2012-02-03 The Assange Extradition Hearing: Day 2

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.

Under EU law, only a competent "judicial authority" may legitimately issue a European Arrest Warrant (EAW). As presented by Montgomery, Sweden's case boiled down to two core arguments: (1) a Swedish public prosecutor qualifies as such a "judicial authority"; and (2) a state requesting extradition (the "issuing authority") should have sole discretion to decide who qualifies as a "judicial authority." Montgomery rejected Rose's argument that extradition requires court involvement. Stating that parties seeking arrest are partial by their very nature, she dismissed Rose's position that a person requesting extradition must be impartial and independent.

The heart of Montgomery's argument was that, because an EU state has discretion to determine who can issue EAWs, and this determination varies from state to state, "judicial authorities" in the issuing and responding states don't have to have the same qualifications. Montgomery stated that English custom that requires a court to issue arrest warrants is outside the norm; and she advocated for an expansive definition of the term "judicial authority" that could include anyone "who exercises authority under domestic law in connection with" the ministry of justice -- from public prosecutors to police officers.

However, Montgomery's argument begs the question: if the U.K. is obligated to recognize Swedish custom -- which, unlike the U.K., allows interested prosecutors to issue extradition requests -- then isn't Sweden likewise obligated to recognize the U.K.'s right to refuse to extradite, based on the U.K.'s own application of the law? Logically, Montgomery's argument should make extradition discretionary on both sides. But Montgomery argued the opposite: she stated that, since the 2003 Extradition Act was intended to streamline the process, complying with an EAW is basically automatic and mandated upon request.

In response, the Court asked Montgomery: because of the nature of the individual rights potentially harmed by extradition, shouldn't issuance of an EAW demand a bit more than is needed to arrest someone domestically? One of the Lords opined that "anyone would think" that issuing an EAW should require the involvement of some kind of judge. But Montgomery responded that issuing a domestic arrest warrant -- which is a prerequisite for issuing an EAW -- involves enough court process to validate an extradition request.

Rose spent the final hour of the hearing mostly reasserting her arguments made yesterday -- that, because Sweden's public prosecutor Marianne Ny is not a qualified "judicial authority," Ny's EAW demanding Assange's extradition is invalid. Her position echoed that of former Assange counsel Geoffrey Robertson, who wrote earlier this week:
"The notion that a prosecutor is a ‘judicial authority’ is a contradiction in terms. ... Judges must, as their defining quality, be independent of government. Police and prosecutors employed and promoted by the state obviously cannot be perceived as impartial if they are permitted to decide issues on the liberty of individuals. They are expected to be zealous in working up evidence against a suspect, so they are the last people who can be trusted to weigh up impartially the evidence they themselves have drummed up. That is a matter for a court."

As Robertson also notes, Montgomery's insistence on an expansive definition of the term "judicial authority" is necessary to serve "the international purpose of ... allowing a system that does not have harmonious practices and procedures." Robertson continues:
"It will be inconvenient if Assange’s appeal succeeds, because 12 European countries will have to change their extradition procedures if they want to get their hands on suspects from the U.K. But the argument from inconvenience is the classic way for civil liberties to be lost."

The 2003 Extradition Act that lies at the heart of this hearing was a post-9/11 statute intended to facilitate the process of extraditing "persons of interest." One question raised by the week's proceedings is how well this post-disaster measure of expediency will hold up against future challenges based on encouraging legal consistency and protecting human rights.