Julian Assange: Legitimate Asylee or Propaganda Pawn?

by Jason Dzubow

Ecuador has granted asylum to Wikileaks founder Julian Assange.  Foreign Minister Ricardo Patino said Ecuador believed Mr. Assange faced a real threat of political persecution–including the prospect of extradition to the United States, where he would not get a fair trial.  “It is not impossible that he would be treated in a cruel manner, condemned to life in prison, or even the death penalty,” the Foreign Minister told journalists in Quito, the Ecuadoran capital.  “Ecuador is convinced that his procedural rights have been violated.”  Currently, Mr. Assange remains holed up in the Ecuadoran Embassy in London.  Given the UK’s lack of cooperation (including a thinly veiled–and quite shocking–threat to raid the Embassy), it remains unclear how he will get out of England to Ecuador.

Could this be Julian Assange escaping from the Embassy?

I have written about this issue a few times before, and I must admit that I have mixed feelings about Mr. Assange and his “accomplishments.”  While it seems that some of the information he helped exposed is important and was being withheld for illegitimate reasons, other information should have remained secret.  For example, Wikileaks exposed information about individuals from Afghanistan who were cooperating with the U.S. against the Taliban.  Such people now face increased danger in their home country.  Also, confidential diplomatic cables that were sometimes unflattering to foreign leaders should have been kept secret.  Exposure damaged our international relationships and did nothing to further the cause of freedom.  Our diplomats and our military officials need to communicate frankly with each other.  This is how policy is made and implemented, and it is how we reach our foreign policy goals (most of which are legitimate).  I suppose overall, I believe that Mr. Assange did more harm than good.  But I also suppose that my opinion in this regard is not all that important.  What I really want to talk about is whether Mr. Assange qualifies for asylum under international law.

It is pretty clear to me that Mr. Assange does not meet the requirements for asylum under international law.  First of all, Mr. Assange is a citizen of Australia.  He is currently in England and is wanted in Sweden based on a (possibly bogus) criminal charge.  If he is extradited to Sweden (as the Brits have agreed to do), he fears that he will then be extradited to the United States.  Normally, a person receives asylum from his home country; not from a third country.  As a citizen of Australia, he should receive protection from his own government.  There is some indication that Mr. Assange is not receiving protection from Australia, but this remains in dispute (Australia claims to be providing him with consular assistance as needed).  Of course, if Mr. Assange felt his government would help him, I imagine he would have gone to the Australian Embassy instead of the Ecuadoran Embassy.  Regardless of all this, international law provides protection to people who fear persecution in their home country, not in a third country, and so Mr. Assange would have a hard time qualifying under this standard.  

Second, Mr. Assange is wanted for two crimes–sexual assaults–in Sweden.  He claims that the charges have been contrived to punish him for exposing state secrets.  That may well be true, but there is no indication that Sweden would deny him a fair and public trial.  Also, there is no indication that he would be punished in Sweden for his Wikileaks activities.  All in all, there seems to be no basis for Mr. Assange to receive asylum from Sweden.

Third, Mr. Assange claims that Sweden would deport him to the United States, but this is pretty speculative.  So far, the U.S. has not asked Great Britain to extradite him (although there was a rumor about a secret indictment).  That being the case, what credible evidence can he present to demonstrate that the U.S. will ask Sweden to extradite him?   

Finally, despite the comments of the Ecuadoran Foreign Minister, there is no evidence that Mr. Assange faces persecution–as opposed to prosecution–in the United States.  As far as I know, exposing government secrets is illegal in every country.  People who violate this law may be punished according to the law.  Unless the punishment rises to a certain level of severity (for example, the death penalty), it would not equate to “persecution.”  In Mr. Assange’s case, there is no reason to believe that he would face the death penalty.  Even Bradley Manning, the U.S. Army private who leaked information to Wikileaks, is not facing the death penalty.  Also, most European countries will not extradite a suspect to the United States without assurances that he would not face the death penalty.  It is very unlikely that Sweden (or Great Britain) would extradite Mr. Assange to the U.S. without such assurances.  As he does not face “persecution” in the U.S., he would not qualify for asylum from the United States.

For all these reasons, Mr. Assange would not qualify for asylum under international law.  Ecuador has its own reasons for granting Mr. Assange asylum.  Maybe they truly believe he will be persecuted (as opposed to prosecuted) in Sweden or the United States.  Maybe they just want to annoy the the U.S. and the West.  Maybe they see it as a way to score propaganda points.  Who knows?  What seems certain, though, is that Ecuador is not granting Mr. Assange asylum because he satisfies the requirements for asylum under international law.

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Wikileaks’ Julian Assange Might Qualify for Asylum

by Jason Dzubow

Some time ago, I wrote about Wikileaks founder Julian Assange and concluded that he does not qualify for political asylum under international law.

To win asylum, Mr. Assange would need to demonstrate a well-founded fear of persecution in his home country based on race, religion, nationality, political opinion or particular social group.  Although Mr. Assange’s political activities might be protected under international law, he also would have to show that he faces persecution–as opposed to prosecution–in his home country (or possibly in a third country–see below).  Given Australia’s positive human rights record, I felt that Mr. Assange could not show that he would be persecuted in Aussie-land.  Nevertheless, I conclude:

While Mr. Assange probably does not meet the international law standard for asylum, his notoriety gives him opportunities not available to other asylum seekers.  Already, Ecuador has (informally) offered him residency.  Other countries might well follow suit, either because they think it is the right thing to do, or because they want to aggravate the United States and the West.  But if they do grant asylum to Mr. Assange, it won’t be because he meets the requirement for asylum under international law.

Ecuador seems a lot nicer than a U.S. prison.

I agree with what I wrote back then, but there is a new development.  Mr. Assange fears that if he is extradited to Sweden, he would ultimately be sent to the United States, where he has allegedly been indicted.  From the Huffington Post:

Assange fears that once extradited to Sweden the local authorities would later hand him over to the U.S. government. Washington in turn could deal harshly with the WikiLeaks fugitive for leaking classified American diplomatic correspondence. The native Australian says that the Obama administration has a secret indictment against him and fears that if he is extradited to the U.S. he could face the death penalty for espionage and sedition.

First, a person normally would not receive asylum when he fears persecution in a country other than his home country.  Why?  Because he can presumably receive protection from his home government.  In this case, however, it is unclear whether the government of Australia will intervene to protect Mr. Assange. 

Assuming that Mr. Assange would be extradited to the U.S. and that he would face the death penalty here (and assuming that Australia would do nothing to protect him), he might have a case for asylum under international law.  Asylum is sometimes granted for prosecution where the punishment is extremely severe or amounts to torture.  For instance, as a judicial law clerk, I worked on the case of an Afghan man who committed a petty offense in his country (during the time of the Taliban).  The penalty for the crime was to cut off his hand and his foot.  He received asylum in the U.S.  In the same way, Mr. Assange might qualify for asylum if the penalty for his actions is death.

However, my guess is that if Mr. Assange is extradited to the U.S., it will be with assurances that he will not face the death penalty (and even Bradley Manning, the United States soldier who supplied Wikileaks with much of its information, is not facing the death penalty).  In that case, he will have a hard time demonstrating any potential punishment amounts to persecution, and he will not qualify for asylum under international law.  But as I wrote previously, Mr. Assange is a special case, and so will have to wait and see what the government of Ecuador is willing to do for him. 

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Does WikiLeaks’s Founder Qualify for Asylum?

by Jason Dzubow

WikiLeaks’s Founder Julian Assange has been much in the news lately, having revealed all sorts of U.S. state secrets related to war and diplomacy.  The United States is exploring whether the Australian-born computer hacker can be prosecuted criminally under the espionage act, and Sweden has issued an international arrest warrant, stating that Mr. Assange is “suspected of rape, sexual molestation and unlawful coercion.”  Australia is also threatening to arrest him on unspecified charges if he returns. 

As a result, Mr. Assange–who denies the charges–has been hiding somewhere in London, and is considering seeking asylum in Switzerland or Ecuador.  But does Mr. Assange qualify for political asylum under international law?

To obtain asylum, an individual must demonstrate a well-founded fear of persecution in his home country based on race, religion, nationality, political opinion or particular social group. 

Thus, the first question is whether a nexus exists between any potential persecution and one of the protected grounds, in this case political opinion.  Under U.S. law, whistle blowing can be a form of political activity that forms the basis for an asylum claim.  So assuming Mr. Assange’s activities constitute whistle blowing (which seems an open question), he has expressed a political opinion, which could form the basis for an asylum claim.

Another question is whether Mr. Assange has a well-founded fear of persecution in Australia.  The Australian government has threatened to arrest him, though for what crime remains a mystery.  Even if he were arrested in Australia, I know of no evidence supporting the conclusion that Australia persecutes its criminals.  His detention alone–even if it were for an illegitimate reason–would only constitute persecution if the conditions of that detention were dangerous and life-threatening, a situation that does not exist in Australia.

A more interesting question is whether Mr. Assange could obtain asylum from Australia if the Australian government would extradite him to a third country where he faces persecution.   Currently, Mr. Assange could be extradited to Sweden, where he faces sexual assault charges, or the U.S., which is considering charges of espionage.  Although the United States’s human rights record has been tainted of late, I doubt Mr. Assange could demonstrate a well-founded fear of persecution in either the U.S. or Sweden.  But what if Australia planned to extradite Mr. Assange to another country that does persecute its citizens?  I know of no case law or precedent that would allow Mr. Assange to obtain asylum from Australia on the basis that Australia planned to extradite him to a third country where he would be persecuted.    

So even if Mr. Assange could show that he faces prosecution in Australia or that the Australian government would turn him over to Sweden or the U.S., he would have a hard time showing that he has a well-founded fear of persecution in any of those countries.   While Mr. Assange probably does not meet the international law standard for asylum, his notoriety gives him opportunities not available to other asylum seekers.  Already, Ecuador has (informally) offered him residency.  Other countries might well follow suit, either because they think it is the right thing to do, or because they want to aggravate the United States and the West.  But if they do grant asylum to Mr. Assange, it won’t be because he meets the requirement for asylum under international law.

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Help for Afghanis “Outed” by Wikileaks

by Jason Dzubow

The website Wikileaks, which exists to make public “sensitive material,” recently published the Afghan War Diary, a collection of 75,000 classified documents from the U.S. military detailing ground-level operations in Afghanistan.  Among the information released are names and villages of Afghanis who assisted the United States.  Now, Newsweek magazine reports that a Taliban spokesman has threatened vengeance against the exposed “collaborators.”  A few days after Wikileaks published the documents, numerous tribal elders received threatening letters.  One elder was murdered.  The magazine reports:

The frightening combination of the Taliban spokesman’s threat, [Tribal Elder] Abdullah’s death, and the spate of letters has sparked a panic among many Afghans who have worked closely with coalition forces in the past….  [There are] reports of Afghans rushing to U.S. and coalition bases in southern and eastern Afghanistan over the past few days, seeking protection and even asking for political asylum.

(To be fair to Wikileaks, there is a debate about whether the leaked documents have made any difference.  Some argue that the Taliban already know the “collaborators.”  Wikileaks has confidential U.S. documents, but not confidential Taliban documents, so Wikileaks does not know whether the Taliban was aware of all the collaborators listed in the exposed documents.  Given this lack of knowledge, it seems to me that the failure to redact the Afghani names from the leaked documents was incredibly irresponsible.)

A Taliban fighter checks out Wikileaks.

What then can be done about Afghanis who have been “outed” by Wikileaks?  One possibility is the Afghan Allies Protection Act, which authorizes 1,500 visa each year for Afghanis “who have been employed by or on behalf of the United States Government in Afghanistan on or after October 7, 2001, for a period of not less than one year, and who have experienced or are experiencing an ongoing serious threat as a consequence of that employment.”  Whether the people named in the Wikileak documents were employed by or on behalf of the U.S. government for at least one year is an open question.  If not, this law will not help them. 

If it turns out that the Taliban’s threats are serious, Congress should consider amending the law to permit endangered Afghanis to come to the U.S., at least temporarily, even if they do not satisfy all the requirements of the Afghan Allies Protection Act.  It’s good policy to show our allies that we protect them, especially when they were endangered by our own security failing.  More than that, protecting such people is the right thing to do.

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