I'm familiar with it. AUSA: All they have are conclusory statements by Mr. Pompeo, it's not sufficient to implicate him personally
Plaintiffs' lawyer Levinson: There is no doubt that the plaintiffs have standing, under ACLU v. Clapper... They would not have engaged in conversations there if they thought the CIA was listening
Judge: Listening to the government today, if you made a few more allegation about the seizure of the electronic devices, their objection would fall out. There should be a simply way to add this to the complaint and we can move on. I can accept a letter amending
Plaintiff's lawyer Levenson: That's what we proposed in Footnote 10 - a letter amendment with additional allegations. Judge: When? Levenson: In a week. Oh, Thanksgiving. Judge: Two weeks.Plaintiffs' lawyer Levenson: Mr. Pompeo wanted to crush Mr. Assange. The CIA gave software to UC Global to surveil Mr. Assange... They filmed, and video of Pamela Anderson with Mr. Assange was on David Morales' laptop. These are private actors on the payroll
Plaintiffs' lawyer Levenson: It came out that the CIA learned how Mr. Assange could get diplomatic status - and acted in hours. On the need for a warrant, see Riley v. California Judge: What about the passports? Levenson: That was to show the CIA knew they were US
Plaintiffs' lawyer Levenson: We are not alleging a 4th Amendment violation for photographing the outside of a passport. I had to show my passport to get into the building today. But Riley is about the content of the phone Judge: And surveillance of the meetings?
Plaintiffs' lawyer Levenson: The government knew these were American citizens, and they were being surveilled without a warrant. Judge: Any case on this, privacy in a foreign embassy? Levenson: There is no case like this. There are prison cases cited by the US
Plaintiffs' lawyer Levenson: These were not prisoners. These were lawyers going to meet a client. Judge: But you can expect surveillance in an embassy, just like in this courthouse. Levenson: These were private areas, journalists were there to see a source
Plaintiffs' lawyer Levenson: The government is relying on terrorism cases. That's not what this is... We allege that took photos, inside the phone, "of something called the IEMI card," that gives them access to information.
Judge: Bivens? Levenson: This is worse Plaintiffs' lawyer Levenson: A phone is more private than a home: it could have compromising photos. Riley v California in 2014 made it clear that phones are off limits. Judge: The Supreme Court has only found Bivens violations 3 times Levenson: Phones are worse
Plaintiffs' lawyer Levenson: There are no national security implications to these meeting. These are not people crashing the border. They are not on a watchlist or no-fly list. Judge: No one has suggested that they are [Again, laughter in the courtroom]
Judge: The danger the US is asserting is Mr. Assange. Plaintiffs' lawyer Levenson: He is not the plaintiff here. These visitors were surveilled. Judge: Anything further? AUSA Barnea: We have no cases on this on Westlaw. What about police stations?
AUSA Barnea: A court concluded even police don't have an expectation of privacy in the precinct. Also the Port Authority, a nurses office - there was a secret camera but that was found to be OK. There are surely security cameras in this courthouse
AUSA Barnea: Last point. These IMEI numbers, they are simply written on the phone, they are not the content
Judge: I'll take the motion under advisement. I look forward to the letter.
On December 19, Judge Koeltl issued an order granting the Government's request to dismiss Pompeo (on a Bivens claim) and on communications with Assange and photographing of passports and devices - but DENYING the motion to dismiss as to the contents of the phones: "the Government’s motion to dismiss the plaintiffs’ claim against the CIA with regard to the seizure of the contents of the plaintiffs’ electronic devices is denied." Full order on Patreon here.
On April 11, four days before its motion's due date, the US Attorney's Office wrote it asking to submit a classified "ex parte" submission, from Director William Burns and a memo of law. Meanwhile, Inner City Press recently won an order in the Joshua Schulte case unsealing CIPA transcripts.
On May 24, 2024, the plaintiff responded that the CIA's motion to dismiss is wrong on the applicable standard: it is not whether it involved classified information but rather if the information poses a threat to national security. Plaintiffs note that the facts in the case are not a "secret" as they have already been the subject of testimony in court proceeding including in Spain and the UK, where Assange recently won the right to a full appeal of extradition to the US. Watch this site.
Inner City Press will stay on the case.
Back on October 13, Judge Koeltl pushed the initial pre-trial conference back to February 21, 2023: "ORDER granting [13] Letter Motion to Adjourn Conference. Adjourned to Tuesday, February 21, 2023, at 2:30 PM. SO ORDERED."
On November 29 Morales' and UC Global's lawyer filed a denial full of misspellings, such as pointing to Wikipedia to state that "purpouse [sp] far from acting as journalistic information whose sole purpose is dissent and media manipulation in order to influence public opinion with the clear intention of destabilizing the interests of Western countries," etc.
On December 8, Judge Koeltl ruled starting " ORDER: The plaintiffs in this action have served all four of the defendants. See ECF Nos. 15-19. For two of those defendants, the Central Intelligence Agency ("CIA") and Michael R. Pompeo, the deadlines to answer were November 9, 2022, and November 18, 2022, respectively. To date, neither of those defendants has answered or otherwise responded to the complaint. The time for these two defendants to answer is extended-" full Order on Patreon here.
And this: "NOTICE OF APPEARANCE by Jean-David Barnea on behalf of Central Intelligence Agency, Michael R. Pompeo..(Barnea, Jean-David)."
On February 21, Judge Koeltl ordered: "on December 8, 2022, the Court directed those defendants to obtain local counsel and to ensure that such local counsel filed a notice of appearance and, if necessary, an application for admission pro hac vice on or before January 30, 2023. See ECF No. 21. The Court also directed those defendants to submit a letter, with local counsel's assistance, indicating whether the November 29, 2022 submission was intended as an answer to the complaint or a motion to dismiss. Id. That letter was due no later than February 10, 2023. To date, there has not been any appearance by local counsel for Mr. Guillen or for Undercover Global S.L., and the requested letter was never filed. The Court notes, as it did in its prior Order, that Mr. Guillen may proceed prose, but that Undercover Global S.L., as a corporate defendant, must appear by counsel. The time for Mr. Guillen and Undercover Global S.L. to retain local counsel is extended to March 21, 2023. Local counsel should file a notice of appearance and, if needed, an application for admission pro hac vice by that date. By April 7, 2023, local counsel for Mr. Guillen and for Undercover Global S.L. (or for only Undercover Global S.L., in the event Mr. Guillen chooses to proceed prose) should file a letter indicating whether the November 29, 2022 submission (ECF No. 20) was intended as an answer or as a motion to dismiss. If local counsel wishes to file a new responsive pleading or motion, local counsel may request an opportunity to do so in that letter. If Mr. Guillen chooses to proceed prose, he should file his own letter meeting the same requirements by the same deadline. The plaintiffs are directed to serve a copy of this Order and of the Court's December 8, 2022 Order (ECF No. 21) on both Mr. Guillen and Undercover Global S.L. and to file proof of such service on the docket by March 3, 2023. SO ORDERED. (Signed by Judge John G. Koeltl on 2/21/2023)."
Inner City Press will continue to cover the case.
On August 16, the case was assigned to SDNY District Judge John G. Koeltl, of whom Inner City Press has so far reported on 223 cases. It will report on this one. There was an earlier notice: "info for these parties has been modified: Margaret Ratner Kunstler, Deborah Hrbek, John Goetz, Charles Glass, CIA, Michael R. Pompeo, David Morales Guillen, Undercover Global S.L.," tweeted here.
It is Kunstler, et al. v. Central Intelligence Agency, et al., 22-cv-6913 (Koeltl)
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