While Julian Assange attempts to escape sex crimes allegations from Sweden he is simultaneously facing possible legal charges from America. Assange is currently free on bail in the United Kingdom, and he is fighting an attempt by Swedish authorities to have him extradited to their country for questioning. Today the Guardian released a detailed summary of the allegations made against Assange from two women in Sweden. At approximately the same time Fox News released a poll showing a large majority of Americans want Assange arrested and put on trial in the United States.
According to the poll, 66% of Americans believe that “the owner of the website” who received and leaked classified information should be arrested an put on trial. Assange is, of course, the owner of the WikiLeaks site behind the leak of classified Penatagon and State Department information. The Justice Department has said they are actively pursuing ways to legally stop Assange from releasing more information.
The larger question that remains is whether Assange can be arrested and charged under United States laws. Those who want to prosecute Assange argue that he committed treason and/or espionage against the United States. As Doug Mataconis of Outside the Beltway puts explains, the treason charge seems weak at best. Treason is defined in the United States Constitution in the following manner:
“Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.”
Later Congress passed a statute more specifically defining treason more specifically:
“Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States.”
As the statute makes clear, treason is seen as only applying to United States citizen. In order to betray one’s allegiance to the United States one must first have a duty of allegiance. As a citizen of Australia Assange has no duty to the United States. Americans would certainly not appreciate it if the country of France started charging Americans with treason and arresting them in other countries based on the charge.
A charge based on the Espionage Act may have more success. Under the law, which was passed during World War I as part of concerns over German spies, crimanalizes anyone who possesses or transmits “information relating to the national defense” if the person has reason to believe the information may be used to injure the United States to the advantage of a foreign nation. The Espionage Act has been used against people who actually steel information, but has never resulted in the successful prosecution of someone who publishes stolen information. Some believe the statute violated the First Amendment. Others point out that if the law is constitutional it makes nearly everyone in America a criminal. Those who have even shared a link related to WikiLeaks information, or talked about a WikiLeaks story could be guilty under the Espionage Act.
Even assuming the United States government obtains an indictment and arrest warrant under the Espionage Act, the larger obstacle will be actually gaining custody of Assange. The United States government remains very unpopular throughout much of the world. Many governments may be hesitant to send Assange to the United States for prosecution under a law that violates their own free speech principles.