13

According to this article:

[21-04-2017] US Attorney General Jeff Sessions says arresting Mr Assange is a priority. No charges have been filed against him in the US but US media outlets report that federal prosecutors are considering charges.

Since Julian Assange is not on US soil he must be extradited before being arrested in US. But there are no official charges filed against him.

Question: Can the US ask for Julian Assange's extradition without any official charges?

  • 2
    Extradition from where? The UK, where he currently is, Sweden, who'd previously asked for him, Ecuador, who's embassy he's currently in, and thus who's view matters, or some other country? These would be covered by separate treaties, which might name different standards and procedures (e.g. the current UK-US treaty has a relatively low standard of evidence for alleged offences). – origimbo Jan 12 '18 at 9:06
  • I do not know if Sweden has reasons to ask for him anymore, since charges were dropped. I assume that the most likely country to get Assange is UK. – Alexei Jan 12 '18 at 9:10
  • 1
    @origimbo Sweden has given up. Assange is still holed up in the Ecuadorean embassy because the British police have said they'll arrest him for refusing to had himself over (I forget the formal offence). He'd absolutely 100% not get bail and he fears the US would then try to extradite him. – David Richerby Jan 12 '18 at 13:54
  • I don't see why not. The US has never had trouble doing it before. en.wikipedia.org/wiki/… – LateralTerminal Jan 12 '18 at 14:57
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    @Alexei: Charges are not dropped. Sweden is currently not bothering the UK to extradite him. As soon as Assange leaves the embassy and gets arrested for jumping bail, they will renew their extradition proceedings. – gnasher729 Jan 12 '18 at 19:20
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Probably not; but it depends on the extradition treaty

Extradition basically works like this:

  • Suppose we have two countries, Alphaland and Betaland. Joe Smith is suspected of committing a crime in Alphaland, and is currently on the territory of Betaland.
  • When Alphaland makes an extradition request, it is asking the authorities in Betaland to detain Joe and transport him to Alphaland for trial.
  • In effect, Alphaland is asking Betaland to enforce an arrest warrant issued against Joe.

So in the case of Assange:

  • In the US legal system, an arrest warrant requires a criminal charge. However, it does not require the charge to be made public. Individuals can be arrested on the basis of a sealed indictment issued by a grand jury, which may be unsealed at a later date.
  • Whether a non-US country would be willing to arrest Assange on an indictment from the US (sealed or otherwise) would depend on the details of its extradition treaty with the US.
  • In the case of the UK, the BBC reports a US arrest warrant would be needed; the text of the extradition treaty states "a copy of the warrant or order of arrest issued by a judge or other competent authority" must accompany the extradition request. The latter would appear to require a criminal charge in the US; whether there are any possible loopholes is a matter for specialist extradition lawyers.
  • An extradition request would require at least one criminal charge; but of course, once Assange was in the hands of the US authorities, they could decide to charge him with any number of additional offences.

Caveat to the above: I Am Not A Lawyer, corrections are welcome.

  • I'm also not a lawyer, but since it seems we're talking about the UK, the Extradition Act 2003 applies, legislation.gov.uk/ukpga/2003/41/section/70 and it looks like things can move forward either with an arrest warrant, or a certificate from the Home Secretary that a valid extradition request has been made, which requires naming an offence and providing "information" about it. This has made some people very upset. – origimbo Jan 12 '18 at 10:28
  • @origimbo: Do you have a source for extradition without a US warrant? According to this report, extradition from the UK to the US does in fact require a warrant. – Royal Canadian Bandit Jan 12 '18 at 10:50
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    The barrier in the legislation I linked to above is "intention to prosecute", which various groups claim could mean an indictment exists, but no warrant, (although as you point out, warrants are less common than they appear on TV) or even a lower standard than that. gov.uk/government/uploads/system/uploads/attachment_data/file/…. I suspect we'd need to be an extradition lawyer to confirm. – origimbo Jan 12 '18 at 11:20
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    OK, edited again. AIUI, the controversy is because a US warrant requires "probable cause", which is a fairly weak standard of evidence and (arguably) lower than that traditionally required by the UK for extradition. – Royal Canadian Bandit Jan 12 '18 at 11:26
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    Things get really interesting now, because of the internet, because a person in Betaland can commit an act that is legal there to a target in Alphaland where it is illegal. – Kaithar Jan 12 '18 at 22:04
7

I think that it would actually be an issue to decide by the host country.

Since it would be the host country's responsibility to detain and extradite Assange, it would be up to it to decide the standing of the USA requests vs Assange's rights.

If we are talking about Rule of Law countries1, then it is up to its judiciary to decide if an extradition would be a violation of the subject rights or not. Which means that usually some charges should need to be filled in the host country legal system, and the judge should have to decide on its merits (they are not politically motivated, the accused may get a fair trial, that there is enough evidence for a trial, etc.).

So, if the USA asked for an extradition it would not be illegal for it to be without charges, but most2 Rule of Law countries could not proceed with it without violating Assange's rights. But that would be a violation made by the host country, not by the USA3.

And of course, if the petition were to succeed, once Assange arrived to the USA charges would have to be filed at that moment; otherwise he could ask for habeas corpus and challenge any detention4.

TL/DR The USA may ask anything they want, it is up to the host country to decide which rights Assange have and to uphold the rule of their law.


1Countries without rule of law are easier, as they procedure is basically what the rulers say.

2I am tempted to say "all", but I am really not sure.

3Apart from the local legal system, there are international laws that would enter into effect if Assange could show that he was to be tortured, unjustly prosecuted, etc. in the USA. But even those issues would be addressed by the host country legal system.

4Assuming he is not put in the care of a Guantanamo Bay style "legal shortcut".

  • In most Rule of Law countries, the judiciary does not decide which rights the people have; that's up to the legislature. (Separation of powers). The judiciary merely applies the legislative decisions. Extradition is a tricky one, as the process varies. In some countries, that ultimately is an executive decision, not judicial. – MSalters Jan 15 '18 at 9:33
  • @MSalters I changed the wording to make it more clear what I meant; OTOH you are right that in some (many?) countries the executive may decide to stop or proceed with an extradition but in almost all of them the judiciary may stop it on legal grounds, no matter the executive's position. – SJuan76 Jan 15 '18 at 10:47
4

Other posters have replied with good answers (both upvoted). I am going to add some details, even though you did not ask directly for it, I think it may answer the spirit of your question. The US may have (and most probably does) a sealed indictment against Assange. The US needs not and probably does not want to reveal what is in the sealed indictment, unless necessary or until it has Assange in its hands, therefore the indictment will remain sealed.

However, as soon as Assange were to be arrested by the UK, it has two options:

  1. Require extradition using some loopholes as @Royal Canadian Bandit mentioned,
  2. More likely, make a formal indictment to get Assange extradited

In other words, even if the US currently has no formal indictment, it can officially charge Assange at any time once he is arrested in the UK, at which point there will be no impediment to his extradition.

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