Published December 09, 2010
LONDON – Some of the WikiLeaks critics who cheered founder Julian Assange's arrest may want to think again.
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, something politicians and pundits including Sen. Joe Lieberman of Connecticut have called for.
That's because Britain has one of the most U.S.-friendly extradition regimes in Europe. Sweden, with its tough media-protection laws, 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.
Assange faces allegations of rape and molestation in Sweden by two women, though he has not been charged. U.S. officials are investigating whether he could be charged in U.S. court under the Espionage Act or other crimes — such as theft of government property or receipt of stolen government property — for publishing troves of secret U.S. diplomatic cables and military documents.
But if they want to try him on those charges, they'll have to get their hands on the elusive ex-hacker 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 the best 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.
That said, extraditions from the United Kingdom are not always straightforward either — a point illustrated by the case of self-confessed computer hacker Gary McKinnon, one of Todner's best-known clients.
McKinnon admits that he broke into U.S. military computers in the months after Sept. 11, 2001, but his extradition has dragged on for more than eight years following arguments over McKinnon's human rights and whether he is fit to stand trial because he has Asperger syndrome, a type of autism.
Although the McKinnon case is exceptional, yearslong extradition delays aren't unusual. And there's no guarantee that, in Assange's case, WikiLeaks would stop publishing secret U.S. government documents while Washington sought his extradition.
"It can take a very long time," Sommer said. "Periods of 18 months to two years might not be unusual."
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 Lieberman, 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.
Louise Nordstrom in Stockholm and Juergen Baetz in Berlin contributed to this report.