The WikiLeaks founder’s arrival on US soil to face trial is highly unlikely, as Obama administration lawyers have yet to come up with criminal charges that would hold up in court, despite spending three months trying to hone their case against him, legal experts said.
A spokesman for the Swedish justice ministry also denied allegations that Sweden was planning to hand Assange over to US authorities should he be extradited to Sweden.
“That’s a lie. It is not true. There are no negotiations [with the US] in that field,” Justice Minister Beatrice Ask’s spokesman Martin Valfridsson told the AFP in January.
Valdfridsson reiterated that a Swedish prosecutor wanted to question Assange over allegations of sex offences and that if she determined there were grounds for a trial, those offences “would be the only thing that would be tried.”
And experts also warned that any indictment under a sweeping anti-spying law known as the Espionage Act could also put the news media at fault, along with ordinary people who read the classified diplomatic cables leaked by Assange’s group or even just shared them with others.
Federal prosecutors are seeking to build a case against Assange that could allow them to charge him with conspiracy for allegedly helping or encouraging US Army intelligence analyst Private First Class Bradley Manning to obtain and leak the secret memos from government computers.
But Assange’s lawyer Geoffrey Robertson said at the start of a two-day extradition hearing Monday that his client could face a “flagrant denial of justice” if extradited to Sweden over allegations of rape and molestation.
The comments and other claims about the Swedish legal system by Assange’s lawyers prompted a response from Swedish prime minister Fredrik Reinfeldt, who emphasised that the Swedish judiciary is “independent”.
“Unfortunately, this is the kind of thing you hear when (a lawyer) trying to defend a client gives a condescending description of other country’s legal systems,” he told reporters in Stockholm on Tuesday.
The 39-year-old Australian could even face the death penalty if further extradited to the United States on separate charges relating to WikiLeaks, Robertson said.
But any potential trial against Assange in the United States, a country that prides itself on its freedoms of speech and press, remains hypothetical at best. It doesn’t help that Assange also calls himself a journalist.
“There is no prospect that Assange could be sent to Guantanamo or prosecuted for a capital crime such as treason,” American University fellow in law and government Dan Marcus told AFP, noting that violating the Espionage Act in and of itself is not a capital crime.
“There have been a couple of suggestions that WikiLeaks be declared a terrorist organization, but that is not possible under existing law and doesn’t make sense anyway, given our understanding of what ‘terrorism’ is — WikiLeaks doesn’t engage in violent activities.”
Washington, meanwhile, has not sent any new prisoners to the US naval base in southern Cuba for years.
Justice Department officials refused to comment on any progress on the criminal probe launched last summer after WikiLeaks released tens of thousands of documents on US operations in Iraq and Afghanistan, and revamped in late November when the whistleblower began publishing the diplomatic cables.
The World War I-era Espionage Act however, is outdated and not likely to be of much help to US prosecutors.
And Assange’s alleged role as a middleman in the massive leak of a quarter million cables could be protected under free speech and press protections under the First Amendment of the US Constitution.
“How can the first amendment not apply to WikiLeaks? I don’t want the government to decide who is entitled to the First Amendment,” said lawyer Victoria Toensing, who served as deputy assistant attorney general under president Ronald Reagan.
“Who is the government to say one of us is worthy, like the NYT (New York Times), and those of us who are just individuals are not worthy?”
She noted that extraditing Assange — who is neither a US citizen nor a US resident — to the United States would require an agreement from the European countries where he currently faces charges.