A Precedent for Julian Assange

This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.

The New York Sun

No sooner did a British court deny extradition of Julian Assange to America than Mexico turned around and offered the Wikileaks founder political asylum. That’s the report in the New York Post, which notes that the idea is to shelter the Australian who jumped bail in London to avoid getting captured by America. President Lopez Obrador of Mexico says of Mr. Assange: “We’ll give him protection.”

Hmmmm. It strikes us that before getting in too deep, AMLO, as the Mexican leader is known, might want to read the United States Supreme Court precedent known as Alvarez-Machain. It was handed down in 1992 by a six-to-three majority of the court. The nub of the decision is that the forcible abduction of a fugitive does not prohibit his trial in an American court for violation of America’s laws.

We’ve written about this precedent in several editorials in this space. One, called “Julian Assange’s Jeopardy,” was issued two years ago. That was after Glenn Greenwald reported that Mr. Assange’s asylum in Ecuador’s embassy in London would be coming to an end. We also cited Alvarez-Machain in 2010, after the release by Scotland of Abdelbaset al-Megrahi, who’d been convicted in the bombing of Pan Am 103.

At the time, we thought President Obama could go after al-Megrahi and bring him to trial in America. The precedent involved a Mexican physician, Dr. Humberto Alvarez-Machain. He was charged in the United States for allegedly working in Mexico to keep one of our drug enforcement agents alive while he was being tortured. He was kidnapped and flown to Texas, where he was arrested by agents of our Drug Enforcement Administration.

As Chief Justice Rehnquist later described it, a United States district court “concluded that DEA agents were responsible for respondent’s abduction, although they were not personally involved in it.” Alvarez then tried to dismiss the indictment, claiming, as Rehnquist characterized it, “that his abduction constituted outrageous governmental conduct.” A federal district court ordered that Dr. Alvarez be sent back to Mexico.

An appeals court sustained that decision, but the Supreme Court reversed. Rehnquist, we pointed out in 2010, even cited cases suggesting that the government has a freer hand in the prosecution of persons brought here outside formal extradition proceedings than in cases where extradition is done according to Hoyle. The idea seems to be that if we seek extradition proceedings, we might be bound to accept the result.

In respect of Mr. Assange, news reports suggest that America is going to appeal the denial of extradition. The judge who denied extradition cited the possibility that were extradition granted Mr. Assange might commit suicide. It’s not our purpose here to criticize the British judge one way or another. Rather, it’s to mark the prospect that even if America loses the appeal, Mr. Assange might still be in jeopardy.

Then again, too, bringing a fugitive here by forcible abduction doesn’t guarantee a conviction in court. When Dr. Alvarez-Machain was finally put in the dock here, the court turned around and threw out the charges for lack of evidence. So in the end, he was returned to Mexico. For Mr. Assange, the precedent suggests that even though he might never be safe from seizure, he’s likely to get a fair trial if we capture him.


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