The Australian attorney general's response to an open letter to the Australian Prime Minister Julia Gillard re Julian Assange
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.
This evening two of the editors who worked with WikiLeaks on the publication of the Afghan and Iraq war logs and the diplomatic cables, Alan Rusbridger of the Guardian and Bill Keller of the New York Times, will discuss their interactions with WikiLeaks on a panel hosted by the Columbia University Journalism School in New York City.
Jack Goldsmith, the former assistant attorney general who raised alarms within the US Department of Justice about DoJ legal opinions on torture and now a Harvard University law professor, will join the panel as discussant. The panel will be moderated by Emily Bell, director of the Tow Center for Digital Journalism at CJS.
In a recent tweet, WikiLeaks referred to some members of the panel as its "detractors."
The panel will be livestreamed at the CJS site at 7 pm EST.
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.
Completely unintentionally, revolution has been the theme of this week. I read Paulo Freire’s Pedagogy Of The Oppressed and saw the musical Fela! courtesy of the National Theatre broadcast. The South Africa retelling of the story of Christ (Son of Man) mirrored Fela! remarkably – for good and ill. The documentary on Antonio Negri (A Revolt That Never Ends) explored the workers movements in Italy in the 70′s, and his academic work on the Multitude since his time in prison.
Bill Keller, the New York Times' executive editor, published an enormous article on the 26th of January about the New York Times' dealings with WikiLeaks. The article develops further the running story of WikiLeaks' relationship with its media partners, the subject of a Vanity Fair piece earlier in the month.
Much has been made of the negative light in which Julian Assange appears in the article. Wired's Kim Zetter published a digest piece, in which the more absurd claims of the piece are given particular attention but little critical treatment. The more colourful parts of the article were, predictably, grist to the celebrity gossip mill.
Perhaps the most important thing about the article, though, is that it is the first authoritative indication that the Times is willing to take a stand for media freedoms in the United States. During the height of official outrage over Cablegate late last year, when the use of the Espionage Act was being widely touted as a convenient way to perform an end run around First Amendment protections, it fell to the Washington Post's editorial section to issue a strong defense of freedom of speech. The Times, with its history of media partnership with WikiLeaks, remained conspicuously silent.
No longer. Keller now issues a strong (albeit heavily qualified) defense of those freedoms:
Talking-point politics, taken for political discourse is delusion. It's akin to the cunning nature of chatter in the mind of a neurotic. It masquerades itself as thinking. I will not offer the reader a well-intentioned flag to die under. It's contrary to my nature to send anyone to my gallows. I believe in wisdom. Living according to my conscience is the greatest pleasure. Its orgasm is sanity. In doing (and not doing the above), I hope that I have paid respect to any reader who happens to offer this essay his or her kind and undeserved attention.
If I were asked who the most relevant and important voices in post-modern political thought are, I would say former Eastern European dissidents. I only became acquainted with them three year after the Soviet Union collapsed. I was teased that I read them like ‘self-help’ for Eastern Europe. Not being too interested with the previous generations' culture war, I remarked, “Yes. But, also for the West.” Wikileaks, to me, is simply a larger dose of the medicine that these thinkers prescribed for the individual in the post-modern state.
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.
The explosion of Wikileaks related news, and the manifestation of the internet's political potential to those who had previously ignored it, or only superficially acknowledged it, has led to a debate of increased intensity about the nature of the net, its political dimension, and its uncertain future. WL Central compiles some valuable commentary on this issue:
Rop Gonggrip's fascinating keynote speech from 27C3 projects an uncertain future, online and off, and offers some visions of what the role of the internet, and the hacker community, will be in this future. His riveting pessimism is tempered by a reassuring pragmatism, and a veteran's insight into the subject matter.
Common law conspiracy is an agreement by two or more to do an unlawful act, or to do a lawful act by unlawful means. The actus reus (guilty act) is the agreement itself. The mens rea (guilty mind) is the intention to carry out the unlawful act. Another way of putting it is that there must be a "meeting of the minds" to commit the unlawful act.
It does not matter that the conspiracy was not carried out, liability for common law conspiracy arises simply from the the agreement.
It goes almost without saying, that to avoid First Amendment protection of a hypothetical Espionage case (and I will leave those arguments to US constitutional lawyers), conspiracy appears to have a much greater prospect of success for the DOJ,
The following contains no commentary; only quotes from a well reported cable release earlier this week. It will quickly become apparent why no commentary is required.
FRANCE AND THE WTO AG BIOTECH CASE
Summary: Mission Paris recommends that that the USG reinforce
our negotiating position with the EU on agricultural biotechnology by
publishing a retaliation list when the extend "Reasonable Time
Period" expires. In our view, Europe is moving backwards not
forwards on this issue with FRANCE playing a leading role, along with
Austria, Italy and even the Commission.
Moving to retaliation will make clear that the current path
has real costs to EU interests and could help strengthen
European pro-biotech voices.
Both the GOF and the Commission have suggested that their
respective actions should not alarm us since they are only
cultivation rather than import bans. We see the cultivation ban as a
first step, at least by anti-GMO advocates, who will move next to ban
or further restrict imports. (The environment minister's top aide
told us that people have a right not to buy meat raised on biotech
The nature of the Internet makes detailed, concise, well thought out arguments almost impossible. The fluidity, the ebb and flow of information all conspire against the well thought out essay. In the past weeks, months even, there has been numerous attempts by myself and others to boil down the main arguments, the main points to be made, to try and shine some light into the encroaching darkness. While some have made a good go of it, placing cap-stones on some of the more pressing issues; others have failed miserably. I am forced to concede, alas, I am in the "fail" category.
I can hardly count the numerous "beginnings" of essays; which, in my heart of hearts I felt, were Surly to illuminate and keep the darkness at bay. However, it seems, new information, new spins on old information come flooding; torrents of rumors, facts and fallacies kaleidoscope round; peculate and illustrate most macabre.
This will not happen now.
Further to my open letter on those inciting murder upon Julian Assange, this op ed style post again responds to those who say that Julian Assange should be kidnapped, executed, murdered or otherwise be "whacked", to use a favourite Hollywood gangster expression. It is a much expanded variant of the open letter to the inciters at Wikileaks Central.
The CIA and/or US military forces have been invoked by some, as the agents who would carry out such extra curial "services" of which it must be said, such actions both incitement and carrying the incitement out, are undoubtedly unlawful. Doubtless the early December Assange-illegal-posturing Prime Minister of Australia would not officially, take kindly to the latter course of action.
The web roll of inciters or borderline inciters is growing.
The World Will Become Better.
Soft as filigree,
damming as ice;
we shudder now,
when we hear "nice"
Your day at the office,
forty minutes of it we viewed.
twenty-four hours later,
your corporate masters decried,
"the footage was skewed"
As if you hadn't killed,
Children, Journalists, Dads,
leaving their ruined bodies,
suffering in the Iraqi sands.
You said, "well it's their fault"
"for bringing their kids into a battle"
Secure in the sky,
safe from the child's death rattle.
The callousness of your action,
your eagerness to kill
the slight gratification in your voice,
haunts me still.
What was done, by you and then,
reminds me of another war,
Untermensch "they" were called,
by those solders,
to enjoy it all.
But that was a "good" war,
as if killing isn't anything but.
they too laughed it off
making jokes not meant to cut.
And if we hold up a mirror,
to compare the past and today,
what do you see?
are there any differences in play?
What is most intriguing about the WikiLeaks saga is not the pathology of hacker culture as envisioned by Mr Sterling's fecund imagination, but the possibility that Julian Assange and his confederates have made dull liberal principles seem once again sexily subversive by exposing power's reactionary panic when a few people with a practical bent actually bother to take them seriously.
A post on the Democracy in America blog on economist.com addresses Bruce Sterling's much publicized recent article on Wikileaks, Bradley Manning and Julian Assange. The criticism of Sterling's article is well placed, but the closing comments, quoted above, strike at the heart of the WikiLeaks controversy.
Backtracking a little from the UK’s Extradition Act (in the Extradition 1 post) it is necessary to understand that the origin of that legislation comes from the European Arrest Warrant (“EAW”) regime in turn based on the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States.(Pdf)
It is also necessary to understand that where interpreting legislation like the UK’s Extradition Act (that will be applied in Assange's hearing) and if finding ambiguity or uncertainty, resort can be made--ordinarily to parliamentry second reading speeches in countries like Australia for example
—to examining, in this case, that very document of the Council Framework Decision.
The Preamble to the Council Framework Decision states in part:
Reporters Without Borders: Open letter to President Obama and General Attorney Holder regarding possible criminal prosecution against Julian Assange
Dear President Obama and Attorney General Holder,
Reporters Without Borders, an international press freedom organization, would like to share with you its concern about reports that the Department of Justice is preparing a possible criminal prosecution against Julian Assange and other people who work at WikiLeaks.
We regard the publication of classified information by WikiLeaks and five associated newspapers as a journalistic activity protected by the First Amendment. Prosecuting WikiLeaks’ founders and other people linked to the website would seriously damage media freedom in the United States and impede the work of journalists who cover sensitive subjects.
It would also weaken the US and the international community efforts at protecting human rights, providing governments with poor press freedom records a ready-made excuse to justify censorship and retributive judicial campaigns against civil society and the media.
We believe the United States credibility as a leading proponent of freedom of expression is at stake, and that any arbitrary prosecution of WikiLeaks for receiving and publishing sensitive documents would inevitably create a dangerous precedent.
Members of the faculty at the Columbia University Graduate School of Journalism wrote to you recently warning that “government overreaction to publication of leaked material in the press has always been more damaging to American democracy than the leaks themselves.” We fully agree with this analysis.
The ability to publish confidential documents is a necessary safeguard against government over-classification. We urge you to use this debate to review the government’s policy of classifying documents in order to increase transparency in accordance with the promises made by the administration when it first assumed office.
We thank you both in advance for the attention you give to our observations.
Jean-François Julliard Secretary-General
uruknet.info: Why we stand with WikiLeaks
"In reality, the prosecution of Assange is part of a government war on dissent that comes in the context of raids and subpoenas of left-wing and antiwar activists in Chicago and the Twin Cities seeking to criminalize support for, among other things, the growing movement for justice for the Palestinian people.
They want to chill our right to dissent. If we are to prevent that, we must stand in defense of the right of Julian Assange, Bradley Manning and WikiLeaks to expose the crimes committed by the U.S."
Huffington Post:Why I Am Donating $50,000 to WikiLeaks' Defense Fund
"I'm sick and tired of the politicians and political pundits treating this man as if he were a criminal. If WikiLeaks had existed in 2003 when George W. Bush was ginning up the war in Iraq, America might not be in the horrendous situation it is today, with our troops fighting in three countries (counting Pakistan) and the consequent cost in blood and dollars."
A confession is commonly understood as a statement—either spontaneous or pursued by someone else’s interrogations—made to others about what only the speaker knows. For the Spanish thinker María Zambrano, though, a confession implies also something transcendental, easier to understand from her catholic background: a strict action of auto-analysis and self-criticism based on the idea of being each of us, eventually, mistaken. The confession is made de facto in front of an authority—a priest, a policeman, the public opinion—but, on top of that, it is made in front of oneself and to oneself. “Every time Philosophy re-writes its own history, it forgets with disdain what men owe to other kinds of knowledge that are born either close to it or far away from it”, says Zambrano.