Extradition and WikiLeaks
Dec 16th 2010 | from PRINT EDITION
AS THE frissons of the WikiLeaks disclosures fade and cyberwars between its foes and fans sputter and flare, legal questions are becoming central: how can America bring the sites founder, Julian Assange, to court. The answer to that may lie in Britain, where Mr Assange is battling an extradition request from Swedish prosecutors who want to question him on sexual-assault charges.
Extradition from Britain to Sweden is normally a formality, though Mr Assanges lawyers argue that ulterior motives are at work. On December 14th a court in London adjourned the hearing until January 11th. It also granted Mr Assange bail; oddly, the British (not Swedish) authorities appealed against that. This helps stoke fears among Mr Assanges supporters that the Swedish case is just a ruse to keep him behind bars pending eventual extradition to America.
Some reports say that an American grand jury has already been secretly sworn in. Prosecutors seem to be focusing on Mr Assanges involvement in enabling the leaking of secrets, rather than in their publication. That may seem a fine distinction. But it would avoid having to prosecute the
New York Times.
Mr Assange may be vulnerable under the 1917 Espionage Act, which punishes leaks involving, and injuring, Americas national defence. The State Department warned him in writing on November 27th that the leaks would harm military operations. WikiLeaks is now trying hard to portray itself as a journalistic organisation, in order to benefit from the first amendments protection of the press and free speech. That was crucial in the 1971 Pentagon Papers case, when a Supreme Court decision upheld the
New York Timess right to publish secret material. However, Leonard Orland of the University of Connecticut notes that one of the judges opinions distinguished between illegal prior restraint and legitimate prosecution after publication. He says the more relevant precedent is
United States v Morison, when the defendant was convicted for leaking photographs of Soviet naval construction to a British magazine.
So a charge against Mr Assange is possible. But extraditing anybody usually requires the deed concerned to be a crime in both countries. Convincing a judge in Sweden, which has one of the worlds most liberal press-freedom laws, of the virtues of Americas Espionage Act may be tricky. A 1961 treaty between the two countries forbids extradition for political crimes.
So does Britains extradition treaty with America. But it also sets a lower burden of proof. Simon Chesterman, a law professor at the National University of Singapore, notes that Britains tough Official Secrets Act would also outlaw WikiLeaks actions. For Mr Assange and his pals, Sweden may soon seem a haven, not a threat.