The Legal Framework of Extradition and the Case of Julian Assange Features
The Legal Framework of Extradition and the Case of Julian Assange

Julian Assange is among the most polarizing public figures of the 21st century thus far. In the nearly two decades since he established WikiLeaks, a website that gained infamy in the aughts for its release of millions of classified documents and related analyses, Assange has galvanized free speech advocates, incensed national security stalwarts, and fostered debate over the relative limits of fundamental rights and security with respect to the other.

And this week, Assange once again attracted global media coverage and lured protestors to the UK High Court as his lawyers began a last-ditch effort to prevent his extradition to the US, where he stands accused of 18 charges related to his release of classified US documents via WikiLeaks. During a two-day hearing on February 20 and 21, 2024, a panel of two judges reevaluated a previous UK High Court ruling from June 6, 2023, which dismissed all eight arguments in Assange’s appeal against the extradition order signed by former UK Home Secretary Priti Patel in June 2022.

Earlier this week, we released an explainer on the background of the Assange case, which covers the US charges and Assange’s background in greater detail. In this explainer, we will delve more deeply into the legal underpinnings of the current extradition efforts.

What is the procedural background of the present appeal? 

This week’s hearings mark what could be the end of a years-long battle by Assange to avoid extradition.

In January 2021, a UK district judge rejected the extradition request based on concerns that US prison conditions could drive Assange to commit suicide. Later that year, a higher court reversed the decision and approved Assange’s extradition. In June 2022, then-UK Home Secretary Priti Patel formally approved his extradition to the US. Assange appealed the order, arguing that the relevant US-UK extradition treaty prohibits extradition on political grounds. In June 2023, the High Court rejected this appeal. In Feb. 2024, Assange filed his final bid to avert extradition.

During the two-day hearing this week, a panel of two judges reevaluated the June 2023 judgment. If all grounds for appeal are dismissed, Assange will have exhausted all legal options in the UK, presumably leading to his imminent extradition.

What’s at stake for Assange if he is extradited to the US? 

In the US, Assange faces 18 counts related to the alleged acquisition and dissemination of military and intelligence leaks. 

Should Assange be extradited to the US, he could face up to 175 years in prison under the US Department of Justice’s latest superseding indictment. This breaks down to a maximum penalty of 10 years for each count of violating the Espionage Act (18 U.S.C. § 793) and five years for the computer intrusion charge (18 U.S.C. § 371). Notably, the indictment does not charge Assange with espionage but with the unauthorized obtaining and disclosure of national defense information, which is treated similarly under US law.

The possible 175-year sentence was described as “effectively a death sentence” in a December 2023 US Congressional resolution that earned the support of high-profile lawmakers from both the Republican and Democratic parties — an increasingly rare feat in an otherwise profoundly divisive era in US governance.

What does UK law say on extradition?

Amid a legal saga that has spanned decades, Assange’s possible extradition poignantly encapsulates the tensions between national security, freedom of expression, and human rights.

At the crux of this major legal battle is the UK’s Extradition Act of 2003, which provides the statutory framework for the US’ extradition request. The Act requires that the dual criminality principle is satisfied, meaning the actions Assange is accused of in the US must also constitute a criminal offense in the UK. This forms one of the fundamental tests for the permissibility of extradition under UK law.

Human rights, enshrined in the UK’s Human Rights Act 1998, are integral to the Assange case. Article 3 of the European Convention on Human Rights (ECHR), which the Act incorporates into UK law, proscribes extradition where the individual is at risk of torture or inhumane treatment. Assange’s defense has utilized this provision, maintaining that his extradition could lead to rights violations. Additionally, Article 10, which protects freedom of expression, has been a cornerstone of the argument against Assange’s extradition, positing his work as journalistic activity.

The UK legal system allows for an elaborate appeal process, offering individuals like Assange a platform to contest their extradition on various grounds, including the aforementioned human rights concerns. Past cases, such as Lauri Love v United States of America (2018) and Gary McKinnon v United  States of America (2012) are pivotal, demonstrating the courts’ willingness to refuse US extradition requests on human rights grounds, particularly where there is a substantial risk to the individual’s mental health.

The possible implications of Assange’s extradition are wide-ranging, spanning from setting judicial precedent to broader geopolitical consequences. For journalists and publishers, the outcome of this case could influence their ability to work with classified information without the ominous possibility of international legal action. Legally, a conviction in the US following extradition could bolster the applicability of national security laws to individuals beyond US borders, marking a significant expansion of jurisdictional reach.

For Assange, extradition followed by a conviction in the US could lead to a substantial prison sentence — penalties that would be specific to the individual yet would ripple outward. On a diplomatic level, the case has already drawn international attention and elicited various responses, affecting the UK’s relationships on the global stage.

Assange’s extradition case transcends a mere legal procedure — it has become emblematic of the complex interplay between extradition law, human rights, freedom of the press, and international relations. As the UK judiciary deliberates on this matter, the world watches, anticipating the broader implications for the future of transparency, accountability, and international law.

Extradition Laws in the United Kingdom and US/UK Extradition Treaties

The specifics of the UK’s extradition agreement with the US are detailed in the “Extradition Treaty between the United Kingdom of Great Britain and Northern Ireland and the United States of America with Exchange of Notes,” which can affect how the Extradition Act 2003’s provisions are applied in particular cases.

The UK courts must interpret and apply these guidelines within the context of the specific facts of each case, international treaties, and any relevant diplomatic assurances. In high-profile cases like that of Assange, legal arguments may explore the nuance and interpretation of these provisions to claim why an individual should or should not be extradited.

The Extradition Act 2003 establishes legal procedures for both arrest and extradition. Extradition requests are categorically divided between EU and non-EU requests, with different procedures for each. For the latter, such as the US, the process begins with an arrest following a request through diplomatic channels.

The individual in question must go through the UK courts, which determine if the request is legally sound, considering factors like dual criminality, human rights implications, and the potential for a fair trial. After exhausting legal challenges, including appeals, the Secretary of State for the Home Department has the final decision on whether to order extradition.

Below are the key aspects of the UK’s extradition legal framework as they pertain to Category 2 territories, such as the US.

Key Legal Guidelines from the Extradition Act 2003

  1. Dual Criminality (Sections 64-66):  Offenses must be crimes punishable by at least 12 months imprisonment in both the UK and the requesting country.
  2. Probable Cause (Section 78-83):  The requesting state must provide information that would justify the issue of a warrant for the person’s arrest if the conduct had taken place in the UK.
  3. Human Rights (Section 87): The requested person’s discharge must be ordered if the requested person’s extradition would be incompatible with their human rights.
  4. Passage of Time (Section 82): Extradition will be barred if it appears it would be unjust or oppressive due to the passage of time since the commission of the alleged offense.
  5. Specialty (Section 95): This principle protects the individual from being dealt with in the requesting country for matters other than those for which they were surrendered.
  6. Death Penalty Assurance (Section 94): If the person could face the death penalty in the requesting state, extradition cannot proceed without an assurance that the death penalty will not be carried out. There are also procedural guidelines within the Act for the various stages of the extradition process, including initial arrest, preliminary hearings, extradition hearings, and appeals.

Judicial Review and the Role of the Secretary of State

Following the extradition hearing process, there may still be a route to challenge the decision through judicial review. In some cases, the UK Secretary of State also has the power to intervene and make decisions, for instance on national security grounds or for reasons related to the person’s health.

Considerations of Assange’s Safety if Extradited

Assange’s defense has raised serious concerns about his potential treatment if extradited to the US. The defense has cited the potential for Assange to be placed under Special Administrative Measures (SAMs), which could include prolonged solitary confinement — a practice human rights experts have equated to torture. Furthermore, it has been argued that Assange could face an unfair trial due to the political nature of his case and could be subject to extreme sentencing should he be convicted.

Moreover, Assange’s mental health has been central to the extradition hearings. His legal team argues that he is at high risk of suicide if extradited to the US, particularly due to the harsh conditions he is likely to be held under. The United Nations Special Rapporteur on Torture, Nils Melzer, has also raised concerns about Assange’s psychological state, deeming his treatment up to this point as “psychological torture.”

Challenges and Considerations

Assange’s case is a high-profile example where legal principles, political discourse, and public opinion intersect. While extradition processes are designed to be systematic and impartial, cases like Julian Assange’s show how contentious and complex they can become. Assange’s potential extradition has brought into sharp relief the rigorous legal standards and diplomatic assurances that are necessities for upholding the extradition treaty obligations between the UK and the USA. Behind the legal framework lies a web of human rights considerations, political implications, and ethical debates surrounding the balance between national security and freedom of the press. As this case progresses, it will set precedents and raise questions that may well shape the future application of extradition law.