It's taken a while before some detailed information has come to light on the arguments presented by prosecutor and defence at the bail hearing yesterday.
The Telegraph reports:
Earlier, during the two hour long hearing, the court was told that the “strength” of the evidence was poor.
His legal team argued that particularly the rape allegation was wrong and if the case was tried in Britain the case would not be classified as such a crime.
This refers or alludes to, apparently, the rape allegation being in the nature of a relatively minor sexual molestation in which case it seems to me, it then doesn't fit within the 12 month European Arrest Warrant system requirement of an offence where the maximum sentence must be 12 months or more for extradition to be valid. If in the UK such an alleged rape evidence was prima facie (on the face of it) low category molestation, per UK law, attracting less than 12 months custodial sentence, then it would not appear to qualify as an extraditable offence.
If we don't believe in freedom of expression for people we despise, we don't believe in it at all.
- Noam Chomsky
Columbia University Graduate School of Journalism,WikiLeaks prosecution ‘will set a dangerous precedent’
"But while we hold varying opinions of Wikileaks’ methods and decisions, we all believe that in publishing diplomatic cables Wikileaks is engaging in journalistic activity protected by the First Amendment. Any prosecution of Wikileaks’ staff for receiving, possessing or publishing classified materials will set a dangerous precedent for reporters in any publication or medium, potentially chilling investigative journalism and other First Amendment-protected activity.
The U.S. and the First Amendment continue to set a world standard for freedom of the press, encouraging journalists in many nations to take significant risks on behalf of transparency. Prosecution in the Wikileaks case would greatly damage American standing in free-press debates worldwide and would dishearten those journalists looking to this nation for inspiration.
We urge you to pursue a course of prudent restraint in the Wikileaks matter."
WikiLeaks and the public interest?
But the question that has been overlooked in all of this is: just how valuable is the information revealed for leading members of civil society - public interest lawyers, human rights investigators, foreign policy analysts and critics? And has WikiLeaks helped or hindered their cause?
Al Jazeera put these questions to members of civil society in the US and beyond.
There may be many unintended consequences of the race to prosecute Julian Assange, the WikiLeaks founder. But as he faces extradition to Sweden, where he is accused of rape, one of the more eccentric side effects has already become clear: the rise to prominence of the European arrest warrant.
This legal instrument has been controversial since it was introduced in 2003, creating everyday injustices; but rarely has anyone outside the small group of lawyers that handles cases really cared. Now followers of the WikiLeaks story wonder how Assange could be extradited with so few questions asked. Why, for example, can our prisons detain someone (Assange is currently on remand in Wandsworth prison) for an offence under Swedish law that does not exist in British law? And how can a judge agree to an extradition without having seen enough evidence to make out a prima facie case?
The 2003 Extradition Act originated in an EU decision agreed just one week after 9/11. It was sold to voters as a way of ensuring cross-border cohesion in prosecuting suspects wanted across Europe for terrorism and serious crime. The level of cohesion in criminal justice systems across Europe, the argument went, and their common obligations under the European convention on human rights, provided a sufficient basis of trust that an arrest warrant by an EU country could be agreed by the UK with little scrutiny.
It's been downhill from there. Around three people per day are now extradited from the UK, and there is little to suggest that the majority are terrorists or serious criminals. In fact those involved in the process agree that many of the cases are "trivial".
INTERLUDE-BAIL APPLICATION 14/12/2010
The principles of bail in both English and Australian law are close. Without looking at bail legislation in the UK (no time sorry) these are most of the factors in NSW Australia that a court will consider in a bail application, with comments as to how they apply, or not,
Firstly there are the presumptions for bail, which have a set of legislated determinants which I won't go into but are an indicator of how a court will ordinarily look on a bail application from the outset. Defence makes submissions on presumptions, prosecutor might have a different view but most often agree on presumption.
OFFENCE: Circumstances of the offence, Strength of prosecution case, Likely penalty on conviction.
Only the strength of the prosecution case is really relevant here and while this is a factor for bail it is not a factor ordinarily for the extradition proper. (Will post on that later, an EU human rights "backdoor" might allow some of it through, per the UK Extradition Act.)
The Washington Post editorial: Don't charge WikiLeaks
"Such prosecutions are a bad idea. The government has no business indicting someone who is not a spy and who is not legally bound to keep its secrets. Doing so would criminalize the exchange of information and put at risk responsible media organizations that vet and verify material and take seriously the protection of sources and methods when lives or national security are endangered. The Espionage Act is easily abused, as shown by a criminal case that dragged on for years, before being closed last year, of two lobbyists for the American Israel Public Affairs Committee who did nothing more than pass along to colleagues and a reporter information they gleaned from conversations with U.S. officials. The act should be scrapped or tightened, not given new and dangerous life."
Sydney Morning Herald editorial: Julian Assange and the public's right to know
"Men such as Ellsberg and Assange, who are prepared to face the consequences of revealing information authorities would prefer to hide, help keep our system of government healthy and strong. Unfortunately, those in power tend to take a different view. The 250,000 confidential American diplomatic cables are the latest documents published by WikiLeaks. Previous documents on WikiLeaks have exposed how the wars in Afghanistan and Iraq have been fought. These leaks have been embarrassing to the governments involved - particularly the US government.[...]
This is the first of a series looking into the extradition process by which Sweden is seeking to have Julian Assange extradited from the UK.
While I'm not a European lawyer, our Aussie system has a lot in common with the UK, which is logical since our legal heritage came from the UK.
Here's my take on a preliminary examination of legislation and it's application to the Swedish extradition application.
Firstly, there is the European Arrest Warrant system (EAW) by which signatory parties have a common warrant form in all the different languages which for the purposes of extracting relevant information (and not going through tortuous online translations from Swedish), I shall cite the UK version, but keep in mind it's the UK form designed for UK prosecutors to extradite from other category 1 territories.
That form template is here:
Scrolling down we find the following:
IGNORANCE OF THE LAW IS NO EXCUSE, BUT…
A fundamental maxim of western criminal justice systems is that a citizen cannot say “I am excused because I didn’t know the law”.
And that is an interesting concept which has a counter maxim which I’ll get to, in the context of a false analogy which has arisen on the web related to the Swedish prosecution of Julian Assange, which needs addressing:
"There seems to be a double standard in terms who counts as a “good victim.” Suppose your investment adviser isn’t paying out returns as promised. You don’t want to press charges, you just want your money. So, you go to the prosecutor’s office, the prosecutor hears you out, and she says, “You got mixed up in a Ponzi scheme. That’s fraud. Do you want to press charges?”
Up to this point, you just wanted help to get what’s yours, but now an expert has re-framed your experience in legal terms. Is anyone going to argue that you weren’t really defrauded because you didn’t realize you were a victim until someone explained your rights?"
That is a horrible analogy to time delays in making a complaint of sexual assault.
When Julian Assange was arrested beginning of this week, all newspapers were all over the story. Suddenly Norwegian and Swedish media erupted in yet another frenzy regarding Assange and Wikileaks. Unfortunately that excitement seems to have died of a bit. It actually seems that it has become completely forgotten by the media at this point. I have visited some of the biggest newspapers online in Norway and Sweden and I can't find any stories regarding Assange or Wikileaks -- unless I check their weekly archive.
An Argument of the Heart.
I feel outclassed. I feel unbelievably inarticulate.
The information war is raging, and I am speechless.
The warring tribes have set their lines,
the corporations have told their lies.
I've starred in horror and disgust,
as Sen. Lieberman, defiles his elected office.
I've whispered praise of wiki-leaks and Assange,
and have thought hard as to what I would sacrifice.
For personal safety, I couldn't care less,
but to those connected, at this I wince.
It is a telling tale, in which one should shudder,
John Pilger: Statement in support of Sydney rally
"The defence of Julian Assange and Wikileaks is one of the most important issues of my lifetime. There are now two superpowers in the world — the military power of Washington and the power of public opinion and justice, which Wikileaks represents.
If the Australian prime minister doesn’t understand this, we Australians need to remind her that she may head a mercenary government but we are not a mercenary people.
Those of us in London who are working to free Julian, knowing that the Swedish prosecution is a political stunt that would never produce a fair trial, will be at his side, and we call on the support of every decent Australian."
Robert Scheer, TruthDig: From Jefferson to Assange
"All you need to know about Julian Assange’s value as a crusading journalist is that The New York Times and most of the world’s other leading newspapers have led daily with important news stories based on his WikiLeaks releases. All you need to know about the collapse of traditional support for the constitutional protection of a free press is that Dianne Feinstein, the centrist Democrat who chairs the Senate Intelligence Committee, has called for Assange “to be vigorously prosecuted for espionage.”[...]
The Australian has posted today an op-ed written by Julian Assange. In it, he talks about the ideas that inspired WikiLeaks, the concept of scientific journalism, the role of the media in a democratic society, the threats that he and WikiLeaks have been receiving and the Australian government's failure to respond to them. Also addressed are the contradictory and false accusations that on the one hand WikiLeaks disclosures are very dangerous but on the other hand that they are "nothing new," some of the most significant revelations in the Cablegate documents, and the reasons why the media's right to report the truth must be defended.
A few excerpts are reproduced below:
"Democratic societies need a strong media and WikiLeaks is part of that media. The media helps keep government honest. WikiLeaks has revealed some hard truths about the Iraq and Afghan wars, and broken stories about corporate corruption.
People have said I am anti-war: for the record, I am not. Sometimes nations need to go to war, and there are just wars. But there is nothing more wrong than a government lying to its people about those wars, then asking these same citizens to put their lives and their taxes on the line for those lies. If a war is justified, then tell the truth and the people will decide whether to support it.
If you have read any of the Afghan or Iraq war logs, any of the US embassy cables or any of the stories about the things WikiLeaks has reported, consider how important it is for all media to be able to report these things freely.
WikiLeaks is not the only publisher of the US embassy cables. Other media outlets, including Britain ‘s The Guardian, The New York Times, El Pais in Spain and Der Spiegel in Germany have published the same redacted cables.
Few hours ago it was reported that Julian Assange was arrested in London. His arrest is based on the rape charges in Sweden, so it is claimed it has nothing to do with Wikileaks' latest release, but it is of course very, very convenient. All we can hope for is that he is treated with respect according to law and that Sweden will not be coerced to hand him over to the U.S.
Sunday last week it started snowing again. It seemed like it would never stop as it was snowing the whole day. Yet another thick layer of snow. A layer that will sound-proof our streets. Snow has a funny effect like that, the ability to make you feel like you are in room that muffles sound -- while being outside. So you might say that snow adds a layer of silence in the streets. A barrier of silence, preventing sound to travel far, almost stopping sound from being heard -- and not to mention words.
So many people have said so many things in the last days against and in favor of secrets of state that it is really hard not to get lost between the words and the feelings that those words expose. And this is maybe one of the most frustrating realities of the debate: feelings are, instead of ideas, what determine the discussion, which could not be any worse. People from the spheres of political power—plus the military, the media and the most determinant group of the corporations—have reacted with embarrassment, which is understandable due to the nature of the secrets disclosed but unacceptable coming from institutions that carry such authority and therefore such responsibility. The embarrassment has turned into rage, a completely misguided idea of nationalism, abuse of power, and a sense of pride that in not so important circumstances would move us to spontaneous laughter.
As many wags have noted, the disclosures of Wikileaks have subjected the US Empire and its operatives to a full-body scan. Turnaround is fair play, because, until now, in the US, the powerless masses are subject to arbitrary pat downs and body scans, while the powerful and connected are massaged by privilege and ensconced in immunity.
Dan Gillmor, Salon: Defend WikiLeaks or lose free speech
"Journalists cover wars by not taking sides. But when the war is on free speech itself, neutrality is no longer an option.
The WikiLeaks releases are a pivotal moment in the future of journalism. They raise any number of ethical and legal issues for journalists, but one is becoming paramount.
As I said last week, and feel obliged to say again today, our government -- and its allies, willing or coerced, in foreign governments and corporations -- are waging a powerful war against freedom of speech.
WikiLeaks may well make us uncomfortable in some of what it does, though in general I believe it's done far more good than harm so far. We need to recognize, however, as Mathew Ingram wrote over the weekend, that "Like It or Not, WikiLeaks is a Media Entity." What our government is trying to do to WikiLeaks now is lawless in stunning ways, as Salon's Glenn Greenwald forcefully argued today.[...]
Media organizations with even half a clue need to recognize what is at stake at this point. It's more than immediate self-interest, namely their own ability to do their jobs. It's about the much more important result if they can't. If journalism can routinely be shut down the way the government wants to do this time, we'll have thrown out free speech in this lawless frenzy."
The Hindu: Editorial: Digital McCarthyism
I have tried, I have really tried, to explain the internet to the US DoD. I have said it was a flock of birds, some starfish, even a samizdat movement (ok that was Wikileaks twitter). Let’s try again. Remember when people used to “surf the net”? Well, that’s because it’s kind of like an ocean.