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.)

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We're asking the wrong questions about the Google “anti-diversity memo”

Which sex is better at what skills is less important than which skills we value in the first place. 

Yes, I feel sorry for the Google employee who has been fired for writing an "anti diversity manifesto" and circulating it within the company. (Guess what? It leaked.) Losing your job is painful, and doing it in public is even more so. But the conversation around this is heading in such an unproductive direction (do women suck at maths?) that I can't resist wading in.

I agree with the writer that these issues are hard to talk about, but that pushback comes from both directions. Look at the crap Mary Beard is wading through for trying to inject some facts into a discussion about the racial composition of Roman Britain. Nicholas Nassim Taleb keeps honking about "diversity genes" and refusing to listen to evidence that contradicts him. But in his mind, he's Mr Science - sorry, Professor Science - and she's Madam Arts-Subject.

This matters, because when it comes to diversity, there are fact-based positions on both sides. Yet there is a certain strand of Rational Internet Thinker (let's be honest, mostly men) who solemnly tells everyone that we Must Stick To The Facts while advancing deeply ideological stances, which only happen to look "natural" because they are so embedded in our culture. 

But back to the subject at hand. Here's the recap: the memo was headlined  "Google’s Ideological Echo Chamber" and its writer's firing will be taken as confirmation that his thesis was true. Ironically, this will be done by the same section of the right which usually has no problem with firing at will and normally thinks that HR should be a brutally Darwinian process. (Looked at from that perspective, of course Google would fire someone who brought such criticism on the company.) But now there are Principles involved. Probably Free Speech is under attack. Political Correctness may even have Gone Mad. Social Justice Warriors are on the march. Before it's all placards as far as the eye can see, instead I would like to look at what was actually said, and whether it's an argument with any merit. 

In essence, the memo argued that the gender imbalance of staff in tech companies like Google is primarily the result of biological, not cultural differences. ("They’re universal across human cultures," it argued. "They often have clear biological causes and links to prenatal testosterone".) There are differences in ability between the sexes, the writer said, and that's why most top programmers are men. Men like numbers, and the numbers like them right back.

The memo added:

Differences in distributions of traits between men and women may in part explain why we don’t have 50% representation of women in tech and leadership. Discrimination to reach equal representation is unfair, divisive, and bad for business.

The section about typically female traits is also interesting, because of a couple of points the writer picks out.

"Women, on average, have more...

- Openness directed towards feelings and aesthetics rather than ideas. Women generally also have a stronger interest in people rather than things, relative to men (also interpreted as empathizing vs. systemizing).

- These two differences in part explain why women relatively prefer jobs in social or artistic areas. More men may like coding because it requires systemizing and even within SWEs, comparatively more women work on front end, which deals with both people and aesthetics.

- Extraversion expressed as gregariousness rather than assertiveness. Also, higher agreeableness. This leads to women generally having a harder time negotiating salary, asking for raises, speaking up, and leading. Note that these are just average differences and there’s overlap between men and women, but this is seen solely as a women’s issue. This leads to exclusory programs like Stretch and swaths of men without support.

- Neuroticism (higher anxiety, lower stress tolerance).This may contribute to the higher levels of anxiety women report on Googlegeist and to the lower number of women in high stress jobs.  

Well, SOMEONE has been reading their Simon Baron Cohen. The first point is a distillation of Baron Cohen's argument about "male brains" being better at understanding systems, and "female brains" being better at feelings - which he extends to say that autistic traits might be an "extreme male brain". Unsurprisingly, there are other scientists in the field, such as Cordelia Fine and Rebecca Jordan-Young, who find a lot of the neuroscience of sex difference quite flaky.

I'm not a neuroscientist, but from a lay perspective, my take is that yes, there are some biological differences between the average male and female brain, but that these pale beside a) the way our brain architecture is shaped by stimuli (like years of being told you're rubbish at maths) and b) the overall effect of culture (eg companies which value presenteeism, or make it hard for women to return after having children, or cover up for senior men who are repeated sexual harassers etc etc). 

The "higher agreeableness" point was dealt with by Sheryl Sandberg in Lean In. Women aren't stupidly not asking for raises or being assertive in the office because they are delicate little flowers. One of the reasons they are more agreeable at work is because they face heavier penalties if they are not. As Sandberg formulates it: "Success and likeability are positively correlated for men and negatively for women. When a man is successful, he is liked by both men and women. When a woman is successful, people of both genders like her less.” Women are nicer because there are more negative consequences for them if they are not nice.

The last point about neuroticism is bleakly funny, because while women might report more anxiety, men commit suicide in far greater numbers. Which gender is really more susceptible to stress and anxiety? Women talking more about their mental health on "Googlegeist" is being held against them here, when possibly one of the reasons that more men kill themselves is because of the stigma of talking about their feelings.

Overall, the memo makes some compelling points, but it also chucks in a lot of stuff that "everyone knows" about sex differences, which isn't scientifically supported, and also some evolutionary psychology about "protecting females" which strays into the kind of rhetoric found on MRA sites. Its understanding of male and female work patterns can also be naive, for example:

"Yes, in a national aggregate, women have lower salaries than men for a variety of reasons. For the same work though, women get paid just as much as men. Considering women spend more money than men and that salary represents how much the employees sacrifices (e.g. more hours, stress, and danger), we really need to rethink our stereotypes around power."  

I mean, doesn't this just raise a huge number of questions?

How often do men and women do the same work, and for what reasons might they not? (Clue: women do far more unpaid care work and housework.) Are women spending that money on themselves, or are they running household budgets, which is an unpaid project-management task they are doing alongside any paid work? What an individual finds stressful is also entirely subjective.

The author chucks in a reference to "Marxist intellectuals" but doesn't seem to have read any of the vast and fascinating literature on unpaid care and its interaction with paid work. I'd recommend starting with The Second Shift or Wife Work. Angela Saini's Inferior is a good recent choice, too, on women's overlooked contributions to science.

When I talk about feminism with self-styled rationalist men, this dynamic comes up again and again. They will present my arguments as mere anecdote and emotion, which - sad shake of the head - is contradicted by the available evidence. When you point to peer-reviewed studies, or great ethnographies, supporting your point, which they haven't bothered to read, they steam on regardless. It makes the contest deeply unequal. Internet skeptic types talk about the need to engage with writers they don't agree with, and the importance of free and open debate, but often actually don't want to read the contrary view. 

 

***

If you want to read more about the discussion of the science of sex differences which has arisen as a result of this memo, then this piece by Slate Star Codex is interesting - it argues that interest in STEM subjects, not ability, might be the key difference between the sexes. It also completely misses the point. 

Here's a thought experiment. Say you were recruiting for a spoon-juggler. Your advert would probably mention "needs to juggle spoons". But, almost certainly, there would be other skills involved. Turning up to performances on time. Keeping your spoon inventory in check. Not turning up drunk. Not stealing forks from the fork-juggler. 

This is what the argument that women can't succeed in tech because they are innately bad at the skills needed to succeed in tech sounds like to me. We know that many of the early programmers were women, back when the job was considered to be largely secretarial. (Go watch Hidden Figures for more on this, and also because it's just a lovely film and I am so happy for Mahershala Ali and Taraji P. Henson.) We know that the fastest way to depress wages in a job is to feminise its workforce. It's not unreasonable to wonder if we've constructed the whole idea of "success in tech" in such a way that it makes men's success look natural and pre-ordained. Yes, you need to be able to code to be a coder. But there are other skills you need too. 

Yonatan Zunger, who recently left Google, makes this argument better than I could. And he seems to own a pair of testicles, so you know he's more rational and objective than me:

"Essentially, engineering is all about cooperation, collaboration, and empathy for both your colleagues and your customers. If someone told you that engineering was a field where you could get away with not dealing with people or feelings, then I’m very sorry to tell you that you have been lied to. Solitary work is something that only happens at the most junior levels, and even then it’s only possible because someone senior to you — most likely your manager — has been putting in long hours to build up the social structures in your group that let you focus on code.

All of these traits which the manifesto described as “female” are the core traits which make someone successful at engineering. Anyone can learn how to write code; hell, by the time someone reaches L7 or so, it’s expected that they have an essentially complete mastery of technique. The truly hard parts about this job are knowing which code to write, building the clear plan of what has to be done in order to achieve which goal, and building the consensus required to make that happen.

All of which is why the conclusions of this manifesto are precisely backwards. It’s true that women are socialised to be better at paying attention to people’s emotional needs and so on — this is something that makes them better engineers, not worse ones."

As I said on Twitter, this is a pattern we see again and again - a high status job is coded as "male", requiring "male" traits, to justify men's dominance of it. The same thing happens in politics: we are assured that politicians need to be "strong" and "decisive", when many of the most successful male politicians today have incredible people skills. Jeremy Corbyn makes time for everyone he meets, hugging them and posing for endless selfies. Sadiq Khan has that Queen Mum ability to remember your name and a key fact about you. What's the real difference between the Clintons? Bill demonstrated huge empathy and made people he was talking to feel special; Hillary didn't. But still, maybe men dominate politics because they are just more aggressive and ambitious. Yeah, OK. 

Tech suffers from a similar silent rewriting of core competencies to flatter its mostly male leaders.

We have all these conversations about how hard it is for Mark Zuckerberg to make the leap to being a frontman CEO because he's a maths guy, not a people guy. We treat this like he's doing an amazing project of personal growth. We don't go, "wow, they really lowered the bar for CEOs to let someone without some of the key skills have a go at it". Or, "his poor colleagues, having to make up for the stuff he's not naturally gifted at". 

There was a similar reaction when Sergey Brin and Larry Page brought in Eric Schmidt when it was time for Google to "grow up". We didn't say, "How embarrassing, they have to find someone to counteract their deficiencies." We said: "Smart move. Not every human can possess all skills, it's wise to have a range of experience and aptitudes at the top of your company."

So this, for me, is the most interesting takeaway from the Google memo. "Do women suck at maths" is a complicated question, and I'm not sure how far answering it will move the conversation forwards. "Have we structured society so that those competitions between the sexes that men can win are deemed to be the most important competitions?" is a better one.

Helen Lewis is deputy editor of the New Statesman. She has presented BBC Radio 4’s Week in Westminster and is a regular panellist on BBC1’s Sunday Politics.