During the second and final day of the U.K. Supreme Court's hearings on Julian Assange's extradition, Matrix Chambers attorney Clare Montgomery offered her rebuttal to arguments made yesterday by Assange's counsel. (Dinah Rose is representing Assange in his fight against extradition to Sweden for questioning on sex crime allegations.)
The week's proceedings have highlighted disparities of law among EU countries and the legal challenges involved in reconciling these conflicts. Assange's case may test the extent to which EU nations can maintain their legal autonomy under the rubric of a unified European system. It may also raise the question: to what degree will EU states have to harmonize their conflicting legal regimes in order to avoid this sort of continued legal wrangling in the future?
Montgomery presented Sweden's case against Assange for about four hours, during which time she appeared to reject EU-wide legal standardization -- essentially arguing that respecting state sovereignty requires preserving the status quo. If it agreed with Montgomery's position, the Court would have to accept significant differences among EU nations in implementing EU-wide legal standards. By contrast, Assange's legal team largely took the position that, while allowing for some variation and inconsistency, the Court should mandate certain universal principles in the extradition process, because of the seriousness of the potential risk that extradition may pose to individual rights.
At Day 1 of the Julian Assange extradition hearing
On the night before the hearing began, one dedicated Assange supporter in London told me that she planned to arrive at Court by 6 a.m., ahead of the throngs that she expected based on the turnout at Assange's hearing last November. No doubt the freezing February temperatures kept large crowds at home this morning; instead of the masses anticipated, there were only a few orderly lines segregated into cameramen, sign-wielding protesters, and the courtroom audience -- a mix of media representatives, Assange faithfuls, and the curious. I was in the latter line, which was also peppered with a few Occupy London luminaries. During the next hour of collective shivering, I met journalists from all over Europe and the U.S., who now braved frigid weather to witness this historic proceeding. Arriving at around 8:30, one hour before the Court opened to the public, I witnessed the expectant crowd devolve into a chorus of complaints as the early-morning, late-winter wind chill robbed our fingers of almost all feeling.
But, mercifully, 9:30 at last arrived -- as did Assange, soon after. The white-haired WikiLeaks founder offered a spirited hello to the crowd and preceded us into the Court.
At the entry, Court staff had handed out a media briefing, which included the following details:
"Issue: Whether a European Arrest Warrant ('EAW') issued by a public prosecutor is a valid Part I EAW issued by a 'judicial authority' for the purpose and within the meaning of sections 2 and 66 of the Extradition Act 2003.
Authored by Bella Magnani
Since the 100-page Swedish police protocol file leaked onto the internet in February 2011, it has been widely known that the SKL (Sweden's national forensic laboratory) failed to find any chromosomal DNA -- either male or female -- on the torn, used condom that Complainant AA gave to police 12 days after the event as evidence of her allegations. For anyone who doubts this fact, it's on page 77 of the police protocol (FUP), attached below [pdf].
Now, at that point -- 25 October, 2010 -- one would hope that a competent and impartial investigations team would turn toward investigating how this forensic finding came about. Sweden takes very seriously the issue of making false claims or presenting false evidence in sex crime cases, which is punishable with a 2-year prison sentence. In this particular case, however, the lead investigation officer, Mats Gehlin, simply asked the SKL to run the test again (page 81 of the FUP). In fairness, the first result does mention a tiny speck that might be "something," which a second test later found to be a very small sample of mitochondrial DNA.
This is significant for two reasons: first, mitochondrial DNA is not uniquely identifying in the same way as chromosomal DNA; and, more importantly, a sample which contains mitochondrial DNA but no chromosomal DNA can only come from hair and nails. And, of course, a used condom should be awash with chromosomal DNA from both participants -- but this one has none.
Authored by Goran Rudling
In the Detention Memorandum (Häktningspromemorian) there is an attachment, “Bilaga – Skäligen misstänkt”, that lists all the sex crimes that Julian Assange is suspected of. It is a long list. It is one rape, one sexual coercion and five sexual molestations. Sofia Wilén is the the alleged victim of rape. According to the police investigation Anna Ardin is supposed to be the victim of six sex crimes.
On July 10 and 11, WL Central's Alexa O'Brien moderated a conversation between Göran Rudling, former witness for the defense at the February extradition hearing for Julian Assange, and Peter Kemp, WL Central legal commentator and Australian solicitor.
Göran Rudling is a Swedish citizen and author of, "Sex, lies, no videotape and more lies. False accusations in the Assange case" in which he deconstructs the case against Julian Assange. Mr. Kemp has translated and made commentary on Mr. Rudling's article from its original Swedish.
Mr. Rudling has also recently written "Weird accusation or proof of lies? More about the Assange case", which covers some of the contents of our 2 hour discussion.
Total running time is about 2 hours. There is image degradation the first 30 seconds of Part 2 and 3. Sound quality is of lesser quality comparatively on Parts 2, 3, and 4 only.
2010-11-18 Letter from Swedish Counsel Björn Hurtig to English co-Counsel for Julian Assange
2010-11-18 The Persecution of Julian Assange, Continued
2010-11-18 The Persecution of Julian Assange: Reactions
2010-11-18 Press release by counsel for Julian Assange
2010-11-18 Statement by Julian Assange's counsel Mark Stephens
2010-11-18 WikiLeaks staff editorial: Why our editor-in-chief is busy and needs to be defended
2010-11-19 Julian Assange to appeal Swedish arrest ruling
2010-11-20 The Persecution of Julian Assange: Reactions, Part 2
2010-11-20 Updates in Swedish case
2010-11-21 RSN Petition in Support of Julian Assange
2010-11-22 Further updates in Swedish case
2010-11-24 Updates in Sweden Appeal Case
2010-11-30 Updates in Sweden case
2010-11-30 Updates in Sweden case: Supreme Court appeal, Interpol notice
2010-12-01 Steven Aftergood: Assange prosecution would be "extremely dangerous"
2010-12-02 Sweden case: The lawyers speak up
2010-12-02 Sweden case: The lawyers speak up II
2010-12-02 Sweden case update: Supreme Court will not consider appeal
2010-12-02 WikiLeaks and the US Espionage Act: legal opinions
2010-12-05 Sweden case update
2010-12-06 Sweden case update II
2010-12-07 Julian Assange arrested on Swedish warrant
2010-12-09 Journalists in defence of WikiLeaks, part 10
2010-12-09 Sweden case updates
2010-12-10 WikiLeaks and the Espionage Act, part 2
WikiLeaks front-man Julian Assange will front the high court in London on July 12 for his appeal against extradition to Sweden, where he faces allegations of sexual misconduct. Assange has been under house arrest in England for over six months, following a ruling in February at a London district court that the extradition of Assange to Sweden was valid and would not breach any of his human rights.
Assange voluntarily turned himself in to the police in the UK after Sweden filed a European Arrest Warrant for him.
A widely held view amongst WikiLeaks’ supporters is that the extradition to Sweden is a preface to an eventual trial in the US; and that extradition for the charges against Assange would not be pursued if it was any ordinary citizen.
Assange and his colleagues at the whistle-blowing website WikiLeaks have subjected the US government to extreme duress and embarrassment due to its publication of many thousands of US diplomatic cables including: the July 12 Baghdad Collateral Murder Video and other Iraq war documents; material on extrajudicial killings in Kenya, and the Guantanamo Bay files, to name a few.
Julian Assange is an Australian citizen and deserves all the support our government can offer him. Instead he was thrown to the wolves. Australian Prime Minister Julia Gillard failed to support Assange and called the leaks “an illegal act” according to an article in The Australian in 2009.
Gillard came under widespread condemnation for failing to give support to Assange. Hundreds of prominent lawyers, journalists, editors, and academics signed a letter to the Gillard government calling for her to support Assange but the government has maintained its hardline stance from the outset.
The European Arrest Warrant (EAW) not for the purposes of prosecution argument.
Readers are likely aware that English speaking nation’s common law concepts/language do not necessarily have equivalents in Sweden, mens rea (guilty mind) being a major one lacking in Swedish sexual offences legislation for example (relating to lack of consent*). Julian Assange’s defence made substantial arguments at the extradition hearing that the EAW was not for the purposes of prosecution, that the use of the word “lagforing” in the warrant, meaning judicial process, was not sufficient to qualify as meaning a prosecution for the required purposes of an EAW.
As Judge Riddle wrote, in page 14 of his judgement (Full ruling here in Pdf.):
Under section 2(2) and (3) Extradition Act 2003 an arrest warrant must contain a statement that the Part 1 warrant is issued with a view to his arrest and extradition to the category 1 territory for the purpose of being prosecuted for the offence….
What is required by section 2 of the Act is an arrest warrant which contains a statement that the warrant is issued for the purpose of being prosecuted. The question has been considered in a number of earlier cases, including Trenk, Vey, Mighall, Patel and Azstaslos. The defence argue that the EAW nowhere states unequivocally and without ambiguity that Mr Assange is sought for prosecution. The EAW was translated from Swedish into English by a translator appointed by the Swedish National Police Board. It begins “This warrant has been issued by a competent authority. I request that the person mentioned below be arrested and surrendered for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order”.
Wikileaks Australian Citizens Alliance has kindly allowed us to share this series of videos, a conversation between myself, Sam and Kaz.
There was some difficulty with the software not behaving itself and the audio on my side was a bit patchy. We'll be working on future conversations where hopefully the use of Skype and glitches will be improved.
WACA's Youtube user site here, with more videos well worth having a look.
As an Australian citizen I must say it is most pleasing that others like Sam and Kaz at WACA in Australia are so motivated to become involved online and elsewhere to carry a torch for human rights and Wikileaks. There are so many people around the world on the same page with us here at WLC.
Well done Sam and Kaz!
Minister Foreign Affairs
PO Box 6022
House of Representatives
Canberra ACT 2600
1) Julian Assange and Wikileaks.
Firstly I would like to say that the international community who support Julian Assange would undoubtedly thank you for your support of him on the issue of his legal rights in the UK and scotching the threats made by your colleagues the prime minister Ms Gillard and attorney general Mr McClelland to cancel his passport late last year. Your support of human rights in relation to Julian Assange is to be commended, including the intercession of our diplomats on his behalf asking certain questions of Swedish authorities (1) which it is assumed emanated from your good offices.
More could be done for example to point out to the European Union that their European Arrest Warrant System is disgracefully flawed and subject to serial abuses by member states (especially Poland) now that showing a prima facie case has been removed entirely from extradition procedures in the European Union’s EAW system. Australia as you would likely be aware, did not extradite without the applicant nation showing a prima facie case up until 1985 when the “no evidence” and “dual criminality” provisions became available to applicant nations under amended legislation.(2) Where subjected to abuse, prima facie requirements should be reinstated.
As you are also no doubt aware the US Department of Justice is leaving no pebble unturned in their vengeful attempts to find - or more likely - manufacture some evidence against Julian Assange for a charge of conspiracy to commit espionage.
This is happening despite First Amendment protections which the DOJ’s epigones are attempting to undermine as they engage in polemical arguments using gymnastic semantics in the US media, in an exercise to assert he is not a journalist as a means to preclude those rights, contrary to the US constitution.
The BBC first announced this morning that the High Court of England and Wales* has listed court dates of 12-13 July to hear Julian Assange's appeal against extradition from the UK to Sweden.
BBC reporter Dominic Hurst tweeted shortly after his first announcement that "Assange's appeal is against Judge Riddle's ruling that extradition to Sweden wouldn't breach his human rights," a summary repeated in this report from the Guardian.
Mark Stephens @markslarks, Assange's UK solicitor, then replied to a first question on Twitter from a WLC reporter: "dates correct. Detail wrong." When questioned further by another WLC reporter hoping for a lawyerly update, he tweeted: "will come when I return to the UK."
There is obviously some time for precising our understanding of what the appeal may entail. Parliamentary review of the European Arrest Warrant (EAW) is also expected in June [citation needed and welcomed].
* NB: Scotland's legal system has always been independent from that of England and Wales.
Liberal Democrat MP Julian Huppert has raised the relevance of the Human Rights Act to the role played by the UK Crown Prosecution Service (CPS) in Sweden's attempt to extradite Julian Assange.
In reply to Mr Huppert's questions during a joint committee hearing on human rights, Keir Starmer, director of Public Prosecutions, admitted that the CPS "are bound by the Human Rights Act, and we are bound by our duties to the court." However, he added that human-rights issues would be for the courts to determine rather than for the CPS.
Impenetrable though those legal distinctions may appear in the abstract, parliamentary attention to possible politicization of law is significant where it appears that the boundaries between law and politics are not clear and stable.
Malcolm Turnbull (L-Wentworth), former leader of the Opposition in the Australian House of Representatives and the current shadow minister for Communications and Broadband, spoke to Sydney University Law School on 31 March about his experiences representing former MI5 officer Peter Wright, author of Spycatcher, and about the concerns and responsibilities the Australian government faces relative to Assange's own situation and to WikiLeaks publications generally.
Debate: This House believes whistleblowers make the world a safer place
On 9 April, the Frontline Club and the New Statesman will host a public debate in which Julian Assange will speak for the proposition "This House believes whistleblowers make the world a safer place."
The debate will be chaired by Jason Cowley, editor of the New Statesman; other panelists have yet to be announced. The event will be held at Kensington Town Hall at 5 pm GMT; it is already fully booked but should be both livetweeted and filmed.
Rob Stary, Australian lawyer for Julian Assange and WikiLeaks: interview
Last week the WikiLeaks Australian Citizens Alliance (WACA) posted the video of an interview they did with Rob Stary, Julian Assange's lawyer in Australia, before the WikiLeaks Free Speech Forum in Melbourne on 4 February.
Some of the interview focuses on legal and political issues particular to Australia. More generally, however, Stary challenges the claims of a number of governments that their legal manoeuvres against Assange and/or WikiLeaks are unaffected by politics. His analysis of the international interplay between law and politics is a fine summary of the state of play so far.
Wednesday's forum on the tribulations surrounding WikiLeaks was timely and a much-needed shot in the arm for political discourse in Australia.
Framed through the lens of Julian Assange and WikiLeaks' David and Goliath struggle against the machine, the dominant theme of the night was the questioning of Australia's political identity and sovereignty in its unbalanced relationship with the United States, and how this imbalance has manifested itself in the lack of political and legal support provided to its citizens. Hence, some parallels between Julian Assange and previous Gitmo detainees David Hicks (present in the audience) and Mamdouh Habib were repeatedly made. On some levels, this may be seen as incongruous - Hicks and Habib were terror suspects, whereas Assange, despite hostile rhetoric, has not been accused of terrorism by a prosecuting authority - but the import of drawing these parallels is the same.
Open to the public, the seats inside Sydney's stately Town Hall filled up quickly, no doubt due to the caliber of the panelists rather than the rain pouring outside. The night's proceedings were emceed by Mark Kostakidis, veteran of Australian public broadcaster SBS. The speakers were the award-winning journalist John Pilger, member for Australian Federal Parliament and famous Iraq war whistleblower Andrew Wilkie, and tireless human-rights campaigner Julian Burnside QC.
Indeed, there were no "hawks" on the panel to provide opposition to the overall theme of libertarianism - not that the audience present minded, for this forum was a chance to escape the endless diatribes of said hawks, who are already in the privileged position of being able to pollute the airwaves, print and the web, stifling such fora under hackneyed pretexts of "national security" (to name but one).