Late last week, CNN reported that the Justice Department is close to bringing criminal charges against Julian Assange, the founder of Wikileaks and a longtime resident of the Ecuadorean Embassy in London. Attorney General Jeff Sessions stated that Assange’s arrest is now a “priority.” DOJ has struggled for some time to determine whether and how to charge Assange. Part of the difficulty comes from articulating distinctions between what Assange did and what reputable news outlets do when they publish leaked information. Below I consider possible charges against Assange, summarize the foreign legal proceedings to date, and then explore how a U.S. extradition request to Sweden (or the UK!) might play out.
The New York Times reports that DOJ might bring charges against Assange related to theft of government documents. His underlying actions might implicate a variety of criminal statutes, including provisions found in the Espionage Act (18 U.S.C. §§ 793-98). However, the United States might be trying to avoid indicting Assange for espionage-related offenses, for reasons discussed below. Other statutes that DOJ might be considering include 18 U.S.C. § 641, which makes it unlawful for a person to receive any record or thing of value of the United States with intent to convert it to his use or gain, knowing that it was stolen. (The punishment is a fine or up to ten years’ imprisonment.) However, the U.S. Attorney’s Manual establishes a policy of not bringing charges under section 641 when the subject of the theft is intangible government property such as information; the defendant used the property primarily for disseminating it to the public; and the property wasn’t obtained by wiretapping, criminal entry, or trespass (which factors would seem to be met in the Wikileaks context). The Manual states that the policy is designed to protect members of the press. Perhaps the Justice Department is considering revising this policy in the Assange case?
Another option might be 18 U.S.C. § 1030(a)(1), which punishes the willful communication or transmission of classified information retrieved by knowingly accessing a computer without or in excess of authorization, with reason to believe that such information could be “used to the injury of the United States, or to the advantage of any foreign nation.” Although the statute does not specifically address a third party’s receipt of this information, DOJ conceivably might assert criminal liability against someone like Assange as a conspirator, aider/abetter, or accessory after the fact. Indeed, DOJ may have a theory that Assange actually helped Manning steal classified material from Departments of Defense and State. Something else DOJ must wrestle with is whether the Espionage Act and section 1030 apply extraterritorially to non-U.S. persons.
Assuming that DOJ actually indicts Assange and seeks to gain custody of him, what would that process look like?
Legal Proceedings to Date
To date, Assange has resisted mightily Sweden’s attempts to investigate his alleged crimes. In 2010, a Swedish prosecutor issued an arrest warrant for him, to question him about a rape allegation. Sweden filed a European arrest warrant and Interpol issued a Red Notice for Assange, who voluntarily appeared before a judge in the United Kingdom. The UK judge granted bail, but in June 2012, a few days after the UK Supreme Court affirmed that the UK would grant Sweden’s surrender request, Assange sought and received political asylum in the Ecuadorean embassy, where he has remained since. Unlike in traditional extradition arrangements, where the executive branch makes a final decision about extradition, a judicial authority makes that decision under the European arrest warrant regime. Thus the Supreme Court’s decision was the last word on Assange’s “surrenderability” to Sweden.
Assange’s purported reason for holing up in the Ecuadorean embassy is that he fears being extradited from Sweden to United States, where he is worried about being subjected to the death penalty.
Years of wrangling about whether, where, and how to interview Assange followed his withdrawal into the Ecuadorean embassy. A Swedish court affirmed the arrest warrant as recently as September 2016 (in response to a challenge by Assange). In November 2016, at the request of the Swedish prosecutor, an Ecuadorean prosecutor interviewed Assange inside the Ecuadorean embassy and submitted a report to the Swedish prosecutors. It remains unclear whether Sweden will indict him, dismiss charges, or seek additional interviews. (For an official chronology of developments in the Assange case through January 2017, see the Swedish Prosecutor’s site here. For a useful 2012 analysis of Swedish extradition law and process, see Stockholm University’s Mark Klamberg here.)
Extraditing Assange: Steps and Challenges
So what happens now? There are a variety of avenues down which this case could proceed if the United States indicts Assange. One important early decision for the United States is whether to seek Assange’s extradition from the UK or from Sweden. After all, Assange is physically present in the UK, not Sweden. However, given how long Sweden’s request for Assange has been pending with the UK, and given that the UK courts already have deemed him eligible for surrender, it is no surprise that the UK has hinted that it would prioritize the Swedish request over one from the United States.
Let’s assume, then, that the United States plans to file an extradition request with Sweden, on the chance that Assange ends up there. The U.S.-Sweden framework for extradition is governed by the U.S.-Sweden extradition treaty of 1961, the supplementary agreement of 1983, and the 2003 U.S.-EU Extradition Agreement (which supplements and modifies the bilateral treaties the United States has with the various EU member states). The 2004 integrated text of the current U.S.-Sweden Convention on Extradition (the “Convention”) is on pages 220-27 of this pdf.
Lots of tumblers would have to align in the lock before the United States could take custody of Assange. First, Sweden may decide to try him upon his return to Sweden. Article V of the Convention provides that Sweden either could defer the surrender of Assange until Sweden concluded its proceedings against him, or could temporarily surrender Assange for U.S. prosecution, to be returned to Sweden after U.S. proceedings finished – assuming Assange is otherwise extraditable.
That takes us to the second challenge. Swedish courts would have to conclude that the offense for which the United States seeks Assange is an extraditable offense. The offense of theft of government documents on its face likely meets the dual criminality requirement of the Convention (meaning that Sweden has a similar crime in its domestic law). Further, Article II(3) of the Convention states that extradition may be granted for conspiring, attempting, or participating in the commission of an offense. However, a charge of espionage might run afoul of the political offense exception in Article IV(5). That provision states that Sweden shall not grant extradition when it regards the offense as a political offense or an offense connected with a political offense. An earlier Foreign Policy article reports that Swedish courts consistently have concluded that espionage is a political offense. This is one reason why DOJ prosecutors presumably are focused on using criminal statutes that look less like espionage statutes and more like run-of-the-mill theft statutes. Indeed, DOJ officials may be consulting with their Swedish counterparts to understand how Swedish courts are likely to treat various U.S. charges.
Third, assuming a Swedish court deemed the U.S. charges to be extraditable offenses, Sweden would have to obtain permission from the United Kingdom before it could extradite Assange to the United States. The idea that a requesting state (here, Sweden) may only try a person for the specific offense(s) for which the requested state (here, the UK) granted extradition is known as the rule of specialty, and is contained in Article VIII of the Convention. The UK therefore would have to consent to allow Assange to be tried for crimes other than the possible rape offense for which Sweden has sought his surrender.
Fourth, Sweden would seek death penalty assurances from the United States before granting extradition. Article VII provides that when the offense for which extradition is sought is punishable by the death penalty, the requested state may grant extradition conditioned on the individual not receiving the death penalty, and the requesting state must comply with that condition. This is a pretty standard provision, and simply means that the United States would have to give Sweden assurances that Assange would not receive the death penalty if he were tried and convicted of an offense punishable by death. (Of course, the political offense exception makes it very unlikely that the United States would be able to try Assange for espionage, certain variations of which do carry the death penalty.)
Fifth, some have speculated (without any foundation) that Assange might be tried in a military commission. However, Article IV(3) of the Convention precludes extradition when the person sought will be tried in an “extraordinary tribunal or court.”
In short, there are (to quote Jimmy Cliff) many rivers to cross before Assange finds himself standing trial in a U.S. courtroom. Not least, Assange will need to emerge from his London hideout to face the music in Sweden.