Sweden

The Australian attorney general's response to an open letter to the Australian Prime Minister Julia Gillard re Julian Assange

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.

Context
Julian Assange was placed in international proceedings based on a European Arrest Warrant issued by Swedish prosecutors. European Union (EU) countries have a treaty that facilitates the process of a speedy extradition from one EU country to another, and beginning on Monday, February 7, a two-day hearing at Belmarsh Woolwich Crown Court in south London will determine whether Assange will be extradited from the UK to Sweden to face sex-crime accusations. He has been accused but has not been charged.

If Assange should lose, he will be extradited to Sweden unless he appeals the decision and wins. If he appeals, the appeal would be made to the Administrative Court, but it could be several months before it is heard. If that appeal is lost, an appeal to the Supreme Court is possible but not guaranteed. If a second appeal to the Supreme Court were to be made and lost, there is a third possibility, an appeal to the European Court of Human Rights in Strasbourg. Again, the possibility of a third appeal is not guaranteed.

Extradition from Sweden to US
Whatever happens in Sweden once Assange is extradited (on the hypothetical assumption that he will be), the US may indict him and have him "temporarily transferred," with Sweden's consent, so that he may face prosecution in the US. This can be done, legally, either before or after Assange undergoes trial in Sweden, according to the US/Sweden extradition treaty supplement (pdf) .

It is not clear from the UK Press Association report why Swedish Prime Minister Fredrik Reinfeldt responded to reporters' questions about Julian Assange in London two days ago by addressing the hypothetical question of Assange's extradition from Sweden to the US, but he didn't dismiss it as hypothetical:

Mr Reinfeldt said Sweden's policy was not to extradite people to countries with the death penalty. But he said Sweden's courts, not its government, would decide that. ...

"We should remember when we ask questions about this that these are legal systems talking to each other, not politicians."

We know from the cables and other sources (see the summary in section 7, 92-96, of the "skeleton" legal argument) that Swedish courts have in the past been complicit in the illegal kidnapping of refugee claimants by US agents. More broadly, the role of diplomacy as mediator between law and politics has arisen repeatedly in many of the cables released by its major media partners and WikiLeaks.

Since the role of the courts is usually to interpret legislation ("policy") or to strike it down if it is unconstitutional, Reinfeldt's apparent failure to affirm Swedish refusal to extradite to countries that retain capital punishment raises questions.

Via @calixte on Twitter

The Guardian: WikiLeaks points to US meddling in Haiti

"US embassy cables reveal how anxious the US was to enlist Brazil to keep the deposed Jean-Bertrand Aristide out of Haiti.

Confidential US diplomatic cables from 2005 and 2006 released this week by WikiLeaks reveal Washington's well-known obsession to keep exiled former President Jean-Bertrand Aristide out of Haiti and Haitian affairs."

Read more

Le Monde: En 2007, les ministres suédois voulaient stopper les réfugiés irakiens (In 2007, the Swedish ministers wanted to stop the Iraqi refugees)

"Des télégrammes diplomatiques américains transmis par WikiLeaks au quotidien suédois Svenska Dagbladet font état, vendredi 21 janvier, des efforts de plusieurs ministres suédois pour limiter l'arrivée de réfugiés irakiens en Suède. (The American diplomatic cables sent by Wikileaks to the Swedish paper "Svenska Dagbladet" report, this friday January 21st, the efforts of several Swedish ministers to limit the entry of Iraqi refugees in Sweden.)"

Read more (French)

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:

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.

The following is a compendium of tweets dated up until the end of December, all of which are relevant to the Swedish investigation into Julian Assange. They have been drawn from the WL Central Twitter Archive, which is an archive of the tweets from the official Wikileaks Twitter Account. The full archive is available here.

This selection of tweets was compiled to accompany this article.

Today, Huffington Post published an article by Nick Davies, from the Guardian, in response to Bianca Jagger's Huffpost article. Jagger had been critical of Davies' role in the publication in The Guardian of the details from the police investigation report on the allegations against Julian Assange.

In his article today, Davies states that the publication of the details from the police report served the purpose of balancing out baseless speculation about the Swedish investigation. He claims it was necessary in particular to counterbalance a campaign of misinformation on the part of Wikileaks, and Julian Assange. This is very misleading. The substance of the claim is laid out below.

From Nick Davies: The Julian Assange Investigation -- Let's Clear the Air of Misinformation:

There is no doubt that Wikileaks is under continuous attack: threats from the Pentagon; calls by the old Republican right and the recently empowered Tea Party for a direct attack on what they have called a “terrorist threat”; the renowned boycotts by Paypal, Moneybookers, Amazon and now even Apple; the Australian government’s reticence to defend its citizen (Julian Assange); the rejection of Mr. Assange’s residence in Sweden for unexplained causes, and the list grows.

Now even though many voices have hinted, or even openly declared, that the rape charges against him are just another part of this campaign, because of its sensitive nature it is wiser not to hurry in our conclusions. What is clear though is that the constant irregularities at the heart of the case can make it questionable, which is why many of those voices are worried about the real motivation behind the accusations. Last August, in the middle of the political storm unleashed by the leak in July related to the war in Afghanistan, Mr. Assange was casually dating the liberal politologist and Swedish activist, Anna Ardin. According to her version of the story, he would have forced her sexually on the night of the 14th of that month, pressing charges around a week later.

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:

Bianca Jagger has written a long and detailed article in the Huffington Post condemning Nick Davies' recent article for the Guardian.

I object to the Guardian's decision to publish selective passages from the Swedish police report, whilst omitting exculpatory evidence contained in the document. ...

Assange has been criticized for not being willing to return to Sweden to prove his innocence. It is hardly surprising he has reservations, given Sweden's human rights record. ...

In the Today Show on December 21st, Assange revealed that Sweden has requested that if he returns and is arrested, he is to be held incommunicado, and his Swedish lawyer is to be given a gag order. ...

I suspect that what is on trial here is not Julian Assange's alleged sexual misconduct, but freedom of speech ....

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.

Read more

Following the Crown Prosecution Service's decision to appeal the bail granted on Tuesday by the Westminster Magistrates' Court, another hearing will take place today at 11:30 GMT at the High Court.

Peter Alexander of NBC News noted on Twitter that "Assange lawyer says defense has collected $315K bail. He's free if appeal's denied." The court had requested on Tuesday that the full bail amount be presented in cash.

Journalists present at the court, including a team from The Guardian, report that Julian Assange and his legal team have already arrived at the court for the hearing, which is expected to take two hours. It is unclear at this point whether live updates via Twitter will be allowed from the courtroom, as was the case at Tuesday's hearing.

In the meantime, please don't miss Peter Kemp's continued legal analysis of the bail and extradition arguments: Extradition Part 2--Bail, and Bail Arguments and the Appeal.

Update 1: Justice Ouseley has ruled that no Twitter updates will be allowed from the courtroom today, reports The Guardian's Luke Harding.

Update 2: The Guardian's Luke Harding quoted Justice Ouseley as saying, "The history of the way it [the case] has been dealt with by the Swedish prosecutors would give Mr Assange some basis that he might be acquitted following a trial." According to Mr Harding, "the case is looking good" for Julian Assange.

Update 3: The prosecution's appeal has been denied, reports Channel 4. Julian Assange has been granted bail, on slightly modified conditions compared to those specified at Tuesday's hearing, namely additional sureties, reports Guy Rundle for Crikey.

The next extradition hearing will take place on January 11.

According to testimony at Tuesday's hearing, Julian Assange will stay at the estate of Captain Vaughan Smith, founder of the Frontline Club. You can read Mr Smith's exclusive piece in yesterday's Independent, explaining his support for Julian Assange and WikiLeaks, concluding: "If to fight for this country we will have to fight for its fundamental principles of justice then I declare my position in the ranks."

Update 4: Guy Rundle reports that hearing costs have been awarded against the Crown Prosecution Service.

Update 5: After the formalities were completed, Julian Assange was released today at 6pm London time. He gave a short speech on the steps of the High Court, thanking supporters, his lawyers, members of the press "who were not all taken in," and the British justice system. He called on people to support those facing conditions harder than he did in prison, and promised to continue his work and reveal the evidence behind the allegations.

A video of the statement is available via the New York Times.

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.

MONDE

Il s'en explique dans un édito publié, mardi, sur le Huffington Post...

Michael Moore est remonté, et il le fait savoir. Dans l'édito «Pourquoi j'ai payé une partie de la caution de Julian Assange» publié mardi sur le Huffington Post, il livre un long plaidoyer en faveur de WikiLeaks.

«J'ai versé 20.000 dollars (15.000 euros, sur une caution de 240.000 euros, ndr) et j'offre mon site Internet, mes serveurs, mon nom de domaine et tout ce qui pourra être utile à WikiLeaks pour rester en vie et continuer à révéler les crimes concoctés en secret et perpétrés en notre nom avec l'argent du contribuable», explique le cinéaste. Il indique que le réalisateur Ken Loach a fait de même. La libération sous caution a dans un premier temps été acceptée par le juge, mais le parquet a fait appel, au nom des autorités suédoises.

Selon Moore, la raison invoquée par George W. Bush pour aller en Irak (la présence d'armes de destruction massive) était «un mensonge», et «des centaines de milliers de personnes sont mortes». Il demande: «Imaginez si WikiLeaks avait existé à l'époque.»
La transparence, rempart contre la corruption

Le réalisateur de Fahrenheit 9/11 va même plus loin. Il estime que le 11-Septembre aurait eu une chance d'être évité si les mémos remis à Bush trois mois avant, alertant de «la détermination de Ben Laden à frapper les Etats-Unis», notamment via «des détournements d'avion», avaient été rendus publics.

Selon Moore, «l'ouverture et la transparence sont les seuls moyens pour protéger les citoyens de la corruption». Publier des documents confidentiels peut-il causer du tort à des négociations diplomatiques? «Peut-être, mais c'est le prix à payer quand le gouvernement déclenche une guerre sur un faux prétexte.»

Cyberguerre au nom de la liberté d'expression. Près de 200 activistes québécois auraient pris part dans les derniers jours aux attaques informatiques lancées contre les détracteurs du site de coulage d'information WikiLeaks et son créateur, Julian Assange. C'est du moins ce qu'a indiqué hier au Devoir un de ces pirates informatiques engagés, membre d'un groupe international baptisé Anonymous.

Julian Assange Bail Appeal Trial

Julian Assange appeared in court this morning to appeal the court's decision last week to deny him a release on bail. Live updates were provided by The Guardian. and live tweeting in the court on the #wikitrial hashtag. It was apparently the first time a UK judge had allowed live tweeting during a trial (according to tweets).

An earlier article in The Guardian stated:

Assange's lawyer Mark Stephens visited him in Wandsworth prison yesterday afternoon and said his client was being held under harsher conditions than last week. He claimed Assange was being confined to his cell for all but half an hour a day, and denied association with others prisoners, access to the library or TV.

"He's subject to the most ridiculous censorship," Stephens said. "Time magazine sent him a copy of the magazine with him on the cover and they censored it not just by ripping off the cover but by destroying the whole magazine."

Stephens also claimed a number of letters to Assange from media organisations have not reached him. He said Assange was under 24-hour video surveillance and had complained that a tooth which broke off while he was eating had later been stolen from his cell.

According to Stephens, Assange's UK legal team had still not seen the prosecution evidence against him. "His Swedish lawyers have some of the material but not all and it's in Swedish so we can't take proper instructions."

Besides the lack of evidence provided by the Swedish prosecution, a key point is the fact that the crime Assange is accused of is not a crime in the UK. For extradition to go forward, the crime must be of a serious nature in both countries. This time, Assange's lawyers also offered a permanent address in England and suggested electronic monitoring, a curfew and travel restrictions as alternatives to incarceration. Over £200,000 was offered in surety for bail and ten international public figures also offered surety.

The appeal was granted with the following conditions:

Assange's counsel pointed out that it was a huge bail amount to be paid in cash, and Assange did not have the option of using Mastercard or Visa. The prosecution immediately appealed the decision, so Assange was taken back to jail to await the appeal trial which must be held within 48 hours. More information can be found here.