At the end of 2010, the entire world seemed to talk about one thing: Wikileaks. And among the many things that have been said, I am puzzled that one of the most basic questions doesn't seem to have been explored at all, namely under what pretense does the United States seek the extradition to US authorities of Wikileaks' founder Julian Assange? Leaving aside the political question of Wikileaks' and Assange's morality and the limits of the freedom of press, I grew up in a society that believes in the rule of law. Therefore, whoever wants to prosecute Assange for undesirable actions has to first state the legal basis on which this is supposed to happen. Put differently, what law defines the elements of a crime that Assange is said to have committed? The US Foreign Intelligence Surveillance Act? The US Espionage Act? I reformulate my question: what relevant law did Assange actually breach in a way to commit a crime that would give authorities in Europe the legal right to extradite him to the United States?
Let's take a look at the basics: Citizens are commonly believed to owe certain obligations to their State such as those that can be grouped under the category of "loyalty" or "civic duty". Generally, they are bound to comply with the laws of their country wherever they are. Moreover, also those merely being present in the country are called on complying with the country's laws and customs. Conversely, a State can lay no claim on the behavior displayed in another State's territory by non-citizens not residing in the former. It is for this conception of the international system based on the concept of citizenship that, as a general rule, as an Australian citizen residing in Europe, Mr. Assange couldn't care less about US law: He doesn't owe any obligation whatsoever to the US, let alone has a duty to safeguard US national security, interests or secrecy. Therefore, only if the domestic law of Assange's country of citizenship (or of usual residence) or the law of the country on the territory of which his actions were carried out defined the leaking of a foreign government's secret correspondence as a crime, would Assange's actions amount to unlawful conduct. If this were the case, then he could be prosecuted, but even then, only in these countries.
For his prosecution in the US one would instead have to prove a tie between Assange and the US that legitimately subjected him to US law, or prove that his acts constituted crimes under international criminal law. (The only other law that could be said to matter in that it is universally applicable, notwithstanding possible practical limitations of its applicability due to constitutional constraints and safeguards.) Without such a proven tie, from a legal point of view Assange is out of reach of US jurisdiction, rendering all US law inapplicable and hence completely irrelevant to the Wikileaks case as far as the weighing by authorities in Europe of a US extradition request is concerned. Any other conclusion would endanger our very understanding of the rule of law and our basic principles of criminal law that we in the West pretend to hold so dear.
More so, one could even argue that in case the US tried to apply US law to Assange, the US would itself incur in a breach of law – a breach of international law to be precise. Indeed, according to the principle of non-interference a State who seeks to extend its jurisdiction beyond its border or citizens breaches international law by interfering in the internal affairs or sovereignty of another state – in this case by pretending its law should apply to someone who has no tie based on citizenship or territorial presence to the State enacting the law. This problem is well known to scholars of international law under the name of "extraterritorial effects of national jurisdiction".
In that sense, fighting Assange's extradition to the US isn't just a matter of agreeing or disagreeing with Wikileaks. It is part of a much broader fight to safeguard our democracy by saying no to the extraterritorial effects of US law: US Congress does not hold and should never be given the power to rule over non-citizens residing abroad or to criminalize behavior held by non-citizens far away from US territory. These other States' citizens aren't subject to the jurisdiction of the United States of America and should never be. The message to the US government should be clear: Hands off of other States' citizens!
[Comment one: For those believing that the US has a legitimate interest in prosecuting Assange because he violated US law, I would ask you to consider if you allowed Thailand to demand the extradition of US citizens smoking pot in a Dutch coffee shop, or Iran to seek the extradition of unmarried European women for "adultery"? I did not want to make these analogies, as these prospects sound too ridiculous to even be worth contemplating. Yet, the analogy holds. One could ask: But aren't Assange's acts about terrorism? About international security? Don't they constitute a special type of crime? Maybe a transnational crime? A crime that is globally relevant? Well, do they? Really? How so? Disseminating information should never be defined as an act of terrorism or a crime of global relevance – of global relevance, yes, but not a crime. And for sure it shouldn't be defined so unilaterally!]
[Comment two: Given the breadth of this topic and the sometimes complicated interplay between national and international law, I hope people understand why I hardly provide any links in this entry. For most of my statements here I make reference to my international and constitutional law classes at university, but I encourage everyone to read some good law books to make up your own mind.]
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