Declaration of AbandonmentAustralia’s position towards Assange
All 16 requests for assistance are refused in full
The table below contains the letter from Julian Assange’s solicitor, human rights lawyer Gareth Peirce from Birnberg Peirce and Partners, and Ken Pascoe, the Consul-General of the Australian High Commission in London. Australia refuses to make representations on Mr. Assange’s behalf in any manner whatsoever.
The letter outlines the requests that Mr. Assange makes for representations by his government regarding due process and fair trial, and the Australian government’s position: an effective declaration of abandonment. Not only does Australia fail to make representations that are perfectly appropriate and customary - they explicitly refuse to do so.
Note that the Australian government took almost two months to respond to Ms. Peirce’s letter, despite her insistence that the matter was urgent, and that Mr. Assange’s due process rights were being violated, and are being violated, in the absence of the Australian government’s representations.
|Request from Assange||Response from Australian Government|
Date: 29 May 2012
From: Gareth Peirce [of Birnberg, Peirce & Associates, representing Julian Assange in London]
To: Ken Pascoe [@dfat.gov.au - Consular-General, Australian High Commision, London]
Dear Mr Pascoe
SUBJECT: Julian Assange
Thank you for your email of 25 May.
Mr Assange has indeed, a number of concerns which I relay to you. Through you perhaps, they might be relayed to the appropriate ministers in Australia. We feel sure that they would wish to be aware of those concerns that are of the highest importance.
A number relate to the need for urgent contact between the Australian government and the Swedish government, between the Australian government and the US government, and between the Australian government and the UK government.
We understand from Jennifer Robinson that at a recent meeting with the Attorney General in Melbourne, in April 2012, a number of these issues were discussed. (We send this email in parallel, therefore, to the Attorney General’s Department).
Date: 19 July 2012
From: Ken Pascoe [@dfat.gov.au - Consular-General, Australian High Commision, London]
To: Gareth Peirce [of Birnberg, Peirce & Partners, representing Julian Assange in London]
Dear Ms Peirce,
Thank you for your letter of 29 May conveying concerns from your client, Mr Assange. As requested, your letter has been brought to the attention of the Minister for Foreign Affairs and the Attorney-General. I have consulted with senior officials from DFAT and the Attorney-General’s Department in Canberra in preparing the following response.
I note that there have been significant developments since your letter which bear upon a number of the issues you raise. These include the dismissal of Mr Assange’s appeal by the UK Supreme Court, his application for political asylum to the government of Ecuador and the allegation that he has breached his UK bail conditions. I understand that the Government of Ecuador is still considering Mr Assange’s asylum request and is consulting with the Government of the United Kingdom on the matter.
In circumstances such as these, the Australian Government’s role is primarily a consular one. This is a role that we take very seriously and I would like to reiterate the Australian Government’s ongoing offer to provide consular services to Mr Assange. The scope of the consular services we offer is outlined in the Department of Foreign Affairs and Trade’s Consular Services Charter, which can be found at http://www.smartraveller.gov.au/ser.... Our consular services in cases where Australians are facing legal proceedings overseas broadly comprise assistance to their welfare and efforts to ensure they receive legal due process. The Australian Government has provided strong consular support to Mr Assange throughout his extradition proceedings in the United Kingdom and this consular support remains available to him.
Many of the points in your letter propose efforts to seek assurances from other governments as to how they might handle legal proceedings against Mr Assange within their own legal jurisdictions. As the Consular Services Charter makes clear, the Australian Government can neither represent Australian citizens in legal proceedings in foreign jurisdictions nor intervene in those proceedings on their behalf. The Australian Government feels it would be inappropriate to make representations to foreign governments whilst legal proceedings are in train in their jurisdictions as long as due process is being followed.
As Mr Patrick Suckling indicated to you in his letter dated 5 December 2011, we have sought and received assurances from the Swedish authorities that Mr Assange will be accorded due process if he is extradited there. We have also made clear to US authorities the importance Australia attaches to its consular role in Mr Assange’s case. At this stage, the US has not advised the Australian Government of any charges against Mr Assange. Indeed, US officials have publicly affirmed on several occasions that no indictment has been issued against Mr Assange and that there would have been no impediment to seeking his extradition from the UK, as opposed to Sweden, had that been the intention of the US authorities.
Allow me to address the specific points you raise in your letter:
|Mr Assange asks the Australian government to seek the following undertakings from Sweden:
(a)To seek an undertaking concerning extradition to the USA. It is Mr Assange’s understanding as a result of Ms Robinson’s recent meeting with the Attorney General, that the Australian government’s position is it would prefer any extradition to happen from Australia than from a foreign jurisdiction. This being the case, it would of course be appropriate for the Australian government to be seeking relevant assurances and undertakings through diplomatic channels to ensure that possibility occurs should Mr Assange be extradited from the UK to Sweden.
|a) As extradition is a matter of bilateral law enforcement cooperation, the Australian Government would not expect to be party to any extradition discussion between the United States and Sweden or between the United States and the United Kingdom. The decision by a foreign state to make, or grant, an extradition request is a sovereign act done in accordance with that state’s domestic laws and procedures, and in light of relevant treaty obligations that it has assumed. This point has been clarified in correspondence between Attorney-General Roxon and Ms Jennifer Robinson. Consistent with its own position, the Government would expect Sweden and the UK to oppose the extradition of any individual for a death-penalty offence unless there were formal assurances from the country seeking extradition that the death penalty would not be carried out. We would also note that, in the event that the United States requests Mr Assange’s extradition from Sweden, the request would need to be considered by both the Swedish and United Kingdom Governments, and that any decision to surrender Mr Assange to the United States could be appealed in the courts of both countries as well as the European Court of Human rights.|
|The response is a complete refusal to make any representations on Mr. Assange’s behalf. States, including Australia, are always free to make representations on the behalf of their citizens. In other documented cases Australia has made such representations. In U.S. death penalty cases, European states often ask for diplomatic guarantees from the United States that the death penalty be exchanged for life imprisonment. That Bradley Manning has been charged with a capital offence which may be extended to Mr. Assange would not, in practice, prevent his extradition from Europe as the U.S. could be expected to offer such a guarantee. Similarly even if the U.S. afforded Sweden or the U.K. such a guarantee, the repeated calls for Mr. Assange’s assassination by senior U.S. figures would mean that he would have to spend many years in solitary confinement in order to reduce the risk of coming to harm within the U.S. prison system. Mr. Assange was placed in solitary confinement, even in the U.K., inorder to reduce such risks. It is correct to say that under some, but not all, circumstances, the United Kingdom is meant to tell Sweden whether it will accept the onward transfer of a previously extradited person. However, there is no sign that the United Kingdom would not agree to an onwards extradition. On the contrary, the United Kingdom has refused to provide such a guarantee. The person who would make such a decision, U.K. Home Secretary Theresa May (who campaigns to scrap the U.K. Human Rights Act) has authorized extraditions of U.K. citizens Gary McKinnon and Richard O’Dwyer. Both men are causes celebres with overwhelming popular, media, and parliamentary support. In the case of Mr. Assange, the Home Secretary would simply state that it is a "matter for Sweden and the United States" and that the U.K. "will not interfere" - exactly as Australia has done in its response here. Mr. Assange’s ability to campaign against the Home Secretary, should he be detained in Sweden, would be marginal. Since Mr. Assange is not a U.K. citizen minimal domestic pressure would be placed on the Home Secretary - certainly much less than in the McKinnon and O’Dwyer cases. There is every indication that the Home Secretary would facilitate, not stop, Mr. Assange’s extradition to the United States. The European Court of Human Rights cannot be expected to be of assistance. In relation to the risks and inhumane conditions present in the U.S. SuperMAX/SAMS facilities Mr. Assange would be immediately incarcerated in, this year the ECHR permitted the extradition of six persons from the U.K. to the United States facing just such conditions. While Sweden is not meant to permit extradition for ’political offences’, it has previously violated these rules in relation to the United States. In any event, the Department of Justice investigation against Mr. Assange and WikiLeaks is investigating multiple offense types, according to grand jury witness subpeonas. To illustrate this point, note that all alleged acts of ’terrorism’ are politically inspired offenses, by definition, but European states continue to extradite such defendants to the United States either under ’terrorism’ offenses or under ’non-political’ offenses such as arson or murder. Similarly, Mr. Assange may be extradited either under a more ’political’ offense such as ’espionage’ or under a range of ’non-political’ offenses such as conspiracy, computer crimes or conversion.|
|(b) To enquire of Sweden if it has not already, why Sweden has not made use of customary mutual assistance provisions to interrogate Julian Assange from London or equivalent methods. We understand from Miss Robinson that the Attorney General considered it "odd" that Mr. Assange had been held without charge for 18 months and that she found it difficult to understand how this could accord with principles ofjustice. (It may be that the Australian government has already raised this issue with Sweden, but if so, Mr. Assange is not aware of such a request).||b) Consistent with our position that Australia cannot intervene in legal proceedings in foreign jurisdictions, it would not be appropriate for the Australian Government to seek advice from Sweden about whether it can seek or has sought to make use of mutual legal assistance arrangements with the UK in relation to Mr Assange’s matter. Neither the United Kingdom nor Sweden is obliged to advise Australia whether a mutual assistance request can be or has been made; indeed, those countries may be precluded from so informing Australia (as Australia would be if a third country sought such advice from us).|
|This is a complete refusal to protect the rights of Mr. Assange in any manner whatsoever. Mr. Assange’s lawyer is not asking for intervention in a judicial proceeding. Mutual Legal Assistance is a standard E.U. mechanism that is used when one state’s executive wants to interview a person, or collect evidence, in another European state. The request asks the Australian executive to raise a question to the Swedish executive as to why it has not followed "due process" and used the MLA - a reasonable and proportionate instrument. So far the Swedish executive has refused to explain why it cannot interview Mr. Assange in London, as it does in cases concerning serious crimes such as murder; for example a Swedish prosecutor travelled to Serbia earlier this year to interrogate a murder suspect, alleged to have committed murder in Sweden. There are no known constraints on Sweden answering the Australian government, and in its response, the Australian government does not reveal any constraints either - rather the Australian government engages in sophistry to avoid putting an obvious, reasonable and harmless question to Sweden that might help resolve a situation that has kept one of its citizens detained without charge for nearly two years. Why?|
|(c) To ask that Mr Assange be allowed to remain under similar conditions to those he has been in the UK (curfew), pending the resolution of his case if he is extradited. (He understands from his lawyers in Sweden that prosecutors there have refused to negotiate any alternative to custody, despite the fact that Mr Assange has complied with his bail conditions in England for nearly 18 months).||c) The conditions to which Mr Assange would be subject in Sweden in the event of his extradition are a matter of judicial discretion for Sweden, and it would be inappropriate for the Australian Government to seek assurances from the Swedish authorities that those conditions be similar to Mr Assange’s former conditions in the UK. Our embassy in Stockholm has advised that the courts in Sweden consider arguments from defence legal counsel about whether a person under investigation should be detained or released into the community. In this context, the Swedish courts may reasonably be expected to consider compliance with bail conditions set by other courts. As you would be aware, a public statement by the Swedish Prosecution Authority on 14 June indicated that Mr Assange would be detained ’because of the danger of flight’.|
|This is a complete refusal to protect the rights of Mr. Assange in any manner whatsoever. Diplomatic cables show the Australian government engaging in just such requests in relation to other Australian citizens imprisoned abroad. The request is related to the Swedish executive - i.e what the executive will ask the judiciary for - house arrest or jail. It is not a request to interfere with any judicial decision. To deliberately conflate these two branches of government is sophistry.|
|(d) To obtain undertakings concerning prison detention, for however short a period, including undertakings re access to visitors, computer etc.||d) The statement by the Swedish Prosecution Authority referred to in (c) above also noted that Mr Assange would have the opportunity to have contact with people from outside the detention facility in accordance with prison regulations and would not have any restrictions limiting his right, for example, to watch TV, read newspapers or socialise with other detainees.|
|This is a complete refusal to protect the rights of Mr. Assange in any manner whatsoever. There is no engagement with the question as to whether Mr. Assange would be able to have a computer to prepare his case. The statement by the Swedish Prosecution Authority does not mean that Mr. Assange would have no limitations. Rather, the statemment has a technical meaning within Swedish law as to whether the prosecutor or the prison would create these limitations.|
|(e) To seek an undertaking in relation to serving any potential sentence in Australia under normal prisoner treaty transfer arrangements.||e) Given that Mr Assange has not been convicted of any offence in Sweden, any request concerning the possibility of serving a sentence in Australia would be premature. If he were convicted in Sweden and sentenced to a term of imprisonment, Mr Assange could apply for an international prisoner transfer to Australia. His application would be considered on its merits and in accordance with the relevant legislation. Applications for transfer to Australia require the consent of the Australian Government, the government of the foreign country, the prisoner and the State or territory to which the prisoner wishes to transfer.|
|This is a complete refusal to protect the rights of Mr. Assange in any manner whatsoever. Although it is normal for states to negotiate prison conditions and sentence transfer arrangements prior to extradition, this is refused. By default Australian citizen prisoners are not elegible for sentence transfer to Australian until all appeals, both for conviction and sentence, have been exhausted and at least six months of the sentence remains. This would leave Mr. Assange dangerously vulnerable to the Swedish-U.S. bilateral "temporary surrender" extradition arrangement which permits the transfer Mr. Assange to the United States before or after a possible trial in Sweden, in particular, before the completion of any sentence.|
|(f) That the Australian government raises a complaint with the Swedish government as to continual adverse public comments from the most senior members of Swedish political and executive, including the Prime Minister, the Minister for Justice and the Foreign Minister, such as to potentially interfere with any chance of a fair trial of Mr Assange, such comments having implications not only for Sweden but thereafter in the USA were there to be an attempt by the US to place Mr Assange on trial there.||f) In relation to the proposal that Australia seek a retraction of public comments by Swedish government figures out of concern that those comments would prejudice Mr Assange’s chance of a fair trial, this may be a matter for Mr Assange’s legal team to consider raising in court should Mr Assange be charged.|
|This is a complete refusal to protect the rights of Mr. Assange in any manner whatsoever. The Swedish Prime Minister, Foreign Minister and Minister for Justice have repeatedly, publicly, attacked Mr. Assange within the context of multiple legal proceedings, although it is forbidden in Sweden for persons holding executive office to do so.|
|(g) That given the uncertain political relationships of intermediate countries Mr. Assange may have to travel through to return to Australia, that the Australian government provide safe passage to Australia for Mr Assange should he be in a position to leave Sweden.||g) Should Mr Assange be released, he would be free to travel as he chooses, including to Australia. If there is no outstanding international warrant for his arrest, there is no reason to believe he would be detained in transit in a third country. The Australian Government is not in a position to guarantee safe passage for Mr Assange overseas.|
|This is a complete refusal to protect the rights of Mr. Assange in any manner whatsoever. The request is not engaged with. It is clearly predicated on future or current possibility of there being such a warrant. It should be noted that under the U.S. criminal code it is an offence for a U.S. government official to reveal the existence of a sealed indictment, to any person, except for the purposes of arresting the indicted person, until such time as the indicted person is in custody.|
|Mr Assange asks that Australia seek the following undertakings from the USA:
(a) That the US will not prosecute Mr Assange. It appears to be common diplomatic practice - in particular the US government often seeks an assurance from foreign states not to prosecute its citizens and agents. Ms Robinson understood from the Attorney General that such an assurance can indeed be sought from the US government, and it is entirely appropriate in this case for Australia to do so; the case involves an Australian citizen in relation to matters which engage the First Amendment and free speech protections; it is recognised as being a case of the utmost importance, and one that could set disturbing precedents for the freedom of speech.
|a) It would not be appropriate for the Australian Government to interfere in the legal processes of the United States or any other government by seeking undertakings not to prosecute. The Attorney-General did not suggest to Ms Robinson that Australia would seek assurance from the United States in Mr Assange’s case.|
|This is a complete refusal to protect the rights of Mr. Assange in any manner whatsoever. The appropriateness of the action is explained in the request. In its reply, the Australian government clearly abandons Mr. Assange to the legal processes of the United States, which have already been found by the United Nations to have violated the the United Nations Convention Against Torture in this very matter (in relation to attempts to make Bradley Manning implicate Mr. Assange). The Australian government does not confirm or deny the fact that Ms. Peirce put forth, that the Australian government could seek assurances. It merely says that they will not seek such assurances on behalf of Mr. Assange.|
|(b) An undertaking from the US that Mr Assange if extradited, be granted bail pending the resolution of his case for the same reasons as above in relation to Sweden; he has complied with bail conditions in England for nearly 18 months which should serve to demonstrate that he is not a flight risk. (The United Kingdom sought a similar assurance for the National Westminster Bank defendants of the United States which was granted).||b) In the event Mr Assange were to stand trial for any offence in the United States, the Australian Government would not seek to curtail the discretion of the United States judiciary in relation to a matter such as bail.|
|This is a complete refusal to protect the rights of Mr. Assange in any manner whatsoever. Once again DFAT fasely equates a request made to the executive, the U.S. Department of Justice, which controls the prosecution, with another branch, the judicary, which makes judicial decisions. It would be unreasonable to ask the U.S. judiary to act in a certain manner, but it is normal diplomatic practice for the executive of one state to request that the executive of another state take its wishes into consideration when making executive decisions, such as a position before the courts on bail.|
|(c) To ask that in the event of extradition trial and conviction in the USA, any sentence that might be imposed, be served in Australia under normal prisoner treaty transfer arrangements. (Again such an assurance in advance of extradition can be sought).||c) As for 1. (e) above.|
|This is a complete refusal to protect the rights of Mr. Assange in any manner whatsoever.|
|(d) That an undertaking be given that he not be placed under special administrative measures if in custody for however short a time, and be permitted free confidential access to his lawyers and visitors pending trial, as well as to a computer and necessary work/case requirements.||d) These issues do not arise at present given the Australian Government has not been advised of any United States Government charges against Mr Assange. In the event that Mr Assange were to stand trial for any offence in the United States, he would be subject to the procedural fairness and due process enshrined in the United States Constitution and under United States law. As the Attorney-General noted to Ms Robinson, the Government has made clear to the United States authorities Australia’s consular interest in Mr Assange and our expectation that he should be afforded due process if any action were to be taken.|
|This is a complete refusal to protect the rights of Mr. Assange in any manner whatsoever. The Australian government is well aware of the existence of the U.S. government’s investigation into Mr. Assange, which U.S. officials told the Australian embassy in Washington was "unprecedented both in its scale and nature" (obtained under FOIA by the Sydney Morning Herald). The Australian government’s claim that the United States affords procedural fairness is shameless in light of the findings of the U.N. Special Rapporteur on Torture. The rapporteur concluded that the United States had subjected Mr. Assange’s alleged source in this matter, Bradley Manning to, treatment amounting to torture, inorder to provide a confession implicating Mr. Assange. The Australian government’s position on torture needs no further comment.|
|(e) That prejudicial statements by US officials about Mr. Assange (up to and including the Vice President) be retracted forthwith. Those statements already made seriously jeopardise any potential of a fair trial for Mr Assange.||e) As for 1. (f) above.|
|This is a complete refusal to protect the rights of Mr. Assange in any manner whatsoever.|
|(f) An undertaking that individuals associated with WikiLeaks or Mr Assange not be further targeted or harassed by FBI agents, including very recently individuals detained, interrogated and pressured to become informants by FBI officers.||f) The question of US law enforcement activity in relation to individuals who are not Australians is beyond the scope of our consular services.|
|This is a complete refusal to protect the rights of WikiLeaks’ employees or associates, and of the company itself, an Australian company, in any manner whatsoever. Is this a tacit admission that the Australian government knows the other targets of the WikiLeaks Grand Jury and DoJ probe are not Australians? Or is the Australian government unconcerned as to whether other Australians citizens are similarly threatened?|
|(a) To seek undertakings from the UK that Mr Assange would not be surrendered to the US from the UK.||a) As noted above at 1. (a), the Australian Government would not expect to be party to any extradition discussion between third countries.|
|This is a complete refusal to protect the rights of Mr. Assange whatsoever. See the answer to 1. (a) for more.||(b) To seek undertakings from the UK that if Mr. Assange is surrended to any other country from the UK, the UK will gain diplomatic assurances that Mr. Assange will be returned to Australia from that country and not be surrended to any other country.||b) If Mr Assange were extradited from the UK to Sweden or to any other country, the UK’s agreement would be required as a precondition for his further extradition to another destination.|
|This is a complete refusal to protect the rights of Mr. Assange in any manner whatsoever. Australia acknowledges that, at least in some circumstances, the United Kingdom has the legal power to deny onwards extradition, but refuses to ask the U.K. to do so. Following 1. (a), the U.K. will, with overwhelming probability, facilitate onwards extradition unless significant diplomatic pressure is exerted on it not to.|
|(c) That given the uncertain relationships of intermediate countries Mr. Assange may have to travel through to return to Australia, that the UK government provide safe passage to Australia, should Mr. Assange be able to leave the United Kingdom.||c) See 1. (g) above.|
|This is a complete refusal to protect the rights of Mr. Assange in any manner whatsoever.|
|The above represent ongoing concerns on the part of Mr Assange and we would be most grateful if you would ensure that they be passed on to the MInister for Foreign Affairs in Australia, as well as to other ministers appropriate to be informed.
|The Australian Government will continue to offer and provide consular services to Mr Assange, and will continue to closely monitor his situation and advocate on his behalf to ensure that he is accorded procedural fairness and due process. I trust this is of assistance.
Australian High Commission, London