Does Julian Assange face the death penalty in the United States (if Britain extradites him there for his alleged crimes of publishing confidential documents on WikiLeaks)? The Ecuadorians have ejected him from their London embassy but only after guarantees from UK authorities that he wouldn’t be extradited to somewhere he could face “torture or the death penalty”. If he did face the death penalty in the US, Britain’s Extradition Act 2003 Section 94 would protect him from extradition.
The US does retain the death penalty specifically for treason, but it seems pretty certain 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. Statutory 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 in the law of treason. Death by hanging, drawing and quartering was a Common Law sanction, not for rebellious noble folk.
Only in 1998 thanks to Britain’s Crime and Disorder Act did treason cease finally 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.
The US position
US treason law, in contrast to British, clearly acknowledges that non-nationals do have the requisite allegiance to the United States 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 (see this piece: Do we need a modern treason law) 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, which in England was condemnation by Parliament, 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 above, 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. The updated act, now says in Code 18 Chapter 37, at §794(a) that
“Whoever, with intent or reason to believe that it is to be used to the injury of the United States or to the advantage of a foreign nation, communicates, delivers, or transmits, someone in unauthorised possession of a document including code books, signal books” etc “or information relating to the national defense, shall be punished by death or by imprisonment for any term of years or for life”.
The death penalty only applies when “if there is no jury, the court, further finds that the offense resulted in the identification by a foreign power (as defined in section 101(a) of the Foreign Intelligence Surveillance Act of 1978) of an individual acting as an agent of the United States and consequently in the death of that individual”. It has been alleged that some WikiLeaks material did put agents in danger of 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.
Here is the indictment of May 2019 against Assange
More on treason in Britain: Do we need a modern treason law?
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?
Could Assange have been extradited from Sweden?
It is perhaps of academic interest now, but 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 had been 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.