In two weeks time the statute of limitation will apply to the bulk of the investigation by Sweden into allegations made against Julian Assange, editor-in-chief of Wikileaks. It is not clear if at that stage the EAW (European Arrest Warrant) will be revoked. But whatever the immediate outcome, there is also the not-so-little matter of a US Grand Jury still waiting in the wings. And you can bet the British Government will be most compliant regarding any request for Mr Assange’s extradition from their pals in the White House. Meanwhile a window of opportunity has opened in the form of an imminent United Nations ruling that may well provide resolution…
Update: Interview with Mr Assange’s Swedish lawyer on the impact of the statute of limitations regarding the bulk of the allegations raised against his client.
First, a rewind… Back in March, Michael Ratner, the US lawyer who represents Mr Assange and WikiLeaks, said that if his client left the Ecuadorean Embassy in London he would most likely be arrested by the British authorities and face extradition to America or simply arrested on a minor holding charge until the Americans found time to present the appropriate documentation.
Mr Ratner explained: “Even were the Swedish case to be disposed of, the UK would arrest Assange upon leaving the embassy for claimed violations of bail conditions, or something similar”. Washington would almost certainly seek his extradition, he added.
A. The EAW
A recap… In June 2012 Mr. Assange was informed that the Swedish authorities would be opposing the time extension granted to him to seek a ruling from the European Court of Human Rights that the EAW (European Arrest Warrant) issued was invalid. Furthermore there were reports that Sweden could not guarantee he would not be extradited to the USA.
Earlier Mr Assange, via his legal team, had sought assurances from the Australian Government that he would be provided with full consular and other assistance in his plight. But nothing helpful came of these requests. Indeed, a letter from Nicola Roxon, the Australian Attorney General, stated ”Australia would not expect to be a party to any extradition discussions that may take place between the United States and the United Kingdom or the United States and Sweden, as extradition is a matter of bilateral law enforcement cooperation.” Thus, Mr Assange concluded he had been abandoned.
There were also multiple death threats against Mr Assange (and his Australian family) as well as calls from the USA for Mr Assange’s assassination.
And so at that point Mr Assange, fearing that in Sweden he would be extradited to the USA, he decided he had no other choice but to seek asylum. And it was the Government of Ecuador that stepped up to the mark.
Ironically, had the changes in the much-criticised European Arrest Warrant that were subsequently approved by the UK Parliament in November 2014 been enacted some 18 months earlier, Mr Assange would have had no need to seek asylum in an embassy (though, given the threat level from the USA he may well have decided at some later point to seek refuge in a country with no extradition treaty with the USA).
John Pilger (in a recently updated and expansive article on Mr Assange) agrees: “The injustice meted out to Assange is one of the reasons Parliament reformed the Extradition Act to prevent the misuse of the EAW. The draconian catch-all used against him could not happen now; charges would have to be brought and “questioning” would be insufficient grounds for extradition. “His case has been won lock, stock and barrel,” Gareth Peirce told me, “these changes in the law mean that the UK now recognises as correct everything that was argued in his case. Yet he does not benefit.” In other words, the change in the UK law in 2014 means that Assange would have won his case and he would not have been forced to take refuge.”
B. The US charges
In the meantime, Joshua Stueve, a spokesman for the US Attorney’s office in Alexandria, Virginia, confirmed that the investigation into WikiLeaks remained open. So what are the US charges?
According to Alexa O’Brien, “Since December 2010, the Department of Justice has been looking at the Espionage Act and other statutes, including the Computer Fraud and Abuse Act, to prosecute Assange.” For most criminal offences the (US) Statute of Limitation is five years, but for the Espionage Act the Statute of Limitations is ten.
Another rewind… In December 2010 it was reported that informal discussions had taken place between US and Swedish officials over the possibility of the WikiLeaks founder Julian Assange being delivered into American custody. Around that time US Attorney General Eric Holder acknowledged that prosecuting Mr Assange under the Espionage Act for publishing could be difficult. (The Espionage Act was originally intended to prosecute US spies, but has been repeatedly employed by the Obama administration to prosecute whistleblowers for their disclosures of classified information to the press.) Holder clarified: “It would be a mis-impression if the only statute you think we are looking at is the Espionage Act. That is certainly something that might play a role, but there are other statutes, other tools that we have at our disposal.” One of those, apparently, is the Computer Fraud and Abuse Act.
The range of charges that could be raised against Mr Assange could therefore include the following:
Significantly, the US Statute of Limitations for alleged offences is also based on the last criminal act, and could potentially wrap in all prior alleged criminal behavior, according to Barry Pollack, another US defense attorney to Mr. Assange. The process, typically, is that the Department of Justice would simply indict, keep the indictment sealed, issue a warrant, and then sit and wait.
Incidentally, the US Government devised their plan to target Mr Assange as far back as 2008 This 2010 copy of the report – authored by the Army Counterintelligence Center, Cyber Counterintelligence Assessments Branch; Department of Defence Intelligence Analysis Program – is prefaced (first page) by a statement by Wikileaks. The report contains some outrageous claims about who is behind Wikileaks, as well as dubious attempts to forensically analyse Wikileaks’ technologies.
So, what happens next? At this stage there is no clear answer. On one side is the Wikileaks camp, maintaining their belief in transparency, exposing misdeeds, etc and arguing that what they do is just good investigative journalism and, in any, is protected by the the US Constitution’s First Amendment. On the other side, the US authorities and their allies remain intractable, denying Mr Assange and his associates are journalists and insisting that they are all liable to criminal charges of one sort or another. It’s the classic impasse with no obvious solution on the immediate horizon.
The uncomfortable truth is that the US Grand Jury will continue as long as Wikileaks continues to publish, which could mean indefinite exile for certain persons (see below) and ongoing asylum in the Ecuadorean Embassy for Mr Assange. However…
D. Appeal to the United Nations
Meanwhile a claim lodged on behalf of Mr Assange with the Working Group on Arbitrary Detention (WGAD) at the United Nations is possibly his best hope of obtaining a resolution to his current predicament. The claim – which should be read in full – is extraordinarily detailed and packed with cogent legal arguments and references as to why Mr Assange has faced injustice, which should be remedied as a matter of urgency.
The claim concludes: “This is an application framed by political events, but at its heart it is about a person who has been deprived of his liberty in an arbitrary manner for an unacceptable length of time. If all the names, details and events were redacted it could be distilled to the simple and irrefutable fact that a political refugee who has never been charged has been deprived of their liberty for nearly four years and confined in a very small space for over two years. The matter has come to a head because his mental and physical health are imperiled. This situation does not only affect him but also his young children who are being denied the protection and affection of their father. The situation is in urgent need of a remedy. WGAD has both the power and the duty to grant it.”
It is anticipated that a ruling by the UN group on the claim is imminent.
Note: In March 2012, the US government served search warrants on Google and demanded it handover data from WikiLeaks staff members for the purpose of an investigation into violations of the Espionage Act, Computer Fraud and Abuse Act (CFAA), a larceny statute and a “conspiracy to commit offense or to defraud the United States” statute. Google subsequently informed several WikiLeaks staff—Sarah Harrison, an investigations editor, Kristin Hrafnsson, a spokesperson, and Joseph Farrell, a section editor—that they each had their accounts targeted. In June of this year Google also informed journalist and technologist Jacob Appelbaum, who previously worked with WikiLeaks, that it had been ordered to provide data from his account.