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

Mon, 2012-08-20 15:42 — Brian Barder (not verified)

An excellent demolition of some of the nonsense zooming round the blogosphere.

One point that might be added is that since the UK is actively seeking to execute the valid Swedish arrest warrant and extradition application, a subsequent extradition request by the United States (if it were ever to materialise -- there's no evidence that one is imminent or even likely) would only be dealt with after the Swedish one, which would have precedence because it was submitted first. And if and when the UK has succeeded in executing the Swedish warrant, Assange will no longer be in the UK, so the question of which country the Americans should apply to would not arise.

Mon, 2012-08-20 15:40 — Owen (not verified)

But.. the point 9 above makes it clear that the purpose of the action is so that he can be interrogated. None of the other points indicate why this has to take place in Sweden. It would be quite possible to interview abroad then complete the process and decide if a charge will actually be brought.

Fail. What you have actually done is proven that the politician/prosecutor here is desperate to get the suspect to their own country. If they were desperate to ensure justice they could have conducted the interview at any time in the last 2 years.

Fair trial abroad has a far more authoritative series of articles on this. In particular a proper (swedish perspective) legal analysis of the politician/prosecutors ability to hold Assange incommunicado (he can limit access to Assanges own lawyer, and prevent all access to anybody else without having to give cause.)

As for whether Sweden is more likely to extradite.. read your history; Sweden has form in this.. whereas the examples you give (McKinnon, O'Dowler) have, notably, managed to stop their controversial decisions here in the UK.

Mon, 2012-08-20 16:42 — RobGgb (not verified)

Surely the key point is that they want to conduct interrogation with a view to indict unless the interrogation reveals evidence which has not yet come to light rendering indictment inappropriate? As indictment can only take place in Sweden, what would happen if they did consent to interrogate him in the UK, then decide the evidence still demands indictment? Are we to assume Mr Assange would then willingly board a plane to Sweden???

Mon, 2012-08-20 16:41 — Phoenix Woman (not verified)

Exactly. This "debunking" is just a slanted recitation of nonsense and red herrings. Go look up the recent report on Assange by Four Corners, Australia's longest-running and most respected TV news program, for the facts in context (but which the New Statesman wont' allow me to link to because they call it "profanity").

From the Guardian's Mark Weisbrot (who unlike the rest of the Guardian's staff doesn't hold a grudge against Assange over their WikiLeaks collaboration falling apart, here's what the author of this anti-Assange hit piece carefully avoids mentioning:

"...Assange clearly has a well-founded fear of persecution if he were to be extradited to Sweden. It is pretty much acknowledged that he would be immediately thrown in jail. Since he is not charged with any crime, and the Swedish government has no legitimate reason to bring him to Sweden, this by itself is a form of persecution.

"We can infer that the Swedes have no legitimate reason for the extradition, since they were repeatedly offered the opportunity to question him in the UK, but rejected it, and have also refused to even put forth a reason for this refusal. A few weeks ago the Ecuadorian government offered to allow Assange to be questioned in its London embassy, where Assange has been residing since 19 June, but the Swedish government refused – again without offering a reason. This was an act of bad faith in the negotiating process that has taken place between governments to resolve the situation.

"Former Stockholm chief district prosecutor Sven-Erik Alhem also made it clear that the Swedish government had no legitimate reason to seek Assange’s extradition when he testified that the decision of the Swedish government to extradite Assange is 'unreasonable and unprofessional, as well as unfair and disproportionate', because he could be easily questioned in the UK.

"But, most importantly, the government of Ecuador agreed with Assange that he had a reasonable fear of a second extradition to the United States, and persecution here for his activities as a journalist. The evidence for this was strong. Some examples: an ongoing investigation of Assange and WikiLeaks in the US; evidence that an indictment had already been prepared; statements by important public officials such as Democratic senator Diane Feinstein that he should be prosecuted for espionage, which carries a potential death penalty or life imprisonment."

Mon, 2012-08-20 15:38 — Korman (not verified)

Many of us approve of Wikileaks, seeing the duplicity of governments exposed. Yet the founder is destroying it; he is evading the questioning of the Swedish Police by all means possible; he hides in an embassy. An honorable man would go for questioning; but then an houourable man would not be in a position where he needs to be questioned. "By his deeds ye shall know him". And he tries to position himself as a victim, a fugitive. Who can believe a word he now says?

Tue, 2012-08-21 15:27 — Robin1973 (not verified)

If I was the founder of Wikileaks I will be doing exactly like him. No doubts that US want to put h in the shadows to make a public example of what happends to anyone who denouces their plots.

Tue, 2012-08-21 13:03 — Andrew P Nichols (not verified)

Who can believe a word he now says? We dont have to - unfortunately for your obvious hopes the published US diplomatic cables arent an Assange opinion, They are the real sordid truth. That's why I personally believe he's been stung with a Scott Ritter honey trap.

Mon, 2012-08-20 15:38 — Arbolioto (not verified)

This constant articling on Assange rape case is tedious. Nobody is denying it. The facts are these:

Julian Assange requested asylum from another country. That country took TWO MONTHS to investigate the issue and has concluded that Assange is a persecuted man and as such he was granted asylum. The chairman of The Frontline Club, Mr Vaughan Smith has said that it is a right of every citizen on the planet to request asylum to any country that would take him.

The Assange case is two fold 1) He may be a politically persecuted man 2) He' may be a reapist. Two different issues. The Ecuador Embassy issue focuses on 1). Period.

A similar case to Assange is that of American citizen Philip Agee who wrote a book called 'Inside the Company' in the 1970s. He took refuge in Britain but was expelled and ended up in Cuba where he died. See the similarities? HIs book was similar to WikiLeaks in the sense that it open the lid on CIA practices in Latin America. Could you focus on this comparison please, for a change?

Rafael Correa knows about US undercover operations as he was the victim of one when he was ousted in a coup d'etat. This ia fact but many British journalists are still coming terms with Guantanamo, suprisingly, after 10 years.

Yours, Arbolioto.

Mon, 2012-08-20 17:21 — CPHM (not verified)

The UN convention on refugees specifically states that refugee status "shall not apply to any person with respect to whom there are serious reasons for considering that … he has committed a serious non-political crime outside the country of refuge". So if Ecuador were truly only considering (1) then they were in violation of international law.

Tue, 2012-08-21 15:30 — Robin1973 (not verified)

then, why did Uk had the right to give Assylum to Pinochet...??

Mon, 2012-08-20 15:36 — susi2 (not verified)

As long as the US excludes the death penalty (even if they demand a lifetime sentence) +meet the probable cause test SW+UK WILL extr. him. Its as simple as that. And does anyone really believe that the 15p BM/JA logs revealed and cited in the article 32 hearing don`t meet that hurdle?

PS: Maybe anyone cheering for him to go to Sweden despite the risk of an onwards extr.to the US should look at Ellsberg`s case and remind themselves that had "due process" been followed+his rights not violated by the prosecutor then Ellsberg would still be in prison. Is there anyone nowadays who would support that result of "due process"?

Mon, 2012-08-20 15:25 — ant2000

Really interesting piece, it is so hard to get a clear view of this issue.

Regarding point 2 above, I think the claims about extradition from Sweden being easier are because they have acted illegally before at the American's request with Ahmed Agiza and Muhammad al-Zery

"The forced repatriation was criticised because of the danger of torture and ill treatment, and because the deportation decision was executed the same day without notifying the lawyers of the asylum seekers."
From Wikipedia

I would be interested to know if this example has any bearing.

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

a forced repatriation through deportation of an asylum seeker yet to gain residency (and through that full recourse to the law) is very different to an extradition of someone with full legal rights in the EU.

The one case has zero bearing on the other

This highlights less the threat assange faces but more the plight of asylum seekers when even nations like sweden - which has in the past taken a greater proportion of asylum seekers than other EU nations - get it badly wrong.

Says nothing about assange's chances of extradition from sweden though

Mon, 2012-08-20 15:51 — ant2000

Why does he have more rights here in the EU than they did? He doesn't , they had the same rights as he does.

Mon, 2012-08-20 15:21 — Don Gately (not verified)

very succinct article for the large part but if the people who believed the assange myths were rational and could be persuaded by this piece then they probably wouldn't believe the myths in the first place

Tue, 2012-08-21 15:32 — Robin1973 (not verified)

why did Uk had the right to give Assylum to Pinochet...??

Mon, 2012-08-20 16:34 — nick5678 (not verified)

Not necessarily. I'm not an Assange supporter - for all the good WikiLeaks has done, the man himself should be investigated over the rape allegations the same as anyone else in his situation. I did however believe a Swedish guarantee of no extradition to the US would be a good way to convince him to go. But the explanation of how it's not legally possibly to give that guarantee has convinced me on that point.

Mon, 2012-08-20 15:16 — Peter English (not verified)

"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. "

Sorry, there are two many "not"s in that sentence for me. What does it mean?

Mon, 2012-08-20 15:29 — Alan Magpie (not verified)

It means, if the USA want him, they just have to ask. We have a very helpful extradition treaty with them. It makes no sense moving him to Sweden first. That's why the conspiracy theories are so bonkers.

Mon, 2012-08-20 15:28 — Don Gately (not verified)

to put it bluntly, in terms of extradition if the US tells the UK to jump we ask "how high?" - this is less the case in Sweden

the UK's extradition treaty with the US is deeply assymetric - eg the US gets much more out of it than the UK. In fact of all the western european countries the UK has the extradition treaty that most favours the US

So assange is already in the country where he's at greatest risk of extradition - going anywhere else in europe would make him safer

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

You are making too many assumptions. First, Bradley Manning is not even on trial yet and he is the guy who initiated the whole thing. So before Assange can be extradited to US, Manning has to be found guilty by a court of law.

Second, if Assange is found guilty in Sweden then US will have about three to four years to mount a case against Assange. By that time, probably Cameron and Hague will be in the South of France retired from politics. Obama might be doing the same thing in Florida, with Mitt Romney as president.

Assange has said countless times that he will go to Sweden should he be given assurances that he would not be extradited to the US. You see, WikiLeaks has rendered Assange 'not a normal man' as far as US Pentagon and US State Dept is concerned.

Mon, 2012-08-20 16:02 — RKMK (not verified)

I guess you didn't read the part where it is legally impossible for Sweden to make such guarantees. #readforcomprehension

Tue, 2012-08-21 23:21 — Silican (not verified)

If the Swedish government cannot guarantee that they will not re-extradite Assange to the USA, then how was the USA's government able to provide assurances that they would not seek the death penalty in the cases of Phillip Harkins and Joshua Edwards. Harkins and Edwards are both accused of murder but their fight against extradition failed because, according to ukhumanrightsblog.com:

"[t]he Court considered that the diplomatic assurances, provided by the US to the British Government – that the death penalty would not be sought in respect of Mr Harkins or Mr Edwards – were clear and sufficient to remove any risk that either of the applicants could be sentenced to death if extradited, particularly as the US had a long history of respect for democracy, human rights and the rule of law. Therefore, the Court rejected the applicants’ related complaints as inadmissible."

Whatever the USA's dubious "long history" of respect for human rights might be, its more recent history is execrable.

As to Mr Green's assertion that Sweden would need the UK's permission to re-extradite Assange, this is simply false. Once legal proceedings in the alleged rape cases are concluded the UK becomes irrelevant; Assange can then be extradited without reference to the UK. Mr Green's other points have been comprehensively dealt with in other posts and his opinions regarding the Ecuadorian press are only relevant as evidence that he reached his conclusions prior to constructing his arguments.

Mon, 2012-08-20 16:43 — Tatty D (not verified)

I guess you didn't read the part where it is legally impossible for Sweden to make such guarantees. #readforcomprehension

The above point is disputable, and has been disputed by other lawyers. That is why, you may have noticed, given the absence of absolutes, you usually have more than one lawyer.

Te final decisions is an executive and and can be made by a member of the government. Last week the argument was the Justice System is separate.

Like the whole Assange case, it is not simply about the law, it is where the law and politics meet. That much must be obvious.

Mon, 2012-08-20 15:27 — ant2000

Not count = 1

Mon, 2012-08-20 14:59 — Julian Wilson (not verified)

Do you know the likelihood of Assange being kept in solitary confinement if he was sent to Sweden, as it is often claimed he will be? Would he be able to communicate reasonably freely with the outside world, through his lawyers, if in custody? And what about the possibility of bail in Sweden (leaving aside Assange's own recent record of absconding)?