The legal calculus behind Assange’s asylum request

With Julian Assange continuing to hide out inside the Ecuadorian embassy in London as he awaits a decision on his application for asylum from President Rafael Correa, it has become clear that the Wikileaks founder faces an dicey legal future. So while the decision to seek refuge at the Ecuadorian embassy appeared slightly bizarre at first glance, that move increasingly looks like a shrewd move by Assange.

It is by now well-known that Assange’s decision to vigorously fight extradition to Sweden is rooted in his fear that once in that country he will be extradited to the United States. According to media reports, a secret grand jury has been impaneled in Virginia to look into offenses carried out by Assange and his organization though the scope of the case is unknown.

Based on an examination of the legal agreements that govern extraditions between Sweden and the United States, Assange’s legal future will likely turn on the nature of that indictment. And because the nature of that indictment remains unknown, Assange’s decision to seek asylum is nothing short of a brilliant strategy of risk-minimization.

The extradition agreement between Sweden and the United States, first signed in 1961 and updated in 1983, prohibits extradition on the basis of "a political offense" or "an offense connected with a political offense." The treaty does not explicitly define what constitutes a political offense, and if U.S. authorities were to seek Assange’s extradition, that decision would likely be rendered by the Swedish supreme court.

Some of Assange’s most vehement critics, including Sen. Dianne Feinstein (D-Calif.), have called on the Department of Justice to indict Assange using the 1917 Espionage Act. But if Assange were charged with espionage his extradition from Sweden would be definitely ruled out. UIf Wallentheim, the director of the division for criminal cases and international judicial cooperation at the Swedish Department of Justice, declined to comment on the Assange case but said that Swedish jurisprudence clearly defines espionage as a political offense.

Sweden and the United States have a scant history of extraditions, and some observers have argued that if the U.S. sought to extradite Assange from Sweden, American authorities would be able to easily bully the Swedes into turning over the prized fugitive.

On this point, recent history offers conflicting lessons. In 1992, Sweden rejected a request to extradite Edward Lee Howard, who was the only CIA agent to defect to the Soviet Union. Howard was sought on charges of espionage, but the Swedes rejected the American request, citing the statute prohibiting extradition on political grounds. In 2002, however, Sweden collaborated with the U.S. in the extraordinary rendition of two Egyptian terrorist suspects who were in Sweden seeking asylum.

So if the U.S. decides to seek Assange’s extradition from Sweden-if he ever gets there-whether they are successful will depend in large part on what charges are brought against Assange. Charging Assange under the Espionage Act will in all likelihood do nothing to get the man into an American courtroom. The Justice Department, presumably, is aware of this fact and will seek to bring more creative charges against Assange.

But avoiding an explicit espionage charge, does not mean that Swedish authorities will grant the extradition request. According to Wallentheim, Swedish courts have typically have little interest in how a given crime is labeled during extradition proceedings. Rather, Swedish courts are likely to examine in detail the allegations of wrongdoing brought against Assange and use that as the basis for evaluating whether the charges brought against Assange constitute a political offense.

That is both good and bad news for Assange. On the one hand, it means that he will be able to vigorously contest an American extradition order-probably all the way to the European Court of Human Rights. But on the other hand, American authorities are likely to exert enormous political pressure on Sweden to rule in its favor. While Sweden’s courts are marked by a high degree of independence, in the high-stakes game of an Assange extradition trial, it is probably fair to say that anything can happen.

And that is probably what most worries Assange. According to Cherif Bassiouni, a professor at DePaul College of Law and an expert on international law, the lack of judicial precedent in Sweden regarding extradition requests from the U.S., probably means that the Swedish courts will look to their most established case law on the matter of extraditions. Bassiouni, who has argued extradition cases between involving Sweden and the U.S., said that he thinks Swedish courts will look to their experience with their Nordic neighbors with whom Sweden has had fairly low extradition requirements.

Alisa Finelli, a spokesperson for the Department of Justice, declined to comment on recent extradition cases between Sweden and the U.S.

So from Assange’s perspective, his legal future-if he leaves the Ecuadorian embassy-holds a great deal of uncertainty. If, however, Ecuador grants his request for asylum, that future will become much rosier.

But first he will have to spirit his way out of the embassy. Unlike the anti-Communist Hungarian Cardinal Jozsef Mindszenty, Assange will probably not want to spend the next 15 years living in what are reportedly quite cramped quarters at Ecuador’s embassy. All it will take is for an enterprising Ecuadorian to stuff Assange into the trunk of a car and drive him in the dead of night to a small airport where a private jet is waiting to fly him off to spend the rest of his days on a beach in Ecuador. Crazier things have happened.