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It has been asserted that Julian Assange is being persued by the US, Sweden and the UK for political rather than legal reasons.

For example:

Notwithstanding the merits of such assertions, are any explicit laws against political persecution in the US/UK?

Remark by the original question's author: the text above is the result of editing by the user Dale M. and it misrepresents the original question. My comment pointing to that fact was deleted (the motivation for the editing of the original question by the user Dale M. was "removal of inflammatory speech" - which refers to me drawing a parallel between Assange's case to Soviet Union legal practices, I guess). At this point, if you wish to further remove my remarks, I would ask you to simply remove the question, as it makes it seem as if I am the author of this crippled text.

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    You can further edit the question if you like. May 18 at 18:18
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It is generally legal in the US for the government to investigate a person for committing crimes, and to prosecute them if there is sufficient evidence that they committed a crime. The criminal indictment, returned by a grand jury in US District Court, Eastern District of Virginia, can be seen here. This alleges conspiracy to violation of 18 USC 371, 1030(a)(l), 1030(a)(2), 1030(c)(2)(B)(ii). Subsequently, a grand jury returned indictment on 17 additional counts of espionage. Under US law, a grand jury is to return an indictment if the evidence presented persuades them that there is probable cause of a crime having been committed by a suspect. So that much is entirely legal; and that is also as far as the matter has gone. One might speculate about what defenses his attorneys will proffer to the effect either that he had a special privilege to engage in the alleged acts, or that the acts which he committed do not constitute violation of the law.

There are two separate matters of bail-jumping in the UK and extradition to Sweden (which brought about his initial arrest in the UK, thus the bail-jumping charge and conviction). The Swedish arrest warrant was, from all available evidence, legal, and likewise his unsuccessful challenge of the extradition request appears to have been lawful. So on those fronts too, the law seems to have been followed.

There are numerous accusations that governmental discretion was exercised to Assange's disadvantage for political reason. But these are political claims, not legal ones.

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In the US and UK, public prosecutors have "prosecutorial discretion," which means that they have mostly sole discretion of which alleged crimes they choose to prosecute. In the UK, the Crown Prosecution Service does have a set of guidelines on their prosecutors must follow when making the decision to prosecute, summarized as (emphasis mine):

Is there enough evidence against the defendant? ...

Is it in the public interest for the CPS to bring the case to court?

A prosecution will usually take place unless the prosecutor is sure that the public interest factors tending against prosecution outweigh those tending in favour.

As shown, the CPS errs on the side of allowing a case to be prosecuted if they have sufficient evidence that a crime has taken place, and only recommend declining to prosecute if the prosecutor is sure it is not in the public's best interest to prosecute. The fact that a particular prosecution fulfills a political purpose could be a factor against the public interest, but it seems that the prosecutor in Assange's case decided that allowing the courts to make the extradition decision was in the public interest as opposed to the prosecutor making the decision not to prosecute.

In the US, United States Attorneys (federal level chief prosecutors) are appointed by the President and are part of the Department of Justice. The Department of Justice has this set of guidelines on prosecutorial discretion:

The attorney for the government should commence or recommend federal prosecution if he/she believes that the person's conduct constitutes a federal offense, and that the admissible evidence will probably be sufficient to obtain and sustain a conviction, unless (1) the prosecution would serve no substantial federal interest; (2) the person is subject to effective prosecution in another jurisdiction; or (3) there exists an adequate non-criminal alternative to prosecution.

The guidelines here are different from the UK, the most important for the purpose of this question being that the prosecution must serve a substantial federal interest, rather than public. However, there is still no prohibition on prosecution that happens to serve a political purpose, so long as the prosecutor believes there is sufficient evidence to convict the accused and that it serves a substantive federal interest, along with the other factors. The US Attorney in this case apparently believes that crimes Assange is alleged to have committed serve a substantive federal purpose.

With all this in mind, the purpose of a grand jury is to prevent prosecution when there isn't sufficient evidence to establish probable cause of a person having committed a crime, which acts as a deterrent against prosecutial power being used to harass a person or drag them through a trial without any hope of convicting them. However, for the purpose of trial and conviction ultimately the law only cares whether or not there is sufficient evidence to convict someone of a crime, not whether that conviction serves a political purpose.

With all that said, extradition treaties are ultimately political vehicles - they generally allow the sending state to have the discretion to choose whether or not to extradite a person. If the UK extradites Assange to Sweden, Sweden may decide not to extradite him to the US due to their belief that prosecution for the charges is not in the Swedish public interest, possibly because they serve more of a political purpose for the US government than a judicial interest. There's no particular law compelling Sweden's government to act one way or another, so their possible choices on that front are a matter of politics and not law.

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  • So if I understood correctly, you believe there are no such laws against political persecution, but rather some institutional/political mechanisms instead which could perhaps prevent Assange's extradition to US.
    – John Donn
    Nov 17 '19 at 21:19
  • @JohnDonn There are laws and policies that have the effect of preventing merit-less political prosecutions, but meritorious prosecutions aren't against the law because they are political per se. Nov 17 '19 at 21:32
  • Is there no effective judicial oversight of prosecutorial discretion? That is, do decisions to prosecute never get appealed, or never get overturned on appeal?
    – einpoklum
    May 18 at 19:33
  • @einpoklum The original question was specifically about preventing political prosecutions, so I wasn't answering about general limits on prosecutorial discretion, although the court doesn't really judge the prosecutor's use of their discretion, that's more up to the electorate if the prosecutor is elected or the representative that appointed them. For federal prosecutors that would ultimately mean the Attorney General and the President. A prosecutor could probably be disciplined if they were engaging in selective or malicious prosecution, but proving either of those is rare. May 18 at 20:54
  • General limits and those regarding persecution are a very similar question. If discretion is limited by (other) law and the constitution, then your answer does not really answer the question, but is a sort of a "homunculus". Now, sure, it may be difficult to get the courts to recognize abuse of discretion, but that does not take away from there being laws to the extent they exist.
    – einpoklum
    May 18 at 21:04
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There are no UK laws explicitly against political persecution and I don't know which laws one could use in relation to it.

One can seek asylum in an EU or UN member state (including the UK) on the basis of being persecuted for one's political opinion. According to the BBC, Assange's asylum claim in the Ecuadorian embassy was granted by Ecuador's government on that basis along with a perceived risk of being subjected to cruel and degrading treatment and sentence of life imprisonment or even capital punishment.

To my knowledge, Assange has not advanced an argument relating to persecution at any stage in the legal proceedings in the UK or Sweden.

Per the UK's extradition treaty with the USA and the European Convention on Human Rights the UK would not be permitted to extradite Assange if he faces a serious risk of cruel and degrading treatment or capital punishment.

Per Sweden's and the UK's extradition treaties with the USA, they may not extradite to the USA someone accused of a political offence or fulfil an extradition request that is determined to be politically motivated. (Political offences are not defined.)

In the extradition hearing in February 2020 Assange will have an opportunity to advance arguments along such lines.

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In such a case there could, in the , be a defense of selective prosecution. To establish this the defendant would need to show that others had actually committed the same offense in similar circumstances, but were not prosecuted, and that further the prosecutor had acted from arbitrary and impermissible motives in deciding which cases to prosecute.

Most of the invocations of the rule against selective prosecution have alleged racial bias on the part of the police and/or the prosecutors, and even so most of the claims of selective prosecution have failed.

However, evidence that accused with certain political views were prosecuted, while those with other, more favored views were not, when the offenses and circumstances were similar might amount to a defense of selective prosecution.

In "What About Selective Prosecution" from Fordham Law News a case of allegedly political selective prosecution is discussed, the case of Kathleen Kane, then Attorney General of Pennsylvania. There had been no court ruling on the claims of selective prosecution when the article was published.

The caselaw I have found all agrees that selective prosecution is a hard but not impossible defense to establish. The defendant at trial must provide clear evidence that others similarly situates are not prosecuted, and of an improper motive on the part of the prosecutor. This burden was sustained in Yick Wo v. Hopkins, 118 U. S. 356, 373 (1886) but such a defense was rejected in many other cases.

A relatively recent case in the US Supreme Court dealing with alleged selective prosecution was United States v. Armstrong, 517 U.S. 456 (1996) In that case it was alleged prosecutions for crack cocaine dealing along with firearms possession were brought almost solely against black defendants and not against those of other races. The defendants sought discovery of all cases dealing with such offense patterns brought by the US DoJ in the previous three years, along with the races of all such defendants, in an effort to demonstrate such a pattern of bias. The Court ruled that defendants must make at least some showing that there had been others similarly situated who were not prosecuted before they were entitled to such broad discovery.

In the opinion in Armstrong Chief Justice Rehnquist wrote:

Of course, a prosecutor's discretion is "subject to constitutional constraints." United States v. Batchelder, 442 U. S. 114, 125 (1979). One of these constraints, imposed by the equal protection component of the Due Process Clause of the Fifth Amendment, Bolling v. Sharpe, 347 U. S. 497, 500 (1954), is that the decision whether to prosecute may not be based on "an unjustifiable standard such as race, religion, or other arbitrary classification," Oyler v. Boles, 368 U. S. 448, 456 (1962). A defendant may demonstrate that the administration of a criminal law is "directed so exclusively against a particular class of persons ... with a mind so unequal and oppressive" that the system of prosecution amounts to "a practical denial" of equal protection of the law. Yick Wo v. Hopkins, 118 U. S. 356, 373 (1886).

In order to dispel the presumption that a prosecutor has not violated equal protection, a criminal defendant must present "clear evidence to the contrary." Chemical Foundation, supra, at 14-15. We explained in Wayte why courts are "properly hesitant to examine the decision whether to prosecute." 470 U. S., at 608. Judicial deference to the decisions of these executive officers rests in part on an assessment of the relative competence of prosecutors and courts. "Such factors as the strength of the case, the prosecution's general deterrence value, the Government's enforcement priorities, and the case's relationship to the Government's overall enforcement plan are not readily susceptible to the kind of analysis the courts are competent to undertake." Id., at 607. It also stems from a concern not to unnecessarily impair the performance of a core executive constitutional function. "Examining the basis of a prosecution delays the criminal proceeding, threatens to chill law enforcement by subjecting the prosecutor's motives and decisionmaking to outside inquiry, and may undermine prosecutorial effectiveness by revealing the Government's enforcement policy." Ibid.

The requirements for a selective-prosecution claim draw on "ordinary equal protection standards." Id., at 608. The claimant must demonstrate that the federal prosecutorial policy "had a discriminatory effect and that it was motivated by a discriminatory purpose." Ibid.; accord, Oyler, supra, at 456. To establish a discriminatory effect in a race case, the claimant must show that similarly situated individuals of a different race were not prosecuted. This requirement has been established in our case law since Ah Sin v. Wittman, 198 U. S. 500 (1905). Ah Sin, a subject of China, petitioned a California state court for a writ of habeas corpus, seeking discharge from imprisonment under a San Francisco County ordinance prohibiting persons from setting up gambling tables in rooms barricaded to stop police from entering. Id., at 503. He alleged in his habeas petition "that the ordinance is enforced 'solely and exclusively against persons of the Chinese race and not otherwise.''' Id., at 507. We rejected his contention that this averment made out a claim under the Equal Protection Clause, because it did not allege "that the conditions and practices to which the ordinance was directed did not exist exclusively among the Chinese, or that there were other offenders against the ordinance than the Chinese as to whom it was not enforced." Id., at 507-508.

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Here is another piece of information: citing a recent "Guardian" article, written with more attention to facts than usual,

Julian Assange’s extradition fight could turn on reports he was spied on for CIA

"Goodwin-Gill said European human rights law – binding on the UK – would also likely form part of Assange’s argument to resist extradition. Article six of the European Convention on Human Rights guarantees a fair trial, while article three protects an accused person from inhuman or degrading treatment or punishment.

“There, I think, is some potential for success,” Goodwin-Gill said. “Because I think it is not unlikely that if the European court, or indeed the British court, were to be persuaded that a sentence of 175 years was likely, that might well be considered – against the background of European jurisprudence – as cruel and inhuman.” "

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There are laws that, in general, prohibit mistreatment of people in the criminal justice process or regulate the discretion that may be exercised in the criminal justice process.

Many countries in the West have a right to freedom of expression, freedom to petition, or freedom of conscience. These rights, sometimes called human rights, and sometimes called civil rights or civil liberties, usually limit what kind of conduct can be criminalized, rather than how discretion is exercised in the criminal justice process.

Some kinds of criminal justice decision making is in the broad discretion of the prosecutor. In those cases, political views are rarely singled out as a prohibited reason for exercising discretion. Usually, if there are grounds to believe that a crime has been committed, the crime may be prosecuted and all legally authorized punishments for the crime may be sought, even if it so happens that a prosecutor exercised discretion to bring a prosecution based upon a defendant's political views.

Other kinds of criminal decision making can only be made for legally specified reasons under the laws of the jurisdiction establishing the crime.

For example, many criminal statutes have aggravating factors that justify imposing a higher than usual sentence for a crime, and the political views of the offender are rarely pertinent unless they implicated some other permissible factor (e.g. hate crime enhancers, or enhancers for lack of remorse).

In those cases, political views are rarely authorized as one of the legally specified reasons.

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