This article originally appeared on VICE US.
Julian Assange’s lawyers are digging in for a furious, last-ditch effort to block his extradition to the U.S., following his dramatic arrest Thursday morning. The WikiLeaks founder was dragged out of the Ecuadorian embassy, where he had been living since 2012.
Assange is now facing up to five years in American prison for allegedly conspiring to hack into a classified Pentagon computer system in 2010. A 2018 indictment, unsealed by the Department of Justice on Thursday, charges him with a single count of conspiracy to commit computer intrusion and alleges that he tried to help former Army intelligence analyst Chelsea Manning gain access to the government computer system in March 2010.
Given Assange’s contentious history with Washington, the initial indictment may be an attempt to bring Assange to the U.S. before targeting him with additional charges, former federal prosecutors told VICE News. His longstanding confrontation with the U.S. government now appears destined to play out in courtrooms in London and Alexandria, Virginia.
“Once the Justice Department gets him over here, they have a lot more leverage over Mr. Assange – and the tables are turned,” said Renato Mariotti, a former U.S. prosecutor based in Chicago. “You don’t need to be a legal analyst to see why the Justice Department would probably like to charge him with all sorts of things.”
Assange’s American courtroom drama will proceed against the backdrop of the upcoming release of special counsel Robert Mueller’s final report on President Trump’s ties to Russia – a document in which Assange, and WikiLeaks, may find themselves playing starring roles.
U.S. v. Assange
A grand jury in Virginia secretly indicted Assange last March, a fact that the Justice Department accidentally revealed – without further detail – in an erroneous court filing last November.
The DOJ’s unsealed indictment now alleges Assange tried to crack a password that would have given Manning access to the Secret Internet Protocol Network (SIPRNet), a U.S. government network used for classified documents and communications.
The indictment says Assange was given “part of a password” by Manning on March 8, 2010. Two days later, Assange allegedly asked for more information about the password and told Manning that he'd had “no luck so far” in cracking the password.
The indictment also suggests Assange encouraged Manning to pass on more information. When Manning told Assange that “after this upload, that’s all I really have got left,” the 47-year-old allegedly replied: “Curious eyes never run dry in my experience.”
The charge against Assange came as a surprise to many who expected the former hacker to be prosecuted under the Espionage Act for the publication of hundreds of thousands of classified U.S. government cables.
While Assange’s lawyers warned that his arrest poses a danger to journalists the world over, the central allegation in the indictment relates to hacking, rather than to the publication of sensitive information.
The indictment doesn't say that Assange actually cracked the password, or that Manning used the password to access the classified Pentagon systems. U.S. whistleblower Edward Snowden criticised the DOJ for only alleging that the pair attempted a hack that didn’t work.
The criminal charge of conspiracy, however, involves just the agreement to commit a crime, followed by one concrete step toward pulling it off, Mariotti pointed out. Completing the hack isn’t necessary for the crime to be real in the eyes of the law.
And the U.S. government may be planning to follow up with additional criminal charges against Assange once he arrives on U.S. soil. American officials do anticipate bringing further charges, CNN reported on Thursday, citing an unnamed U.S. official briefed on the matter.
But it’s unclear what prosecutors might be planning.
“All they need is this to bring him over, and then they could be planning to hammer him with other charges,” said Rebecca Roiphe, a former prosecutor and now an expert on prosecutorial ethics at New York Law School. “On the other hand, they might just be trying to be very careful about not stepping on other journalists who are doing good work and policing governments. Or it could be both.”
Hitting Assange with new allegations, however, could be complicated.
For one thing, they will likely want to steer away from any charges alleging the distribution of classified information, since so many American newspapers do precisely that on a regular basis. It’s a media function generally protected by the Constitution’s First Amendment.
A second problem could arise from the U.S.-U.K. extradition treaty itself, according to Mariotti, since provisions in the document may require the U.S. to prosecute Assange only for the charges directly related to his potential extradition.
The existing case against Assange may prove difficult for yet another reason: Manning’s lack of cooperation.
Manning has been in jail since early March for refusing to testify before a grand jury in Alexandria, Virginia, in the WikiLeaks investigation.
“The real problem for the government here is that you have a two-person conspiracy, and the second person is giving a middle finger to the government,” Mariotti said. “It’s going to be hard for prosecutors to prove a conspiracy without her testimony.”
What happens next?
For now, Assange will remain in custody in the U.K. and will appear via a video link on May 2 in relation to his extradition hearing.
Assange’s lawyers have previously said he plans to fight any efforts to extradite him to the U.S., and outside court on Thursday, they sought to frame his arrest as a freedom of speech issue.
“This sets a dangerous precedent for all media organisations and journalists in Europe and elsewhere around the world,” Jennifer Robinson, one of Assange’s lawyers said. “This precedent means that any journalist can be extradited for prosecution in the United States for having published truthful information about the United States.”
Police arresting Assange on Thursday also executed another warrant, outstanding since 2012 when he skipped bail in relation to rape allegations in Sweden.
Assange appeared in a Magistrates’ Court in London on Thursday, where he was convicted of breaking his bail terms by Justice Michael Snow, who said Assange “hasn’t come close to establishing ‘reasonable excuse,’” for skipping bail.
Assange’s lawyer claimed that his client had not had a fair hearing – something the judge dismissed.
“His assertion that he has not had a fair hearing is laughable. And his behaviour is that of a narcissist who cannot get past his own self-interest,” Snow said.
Assange faces up to 12 months in prison for skipping bail and will be sentenced at a later date.
What about the rape allegations?
When Assange entered the Ecuadorian embassy in August 2012, he was wanted for questioning in Sweden over rape allegations made in 2010.
Swedish prosecutor Marianne Ny dropped the case in 2017. But after Assange’s arrest on Thursday, a lawyer of the Swedish woman who accused him of rape urged Swedish prosecutors to reopen the investigation.
“We will do everything we can to get the prosecutors to reopen the Swedish investigation so that Assange can be extradited to Sweden and be prosecuted for rape. As long as the statute of limitations has not expired my client has hope for restitution," lawyer Elisabeth Massi Fritz told AFP.
When Ny closed the case, she said it could be reopened if Assange became available for interview. The statute of limitations on the case runs out in August 2020.
If Sweden were to issue an extradition warrant for Assange’s arrest, the U.K. Home Secretary would have to decide which takes precedence “based on a variety of factors including: the relative seriousness of the offences, the date the requests were received, and whether the person had been accused or convicted,” according to Lawfare.
Cover image: Placards and messages in support of Julian Assange sit outside Ecuadorian Embassy stands in South Kensington on April 5, 2019 in London. (Photo by Jack Taylor/Getty Images)