01.12.10 |

I had a colleague ask an interesting question, “If Julian Assange is indicted and detained in London, would the U.S.-U.K. extradition treaty authorize extradition to the United States?” There’s not an easy answer.

The U.S.-U.K. Extradition Treaty requires “double-criminality”–the offense must be punishable in both States. Not surprisingly, the United Kingdom imposes criminal penalties for disclosing state secrets. Article 5 of the Official Secrets Act of 1989 provides a “person into whose possession the information, document or article has come is guilty of an offence if he discloses it without lawful authority knowing, or having reasonable cause to believe, that it is protected against disclosure by the foregoing provisions of this Act and that it has come into his possession” as a result of disclosure “by a Crown servant or government contractor without lawful authority.”

Article 4 of the treaty does, however, provide that “extradition shall not be granted if the offense for which extradition is requested is a political offense.” According to Black’s Dictionary, political offenses are “crimes directed against the security or government of a nation, such as treason, sedition, espionage, murder during a revolution, etc.” Thus, it may be difficult to extradite Assange for espionage, but easier to extradite him for various computer crimes, such as disclosing trade secrets, engaging in economic espionage, or criminal copyright infringement. If and when Assange unlawfully discloses confidential documents of major banking institutions, this will be an additional grounds for extradition and criminal prosecution.

An additional problem is that Assange is wanted by more than one State. Sweden issued an international arrest warrant on November 20 as a result of allegations that Assange committed sex crimes. Article 15 of the U.S.-U.K. Extradition Treaty requires that the British government weigh numerous factors in deciding where to extradite, including the gravity of the offenses and the chronological order in which the requests were received. Thus, it is quite possible that Assange would be extradited to Sweden before he would be sent to the United States.