This is a cross-post from here of a critique of my New Statesman post on Assange’s legal myths, with kind permission of its author x7o.
(READER CORRECTION OF) Legal myths about the
Assange extradition
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.
and:
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.
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Ordinary people can get confused by concepts such as “subject to” actually meaning “regardless of” when it comes to due process.
It’s as well that we have lawyers to explain things to us.
Thank you for the interesting and thoughtful commentary and to David Allen Green for hosting it.
With regards to the rebuttal of point one: As I understand it, Assange’s lawyers made this same argument during the High Court appeal – that “although it was accepted that the conduct as described [in the EAW] would constitute an offence in England and Wales, a fair and accurate description of the prosecution case would not meet that test.”
“Mr Assange contended that the court should examine the underlying material from the prosecution file, even though the whole of the file had not been made available to Mr Assange’s Swedish lawyer as under Swedish law it is only made fully available at a later stage. However what was provided contained the principal statements of the complainants and other material which made it obvious that the conduct of which he was accused was not fairly and accurately described in the EAW.”
Presumably, this is what the author means by the UK court being unable to look beyond the prosecutor’s definition. I think this is correct to the extent that the court’s judgement was that “it is not apposite to take into account the material in the prosecution file”.
Nevertheless, a view was expressed on whether it would have made a difference were the court allowed to look beyond the prosecutor’s definition and consider this material (paragraphs 73-76 of the judgement). “It must therefore follow in respect of offence 1 that the challenge made fails, even if the extraneous material was taken into account.”
To this interested non-lawyer, it would seem that this argument is a red herring.
Let’s go through this in pieces:
1. Lawyers do not “fabricate arguments”. Lawyers are banned both from misleading the court and arguing the legally unarguable.
2. The argument about taking the legal arguments with a pinch of salt is pointless here. As you note, lawyers tend to disagree internally. On this matter the position has been overwhelmingly uniform.
3. While extradition law may be complex in certain areas, on the fundamental issues at hand in this case they are not. There are basic legal matters that are beyond dispute: first, that Sweden requires a higher evidential threshold for extradition to the USA; second, that extradition from Sweden would require the assent of both the UK and Swedish legal systems; third, that both Sweden and the UK would be unable to extradite Assange if he faced the death penalty; and fourth, that any risk of extradition to face inhuman or degrading treatment would be challengeable under the European Convention on Human Rights.
4. “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.”
The allegations are set out at the requisite length in detail in the Magistrates Court, High Court and Supreme Court litigation. They go into sufficient detail to show what the details of the allegations are. The allegations would, if they come up to proof and George Galloway was there personally filming it all, clearly amount to offences in English law. These allegations were explored in detail and are not simply matters of one-liners in the arrest warrant.
The “the language used in the warrant” line was one used in the first hearing of the case. Since then the allegations have been assessed in more detail in both the High Court and Supreme Court. This is not a case of simply taking the SPA’s word for it.
Put simply, the rape allegation is that Assange had sex with a woman while asleep without wearing a condom, despite a specific request for him not to have sex without a condom. In English law, there is an evidential presumption that a woman who is not conscious has not consented (s.75 Sexual Offences Act 2003). It is then up to the defendant to prove either that there was in fact consent, or that he had a reasonable belief in consent. Consent to protected sex is not consent to unprotected sex: a conditional “yes”, is in practice a “no” where the conditions are not satisfied.
5. “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.”
There is no evidence substantiating this argument. It is especially weak considering that in the event of an extradition request coming while Assange is in Sweden, he would still have recourse to the English legal system to challenge extradition because of the need for the consent of both countries. Even if we were to accept that the London legal community was more robust, it would not provide an argument against extradition: Assange would be able to take advantage of both the tougher Swedish extradition regime, and London’s tougher legal community.
6. “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”
What you’ll note though, is that in everything you have quoted and highlighted the procedure makes it clear that the decision of the executive has to be the final stage in the process. Not the first. Section 15 of their Extradition For Criminal Offences Act makes it clear that there are stages that have to be cleared before such a decision can be made. A prior guarantee would on a request not made would be legally meaningless. If it were done in the UK it could arguably be open to challenge for unreasonably fettering a quasi-judicial decision (think Jeremy Hunt and BSkyB).
7. Whether or not the SPA should interview Assange on his own terms is irrelevant if the concerns over extradition to the US are not valid. In any case, if the interview is with a view to potential prosecution, it does little to resolve the fundamental problem facing the SPA that Assange will not go over to Sweden.
8. You do not substantiate your accusations against RSF: this is just hand-waving.
9. The “media crackdown” in Ecuador involves personally prosecuting individual journalists for writing articles critical of Correa and his government.
10. Press TV was not banned from broadcasting in Britain: “OFCOM invited it to amend its licence in accordance with the Broadcasting Code, on the basis that editorial control came from Iran rather than Press TV Limited. Press TV refused to do so.
11. The criticism of Ecuador is that it is supremely ironic that a man who claims to be a champion of whistleblowers seeks refuge in a country that is actively curtailing freedom of the press at home, and extraditing whistleblowers and dissidents to their home countries abroad in the face of persecution. Nobody is suggesting that people should only seek asylum in countries with pristine human rights records. The criticism is that Ecuador is behaving hypocritically and inconsistently. Moreover it’s not simply a case of Assange simply running to the first country that would take him: he has gone well beyond that to actively promoting and praising the Ecuadorean government and its President, even giving him a platform on his own TV show.
@Sling Trebuchet: “subject to” means “subject to”, not “regardless of”. Read the judgment.
7. Whether or not the SPA should interview Assange on his own terms is irrelevant if the concerns over extradition to the US are not valid. In any case, if the interview is with a view to potential prosecution, it does little to resolve the fundamental problem facing the SPA that Assange will not go over to Sweden.
Actually, I have some trouble with the argument of this comment. The fact is that Julian Assange is sitting in the Ecuadorian embassy and the Swedes can’t legally get him out of there. If they are actually interested in changing the situation, interviewing him there is the one step they can take. It can both affect the willingness of the Ecuadorians to host him and doesn’t weaken their position at all.
In the end, it is the Swedes who are responsible for the situation being as it is – if they had detained Assange right when he was there, we wouldn’t have the whole discussion. Swedish law very much gives the option that in cases of a strong enough suspicion, people without permanent residence in Sweden or people who can otherwise expected to flee can be detained for some time. There is neither something unusual about doing so, nor about questioning people abroad you cannot otherwise question.
So the question in this aspect is where Ny’s priorities are: humbling Assange by having him dragged to Sweden kicking and screaming, or breaking the impasse and giving both him and the victims a chance at the speedy trial they are entitled to. Yes, Assange could break the impasse, to. But doing so would clearly be far more to his disadvantage than anything the Swedes can do.
The originally seems to replicate comments at the New Statesman rather than have it’s own. So, I’ll comment here:
Lawyers fabricate arguments to fit paid-for biases such as “that man is guilty,” or “my client is innocent.”
I take it that here, though, there is no paid-for bias.
Journalism is the documentary approach to truth
Now that’s funny.
The quibble about the “zombie fact” neologism is, frankly, pathetic. There is no standard way, no rules surrounding the production of a neologism. Even if there were, breeching those would no more invalidate an argument than a regrettable grammatical lapse.
The Truth According To David Allen Green
David didn’t claim to be putting forward The Truth but (as is made clear by the very paragraph quoted) to put right a few misconceptions for the use of those seeking The Truth.
So much for the “poisoning the well” parts of the post and onto the substantive (counter)claims:
1. The argument here seems to be “you’re right, but we didn’t mean that”. In this case I don’t think there’s much criticism to be made of David, just to point out that you haven’t made yourself clear, there is a slightly different claim you wish to make but, on this point, he is quite correct.
I disagree, though, with your paraphrase of the point allegedly being made. The “pro-extradition” lobby state, amongst other things, that rape is a serious offence, that people accused of rape should be extradited etc. It is in response to arguments like this where the “not accused of rape” rejoinder comes into play.
2. a. Any extradition to the US would be subject to UK approval, such approval can be challenged in the courts. Thus, Assange would still have access to the “larger and more robust legal community” in London. The point fails.
b. That extradition law is complex and unclear does not mean that there are not clear, simple, and reliable statements that can be made about it. (Quantum phsyics is complex and unclear, yet we can still say things like “electrons are negatively charged”). Francis FitzGibbon QC’s explanation reads very clear and simple. You present no robust argument against it and, so, I’m inclined to trust Francis on this one
c. “Moot”? Eh? How? “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.” It’s not missing the point of those arguing that extradition to Sweden is only sought to enable extradition to the US! Is this, as with point 1, another example of David being entirely correct in arguing against a purported fact but not the pareticular fact you wish to argue for. (Maybe saying “it’d be more difficult extraditing from Sweden than the UK” solely because it’d be more difficult extraditing from Sweden than the UK is “tautology abuse”.)
3. a. Is it “political input”? Is this not one of those “quasi-legal” decisions? In the UK the Home Secretary does take the final decision, but does not take the final decision freely: it is subject to review by the courts. Is this different in Sweden? Even barring legal review is the decision free? Someone has control over the Met and could issue the order to storm the Ecuadorian embassy.
b. Isn’t this all “moot”?
4, 5. You might have points here. Perhaps it is not absolutely impossible to interview Assange in London. You’d have someway to go to show that interviewing him in London is appropriate. But no matter, so long as you drop your objections to tautology-abuse, it is a potentially useful clarification. Perhaps it’s fairly pointless delving into the motives of Ecuador. Ecuador’s human rights record is irrelevant to whether and how a criminal case in Sweden should proceed. Hey! I’ve an idea! Re-write your post clarifying these two potential misconceptions and dropping all the desperate nonesense.
Huge credit to David for posting this.
Tony picks up on a very important point:
“We can quibble over which is worse, but that’s missing the point”
In fact the reality is the opposite; which is worse is precisely the point being argued. If the UK offers worse protections against US extradition, then many of the arguments against Swedish extradition simply fall away.
Not really. Your argument assumes that the quality of protections is the relevant factor in the probability of extradition actually happening. That, however, is doubtful. As is evident by his fleeing to the Ecuadorian embassy, in the UK, Assange had the chance to avoid an extradition by making himself unavailable to it. Once he’s sitting in a Swedish jail, his options to do so are fairly limited. You have to have someone at your disposal before you can extradite him. But the protections are also only relevant if they are actually being observed. Given that we’ve seen the US both “convince” law enforcement in New Zealand to play fast and loose with local laws. but, much worse, even abduct people on the open street right here in Europe, the US have no one but themselves to blame when people are paranoid about them. If they actually cared about local laws and the sovereignty of other nations, that might be different – but that’s not Assange’s fault.
David (Jack?): you argue:
Three: “Sweden should guarantee that there be no extradition to USA”
…any final word on an extradition would (quite properly) be with an independent Swedish court, and not the government giving the purported ‘guarantee’.
Your guest poster has pretty much demolished this. Your link to Niall McCluskey provides no help. His account is incomplete. Here is the crucial bit of what the Swedish Government website as to say:
“If the Supreme Court finds that there is any legal impediment to extradition, the Government is not allowed to approve the request. The Government can, however, refuse extradition even if the Supreme Court has not declared against extradition, as the law states that if certain conditions are fulfilled, a person “may” be extradited – not “shall” be extradited.”
THE GOVERNMENT DOES NOT HAVE TO EXTRADITE EVEN IF THE SUPREME COURT GIVES PERMISSION.
In short, the Swedish Government CAN give Assange the assurances against extradition he has asked for.
There was the interesting post by Mark Klamberg about the Swedish legal situation (partly quoted by Kevin Heller in opinio juris). Both on the procedure for an extradition request and its limits (e.g. for political offenses) it makes an interesting reading.
In the comment section, Klamberg states: “It is clear that an additional decision is needed from the UK. If this decision is appealable or not you have to ask an English lawyer. ” There is some discussion about that point and that is simply the reason to post the comment here: Would British consent just be an administrative procedure by the Secretary of State or would some legal process follow?
(I am no background in legal topics, it is just political interest.)
It seems to me that extradition is beside the point. All the Swedes have to do is convict him of something then decide he is an undesirable alien (he holds an Australian passport) and is entitled to deport him. When someone is deported the rejecting state has two choices: It can send him back whence he came, provided the destination is agreeable, in this case the UK may not be OR they can send him home, to Australia. From Europe there are effectively two possible routes, East or West. There is nothing to stop the Swedes putting him on a plane to Australia, via the US and job done.
You only need to extradite people with a right to remain where they are. Assange is likely on a visa of some sort and not have permanent leave to remain so extradition would seem to be moot.
I see little choice for Assange in that. Do any of the lawyers here care to comment?
Assange is innocent, the charges bogus.
Well done Mr Green for posting this – it shows great humility. But why is the comment section on the New Statesmen site still closed? And why is there no mention of this post on that site? While your article stands uncorrected (or at least unquestioned) it is continuing to mislead people. I’m not a legal expert or even all that clever – but it seems to me that most of what you wrote in the article is false or other lawyers disagree. People reading it should IMO be made aware.
First congratulations on opening up this issue to comment, though I don’t think it will change the minds of any “true believers”.
I have to fess up to being a lawyer but I also claim not to be offended by X70 (a projector, a bus service or a VOLVO?) as, being a lawyer, I’ve had more than this flung at me. However, on “zombie facts” X70 clearly hasn’t been reading Michel Foucault. X70 is also quite brave lining up with George Galloway on rape.
X70 has done quite a good imitation of counsel’s closing speech to the jury in a losing case where the main aim is misdirection by accusing your opponent of all the sins of logic and good sense you are about to pealed on behalf of your client. I assume X70 thinks that’s OK if you are not being paid for it.
Where the points made by X70 are worthy of comment I haven’t anything to add. I would add the point that if we are looking for hypocricy I understand that it is a condition of his being granted asylum that Mr Assange should make no political statements that could affect Ecuador’s relations with “friendly countries”. Surely Mr Assange should have refused to accept such a condition as being entirely at odds with his principles of free speech ?
Has anyone got any juicy titbits about Ecuador to offer to Wikileaks ?