This post has been updated.
By Aaron Blake
The Washington Post
Americans woke up Thursday morning to the news that WikiLeaks founder Julian Assange had been evicted from the Ecuadoran Embassy in London and arrested by British authorities. The man whose organization published emails the U.S. government has said were hacked by Russia during the 2016 election campaign is now in the custody of a top U.S. ally, with which the United States has an extradition agreement.
The question now is what happens next — and specifically whether Assange will be extradited to the United States. It could be years before that is resolved, though experts say it’s more likely than not that he will wind up in a U.S. courtroom one day.
Assange was initially arrested in the United Kingdom at a time when he was accused of rape and sexual assault in Sweden, but after posting bail in 2012, he fled to the embassy. Sweden has since dropped the charges. On Thursday, after the Ecuadorans allowed London police in to arrest him, a British court found Assange guilty of “breaching bail.”
More significant, though, is his possible extradition to the United States. It was inadvertently revealed in a court document last year that Assange had been charged with an unknown crime or crimes by the Justice Department under President Trump. The unsealing Thursday of a U.S. indictment against him shows that the charge stems from his disclosure of sensitive U.S. government documents related to the Iraq War in 2010, which were passed to WikiLeaks by an Army intelligence analyst now known as Chelsea Manning. Assange has been charged with conspiracy to disclose classified information that could be used to injure the United States.
Importantly, the charge does not involve WikiLeaks’ publication of Democratic emails during the 2016 campaign — documents that the U.S. government says were hacked by Russia as part of an effort to interfere in the 2016 election on behalf of Donald Trump. It’s also very important to note that Assange is not charged with anything having to do with actually publishing materials in 2010 — a distinction that U.S. officials hope will avoid thorny First Amendment issues involving journalistic freedoms. Instead, he is charged with conspiring with Manning to illegally access those materials in the first place.
Assange has long argued that his arrest in Britain was a pretext for his extradition to the United States, and that was clearly on his mind as he was taken into custody by British authorities on Thursday. As he was being hauled away, a video showed him saying, “The U.K. must resist.”
Eric Lewis, an expert on extraditions who has worked on ones involving the United States and Britain, said Assange’s defense could involve four types of objections:
Dual criminality: Extradition requires the charged crime to be a crime in both countries, so it would have to be proven that this conspiracy charge is also a crime in Britain.
Specialty: Is the charge against Assange all that he will be charged with. There has been some question as to whether the U.S. government might at a later date charge Assange with crimes more directly related to his publishing of sensitive information. Britain could object to that, although this exception is usually waived by the extraditing country. And if Assange were to arrive on U.S. shores, he would not be exempt from further charges.
Political offenses exception: This involves whether Assange can make the case that he is being politically targeted. This has come up, for instance, when it comes to Turkey’s desire to have Fethullah Gulen, a cleric opposed to Turkish President Recep Tayyip Erdogan, extradited from the United States.
Freedom of expression: Assange will emphasize that he was acting as a journalist and should not be criminally punished for his speech. The United Kingdom, it bears noting, doesn’t have the same press freedoms as the United States.
Lewis said No. 4 is likely to be the crux of the matter, but that a resolution could take “years rather than months.”
“Even if U.S. and the U.K. agree, he has a right to challenge it all the way to the Supreme Court of the United Kingdom,” Lewis said.
In the meantime, Assange could face sentencing for skipping bail, which carries a penalty of up to a year in prison. Even if the process lasts beyond his sentence, though, he could be held under “provisional arrest.” Assange’s lawyers could apply for bail, but that would seem unlikely to succeed given that he has already been convicted of breaching his previous bail.