The US struck a secret deal to seize computers and documents, including legally privileged files, belonging to WikiLeaks founder Julian Assange days before he was evicted from the Ecuadorian Embassy.
Three days before Assange’s arrest on 11 April 2019, the Office of International Affairs asked Ecuador to seize all evidence from the embassy and hand it over to a UK-based FBI officer to transfer to the US.
The disclosure follows evidence that legal meetings between Assange and his London-based solicitor, Gareth Peirce, who represented him in the extradition hearings last week, were secretly placed under surveillance.
Assange’s defence lawyers argue that the seizure of legally privileged communications from the embassy are an abuse of the legal process.
This “constitutes the most serious breach of one of the most fundamental safeguards known to the common law”, they argue in written submissions.
Ecuador asked to hand Julian Assange’s records to FBI
The US Department of Justice sent a “highly confidential” request to Ecuador in anticipation of Assange’s imminent arrest, according to evidence disclosed last week.
The request dated 8 April 2019 required Ecuador to seize Assange’s files and property from the embassy and that “these evidences be handed over to a representative of the UK FBI to hand over the property to the USA”.
Assange was ousted from the embassy and arrested three days later after the president of Ecuador, Lenin Moreno, withdrew asylum status from Assange.
The rooms in the embassy were sealed and staff told to stay away for a week, but it later emerged that the seals had been broken and replaced with seals marked “for judicial purpose”, according to Peirce’s witness statement.
Security guards were able to access the rooms, and a consul official took an inventory of items in each room of the embassy, which has not been disclosed to Assange’s lawyers, she said.
An Ecuadorian intelligence agent and an embassy official sent USB sticks found in the embassy by diplomatic pouch to Ecuador.
Legally privileged files missing
When Assange’s solicitors, Birnberg Peirce, collected Assange’s possessions over a month later, they found all the legally privileged material missing apart from two volumes of supreme court documents and several pages of loose documents.
The missing items included a plastic bag of “legal documents” dated between 2008 and 2010 and documents marked “legally privileged” that were identified in a press photograph released by the Ecuadorian government.
Carlos Poveda, a lawyer representing Assange in Ecuador, attempted to recover the documents from the Ecuadorian authorities in December 2019. He was allowed to inspect five files, each containing 100 pages, which were said to be a record of the items taken from the Ecuadorian Embassy in London.
Photographs in the files showed that the seals placed on the door to the front room of the embassy, which was used by Assange, and the computer room, had already been broken.
Other photographs showed folders, portfolios and notebooks, some clearly marked “WGAD (UN Working Group on Arbitrary Detention)”, “Pompeo” [the US secretary of state]” and “legal planning” had gone missing.
Proveda was told that that the material was the subject of a mutual legal assistance request from the US and that no copies of the material would be kept by Ecuador once the documents had been sent to the US.
US prosecutors argue that any legally privileged material in its possession would be the subject of review by a “taint team” and would be excised by the prosecution before a trial.
The UK government said in legal submissions that The United States Code of Federal Regulations “require the [US] government to employ specific safeguards to protect the attorney-client privilege and to ensure that the investigation is not compromised by exposure to privileged material relating to the investigation or to defense strategy”.
Alleged surveillance on Assange lawyers
According to Peirce’s written evidence submitted to the court, the private company responsible for security at the embassy, UC Global, secretly recorded legally privileged meetings between Assange and his legal advisors.
On one occasion, photographs were taken of a file belonging to Assange’s Spanish lawyer, Aitior Martinez, when he left the room for a private consultation.
Anonymous witness statements by two former UC Global employees claim that the senior Spanish lawyer representing Assange, Baltasar Garzón, was followed and photographed and that his offices were burgled after the idea was mentioned by David Morales who ran UC Global.
Potentially more significantly for the London extradition case, UC Global allegedly surveilled meetings between Assange and his solicitor Gareth Peirce on 6 December 2017, 19 December 2017 and 14 January 2018. Peirce said she had seen surveillance material related to the meetings but disclosed no further details in her evidence.
UC Global replaced CCTV cameras in the embassy with cameras that could record audio in late 2017 (see video below).
Footage seen by Computer Weekly shows that on 14 January 2018, Peirce was recorded on CCTV surveillance accompanying Assange’s Spanish lawyer. They were seen walking through the kitchen area of the embassy, apparently heading in the direction of the ladies’ bathroom – one area in the embassy that Assange believed was unlikely to be bugged. There is no sound on the footage.
Peirce said in her witness statement that she was wholly unaware of the surveillance at the time. “I do not comment here upon my own reactions to the discovery, but comment only generally that there has prevailed, as a consequence, an exceptionally high level of anxiety and fear that legal interviews with Mr Assange are continuing to be monitored,” she said in the statement.
The surveillance has had a chilling effect on the ability of Assange’s legal team to prepare for the extradition proceedings. “This fear, triggered by the clear evidence that had been taking place over a number of years, has had a chilling effect upon preparation for these extradition proceedings,” she said.
Spain’s national court in Madrid is investigating allegations that UC Global founder Morales had a side deal to supply surveillance material from the embassy to “American friends” – alleged by two former UC Global employees to have links with US intelligence – following a criminal complaint filed by Assange’s Spanish lawyers in July 2019.
Video produced by Computer Weekly managing editor (technology) Cliff Saran.
UK prosecution lawyers argue that the surveillance allegations are “wholly irrelevant” to the case. The charges against Assange relate to events between 2009 and 2011 – five years before surveillance took place, and therefore have no impact on the case against Assange.
They said in written submissions that there is “nothing in the defense case to show any privileged materials gathered in the embassy are deployed against Assange in his extradition”.
Impact of lack of access to documents
Peirce said in her written evidence that the US seizure of legally privileged evidence from the embassy had made it difficult for Assange to reconstruct the activities of WikiLeaks in 2010 and 2011 – the general timeframe of allegations filed by the US.
Had Assange been notified in 2011 of the allegations against him and his extradition, she said, he would have had access to computer records, phone records and communications with WikiLeaks partners, and those of his immediate associations, over the history of control and access to encrypted data. “Almost none of that data is now available,” she stated.
Peirce said some of Assange’s closest advisors have died, including Michael Ratner, president of the US Centre for Constitutional Rights, barrister John Jones QC and Gavin McFadyen, a respected figure of huge importance to both WikiLeaks and Assange.
Without access to the records in the embassy, Assange has been unable to reconstruct records of his conversations with them, she said.
Belmarsh Prison only agreed to allow Assange to view electronic material provided by his lawyers on a computer in January this year, Peirce states in evidence. The prison apologised that it had misunderstood Assange’s needs, following requests for assistance over the previous six months.
The US Department of Justice has not suggested it will return that material “even though attention has been drawn to the existence of recordings that could play an evidential part in the extradition hearing”, said Peirce.
US prosecutor Gordon Kromberg said in a witness statement that “no privileged communications will be used against Assange in criminal proceedings”. He said that if the fruits of any surveillance in the embassy exist, they will not be reviewed or used by prosecutors and that any use of privileged materials against Assange would be barred by US law.