Why Julian Assange won't give himself
up to the Americans
MICHAEL BRADLEY
Managing Partner, Marque Lawyers
He’s such a tease, that Julian Assange. First he tweets that, if President Obama grants
clemency to Chelsea Manning, he will release himself from his Ecuadorian prison and accept
extradition to the United States. Obama then commutes Manning’s 35-year sentence back to a
release date this coming May. But Assange, via his US lawyer, now says “Mr Assange had
called for Chelsea Manning to receive clemency and be released immediately”. Conditions not
met, so Assange is staying put.
For starters, bullshit. Assange did not stipulate immediate release, and commuting a sentence is
the very definition of clemency. Anyway, nobody asked Assange to get involved in Manning’s
case in the first place, so all his posturing has achieved is further confirmation that this really is
going to be the International Year of the Narcissistic Tweetstorm.
What actually is Assange’s martyrdom all about? On his narrative, he’s been holed up in the
Ecuadorian embassy in London since 2012 because the UK government wants to extradite him
to Sweden on trumped-up sexual assault charges, from where he’ll be sent on to the US, where
they want to shoot him as a spy. The real story is a little less romantic.
Why does the United States hate Julian Assange?
In 2010, WikiLeaks published the 700,000 classified files Chelsea (then called Bradley) Manning
stole from the US government while working in intelligence. The Americans were unamused and
threw several books at Manning, who was ultimately convicted of espionage and numerous other
crimes and got 35 years.
[WikiLeaks does good work. It’s not Assange who’s gone off the deep end, it’s us]
There’s no doubt that WikiLeaks and its attitude to open-sourcing the deep secrets of
government has changed the game fundamentally. Assange is a figure of major importance.
Vice-President Joe Biden called him a “cyber-terrorist”.
Has the US charged Julian Assange with anything?
We don’t know. The US Department of Justice has never announced any charges against
Assange. WikiLeaks suspects the charges may be under seal and therefore secret. It’s possible,
but there’s no evidence either way.
If Assange was ever charged, it’d be unprecedented in US history. The First Amendment offers
the most powerful free speech protection in the world, and no news organisation or journalist has
ever been prosecuted there for publishing classified material. If they had a crack at Assange, it’d
be a reflection of how much they fear WikiLeaks. It would be legally risky and a significant
political calculation.
Assange’s period of greatest risk in terms of the US is now over anyway. Obama proved to be
the most anti-whistleblower president ever, to everyone’s surprise. Donald Trump, well, who
knows what he’s likely to do about anything, but I’m guessing it won’t include addressing
questions that look hard, and he has tweeted favourably about Assange (on which measure,
Alec Baldwin may be facing lese-majeste charges soon).
What about Sweden?
There are two schools of thought. One says that he allegedly sexually assaulted two women in
2010. The other holds that his innocence is obvious and there’s an inter-governmental
conspiracy. Call me a lawyer, but I’m a fan of these things being resolved in court rather than by
social media.
The facts are that Swedish authorities issued an arrest warrant for Assange in 2010, he was
arrested in London, given bail and then in 2012 ordered to be extradited to Sweden. Instead, he
entered the Ecuadorian embassy. Ecuador has granted him asylum, but he can’t physically get
there. (Actually, since the coppers ended their 24/7 vigil, it probably would be feasible to sneak
him onto a boat and float to Quito, which makes me wonder again how badly Assange really
wants to escape the limelight.)
[Rundle: Rorschach test of Julian Assange rape claims gets more distinct]
In 2015, two of the charges against Assange became time barred, but the allegation of rape
remains and can still be turned into a criminal charge if the Swedes ever get their hands on him.
As to whether the UK would put Assange on a plane to JFK if he stepped out into the
Knightsbridge night, there’s no reason not to assume that they’d follow through with the more
legally pressing imperative of extradition to Sweden. It is, if it needs repeating, an allegation of
rape that he faces. Journalistic freedom and WikiLeaks’ social mission are not part of that
equation.
Assange and extradition to the US
Whether from the UK or Sweden, Assange’s risk of extradition into American hands is anything
but assured. There are a few legal hurdles and none of them small.
Apart from question marks over whether the US offences with which Assange might be charged
fall within the relevant extradition treaties, those treaties expressly exclude extradition in the case
of “political offences”. Traditionally, espionage, along with treason and sedition, has been treated
by the courts as a political offence.
There’s also then the problem that Assange could, hypothetically if convicted of espionage
offences (and his lawyers have assiduously argued this point), face the death penalty in the US.
The European Convention prevents extradition where the defendant is exposed to that outcome,
and there is precedent for the proposition that the US prosecutors would be unable to offer a
binding assurance that it would not be sought against Assange even if they had no such plans.
All of this is untested and worthy of a very long textbook, but the point is that Assange is in reality
far less likely to end up cuffed to a US marshal on a transatlantic flight than has been suggested,
should he go out for a walk.
Stripping it back
A simple counterfactual may assist in working out what’s really happening here. Say the Swedish
rape allegation had never come up. The Manning disclosures on WikiLeaks had already
happened, which means that Assange was as exposed to US prosecution before he knew he
was facing Swedish charges as he was afterwards.
Assange was at risk of extradition to the US from the UK any time from the WikiLeaks publication
in 2010 up until when he entered the embassy in 2012. That risk didn’t go up or down. The only
thing that changed was that he was ordered extradited to Sweden. His risk of extradition from
Sweden to the US wasn’t different to the already existing risk from the UK.
It’s all a bit strange, and tempting to conclude that what’s been playing out in the Ecuadorian
embassy all these years (and it appears for more to come) isn’t so much a freedom fighter’s
travail as a really long temper tantrum.
By the way, the remaining potential Swedish charge of rape will become time-barred in 2020.