On 7th December 2010, Dianne Feinsteinn wrote in WSJ:
When WikiLeaks founder Julian Assange released his latest document trove—more than 250,000 secret State Department cables—he intentionally harmed the U.S. government. The release of these documents damages our national interests and puts innocent lives at risk. He should be vigorously prosecuted for espionage.
The law Mr. Assange continues to violate is the Espionage Act of 1917. That law makes it a felony for an unauthorized person to possess or transmit “information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation.”
The Espionage Act also makes it a felony to fail to return such materials to the U.S. government. Importantly, the courts have held that “information relating to the national defense” applies to both classified and unclassified material. Each violation is punishable by up to 10 years in prison.
Dianne Feinstein is the US Senator from California since 1992: she was also Mayor of San Francisco from 1978 to 1988. She graduated from Stanford University in 1955: her degree is in History. She is not a lawyer, any more than I am, and while I respect her decades of political acumen, I doubt that she took legal advice before she wrote that column in the Wall Street Journal.
The US Espionage Act 1917. Section 2, paragraph 1 says that:
Whoever, with intent or reason to believe that it is to be used to the injury or the United States or to the advantage of a foreign nation, communicated ….. to any foreign government, or to any faction or party or military or naval force within a foreign country … or to any representative … or citizen thereof, either directly or indirectly and document, writing [etc] or information, relating to the national defence, shall be punished by imprisonment for not more than twenty years.
Go read it in full. The clear point is: this Act is obviously meant to apply to US citizens. No government can make a law that citizens of another country are not allowed to use information provided to them “to the injury of the United States or to the advantage of a foreign nation”.
(Julius Rosenberg and Ethel Greenglass, who are the only civilians who have been executed under the Espionage Act, were both US citizens: I know of no non-US citizen who has ever been charged under this Act.)
When President Woodrow Wilson asked Congress for this legislation in his 1915 State of the Union address he was quite clear he wanted to use it against American citizens:
There are citizens of the United States … who have poured the poison of disloyalty into the very arteries of our national life; who have sought to ring the authority and good name of our Government into contempt … to destroy our industries … and to debase our politics to the uses of foreign intrigue…. [W]e are without adequate federal laws…. I am urging you to do nothing less than save the honor and self-respect of the nation. Such creatures of passion, disloyalty,and anarchy must be crushed out.
But on 26th January 2011, Fred Burton, the vice president of Stratfor, sent a email to his colleagues. The email was explicitly not intended for publication. We know what it was, because Wikileaks leaked it this year:
“Text Not for Pub,” he wrote. “We” – meaning the U.S. government – “have a sealed indictment on Assange. Pls protect.”
Fred Burton was a special agent of the US’s Diplomatic Security Service (DSS). He was involved in the US investigation of the Lockerbie/Pan Am bombing, with what results everyone knows. (Stratfor is a company set up in 1996 by George Friedman, a former political science academic, whose Wikipedia bio says (without citation) that he used to regularly brief very senior military people on “security and national defense matters.”) Does Burton have a special inside link to what the government of the US is planning to do?
An email sent to “The OS List” (Via) includes in full a news item from Xinhuanet dated 14th April 2011: U.S. grants 34 ex-Nigerian militants visas for professional training:
The U.S. Embassy in Nigeria has issued visas to 34 former Niger Delta militants to study courses related to oil and gas and engineering, an official has said.
Kingsley Kuku, the special assistant to the president on Niger Delta affairs, said in Abuja on Wednesday at a meeting with the former militants from the region that some 4,000 militants had benefited from the various training programs since the government gave them amnesty.
An employee of Stratfor, Anya Alfano, using the email address “tactical-bounces”, sends it on to ‘TACTICAL’ with a covering note:
Just FYI, and a little bit of wow.
Fred Burton responds on his BlackBerry
Anya Alfano reacts:
Kamran can’t come in the country, but 34 militants who’ve spent their lives blowing up pipelines, stealing fuel and carrying out political assassinations are welcome, so we can entrust Nigeria’s future to them. Killing me.
Fred Burton responds on his Blackberry
Obama..its a black thing
Does this sound like top-level amazingly-well-informed national security analysis to you? (Burton is reportedly considered one of the US’s top counter-terrorism experts.) Stratfor have excellent reason not to like Assange or Wikileaks even before their internal emails were leaked; their economic justification for existing is selling information of the sort Wikileaks provides for free.
If Julian Assange is extradited to Sweden from the UK, any attempt to extradite him from Sweden by another country would have to satisfy both the UK and Swedish judiciary systems. (Note: As of August 2010, Sweden was where Julian Assange intended to live, until he fled the country rather than face police questioning about sexual assault.)
I do not see that the US has any legal grounds to extradite him. (A Grand Jury has been empanelled to investigate Wikileaks, citing 18 U.S.C. § 371 : US Code – Section 371: Conspiracy to commit offense or to defraud United States – but again: with regard to classified information or espionage, this would have to apply to US citizens or at best to activities carried out within the US.)
Dianne Feinstein again:
As for the First Amendment, the Supreme Court has held that its protections of free speech and freedom of the press are not a green light to abandon the protection of our vital national interests. Just as the First Amendment is not a license to yell “Fire!” in a crowded theater, it is also not a license to jeopardize national security.
In effect, to agree that the US legislation applies to Julian Assange, both Sweden and the UK would have to agree that no matter what a person’s actual citizenship, their first loyalty is owed to the US.
Can I say how unlikely I think that is?
Arguing that the US might just take him anyway?
I prefer to try to deal with facts. There is nothing to suggest either case. Sweden is far from being a tin-pot democracy. It is a fellow EU member and ranks amongst the very highest countries in the world for lack of corruption (Sweden is currently 4th in the Corruption Perception Index; the UK is 16th). If I personally had to go on trial anywhere, knowing I was innocent, I’d be quite happy to trust judicial process in any Scandinavian country.
The UK is interested in fulfilling its legal duty to extradite him to Sweden to face a criminal investigation. There has not, to the best of my knowledge, been any request to extradite him to the US made to either the UK or to Sweden. Arguably it would be less likely for this to take place from Sweden than from the UK in any case (see the many criticisms of our lenient US extradition policy).
Finally, both the United Kingdom and Sweden are prohibited from extraditing anyone who faces the death penalty under the European Convention of Human Rights.
The Swedish authorities cannot charge Julian Assange until he has been questioned by the police – a matter of due process. Assange has claimed he would agree to be questioned by the Swedish police in the UK, but has failed to show any reason why he should be allowed to avoid returning to Sweden (or why he should have left Sweden, where he had applied for a residency permit on 18th August). He’s also said he would agree to go to Sweden if they guarantee he will not be extradited to the US.
But no country could make that kind of open-ended guarantee. There is (as far as is publicly known) no legal basis for the US to extradite Assange for his Wikileaks activities, which is what he claims to be afraid of. Once he is extradited to Sweden to face police questioning, they will either decide to charge him or to release him: if they decide to charge him, he will go on trial and found guilty or not guilty on the various crimes for which he is wanted. If found guilty he’ll be sentenced to jail for no more than six years, probably less for good behaviour.
The UK also has a legal basis with which to charge him, since he’s undeniably skipped bail, so it’s also possible that if he were found innocent on all charges (or the Swedish authorities decided not to send him to trial) the UK might request him back.
But, so long as he is in Sweden and in the criminal justice system there, in order to get hold of him the US would either:
- Have to satisfy both UK and Swedish judiciary that they have a legal basis to extradite him
- Kidnap him by force while he’s in transit or from a Swedish jail or prison
The second action, if Julian Assange is seriously worried about it, is exactly as available to the US whether Assange is in Knightsbridge, in Sussex, in Stockholm, or in Quito.
An acute diplomatic crisis broke out between the United States and Sweden in 2006 when Swedish authorities put a stop to CIA rendition flights, according to the latest revelation from Wikileaks. (5th December 2010)
The only two people who were forcibly repatriated to their home country from Sweden at the request of the US, where they were tortured, were two Egyptians sent in 2001: the Swedish government paid compensation in 2008. Assange would if treated the same way, be forcibly repatriated to Australia. An option also available to the UK government.]
I suspect that the most safe place for the Assange for the next four to six years if he’s worried about US kidnapping would actually be a Swedish jail. Constantly under observation and surrounded by people whose job it is to make sure none of the prisoners make an unauthorised exit.
I’m not a lawyer. It’s entirely possible I’m just missing something. On what grounds could the US extradite Assange from Sweden and the UK?
Update, 18th August
Answer, from Jennifer K. Elsea, Legislative Attorney, who authored a report published on 10th January 2011 from the US Congressional Research Service:
This report identifies some criminal statutes that may apply, but notes that these have been used almost exclusively to prosecute individuals with access to classified information (and a corresponding obligation to protect it) who make it available to foreign agents, or to foreign agents who obtain classified information unlawfully while present in the United States. Leaks of classified information to the press have only rarely been punished as crimes, and we are aware of no case in which a publisher of information obtained through unauthorized disclosure by agovernment employee has been prosecuted for publishing it. There may be First Amendment implications that would make such a prosecution difficult, not to mention political ramificationsbased on concerns about government censorship. To the extent that the investigation implicates any foreign nationals whose conduct occurred entirely overseas, any resulting prosecution may carry foreign policy implications related to the exercise of extraterritorial jurisdiction and whether suspected persons may be extradited to the United States under applicable treaty provisions.
In short: a legislative attorney did the research (much more thoroughly than I did) and concluded:
- There’s probably no law that Wikileaks has broken by publishing US classified material.
- Even if in some instances it can be shown that Wikileaks broke the law, it’s doubtful that a citizen of another country whose activities all took place outside the US, could be said to have broken US law in doing so.
- Even if it could be shown that a citizen of another country broke US laws in publishing outside the US, it would be impossible to extradite that person, because it would be a political crime and extradition treaties don’t cover political crimes.
Julian Assange can go to Sweden and be perfectly safe there from US extradition.
- Section 4: Extradition may be granted only if the act for which it is requested corresponds to an offence for which imprisonment for one year or more is prescribed by Swedish law. If the person has been sentenced for the act in the requesting state, he may be extradited only if the sentence is deprivation of liberty for at least four months or other institutional custody for a corresponding period.
- Section 6: Extradition may not be granted for a political offence. If the act also constitutes a non-political offence, extradition may be granted for that offence, provided, in the particular case, the act is predominantly of a non-political nature.
The first paragraph does not apply where rejection on this ground would be contrary to an international agreement applying between Sweden and the requesting state. (SFS 2003:1158)
- Section 7: A person may not be extradited if, on account of his origin, belonging to a particular social group, his religious or political views, or otherwise on account of political circumstances, he would run the risk of being subjected in the foreign state to persecution which is directed against his life or liberty or is otherwise of a harsh nature, or if he does not enjoy protection against being sent to a state in which he would run such a risk.
- Section 8: Extradition may not be granted where in a particular case, in view of the youth, state of health or any other personal circumstances of the person concerned, due account also being taken of the nature of the act and the interests of the foreign state, it is considered to be manifestly incompatible with basic standards of humane treatment.
- Section 11: A person who is being prosecuted in Sweden for another offence, for which imprisonment is prescribed, or who has been sentenced to imprisonment or some other form of institutional custody, may not be extradited so long as that impediment prevails. The same shall apply if a preliminary investigation has been instituted with reference to an offence as aforesaid.
If Assange is charged for rape and sexual assault, he can’t be extradicted to another state while this is ongoing or if he is found guilty and jailed. For up to six years.
Notwithstanding the provisions of the first paragraph, a person may be extradited to stand trial for the act for which the foreign state has requested extradition, subject to the condition that he shall subsequently be surrendered to a Swedish authority in accordance with that which the Government decides. (SFS 1975:292)
- Section 12: When extradition is granted the following conditions, when applicable, shall be prescribed:
1. Except with special consent in accordance with Section 24, the person extradited may not be prosecuted or punished in the foreign state for any other offence committed prior to his extradition …
The US would not be able to decide to prosecute Assange for any other offence but the one they’d had him extradicted for.
2. A person extradited may not be prosecuted for the offence in a court which has only been given ad hoc or emergency powers to try such cases. The government, however, may grant exemptions from this provision where it is considered compatible with legal security to do so.
The US would not be able to try Assange in the Guantanamo Bay kangaroo courts, or any other ad hoc court – unless the Swedish government consented.
3. A person who is extradited may not have the death penalty imposed for the offence.
- Section 15: Before the Government makes a decision on the request, the Prosecutor-General shall deliver a statement of opinion on the matter. In addition, if the person referred to in the request has not consented to being extradited, the case shall be tried by the Supreme Court. The request shall, however, be rejected immediately if there is a manifest reason why it should not be granted. (SFS 1981:1090)
So Sweden won’t extradite to the US unless the US can show that Assange has committed a crime which would, in Sweden, get him at least a year’s sentence. Sweden has a very solid FOI law: Assange intended to live there two years ago.
The first paragraph would clearly block any attempt to extradite Assange using the Espionage Act. Is there any international agreement between Sweden and the US that could require Sweden to extradite Assange?
Update, from 1992 (note that Howard is a US citizen, which Assange is not):
Upsetting American efforts to return him to stand trial, Edward Lee Howard, the only Central Intelligence Agency officer to ever defect to the Soviet Union, abruptly fled back to Russia last week, hours after his release from detention in Sweden.
Mr. Howard moved to Stockholm from Moscow last year, operating as a business consultant. Pressured by American officials to expel him, the Swedish security police arrested him and conducted a brief inquiry. But in the end, the Swedish Government let him go. One reason: The treaty between the United States and Sweden does not recognize espionage as an extraditable offense.
If you wonder if this still applies, the US Congressional Research Service in 2011 notes:
The “political offense” exception has been a common feature of extradition treaties for almost a century and a half, and the exception appears to be contained in every modern U.S. extradition treaty.
The conditions in which Bradley Manning has been held, or the solitary confinement cells in US prisons, would constitute harsh treatment under ordinary EU human rights law: and unless the US can show evidence of a non-political offence – ie, not connected with Wikileaks – this would seem to apply as a “political circumstances” extradition.
Given that US politicians have called for Assange to be assassinated for acting against US interests, this section would also seem to apply.
Well, unless the Swedish government decides they’ll hand him over to the US, if the US can get past all the other blocks against extradicting Assange, but they don’t have to agree to do so and they will then have a right to get Assange back.
The US is the last superpower standing, but Sweden is a member of the EU. If the US were to provide evidence of a non-political offence for which Assange could be jailed for at least a year in Sweden, and gave guarantees to Sweden that Assange would not be tried except by a proper court for that specific offence and would not be sent to any prison where he would suffer by-EU-standards harsh treatment and would above all not be executed: then Sweden might decide to let the US have Assange – but if the US then violated those guarantees, this would be an extremely aggressive act by the US against the EU.
That looks like a whole set of reasons why Sweden would simply reject any request by the US to extradite Assange under the Espionage Act or the Conspiracy legislation.
And then, the US also has to apply to the UK for permission to extradict Assange. And no one’s yet shown me what law they’d charge him with breaking….
Julian Assange’s demand for an open-ended guarantee against ever being extradicted just isn’t realistic. If all he’s guilty of is deeply annoying the US government by publishing their classified information via Wikileaks, the US have no means of legally extraditing him by either (as far as I can see) US law or Swedish law. But how can anyone say that would be so forever?
Cecilia Riddselius, an official at the Swedish Justice Department (Scandinavia Today) “feels that the issue according to the way thinks look now, is highly hypothetical. There is yet no request from the U.S. that Assange be extradited. There have also been calls to say that it is not even likely that such application will be submitted.”
“No such guarantee is set. I can only reply at the official level. But after working with these issues for ten years, I can not see how it could become a reality.”
If Assange would return to Sweden and the request comes in, there remains a long process, which will go through the Attorney General to the Supreme Court and Parliament. It also required the consent of Great Britain and their bureaucratic process before it could be determined whether Assange would be extradited.