An Analysis on Julian Assange’s Case and Anglo-American Extradition Practice

Summary

Though under popular pressure, the Home Secretary decided to extradite Mr. Julian Assange to the United States. However, this decision may be subject to judicial review. This article mainly focuses on modern Anglo-American state practices on extradition, particularly those regarding political offense exception, and gives a conclusion on Assange’s case based upon jurisprudence.

Overview

Julian Assange is an Australian national. He is currently dwelling at a prison in the United Kingdom, and facing his extradition to the United States and up to five years in prison after he was forcibly dragged by British police force from the Ecuadorian embassy in London on April 11, 2019. In 2012, he is arrested by British police under the request from the United States. During his bailout granted by a British criminal court, he entered the Ecuadorian Embassy in London and was granted to asylum. Due to his skipped bailout, he was found guilty of failure to surrender to the court and faces up to 12 months in a British prison.

A grad jury in United States accuses Assange of 18 crimes before the East Virginia District Court. Recently, British Home Secretary decided to extradite Mr. Assange, this administrative act could be under judicial review. Assange visited Sweden in August 2010. During his visit, he became the subject of several sexual assault allegations from two women. Initially, he was questioned but allowed to leave the country because the case was closed. However, in November 2010, the case was re-opened by a special prosecutor who wanted to further question Assange. Currently, Swedish authority resumed the probe into sexual crimes. This essay will introduce States’ practices, particularly those of the United Kingdom and the United States of America, on extradition and the application of political offense exception, and examine in Assange’s case by applying relevant rules of law.

The Indictment of the US

In 2018, the only accusation made by the US on Assange is Conspiracy to Commit Computer Intrusion. In 2010, without authorization and exceeding authorized access, Assange used a computer to download information that has been banned for disclosure by an Executive order and statute to require protection against unauthorized disclosure for reasons of national security and foreign relations. The unauthorized-downloaded information contains confidential documents relating to the national defense classified as the SECRET level, which might be used to damage the US and give advantage to a foreign State. Meanwhile, his intentionally unauthorized access to a governmental computer system is alleged to be a violation of Title 18, U.S.C., Sections 641, 793(c) and 793(e). The prosecutor added 17 counts to his indictment recently. They are Conspiracy To Receive National Defense Information (Count 1), Obtaining National Defense Information (Count 2-8), and Disclosure of National Defense Information (Count 9-17).

As the key role in the indictment, Section 793 provides the offenders of these crimes can be fined and (or) imprisoned more than ten years—obtaining information respecting the national defense, copying and recording anything connected with the national defense, intentionally receiving information related to national defense, transmitting information connected with national defense, unauthorized possession of, access to and control over information concerning national defense, and directly and indirectly permitting illegal acts to information concerning national defense.

The indictment alleges that Assange was complicit with Chelsea Manning, a former intelligence analyst in the U.S. Army who was found guilty, in unlawfully obtaining and disclosing classified documents related to the national defense. Specifically, the superseding indictment alleges that Assange conspired with Manning; obtained from Manning and aided and abetted her in obtaining classified information with reason to believe that the information was to be used to the injury of the United States or the advantage of a foreign nation; received and attempted to receive classified information having reason to believe that such materials would be obtained, taken, made, and disposed of by a person contrary to law; and aided and abetted Manning in communicating classified documents to Assange.

The History of Extradition and the Political Offense Exception

An treaty concluded by ancient Egyptians and Hittites in 1258 BC maybe the first extradition agreement in history. The notion noxae deditio was further developed by Ancient Greeks and Romans. During the early modern period, an global custom provided early principles for transnational criminal justice such as compensatory prosecution and aut dedere aut judiciare. Modern extradition is usually an agreement based upon ‘mutual comity and convenience’, and always with an instrument—a bilateral or multilateral treaty—to solid details of this norm.

Whilst extradition has a long history, the political offense exception to this norm is not. In 17 century, Hugo Grotius gave an infinite definition of extradition—those crimes against public order, or atrociously criminal. At that time, people moved more constantly, provoking the need of a formalized framework amongst European States. This circumstance eventually caused the flourishing of relevant treaties targeting run-of-the-mill offenses—desertion, robbery, murder, arson, and vagrancy. Persons accused of political offenses are treated equally with other offenders. It was not until the collapse of oppression did the political offense exception born from the flame of revolution. Liberalism argued that citizens are entitled to engage in a popular revolution. For instance, the Declaration of Independence proclaims: ‘Whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it’. This principle justified the revolution in America and France, also requires the extradition mechanism to provide assistance to shelter revolutionaries who exercising the integral right. In fact, revolutionaries fled from their motherlands were welcomed by people in democratic States and treated as true patriots, and decisions to extract them often triggered demonstrations and non-compliance. In 1833, Belgium firstly adopted an act giving protection for political offenders, followed by the United States-France 1843 extradition treaty providing that any crime or offense of a purely political character is not applicable. Eventually, the Universal Declaration of Human Rights reaffirmed this exception, put it as a international custom.

Law Applicable in Assange’s Extradition

This section, together with the following section, attempts to categorize different crimes in relation to political offenses, and pragmatically analyze rules of law applicable by evaluating precedents in Anglo-American law. Dogmatical review on the treaty interpretation regime of the 1969 Vienna Convention on the Law of Treaties (VCLT) is meaningless here, because the good-faith scope of interpretation under VCLT of the treaty mentioned infra is quite large, the decision-making within the ground is fallen into the sovereignty of the UK. In other words, international law itself offers sufficient flexibility for competent British authorities to decide on their own.

The Anglo-American Extradition Treaties

On the plane of international law, sources of law are primarily international conventions and customary international law. By the end of the American War of Independence, the US and UK have concluded treaties concerning extradition. Currently, the valid extradition treaty between the US and the UK is the 2003 Treaty. The political offense exception was enshrined in article 4 of the 2003 Treaty, providing that extradition shall not be granted if the offense for which extradition is requested is a political offense. Although the purview of ‘political and military offenses’ was narrowed by the exclusion of several physical violences, e.g. killing, grievous bodily harm, unlawful detention, kinda-ting, explosion, murder against a Head of a State, etc.., the Treaty empowers the competent authority of the Requested State the discretion to decide not to send an offender to the Requesting State, even if the offender committed a crime excluded by article 4(2) from the scope of the exception. In the present case, though Assange’s act cannot be excluded by paragraph 2, he is still likely to be extradited by a British judge under paragraph 3. Clearly, whether Assange needs to be extradited to the US is an internal affair of the UK’s administrative and judiciary system. The Home Office Minister is responsible for the initial decision of an extradition case.

Two Ambiguous Categories of Political Offenses

Before deeply examining the historical practice by British authorities, it is necessary to categorize different political offenses. The first category is ‘pure’ political offenses, those acts towards a particular government, its leaders, or its mechanisms, which do not breach provisions other than political offenses. A good example of ‘pure’ offense is tweeting against a head of a State. Other apparent ‘pure’ political crimes are treason, espionage and sedition.

On the other hand, when an act is not ‘pure’, it is a ‘relative’ political crimes. Nevertheless, its purview is hard to be determined. A relative political offense is generally understood to refer to the commission of a common crime in connection with a political act or event. When the common crime concerned is a treaty offense, judges must decide whether it is on the side of politics and therefore barring the criminal from being transported to another State, or is deemed as of non-political nature, so the criminal must be extradited.

British and American Precedents, Incidence Test and the Need of a Disturbance

When exercising the discretion, courts are not expert in the boundary delimitation of ‘political offenses’, and British and American courts are not exceptions. In the In re Castioni case, the cornerstone in Anglo-American extradition law, while British Queen’s Bench failed to specifically define the term ‘political offense’ since the work was not ‘necessary or desirable (said by Lord Denman)’, it did provided the ‘incidence test’ to determine whether a crime is of political nature and therefore the suspect should not be extraditable.

The incidence test from Castinoni is commonly accepted as a jurisprudence by courts on both Atlantic coasts. In a two-step ‘incidence test’, first of all, the conduct in question must happened throughout the period of a political disturbance, revolt, or uprising. Additionally, the exception may not be applicable if the conduct concerned did not even insignificantly contributes to change, or to call upon the people to create an apparent political event.

Secondly, the conduct must at least partially or wholly constitute a political disturbance. Burden of proof regarding a connection between the conduct and the disturbance must be fulfilled. Subjectively, the conduct concerned must aiming at accomplishing political change by a method in violation of the criminal in that State. Judges should review many relevant factors, e.g. what was the spirit guiding these conducts, what was the motive of the charged conducts, how the uprising opposing parties concerned organizes and functions, and so on. However, none of the factors are decisive. Several crimes are at the very beginning disqualified from the application of the exception because their consequence are basically different from political changes.

Nevertheless, by developing and furthering the test, judiciary practices in the US and the UK localized the principles by adopted differentiated methods. Three years after the Castioni, the Queen’s Bench constrained the threshold established by this case in In re Meunièr, where a novel ‘two-party struggle requirement’ criterion was introduced to extradition case in the UK. Pursuant to this requirement, offenders may only be protected by the UK authority if he was trying to replace a government by a new one. In this sense, unlawful conducts against the general public order and security of the people may not be protected by the political offense exception. However, anarchism gradually disappeared in early 20 century and dictatorships flourished caused modifications to this requirement. By considering the Ex parte Kolczynski, a case where several Polish military sailors refused their commander’s order to come back because they believed they will receive political trail after return, the Queen’s Bench examined the evidence submitted by the soldiers illustrating that they could have received treason verdicts, and concluded that they are not extraditable. In the undisputed fact of that case, no obvious political disturbance or uprising happened. Therefore, the incidence test was largely modified and the existence of an apparent political disturbance (or other equivalent events) is no longer a compulsory precondition of non-extradition. Under this circumstance, the work of a British court in a contemporary extradition is hearing and reviewing the requesting State’s authority and its incentive, and the accused act and its motive. On the other side of the Atlantic Ocean, Quinn provides a decent complimentary source. The Ninth Circuit’s methodology overlooked the criminal’s individual conducts and incentives, but emphasized the general political background in the State concerned.

Assange’s Dilemma

Failure in Reasonable Suspicion Test

Regarding the procedural practice, since the prima facie evidence test is no longer required by the 2003 Treaty, the requirement of the burden of proof laid on the requesting State is to produce evidence to pass the reasonable suspicion test. Additionally, since Assange generally recognized the accused acts were done by himself, the room for his lawyer to dance in evidentiary matters is probably small.

Easily-Passed Dual Jeopardise Test

What British judges do in an extradition hearing is a mere examination of ‘dual-criminality’ test—ensuring that the conduct the fugitive committed is bilaterally illicit in the UK and the US. In fact, pursuant to the Official Secret Act 1989 as amended in the UK, Assange’s unauthorized gathering and disclosure of confidential information concerning defense are highly likely to be crimes. Therefore, the dual-criminality test is undoubtedly passed.

Political and Military Offense Exception, the Last Resort

Since the burden of proving a nexus between the crime and a alleged political activity or background (as what the Ninth Circuit ruled in Quinn) lays on the extraditee, the only feasible way for Assange’s counsel is establishing an argument that the US charges are politically motivated. Interpretation of the statute law in Britain is generally the same as what is included in the Vienna Convention on the Law of Treaties. But based upon the presumption that the Parliament does not breach international law, the will of the Parliament enjoys the highest hierarchy.

First of all, Assange’s counsel may attempt to anchor the sinking ship at the safe port of ‘pure political offense’, to be precise, espionage. The definition of espionage under UK law is activities concerning those who intend to help an enemy and deliberately harm the security of the nation. In the present case, the US Department of Justice indict him on 17 counts of violating the Espionage Act, corresponding with the definition of espionage. But if this applies, it strongly proclaims that Assange pleas guilty, inconsistent with Assange’s consistent statement that he is an innocent ‘freedom fighter’. Since the UK allies with the US, even if the Queen’s Bench denies his extradition, he is still highly likely to face espionage charge from the UK Crown Prosecution Service based upon UK law, because his conducts highly likely damage the national interest of the security in the UK.

Press Freedom from the Government’s Control

Another risky method under the exception is trying to argue that Assange’s offense is defending freedom by applying the amended incidence test. The self-introduction of the network is a multi-national media organization and associated library. It specializes in the analysis and publication of large datasets of confidential materials involving war, spying and corruption. According to an interview in Assange himself, the mission of Wikileaks is for transparency and its final goal, justice. Notably, government employees in the US are required to make immediate report when they see something related to the Wikileaks, even it is merely a news report from the New York Times.

As enshrined in the First Amendment, the freedom of the press is not designed for press-as-industry, but rather protects everyone’s use of the the press technology, including printing and other modernized techniques. In Citizens United v. Federal FEC, the US Supreme Court held that compared with other speakers, institutional press does not enjoys any privilege on this freedom. In the UK, this subject of this freedom is also everyone—according to Jean-Louis de Lolme’s widely-cited teaching, every English man (woman) has ‘the right to lay his (her) complaints and observations before the Public, by the means of an open press’. Publicist teachings constantly note the political nature of this freedom. In his commentaries to the US Constitution, Justice Story affirmed the fundamental right of every man to print his opinions against a government, providing the political nature of this freedom. The Leader of the Opposition in the House of Commons of the UK Parliament also declared the political nature of Assange’s prosecution.

In Assange’s and Wikileaks’ case, though it is apparent that the Wikileaks is not an ordinary news organization or agency like the Associated Press and the Washington Post, and Assange is not treated as a journalist by the US authority and Wikileaks is not a news institution, his fundamental political right to establish and operate an information service to unveil governmental records to the Public must not be eliminated. Hence, by analyzing the practice of the Requesting State (ban government employees’ access to anything about Wikileaks) and the motive of the fugitive (for governmental transparency), his conducts under prosecution are probably of sufficient political nature to fulfill the modernized incidence test. Consequently, Assange’s last resort may make sense under the defense based upon ‘a man’s freedom of press’, regardless of the possibility of being prosecuted by the Crown separately.

Conclusion

Though British Government decided to extradite the fugitive Mr. Assange to the United States, Mr. Assange still has his last resort—judicial review before English courts. His counsel may defend the extradition by referring to the political offense exception, because his conduct concerned—establishing and operating the platform of disclosed political and military information Wikileaks may be covered by the freedom of press as a technology. Nevertheless, though British Judiciary may deny his extradition, he could still receive a guilty verdict before a British court.