Commentary / World

Assange shouldn't be extradited to U.S.

by Leonid Bershidsky

Bloomberg

Julian Assange’s six-year stay at the Ecuadorian Embassy in London may be nearing an end: WikiLeaks, the organization he founded, says he may be pushed out within “hours or days.” The standoff has lasted long enough: Assange should be legally cleared or convicted — just not in the United States.

When Assange leaves the embassy, he will probably be arrested immediately by the U.K. police on charges of jumping bail in 2010. That year, a court had ruled that he should be extradited to Sweden to face rape and sexual assault charges. Assange, however, said he feared the accusations were just a pretext for his eventual extradition to the U.S., where he might be tried for publishing state secrets. The fear of being handed over to the U.S. drove him to seek refuge at the Ecuadorian Embassy. The Swedish charges have been dropped but the fear remained, motivating Assange to stay in the embassy even after he’d worn out his welcome and his ability to communicate with the outside world was curtailed by the Ecuadorians.

If the U.K. police arrest him, an extradition process is likely. Last year, U.S. prosecutors accidentally revealed that an indictment had been issued against him under seal. That’s standard procedure in cases where a suspect hasn’t been arrested and U.S. authorities don’t want that person to get suspicious. But in Assange’s case, keeping the indictment secret no longer serves that purpose: He knows something is afoot, not least because Chelsea Manning, one of WikiLeaks’ major whistleblowers, has been jailed since March for refusing to testify in an Assange inquiry.

Whatever the U.S. authorities’ reasons for keeping the indictment under seal, they’ll be forced to disclose the charges against him when they ask the U.K. to extradite him. In accordance with the two countries’ extradition treaty, they’ll need to show they have a reasonable suspicion against Assange.

The judge then will have a lot of discretion in how to proceed. Assange may walk, for example, if the judge decides the U.S. case against him is politically motivated. That could be a valid argument. The Democratic Party, which has a majority in the House of Representatives, has reasons to be sour at Assange for publishing its documents from the 2016 presidential campaign that apparently were stolen by Russian military intelligence. The Trump administration may be interested in going after him to show that Donald Trump wasn’t behind the leak. An Assange trial in the U.S. would certainly be politically charged. But an extradition refusal on the ground of political charges would be a first in U.K.-U.S. relations.

The U.K.-U.S. extradition treaty, signed in 2003, gets a lot of criticism in the United Kingdom because, as then-Attorney General Dominic Grieve told a 2012 parliamentary hearing, “There is a lack of public confidence in the U.S. criminal justice system.”

Activists and politicians have called for amendments, demanding a higher evidentiary standard and more protection for people handed over to the U.S. Activists and politicians have called for amendments, demanding a higher evidentiary standard and more protection for people handed over to the U.S. But the treaty has withstood the criticism, and attempts by suspects to argue, for example, that the U.S. penitentiary system is so cruel as to violate European human rights protections have been struck down both by British courts and the European Court of Human Rights.

Still, the U.K. does occasionally refuse U.S. extradition requests. Out of 106 such requests between 2007 and 2014, 14 were turned down, two on human rights grounds. The Assange case calls for another such refusal. If the U.S. wants the WikiLeaks founder for publishing stolen government secrets, Human Rights Watch General Counsel Dinah PoKempner expects him to be tried under the U.S. Espionage Act of 1917, which has no exemptions for those who reveal classified information in the public interest.

Assange isn’t easy to defend. His actions in the 2016 U.S. election suggest a motivation different from public interest — namely, a vengeful desire to hurt Hillary Clinton. But most of the big leaks WikiLeaks has published meet a reasonable definition of public interest journalism, the kind that resulted in the publication of the Pentagon Papers or The Washington Post’s reporting on Watergate. Article 6 of the European Convention of Human Rights stipulates the right to a fair trial, and there’s an argument to be made that depriving Assange of the public interest defense would make his U.S. trial unfair.

A high-profile case like Assange’s could be the occasion for Americans to argue out the conflict between national security and public interest — clearly, the 1971 Supreme Court ruling in the Pentagon Papers case hasn’t laid it to rest. But perhaps dragging Assange to the U.S. so this can be argued out isn’t quite fair to him, and it should be left up to European courts to decide whether he should be treated as a spy or an investigative journalist.

Though most of the leaks Assange’s site published came from the U.S., a few European countries, including France and Switzerland, also were targeted. Even the U.K. could argue that some of the leaks exposed its secrets. Europe, where Assange’s publications are not as politically sensitive as in the U.S., would probably be a fairer jurisdiction for his case. An extradition request from another European country or a U.K. case against Assange could help keep him out of U.S. hands while still letting an independent court consider the evidence for and against him.

If such a European court decides that WikiLeaks generally has worked in the public interest and not as a “non-state hostile intelligence service,” as Mike Pompeo dubbed it when he was director of the U.S. Central Intelligence Agency, that could create an opportunity for another U.S. fugitive, Edward Snowden, to leave Russia and find refuge somewhere in the European Union. The U.S. needs to legislate better whistleblower protections before it demands that people like Assange and Snowden face its courts.

Leonid Bershidsky is a Bloomberg columnist who writes on European affairs.