Here are a few things we know, and a few to think about, with respect to the arrest of Julian Assange by British police in London.
Assange wore out his welcome with Ecuador, which hosted him for seven years.
The Brits have a comparatively minor charge against him: essentially bail jumping in 2012, when he failed to appear as directed to a court in Westminster. That was during the time when he was trying to avoid extradition to Sweden on sexual assault charges. Those charges have been dropped, although Swedish authorities could revive them. The fact that the underlying charges are no longer in effect is not a defense to jumping bail. Still, it makes the offense appear more minor.
Consequently, the driving force of today’s arrest seems to be an American effort to have Assange extradited. The Washington Post is now reporting that, in 2017, the Justice Department charged Assange in a sealed indictment with conspiring to publish classified U.S. documents — specifically, conspiring in 2010 with then-Bradley Manning, a U.S. Army intelligence analyst, among others.
The Metropolitan police in London have acknowledged that Assange’s arrest is based, in part, on U.S. extradition request. Even our British ally will not extradite people to the United States unless charges have been filed.
Last year, in a court in the U.S. district court in Alexandria, the Justice Department accidentally filed an application to seal a criminal complaint. It was not Assange’s case, but the prosecutor obviously cut and pasted from a similar motion that had been filed in a case involving Assange, and had failed to take out Assange’s name.
It is customary to file an arrest complaint under seal if the person charged is not in custody. An arrest warrant is issued, and the complaint is unsealed when the person is arrested and is presented in court. The sealing, obviously, is done to discourage flight and the destruction of evidence — though it would not have much effect in the case of Assange, who was already in flight and well aware that the U.S. Justice Department was trying to make a case on him.
How strong the case against Assange is will depend on the evidence of his participation in clearly unlawful acts. Here, it is necessary to put aside any revulsion one may have regarding his anti-Americanism and the damage that his willful publication of defense secrets has done. The issue is whether, as a matter of law, he should be seen as a journalist or, say, a thief.
If he is merely receiving top-secret information and publishing it notwithstanding the damage it does, he will be able to argue that he is no different from the New York Times in that regard. On the other hand, if there is proof that he has aided and abetted the theft of information that he then publishes, there will be a case on him. We can debate the degree to which the First Amendment protects journalists who publish classified information (a controversial and unsettled question); but journalists have no immunity to commit crimes (or conspire to commit them, or aid and abet their commission), in order to acquire the information that they then publish.
Assange will be presented in court today on the bail-jumping charge and the extradition warrant. It will be interesting to see if bail is set. Bail jumping is a minor offense. The charges underlying the extradition request could be quite serious. In my experience, however, extradition from Britain is a drawn-out, very difficult process. This is going to take a while.