(READER CORRECTION OF) Legal myths about the
Common misconceptions, recursively.
Whenever the Julian Assange extradition comes up in the news, many of his supporters make various confident assertions about legal aspects of the case.
David Allen Green is but one lawyer, and as we all know, the legal profession exists to have internal disagreements. It is part of the mundane work of a lawyer to take laws, precedents and facts, and actively rework them so as to service a prior agenda. Lawyers fabricate arguments to fit paid-for biases such as “that man is guilty,” or “my client is innocent.” That is what they do. Even the most mediocre ones are passingly good at it.
Readers are therefore well advised to always exercise caution when offered ‘legal expertise’ masquerading as journalism. Journalism is the documentary approach to truth. ‘Legal expertise’ is most often a rhetorical approach to a longed-for conclusion.
With this in mind, introductory paragraphs like the following, purporting to offer The Truth According To David Allen Green, should already put readers on alert:
Some Assange supporters will maintain these contentions regardless of the law and the evidence – they are like “zombie facts” which stagger on even when shot down; but for anyone genuinely interested in getting at the truth, this quick post sets out five common misconceptions and some links to the relevant commentary and material. It complements a similar post on the leading Blog That Peter Wrote.
“Zombie facts” is an unfortunate coinage, because a “fact” is, according to any classical epistemology, something that makes a proposition true. The world is the totality of facts. A fact cannot be anything other than the case. Anyone who “shoots down” a fact is, by definition, uttering a false statement. If you find yourself confronting a “zombie fact,” which just refuses to die, that means that you are just being wrong, over and over again. And as it turns out, several of David Allen Green’s now widely-dispersed ‘rebuttals’ are seriously disingenuous.
One: “The allegation of rape would not be rape under English law”
This is flatly untrue. The Assange legal team argued this twice before English courts, and twice the English courts ruled clearly that the allegation would also constitute rape under English law.
(See my post at Jack of Kent for further detail on this.)
Never reluctant to exploit a tautology, David Allen Green points out here that an allegation of rape cannot be anything other than an allegation of rape. The Swedish prosecutor defined the allegation in question at a sufficient level of generality to bring it within the definition of rape accepted in UK law. The UK court was not entitled to look beyond that ostensive definition, and decided that the requirement of dual criminality was met: “I have looked only at the language used in the warrant.”
This is all very neat, but the people David Allen Green is taking aim at here were arguing something like “if Assange was to be tried on the details of this allegation in the UK, he probably would not be convicted.” That argument tends to examine the details in the police documents under the lens of UK criminal law, and speculate on the hypothetical outcome of a trial on those facts, something that the UK courts did not do. There may be a rebuttal of that argument, too. But it would likely require more than a paragraph, and isn’t the one that David Allen Green presents here. This “zombie fact” hasn’t even taken a hit.
Two: “Assange is more likely to be extradited to USA from Sweden than the United Kingdom”
This is similarly untrue. Any extradition from Sweden to the United States would actually be more difficult. This is because it would require the consent of both Sweden and the United Kingdom.
(See Francis FitzGibbon QC’s Nothing Like the Sun for further detail on this.)
One can add that there is no evidence whatsoever that the United Kingdom would not swiftly comply with any extradition request from the United States; quite the reverse. Ask Gary McKinnon, or Richard O’Dwyer, or the NatWest Three.
In reality, the best opportunity for the United States for Assange to be extradited is whilst he is in the United Kingdom.
Firstly: Pay attention to this one, especially the statement “it would require the consent of both Sweden and the United Kingdom.” Because it’s going to come up in Point Three.
Secondly: Given the complexity of extradition law, where you end up churning into political bedrock wherever you dive, ultimately all ‘expert opinion’ on this point is speculative. Arguments that it would be easier to extradite from Sweden do not hinge solely on the treaties, but make reference to the pragmatic realities of London’s larger and more robust legal community. They hold that while Assange would be more vulnerable to extradition de jure, he would be in a de facto stronger position. The UK’s almost unilateral extradition treaty with the US is of course shameful, and arguments taking that into account certainly merit attention.
However, what David Allen Green fails to mention is that it is all moot. Neither the UK nor Sweden are attractive places from which to be fighting extradition to the United States. We can quibble over which is worse, but that’s missing the point. The extradition case kept Assange pinned in the UK under bail conditions. Far from wishing to remain vulnerable to the terms of the UK-US treaty, Assange was forced to be. That “the United Kingdom would… swiftly comply with any extradition request from the United States” is most likely true. That only further justifies Assange’s asylum bid.
Three: “Sweden should guarantee that there be no extradition to USA”
It would not be legally possible for Swedish government to give any guarantee about a future extradition, and nor would it have any binding effect on the Swedish legal system in the event of a future extradition request.
By asking for this ‘guarantee’, Assange is asking the impossible, as he probably knows. Under international law, all extradition requests have to be dealt with on their merits and in accordance with the applicable law; and any final word on an extradition would (quite properly) be with an independent Swedish court, and not the government giving the purported ‘guarantee’.
(See extradition and criminal lawyer Niall McCluskey for further detail on this.)
Also Sweden (like the United Kingdom) is bound by EU and ECHR law not to extradite in circumstances where there is any risk of the death penalty or torture. There would be no extradition to the United States in such circumstances.
(See Mark Klamberg’s blog for further information on this.)
Craftily though he has presented it as such, a request that Sweden give assurances is not a request that it interfere with its own juduciary. It is true that – in principle – no guarantee could have any effect on extradition proceedings in the Swedish courts. However, the final decision on whether to extradite someone in Sweden is an executive decision. After the courts determine that an extradition is possible, there is decisive political input. Consider the determination of the Australian diplomatic mission, in Sweden, writing home to Canberra:
The process required a request from another state, a decision by Sweden’s Supreme Court on whether extradition was possible, and finally a decision by government to go foward with the extradition. In the Swedish system of ‘consensus decision-making’, a decision by government entailed a decision by a Cabinet of Ministers. As advised previously, in cases where a European Arrest Warrant had been used, the consent of the surrendering state (in this case the UK) was also required.
Any temporary surrender or extradition (to a non-EU or Nordic country) required the approval of the Prosecutor-General, the Supreme Court and then the Government (and, in Assange’s ase, the UK Government due to the application of the European Arrest Warrant). The Swedish Government could deny an extradition or temporary surrender that the Supreme Court had approved, but if the Supreme Court denied an extradition or temporary surrender application, then the matter ended there. i.e. the Government could not approve a process that the Supreme Court had rejected.
In fact, David Allen Green had already waved this ‘zombie fact’ through the perimeter fence, when he stated “it would require the consent of both Sweden and the United Kingdom.” Both countries are in a position to give assurances, and their refusal is conspicuous.
Four: “The Swedes should interview Assange in London”
This is currently the most popular contention of Assange’s many vocal supporters. But this too is based on a misunderstanding.
Assange is not wanted merely for questioning.
He is wanted for arrest.
This arrest is for an alleged crime in Sweden as the procedural stage before charging (or “indictment”). Indeed, to those who complain that Assange has not yet been charged, the answer is simple: he cannot actually be charged until he is arrested.
It is not for any person accused of rape and sexual assault to dictate the terms on which he is investigated, whether it be Assange or otherwise. The question is whether the Swedish investigators can now, at this stage of the process, arrest Assange.
Here the best guide is the High Court judgment. In paragraph 140, the Court sets out the prosecutor’s position, and this should be read in full be anyone following this case:
140. Mr Assange contended prior to the hearing before the Senior District Judge that the warrant had been issued for the purpose of questioning Mr Assange rather than prosecuting him and that he was not accused of an offence. In response to that contention, shortly before that hearing, Mrs Ny provided a signed statement dated 11 February 2011 on behalf of the Prosecutor:
“6. A domestic warrant for [Julian Assange's] arrest was upheld [on] 24 November 2010 by the Court of Appeal, Sweden. An arrest warrant was issued on the basis that Julian Assange is accused with probable cause of the offences outlined on the EAW.
“7. According to Swedish law, a formal decision to indict may not be taken at the stage that the criminal process is currently at. Julian Assange’s case is currently at the stage of “preliminary investigation”. It will only be concluded when Julian Assange is surrendered to Sweden and has been interrogated.
“8. The purpose of a preliminary investigation is to investigate the crime, provide underlying material on which to base a decision concerning prosecution and prepare the case so that all evidence can be presented at trial. Once a decision to indict has been made, an indictment is filed with the court. In the case of a person in pre-trial detention, the trial must commence within 2 weeks. Once started, the trial may not be adjourned. It can, therefore be seen that the formal decision to indict is made at an advanced stage of the criminal proceedings. There is no easy analogy to be drawn with the English criminal procedure. I issued the EAW because I was satisfied that there was substantial and probable cause to accuse Julian Assange of the offences.
“9. It is submitted on Julian Assange’s behalf that it would be possible for me to interview him by way of Mutual Legal Assistance. This is not an appropriate course in Assange’s case. The preliminary investigation is at an advanced stage and I consider that is necessary to interrogate Assange, in person, regarding the evidence in respect of the serious allegations made against him.
“10. Once the interrogation is complete it may be that further questions need to be put to witnesses or the forensic scientists. Subject to any matters said by him, which undermine my present view that he should be indicted, an indictment will be lodged with the court thereafter. It can therefore be seen that Assange is sought for the purpose of conducting criminal proceedings and that he is not sought merely to assist with our enquiries.”
And in paragraph 160 of the same judgment, the High Court explains why such a requirement is not “disproportionate” as submitted by Assange’s lawyers:
160. We would add that although some criticism was made of Ms Ny in this case, it is difficult to say, irrespective of the decision of the Court of Appeal of Svea, that her failure to take up the offer of a video link for questioning was so unreasonable as to make it disproportionate to seek Mr Assange’s surrender, given all the other matters raised by Mr Assange in the course of the proceedings before the Senior District Judge.
The Prosecutor must be entitled to seek to apply the provisions of Swedish law to the procedure once it has been determined that Mr Assange is an accused and is required for the purposes of prosecution.
Under the law of Sweden the final stage occurs shortly before trial. Those procedural provisions must be respected by us given the mutual recognition and confidence required by the Framework Decision; to do otherwise would be to undermine the effectiveness of the principles on which the Framework Decision is based. In any event, we were far from persuaded that other procedures suggested on behalf of Mr Assange would have proved practicable or would not have been the subject of lengthy dispute.
Mystifyingly, when read closely, the above argument is inconclusive as to why the Swedish prosecutor cannot seek to question Assange in London. She does not unequivocally state, as does David Allen Green, that he is to be indicted, leaving open the possibility that the outcome of his interrogation would undermine her view of the case. In a departure from at least three statements she made in 2010, she no longer claims that it would be illegal to question Assange in London, only that it would be “an inappropriate course.” The court is prevented by the terms of the EAW regime from reviewing her claim that it would be an “inappropriate course,” instead being obliged to accord “mutual recognition and confidence.”
While one might feasibly defer to this High Court judgment, given the situation at the time, Assange went on to invoke his right to seek asylum from the government of Ecuador. The government of Ecuador, in its consideration of his asylum claim, invited the prosecutor to interrogate Assange in the embassy in London, under the Mutual Legal Assistance provisions mentioned in the High Court judgment. The Swedish prosecutor refused to do so, reportedly as an exercise in the upkeep of Swedish “prestige.” Against David Allen Green’s expert legal opinion on Swedish criminal process is that of a Swedish professor emeritus of international law, Ove Bring, who stated:
It would have been possible to go to London directly, many months ago, when he had just arrived there. But now it’s a matter of prestige, and it’s a matter of prestige not only for prosecutors, but for the Swedish legal system. To make an exception for him, because he is a famous person, is not a very good idea now. The exception should have been made earlier on, when it was less dramatic.
Perhaps David Allen Green and Ove Bring would arrive at a mutual agreement over this question, were they to correspond over it. If they did, they would not have been prohibited from considering the substance of the question by the terms of the European Arrest Warrant system, as the High Court was. For now, it is enough to note that legal opinion is seldom univocal.
Five: “By giving Assange asylum, Ecuador is protecting freedom of the press”
This is perhaps the strangest proposition.
Ecuador has a woeful record on freedom of the press. It is 104th in the index of world press freedom, and even the quickest glance at the examples of press abuse in Ecuador accumulated by Reporters Without Borders and Index on Censorship indicate a regime with a starkly dreadful and illiberal record on freedom of expression.
It has even recently been reported that a blogger called Alexander Barankov is to be extradited by Ecuador to Belarus, of all places, where he may face the death penalty.
Whatever the reason for Ecuador granting political asylum to Assange, there is no basis for seeing it as based on any sincere concern for media freedom either in Ecuador or elsewhere.
The ostensive reason Ecuador granted Assange asylum was to shelter him from political persecution. The claim that, in doing so, it protects freedom of the press, is ancillary. This ‘zombie fact’ is from the wrong horror movie.
Ecuador has been roundly savaged in the British press lately, in order to prove that Assange is a hypocrite for seeking asylum from a country with an imperfect press freedom record. On this, Greenwald is strong:
Apparently, activists should only seek asylum from countries with pristine human rights records, whichever countries those might be: a newly concocted standard that was conspicuously missing during the saga of blind Chinese human rights activist Chen Guangcheng at the US embassy; I don’t recall any western media outlets accusing Guangcheng of hypocrisy for seeking refuge from a country that indefinitely imprisons people with no charges, attacked Iraq, assassinates its own citizens with no due process on the secret orders of the president, bombs funerals and rescuers in Pakistan, uses extreme force and mass arrests to try to obliterate the peaceful Occupy protest movement, wages an unprecedented war on whistleblowers, prosecutes its Muslim citizens for posting YouTube videos critical of US foreign policy, embraces and arms the world’s most oppressive regimes, and imprisoned Muslim journalists for years at Guantánamo and elsewhere with no charges of any kind.
It may, however, be overstating the case to say that Ecuador has a “starkly dreadful and illiberal record on freedom of expression.” The assertion derives from a lazy reliance on cherrypicked NGO reports. Reporters Without Borders is an NGO. NGOs are a typical go-to source for suspicion-free ammunition against the whipping boy of the week, for writers who don’t know the first thing about Ecuador. RSF’s principal claim to prominence is its annual Press Freedoms Index – a methodologically bankrupt study ranking the countries of the world on their relative press freedoms, based on subjective assessment surveys filled out by small pools of handchosen RSF correspondents in each country. It is approximately as objective a measure of comparitive press freedoms as Channel Four is a measure of the world’s “funniest” comedians.
RSF is not without controversy as to its funding structure and organizational biases, with some of its main donors drawn from the Cuban ex-pat community. It does not have a great track record of impartiality on nominally socialist Latin American states. More discerning researchers will have already determined that the so-called “media crackdown” in Ecuador is the result of the introduction of a strong UK-style media regulation regime in Ecuador – where regulatory decisions on the use of spectrum have remained unenforced for years. In the UK, pirate radio stations are routinely raided by the police, and shut down. There it is called “regulation.” When a now twice reelected, popular-by-supermajority Latin American socialist government does it, it is “starkly dreadful and illiberal.” OFCOM’s banishment of Press TV – at a time when the US-UK axis is stoking hostility towards Iran – has been quickly forgotten.
The most likely response to the above will be scorn and dismissal from David Allen Green. At this point, however, the ‘zombie facts’ have overrun the compound.