The fight over Julian Assange has shown no sign of slowing down.
In April 2019, the IELR Blog reported on the arrest and potential extradition of Julian Assange. Upon gaining asylum status in 2012, Assange resided in the Ecuadorian embassy in London. However, almost immediately after having his asylum status revoked in April 2019, British authorities arrested Assange for his previous refusal to appear before the court. The U.S., which had released a sealed indictment against Assange in March 2018, unsealed the indictment and lobbied for his extradition. The U.S. charged Assange with conspiracy to commit computer intrusion, claiming that he worked alongside Chelsea Manning in an attempt to hack into and steal classified U.S. documents relating to the wars in Iraq and Afghanistan.
In May 2019, Assange’s case became more complex when Sweden expressed their desire to extradite him as well. Sweden originally sought Assange’s extradition from the UK in 2010 on rape allegations. Though the UK courts approved Sweden’s request, Assange’s acquisition of asylum status prevented the UK from carrying out the extradition. Sweden continued their investigation into Assange until 2017, believing that, as long as Assange remained under the protection of the Ecuadorian embassy, no substantive process could be made in the case against him. That changed when Ecuador stripped Assange of his asylum status. Sweden reopened their case against Assange, and made clear their interest in his extradition. Yet with the U.S.’s competing claim, it lies in the hands of UK Home Secretary Sajid Javid to decide who, if anyone, will receive Assange.
On May 23, 2019, the U.S. raised the stakes, charging Assange with 17 additional crimes in violation of the Espionage Act. According to the indictment, the U.S. has charged Assange with conspiracy to receive national defense information, obtaining national defense information, and disclosure of national defense information, all alongside the initial charge of conspiracy to commit computer intrusion. The indictment stresses that Assange generally directed Manning to steal vast number of secret documents, including State Department cables, documents on the wars in Iraq and Afghanistan, and Guantanamo Bay Detainee assessment briefs. Manning initially released these documents, the indictment notes, in response to a list published by WikiLeaks titled “Most Wanted Leaks” in 2009. Eventually, she entered into direct communication with Assange. For example, when Manning noted that she may have run out of classified documents to illegally disclose, Assange noted, “curious eyes never run dry.”
The decision to expand the indictment against Assange has sparked serious controversy, with many believing the move an attack on press freedom. Though the Obama administration considered prosecuting Assange under the Espionage Act, they chose not to do so. Nevertheless, presidential administrations have applied the Espionage Act more frequently since George W. Bush’s second term. But even as administrations have recently turned to the Espionage Act, they typically prosecute officials that provide confidential information to outside sources, not the outside sources themselves. No outside source, such as a journalist, has even been prosecuted under the Espionage Act. In 2005, two lobbyists representing a pro-Israeli group received and transmitted confidential information relating to U.S. policy regarding Iran. While the U.S. attempted to prosecute them under the Espionage Act, they dropped the charges after a number of unsuccessful pretrial rulings. The Department of Justice (DOJ) did not state why they have decided to prosecute Assange under the Espionage Act. Instead, they have remained consistent in their main argument: WikiLeaks’ publication of confidential U.S. documents has endangered people.
There is potentially truth to this claim, though it is difficult to confirm. In 2010, the Taliban stated that they reviewed confidential documents published by WikiLeaks to assist in finding and “[punishing]” Afghan informers. New York Times reporters that dug through the released WikiLeaks files uncovered documents that gave away the names or identifying characteristics of dozens of Afghan informants, as well as potential defectors and individuals who cooperated with U.S. and NATO personnel. Even though Assange claimed to have withheld 15,000 of the approximately 92,000 documents published by WikiLeaks in the hope of protecting the identities of at-risk individuals, the documents still released information that risked revealing their identity, including the names of villages in which they resided, as well as their fathers’ names. Assange accepted no blame for publishing these documents, stating that, “if there are those names there, and they are at risk, this would be because of a misclassification by the U.S. military itself.”
Even with these potential consequences, many are skeptical of the DOJ’s broad application of the Espionage Act, as well as the effect that it will have on press freedom. Some legal minds have criticized portions of the Assange indictment for targeting “pure publication” – that is, the act of simply releasing the documents, not promoting their spread. Although Assange may have put individuals at risk with the WikiLeaks publications, the Espionage Act – which targets publication – would likely have been applied, albeit based around a different argument, even if specific individuals were not made at risk. The U.S. government has targeted individuals and news organizations based on the pure publication theory, but each case has fallen apart in light of First Amendment concerns.
It is possible that the UK will refuse to extradite Assange to the U.S. based on these charges. According to the U.S.-UK extradition treaty, the UK may bar extradition to the requesting state if they seek the respective individual based on their “political opinions.” This exemption, known as the political offense exemption, may well apply to Assange. Legal experts have noted that espionage-related charges typically fall under the political offense exemption, meaning that such circumstances may prevent the U.S. from receiving Assange. The U.S. has until June 11 to submit their official request for extradition to the UK. After the submission, the U.S. will no longer be able to issue any additional charges against Assange. Once both sides pass that technical hurdle, the debate will begin in earnest.
Before the U.S. may try Assange, the UK must decide where – if anywhere – they will extradite him. Sweden’s rape allegation against Assange was initially viewed as more serious than Assange’s single allegation of conspiracy to commit computer intrusion. However, the U.S.’s issuance of 17 additional charges may force the UK to reconsider such a position. Simultaneously, these additional steps may have crippled the U.S.’s chances of receiving Assange because of the conflicts they create around the political offense exemption. As Assange remains in a British holding cell, the U.S. – and the world – will continue observe and react to his case, considering issues including freedom of speech and national security.
For whatever comes next, the IELR Blog will be there to monitor it.