Legal Sidebari
Frequently Asked Questions about the Julian
Assange Charges
Updated June 7, 2019
UPDATE: On May 23, 2019, a grand jury returned a superseding indictment adding 17 charges against
Assange for allegedly violating the Espionage Act. While the new counts arise out of the same underlying
factual events as the original indictment, charging Assange under the Espionage Act implicates complex
questions over the relationship between the First Amendment and the government’s ability to restrict
disclosure of national defense information—an issue discussed in this CRS Report.
The original post from April 22, 2019, follows below.
After spending nearly seven years in the Ecuadorian embassy in London, Julian Assange was arrested by
British police, was convicted for violating the terms of his bail in the U.K., and had an indictment against
him unsealed in the United States—all in a single day. Despite the swiftness of the recent action, the
charges against Assange raise a host of complex questions that are unlikely to be resolved in the near
future. This Sidebar examines the international and domestic legal issues implicated in the criminal cases
against Assange.
Background on Julian Assange
An Australian national, Julian Assange is the founder of the Wikileaks website, which states that it
“specializes in the analysis and publication of large datasets of censored or otherwise restricted official
materials.” In one of its many mass disclosures, in 2010, Wikileaks published a cache of hundreds of
thousands of State Department cables, Guantanamo Bay detainee assessments, and U.S. military reports
related to the wars in Afghanistan and Iraq. While the United States did not publicly pursue criminal
charges against Assange for the disclosure at the time as it did with Chelsea (formerly Bradley) Manning,
Assange did not avoid legal entanglements. In 2010, a Swedish prosecutor issued a European arrest
warrant for Assange in connection with rape and sexual misconduct allegations unrelated to Wikileaks.
Assange, who was living in the U.K. at the time, denied the charges, but turned himself into the British
police in response to the warrant. A U.K. court later released him on bail while the courts considered
whether he should be extradited to Sweden. After the Supreme Court of the United Kingdom rejected
Assange’s objections to extradition, Assange breached his bail conditions and entered the embassy of
Ecuador in London in June 2012—where he remained until his arrest on April 11, 2019.
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Why Was Assange in the Ecuadorian Embassy?
Upon entering the embassy in 2012, Assange requested “diplomatic asylum” from Ecuador—meaning he
sought the international legal protections associated with the embassy’s premises. According to a 2012
statement, Ecuador granted the request because it agreed with Assange’s belief that he was subject to
“political persecution” as a result of Wikileaks’ disclosures. Ecuador and select other nations in the
Americas subscribe to certain treaties that provide the right to grant asylum on their diplomatic properties
to “persons sought for political reasons or for political offenses.” But the right to diplomatic asylum is not
universally recognized, and the United Kingdom is not a party to this treaty-based regime (nor is the
United States). Nevertheless, the U.K. and nearly all other nations are parties to the 1964 Vienna
Convention on Diplomatic Relations (VCDR), which provides that diplomatic missions are “inviolable”
and cannot be physically entered or searched. Thus, while international law did not compel the U.K. to
recognize Assange’s claims to asylee status, the VCDR’s rule of inviolability prevented U.K. officials
from entering the embassy to apprehend him without Ecuador’s permission.
Why Did Ecuador Withdraw its Embassy’s Protection?
Several events appear to have led Ecuador to withdraw its VCDR protections and permit U.K. officials to
arrest Assange in April 2019. Following revelations that Russian intelligence officials and affiliates used
Wikileaks in their effort to influence the 2016 presidential election, Ecuador temporarily restricted
Assange’s internet access in 2016. Assange reportedly signed an agreement with the Ecuadorian embassy
in late 2017 in which he made certain pledges not to interfere in the internal affairs of foreign nations. But
Ecuadorian officials again suspended his internet access in 2018 after Assange discussed international
diplomatic issues on social media. According to a statement from Ecuadorian President Lenín Moreno,
Ecuador chose to withdraw its embassy’s protections on April 11, 2019 because Assange continued to
violate his obligation not to interfere in the domestic affairs of foreign nations. Moreno also contends that
Assange blocked security cameras, installed “electronic and distortion equipment,” mistreated guards, and
accessed the embassy’s security files without permission. Wikileaks counters that the decision was
politically motivated retribution for its release of documents related to corruption charges involving
Moreno.
Ecuador previously had been unsuccessful in its attempts secure arrangements for Assange to leave the
embassy through legal channels. In 2017, the country made Assange an Ecuadorian citizen. Later that
year, Ecuador’s foreign minister designated Assange as a diplomat in what observers interpreted to be an
effort to confer the VCDR’s personal diplomatic protections on Assange, allowing him to leave the
embassy and take up a diplomatic post in Russia without fear of arrest during his travel. But U.K. officials
denied Assange diplomatic accreditation, and Ecuador withdrew its diplomatic designation shortly
thereafter. Ecuador also suspended Assange’s citizenship as part of its decision to allow his arrest.
What Were the Bases for Assange’s Arrest and Conviction in the U.K.?
London’s Metropolitan Police Service arrested Assange based upon two warrants. The first warrant,
which had been outstanding since 2012, was based upon Assange’s failure to appear before a U.K. court
during the Swedish extradition proceedings. Even though Swedish prosecutors discontinued their rape
investigation of Assange in 2017, a U.K. court concluded that the outstanding warrant remained in force
because Assange was subject to criminal prosecution for the separate offense of “absconding by a person
released on bail”—also known as failure to surrender. On the same day of his arrest, the United Kingdom
charged and convicted Assange with failure to surrender in violation of the Bail Act of 1976. He now
faces up to 12 months in prison for this offense. His sentencing date has not yet been set.
The second warrant was issued at the request of the United States. U.K. law permits a justice of the peace
to issue a “provisional warrant” at the request of a foreign government when there are reasonable grounds
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to believe an individual has committed an extraditable offense, among other conditions. On the same day
as Assange’s arrest, the United States unsealed a March 2018 indictment against Assange, which appears
to form the basis for the U.S. extradition request.
What are the United States’ Charges?
The United States’ indictment alleges that Assange committed one count of conspiracy (18 U.S.C. § 371)
to commit computer intrusion in violation of the Computer Fraud and Abuse Act (CFAA) (18 U.S.C. §
1030). While Assange and Wikileaks are responsible for a host of disclosures involving the U.S.
government, the indictment and supporting affidavit focus solely on the 2010 disclosures of material
received from Chelsea Manning. The indictment alleges that, in March 2010, Assange agreed to assist
Manning in “cracking” a password stored on Department of Defense computers in order to access
classified records. The purpose of the alleged agreement and conspiracy, according to the indictment, was
to facilitate Manning’s acquisition of classified information so that Wikileaks could publicly disclose that
information.
The CFAA portion of the indictment is divided into two subsets. (For more detailed analysis of CFAA
offenses, see this comprehensive CRS Report and this CRS sketch of the statute.) These sections charge
Assange with conspiring to obtain information from a computer without authorization or in excess of
authorization:
with reason to believe that the information, which is protected from disclosure for reasons
of national defense or foreign relations, could be used to the injury of the United States or
to the advantage of a foreign nation, and when such information was transmitted to a
person not entitled to receive it (18 U.S.C. § 1030(a)(1)); or
when the information was obtained from a department or agency of the United States (18
U.S.C. § 1030(a)(2)).
DOJ seeks a maximum penalty of five years in prison.
Is the United States Prosecuting Assange for Newsgathering Activities?
Commentators have long debated whether charges against Assange would criminalize routine
newsgathering or whether there is a meaningful distinction between Wikileaks’ disclosures and traditional
journalism. Prior to the unsealing of the indictment, the discussion of Assange’s potential criminal
liability often centered on the assumption that he would be charged under the Espionage Act for
Wikileaks’ publication of classified material. As discussed in this CRS Report, the Espionage Act is
written in such a way that the United States potentially could bring charges against a news organization
that receives and publishes leaked national defense information—although the government has never
done so. Some commentators contend that, by bringing password-hacking charges under the CFAA rather
than publication-related charges under the Espionage Act, the Department of Justice (DOJ) effectively
distinguished Assange’s behavior from standard press activity. Others argue that the indictment still
implicates routine journalism because it does not focus solely on the attempted password hack. It also
references more common press behavior—such as using a secure online drop box or protecting the
identity of a source—-as part of the “manner and means of the conspiracy.”
DOJ’s news media policy (28 C.F.R. § 50.10) calls for special analysis before bringing legal action
against “members of the news media” for their “newsgathering activities.” Among other things, the policy
requires the Attorney General to “strike the proper balance among several vital interests”: national
security, public safety, law enforcement and the fair administration of justice, and the role of the free
press. While the Attorney General has not publicly explained the role of the news media policy in his
decision to indict Assange, several factors may have been relevant to this issue.
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For instance, the Attorney General’s interpretation of “newsgathering activities” and “members of the
news media”—which are not defined in the policy—may have influenced his decision. Media outlets
reported that the Obama Administration decided not to bring Espionage Act charges against Assange
because officials believed they could not do so without also prosecuting traditional news organizations
and journalists. The Trump Administration may have taken different view with regard to computer
hacking charges. In April 2017, then-Attorney General Sessions discussed making Assange’s arrest a
“priority” in response to a reporter’s questions. The same month, then-CIA Director Pompeo publicly
described Wikileaks as a “non-state hostile intelligence service often abetted by state actors like Russia,”
suggesting that the current Administration does not view it as a journalistic organization entitled to the
news media policy’s protections.
The news media policy also provides that it does not apply when there are reasonable grounds to believe
that a person is a foreign power, agent of a foreign power, or is aiding, abetting, or conspiring in illegal
activities with a foreign power or its agent. The U.S. Intelligence Community’s assessment that Russian
state-controlled actors coordinated with Wikileaks in 2016 may have implicated this exclusion and other
portions of the news media policy, although that conduct occurred years after the events for which
Assange was indicted. The fact that Ecuador conferred diplomatic status on Assange, and that this
diplomatic status was in place at the time DOJ filed its criminal complaint, may also have been relevant.
Finally, even if the Attorney General concluded that the news media policy applied to Assange, the
Attorney General may have decided that intervening events since the end of the Obama Administration
shifted the balance of interests to favor prosecution. Whether the Attorney General or DOJ will publicly
describe the impact of the news media policy is unclear.
Will the U.K. Extradite Assange?
Assange’s extradition is not guaranteed, and many observers predict that it will require protracted legal
proceedings in the U.K. judicial system. Once the United States submits a full extradition request
(Assange was arrested on a provisional request), the U.K. court must consider whether there are any
statutory bars to extradition. Bars can include the passage of time; a person’s age or health conditions; the
rule of specialty (discussed below); non-compliance with the European Convention on Human Rights;
and potential discrimination based on race, gender, political opinions, or other factors. The British Home
Secretary must separately evaluate whether other factors, such as the possibility of capital punishment,
bar extradition. U.K. law requires extradition proceedings to begin within two months of the date of
arrest, and a judge set Assange’s proceedings to start on June 12, 2019.
Restrictions in U.K. extradition law have blocked some U.S. attempts to extradite individuals accused of
hacking-related charges in the past. In 2014, the United States asked to extradite British national Lauri
Love for charges that included hacking U.S. government computers in violate of the CFAA. But a U.K.
court denied the request on the ground that it would be unduly oppressive, cause severe depression, and
increase Love’s suicide risk. In 2012, then-Home Secretary Theresa May declined to extradite Gary
McKinnon, another British national accused of hacking U.S. government computers, because of the
suicide risk to McKinnon, who had been diagnosed with Asperger’s syndrome and depression. Assange,
who is not a British national, claims he was denied proper medical care in the Ecuadorian embassy, and
may raise similar health-related arguments.
U.K. law’s restriction on extradition for individuals that may face the death penalty appears less likely to
be a factor. The computer intrusion conspiracy charge against Assange is not a capital offense, and article
7 of the U.S.-U.K. extradition treaty allows the United States to provide assurances that it will not seek
the death penalty, which the United States routinely does.
At the same time, the treaty prohibits extradition for “political offenses” or when the extradition request is
“politically motivated.” The political offense exception is an elusive doctrine discussed in this CRS
Report that has been subject to a variety of evolving interpretations in different nations. Although the
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outcome of a political offense objection is difficult to predict, many observers expect Assange to raise it
as a defense to extradition.
Will DOJ Bring More Charges?
Some media outlets have reported that DOJ officials are considering bringing more charges against
Assange in the United States. DOJ has not publicly confirmed this reporting. But if it were to seek a
superseding indictment with additional charges, the rule of specialty (discussed in this CRS Report) may
restrict its action. Under this rule, as defined in Article 18 of the U.S.-U.K. extradition treaty, the United
States may not try Assange for any pre-extradition offense other than the crime for which the U.K. grants
extradition, a lesser included offense, or a “differently denominated offense based on the same facts” as
the original offense. Because the United States has not submitted its full extradition request, it could
amend its charges without triggering this rule. But once the U.K. grants an official extradition request, the
rule of specialty will constrain the United States’ ability to expand its charges without British consent.
What Happened to the Rape Investigation in Sweden?
Swedish prosecutors discontinued their rape investigation in 2017, but they did not absolve Assange of
any charges. Rather, Swedish authorities concluded that, in light of the protection of Ecuadorian embassy
in place at the time, prosecutors did not expect extradition to be possible within the foreseeable future. In
announcing the decision to suspend the investigation, Sweden’s Director of Public Prosecution stated that,
if Assange became available, authorities could resume the investigation immediately. After London police
arrested Assange and removed him from the Ecuadorian embassy, counsel for Assange’s alleged rape
victim requested that Swedish prosecutors resume their investigation. In response, Swedish officials
released a statement explaining that they are examining the request, but have not set a timetable on
whether to resume the investigation.
Should Sweden re-open the investigation, its request for Assange’s extradition could present its
own complications and might be granted before the United States’ request. Sweden previously
sought Assange under the European Arrest Warrant system, which utilizes simplified surrender
procedures, and Article 15 of the U.S.-U.K. extradition treaty calls for a state receiving multiple
extradition requests to consider all relevant factors, including the gravity of the offenses and the
chronological order in which it received them.
Author Information
Stephen P. Mulligan
Legislative Attorney
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Disclaimer
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