Julian Assange's lawyer, Mark Stephens, delivered a 35-page skeleton outline of his court arguments to various media after the brief review hearing this morning at Belmarsh magistrates court (paraphrased in brief):
(1) It is not accepted that the Swedish prosecutor is authorised to issue European Arrest Warrants (EAW).
(2) European arrest warrants should only be issued for the purposes of prosecution, and it has been made very clear that Mr. Assange is wanted for further questioning.
(3) There has been abuse of process: non-disclosure by the Swedish Prosecutor.
(4) There has been a further abuse of process: the conduct of the prosecution in Sweden.
(5) The offences alleged in the EAW are not of serious nature in the UK, as they must be to constitute extradition offences.
(6) Mr Assange reserves the right to argue extraneous considerations.(section 13 of the Act).
(7) Mr. Assange reserves the right to argue that his extradition may be incompatible with Articles 3, 6, 8 and 10 of the European Commission on Human Rights.
National Law Journal: Jason Ching: Journalism WikiLeaks Style
Jason Ching surveys the prospects of a prosecution by the United States Government against Julian Assange, as a response to its recent document releases. The article is detailed, and considers U.S. law in detail, touching also on the case against Bradley Manning. Ching is not altogether favourable to Wikileaks, nor does he conclude that Wikileaks will avoid all legal liability, but his conclusion is that Wikileaks' proximity to the news and publishing industry is such that it will avoid the more drastic of the prosecutory efforts currently underway.
In summary, let's sweep away the tendentious arguments that Assange should not be extradited to the United States or that it is a violation of due process or other constitutional rights to prosecute him. Any fair analysis of the Espionage Act shows that he is chargeable, and yet any fair analysis of the political reality indicates that he is untouchable. The administration is faced with an impossible dilemma — WikiLeaks is joined at the hip with The New York Times et al., and its unofficial policy against charging news organizations protects them all. WikiLeaks, whether acting out of magnanimity or cleverness, cut the major news sources into the deal and in return gained functional immunity from prosecution for espionage.
Ryan Singel, at Wired's Threat Level Blog, presents a laudatory analysis of Twitter's decision to challenge the DoJ's move, during a secret Grand Jury investigation in Virgina, to subpoena the private details of various accounts related to WikiLeaks. WL Central has covered this issue in detail (listed at the bottom of this post. Singel's article presents Twitter's decision in an industrial context, and plays counterpoint to the idea that "good corporate citizenship" should always mean complying with government wishes whenever that seems expedient.
From:WIRED.COM: Twitter's Response to WikiLeaks Subpoena Should Be the Industry Standard
Of course, it's not the first time tech companies have stood up to requests for user data. Google beat back a government order to turn over search logs in 2006, after AOL and Microsoft quietly acquiesced. We've seen ISPs stand up for their users when movie studios try to force ISPs turn over user information in mass peer-to-peer lawsuits. And just last year, Yahoo successfully resisted the Justice Department's argument that it didn't need a warrant to read a user's e-mails once the user had read them.
But there's not yet a culture of companies standing up for users when governments and companies come knocking with subpoenas looking for user data or to unmask an anonymous commenter who says mean things about a company or the local sheriff.
In the WikiLeaks probe, it's not yet clear whether the feds dropped the same order on other companies.
Regardless, Twitter deserves recognition for its principled upholding of the spirit of the First Amendment. It's a shame that PayPal, Amazon, Visa, MasterCard, Bank of America and the U.S. government all failed - and continue to to fail - at their own versions of that test.
Other Coverage of the Twitter Subpoena on WL Central
The extradition hearing in this case has been set for 7-8 February 2011.
The key arguments set out today in the PROVISIONAL SKELETON ARGUMENT ON BEHALF OF MR. ASSANGE presented to the media by defense counsel Mark Stephens are as follows:
(1) It is not accepted that the Swedish prosecutor is authorised to issue European Arrest Warrants (EAW). “The sole Issuing Judicial Authority [in Sweden] for the enforcement of a custodial sentence or other form of detention is the Swedish National Police Board”.
(2) European arrest warrants should only be issued for the purposes of prosecution, and it has been made very clear that Mr. Assange is wanted for further questioning.
Ms. Ny has repeatedly and publicly stated that she has sought an EAW in respect of Mr. Assange simply in order to facilitate his questioning and without having yet reached a decision as to whether or not to prosecute him.
Her statements can be considered as additional evidence because the European Arrest Warrant is itself equivocal:
The EAW is defective in respect of section 2 of the Act. It does not contain a clear indication that:
(3) The statement is one that—
(a) the person in respect of whom the Part 1 warrant is issued is
accused in the category 1 territory of the commission of an offence
specified in the warrant, and
(b) the Part 1 warrant is issued with a view to his arrest and extradition
to the category 1 territory for the purpose of being prosecuted for the
offence.
It leaves it entirely unclear as to whether the EAW is even a conviction EAW or an accusation EAW (assuming that it is one or the other, and not an interrogation EAW).
Nowhere in the EAW is Mr. Assange referred to as an “accused”.
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.
Democracy Now interviews Robert Meeropol, the son of Julius and Ethel Rosenberg, the only U.S. citizens to be executed under the Espionage Act. He states:
Now, but it’s not surprising that the government would use conspiracy, whether it’s against my parents or whether it’s against the WikiLeaks people, because if you’re anybody who engages in conversation or discussion, and the government can get one person to testify that that discussion was to leak classified material, or to transmit information to the Soviet Union, in my parents case, they could be swept up in the dragnet. And you could get people to rat out their friends in order to get more lenient sentences. It sows distrust among the community of support. It scares other people into silence.
And so, what we see here is, if there is a criminal indictment for conspiracy, not an attack on just Julian Assange himself, but on the entire community of support that is seeking to promote the very revolutionary idea that the people have the right to know what their government is doing, that’s what this ultimately is all about. And every left-wing, every progressive organizer, every organizer, in general—how can you engage in organizing, in getting groups of people to protest and coordinating activities, without engaging in what the government would term a conspiracy? And so, it is a threat to all of us. And that is really why I issued my call for us to recognize this. This Espionage Act of 1917 has been the sword of Damocles, sitting quietly, mostly unused, ready to spring out and attack dissenters. And when you have it in the context of the growing secrecy that we face today ... and an authoritarian-oriented Supreme Court, it is a danger to us all.
OpEdNews has an interviewwith Shanna Devine, the Legislative Campaign Coordinator at GAP [the Government Accountability Project]. The US Whistleblower Protection Enhancement Act (S. 372) was just defeated in the House. Ironically, the protection to expose secrets was blocked by something called a "secret hold", one anonymous person.
S. 372 would have increased opportunities for whistleblowers to expose wrongdoing within a system instead of relying on external organizations for exposure. It would have eliminated current loopholes such as:
Currently, you are not eligible for federal whistleblower protection if : you are not the first person who discloses given misconduct; you make a disclosure to your co-worker; you make a disclosure to your supervisor; you disclose the consequences of a policy decision; and the kicker: if you blow the whistle while carrying out your job duties.
As reported by Amnesty International and Der Speigel Hungary is introducing a new law coming into force on January 1, 2011 (the same time Hungary will be taking over the EU presidency) which will impose unprecedented restrictions on the freedom of the press in the European Union.
Amnesty:"A newly created National Media and Communications Authority (NMHH) will have the power to impose heavy fines, ranging from up to 35,000 Euros for periodicals to up to 730,000 Euros for broadcast media, for content it considers to run counter to the “public interest”, “common morality” and “national order”. Fines can also be imposed for “unbalanced” news reporting.
None of these terms are clearly defined in the law and their interpretation is left to the NMHH. The NMHH also has the power to shut down news outlets.
There are also concerns about the political independence of the National Media and Communications Authority, whose five board members were appointed by the ruling Fidesz party without broader consultation or any parliamentary scrutiny."
Extradition 3
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:
The Guardian reports on Julian Assange's views on a prospective extradition request from the USA while he is in the UK in an ongoing Swedish extradition process.
Julian Assange said today that it would be "politically impossible" for Britain to extradite him to the United States, and that the final word on his fate if he were charged with espionage would rest with David Cameron.
In an interview with the Guardian in Ellingham Hall, the Norfolk country mansion where he is living under virtual house arrest, the founder of WikiLeaks said it would be difficult for the prime minister to hand him over to the Americans if there was strong support for him from the British people.
"It's all a matter of politics. We can presume there will be an attempt to influence UK political opinion, and to influence the perception of our standing as a moral actor," he said.
As the Australian Federal Police inquiry announced its finding that neither Julian Assange nor Wikileaks have broken any Australian laws, the Australian Labor Party finds its public support slipping. According to an article in The Age, the opposition has overtaken the government for the first time since the federal election in August. Support for the coalition is up four per cent since the start of December, and support for the government is down four per cent. According to The Age:
The poll was conducted at the height of the WikiLeaks controversy, fuelled by Prime Minister Julia Gillard's assertion that the actions of Australian Julian Assange, the web site's founder, were illegal.
In another article today The Age answers Prime Minister Julia Gillard attacks on Wikileaks by stating:
Ms Gillard cannot credibly claim that the Australian people did not need to know the contents of these cables. And she should be assured that The Age will keep publishing them.
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:
http://www.telegraph.co.uk/news/worldnews/wikileaks/8202524/WikiLeaks-Ju...
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.
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.)
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:
http://www.cps.gov.uk/legal/d_to_g/extradition/annex_b/
Scrolling down we find the following:
Statement
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:
http://bigthink.com/ideas/25314
"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.
Joe Lieberman, Senator, DHS Committee Chair, Terms of Service Policeman
I had been trying to reach Leslie since Friday...
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.
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.
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