The Corner

Law & the Courts

Statute of Limitations Will Be Hotly Disputed in Assange Case

WikiLeaks founder Julian Assange is seen as he leaves a police station in London, England, April 11, 2019. (Peter Nicholls/Reuters)

The indictment that the Justice Department filed against Julian Assange in the Eastern District of Virginia charges him with a conspiracy to commit computer fraud. The conspiracy statute is Section 371 of the penal code, and the computer fraud offenses that were the objectives of the conspiracy are parts of Section 1030.

According to the indictment, Assange and Manning (then known as Bradley, now as Chelsea) conspired in 2010. Manning was prosecuted by the armed forces. The Justice Department’s indictment against Assange was not returned until 2018 — eight years later.

The five-year statute of limitations that applies to most federal crimes is prescribed for both conspiracy and computer fraud.

So how is the Justice Department able to prosecute Assange on an indictment filed three years after the prescribed limitations period?

It appears that the Justice Department is relying on an exception, in Section 2332b of the penal code, that extends the statute of limitations to eight years for “acts of terrorism transcending national boundaries.”

Now, conspiracy to commit computer fraud is a very serious offense, and Assange’s is at the top of the seriousness range because it involved publication of defense secrets that endangered lives, including the lives of our troops. And there’s no doubt that the conspiracy transcended national boundaries — Assange was outside the U.S. when he collaborated with Manning. But is it really an act of terrorism?

It may be . . .  at least as the operative term — federal crime of terrorism — is defined by Section 2332b.

Under subsection (g)(5) of that statute, an offense is considered a “federal crime of terrorism” if it satisfies two elements: (1) it “is calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct”; and (2) it is a violation of one of a long list of offenses, which includes “section  . . .  1030(a)(1) (relating to protection of computers)[.]”

We should stress here — because this point is sure to be butchered (by some, intentionally) in the public debate — that the issue is not whether what Assange is accused of doing strikes you as an act of terrorism in the commonly understood sense of that term. The question is: Does it fit Congress’s definition of a federal crime of terrorism, as spelled out in Section 2332b, which controls the statute of limitations? If it does, the eight-year statute of limitations applies.

It seems to me that Assange and Manning were certainly retaliating against the U.S. government, and trying to coerce the government into changing policy. And the offense alleged does indeed involve computer fraud under Section 1030(a)(1).

Under the statute, that should be enough. But it will be a hotly contested issue.

Which brings me to the final point. One of the big complications in an extradition litigation is that the Justice Department needs to convince the foreign government (here, the British courts) that the accused will be treated fairly if extradited. In particular, if the accused has any legal defenses, such as the statute of limitations, the foreign tribunal needs to be convinced that they would be fairly litigated in the United States. Sometimes, foreign judges who are sympathetic to a defendant or a defense will use a technical legal issue as a rationale for denying extradition, rather than trusting that the U.S. justice system will adjudicate the issue properly.

Bottom line: If the Justice Department is going to succeed in prosecuting Assange, it is going to have to win the statute of limitations argument twice — in Britain, and in Virginia. That is not going to be a lay-up, to say the least.

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