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International police organization Interpol has issued a "red notice" regarding Julian Assange, the WikiLeaks founder embroiled in controversy from his publication of confidential US diplomatic cables.
But the red notice, which is not an international arrest warrant, may be insufficient to reach Mr. Assange legally – like the several options already being considered by US authorities to charge him under US law.
BBC News reports that Interpol issued the red notice on Tuesday in regard to an arrest warrant for sex crimes filed in November by Sweden's International Public Prosecution Office. The BBC adds that Assange has filed an appeal of the arrest warrant in the Swedish Supreme Court. An appeals court earlier last month affirmed a detention order to hold Assange for questioning.
While the red notice itself is not an arrest warrant, it does represent a notice that a valid arrest warrant exists in the relevant country – in this case, Sweden – and that that country will seek extradition of the named party if arrested, writes David Kopel on legal blog The Volokh Conspiracy.
The red notice does not compel individual nations to act on it, Mr. Kopel adds, and "Countries make their own decisions about how to treat a red notice. Some countries treat a red notice as an actionable request for an arrest; the United States does not." Nor does Interpol have any enforcement powers itself – it cannot enforce criminal laws, but rather is a mechanism to share information between law enforcement organizations around the globe.
Sweden's and Interpol's actions represent just two of several efforts being discussed to pin down Assange, who calls himself the "editor-in-chief of WikiLeaks." The organization has provided an unprecedented cache of 251,287 diplomatic cables to Der Spiegel, El País, Le Monde, and The Guardian (which in turn passed it along to The New York Times). As of Wednesday morning, only 485 cables were viewable on WikiLeaks.org, which began posting the documents Sunday and says the remainder will become public in the coming months.
With WikiLeaks' gradual release of the US diplomatic cables, the US Justice Department has been exploring bringing legal charges against Assange for espionage. US Attorney General Eric Holder said this week that there is "an active, ongoing criminal investigation with regard to this matter."
But Reuters reports that legal experts see significant difficulties for any US government case, as there is no evidence that Assange's release of the diplomatic cables was done at the behest of or for the benefit of any foreign government. According to Reuters:
Mark Zaid, a defense lawyer who specializes in intelligence cases, said it would be "very difficult for the U.S. government to prosecute [Assange] in the US for what he is doing." ...
Joseph DiGenova, a former US Attorney in Washington who prosecuted high-profile espionage cases, said federal authorities would face "pretty tough" legal obstacles if they tried to bring a prosecution against Assange.
But he said officials like Holder had to make threats of prosecution, even if they lack legal substance, to "send a signal" to other would-be leakers.
Some US lawmakers, such as Rep. Peter King (R) of New York, have suggested that WikiLeaks and Assange might be reachable legally if WikiLeaks were declared a terrorist organization. But even if the US could reach WikiLeaks and its assets physically, which exist outside US borders, there are serious legal hurdles for such an approach, writes David Weigel in Slate.
Emily Berman, a lawyer with the Liberty and National Security Project at New York University Law School, told Mr. Weigel that if dissemination of outdated documents were considered "material support" of terrorism, any scholar working on the subject of terrorism would be at risk of federal prosecution. And though President Obama might use the International Emergency Powers Act to declare the WikiLeaks document dump a national emergency, thereby allowing him to use antiterrorist powers against the organization, all precedent regarding the act has involved actual terrorists, not publishers of simple, if embarrasing, documents.
The questionable legality of using antiterrorism tools against WikiLeaks and its employees has not stopped some political figures from calling for extreme measures against Assange.
Tom Flanagan, an adviser to Canadian Prime Minister Stephen Harper, said on Canadian television Tuesday that he thought Assange should be assassinated actually,” reported The Daily Telegraph. He added that President Obama should "put out a contract and maybe use a drone or something" against Assange.
Several US political commentators have made similar, if somewhat more oblique, suggestions. The Christian Science Monitor reported Tuesday that Fox News commentator Sarah Palin said on Twitter that Obama should use "all necessary means to respond to and defeat WikiLeaks," while the Weekly Standard's Bill Kristol wondered why the US can't use "our various assets to harass, snatch, or neutralize Julian Assange and his collaborators" and "disrupt and destroy WikiLeaks in both cyberspace and physical space, to the extent possible."