While speculating about the fate of Julian Assange -- in the face of U.S. wrath over the massive WikiLeaks disclosures of politically-sensitive diplomatic materials -- most media reports have focused on the likelihood of Assange's extradition to the U.S. to face criminal charges. Less discussed, however, is the possibility of irregular rendition, which could pose a far greater threat to Assange's life and safety. Unfortunately for Assange, the key to his fate lies in the hands of his political foil U.S. Secretary of State Hillary Clinton.
Indications abound that the U.S. may prosecute Assange and others for the public release of thousands of secret diplomatic cables. Confirming media reports, late last year U.S. Attorney General Eric Holder said that he had authorized "significant" actions in furtherance of a criminal investigation against Assange and his associates "involved in the breaking of American law." CNN's senior legal analyst Jeffrey Toobin has suggested that prosecutors have a sealed warrant for Assange's arrest, potentially on charges that the WikiLeaks leader jeopardized national security. “It’s certainly my belief based on what the attorney general said that they have already got an arrest warrant for him and they are just waiting for the appropriate moment in the appropriate country,” Toobin said. A State Department spokesman acknowledged the existence of an ongoing criminal investigation, adding that the U.S. would "hold those responsible fully accountable." And "with a US grand jury currently empanelled to consider charges of espionage," noted the Sydney Morning Herald, "it seems to many that it is only a question of where Assange will be imprisoned, not if."
Characterizing the WikiLeaks's disclosures as "worse even than a physical attack on Americans," Congressman Peter King called Assange an "enemy combatant"; King suggested prosecuting Assange for espionage, designating WikiLeaks as a terrorist organization, and freezing the group's assets. Former Arkansas Governor Mike Huckabee called for the execution of those responsible for the leaks, while former Alaska Governor Sarah Palin said Assange “should be hunted down just like al-Qaeda and Taliban leaders.” Some have theorized that such statements raise the possibility of conspiracy and/or espionage charges; reportedly, the Pentagon and Department of Justice have considered charging Assange under the Espionage Act, which could carry a decades-long prison sentence.
The possibility of criminal charges against Assange and other WikiLeaks associates became more concrete early this week, when a federal court ruled that the Justice Department could subpoena records of the Twitter accounts used by Assange, Bradley Manning, and other WikiLeaks associates targeted in a criminal investigation. Google and at least one internet service provider have allegedly received similar subpoenas. This spectre of possible U.S. criminal charges looms as a U.K. court has also ruled that Assange may soon face extradition for questioning regarding alleged sex violations in Sweden, where Assange could be held indefinitely without charge and without access to visitors, lawyers, or the media.
Assange and his legal team have contested his extradition to Sweden partly on grounds that he might then be extradited to the U.S., and there face torture or the death penalty. However, the European Court of Human Rights has ruled that extradition of a suspect to the U.S. to face capital charges would violate the European Convention on Human Rights; consequently, most European countries refuse to extradite to the U.S. unless they are assured that suspects will not be subject to the death penalty. In part because of his celebrity, Assange is unlikely to be an exception to this rule. Moreover, laws prohibit torture and other inhumane treatment within the United States and in U.S.-controlled facilities (although the rights of prisoners at Guantanamo remain somewhat questionable).
However, the options of U.S. officials are not limited to extradition. Indeed, a far greater threat to Assange's safety would be posed by the relatively recent U.S. practice of extraordinary rendition. Generally reserved for suspected terrorists, "extraordinary" or "irregular" rendition involves the extra-legal abduction of a suspect from a non-U.S. host country to another country (such as Egypt, Morocco, or Jordan) known to employ harsh interrogation tactics that may constitute torture. Rendered detainees may be held indefinitely, incommunicado, and without access to attorneys.
As an Australian national currently located outside the U.S., Assange would appear to be a potential candidate for such rendition. A Congressional Research Service report on extraordinary rendition states:
"Little publicly available information from government sources exists regarding the nature and frequency of U.S. renditions to countries believed to practice torture, or the nature of any assurances obtained from them before rendering persons to their custody. It appears that most, if not all, cases in which the United States has irregularly rendered persons have involved the transfer of non-citizens seized outside the United States, perhaps because persons within the United States (and U.S. citizens outside the country) are provided procedural protections against being summarily transferred to another country under federal statute and the Constitution. The legal limitations against the rendition of non-citizens seized outside the United States are much more limited."
Authorized under Reagan, implemented by Clinton, and widely deemed an illegal practice, the irregular rendition program is used to circumvent laws in the U.S. and other countries that have adopted the United Nations Conventions Against Torture (CAT). A 2007 report by the European Parliament indicated that the CIA had conducted at least 1,000 irregular renditions to countries where suspects might face torture. Sweden has, in the past, participated in this type of rendition; one such instance is the case of Ahmed Agiza and Mohammed al-Zery, who were rendered from Sweden to Egypt and allegedly tortured. Just days after taking office, President Obama issued an Executive Order opposing rendition torture and promising to shut down the CIA's secret torture prisons. However, this may be complicated by the fact that most such prisons are reportedly temporary, and thus difficult to detect. Additionally, some have averred the use of "floating" prison ships to conceal detainees.
CAT Article 3 prohibits any country from extraditing an individual to another country "where there are substantial grounds for believing that he would be in danger of being subjected to torture.” Therefore, prior to transferring suspects to receiving countries, the U.S. allegedly receives promises that detainees won’t be tortured upon arrival. However, the U.S. Congress has passed regulations that exclude certain aliens from CAT's protections, including any suspect who is deemed "a danger to the community of the United States" or "is believed, on the basis of reasonable grounds, to be a danger to the security of the United States." The above-cited comments by King and other government officials in the U.S. suggest that some may try to apply this exception to Assange, thus depriving him of international protections against acts of torture. One could imagine a scenario in which Assange might be rendered from Sweden to another country, forced to "confess" under duress of "enhanced interrogation," and then extradited to the U.S., there to contend with federal prosecutors armed with the details of any "confession" (whether genuine or false) obtained during torture.
Whether Assange faces U.S. extradition, irregular rendition, or both, one additional fact may work against him. Requests for U.S. extradition come from the Department of State, which has discretion and jurisdiction over the proceedings. Statements in the media by Assange and Secretary of State Hillary Clinton would tend to indicate an absence of mutual affection. Assange, for instance, has said:
• "... the law is not what, not simply what, powerful people would want others to believe it is ... the law is not what Hillary Clinton says it is."
• " ... the U.S. State Department ... acts not ... in the interest of the U.S. people but in the interest of the State Department."
• "[Clinton] should resign if it can be shown that she was responsible for ordering U.S. diplomatic figures to engage in espionage in the United Nations, in violation of the international covenants to which the U.S. has signed up. Yes, she should resign over that."
Clinton, for her part, has called the Wikileaks disclosures "an attack on the international community" that "puts people’s lives in danger, threatens our national security and undermines our efforts to work with other countries." Stating that WikiLeaks has committed criminal acts that "tear at the fabric" of responsible government, Clinton asserted that the U.S. has been taking "aggressive steps to hold responsible those who stole this information." The State Department rejected a request by WikiLeaks to cooperate in redacting the diplomatic cables before their release. Publicly humiliated by the WikiLeaks disclosure of sensitive details regarding the functioning of the agency under her command, Clinton now holds the power of office to take revenge against Assange by having him extradited, abducted, and tortured ... or even eliminated.