As we all know by now, the founder of Wikileaks, Julian Assange was arrested in London on two warrants after the Ecuadoran ambassador revoked his asylum status that has lasted 7 years. He was arrested and taken to a magistrates court to face a charge of failing to surrender to the courts which he denied but was found guilty of. He was also arrested on a US extradition warrant.
At a central London police station, Assange was further arrested at the request of the US seeking his extradition over allegations he conspired with former US military analyst Chelsea Manning to download classified databases in what the US justice department called “one of the largest compromises of classified information in the history of the United States”.
The arrest provoked a fierce debate over Assange’s future and possible extradition. While the government defended the arrest over breaching bail as evidence that “no-one is above the law”, Labour and civil liberties groups condemned the US extradition request.
Assange’s lawyer, Jennifer Robinson, told the BBC’s Newsnight programme her client’s arrest set a “dangerous precedent” that should concern free speech advocates. [..]
Jeremy Corbyn tweeted “the extradition of Julian Assange to the US for exposing evidence of atrocities in Iraq and Afghanistan should be opposed by the British government.”
Freedom of speech advocates including US whistleblower Edward Snowden said that an extradition over the leaks constituted a risk to press freedom. Meanwhile, as others argued that the US charges should be considered separately to the Swedish allegations, prosecutors in Stockholm said that his arrest was “news to us”.
Assange originally sought asylum in the embassy after an arrest warrant was issued in August 2010 for two separate sexual assault allegations in Sweden.
Police questioned him in Stockholm, where he denied the allegations.
After returning to the UK, he feared that if he were extradited to Sweden he might be extradited on to the US, where he believed he could face charges over WikiLeaks’ publication of the secret US government files.
n December 2010 he appeared at an extradition hearing in the UK, where he was granted bail. Following a legal battle, the courts ruled Assange should be extradited to Sweden. The WikiLeaks founder entered the Ecuadorian embassy in August 2012. He was granted political asylum and remained there until his arrest.
MSNBC host Rachel Maddow reports on the arrest of WikiLeaks founder Julian Assange and looks back at the relationship between WikiLeaks and the 2016 Trump campaign, which is not part of the charges Assange is facing
Back in November, I laid out four possible theories of prosecution for Assange (I’ve since came to realize we may see more theories, but these are a good rubric for now) as a way to understand how dangerous such an indictment might be for journalism.
- Receiving and publishing stolen information is illegal
- Conspiring to release stolen information for maximal damage is illegal
- Soliciting the theft of protected information is illegal
- Using stolen weapons to extort the US government is illegal
In my opinion, this indictment, as written, is closest to the third theory, which I described this way.
Then there’s the scenario that Emma Best just hit on yesterday: that DOJ would prosecute Assange for soliciting hacks of specific targets. Best points to Assange’s close coordination with hackers going back to at least 2011 (ironically, but in a legally meaningless way, with FBI’s mole Sabu).
This is, in my opinion, a possible way DOJ would charge Assange that would be very dangerous.
At its core, Assange is accused of entering into a password cracking conspiracy with Chelsea Manning on March 8, 2010 to be able to access more files on SIPRNet using someone else’s username and password.
On or about March 8, 2010, Assange agreed to assist Manning in cracking a password stored on United States Department of Defense computers connected to the Secret Internet Protocol Network, a United States government network used for classified documents and communications, as designated according to Executive Order No. 13526 or its predecessor orders.
[snip]
The portion of the password Manning gave to Assange to crack was stored as a “hash value” in a computer file that was accessible only by users with administrative-level privileges. Manning did not have administrative-level privileges, and used special software, namely a Linux operating system, to access the computer file and obtain the portion of the password provided to Assange.
Cracking the password would have allowed Manning to log onto the computers under a username that did not belong to her. Such a measure would have made it more difficult for investigators to identify Manning as the source of disclosures of classified information.
Now, I say this is a dangerous indictment for the reasons I laid out in my earlier post.
Assange has not waived expedition and as Marcy’s partner bmaz say, he’d be nuts to do so. It is expected that the US Department of Justice will add to the the single charge that is in their warrant. That must be done before any extradition takes place. Bmaz explains in depth what Rachel Maddow and chuck Rosenberg discussed.
First off, here is the EDVA indictment that was unsealed this morning. As you can see, it is for a single count of computer hacking conspiracy. I think most people expected all kinds of different counts, up to and including espionage crimes. Those were not included, nor were the issues from the Vault 7 case, that easily could have been indicted on outside of any real First Amendment issues.
So, while the indictment could have encompassed far many more charges and issues, it does not and is just this one count.
Why is that important?
Because legal commentators like Jeff Toobin on CNN are having a field day noting that there may be more charges forthcoming. And Shimon Prokupecz of CNN reports DOJ is indeed going to seek “additional charges” against Assange. And why is that important? Because of the Rule of Specialty.
I noted this from almost the first second on Twitter, but few other than Ken White (aka Popehat) seem to have caught on to how this doctrine will come into play in the case of Assange. It is a real issue, though we do not know how it will play out at this early stage of the extradition process.
The Doctrine of Specialty is a principle of International law that is included in most extradition treaties, whereby a person who is extradited to a country to stand trial for certain criminal offenses may be tried only for those offenses and not for any other pre-extradition offenses. Long ago and far away I argued this successfully, but that was in relation to the treaty between the US and Mexico. The Assange case obviously involves a different treaty, the US/UK Extradition treaty of 2003.
So, what does the United States of America and the United Kingdom of Great Britain and Northern Ireland Treaty of 2003 provide? Well, that is contained in Article 18, which reads as follows:
Rule of Specialty
1. A person extradited under this Treaty may not be detained, tried, or punished in the Requesting State except for:
(a) any offense for which extradition was granted, or a differently denominated offense based on the same facts as the offense on which extradition was granted, provided such offense is extraditable, or is a lesser included offense;(b) any offense committed after the extradition of the person; or
(c) any offense for which the executive authority of the Requested State waives the rule of specialty and thereby consents to the person’s detention, trial, or punishment. For the purpose ofthis subparagraph:
(i) the executive authority of the Requested State may require the submission of the documentation called for in Article 8; and
(ii) the person extradited may be detained by the Requesting State for 90 days, or for such longer period of time as the Requested State may authorize, while the request for consent is being processed.
2. A person extradited under this Treaty may not be the subject of onward extradition or surrender for any offense committed prior to extradition to the Requesting State unless the Requested State consents.
3. Paragraphs 1 and 2 of this Article shall not prevent the detention, trial, or punishment of an extradited person, or the extradition of the person to a third State, if the person:
(a) leaves the territory ofthe Requesting State after extradition and voluntarily returns to it; or
(b) does not leave the territory ofthe Requesting State within 20 days of the day on which that person is free to leave.
4. I f the person sought waives extradition pursuant to Article 17, the specialty provisions in this Article shall not apply.
It is early, but Assange has specifically NOT waived extradition, and I do not expect that will change. In fact, he would be nuts to waive it. But look out for the US requesting the UK to waive the issue pursuant to Article 18(1)(c). I have no idea how the UK would treat such a request (nor whether it may have already been made). But give the UK credit, they take extradition conditions seriously and will not extradite where the death penalty is in play. [..]Now, frankly, I think the US, through the DOJ, would have no problem whatsoever stipulating that the death penalty is off the table for Assange. It is almost a given.
The real question is what becomes of the Assange case in light of the Rule of Specialty. Suppose any superseding indictment does not go into charges outside of the “computer offenses” specified in the current indictment, but seeks to add additional computer offenses in an attempt to increase the sentencing range? Does that violate the spirit of the Rule of Specialty?
There is a lot we simply do not know yet. But this doctrine, and how the US proceeds in light of it, needs to be watched closely as the Assange extradition matter proceeds, both in the UK, and once he is remanded to US custody.
The other question that has been raised was the hacking of the DNC e-mails and Assange’s connection to the Russian interference with the 20106 election, as well as, his association with Trump’s associates.
As Rachel says, watch this space.
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