As You Like It, Uncle Sam

INTRODUCTION

Julian Assange, the founder of WikiLeaks, faces decades in solitary confinement for the crime of having revealed war crimes and impunity for torture, exposed dirty dealings, and broadened our knowledge of how the world works. He received and published classified documents from a whistleblower just like traditional journalists do, but on a grander scale.

His publications have not caused anyone to come to physical harm or suffer imprisonment. The charges against him have nothing to do with Russia or the 2016 elections in the USA. He was never charged with anything in Sweden, and the rape case against him there was dropped for the third and final time in 2019.

Numerous press freedom and human rights organizations, from Reporters Without Borders to the American Civil Liberties Union, have sounded the alarm about the US government’s attempt to extradite him, which is a threat to him personally and to investigative journalism as a whole.

If you are not very familiar with the case, that is really all you need to know.

Nevertheless, if you are wondering why Assange hasn’t known a day of freedom for almost 11 years — detention that a UN Working Group judged to be arbitrary — and exactly how intertwined were the proceedings in Sweden/the UK with those in the United States, read on for some theories.

As a preliminary matter, a timeline of the US indictments of Assange, both real and wished-for, might be useful.

WAS THERE A SEALED INDICTMENT UNDER OBAMA?

It is conceivable that there was a sealed indictment in 2011 which was later dropped. Many people including myself (I was a passively sympathetic part-time observer of these events) used to believe that that was the case. However, it looks like there was nothing — just rumors, a former agent’s wish fulfillment fantasies, and his desire to show off by advertising insider knowledge he did not have. Even given the incredible levels of foul play seen over the course of this “legal” process, the existence of a prior, canceled indictment strikes me as improbable, as one would expect a fact like that to be disclosed to the British courts.

Also, if they had managed to indict Julian Assange in secret back in 2010 or 2011, why would they let their efforts go to waste? A grand jury indictment can remain under seal indefinitely. Yet in November 2013 senior officials from the Obama administration said: “Nothing has occurred so far… The investigation is ongoing.” They also said that prosecution was unlikely: “if you are not going to prosecute journalists for publishing classified information, which the department is not, then there is no way to prosecute Assange.” The Department of Justice didn’t issue a formal statement and so did not assuage Assange’s fears. It was not in their interest to do so — how great if he could continue to be deprived of his liberty while being smeared as a paranoid egomaniac or a sex pest in need of excuses to hide from Swedish justice.

However, there is no evidence to suggest that they had lied. We now also know, from the recent bombshell story by Yahoo News, that come 2017, the lack of indictment became a problem for officials who worried that the CIA was out of control and was getting ready to kidnap the WikiLeaks founder not only in contravention of international law, but in the absence of any criminal charges against him, which would have provoked a major scandal. They therefore pressed Trump’s DoJ to hurry up and produce something, which they did just before Christmas, when a plan by the Ecuadorians to spring Assange to safety with a diplomatic passport was abandoned after the Americans, who had access to video and audio feeds from the embassy, got wind of it.

Criminal charges were filed on December 21, 2017, and a sealed indictment followed on March 6, 2018, which accused Assange of participating in a hacking conspiracy. The latter was replaced on May 23, 2019, by an indictment that added charges under the century-old Espionage Act for obtaining and publishing classified documents (the very thing the Obama administration had refrained from doing). On June 24, 2020, there was yet another replacement — a blatant abuse of process — that expanded the hacking conspiracy charge to include testimony, now recanted, by an Icelandic criminal, and also charged Assange for sharing documents with other journalists and NGOs before publishing them on the internet.

WHAT DID THE US STAND TO GAIN FROM PROCRASTINATION IN THE SWEDISH CASE? DID THE US HAVE A STAKE IN ASSANGE’S EXTRADITION TO SWEDEN IN 2010–2012?

Let’s go back to the now defunct sexual misconduct case against Julian Assange in Sweden.

Assange was a suspect in Sweden, not an accused person. He was sought for mere questioning, not to stand trial. He had already spent weeks in Sweden, hoping to respond to the allegations, before leaving with written permission from the prosecutor. So why did Sweden and the UK treat him as a most wanted criminal? Here I am not interested in Sweden’s reasons for doing what it did, although that is a story in its own right that has also been subject to much analysis and speculation. I am interested in whether Britain’s closest ally, the United States, was behind actions that precluded a swift resolution of the case and could have ended in Assange’s extradition to Sweden, had he not gone to the embassy of Ecuador to ask for political asylum.

There are telltale signs of foreign interference in the Swedish investigation. Such as the Crown Prosecution Service advising its Swedish counterpart not to come to London to question him, as early as in or before January 2011. That was despite interviews abroad being normal practice — the European Investigation Order didn’t exist yet, but there was mutual legal assistance. The British had blackened out the strange sentence in their FOI release to Italian journalist Stefania Maurizi. However, Maurizi was too clever — she had applied for the same correspondence under Swedish transparency laws as well, and the Swedes had not redacted that part:

My earlier advice remains, that in my view it would not be prudent for the Swedish authorities to try to interview the defendant in the UK.

Then there were deleted CPS emails after the lawyer handling the Assange case, Paul Close, retired in 2014. A deleted email from the FBI to Swedish prosecutor Marianne Ny. No guarantees from Sweden that Assange would not face onward extradition to the United States. After Assange was granted asylum, the Crown Prosecution Service repeatedly advised the Swedish prosecutor, Marianne Ny, not to drop the case: “Don’t you dare get cold feet!!!”. They had also admitted that this was not “being dealt with as just another extradition.” And against that background, there were reports from “diplomatic sources” of informal talks held between Swedish and American officials about extraditing Assange.

If the US was behind the pressure to keep the European Arrest Warrant and the Swedish extradition battle alive, what motivated it?

Even though the United Kingdom is generally perceived as very subservient to and sharing common goals with the USA, there were advantages to filing an extradition request from Sweden rather than the UK. For a year and a half, Assange complied with his strict bail conditions, so if the UK were to rearrest him on behalf of the US, the British courts would presumably have no excuse to change tack and put him in prison. He did not have liberty, but he spoke the local language, lived in nice houses, and most importantly, was still able to work. Those WikiLeaks cables kept coming. He even hosted a TV show, further spreading cypherpunk ideas about the free internet and the dangers it faces, giving a platform to former Guantanamo detainees and Occupy activists, and once again scooping the mainstream with his interview of the Hezbollah leader.

In Sweden, on the other hand, Assange would no longer be a thorn in the side of the establishment because he would have been incarcerated. Shockingly, there is no limit to how long suspects can be held in pre-trial detention in Sweden. In his asylum application, Assange wrote:

On 28 May 2012 lawyers instructed to act for me in Sweden confirmed that they had met with the prosecutor, that their view was that the prosecutor would continue to demand that I remain in custody throughout the legal process, that as I am not a resident in Sweden I will be unlikely to be granted an alternative to prison (effective house arrest), by a Swedish judge; that foreign residents are typically held in custody during the investigation and up to and including trial of crimes such as are alleged against me; that I would be held in a Swedish remand prison, with virtual certainty in isolation. Any trial will be held in secret, in breach of the fair trial provisions of the European Convention on Human Rights.

But there was something else. As described above, it was not easy for the Americans to conjure, out of thin air, criminal charges against a publisher for award-winning journalistic activity. There was a massive effort, a grand jury investigation, attempts to incriminate Assange through evidence from Chelsea (then Bradley) Manning’s court martial — but there was no indictment. A totally unrelated extradition battle in Britain and subsequent jailing in Sweden would buy the US Department of Justice more time to hone out an indictment and resolve internal disagreements over the hotly contested Espionage Act charges.

Now, both Swedish extradition law and the extradition treaty between Sweden and the United States contain a political offense exemption. Espionage, like treason and sedition, is a political offense. That doesn’t mean that Espionage Act charges would have been off the table or that handing the man over to the US would have been impossible. Assange could have been extradited from Sweden on a hacking conspiracy charge like Count 2 of the second superseding indictment, which is brought under 18 U.S.C. Section 371 — Conspiracy to commit offense or to defraud United States.* While that charge references ‘computer espionage’ laws where the state is the victim, which renders it political too, the US could have said that it’s just about hacking. It could have argued that and won. The US had reportedly never lost an extradition case in Sweden since the year 2000.

With Assange transferred to US custody, if the Justice Department were to make up its mind about the Espionage Act and the First Amendment — like it eventually did under Trump — all that would have been necessary is for Sweden to waive the so-called “rule of specialty,” a provision in Article VIII of the treaty that prohibits the bringing of additional charges against the defendant. Presumably, that would have been up to the Swedish government. That is, the very same people who made hostile and prejudicial statements against Julian Assange in the wake of the sex scandal.**

As mentioned in the previous section, even when Assange avoided extradition by taking refuge in the Ecuadorian embassy, and even after Obama’s DoJ finally leaned against prosecuting him, the US still had an interest in keeping the Swedish matter alive. That’s because Assange still feared that the US was after him and so refused to leave the apartment, which affected his health, but at the same time he could be made to look like he was hiding from Swedish justice.

To recap: The anti-WikiLeaks forces in the United States government would have preferred it if the Swedish prosecutor did not travel to London to interview Assange, as that would have given them more time to glean ‘incriminating’ evidence from the Manning trial, to subpoena people before the grand jury, and to convince their colleagues to charge him. Ideally, Assange would have been extradited and that extra time they needed he would have spent in a Swedish jail, alone. The political offense exemption in Sweden was not an insurmountable obstacle because any charges under the US Espionage Act had not materialized yet, and a number of other charges were possible. Finally, preference for Sweden did not mean that the USA would not have been readying itself to ask for Assange’s arrest on British territory in the event of a Supreme Court ruling in his favor.

In conclusion, while a few people in the Scandinavian country were purportedly scoring ‘feminist’ points on the back of Assange by refusing to progress the sex case and blaming it on him, it is absolutely reasonable to wonder if the USA was also interested in and able to influence various aspects of the proceedings from behind the scenes. After all, politicians like Senator Dianne Feinstein did not hide their desire to see Assange prosecuted under the Espionage Act, but even they understood that it was a legally complicated matter because journalists like him (used to) enjoy robust protections. If he could be detained for whatever reason in whichever country, so much the better.

WHAT HAPPENED BETWEEN THE UK AND SWEDEN IN 2019? WHAT HAD CHANGED?

When Ecuador revoked Julian Assange’s asylum in April 2019 and handed him over to the Metropolitan Police, things were very different. There was an extradition request from the United States, while Sweden had dropped the “preliminary investigation” some two years prior but was now under pressure to act as if it had unfinished work.

A group of more than 70 British MPs wrote to the home secretary and the shadow home secretary to urge that, should Sweden reopen the case and issue another European Arrest Warrant, the sexual allegations be given priority over the American request — and even that the UK should be “proactive” about helping Sweden. Somehow they, and the media, ‘forgot’ that the reason Assange did not travel back to Sweden was because he thought he’d be “placed on an unstoppable course towards a politically engineered show trial in the USA, and imprisonment, in isolation, for life.” A fear which had now very plainly come true and the whole world was the witness.

The MPs said they would pass no judgment on the attempts to extradite Assange to face charges in the United States [cowards!] but said the UK should proactively inform the Swedish authorities that it would have Britain’s full cooperation, and noted with concern that the Swedish authorities did not appear to be aware of the plans made to arrest Assange.

The Swedish authorities were not aware, and they did not have “Britain’s full cooperation.” Because by now Sweden had lost its value in the war on WikiLeaks. More than that — it was unwelcome, an obstacle hampering that “unstoppable course.” And I believe that the reason was not so much any potential delay due to proceedings in Sweden***, but rather the fact that the Rubicon had been crossed — there were actual Espionage Act charges in the works, accusing Assange of obtaining and disclosing information related to the “national defense,” and carrying a sentence of up to 170 years. Even the flimsy single charge unsealed on April 11, for conspiracy to violate the Computer Fraud and Abuse Act (a PR move to depict Assange as a hacker and lessen the worries of the mainstream media that they could be next), contained references to violations of the Espionage Act. The rest would follow on May 23, shortly after the new Swedish prosecutor, Eva-Marie Persson, announced that she was reopening the case and would seek an EAW.

In other words, it had happened, despite the ongoing disagreements within the US Department of Justice. And the people behind this victory were not going to jeopardize Assange’s US extradition by letting the Swedes have him first, because Sweden has a stronger political offense exemption, espionage is a classic political offense, and so the courts would be bound to say no. So much hard work — careers built on it, one would imagine — for nothing! Not to mention that the senator who said “he is our property” would weep.

It’s likely that there was a conspiracy between the US and the UK governments to give Assange a lengthy sentence for the “bail violation” in the high-security Belmarsh prison and in any case not to let him out until such time as he could be extradited. At the very least, the US knew that it could count on judges with conflicts of interest, such as Emma Arbuthnot, or judges who simply considered Assange’s asylum in a Latin American embassy an affront on the revered British judiciary. The Yahoo News investigation, whose sources were more than 30 former intelligence and Trump administration officials, contains a curious sentence about a “backup plan” to detain Assange on a charge of skipping bail in order to give US prosecutors extra time to “rush through” an indictment.

A Swedish remand jail was therefore redundant at this new stage. Belmarsh was better — oppressive, and with a reputation for housing the most dangerous criminals, to put the finishing touches on the caricature of Assange that the government and the media had created.

I also think that, prior to returning the indictment, the Americans had obtained a guarantee of silence and cooperation from their British buddies so that everyone would act as if the US-UK treaty barring extradition for political offenses did not exist or were irrelevant. In contrast to Swedish law, British law since the Blair years no longer contained a political offense exemption, which is why the UK jurisdiction was now more appealing. There would be no need to resort to embarrassing diplomatic waivers of the “rule of specialty.” However, the thorny problem of Article 4.1 of the treaty remained. It had to be neutralized. More on that below.

But first, other than reportedly failing to notify Sweden of Assange’s arrest, what evidence is there to suggest that in 2019 the UK changed tactics and abandoned the kind of “proactive” behavior typical of previous years? The UN Special Rapporteur on Torture, Nils Melzer, spoke about it in an interview for TheSwissBox Conversation. He said that a Swedish court had not agreed with the prosecutor about the necessity for an arrest warrant because Assange was already in custody, and she could interview him in the UK in perfect conditions. “So she was obliged to go to London. It gets interesting to now look at the internal correspondence that I have just received,” Melzer said. The British were suddenly “not that well disposed”:

Anyway, we see that the British suddenly tell the Swedes, “Well yes, but in fact” — they pose all those questions that a good lawyer could have posed ten years ago — “what is your evidence, in fact, for this? Please, you could come, we are going to arrange that for you, you could interview him, but you must be aware that this is voluntary for Assange, he can’t be forced because this is after all a foreign authority, but if he agrees to respond to your questions” — what he had always indicated — “you could come, but in order for us, in addition, to authorize this, we need…”. Then they placed a very very high threshold; they said: “OK then, give us all your evidence that indicates he could have committed that crime, what crime exactly, and we’d appreciate if you could explain, since you’re saying that this was in 2010 and now it’s 2019, what you’ve been doing during those nine years, why you delayed…” (…) They said all that and after that they said, “And by the way, if — just so you know, you can come do this interview, but if you’re not going to charge him” — so accuse him formally — “we won’t send him to Sweden because the law has changed.” And so she reads this and she replies right away: “In this case, I won’t come to London”. And internally she says, “I have tried to find a solution to satisfy both the American demands and ours, but apparently it is not desired by the British.” (…) As soon as they had to provide evidence — even to the British — they didn’t manage to provide enough evidence to come do an interview.

Stunning, as Nils Melzer called it. It is also ironic because the judge who upheld the UK arrest warrant for Assange in 2018 had written that Ecuador’s requirements back in 2015–2016 (for the questions to be submitted in advance and for Assange to be interrogated by an Ecuadorian prosecutor) were an “interview on [Assange’s] own terms” that “does not comply with the court’s order that he be extradited to Sweden.” Yet here was the United Kingdom, even with the tool of the European Investigation Order at its disposal, setting the bar so high — and rightfully so — that the Swedes simply realized, without further ado, that they didn’t want to question Julian Assange after all.

IS THERE A CONSPIRACY TO IGNORE THE POLITICAL OFFENSE EXEMPTION?

To return to the issue of whether the US and the UK had decided to kill the inconvenient Article 4.1 of the extradition treaty ahead of any decision on the matter by Judge Vanessa Baraitser — what I find so incredible is how nobody, no learned head, seems to have anticipated the way the treaty got ignored, then openly dismissed as irrelevant. Here are some examples of what legal experts and diplomats said between 2010 and May 2019:

As long as [Assange] stays out of the United States, we don’t have any jurisdiction over him. Moreover, because espionage is considered under international law to be a political offense, extradition treaties do not cover those accused of violating the espionage laws of any country.

(John L. Martin, retired prosecutor with 25 years of experience at the Department of Justice, where he was in charge of espionage cases)

The Australian diplomatic reports canvassed the possibility that the US may eventually seek Mr Assange’s extradition on conspiracy or information-theft-related offences to avoid extradition problems arising from the nature of espionage as a political offence and the free-speech protections in the US constitution.

(Documents released under freedom-of-information laws)

There’s an extradition treaty that entered into force during the Bush administration. It’s been in effect for about 10 years. And it defines the crimes for which individuals can be extradited from the U.S. or from the U.K. And it says that an individual may not be extradited for a political offense, but that’s not defined. But historically, under international law, a political offense is an offense against the state such as espionage or sedition or treason.(…) That’s going to be one of [Assange’s legal team’s] chief defenses, I’m sure. And that’s one of the reasons I suspect that the charges by the Justice Department were very carefully tailored not to charge him under our espionage laws but instead to charge him with conspiracy to hack into a computer so that he’s not being charged with a political offense. But, of course, his defense lawyers are going to say that this is really all political, it’s politically motivated, and that he’s really being charged with a crime against the United States.

(John Bellinger, Legal Adviser of the Department of State under George W. Bush)

It is a classic political offense. I have a difficult time seeing a British court departing so significantly from legal tradition and saying in this case they will make an exception. The political offense exception as it has existed for probably 150 years has consistently maintained that for espionage charges, they are not extraditable. That’s just a classic principle of international extradition law.

(Jacques Semmelman, extradition lawyer from New York)

None of those people said, “but maybe the British will allow it because this treaty with the United States has no legal force.” Yet that’s what Baraitser said in her January 4, 2021 judgment, and it was preceded by her and people in the British government acting as if it was already a matter of certainty that that was the case. An extradition treaty can aid the state but not protect the individual, even when parts of it are designed to protect the individual. An atrocious line of reasoning.

It is true that in some extradition arrangements — namely those between the countries that use the European Arrest Warrant — the political offense exemption has been removed. (The “curious case” of the former Catalan President, Carles Puigdemont, suggests that such a removal was not justified.) It is also true that the relationship between the United Kingdom and the United States even before Brexit was more “special” than the relationship between the UK and many other EU states. However, the fact remains that the political offense exemption exists in the current US-UK treaty, albeit in a weakened form so as not to protect violent acts (the weakened form effectively started out as “IRA exclusions,” breaking a long US tradition to “never [surrender] an Irish political resister to Great Britain”).

So how do the courts and the government get away with pretending that Article 4.1 is not important? The bilateral treaty serves as the basis for requesting Assange’s extradition to the US, but the clauses of the treaty do not matter? That is plainly absurd. The only explanation I can find is that this has been agreed in secret, maybe in advance, by everybody who has some power to decide the fate of the WikiLeaks founder. A few things that have happened lately stand out here:

• On October 21, 2019, Judge Baraitser declined, “without bothering to give any reason why,” to hold a preliminary hearing to determine if the treaty applies at all. Craig Murray writes: “There is every reason to consider whether this charge is excluded by the extradition treaty, and to do so before the long and very costly process of considering all the evidence should the treaty apply. But Baraitser simply dismissed the argument out of hand”;
• In February 2020 Baraitser, after being served with the argument by the prosecution, “dropped a massive bombshell.” She said that the political exemption was not in the UK Extradition Act but only in the treaty, and it looked like she didn’t have to enforce the treaty. While the parties were each presenting their point of view on this and related matters, she interrupted the prosecution lawyer only once. She interrupted Assange’s lawyer 17 times;
• Baraitser would not deliver her judgment until almost a year later, but on March 20, 2020, when the UK (via its then permanent representative, Christopher Yvon?) replied to a Council of Europe safety of journalists alert about the detention of Julian Assange, it ominously omitted all mention of the US-UK treaty. The extradition was governed by the Extradition Act, the reply said; the Act provided “full and effective safeguards”; Assange could challenge the extradition on the grounds described by the Act.
• On November 24, 2020, Labour MP Richard Burgon asked the government about the Julian Assange case in the UK parliament. He put it directly: “What is the Minister doing to ensure that the ban on extradition for political offences [in the US-UK treaty] is always upheld?”. Answering for the Foreign Office, Nigel Adams weaseled out of the question: “I can tell [Burgon] that the FCDO is committed to upholding the full range of rights set out in the Universal Declaration of Human Rights and in international human rights treaties to which we are a state party.” Obviously, no one was begging him for his opinion on the universal declaration or “international human rights treaties”!
• In 2020/2021, the UK government and prison authorities refused to allow a video meeting between Assange and a cross-party group of British parliamentarians. In response, the latter tabled a motion saying that “parliamentarians must be allowed to discuss important issues relating to press freedoms and the UK-US Extradition Treaty with interested parties,” but the stonewalling continued.

WHERE IS THE HOPE?

This is a very bad sign for the current state of the world’s mature democracies and, one could argue by extension, of all democracies. Not to mention that the life of a brave and innocent person hangs in the balance.

However, there is one crucial difference between the UK and Sweden that does not bode well for the US Justice Department: the UK has previously blocked extraditions to the United States in high-profile computer-related cases, on mental health grounds (Gary McKinnon and Lauri Love). Judge Baraitser surprised many by similarly blocking Assange’s extradition, citing suicide risk in the US prison system. The US is appealing, but there is light at the end of the tunnel, and public pressure will make it brighter.

Supporters also hope that the new Biden administration will drop the charges, especially after the disclosure of CIA plans to abduct or even murder Assange. That it, like Obama’s DoJ before, will choose to save the famous First Amendment of the American Constitution — freedom of speech and freedom of the press. The longest word in the Bulgarian language is particularly apt here: neprotivokonstitutsionstvuvatelstvuvaite. “Don’t act against the Constitution.”

FOOTNOTES

* (The original footnote was deleted on March 7, 2024, because it wrongly stated that at the beginning, Julian Assange had been charged under the Computer Fraud and Abuse Act (CFAA), including the “federal crime of terrorism” §1030(a)(1), in addition to the §371 Conspiracy statute. That is a common misconception, perhaps due to the (purposely?) misleading citations in the first indictments, which I think may have caused several lawyers as well as the New York Times to explain away the otherwise inexplicable delay in charging Assange: they thought that a “terrorism” loophole in the legislation had allowed the grand jury to indict Assange a whopping eight years after his alleged chats with Chelsea Manning. In fact, the text of the indictments, the arrest warrant and the affidavit of US prosecutor Kellen Dwyer all make it clear that no direct violation of the CFAA was ever alleged. The hacking conspiracy charge, as long as it was only about the attempted cracking of Manning’s password hash, should have become time-barred in 2015.)

** See also the Justice Manual: “some courts hold that only a party to the Treaty (i.e., the sending State) may complain about an alleged violation of the specialty provision.”

** However, the need to avoid long delays was also important, as the US would want to extradite Assange before the UC Global court case was concluded in Spain, potentially revealing gross CIA misconduct.

Minor changes to this article were made on March 7, 2024, about the CFAA and the rule of specialty; broken links were fixed, etc.

Painting: “The Feast of Herod” by Lucas Cranach the Elder, 1533.