Julian Assange has continually professed a fear of ultimate extradition to the US as his main reason for refusing to go to Sweden to assist investigators with their inquiries into two s-xual assaults of which he stands accused. To hear Assange tell it, he is afraid of being extradited from Sweden to be tried for “political crimes in the United States of America, a country where the death penalty for such offences is still in force”. As a self-confessed hacker and founder of WikiLeaks, an organisation that receives stolen and leaked classified and confidential information, Assange may know something that we do not.

On the basis of the public record, however, it seems the extradition fears of Assange are greatly overstated. The US has not publicly charged him with any crime, political or otherwise, and nothing on the public record substantiates Assange’s claim that the US will request his extradition from Sweden to stand trial for a political crime.

Nothing on the public record even shows an official US indication that such a request is contemplated. It is legally possible that a sealed indictment accusing Assange of criminal activity has been issued.  An email hacked from a private consultant supports this view, but Assange is reported to have recently “admit[ted] there is no US indictment against him”. In reality, though, until a real sealed indictment is opened (or leaked or hacked), we just do not know.

The fears expressed by Assange seem to stem in large part from ignorance of US criminal procedure. Assange has complained bitterly that he is being investigated by a “secret grand jury” and (at least formerly) that a “sealed indictment” has been issued charging him with a crime(s). The strong implication is that the grand jury investigation and any sealed indictment are somehow illegal or inherently unfair. When one understands the process, however, it is clear that it is similar to charging procedures used in all Western liberal democracies.

The grand jury is a product of early English law and originally served to investigate crimes. In time, it also developed as a shield against the arbitrary initiation of prosecution by the Crown. One particular 17th-century English grand jury’s refusal to indict the Earl of Shaftesbury for treason led to the institution being celebrated as a “bulwark against the oppression and despotism of the Crown”. The grand jury was received from England as part of the criminal justice process in the American colonies. It emerged from the American Revolution with increased prestige, because grand juries regularly refused to indict persons opposed to royal power.

The Fifth Amendment to the US Constitution preserves the right of individuals to be charged for serious offences by “indictment of a grand jury”. However, the right to grand jury indictment can be waived and a person can be charged with a crime on the basis of a police investigation and simple “information”, which is a charging instrument issued by the prosecutor instead of the grand jury.

An individual charged by indictment or information must have a reasonably prompt judicial hearing to determine if there is probable cause to detain an individual who is arrested. These US methods of charging are, of course, essentially what takes place in Australia for serious crime: a non-public investigation, an indictment signed by the Director of Public Prosecutions, a committal hearing to determine reasonable prospects of conviction, and a trial.

It is true today that the independence of the grand jury has been eroded and it often relies on the prosecutor for investigative direction. It is true that the process can be and has been subject to prosecutorial abuse, but these problems are not limited to the grand jury. The same prosecutorial control and potential for abuse is true of any ordinary police investigation outside the grand jury in the US or anywhere else.

Assange complains about secrecy, but any ordinary police investigation is as closed to the public as the grand jury process. The objectives of secrecy in both sorts of investigations are entirely reasonable and include the prevention of a suspect’s escape, the protection of the reputations before charges are laid, and full disclosure by witnesses.

In addition, a grand jury indictment may be sealed, that is, closed to the public and kept secret. The principal purpose of sealing is to ensure that the defendant does not learn of the charges and flee before he or she can be arrested. Of course, a prosecutor can abuse his or her authority to seal, but there is nothing inherently unfair in a sealed indictment.

Assange has expressed specific fear of extradition for a political crime against the US. Even assuming he will be charged with some political crime, Assange has little to fear about extradition from Sweden to stand trial on this account. An exception to extradition by one state for political crimes against another state is well established in international law. Perhaps ironically, the exception arose in the American colonies in the 17th century because, as a nation of asylum, America regularly refused to return European political offenders to their oppressors.Eventually, the political offence exception found its way into the majority of extradition treaties. The extradition treaty between the US and Sweden is no different. The 1961 Convention on Extradition between the United States of America and Sweden provides that “[e]xtradition shall not be granted … [i]f the offence is regarded [by Sweden] as a political offence or as an offence connected with a political offence”.

All of this is not to say that Assange should not be worried, only that he has no real cause to fear about being extradited from Sweden to the US to stand trial for political offences. A number of other matters should be of concern to Assange; three bear mention here.

First, it is possible Assange might be indicted for non-political crimes in the US, which are also crimes in Sweden, such as receiving stolen goods or conspiring to receive stolen goods. In such a case, Assange’s complaints about political persecution would have no relevance or bearing, and it would be entirely reasonable for Sweden to extradite Assange to answer the charge.

Second, and much more unreasonably, one alternative to extradition open to Sweden would be simply to expel Assange either after he is cleared of the charges he faces or, if convicted, after he serves his time. As a non-citizen, Assange has no right to remain in Sweden, and Sweden, in expelling Assange, has discretion to deport Assange to a specific destination, including the US.

Third, the US Supreme Court has held that US courts have jurisdiction to try individuals kidnapped from the territory of another state. This is true even where an extradition treaty exists between the US and the country from which the individual is kidnapped. According to the US Supreme Court, the kidnapping would only be illegal under US law (and thus prohibit a prosecution in the US) if the extradition treaty explicitly prohibited kidnapping. Nothing in the 1961 extradition treaty between Sweden and the US (or its 1983 supplement) prohibits kidnapping because international law itself prohibits it.

It is these matters, not a grand jury investigation or hypothetical indictment, that should be keeping Assange awake at nights.

*Donald K. Anton teaches, researches and advises in core areas of international law and is admitted to practise law in Australia and the US.  He has an active international and US appellate practice and recently appeared as counsel and amicus curiae (friend of the Court) in the Supreme Court of the United States to support the human rights claims of the Ogoni people of Nigeria against Royal Dutch Petroleum.