Law

Paul Stephens, Australian ambassador to Sweden, last week formally requested assurances from Swedish Justice Minister Beatrice Ask concerning the treatment of Julian Assange under Swedish law.

In a letter written on the day of final arguments in Assange's extradition hearing last Friday,

Stephens explained that Assange "has been detained in his absence" by a Swedish court on suspicions of having committed "a criminal offence".

"I wish to convey the Australian Government's expectation that, should Mr. Assange be brought into Swedish jurisdiction, his case would proceed in accordance with due process and the provisions prescribed under Swedish law," the Australian ambassador.

He emphasised as well that he expected Assange's case to adhere to "applicable European and international laws, including relevant human rights norms."

Ahmad Abou El Maati is one of four Canadian citizens of dual nationality who became loosely linked together, incidentally and accidentally, by botched police and intelligence investigations in the wake of the September 11 attacks in the US.* All four were either apprehended in or kidnapped and transferred to Syria, where they were tortured.** Because El Maati’s country of origin was Egypt (born in Kuwait to an Egyptian father), he alone was transferred from Syria to Egypt months after he was detained, and survived another two years of torture in a succession of Egyptian prisons.

These four cases have received decisive if not finished judicial investigation in Canada. The first and best-known of the four, the case of Maher Arar, was the subject of Justice Dennis O’Connor’s inquiry in 2004-06, which led to an official apology to Mr Arar from the Canadian government and compensation of $10 million. Although the O’Connor inquiry was able to investigate the behaviour of Canadian agents and officials thoroughly, it remains unfinished because the governments of the United States, Jordan, and Syria refused to co-operate with the inquiry.

The following is a reconstruction of the Julian Assange extradition proceedings on 11 February 2011 based primarily on the tweets of @federicacocco (Federica Cocco) and in much smaller part from the tweets of @channel4news. WL Central acknowledges those sources. The tweets have been preserved as much as possible and combined but are rewritten in parts for clarity, and legal terminology has been inserted where appropriate. Clarifying additions are generally in italics and may be assumptions within the legal context.

SC Robertson’s Submissions.
Robertson QC opens submissions with an account of the attack on Julian Assange by Fredrik Reinfeldt, prime minister of Sweden; Robertson says that Reinfeldt's comments earlier this week amount to his labelling Assange an "enemy of the people" in Sweden.

"This will influence a fair trial,” says Robertson, who quotes the prime minister as claiming that Assange and his lawyers are “sexist and condescending to Sweden."

The Swedish chancellor added to the prime minister's remarks, which Robertson says is an intolerable development; he adds that it is unprecedented for a government minister to comment in that way.

The Witness Statement of Bjorn Hurtig, Swedish counsel for the defense of Julian Assange - Summary

The original statement is available here, and the supporting documents are here, here, and here. In this document, Mr Hurtig describes the case against Mr Assange to the London defense team as one of the weakest he has ever seen in his entire fifteen year career. In this document London defense Mark Stephens asserts that the Swedish prosecutor sought not just to have Mr Assange imprisoned while under investigation, but also placed in solitary confinement. The key points of Mr Assange's skeleton argument were summarized here.

Mr Hurtig states that the manner in which Ms Ny (the Swedish Prosecutor) has handled Mr Assange's case is not in compliance with the concept of a fair trial.

Mr Assange will most certainly be brought to trial behind closed doors, initially and in the Court of Appeal. Mr Assange, who has endured an avalanche of bad publicity, will be heard with no witnesses to view the weaknesses of the case and thus no opportunity to clear his name. Prosecution witnesses will not be refuted by any new witnesses coming forward, because no one will hear their testimony.

The trial will be heard by a judge and three laypersons who are appointed by, and often members of, a political party.

The trial may be affected by media prejudice caused by the unfair conduct of police and prosecutors. Before the complainants were properly interviewed, and thus before an investigation ought to have begun, a prosecutor told the Expressen newspaper that Mr Assange was being investigated for rape, a serious breach of Swedish anonymity law. Despite this breach, the prosecutor has not been disciplined and the Justice Ombudsman has refused to accept a complaint made against her.

After the positive feedback on the report I did last time - I decided to go once more to London. A different journey: Last time was spur of the moment and very intuitive. If Gallilei lived today, I would have wanted to go to THAT process and this is about the biggest thing to happen in my profession (archiving) for the coming 100 years!!! I think Wikileaks is also a sign of a lot of other things that will start shifting.

This time my decision is more controlled. I have less to 'do' for myself and one of my purposes is definitely pure support. I feel that at this time consistent, levelheaded support is very needed.

I was again early and noticed that there was slightly less press and slightly less security. The latter probably because the police now put a fence round the entrance and the road throughout and felt more in control that way. I walked straight to the entrance to queue for the public and at 8:30 could proceed to the court room without further ado.

On the public gallery the security was one policeman up - but it was possible to wait there. Courtroom staff were less itchy than they were the last time. There were now two women in charge. Despite supporting Wikileaks, I have frowned my eyebrows at remarks that a pink cashmere sweater is apparently not appropriate on official occasions. The eyes of the people making that remark would have popped out here. Belmarsh Crown Court female staff loves high, very high (!) heels and I saw several people in fishnet stockings!

From the Guardian's timeline, rewritten for chronology and with legal terminology:

The hearing opened with Clare Montgomery QC, for the Crown Prosecution Service on behalf of the Swedish authorities. Opening submissions are that the Swedish prosecutor, Marianne Ny, is asserted to be an issuing authority for the purposes of a European Arrest Warrant (EAW).

In relation to the offences, the court decides that the alleged victims are to be called Woman A (three counts of sexual assault alleged) and Woman B (one count of r*pe alleged)

Ms Montgomery says the matters are extraditable offences because the definitions in the two countries are the same. "Mr Assange had sexual intercourse with her and exploited the fact that she was asleep." This is submitted to be an offence under English law. In relation to Woman A there are three counts of sexual assault "without consent" and again contrary to English law.

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 [2005] EWHC 3036 (Admin) is cited; it states that only the Swedish National Police Board is the authorised authority.

On February 3, 2011, Marietje Schaake addressed the EU parliament on the situation in the Mediterranean, in particular in Tunisia and Egypt. Schaake also called for an investigation into any corporations that might have facilitated the human rights abuses.

Video of her address:

Reuters reports that the defense for former Liberian President Charles Taylor, on trial for war crimes, have won the right to use U.S. state cables leaked by Wikileaks in his defense. Taylor is facing charges of instigating murder, rape, mutilation, sexual slavery and conscription of child soldiers during wars in Liberia and Sierra Leone which killed a quarter of a million people. He has denied all charges. The court ruled in favor of a defense motion seeking to re-open its case for the "limited purpose" of admitting into evidence two U.S. cables.

Cable 09MONROVIA188 from 2009-03-10 warns "Should Taylor be acquitted in The Hague or given a light sentence, his return to Liberia could tip the balance in a fragile peace. The international community must consider steps should Taylor not be sent to prison for a long time. We should look at the possibility of trying Taylor in the United States. ... All legal options should be studied to ensure that Taylor cannot return to destabilize Liberia. Building a case in the United States against Taylor for financial crimes such as wire fraud would probably be the best route. There may be other options, such as applying the new law criminalizing the use of child soldiers or terrorism statutes.

Cable 09THEHAGUE247 from 2009-04-15 indicates "Court employees have intimated that the Trial Chamber could work more expeditiously. ... Moreover, contacts in Prosecution and Registry speculate that Justice Sebutinde may have a timing agenda. They think she, as the only African judge, wants to hold the gavel as presiding judge when the Trial Chamber announces the Taylor judgment. Reportedly, her next stint as presiding judge begins in January."

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.

On 27th of January 2011 at 15:00, the Pirate Party UK issued a press release in regards to the recent five arrests of Anonymous members. Amongst other points made in the Press releasethis underlining point was made:

While the Party will never condone any illegal actions, it can understand the frustration felt by many who feel powerless in the face of multinational corporations and Governments unwilling to step in.

That normal, everyday people choose to take these sorts of actions shows the extent to which many people feel disenfranchised by mainstream politics and the Pirate Party aims to give such people a voice and a means to engage in these issues through lawful and political methods rather than resorting to 'hacktivism' and other actions that could be illegal.

Further, the Piratenpartei has filed a petition with the Deutscher Bundestag which, in part states:
Protection of whistle blowers. (Translated in Part)

Today, the Financial Times reported that the Hungarian government was willing to accommodate the legal issues raised last week by the EU commission. Mr Martonyi, Hungary's foreign minister said:

This issue of the Hungarian media law has become the subject of a pan-European political fight. Some political families felt that this is perhaps the topic they can use for their own political purposes. Brussels’ legal findings against the government’s media law could easily be overcome.

The New York Times reported today on former Guantánamo Bay detainee Ahmed Khalfan Ghailani. On Tuesday, Ghailani was sentenced to life in prison without the possibility of parole for his role in the 1998 bombings of two US embassies in East Africa. Ghailani is the first former Guantánamo detainee to be tried in the civilian court system.

Lewis A. Kaplan of the US District Court wrote of the evidence that Ghailani had been acquitted of more than 280 charges of murder and conspiracy:

Mr. Ghailani knew and intended that people would be killed as a result of his own actions and the conspiracy he joined.

Mr. Ghailani, 36, was convicted on November 17 of a single count of conspiracy to destroy government buildings and property. After over two months of deliberation, judge Kaplan handed down the sentencing earlier today.

In an NBC News report dated January 24, US military officials reportedly confessed that they have been unable to find any direct connections between Bradley Manning, suspected of leaking secret documents, and Julian Assange:

Officials with the U.S. military, say that while investigators have determined that Manning had allegedly unlawfully downloaded tens of thousands of documents onto his own computer and passed them to an unauthorized person, there is apparently no evidence he passed the files directly to Assange, or had any direct contact with the controversial WikiLeaks figure.

Further, in the same briefing, the Defense Department officially denied the mistreatment of Bradley Manning, while admitting that:

Brig Commander James Averhart did not have the authority to place Manning on suicide watch for two days last week, and that only medical personnel are allowed to make that call.

Reuters reported today on possible EU legal action against Hungary for its new media law passed in 2010 (reported here by WL Central). Hungary has two weeks to show that the new law complies with EU rules regarding free speech and media freedom, and with EU regulations on broadcasting. The report goes on to state:

The commission, which serves as the EU executive body, is concerned whether the new rules limit freedom of expression in Hungary by requiring all broadcasters to provide balanced coverage of news and to register with a state authority.

The full article can be read here.

In a report on Wikileaks, Bloomberg disclosed on January 20 that U.S. authorities may now be using contractors to spy on Swedish servers looking for creative ways to prosecute Wikileaks and Julian Assange.

Bloomberg reports that Robert Boback, Chief Executive Officer of Tiversa, Inc., a spying and surveillance firm that contracts with the FBI, declined to say who his company's client was when his firm surveilled four unidentified Swedish servers.

According to Boback, during a 60 minute period on February 7, 2009:

"Tiversa’s monitors detected four Swedish computers engaged in searching and downloading information on peer-to-peer networks. The four computers issued 413 searches, crafted to find Microsoft Excel spreadsheets and other information-rich documents among some of the 18 million users the company estimates are on such file-sharing networks at any given moment."

Tiversa also claims that:

From DAVID C. MACMICHAEL

General James F. Amos
Commandant of the Marine Corps
3000 Marine Corps Pentagon
Washington DC 20350-3000

Dear General Amos:

As a former regular Marine Corps captain, a Korean War combat veteran, now retired on Veterans Administration disability due to wounds suffered during that conflict, I write you to protest and express concern about the confinement in the Quantico Marine Corps Base brig of US Army Pfc. Bradley Manning.

Setting up death threats against Julian Assange as domain names is a new fad.  Just don't try setting up "killobama.org" or "murderthepresident.com".  The site http://vivantleakers.org/ is devoted to tracking these explicit threat domain names. At the moment it lists 6 domains of the "kill Assange" variety.

Here's a summary of coverage:

http://www.huffingtonpost.com/2011/01/14/death-threat-domain-names_n_809174.html

From the above HuffPo item:

Go Daddy, the site which registered both killjulianassange.com and julianassangemustdie.com said there is nothing that can be done about either site while they are contentless. Go Daddy registers a domain name every .8 seconds -- any domain name can be registered and there is no human intervention.

More...

Setting up death threats against Julian Assange in the form of a domain name is the new fad.  Just don't try setting up "killobama.org" or "murderthepresident.com".  The site http://vivantleakers.org/ is devoted to tracking these explicit threat domain names. At the moment it lists 6 domains of the "kill Assange" variety.

Here's a summary of coverage:

http://www.huffingtonpost.com/2011/01/14/death-threat-domain-names_n_809174.html

From the above HuffPo item:

Go Daddy, the site which registered both killjulianassange.com and julianassangemustdie.com said there is nothing that can be done about either site while they are contentless. Go Daddy registers a domain name every .8 seconds -- any domain name can be registered and there is no human intervention.

More...

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.