It looks as if the Obama administration wants it known that it has no intention of prosecuting Julian Assange for publishing confidential documents on WikiLeaks.
This may be true or untrue; if true, the decision may be based on political problems or legal issues. What seems certain, though, is that a treason prosecution, demanded by many in America, is not on the cards.
It is worth looking at the history of US treason law to see why. It started, of course, in England. The original Statute of Treasons of 1351 codified what was generally accepted as the common law definition of high treason:
“If a man compasses [plots] or imagines [proposes] the death of our lord the king, of our lady his consort [the king’s wife] or of their eldest son and heir; or if a man violates [has sex with, whether consensual or not] the king’s consort, the king’s eldest daughter being as yet unmarried or the consort of the king’s eldest son and heir; or if a man makes war against our said lord the king in the kingdom or is an adherent of enemies to our lord the king in the kingdom…”
Any of that constituted treason plus counterfeiting the “great seal” (impressed in wax on documents to indicate they had the monarch’s authority) and coinage or killing the “chancellor, treasurer or justices”.
The punishment at that time was relatively mild. Treason was not a capital offence and the statutory penalties were banishment and attainder – the latter being disgrace of the traitor’s family and dispossession of its property. The possibility of legitimate rebellion and hence a return to favour under a new regime was acknowledged in Magna Carta and hence the law of treason. Death by hanging, drawing and quartering was a later addition.
As the years passed more crimes were added, taken away and added again, depending on the political ebb and flow. The law became particularly strict under Henry VIII – most of his marriages prompted a new Treason Act passed to protect the latest wife’s position and dignity since most of the marriages were controversial, criticised from one side or another on personal, moral, or political grounds. In 1534 Henry (via Parliament) explicitly added treason by words or writing, including printed words, to the classification of treason.
Only in 1998 thanks to Britain’s Crime and Disorder Act did treason cease once more to be punishable by death (life imprisonment is now the highest penalty) but the various offences on the statute books remain in force and it is still couched in terms of treachery towards the monarch rather than the state.
In America, post-independence, treason was something committed against individual states and ultimately against the United States. As far as Assange is concerned the important issue is whether a non-national can be said to have any allegiance to the United States to open him up to a charge of treason.
In England it was generally assumed “aliens” had no such allegiance. But in 2008 the attorney-general, Lord Goldsmith, produced a report (Citizenship: Our Common Bond-pdf) that called for investigation into a “more relevant” treason law – the implication being more relevant in the context of Islamic extremism. Elsewhere he suggests there is an ambiguity in the law in terms of whether it applies to “resident non-British citizens” – do they owe allegiance to the British state?
One cannot help suspecting that, rather than abolition or liberalisation of a much abused set of laws dating back 600 years, Lord Goldsmith intended a tightening up and extension of the law to foreign nationals as well as British citizens in this age of international terrorism. This, after all, has been the history of the treason laws, characterised by knee-jerk responses to whatever threat to the status quo was perceived at any particular time.
The US position
In the US there have been many calls to prosecute Assange for treason on the basis that, conveniently, the penalty could be death. US treason law, in contrast to British, clearly acknowledges that non-nationals do have the requisite allegiance but only if they have some sort of link with America – including being resident or simply staying there for a period.
“Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years” – US treason law
This may be stricter than the British law but in other respects the US law, created in response to a history of injustices and abuses of treason law in Britain, offers factors that would tend to let Assange off the hook.
The American treason law was traditionally a protection for US citizens, allowing traitors to be tried in civilian courts and not as external “enemies” subject to military law and tribunals. This is the position set out in the Treason Clause of the Constitution (Section 110 of Article III), even though it defines treason as war:
“Treason against the United States shall consist only in levying war against them [the United States], or shall adhere to their enemies, giving them aid and comfort within the United States, or elsewhere”.
The word “only” is important – it excludes the English habit of adding crimes to the definition of treason on an ad hoc basis and it has no equivalent of “compassing the monarch’s death”: the law was not updated for republican purposes to cover “compassing the president’s death”.
The US Constitution also bans attainder and protects free speech in a way English law did not. In addition the definition of levying war against the US requires that “there must be an assemblage of persons for the purpose of effecting by force a treasonable purpose. Enlistments of men to serve against government is not sufficient.” (Ex parte Bollman) The act of treason must have been witnessed by at least two people or have been confessed to in a court of law.
The actual law against treason (as opposed to the Constitutional protections limiting any potential law) is in United States Code 18 USC § 2381:
“Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States.”
As noted, the term “owing allegiance” can cover foreign nationals as well as citizens, but it is difficult to see how it would cover an Australian acting against the US interests from abroad.
The 1917 Espionage Act might be another avenue for the prosecution of Assange though it throws up First Amendment issues of free speech and of proving the leaks were capable of damaging the United States’ national security. Now Code 18 Chapter 37, it says at §793(e) that someone in unauthorised possession of a document including code books, signal books etc “or [any] note relating to the national defense, 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” and wilfully communicates it is in breach of the law. But the maximum penalty is 10 years in prison and fines, not death.
Alternatively perhaps Assange could indeed be treated as if waging war as an enemy, rounded up by an ally and rendered to Guantànamo. If the war on terror is truly a war, then he may well have given “aid and comfort” to enemies of the United States and face military justice – like his alleged co-conspirator Bradley Manning.
Why not extradite Assange from Britain?
Supporters of Julian Assange have had some difficulty in explaining why the United States would seek to extradite from liberal, just and democracy-loving Sweden rather than compliant, kowtowing Britain, ever ready to send unwilling victims bound and gagged across the Atlantic.
Assuming the US really, really wants Assange, the real reason why it hasn’t tried to extradite him from Britain is probably a murky mixture of the legal and the political. To say that a treason or espionage prosecution is unlikely to succeed is not the same as saying a charge of some sort cannot be levelled. And only a charge is required to support extradition.
However, Assange has a strong base in the UK with good lawyers and would come before an unconventional and broadly independent judiciary who would relish grappling with an issue like this – and would not necessarily produce the “right” answer from America’s point of view.
It would be difficult (though not impossible) to argue that a man who had committed no offence as far as Britain was concerned (until he jumped bail), had committed an offence as far as the US was concerned. The extradition proceedings would become a highly political trial with all the agitation and protest that that implies and with consequent difficulties for the UK Government. In deference to its close and important ally, the US may have decided not to call in a favour on this one.
That still leaves Assange supporters to explain what would be different in Sweden – though if he were remanded in custody (as now would be inevitable) he would be in severe difficulties in terms of marshalling his legal forces against the might of America. That a capital offence could not be charged would work against him – Swedish legal experts have made clear the country would not extradite someone to a place where he was at risk of the death penalty, but there would be no problem regarding prison.
In addition perhaps the Swedish legal system is different from Britain’s or the judiciary more formalistic in its approach. Perhaps the US would be more willing to bully Sweden than its useful British ally. Who knows? And Assange is in no mood to put the matter to the test any time soon.
Also on the Assange case: Assange, Ukip and Baron Mance three in a bed shocker
And on the extradition issue: Theresa May and the European Arrest Warrant
Also on the EAW: Can Pepper v Hart Save Assange?
A Swedish view from Pål Wrange rebutting the idea that Assange could be extradited is here
And David Allen Green also attacks Five “legal myths” of Assange supporters here (though he relies at point Three in part on the canard that Assange would be protected by an ECHR ban on extradition if threatened with the death penalty: see above)