Obama smacked in the mouth

[Gob]

http://en.wikipedia.org/wiki/Extradition_Act_2003

[Sue U]

The short answer is that espionage is a "political crime" and therefore not subject to the relevant extradition treaties.

The rationale is quite sensible: what constitutes politics in one country may be a crime in another.

[Gob]

What constitues a "crime" in the USA, would be the government saying; "Oops, we've been found out and exoposed" then?

[Lord Jim]

What constitues a "crime" in the USA, would be the government saying; "Oops, we've been found out and exoposed" then?

I wouldn't be so sanguine on that point Strop....

From what I've read about the provisions of the British "Official Secrets Act" it makes us look like a bunch of pansies...

[Lord Jim]

Let me put it this way:

Just as I predicted, (correctly) that Guantanamo would not be closed....

And just as I predicted, (correctly) that the enemy combatants there would never be transferred here for civilian trials....

And just as I predicted, (correctly) that Yoo and Bybee would not only never face any criminal charges, that they would never even be disbarred....

And just as I predicted, (correctly) that the Obama Administration would not seek criminal charges against any member of the Bush Administration for decisions or actions they took in the performance of their duties.....


Lord Jim NOW predicts....

That at the end of the day, whether he is in British or Swedish hands, an indictment and extradition request will be crafted that will ultimately result in Asswipeange being sent to the US to face justice....

You can say whatever you want....

I stand on my record....

[Sean]

It's just what I read LJ. I'm at work now so I'll look it up...

[Scooter]

I stand on my record....

So says the guy who wanted Sarah Palin to be one heartbeat away from the launch codes.

[Andrew D]

I'm interested to know what the charge on the extradition request will be. I read somewhere recently ( I'll look it up when I have more time) that espionage is not covered by the extradition treaty between the UK and the US.

That appears to be the case, as reported by the BBC here:

The US government will face significant legal and diplomatic hurdles if it attempts to prosecute Wikileaks founder Julian Assange in connection with the massive internet dump of secret US documents, legal scholars, defence lawyers and former prosecutors say.

Mr Assange is currently held in Britain awaiting possible extradition to Sweden on sex crime charges. But the US authorities have made it clear they hope to prosecute him in the US over the release of thousands of classified diplomatic cables.

US Attorney General Eric Holder said officials were pursuing a "very serious criminal investigation" into the matter.

Yet while Mr Assange has widely acknowledged his role in disseminating classified documents, legal experts say US criminal statutes and case law do not cleanly apply to his case.

US espionage law has been used to prosecute US officials who provided secrets to foreign governments or foreign spies who pursued US secrets.

But Mr Assange, an Australian citizen, former computer hacker and self-described journalist, did not work for the US government, has no known links to foreign governments, and operates on the internet, by all accounts far from US soil.

Proof of harm

No single US law makes it a crime specifically to disclose classified government documents, but legal experts say the government would most likely prosecute under the Espionage Act of 1917, although Mr Holder cited "other tools at our disposal".

Under the Espionage Act, prosecutors would have to prove Mr Assange was aware the leaks could harm US national security, or show he had a hand in improperly obtaining them from the government.

* * *

If Mr Assange were convicted, on appeal he could claim that he is a journalist afforded free speech protections under the US constitution - and would have a strong defence, some legal experts say.

"Leaks of classified information to the press have only rarely been punished as crimes, and we are aware of no case in which a publisher of information obtained through unauthorized disclosure by a government employee has been prosecuted for publishing it," wrote Jennifer Elsea, a legal researcher for the US Congress, in a report obtained by the BBC.

Apart from the Espionage Act, another statute criminalises the taking of government secrets through unauthorised access to a computer, but prosecutors would have to show Mr Assange had a hand in obtaining the documents from the government.

And a law that punishes the theft of government records or property has never been used to prosecute recipients of the information, Ms Elsea wrote.

"There appears to be no statute that generally proscribes the acquisition or publication of diplomatic cables," she added.

Mr Assange's lawyers could also argue in court that the Espionage Act does not apply to foreign nationals acting outside of US territory.

But even getting Mr Assange to the US would prove troublesome, according to Jacques Semmelman, a New York lawyer and authority on extradition law.

Espionage is seen as a political crime, and political offences are not subject to extradition under the US-UK, US-Sweden and UK-Sweden treaties, Mr Semmelman said.

(Emphases added.)

Other interesting points are made in an MSNBC report here:

LONDON — A lawyer for WikiLeaks founder Julian Assange said Friday that she expects the U.S. to indict him soon, but the prospect of Assange being sent to Sweden in a sex-crimes inquiry may make it less likely that he'll wind up before an American judge.

While Britain, where Assange is being held, has one of the most U.S.-friendly extradition regimes in Europe, Sweden may not be so quick to hand the 39-year-old Australian over.

"(U.S. officials) might be well advised, if they think they have a basis, to try to extradite him while he's still here," said Peter Sommer, a cybercrime expert at the London School of Economics.

* * *

A Justice Department official told NBC News on Friday that legal action against Assange "is not imminent." The U.S. government is moving slowly because it wants to make sure the prosecution is on solid ground, officials said.

* * *

U.S. Attorney General Eric Holder this week authorized a criminal investigation into Assange. But if U.S. officials want to try him on those charges, they'll have to get their hands on the elusive Web activist first.

Britain and the United States signed a fast-track extradition treaty in 2003, a pact aimed at ensuring that terrorists and money launderers could more easily be taken from one country to stand trial in another. Karen Todner, a lawyer who has been involved in several high-profile extradition cases, said from a U.S. prosecutors' point of view, Britain would be the best place in Europe to seek a suspect.

"Nowhere is more favorable to the U.S.," she said.

Sweden has a long history of neutrality and its press freedom laws were recently rated as among the most liberal in the world, according to Reporters Without Borders. Extraditing Assange for what many in the Nordic country consider an act of journalism would be tricky.

* * *

Then there are legal arguments. The United States would have to show that what it considers a crime is also considered a crime in Britain before any extradition can go ahead, something Sommer said was not easy.

"Maybe the U.S. Espionage Act is similar to the U.K. Official Secrets Act," he said. "Maybe it isn't."

Sommer also said Assange's lawyers would probably argue he would not receive a fair trial in the United States, where prominent pundits have called for him to be indicted, hunted down or even put to death.

Sarah Palin, the former U.S. vice presidential candidate, called Assange "an anti-American operative with blood on his hands" and questioned why he wasn't "pursued with the same urgency we pursue al-Qaida and Taliban leaders."

Republican Sen. Mitch McConnell of Kentucky described Assange as "a high-tech terrorist," while Sen. Joe Lieberman, I-Conn. and another former vice presidential candidate, characterized Assange's actions as the "most serious violation of the Espionage Act in our history."

Those statements may end up backfiring, Sommer said.

"Lieberman, in his desire to get headlines, may be impeding efforts to bring Assange into the United States," he noted.

It also isn't clear whether British prosecutors have much appetite to pursue Assange.

British authorities have generally condemned the disclosures, but unlike Australia, whose attorney general has pledged to investigate Assange, officials here don't seem to be in any hurry to put him or his network of activists under the legal microscope.

Justice Secretary Ken Clarke told Britain's Channel 4 News he didn't know much about WikiLeaks and hadn't had any contact with U.S. officials about it. While he condemned the WikiLeaks disclosures, he also struck a sympathetic note.

"I disagree with what WikiLeaks has done," Clarke said, citing the damage it had dealt to international diplomacy. But he added: "some of the things it's revealed — let's be fair — are of genuine public interest."

"On balance it's done a great deal of harm, but that's not a criminal offense," Clarke said.

Some WikiLeaks supporters fear that Assange is being sent to Sweden so he can then be extradited to the United States — but Swedish officials say that would be impossible without British approval.

The Swedish Prosecution Authority has issued a statement saying Sweden does not simply hand people over. That's particularly true if the country requesting extradition lies outside the European Union.

Non-EU countries seeking a suspect who has been extradited to Sweden under a European arrest warrant would have to seek the permission of the EU nation that made the arrest in the first place — Britain, in Assange's case.

(Emphases added.)

Further interesting points are made in a McClatchy-Tribune report here:

WASHINGTON — Angry over the bombardment of leaks of classified material, top Obama administration officials are considering filing an extradition request with Sweden to have WikiLeaks founder Julian Assange face criminal charges, possibly for espionage.

Any such proceedings would set up a test of whether the First Amendment's protection for a free press extends to a website with a worldwide audience.

"What we're investigating is a crime under U.S. law," P.J. Crowley, a top State Department spokesman, said Tuesday. "The provision of 250,000 classified documents from someone inside the government to someone outside the government is a crime."[*]

His remarks mirrored sharp words Monday from Attorney General Eric H. Holder Jr., who said prosecutors are weighing not only espionage but other crimes as well against the Australian citizen who through his website postings has embarrassed much of the U.S. diplomatic apparatus.

"We have a very serious criminal investigation that's under way, and we're looking at all of the things that we can do to try to stem the flow of this information," Holder said.

Holder added that prosecutors are looking beyond just espionage, and said that "there are other statutes, other tools that we have at our disposal." Among them, according to law enforcement sources, is charging Assange with receiving stolen property.

* * *

Mark Ellis, executive director of the International Bar Association, said in an interview that ... Sweden would not turn Assange over to the U.S. unless it is assured that he will not face the death penalty. Although espionage carries a potential death penalty sentence, capital punishment is banned in much of Europe.

In addition, Ellis said, Assange certainly would fight extradition to the U.S., where his name has become anathema to many in Washington.

"This will not be an easy process," Ellis said. "It will be fairly drawn out. It's something that's going to be quite lengthy and quite challenging."

Once he arrives in Sweden, Ellis said, the first step for the U.S. would be to file a written request with that government outlining in detail exactly what charges might be brought against Assange here. "They would want to show that they have the evidence he has violated U.S. law," Ellis said. "The charges should be very specific, that we have the evidence ... to show that he violated the Espionage Act, for instance." Also, Sweden must have the same crime on the books that the U.S. would bring against Assange.

Last week the U.S. government notified Assange that he has been treading very close to criminality. In a Nov. 28 letter to him and his attorney, Jennifer Robinson of London, the State Department warned it was illegal for the classified material to have been provided to Assange and that "as long as WikiLeaks holds such material, the violation of the law is ongoing."[*]

Since 1917, the Espionage Act has made it a crime to "willfully communicate" secret government information that could harm national security. Yet, during all that time, the government has shied from prosecuting journalists or the news media for publishing classified information. The First Amendment's freedom of speech and the press has protected journalists in the past, though it is not clear whether the courts would consider Assange a journalist.

But experts in national security law say the WikiLeaks founder is likely to face prosecution because of the scale and brazenness of his operation.

"I think there is a very good chance of a prosecution" under the Espionage Act, said Washington lawyer Jeffrey H. Smith, a former general counsel at the CIA. "His actions are not those of a responsible journalist that would enjoy the protection of the Constitution. He solicited people to commit a crime by sending him classified information. And then he disclosed it on a transmission belt."

In the past, the government has been more willing to prosecute leakers of classified information rather than journalists who publish it, said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press. Assange could have "a pretty good defense," she said, if it were shown the classified cables were sent to WikiLeaks without his involvement. The Supreme Court has said the "innocent recipient of unlawful information" is usually protected in publishing it, she said.

(Emphases added.)

So, assuming the accuracy of the reports, there appear to be some formidable obstacles to Assange's extradition to the U.S:

(1) If espionage is considered a political offense in Britain, then Britain will not extradite him.

(2) If espionage is considered a political offense in Sweden, then Sweden will not extradite him.

(3) If espionage is considered a political offense in Britain, but not in Sweden, then Sweden either might not or will not extradite him. (Sweden will not extradite him without Britain's approval, but I suppose that it is possible that Britain would grant its approval even if espionage is considered a political offense in Britain.)

(4) If the act(s) which Assange is alleged to have committed is/are not criminal in Britain, then Britain will not extradite him.

(5) If the act(s) which Assange is alleged to have committed is/are not criminal in Sweden, then Sweden will not extradite him.

(6) If the act(s) which Assange is alleged to have committed is/are criminal in Britain, but not in Sweden, then Sweden either might not or will not extradite him. (Sweden will not extradite him without Britain's approval, but I suppose that it is possible that Britain would grant its approval even if the act(s) which he is alleged to have committed are not criminal in Britain.)

(7) If the U.S. cannot demonstrate to Sweden's satisfaction that the U.S. has the evidence necessary to prove that Assange is guilty of whatever crime(s) he is charged with, then Sweden will not extradite him. (That may also be true of Britain.)

(8) If the U.S. refuses to take the death penalty off the table, then neither Britain nor Sweden will extradite him.

It should be very interesting to see how this plays out.

-------------------------

* As I have previously pointed out, notice the careful language used by the Justice Department and the State Department: "The provision of ... classified documents from someone inside the government to someone outside the government is a crime." And "it was illegal for the classified material to have been provided to Assange ...." Both of those statements mean that it was illegal/criminal for Manning to provide the information to Assange. But the Justice Department and the State Department conspicuously did not say that the receipt of classified documents by "someone outside the government" generally, or by "Assange" in particular, is a crime (or is otherwise illegal).

[Andrew D]

It is true that Lord Jim has record of correctly predicting miscreancies.

He correctly predicted that the government would continue to engage in the brazenly immoral practice of detaining people without charge or trial. And he correctly predicted that Boalt would continue to defile itself by retaining as a professor the man who made the permissibility of torture the official policy of the U.S.

If you want to know what ought not to happen, just ask him what will happen.

[Lord Jim]

It is true that Lord Jim has record of correctly predicting miscreancies.

Or perhaps I have a record of demonstrating that I understand how The Laws Of Political Dynamics work in "the real world"....

[Lord Jim]

I'm not perfect...

I really blew it big time in the winter of 2003, when I confidently predicted that Bush would be re-elected in 2004 with 400 plus electoral votes...

My prediction on that occasion was based on my assumption (based on all the polling data, and his money raising operation) that Howard Dean would win the Democratic nomination....

I admit that I failed to foresee his meltdown....

However, I did redeem myself somewhat during that election cycle, when I made this observation at the time of the Democratic Convention:

Critiques On The Demo Convention Speeches...

1.Barak Obama:

What can I say...simply magnificient. This guy is so good it's scary. If he's this polished and masterful a performer with so little experience in "the big leagues" what's he going to be like after a few years in the Senate? Though his positions are far more Liberal, 90% of the speech he gave could have been delivered by Ronald Reagan.

http://www.cybersoapbox.com/SMF/index.p ... #msg141933

[Andrew D]

By the way, even if neither Britain nor Sweden extradites Assange to the U.S., the U.S. can kidnap him. The Supreme Court has repeatedly held that the fact that a defendant was abducted in order to be brought before a U.S. court does not deprive the U.S. court of jurisdiction to try the defendant. (See U.S. v. Alvarez-Machain[/u], 504 U.S. 655 (1992) (defendant kidnaped from Mexico); Ker v. Illinois, 119 U.S. 436 (1886) (defendant kidnaped from Peru); see also Frisbie v. Collins, 342 U.S. 519 (1952) (defendant kidnaped from Chicago and tried in Michigan).)

There is an exception to that rule: If the extradition treaty between the U.S. and the nation from which the defendant is kidnaped prohibits the kidnapping of the defendant by one nation from the other nation, then the kidnapping nation does not have jurisdiction to try the defendant. (See Alvarez-Machain at 663 ("The Treaty says nothing about the obligations of the United States and Mexico to refrain from forcible abductions of people from the territory of the other nation, or the consequences under the Treaty if such an abduction occurs.") and 664 (the Treaty "does not purport to specify the only way one country may gain custody of a national of the other country for the purposes of prosecution.").)


Neither the U.S. - U.K. treaty nor the U.S. - Sweden treaty appears to contain such a provision. So the U.S. is free just to go get Assange whether Britain or Sweden likes it or not.

[Andrew D]

It is true that Lord Jim has record of correctly predicting miscreancies.

Or perhaps I have a record of demonstrating that I understand how The Laws Of Political Dynamics work in "the real world"....

Or perhaps your good record with respect to realpolitik -- "a theory of politics that focuses on considerations of power, not ideals, morals, or principles" -- derives from your affinity for it.

[Lord Jim]

That's interesting....

Gee, I wonder why there would be extradition treaties between countries that included no prohibitions against the other signatory "kidnapping" a person from their soil...

That would seem to be a glaring oversight....

Unless of course the agreements were deliberately structured that way....

[Scooter]

Perhaps most countries respecting the rule of law would presume that another law abiding nation would not engage in criminal acts in order to execute its laws?

Just a thought.

[Lord Jim]

Perhaps most countries respecting the rule of law would presume that another law abiding nation would not engage in criminal acts in order to execute its laws?

Well perhaps you have a point....

After all, most international agreements are thrown together without much attention to detail....

Or perhaps...

(Hopeless cynic that I am, I have to put forward this possibility....)

The law abiding nations didn't address this because they assume that the other law abiding nations wouldn't engage in that activity without good cause...(and no doubt alert them)

And because they wanted to preserve the right for themselves....

And because when and if it happened, they could publicly huff and puff with outrage, while not really having to do anything....

But like I said, maybe I'm just being cynical....

In any event, while this makes for an interesting philosophical conversation, as a practical matter the odds of a scenario like that taking place in this case approach absolute zero, for a whole host of reasons....

Starting with the fact that there's no need for those sorts of dramatics....

an indictment and extradition request will be crafted that will ultimately result in Asswipeange being sent to the US to face justice....

[Lord Jim]

Or perhaps your good record with respect to realpolitik -- "a theory of politics that focuses on considerations of power, not ideals, morals, or principles" -- derives from your affinity for it.

Gee, you say that like it's a bad thing....

Or perhaps not so much my "affinity" as my "understanding".....

[Andrew D]

Except that mere "understanding" does not explain why you think that holding people indefinitely without charge or trial -- without adducing even the tiniest shred of evidence that they have done anything wrong at all -- is a good thing. Nor does it explain why you think that a prestigious law school's keeping on its faculty a person who tries to justify torture is a good thing. "Affinity," however, explains your policy preferences perfectly.

[loCAtek]

Hell, why not pin him with the murders of JFK and Jimmy Hoffa while we're at it.

Reviewing the record, you are quite right, you never out and out accused him of espionage, which makes your decision to parrot that article from the UCMJ even more bizarre.

He obviously had the intent to injure national security.

So now we can add "mind reader" to the long list of your ersatz qualifications.

Nope I've been reading his list of charges.

Also found his charges;

Three specifications of violating United States Code Title 18, Section 1030(a)(1), for disclosing classified information concerning the national defense with reason to believe that the information could cause injury to the United States

Preferral-of-Charges

[loCAtek]

The military's position is that he is guilty of neither treason nor espionage; otherwise they would have charged him with same. If you disagree, take it up with the JAG.

I never did disagree with that, you're confusing my statements with Lord Jim's.

Manning's charges as they are, could very well incarcerate him for 52 years.