On April 11, the Ecuadorian government withdrew its grant of asylum to Julian Assange, who had spent almost seven years living in Ecuador's London embassy. Assange is now in British custody on the relatively minor charge of bail jumping, awaiting potential extradition to the U.S., or possibly Sweden. Extradition, however, is far from a foregone conclusion. The Swedish charges were dropped some years ago, and it is not obvious that they will be reinstated. And extradition to the U.S. will be complicated and questionable under the relevant treaty. Here are some of the considerations, in ascending order of difficulty.
THE RULE OF SPECIALTY: As do most extradition treaties, Article 18 of the U.S./U.K. treaty provides that an individual may only be tried in the requesting country for the "offense for which extradition was granted, or a differently denominated offense based on the same facts." As far as is known, the only pending U.S. charge against Assange is for conspiracy to hack into government computers, which led to the disclosure of documents stolen by Chelsea Manning. If Assange is successfully extradited under this indictment, he could not afterward be tried for other crimes such as the theft of emails from the Democratic National Committee, or the far more serious crime of espionage -- which would require proof of more than simply helping Manning break an encrypted passcode. This creates a dilemma for the Department of Justice, apparently in the face of a June deadline. If the Department is not ready to unveil the extent of its evidence against Assange (if any), will it be willing to try him only for the relatively lesser offense of unlawful computer intrusion?
THE RULE OF DUAL CRIMINALITY: Even if extradition is sought only under the computer intrusion indictment, it will still need to meet the test of dual criminality, found in Article 2, which provides that "An offense shall be an extraditable offense if the conduct on which the offense is based is punishable under the laws in both States." Although computer hacking is no doubt also a crime in the U.K., there is a further wrinkle of territoriality, because Assange's alleged offense was committed outside the United States. Another section of Article 2 provides:
If the offense has been committed outside the territory of the Requesting State, extradition shall be granted in accordance with the provisions of the Treaty if the laws in the Requested State provide for the punishment of such conduct committed outside its territory in similar circumstances. If the laws in the Requested State do not provide for the punishment of such conduct committed outside of its territory in similar circumstances, the executive authority of the Requested State, in its discretion, may grant extradition provided that all other requirements of this Treaty are met.
Unlike the U.S., however, Britain apparently takes a strict view of territorial jurisdiction. According to The New York Times, Britain has already denied a U.S. extradition request for computer intrusion, on the grounds that the offense was committed on British soil and would therefore have to be tried in the U.K.
While it is true that the British government still has discretion to extradite Assange for an extraterritorial offense, that raises political considerations that may cut in favor of Assange.
THE POLITICAL OFFENSE EXCEPTION: In keeping with longstanding international traditions, Article 4 provides that "Extradition shall not be granted if the offense for which extradition is requested is a political offense." This provision created considerable tension between the U.S. and the U.K. in 1992, when the Second Circuit invoked the political offense exception to deny an extradition request for an alleged Irish Republican Army bomber. The treaty was subsequently amended to limit the political offense exception to non-violent crimes (by creating exceptions to the exception covering potentially terror-related offenses such as murder, manslaughter, kidnapping, hostage taking, and the use of explosives).
So is hacking into U.S government computers a "political" crime? The initial answer will be determined by the British courts, and eventually by the "competent authority of the Requested State," meaning the executive.
According to Assange and his supporters, the mission of Wikileaks is to bring greater transparency to government, which certainly sounds political. Jeremy Corbyn, the head of the U.K.'s opposition Labour Party certainly agrees, having tweeted “The extradition of Julian Assange to the U.S. for exposing evidence of atrocities in Iraq and Afghanistan should be opposed by the British government.” Theresa May's Conservative government has been less committal, as seems appropriate at the outset of a judicial proceeding, but Home Secretary Sajid Javid had harsh words for Corbyn, “Whenever someone has a track record of undermining the U.K. and our allies, and the values we stand for, you can almost guarantee that the leadership of the party opposite will support those who intend to do us harm.”
For now, let's just say that the political offense exception presents a significant barrier to extradition, which might become insurmountable if the Labour Party takes control of the U.K. government (elections are not scheduled until 2022, but the Brexit mess makes everything unpredictable).
The great irony is that Assange may have spent seven years under virtual house arrest for nothing. If Sweden does not renew its request, and if the political offense exception shields him from extradition to the U.S., then the most he would face is the British bail jumping charge, probably followed by deportation to his native Australia -- penalties much less extensive than the confinement he has already undertaken voluntarily.
There are other issues in the Assange case, of course, including his likely First Amendment defense in the event that he is actually extradited to the U.S., and the broader question of press freedom should he be indicted for espionage. But let's leave those for another day.
[NOTE: I wrote a series of articles on the political offense exception in the late '80s and early '90s, but I have been away from those issues for a long time. I therefore welcome clarifications, corrections, or additions to the above observations, especially from those more familiar with U.K. law.]
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