The Department of Justice’s release of a superseding indictment accusing Julian Assange of numerous Espionage Act violations has stirred grave concern among defenders of a free press. They are right to be worried. Although prosecutors have considered bringing criminal charges against those who publish national defense information on several occasions in the century since the Act’s passage, a grand jury has not been empaneled since WWII—and even it returned no indictments. Alarm over the future of the First Amendment in the age of mass leaks, however, has relatively obscured the threshold question of whether Assange is likely to stand trial at all. If he is not, it would change the calculation for how many people view these ongoing developments.
Why might Assange not stand trial in the United States for espionage? As I’ll discuss in detail shortly, the US-UK extradition treaty may strictly prohibit it. Espionage is generally considered a political offense, and the treaty forbids extraditing someone charged with political offenses. Those very clear legal propositions raise the questions of why the Justice Department added these charges, what fate really lies in store for Assange, and whether a U.S. federal court will get an opportunity to scrutinize the Assange indictment under the First Amendment.
While the new charges may signal an intention to put Assange away for many years, they could alternatively be read as a sign that the Justice Department recognizes the weaknesses in its case for extradition. If prosecutors believed Assange to be beyond their grasp upon issuing the espionage indictment, this would effectively demote it from a genuine charging document to a more symbolic statement—proof of the United States’ ability to investigate exfiltration of secret government data and of its preparedness to prosecute those who publish it. Whether this symbolic gesture intends to deter future WikiLeaks-like activities or to intimidate traditional journalists (or both) would then become a legitimate question, but still mostly a theoretical one. It would also mean, of course, that the Sessions-Barr Justice Departments have put down a marker—the precedent of indicting a publisher under the Espionage Act—without having to undergo First Amendment scrutiny by the courts.
On the other hand, if prosecutors still considered extradition likely, then one must ask why they have gone out of their way to complicate their mission by invoking espionage. In this version of events, either the Justice Department has foolishly made the case for Assange that he is being charged with a “political offense,” which is immune from extradition, or it has cunningly concluded that no such defense will stand regardless of the charges brought.
My purpose here is not to argue that a particular theory of the case is necessarily correct, but rather that one of them is likely true and that each provides a useful lens through which to understand and interpret unfolding events.
That Limited Computer Fraud and Abuse Act Charge
When shortly after Assange’s arrest on April 11, an indictment was unsealed accusing him with a single count of conspiracy to violate the Computer Fraud and Abuse Act (CFAA), many in the media breathed some sigh of relief. This charge seemed designed to narrowly target WikiLeaks without setting a precedent for prosecuting mainstream journalists in the future. Soliciting and publishing leaks are common pursuits in national security reporting. Participating in the hacking of government computers—Assange’s CFAA charge—is not.
Many legal experts also argued at the time that building the case for extradition would be fairly straightforward. As Just Security’s Steve Vladeck told CNN just hours after the arrest, “the more that the U.S. is able to sell the British government, sell British courts on the idea that [the CFAA charge] is the heart of the matter, I think the more of a slam dunk it will be for extradition.” Independent conspiracy charges are extraditable under the US-UK treaty, so long as the underlying crime is a serious offense in both countries. The critical question was whether the United States could articulate its extradition request without obliging the court to consider Assange’s political motives.
As Orin Kerr and others noted back in April, the CFAA charge was sufficiently modest to read very much as a “placeholder,” which the Justice Department could supplement in coming days. What they supplemented it with would be critical to Assange’s future.
The Mood in Britain
Extradition cases present a rich amalgam of law and politics, with the latter in a constant state of churn in Britain today. While Theresa May and Foreign Secretary Jeremy Hunt appear presently to support Washington’s request for extradition, as of the end of this week, May will be Prime Minister in name only. The struggle for power within the Conservative Party, a general election, or even a second Brexit referendum could radically alter the contending parties’ political incentives. Even Hunt, who is in contention to lead the party, hedged in his recent remarks about the Assange case. While he said he would not want to “stand in the way of the way of Julian Assange facing justice,” he also said, “we would have to follow our own legal processes just as the U.S. has to follow its own legal processes.” That’s the political-legal mix.
For its part, Labour is largely opposed to cooperating with the Trump administration’s request. The day after the arrest, party leader Jeremey Corbin spoke out against extradition, and 60 parliamentarians soon followed suit, writing the Home Secretary to argue that Sweden, not the United States, should get priory should it reopen the sexual assault investigation that sent Assange into hiding. Sweden initially announced that it will, though a Swedish judge has since denied the government’s request to detain Assange in absentia. The longer the Swedish battle plays out, the more likely it becomes that Assange waits out the Trump administration or the Tory majority.
A Way Out for Assange?: Conditions of confinement
Against that political backdrop, Assange’s attorneys will argue that extradition and continued confinement violate his human rights. Indeed, much of the discussion of Assange’s present detention revolves around his physical and mental health. His attorneys have long complained that the UK’s unwillingness to grant Assange safe passage to medical facilities has left him ill—a claim no doubt bolstered by the video broadcast around the world of the weak and haggard 47-year-old being dragged from the embassy. On the morning of Assange’s arrest, Agnes Callamard, the Special Rapporteur on extra-judicial executions, tweeted that extradition to the United States would expose Assange to the risk of suffering serious human rights violations and described his time in the embassy as arbitrary detention, a conclusion shared by the UN HRC Working Group on Arbitrary Detention since 2015.
Late last month, Assange failed to appear via prison video link for an extradition hearing, citing poor health. And on May 31, Nils Melzer, the UN Special Rapporteur on torture who had examined Assange in detention, concluded that his prolonged isolation and vilification amounted “to progressively severe forms of cruel, inhuman or degrading treatment or punishment, the cumulative effects of which can only be described as psychological torture.”
Assange’s attorneys are certain to argue, both in the British courts and, if necessary, all the way up to the European Court on Human Rights, that an American prison would amount to further torture or inhuman and degrading conditions for their client. Auspiciously for WikiLeaks founder, these arguments are of a very similar kind to those that defeated the extradition cases against Lauri Love and Gary McKinnon, Britons who were also wanted in the United States on hacking charges.
Another defense available to Assange—and perhaps his most formidable one—will be to assert that he is being charged with a political offense. If that assertion is deemed correct, it could block his extradition, because, like many extradition agreements, the US-UK treaty forbids any transfer based on such charges. The categorical prohibition under Article 4 of the treaty could not be clearer: “Extradition shall not be granted if the offense for which extradition is requested is a political offense.”
But what is a political offense? Transgressions such as espionage, sedition, and treason are what are known as “pure” political offenses, including under UK law—that is to say, activities that directly target the state but that would not necessarily be criminal in other contexts. A related category, known as “relative” political offenses, covers common crimes that are incidental to purely political activities. Because various jurisdictions have interpreted the expansiveness of this political exception differently over time, a universal definition of a relative political offense is difficult to articulate, but the basic principle of the political exception in extradition has remained unchanged since its origins in the late nineteenth century. It states, in brief, that nations should not return political opponents to face prosecution for challenging the states that would sit in judgement of them.
Over time, many species of rebel lawbreakers have been deemed beyond the pale of the political exception, which has, variously, been interpreted to exclude anarchists, assassins of heads of state, war criminals, and, more recently, terrorists. Assange’s opposition to Washington policies, by contrast, does not fall easily into these buckets. His disdain for American actions in Iraq, Afghanistan and Guantanamo Bay—the theaters of US military activity referenced in the indictment—is objectionable to those in power, but typical of many around the world. The scale of WikiLeaks’ operation was certainly unprecedented, but this scale tells us little about the nature of the ideological commitments that underpinned it.
This raises the question of whether the Justice Department could have resorted to the label of terrorism to classify Assange’s conspiracy charge as beyond the reach of the political exception. It is difficult to say. What we have seen already, however, is that the Department relied upon CFAA’s inclusion (specifically 18 U.S.C. 1030(a)(1)) in the definition of federal crimes of terrorism (under 18 U.S.C. 2332b(g)(5)) to extend the statute of limitations, which would have otherwise run in 2015. And it’s worth recalling that in 2010, at the height of WikiLeaks furor, then Vice-President Joe Biden endorsed Senator Mitch McConnell’s characterization of Assange as a “high tech terrorist.”
Even so, a court assessing the CFAA charge alone may not have looked behind the conspiracy to consider whether it was incidental to the commission of a political offense. An indictment for espionage, however, would seem to demand that level of enquiry. And, indeed, that very enquiry may determine the outcome of the case.
Each of Assange’s possible defenses are strengthened by the 17 counts of espionage—the classic political offense—announced last month. Each one carries a maximum sentence of ten years, and even if federal sentencing yields a punishment that falls below the maximum, as it typically does, Assange could easily face life behind bars. The mere possibility of this augments his attorneys’ claim that he is fighting for freedom from long-term harsh conditions.
If the Justice Department believed or still believes that it will one day try Assange for espionage, then bringing the charges while he is in Britain was appropriate under the Rule of Specialty, which requires that all substantive allegations be brought before the prisoner is rendered. Had the Department sprung new charges on him after he was in its custody, a legal challenge led either by the British or by Assange, if he could assert standing, would have ensued. Regardless of its outcome, this development would have undermined American credibility in future extradition cases.
On the other hand, if prosecutors worried that the case for extradition was already weak, then the harm of further vindicating Assange’s defenses against extradition would be minimal in comparison to the effect of putting the fourth estate on notice through an aggressive indictment.
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At least until the arrival of the Sessions Justice Department, Assange’s seven years of house arrest had essentially ossified the state of play—with the Americans neither confirming nor denying that they would bring charges, the British refusing to guarantee Assange’s safety from extradition to Sweden should he leave, and the Swedes refusing to promise they would not extradite him to the United States. Ironically, not even Sweden’s 2017 decision to drop its investigation could convince Assange to leave his bolt hole. This prolonged stasis was perhaps the reason, as much as the man’s disheveled appearance, that much of the world was shocked by the scenes of April 11. The question on everyone’s lips—“What happens now?”—needed an answer, and for many the logical assumption was that Assange would be sent to the United States. After all, if he weren’t going to be extradited, why had he imprisoned himself?
Extradition remains a distinct possibility, to be sure. But it is far from a certainty. The changing political environment in Britain, as much as the Justice Department’s own actions in accusing Assange of multiple acts of espionage, establish an environment vastly more dynamic than the seven-year standoff to which we had become accustomed. What’s next? Stay tuned.