Legal myths about the Assange extradition

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

Whenever the Julian Assange extradition comes up in the news, many of his supporters make various confident assertions about legal aspects of the case. 

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.

[Add: this post is now supplemented by my more detailed post on the legal mythology of Julian Assange; also do see this excellent post by barrister Anya Palmer.]

Please note that particularly relevant in this case are the three English court rulings which are freely available on-line: Magistrates’ Court, High Court, and Supreme Court.

 

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.)

 

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.

 

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.)

 

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.

 

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 way forward

Due process is important.  It is the formal means by which competing demands and seperate interests can be accommodated and reconciled in any overall litigation process.  This is why due process is an important liberal principle.

Assange has challenged the arrest warrant in Sweden.  It was upheld. 

He then repeatedly challenged the European Arrest Warrant in the United Kingdom.  He lost at every stage, but each of his many legal arguments were heard and considered in extensive detail.

And in doing this, Assange had the assistance of first rate legal advice and advocacy from some of the UK's leading human rights lawyers, and he also had the benefit of having been granted bail in England in the meantime.  The extradition was fought by him all the way to the Supreme Court.  

Assange has been afforded more opportunities to challenge the warrant for his arrest than almost any other defendant in English legal history.  This is hardly "persecution" or a "witch-hunt".

The English side of the process is now almost over: there is a valid European Arrest Warrant which has to be enforced as a matter of international law. 

If Assange is extradited to Sweden, it may well be that the serious allegations of rape and sexual assault cannot be substantiated.  But that is entirely a matter for the Swedish investigators and for any Swedish court.  It is not an issue which can be dealt with by proxy in English litigation, and still less by heated internet exchanges.  In the event of an extradition request by the USA then Assange has the same rights under EU and ECHR law as he has in the United Kingdom, together with an additional safeguard of consent being required from both UK and Sweden.  It is difficult to see a sensible and well-based reason why Assange should not now go to Sweden.

Even taking the worries of Assange and his supporters at face value and at their highest, there is nothing which actually means the due process of a current rape and sexual assault investigation should be delayed any further or abandoned. 

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

 

[Postscript, 22 August:  the "temporary surrender" Zombie fact has now been exposed by legal blogger Greg Callus.  This means all the supposed legal points argued by Assange supporters have been addressed by one UK legal blogger or other.]

 

David Allen Green is legal correspondent of the New Statesman

Comments on this blog are now closed.

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

David Allen Green is legal correspondent of the New Statesman and author of the Jack of Kent blog.

His legal journalism has included popularising the Simon Singh libel case and discrediting the Julian Assange myths about his extradition case.  His uncovering of the Nightjack email hack by the Times was described as "masterly analysis" by Lord Justice Leveson.

David is also a solicitor and was successful in the "Twitterjoketrial" appeal at the High Court.

(Nothing on this blog constitutes legal advice.)

Roosh V via YouTube
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Men's rights activist Roosh V isn't just a sexist: he hates the modern world

Roosh and his community have seen that cultural change is chipping away at their privilege, and they're having none of it. 

When an activist known as Roosh V organised 165 “meet-ups” for like-minded men in 43 countries for this Saturday, the backlash was instantaneous. Signatures on petitions to keep Roosh away (even from countries where he wasn't planning to visit) stretched into the thousands. Police in many of the cities where meet-ups were planned said they would be keeping an eye on the events. Counter-protests were organised. And so today, Roosh announced that the meetings would be cancelled, since he could “no longer guarantee the safety or privacy of the men who want to attend”.

Roosh V is a prominent member of the section of the internet known as the "manosphere": he runs popular websites including Return of Kings and his own blog, and began his career by writing guide books about how to pick up women in countries from Poland (“What to do when a Polish guy inevitably tries to cockblock you”) to Colombia (including “an explanation into the Colombian prepago female (gold digger)").

Yet as demonstrated in a recent Reggie Yates documentary programme about men's rights activists, 36-year-old Roosh seems a lot more interested in his own theories about society than in handing out pick-up tips. "This is starting to sound like a conspiracy theory," Yates notes at one point. 

Roosh actually distanced himself from the Men's Rights community, or MRAs (though he arguably does fight for what he sees as men's rights) in 2009, when he argued that the group was filled with men incapable of taking action or improving their "game" with women. He would be more likely to self describe as a pick-up artist, or PUA, though his writing usually focusses on issues beyond simply "how to pick up women". 

While Roosh's views are objectionable and off-the-wall, they’re also subscribed to in full or in part by what may be millions of men around the world. So what does he believe? And how did this alternate worldview develop in the mind of a well-travelled, university-educated American son of immigrants?

Roosh isn't “pro-rape”, but he thinks rape is the fault of its victims

Many headlines this week called the proposed meetings "pro-rape", with evidence taken from a single post entitled “How to Stop Rape” which Roosh wrote in February 2015 (and which he recently claimed was satire). In it, he writes that since “women are not getting raped by violent offenders . . . they are getting raped by men they already know”, then rape (or as Roosh medievally puts it, “violent taking of a woman”) on private property should be made legal. This would, he argues, force women to “take responsibility” for their conduct on dates or while alone with men.

This appeals to a popular trope within the manosphere: that men will be "falsely" accused of rape under progressive rape laws that dictate that drunk women can't give consent, or accused by women who later regret the sexual encounter. The community is particularly aerated about Califiornia’s Yes Means Yes law, which rules that silence or lack of resistence doesn’t mean someone has consented (though consent can still be non-verbal).

Roosh's bizarre “legalise rape” argument is an apt symbol of his general appraoch: it’s a kind of devil’s advocacy, mixed with a form of upside-down rationality. He takes a common complaint among men’s groups and pushes it to an extreme conclusion, to the delight of his fans.

It’s also worth noting that some of Roosh’s pick-up tactics and advice could be seen to encourage rape – it’s probably fairer to call him “pro-rape” on these grounds, rather than his blogpost. In another trope common to the MRA community, he believes women say no in order to play “hard to get”, and that any self-respecting pick-up artist would override "no" up to a certain point. In a two-hour Skype interview with feminist artist Angela Washko, he argues:

“If a girl says no, that's no. But if she's still there and she allows you to touch her again and kiss her again that's not rape. That is not.”

In "When no means yes", a post from 2010, he gives the following "tip": "‘No’ when you try to take off her panties means . . . ‘Don’t give up now!’”

He knows his audience

In some of his writing, or while speaking to certain interviewers, Roosh can seem almost harmless – misguided, yes, but intellectually engaged and cautious about offending. 

In his interview with Washko, the pair manage to agree on the idea that it’s in the economic interests of the world’s richest to force all women to both work and have families, as wages can be lower: “The more people you force into the workforce, the cheaper labor is.”

The fact that women should have the choice to raise children instead of having a career is something both can agree on. 

But elsewhere, Roosh's concerned citizen mask slips. Earlier this week, he told members of his website forum to pool the details of journalists who write mean things about him with the ominous phrase: "We're going after the root of the problem". Elsewhere, he has said he won’t be interviewed by female journalists unless they give him a blowjob, and has stated that, “my default opinion of any girl I meet is worthless dirty whore until proven otherwise”.

This dual personality is something he shares with the comedian Dapper Laughs, who appeared on Newsnight to apologise for his rape joke-heavy comedy and explain that he was satiring men’s sexism, but now tells audiences that at the time he wanted to tell interviewer Emily Maitlis to “get your f***ing gash out!”  

He’s a savvy businessman

Which raises the question: how much of Roosh’s bluster is an act? Roosh must have learned by now that his more incendiary statements earn him attention, and even money through traffic to his sites. Dapper Laughs knows he needs to undercut his earnest, turtlenecked performance on Newsnight to keep earning as a comedian. 

Roosh told Reggie Yates he receives around a million combined hits to his websites every month, but this month, the figure must be far higher. A Vice journalist has pointed out that Roosh boasts about his online metrics on Twitter, and seems to be in competition with fellow controversy-chaser Milo Yiannopoulos. 

Which brings us to another question: did Roosh ever think the meet-ups would go ahead? Was he in fact expecting a media backlash, which would then allow him to show his followers that they are victimised and under attack, just as he's told them?

The whole thing does seem built as a vehicle for media attention: the covert meetings complete with a special code ("Do you know where I can find a pet shop?") which somehow found its way into every mainstream media story about the meetings – including, of course, this one.

Roosh advertised them on public sites, despite the fact that he probably could have contacted many supporters through more private forms of social media and regularly keeps the locations of his own talks a secret. His attempt to smear journalists is playing out in a private forum – strange that he couldn't use similar channels to arrange Saturday's meetings. 

He thinks the Western world is on the verge of a “cultural collapse”

Roosh claims that his science background taught him how, as he tells Washko, “to know what is a lie . . . when someone is full of shit I can tell because they’re just using what? Emotion.”

Travelling, meanwhile, has exposed him "to different ideas, belief systems than other people – I have more data and background in my mind that allows me to reach conclusions that are more accurate”.

This, in turn, prompts this surreal exchange:

Image: Angela Washko.

This defence – of science and worldliness, in the face of closed-minded emotion on the part of feminists – is important to Roosh precisely because his worldview actually seems to rely on an emotional, kneejerk hatred of change. 

Beyond the more typical MRA beliefs, Roosh has a comprehensive argument for how feminism and other liberal, progressive attitudes are about to ruin the modern world. In a document titled “Cultural collapse theory” he outlines a world where women earn “25 per cent more than women on average”, children are taught to “respect all religions but that of their ancestors”, and the reproductive rate falls because women have careers.

Here is the progression of a “cultural collapse”:

This, of course, is a dressed-up version of the familiar dystopia imagined by those who think liberal ideas and cultural change are driving us to disaster. In this context, Roosh’s ideas about women begin to look more like a refusal to get on board with the modern world: the way he sees women would have been very familiar a few centuries ago.

His hatred also extends to other social groups who have recently gained privilege, including transgender people (“If you are genetically a man, but you all of a sudden have this need to dress up like a girl . . . you should seek help"), gay people ("they're trying to encroach on what normal humanity is”), and stay-at-home fathers (“I mean if you ever see me pushing a stroller or changing a diaper, something is wrong. I must be on drugs"). 

The best proof of Roosh’s affection for the past is his opinion on where it all went wrong: I’m pretty sure giving women the right to vote was the start.”

In one particularly pathetic plea during his interview with Washko, he cries “You can’t even have sexy babes in games anymore!” 

…so any kind of cultural change is bad

When speaking to a group of London men in Reggie Yates’ documentary, Roosh emphasises the idea that "women and gays are seen as superior to straight men", and that straight men are, effectively, an oppressed group. “Men are not allowed to speak the views that I am speaking,” he tells his rapt audience. The cancelled meetings, it seems, function as proof of this. 

Yates may think Roosh is touting a conspiracy theory, but at heart, it may be simpler than that. Roosh’s pseudo-intellectualism can be boiled down to a single point: the modern world is chipping away at his privilege, and he – and his followers – don’t like it at all. Roosh is furious that, in his eyes, the media is “encouraging” children to be gay, asking Washko: “Why is the media all of a sudden in the business of shaping the sexuality of human beings?”

As Washko writes in her transcript, she resists the urge to reply: “But it always has been!” The difference now is that the narrative (if it exists, which I’d argue it doesn’t particularly) just doesn’t favour Roosh’s demographic anymore. As one of Roosh’s fans tells Yates, “We’re losing ground.”

While equality isn’t a zero-sum game, true cultural and political change will require privileged groups to lose some ground – to give up some of that privilege. Behind the long words and cultural theory, Roosh and his followers are the men simply refusing to do so.  

Barbara Speed is a technology and digital culture writer at the New Statesman and a staff writer at CityMetric.