New York judge invokes state secrets privilege to prevent disclosure of Spanish company’s espionage against Assange

A New York judge has dismissed a lawsuit filed by a group of journalists and lawyers against the CIA and David Morales, a Spanish security contractor whose company UC Global spied on Julian Assange during his seven years living inside Ecuador’s embassy in London. In his decision, Judge John G. Koeltl said the CIA could invoke the state secrets privilege, citing “serious national security repercussions for the United States” if the agency were forced to reveal whether it gathered intelligence in a foreign embassy.

Two American lawyers and two journalists sued Mike Pompeo, former director of the CIA and former Secretary of State during the first Trump Administration (2017-2021), as well as the CIA itself and the owner of UC Global, which provided security at the Ecuador Embassy in London during the Rafael Correa administration. The plaintiffs were victims of espionage and their mobile phones were searched when they visited the founder of Wikileaks — now a free man — who took shelter in the embassy between 2012 and 2019 to avoid extradition.

The decision by the New York court judge supports the request by former CIA director William J. Burns, who last year invoked the National Security Act of 1947 and the Central Intelligence Agency Act of 1949 to not provide any information “because it could cause serious damage to the security of the United States.”

Privileges and national security

Burns, a renowned former diplomat and architect of the nuclear agreement with Iran in 2015, gave Koeltl a classified statement behind closed doors. The eight-page document, to which no one except the judge has had access, cited the CIA’s statutory privileges “to protect intelligence sources, methods and activities” at issue in the case. Weeks earlier, the judge had ruled that the Spanish company UC Global had violated the rights and privacy of the American citizens who visited the founder of Wikileaks during his stay at the Ecuadorian embassy, rights guaranteed by the Fourth Amendment.

UC Global spied on the Australian activist’s conversations with his lawyers and collaborators when he was planning his defense against the U.S. extradition request for revealing classified information about the wars in Afghanistan and Iraq. Morales was arrested weeks later and is being investigated for various crimes by a court in Spain.

The New York court said the U.S. government had demonstrated that the state secrets privilege was applicable because forcing the CIA to reveal whether it gathered intelligence in a foreign embassy “could have serious national security repercussions for the United States, even though Assange no longer lives at the embassy and UC Global no longer provides security there.”

The New York judge argues that the recent replacement of William J. Burns at the head of the CIA by John Ratcliffe does not affect the validity of the CIA’s right to invoke this privilege.

Regarding the plaintiffs’ argument that the facts reported are already in the public domain, having been revealed and published by this newspaper, Judge Koeltl argued that the U.S. Supreme Court has held that “sometimes information that has become public domain may nevertheless fall within the scope of the state secrets privilege.” The judge asks the plaintiffs if they wish to continue their complaint against Morales, since this ruling only applies to the CIA. The accusation against Pompeo was previously dismissed.

The lawsuit, in addition to denouncing the espionage, sought to have the judge authorize the discovery (the declassification) of the CIA operation, according to legal sources. The secret operation took place during the first Trump administration and the details (audios, videos, emails and documents) were revealed in 2019 by an EL PAÍS investigation that the victims presented to the court as evidence.

Julian Assange returned to his native Australia as a free man in June after 12 years of confinement in London, first at the Ecuador embassy and later at Belmarsh prison, and after pleading guilty to espionage in a U.S. court in the Northern Mariana Islands. The move ended a long-running citizens’ campaign that had advocated for years for his release.

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