If Assange Leaves the Ecuadorian Embassy, What Next?

WikiLeaks founder and CEO Julian Assange might be nearing his final days in Ecuador’s London embassy, where he’s lived and worked since 2012 to avoid extradition to Sweden for rape charges or, potentially, to the United States. On July 20, RT’s Editor-in-Chief Margarita Simonyan tweeted that the release might occur in the coming weeks, or even days. On July 21, the Intercept reported that Ecuadorian President Lenin Moreno recently met with British officials to finalize plans to expel Assange from the embassy, located in one of London’s most expensive districts near Harrods, and hand him over to British authorities. (Ecuador revoked Assange’s internet access nearly three months ago, claiming that Assange had violated a 2017 agreement not to interfere in the affairs of other states, by supporting Catalan independence.)

It’s been 13 days since President Moreno arrived in the UK, without any reports that Assange had been turned over. Whether that means he’s off the hook is unclear, but here’s what we know about the current state of play.

Criminal charges currently pending against Assange? One

In 2010, a Swedish prosecutor issued an arrest warrant for Assange in connection with a rape allegation while Interpol issued a red notice for his arrest. Assange, an Australian national living in the U.K. at the time, turned himself into British police on Dec. 7, 2010. He received bail 10 days later and went to stay with a supporter for another 550 days. In May 2012, the U.K. Supreme Court ruled 5-2 in favor of recognizing Sweden’s arrest warrant (reasoning that the Swedish prosecutor could be consider “Judicial authority” as required by the 2003 European Extradition Act). Shortly thereafter in June 2012, Assange moved into the Ecuadorian embassy in London, receiving full political asylum in August 2012 and Ecuadorian citizenship in December 2017.

Just shy of five years after Assange took refuge at the embassy, in May 2017, Swedish prosecutors announced they were closing their investigation into the rape charges against Assange. Sweden’s director of public protections, Marianne Ny, said at the time that “all possibilities to conduct the investigation are exhausted” because there was no way for Sweden to formally notify Assange of the criminal suspicions against him. She acknowledged the possibility that an investigation might resume at a later date, should Assange “make himself available.” Sweden dropped charges of sexual assault made by a second woman in 2015 when the statute of limitations expired. (See the Swedish prosecution’s official chronology of developments in the Assange case through January 2017.)

The only criminal charge Assange currently faces is a pending 2012 arrest warrant for “failure to surrender” (a minor bail violation that arose when he obtained asylum from Ecuador, thereby breaching his bail). “Failure to surrender” carries a prison term of three months and/or a level 5 fine (approximately £5000). It officially stands even though Sweden has stopped its rape investigation. While it’s possible that the time Assange has already spent in prison in the U.K., (10 days in Wandsworth Prison in 2010 and 550 days at the home of a supporter while on bail) might count against that sentence. It’s also possible that British prosecutors could argue Assange’s evading of legal process in the U.K. raises to the level of “contempt of court,” which carries a prison term of up to two years.

In 2013, the Obama administration concluded that it couldn’t prosecute Assange without also prosecuting newspapers such as the New York Times and the Guardian which have also published classified materials. Jack Goldsmith wrote a 2010 piece for Lawfare making a related point, while emphasizing the arbitrary distinctions often drawn between publications.

No charges have yet been brought by the Trump administration, but CNN reported in April 2017 that the Justice Department was “close” to bringing criminal charges against Julian Assange. (No charges have been brought since that report.) Around the same time, then-CIA director Mike Pompeo, attacked WikiLeaks: WikiLeaks is “a non-state hostile intelligence service often abetted by state actors like Russia,” Pompeo said. He thus declared, “We have to recognize that we can no longer allow Assange and his colleagues the latitude to use free speech values against us.” Attorney General Jeff Sessions similarly vowed not only to continue and expand the Obama Justice Department’s crackdown on sources, but also to consider the prosecution of media outlets that publish classified information. Benjamin Witttes and Susan Hennessey wrote a piece for Foreign Policy in 2017 on Sessions’s comments observing that:

[W]hat is disturbing in Sessions’s announcement last week, in other words, is not that he is taking leaks seriously, conducting leak investigations, or even that he is reviewing policies with respect to compelling journalists’ cooperation in such inquiries. It is that he is clearly doing so at the political behest of President Trump with his job as attorney general on the line.

Should the Trump administration decide to bring charges against Assange, they have a few different statutory pathways—as University of Virginia Law Professor Ashley Deeks described in 2017. Most commentators tend to point to the Espionage Act, 18 U.S.C. §798 et. seq., which provides:

Whoever knowingly and willfully communicates … or otherwise makes available to an unauthorized person, or publishes … any classified information … obtained by the processes of communication intelligence from the communications of any foreign government … shall be fined under this title or imprisoned not more than ten years, or both.

The Obama administration prosecuted eight government employees under the Espionage Act for leaking classified information to the press, more than double all of the previous US presidents combined.

There are a few other possibilities too. For example, 18 U.S.C. §641 makes it unlawful for a person to receive any record or thing of value of the United States with intent to convert it to his use or gain, knowing that it was stolen. (The punishment is a fine or up to 10 years’ imprisonment.) However, as Ashley Deeks points out, the manual for U.S. attorneys includes certain provisions designed to protect the press from the full enforcement of Section 641. It says, for example, that charges under that law shall not be brought under certain circumstances, such as when the subject of the theft is intangible government property such as information; the defendant used the property primarily for disseminating it to the public; and the property wasn’t obtained by wiretapping, criminal entry, or trespass (which factors would seem to be met in the Wikileaks context). Prosecutors might also consider 18 U.S.C. §1030(a)(1), which punishes the willful communication or transmission of classified information retrieved by knowingly accessing a computer without or in excess of authorization, with reason to believe that such information could be “used to the injury of the United States, or to the advantage of any foreign nation.” While the statute does not specifically address a third party’s receipt of this information, it’s possible that DOJ could assert criminal liability against someone like Assange as a conspirator, aider or abetter, or accessory after the fact.

What was Assange’s role in the 2016 election?

Prior to seeking asylum in 2012, Assange coordinated a series of high-profile document dumps through Wikileaks, including the 2007 release of secret military hardware used by U.S. forces in Afghanistan, the 2010 release of 250,000 State Department cables (Cablegate), and the 2011 release of Guantanamo prison details. While these actions were immediately perceived as national security threats, Assange’s coordination with Russia in the run-up to the 2016 election, and his potential collaboration with members of the Trump team in particular, has become a more predominant concern among the national security community.

In January 2017, the Office of the Director of National Intelligence (ODNI) released Assessing Russian Activities and Intentions in Recent US Elections, a report which concluded with “high confidence” that Russia’s main intelligence directorate (GRU) relayed material it acquired from senior Democratic officials and the 2016 DNC hack to WikiLeaks. It described WikiLeaks’s close partnership with Russian publication RT, one of the Kremlin’s principal outlets for international propaganda.

In April 2018, the House Intelligence Committee also produced a heavily redacted Report On Russian Active Measures, which recognized that “Wikileaks played a key role in Russia's malign influence campaign and served as a third party intermediary for Russian intelligence during the period leading up to the 2016 U.S. presidential election.” The House report concluded that it found “no evidence that the Trump campaign colluded, coordinated, or conspired with the Russian government.” Nonetheless, the report detailed conversations between Wikileaks and Donald Trump Jr. through direct message on Twitter as well as conversations between Roger Stone and Wikileaks.

Democrats argued that the majority House Intelligence Committee report had provided a dangerously partial picture subsequently provided their own report , which argued that Russian intelligence had “used intermediaries and cutouts to probe, establish contact, and possibly glean valuable information from a diverse set of actors associated with President Trump and his campaign,” while stating more work was needed to assess the extent Trump staffers collaborated with Russia. The report argued that because Republicans had not subpoenaed Twitter for records related to communication between the organization of WikiLeaks and its founder Julian Assange with Trumps’s campaign or between the Russian “cutouts” such as Guccifer 2.0 and DC Leaks with Trump’s campaign, “any conclusions reached about witness interaction between the Trump campaign and WikiLeaks or other Russian cutouts is based on an incomplete investigative record.”

The Senate Intelligence Committee Report produced an unredacted summary report in July 2018, which suggested that Russia helped Donald Trump win the election. A full version has not yet been released. The summary does not mention Assange.

Mueller’s July 2018 indictment of 12 Russian military officials states in Count 1, paragraph 6 that “conspirators staged and released tens of thousands of the stolen emails and documents. They did so using fictitious online personas, including ‘DCLeaks’ and ‘Guccifer 2.0.’ Paragraph 7 goes on to say that “the Conspirators also used the Guccifer 2.0 persona to release additional stolen documents through a website maintained by an organization.”

The organization is believed to be Wikileaks; however, Assange has insisted that he did not receive any documents from the Russians. In January 2017 he told Fox news, "Our source is not the Russian government, and it is not a state party." In July 2018, one of Assange’s lawyers, Jennifer Robinson, reiterated that Wikileaks did not collaborate with the Russian state: “WikiLeaks has made very clear they were not engaged in any way with the Russian state with respect to that publication. There is no connection between WikiLeaks and any of those who have been indicted."

On July 27, 2018, ten Democratic Senators published an open letter to Vice-President Mike Pence urging him to raise concerns with President Moreno on his upcoming trip to Ecuador, regarding Ecuador’s support for Assange. The letter states, “the United States is still seeking clarity about the full extent of Russian intervention in our elections and Russian interference in elections across the world, it is imperative that you raise U.S. concerns with President Moreno about Ecuador’s continued support for Mr. Assange at a time when WikiLeaks continues its efforts to undermine democratic processes globally.”

Will Sweden extradite Assange?

It’s highly unlikely that Sweden will extradite Assange. The U.S.-Sweden framework for extradition is governed by the U.S.-Sweden extradition treaty of 1961, the supplementary agreement of 1983, and the 2003 U.S.-EU Extradition Agreement (which supplements and modifies the bilateral treaties the United States has with the various EU member states). While it’s unclear which charges the U.S. would bring against Assange, Article 5(4)-(5) of the 1961 Convention precludes extradition for so-called “political” offenses. While there is no clear definition of what constitutes a political offense in the treaty, Foreign Policy reports that Swedish courts have consistently concluded that espionage is a political offense, famously refusing to extradite former CIA agent Edward Lee Howard in 1992 for his work on behalf of the USSR. Swedish legal scholar Mark Klamberg has outlined the full process for extradition in this blog post, citing a few additional hurdles. He argues first that because Sweden (like the U.K.) is a party to the European Convention on Human Rights, it would be prohibited from extraditing a person who may face the death penalty.

Will the U.K. extradite Assange?

Maybe. The U.S.-U.K. extradition framework is governed by a 2003 bilateral treaty. Article 2 lists the relevant offenses which are extraditable. It is arguably more lenient than Sweden’s framework providing that “[a]n offense shall be an extraditable offense if the conduct on which the offense is based is punishable under the laws in both States by deprivation of liberty for a period of one year or more or by a more severe penalty.” At present, Sweden has dropped the charges against Assange. Should Sweden later reinstate charges or introduce new ones, any extradition request to the U.S. would be governed by U.K. Extradition Act of 2003. It states that in cases where warrants from two countries compete, the home secretary must decide which took precedence based on a variety of factors including: the relative seriousness of the offences, the date the requests were received, and whether the person had been accused or convicted.

As between Sweden and the U.K. or between the U.K. and another EU country, the European arrest warrant (EAW) is instructive. It provides that a warrant issued by one EU country's judicial authority is valid throughout the EU. Unlike traditional extraditions, decisions are made by judicial authorities alone with no political considerations involved.