How can America prosecute Assange?

[Quartz]

I’ve read variously that America wants to prosecute Assange over the release of American secrets by Wikileaks. But Assange is not an American citizen - he’s Australian - and the alleged offence was not committed on American soil, so how can America prosecute him?

I mean, sure if they were to kidnap him and take him to America a la Mordecai Vanunu…

[Captain_Amazing]

Theoretically, if the US wants to prosecute him, it would claim jurisdiction under the Protective Principle, which is a principle of international law that says that a state has the right to criminalize behavior acting outside of its borders if the beavior threatens the security of the state. How the US would physically get its hands on him is another question.

[Markxxx]

Here’s one theory:

The more likely legal basis for the US government to prosecute Assange, argue Hafetz and Banks, would be the so-called Espionage Act of 1917. Under the law, explains Banks, the US would have to prove three things: One, that he had unauthorized possession of information related to national security; two that he could bring harm to the US or aid an enemy; and three that he had willfully kept that information after the US demanded that he return it.

Full article at Deutsche Welle

[friedo]

@Captain_Amazing

Theoretically, if the US wants to prosecute him, it would claim jurisdiction under the Protective Principle, which is a principle of international law that says that a state has the right to criminalize behavior acting outside of its borders if the beavior threatens the security of the state. How the US would physically get its hands on him is another question.

The way the US would get its hands on him is by petitioning whatever country he is in to extradite him. Whether the extradition is successful or not would depend largely on any extradition agreements between the US and that country, and local law in that country.

That, of course, presumes that we know where he is.

[Diogenes_the_Cynic]

I think the US would have a hard time getting the rest of the international community to buy into that, and that Assange will have no trouble finding a country who will deny extradition if he has to.

[XT]

Aren’t there a number of other countries looking to put their hands on him as well? Or is it just the US? He does seem to be rather focused on hurting the US, but I thought I read somewhere that there were other countries after him as well.

-XT

[Diogenes_the_Cynic]

@xtisme

Aren’t there a number of other countries looking to put their hands on him as well? Or is it just the US? He does seem to be rather focused on hurting the US, but I thought I read somewhere that there were other countries after him as well.

-XT

Sweden has a warrant out for him on some rather questionable rape charges (the nature of the charges is pretty odd, apparently the accusers say the sex was consensual but that he refused to wear a condom). Assange adamantly denies the charges and says it’s a smear campaign. He’s out of Sweden now anyway. I’m not aware of any other countries with warrants for him.

[XT]

Is that the Interpol warrant issued to arrest him? That only involves Sweden?

-XT

[Captain_Amazing]

The Interpol warrant is in regard to the Swedish rape charges, yes.

[XT]

Right, but isn’t it an international warrant? Does that mean it’s only good in Sweden, or that he can be picked up in other countries? What I’m trying to determine is if DtC’s statement that other countries haven’t issued warrants is meaningful. If this warrant is good enough to take him outside of Sweden then it wouldn’t be meaningful that only Sweden has issued a warrant, since he could be picked up or arrested if he’s somewhere else in Europe regardless.

ETA: Though if he were picked up in another country and extradited to Sweden I doubt that would help the US put it’s hands on him anyway, which is what the OP was asking.

-XT

[JoelUpchurch]

It looks like Sweden is trying to extradite him. The best information indicate he is somewhere in England now.

http://www.guardian.co.uk/media/2010/dec/01/police-seek-julian-assange-rape-claims

[Bricker]

@xtisme

Right, but isn’t it an international warrant? Does that mean it’s only good in Sweden, or that he can be picked up in other countries? What I’m trying to determine is if DtC’s statement that other countries haven’t issued warrants is meaningful. If this warrant is good enough to take him outside of Sweden then it wouldn’t be meaningful that only Sweden has issued a warrant, since he could be picked up or arrested if he’s somewhere else in Europe regardless.

ETA: Though if he were picked up in another country and extradited to Sweden I doubt that would help the US put it’s hands on him anyway, which is what the OP was asking.

Interpol doesn’t issue arrest warrants.

[Schnitte]

@Captain_Amazing

Theoretically, if the US wants to prosecute him, it would claim jurisdiction under the Protective Principle, which is a principle of international law that says that a state has the right to criminalize behavior acting outside of its borders if the beavior threatens the security of the state. How the US would physically get its hands on him is another question.

Absolutely spot on. Under international law, a state needs a ground for jurisdiction to legislate an issue, or to enforce one of its laws. Territoriality (the place where the act was committed) is one, and the most important, ground for jurisdiction, but others exist, such as the protective principle.

Actually getting hold of Assange would not suffice. When Pinochet was arrested in the UK, the central issue of the ensuing legal controvery was whether the UK had jurisdiction to try him (which was necessary for the UK to extradite him to Spain, as requested by Spain). Of course a state can arrest a person on its own soil, but that does not necessarily mean the state has jurisdiction for the act for which the person was arrested.

[Captain_Amazing]

@Bricker

Interpol doesn’t issue arrest warrants.

Right. What they issue is something called a Red Notice, which is something saying, “Just so you know, Country X has issued an arrest warrant against this person, and they’d like it if you could arrest and extradite him to them.”

Here’s Assange’s red notice.

http://www.interpol.int/public/data/wanted/notices/data/2010/86/2010_52486.asp

[BrotherCadfael]

As a general rule, American courts don’t care how a person came to appear before them (with certain exceptions). Thus, if an international bounty hunter (do they even exist?) were to find him, kidnap him, and bring him to the States, there would be no legal impediment to arresting him, arraigning him, trying him, and punishing him.

[Baron_Greenback]

@BrotherCadfael

As a general rule, American courts don’t care how a person came to appear before them (with certain exceptions). Thus, if an international bounty hunter (do they even exist?) were to find him, kidnap him, and bring him to the States, there would be no legal impediment to arresting him, arraigning him, trying him, and punishing him.

What would he be tried with?

[Schnitte]

@BrotherCadfael

As a general rule, American courts don’t care how a person came to appear before them (with certain exceptions). Thus, if an international bounty hunter (do they even exist?) were to find him, kidnap him, and bring him to the States, there would be no legal impediment to arresting him, arraigning him, trying him, and punishing him.

That’s not only a rule of American law, it’s also a rule of international law that the circumstances making the capture of a person unlawful (under international law) do not affect the legality of the person’s detention (again, under international law - it is perfectly possible that something is lawful under national law but illegal under international law, or vice versa): Male captus, bene detentus.

[Capt.Ridley_s_Shooting_Party]

@Baron_Greenback

What would he be tried with?

And, more importantly, what could he be tried with which would not also apply to the NYT journalists who are reporting on the leaks? What makes Assange special? He’s just passing on information that was handed to him by others, the same as the NYT journalists are doing.

[Tom_Tildrum]

Here is a general discussion of US jurisdiction to prosecute crimes committed abroad.

[Spoke]

@Baron_Greenback

What would he be tried with?

Slate tackles that question today:

The first question is whether Assange violated any federal law. Justice and Defense Department officials have focused on a section of the 1917 Espionage Act that makes it a crime punishable by up to 10 years in prison for anyone “having unauthorized possession of … any document … or 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,” either to “willfully communicate … the same to any person not entitled to receive it,” or to “willfully retain the same and fail to deliver it to the officer or employee of the United States entitled to receive it.”

The article goes on to discuss Constitutional issues.