Barrister Robinson: (Julian Assange's representative) Having done some more research work, I have found some relevant material that applies to extraterritoriality of American criminal law. https://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=3097&context=facpub
Within the Introduction, is this statement: "With the explosion in cross-border criminality made possible by modem technology and transportation systems, the globalization of commerce and finance,and the Internet, these are issues that courts attempt to answer on a daily basis.But thousands of federal crimes were enacted before these circumstances conspired to make criminality increasingly transnational, and thus the statutes saynothing about their geographical scope. Courts struggle to determine whether toapply federal statutes to trans-border criminal activity because "[t]he case law isso riddled with inconsistencies and exceptions." 2 "[T]he only thing courts andscholars seem to agree on is that the law in this area is a mess."3 " [end of quote] Further, on page 1026, it continues: " The federal courts generally apply two canons of construction to determine thegeographic scope of a statute that, on its face, does not address the question (ageoambiguous statute): a presumption against extraterritoriality, which theSupreme Court introduced in its current form in 1991's EEOC v. ArabianAmerican Oil Co. (Aramco),7 and the Charming Betsy canon, which the Courtoften relied upon prior to Aramco. In the Court's last three extraterritorialitycases-Morrison v. National Australia Bank Ltd.,' Kiobel v. Royal DutchPetroleum Co.,9 and RJR Nabisco, Inc. v. European Communityo-it emphasized the importance of a strong presumption against extraterritoriality. This presumption has become something approaching a clear statement rule (although theCourt disclaims this reality"): "When a statute gives no clear indication of anextraterritorial application, it has none." 12 The presumption applies "regardless ofwhether the statute in question regulates conduct, affords relief, or merely confersjurisdiction."13 The presumption against extraterritoriality means that the Courtassumes that Congress intends its statutes to apply only to conduct within the territory of the United States unless it says otherwise. This exclusive emphasis onconduct within the territory of a State reflects the subjective territorial principleunder the international law of prescriptive jurisdiction. " [end of quote] And see pages 1052-1053: "In 2010, the Court strongly signaled that these antitrust cases are sui generis byinsisting on a strong presumption against extraterritoriality in Morrison v.National Australia Bank.1 6 7 The case was a blockbuster because the Court overruled decades of courts of appeals case law by dramatically limiting the scope ofthe securities fraud laws. The respondent, National Australia Bank (National), anon-U.S. bank whose shares were not traded on any U.S. exchange, purchased respondent HomeSide Lending, a company headquartered in Florida. 168 A fewyears after this purchase, National had to write down the value of Homeside'sassets, causing a drop in National's share price.16 9 Petitioners, Australians whopurchased National's stock before the write-downs, sued National, Homeside,and officers of both companies in federal district court for violating sections10(b) and 20(a) of the Securities and Exchange Act of 1934170 and SEC RulelOb-5. 17 1 Petitioners claimed that HomeSide and its officers, with the knowledgeof National and its chief executive, manipulated financial models to make the company appear more valuable than it was. 17 2 In short, this was a "foreign-cubed" 173securities fraud case in that the parties were Australian, the shares were not listedon a U.S. exchange, and the shares were purchased and sold in Australia. The petitioners, however, believed that because the fraudulent conduct took place, at leastin part, in the United States, their civil securities fraud suit belonged in a U.S.court. 174The district court dismissed the case for want of subject-matter jurisdiction,concluding that the fraudulent acts alleged in the United States were, "at most, alink in the chain of an alleged overall securities fraud scheme that culminatedabroad."1 75 The Second Circuit affirmed because the fraudulent acts performed inthe United States did not "compris[e] the heart of the alleged fraud." 17 6 TheSupreme Court reversed, making three critical rulings.First, until Morrison, 7 all the circuits treated extraterritoriality as a questiongoing to the courts' subject-matter jurisdiction in securities and other cases. InMorrison, however, the Supreme Court made clear for the first time that the extraterritoriality question was not jurisdictional; rather it relates only to whether acase can be made on the merits. 178 It explained:the FTAIA's codification of an effects test as applied to export activity may preclude the Court fromrevisiting its precedents, at least in that context. " [T]o ask what conduct § 10(b) reaches is to ask what conduct § 10(b) prohibits,which is a merits question. Subject-matter jurisdiction, by contrast, "refers to atribunal's 'power to hear a case."' It presents an issue quite separate from thequestion whether the allegations the plaintiff makes entitle him to relief. TheDistrict Court here had jurisdiction under 15 U.S.C. § 78aa to adjudicatethe question whether § 10(b) applies to National's conduct.179As we shall see in our roadmap discussion in section III.C, this ruling has important procedural implications. 8 0Second, the Supreme Court, again overruling decades of lower court precedent,held that section 10(b) does not apply beyond the shores of the United States afterapplying a strong presumption against extraterritoriality. Until Morrison, the circuits had decided whether they had jurisdiction over securities fraud claims thatinvolved transnational elements by applying the so-called "conduct-and-effects"test. This test was derived from international law's understandings of what constituted a "territorial" application of legislation. It presumed that where subjectiveterritoriality (domestic conduct) or objective territoriality (domestic effects) werepresent, the case was a territorial suit and no issue of statutory extraterritorialitywas raised. The test was pioneered by the Second Circuit and adopted by theother circuits. The Court emphatically rejected the Second Circuit's conductand-effects test as fundamentally inconsistent with the presumption againstextraterritoriality.s' " [end of quote] The material continues: "Having rejected the circuit courts' test, the Court applied its presumption against extraterritoriality. It examined the language and history of section 10(b) and concluded that there was "no affirmative indication in theExchange Act that section 10(b) applies extraterritorially" and thus nothing torebut the presumption.1 8 6 Accordingly, the Court ruled that the securities fraudprovisions at issue did not apply extraterritorially.The Morrison Court's third and final holding related to the question of when agiven securities fraud case could be deemed extraterritorial, and thus precluded,as opposed to territorial or domestic, in which case it could proceed. Having lostthe battle of extraterritoriality, the petitioners attempted to win the war by arguing179. Id. at 254 (citations omitted).180. that they sought only domestic application of section 10(b). Petitioners contendedthat, given that the fraud was hatched in Florida and false statements were madethere, the fraud was committed in the United States." "Acknowledging that "it is a rare case of prohibited extraterritorial applicationthat lacks all contact with the territory of the United States," the Court applied a"focus" test, which asks what conduct is the "object[] of the statute's solicitude." 187 This test looks to "those transactions that the statute seeks to 'regulate'and to the "parties to those transactions that the statute seeks to 'protec[t]."'1 88The Court reasoned that section 10(b) does not "punish deceptive conduct, butonly deceptive conduct 'in connection with the purchase or sale of any securityregistered on a national securities exchange or any security not so registered."'189Thus, the Court concluded that section 10(b) applies "only [to] transactions insecurities listed on domestic exchanges, and domestic transactions in other securities"19 0 and suggested that all other cases constitute improper extraterritorialapplications of the statute. In other words, unless there was a domestic securitiestransaction, the case constitutes a forbidden extraterritorial application of the statute. The site of the fraud is irrelevant to determining whether a claim is territorialor extraterritorial in nature." [end of quote] Jim Bell's comments continue: One issue that needs to be settled, I believe, is: Which Circuit's precedents would be applicable to Julian Assange's case? The American judicial system is based on territorial appeals courts, called "Circuit"s. There are twelve (12) Circuits, numbered "First" through "Eleventh", and the "D.C. Circuit", for the District of Columbia. (There is also a "Federal Circuit" which deals with Patent and other cases, not relevant here.) Generally, when crimes are tried, they occur in the territory of at least one specific Circuit. The District Court in question generally applies the precedents of that Circuit. No part of the alleged crime by Assange appears to have occurred in any specific American Circuit. In some instances, American law specifies that if a crime is not committed within any American territory, it should be tried in the Circuit in which the defendant 'is first brought', or in the District of Columbia. To allow the Federal government the freedom to decide which Circuit's precedent's should apply is a clear example of "forum-shopping", a term which you may be familiar. https://en.wikipedia.org/wiki/Forum_shopping The material I have cited above, https://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=3097&context=facpub seems to indicate that the American Supreme Court's word on the subject, in the Morrison v. National Australia Bank, https://www.law.cornell.edu/supct/html/08-1191.ZO.html case, includes that important presumption against extraterritoriality. As Morrison states: "It is a “longstanding principle of American law ‘that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States.’ ” EEOC v. Arabian American Oil Co. , 499 U. S. 244, 248 (1991) (Aramco) (quoting Foley Bros., Inc. v. Filardo , 336 U. S. 281, 285 (1949) ). This principle represents a canon of construction, or a presumption about a statute’s meaning, rather than a limit upon Congress’s power to legislate, see Blackmer v. United States , 284 U. S. 421, 437 (1932) . It rests on the perception that Congress ordinarily legislates with respect to domestic, not foreign matters. Smith v. United States , 507 U. S. 197 , n. 5 (1993). Thus, “unless there is the affirmative intention of the Congress clearly expressed” to give a statute extraterritorial effect, “we must presume it is primarily concerned with domestic conditions.” Aramco , supra , at 248 (internal quotation marks omitted). The canon or presumption applies regardless of whether there is a risk of conflict between the American statute and a foreign law, see Sale v. Haitian Centers Council, Inc. , 509 U. S. 155, 173–174 (1993) . When a statute gives no clear indication of an extraterritorial application, it has none." [end of quote. Emphasis by bolding and italics, added.] While I do not know how British courts work, I think this Morrison precedent should preclude having any criminal charges made against Julian Assange, except for those which explicitly contain language from the American Congress that extraterritoriality is intended by them. Jim Bell ======================================================================== On Thursday, September 17, 2020, 10:15:22 PM PDT, jim bell <[email protected]> wrote: To: Barrister Jennifer Robinson, https://www.doughtystreet.co.uk/barristers/jennifer-robinson (Representing Julian Assange) The following material was published on the Cypherpunks Email list. On Thursday, September 17, 2020, 03:27:05 PM PDT, Hernâni Marques <[email protected]> wrote: >For 10 years now the USA has been chasing journalist and Wikileaks founder Julian Assange. In doing so, they are not shy in violating the rule of law and human rights. [end of quote from previous message on Cypherpunks email list.] Jim Bell's comment about American Limitations period angle to get Assange released. I've spent about 15,000 hours in a US Federal prison law library, learning MANY kinds of Federal law. (Most 'jailhouse lawyers' just learn criminal law and appeals law.) I learned contract law, tort law, libel law, civil rights law (42 USC 1983, and Bivens Actions), patent law, anti-trust law, My biggest project was a lawsuit I wrote 2002-2003. James Dalton Bell v. District Courts of Tacoma and Seattle. James Dalton Bell, et al v. United States, et al Which, when printed out, spanned 192 pages. | | | | James Dalton Bell, et al v. United States, et al | | | Most people know about 'limitations periods', more commonly known as "statute of limitations". Beyond that time, a Federal crime generally cannot be prosecuted in a Federal court, although there are exceptions. https://fas.org/sgp/crs/misc/RL31253.pdf Most US Federal felonies have a limitations period of 5 years, a very few have a limitations period of 8 years. (A few, directly involving a criminal death have no limitation on prosecution time.) Assange's alleged crimes seem to be claimed to have occurred around 2009 or 2010, and do not involve any alleged deaths. So, unless the limitations period is considered 'tolled', it should be impossible to prosecute Assange in an American Federal Court. And, that being so, it should be impossible to obtain extradition to the United States, either. However, under American law, the limitations period is generally 'tolled' (the 'clock' is stopped) under a few circumstances. One of those is when a defendant is considered a "fugitive". As is stated in https://fas.org/sgp/crs/misc/RL31253.pdf on pages 10-11: "Fugitives"" A provision exempting fugitives accompanied passage of the first federal statute of limitations.77The language has changed little since,78 but its meaning remains a topic of debate.79 Most circuits,taking their lead from Streep v. United States,80 hold that the government must establish that theaccused acted with an intent to avoid prosecution.81 Yet two have held that mere absence from thejurisdiction is sufficient.82 Even in the more demanding circuits, however, flight is thought tohave occurred when the accused conceals himself within the jurisdiction;83 remains outside thejurisdiction after becoming aware of the possibility of prosecution;84 flees before an investigationbegins;85 departs after an investigation has begun but before charges are filed;86 absconds to avoid prosecution on another matter;87 or flees to avoid civil or administrative justice rather thancriminal justice.88 " [end of quote] Since Assange clearly did not commit any US Federal crime while he was physically present within the United States (indeed, he may never have been in the United States at all, or at least during any period relevant to this case), it is clear that he did not "flee" from the United States to avoid prosecution. Indeed, he did not "flee" at all. To this, a Federal prosecutor might respond that nevertheless, Assange was 'outside the jurisdiction' of the United States court system, at least for the "most circuits" . The exceptions listed in the paragraph above do not appear to apply, because the alleged crime occurred outside the U.S. Superficially, such a prosecutor would want to invoke the "mere absence" policy of a few circuits. Of course, since the alleged crimes did not occur within ANY of those American circuit-court regions, even that is questionable. See Note 82, which cites circuit cases from the 8th Circuit. And the D.C. Circuit: McGowen v. United States, 105 F.2d 791, 792 (D.C. Cir.1939) McGowen v. United States, 105 F.2d 791 (D.C. Cir. 1939) From McGowen, citing the Supreme Court: | | | | | | | | | | | McGowen v. United States, 105 F.2d 791 (D.C. Cir. 1939) McGowen v. United States, 105 F.2d 791 (D.C. Cir. 1939) case opinion from the US Court of Appeals for the Distri... | | | "To be a fugitive from justice, in the sense of the act of congress regulating the subject under consideration, it is not necessary that the party charged should have left the state in which the crime is alleged to have been committed, after an indictment found, or for the purpose of avoiding a prosecution anticipated or begun, but simply that having within a state committed that which by its laws constitutes a crime, when he is sought to be subjected to its criminal process to answer for his offence, he has left its jurisdiction, and is found within the territory of another." The Supreme Court first used that language with regard to the extradition law,[2] but afterwards expressly applied it to the statute here involved.[3] Accordingly appellant, when he left the District after committing forgery, was a "person fleeing from justice," regardless of his motive in leaving." [end of quote from McGowen] First, Assange was not "within a state committed [...] a crime", in this case the reference to "state" would include the United States of America. Nor did Assange "[leave] its jurisdiction", since he was not within the United States of America, at all. Assange did not "[leave] the District after committing [a Federal crime". If it is assume that Assange was 'within the jurisdiction' of a U.S. Federal court while nevertheless in U.K., Assange didn't subsequently leave the jurisdiction of a U.S. Federal Court: If the Federal Court asserts that it has jurisdiction in any location in the world regarding such a crime. Further quoting from https://fas.org/sgp/crs/misc/RL31253.pdf : "Streep declared that it “unnecessary, for the purposes of the present case, to undertake to give an exhaustivedefinition of these words [fleeing from justice]; for it is quite clear that any person who takes himself out of thejurisdiction, with the intention of avoiding being brought to justice for a particular offense, can have no benefit of thelimitation, at least when prosecuted for that offense in a court of the United States,” 160 U.S. at 133. In context, itmight be thought unclear whether the Court meant flight with intent was required or merely sufficient." [end of quote from Note 82] This is from the Streep case itself: https://supreme.justia.com/cases/federal/us/160/128/ "In order to constitute "fleeing from justice" within the meaning of section 1045 of the Revised Statutes, it is not necessary that there should be an intent to avoid the justice of the United States, but it is sufficient that there is an intent to avoid the justice of the state having jurisdiction over the same territory and the same act." [end of quote] Assange is not alleged to have fled the jurisdiction of any American state. He is also not alleged to have fled the jurisdiction of the Federal court system. But there is a further reason to reject the possibility of Assange's prosecution. There is a question: Was Assange actually IN the "jurisdiction of the American Federal Court system while he allegedly committed the acts claimed against him? After all, if we assume that American Federal law is to be applied extraterritorially in this case, then it must be that Assange was "in the jurisdiction" of the Federal Court system despite the fact that he was physically present within the U.K. during that time. And in that case, Assange must continue to be considered to be "in the jurisdiction" of the U.S. Federal Court system during the 5 years after the events alleged in the Indictment occurred, for the purposes of tolling the limitations period. Thus, there is no tolling of the limitations clock, which must have run out in about 2015, and certainly long before today, in 2020. To assert otherwise, the American prosecutors must take the mutually-inconsistent positions that: 1. Assange was 'within the jurisdiction of American Federal criminal law' at the time the alleged crimes were committed. YET 2. Assange was 'NOT within the jurisdiction of American Federal criminal law' at the times subsequent to the time the alleged crimes were committed. I have previously pointed out the following material, which asserts that it is well-established by authority as high as the United States Supreme Court: "In Morrison v. National Australia Bank, 2010, the Supreme Court held that in interpreting a statute, the "presumption against extraterritoriality" is absolute unless the text of the statute explicitly says otherwise." "https://www.skadden.com/insights/publications/2016/06/us-supreme-court-continues-to-limit-extraterritori Even while in the Ecuadorian embassy building, Assange would have been as much 'within the jurisdiction of the United States Federal court system' there, as he presumably was while he was within the United Kingdom. Jim Bell ======================================================== The following is material I posted to the Cypherpunks list last year: On Sunday, May 5, 2019, 10:22:02 AM PDT, jim bell <[email protected]> wrote: This essay, found by doing a google search for ' "assange" "extradition" "extraterritoriality" ' http://www5.austlii.edu.au/au/journals/MelbJIL/2012/5.html (From 2012) [partial quote follows] "In a speech at Princeton University, Justice Michael Kirby discussed judicial reluctance to enforce assertions of extraterritorial jurisdiction[1] and in so doing, observed that: ‘the natural question is asked: Why my court? Why not theirs?’[2]The question points to the crossroads at which international law and domestic law meet: extraterritoriality. Assertions of extraterritorial jurisdiction are becoming increasingly frequent in the 21st century. Many states claim authority to project law beyond their own territorial borders[3] and, as Alejandro Chehtman observes: ‘extraterritoriality is deeply entrenched in the modern practice of legal punishment’.[4] The extent to which states can assert extraterritorial criminal jurisdiction is a pivotal issue, which sits at the ‘very heart of public international law’.[5]" End of partial quote Note: I haven't attempted to send a copy of the material I wrote, below, to Julian Assange or any attorney representing him. If any of you are in closer contact than I, I request that this material be sent to them. Jim Bell On Monday, April 29, 2019, 5:30:53 PM PDT, jim bell <[email protected]> wrote: From: https://www.justice.gov/opa/press-release/file/1153486/download 15(B) to intentionally access a computer, without authorization and exceeding authorized access, to obtain information from a department and agency of the United States in furtherance of a criminal act in violation of the laws of the United States, that is, a violation of Title 18, United States Code, Sections 641, 793(c), and 793(e). (In violation of Title 18, United States Code, Sections 371, 1030(a)(l), 1030(a)(2), 1030(c)(2)(B)(ii).) [end of partial quote] There is a principle of American law, upheld by the Supreme Court, that a Federal law is only supposed to be considered of "extraterritorial" application (applies outside the boundaries of United States territory) if the Congress specifically intended that application, and was signified by including such language within the law itself.https://en.wikipedia.org/wiki/Extraterritorial_jurisdiction × "In Morrison v. National Australia Bank, 2010, the Supreme Court held that in interpreting a statute, the "presumption against extraterritoriality" is absolute unless the text of the statute explicitly says otherwise." "US Supreme Court Continues to Limit Extraterritorial Application of US Laws | Insights | Skadden, Arps, Slate, Meagher & Flom LLP | | | | US Supreme Court Continues to Limit Extraterritorial Application of US L... With 22 offices, more than 1,700 attorneys and 50-plus practice areas, Skadden advises businesses, financial ins... | | | http://www.virginialawreview.org/volumes/content/rjr-nabisco-and-runaway-canon >From that: "The Supreme Court threw out the lawsuit after invoking the presumption against extraterritoriality. That canon of statutory interpretation instructs judges to assume “that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States.”[8] In applying the presumption in RJR Nabisco, however, a majority of four Justices[9] rejected multiple indications that Congress intended RICO’s private right of action to extend abroad[10] while raising the bar on what Congress must do to make its extraterritorial expectations clear.[11]" [end of quote] Understanding the presumption against extraterritoriality: https://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1170&context=bjil Very interesting: https://www.thefacultylounge.org/2019/04/some-thoughts-on-the-extradition-of-julian-assange.html >From that:"THE RULE OF DUAL CRIMINALITY: Even if extradition is sought only >under the computer intrusion indictment, it will still need to meet the test >of dual criminality, found in Article 2, which provides that "An offense shall >be an extraditable offense if the conduct on which the offense is based is >punishable under the laws in both States." Although computer hacking is no >doubt also a crime in the U.K., there is a further wrinkle of territoriality, >because Assange's alleged offense was committed outside the United States. >Another section of Article 2 provides:If the offense has been committed >outside the territory of the Requesting State, extradition shall be granted in >accordance with the provisions of the Treaty if the laws in the Requested >State provide for the punishment of such conduct committed outside its >territory in similar circumstances. If the laws in the Requested State do not >provide for the punishment of such conduct committed outside of its territory >in similar circumstances, the executive authority of the Requested State, in >its discretion, may grant extradition provided that all other requirements of >this Treaty are met." Unlike the U.S., however, Britain apparently takes a strict view of territorial jurisdiction. According to The New York Times, Britain has already denied a U.S. extradition request for computer intrusion, on the grounds that the offense was committed on British soil and would therefore have to be tried in the U.K. [end of quote] 18 U.S.C. 641 does not appear to explicitly have an extraterritoriality reference. https://www.law.cornell.edu/uscode/text/18/641 18 U.S.C. 793(c), nor the whole 793, does not appear to explicitly have an extraterritoriality reference. https://www.law.cornell.edu/uscode/text/18/793 × 18 U.S.C. 371 does not appear to explicitly have an extraterritoriality reference. https://www.law.cornell.edu/uscode/text/18/371 18 U.S.C. 1030 does not appear to explicitly have an extraterritoriality reference. 18 U.S. Code § 1030 - Fraud and related activity in connection with computers | | | | | | | | | | | 18 U.S. Code § 1030 - Fraud and related activity in connection with com... | | | | | | | | | | | | | | 18 U.S. Code § 1030 - Fraud and related activity in connection with com... | | | Jim Bell [end of long quote]
