Apprehending Assange

If justice delayed is justice denied, it’s time to think about whether the Obama or Trump administrations should have just seized Julian Assange and brought him to America for trial. The latest decision in Britain that the WikiLeaks founder must be extradited to America was met immediately with a vow from Mr. Assange that he is going to appeal yet again. The New York Times suggests he could turn to the European Court of Human Rights.Prosecutors say Mr. Assange committed “one of the largest compromises of classified information in the history of the United States.” That was 12 years ago. He spent seven of those years at London’s Ecuadorian embassy and three more in a British hoosegow. He is still defiantly abroad. It’s time to revisit a case called United States v. Alvarez-Machain that found kidnapping was a legal means to bring a defendant to justice in America.The case concerned a Mexican physician, Humberto Alvarez-Machain, accused of a role in the murder of an American drug enforcement agent. Authorities said he used his medical skills to keep the agent alive “so that others could further torture and interrogate him,” Chief Justice Rehnquist’s opinion observes. The doctor was kidnapped in Mexico, flown to Texas, and, on arrival, arrested by American authorities.Alvarez-Machain claimed a violation of America’s extradition treaty with Mexico. Lower federal courts agreed, though, Chief Justice Rehnquist noted, the pact “does not expressly prohibit such abductions.” Rehnquist explained that the seizure of the Mexican doctor by law enforcement — “forcible abduction” — was not grounds to prevent a person from being tried “in a United States court for violations of this country’s criminal laws.”In weighing Alvarez-Machain’s case, Rehnquist observed that the Nine had “never before addressed the precise issue raised in the present case.” He found that the extradition pact “says nothing about the obligations of the United States and Mexico to refrain from forcible abductions of people from the territory of the other nation, or the consequences under the Treaty if such an abduction occurs.”Rehnquist cited case law, including Ker v. Illinois, that suggested America has even more flexibility to prosecute criminal defendants haled into court outside of the extradition process than it would have in cases in which a defendant is brought over by the book. If, say, Mr. Assange were extradited, prosecutors would be barred from trying him on new charges that could emerge, the New York Times reported today.Ker, a case from 1886, also involved a forcible abduction and sheds light on Mr. Assange’s case. An American in Peru, Frederick Ker, argued extradition was the only way he could legally be brought to America for trial. Justice Samuel F. Miller’s opinion notes that the existence of an extradition treaty does not itself mean someone trying to “escape punishment for crime” is “entitled to an asylum in the country to which he has fled.”Based partly on Ker’s precedent, the Supreme Court in 1992 rejected Alvarez-Machain’s suit, and sent his case back to the district court. The district court acquitted him, a fact in which Mr. Assange can take comfort, especially as his defenders insinuate he would be unable to get a fair trial here. That is the point upon which “legal experts believe Assange will focus his appeal,” National Public Radio reports.Mr. Assange’s legal team also plans to zero in on the “potential political motivation” behind America’s effort to try him. Yet the Biden administration’s pursuit of the case has already made it a bipartisan project. Were Mr. Assange eventually to convince British — or European Union — jurists to deny America’s request to turn him over, these precedents could yet present a way to hale Mr. Assange into an American court.

Apprehending Assange

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