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Posted at 2:22 PM ET, 12/ 7/2010

Can the U.S. get Julian Assange?

By Jennifer Rubin

The other big news today is WikiLeaks founder Julian Assange's surrender to British authorities. He's not turning himself in for the disclosure of reams of secret documents, but rather to fight extradition to Sweden on rape charges. The Post reports: "Under European law, extradition between two European Union members - such as Britain and Sweden - is a faster, less legally complicated process, making any bid to overturn the extradition request difficult." But what about the U.S.?

Coincidentally, Sen. Dianne Feinstein (D-Calif.) in today's Wall Street Journal calls for the prosecution of Assange under the Espionage Act. The chairwoman of the Senate Select Committe on Intelligence argues:

The law Mr. Assange continues to violate is the Espionage Act of 1917. That law makes it a felony for an unauthorized person to possess or transmit "information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation."

The Espionage Act also makes it a felony to fail to return such materials to the U.S. government. Importantly, the courts have held that "information relating to the national defense" applies to both classified and unclassified material. Each violation is punishable by up to 10 years in prison.

So why not seek Assange's extradition? Well, that's easier said than done.

As Andy McCarthy, a prosecutor of the 1993 World Trade Center bombing, wrote in 2008, the British haven't exactly cooperated with extradition requests in recent years. In fact, the Brits have a habit of blocking such requests:

The U.K. has not only put out the welcome mat for jihadists of other nations. It gives them uncontested space to radicalize other disgruntled Muslims. It swaddles them in the majesty of British civil rights (that would be the liberties forged by the people they are sworn to vanquish). It runs interference for them against the nations on which they prey. It denies Islam could possibly have anything to do with Islamic terrorism. And when all else fails, being a paragon of the post-sovereign order, it punts to the "international community," whose tribunals -- under the laughable banner of "human rights" -- are even more indulgent of those pledged to kill as many humans as possible.

McCarthy related the case of Abu Hamza al-Masari, whom the U.S. wanted to try on charges, among other things, relating to his efforts to set up a terrorist training camp in Oregon.

Andy e-mailed me this morning that this is a prime example of the British asking "for our evidence on the pretext of preparing for extradition, only to use our evidence to bring their own charges." He elaborates:

British police arrested Abu Hamza in 2004 based on the American charges. Yet, rather than risk extraditing him while British public opinion was turning sharply against the Blair government and the U.S. over the war in Iraq, the Brits elected to prosecute him themselves (based on the very evidence they'd demanded to support his extradition). He was convicted in 2006 of inciting race hatred and soliciting murder. In England, this was worth a whopping seven years in prison. With parole and time already served, the real sentence stood to be considerably less.

Andy adds that the European Court of Justice has only made things worse "since anyone in Europe, once his remedies against extradition are exhausted under the law of whatever European country he is in, has a new set of remedies in the ECJ."

Does this sound outrageous? What about our "special relationship" with Britain? Maybe if Obama hadn't returned the Churchill bust, given cheap-o gifts to the queen and prime minister and generally ignored our ally for two years, we might be in a better position to get British assistance in prosecuting someone Feinstein describes as "an agitator intent on damaging our government." In fairness, the British lack of cooperation preceded Obama and will likely continue. Still, it seems we should press the case if we are serious about shutting down Assange and other would-be perpetrators of espionage.

By Jennifer Rubin  | December 7, 2010; 2:22 PM ET
Categories:  law  
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It is more important that Assange be in custody than the U.S. has first dibs on prosecution. What are we going to do? Send Assange to Guantanomo? Last thing the U.S. needs is for AG Holder to engage in an endless extradition fight with the EU.

That Sweden and Interpol managed to drum up a charge based on an argument over condom use is a fair indicator that even the EU wants Assange to stop.

After all, WikiLeaks has data dumps from more countries than the U.S.

More important to stop Assange from sending out his encryption code.

Posted by: K2K2 | December 7, 2010 2:43 PM | Report abuse

Is the tax code fair or efficient???

47% of the country does not pay ANY Federal income taxes.

So WTF is Obama talking about???

Posted by: RainForestRising | December 7, 2010 2:55 PM | Report abuse

Federal Tax Code as it is now

the bottom half pays nothing.

So, Obama is looking at the 50-60 percentile - and comparing that to what the 90-100 percentile pays.

And the whole debate in how much those percentiles in the upper half pay.

Just to be clear.

Posted by: RainForestRising | December 7, 2010 2:57 PM | Report abuse

Pretty heavy words from a prosecutor. Paradoxically this prosecutor is, in fact, attacking his American superiors. By this I mean that it was the American Government themselves who signed the Extradition Treaty with the UK. That Treaty includes a clause providing for the alternative to prosecute the extradition person in the requested country. In fact, this alternative, incorporated to the Treaty, arises from something referred to as INTERNATIONAL LAW.

On the other hand, one might ask, why is this prosecutor crying at all, this person was convicted and sentenced. Who is this person to judge the laws of a foreign country? Most importantly, who is this prosecutor to judge the European Court of Human Rights? Is he serious, claiming that they have made "things worse"?! I simply cannot believe that this person ever worked as a prosecutor, and I truly hope that he isn't work still.

PS. The clause allowing the requested country to prosecute the requested person themselves is never used just because somebody might feel like it. There is a reason for it. Usually that reason being that the requested country is having serious doubts about the prospect for fair trial in the requesting country.

Posted by: jant | December 7, 2010 3:03 PM | Report abuse

"With Assange's next release apparently targeting Bank of America, traders fear a subprime lending scandal will be exposed. Charlie Gasparino talks with someone who has read the leaked files."

Posted by: rcaruth | December 7, 2010 3:53 PM | Report abuse

Maybe if Obama hadn't returned the Churchill bust, given cheap-o gifts to the queen and prime minister and generally ignored our ally for two years, we might be in a better position to get British assistance...
Dang that's some rich, nougaty rightwing thinkin right there.

Posted by: CK_MacLeod | December 7, 2010 3:55 PM | Report abuse

jant at 3:03 PM

The details of extradition are a bit different.

There is a relatively new extradition treaty with UK - in the past few years.

Any Judge in the US has to issue a warrent first - and I believe from there the UK authorities are obliged to hand the guy over.

The question is the death penalty - sometimes the European nations say that if they hand someone over, we have to agree not give them the death penalty.

Subject to that limitation, which may or may not apply here, the US can ask for Assange right now - just get a Judge to ask for him.

Posted by: RainForestRising | December 7, 2010 4:26 PM | Report abuse

@RainForestRising, The warrant is something, the basis for the warrant is something, and then there must be the extradition request itself. What comes to an obligation to "hand the guy over" there is no obligation to do so. Certain criterion must be met before extradition could be granted even in theory. To mention one; double criminality i.e. the offense for which extradition is sought must be a punishable offense in both countries.

What comes to death penalty, that is being dealt with within the Treaties with something that is called specialty assurance. What it means is that the requesting country guarantees that a death penalty will not be handed and/or if it is, it cannot be executed. However, this type of an assurance doesn't just deal with death penalty. It is also given as a general practice to grant immunity to the person over any other possible offenses which occurred before the extradition but which were not included to the so called surrender warrant.

Posted by: jant | December 7, 2010 4:46 PM | Report abuse

"Get" him for what? He has not committed any crimes.

Also the theofascist war criminals of the Bush and Obama regimes can't suppress the evidence of their crimes aganist humanity nor their treason against America just by arresting or murdering the Wikileaks Foundation's spokesman.

The rest of the human rights volunteers will continue to expose these Christanic terrorists and traitors regardless of whether they eliminate Mr. Assange, and certainly the fascists in Washington are well aware of the fact.

Also the corporate traitors at the Bank of America are next on the menu, and throwing human rights leaders in to prison or murdering them won't make that coming BofA exposure stop.

Finally the citizens of the world support and applaud the work that Wikileaks does, it's only the theofascist war criminals and traitors as well as their media lapdogs that want to stop the truth about the Bush/Obama regime's atrocities and mundane crmies from being further exposed.

Overwhelmingly the actual citizens of the world support what the Wikileaks Foundation does. If you look at who'se calling for human rights advocates and activists like Mr. Assange to be murdered or arrested, you see it's right wing domestic terrorist extremists, corporate criminals, the scum of the Earth which are being exposed.

Posted by: DamOTclese | December 7, 2010 6:45 PM | Report abuse

Mr Assange has not violated any laws. The violators are those who authored all the junk that is now being exposed to the American people. What it shows is that there is little or no regard for the welfare of the American people which is trumped by the "game playing" and "smoke and mirrors" that seem to pervade the way the US behaves on the world stage.

Posted by: inewsmaster | December 7, 2010 10:07 PM | Report abuse

I quit using Paypal long ago. All we can do is destroy the financial networks that support terror and let the market punish them for it. That got expensive and looks like the expenses are going up while nobody benefits. The financial network is large and complex with lots of legal people involved. Lawyers will be bankrupted over this. They all wanted to cash in on it, it was the next big thing. Until it was not and now comes the messy part. Between the bad paper and bad plastic, it's hard to tell what's worth the time. Damn romantics always fail first in the line of duty and want you to pay for it. It generated fees and now it will generate legal fees and we have to feed the prisoners. Eat plastic!

Posted by: jobandon | December 8, 2010 3:01 AM | Report abuse

No mercy to the vanquished, children. Provisions are dear.

Posted by: jobandon | December 8, 2010 3:30 AM | Report abuse

Can the U.S. get Assange? Well, Confucious said: "Before you embark on a journey of revenge, dig two graves!" The fact is that the U.S. is so despiced around the world that trying to make Assange a villain would actually make him a hero! I believe we would be better off laughing those Wikileaks cables out, and let them sink in memory as the comedy of diplomatic intringue. If we seek revenge, no doubt we will harvest more global hostility, and that is definitely foolish!

Julian Assange was investigated twice before in Sweden about those supposed sexual molestations. He was cleared, and the prosecutor said then that the case was closed! Now we have those scurrilous allegations that he "molested" those women!!!!! The term "molest" is used worldwide when children are violated by adults, not by consenting adults because the type of the sex they had with someone was not the sex they wished! And if it was not, why they didn't interrupt it? There is here a widespread suspicion that Assange's accusers were promised loads of money and were coached what to say to the Swedish prosecutors to nail him. There is no doubt that this is a political "Gotcha!!!" prosecution related to the Wikileaks cables exposure.

It is apparent, therefore, that Western governments have orchestrated Assange's arrest. And even though Assange was not kicked and beaten like Russian journalists who expose corruption in the Kremlin are, his underground prosecution reflects badly on the Western governments behind it. And if Russia is "a Mafia state" for muffling dissent or exposure of its corruption, those who try to muffle Assange by bribing women to portray him as a rapist are not better. Political history has it that there are two types of S.O.B's for every government. a) Those who benefit the policy and objectives of one government, and they are both tolerated and protected, and b) Those who deemed to be detrimental to the policy and objectives of one government, and they become the targets. Assange found himself to be on the second class of S.O.B's with the Wikileaks exposure, and those exposed -no doubt- have gone on a revenge spree against him.

The good thing about Assange is that he is NOT the S.O.B. of any government, nor he has any political ax to grind. He is just a peace activist, and any one's corruption buster and public exposure nemesis! And as such, he deserves acclaim for giving 6 billion people in the globe a peek inside the cryptic world of rascal diplomacy at work! And he gave that information out raw, untwisted, and as pristine as he got it. Is he guilty for exposing unpalatable truths of undiplomatic characterizations, and our raw mudslinging of both our friends and our enemies in our diplomatic notes? Well, if we think he is, then we would probably behave like another "mafia state" ourselves! Nikos Retsos, retired professor

Posted by: Nikos_Retsos | December 8, 2010 6:43 AM | Report abuse

Most British people deplore the actions of this online Terrorist ...., releasing embarassing internal communiques is one thing, but classified documents revealing sensitive locations which could be attacked makes him complicit with the actions of Al Qaeda ....,

The Americans can land this quisling very easily ...., but you guys are going about it the wrong way ...., the answer doesn't lie in US Laws ...., but our antiquated British Legal system, with many pieces of legislation still lying on our books dating back nearly 1,000 years to feudal times.

For example, how many Americans know that if someone is "deemed a threat to the security interests of the Crown and her allies, they can be declared 'PERSONA NON GRATA' ...., meaning "an individual without status" ...., normally this would only apply to British subjects, however it automatically covers ALL Foreign Nationals in British Jails.

Then there is EU Legislation ....., the EU has the right to revoke ANY documentation including Birth Certificates ...., again normally this would only apply to EU citizens, however as Assange is in a British Jail, even though he is Australian, he is automatically caught.

If an individual is declared PERSONA NON GRATA, then the European Court can revoke their Passport and / or Birth Certificate ...., the individual is then reclassified as a "Biological Entity" ...., with no more rights than a blob of goo in a Petrie Dish in a Lab. It even becomes illegal for the European Media to actually refer to Assange in his previous existance as a Human Being ...., with an automatic EU wide media blackout put in place.

You see in Britain we don't have a Bill of Rights ...., if you try and nail him under US law, you will always hit your 'Freedom of Speech' Barrier ....,

We live in an age where an individual with high levels of Computer Hacking abilities can actually bring down a Government ....., the US have to deal with Assange with extreme prejudice, to deter any other would be Online Terrorists !!! ....., Good Luck !!!

Posted by: British_Ally | December 8, 2010 4:43 PM | Report abuse

There are a couple views of this Wikileaks/document leaks issue that have not been expressed. This is an issue of stolen property. The cables are property of the US government. All the hoop-la over what has been done with the stolen property is irrelevant.

You are walking down the street and happen upon an item of value that clearly belongs to someone else. What do you do? Without regard to its value (monetary, sentimental, or whatever) or apparent importance, the only ethical act is to attempt to return it to its rightful owner. If you cannot identify the owner by yourself, you take it to a “lost and found” or, ultimately, a law enforcement agency, who then attempts to find the owner. It is that way with any type of property, real, personal, or electronic. You don’t keep it. How often things play out ethically in these “lost item” situations, I am not here to judge. There may be no criminal consequences to keeping it on the sly, but it is clearly an ethical problem. I do not think this is quite the situation here, but it’s not far off.

OK. More to the point. An individual comes to you with property that he says he stole. From the nature of the material, it is clear that he is correct. He offers to give it to you. What is the situation? If you accept the property, you are receiving stolen goods. When you are caught with it, you can insist that you did not think it was stolen. When is discovered to be stolen and you received it, you are a felon. It does not make any difference what you do with it, you are a felon. Furthermore, if you do not accept the property, the ethical act is to alert law enforcement to the existence of a possible crime. How often things play out ethically in these “offered stolen property” situations, I am not here to judge. It certainly didn’t happen here.

Bradley Manning appears to be a thief. Though he has not been tried and convicted, what he seems to have done is common thievery, albeit at the highest levels of secrecy. He took something that was not his. Just possessing it makes him a thief. It doesn’t make any difference what he did with it.

Likewise, Julian Assange is a common criminal, open and shut. He received and retained stolen property from Bradley Manning. That appears to be certain. Therefore Julian Assange is a suspected felon. As with Manning, what he did with it doesn’t matter. He is simply guilty of receiving property stolen by Bradley Manning. At this time, Assange is a suspected felon who should be detained and charged for that specific crime. There appears to be no way for Assange or his attorneys to talk his way around the fact that he is in possession of stolen property.

Posted by: MedResearcher46 | December 8, 2010 7:37 PM | Report abuse

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