TUG OF WAR
How Assange Could Beat the U.S. and Stay Out of Jail
It’s not enough to charge WikiLeaks’ founder—the feds have to convince the UK to hand him over. Experts say that’s easier said than done.
Julian Assange’s arrest in London begins what is likely to be a months or years-long battle in the UK courts as the 47-year-old WikiLeaks founder challenges U.S. extradition on any number of grounds, potentially including political persecution and health issues, according to lawyers who’ve worked both sides of similar cases.
On Thursday morning Ecuadorian officials ushered in UK police to haul Assange out of the Ecuadorian embassy in London, where he’s been holed up for nearly seven years. Prosecutors in the U.S. immediately unsealed a year-old indictment charging Assange for allegedly conspiring with Chelsea Manning to crack a password during Manning’s 2010 leaks of classified documents to WikiLeaks.
The U.S. issued a provisional extradition warrant for Assange and has 65 days to follow up with a more detailed affidavit laying out its case. Prosecutors say Assange faces up to five years in prison on the indictment.
But Assange’s extradition is by no means a forgone conclusion. The UK courts are more skeptical of U.S. extradition requests than you might think, and Assange has several defenses open to him. One expert said that includes an argument that years of voluntary confinement has worked such violence to his mental health that shipment to the U.S. would be inhumane.
“He’s been in one room for the last seven years effectively on his own,” said Karen Todner, a UK human rights lawyer who’s won several high-profile extradition battles against the U.S. “I would think he would try to run some kind of mental health defense. I wouldn’t be surprised.”
Similar arguments, with the facts behind them, have swayed the UK courts in favor of some of Todner’s prior clients. Todner separately represented Gary McKinnon, a Scottish conspiracy buff who cracked Pentagon computers, and Laurie Love, who allegedly siphoned data from NASA and the Defense Department. The courts ultimately rejected extradition of both men, partly on a diagnosis that they suffered Asperger’s Syndrome.
With or without a medical condition, Assange could also make a serious argument that he would face inhumane conditions in U.S. custody. Manning, his alleged co-conspirator, would be Exhibit A in that argument. Manning spent nearly a year under solitary confinement during her Army court martial, locked in a cell for 23 hours a day and often forced to give up her prison jumpsuit at night. A military judge later ruled that Manning had been “illegally punished” and awarded her an extra 112 days off her sentence because of the mistreatment.
“You have high-security places Assange might be considered a candidate for,” Todner said, citing the ADX Florence supermax prison in Colorado that’s already been condemned by the European Court of Human Rights. “That was a key factor in the success of the Lauri Love case… Isolation is one of the issues. Access to daylight is an issue.”
Freedom of speech is not a defense in the UK courts, so Assage won’t be directly helped by his argument that WikiLeaks’ wholesale document dumps represents the protected speech of a journalist.
But he could argue that the indictment is politically motivated. “If you can show that the reason for extradition is political rather than just legal, that’s a defense,” Todner said. “I think that’s how you tie in the issue of free speech,” Todner said.
If there’s a downside to contesting the extradition, it’s that the U.S. is free to revise or extend the charges right up to the point Assange is shipped out. After that, the charges are carved in stone under a principal called “specialty protection.”
“Once he is extradited on specific charges, they are stuck with those,” former Justice Department prosecutor Christopher Ott told the Daily Beast. “There is a whole art to that process best typified by the multi-year effort to extradite El Chapo.”
That means that the U.S. can’t grab Assange on a hacking charge and then slam him with an espionage indictment when he lands in the states--any new charges would require the U.S. go through the UK courts all over again, even if he’s already in a U.S. jail.
“He has to face the charge that’s on the affidavit,” said Todner. “The charges that he faces in the U.S. have to be reflected in the affidavit. Anything else he’s charged with when he gets there would be a breach of specialty protection.”
If the U.S. violates that protection, it would damage international relations and harm American prospects in future extradition bids. And Assange would be able to challenge the new charges in U.S. court as an abuse of process, said Todner.
New York defense attorney Arkady Bukh, who specializes in defending extradited Russian hackers in the U.S., said prosecutors were smart to stick with a relatively simple hacking indictment, a charge with a direct equivalent in UK law.
“They’re just limiting it to conspiracy in order to successful pass the extradition process,” said Bukh. “I’ve seen that a lot with these requests. Some places, particularly the British, may refuse extradition if the penalty is too harsh.”
He says that regardless of who prevails in the UK courts, the extradition battle will leave at least one clear winner.
“On cases like that, they have thousands of billable hours, millions of pounds of salary,” Bukh said. “It’s a gold mine for the lawyer.”