The following is a reconstruction of the Julian Assange extradition proceedings on 11 February 2011 based primarily on the tweets of @federicacocco (Federica Cocco) and in much smaller part from the tweets of @channel4news. WL Central acknowledges those sources. The tweets have been preserved as much as possible and combined but are rewritten in parts for clarity, and legal terminology has been inserted where appropriate. Clarifying additions are generally in italics and may be assumptions within the legal context.
SC Robertson’s Submissions.
Robertson QC opens submissions with an account of the attack on Julian Assange by Fredrik Reinfeldt, prime minister of Sweden; Robertson says that Reinfeldt's comments earlier this week amount to his labelling Assange an "enemy of the people" in Sweden.
"This will influence a fair trial,” says Robertson, who quotes the prime minister as claiming that Assange and his lawyers are “sexist and condescending to Sweden."
The Swedish chancellor added to the prime minister's remarks, which Robertson says is an intolerable development; he adds that it is unprecedented for a government minister to comment in that way.
News broke last night on February 8 as a court unsealed three motions filed on behalf of Icelandic parliamentarian Birgitta Jonsdottir by the American Civil Liberties Union (ACLU) and Electronic Frontier Foundation (EFF) last month. The motions were filed in response to the U.S. government’s targeting of Twitter accounts as part of an investigation related to WikiLeaks.
Additionally, it was reported that a grand jury in Alexandria, Virginia will be held on February 15 on whether there is legal justification for the Justice Department to request Twitter account details and whether the Justice Department order for Twitter turn over account information should be kept under seal.
Federal prosecutors are and have been seeking to obtain information on Icelandic parliamentarian Birgitta Jonsdottir, Dutch hacker and entrepreneur Roy Gonggrijp and US computer programmer and known WikiLeaks volunteer Jacob Appelbaum as well as “subscriber account information” for Bradley Manning, who has been charged with leaking classified information, and WikiLeaks leader Julian Assange.
The Witness Statement of Bjorn Hurtig, Swedish counsel for the defense of Julian Assange - Summary
The original statement is available here, and the supporting documents are here, here, and here. In this document, Mr Hurtig describes the case against Mr Assange to the London defense team as one of the weakest he has ever seen in his entire fifteen year career. In this document London defense Mark Stephens asserts that the Swedish prosecutor sought not just to have Mr Assange imprisoned while under investigation, but also placed in solitary confinement. The key points of Mr Assange's skeleton argument were summarized here.
Mr Hurtig states that the manner in which Ms Ny (the Swedish Prosecutor) has handled Mr Assange's case is not in compliance with the concept of a fair trial.
Mr Assange will most certainly be brought to trial behind closed doors, initially and in the Court of Appeal. Mr Assange, who has endured an avalanche of bad publicity, will be heard with no witnesses to view the weaknesses of the case and thus no opportunity to clear his name. Prosecution witnesses will not be refuted by any new witnesses coming forward, because no one will hear their testimony.
The trial will be heard by a judge and three laypersons who are appointed by, and often members of, a political party.
The trial may be affected by media prejudice caused by the unfair conduct of police and prosecutors. Before the complainants were properly interviewed, and thus before an investigation ought to have begun, a prosecutor told the Expressen newspaper that Mr Assange was being investigated for rape, a serious breach of Swedish anonymity law. Despite this breach, the prosecutor has not been disciplined and the Justice Ombudsman has refused to accept a complaint made against her.
Ya no queda ninguna duda de que Wikileaks está siendo atacada: amenazas directas desde el Pentágono; llamamientos al ataque militar por parte de la vieja derecha neo-conservadora, – que incluye un intento de juzgarla como espía usando una vieja ley de 1917 ; los sonados boicots de Paypal, Moneybookers, Amazon y ahora incluso Apple; la reticencia del gobierno Australiano para defender a su ciudadano (Julian Assange), el rechazo de su residencia en Suecia sin explicación alguna por parte de las autoridades, y la lista crece.
Ahora bien, aunque muchas voces han insinuado, o abiertamente declarado, que las acusaciones de violación del Sr. Assange son una faceta más de esta campaña, por su naturaleza sensible es mejor no apresurarse en llegar a conclusiones. Lo que sí es seguro es que las constantes irregularidades del caso lo hacen cuestionable, razón por la cual cada vez hay más voces expresando su preocupación por la verdadera motivación de las acusaciones. A mediados de agosto y en pleno revuelo de las filtraciones hechas por su organización sobre la guerra de Afganistán, el Sr. Assange salía casualmente con una politóloga liberal e activista sueca, Anna Ardin. Según su versión este la habría forzado sexualmente la noche del 14 de ese mes, por lo que una semana después presentó una demanda formal.
After the positive feedback on the report I did last time - I decided to go once more to London. A different journey: Last time was spur of the moment and very intuitive. If Gallilei lived today, I would have wanted to go to THAT process and this is about the biggest thing to happen in my profession (archiving) for the coming 100 years!!! I think Wikileaks is also a sign of a lot of other things that will start shifting.
This time my decision is more controlled. I have less to 'do' for myself and one of my purposes is definitely pure support. I feel that at this time consistent, levelheaded support is very needed.
I was again early and noticed that there was slightly less press and slightly less security. The latter probably because the police now put a fence round the entrance and the road throughout and felt more in control that way. I walked straight to the entrance to queue for the public and at 8:30 could proceed to the court room without further ado.
On the public gallery the security was one policeman up - but it was possible to wait there. Courtroom staff were less itchy than they were the last time. There were now two women in charge. Despite supporting Wikileaks, I have frowned my eyebrows at remarks that a pink cashmere sweater is apparently not appropriate on official occasions. The eyes of the people making that remark would have popped out here. Belmarsh Crown Court female staff loves high, very high (!) heels and I saw several people in fishnet stockings!
The Australian attorney general's response to an open letter to the Australian Prime Minister Julia Gillard re Julian Assange
The hearing opened with Clare Montgomery QC, for the Crown Prosecution Service on behalf of the Swedish authorities. Opening submissions are that the Swedish prosecutor, Marianne Ny, is asserted to be an issuing authority for the purposes of a European Arrest Warrant (EAW).
In relation to the offences, the court decides that the alleged victims are to be called Woman A (three counts of sexual assault alleged) and Woman B (one count of r*pe alleged)
Ms Montgomery says the matters are extraditable offences because the definitions in the two countries are the same. "Mr Assange had sexual intercourse with her and exploited the fact that she was asleep." This is submitted to be an offence under English law. In relation to Woman A there are three counts of sexual assault "without consent" and again contrary to English law.
Julian Assange appears tomorrow, 7 February, at Westminster Magistrates Court for what has been announced as a two-day hearing, but judging from past extradition hearings in the UK, it is likely (with appeals) to take much longer, even a year or more, with the second-last word being that of the Supreme Court (formerly House of Lords) and then, under certain circumstances, the last word from the Home Secretary.
Readers should note that the procedure is not to judge the actual case on its merits as a criminal procedure but to judge it according to relevant sections of the UK Extradition Act. Such evidence of the alleged offences that has surfaced is only relevant indirectly, such as to prosecutorial abuses, not to the arguable merits of that evidence and a future case in Sweden if extradition occurs.
The Skeleton Argumentbegins with a challenge to prosecutor Ms Ny’s authority to issue an European Arrest Warrant (EAW). The case of Enander v. The Swedish National Police Board  EWHC 3036 (Admin) is cited; it states that only the Swedish National Police Board is the authorised authority.
Julian Assange was placed in international proceedings based on a European Arrest Warrant issued by Swedish prosecutors. European Union (EU) countries have a treaty that facilitates the process of a speedy extradition from one EU country to another, and beginning on Monday, February 7, a two-day hearing at Belmarsh Woolwich Crown Court in south London will determine whether Assange will be extradited from the UK to Sweden to face sex-crime accusations. He has been accused but has not been charged.
If Assange should lose, he will be extradited to Sweden unless he appeals the decision and wins. If he appeals, the appeal would be made to the Administrative Court, but it could be several months before it is heard. If that appeal is lost, an appeal to the Supreme Court is possible but not guaranteed. If a second appeal to the Supreme Court were to be made and lost, there is a third possibility, an appeal to the European Court of Human Rights in Strasbourg. Again, the possibility of a third appeal is not guaranteed.
Extradition from Sweden to US
Whatever happens in Sweden once Assange is extradited (on the hypothetical assumption that he will be), the US may indict him and have him "temporarily transferred," with Sweden's consent, so that he may face prosecution in the US. This can be done, legally, either before or after Assange undergoes trial in Sweden, according to the US/Sweden extradition treaty supplement (pdf) .
We owe a huge debt of gratitude to Wikileaks, not only for the exposure of the lies and deceptions of various world powers, not just for exposure of the inner workings and chicanery of state institutions and corporations, their hypocrisy and double dealings, but also for what follows in future: the advancement of human rights for all, and a major corollary of that, the increased potential for prosecution of those who have prima facie cases to answer for breaches of human rights.
Firstly some analogies with theoretical physics.
For theoretical physicists like Lawrence Krauss, (whose understandable scientific explanations of the universe leave this writer in awe), supernova are useful as standard candles …for which the intrinsic brightness, the absolute magnitude, is known. This allows the object's distance to be measured from its actual observed brightness, or apparent magnitude. With distance and the amount of spectrum “redshift” the expansion of the universe can be measured, and its present acceleration.
If I may draw an analogy, for those concerned about human rights, Wikileaks is akin to a supernova, it is our “standard candle,” so to speak. Not only is it an additional and great illumination for breaches of our measurable “universal” human rights but it has created a new standard for real journalism and in so doing has motivated the world in moral and legal outrage to a significantly higher plane. It has struck a chord with so many, in so many dimensions all over the world. It is difficult to quantify those dimensions, but the human rights aspect of it is not only real but palpable.
It is not clear from the UK Press Association report why Swedish Prime Minister Fredrik Reinfeldt responded to reporters' questions about Julian Assange in London two days ago by addressing the hypothetical question of Assange's extradition from Sweden to the US, but he didn't dismiss it as hypothetical:
Mr Reinfeldt said Sweden's policy was not to extradite people to countries with the death penalty. But he said Sweden's courts, not its government, would decide that. ...
"We should remember when we ask questions about this that these are legal systems talking to each other, not politicians."
We know from the cables and other sources (see the summary in section 7, 92-96, of the "skeleton" legal argument) that Swedish courts have in the past been complicit in the illegal kidnapping of refugee claimants by US agents. More broadly, the role of diplomacy as mediator between law and politics has arisen repeatedly in many of the cables released by its major media partners and WikiLeaks.
Since the role of the courts is usually to interpret legislation ("policy") or to strike it down if it is unconstitutional, Reinfeldt's apparent failure to affirm Swedish refusal to extradite to countries that retain capital punishment raises questions.
Via @calixte on Twitter
We are indebted to Julian Assange who apparently instructed his counsel to make available the "Skeleton Argument" for the extradition hearing proper.
It was expected, per my previous post Extradition Part 3 that the issue of extradition (and arrest) for the purposes of investigation only, would be a highly significant issue for the extradition arguments, and so it was.
One part of that document however that shocked me, that I have discussed with colleagues (likewise shocked) was paragraph 88, the legal implications of which I was unaware. It now seems that some (or indeed all?) of the prospective charges of a sexual nature in Sweden do not have as a required element that the prosecution must prove (for a conviction to be sustained) the element of mens rea, the "guilty mind" otherwise known as the fault element.
Last Monday at 16.30, I was on the internet, trying to help some people find their way around London to be able to go to Belmarsh court. And then it suddenly dawned on me that, after having followed Wikileaks intensely over the last couple of weeks, it would be a good thing to go as well. This is a short account of my experiences - together with practical ideas about the next court-hearing on the 7th and 8th of February.
How to get there:
Travel to Bank-underground station
Take the "light rail train" to Woolwich-Arsenal from there
A short walk away from the trainstation is a busstop - take bus 244/380
The journey took me 1 1/2 hour.
I had mailed the court in advance firstname.lastname@example.org to ask if there was anything I should be aware of. And this was their reply:
Please see link, the hearing is at 10am, there will be a public gallery, but please get there early. http://www.hmcourts-service.gov.uk/HMCSCourtFinder/SearchLinked.do?court...
So I did - I planned to be there at 8.00 and the whole place was already full of press, vehicles, cameras etc. They were all huddled up behind some type of railing & I was told to go to the front-door of the court and start a queue there. Before I did I had a bit of a chat with whoever was interested. The most intriguing conversation was with a journalist from Expressen: the Swedish paper that broke the news on the rape charges. I said to her that they would know who would have told them the news (see this link http://radsoft.net/news/20101202,00.shtml I don't like the tone of the article, but I love the logic!) & she was like "but we keep our sources confidential". And I was like - "but you must know the full story, would a rape victim have gone to you to advertise??" Funniest was that another journalist joined me and she became more and more agitated.
Jacob Appelbaum is a security analyst who works on Tor and Wikileaks, and has been very instrumental in discovering weaknesses in the Haystack system, among other things. He has gained notoriety with the US government through acting as a speaker and advocate of Wikileaks, and became widely known last fall after a Rolling Stone article calling him "The Most Dangerous Man in Cyberspace" and "The American hacker behind Wikileaks". Recently he was one of the subjects of a subpoena from the US DoJ requesting information from Twitter.
While the Twitter story broke he was in Iceland, and he returned to the US on Monday. He has been the subject of repeated harassment at airports this year, and apparently Monday was no exception, despite members of the ACLU meeting him at the airport. He will be headed to Toronto this weekend and will be able to experience the independence (or not) of Canadian customs.
His tweets on his most recent experience arriving in the US:
Julian Assange's lawyer, Mark Stephens, delivered a 35-page skeleton outline of his court arguments to various media after the brief review hearing this morning at Belmarsh magistrates court (paraphrased in brief):
(1) It is not accepted that the Swedish prosecutor is authorised to issue European Arrest Warrants (EAW).
(2) European arrest warrants should only be issued for the purposes of prosecution, and it has been made very clear that Mr. Assange is wanted for further questioning.
(3) There has been abuse of process: non-disclosure by the Swedish Prosecutor.
(4) There has been a further abuse of process: the conduct of the prosecution in Sweden.
(5) The offences alleged in the EAW are not of serious nature in the UK, as they must be to constitute extradition offences.
(6) Mr Assange reserves the right to argue extraneous considerations.(section 13 of the Act).
(7) Mr. Assange reserves the right to argue that his extradition may be incompatible with Articles 3, 6, 8 and 10 of the European Commission on Human Rights.
The information to be supplied, however, pertains to both the sources and destinations of these accounts. This is to include
records of user activity for any connections made to or from the Account, including the date, time, length, and method of connections, data transfer volume, user name, and source and destination Internet Protocol address(es).
[N]on-content information associated with the contents of any communication or file stored by or for the account(s), such as the source and destination email addresses and IP addresses. (Source; original pdf subpoena)
Note that the requirement of turning over user names and "destination IP addresses" would range over any electronic device (like a phone or computer) receiving communications from the above named individuals. (To see the information revealed by your IP address, click here. )
As other sources have pointed out, the order implicates more than just the above named users and user accounts. The language seems to implicate every Twitter follower of each of the named accounts, which explains Wikileaks' announcement that "all 637,000 @wikileaks followers are a target".
In examining the language of the subpoena, this seems like a real possibility. "Communication" would seem to encompass the receipt of any tweet on Twitter, given that data transmission is involved. Hence the language is inclusive of any individual following the primary targets who receives Wikileaks tweets on their Twitter timeline, for instance. The same is true of any Twitter user receiving tweets from ioerror, rop_g, and so on.
Yet if we grant that all followers will be implicated by virtue of having received tweet data from the 7 primary targets, it seems the present language is also inclusive of anyone who has clicked on a link directing them to a tweet from any of the above accounts. If you did view one of these tweets at some point on or after November 1, 2009 (the cut-off date in stipulated in the subpoena) but were not signed in to Twitter, then even if you are not a registered user, it seems you too qualify as a "connection made to or from" the accounts. There is no stipulation that 'connections' must be from users who are following Wikileaks et al., or even that they must be from users who are signed in. If Twitter logs visitors, and it certainly does, then visitor data will be in these logs irrespective of whether they have a Twitter account.
While the data logged by Twitter are managed by Twitter, and while keeping your information private is a significant priority for any such large company hoping to stay in business, presumably, the same cannot be said of U.S. government entities. Even if there is no concern over how your data will be used by those entities, the likelihood that your information will remain private decreases significantly with every additional party possessing access to it.
Yet concern over the manner in which your information can be used may be legitimate. In tracking paths to and from Twitter, logs exist that document internet browsing tendencies, sites visited, timestamps, host name, search terms used and more. All this information can be easily accessed from any user not browsing through an anonymity tool like Tor and you don't need to be logged in to a site in order to disclose your data.
Although anyone can get this information from you when you visit their site, the concern here is over the manner in which the data will be used. Insofar as your information exists in the database that brought us the Terror Watch List, and insofar as you have been suspected of being the ally of a "high tech terrorist", trivial data have the potential of becoming legally relevant. And if the language of the court order is inclusive of all individuals ever having accessed a tweet from any of the targeted accounts (since 2009), then the number of people affected by the subpoena is much larger than the previous estimate of 600,000 Wikileaks followers.
The official Wikileaks Twitter account has just tweeted the following official statement:
WARNING all 637,000 @wikileaks followers are a target of US gov subpoena against Twitter, under section 2. B http://is.gd/koZIA(Source)
Tweeters expressed outrage at the prospect of relinquishing their right to deny the U.S. government access to their IP addresses, banking details, connection records, email addresses or other private information. Talk of a class action law suit is already under way and a #ClassActionWL thread has been initiated. In most cases, anonymous Tweets are not considered official sources, but it seems an exception must be made in the present case, given that users are the very parties involved.
Users unfollowing the Wikileaks Twitter account at this time will not be exempt from the order, which seems to apply to users having received Wikileaks tweets in the past:
Too late to unfollow; trick used is to demand the lists, dates and IPs of all who received our twitter messages. (Source)
Update: Iceland blasts US demands for lawmaker's details in Wikileaks probe.
As reported today by the German news organization Deutsche Welle, the Icelandic government is taking the DOJ's request for personal information of one of their Parliament members seriously.
Icelandic politicians have blasted US demands for Twitter to hand over a member of parliament's account details. Birgitta Jonsdottir faces investigation as one of several people connected to the website WikiLeaks.
Icelandic Foreign Minister Oessur Skarphedinsson said it was not acceptable that US authorities had demanded the information.
Shortly after news of the subpoena issued to Twitter by the The U.S. Department of Justice emerged, an electronic copy of the subpoena surfaced and was, of course, circulated via Twitter. (A copy of the subpoena can be found here in pdf format.)
Birgitta Jónsdóttir, one of 63 members of Iceland's national parliament, said this afternoon that Twitter notified her of the order's existence and told her she has 10 days to oppose the request for information about her account since November 1, 2009. (Source)
Ms. Jónsdóttir remarked on Twitter: "USA government wants to know about all my tweets and more since november 1st 2009. Do they realize I am a member of parliament in Iceland?"
A Wikileaks tweet indicated that numerous others had also been named in the subpoena and a further update verified this fact:
"...the Subpoena ... seeks the same information for numerous other individuals currently or formerly associated with WikiLeaks, including Jacob Appelbaum, Rop Gongrijp, and Julian Assange. It also seeks the same information for Bradley Manning and for WikiLeaks' Twitter account." (Source)
The Subpoena was signed by a federal Magistrate Judge in the Eastern District of Virginia, Theresa Buchanan, and served on Twitter by the DOJ division for that district. It states that there is "reasonable ground to believe that the records or other information sought are relevant and material to an ongoing criminal investigation." It was issued on December 14 and ordered sealed -- i.e., kept secret from the targets of the Order. (Source)
It has been assumed, naturally, that Twitter is unlikely to be the only social networking or technology site to have been targetted. However, if Facebook or Google have also received subpoenas, they have, unlike Twitter, remained silent on the matter.
On January 5, the same judge ordered the subpoena unsealed at Twitter's request in order to inform the users of the Subpoena and give them 10 days to object; had Twitter not so requested, it could have turned over this information without the knowledge of its users. A copy of the unsealing order is here.(Source)
A further update has also been provided which states the following:
Four other points: first, the three named producers of the "Collateral Murder" video -- depicting and commenting on the U.S. Apache helicopter attack on journalists and civilians in Baghdad -- were Assange, Jónsdóttir, and Gongrijp. Since Gongrijp has had no connection to WikiLeaks for several months and Jónsdóttir's association has diminished substantially over time, it seems clear that they were selected due to their involvement in the release of that film. Second, the unsealing order does not name either Assange or Manning, which means either that Twitter did not request permission to notify them of the Subpoena or that they did request it but the court denied it. Finally, WikiLeaks and Assange intend to contest this Subpoena. (Source)
The letter from Twitter to Rop Gonggrijp regarding the subpoena has been published. Mr. Gonggrijp notes that Twitter "does the right thing in wanting to inform their users when one of these comes in" and provides a copy of Twitter's order to unseal the subpoena. He adds:
I did get a second PDF with a January 5 order to unseal the subpoena so that twitter could tell me, which is quite possibly the result of some communication between twitter and the DOJ. Heaven knows how many places have received similar subpoenas and just quietly submitted all they had on me.(Source)
In the latest chapter of an exchange that started with a Guardian piece by Nick Davies, was responded to by Bianca Jagger, rebutted by Nick Davies, and defended by our own x7o, Bianca Jagger has again responded in the Huffington Post.
In it Jagger provides many clear and well supported arguments, including a reminder of the constantly and willfully misunderstood difference between private citizens and public organizations in a democracy:
As all good investigative journalists know -- from George Orwell to Paul Foot and John Pilger -- there is a profound difference between exposing the deeds of powerful governments, corporations and the rich and throwing mud at those who released the information. One is investigative journalism; the other is muck-raking aimed at opponents of the powerful.
The US Department of Justice has issued a subpoena on Twitter for material related to Birgitta Jónsdóttir, including her personal details and, it can be assumed, all her private direct messages.
While this is not in any way confirmed, it appears that while the subpoena is from the DOJ it may actually emanate from the Grand Jury so far held in secret (but often mentioned or alluded to in the mainstream media) to examine whether or not Wikileaks people in general and Julian Assange in particular can be charged with an offence.
Subpoenae are a normal part of a criminal justice system and ordinarily there are restrictions against abuse, for both prosecution and defence.
The normal common law test for subponae is the "legitimate forensic purpose" test. Arguable for and against (with respective case law in mind in whatever jurisdiction one happens to be in), the test is for the purpose of eliminating or significantly reducing "fishing expeditions: to reduce waste of a court's time and to eliminate the speculative and wide subpoena that would require truckloads of documents to satisfy it.