David Allen Green

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Legal myths about the Assange extradition

A brief critical and source-based guide to some common misconceptions.

By David Allen Green Published 20 August 2012 13:49

Julian Assange gives his Sunday address to the faithful from a Kensington balcony. Photograph: Getty Images

Tags: Julian Assange

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128 comments

Tue, 2012-08-21 18:18 — Martin99 (not verified)

Why? Because Cameron wants rid of a political hot potato - let Sweden be seen to make the decision whilst avoiding a messy extradition through British Courts.

Tue, 2012-08-21 18:18 — Martin99 (not verified)

Why? Because Cameron wants rid of a political hot potato - let Sweden be seen to make the decision whilst avoiding a messy extradition through British Courts.

Tue, 2012-08-21 12:57 — Rastus (not verified)

The Swedish authorities have told Assanges legal team that the USA is working towards his extradition, Australia is preparing for his extradition. Of course we dont know the full story and the collusion going on in the background because government transparency is so abysmal. No wonder there's a support for groups like wiki-leak. Id love to see a FOI request on whether the Swedish prosecutor had discussions with other interested parties. This accusation is ridiculous, two women who want revenge for being spurned. He discarded them from the intellectual glitz and limelight so they decide to get revenge. The case should have been dropped but the authorities had their own agenda. So they took this ridiculous case on.

Tue, 2012-08-21 12:36 — Jay Bee (not verified)

I'm so glad I don't subscribe to the NS anymore - the second to last straw was letting the magazine be edited by Alistair Campbell - who really should just be heading his head in shame somewhere rather than still popping up in the media whenever and wherever he can - and this is the last straw - siding with the Establishment against a fellow journalist who is blatantly being hounded for letting us know more than they want us to know with the 'red herring' of a rape allegation that has been unbelievably bought by journalists who should know better. I'm not 'in love' with Assange - the slur that is being used against people who support his position - I perceive some of the same negative characteristics that his critics do - but the main facts of the case are plain to see - Julian Assange pissed off the US, the US want him, they have had Manning in jail for 800+ days, if I was Julian Assange I'd be in any embassy that would take me - I might not even have been that 'formal' about it - maybe I would just have run for the hills...

Tue, 2012-08-21 12:49 — Andrew P Nichols (not verified)

Alistair Campbell? The fact fixing war criminal propagandist of Tony Bliar in charge of a newspaper? Goebbels should have been so lucky??

Tue, 2012-08-21 12:01 — Raphae1 (not verified)

> "It is important to remember that complainants of rape and sexual assault have rights too, even when the suspect is Julian Assange."

What about the hundreds of women ("Foreign Nationals") who got raped in Afghanistan and Iraq? Without Julian Assange nobody would even know, that those rapes occurred. Do they have rights too? Why is nobody investigating their fate?

Tue, 2012-08-21 16:16 — Matthew Lambert (not verified)

So because he highlighted the problem in Afghanistan and Iraq he should be free to commit the same crimes elsewhere?

This post is at worst a ridiculous argument, at best just irrelevant to the article. Whether or not Assange faces rape charges in Sweden will not effect the women in Afghanistan or Iraq. He has potential committed a crime so should face the same due process as everyone else.

Wed, 2012-08-22 00:35 — Anthony Bee (not verified)

Free to commit the same crime ? has he been convicted, wake up, read Naomi Wolfs article....

Wed, 2012-08-22 09:06 — Matthew Lambert (not verified)

How can he be convicted when he jumps bail?

Wed, 2012-08-22 09:06 — Matthew Lambert (not verified)

How can he be convictedwhen he jumps bail?

Wed, 2012-08-22 09:06 — Matthew Lambert (not verified)

How can he be committed when he jumps bail?

Mon, 2012-08-20 17:44 — admin

Comments on this piece are closed overnight.

Mon, 2012-08-20 17:42 — johnnyappleseed (not verified)

'Zombie facts' Nice, I like that expression.

One more point, it is difficult to know under what law the US could charge Mr Assange, no matter how much they hate him. Publishing information, even formerly secret information, is protected by the First Amendment. This was clearly established over the Pentagon papers.

Tue, 2012-08-21 15:03 — Robin1973 (not verified)

Explain that to Manning...!

Tue, 2012-08-21 16:16 — CDLondon (not verified)

Ummm, Manning's alleged activities were much different than Assange's! He illegally obtained in the US and passed on sensitive government information while serving in the armed forces. That's differnet than simply receiving said information (outside of the USA) and posting it on the internet.

Mon, 2012-08-20 17:38 — AAMVN (not verified)

A question for the author - Mr Green.

Suppose Mr Green that YOU were Assange - you've done everything he has done re wikileaks and everything they allege he has in the statements of the two women involved. Would you go to Sweden to face the music or would you use every means in your power to stay at liberty and able to communicate freely and be active?

In his shoes there is no way I'd go to Sweden - even if they guaranteed no onward extradition - cos they'd quickly go back on that if the US pressured them.

If the US or it's minions get their filthy blood stained hands on Assange - his life will be ruined.

I'm sorry if the two women in Sweden were abused and never get their day in court. That would be a shame - but it's small potatoes in the scheme of things, really it is. I think most of us - men and women have had bad sexual experiences and shrugged them off to get on with our lives. You can't drag the police in every time someone you sleep with behaves rudely or does something you're uncomfortable with. The answer is not to sleep with them again and perhaps to be more careful in future who you sleep with.

BTW - my understanding of the UK court ruling on 'rape or not in UK law' is that on an EAW tick box form - if they ticked the rape box the EAW is valid regardless of what definition of rape caused them to tick it. The judges listened to the evidence in the appeal but could not consider it in their rulings. They are not allowed to look at the evidence against Assange that leads to the EAW being issued.

Ergo - it is reasonable to state that what the women allege happened to them is not rape in the UK - because it is not.

The heart of this problem is the thoroughly appaling EAW and its misuse by Sweden. The EAW needs repealing ASAP - there are many other cases as bad and some far worse. Imagine what might happen if Turkey entered the EU and EAWs from Turkey became valid all across Europe?

I started reading this article hopeful of some fresh insight, but I found it lacking.

Tue, 2012-08-21 13:46 — Old Hand (not verified)

The Jack of Kent post linked above quotes the Magistrate's ruling (upheld by the High Court) that the specific accusation in this case (he allegedly “deliberately consummated sexual intercourse with her by improperly exploiting that she, due to sleep, was in a helpless state”) was rape under English law.

They did not rule whether the the accusation was true, that is a matter for the Swedish courts, but they clearly ruled that the specific accusation amounts to rape under English law. No box ticking involved.

Mon, 2012-08-20 17:37 — Jon_G (not verified)

As a lawyer and an admirer of Wikileaks, I just wanted to say that I greatly admire David Green's piece, and the succinct way that he has explained the legal position. It is a pity that many readers still see an imaginary conspiracy, presumably orchestrated by the CIA and MI5, to spirit Mr Assange away to Guantanamo Bay. David Green's article ought to be read by everyone. I'm afraid many have now fallen in love with Assange and are unable to see him other than as a persecuted hero. I am ashamed of those who gather outside the embassy to protest on his behalf, since this devalues protest itself. Next time I march in protest against a planned invasion I'll be tarnished with the memory of the foolish dupes who protested on behalf of Assange.

Tue, 2012-08-21 21:52 — Josh R (not verified)

It's not about falling in love with Julian Assange. It's about having reasonable doubt about the legitimacy of the case. I have no belief in conspiracy theories; however it is supported by law and precedence that Assange could be extradited from Sweden, a moral issue the writer of the article entirely side-stepped in preference of his own zombie arguments that have themselves proved to feature many holes.

Do I think Assange should stand trial? Yes. Do I think justice should be done to all rape victims? Yes. Do I have reasonable doubts about the case? Yes. There are holes in the evidence and as the above article from Naomi Wolf illustrates many things have already been done that would effectively prevent the case from ever going to court if Assange was an ordinary man rather than a political toy. I believe in freedom and justice only when they are applied across the board. That means following due process and making the guilty pay for their crimes. But that also means we need to treat Assange like a normal man, not a chew toy and as I have said there is plenty of evidence that because of his high profile he has not been treated as a defendent should and the complainants have not been processed correctly or judiciously.

In light of which it becomes an ethical argument over whether you let Assange's high profile change the fact that the prosecution have behaved in a way that stinks to high heaven. In a normal UK case, these things would have been grounds for a mistrial. Regardless of his guilt Assange deserves to be processed and punished fairly and already the prosecution has failed on that count.

Mon, 2012-08-20 17:37 — Jon_G (not verified)

Mon, 2012-08-20 16:52 — Dominique Strauss-Kahn (not verified)

And Naomi Wolf.

The only points of interest here relate to the Swedish position.

Assange has been indicted ? Hasn't ? Is about to be indicted ? Is all, but indicted ? The prelim. enquiries aren't enquiries but formalities preceding indictment ?
He's wanted for enquiries, then arrest and then charge ? And then trial ? And you give us

'Assange is not wanted merely for questioning.

He is wanted for arrest.'

Well why didn't you say ? forget everything else then, forget the context, the arrestors, forget the circumstances surrounding the sort-of defendant. He needs to be locked up first and foremost and then we'll talk about his innocence.. FFS

'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.'

As with the 'analysis' this is law-lite. She is saying that her 'prelim. investigation' is dependent on JA being arrested and interrogated. This is not a justification or explanation it is a statement of intent.

People are found guilty in absentia, why is incarcerating him so much more important than 1) the investigation and pursuit of justice 2) interviewing him 3) his justifiable fears ?

You'll forgive us for wondering why such official, procedural requirements have been overlooked for so long or why they are more important than 'justice'.

The approach of the Swedes has at best been obstructive to justice for the 'victims' and the sort-of defendant.

Bottom line is that this is the sort of legal grey area that has been exploited by powers such as the US to create holding pens like Guantanamo, to imprison Bradley Manning for 800 days + and unjustly extradite UK citizens. To ignore that threat is daft, even more so when it you are the subject of it. To try and reduce the conversation to 'rape is bad, get him out or you're a rapist too' ' is facile.

IF you accept that JA is right to hold concerns about his life and liberty because of his posturing and Wikileaks then surely accommodating those fears WHILST conducting the 'preliminary enquiries' that may or may not lead to indictment is the way forward ? I note the absence of any real 'way forward' in the article, just reference to how the author fails to see the clearly compelling arguments put forward by a multitude of people, not least Naomi Wolf .

So why have the Swedes been so adamant and un-flexible in their position ? they could end all of this by visiting JA (It is difficult to see a sensible and well-based reason why Sweden should not now go to Assange')

Mon, 2012-08-20 16:47 — beyourownreason

While you do address some points, it seems you can't see the forest for the trees.

1-What's your position on the Interpol red notice? Is this normal?
(Khadafi had an orange notice, Assad none)

2-What's your take on the 65000 Euros a day surveillance around the (Ecuadorian) embassy? Is this normal in such a case?

3-What's your position on Hague's move to revoke the Ecuadorian embassy's status?
Is this due process? An international row for a man wanted for sexual misconduct? Seriously?

The three points submitted above are UNPRECEDENTED.
Care to comment?

Mon, 2012-08-20 17:05 — Martin J Robbins (not verified)

Dear "BeYourOwnReason"

1) I Googled 'Interpol Red Notice'. They gave out roughly 7,000 of them last year alone, so I wouldn't say they were UNPRECEDENTED so much as boringly routine.

2) Is this normal in such a case? What other cases of a celebrity with a warrant out for their arrest hiding in an embassy in London would you like David to compare it to?

3) Has William Hague moved to revoke the embassy's status? When did that happen then? Also, when you say "sexual misconduct", is that a euphemism for "rape?"

4*) If you really want to BeYourOwnReason, it's worth learning how to use a search engine.

* Bonus advice, given for free.

Mon, 2012-08-20 17:19 — Tony Lloyd (not verified)

To add, according to the fount of all knowledge (Wikipedia) the differing colours of Interpol notices do no denote differing grades (as in a "Yellow" or "Red" Alert) but code for differing requests. A yellow notice, for example, is a missing persons notice. An Orange (as per Gaddafi) warns of the possibility of parcel bombs and the like. A red notice is a request for arrest (one was issued in respect of Gaddafi in Sept 2011).

At a guess I would think that when you want someone arrested you issue the red "arrest please" notice.

I have a couple of questions for BeYourOwnReason:

1. Do you accept that the myths shown above are indeed myths?
2. How "why this, why that" questions, myths, distortions and lies have to be answered and debunked before you'll accept that it is proper for extradition to take place.

Mon, 2012-08-20 17:19 — Tony Lloyd (not verified)

At a guess I would think that when you want someone arrested you issue the red "arrest please" notice.

I have a couple of questions for BeYourOwnReason:

Tue, 2012-08-21 21:02 — bobcat jones (not verified)

You seem good at answering points, so I'd like you to answer theese. No others, and no straw-men made by idiots.

Something Rotten in the State of Sweden: 8 Big Problems with the ‘Case’ Against Assange
by Naomi Wolf

Exclusive to News from Underground

Now that Andrew Kreig, of the Justice Integrity Project, has confirmed Karl Rove’s role as an advisor to the Swedish government in its prosecution of Julian Assange on sexual misconduct charges, it is important that we note the many glaring aberrations in the handling of Assange’s case by the authorities in Sweden.

Dr. Brian Palmer, a social anthropologist at Uppsala University, explained on Kreig’s radio show last month that Karl Rove has been working directly as an advisor to the governing Moderate Party. Kreig also reported, in Connecticut Watchdog, that the Assange accusers’ lawyer is a partner in the law firm Borgström and Bodström, whose other name partner, Thomas Bodström, is a former Swedish Minister of Justice. In that office, Bodström helped approve a 2001 CIA rendition request to Sweden, to allow the CIA to fly two asylum-seekers from Sweden to Egypt, where they were tortured. This background compels us to review the case against Assange with extreme care.

Based on my 23 years of reporting on global rape law, and my five years of supporting women at rape crisis centers and battered women’s shelters, I can say with certainty that this case is not being treated as a normal rape or sexual assault case. New details from the Swedish police make this quite clear. Their transcript of the complaints against Assange is strikingly unlike the dozens of such transcripts that I have read throughout the years as an advocate for victims of sex crimes.

Specifically, there are eight ways in which this transcript is unusual:

1) Police never pursue complaints in which there is no indication of lack of consent.

Ask Sweden to produce ANY other police report in which any action was taken in a situation in which there is no stated lack of consent or threat of force. Police simply won’t act on a complaint if there is no indication of a lack of consent, or of consent in the face of violence. The Assange transcripts, in contrast to any typical sex crime report, are a set of transcripts in which neither of the women has indicated a lack of consent. (There is one point at which Miss W asserts she was asleep – in which case it would indeed have been illegal to have sex with her – but her deleted tweets show that she was not asleep, and subsequent discussion indicates consent.)

The Assange transcript is therefore anomalous, as it does not suggest in any way that either woman was unconsenting, or felt threatened. On this basis alone, therefore, the Assange transcript is completely aberrant.

2) Police do not let two women report an accusation about one man together.

The transcripts seem to indicate that the police processed the two accusers’ complaints together.

This is completely unheard-of in sex crime procedures; and the burden should be on Clare Mongomery, QC, or Marianne Ny, to produce a single other example of this being permitted.

Never will two victims be allowed by police to come in and tell their stories together–even, or especially, if the stories are about one man.

Indeed, this is a great frustration to those who advocate for rape victims. You can have seven alleged victims all accusing the same guy — and none will be permitted to tell their stories together.

It doesn’t matter if they coordinated in advance as the Assange accusers did, or if they are close friends and came in together: the police simply will not take their complaints together or even in the same room. No matter how much they may wish to file a report together, their wishes won’t matter: the women will be separated, given separate interview times and even locations, and their cases will be processed completely separately.

The prosecutor, rather than being able to draw on both women’s testimony, will actually have to struggle to get the judge to allow a second or additional accusation or evidence from another case.

Usually other such evidence will NOT be allowed. Miss A would have her case processed and then Miss W — with absolutely no ability for the prosecutor to draw form one set of testimony to the next.

The reason for this is sound: it is to keep testimony from contaminating separate trials–a source of great frustration to prosecutors and rape victim advocates.

Thus the dual testimonies taken in this case are utterly atypical and against all Western and especially Swedish rape law practice and policy.

3) Police never take testimony from former boyfriends.

There’s another remarkable aberration in this transcript: the report of a former boyfriend of “Miss A,” testifying that she’d always used a condom in their relationship.

Now, as one who has supported many rape victims through the reporting process, I have to say that the inclusion of this utterly atypical–and, in fact, illegal–note will make anyone who has counselled rape victims through the legal process’ feel as though her head might explode.

There’s a rape shield law in Sweden (as there is throughout Europe) that prevents anyone not involved in the case to say anything to the police, whether it be positive or negative, about the prior sexual habits of the complainant. No matter how much a former or current boyfriend may want to testify about his girlfriends’ sex practices — even if that woman wants him to — the courts will, rightly, refused to hear it, or record it, or otherwise allow it in the record.

4) Prosecutors never let two alleged victims have the same lawyer.

Both women are being advised by the same high-powered, politically connected lawyer. That would never happen under normal circumstances because the prosecutor would not permit the risk of losing the case because of contamination of evidence and the risk of the judge objecting to possible coaching or shared testimony in the context of a shared attorney.

So why would the Swedish prosecutor, Marianne Ny, allow such a thing in this case? Perhaps — bearing in mind the threat that Assange will be extradited to the US once he is in Sweden — because she does not expect to have a trial, let alone have to try to win one.

5) A lawyer never typically takes on two alleged rape victims as clients.

No attorney–and certainly no high-powered attorney– would want to represent two women claiming to have been victimized by the same man, for the reasons above: the second woman’s testimony could be weaker than the other one’s, thus lessening the lawyer’s chances of success.

There also is a danger that the judge may well object to the potential cross-contamination of the women’s stories.

Again, the only reason why a lawyer would thus weaken his own clients’ cases us that s/he does not expect the case to come to trial.

6) A rape victim never uses a corporate attorney.

Typically, if a woman needs a lawyer in addition to the prosecutor who is pursuing her case (as in the Swedish system) she will be advised by rape victim advocates, the prosecutor and the police to use a criminal attorney — someone who handles rape cases or other kinds of assault, who is familiar with the judges and the courts in these cases. She will never hire a high-powered corporate attorney who does not specialize in these cases or work with the local court that would be hearing her sex crime case if it ever got to trial. Given that a law firm such as this one charges about four hundred euros an hour, and a typical rape case takes eight months to a year to get through the courts – given that legal advice will cost tens of thousands of euros, which young women victims usually do not have access to – it is reasonable to ask: who is paying the legal bills?

7) A rape victim is never encouraged to make any kind of contact with her assailant and she may never use police to compel her alleged assailant to take medical tests.

The two women went to police to ask if they could get Assange to take an HIV test.

Sources close to the investigation confirm that indeed Assange was asked by police to take an HIV test, which came back negative. This is utterly unheard of and against standard sex crime policy. The Police do not act as medical mediators for STD testing, since rapists are dangerous and vindictive. A victim is NEVER advised to manage, even with police guidance, any further communication with her assailant that is not through formal judicial channels. Under ordinary procedures, the women’s wishes for the alleged assailant to take medical tests would be discouraged by rape victim advocates and deterred and disregarded by police.

First, the State normally has no power to compel a man who has not been convicted, let alone formally charged, to take any medical tests whatsoever. Secondly, rape victims usually fear STD’s or AIDS infection, naturally enough, and the normal police and prosecutorial guidance is for them to take their own battery of tests – you don’t need the man’s test results to know if you have contracted a disease. Normal rape kit processing–in Sweden as elsewhere–includes such tests for the alleged victim as a matter of course, partly to help prevent any contact between the victim and the assailant outside legal channels.

8) Police and prosecutors never leak police transcripts during an active investigation because they face punishment for doing so.

The full transcripts of the women’s complaints have been leaked to the US media. The only people who have access to those documents are police, prosecutors and the attorneys. Often, frustratingly, rape victims themselves cannot get their own full set of records related to their cases. In normal circumstances, the leaking of those transcripts would be grounds for an immediate investigation of the police and prosecutors who had access to them. Any official who leaks such confidential papers faces serious penalties; lawyers who do so can be disbarred. And yet no one in this case is being investigated or facing any consequences. It seems quite likely that the Assange documents were leaked by the police or prosecutors because they got a signal from higher-ups that they could do so with impunity.

Indeed, these are all major aberrations–suggesting that somebody at the top has interfered.

And who is at the very top in Sweden? Players working with Karl Rove, who was a party to the Swedish government’s collusion in the Bush regime’s rendition/torture program. As Britain holds its hearings into Julian Assange’s fate, we must take careful note of that connection.

Mon, 2012-08-20 16:43 — Sean O'Faolain (not verified)

Interesting to see the left's concern for women's safety go out of the window when it's a guy they like who represents the (alleged) danger.

Tue, 2012-08-21 15:14 — Robin1973 (not verified)

As woman I have always advocated for end to abuse on all its forms. And I have been campaigning against domestic violence and I actually work with a women's rights organisation. As such as i believe thet this is a plot of US to get his hand on Assange.

Mon, 2012-08-20 16:51 — Bibblybob (not verified)

You'll probably find that the "left" also concern themselves with little things like innocence until proven guilty, sufficient evidence to prove such an allegation, and the suppression of journalists and whistleblowers. We also happen to understand that, given Western government's usual attitudes toward rape convictions and international criminals, it's highly unusual for them to want to destroy international law as we know it to try someone for sexual assault on such flimsy evidence (which, given that only 5% of rape cases end in a conviction, would indicate a sound judiciary would almost certainly not find a conviction), and the guy they're trying to convict just so happens to have published lots of documents said countries didn't want their proles and peasants to see, and the guy who leaked them just so happens to have disappeared off the face of the earth.

Mon, 2012-08-20 16:57 — NCS (not verified)

Did you SERIOUSLY just use the appallingly low conviction rate for sexual offences as a reason for rape cases NOT to be taken seriously and proceed duly?

Mon, 2012-08-20 17:07 — Bibblybob (not verified)

No, i'm using it as an example that a conviction would be so unlikely most governments wouldn't even bother chasing someone across the globe to convict them, especially how little they actually care about rape in the first place. Except this isn't rape, it's sexual assault.

Mon, 2012-08-20 16:36 — Peter D (not verified)

David,

You seem to regard the narrowly drawn UK court judgment (holding that the decision of the Swedish prosecutors to refuse Assange's offer was although sufficient to allow the EWA) as being an endorsement that the Swedes are acting in a wholly reasonable and proportionate manner. Oh dear.

For example the Guardian and other outlets used to report the existence of the sealed Grand Jury indictment against Assange in the US that is ready to be served upon Sweden. Do you think that story was made up by the Guardian just to worry Mr Assange? It would worry me. Seems to have convinced the Ecudoreans as well - hence their (entirely lawful) asylum decision.

Can't see therefore that the fella is behaving anything but sensibly for the time being. So maybe lets see what comes out in the wash about that "secret" indictment before putting him in the clutches of the Gitmo crowd.

That Swedish plod would want Assange in their hands is of course natural. Plod usually do want you down at the nick (and in jail to soften you up) in their own manor for various reasons - doesn't mean a chap and his brief always has to go along with what plod wants. Often we have no choice in the matter of course. Assange did and exercised it - quite sensibly if he indeed does have the fears he claims. Indeed until we know if their is a secret indictment in the US then who are you to criticise that view?

On the specific points do they actually need him within Sweden's land borders soil in order to do the following

a) Interview him - no

b) Interview under formal caution - no

c) Interview after formal arrest - no

d) Charge him - no

e) set a date for trial - no

f) disclose evidence they will be relying on in that trial - no

All the above can be done outwith Sweden's borders if Swedish plod wishes.

You know that so please stop dissembling and maybe explain why Swedish plod will not do so.

Moving on. Do they need him to be within Sweden's borders in order to:

g) Place him in Swedish jail after charges are levied whilst awaiting trial - yes.

So if we take the above the Swedes can interview now outwith Sweden and charge and set a date for trial.

That they do not done so yet is a decision that is down to the Swedes - not Assange. No one is stopping them. It is not something that you should support Sweden over as it is a monstrous cock up by the Swedes (if not worse) that has left the complainants in limbo.

If Assange does not turn up to that trial then their may well be some criticism due his way. But if they interview and then decide not to charge what harm has been done by him not attending within the borders of Sweden for that part of the process. None.

Therefore Assange cannot really be described as being unreasonable in not going to Sweden at this point. Let the interview take place outwith Sweden and charges come as they may within Sweden. No?

Not the way Swedish plod would like to happen I am sure.

Not wholly unreasonable that they would want him in Sweden I am sure. Plod do as plod do. No need to go along with plod is there. (Be a lawyer please not a polemicist).

Not such an unreasonable refusal by Sweden that it would defeat the EWA request I am sure.

But it can certainly be done that way if the Swedes wish.

Nothing at all in the UK courts judgment you refer to interferes with the rights of Sweden as a sovereign nation to proceed in the way it sees fit to deal with complex matters outwith their borders via video links or in their embassy compounds etc.

The Swedes may well not wish to make such a "concession" to a private individual. That is for them to judge.

I think as a UK citizen they should do so as it is all costing us a lot of money and the issue is simple to resolve.

If the Swedes think Assange is never going to attend Sweden whatever even after charges are formally laid then put him to the test by charging and moving the prosecution on.

All this smoke and mirrors by the Swedes gives an impression (rightly or wrongly) that no charges will follow and it is a ploy.

Finally do they need to have him within Swedens borders to:

h) Keep him in jail following dropping of the rape allegations whilst awaiting any future application from the US authorities regarding Wiki Leaks - yes

i) would he be able to resist extradition in the UK than Sweden. Who knows? He has perhaps calculated he would be safer in the city that harboured Karl Marx and is home to a larger left movement than Sweden than he would be in whilst in jail in Stockholm. Certainly he is not going to the US anytime soon from his new base in London so he has been correct in that calculation so far.

The decision of the UK court was that the refusal by the Swedish prosecutors to accede to the offer made by Julian Assange was not so unreasonable as to defeat the EWA application made by Sweden.

That much is in black and white. We can read it ourselves thanks.

Your analysis fails, however, as you wish to bend the stick further than it can reasonably go in order to beat Assange with it.

Cheers,

Peter

Tue, 2012-08-21 18:45 — Richard Fish (not verified)

Fascinating. You seem quite the expert on Swedish criminal procedure.I'm fascinated to know your qualifications. And perhaps you can point us to some article of the Swedish criminal code supporting your assertion that All the above can be done outwith Sweden's borders if Swedish plod wishes.

It's a great shame Mr Assange didn't call upon your expertise in court, then some of these points might have been considered rather than successive courts hearing from leading and junior counsel, considering the points raised in depth and then CONCLUDING THAT SWEDISH PROCEDURE REQUIRES HIM TO GO TO SWEDEN NOW BEFORE THE NEXT STEPS CAN BE TAKEN.

Mon, 2012-08-20 16:32 — Vin (not verified)

I don't trust Sweden with Assange... they have never said no to a US extradition request. In regards to, and I quote your article: "bound by EU and ECHR law not to extradite in circumstances where there is any risk of the death penalty or torture." - the latest 2012 Amnesty International Report on Sweden paints a slightly different picture, as does Sweden's extradition history. I can't post a link on here but go to amnesty . org
In the event that Assange went back to Sweden to answer the questions surrounding claims of sexual assault, whether he is charged or not, the US can of course apply for extradition (A Virginia grand jury is studying evidence that might link Assange to Pfc. Bradley Manning, if a link is made of course they will want Assange). Based on Julian's success rate with avoiding extradition to Sweden and the loyalty in which the UK have shown to Sweden, one could safely assume they [UK & Sweden] would package him up and ship him off to the US; The Swedish/US Bilateral Treaty gets around safeguards of normal extradition with a fast-track "Temporary Surrender" clause and The UK/US Bilateral Treaty allows the U.S.A to extradite from the UK without any prima facie case (i.e. evidence).
I believe Julian should answer to the allegations made against him in Sweden, they are serious and must be dealt with, but I also believe that every step should be made to protect him from facing extradition to the US for charges relating to Wikileaks.

Mon, 2012-08-20 16:29 — Bibblybob (not verified)

Jesus Christ the NS do it again....

1) This is a straw man argument. His charge does not apply under UK law because it was allegedly committed in Sweden. Therefore this is completely irrelevant to anything apart from making his supporters look like rape enablers.

2)"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."

Why? Why would an extradition require the consent of a third party when the accused is not even present in that third party nation?

And they can't because he's claimed asylum in an embassy. Unlike Gary McKinnon or Richard O'Dwyer, Assange isn't an easy target and actually has some influence. Those are the sort of cases that weren't even reported in the press despite their connotations. Immediately extraditing him for "making us look bad" would never get past anyone with a brain cell left in their head as anything legitimate. An extradition would also require an official charge of a criminal offense, which isn't there. He can, however, be extradited as soon as he hits Swedish territory under a quirk in the US-Sweden extradition agreement.

And you don't think the UK actually ARE trying to extradite him? They're doing it right now. It's all over the news, remember? They're even making sure to voice their intentions, but not their reasons why or the charges he's facing. The only difference being that the UK don't want to be held responsible for directly extraditing him, seeing how they've extradted children to be sent to the gulags by the media industry. Oh yeah, and Bradley Manning.

3)YES THEY COULD. Extradition agreements are reliant on the consent of both parties. The US have no (technical) jurisdiction in Sweden, so it's up to the Swedish authorities whether they agree to extradite someone or not and whether to adhere to the treaty. This is beside the fact that even if it is a meaningless gesture, it would stand to further expose the shamelessness of the West's governments by extraditing someone right after promising not to. And who ever said the USA plays by the rules? Remember the last 12 years or so? Hell, make that 40.

And don;t expect the ECHR to do anything. How well have the UK, or any EU country for that matter, upheld their obligations? And how long does it take to even get into court? There's such a colossal backlog it's at least two years before you even get a wink of a chance to be heard. And let's not forget that this is the same ECHR that recently allowed the extradition of a suspect to a country that would "ensure" he would not be tortured, despite the massive track record of torture in said country.

4)"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. "

Maybe it is if the charges are unfounded? There's quite literally no significant evidence on which to base the allegations, but the Swedish prosecution are making concerted efforts to have him tried. Which is besides the fact that he's outside the jurisdiction of both Sweden and the UK, so they have no right to pursue him without Ecuadorian consent.

And maybe the fact that he's wanted for arrest merely on the basis of questioning is part of the problem here? Once he's in handcuffs he's at the mercy of the government.

"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"

This says nothing about him being arrested. It even say s that a decision to indict may not be taken at the case's current stage, and the stage will only end once he has been interrogated. But they're trying to arrest him so he can be interrogated, when they could easily question him in the embassy.

5) I agree with Ecuador's record, but it merely indicates just how low us "free and democratic" nations are willing to stoop.

And to top it off you link back to your last 100 word article about how complainants have rights too, as if that even says anything. If you want to talk about liberal principals of justice, how about innocent until proven guilty? The only evidence that even exists of him committing these acts are either here-say or presented by the Prosecution, even when one of the women has apparently disagreed to agree to criminal action being brought against him?

Remember how Dominic Straus Kahn was accused of rape when he was stepping on neoconservative toes? Remember what happened to Bradley Manning? It's the same tactic being used against Kahn, except unlike him he'll be receiving the same treatment as Manning (seeing how he published the documents that caused him to mysteriously disappear off the face of the earth). THAT'S what people are concerned about. But yet again we get more barrel scraping authoritarian apologetics from NS, because "rape" is involved.

Mon, 2012-08-20 16:21 — Will Podmore (not verified)

Mr Green writes, "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 in the United States in such circumstances."
Has he ever heard of the process of extraordinary rendition?
Oh, but of course, on his smug theory, it cannot have happened!

Mon, 2012-08-20 16:21 — Richard Mullens (not verified)

This is tedious nonsense.

We all know that this action is politically motivated.

Julian Assange is right to hold his ground. If once he shows weakness by agreeing to extradition to Sweden, then he becomes an easier target for onward extradition elsewhere.

One of the parties is going to have to back down. It is unlikely to be Ecuador as Wlliam Hague has given then the moral high ground.

We will probably have to wait for a change of government to end this display of "my willy is bigger than yours". In the meantime it is the British taxpayer who is picking up the tab.

Tue, 2012-08-21 17:38 — Red Rain (not verified)

In the case of the first woman who helped Assange arrange his visit to Sweden he is alleged to have held her arms down physically and spread her legs during what Assange says was consensual sex in her apartment-so when does Rape become consensual sex-apparently when the alleged perpetrator has become a left-wing hero...

Mon, 2012-08-20 17:01 — NCS (not verified)

I'm not sure a penis joke is appropriate during the discussion of a rape case.

Mon, 2012-08-20 16:20 — Ahmed Agiza (not verified)

"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 in the United States in such circumstances."

There have been problems with that before.

(...apprently you cannot link to the BBC on this site. So, google Ahmed Agiza)

Mon, 2012-08-20 16:19 — Ahmed Agiza (not verified)

There have been problems with that before.

(...apprently you cannot link to the BBC on this site. So, google Ahmed Agiza)

Mon, 2012-08-20 16:18 — Ahmed Agiza (not verified)

There have been problems with that before.

news.bbc.co.uk/1/hi/4568041.stm

Mon, 2012-08-20 16:11 — H0101 (not verified)

If Assange were not the founder of Wikileaks, then I and most other people would have no sympathy for him, and would support all attempts to extradite his to Sweden for the due process of law to take place.

But he is the founder of Wikileaks and it's ridiculous to doubt that the US won't throw the book - or in their case the book and the whole desk - at him when and if they can.

We also know that Sweden has a poor record (just like the UK) is bending to the wishes of the US, both in the past, and recently in the Pirate Bay case.

But in this single particular case, whether or not he is more likely to be extradited from the UK or Sweden is irrelevant. The fact that he won't face his accusers in Sweden is VERY unfortunate, but still irrelevant. The diplomatic mess is irrelevant. The possible misuse of diplomatic immunity is irrelevant. What the law says is irrelevant.

The ONLY fact that matters is that he is likely to extradited to the US, and that is wrong. That fact trumps all others.

Mon, 2012-08-20 16:31 — Bibblybob (not verified)

If he wasn't the founder of Wikileaks, the authorities wouldn't even bother chasing him on the basis of such flimsy evidence for the benefit of two people to the extent of destroying the Vienna conventions in the process.

Mon, 2012-08-20 16:19 — macuser_e7 (not verified)

You appear unable to distinguish between facts and your own opinions.

Mon, 2012-08-20 16:11 — JohnRuddy

You forgot in number 3, that Sweden's extradition treaty with the US specifically prevents extradition for political and military crimes (Article V), and Article VIII states they will not extradite if the death penalty applies, and they will only extradite if assurances are given that it will not be carried out.

The US extradition thing is a giant red herring designed to garner sympathy from the left, and throw up a smokescreen for the real reason he doesnt want to go back. Which is that Sweden punishes rapists much harder than almost any other country. The joke is in Sweden even married men need the written permission from their wives before they have sex....

Mon, 2012-08-20 16:45 — Joe Catron (not verified)

"Sweden punishes rapists much harder than almost any other country."

This is nonsense.

However, when I tried to post excerpts from a huffingtonpost.co.uk article by Karin Wasteson explaining why, both they, and a subsequent attempt to post the URL alone, "triggered the profanity filter." Really, New Statesman?

So if you're interested, you'll have to search for her 1 February 2012 article. The title, it seems, is also streng verboten. Good job, editors!

Mon, 2012-08-20 15:49 — Rogerthechorister (not verified)

Oh, I should have mentioned that Assange apparently did undergo considerable interrogation in Sweden before leaving because leave to remain was refused.

Mon, 2012-08-20 15:47 — Graeme Cowie (not verified)

Excellent summary of the situation. The one thing I would add is that whilst people are rightfully concerned about Sweden's dubious past in the early 2000s as regards doing the US's bidding in extradition, particularly via proxies such as Egypt, the Strasbourg court's legal framework has tightened the noose considerably since then. The Al Qatada judgment, for instance, has sent a pretty strong statement to contracting states that they're not mucking about when they say you can't extradite someone who would face the death penalty, torture, or an unfair trial.

Whilst in theory these judgments can be ignored (indeed France has poor form for ignoring them) they are unlikely to be ignored in such politiclly sensitive situations such as that involving Mr Assange, purely from a pragmatic perspective. It's not in the interests of the US, or contracting parties to the ECHR (and the sub-set within that, those who are also EU countries and parties to the EAW) to have the perceived legitimacy and trust in those frameworks undermined. The US has relatively little to gain from either refusing to make assurances, or reneging on assurances, in respect of Assange, as it would draw more attention to, and undermine their future efforts, to have less high-profile persons extradited for their "national security" reasons.

Mon, 2012-08-20 15:46 — Rogerthechorister (not verified)

"Between 1 January 2004 and 31 December 2011, the US made 134 requests for extradition to the UK authorities and 75 people were successfully sent to America for trial" -

Green does not mention the very facilitating Swedish conditional extradition process. I have been unable to trace full statistics on how often Sweden has refused US extradition requests. It is stated that they have refused none since 2000 but I do not know how many were made.

Sweden has suffered trenchant criticism of its extradition process - including, just after WWII of deserting Russian soldiers they sent back to Stalinist concentration camps.

Your foolish spam policy prevents me from submitting the links with primary data on the above.