2012-02-01 The Assange Extradition Hearing: Day 1

ImageAt 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.

"Facts: The Appellant, a journalist well known through his operation of Wikileaks, visited Sweden to give a lecture in August 2010. He had sexual relations with two women. Both women went to the police who treated their visits as the filing of complaints. The Appellant was interviewed by police and subsequently left Sweden in ignorance of the fact that a domestic arrest warrant had been issued for him. Proceedings were brought in the Swedish courts in the Appellant's absence, although he was represented, in which a domestic warrant for the Appellant's detention for interrogation was granted and upheld on appeal. Subsequently, an EAW for the Appellant was issued by the Swedish Prosecution Authority that set out allegations of four offences of unlawful coercion and sexual misconduct including rape. The EAW was certified by the UK Serious Organised Crime Agency under the Extradition Act 2003. The Appellant surrendered himself for arrest in the UK and, following an extradition hearing, his extradition to Sweden was ordered. The order was upheld on appeal to the Divisional Court."

Inexplicably, the wifi in the entire court building died right after my third live-tweet, about 2 minutes into the proceedings. Also, this being England, no power outlets were in sight; and since, for the past 5 years, none of my laptops has held a charge for more than an hour or so, I was stuck taking hand-written notes throughout the hearing. Thus handicapped by the snail's pace of writing with benumbed fingers, lack of internet access, and minimal familiarity with EU law, during the next five hours I nevertheless took the following notes:

Assange, the Appellant in the 2-day proceedings, was represented by attorney Dinah Rose, who displayed stamina as she held the floor during a four-hour virtual monologue, interrupted only by questions from the seven Lords of the Court.

At the outset, Rose characterized the case as a "simple issue of law." Assange is fighting extradition to Sweden following the issuance of an EAW by Swedish prosecutor Marianne Ny. The Extradition Act 2003 requires any arrest warrant to be issued by a judicial authority. Since, Rose asserted, Ny is not a "judicial authority," then there exists no legal basis for Assange's extradition. Though the term appears to be ill-defined, Rose averred that a "judicial authority" must exercise independent power granted by law; and, as a party to the proceedings, a Swedish prosecutor cannot be independent and is thus not competent to issue an EAW. The next five hours consisted mainly of exploration and variations of this theme.

Assange's team noted that the 2003 legislation (enacted soon after the 2001 U.S. terrorist attacks) restricted the ability of EU nations to refuse to extradite persons of interest to requesting nations. This new system, Rose argued, depends on mutual trust and confidence -- confidence that is undermined if arrest warrants can be issued by a prosecutor, rather than the authority of a court. Moreover, she stated, the new streamlining, simplification, and acceleration of the extradition process must be balanced with protection of individual rights. Those subject to extradition under an EAW can suffer severe deprivations including detention, loss of employment, and separation from family members. Given the severity of the possible restrictions on individual freedom, Rose stated, substantial safeguards must be in place to make the pan-European system of arrest warrants acceptable, and only a court should hold authority to issue an EAW.

Also problematic, according to Rose, is the inconsistent application of the law in different EU nations. She stated that Sweden and other countries that allow issuance of an EAW by a public prosecutor or other person other than a competent judicial authority are in breach of the system. Assange's counsel argued further that, although nothing in the EAW framework decision prevents a state like Sweden from issuing a non-judicial EAW, other states are not obligated to honor that EAW; and legally, therefore, extradition is effectively discretionary. Nevertheless, in order to be valid, an EAW must have specific features. In addition to being a "competent judicial authority," an official who issues an EAW must be independent from both the executive and the parties. According to Rose, since Swedish prosecutors do not meet the independence requirement, by definition they cannot qualify as competent judicial authorities. Throughout the proceeding, Rose exposed the balancing act involved in reconciling the different legal systems within the EU and the 2003 Act's requirement of consistency regarding the necessity of an independent, competent judicial authority to issue EAWs.

Over the course of the day, Rose ran through statutes, case law, and legislative history supporting her argument regarding the inability of a public prosecutor to fulfill the independence requirement. Assange's counsel pointed out that the initial draft of the EAW's framework decision did allow for prosecutors to issue EAWs, but this provision was omitted from the final, enacted version; Rose argued that this indicated that the EU member states deliberately rejected the idea of a public prosecutor acting as a judicial authority competent to issue EAWs. She averred that the "insistence on a true judicialization" of the EAW process demonstrated a concern for the seriousness of the individual rights that are impaired by the issuance of an EAW.

The Assange extradition hearing is scheduled to conclude tomorrow; according to the media briefing, opposing counsel Clare Montgomery will argue for the first 2.5 hours, followed by the Assange team's one-hour reply.

But no one expects a quick decision once the hearing wraps. The Court has signaled that it will likely reserve judgment for several weeks. In the event of an adverse decision, Assange may appeal to the European Court of Human Rights in Strasbourg -- which may or may not decide to take his case. And whether or not Ny's EAW is upheld by a court, the U.S. may still seek Assange's extradition and prosecute the journalist in the US.

Asked last month whether the U.S. government will follow this course, U.S. Attorney General responded only: "We will see."