U.S. attorneys requesting that a British court extradite WikiLeaks founder Julian Assange may have to wait behind Swedish authorities who, along with UK authorities, could block the U.S. from gaining custody.
Assange, arrested Thursday in London after six years of confinement to the Ecuadorian embassy, was detained on two separate warrants from the U.S. and Sweden after Ecuador’s president revoked his asylum protection.
The first warrant stemmed from allegations that Assange disregarded bail conditions in a 2010 case in Sweden involving rape and sexual assault claims. The second warrant, issued at the request of U.S. attorneys, stemmed from a federal indictment unsealed Thursday claiming Assange conspired to hack into a U.S. Defense Department computer.
‘Assange would not be handed over to the U.S.’
The U.S. Justice Department issued a provisional request for Assange’s extradition based on an indictment filed under seal in March. In March 2010, the indictment alleged, Assange agreed to help former U.S. Army intelligence analyst Chelsea Manning gain unauthorized access to a U.S. Defense Department computer that stored a password to a network housing classified information.
Swedish authorities dropped criminal allegations against Assange in 2017 and on Thursday announced a request to resume their nearly decade-old investigation, which could mean a second request for Assange’s extradition if prosecutors refile charges.
Gary Botting, a Canadian attorney with expertise in extradition laws, said under that scenario, Sweden would have the upper hand.
“Under its treaties and the European Arrest Warrant system, Sweden takes priority, if it chooses to make an extradition request,” Botting said.
Botting said Sweden is unlikely to resurrect its case because of a statute of limitations deadline that would require it to refile charges against Assange by 2020. However, the possibility is not out of the question.
“There could be an agreement between any two of the three nations as to how they would proceed, but if the UK were to say no to the U.S. and yes to Sweden, Assange would not be handed over to the U.S. by the Swedes when they were through with him,” Botting explained. Such a handover, he said, would legally constitute double jeopardy.
“Since it is likely that Sweden will let sleeping dogs lie, the real question is whether the UK will indulge the U.S. by sending Assange directly to America.”
‘Requesting him is political’
Under UK law, and laws regarded by other Western countries including the U.S., extradition may not be granted if the motive is deemed political. Assange’s organization, WikiLeaks, was deeply tied to the 2016 presidential election in the U.S. because it released emails from the Democratic National Committee and from Hillary Clinton’s campaign manager.
“It has a huge political impact,” Botting said, “especially since [President] Trump referenced WikiLeaks at least 140 times in his political campaign.”
“I do expect that Assange will be protected from extradition to the U.S. on the grounds that motive for requesting him is political,” Botting said.
He added, referring to former National Security Agency contractor and whistleblower Edward Snowden, “Except for Snowden, I can’t think of an non-politician more politicized than Assange.”
Botting said even if U.S. attorneys give assurances to the UK that the conspiracy charge is not politically motivated, a UK extradition judge may not agree.
Under traditional extradition rules, the “rule of specialty” or doctrine of specialty limits the prosecution of extradited defendants. The rule mandates that defendants may be prosecuted by the requesting country only for offense(s) for which the foreign country agreed to surrender the defendant.
“It’s a fundamental feature of extradition law,” Duncan Levin, a criminal law attorney and former federal prosecutor with the U.S. Justice Department told Yahoo Finance.
In theory, the rule would protect Assange from being charged with additional crimes, once handed over to U.S. authorities, though Botting said Assange and other defendants facing extradition cannot rely on the rule’s protection.
“[T]he rule of specialty has morphed from protection of the individual to an agreement between states,” he said. “Thus if the United States wishes to pursue other charges than those identified in the extradition request, it merely has to negotiate that with the UK.”
Duncan said the rule is not always enforced because its inclusion in treaties is custom, rather than codified law.
“Judges from the United States and judges internationally disagree often about what can be prosecuted pursuant to an extradition,” Levin said. “And while the doctrine of specialty is widely recognized, it may very well be that a US judge will allow a broader prosecution on more offenses. It happens a lot and it may very well happen here with Julian Assange.”
If extradited to the U.S. on the charge of conspiracy to commit computer intrusion, Duncan said Assange’s case is likely to go to trial.
‘It’s the kind of case that is very likely to go to trial because the issues are not necessarily so clear about whether this is protected press freedom or something much more illegal,” Duncan said.
In Assange’s case, two issues may be whether WikiLeaks — a nonprofit that publishes news leaks — is considered a news organization, and whether Assange is considered a journalist. “On some measure the question presented is whether journalists can encourage sources to commit illegal acts, and whether that is a criminal violation to work in concert with a source. Is it normal journalistic encouragement of a source…or has it crossed over to a conspiracy to hack computers and break laws?”
According to the Justice Department’s indictment, Assange “agreed to assist Manning in cracking a password stored on U.S. Department of Defense computers connected to...a U.S. network used for classified documents and communications,” and “Manning provided to Assange part of a password stored on U.S. Defense Department computers.” The indictment did not explain whether the alleged partial password was tied to access to specific documents, though referenced a March 2010 communication from Assange to Manning in which Assange stated he had been trying to crack the password with “no luck so far.”
At the time of his arrest Thursday, Assange had already spent more time confined to the Ecuadorian embassy than the maximum allowable sentence permitted under his current U.S. charges.
Alexis Keenan is a former litigation attorney and previously produced live news for CNN. Follow Alexis on Twitter at @alexiskweed.
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