United States v WikiLeaks

“This whole notion that Assange, who's an Australian, that we want to prosecute him for treason. I mean, aren't they jumping to a wild conclusion?” he added. “This is media, isn't it? I mean, why don't we prosecute The New York Times or anybody that releases this?”

Why indeed?

First among those wanting to lynch Assange, United States Attorney-General Eric H. Holder, Jr, said last week that the Department of Justice is examining whether Assange can be charged with a crime for posting hundreds of thousands of leaked government intelligence documents and diplomatic cables.

Charged for breaking what law exactly?

Notwithstanding that nearly half of the 250,000 internal State Department cables were classified as “confidential” or “secret”. Pointedly, none were “top secret”. Lost in the media fog is the fact that Julian Assange’s actions of publishing were not criminal. I repeat, not criminal.

Assuming Assange can be located and fronts a Swedish court to face allegations of sexual misbehaviour, only then can the United States DOJ try to deal with him. To have him forwarded thereafter to the United States, the Swedish authorities, pursuant to the Extradition for Criminal Offences Act (1957:668) must be persuaded that the offences committed were not “military or political”. This makes life difficult for the DOJ as Sweden, like many countries, allows an “out” extradition requests for "political offenses," and Assange is sure to argue that exposing US foreign policy to a wide audience is a political act.

Of course the United Kingdom may choose to extradite him to the United States instead of sending him to Sweden.

In this case, HM Government will take comfort from Article 15 of the US-UK Extradition Treaty, which requires the government to weigh numerous factors in deciding where and when to extradite, based on the gravity of the offenses and assuming the offense in question is punishable in both jurisdictions.

Disclosing state secrets is covered by the United Kingdom’s Official Secrets Act (1989). Article 5 provides for criminal penalties for disclosing state secrets assuming the disclosure is “by a Crown servant or government contractor without lawful authority”. Last I heard, Assange was not in the employ of the US government.

Even better news for Assange is that Article 4 of the Extradition Treaty mirrors the Swedish escape clause in not granting extradition if the offense for which a request is made is “political”.

That said, it will be a Herculaneum effort to extradite Assange for espionage. Holder could try charging Assange with computer crimes or perhaps criminal copyright infringement and seeing if the extradition requests gets up.

On Sunday, Baruch Weiss, a former federal prosecutor and now litigation partner at Washington law firm Arnold & Porter clarified the difficulty for the DOJ: even if Assange arrives shackled in the United States the story isn’t over: