This document provides the facts about Julian Assange's
situation. Mainstream reportage on Assange's case is of a
poor quality, with the result that many members of the
public are misinformed on the most basic facts about his
legal and factual situation. This document aims to remedy
this situation.
This document provides comprehensively cited information
about why Julian Assange has been given asylum by Ecuador,
and about the sequence of events leading up to that point.
The document also considers the most
frequent false or misleading claims made in the media
and demonstrates how they are incorrect. Reference is made
to all of the necessary documentary evidence and each
quotation links to the original source, so that readers can
follow up and ascertain for themselves the truth of the
matter.
EAW
The European Arrest Warrant
The paper form, a few pages long, that the Swedish
prosecutor filled out to seek Julian Assange's
extradition.
AA
The older woman, 31, in the Swedish case; a politician in
the Social Democratic Party
SW
The younger woman, 26, in the Swedish case.
DFAT
Australian Department of Foreign Affairs
and Trade
[T]he Government of Ecuador believes that these arguments lend support to the fears of Julian Assange, and it believes that he may become a victim of political persecution, as a result of his dedicated defence of freedom of expression and freedom of press as well as his repudiation of the abuses of power in certain countries, and that these facts suggest that Mr. Assange could at any moment find himself in a situation likely to endanger life, safety or personal integrity.
(US operations against WikiLeaks in Iceland did not stop in 2010. It recently emerged in 2013 that eight FBI agents secretly entered Iceland in 2011 to interrogate an alleged associate of WikiLeaks. When discovered by the Icelandic Minister of the Interior, they were asked to leave. They stayed against his wishes, continued their operation, and then took an alleged WikiLeaks associate with them back to the United States.)From the WIKILEAKS TWEET ARCHIVE
March 2010
WikiLeaks to reveal Pentagon murder-coverup at US National Press Club, Apr 5, 9am; contact press-club@sunshinepress.org
Two under State Dep diplomatic cover followed our editor from Iceland to http://skup.no on Thursday.
We know our possession of the decrypted airstrike video is now being discussed at the highest levels of US command.
Iceland summons top US diplomat over WikiLeaks dust-up | AFP http://bit.ly/ddOmTK
Although outsiders have not been allowed to inspect the “war room” in suburban Virginia and see its staff at work, national-security officials offered details of the operation to The Daily Beast, including the identity of the counterintelligence expert who has been put in charge: Brig. General Robert A. Carr of the Defense Intelligence Agency.In early August in a press conference convened specifically to address the Afghan War Logs, Pentagon spokesman Geoff Morrell demanded the "return" of the released documents, and demanded that WikiLeaks discontinue "soliciting" leaks. He added:
Officials say Carr, handpicked for the assignment by Defense Secretary Robert Gates, is highly respected among his colleagues at DIA, the Pentagon’s equivalent of the CIA, and a fitting adversary to Assange, the nomadic Australian-born computer hacker who founded WikiLeaks and is now believed to be in Sweden.
“I wouldn’t want to go up against General Carr,” a Pentagon official said. “Very smart guy.” Carr served in Afghanistan for much of last year before his transfer to the DIA in Washington, where he runs the Defense Counterintelligence and Human Intelligence Center. In his battle against Assange, officials say, Carr’s central assignment is to try to determine exactly what classified information might have been leaked to WikiLeaks, and then to predict whether its disclosure could endanger American troops in the battlefield, as well as what larger risk it might pose to American foreign policy.
The team has another distinct responsibility: to gather evidence about the workings of WikiLeaks that might someday be used by the Justice Department to prosecute Assange and others on espionage charges.
If doing the right thing is not good enough for them then we will figure out what alternatives we have to compel them to do the right thing.WikiLeaks had launched the Afghan War Logs in England. But there were signs that England was not safe.
The seriously-ill British mother of the young American military intelligence officer at the centre of the investigation into leaks of classified Afghan war documents was left ‘severely distressed’ after FBI agents turned up unannounced at her home in Wales.This is the immediate context for Assange's journey to Sweden on the 11th of August. He also resolved to use the opportunity to pre-empt similar raids on WikiLeaks equipment in Sweden by filing the paperwork necessary to activate an additional Swedish source protection law.
Susan Manning, whose son Bradley has been charged with leaking defence secrets that appeared on the controversial WikiLeaks website, was questioned by two FBI officers believed to be attached to the US embassy in London.
You asked how I came to know [AA] [Political Secretary and Press Officer of the Brotherhood Movement]. In order to come here to Sweden it was necessary for me to obtain diplomatic support in order to get out of England. On account of the security situation between my organization and the Pentagon. Political contacts in Sweden therefore suggested that I should be invited by the Christian Social Democrats to give a talk, and a formal invitation was to be sent to (inaudible) and England, so that I should have a safe journey here. From England. And I understood that [AA] was Press Officer of the Brotherhood Movement within the Christian Social Democrats.From an interview with an Australian broadcaster in June 2012:
I only visited Sweden because the FBI came to the UK and raided one of my alleged source's mother's house, Bradley Manning, in Wales. So the FBI was here in the UK, stomping around the UK, and we thought I'd better get out. And I managed to get some people to write an invite to a talk on the first casualty of... Sorry, the first casualty of the war is the truth, in Sweden, and use that invite as sort-of a safe passage to get out through UK customs to Sweden.When he arrived in Sweden the United States government had publicly stated it believed WikiLeaks was in possession of over 251,000 U.S. diplomatic cables. These were later to be released as "Cablegate." Assange was warned on 11 August 2010 of an assessment by an Australian intelligence source that extralegal actions might be taken against him by the United States or its allies. On the same day, his Australian bank card was canceled - an action which was the first stroke in a campaign of economic sanctions against WikiLeaks carried out extrajudicially by banking institutions. Assange's Unauthorized Autobiography, which has not been approved by Assange, but is nonetheless illuminating, recounts the following events:
[J]ust at the point of arrival I received some news from one of our contacts in a Western intelligence agency, confirming what had already been hinted at by the Pentagon press office. The word was that the US government acknowledged privately that I would be difficult to prosecute but were already talking about 'dealing with you illegally,' as my source put it. The source specified what that would mean: gaining evidence about what we had in the way of information; unearthing, by whatever means, some sort of link between Private Manning and WikiLeaks; and if all else failed, deploying other illegal means, such as planting drugs on me, 'finding' child pornography on my hardware, or seeking to embroil me in allegations of immoral conduct.Shortly after his arrival, the media reported that the Swedish military had taken a national security interest in WikiLeaks' pending publications. On the 18th of August, state broadcaster SvT was stoking panic over WikiLeaks' decision to host servers with the Pirate Party in Sweden, on the basis that it would jeopardize US-Swedish relations. And the Swedish intelligence agency MUST told the press that WikiLeaks was a threat to Sweden's soldiers in Afghanistan.
The message was that I would not be threatened physically. I told Frank Rieger, a supporter in Berlin who is the chief technology officer at CryptoPhone, a company that makes telephones for encrypted secure communication, and he said he would prepare a press release making this information public. He then did so, and I had it with me on a laptop ready to edit it. The intention was to get it out as soon as possible, as it did no good to put these things out after some damage had been done, or material had been planted. It remains one of my regrets that I didn't turn to it immediately. The same day, my Australian bank card suddenly stopped working.
The Unauthorized Autobiography, p.228
4. During his visit he had sexual intercourse with two women [AA and SW]. After AA and SW spoke to each other and realised that they had both had intercourse with the Appellant during the currency of his visit in circumstances where respectively they had or might have been or become unprotected against disease or pregnancy, SW wanted the Appellant to get tested for disease. On 20th August 2010 SW went to the police to seek advice. AA accompanied her for support. The police treated their visit as the filing of formal reports for rape of SW and molestation of AA.An arrest warrant was issued prematurely, during the visit of SW, and without her knowledge. Before her she was finished talking to the police, she became aware of the fact that her visit was being treated as the basis for a rape investigation. She immediately became distraught about this, and stopped cooperating with the police.
The fact that neither complainant went to the police to report crimes is attested among the witnesses, one of whom is a close friend of SW's (MT) and another of whom is her brother (JW2). In particular, MT claims that SW felt as if she had been railroaded against her will into making a complaint against Julian Assange, "by the police and others around her."COMPLAINANT REPORT OF [SW]During the course of the interrogation I and [SW] were informed that Julian Assange had been detained in his absence. After this information [SW] had difficulty in concentrating on the interrogation, for which reason I judged that it was best to discontinue the interrogation... The interrogation has not been read aloud or read through for approval but [SW] was informed that she has the possibility of doing this on a later occasion.
(as written by police interviewer Irmeli Krans)
WITNESS REPORT OF [JW1]Yes, I phoned her [AA] the same day, immediately after talking to Donald. But this call was very short, she was just about to go out to meet [SW] to go and consult with the police. But what emerged from this conversation was, although perhaps I misunderstood it, what came out from this conversation was that it wasn’t what Donald had said previously. It’s actually something I had forgotten, it was quite simply that Sofia wanted to force Julian to take a blood test. Not to report a rape allegation. And that’s what came out of this conversation.
WITNESS REPORT OF [MT][MT] wanted to say that when [SW] was at the hospital and went to the police it was not what [SW] wanted to do. She just wanted Julian to be tested. She felt that she had been railroaded by the police and others around her.
WITNESS REPORT OF [JW2][SW] had later said that she did not want to report Julian but just wanted him to be tested for diseases. She had gone to the police in order to get advice and the police had then made a report.
In her own police report, the second of the complainants, AA, claims that the sex with Julian Assange in respect of which two of the allegations are being pursued was "consensual." Only one of these two allegations hinges on the issue of an alleged burst condom. The other of these two allegations alleges that Julian Assange had sex with AA. In her police report AA specifically states that she consented to have sex with Assange. This rules out any criminal element.WITNESS REPORT OF [DB][AA] said that "[SW] has asked me [AA] to go to the police," - to go with her - "and I have decided to go with her and support her in this. But we do not intend to report Julian, we will just go there and explain".
[AA] states that she had consented to have sex with Assange, but that she would not have done so if she had known that he was not wearing a condom. [AA] has contacted the health centre and been given a time for testing next week. [AA] consents to the police acquiring medical background.On the 23rd of August, at 16:40, the police released the casefile for AA's report under Freedom of Information on the Assange case. AA's name was supposed to be redacted throughout the document, and it was, throughout the body of the document. But the police failed to redact her name from the title of the document. The police are therefore the sole and effective reason that AA's privacy as an alleged victim was breached, and that her identity is known publicly.
It is completely false that we are afraid of Assange and therefore didn’t want to file a complaint. He is not violent and I do not feel threatened by him.But the original privacy blunder by the police had happened much earlier: a matter of hours after the women visited the police on the 20th of August. Within two hours of the issuance of the arrest warrant, a reporter at the tabloid Expressen had been tipped off by SMS. The duty prosecutor, Maria Kjellstrand, was called, who illegally confirmed that there was an arrest warrant out for Julian Assange. Expressen then ran the story, and Kjellstrand was quoted in it. Within a matter of hours, the news had travelled around the world, was reported by every major English-language news outlet, and had associated Julian Assange's name with the word "rape" in over 3 million Google search results.
7. A preliminary investigation was commenced and both women were interviewed (SW on 20th August, and AA on 21st August). At the conclusion of those interviews, on 21st August 2010, the case was taken over by the Chief Prosecutor of Stockholm (Eva Finne). Having assessed the evidence, she cancelled the arrest warrant against the Appellant; she having made the assessment that the evidence did not disclose any offence of rape (against SW).As a result of the closure of SW's file, only one allegation was being investigated when Julian Assange was interviewed - an allegation in connection with AA's statement. This is the only allegation that Assange was interviewed about. This was the only time he was interviewed. It has become a commonplace claim in the UK press that Assange was interviewed about all four of the allegations. This is false. Two had not yet been created; a third had been canceled. He was not questioned about them. From the "Agreed Statement of Facts and Issues":
8. The preliminary investigation continued in respect of:
i. Whether the conduct alleged by SW could constitute some lesser offence,9. On 25th (sometimes erroneously referred to as 23rd) August 2010, the Chief Prosecutor determined that:
ii. Whether the conduct alleged by AA could constitute 'molestation'.
i. The conduct alleged by SW disclosed no crime at all and that file (K246314-10) would be closed.
ii. The preliminary investigation into the conduct alleged by AA would continue (on suspicion of the offence of 'molestation' only).
10. On 30th August 2010, the Appellant, who had voluntarily remained in Sweden to cooperate with the investigation, attended for police interview in respect of the ongoing Preliminary Investigation in respect of AA's report. He answered all questions asked of him.The policewoman who interviewed SW in the presence of AA was an associate of AA's, being a party colleague in the Swedish Democrats and a personal friend. She carried out the interview with SW despite this conflict of interest, which she did not declare in her report. As reported in the Swedish press:
The interrogator [Irmeli Krans] and the woman [AA] who reported Julian Assange were in touch with one another as far back as April 2009 - 16 months before Julian Assange was reported to the police for rape, among other things... Expressen can today reveal that there really were political and personal connections between one of the women who reported [Julian Assange] and the interrogator... The interrogator and the woman who reported Julian Assange got to know one another because both are involved with the Social Democrat Party. Despite participating in the criminal investigation of Assange, the interrogator made very negative comments about the WikiLeaks’ founder on her Facebook page... In their blogs, the interrogator and the woman who reported Julian Assange have been open with their friendship... the interrogator and the woman corresponded openly with one another on the Internet 16 months before Assange came to Sweden, invited by the woman, who subsequently reported him [to the police] [...]When news emerged, on the 25th of August, that the Chief Prosecutor had canceled the allegation from SW's report, which Irmeli Krans herself had written, Krans had an outburst on Facebook, exclaiming "SKANDAAAAAAAAL."
16 months later the policewoman played an important role as interrogator in the Assange investigation, when the WikiLeaks’ founder was first sought for arrest on suspicion of rape. The policewoman realised immediately that her friend and party comrade was one of the complainants - but she made the interrogation nevertheless. She commenced the interrogation at 4.21pm without declaring a conflict of interest.
"Well Jesus Christ!!! The scandal in every newspaper and news bulletin. But our dear eminent and uniquely competent Claes Borgström will hopefully bring some order!"Politician-lawyer Claes Borgström, who was running on a platform for the Swedish Democrats to widen rape law in the September 2010 national elections, staged a highly public political intervention in the case on the 26th of August and had himself assigned as state counsel to the complainants.
11. Meanwhile, on 27th August 2010, the counsel for SW and AA appealed the Chief Prosecutor's decision to a Senior Prosecutor in Göteborg.This prosecutor, Marianne Ny, has been described by a former Swedish Court of Appeals judge, Brita Sundberg Weitman, in the following terms:
Marianne Ny, unlike other prosecutors, has made various statements [...] in which she regards the prosecution of men, even without sufficient evidence, as in the public interest ’pour decourager les autres’. She is a high profile prosecutor who is also a crusader on gender issues and the international attention that this case has received may have made her intransigent and, in my view, overly harsh and disproportionate...The day before Borgström's appeal was submitted to Ny, the 26th, Irmeli Krans submitted an altered version of SW's statement to the police system. Prejudicial language was added bringing the description of the alleged conduct closer to the scope of existing rape laws.
Note on date and time of documentIn leaked emails between Krans and her supervisor Mats Gehlin, Krans shows consternation about the existence of discrepancies in the system, with particular concern for developments in SW's case:
On Friday, 20 August 2010. I conducted an interview with complainant SW in connection with case #0201-K246314-10 at Klara Police Station. The interview commenced at 4:21 p.m. and was terminated at 6:40 p.m. The interview [protocol] was thereafter written with the word-processing program in the DurTvå computer system. The interview was to be copyedited on my next workday, Monday the 23rd of August 2010. That was not possible because I was denied access to the interview I had conducted. After an exchange of e-mails, I was directed by supervisor Mats Gehlin to instead create and sign a new interview in DurTvå, which was done on 26 August with the necessary changes. Unfortunately, the date and time of that document conforms with the time that the changes were made, as that is done automatically by the DurTvå system.
With the risk of appearing difficult I do not want to have an unsigned document with my name circulating in DurTvå [the police’s computer system] space. Particularly not now when the case has developed as it has.With an edited police report in hand, the new prosecutor, Marianne Ny ousted the Chief Prosecutor Eva Finne and established control over the Assange case, reinstating the allegation Finne had dismissed. She also created two new allegations from AA's report.
11. Meanwhile, on 27th August 2010, the counsel for SW and AA appealed the Chief Prosecutor's decision to a Senior Prosecutor in Göteborg. On 1st September 2010, that prosecutor (Marianne Ny) decided that:Asked on various occasions how an investigation could be restarted even though the complainants did not allege rape, Claes Borgström stated that neither woman is a lawyer, therefore neither woman can tell whether she was raped or not.
i. The Preliminary Investigation in respect of file K246314-10 [SW] would be resumed, under the offence of 'rape'.
ii. The preliminary investigation into K246336-10 [AA] would be expanded to include all the conduct in the complaint.
Interviewer: But [the complainant] did not at first say that she had been raped.Despite Assange's efforts to comply the prosecutor delayed the progression of the investigation.
Borgström: Yes, but she is not a lawyer.
Chief Prosecutor Marianne Ny, with special assignment of developing investigation methodology as regards sex crime cases, has stated that the case can take a long time, perhaps months. This is extraordinary considering that in March this year, in an interview with Dagens Nyheter, she emphasised the importance of dealing with sex crime cases speedily. In the Assange case this methodology clearly does not apply. “Everyone understands the consequences for a person who is subjected to such suspicions as Assange is. For a prosecutor to publicly express suspicion and then subsequently appear to neglect investigating the suspicion quickly, this must conflict with basic legal principles. [...]Julian Assange's trip from Sweden to Germany in mid September 2010 has been portrayed by certain media as a flight from justice. This is not true. The prosecutor told Assange's lawyers that he was free to leave Sweden. This is agreed by both sides in court documents.
The Assange case should make alarm bells ring. Is there an attitude about this type of case that leads to basic principles of the rule of law being set aside? Speedy investigation of this case should be easy. In all likelihood it is just a matter of interviewing the parties, inspecting e-mail conversations and similar. Perhaps a few hours’ work. Interrogations should of course be held as soon as possible because memory can be influenced and change. Especially when the interrogation transcripts are published in the evening papers. “Assange has been hung out as a suspected rapist and is damaged by it. However, that particular aspect does not appear to worry Marianne Ny.”
13. On 14th September 2010, the Appellant's counsel enquired in writing as to whether the Appellant was permitted to leave Sweden. On 15th September 2010, the prosecutor informed the Appellant's counsel that he was free to leave Sweden. She advised him that investigations were ongoing. The Appellant's counsel asked whether the interrogation could take place in the next few days but was told it could not because the investigator was ill.During Assange's departure from Arlanda airport in Sweden, his luggage was confiscated by parties unknown, and three laptops in his possession were taken, and never returned. This is attested by the Italian journalist for Espresso, Stefania Maurizi:
Assange's discussion on the phone (which happened in my presence): "They could not do this before? I have been in Sweden for six weeks. " In the journey to Berlin, Assange took four computers and his own personal baggage. The baggage and three of his computers disappeared, although his was a direct flight. Assange arrived to meet with Espresso in Berlin in the late evening (around 11 pm) without luggage, and with only one computer: a laptop which he never parts from and which travels with him on his shoulders. The episode made Assange suspicious. The three computers were never recovered. Twenty days after these events, WikiLeaks released documents on the war in Iraq (Iraq War Logs). Meanwhile, the Swedish case went on.In the time after he left Sweden, Julian Assange was overseeing the release of the Iraq War Logs, 391,832 United States Army field reports from the occupation in Iraq, which documented the deaths of 66,000 civilians, deaths which had been kept secret by the US military. He also oversaw the release of Cablegate, : 250,000 classified State Department cables from US embassies around the world. This was the largest publication of classified documents in history, giving populations all over the world an unprecedented insight into the exercise of US influence in their own countries. According to the BBC, and to Amnesty International, Cablegate's effects include helping to catalyze the Tunisian revolution and the Arab Spring.
17. The Appellant offered to return to Sweden for interview on Sunday 10th October or on any date in the week commencing 11th October 2010. The Sunday was rejected as inappropriate. The week commencing 11th October 2010 was later rejected as being too far away.The prosecutor then began proceedings to issue a European Arrest Warrant, and it was issued on the 2nd of December.
18. The Respondent believed that the Appellant was attending a lecture in Stockholm on 4th October 2010. Plans were made to detain him then but that information proved inaccurate.
19. Therefore, on 5th and 8th October 2010, the prosecutor again contacted the Appellant's counsel to discuss possible appointments for interview. The Appellant's counsel offered to speak to the Appellant about whether he would be able to attend on 14th October 2010. During the same conversation, the Appellant's counsel offered a telephone interview (telephone interviews with suspects abroad are lawful in Sweden and qualify for the purposes of the Preliminary Investigation). That offer was declined, the prosecutor insisting that the Appellant be interviewed in person in Sweden.
20. At around the same time, the prosecutor stated that, notwithstanding the extant arrest warrant, that the Appellant was 'not a wanted man' and would be able to attend an interview 'discreetly'.
23. On 12th November 2010, the Appellant's counsel invited the prosecution to propose dates for interview and offered, in the alternative, a telephone or video-link interview, or to provide a statement in writing, or to attend an interview in person at the Australian Embassy, all of which are permissible in Sweden, all of which were declined; the prosecutor insisting that the Appellant be interviewed in person in Sweden.
24. The prosecutor decided that it was inappropriate to take the same steps under the Mutual Legal Assistance treaty.
25. On 18th November 2010, the prosecutor applied to the Stockholm District Court for a detention order in absentia upon the prosecutor's assertion of reasonable suspicion of the commission of:The court case in the United Kingdom was fought first in the Magistrate's Court, and then in appeal in both the High Court and the Supreme Court. The details of that case can be found in the last part of this document, which primarily deals with the Magistrates Court and the High Court judgments. The Supreme Court judgment is not focused on, but has been stringently criticized in two articles, both lengthy and detailed, in the Cambridge Journal of International and Comparative Law.
i. In case No. K246314-10 [complainant SW]; the offence of rape.
ii. In case No. K246336-10 [complainant AA]; the offences of
unlawful coercion and two instances of sexual molestation.
26. On the same date, the Stockholm District Court granted the prosecutor's application for a domestic detention order in absentia.
27. On 19th November 2010, the Appellant appealed that order to the Svea Court of Appeal.
28. On 24th November 2010, following written argument on behalf of the parties, in which it was argued on behalf of the Appellant that the domestic arrest was not proportionate and not based on sufficient evidence giving rise to probable cause, but without an oral hearing, the order was upheld by the Svea Court of Appeal (albeit that the rape allegation concerning complainant SW was reduced to 'minor rape').
29. The prosecutor's written submissions to the Svea Court of Appeal on 24th November 2010 confirmed that she was; '...requesting the arrest of Assange in order to enable implementation of the preliminary investigation...' .
30. On 26th November 2010, an EAW was issued by the prosecutor pursuant to the Council of the European Union Framework Decision on the European arrest warrant and surrender procedures between member states of the European Union 2002/584/JHA ('the Framework decision' ).
31. The EAW was submitted to the United Kingdom, and received by the Serious Organised Crime Agency ('SOCA' ); an authority designated by the Secretary of State for the purposes of Part 1 of the 2003 Act (by The Extradition Act 2003 (Part 1 Designated Authorities) Order 2003 (SI 2003 No. 3109) as amended by the Serious Organised Crime & Police Act 2006 (Consequential and Supplementary Amendments to Secondary Legislation) Order 2006 (SI 2006 No. 594)).
32. SOCA declined to certify the EAW because it was not a valid Part 1 Warrant in that it failed to specify the punishability in respect of each offence.
33. On 28th November 2010, the Appellant applied to the Supreme Court for permission to appeal the decision of the Svea Court of Appeal. On 2nd December 2010, that application was refused.
34. On 2nd December 2010, a replacement EAW was issued by the prosecutor and again submitted to SOCA. This EAW was issued by Marianne Ny, a Director of Public Prosecutions, as 'issuing judicial authority' and bears the stamp of the Swedish Prosecution Authority. The EAW refers in box (b) to the decision of the Svea Court of Appeal as being the decision on arrest on which it was based. [..]
37. On 6th December 2010, the EAW was certified by SOCA under s2(7) & (8) of the 2003 Act.
38. The Metropolitan police contacted the Appellant's then lawyers and arranged to arrest him by consent on 7th December 2010, when the Appellant voluntarily surrendered himself for arrest by appointment. A sample of the Appellant's DNA was taken under lawful authority at this time.
39. The 'initial hearing' was conducted at City of Westminster Magistrates' Court pursuant to section 4 of the 2003 Act. The Appellant was initially refused bail on 7th December but was subsequently granted bail subject to conditions by the High Court on 16th December 2010.
The right does not have a monopoly on paranoia, as the conspiratorial fantasies of supporters of Julian Assange show. Glenn Greenwald, Glenn Beck's namesake and mirror image on the American left, made it embarrassingly obvious in the Guardian last week that a paranoid "leftist" defence of an alleged rapist was the order of the day. Greenwald argued that Assange was not a coward who dare not face his Swedish accusers but a true dissident, who was camping out in the Ecuadorian embassy because he had a genuine fear of persecution.Elsewhere, The New Statesman's legal correspondent frames any mention of the investigation into WikiLeaks with scare quotes, and locutions like "it is reported..."
there is also an obvious point to be made. The United States has actually not made an extradition request. Although it is reported that there is a 'Grand Jury' investigation currently proceeding (and even that there is a 'sealed indictment' ), there remains no extradition request. There may never be one.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury,...Aaron Swartz was indicted by grand jury. Daniel Ellsberg was indicted by grand jury. Thomas Drake was indicted by grand jury. John Kiriakou was indicted by grand jury. Et cetera.
An indictment is sometimes filed under seal and kept sealed until the defendant appears. The indictment is kept sealed so as to not tip off the defendant. In some districts, indictments are initially sealed as a matter of course. Once the defendant has appeared, the indictment can be unsealed.Neither sealed indictments nor grand juries, then, are fanciful aspects of the US criminal justice system. Nor should the formidable nature of a grand jury investigation be underestimated. The Center for Constitutional Rights' If An Agent Knocks booklet for activists records these chilling truths about this aspect of the US criminal justice system:
A grand jury is a panel of citizens brought together to investigate crimes and issue indictments. In their original conception, grand juries were intended to be radically democratic. In England, they served as a buffer between citizens and the monarch and her/his prosecutors. In early America, any citizen could bring an allegation of wrongdoing to the original grand jury and the grand jury could indict on a majority vote.It is not just "reported" that there is a grand jury investigation into WikiLeaks. There is a grand jury investigation into WikiLeaks. It was convened in late 2010 in Alexandria, Virginia, meaning that its jury pool is drawn from the area with the highest concentrations of intelligence sector workers in the world. The investigation was announced publicly by Attorney General Eric Holder at a press conference on the 29th of November 2010, when he said:
Modern day grand juries are very different. Today, all cases are brought to a grand jury by a prosecutor. The prosecutor picks the witnesses and asks the questions. Witnesses are not allowed to have a lawyer present. There is no judge present. The prosecutor drafts the charges and reads them to the grand jury. There is no requirement that the grand jury members be instructed on the law at issue. And, unlike in other juries, grand jury members are not screened for bias.
Since the prosecutor solely orchestrates the proceedings, it is no surprise that grand juries almost always serve as a rubber stamp for prosecution. A former chief judge of New York once famously noted that 'any prosecutor that wanted to could indict a ham sandwich.' In the rare event that a grand jury does not indict, the prosecutor can simply impanel a different grand jury and seek an indictment before a new grand jury.
In political cases, grand juries have been used to execute witch hunts against activists. Prosecutors will bring in activist witnesses and attempt to get them to snitch on other activists with threats of jail time if they refuse to cooperate with the grand jury. It is critical to understand how a grand jury works; what your rights are; what rights you cannot exercise; and how to resist a grand jury.
Many rights we take for granted do not exist for grand jury witnesses. Grand jury witnesses have no right to be represented by an attorney and no right to a jury trial if they are threatened with jail. Grand jury witnesses do retain the right against self-incrimination but can nonetheless be forced to snitch on themselves and others in exchange for immunity from prosecution and punishment. Immunity only protects witnesses; others can still be prosecuted.
At the same press conference, he repeated:
Investigative reporting on the grand jury investigation in the United States has revealed that the prosecutors attached to the case are US attorneys Neil McBride and Andrew Peterson. This is further confirmed by the The Washington Post, in a hagiographic piece on McBride, who has been responsible for a controversial string of extraterritorial applications of US criminal law.
Federal prosecutors working for MacBride are also handling a critical aspect of the biggest leak case in U.S. history. The investigation is focused on whether the anti-secrecy Web site WikiLeaks and its founder, Julian Assange, violated U.S. laws in posting hundreds of thousands of military and diplomatic cables on the group’s Web site and sharing them with mainstream news organizations. [...]The evidence that there is a grand jury investigation into WikiLeaks is too voluminous to record here comprehensively. The evidence is entered into court proceedings as evidence. It is part of official correspondence between cooperating governments. It is undeniable. What follows is - and must be - a partial record.
Another factor that draws cases to Alexandria’s courthouse is that trials move fast there. The court is known as the “rocket docket” because its judges follow procedural rules that move cases through much more quickly than other courts, said MacBride, who clerked in the district as a young lawyer. [...]
“Criminals today aren’t confined by borders, and neither are we,” MacBride said. “A criminal organization is as much a threat to us from across the ocean as it is across the street. That’s why we made the strategic decision to go after networks and their leadership wherever they are found.”
Although outsiders have not been allowed to inspect the “war room” in suburban Virginia and see its staff at work, national-security officials offered details of the operation to The Daily Beast, including the identity of the counterintelligence expert who has been put in charge: Brig. General Robert A. Carr of the Defense Intelligence Agency.Numerous activists have been detained at borders, approached by federal police, or subpoened to appear before the grand jury and give testimony, and have spoken about this in public.
Officials say Carr, handpicked for the assignment by Defense Secretary Robert Gates, is highly respected among his colleagues at DIA, the Pentagon’s equivalent of the CIA, and a fitting adversary to Assange, the nomadic Australian-born computer hacker who founded WikiLeaks and is now believed to be in Sweden.
“I wouldn’t want to go up against General Carr,” a Pentagon official said. “Very smart guy.” Carr served in Afghanistan for much of last year before his transfer to the DIA in Washington, where he runs the Defense Counterintelligence and Human Intelligence Center. In his battle against Assange, officials say, Carr’s central assignment is to try to determine exactly what classified information might have been leaked to WikiLeaks, and then to predict whether its disclosure could endanger American troops in the battlefield, as well as what larger risk it might pose to American foreign policy.
The team has another distinct responsibility: to gather evidence about the workings of WikiLeaks that might someday be used by the Justice Department to prosecute Assange and others on espionage charges.
DAVID HOUSE: So, the grand jury, as I understand it, is investigating the associations between Julian Assange and Bradley Manning, the alleged associations between them. As I understand it, it was convened around November of last year and has been running ever since. Recently, subpoenas have been issued to members of the Bradley Manning Support Network and others in the Boston area. I, myself, have been among these people that had a subpoena issued. And so, I had to go to the grand jury on June 15, 2011, just a few weeks ago, because they--The grand jury proceedings have been written about extensively by journalists who are actually interested in finding out about them. The developments in the grand jury have been followed step by step:
AMY GOODMAN: In Alexandria?
DAVID HOUSE: Right. And I was commanded to testify before the grand jury everything I knew about Bradley Manning and WikiLeaks, even Jacob Appelbaum, people of that sort. During the grand jury, I refused to answer any questions aside from my name and address, pleading the Fifth Amendment--well, the Fifth, First and Fourth Amendments, to whichever the question that was asked during the grand jury. And it was quite a controversy, actually, because despite the fact that the six AUSAs, assistant U.S. attorneys, that were present were very upset by this, they were also very upset at my note taking and tried to get me to stop taking notes the entire time, saying things such as, "I would like to state for the record Mr. House is not answering the questions and is instead taking notes," and kind of ridiculing me openly for doing that, saying, you know, "Oh, did you get the last question? Did you get everything down?"
Last month, I reported that the FBI had served a Cambridge resident with a subpoena compelling his testimony in the active Grand Jury investigation into WikiLeaks and Julian Assange, and that the subpoena revealed a very broad scope to the criminal investigation. A similar subpoena has now been served on David House - one of the founders of the Bradley Manning Support Network who helped publicize the oppressive conditions of Manning's detention and who then had his laptop seized by the government without a warrant - compelling his testimony before the Grand Jury next Wednesday. The subpoena and accompanying documents received by House can be viewed here and here.Scans of the subpoenas have been published as PDFs online.
This latest subpoena reveals how active the criminal investigation is and how committed the Obama administration is to criminally pursuing the whistleblowing site. Also receiving subpoenas in addition to House and the Cambridge resident have been ex-Manning boyfriend Tyler Watkins, and a cryptography expert at Princeton, Nadia Heninger (whose Princeton photo is credited to Jacob Appelbaum, the persistently harassed American once identified as a WikiLeaks spokesman).
On January 26, 2011, Fred Burton, the vice president of Stratfor, a leading private intelligence firm which bills itself as a kind of shadow CIA, sent an excited email to his colleagues. "Text Not for Pub," he wrote. "We" meaning the U.S. government "have a sealed indictment on Assange. Pls protect." Burton, a former federal agent with the U.S. Diplomatic Security Services, had reason to trust his information. He often boasted of his stellar government sources ("CIA cronies," he called them in another email), and in his role as a government counter-terror agent he had worked on some of the most high-profile terrorism cases of recent years, including the arrest of the first World Trade Center bomber, Ramzi Yousef. As the VP of Texas-based Stratfor Global Intelligence, a private firm that contracts with corporations and several government agencies, like the Department of Homeland Security, to collect and analyze intelligence on political situations around the world, it was part of his job to keep those contacts alive and share inside information with analysts at the company. (The emails cited in this story contained in a leak of 5 million internal Stratfor messages were examined by Rolling Stone in an investigative partnership with Wikileaks.)The Twitter, Gmail and other online accounts of WikiLeaks associates have been subpoened by the grand jury using secretive administrative subpoenas and National Security Letters, resulting in cases which have been fought through multiple stages of appeal in the United States by the Electronic Frontier Foundation, and the proceedings for which provide ample, highly public evidence of a US criminal investigation into WikiLeaks. From the recent final judgment from the Fourth Circuit Court of Appeals, dated 25th January:
We are called upon to determine the public's right to access orders issued under 18 U.S.C. § 2703(d) and related documents at the pre-grand jury phase of an ongoing criminal investigation. Because we find that there is no First Amendment right to access such documents, and the common law right to access such documents is presently outweighed by countervailing interests, we deny the request for relief.The Public Brief from the EFF, parts of which are redacted, records the half-redacted name of a US criminal case called "USA v. Under Seal." The words "under seal" indicate that the defendant to this case may already have been indicted, but his or her name remains "sealed" along with a possible indictment itself. In other words, the defendant's status, along with a possible indictment, is subject to court secrecy in order to avoid alerting the defendant.
[...]
This case involves the § 2703(d) orders pertaining to the Government's request for records of electronic communications relevant to an ongoing criminal investigation. The underlying facts of the investigation, which are not presently before us, relate to the unauthorized release of classified documents to WikiLeaks.org, and the alleged involvement of Bradley E. Manning, a U.S. Army Private First Class.
As part of its investigation, the Government petitioned the U.S. District Court for the Eastern District of Virginia and obtained an order pursuant to § 2703(d), from a magistrate judge ("Twitter Order"), directing Twitter, Inc. ("Twitter") to disclose records of electronic communications pertaining to Appellants Jacob Appelbaum, Rop Gonggrijp, and Birgitta Jonsdottir ("Subscribers"). Specifically, the order directed Twitter to provide Subscribers' names, usernames, personal contact information, account information, connection records, financial data, length of service, direct messages to and from email addresses and Internet Protocol addresses for all communications between November 1, 2009, and December 14, 2010. The issuing magistrate judge determined that prior notice "to any person" of the Twitter Order, the Government's application for the Twitter Order ("Twitter Application"), and the ongoing criminal investigation, would "seriously jeopardize the investigation." Consequently, the magistrate judge sealed the Twitter Order and Application, and directed Twitter not to disclose their existence, or the investigation to any person unless and until otherwise ordered by the court.
On January 5, 2011, upon the Government's motion, the magistrate judge unsealed the Twitter Order and authorized Twitter to disclose the order to Subscribers. On January 26, 2011, Subscribers moved the court to vacate the Twitter Order, unseal all documents relating to the Twitter Order, and unseal and publicly docket any other § 2703(d) orders on the subject of the investigation pertaining to Subscribers that were issued to companies other than Twitter ("Other § 2703(d) Orders"). Following a hearing on the motions, the magistrate judge issued a memorandum opinion and an order denying the motion to vacate, and partially granting the motion to unseal as follows: it (1) granted the motion to unseal pleadings filed during the litigation over the Twitter Order; (2) denied the motion to unseal the Twitter Application; (3) denied the motion to unseal the Other § 2703(d) Orders; and (4) took under advisement the issue of public docketing of the Other § 2703(d) Orders and related motions. In ruling on the motion to unseal, the magistrate judge determined that there was no First Amendment right to access the Twitter Application, and the Other § 2703(d) Orders and their applications. The magistrate judge also determined that the common law presumption of access to judicial records was overcome because the sealed documents contained "sensitive nonpublic facts, including the identity of targets and witnesses in an ongoing criminal investigation."
[...]
The motions that support these § 2703(d) orders, the orders themselves, and the very existence of these orders implicate or directly convey highly private information and confirm the existence of a criminal investigation.
After Movants, through counsel, contacted the Clerk's Office and the Magistrate's chambers, Movants were informed that additional information would be publicly docketed on the running list. JA-169. The new list was identical to the one-page computer entry Movants had previously seen, except that two new notations had been added regarding the individual documents associated with the ec-3 (Twitter) docket, and the list now included references to an ec-5, ec-6, ec-7, ec-8, and ec-9 docket. JA-175-177. Unlike the ec-3 docket, the other EC dockets contain no individual docket entries or other information indicating what documents have been filed. All that appears for them is a case name, "USA v. Under Seal," the name of the judge assigned to the matter, the date the matter was put on the EC list, and miscellaneous case assignment information.The pretrial hearings of accused whistleblower Bradley Manning have made reference to the FBI file in the investigation into WikiLeaks, which at that point reached to tens of thousands of pages.
Prosecution (Fein): Each agency, the Diplomatic Security Services, the Department of State, the Federal Bureau of Investigation, Army CID each had their own purpose although it was coded as a joint investigation because they would share certain information, and that what was done. Army CID only had certain authorities, and their focus was of course on the charged misconduct of Private First Class Manning downrange and back home. And, FBI had and has an ongoing investigation that also include Private First Class Manning[...]US Army Computer Crimes Investigation Unit Special Agent Mark Mander was a witness at a separate pretrial hearing in Manning's case, when the following questioning with the defense revealed:
Judge Lind: So what is left in the file that hasn't been turned over to the defense as germane to PFC Manning? Are you telling me there is a broader file and this is a piece of it?
Prosecution (Fein): Your, Honor. Private First Class Manning is a piece of the FBI file, yes.
Judge Lind: And, of that piece how much has been turned over. What remains that has not been turned over to the defense?
Prosecution (Fein): Ma'am, can we have a moment? [...] Ma'am. Your Honor. The FBI law enforcement file investigation is much broader than Private First Class Manning. We have turned over all the documentation that is germane to Private First Class Manning for any witnesses that we would have identified or we suspect to put on our witness list[...]
Judge Lind: Major Fein. How long was the FBI investigation?
Prosecution (Fein): Your Honor. I will have to get back to you on the entire page count. But the page count that the prosecution has produced to the defense is 8, 871 pages...636 documents. Your Honor that does not include the Grand Jury testimony, and just the reason I stood up is that Grand Jury has in open court is currently under your protective order and an Article 3 Judges protective order and should be sealed and not held around in Court, and should be stamped as such. [...]
Judge Lind: OK. So you disclosed about eight thousand pages. Do you have any idea of what percentage of the total file that might be?
Prosecution (Fein): Your, Honor. It is hard to estimate right now. It is probably around 50 percent. I get that is a very rough estimation, and we can get you a number by the end of the today. In fact, I will provide a number before we close this session. [...] Your, Honor. To answer your question about the size of the FBI file that would be germane to this Court Martial. It is 42,000 pages total, my estimation of 50 percent was not correct. So, 3, 475 documents. And the number again that we produced to the defense, was 8, 741 pages, 636 different documents.
Judge Lind: Did the documents...
Prosecution (Fein): I'm sorry. 636 documents, 8, 741 pages.
Judge Lind: And how big is the FBI file did you say?
Prosecution (Fein): 3, 475 [documents] your Honor, and 42, 135 pages.
Judge Lind: So we are not nearly at 50 percent [MISSED]?
Defense: Whom else did you uncover doing wrongdoing?Reporting on The Guardian Live Blog on the pretrial hearings, Ed Pilkington quoted Manning's defense attorney, David Coombs during proceedings in court:
Mander: Seven other civilians. The FBI is potentially involved. I do not know what the FBI has determined.
Defense: Do they include the founders, owners, or managers of WikiLeaks? Was WikiLeaks in this case?
Mander: Yes they are involved in certain aspects.
Defense: Is it your determination...would you agree that my client would have been unable to do this by himself?
Mander: Depends on charge. 'Something by himself' ...other charges require interaction with others.
Defense: Did my client possess the ability to upload from his cubical in Iraq?
Mander: Yes. He could have uploaded to multiple sites.
Defense: Would he not also require the cooperation of others to post to (indecipherable)?
Mander: Not if he owned the site.
Mr Coombes added: "If the Department of Justice got their way, they would get a plea in this case, and get my client to be named as one of the witnesses to go after Julian Assange and Wikileaks."Motions in the Manning pretrial hearings have sought access to the transcripts of the grand jury investigation into Julian Assange, and have been refused:
A military judge says Army prosecutors don't have to provide the defense with transcripts of federal grand jury testimony regarding government secrets disclosed by Wikileaks. [...]Freedom of Information applications to United States government agencies have turned up numerous admissions that a criminal investigation into WikiLeaks is ongoing. For example:
Manning's lawyers were seeking transcripts from a federal investigation into whether WikiLeaks founder Julian Assange can be prosecuted for the disclosure of information that authorities say was provided by Manning.
Lind said that while the FBI and the Army have jointly pursued a WikiLeaks investigation, military prosecutors have no authority to release FBI documents.
Dear XXXX,Australian journalists have uncovered large amounts of information about the grand jury investigation by filing Freedom of Information Requests to the Australian Department of Foreign Affairs. Analyzing two large releases of documents, Fairfax Media's Philip Dorling reports:
This is in response to your Freedom of Information Act (FOIA) for release of information from the files of the US Army Criminal Investigation Command (USACIDC) pertaining to WikiLeaks. Your request was referred from United States Army Intelligence and Security Command, Freedom of Information/Privacy Office and was received at this headquarters on May 12, 2012.
A search of the USACIDC file indexes revealed that an active investigation is in progress with an undetermined completion date. You may submit another written request for a copy of the investigation at a later date, after it is completed. You may consider this an initial denial of your request pursuant to Title 5, USC, Section 552a, Exemption (j)(2) of the Privacy Act and Title 5, USC, Section 552, Exemption (b)(7)(A), (b)(7)(F), (b)(6), and (b)(7)(C) of the Freedom of Information Act.
Sincerely,
Susan Cugler,
Director, Crime Records Center
Australian diplomatic cables released to Fairfax Media have revealed that as early as December 7, 2010, the Washington embassy confirmed the [US] Justice Department was conducting an "active and vigorous inquiry into whether Julian Assange can be charged under US law, most likely the 1917 Espionage Act".In particular, one Australian DFAT cable records conferences with "experts" in the United States on the proceedings underway in the US.
US officials told the Australian embassy "the WikiLeaks case is unprecedented both in its scale and nature".
After working contacts inside and outside the US government, the embassy reported on December 22, 2010, that media reports that a secret grand jury had been convened in Alexandria, Virginia, to consider evidence arising from the WikiLeaks investigation were "likely true". The embassy provided Canberra with regular updates through 2011 including reporting on the issuing of subpoenas to compel WikiLeaks associates to appear before the grand jury and Justice Department efforts to access Twitter and other internet accounts as "casting the net beyond Assange to see if any intermediaries had been involved in communications between Assange and Manning".
In December last year, the embassy sent a representative to attend all seven days of Private Manning's pre-trial hearing. The embassy's report focused on the prosecution's assertions that Manning had leaked to WikiLeaks "and, specifically, to Julian Assange." These allegations included that Manning "indiscriminately and systematically" data-mined classified US databases using WikiLeaks' "Most Wanted List" as a guide, that there was direct contact between Manning and Assange, and that Assange may have actively assisted Manning's efforts to extract data.
3. Media reports claim that a grand jury has been empanelled in Alexandria, Virginia [redacted under s.22 1(a)(ii)] According to [redacted under s.47 F(i)] these reports are accurate. [redacted under s.47 F(i)] said it would be normal practice at this stage of an investigation for a grand jury to be in place since it considerably extended the powers of the prosecutor to gather evidence and it could ultimately issue an indictment. The jury would be under the direction of the prosecutor and all its deliberations would take place in secret. [redacted under s.47 F(i)], however, that excerpts of grand jury proceedings were sometimes read into evidence during subsequent trials, and in this way became public.On June 30th 2012, a Justice Department spokesperson told the AFP that "there continues to be an investigation into WikiLeaks."
4. [redacted under s.47 F(i)] said the prosecutor would usually seek information in the name of the grand jury, and it would likely sit once a week to review progress. Should information not be provided willingly, grand juries could compel witnesses to provide evidence, and witnesses could not refuse to do so on grounds of self-incrimination. [redacted under s.47 F(i)] speculated that these powers may be important for obtaining evidence from the alleged leaker, Bradley Manning. Both [redacted under s.47 F(i)] pointed out that grand juries were not limited by the rules of evidence that would apply during a trial, and could therefore utilise a greater range of information. And similarly, they could scour widely for information that might be useful for the investigation.
5. [redacted under s.47 F(i)] said grand juries were appointed for a period of two years, and this could be renewed once (for a total of four years). In theory, the process could, therefore, be a long one.
[redacted under s.33(a)(iii)]
6. On the location of the grand jury, [redacted under s.47 F(i)] said it was likely that prosecutors would have taken the case to Alexandria. It was just across the river from Washington, but the jury pool was more conservative than in the District. There was a history of national security cases being tried there, and facilities for handling classified material had been built at the court during the Bush Administration.
7. [redacted under s.47 F(i)] said that grand juries could issue indictments under seal, and that theoretically one could already have been issued for Assange. In this particular case, it would be more likely that an indictment would become known at the point of extradition proceedings, should these take place, in the UK or Sweden.
Some with links to Assange have reportedly faced questioning when trying to travel outside the United States and federal authorities at one point demanded Twitter open the accounts of WikiLeaks figures.The government of Ecuador in diplomatic discussions asked the United States directly about its investigation. The question was avoided.
[...]
The US Justice Department will not comment on the grand jury probe and says it has no role in the extradition proceedings in London. But spokesman Dean Boyd said: "There continues to be an investigation into the WikiLeaks matter."
Finally, Ecuador wrote to the U.S. government to officially reveal its position on Assange's case. Inquiries related to the following:On September 28th 2012, ABC's Jake Tapper reported on a statement from the Department of Defence that indicates that the US Government believes that WikiLeaks continues to be in violation of the law simply by continuing to exist as an organization for anonymous whistleblowing:
The U.S. response has been that it cannot provide information about the Assange case, claiming that it is a bilateral matter between Ecuador and the United Kingdom.
If there is an ongoing legal process or intent to carry out such processes against Julian Assange and/or the founders of the WikiLeaks organization;
Should the above be true, then under what kind of legislation, and how and under what conditions would such persons be subject to under maximum penalties;
Whether there is an intention to request the extradition of Julian Assange to the United States.
George Little, a spokesman for the Pentagon... says the Pentagon 'has warned Mr. Assange and Wikileaks against soliciting service members to break the law by providing classified information to them, and that it is our view that continued possession by Wikileaks of classified information belonging to the United States government represents a continuing violation of law. We regard this as a law enforcement matter.'The White House recently released a report outlining an elaborate strategy for "enhancing domestic law enforcement operations" in cases of "economic espionage" in trade secrets, within which it clearly identified WikiLeaks as a primary threat, and attempted to characterize WikiLeaks' exposure of corporate malfeasance, not as journalism, but as "hacktivism" or "economic espionage."
Political or social activists also may use the tools of economic espionage against US companies, agencies, or other entities. The self- styled whistleblowing group WikiLeaks has already published computer files provided by corporate insiders indicating allegedly illegal or unethical behavior at a Swiss bank, a Netherlands-based commodities company, and an international pharmaceutical trade association. LulzSec—another hacktivist group—has exfiltrated data from several businesses that it posted for public viewing on its website.Most recently it emerged that the FBI had been engaging in covert investigative operations in Iceland, without the knowledge of the Icelandic government:
Iceland's interior minister said Friday that he ordered the country's police not to cooperate with FBI agents sent to investigate WikiLeaks two years ago, offering a rare glimpse into the U.S. Department of Justice's investigation of the secret-busting site.The roster of evidence goes on and on. It cannot all be listed here. Put simply, it is not credible for anyone to deny that there is an active, ongoing and serious attempt to prosecute Julian Assange and other WikiLeaks staff under the US Espionage Act, and possibly other statutes. To deny the significance or historical truth of this is to be a denialist.
Ogmundur Jonasson told The Associated Press that he was upset when he found out that FBI agents had flown to the country to interview an unidentified WikiLeaks associate in August 2011.
"I, for one, was not aware that they were coming to Iceland," he said in a brief telephone interview. "When I learned about it, I demanded that Icelandic police cease all cooperation and made it clear that people interviewed or interrogated in Iceland should be interrogated by Icelandic police."
...there remains no extradition request. There may never be one.
Since the prosecutor solely orchestrates the proceedings, it is no surprise that grand juries almost always serve as a rubber stamp for prosecution. A former chief judge of New York once famously noted that 'any prosecutor that wanted to could indict a ham sandwich.' In the rare event that a grand jury does not indict, the prosecutor can simply impanel a different grand jury and seek an indictment before a new grand jury.Based on US Department of Justice statistics, it is extremely rare for a grand jury not to indict. In the year 2009, federal grand juries in the United States saw cases involving 69,254 suspects and voted to indict all but 20 of them. (This is denoted by "no true bill returned" in the document.) That is a approximately one in every three thousand five hundred suspects. These statistics are repeated year after year. Given that it is known that he is the target of a grand jury investigation, Julian Assange has in and around a 99.97% chance of being indicted.
In the federal system, a grand jury can sit for up to 36 months, although it doesn't have to sit that long. The court that swears in a new grand jury can extend its term in 6-month increments, for a total of 36 months[.]On top of this, the Swedish extradition proceedings have been ongoing for the last two years. If the United States issued an extradition request while there is a Swedish one pending, this would put the UK Home Secretary in the difficult position of having to choose between extradition requests, resulting in a diplomatic slight to the losing applicant. It is far more likely that the US attorney would join an informal "queue," and wait until Assange was in Swedish custody before instituting formal extradition proceedings, or attempting to procure Assange's transit by other means.
7. [redacted under s.47 F(i)] said that grand juries could issue indictments under seal, and that theoretically one could already have been issued for Assange. In this particular case, it would be more likely that an indictment would become known at the point of extradition proceedings, should these take place, in the UK or Sweden. [...]The FOI requests that reveal the Australian cables also reveal a letter from Assange's UK solicitor, Gareth Peirce which reveal legal precedents for US prosecutors deliberately timing their indictments strategically.
**Extradition**
17. According to commentators, extradition poses significant challenges for prosecutors. [redacted under s.47 F(i)] said an extradition request from the US could be made with or without an indictment but that the request would be stronger with an indictment and extradition therefore more likely to be successful. If the US were also to request extradition from the United Kingdom, the UK's Home Secretary would then decide which request would take precedent, taking into account the relative seriousness of the offences, where they were committed, and the timing of the requests.
So far as the UK is concerned, were the extradition case to Sweden to fail in the courts here, the US would be most likely, if the above presumption is correct, to initiate extradition proceedings in the UK, as opposed to Sweden. It is a matter of public record that the US on a significant number of occasions has synchronised extradition requests with the conclusion of a pending case in the relevant domestic jurisdiction, and has relied on the cooperation of the requested country to do so; the UK and Sweden have in the past provided exactly such close cooperation. Were Mr. Assange's appeal in the UK to succeed conclusively in the near future (and were no further appeal to be possible for the prosecution to the Supreme Court) a provisional warrant could be issued at short notice by the USA pending the obtaining of warrant issued by a US court on the basis of a grand jury indictment, if the potential for such a warrant were claimed to exist.This is born out by comments by the US ambassador to the United Kingdom, Louis Susman.
There have been a number of cases of extraditon synchronised in precisely this way. For example:
The case of Eiderous, who was held in prison in the UK in relation to immigration matters until 9 July 1999, when he succeeded in a habeas corpus application. Within hours a warrant was obtained from the USA on the basis of the testimony of a "cooperating witness" (ie a witness who would otherwise face a severe sentence in the absence of cooperation) and within 24 hours of his release he was arrested.
The case of Kassir. This Swedish national successfully challenged an extradition request by the US; the Swedish extradition treaty excludes Swedish nationals from extradition to the US. He was freed from prison. However, Kassir was also a Lebanese national. He was arrested in Prague airport while in transit to Lebanon, and subsequently extradited to the US (also on the basis of evidence of a "cooperating witness"). The Swedish press reported that was probably coordinated by the Swedish special police, SAPO, and that this type of coordination is the standard operating procedure of mutual assistance in transnational crime - link: (http://www.dn.se/nyheter/sverige/lag-alskar-bin-laden)
Louis B. Susman, the U.S. ambassador to Britain, said in February that America would 'wait to see how things work out in the British courts' before taking any action.It is further born out by reported comments to The Independent by "diplomatic sources."
Informal discussions have already taken place between US and Swedish officials over the possibility of the WikiLeaks founder Julian Assange being delivered into American custody, according to diplomatic sources.It is a virtual certainty that the US will indict, or has already indicted, Julian Assange, and will aggressively prosecute him as soon as it is in a position to do so. As shown above, the claim "it has not happened yet" simply misunderstands how the US justice system works in practice.
Sources stressed that no extradition request would be submitted until and unless the US government laid charges against Mr Assange, and that attempts to take him to America would only take place after legal proceedings are concluded in Sweden.
It is not even clear for what crime the United States could indict Assange and apply for his extradition.
[T]he FBI yesterday served a Grand Jury subpoena in Boston on a Cambridge resident, compelling his appearance to testify in Alexandria, Virgina. Alexandria is where a Grand Jury has been convened to criminally investigate WikiLeaks and Julian Assange and determine whether an indictment against them is warranted. The individual served has been publicly linked to the WikiLeaks case, and it is highly likely that the Subpoena was issued in connection with that investigation. Notably, the Subopena explicitly indicates that the Grand Jury is investigating possible violations of the Espionage Act (18 U.S.C. 793), a draconian 1917 law under which no non-government-employee has ever been convicted for disclosing classified information.The basis on which Greenwald makes this analysis is the letter accompanying the grand jury subpoena delivered to David M. House.
[...]
The investigation appears also to focus on Manning, as the Subpoena indicates the Grand Jury is investigating parties for 'knowingly accessing a computer without authorization'
[...]
[I]t also cites the conspiracy statute, 18 U.S.C. 371, as well as the conspiracy provision of the Espionage Act (subsection (g)), suggesting that they are investigating those who may have helped Manning obtain access.
The New York Times previously reported that the DOJ hoped to build a criminal case against WikiLeaks and Assange by proving they conspired with Manning ahead of time (rather than merely passively received his leaked documents). Also cited is 18 U.S.C. 641, which makes it a crime to 'embezzle, steal, purloin, or knowingly convert... any record, voucher, money, or thing of value of the United States.' [...]
The serving of this Subpoena strongly suggests that the DOJ criminal investigation into WikiLeaks and Assange continues in a serious way;
[...]
It also appears clear that the DOJ is strongly considering an indictment under the Espionage Act - an act that would be radical indeed for non-government-employees doing nothing other than what American newspapers do on a daily basis (and have repeatedly done in partnership with WikiLeaks).
A subpoena has been issued for your appearance as a witness before a federal grand jury in this District...In a press conference on the 6th of December 2010, US Attorney General Eric Holder made clear that the investigation into WikiLeaks was seeking to prosecute via various legal avenues, not just the Espionage Act:
As a grand jury witness, you will be asked to testify and answer questions concerning possible violations of federal criminal law...
We advise you that the Grand Jury is conducting an investigation of possible violations of federal criminal law involving, but not necessarily limited to conspiracy to communicate or transmit national defense information in violation of 18 U.S.C. §793(g) and conspiracy to violate the laws of the United States, in violation of 18 U.S.C. §371 to wit: knowingly accessing a computer without authorization or exceeding authorized access and having obtained information protected from disclosure for reasons of national defense or foreign relations in violation of 18 U.S.C. §1030(a) and knowingly stealing or converting any record or thing of value of the United States or any department or agency thereof in violation of 18 U.S.C. §641...
Sincerely,
Neil H. MacBride
United States Attorney
That is not the only tool we have to use in the investigation of this matter... People would be misimpressioned if they think the only thing we are looking at is the Espionage Act.The Australian Department of Foreign Affairs and Trade also had its diplomats research the question. They decided that while it would be a difficult case to prosecute Assange for espionage, it would be possible, and in any case was being pursued. They examined different potential prosecution strategies under the same act, and under other acts, that could make a conviction more likely.
**Possible Charges**The above information indicates that federal prosecutors may also seek to bring charges against Julian Assange under 18 USC 1030, the same overbroad computer crimes statutes that were used against Aaron Swartz.
8. Attorney General Eric Holder said on 29 November that the Administration was pursuing a "very serious criminal investigation" into the matter. On 6 December, he said that charges could be brought under the Espionage Act of 1917 or "other statutes, other tools... at our disposal". Commentators have noted that US criminal statutes and case law do not provide a clear path forward for indicting Assange. There are a range of statutes that protect information depending upon its nature, the identity of the discloser and of those to whom it was disclosed, and the means by which it was obtained.
9. Commentators generally agree that most of the information disclosed by WikiLeaks is likely to fall under the general rubric of information related to national defense, which is expressly protected by the Espionage Act. Many commentators have focused on section 18 USC 793, which applies to non-government employees engaged in gathering, transmitting, or in receipt of defense information with the intent or reason to believe the information will be used against the US or to the benefit of a foreign nation.
10. The media has been quick to note that successful prosecution under the Espionage Act for publication of classified information would be difficult and unprecedented. The US government brought one prosecution, unsuccessfully, in 2005, in a case involving two American Israel Public Affairs Committee (AIPAC) lobbyists who allegedly disclosed national security secrets to unauthorised individuals, including Israeli officials, other AIPAC staff, and a Washington Post reporter. The charges were ultimately dropped, reportedly due in part to the prosecution's failure to prove that the requisite intent and concerns about further disclosures of classified material at trial.
11. A central theme has been the question of whether WikiLeaks is a media organisation, and afforded additional protection under the First Amendemnt. [whole lines redacted under s.47 F(i)] The general view of expert commentators is that a prosecution could not be successful unless it showed in court that WikiLeaks was not a media organisation since the history of these cases has never seen a media outlet convicted for publication of leaked documents.
12. Recent media commentary has identified that the most likely route to a successful prosecution would be to show that Assange had acted as a co-conspirator - soliciting, encouraging or assisting Manning to obtain and provide the documents. The New York Times has reported that the Justice Department is investigating Assange's communications with Manning and looking for any technical assistance Assange may have provided [redacted under s. 22 1(a)(ii) and s.47 F(i)] agreed with this contention. [redacted under s.47 F(i)] that the government would want to see "technical help" or "other substantive aid" - more than "mere encouragement" from Assange- because encouraging sources to provide secret information is what journalists do every day, and courts woul dbe wary of criminalising such activity. Evidence of a conspiracy could assist prosecutors rebut claims that WikiLeaks was acting merely as a media organisation. It could also possibly help deflect challenges to the extraterritorial application of the Espionage Act to non-citizens, as 18 USC 793 and 794 can be construed as applying to non-citizens if they are found to have played an active role in obtaining the information.
[paragraph redacted under s.47 F(i), s. 33(b), and s.22 1(a)(ii)]Commentators have speculated that Manning may strike a deal with prosecutors in exchange for testifying against Assange.
14. Commentators have also speculated that Holder's reference to "other tools" could include 18 USC 1030, which prohibits the wilful retention, communication, or transmission of classified information retrieved by means of knowingly accessing a computer without (or in excess of) authorisation, with reason to believe that such information "could be used to the injury of the US, or to the advantage of any foreign nation." 18 USD 641 prohibits the theft or conversion of government property or records for one's own use or the use of another. However, that statute has never been used to prosecute anyone for receiving classified information. It was used in 1984 to prosecute a US naval intelligence analyst who gave top secret photographs of a Soviet aircraft carrier to British publication 'Jane's Defense Weekly'. But only Morison, not the publication, was prosecuted and sentenced. In 2001, a former analyst for the Drug Enforcement Administration was prosecuted under the same law, for giving unclassified information to a London newspaper. Once again, the newspaper was not charged. [redacted under s.47 F(i) and s.22 1(a)(ii)]
15. Central to many of these statutes is the element of intent and demonstrated potential damage to national security. Stephen Vladeck, a law professor at American University, told a media legal panel that Assange's public statements may make it hard for the defence to portray him as someone who did not appreciate the harm that might result from the disclosures. Vladeck noted that the US government had tried to ensure Assange was on notice, sending letters from both the State Department's legal adviser and the Defense Department's general counsel prior to the latest round of disclosures, and that the State Department advised Assaange that 'as long as WikiLeaks holds such material, the violation of the law is ongoing', perhaps foreshadowing a possible argument that WikiLeaks was violating espionage laws merely by retaining the cables.
In light of the foregoing, it seems that there is ample statutory authority for prosecuting individuals who elicit or disseminate many of the documents at issue, as long as the intent element can be satisfied and potential damage to national security can be demonstrated. There is some authority, however, for interpreting 18 U.S.C. Section 793, which prohibits the communication, transmission, or delivery of protected information to anyone not entitled to possess it, to exclude the 'publication' of material by the media. Publication is not expressly proscribed in 18 U.S.C. Section 794(a), either, although it is possible that publishing covered information in the media could be construed as an 'indirect' transmission of such information to a foreign party, as long as the intent that the information reach said party can be demonstrated.The Congressional Research Report did not avoid the notice of Senate Select Intelligence Chair Dianne Feinstein, who said:
The death penalty is available under that subsection if the offense results in the identification and subsequent death of 'an individual acting as an agent of the United States,' 83 or the disclosure of information relating to certain other broadly defined defense matters. The word 'publishes' does appear in 18 U.S.C. Section 794(b), which applies to wartime disclosures of information related to the 'public defense' that 'might be useful to the enemy' and is in fact intended to becommunicated to the enemy. The types of information covered seem to be limited to military plans and information about fortifications and the like, which may exclude data related to purely historical matters.
The law Mr. Assange continues to violate is the Espionage Act of 1917. That law makes it a felony for an unauthorized person to possess or transmit "information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation."Reports from the New York Times indicate that the intent and conspiracy elements that would make potential espionage charges against Julian Assange viable are precisely the ones that federal prosecutors are investigating.
The Espionage Act also makes it a felony to fail to return such materials to the U.S. government. Importantly, the courts have held that "information relating to the national defense" applies to both classified and unclassified material. Each violation is punishable by up to 10 years in psrison.
In a letter sent to Mr. Assange and his lawyer on Nov. 27, State Department Legal Adviser Harold Hongju Koh warned in strong terms that the documents had been obtained "in violation of U.S. law and without regard for the grave consequences of this action." [...]
None of this stopped Mr. Assange. That he is breaking the law and must be stopped from doing more harm is clear. I also believe a prosecution would be successful.
In an October analysis of earlier WikiLeaks disclosures, the Congressional Research Service reported that "it seems that there is ample statutory authority for prosecuting individuals who elicit or disseminate the types of documents at issue, as long as the intent element can be satisfied and potential damage to national security can be demonstrated."
Both elements exist in this case. The "damage to national security" is beyond question. As for intent, Mr. Assange's own words paint a damning picture.
WASHINGTON - Federal prosecutors, seeking to build a case against the WikiLeaks leader Julian Assange for his role in a huge dissemination of classified government documents, are looking for evidence of any collusion in his early contacts with an Army intelligence analyst suspected of leaking the information. Justice Department officials are trying to find out whether Mr. Assange encouraged or even helped the analyst, Pfc. Bradley Manning, to extract classified military and State Department files from a government computer system. If he did so, they believe they could charge him as a conspirator in the leak, not just as a passive recipient of the documents who then published them.
[...]
Since WikiLeaks began making public large caches of classified United States government documents this year, Justice Department officials have been struggling to come up with a way to charge Mr. Assange with a crime. Among other things, they have studied several statutes that criminalize the dissemination of restricted information under certain circumstances, including the Espionage Act of 1917 and the Computer Fraud and Abuse Act of 1986.
More pertinently, Greenwald and the rest of Assange's supporters do not tell us how the Americans could prosecute the incontinent leaker. American democracy is guilty of many crimes and corruptions. But the First Amendment to the US constitution is the finest defence of freedom of speech yet written. The American Civil Liberties Union thinks it would be unconstitutional for a judge to punish Assange.Elementarily, the ACLU does not have prior review powers over the actions of the US government. The ACLU also holds that the following are unconstitutional: indefinite detention without trial; targeted killings; the use of "enhanced interrogation techniques"; warrantless surveillance of American citizens; the use of adminstrative subpoenas, "extraordinary rendition"; and a lengthy bill of other transgressions by the American government. None of these opinions have prevented the government committing these transgressions, and continuing to do so.
It is not even clear for what crime the United States could indict Assange and apply for his extradition. If it were an espionage or computer offence in respect of his role at Wikileaks then [he would] possibly have protection under the First Amendment of the United States Constitution[.]
2. Mr. Assange shared privileged documents and information generated by various sources that affected employees, countries and organizations with a global audience;It is therefore clear that Ecuador is committed, diplomatically, to the progression of the Swedish case, under terms that adequately safeguard Julian Assange's rights.
3. That there is strong evidence of retaliation by the country or countries that produced the information disclosed by Mr. Assange, retaliation that may endanger his safety, integrity, and even his life;
4. That, despite Ecuador's diplomatic efforts, countries which have been asked to give adequate safeguards for the protection and safety for the life of Mr. Assange have refused to facilitate them;
5. That Ecuadorian authorities are certain of the possibility that Mr. Assange could be extradited to a third country outside the European Union without proper guarantees for their safety and personal integrity;
6. That legal evidence clearly shows that, given an extradition to the United States of America, it would be unlikely for Mr. Assange to receive a fair trial, and likely that he would be judged by special or military courts, where there is a high probability of suffering cruel and degrading treatment, and be sentenced to life imprisonment or capital punishment, which would violate his human rights;
7. That while Mr. Assange must answer for the investigation in Sweden, Ecuador is aware that the Swedish prosecutor has had a contradictory attitude that prevented Mr. Assange the full exercise of the legitimate right of defense;
The Swedish authorities should issue assurances to the UK and to Julian Assange that if he leaves Ecuador’s London embassy and agrees to go to Sweden to face sexual assault claims, he will not be extradited to the USA in connection with Wikileaks, Amnesty International said.Hostile commentators in the UK press and elsewhere have ignored the findings of the government of Ecuador, and claimed that extradition to Sweden carries no risk of further transit to the United States:
In the wake of the Wikileaks co-founder addressing the United Nations and with talks due between the British Foreign Secretary William Hague and Ecuadorian officials, Amnesty International added that it was time to break the impasse. [...]
Amnesty International believes that the forced transfer of Julian Assange to the USA in the present circumstances would expose him to a real risk of serious human rights violations, possibly including violation of his right to freedom of expression and the risk that he may be held in detention in conditions which violate the prohibition of torture and other cruel, inhuman or degrading treatment.
Some supporters of Assange contend that he would happily return to Sweden to be interrogated, if only he could be certain that he would not then be extradited to the United States. The underlying concern is that Assange is somehow likely to be extradited to the United States from Sweden.
One can add that there is no evidence whatsoever that the United Kingdom would not swiftly comply with any extradition request from the United States;
7. [redacted under s.47 F(i)] said that grand juries could issue indictments under seal, and that theoretically one could already have been issued for Assange. In this particular case, it would be more likely that an indictment would become known at the point of extradition proceedings, should these take place, in the UK or Sweden. [...]The FOI requests that reveal the Australian cables also reveal a letter from Assange's UK solicitor, Gareth Peirce which reveal legal precedents for US prosecutors deliberately timing their indictments strategically.
**Extradition**
17. According to commentators, extradition poses significant challenges for prosecutors. [redacted under s.47 F(i)] said an extradition request from the US could be made with or without an indictment but that the request would be stronger with an indictment and extradition therefore more likely to be successful. If the US were also to request extradition from the United Kingdom, the UK's Home Secretary would then decide which request would take precedent, taking into account the relative seriousness of the offences, where they were committed, and the timing of the requests.
So far as the UK is concerned, were the extradition case to Sweden to fail in the courts here, the US would be most likely, if the above presumption is correct, to initiate extradition proceedings in the UK, as opposed to Sweden. It is a matter of public record that the US on a significant number of occasions has synchronised extradition requests with the conclusion of a pending case in the relevant domestic jurisdiction, and has relied on the cooperation of the requested country to do so; the UK and Sweden have in the past provided exactly such close cooperation. Were Mr. Assange's appeal in the UK to succeed conclusively in the near future (and were no further appeal to be possible for the prosecution to the Supreme Court) a provisional warrant could be issued at short notice by the USA pending the obtaining of warrant issued by a US court on the basis of a grand jury indictment, if the potential for such a warrant were claimed to exist.This is born out by comments by the US ambassador to the United Kingdom, Louis Susman.
There have been a number of cases of extraditon synchronised in precisely this way. For example:
The case of Eiderous, who was held in prison in the UK in relation to immigration matters until 9 July 1999, when he succeeded in a habeas corpus application. Within hours a warrant was obtained from the USA on the basis of the testimony of a "cooperating witness" (ie a witness who would otherwise face a severe sentence in the absence of cooperation) and within 24 hours of his release he was arrested.
The case of Kassir. This Swedish national successfully challenged an extradition request by the US; the Swedish extradition treaty excludes Swedish nationals from extradition to the US. He was freed from prison. However, Kassir was also a Lebanese national. He was arrested in Prague airport while in transit to Lebanon, and subsequently extradited to the US (also on the basis of evidence of a "cooperating witness"). The Swedish press reported that was probably coordinated by the Swedish special police, SAPO, and that this type of coordination is the standard operating procedure of mutual assistance in transnational crime - link: (http://www.dn.se/nyheter/sverige/lag-alskar-bin-laden)
Louis B. Susman, the U.S. ambassador to Britain, said in February that America would 'wait to see how things work out in the British courts' before taking any action.It is further born out by reported comments to The Independent by "diplomatic sources."
Informal discussions have already taken place between US and Swedish officials over the possibility of the WikiLeaks founder Julian Assange being delivered into American custody, according to diplomatic sources.It is therefore clear that it would not make sense in the present circumstances for a US prosecutor to issue an extradition request to the United Kingdom.
Sources stressed that no extradition request would be submitted until and unless the US government laid charges against Mr Assange, and that attempts to take him to America would only take place after legal proceedings are concluded in Sweden.
Given the complexity of extradition law, where you end up churning into political bedrock wherever you dive, ultimately all 'expert opinion' on this point is speculative. Arguments that it would be easier to extradite from Sweden do not hinge solely on the treaties, but make reference to the pragmatic realities of London's larger and more robust legal community. They hold that while Assange would be more vulnerable to extradition de jure, he would be in a de facto stronger position. The UK's almost unilateral extradition treaty with the US is of course shameful, and arguments taking that into account certainly merit attention.
However, what David Allen Green fails to mention is that it is all moot. Neither the UK nor Sweden are attractive places from which to be fighting extradition to the United States. We can quibble over which is worse, but that's missing the point. The extradition case kept Assange pinned in the UK under bail conditions. Far from wishing to remain vulnerable to the terms of the UK-US treaty, Assange was forced to be. That "the United Kingdom would... swiftly comply with any extradition request from the United States" is most likely true. That only further justifies Assange's asylum bid.
While fighting the Swedish case, Assange was
detained in England under house arrest, and if extradited,
he would be detained
immediately in a
Swedish remand cell, awaiting a decision as to whether
to charge him. Either way, he was not in a good position. In
the absence of guarantees from Sweden that he would not be
extradited, he had a well-grounded fear of being extradited
to the United States. The question of which jurisdiction
would more readily roll over for the United States may
interest jurists, but for those interested in why Assange
sought asylum, it is a red herring.
If it were an espionage or computer offence in respect of his role at Wikileaks then... the actual extradition treaty between Sweden and the United States prohibits extradition for political or espionage offences.
14. Commentators have also speculated that Holder's reference to "other tools" could include 18 USC 1030, which prohibits the wilful retention, communication, or transmission of classified information retrieved by means of knowingly accessing a computer without (or in excess of) authorisation, with reason to believe that such information "could be used to the injury of the US, or to the advantage of any foreign nation." 18 USD 641 prohibits the theft or conversion of government property or records for one's own use or the use of another.
The treaty also prevents extradition where there is a death penalty.
Life imprisonment is something the government
of Ecuador explicitly said would violate Julian Assange's
human rights, and is something the risk of which formed
grounds for his receipt of asylum.
6. That legal evidence clearly shows that, given an extradition to the United States of America, it would be unlikely for Mr. Assange to receive a fair trial, and likely that he would be judged by special or military courts, where there is a high probability of suffering cruel and degrading treatment, and be sentenced to life imprisonment or capital punishment, which would violate his human rights;
On top of this, taking torture off the table
means whatever the US government says it means. The US
government does not officially, legally or internally use
the word 'torture' to refer to any of its torture methods.
The State Department cables released by WikiLeaks which deal
with the issue of extraordinary rendition through European
states paint a grim
picture of the trustworthiness of diplomatic
assurances that torture would not occur.
From a UN Note on Diplomatic Assurances and International Refugee Protection:
51. Diplomatic assurances would meet the suitability criterion only if they could effectively eliminate all reasonably possible manifestations of persecution in the individual case. The decision-maker would need to consider whether a person who may be subjected to a particular form of persecution linked to a 1951 Convention ground may be exposed to other kinds of serious harm for those reasons, even if the assurances would effectively eliminate a specific threat. For example, an undertaking given by the country of origin to the effect that an applicant would not be subjected to torture if he or she were to be extradited would not necessarily eliminate a risk of persecution in the form of excessive or disproportionate punishment, or serious discrimination which the individual concerned is likely to face independently of the criminal proceedings against him or her.
The UN Special Rapporteur has formally
found that Bradley Manning was treated in a manner
tantamount to cruel,
inhuman
or
degrading
treatment, and possibly torture. And yet the US
government denies that he has been mistreated. The US
president has declared his treatment "appropriate."
The
Swedish government has not clarified its position on the
treatment of Bradley Manning.
This makes it very easy to "take torture off the table," since it is never recognized that it is on the table. It simply isn't recognized as torture. But the treatment Bradley Manning was subjected to - recognized as possibly torture - is reasonably routine in the US prison system:
Just by itself, the type of prolonged solitary confinement to which Manning has been subjected for many months is widely viewed around the world as highly injurious, inhumane, punitive, and arguably even a form of torture. In his widely praised March, 2009 New Yorker article - entitled 'Is Long-Term Solitary Confinement Torture?' - the surgeon and journalist Atul Gawande assembled expert opinion and personal anecdotes to demonstrate that, as he put it, 'all human beings experience isolation as torture.' By itself, prolonged solitary confinement routinely destroys a person's mind and drives them into insanity. A March, 2010 article in The Journal of the American Academy of Psychiatry and the Law explains that 'solitary confinement is recognized as difficult to withstand; indeed, psychological stressors such as isolation can be as clinically distressing as physical torture.' For that reason, many Western nations - and even some non-Western nations notorious for human rights abuses - refuse to employ prolonged solitary confinement except in the most extreme cases of prisoner violence...
[T]he conditions under which Manning is being detained were once recognized in the U.S. - and are still recognized in many Western nations - as not only cruel and inhumane, but torture. More than a century ago, U.S. courts understood that solitary confinement was a barbaric punishment that severely harmed the mental and physical health of those subjected to it. The Supreme Court's 1890 decision in In re Medley noted that as a result of solitary confinement as practiced in the early days of the United States, many 'prisoners fell, after even a short confinement, into a semi-fatuous condition . . . and others became violently insane; others still, committed suicide; while those who stood the ordeal better . . . [often] did not recover sufficient mental activity to be of any subsequent service to the community.' And in its 1940 decision in Chambers v. Florida, the Court characterized prolonged solitary confinement as 'torture' and compared it to '[t]he rack, the thumbscrew, [and] the wheel.' The inhumane treatment of Manning may have international implications as well. There are multiple proceedings now pending in the European Union Human Rights Court, brought by 'War on Terror' detainees contesting their extradition to the U.S. on the ground that the conditions under which they likely will be held - particularly prolonged solitary confinement - violate the European Convention on Human Rights, which (along with the Convention Against Torture) bars EU states from extraditing anyone to any nation where there is a real risk of inhumane and degrading treatment. The European Court of Human Rights has in the past found detention conditions violative of those rights (in Bulgaria) where 'the [detainee] spent 23 hours a day alone in his cell; had limited interaction with other prisoners; and was only allowed two visits per month.' From the Journal article referenced above:
International treaty bodies and human rights experts, including the Human Rights Committee, the Committee against Torture, and the U.N. Special Rapporteur on Torture, have concluded that solitary confinement may amount to cruel, inhuman, or degrading treatment in violation of the International Covenant on Civil and Political Rights and the Convention against Torture and other Cruel, Inhuman, and Degrading Treatment or Punishment. They have specifically criticized supermax confinement in the United States because of the mental suffering it inflicts.
Sadly, the "multiple
proceedings now pending" referenced in the above
article are no longer pending. Among others, Babar Ahmed,
who spent nearly a decade of his life in detention in the
United Kingdom without trial, lost his case in the ECtHR. He
was surrendered to the United States on October 5th, 2012. If
Julian Assange is to draw any conclusions about the ECtHR
from the fate of Babar Ahmed and others, they must be
pessimistic conclusions.
In Sweden Assange would furthermore have the protection of any onward extradition requiring both the consent of the United Kingdom and Sweden.
One can add that there is no evidence whatsoever that the United Kingdom would not swiftly comply with any extradition request from the United States; quite the reverse. Ask Gary McKinnon, or Richard O'Dwyer, or the NatWest Three.
...it is not clear why the New Statesman's legal
correspondent thinks the fact that the UK Home Secretary would
have a veto on a US extradition is supposed to be of any
reassurance to Julian Assange. Yes, Theresa May would have a
political veto. Is anyone suggesting that there is a
legitimate chance that Theresa May will rally for Julian
Assange's rights in preference to sending him to the United
States?
The statement of the Ecuadorian Foreign Minister
suggests otherwise:
In the course of these conversations, our country has sought to obtain strict guarantees from the UK government that Assange would face, without hindrance, an open legal process in Sweden. These safeguards include that after facing his legal responsibilities in Sweden, that he would not be extradited to a third country; that is, ensuring that the Specialty Rule is not waived. Unfortunately, despite repeated exchanges of messages, the UK at no time showed signs of wanting to reach a political compromise, and merely repeated the content of legal texts.
It would not be legally possible for the Swedish government to give any guarantee about a future extradition, and nor would it have any binding effect on the Swedish legal system in the event of a future extradition request.
By asking for this 'guarantee', Assange is asking the impossible, as he probably knows. Under international law, all extradition requests have to be dealt with on their merits and in accordance with the applicable law; and any final word on an extradition would (quite properly) be with an independent Swedish court, and not the government giving the purported 'guarantee'.
Former Chilean dictator General Augusto Pinochet will not be extradited on torture charges and is free to leave the UK, Home Secretary Jack Straw has decided.Take the word of the Swedish and Australian governments. The Australian embassy in Stockholm sought advice from the Swedish government on the law in Sweden, through diplomatic channels. The embassy then communicated its findings to the Department of Foreign Affairs in a cable:
Mr Straw believes the general is medically unfit to stand trial in England.
Without any last-minute legal challenges, the general could be on a plane home within hours - ending 16 months of wrangling over his future.
Belgium, Spain and France have said they will not appeal, while Switzerland has indicated it is unlikely to do so.
General Pinochet slipped out of the Wentworth estate, Surrey - where he has been under house arrest - in a convoy under police escort just before 1000 GMT, avoiding angry protesters and media.
The process required a request from another state, a decision by Sweden's Supreme Court on whether extradition was possible, and finally a decision by government to go foward with the extradition. In the Swedish system of 'consensus decision-making', a decision by government entailed a decision by a Cabinet of Ministers. As advised previously, in cases where a European Arrest Warrant had been used, the consent of the surrendering state (in this case the UK) was also required. [...]The Government Offices of Sweden website concurs:
Any temporary surrender or extradition (to a non-EU or Nordic country) required the approval of the Prosecutor-General, the Supreme Court and then the Government (and, in Assange's ase, the UK Government due to the application of the European Arrest Warrant). The Swedish Government could deny an extradition or temporary surrender that the Supreme Court had approved, but if the Supreme Court denied an extradition or temporary surrender application, then the matter ended there. i.e. the Government could not approve a process that the Supreme Court had rejected. While the process for temporary surrender could begin before the court had made a final decision, the surrender would only occur after a guilty verdict and prison sentence had been delivered.
Any state that desires the extradition of a person must make a request for extradition to the Central Authority, enclosing the report of the investigation on which the application request is based.While hostile commentators in the English press are trying to convince English-speaking readers that Sweden cannot give guarantees, the Director of Public Prosecutions in Sweden is convincing Swedish readers of the converse. In Svenska Dagbladet, we learn that the Swedish government gives preemptive commitments about the outcome of extraditions quite frequently. Albeit, not to the people whose lives and human rights hinge on them. To the requesting states.
The Central Authority scrutinises the request to see if there is obvious reason why it should not be approved; if this is the case, the Government shall reject the request without delay. Otherwise the request is forwarded to the Office of the Prosecutor-General, which is required to determine whether the conditions for extradition laid down by law are met in this particular case. The actual investigation of the case follows the rules for preliminary investigations and is conducted by the regional or local public prosecution office in which district the person who is sought for extradition lives. If the person whose extradition is requested opposes extradition, it falls to the Supreme Court to examine whether extradition can be legally granted under the conditions laid down by law. The Supreme Court then delivers its opinion to the Government for use in its examination of the case. If the person involved does not oppose to extradition, the report from the investigation is instead delivered directly from the Prosecutor-General to the Government, which then makes its decision. If the request is approved, a date is set by which the person must be surrendered to the requesting state. With the assistance of Interpol, the police authority concerned determines a time and place for surrendering the person to the other state.
If the Supreme Court finds that there is any legal impediment to extradition, the Government is not allowed to approve the request. The Government can, however, refuse extradition even if the Supreme Court has not declared against extradition, as the law states that if certain conditions are fulfilled, a person "may" be extradited - not "shall" be extradited.
The usual procedure when there is an extradition request is that a country that wants to get hold of a suspected criminal will first make inquiries and examine if an extradition is possible, explains senior prosecutor Nils Rekke. If a country received information beforehand about whether there were any legislative obstacles in the country it is seeking the extradition from, then it is likely that there will be no formal request.The Swedish government is very keen to excuse the US government the inconvenience of fighting for an extradition in the courts only to find the extradition vetoed by the government. It therefore discretely lets the US government know whether or not it will veto the extradition in advance. This thoughtfulness does not extend to defendants, who also must do without the considerable resources of the United States government. The question of whether or not the Swedish government will veto their extradition is only for them to know once they have fought through multiple stages of appeal in the courts, exhausting limited resources, and probably while enduring detention in one of Sweden's famous remand prisons.
Do countries look carefully at the conditions, so that one only hands in a formal request if one is almost sure that it will result in an extradition?
Yes, one wants to be assured, so that it doesn't result in a rejection. Just like we do not want to put time and effort into trying to get another country to extradite someone even though one knows that it is against the laws in that country. Then there is no point in doing it, says Nils Rekke. This is why there may be cases in which the US has wanted to extradite someone, but got an informal no and therefore not put in a request. One way to come with such an informal request is to put in an Interpol arrest warrant. Then a country in practice says that if a person finds himself in our country, then we want him or her handed over. But if Sweden finds reasons against handing out the person then the US will presumably not make a formal request. The national police authority does not keep statistics about how many times the United States has requested someone via Interpol who was in Sweden, but who was not extradited. This is why there is no way to know with certainty if, and how many times, the United States has wanted to get someone extradited without formally requesting their extradition.
A strongly-worded letter from US attorney general Eric Holder was due to be delivered to Mrs May's office at the Home Office last night. The row over Mr McKinnon has turned into the biggest cooling in trans-Atlantic relations since Lockerbie bomber was released three years ago.
Senior US officials are now understood to describe the relationship between the Obama administration and Mrs May as 'finished' . Mr Holder is understood to feel 'completely screwed' by Mrs May's decision not to extradite Mr McKinnon because of doctors' fears that he might kill himself, complaining that the US has wasted millions of pounds on legal fees for the case.
The Daily Telegraph understands that Mr Holder has refused to return Mrs May's phone calls since her surprise announcement on Tuesday. The depth of ill-feeling could jeopardise co-operation with the US over security because Mrs May leads for the UK in talks with Washington.
A senior administration official said: 'This was a cheap political trick by Theresa May to further her political career. 'Mrs May told us in July that there were no legal or medical grounds to block his extradition, and then she changed her mind without having the decency to inform us.' The official said the row had comparisons with row over the Scottish Government's decision to release Lockerbie bomber Abdelbasset Al Megrahi in 2009. The source said: 'After all the controversy over the release of the Lockerbie bomber to Libya on humanitarian grounds, this decision on Gary McKinnon does not inspire confidence that the British government is serious about dealing with serious security issues.' As late as Monday evening, American officials were so sure that Mrs May would extradite Mr McKinnon that they had prepared a plane to come to get him.
My implicit contention was that any decision to extradite Assange would be subject to judicial oversight in respect of compliance with international law, as well as national law. This would be because any decision to extradite would ultimately be under the terms of the relevant treaty between Sweden and the United States.
However, an American legal blogger has challenged me and has even demanded in a Guardian blogpost an apology and retraction from the New Statesman. His concern is whether the government or the courts have the final word.
Unfortunately, it would appear that he made a simple mistake and missed that any extradition of Assange would have to comply with international law, and not just national law.
On this I am grateful for confirmation from Swedish legal scholars Mark Klamberg and Pål Wrange.
Klamberg's view is:
if there is an extradition treaty the Government is bound by an international obligation to extradite and it is only for legally sound reasons that it may refuse. An extradition treaty limits in a considerable way the discretion of the Government to deviate from the ruling of the Supreme Court.
Wrange's view is:
To put it shortly, Green is right, but his argument can be misinterpreted (no need to develop that here, though). As Klamberg has explained in his blog post on the Swedish extradition procedure, the Government always makes the final decision. However and this is a very important caveat even if the Government has leeway under national law, it is bound by international law. Both the Swedish and the UK Governments have extradition agreements with the US, and these agreements provide that extradition shall take place, if the legal requirements are met. Hence, the Government could not provide a guarantee, without potentially violating an international obligation.
[T]he state of Ecuador can confirm,following analysis of the legal institutions related to asylum, that the foundation of these rights has set out fundamental principles of general international law, the same as for its universal scope and importance, because of its consistence with the general interest of the entire international community, and full recognition by all states. These principles, which are set forth in various international instruments are as follows:The principle of "non-refoulement" places obligations on Ecuador and Sweden (not to mention the United Kingdom). The principle is defined as:Ecuador has judged that the laws applicable to the asylum case of Mr. Julian Assange comprise the entire set of principles, standards, mechanisms and procedures provided for international human rights instruments (whether regional or universal), which include among their provisions the right to seek, receive and enjoy asylum for political reasons, the conventions governing the right of asylum and refugee law, and which recognize the right not to be delivered, returned, or expelled when credible fear of political persecution exists; conventions governing extradition law recognize the right not to be extradited when this measure covers political persecution, and conventions governing humanitarian law, recognize the right not to be transferred when there is a risk of political persecution. All these forms of asylum and international protection are justified by the need to protect this person from possible political persecution, or a possible accusation of political crimes and / or crimes related to the latter, which in the opinion of Ecuador, not only endanger Mr. Assange, but also pose a serious injustice committed against him.
Asylum in all its forms is a fundamental human right creating obligations erga omnes, ie “for all” states.
Diplomatic asylum, refuge (or territorial asylum), and the right not to be extradited, expelled, delivered or transferred, are comparable human rights, since they are based on the same principles of human protection: non-refoulement and non-discrimination without any adverse distinction based on race, color, sex, language, religion or belief, political or other opinion, national or social origin, property, birth or other status or any other similar criteria.
All these forms of protection are governed by the principles pro person (i.e. more favourable to the individual), equality, universality, indivisibility, interrelatedness and interdependence.
The protection occurs when the State granting asylum, required refuge, or powers of protection, consider that there is a risk or fear that the protected person may be a victim of political persecution, or is charged with political offences.
The State granting asylum qualifies the causes of asylum and extradition case, weigh the evidence.
No matter which of its forms or modality, asylum always has the same cause and lawful object, i.e. political persecution,which makes it permissible, and to safeguard the life, personal safety and freedom of the protected person, which is its legitimately intended purpose.
The right of asylum is a fundamental human right, therefore, belongs to jus cogens, i.e. the system of mandatory rules of law recognized by the international community as a whole, for which no derogation is permitted, making null all treaties and provisions of international law which oppose it.
In cases not covered by existing law, the human person remains under the protection of the principles of humanity and the dictates of public conscience, or are under the protection and rules of the principles of jus gentium derived from established customs, the principles of humanity and from dictates of public conscience.
The lack of international agreement or domestic legislation of States cannot legitimately be invoked to limit, impair or deny the right to asylum.
The rules and principles governing the rights to asylum or refuge, no extradition, no handing over, no expulsion and no transfer are convergent, to the extent necessary to enhance the protection and provide it with maximum efficiency.In this sense, they are complementary to the international human rights law, the right of asylum and refugee law, and humanitarian law.
The rights of protection of the human being are based on ethical principles and universally accepted values and therefore have a humanistic, social, solidaric, peaceful and humanitarian character.
All States have a duty to promote the progressive development of international human rights through effective national and international action.
A core principle of refugee law that prohibits States from returning refugees in any manner whatsoever to countries or territories in which their lives or freedom may be threatened. The principle of non-refoulement is a part of customary international law and is therefore binding on all States, whether or not they are parties to the 1951 Convention.Non-refoulement is not limited to "countries of origin."
As to the words "where his life or freedom would be threatened", it appears from the travaux préparatoires that they were not intended to lay down a stricter criterion than the words "well-founded fear of persecution" figuring in the definition of the term "refugee" in Article 1 A (2). The different wording was introduced for another reason, namely to make it clear that the principle of non-refoulement applies not only in respect of the country of origin but to any country where a person has reason to fear persecution.To take but one interpretation under one human rights instrument, the UN Committee Against Torture (UNCAT) has held that the danger must be assessed not just for the receiving state, but for any state to which the person may subsequently be taken. So, Ecuador must take account of the risk that Julian Assange might end up in the United States if extradited to Sweden, or released into British custody:
2. The Committee is of the view that the phrase "another State" in article 3 [of the Convention Against Torture] refers to the State to which the individual concerned is being expelled, returned or extradited, as well as to any State to which the author may subsequently be expelled, returned or extradited.The interplay of extradition and the international protection of refugees is a matter of some complexity, but it is common in refugee law, since extradition is the primary legal mechanism by which refugees can be snatched out of protective refuge.
When refugees or asylum-seekers are subject of an extradition process,the interface between extradition law and international refugee law raises questions critical to the protection of refugees and asylum-seekers. A lack of understanding of the interlinkages between the two bodies of law could risk refoulement of asylum-seekers and refugees.International refugee law has primacy over extradition law. The principle of non-refoulement creates an overriding obligation on states, whether deriving from international treaties to which they are a signatory or from customary international law, which prevails over international obligations deriving from bilateral or multilateral extradition treaties.
There is thus a felt need to clarify the applicability of refugee protection principles in the context of extradition proceedings. With this in mind, UNHCR has issued a “Guidance Note on Extradition and International Refugee Protection”.
The Guidance Note seeks to provide guidance on both substantive as well as procedural issues, arising in the context of extradition of asylum-seekers or refugees and sets out UNHCR’s position in these areas. More specifically, the Note examines in detail a requested State’s non-refoulement obligations under international refugee and human rights law in the context of extradition proceedings concerning a refugee or an asylum-seeker, explores the extent to which existing principles and provisions of extradition law correlate with the principle of non-refoulement, and addresses questions related to extradition procedures, setting out safeguards required to ensure full consideration of the special situation of refugees and asylum-seekers.
230. The prohibition of refoulement of refugees or asylum-seekers is binding on States regardless of whether or not it is explicitly provided for in an extradition treaty or legislation. Article 33 of the 1951 Convention establishes a fundamental humanitarian norm, from which no derogation is permitted. In the view of the Executive Committee, it is “progressively acquiring the character of a peremptory rule of international law”.What this means is that the prohibition on refoulement binds states even more than international extradition treaties do. Sweden may be bound by its treaty with the US from using its veto except for "legally sound reasons," but it is bound even more strongly from refoulement. If they conflict, and it has to choose, it has to decide against refoulement. Therefore, its obligations against refoulement are "legally sound reasons" to veto a US extradition.
231. For States Parties to the 1951 Convention or the 1967 Protocol, the obligation to protect refugees and asylum-seekers from refoulement prevails over any duty to extradite which they may have under a bilateral or multilateral extradition treaty with respect to a State requesting extradition. As described at para. 41 above, the precedence of protection against refoulement under the 1951 Convention over obligations arising from extradition treaties or conventions is based on States’ obligations under Article 103, in combination with Articles 55(c) and 56 of the UN Charter. The same provisions establish the primacy of the obligation to provide protection against refoulement under international human rights treaties over extradition duties between States.
232. States which have not yet become parties to the 1951 Convention and/or 1967 Protocol are bound by the prohibition of refoulement under customary international law, in addition to any treaty obligations they may have under international or regional human rights law. [...]
1. Extradition and recognised refugees
a. Requests for the extradition of a recognised refugee
262. Extradition requests may concern persons determined to be refugees (i) by the requested State itself; (ii) by a State other than the requested State, including the State seeking the refugee’s extradition; or (iii) by UNHCR. As seen above, many countries have enacted legislation which prohibits the extradition of a refugee437. In some cases, the relevant provisions explicitly refer only to extradition relations with the country of origin. Yet the prohibition of extradition which would amount to refoulement applies with respect to any country where the person concerned has a well-founded fear of persecution, including where this danger results from the possibility of re-extradition or any other form of removal to a third country where he or she would face persecution.
ii. A country other than the country of asylum as requested StateSweden, in other words, has some political discretion. It could make clear to Ecuador that it considers itself bound by Ecuador's recognition of Julian Assange's status as a refugee This would mean that it could give a guarantee that the provisions of its national law which prohibit refugees will be strictly applied in all cases.
264. The requested State must also abide by the prohibition of refoulement when it decides on the extradition of a person who has been granted refugee status in another State. A determination by a State that a person is a refugee under the 1951 Convention is not only binding on the authorities of the country concerned but also extraterritorially, at the very least with respect to other States Parties to the 1951 Convention. [...]
265. In practice, States deal with such cases in different ways. Some countries consider themselves bound by the foreign refugee status recognition and apply the provisions of their national law which prohibit the extradition of refugees. Others require a transfer of refugee status in such cases. Yet others do not regard a refugee status determination by another State as binding and conduct their own inquiries into the danger of persecution. In determining the extradition request, they are bound by their own obligation to respect the principle of non-refoulement under international refugee law, human rights law and customary international law.
266. The fact that the wanted person was recognised as a refugee by another State should, at a minimum, alert the requested State to their special status and the need to ensure that they are not exposed to a danger of persecution if extradited. The requested State should contact the authorities of the country which recognised the person concerned as a refugee to obtain the full facts of his or her case, and to enable that country to exercise diplomatic protection, if it so wishes.
Ecuador raised the possibility that the Swedish government establish guarantees to not subsequently extradite Assange to the United States. Again, the Swedish government rejected any compromise in this regard.All of this is a statement of the law with respect to but one of the international and regional instruments for the protection of refugees and asylum seekers. It alone provides multiple modalities by which the Swedish government could effectuate guarantees that may be satisfactory to Ecuador, and allow Ecuador to fulfill its international obligations.
It is undeniable that states, having agreed to numerous and substantive international instruments (many of them legally-binding), have the obligation to provide protection or asylum to persons persecuted for political reasons and have expressed their desire to establish a legal institution to protect human rights and fundamental freedoms based on a general practice accepted as law, which confers on such obligations a mandatory nature, erga omnes, linked to the respect, protection and progressive development of human rights and fundamental freedoms that are part of jus cogens. Some of these instruments are mentioned below:Sweden is a also signatory to an array of human rights treaties and covenants, such as the ECHR, the ICCPR, the CAT, and others. These create obligations on the Swedish state under international law. Sweden is bound to uphold many of its obligations under these conventions, even in cases where they clash with its obligations under the bilateral extradition treaty with the United States. In some cases, the resolution of questions on them is for the Swedish courts, but the Swedish government is also empowered to state the law and procedure on these questions, and to engage with the Ecuadorian government on how the two countries can reach a consensus on how to progress the matter. This, too, could effectuate "guarantees," broadly construed. But Sweden has "rejected any compromise."
The Government of Ecuador believes it is important to note that the rules and principles recognized in the international instruments mentioned above and in other multilateral agreements take precedence over domestic law of States, because these treaties are based on universal rules guided by intangible principles, whereof deriving greater respect, protection and fulfilment of human rights against unilateral attitudes of such States. This would compromise international law, which should instead be strengthened in order to consolidate the respect of fundamental rights in terms of integration and ecumenical character.
United Nations Charter of 1945, Purposes and Principles of the United Nations the obligation of all members to cooperate in the promotion and protection of human rights;
Universal Declaration of Human Rights 1948 right to seek and enjoy asylum in any country, for political reasons (Article 14);
Declaration of the Rights and Duties of Man, 1948 right to seek and enjoy asylum for political reasons (Article 27);
Geneva Convention of August 12, 1949, relative to the Protection of Civilian Persons in Time of War the protected person should in no case be transferred to a country where they fear persecution for his political views ( Article 45);
Convention on the Status of Refugees 1951 and Protocol of New York, 1967 prohibits returning or expelling refugees to countries where their lives and freedom would be threatened (Art. 33.1);
Convention on Diplomatic Asylum, 1954 The State has the right to grant asylum and classify the nature of the offense or the motives of persecution (Article 4);
Convention on Territorial Asylum of 1954 the State is entitled to admit to its territory such persons as it considers necessary (Article 1), when they are persecuted for their beliefs, political opinions or affiliation, or acts that may be considered political offenses ( Article 2), the State granting asylum may not return or expel a refugee who is persecuted for political reasons or offenses (Article 3); also, extradition is not appropriate when dealing with people who, according to the requested State, be prosecuted for political crimes , or common crimes committed for political purposes, or when extradition is requested obeying political motives (Article 4);
European Convention on Extradition of 1957 prohibits extradition if the requested Party considers that the offense is a political charge (Article 3.1);
2312 Declaration on Territorial Asylum of 1967 provides for the granting of asylum to persons who have that right under Article 14 of the Universal Declaration of Human Rights, including persons struggling against colonialism (Article 1.1). It prohibits the refusal of admission, expulsion and return to any State where he may be subject to persecution (Article 3.1);
Vienna Convention on the Law of Treaties of 1969 provides that the rules and principles of general international law imperatives do not support a contrary agreement, the treaty is void upon conflicts with one of these rules (Article 53), and if there arises a new peremptory norm of this nature, any existing treaty which conflicts with that provision is void and is terminated (Article 64). As regards the application of these Articles, the Convention allows States to claim compliance with the International Court of Justice, without requiring the agreement of the respondent State, accepting the court’s jurisdiction (Article 66.b). Human rights are norms of jus cogens.
American Convention on Human Rights, 1969 right to seek and enjoy asylum for political reasons (Article 22.7);
European Convention for the Suppression of Terrorism of 1977 the requested State is entitled to refuse extradition when there is a danger that the person is prosecuted or punished for their political opinions (Article 5);
Inter-American Convention on Extradition of 1981 the extradition is not applicable when the person has been tried or convicted, or is to be tried in a court of special or ad hoc in the requesting State (Article 4.3), when, under the classification of the requested State, whether political crimes or related crimes or crimes with a political aim pursued, and when, the circumstances of the case, can be inferred that persecution for reasons of race, religion or nationality; that the situation of the person sought may be prejudiced for any of these reasons (Article 4.5). Article 6 provides, in reference to the right of asylum, that “nothing in this Convention shall be construed as limiting the right of asylum, when appropriate.”
African Charter on Human and Peoples of 1981 pursued individual’s right to seek and obtain asylum in other countries (Article 12.3);
Cartagena Declaration of 1984 recognizes the right to seek refuge, not to be rejected at the border and not to be returned.
Charter of Fundamental Rights of the European Union 2000 establishes the right of diplomatic and consular protection. Every citizen of the Union shall, in the territory of a third country not represented by the Member State of nationality, have the protection of diplomatic and consular authorities of any Member State, under the same conditions as nationals of that State (Article 46).
Ecuador raised the possibility that the Swedish government establish guarantees to not subsequently extradite Assange to the United States. Again, the Swedish government rejected any compromise in this regard.This is why the present case is at an impasse. It might properly be asked why the Swedish government, which is typically sanguine about "consensus decision making," is so averse to moving itself to form a consensus with the government of Ecuador.
Do countries look carefully at the conditions, so that one only hands in a formal request if one is almost sure that it will result in an extradition?Has Sweden given informal (and deniable) guarantees to the United States that it will not obstruct a future extradition to the US? There is no way to know for sure. But according to The Independent...
Yes, one wants to be assured, so that it doesn't result in a rejection. Just like we do not want to put time and effort into trying to get another country to extradite someone even though one knows that it is against the laws in that country. Then there is no point in doing it, says Nils Rekke. This is why there may be cases in which the US has wanted to extradite someone, but got an informal no and therefore not put in a request.
Informal discussions have already taken place between US and Swedish officials over the possibility of the WikiLeaks founder Julian Assange being delivered into American custody, according to diplomatic sources.
Sources stressed that no extradition request would be submitted until and unless the US government laid charges against Mr Assange, and that attempts to take him to America would only take place after legal proceedings are concluded in Sweden.
Apologists for the idea of extraditing Julian
Assange to Sweden without adequately safeguarding his rights
argue that he should not ask for safeguards now, because he
can always challenge a US extradition later. The New
Statesman's legal correspondent raises a dazzling
array of possibilities for further legal challenges, as,
presumably, Assange gets closer and closer to ending up
facing a political trial in the United States.
And the Swedish government is bound by international law in dealing with any United States extradition request (if one was ever made). It would be a matter for a Swedish court as to whether the government was in breach of its international obligations in ordering extradition. And this would be in addition to any legal challenges which Assange could bring against an extradition decision under Swedish, EU and ECHR law, and any actions against the UK government given that their consent would also be required.
He was on bail here. Is the system the same in Sweden?
Mr Assange has been on bail in the UK and has had to stay at an agreed address (a house in Suffolk owned by a friend), report daily to local police and wear an electronic tag, but has had free access to the internet, telephone and visitors. In the UK, there is a presumption in favour of bail unless the prosecution can show that there is a need for the person to be held on remand. The system in Sweden is very different. Effectively, the presumption is in favour of detention and restrictions usually apply to the person's activities and contact with the outside world (see further below).
Do people ever get bail in Sweden?
Hardly ever, especially if they are not Swedish nationals or residents. Sweden does have alternatives to custody, including travel bans and an obligation to report to a police station, but these are only used for vulnerable people (including minors) or in cases where the alleged offence is not punishable by a prison sentence. This might explain why, in 2010/2011, 24% of the total prison population in Sweden was awaiting trial, compared to 10% in England and Wales.
Does this mean Julian Assange won't get bail?
His chances of doing so are slim. The alleged offences are rape (as defined under Swedish law), unlawful coercion and two cases of sexual molestation. All of these offences carry a maximum sentence of more than one year in prison under Swedish law. Coupled with the fact that he is not a Swedish national or resident, Julian Assange is unlikely to get bail in Sweden. This is despite the fact that he has observed all his bail conditions in the UK for over a year.
What sort of conditions could he be held in pre-trial?
Mr Assange could be held in isolation and barred from communicating with anyone other than his lawyers. He may be subjected to a range of restrictions such as:
There has been international criticism of these conditions. The Council of Europe has reported ongoing concerns about remand conditions in Sweden and that many people feel that they are prevented from contacting family members to 'break' them. The US State Department has also noted that people are often subject to extended isolation and severe restriction on their activities whilst awaiting trial.
isolationmeaning that he is held in his cell for up to 23 hours a day;
no visits from anyone other than his lawyer or a priest;
restrictions on phone calls and written correspondence;
limited contact with other detainees; and
lack of access to newspapers, radio and television.
How likely is he to have these restrictions imposed on him?
The above restrictions are only meant to be used if the Swedish court believes the suspect will contact associates who might tamper with evidence or impede the investigation. Given that the evidence in Mr Assange's case has been secured, there should be no such risk. In practice, however, these restrictions are routinely imposed without any clear or transparent reasons given for them. In the Stockholm prison of Kronoberg, for example, they apply to around 70% of remand prisoners.
How long could Mr Assange be held for before trial?
There is no maximum period of pre-trial detention in Sweden, though in practice average periods are short compared to many EU countries... there is no time limit in which the charges themselves must be brought.
[T]here are a number of dramatic events that occurred just beforehand. First of all, the Swedish government publicly announced that it would detain me without charge in prison under severe conditions. On the same evening, the UK government security contractors that maintained the electronic manacle around my leg turned up unannounced at 10.30pm and insisted on fitting another manacle to my leg, saying that this was part of routine maintenance - which did not sound to be credible. [...] Then the next day, the Crown Prosecution Service, acting we believe on behalf of the Swedish government, requested that the 14 days that I had to apply to the European Court of Human Rights, be reduced to zero.The government of Ecuador specifically recognized that the extradition to Sweden would foreclose any future possibility of seeking asylum from persecution by the United States government.
10. That, following several public statements and diplomatic communications by officials from Britain, Sweden and the USA, it is inferred that these governments would not respect international conventions and treaties, and would give priority to domestic law, in violation of explicit rules of universal application,It is clear that, by seeking asylum, Julian Assange put himself in a better position to prevent extradition to the United States. As an asylee, Assange's rights are the express responsibility of the Ecuadorian government, which has committed to ensuring that the Swedish case is progressed without exposure to a United States prosecution. Instead of gambling his fate on the outcome of potentially decades of gruelling, compromised appeals against a possible US extradition, a solution for Assange and Sweden must now be found explicitly within the political sphere, with Assange's human rights baked in. There is every reason to expect that good faith negotiations would deliver, if only they would be joined.
11. That, if Mr. Assange is remanded to custody in Sweden (as is customary in this country), a chain of events would begin that would prevent further protective measures from being taken to avoid possible extradition to a third country.
Assange's supporters often refer to the dreadful 2001 case of Agiza and Al-Zery. Here, in an extra-judicial move, two men were renditioned by Sweden to Egypt at the request of the CIA.
Is this case analogous to the Assange extradition? The first answer is that there is a distinction between judicial and extra-judicial activities and Assange is wanted for a judicial process. Second, rendition is not extradition. Third, the Agiza and Al-Zery case caused scandal in Sweden leading, among other things, to payments of substantial compensation once the judicial system was engaged. It was an awful incident but it is not one which carries over easily to the Assange situation.
But in any case, it appears that in 2006 Sweden stopped rendition flights for the USA. This was reported in December 2010 following a disclosure.
The disclosure was by Wikileaks.
Sweden apprehended individuals and transferred them to CIA custody for extraordinary rendition. It also permitted use of its airspace and airports for extraordinary rendition operations.While the Swedish government and other governments had been complicit with rendition flights for years, public awareness of rendition was relatively recent, having been exposed by the UK journalist Stephen Grey in late 2004 (Grey went on to work with Assange in 2010 on the wars in Afghanistan and Iraq), and in the Washington Post in 2005. Rendition had just become an issue in European politics, with Dick Marty's appointment to lead an investigation by the Council of Europe. Pressure was beginning to mount on all European governments over the rendition issue.
The Government of Sweden concern appears to have grown out of reports of "CIA Planes" landing at European airports...In his haste to bury the Agiza/Al-Zery case, Green insists that "the Agiza and Al-Zery case caused scandal in Sweden leading, among other things, to payments of substantial compensation once the judicial system was engaged."
The questions appear to be directed at finding out whether this flight was for renditions or prisoner transfers connected with the war on terror -- a sensitivity Hultgren mentioned to us explicitly. The press did not report on this flight, but picked up on the February flight, which was correctly reported as being a deportation flight. Any subsequent flights should anticipate the same questions, and be prepared to provide answers at least 20 days ahead of the flight. What is not yet clear is whether the new requirements are simply an indication of a government sensitive to the renditions/prisoner transfer issue in the run-up to general elections in September, or if Sweden wants to make the clearance process so difficult that we will seek other refueling venues. What is clear is that if we wish to continue using Sweden as a refueling point, we will have to become accustomed to these and perhaps more questions.
In December 2001, the Swedish Security Police secretly apprehended Ahmed Agiza and Muhammed al-Zery (both Egyptian nationals seeking asylum in Sweden) and handed them over to U.S. officials who flew them to Egypt where they were tortured. Prior to their transfer, U.S. officials cut off their clothes with scissors, forcibly administered sedatives by suppository, swaddled them in diapers, and dressed them in orange jumpsuits before ordering them to be blindfolded, placed in handcuffs and leg irons, and flown to Cairo on a U.S. registered Gulfstream V jet. The two men report that they were tortured while detained in Egypt; they were subjected to electric shocks to their genitals and forced to lie on an electrified bed frame.High ranking Swedish officials have been implicated in the political decisions around the Agiza/Al-Zery case. These include Thomas Bodström, (Claes Borgström's law partner and then Minister for Justice) and Anna Lindh (then Foreign Minister). They also allegedly include Sven Olof-Petersson, who was then the Director General for Political Affairs, but is now the Swedish Ambassador to Australia, and who recently told the Sydney Morning Herald that the ''Swedish judicial system is transparent and independent'' and that Assange should have ''full confidence in the Swedish judicial process''. The Agiza/Al-Zery case also involved Swedish military, police and intelligence.
In the case of Muhammed al-Zery, who was abused at Bromma airport in Sweden prior to being extraordinarily rendered to Egypt by the Swedish government (acting in concert with the United States), the Human Rights Committee observed that 'the State party is under an obligation to ensure that its investigative apparatus is organized in a manner which preserves the capacity to investigate, as far as possible the criminal responsibility of all relevant officials, domestic and foreign, for conduct in breach of article 7 committed within its jurisdiction and to bring appropriate charges in consequence.' The committee found that Sweden's failure to conduct an effective investigation in this case violated its obligations under Article 7 of the ICCPR, read in conjunction with Article 2 of the covenant. The European Court of Human Rights has similarly found, with respect to breaches of Article 3 of the European Convention on Human Rights, that contracting states are required to conduct effective investigations capable of 'leading to the identification and punishment of those responsible.'The Agiza/Al-Zery case is only the most serious and well-documented of Sweden's contributions to a general trend within Europe of aiding the deterioration of the rule of law post-9/11, enabling and collaborating in the disappearance and trafficking of human beings outside of any judicial process into torture facilities and secret prisons. Sweden shares this disgraceful legacy with many other "liberal democracies."
Secret detention and extraordinary rendition operations, designed to be conducted outside the United States under cover of secrecy, could not have been implemented without the active participation of foreign governments. These governments too must be held accountable...While US pressure has compromised many countries, Sweden is one of only two known EU countries (the other being Macedonia) to have gone so far as to assist the CIA in kidnapping people who had legally been admitted to its territory.
However, to date, the full scale and scope of foreign government participation-as well as the number of victims-remains unknown, largely because of the extreme secrecy maintained by the United States and its partner governments... The United States also has refused to disclose the identities of the foreign governments that participated in secret detention or extraordinary rendition, and few of these governments have admitted to their roles.
The report also shows that as many as 54 foreign governments reportedly participated in these operations in various ways, including by hosting CIA prisons on their territories; detaining, interrogating, torturing, and abusing individuals; assisting in the capture and transport of detainees; permitting the use of domestic airspace and airports for secret flights transporting detainees; providing intelligence leading to the secret detention and extraordinary rendition of individuals; and interrogating individuals who were secretly being held in the custody of other governments.
Foreign governments also failed to protect detainees from secret detention and extraordinary rendition on their territories and to conduct effective investigations into agencies and officials who participated in these operations. The 54 governments identified in this report span the continents of Africa, Asia, Australia, Europe, and North America, and include: Afghanistan, Albania, Algeria, Australia, Austria, Azerbaijan, Belgium, Bosnia-Herzegovina, Canada, Croatia, Cyprus, the Czech Republic, Denmark, Djibouti, Egypt, Ethiopia, Finland, Gambia, Georgia, Germany, Greece, Hong Kong, Iceland, Indonesia, Iran, Ireland, Italy, Jordan, Kenya, Libya, Lithuania, Macedonia, Malawi, Malaysia, Mauritania, Morocco, Pakistan, Poland, Portugal, Romania, Saudi Arabia, Somalia, South Africa, Spain, Sri Lanka, Sweden, Syria, Thailand, Turkey, United Arab Emirates, United Kingdom, Uzbekistan, Yemen, and Zimbabwe.
The three European men with Somali roots were arrested on a murky pretext in August as they passed through the small African country of Djibouti.The unmistakable pattern of official complicity, borne out in official report after offical report on extraordinary rendition, and in cables released by WikiLeaks ranging over the last decade, is slowly emerging in this case. The Bureau of Investigative Journalism reports:
But the reason soon became clear when they were visited in their jail cells by a succession of American interrogators.
U.S. agents accused the men - two of them Swedes, the other a longtime resident of Britain - of supporting al-Shabab, an Islamist militia in Somalia that Washington considers a terrorist group. Two months after their arrest, the prisoners were secretly indicted by a federal grand jury in New York, then clandestinely taken into custody by the FBI and flown to the United States to face trial.
The secret arrests and detentions came to light Dec. 21 when the suspects made a brief appearance in a Brooklyn courtroom.
The men are the latest example of how the Obama administration has embraced rendition - the practice of holding and interrogating terrorism suspects in other countries without due process - despite widespread condemnation of the tactic in the years after the Sept. 11, 2001, attacks.
Renditions are taking on renewed significance because the administration and Congress have not reached agreement on a consistent legal pathway for apprehending terrorism suspects overseas and bringing them to justice.
[...]
Authorities in Sweden and Britain had monitored the three men for years as they traveled back and forth to Somalia, but neither country assembled enough evidence to press criminal charges.
'These guys are well known to Swedish security forces,' said a Swedish official, who spoke on the condition of anonymity to discuss intelligence matters.
Sweden's security agencies have cooperated in the past with U.S. officials on rendition cases by sharing intelligence about targets. Mark Vadasz, a spokesman for the Swedish Security Police Service, declined to comment on whether the agency played a role in the cases involving Yusuf and Ahmed.
Last summer, before he was detained in Djibouti, British authorities notified Hashi's family that they were taking the unusual step of stripping him of his citizenship, citing his 'extremist' activities.
Hashi and his family have denied the allegation. In 2009, Hashi filed an official complaint of harassment against MI5, Britain's domestic intelligence agency, saying agents had pressured him to become an informant.
A spokesman for Britain's Home Office, which issued the citizenship order, declined to comment or to say whether British officials cooperated with the United States on the rendition.
Asim Qureshi, executive director of CagePrisoners, a British human rights group that has advocated on behalf of Hashi, said the case was too weak to pass muster in a European court.
'A cynic would say it's easier to get a conviction under spurious evidence in the United States than anywhere else,' he said. 'Just alleging somebody is a member of al-Shabab won't get you very far in the U.K. A judge would just throw out the case before it even gets started.'
The Bureau can further reveal that before the rendition to the US, there were behind-the-scenes efforts to have the two Swedes returned to their home country. Hashi, on the other hand, was stripped of his British citizenship by the home secretary, Theresa May, shortly before he was apprehended last summer. The Foreign Office told Hashi's UK lawyers it could not help in his case as he was no longer British. [...]In Sweden, the national radio service looks into Swedish official involvement in the affair:
The Swedish men were entitled to support from their embassy in Djibouti, and their families were informed of their whereabouts two months after their capture.
For some weeks before the rendition, there were secret negotiations between Djibouti and Stockholm for the return of the two Swedish nationals. Thomas Olsson, lawyer for the families, said that talks were well-advanced.
'But then suddenly we got the information that they were sitting on a plane somewhere over the Atlantic on their way to the United States,' he said.
In 2010 prosecutor Agnetha Hilding Qvarnström decided to start a case against a Swedish citizen that she suspected was the man in the video. She is at the prosecutors' office that deals with security issues.All of this is contrary to the recommendations of the recent Open Society Justice Initiative report on extraordinary rendition:
But she dropped this case, just days before the Swedish Foreign Ministry was told that the man she had wanted was held in Djibouti.
Prosecutor Agnetha Hilding Qvarnström says that she made this decision when she had just got back from holiday. And that she had no idea that the men were in Djibouti. [...]
Prosecutor Qvarnström says she does know, that it looks like an unusual coincidence, that her case was abandoned just before the men were taken in Djibouti.
There are other questions remaining on the Swedish side. How much was the foreign ministry involved in the US operation to take the two men? Foreign Minister Carl Bildt says Sweden was not informed before the transfer to the USA.
But secret documents released to Swedish Radio show that just two days before the two men were taken to the USA, the Swedish embassy in Ethiopia got an urgent message from the foreign ministry, concerning the two, who were then held in Djibouti.
Did this message warn that the US was planning to take the men? We cannot say - because the message itself and the reply to it are still secret. So far no one from the foreign ministry has been available to answer Swedish Radio's questions about this sudden alert from Africa, and what it was about.
What we do know is that when the two men were taken to the USA, Swedish diplomats were not allowed to see them. We know from diplomatic papers that the Swedish consulate told the Americans that the two imprisoned Swedish citizens had the right to see embassy staff, and to be told that they had this right. Still, there was no visit until just before the FBI decided to go public with the case.
Defence lawyer Ephraim Savitt tells Radio Sweden that "No one was permitted to know about the existence of the case and the identity of the defendants", until the case was ready to be presented to the public.
It is unlikely that Julian Assange would be rendered to the United States. That is not the purpose of drawing attention to the Agiza/Al-Zery case, or to the new case. The purpose of drawing attention to these cases is to demonstrate that the widespread prejudices such as this...RECOMMENDATIONS TO OTHER GOVERNMENTS THAT PARTICIPATED IN CIA SECRET DETENTION AND EXTRAORDINARY RENDITION OPERATIONS
Refuse to participate in CIA extraordinary rendition.
Refuse to participate in secret detention, including at the behest, or with the involvement, of any U.S. agency or any other government.
Disclose information relating to human rights violations associated with CIA secret detention and extraordinary rendition operations, including but not limited to the identities of all individuals subjected to secret detention and extraordinary rendition operations along with available information on their detention and treatment, current whereabouts, and diplomatic assurances secured in particular cases.
Conduct effective and thorough investigations (including, where appropriate, criminal investigations) into the full range of human rights abuses associated with CIA secret detention and extraordinary rendition operations, with a view to examining and publicly disclosing the role of, and holding legally accountable, officials who authorized, ordered, assisted, or otherwise participated in these abuses.
Provide appropriate compensation to all individuals subjected to secret detention and extraordinary rendition operations in which the particular government participated.
Institute safeguards for ensuring that future joint counterterrorism operations do not violate human rights standards, including by making participation in such operations contingent on compliance of all participating governments with human rights standards.
You are critical of a country like the United Kingdom, Sweden, the United States, and I put it to you that these are bastions of freedom of speech. These are not countries that are antidemocratic. Citizens rights are upheld and so on....are not reliable bases on which to assume a position of blind trust in the benevolence of Swedish authorities. Beyond the veneer of Swedish neutrality are a host of political interests and pragmatic realities. Sweden is historically deferent to US interest, and that pattern is deviated from only when popular dissatisfaction forces concessions.
Apologists for the idea of extraditing Julian Assange to
Sweden without human rights safeguards have attempted to argue
that Assange does not really believe he would be at risk in
Sweden, because WikiLeaks avails of legal safeguards under
Swedish law.
For example, the New Statesman's legal correspondent
David Allen Green takes great interest in WikiLeaks' use of,
among others, the Swedish jurisdiction to activate source
protection laws:
In July 2010, Assange explained in a TED talk why Sweden was attractive to Wikileaks (see here at 0.20). It would appear that Wikileaks was at that time hosted in Sweden to take advantage of its liberal protections for the media and journalists. In August 2010 Wikileaks itself promoted a story in Reuters which described Sweden as a 'legal shield' their tweet is here.
Green's mentions this in order to advance the theory that
Assange's fear of extradition from Sweden is not genuine:
Then there is the rational explanation...[:] he simply wants to avoid interrogation and any prosecution for allegations of sexual assault and rape in Sweden.
Green's theory is that Julian Assange does not really
fear for his safety in Swedish custody, because he used to
openly speak about Swedish protections for journalistic
activities. We appear to be encouraged by Green to believe
that it is contradictory to recognize "liberal protections" in
Swedish law, while also believing that Julian Assange would be
at risk there.
...we use this state-of-the-art encryption to bounce stuff around the internet, to hide trails, pass it through legal jurisdictions like Sweden and Belgium to take... to enact those legal protections.From the Reuters article cited by Green:
Sweden offers tough laws to protect freedom of speech. For instance, it makes source protection a legal obligation for journalists.From WikiLeaks' website in 2010:
Click here to securely submit a file online (bank grade encrypted submission, no logs kept and protected under Swedish and Belgium press secrecy laws)According to Assange's Unauthorised Autobiography, which, although it cannot be taken as an authoritative source, is nonetheless illuminating:
I went to Sweden in August 2010 with the words of the Pentagon still ringing in my ears. Geoff Morrell, the press secretary, had given a briefing in which he implied that WikiLeaks, and I specifically, should begin worrying. 'If doing the right thing is not good enough for them,' he said, 'then we will figure out what alternatives we have to compel them to do the right thing. Let me leave it at that.' [...]This value of exploiting jurisdictions that have strong source protection laws is not speculative. It has already been tested by WikiLeaks' publications. From the website of the Icelandic Modern Media Initiative:
At the same time it was revealed that there was a 90-man Pentagon task force, later increased to 120 men, dedicated to WikiLeaks and working 24 hours a day and seven days a week. The FBI and Defence Intelligence Agency were part of this group.
I had not given up on the idea of finding a haven where we might do our work in peace. Sweden looked possible. It was regarded as an independent, liberal country, with a Freedom of Information Act going back to the 1780s and a Constitution that makes special and lengthy provision for the protection of press freedom. Sources are better off in Sweden than in most places in the world: there is a right to anonymity and penalties for journalists who promise but fail to protect the people who privately give them information. To gain protection from prior restraint, it is necessary in Sweden to have both a publishing certificate and to be working for a listed, responsible editor. I went to Sweden with that in mind, hoping to gain a certificate and also to put myself in the position of becoming an accredited editor. You have to have an income for this, so I agreed to become a columnist for [Aftonbladet], the largest Swedish newspaper.
I hoped we might be able to open a journalistic office for WikiLeaks in Stockholm and began moving towards this. So, Sweden represented two things to me at that point, a future working environment and a safe haven, which makes what happened next all the more bitter.
The Unauthorized Autobiography, 227-9
Consider also the case of the South African Competition Commission (SACC) and WikiLeaks. In December 2008, the SACC was due to release a groundbreaking 590 page report into cartel behavior (fee fixing) of South Africa's four big banks. The banks, hearing of the prospective release, demanded redactions. A heavily redacted version was released, but [WikiLeaks] obtained and released an unredacted version, turning the blanked regions into highlights. The SACC demanded the unredacted report be removed. WikiLeaks refused. The South African government, scared of the power of the banks, then appointed a criminal prosecutor to discover and try WikiLeaks' source. WikiLeaks' lawyers then warned the SACC, that should the investigation proceed, those involved risked criminal prosecution under the laws of Sweden and Belgium.WikiLeaks hosted servers in Sweden so as to activate Swedish source protection law.
Why? Because WikiLeaks routes the communications with its sources through Sweden and Belgium, and publishes from Sweden. The Swedish constitution has protection for source anonymity and Belgium law has protection for journalist-source communications confidentiality. Since both jurisdictions were involved in a meaningful manner with the act of disclosure being investigated, both could claim jurisdiction over the matter. Whether, ultimately, the highest South African courts would recognize the rights of Sweden and Belgium in this matter was not of consequence; it was not something that individuals within the South African government wanted to risk, nor, presumably, did they want to risk legal problems when traveling. The investigation was dropped and the source was protected.
Five: 'By giving Assange asylum, Ecuador is protecting freedom of the press' This is perhaps the strangest proposition.This canard can be also found in the pages of The Guardian. Its prevalence there coincides directly with Assange's involvement with Ecuador. In January 2012, before Ecuador had granted humanitarian assistance to an institutional enemy, The Guardian ran a piece on Ecuador entitled, "Could Ecuador be the most radical and exciting place on Earth?" Prior to this, the country was mentioned primarily in travel writing in the newspaper.
Ecuador has a woeful record on freedom of the press. It is 104th in the index of world press freedom, and even the quickest glance at the examples of press abuse in Ecuador accumulated by Reporters Without Borders and Index on Censorship indicate a regime with a starkly dreadful and illiberal record on freedom of expression.
It has even recently been reported that a blogger called Alexander Barankov is to be extradited by Ecuador to Belarus, of all places, where he may face the death penalty.
Whatever the reason for Ecuador granting political asylum to Assange, there is no basis for seeing it as based on any sincere concern for media freedom either in Ecuador or elsewhere.
A major turning point came with the election of the economist Rafael Correa as president. After taking over in January 2007, his government ushered in a series of changes, based on a new constitution (the country's 20th, approved in 2008) that was itself mandated by a popular referendum. A hallmark of the changes that have occurred since then is that major policies have first been put through the referendum process. This has given the government the political ability to take on major vested interests and powerful lobbies.Because Ecuador was to be presented as a "good" country, departures from approved behaviour were excused as exceptions to the norm:
The government is now the most stable in recent times and will soon become the longest serving in Ecuador's tumultuous history. The president's approval ratings are well over 70%. All this is due to the reorientation of the government's approach, made possible by a constitution remarkable for its recognition of human rights and the rights of nature, and its acceptance of plurality and cultural diversity.
All this may sound too good to be true, and certainly the process of transformation has only just begun. There are bound to be conflicts with those whose profits and power are threatened, as well as other hurdles along the way. But for those who believe that we are not condemned to the gloomy status quo, and that societies can do things differently, what is happening in Ecuador provides inspiration and even guidance. The rest of the world has much to learn from this ongoing radical experiment.Then, in August 2012, Ecuador granted Julian Assange asylum. The whole country as a result became a legitimate target for spin from editors and journalists. The media's narrative on Ecuador was inverted. Because it had granted asylum to a positional enemy, Ecuador was now a "bad" country. Positive developments in Ecuador were now to be explained away as exceptions to the norm, while the norm was presented as authoritarianism or outright despotism.
A full third of Ecuadoran foreign sales ($10 billion in 2011) go to the United States, supporting some 400,000 jobs in a country of 14 million people. Those preferences come up for renewal by Congress early next year. If Mr. Correa seeks to appoint himself America's chief Latin American enemy and Julian Assange's protector between now and then, it's not hard to imagine the outcome.The Guardian fell over itself to reconfigure public perception of Ecuador. On the day that Assange entered the Ecuadorian embassy, Rafael Correa's government switched from being "good" radical to "bad" radical. One article noted that "the 2007 election of a socialist president Rafael Correa led to a sharp change of direction in the Latin American state's foreign policy, away from the US and its regional allies and towards a radical bloc led by Venezuela." All of a sudden, ties to official Guardian pariah states, like Iran, were germane:
Ecuador has also given diplomatic support to Iran in its standoff with the west over its nuclear programme. Correa visited Tehran in 2008 and announced the opening of embassies in each other's countries, while building up defence cooperation with Iran. Iran has also provided loans for the construction of hydroelectric power plants. In 2010, the US government declared Ecuador as being in violation of international regulations on money-laundering and financing terrorism, further worsening ties with Washington.The Guardian on the same day ran a highly deceptive piece on WikiLeaks cables on Ecuador, where State Department cables released by WikiLeaks were deliberately and selectively quoted to give a one-dimensional portrait of the state of freedom of the press in the country.
The US diplomatic cables published in December 2010 by WikiLeaks paint an often unflattering portrait of the country in which the site's founder, Julian Assange, is attempting to claim political asylum. The diplomats' missives to the US secretary of state report on worsening situations around press freedom, judicial integrity, and corruption within the police.The author, James Ball, had corruptly chosen to omit lengthy and detailed accounts of the concentration of Ecuadorian media ownership in the same cables. The cables, for instance say:
Observers trace the genesis of the continually escalating confrontation with the press to the Ecuadorian Newspaper Editor Association's (AEDEP) editorial entitled "Intolerable", which appeared several weeks ago, on the front page of eleven major Ecuadorian dailies -- an unprecedented example of coordinated press rebuke to a sitting president (reftel).Elsewhere the cables reflect on the threat that this concentration poses to the operation of government in Ecuador:
(SBU) There is more than a grain of truth to Correa's observation that the Ecuadorian media play a political role, in this case the role of the opposition. Many media outlet owners come from the elite business class that feels threatened by Correa's reform agenda, and defend their own economic interests via their outlets. In addition, Ecuador's weak political parties have left a political vacuum, which has been filled in part by criticism of Correa by some of the large Ecuadorian TV stations and newspapers.The fact that the cables substantiate the government's analysis of the media environment in Ecuador may be the reason why Ecuador was the only government to ask WikiLeaks to publish all of the cables on it in 2011. None of this, however, is to be found in James Ball's report.
Ecuador, a country with a tenuous respect for international human rights law, is counter-intuitive refuge for the free speech and transparency crusader.It should be obvious why this argument is absurd, even in principle. Asylum seekers do not have the luxury of choosing states with perfect records from which to seek asylum. That is because no such states exist.
[...]
"I think this is ironic that you have a journalist, or an activist, seeking political asylum from a government that has after Cuba the poorest record of free speech in the region, and the practice of persecuting local journalists when the government is upset by their opinions or their research," José Miguel Vivanco, director of Human Rights Watch's Americas division, told the Guardian.
Apparently, activists should only seek asylum from countries with pristine human rights records, whichever countries those might be: a newly concocted standard that was conspicuously missing during the saga of blind Chinese human rights activist Chen Guangcheng at the US embassy; I don't recall any western media outlets accusing Guangcheng of hypocrisy for seeking refuge from a country that indefinitely imprisons people with no charges, attacked Iraq, assassinates its own citizens with no due process on the secret orders of the president, bombs funerals and rescuers in Pakistan, uses extreme force and mass arrests to try to obliterate the peaceful Occupy protest movement, wages an unprecedented war on whistleblowers, prosecutes its Muslim citizens for posting YouTube videos critical of US foreign policy, embraces and arms the world's most oppressive regimes, and imprisoned Muslim journalists for years at Guantánamo and elsewhere with no charges of any kind.On the very day that Julian Assange sought asylum, the UK press corp unanimously became zealous converts to the cause of freedom of the press in Ecuador. If that were a coincidence, it would be an extraordinary one. But it is not a coincidence.
Ecuador has a woeful record on freedom of the press. It is 104th in the index of world press freedom, and even the quickest glance at the examples of press abuse in Ecuador accumulated by Reporters Without Borders and Index on Censorship indicate a regime with a starkly dreadful and illiberal record on freedom of expression.If you take any more than "the quickest glance" at the "examples of press abuse in Ecuador," they cease to "indicate a regime with a starkly dreadful and illiberal record on freedom of expression."
One result of President Rafael Correa's high-profile campaign to demonize the country's private media can be seen on the desk of José Velásquez, news manager at Teleamazonas, a private Quito television station often critical of the government. Among the documents piled high on his desk are lawsuits, which used to be a rare thing. Encouraged by Correa, who has personally sued newspapers and journalists, Velásquez says, the subjects of Teleamazonas news reports are now filing between two and five lawsuits per month against the station.The CPJ remains true to its dossier, which is to protect journalists, if even from the criticism of their own publics.
"Because the president is so aggressive with journalists, it empowers a lot of people," Velásquez says. "Correa says we are incompetent and corrupt. So, now the average Joe in the street says: 'Yeah, yeah, yeah, you are corrupt so I am going to sue you too.'"
[...]
Indeed, the streets of Quito are full of press critics. When asked about Correa's attitude toward the media, taxi driver Mario Cualchi, told CPJ he agreed with the president. "I've known for years that the media rarely tells the truth," he said.
It may... be overstating the case to say that Ecuador has a 'starkly dreadful and illiberal record on freedom of expression.' The assertion derives from a lazy reliance on cherrypicked NGO reports. Reporters Without Borders is an NGO. NGOs are a typical go-to source for suspicion-free ammunition against the whipping boy of the week, for writers who don't know the first thing about Ecuador. RSF's principal claim to prominence is its annual Press Freedoms Index a methodologically bankrupt study ranking the countries of the world on their relative press freedoms, based on subjective assessment surveys filled out by small pools of handchosen RSF correspondents in each country. It is approximately as objective a measure of comparative press freedoms as Channel Four is a measure of the world's 'funniest' comedians.None of this is to say that rights groups and NGOs are entirely without credit. But it cautions against uncritical reliance on NGOs as objective bodies. On Latin America in particular, Western and West-funded human rights groups and press freedom organizations have a particular history, and a particular institutional agenda.
RSF is not without controversy as to its funding structure and organizational biases, with some of its main donors drawn from the Cuban ex-pat community. It does not have a great track record of impartiality on nominally socialist Latin American states. More discerning researchers will have already determined that the so-called 'media crackdown' in Ecuador is the result of the introduction of a strong UK-style media regulation regime in Ecuador where regulatory decisions on the use of spectrum have remained unenforced for years. In the UK, pirate radio stations are routinely raided by the police, and shut down. There it is called 'regulation.' When a now twice reelected, popular-by-supermajority Latin American socialist government does it, it is 'starkly dreadful and illiberal.' OFCOM's banishment of Press TV at a time when the US-UK axis is stoking hostility towards Iran has been quickly forgotten.
For the past month in Ecuador there has been a battle over regulation of the media. It has been in the front pages of the newspapers most of that period, and a leading daily, El Comercio, referred to the fight as one for "defense of human rights and the free practice of journalism." This was in response to the government's closing down of a major TV station, Teleamazonas, for three days beginning December 22.The media regulation law proposed by the Ecudorean government regulates spectrum. Spectrum is regulated in the US and the UK. The Ecuadorian government proposes to limit commercial bands of spectrum, and to open up bands of spectrum for everyone to use, and for public service broadcasting. This is opposed by the private media, because spectrum has until now been a private sector free-for-all, i.e., it has favoured wealthy interest groups. Correa himself explains this in an interview with Julian Assange from last year:
International organizations such as the Washington-based Human Rights Watch and the Committee to Protect Journalists joined the Ecuadorian media in denouncing the government's actions, with the CPJ calling it "nothing but an attempt to intimidate the media into silence."
But as is generally the case when private media monopolies are challenged by progressive governments, the view presented by these powerful corporations and their allies in the US is one-sided and over-simplified. Ecuador, with a democratic left government, is facing the same challenge faced by all of the left-of-centre governments in the region: the private media is dominated by heavily monopolised, often politically partisan, right-wing forces opposed to the progressive economic and social reforms that electorates voted for. All of these governments have responded to that challenge.
In Argentina, a new media law seeks to break up the media monopoly held by the Clarín Group, which according to press reports controls 60% of the media. The Brazilian government created, for the first time in 2007, a federally-launched public TV station. The Bolivian government, which faces perhaps the most hostile media in the hemisphere, has also expanded public media. What all of these governments are doing although they would not put it that way is trying to move their media more in the direction of what we have in the US. That is, a media which is heavily biased toward the interests of the wealthy and the upper classes, but nonetheless adheres to certain journalistic norms that limit the degree to which the media is a direct, partisan, political actor.
Correa: With regards to our confrontation with the media... The private media are big business with lucrative aims. They have always attacked governments who want to change, governments who seek justice and equity. They openly defend very clear vested interests. For the goodness of our democracy, the real freedom of expression, it is necessary to regulate and control that. One of the ways of doing this is generating public media, public service media. In Ecuador, television has been around about 50 years... but it's only three or four years since that we have public service television in Ecuador. The thing is now we have public service media they say that we are against, you know, freedom of expression.With this in mind, consider how Weisbrot compares the media climate in Ecuador to the United States:
Assange: [A]ll the time we see governments abusing censorship - how is it that your reforms will not lead to the suppression of true information?
Correa: [T]he whole world should understand what is going on in Latin America. When I got to the government, there were seven national television channels, there was no public service television - all of them private. Five of them belonged to bankers. [...] They had a merciless campaign against our measures in order to defend the interests of the bankers who were the owners of this media. [...] I am an economist [...] [A]sk amongst orthodox economists about it. [I]f you see a market with five or six companies dominating the market that could collude in order to sell which kind of products to sell in the market[...] [E]ven the most orthodox economists will say to you that market has to be regulated by any means possible in order to protect the consumer...
Assange: President Correa, I agree with your market description of the media. [...] But it seems to me that the correct approach to deal with monopolies and duopolies and cartels in a market is to break them up, or to make it so it is very easy for new publishers to enter into the market. Shouldn't you create a system that protects the ease of entry into the publishing market so that small publishers and individuals are protected and have no regulation, and that these bigger publishers are broken up or are regulated?
Correa: This is exactly what we are trying to do, Julian... [T]he media here are not the property of thousands of shareholders like in Europe or in the United States, which has a democratising effect... The media here are the property of six families... We wanted: One, to make sure that this information is made a public service very ethically, very carefully - and this is exactly what is missing in Latin America and in Ecuador, and we are trying to change this. For more than two years we have been discussing a new Communications Law in order to free up the electromagnetic spectrum - for television or radio - so that one-third of it can be private with a profit margin, and the next third will be communitarian but without profit aims, and the last third will be public - not only the central government, but local government, municipalities, parishes, districts. We have had two years discussing this. Despite the fact that this comes from our new Constitution which was approved in 2008, ratified by plebiscite last year by the Ecuadorian people - despite that, the new law has been systematically blocked by the big media. They call it 'the gag law' and they can do this because they have a lot of people that they pay in the National Assembly. And this is what we are trying to do - democratise the information, the social communication, the property of the media - but obviously we have, of course, the merciless opposition of the media owners and of their acolytes in the opposition in Ecuador.
Some commentators in Ecuador have argued that the government's proposed telecommunications law will lead not to actual censorship but to self-censorship. But watching the TV news and talk shows in Ecuador, there is far less self-censorship than in the US... Government officials, for example, are grilled more aggressively by host journalists abroad than they are in the US.This is the general context for Ecuador's "starkly dreadful and illiberal" regime. Plenty of specific examples have been bandied around, but on closer examination they do not live up to the hype.
My own view is that the best solutions will be found in the area of introducing more competition in the media. The proposed media law in Argentina provides for the broadcast spectrum to be divided equally among private, public, and community media outlets. It is possible that Ecuador will move in a similar direction. These changes are especially important in a region where internet coverage reaches perhaps a third of the population, and the vast majority of citizens get their news from broadcast media. As Michael Copps, a commissioner on the Federal Communications Commission has emphasised: "Using the public airwaves is a privilege a lucrative one not a right." He has argued, in the New York Times and elsewhere, that the US government should use its legal authority to deny the renewal of broadcast licenses to media outlets that do not honour their pledge to serve the public interest.
Until there is a more democratic media structure in Latin America, there will inevitably be conflicts between progressive governments and right-wing media outlets. It is of course possible that governments will abuse their regulatory authority over the media. So far, however, it has been overwhelmingly the other way around: major media outlets have abused their power and control over the means of communication in ways that undermine democracy.
In the case of Ecuador, it is worth looking at the details of why Teleamazonas' broadcasting was suspended for three days. The government found that it had, for the second time in a year, violated a rule that prohibits the broadcast of false information that can lead to social disturbances. In the first offense of this type, for which the station was fined, it had broadcast a false report indicating that the government's electoral commission had a "clandestine center" where voting results were manipulated. The second offense, committed in May, was a false report stating that, as a result of proposed exploration for natural gas on the island of Puná, the people there would not be able to fish for six months. Since most of the workers on the island makes their living from fishing, the false report actually did lead to social disturbances. Both of these reports were found to have no basis in fact. It is also worth noting that social disturbances in Ecuador are often more serious than in the US: eight of the last ten presidents did not serve out their terms of office.While legitimate criticisms can be made about these actions by the government of Ecuador, a vicious double standard has been applied to them in the present context. The Western press has recently begun concentrating hard on minor transgressions against freedom of the press in a small Latin American country as a way of not concentrating on far worse, global transgressions by the United States government.
That said, reasonable people may differ on what is the proper role of government in the regulation of media, or what limits if any should be placed on freedom of expression. Some civil libertarians object to laws allowing individuals to file civil lawsuits for libel or defamation, and certainly a case can be made that in the UK, for example where the law allows a much broader range of action against media than in the US that this unduly inhibits the press.
But international organisations or editorialists who take an absolutist or anarchist position with regard to countries such as Ecuador should apply the same standards to the US and other rich countries.
It has even recently been reported that a blogger called Alexander Barankov is to be extradited by Ecuador to Belarus, of all places, where he may face the death penalty.The Belarussian whistleblower Alexander Barankov was never heard of before Julian Assange was given asylum. As soon as Julian Assange was given asylum, the only thing anyone knew about Alexander Barankov was that his case showed the extraordinary hypocrisy of Ecuador on the Assange case. A Google Search on "Alexander Barankov" shows the enormous amount of coverage this angle got at the time.
"I'm happy. They saved my life!" an overjoyed Barankov said when the AP reached him by phone in jail. His Ecuadorian girlfriend had notified him just moments earlier.Six months later, there remains no mention of this turn of events in the New Statesman post. The same is true of the bulk of news articles ever written about Alexander Barankov. Interest in him has fallen decisively.
[A]ny final word on an extradition would (quite properly) be with an independent Swedish court, and not the government giving the purported 'guarantee'.But even before Barankov's extradition was denied by the National Court of Justice, the President of Ecuador effectively committed himself to a political veto of any possible extradition, on human rights grounds:
"Ecuador will put the emphasis on not extraditing a citizen whose life is at risk, from facing the death penalty or life in prison," Deputy Foreign Minister Marco Albuja said.But little if any of this is "newsworthy" if it does not somehow imply that Julian Assange is a hypocrite.
Correa said that if the high court, which is due to issue a ruling in the coming days, decides to grant the extradition request from Belarus, he could overrule that decision "as a last resort."
"We reject any attack on human rights (or) political persecution," Correa told foreign reporters.
Five: 'By giving Assange asylum, Ecuador is protecting freedom of the press' This is perhaps the strangest proposition.Ecuador did not give Assange aslyum in order to protect freedom of the press, but in order to protect Assange from persecution. That is the explicit purpose of the grant of asylum. Asylum is not lawfully granted to "protect freedom of the press." It is lawfully granted to protect people from persecution. There is no need to say "whatever the reason." The reason is clear, explicit and legally mandated.
[..]
Whatever the reason for Ecuador granting political asylum to Assange, there is no basis for seeing it as based on any sincere concern for media freedom either in Ecuador or elsewhere.
Do you support these causes?Contrary to what the New Statesman and other publications have tried to argue, these reports create a strong basis for believing that Ecuador has a sincere concern for the global freedom of the press. As Correa's now popularly reelected government goes into its new term, the decision to give Assange asylum may indeed presage a move towards greater media freedom in Ecuador, as Ecuador is encouraged to live up to its new international reputation.If we assume that his main cause is advocating the need for maximum transparency, demanding that the political and economic powers that be take some responsibility, and seeking retribution for human rights abuses by putting unrestricted freedom of expression and information into practice, then of course I support that.
Why did Assange choose Ecuador?
That’s something you’ll have to ask Julian Assange. And I hear it’s a question many people are asking: why, with no less than 150 different embassies in London, did Assange choose Ecuador?
Maybe it’s because he has seen how this small country has given convincing demonstrations of its sovereignty, resolve and commitment to human rights. Ecuador has the best record for protecting asylum seekers in the region; it has enshrined the concept of universal citizenship, which recognises the right to migrate, in its constitution. In an unusual move, it terminated the contract which allowed a US military base on its soil.
This and other factors have made Ecuador more visible internationally. It is also practically the only country to have asked Wikileaks to publish all the cables, without exception, even at the risk of information getting out which could damage the government. I imagine Wikileaks and Julian Assange appreciated this demonstration of genuine transparency.
Safeguards are required because of Assange's exceptional circumstances as a target for a politicized reprisal by the United States government.
Safeguards are not unusual during negotiations for the surrender of a prisoner to a second country where there is a risk of persecution by a third country.
One of the requested measures, questioning Assange in London is a routine procedure, which is well within the remit of the Swedish prosecutor. The prosecutor is in fact singling Assange out for special treatment by not questioning him in London.
The allegations would not be crimes outside of Sweden.
The allegations are allegations. They are not
charges, nor are they convictions. They are at the
investigatory stage only.
Assange has not been charged with anything. He is sought for questioning.
There is no reason why the prosecutor could not
question Assange in London.
One common assertion by supporters of Assange is that the allegations do not really constitute rape or sexual assault.
He says of the Magistrates' Court decision:This is flatly untrue. The Assange legal team argued this twice before English courts, and twice the English courts ruled clearly that the allegations would also constitute rape under English law.[SOURCE]
[I]n a detailed judgment handed down on 24 February 2011, it was decided that the EAW was valid and that the alleged offences would constitute offences both in England and Sweden.And of the High Court decision:
The High Court took three and a half months to consider Assange's legal submissions and in a carefully detailed and reasoned judgment dated 11 November 2011 the High Court rejected each ground of appeal. In particular, they held that the allegations in the EAW would constitute offences in English law.This is false, for the following reason: the court cases never dealt with the actual allegations against Julian Assange, but only with exaggerated descriptions of them as written on the European Arrest Warrant.
the Real Allegations (the ones on the Swedish police report)
the Trumped Up Allegations (the ones written on the EAW).
One common assertion by supporters of Assange is that the allegations do not really constitute rape or sexual assault.
And then he presents the Trumped Up Allegations, from the EAW:This is flatly untrue. The Assange legal team argued this twice before English courts, and twice the English courts ruled clearly that the allegations would also constitute rape under English law.[SOURCE]
[T]he accusations were as follows:Green then argues why these allegations would be crimes in England. He cites the English courts who decided that they are.ALLEGATIONS ON THE EUROPEAN ARREST WARRANT
Alleged unlawful coercion On 13-14 August 2010, in the home of the injured party [AA] in Stockholm, Assange, by using violence, forced the injured party to endure his restricting her freedom of movement. The violence consisted in a firm hold of the injured party's arms and a forceful spreading of her legs whilst lying on top of her and with his body weight preventing her from moving or shifting.
Alleged sexual molestation On 13-14 August 2010, in the home of the injured party [AA] in Stockholm, Assange deliberately molested the injured party by acting in a manner designed to violate her sexual integrity. Assange, who was aware that it was the expressed wish of the injured party and a prerequisite of sexual intercourse that a condom be used, consummated unprotected sexual intercourse with her without her knowledge.
Alleged sexual molestation On 18 August 2010 or on any of the days before or after that date, in the home of the injured party [AA] in Stockholm, Assange deliberately molested the injured party by acting in a manner designed to violate her sexual integrity i.e. lying next to her and pressing his naked, erect penis to her body.
Alleged "lesser rape" On 17 August 2010, in the home of the injured party [SW] in Enkoping, Assange deliberately consummated sexual intercourse with her by improperly exploiting that she, due to sleep. was in a helpless state. It is an aggravating circumstance that Assange. who was aware that it was the expressed wish of the injured party and a prerequisite of sexual intercourse that a condom be used, still consummated unprotected sexual intercourse with her. The sexual act was designed to violate the injured party's sexual integrity.
3.2 The Senior District Judge found that [the allegations on the EAW] would establish dual criminality... on the basis that lack of consent (and lack of reasonable belief in consent) may properly be inferred from the conduct described, particularly the references to 'violence' and a 'design' to 'violate sexual integrity'.
3.3 However, that description of conduct is not accurate.
3.4 The EAW misstates the conduct alleged and is, by that reason alone, an invalid warrant.
THE REAL ALLEGATIONS IN THE SWEDISH POLICE REPORT
Alleged unlawful coercion They agreed to have sex. AA did not mention her wish that the Appellant should wear a condom; he 'roughly and impatiently' sought to penetrate her without one and she squeezed her legs together and tried to reach for one. He then asked her what she was doing and she said she wanted him to wear a condom. At that point he put one on. There is no allegation, then, of 'violence' ... deducible or inferable from this material.
Alleged sexual molestationThe true allegation underlying offence two is therefore that AA believes that the Appellant deliberately tore the condom he was wearing during consensual sex. ...the allegation is founded solely upon AA's subjective perception of these events...
Alleged sexual molestation The summary contained within the EAW is not accurate. ('deliberately molested...acting in a manner designed to violate her sexual integrity... lying next to her and pressing his naked, erect penis to her body' ) Accurately described, the Appellant pressed his naked body against AA whilst they were voluntarily sharing a single bed... To present this, therefore, as an instance of 'sexual molestation' and to describe it without any reference to the important detail in AA's statement that this was basically just 'strange' and 'awkward' behaviour is to fall foul of the principle that the EAW should provide a 'proper, fair and accurate description of the conduct alleged' .
Alleged "lesser rape" A fair and accurate summary of the conduct would also have included reference to text messages (shown to the Appellant's counsel but not copied to him) and evidence in which SW states that she was 'half asleep' when the sex began, which of course also means 'half awake' or sleepy. SW was re-interviewed concerning these and confirmed that '...she wasn't fast asleep but wasn't awake either...' . The summary contained within the EAW ('deliberately consummated sexual intercourse with her by improperly exploiting that she, due to sleep, was in a helpless state' ) is not accurate. Accurately described, in the context of repeated acts of consensual sexual intercourse, the Appellant penetrated SW whilst she was 'half-asleep' , which penetration was met by consent on the part of SW.
This is the argument that is being made when people say "the
allegations would not be crimes in England."
Crikey writer Guy Rundle summarises:
[O]f all Nick Davies' omissions, perhaps the most significant was that of the final witness, who was questioned about text messages she exchanged with [SW] discussing seeking revenge on Assange, and getting money from newspapers ('it was just a joke' ).
The witness claimed: 'Things hadn't turned out as [SW] wanted. [SW] only wanted Julian to test himself, and she felt she'd been overwhelmed by the police and others around her.' The texts in question are yet to be publicly revealed, and while Assange's defence lawyers have seen them, they are not allowed to talk about them. Yet whatever they reveal, procedure may not be the most important thing about this case, and the question of whether rape accusers should retain anonymity may not be the most wrenching issue it brings to current feminist debate. For the fact remains that even if things went down exactly as the women describe them, after the distortions of earlier reports are discarded, the charges against Assange will amount to a criminalisation of consensual (if unenjoyable) rough foreplay, and of a sleeping encounter almost immediately granted retro-active consent. And even to prove there was actus reus that a condom was torn, that sleep was not half-sleep will amount to little more than word against word. There will be some forensic evidence for [AA] claims that she kept the ripped or torn condom, and subsequently supplied one to police. Analysis in the report leans towards the conclusion that it was cut, rather than accidentally torn. But that of course is open to challenge on multiple grounds. Assange, in his interview with police, rejects [AA]'s narrative of their sexual encounter he was not questioned about [SW]'s accusations; such interrogation is the purpose of the European Arrest Warrant, the service of which he is currently resisting but does not give a detailed alternative narrative.
It is not "rape apologism" to make an argument like this.
This argument can be made whether or not one is a "supporter
of Assange." It is an objective argument about the law that
exists.
This was the argument that Assange's legal team made in the High Court. But the courts refused to consider the Real Allegations. They insisted on looking only at the Trumped Up Allegations.
Judge Riddle, in the Magistrates' Court, said:
I have not thought it necessary or desirable to consider extraneous material. I have looked only at the language used in the warrant. The parties have taken me to some further information in the bundle. This appears to consist of an interview with the complainants. I am not sure if this information provides the full extent of the allegation. Even if it does, however, it is unnecessary to consider this material in this context. [...]The High Court took the same view. For each allegation in turn, the High Court said that it was "not apposite" to take the police reports into account.
In these circumstances I am required to look to the warrant alone, and not to extrinsic evidence. It follows that the evidence I have heard and read on this question is not relevant to the decision I must make as to the validity of the warrant. I am sure the warrant is valid on the face of it.
60. In respect of each offence, Mr Assange contended that the court should examine the underlying material from the prosecution file... [W]hat was provided contained the principal statements of the complainants and other material which made it obvious that the conduct of which he was accused was not fairly and accurately described in the EAW. [...]When critics of Assange say...
Offence 1
71. In our view, it is not apposite to take into account the material in the prosecution file. [...]
Offence 2
92. The alternative contention relies on the statement of AA. For the reasons we have given at paragraphs 68 and 71 as applied to this offence, it is not necessary to consider this. [...]
Offence 3
98. For the reasons we have given at paragraphs 68 and 71 as applied to this offence, we do not consider it apposite to take the statement of AA into account... [...]
Offence 4
119. For the reasons we have given at paragraphs 68 and 71 as applied to this offence, we do not consider it apposite to take the statement of SW into account.
The Assange legal team argued this twice before English courts, and twice the English courts ruled clearly that the allegations would also constitute rape under English law....they are being misleading. The Assange legal team argued one thing. The English courts decided on something else. David Allen Green makes it look as if the English courts' decision on "the allegations" directly addressed Assange's legal arguments. They did not.
The High Court even examined extraneous materials, such as the statements of AA and SW, to see if the allegations were a fair description...This doesn't change things.
The decision the High Court made did not rely on this opinion. It was unnecessary for the High Court to voice this opinion.
Offence 1
74. Nonetheless, as the material was put before us de bene esse, we will express our view on what difference it would have made if we had taken it into account in determining whether the description of the conduct was fair and accurate. [..]
Offence 2
92. The alternative contention relies on the statement of AA. For the reasons we have given at paragraphs 68 and 71 as applied to this offence, it is not necessary to consider this. But as the material was put before the court de bene esse, then we will express our view by reference to it. [..]
Offence 3
98. For the reasons we have given at paragraphs 68 and 71 as applied to this offence, we do not consider it apposite to take the statement of AA into account, but again as it was before the court de bene esse, we will express our view on the position. [..]
Offence 4
120. However, as extraneous material was placed before the court de bene esse, we have considered the fairness and accuracy of the description in the light of that material.
The High Court even examined extraneous materials, such as the statements of AA and SW, to see if the allegations were a fair description...In any case, the obiter comment is not a statement that the Real Allegations would be crimes in England.
26. In conclusion, and for the reasons given above, I do not consider that any of the incidents alleged in box (e) of the EAW is sufficient of itself to constitute any offence under English law. In respect of none of the four alleged incidents is there a clear allegation of lack of consent to the touching; moreover, in respect of none of the incidents is there any allegation that Mr Assange did not reasonably believe that the complainants were consenting to the touching. I am told that the prosecution will argue that allegations of mens rea can be inferred. I see no basis for such an inference, in the EAW as it stands. Taking the allegations in the EAW at their highest, they are not, in my opinion, capable of sustaining the necessary finding of mens rea. Nor do the complainants' statements contain any allegation, explicit or implicit, that Mr Assange did not reasonably believe in consent. On the contrary, those statements raise real issues as to consent and mens rea.Assange's defense was not allowed to use Professor Ashworth's Opinion as evidence, or to call him as an Expert Witness, because the prosecution argued that expertise on English law could not be heard by a court.
The opinion of Professor Ashworth is contained at tab 8 in the bundle. There can be no greater academic expert on the English criminal law than the Vinerian Professor of English Law in the University of Oxford. However it was agreed that this court cannot receive expert opinion on English law.In this way, Ashworth's opinion, which was addressed to this specific case, was discarded. The Magistrates' Court then decided that the allegations written on the EAW would be offences in England.
87. [...] We accept it could be argued that sexual intercourse without a condom is different to sexual intercourse with a condom, given the presence of a physical barrier, a perceived difference in the degree of intimacy, the risks of disease and the prevention of a pregnancy; moreover the editors of Smith & Hogan (12th edition at p.866) comment that some argued that unprotected sexual intercourse should be treated as being different in nature to protected sexual intercourse. [...]The courts excluded expert opinion when it was not helpful, and sought it when it was.
89. The editors of Smith & Hogan in the passage to which we have referred regard it as self evident that deception in relation to the use of a condom would "be likely to be held to remove any purported free agreement by the complainant under s.74". A very similar view is expressed in Rook and Ward on Sexual Offences; (4th edition) at paragraph 1.216...
The High Court took three and a half months to consider Assange's legal submissions and in a carefully detailed and reasoned judgment dated 11 November 2011 the High Court rejected each ground of appeal. In particular, they held that the allegations in the EAW would constitute offences in English law.When the context is restored, less confidence is reposed in the court judgments.
'The allegation of rape would not be rape under English law' This is flatly untrue. The Assange legal team argued this twice before English courts, and twice the English courts ruled clearly that the allegation would also constitute rape under English law....David Allen Green is being quite deceptive. This is because:
The courts excluded expert evidence showing that the Trumped Up Allegations would not be crimes in English law.
"Assange supporters" argue that the Real Allegations (police report) would not be crimes in England.
The courts decided that the Trumped Up Allegations (EAW) would be crimes in England.
These are not the same allegations.
[I]n a carefully detailed and reasoned judgment dated 11 November 2011 the High Court [...] held that the allegations in the EAW would constitute offences in English law.But if Green were to be more honest, he would say this:
[I]n a carefully detailed and reasoned judgment dated 11 November 2011 the High Court [...] held that the allegations in the EAW would constitute offences in English law, so long as we don't look at what is actually alleged to have happened, nor at the actual law in England, all that closely.
Assange's lawyer concedes [that the allegations are true].On the back of this sort of thing, people say "he is guilty because his lawyers admitted he did it in court!"
Assange's attorneys are contending that the extradition order is invalid because the actions alleged are not criminal under English law. In doing so, they appear to be conceding the truth of at least some of those allegations...This is simply a misquotation. The above quotes are taken out of context. Here is what happens when you put the context back in:
Emmerson went on to provide accounts of the two encounters in question which granted - at least for the purposes of today's hearing - the validity of Assange's accusers' central claims. He described Assange as penetrating one woman while she slept without a condom, in defiance of her previously expressed wishes, before arguing that because she subsequently 'consented to continuation' of the act of intercourse, the incident as a whole must be taken as consensual.
In the other incident, in which Assange is alleged to have held a woman down against her will during a sexual encounter, Emmerson offered this summary: '[The complainant] was lying on her back and Assange was on top of her ' [she] felt that Assange wanted to insert his penis into her vagina directly, which she did not want since he was not wearing a condom ' she therefore tried to turn her hips and squeeze her legs together in order to avoid a penetration ' [she] tried several times to reach for a condom, which Assange had stopped her from doing by holding her arms and bending her legs open and trying to penetrate her with his penis without using a condom. [She] says that she felt about to cry since she was held down and could not reach a condom and felt this could end badly.'
The same goes for the other alleged offence mentioned:WHAT BEN EMMERSON QC ACTUALLY SAID IN COURTOffence 1 (unlawful coercion AA)
3.47 The EAW avers that:
'...On 13-14 August 2010, in the home of the injured party [AA] in Stockholm, Assange, by using violence, forced the injured party to endure his restricting her freedom of movement. The violence consisted in a firm hold of the injured party's arms and a forceful spreading of her legs whilst lying on top of her and with his body weight preventing her from moving or shifting...'
3. 48 Whereas, the defence have been able to gain access to the Swedish court dossier. Examination of that dossier reveals that an accurate summary of the conduct alleged by AA in her interview on 20th August 2010 would have been that:
She offered her apartment for the Appellant to stay in from 11th-14th August when she was away, however she returned, early, on Friday 13th August. She had never met the Appellant before. They went out for dinner. They agreed that the Appellant would remain at AA's apartment even though she had returned one day early;
AA worked as a press and political secretary of the Swedish Association of Christian Social Democrats. As such, she helped to organise the seminar on 14th August 2010 at which the Appellant was invited to speak; They had sex on that first evening, 13th / 14th August. The Appellant's physical advances were initially welcomed but then it felt awkward since he was 'rough and impatient' ;
'... they lay down in bed. [AA] was lying on her back and Assange was on top of her...' ;
'...[AA] felt that Assange wanted to insert his penis into her vagina directly, which she did not want since he was not wearing a condom...' . She did not articulate this. Instead '...she therefore tried to turn her hips and squeeze her legs together in order to avoid a penetration...' ;
'...[AA] tried several times to reach for a condom which Assange had stopped her from doing by holding her arms and bending her legs open and try to penetrate her with his penis without a condom. [AA] says that she felt about to cry since she was held down and could not reach a condom and felt that 'this could end badly'. When asked [AA] replied that Assange must have known it was a condom [AA] was reaching for and that he held her arms to stop her...' ;
After a while Assange asked what [AA] was doing and why she was squeezing her legs together. [AA] told him that she wanted him to put on a condom before he entered her. Assange let go of [AA's] arms and put on a condom which [AA] found for him...'
Offence 4 (minor rape SW)This is all from the Skeleton Argument for the High Court. It can now be seen that the text in quotation marks was not even Ben Emmerson QC's words. He was, in fact, directly quoting from the Swedish police report.
3.81 Whereas, an accurate summary of the conduct alleged by SW in her interview on 20th August 2010 would have been that:
The European Arrest Warrant contained four allegations.
Julian Assange continues to deny the conduct set out in these
allegations and his lawyers have never - in court or
anywhere else - suggested that these allegations are true.
However, in the extradition hearings, it would have been irrelevant
for Julian Assange to argue that the allegations were not
true. That would only be relevant if he had been charged, and
was making arguments in a trial.
Extradition can be ordered whether or not a defendant denies
allegations. All that is relevant is whether the warrant is
valid, and certain other criteria are met. The English courts
could not hear arguments on whether the allegations are false.
The only thing that Julian Assange could do in the extradition
hearings was challenge the European Arrest Warrant.
In court, his legal defence team challenged the warrant by
arguing that the warrant did not accurately describe
the allegations against Julian Assange, and was therefore an invalid
warrant.
Assange's barrister Ben Emmerson QC made explicitly clear
that he was not supposing the allegations to be true:
he made it clear that that he was speaking about allegations.
He was not "conceding" that any of these allegations were
true. He said:
To argue that the arrest warrant did not describe the original allegations, Emmerson had to describe the original allegations. That is what he did.3.4 The EAW misstates the conduct alleged and is, by that reason alone, an invalid warrant.
Legal arguments are complicated. It is an easy matter to quote a legal argument out of context. But this...The press coverage of the appeal did not do Julian Assange's legal team justice. For the most part, the press reported more on Montgomery QC's reply, and focused on the sensationalist aspects of the case, quoting police narratives of interviews with friends of the complainants rather than the statements by the complainants themselves.The press at times misquoted what was said in court. For example, the Guardian Live feed reported Judge Ouseley as saying "It is important to note that Assange tore the condom, not that he used one that gave up the ghost mid-action". This has now been deleted from the original page, but the sentence has been repeatedly reproduced elsewhere as Guardian Live coverage of the case. Other tweets reported the sentence as "He did not use [a condom], to give up the ghost in the middle of the action! (laughter from the courtroom)" and "it is important for double criminality that Assange tore the condom and it wasn't one that gave up the ghost in the middle of the act". Taken out of context, the tweet by The Guardian correspondent appeared damning. In fact, Judge Ousely was clarifying that the judges have to establish, for the purposes of double criminality, whether the description of conduct in the statement and the forensic tests (indicating 'wear and tear' of the condom) match the description in the EAW, which alleges that Julian Assange deliberately tore the condom.
Assange's lawyer concedes [that the allegations are true]....is simply not true.
Assange is not wanted merely for questioning. He is wanted for arrest. This arrest is for an alleged crime in Sweden as the procedural stage before charging (or 'indictment' ). Indeed, to those who complain that Assange has not yet been charged, the answer is simple: he cannot actually be charged until he is arrested.On Twitter:
In essence, #Assange not needed for mere 'questioning' but actual arrest at very advance stage of criminal proceedings. Hence, extradition.Elsewhere:
What has become clear is that the Swedish approach to criminal proceedings is different from that of England or other common law jurisdictions.To paraphrase David Allen Green: the questioning is a mere formality, necessary before Assange can be charged, which is inevitable.
Assange is not required for mere questioning; he is required to surrender for interrogation before any charges can be made and prosecution brought.
35. The Appellant's Counsel was permitted to examine part of the investigation file before the hearing in the District Court. The Appellant has not to date not been given the copies of the complete case file relating to the case (save those that were provided to the Swedish court by the prosecutor). Under Swedish law the Appellant is only entitled to have access to this material once a final decision to prosecute is made.The prosecutor, in a letter to the Australian embassy in Stockholm, said this:
The defence has asked for copies of all materials. Under Chapter 23, paragraph 18 of the Code of Judicial Procedure, I have decided to reject the defence's request to obtain copies of the documents not surrendered before the detention hearing. I consider it would be detrimental to the ongoing investigation into the matter.Over and over again, the Swedish prosecutor has publicly clarified that no decision has been made to charge Assange.
I want to emphasise that before a decision to prosecute the defendant has been made, he will be given the right to examine all documents relating to the case. If the prosecution goes ahead, the suspect will have the right to receive a copy of the investigation...' .
"I requested his arrest so we could carry out an interrogation with Assange," Ny told the Agence France-Presse news agency. "That is the reason."This is agreed upon by both parties in a submission to the Supreme Court entitled "Agreed Statement of Facts and Issues" :
20. At around the same time, the prosecutor stated that, notwithstanding the extant arrest warrant, that the Appellant was 'not a wanted man' and would be able to attend an interview 'discreetly'.The High Court records and recognizes statements by the prosecutor that no decision has been taken to prosecute Assange:
[..]
22. Statements issued by the Respondent throughout September, October and November confirmed that the investigation was ongoing and that no decision had been taken to charge or prosecute. Investigations were being undertaken and witnesses were interviewed.
ii) There were numerous statements by Ms Ny that the proceedings were still at the investigative stage. She had said on 19 November 2010; "We have come to a point in the investigation where we cannot go further without speaking to Julian Assange." She had written to the Australian Ambassador in December 2010 making it clear that she was engaged in an "ongoing investigation". In a conversation with the Ambassador on 16 December 2010, she had confirmed that no decision had been made to prosecute Mr Assange. It was only when such a decision was made that Mr Assange would be granted access to all the documents in the case.Public statements from the Swedish prosecutor's office continue to reflect this. In its most recent posting, on its website:
Under Swedish law the defendant must be present in person at the trial in cases involving this type of crime. If the preliminary investigation leads to a finding that there is sufficient evidence to prosecute Mr Assange, his personal presence is required in Sweden so that a trial can be held and any sentence enforced. The court's detention order means that Mr Assange has been detained to ensure this.This statement dwells on the obvious: Julian Assange must be personally present in Sweden if his case goes to trial.
It is clear on the extrinsic evidence that a decision has not been taken to charge him.Even in her submission to the Magistrate's Court, Prosecutor Marianne Ny could not avoid stating that Assange is sought for interview, and that the outcome of that interview might be that no charges are brought:
Subject to any matters said by him, which undermine my present view that he should be indicted, an indictment will be lodged with the court thereafter.This statement is actually Green's main evidence for his claim that Julian Assange is not sought for "mere" questioning. But it actually proves that Assange is sought for questioning. It is worth reviewing at greater length:
7. According to Swedish law, a formal decision to indict may not be taken at the stage that the criminal process is currently at. Julian Assange's case is currently at the stage of "preliminary investigation". It will only be concluded when Julian Assange is surrendered to Sweden and has been interrogated.This statement is padded out with rehearsals of process, phrased in the gravest possible way. This is to procure an extradition. But the prosecutor cannot - on pain of perjury - avoid stating what is literally true: "subject to any matters said" by Julian Assange, he will be indicted.
8. The purpose of a preliminary investigation is to investigate the crime, provide underlying material on which to base a decision concerning prosecution and prepare the case so that all evidence can be presented at trial. Once a decision to indict has been made, an indictment is filed with the court. In the case of a person in pre-trial detention, the trial must commence within 2 weeks. Once started, the trial may not be adjourned. It can, therefore be seen that the formal decision to indict is made at an advanced stage of the criminal proceedings. There is no easy analogy to be drawn with the English criminal procedure. I issued the EAW because I was satisfied that there was substantial and probable cause to accuse Julian Assange of the offences.
[..]
10. Once the interrogation is complete it may be that further questions need to be put to witnesses or the forensic scientists. Subject to any matters said by him, which undermine my present view that he should be indicted, an indictment will be lodged with the court thereafter. It can therefore be seen that Assange is sought for the purpose of conducting criminal proceedings and that he is not sought merely to assist with our enquiries."
[Assange] is wanted for arrest. This arrest is for an alleged crime in Sweden as the procedural stage before charging (or 'indictment' )....he is misleading his readers about Swedish process. And when he says...
Assange is not wanted merely for questioning....he is saying something that is not true.
148. The Senior District Judge found on the basis of the extraneous evidence that the fact some further pre-trial evidential investigation might result in no trial taking place did not mean Mr Assange was suspected as opposed to accused... Although he could not say when or what step had been taken which could fairly be described as the commencement of the prosecution, the boundary between suspicion and investigation and prosecution had been crossed.District Judge Riddle "could not say" at what point Assange had become "an accused." He couldn't say, but he was quite certain anyway. It was a complicated matter but the conclusion was plain to him even if the ratio was not.
Upon the conclusion of the preliminary investigation, a decision on whether to institute a prosecution shall be issued.The prosecutor told the court:
Julian Assange's case is currently at the stage of "preliminary investigation".Her statement was read out in both judgments. The preliminary investigation has not concluded. Therefore, Assange is not being "prosecuted." The "boundary between suspicion and investigation and prosecution" has categorically not been crossed.
It is clear on the extrinsic evidence that a decision has not been taken to charge him. [...] We do not see why looking at the matter through cosmopolitan eyes it cannot be said that a person can be accused of an offence even though the decision has not finally been taken to prosecute or charge [...] Looking at it through cosmopolitan eyes on this basis, criminal proceedings have commenced against Mr Assange.Just like that. This is how an English court traverses logic and common sense to extradite a man who has not been charged.
The English word 'prosecution' is a translation from the Swedish 'lagforing' . This is, says the defence, a fatal ambiguity. A qualified and experienced linguist and translator, Christopher Brunski said this in a statement: 'The translation of the word 'lagforing' as criminal prosecution in the EAW of 2nd December 2010 is too narrow. It is a general term which relates to the entire legal process and can be used in either civil or criminal context. It is something of an umbrella term that encompasses other stages and legal procedures that are more strictly defined in and of themselves. There are more precise terms for prosecution in Swedish, namely atala or aklaga, both meaning to prosecute or indict' .The English courts find that Julian Assange is not charged. They find that no decision has been made to charge him. He is wanted for questioning. He is subject to "lagforing," not "prosecution." All of this is recognized. It simply doesn't matter; not where Julian Assange is the defendant. The courts take refuge in formality. They stretch the definition of "prosecution" so that it includes being sought for questioning. And then they order Assange's extradition.
So, says the defence, the warrant has not been issued specifically for prosecution. It has simply been issued for the purposes of legal proceedings. Nowhere in the warrant is the requested person referred to as an 'accused' . Similarly there is no reference to him ever having been charged or indicted. Because the warrant is equivocal, the court is entitled to examine extrinsic evidence. Moreover this is an exceptional case because the prosecutor herself had made clear unequivocal public statements that no decision has been taken yet as to whether to prosecute Mr Assange and that the EAW has been issued for the purpose. Merely for questioning him further. However the defence did not accept that it is necessary to find that this is an exceptional case in order for the court to consider the evidence bearing on the subject.
I am satisfied that there is no equivocal statement or ambiguity in the warrant. The English version of the warrant states that it is for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order. The warrant refers to offences, indicates the relevant provisions of Swedish criminal law; and identifies specific conduct against Mr Assange. There is simply nothing equivocal about the English version of the warrant. As for the Swedish language version, 'lagforing' is the term used in the official Swedish language version of the Framework Decision. Mr Robertson says this is not to the point: it simply indicates that all Swedish EAWs that use this formula are ambiguous. I cannot accept that. When the Framework Decision was agreed the Swedish authorities would undoubtedly have considered it and understood its meaning. A request for the purposes of 'lagforing' is a lawful request for the purpose of the Framework Decision and the Extradition Act 2003.
In these circumstances I am required to look to the warrant alone, and not to extrinsic evidence. It follows that the evidence I have heard and read on this question is not relevant to the decision I must make as to the validity of the warrant. I am sure the warrant is valid on the face of it.
Assange is not wanted merely for questioning. He is wanted for arrest. This arrest is for an alleged crime in Sweden as the procedural stage before charging (or 'indictment' )....is false. It falsely embellishes the court decisions. It exaggerates the circumstances under which Julian Assange is sought. It makes up facts about Swedish process. And it says something which is not true.
Assange is thereby not required for mere questioning indeed, he was questioned on 31 August 2010.Earlier in his piece, Green claimed this:
As the English High Court held (paragraphs 152 and 153):
Plainly this is a case which has moved from suspicion to accusation supported by proof. [] In England and Wales, a decision to charge is taken at a very early stage; there can be no doubt that if what Mr Assange had done had been done in England and Wales, he would have been charged and thus criminal proceedings would have been commenced.Some commentators have made the point that the prosecutors should come to the UK to question Assange. However, this appears to misunderstand the procedural stage of the investigation. Assange is not required for mere questioning; he is required to surrender for interrogation before any charges can be made and prosecution brought.
Assange has already been questioned.
On 31 August 2010, Assange was questioned about the allegations, which he denied. This interview is important, as it meant that from this stage he knew of the allegations against him.This is false. Julian Assange was interviewed on the 30th of August (not the 31st as claimed by David Allen Green). He was not questioned about "the allegations, which he denied." He was interviewed about a single allegation. There are four allegations written onto the European Arrest Warrant. Of them, at the time of the Julian Assange's interview:
Alleged "Unlawful coercion" : did not exist.
Alleged "Sexual molestation" : was the single allegation discussed.
Alleged "Sexual molestation" : did not exist.
Alleged "Lesser rape" : had been dismissed, and was only afterwards reinstated, as the result of a political intervention in the investigation.
The above four points are abundantly confirmed by the court
documents which Green refers to. Here is the account of what
happened that is agreed by both sides, which can be
read in the "Agreed
Statement
of
Facts" document submitted to the Supreme Court:
7. A preliminary investigation was commenced and both women were interviewed (SW on 20th August, and AA on 21st August). At the conclusion of those interviews, on 21st August 2010, the case was taken over by the Chief Prosecutor of Stockholm (Eva Finne). Having assessed the evidence, she cancelled the arrest warrant against the Appellant; she having made the assessment that the evidence did not disclose any offence of rape (against SW).Julian Assange was not questioned about "the allegations, which he denied." He was questioned about one allegation. This is easily verified by consulting the text of the interview itself. You will find no mention of allegations 1, 3 or 4 in the police interview. Assange was not questioned about them.
8. The preliminary investigation continued in respect of:
i. Whether the conduct alleged by SW could constitute some lesser offence,9. On 25th (sometimes erroneously referred to as 23rd) August 2010, the Chief Prosecutor determined that:
ii. Whether the conduct alleged by AA could constitute 'molestation'.
i. The conduct alleged by SW disclosed no crime at all and that file (K246314-10) would be closed.10. On 30th August 2010, the Appellant, who had voluntarily remained in Sweden to cooperate with the investigation, attended for police interview in respect of the ongoing Preliminary Investigation in respect of AA's report. He answered all questions asked of him.
ii. The preliminary investigation into the conduct alleged by AA would continue (on suspicion of the offence of 'molestation' only).
11. Meanwhile, on 27th August 2010, the counsel for SW and AA appealed the Chief Prosecutor's decision to a Senior Prosecutor in Göteborg. On 1st September 2010, that prosecutor (Marianne Ny) decided that:
i. The Preliminary Investigation in respect of file K246314-10 [SW] would be resumed, under the offence of 'rape'.
ii. The preliminary investigation into K246336-10 [AA] would be expanded to include all the conduct in the complaint.
(Police Interviewer) Mats Gehlin: [A]s noted, you are suspected and will be formally notified of that suspicion, and it is for the crime of molestation. The formal notification reads as follows:It is also clear that the description of allegation 2 in the police interview is the first time Julian Assange heard about any allegation in detail.During the period from 13 to 14 August 2010, in [AA]'s residence at Tjurbergsgatan in Stockholm, Assange molested [AA] during an act of copulation "which was begun and conducted under the express condition that a condom would be used" by purposely damaging the condom and continuing the copulation until he ejaculated in her vagina.
(Attorney for Assange) Leif Silbersky: Is that everything?
Mats Gehlin: Yes.
Leif Silbersky: When did you first hear from [AA] about the problem we are discussing today?Read the full interview. The full text is available for people to read, because, despite assurances during the interview that it would not be leaked by the Swedish police to the tabloid Expressen, it was.
Julian Assange: I have never heard about precisely this problem directly from [AA]. Today is the first time I have got an exact description of it.
Leif Silbersky: So during that entire week when you resided with [AA], from Friday to Friday and you had various sexual relations, she said nothing about a broken condom?
Julian Assange: No, nothing at all.
Leif Silbersky: O.K. I have no further questions.
Julian Assange: Before I answer that, shall I assume that this is going to go to Expressen?Recap. Of the four allegations written on the European Arrest Warrant form...
Mats Gehlin: From us? I am not going to release anything. And the only ones who are here, that's we three at this interview, plus a stenographer who will write it out afterwards. And I am the only who has access to the case file. So if it comes out in Expressen, you can quarrel with me.
Alleged "Unlawful coercion" : did not exist at the time of Julian Assange's interview. It was created by Senior Prosecutor Marianne Ny after the interview. He was not questioned about it. It was not opened as a result of his interview.
Alleged "Sexual molestation" : was the only allegation that Julian Assange was questioned about, and it was the first time he had heard it described.
Alleged "Sexual molestation" : did not exist at the time of Julian Assange's interview. It was created by Senior Prosecutor Marianne Ny after the interview. He was not questioned about it. It was not opened as a result of his interview.
Alleged "Lesser rape" : had been
dismissed by the Chief Prosecutor of Stockholm,
Eva Finne, who determined on the 25th of August that
the conduct "disclosed no crime." It was not under
investigation at the time of Julian Assange's
interview, and was reopened by a Senior Prosecutor in
Goteberg, Marianne Ny, after the interview. He was not
questioned about it, and his interview played no part
in it being reopened.
On 31 August 2010, Assange was questioned about the allegations, which he denied. This interview is important, as it meant that from this stage he knew of the allegations against him.This is, then, false. Julian Assange was not questioned about "the allegations, which he denied." He was questioned about one allegation. And he did not "from this stage [know] of the allegations against him." Julian Assange continued to be unaware of the allegations against him until he read them in the European Arrest Warrant.
[T]his appears to misunderstand the procedural stage of the investigation. Assange is not required for mere questioning; he is required to surrender for interrogation before any charges can be made and prosecution brought.In other passages (in which he again misstates a date), he goes so far as to assert that "interrogation" is a "second stage interview before a prosecution."
Assange has already been questioned.
Following this interview, the Swedish prosecutor decided to proceed with the investigation. On 22 September 2010, messages were left with Assange's lawyer saying that Assange was now required for 'interrogation' , the second stage interview before a prosecution.And:
What has become clear is that the Swedish approach to criminal proceedings is different from that of England or other common law jurisdictions. The interrogation requested takes place at a late stage, just before prosecution.David Allen Green's assertions have no basis in Swedish process. There is no distinction between "interrogation" and "interview." The idea of there being a "second stage" interview can only have come from David Allen Green's imagination. Why Green - a legal professional - felt the need to invent distinctions of Swedish process where none exist is a question only he can answer.
10. On 30th August 2010, the Appellant, who had voluntarily remained in Sweden to cooperate with the investigation, attended for police interview in respect of the ongoing Preliminary Investigation in respect of AA's report. He answered all questions asked of him.The document does, indeed, use the word "interrogation" in reference to the prosecutor's text message of the 21st of August:
14. On 21st September 2010, the prosecutor contacted the Appellant's counsel by text message to ask whether the Appellant could be made available for an interrogation on 28th September 2010.This discrepancy may be the basis on which Green invents distinctions of Swedish process. But there is no mention of this interview being a "second stage" interview. "Interrogation" is just a synonym. Later on in the same document the same interview is referred to as an "interview" over and over again:
17. [..] The Appellant offered to return to Sweden for interview on Sunday 10th October or on any date in the week commencing 11th October 2010.And so on. These uses of the word "interview" are not mentioned by Green. The court documents do not distinguish between "interrogation" and "interview." There is no claim that "interrogation" is a "second stage" interview "before any charges can be made and an indictment brought." This is an interpolation by David Allen Green which results in misleading his readership. The source material simply does not sustain that claim. It is false.
[..]
19. Therefore, on 5th and 8th October 2010, the prosecutor again contacted the Appellant's counsel to discuss possible appointments for interview. The Appellant's counsel offered to speak to the Appellant about whether he would be able to attend on 14th October 2010. During the same conversation, the Appellant's counsel offered a telephone interview (telephone interviews with suspects abroad are lawful in Sweden and qualify for the purposes of the Preliminary Investigation). That offer was declined, the prosecutor insisting that the Appellant be interviewed in person in Sweden.
20. At around the same time, the prosecutor stated that, notwithstanding the extant arrest warrant, that the Appellant was 'not a wanted man' and would be able to attend an interview 'discreetly'.
22. Statements issued by the Respondent throughout September, October and November confirmed that the investigation was ongoing and that no decision had been taken to charge or prosecute. Investigations were being undertaken and witnesses were interviewed.
23. On 12th November 2010, the Appellant's counsel invited the prosecution to propose dates for interview and offered, in the alternative, a telephone or video-link interview, or to provide a statement in writing, or to attend an interview in person at the Australian Embassy, all of which are permissible in Sweden, all of which were declined; the prosecutor insisting that the Appellant be interviewed in person in Sweden.
35. The Appellant's Counsel was permitted to examine part of the investigation file before the hearing in the District Court. The Appellant has not to date not been given the copies of the complete case file relating to the case (save those that were provided to the Swedish court by the prosecutor). Under Swedish law the Appellant is only entitled to have access to this material once a final decision to prosecute is made.In summary of all of the above, contrary to what the New Statesman's David Allen Green claims:
Julian Assange has not been "questioned about the allegations, which he denied."
Julian Assange is sought for a "mere" police interview, and not an imaginary "second stage" so-called "interrogation."
Some commentators have made the point that the prosecutors should come to the UK to question Assange. However, this appears to misunderstand the procedural stage of the investigation. Assange is not required for mere questioning; he is required to surrender for interrogation before any charges can be made and prosecution brought.As has been shown above, this is false. Assange is sought for interview.
23. On 12th November 2010, the Appellant's counsel invited the prosecution to propose dates for interview and offered, in the alternative, a telephone or video-link interview, or to provide a statement in writing, or to attend an interview in person at the Australian Embassy, all of which are permissible in Sweden, all of which were declined; the prosecutor insisting that the Appellant be interviewed in person in Sweden.Since Julian Assange came under the custody of Ecuador, its government has made diplomatic offers to facilitate an interview in the embassy in London. Sweden has refused. The Foreign Minister of Ecuador, Ricardo Patino, while formally announcing Julian Assange's asylum, said this:
24. The prosecutor decided that it was inappropriate to take the same steps under the Mutual Legal Assistance treaty.
Assange's lawyers invited Swedish authorities to take Assange statements in the premises of the Embassy of Ecuador in London. Ecuador officially conveyed to Swedish authorities its willingness to host this interview without interference or impediment to the legal processes followed in Sweden. This measure is absolutely legally possible. Sweden did not accept.These diplomatic offers are a matter of public record:
at maximum speed
at minimum cost
with minimum inconvenience to the suspect
Questioning Assange in London is and has always been the quickest, least costly way of progressing the investigation, while causing minimum inconvenience to Julian Assange.SECTION 4 of the SWEDISH CRIMINAL CODEAt the preliminary investigation, not only circumstances that are not in favour of the suspect but also circumstances in his favour shall be considered, and any evidence favourable to the suspect shall be preserved. The investigation should be conducted so that no person is unnecessarily exposed to suspicion, or put to unnecessary cost or inconvenience.
The preliminary investigation shall be conducted as expeditiously as possible. When there is no longer reason for pursuing the investigation, it shall be discontinued.
Mutual Legal AssistanceThere is an agreement for Mutual Legal Assistance, between the UK and Sweden. The Swedish government is a signatory to the European Union Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union.
Rules for ProcedureThe rules for procedure under Mutual Legal Assistance show that a foreign prosecutor can interview a suspect by telephone, by videolink, or in person, with the cooperation of the police in the United Kingdom. The Government Offices of Sweden website is in accord with this.
Broader PracticesSweden routinely interviews suspects abroad, even outside of Mutual Legal Assistance procedures. Less than eight months ago, a murder suspect was questioned in Serbia under these arrangements. An entire Swedish district court recently traveled to Rwanda to hear witnesses in a deposition over the Rwandan genocide.
[In Translation:] The procedure I propose that the prosecution should instead have resorted to is to accept Assange's offer to cooperate with a hearing in London, if the reports in the newspaper are accurate. The prosecutor would then be able to make their assessment. This procedure has been applied over the long time I myself worked. I have participated in a number of hearings held at the Swedish Embassy in London and at embassies around Europe. In this way it was possible for the investigations to be carried forward, and on several occasions, this led the prosecutor to close the preliminary investigation... That is to say, the suspect was not robbed of his freedom for any period of time, and was declared innocent.Critics suggest that to interview Julian Assange in London would be to "give him special treatment." It is clear that this is backwards. By refusing to interview Julian Assange in London, the Swedish prosecutor has singled him out for special treatment.
The Swedish embassy in London is not Swedish territory in the sense that we can hold interrogations there without formal approval of British authorities... [W]e are by law prohibited from conducting hearings via telephone or video link, this was the only legal action left.The prosecutor continued to state, untruthfully, that it was illegal for her to question Julian Assange in London, although Swedish law says that the contrary is true: that it is perfectly lawful and routine to use these procedures. She changed her tune only when to avoid doing so would amount to perjury: in her submission to the Magistrate's Court hearing in February 2011. No longer able to lie, she chose to dissemble instead:
9. It is submitted on Julian Assange's behalf that it would be possible for me to interview him by way of Mutual Legal Assistance. This is not an appropriate course in Assange's case.Interviewing Julian Assange in London would be legal, but it would not be 'appropriate.' But the prosecutor did not inform the court why it would be 'inappropriate.'
The prosecutor has also told the English courts that the need to deal with the other witnesses and expert evidence means that the interrogation stage needs to take place in Sweden. That is a matter for a prosecutor to decide. The allegations are about incident in Sweden, and in respect of Swedish complainants on the basis of witness and expert evidence in Sweden.If David Allen Green has any evidence that this reason was given to the courts, that evidence is not to be found in the court judgments. The Swedish Prosecution Authority has said something to this effect, but it was on a website, not in any public submission to the courts.
Swedish Prosecution Authority has received many questions about why the prosecutor did not go to the UK and questioning Assange. [..] The prosecutor's assessment is that, for the purpose of the investigation, Mr Assange needs to be available in Sweden during the preliminary investigation.This amounts to saying "Julian Assange needs to be in Sweden because he needs to be in Sweden." All but the least curious reader will be unhappy with this.
Without going into the details about the work of the investigation, it can be mentioned that there is a need, during interviews with Mr Assange, to be able to present, and question him about, the evidence that has emerged in the investigation to date.This is another reason that is not a reason. We all assume that Assange is not to be questioned about matters unrelated to the investigation. We are given no reason why he cannot be questioned about evidence in London. So, again, this amounts to saying "Julian Assange needs to be in Sweden because he needs to be in Sweden."
When continuing the investigation there is also a need to be able to carry out supplementary interviews, as required, with Mr Assange and the other persons involved.Assange cannot be questioned in England because there may be a need for a follow up. We are not expected to ask why that too could not happen in England. Everything is an explanation for itself.
Karen Rosander: The prosecutor has stated that according to circumstances in the investigation her opinion is that it's necessary that he is present in Sweden, and she hasn't stated exactly what circumstances, but that's her statement.The Swedish Prosecution Authority has no idea why Assange is not questioned in London.
BBC: But isn't it the case that Swedish prosecutors have gone abroad to question defendants in serious cases at other times?
Karen Rosander: Yes that's true. It has happened. And it's for the individual. It's for the prosecutor to decide which measures to take. So it's all about what the prosecutor decides to do.
BBC: But what you're saying is there are circumstances in this case that make it very different. It's hard to understand what they might be.
Karen Rosander: Yeah. And the prosecutor hasn't stated exactly what kind of circumstance - what circumstances - but that's her decision.
BBC: Would it be possible to reach some kind of agreement with Julian Assange that he wouldn't be extradited to United States, because that's what he says he's frightened of if he were to agree to travel to Sweden?
Karen Rosander: Well that's not exactly for the prosecutor to decide because that's a decision that has to be made by the Swedish government.
BBC: Wouldn't it be possible to interview him by video link, by some kind of video phone?
Karen Rosander: The prosecutor has stated that it's necessary for him being present in Sweden. And that's all she can say at the moment.
BBC: One other form of compromise that has been suggested is that he would be interviewed in the Swedish embassy, so technically on Swedish soil.
Karen Rosander: Yeah. But that doesn't really change it because the prosecutor's opinion is that it's necessary he is actually present in Sweden, according to the circumstances within this investigation.
BBC: Given what's at stake here - it's now become a great international question now hasn't it, with Ecuador, the UK, and Sweden all being involved - shouldn't the Swedish prosecutor spell out more clearly her reasons for taking this stand?
Karen Rosander: No. Her decision is that at this stage of the investigation she does not want to specify.
BBC: So how is the deadlock going to be resolved then?
Karen Rosander: I have no idea really.
The concern now is of course that you cannot turn back the clock. Too much has happened and too much prestige is involved. Today, to believe that Swedish authorities, with a British extradition decision in hand, would choose to go out to meet Assange, seems highly unlikely.On the Swedish national broadcaster, Radio Sweden, Swedish professor emeritus of international law Ove Bring:
It would have been possible to go to London directly, many months ago, when he had just arrived there. But now it's a matter of prestige, and it's a matter of prestige not only for prosecutors, but for the Swedish legal system.To interview Julian Assange would be lawful. It would progress an investigation that has been delayed long enough. And it would put to an end invidious departures from routine procedure.
From: Sven-Olof PeterssonElizabeth Farrelly, responded with another column:
Sent: 18 April 2012 09:27
To: Elizabeth Farrelly
Subject: Re: Facts on Sweden [SEC=UNCLASSIFIED]
Dear Elizabeth,
Thank you for telling us that Mr Assange is innocent of everything. I will forward that to the judicial authorities in Sweden, which seem to be in some doubt! It is good to get this straightened out from someone who clearly was present during the 'penetrations'! I'm sure the Swedish prosecutor will appreciate your advice and take immediate action!
Also, thanks for telling us that the Swedish judicial system is 'impenetrable'. I think it needed an 'architect and author' to reveal this sad state of affairs. I'm afraid to say that Swedes aren't aware at all about this terrible situation!
That only thing that does puzzles [sic] me is that if the CIA now wants to get a hold [sic] of Assange, why don't they bring it up with their colleagues in the UK? After all, the UK is supposedly the closest ally of the USA, possibly together with Australia?
Sweden has excellent relations with the US, but is not an ally! It seems the UK would be a better bet! Don't you think?
To have someone extradited from Sweden requires a crime punishable with at least one year of imprisonment.
A person risking the death penalty can not be extradited. Nor can a person be extradited for 'political' or 'military' offences!
Regards,
Sven-Olof Petersson
---------------------------------------------
Sven-Olof Petersson
Ambassador
Embassy of Sweden
5 Turrana Street, Yarralumla
Canberra ACT 2600
www.swedenabroad.com/canberra
Telephone: +61 2 6270 2732
Mobile: 0400 880 233
Fax: +61 2 6270 2755
Email: Sven-Olof.Petersson@foreign.ministry.se
Petersson responded to my April story with an angry letter, published in the Herald. His ''facts'' were that the ''Swedish judicial system is transparent and independent'' and that Assange should have ''full confidence in the Swedish judicial process''. He would say that - right?Official and elite contempt for Julian Assange is at an all time high. Absurdly, he - not the mishandling of his case - is seen to have single-handedly damaged Sweden's international reputation.
A second, angrier Petersson email came to me personally. Manfully resisting the urge to publish, I filed it, more fittingly, in the bin. And forgot about it until, this week, the emails resurfaced, unexpurgated, along with Petersson's admission that his colleagues considered his missives extreme. ''But,'' he notes, ''I couldn't stop myself!''
In these now-public letters, Petersson accused me of harbouring a ''special contempt for Sweden''. (In fact, until then, I'd always wondered why Scandinavia was so much more civilised than we.) He derided me as an ignorant fantasist, a purveyor of ''any kind of rubbish'' and - worst of all - ''an architect and writer from Downunder''.
It's pretty funny. The mis-spelling, the splatter of exclamation marks and the eggy emotion sound more like some suburban troll than a high-order professional or diplomat. The aggression is less amusing. This is how bullying works. After a while we start to anticipate, self-censor, evade the rage, like children tiptoeing around father. [..]
But when a mere opinion maddens a potentate into uncontrolled aggression, you have to wonder: why so defensive?
You do not dictate the terms if you are a suspect. Get it? /TZ #AssangeAn interesting response, but it does not yield a lawful reason. Consider:
It is lawful - indeed routine - to interview Assange in London
It is the only option available, given Assange's
extraordinary situation, and the need to safeguard his
rights
The Swedish prosecutor has an obligation to progress the investigation in a timely way
It is not for any person accused of rape and sexual assault to dictate the terms on which he is investigated, whether it be Assange or otherwise.It is not for a person accused of any crime to dictate the terms on which s/he is investigated. The mention of "rape and sexual assault" in this sentence is redundant, except if the intention is to further poison the well.
David Allen Green's chronology is highly innaccurate by comparison with official court documents and other authoritative sources. Many people know details of the Swedish case only by reading David Allen Green. These people have been entirely misled on the facts. The case Green presents is open and shut. Julian Assange's case is not.[A] detailed and sourced approach to the legal issues relevant to the Assange extradition remains important, and this post builds on the earlier post in setting out the correct legal situation. In doing this, I have no view on the ultimate outcome of the investigation and any trial. I am neutral as to whether Assange is charged[.]
[...]
The starting point is to understand what the process has been so far.
To spot Green's numerous errors, take these official,
authoritative documents:
the High Court judgment which opens with an elaborate chronology of events.
the
"Agreed
Facts" document submitted to the Supreme
Court, which contains a chronology agreed by both
sides.
Take these, and compare them with Green's
New Statesman chronology. The table below
arranges them in a readable format. The column on the left
points out where the New Statesman's legal
correspondent has deviated from the court record.
| Commentary | David
Allen
Green's Chronology |
Chronology
in "Agreed Facts" document |
Chronology
in
the
High
Court
Judgment |
|---|---|---|---|
| |
Assange came to Sweden in August 2010.
|
3. On 13th August 2010, the Appellant
entered Sweden as a visitor.
|
In August 2010 the appellant, Mr Julian
Assange, a journalist well known through his operation
of Wikileaks, visited Sweden to give a lecture.
|
| Green carefully leaves out that neither
of the complainants made allegations of rape against
Julian Assange. The language is phrased to omit mitigating details. Omitted are:
Green's language sanitizes the record of the
involuntary nature in which the complaints were made.
Interviews of witnesses confirm that neither complainant
intended to report crimes. SW's police statement records
how she terminated the interview when she discovered
that the police were treating it as the filing of a
formal report for rape. AA's police statement clearly
states that the sex described was consensual. The
investigation continues today in part because of the
politician Claes Borgström, who intervened in the case
to have himself assigned as state attorney to the
complainants. He claims that whether AA and SW believe
they were wronged is irrelevant, because neither of them
is a lawyer. These and numerous other mitigating details
abound. Green expunges them, in favour of slogans
calling for "justice for the two women." See the section of this document titled "HOW
DID THIS HAPPEN?" for the full list of important
details on this sequence of events. |
Two years ago serious allegations of
sexual assault and rape were made against Julian
Assange, the founder and editor-in-chief of Wikileaks.
The allegations followed a visit by two women (known in legal documents as AA and SW) to a Swedish police station on 20 August 2010. From what they told the police, a formal criminal investigation was commenced. Due process started its course. and
Between 13 and 18 August there was a
sequence of alleged incidents of sexual abuse against
AA. There was also an allegation of rape in respect of
SW.
On 20 August 2010 both AA and SW went to a police station. As a result of what the police were told, a criminal investigation was commenced into sexual molestation. |
4. During his visit he had sexual
intercourse with two women [AA and SW]. After AA and SW
spoke to each other and realised that they had both had
intercourse with the Appellant during the currency of
his visit in circumstances where respectively they had
or might have been or become unprotected against disease
or pregnancy, SW wanted the Appellant to get tested for
disease. On 20th August 2010 SW went to the police to
seek advice. AA accompanied her for support. The police
treated their visit as the filing of formal reports for
rape of SW and molestation of AA.
5. The reports were filed as: i. Case No. K246314-10 [complainant SW] as 'rape'.6. On 20th August, police related the reports to the on-duty assistant prosecutor (Maria Kjellstrand) over the telephone who, at 5pm, ordered that the Appellant should be arrested. |
Between 13 August 2010 and 18 August
2010, Mr Assange had sexual relations with two women
there, AA and SW. On 20 August 2010 SW, accompanied by
AA, went to the police. The police treated their visits
as the filing of complaints.
|
| Green doesn't say that Chief Prosecutor of
Stockholm, Eva Finne cancelled the arrest warrant. This is important, because the public is given a misleading impression that the case proceeded in a straightforward way. |
(nothing) |
7. A preliminary investigation was
commenced and both women were interviewed (SW on 20th
August, and AA on 21st August). At the conclusion of
those interviews, on 21st August 2010, the case was
taken over by the Chief Prosecutor of Stockholm (Eva
Finne). Having assessed the evidence, she cancelled the
arrest warrant against the Appellant; she having made
the assessment that the evidence did not disclose any
offence of rape (against SW).
|
|
| Green does not describe how the preliminary
investigation was scaling down. |
(nothing) |
8. The preliminary investigation
continued in respect of:
i. Whether the conduct alleged by SW could constitute some lesser offence, |
|
| Green omits that the Chief Prosecutor Eva
Finne closed SW's file, having determined that the
conduct alleged in SW's involuntary statement disclosed
no crime. He neglects to mention that, at this point, one allegation remained. This is important, because the reader is later given the impression by Green that Assange's subsequent interview was in respect of "the allegations against him." This is false, as shown in the section of this document titled 'The claim: "Julian Assange has already been questioned."' |
(nothing) |
9. On 25th (sometimes erroneously
referred to as 23rd) August 2010, the Chief Prosecutor
determined that:
i. The conduct alleged by SW disclosed no crime at all and that file (K246314-10) would be closed. |
|
| Green falsely states the date of Assange's
interview as the 31st August. This discloses careless
research. Green omits any mention of the fact that Assange voluntarily remained in Sweden to cooperate with the investigation. Green claims that Assange was questioned about "the allegations," plural, and from this point "knew of the allegations against him." This is false. Assange was questioned about one allegation.
|
On 31 August 2010, Assange was
questioned about the allegations, which he denied. This
interview is important, as it meant that from this stage
he knew of the allegations against him.
|
10. On 30th August 2010, the Appellant,
who had voluntarily remained in Sweden to cooperate with
the investigation, attended for police interview in
respect of the ongoing Preliminary Investigation in
respect of AA's report. He answered all questions
asked of him.
|
On 30 August 2010 Mr Assange, who had
voluntarily remained in Sweden to co-operate with the
investigation, was interviewed.
|
| Green falsely implies that a decision to
"proceed with the investigation" followed from Assange's
interview. This is false. The investigation was not "proceeded with." It was taken over by a political faction within the Swedish political system. The takeover did not "follow from" Assange's interview, but was the result of an appeals process that happened independently of Assange's interview. A politician, Claes Borgström, running for election in 2010 on rape law reform grounds had himself assigned as the state attorney for the involuntary complainants. He appealed Eva Finne's decision to a party colleague in Göteborg, Marianne Ny, also running for election on the same grounds. The case was reopened by Ny after a police interviewer - another party colleague - retroactively edited SW's police statement, bringing the description of the alleged conduct within the scope of rape laws. All of these highly irregular political interventions, involving multiple prosecutors, are summarised by Green with these words: "the Swedish prosecutor decided to proceed with the investigation." See the section of this document titled "HOW DID THIS HAPPEN?" for the full list of important details on this sequence of events. |
Following this interview, the Swedish
prosecutor decided to proceed with the investigation.
|
11. Meanwhile, on 27th August 2010, the
counsel for SW and AA appealed the Chief Prosecutor's
decision to a Senior Prosecutor in Göteborg. On 1st
September 2010, that prosecutor (Marianne Ny) decided
that:
i. The Preliminary Investigation in respect of file K246314-10 [SW] would be resumed, under the offence of 'rape'. |
|
| Green omits any mention of the fact that
Mr. Assange made multiple efforts to be interviewed in
connection with the reinstated allegations. |
(nothing) |
12. The Appellant instructed Mr Hurtig
to act for him as counsel. Between 8th 14th
September 2010, the Appellant's counsel requested that
he be interviewed. That request was deferred by the
prosecutor.
|
|
| Green omits any mention of the fact that
the prosecutor gave Assange permission to leave Sweden. Green neglects to mention that the prosecutor refused to interview Assange, because "the investigator was ill." |
(nothing) |
13. On 14th September 2010, the
Appellant's counsel enquired in writing as to whether
the Appellant was permitted to leave Sweden. On 15th
September 2010, the prosecutor informed the Appellant's
counsel that he was free to leave Sweden. She advised
him that investigations were ongoing. The Appellant's
counsel asked whether the interrogation could take place
in the next few days but was told it could not because
the investigator was ill.
|
|
| Green again falsely states the date of an
event, indicating slovenly research. Green falsely distinguishes between "interrogation" and "interview" in the court documents. The documents use the words interchangeably. "Interrogation" and "interview" are synonymous in translation. For more detail on this, see the end of the section of this document titled 'The claim: "Julian Assange has already been questioned."' |
On 22 September 2010, messages were
left with Assange's lawyer saying that Assange was now
required for 'interrogation' , the second stage
interview before a prosecution.
|
14. On 21st September 2010, the
prosecutor contacted the Appellant's counsel by text
message to ask whether the Appellant could be made
available for an interrogation on 28th September 2010.
The date was provisionally agreed.
|
Attempts had been made by the Swedish
prosecutor to interview him.
|
| Assange's lawyer, Bjorn Hurtig, informed
the prosecutor he was unable to communicate with Assange
on the 27th of September 2010. Green implies, with "he then claimed," that he only revealed this in court in 2011. In this, Green is contradicting the record. |
(Assange's Swedish lawyer was later to
falsely maintain that the prosecutor had not tried to
contact him. When this was exposed as incorrect, he then
claimed that he was not able to pass the messages on to
his client.)
|
15. On 27th September 2010, the
Appellant's counsel advised the prosecutor that he had
been unable to contact the Appellant. The
prosecutor stated that she would consider how to
proceed. Later that day, the prosecutor ordered that the
Appellant should be arrested.
|
|
| Green claims that "it is not clear whether
Assange was aware of the request for interrogation." This
is false. The record clearly states that Hurtig had stated
to the prosecutor that he had not been able to inform
Assange of the request. The High Court Court determined: "Mr Assange subsequently left Sweden on or about 27 September 2010 in ignorance of the fact that an arrest warrant had been issued." |
On or about 27 September 2010, Assange
left Sweden for England.
It is not clear whether Assange was aware of the request for interrogation. However, his Swedish lawyer confirmed that Assange could return in October 2010. This offer is declined by the prosecutor, as Assange was then required sooner. |
17. On 30th September 2010, the
Appellant's counsel was advised of the existence of the
arrest warrant. He advised the prosecutor that the
Appellant was by then abroad. The Appellant had left
Sweden on 27th September 2010. The Appellant
offered to return to Sweden for interview on Sunday 10th
October or on any date in the week commencing 11th
October 2010. The Sunday was rejected as inappropriate.
The week commencing 11th October 2010 was later rejected
as being too far away.
|
Mr Assange subsequently left Sweden on
or about 27 September 2010 in ignorance of the fact that
an arrest warrant had been issued.
|
|
18. The Respondent believed that the
Appellant was attending a lecture in Stockholm on 4th
October 2010. Plans were made to detain him then but
that information proved inaccurate.
|
|||
| Green neglects to mention that an offer was
made to conduct the interview - in an entirely lawful
manner - over the telephone, and that that offer was
declined. |
(nothing) |
19. Therefore, on 5th and 8th October
2010, the prosecutor again contacted the Appellant's
counsel to discuss possible appointments for interview.
The Appellant's counsel offered to speak to the
Appellant about whether he would be able to attend on
14th October 2010. During the same conversation, the
Appellant's counsel offered a telephone interview
(telephone interviews with suspects abroad are lawful in
Sweden and qualify for the purposes of the Preliminary
Investigation). That offer was declined, the prosecutor
insisting that the Appellant be interviewed in person in
Sweden.
|
|
| Green fails to mention that the prosecutor
stated that Assange was "not a wanted man." This would be
inconsistent with Green's false claim that a decision had
been made to charge Assange. Green fails to mention that the prosecutor had stated that Assange could attend an "interview 'discreetly.'" This would be inconsistent with Green's false claim that Assange was no longer required for an interview, but for an imaginary "second stage" "interrogation." |
(nothing) |
20. At around the same time, the
prosecutor stated that, notwithstanding the extant
arrest warrant, that the Appellant was 'not a wanted
man' and would be able to attend an interview
'discreetly'.
|
|
|
21. On 12th October 2010, the
Appellant's counsel advised the prosecutor that he had
been unable to contact the Appellant. The prosecutor
indicated her intention to issue an EAW if the Appellant
did not attend for interview.
|
|||
| Green fails to mention that the prosecutor
had confirmed on multiple occasions that the investigation
was ongoing, and that no decision had been taken to
charge or prosecute Mr. Assange. |
(nothing) |
22. Statements issued by the Respondent
throughout September, October and November confirmed
that the investigation was ongoing and that no decision
had been taken to charge or prosecute. Investigations
were being undertaken and witnesses were interviewed.
|
|
| Green leaves out the fact that all
discussion over Assange's cooperation with the
investigation referred to an "interview" and not some
imaginary "second stage" "interrogation." Green again neglects to describe how Assange made efforts to be interviewed by the Swedish authorities, and offered numerous perfectly lawful methods for doing so. |
(nothing) |
23. On 12th November 2010, the
Appellant's counsel invited the prosecution to propose
dates for interview and offered, in the
alternative, a telephone or video-link interview, or to provide a statement in writing, or to attend an interview in person at the Australian Embassy, all of which are permissible in Sweden, all of which were declined; the prosecutor insisting that the Appellant be interviewed in person in Sweden. |
|
| In doing so, Green conceals that these offers were refused without a satisfactory argument by the Swedish authorities. | (nothing) |
24. The prosecutor decided that it was
inappropriate to take the same steps under the Mutual
Legal Assistance treaty.
|
|
| Green once again is inaccurate on the dates of a major event in the chronology - yet more indication of the cursory attention to detail he has afforded his subject matter. |
The Swedish prosecutor proceeded to
obtain a warrant for Assange's arrest on 20 November
2010.
|
25. On 18th November 2010, the
prosecutor applied to the Stockholm District Court for a
detention order in absentia upon the prosecutor's
assertion of reasonable suspicion of the commission of:
i. In case No. K246314-10 [complainant SW]; the offence of rape. 26. On the same date, the Stockholm District Court granted the prosecutor's application for a domestic detention order in absentia. |
|
|
Assange instructed his Swedish lawyer
to challenge the warrant and it is appealed to the Court
of Appeal of Svea.
|
27. On 19th November 2010, the
Appellant appealed that order to the Svea Court of
Appeal.
|
||
| Green neglects to mention the reduction of
the most serious allegation to a less serious allegation. Green omits any reference to the fact that in the prosecutor's written submissions to the Svea Court of Appeal, she makes clear that she is seeking the arrest warrant in order to "enable the implementation of the preliminary investigation," and not in order to charge Mr. Assange In doing so, Green affords misleading severity to the claim that "the allegations giving rise to the warrant have already been tested in the Swedish legal system," since the purpose of the warrant is to secure an interview on the terms dictated by the prosecutor, and not to charge Julian Assange. |
On 24 November 2010 the appeal court
upheld the warrant. The significance of this is
that the allegations giving rise to the warrant have
already been tested in the Swedish legal system.
|
28. On 24th November 2010, following
written argument on behalf of the parties, in which it
was argued on behalf of the Appellant that the domestic
arrest was not proportionate and not based on sufficient
evidence giving rise to probable cause, but without an
oral hearing, the order was upheld by the Svea Court of
Appeal (albeit that the rape allegation concerning
complainant SW was reduced to 'minor rape').
29. The prosecutor's written submissions to the Svea Court of Appeal on 24th November 2010 confirmed that she was; '...requesting the arrest of Assange in order to enable implementation of the preliminary investigation...' . |
After proceedings in the courts of
Sweden, including a hearing before the Court of Appeal
of Svea on 24 November 2010, at which Mr Assange was
represented...
|
|
On 26 November 2010 the prosecutor
issued a European Arrest Warrant (EAW).
|
30. On 26th November 2010, an EAW was
issued by the prosecutor pursuant to the Council of the
European Union Framework Decision on the European arrest
warrant and surrender procedures between member states
of the European Union 2002/584/JHA ('the Framework
decision' ).
|
...a European Arrest Warrant (EAW) was
issued on 26 November 2010 by the Swedish Prosecution
Authority (the Prosecutor), the Respondent to this
appeal. It was signed by Marianne N y, a prosecutor. The
warrant stated that:
"This warrant has been issued by a competent authority. I request the person mentioned below be arrested and surrendered for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order". |
|
| Green's account makes no mention of the fact that SOCA's certification of the EAW was initially refused. | (nothing) |
31. The EAW was submitted to the United
Kingdom, and received by the Serious Organised Crime
Agency ('SOCA' ); an authority designated by the
Secretary of State for the purposes of Part 1 of the
2003 Act (by The Extradition Act 2003 (Part 1 Designated
Authorities) Order 2003 (SI 2003 No. 3109) as amended by
the Serious Organised Crime & Police Act 2006
(Consequential and Supplementary Amendments to Secondary
Legislation) Order 2006 (SI 2006 No. 594)).
32. SOCA declined to certify the EAW because it was not a valid Part 1 Warrant in that it failed to specify the punishability in respect of each offence. |
|
|
33. On 28th November 2010, the
Appellant applied to the Supreme Court for permission to
appeal the decision of the Svea Court of Appeal. On 2nd
December 2010, that application was refused.
|
|||
|
34. On 2nd December 2010, a replacement
EAW was issued by the prosecutor and again submitted to
SOCA. This EAW was issued by Marianne Ny, a Director of
Public Prosecutions, as 'issuing judicial
authority' and bears the stamp of the Swedish
Prosecution Authority. The EAW refers in box (b) to the
decision of the Svea Court of Appeal as being the
decision on arrest on which it was based.
|
|||
| Green's account is silent on the fact that
Julian Assange has not been given access to the copies of
the complete case file, because no final decision has
been made to prosecute. This detail is omitted while Green argues that Assange is not sought for questioning, but for a mere formality before he is indicted, which is a false statement of the situation as it stands. For more on this, see the section of this document titled 'The claim: "Julian Assange has already been questioned."' |
(nothing) |
35. The Appellant's Counsel was
permitted to examine part of the investigation file
before the hearing in the District Court. The Appellant
has not to date not been given the copies of the
complete case file relating to the case (save those that
were provided to the Swedish court by the
prosecutor). Under Swedish law the Appellant is only
entitled to
have access to this material once a final decision to prosecute is made. |
|
| Green leaves out the measures Julian
Assange took at all times to comply with procedure. |
(nothing) |
36. The Appellant had instructed
lawyers in the United Kingdom to write to the
Metropolitan Police extradition squad after he heard
that the prosecutor might seek an EAW.
|
|
| Green's account makes no mention of the
fact that SOCA's certification of the EAW was initially
refused. The second EAW issued is the only one Green's
readers know of. |
This EAW is certified by the UK serious
crime agency on 6 December 2010.
|
37. On 6th December 2010, the EAW was
certified by SOCA under s2(7) & (8) of the 2003 Act.
|
On 6 December 2010 the EAW was
certified by the Serious and Organised Crime Agency
(SOCA) under the Extradition Act 2003, (the 2003 Act),
as complying with the requirements of the 2003 Act.
|
|
38. The Metropolitan police contacted
the Appellant's then lawyers and arranged to arrest him
by consent on 7th December 2010, when the Appellant
voluntarily surrendered himself for arrest by
appointment. A sample of the Appellant's DNA was taken
under lawful authority at this time.
|
On 7 December 2010 Mr Assange
surrendered himself for arrest.
|
||
|
39. The 'initial hearing' was conducted
at City of Westminster Magistrates' Court pursuant to
section 4 of the 2003 Act. The Appellant was initially
refused bail on 7th December but was subsequently
granted bail subject to conditions by the High Court on
16th December 2010.
|
|||
|
Assange instructed his English lawyers
to challenge the EAW, and a hearing was held before the
Chief Magistrate of England and Wales on 7 and 8
February 2011. Assange's barrister attacked the
extradition on a number of detailed grounds.
|
40. The 'extradition hearing' took
place before the Senior District Judge (Judge Riddle) at
City of Westminster Magistrates' Court (sitting at
Belmarsh Magistrates' Court) on 7th, 8th & 11th
February 2011. Witnesses gave live evidence before the
District Judge. The District Judge reserved judgment.
|
On 7, 8 and 11 February 2011 there was
a hearing before the Senior District Judge and Chief
Magistrate, Senior District Judge Riddle. Evidence was
given by Brita Sundberg-Weitman, a former judge of the
Svea Court of Appeal and distinguished jurist, Mr Goran
Rudling, an expert in the law relating to sexual
offences in Sweden, Mr Sven-Eric Alhern, a retired
senior prosecutor, and Mr Bjorn Hurtig, Mr Assange's
lawyer in Sweden. The evidence is carefully summarised
in the judgment of the Senior District Judge.
|
|
|
However, in a detailed
judgment handed down on 24 February 2011, it was
decided that the EAW was valid and that the alleged
offences would constitute offences both in England and
Sweden.
|
41. On 24th February 2011, the
Appellant's extradition was ordered by the Senior
District Judge.
|
In a judgment given on 24 February 2011
the Senior District Judge ordered Mr Assange's
extradition.
|
|
|
Assange then instructed new English
lawyers to appeal the decision of the Chief Magistrate.
|
42. Within the applicable time limits,
on 1st March 2011, pursuant to section 26 of the 2003
Act, the Appellant appealed against the extradition
order.
|
||
|
This hearing took place at the High
Court on 12 and 13 July 2011. Just as Assange had had
the Chief Magistrate at the first hearing, the High
Court was headed by the President of the Queen's Bench
Division. Again, Assange's case was being dealt with by
a senior and experienced judge.
|
43. On 12th & 13th July 2011, the
Appeal was heard before the High Court, consisting of
the Right Honourable Sir John Thomas PQBD and the
Honourable Mr. Justice Ouseley.
|
||
|
44. The High Court considered four
appeal grounds:
a. The EAW had not been issued by a "judicial authority". |
Mr Assange originally appealed on a
number of grounds; these were reduced to five in a
skeleton argument served on behalf of Mr Assange on 29
June 2011. As a result of clarification provided by the
Prosecutor, and an amendment to the translation of one
of the parts of the EAW, one of those grounds was
withdrawn. The four issues that arose on the grounds can
be briefly summarised as follows:
i) The EAW had not been issued by a "judicial authority". The first issue was argued as the last issue, but it is convenient to consider the issues in the order we have set them out. |
||
|
45. The High Court reserved judgement.
|
|||
|
The High Court took three and a half
months to consider Assange's legal submissions and in a
carefully detailed and reasoned judgment dated 11
November 2011 the High Court rejected each ground of
appeal. In particular, they held that the allegations in
the EAW would constitute offences in English law.
|
46. On 2nd November 2011, the High
Court dismissed the appeal, pursuant
to section 27(1)(b) of the 2003 Act. The Court held that: a. The Swedish prosecutor was a judicial authority, because the term 'judicial' was not limited to a judge who adjudicates and could also include a prosecutorial body, as envisaged by Article 6 of the Framework Decision (judgment §§20-54); |
||
|
47. On 5th December 2011, the High
Court certified that the following point of law of
general public importance was involved in its decision,
pursuant to section 32(4)(a) of the 2003 Act:
'...Whether a European Arrest Warrant ('EAW') issued by a public prosecutor is a valid Part 1 Warrant issued by a 'judicial authority' within the meaning of sections 2(2) & 66 of the Extradition Act 2003?...' |
|||
|
52. The High Court refused to certify
another point of law.
|
|||
|
48. The High Court refused leave to
appeal to the Supreme Court.
|
|||
|
49. Within the applicable time limits,
on 15th December 2011, pursuant to section 32 of the
2003 Act, the Appellant applied to the Supreme Court for
permission to appeal against the High Court's ruling.
|
|||
|
Assange was then given one further
opportunity to appeal.
|
50. On 16th December 2011, the Appeal
Panel of Supreme Court (Lord Hope DPSC, Lord Mance JSC
and Lord Dyson JSC) granted the Appellant permission to
appeal to the Supreme Court.
|
||
|
51. No grounds of appeal were left
undetermined by the High Court.
|
|||
|
In February 2012, the Supreme Court
heard argument on the technical but important point of
whether the Swedish prosecution authority could issue an
EAW.
|
52. The issues of the Supreme Court
case: Whether a public prosecutor is a judicial
authority.
|
