How to Extradite Julian Assange to the United States

by Roger Alford

I had a colleague ask an interesting question, “If Julian Assange is indicted and detained in London, would the U.S.-U.K. extradition treaty authorize extradition to the United States?” There’s not an easy answer.

The U.S.-U.K. Extradition Treaty requires “double-criminality”–the offense must be punishable in both States. Not surprisingly, the United Kingdom imposes criminal penalties for disclosing state secrets. Article 5 of the Official Secrets Act of 1989 provides a “person into whose possession the information, document or article has come is guilty of an offence if he discloses it without lawful authority knowing, or having reasonable cause to believe, that it is protected against disclosure by the foregoing provisions of this Act and that it has come into his possession” as a result of disclosure “by a Crown servant or government contractor without lawful authority.”

Article 4 of the treaty does, however, provide that “extradition shall not be granted if the offense for which extradition is requested is a political offense.” According to Black’s Dictionary, political offenses are “crimes directed against the security or government of a nation, such as treason, sedition, espionage, murder during a revolution, etc.” Thus, it may be difficult to extradite Assange for espionage, but easier to extradite him for various computer crimes, such as disclosing trade secrets, engaging in economic espionage, or criminal copyright infringement. If and when Assange unlawfully discloses confidential documents of major banking institutions, this will be an additional grounds for extradition and criminal prosecution.

An additional problem is that Assange is wanted by more than one State. Sweden issued an international arrest warrant on November 20 as a result of allegations that Assange committed sex crimes. Article 15 of the U.S.-U.K. Extradition Treaty requires that the British government weigh numerous factors in deciding where to extradite, including the gravity of the offenses and the chronological order in which the requests were received. Thus, it is quite possible that Assange would be extradited to Sweden before he would be sent to the United States.

http://opiniojuris.org/2010/12/01/how-to-extradite-julian-assange-to-the-united-states/

9 Responses

  1. Response…
    With all respect, Black’s Law Dictionary isn’t an authority in any of the UK jurisdictions and the passage quoted is very far from UK law. The matters described, whether espionage, cybercrime, or copyright infringement (!), but excluding of course the Swedish allegations, strike me as being fairly obvious examples of offences which a UK court, whether Scottish Irish or English, would hold to be ‘political’ within Article 4 (1) and not excluded by 4 (2). See R v. Governor of Brixton Prison, ex parte Schtraks [1964] AC 556 and R v. Governor of Pentonville Prison, ex parte Cheng [1973] 1 AC 931. The law, in the asylum context but explaining also the history of the concepts for extradition purposes, was recently restated by the House of Lords in T v SSHD, [1996] A C 742, which you will find on BAILII at http://www.bailii.org/uk/cases/UKHL/1996/8.html .

    There are obvious problems also as to double criminality, but these may be more technical.

    Dissenting with respect from the author, I think there is an ‘easy answer’ to the question, and it is ‘No’.

  2. Jonathan,

    We shall see.  I certainly hope you are wrong and that the British Government will work with other nations to stop Assange from further damage to international relations. 

    Indeed, it seems plausible that the British government could pursue its own criminal prosecution of Assange for violating Article 6 of the Official Secrets Act 1989 addressing information entrusted in confidence to other States.

    As for the passing reference to Black’s, this is a blog post, not a law review article or legal brief.  Of course there are much better sources available to make various points in almost every law blog post.    

    I seriously doubt you are correct that Assange’s various computer crimes revealing business trade secrets and government secrets are all political offences.  But that is a question of British law on which I will defer to others.    

    Roger

  3. Roger,

    How, exactly, is Assange guilty of the computer crimes you mention?

  4. Kevin,

    Assange has told Forbes that he plans a “megaleak” of tens or hundreds of thousands of documents stolen from a major U.S. bank.  He predicts it will cause major economic harm to the bank, perhaps even “bring down a bank or two.”  Those banks’ competitors would be the obvious beneficiaries of any such downfall.  

    That’s a violation of laws prohibiting theft of trade secrets.  18 U.S.C. 1832 provides that:

    “Whoever, with intent to convert a trade secret, that is related to or included in a product that is produced for or placed in interstate or foreign commerce, to the economic benefit of anyone other than the owner thereof, and intending or knowing that the offense will, injure any owner of that trade secret, knowingly—…

    (2) without authorization copies, duplicates, … uploads, … replicates, transmits, delivers, sends, mails, communicates, or conveys such information;

    (3) receives, … or possesses such information, knowing the same to have been stolen or appropriated, obtained, or converted without authorization;

    (4) attempts to commit any offense described [above]; or

    (5) conspires with one or more other persons to commit any offense described [above], and one or more of such persons do any act to effect the object of the conspiracy,

    shall, except as provided in subsection (b), be fined under this title or imprisoned not more than 10 years, or both.”

    I don’t think it is a particularly hard case to make, and I don’t see how that can be viewed as a “political offence” within the meaning of the extradition treaty.

    Roger

  5. Thanks, Roger.  Your post seemed to imply that you thought he was already guilty of those crimes; focusing on the planned release makes sense.  Curious, though: would you be satisfied if the UK, applying the doctrine of specialty, limited extradition to the economic offenses?

  6. Yes I would be satisfied with that result.  BTW, Assange apparently already has committed some of the violations under 1832.  My read of the statute seems to suggest that it’s not required that the trade secrets be published for there to be a violation.  Thus, for extradition purposes, he could be charged and extradited now for trade secrets violations.

  7. Of course, we don’t yet know whose trade secrets he violated!  Though we will soon.

  8. Response… I work for BBC News in London, editing a weekend current affairs programme (The World this Weekend). I’m also trying to understand on what basis the US might have grounds to extradite Assange. Would you be kind enough to send me an email with you contacts or call me on 011 44 7890 517917. Many thanks. Fiona Leach

  9. Professor Alford,

    There is much talk about the potential danger to international relations that Assange has and will continue to cause. But, to what I have seen thus far, it all seems like this abstract, nebulous damage.

    Has there yet to be any concrete damage, in terms of human or economic losses?

Trackbacks and Pingbacks

  1. There are no trackbacks or pingbacks associated with this post at this time.