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.)

Getty/New Statesman
Show Hide image

"They’re turning the frogs gay": The psychology behind internet conspiracy theories

Conspiracy theories are appearing on both the political left and right. 

They’re turning the frogs gay.

If you have ever watched a video by the internet’s premier conspiracy theorist, Infowars’ Alex Jones, you will know that this is an undeniable fact. Chemicals in the water are turning the (frigging) frogs gay.

The blatant absurdity of this conspiracy theory (which scientist is perving on homosexual amphibians, anyway? Stop them) makes it one of the most widely mocked and memed of Jones’ outbursts. Yet despite the ridiculousness of the red-faced ranter, he has a large and vocal fan base that even includes the 45th president of the United States himself.

We seem to be living in an era where conspiracy theories are booming. From Hillary Clinton’s paedophile pizza parlour, to Russian hackers, Red Pillers, Obama's communist coup and Trump’s 4D Chess – the internet has been flooded with conspiracies from both the Left and Right. Dr Robert Bartholomew, a sociologist who specialises in mass delusions, believes that social media has exacerbated conspiracy culture.

“We now live in a niche world, making it easier for people to construct their own reality - a world as they want it to be, not as it is,” he says. “A person who believes that Obama wasn’t born in the US can just visit sites that reinforce his or her beliefs." Batholomew explains that because of the internet, conspiracies can be passed on “at the speed of light”, while other experts have noted that emotions can also spread online, in a process known as “emotional contagion”. 

Yet though social media helps conspiracies to spread, the psychology behind them is age-old.

“Conspiracy theories are a product of our psychology and our psychology doesn’t really change over time,” says Dr Robert Brotherton, author of Suspicious Minds: Why We Believe Conspiracy Theories. “A certain proportion of people have always been receptive to conspiracy theories.” But who are these people – and what happens to make them fervently believe in gay frogs?

Brotherton emphasises that the psychological biases at work in conspiracy theorists’ minds are biases that we all possess to some extent. The “proportionality bias” means that if something big happens, we intuitively assume that something big must have caused it. Some of us can accept when this isn’t the case – when a lone gunman, for example, is responsible for assassinating the president from a grassy knoll – but others go looking for alternative explanations.

Humans also have a propensity to seek patterns, so we bend over backwards to connect unrelated facts (side note: why do the two psychologists thus far in this piece have remarkably similar names? Is there a psychologist Illuminati?).

“Confirmation bias” also means that we accept information that confirms our beliefs and ignore that which doesn’t. Once these biases lead someone towards a conspiracy theory, they might develop a “conspiracy worldview”, whereby everything becomes suspicious. Brotherton explains, for example, that after the Watergate scandal was exposed, conspiracy theorists weren't vindicated like you would expect - but instead believed that the official narrative was a cover-up and that Nixon was set up. 

A Pizzagate post on 4Chan, outlining alleged patterns and meanings

Yet though the psychology behind conspiracies is timeless, Brotherton does note that certain factors exacerbate our willingness to believe. And this credibility is not limited to right-wing Americans.

“One of the things I think that is most revealing is how quickly conspiracy fears have shifted to the Left, especially in the States, since the election,” he says. The night before the election, videos spread on right-wing social media profiles claiming to show that electronic voting machines were rigged to vote for Clinton. When Trump won, Democrats began to believe that Russians had hacked the voting machines in favour of Trump (though claims Russia manipulated the election are rooted in fact, there is no evidence they tampered with the actual count).

 

A Pizzagate meme

Brotherton explains that cognitive dissonance is to blame.  “In an election, if you voted for the losing candidate, that makes you feel kind of bad because it’s not what you wanted, and makes you look kind of silly, like why would you vote for the loser?"

The most obvious way to reason this out is to accept the candidate wasn't so good, and agree more with the other side.

"Obviously that’s not what happens at all," says Brotherton. Instead, he argues, we tend to go in the other direction. Instead of admitting that our candidate lost because they had flaws, we theorise about hacking and rigging in order to feel as though we were right all along.

A false claim about Donald Trump's administration

Yet conspiracy theories do continue to spread among the far right as well as the left, despite their electoral gains. Dr Mike Wood, a psychology lecturer and expert in the techniques used by conspiracy theorists online, explains that those with extreme political views might still be drawn towards conspiracy theories, even when they gain some power.

This is because their extreme position means they are still unlikely to get to accomplish what they want to do. "They have to rationalise that in some way," Wood says. "Often that leads to conspiracy theories.”

A Pizzagate meme

Alienation, a lack of control, and uncertainly are all facts that lead someone towards a conspiracy worldview, explains Wood. As he puts it: “basically conspiracy theories are a way to try and make sense of the world that in that moment doesn’t particularly make sense.” According to Wood, victims of social exclusion do tend to take conspiracy theories more seriously.

“If the world seems like a very random and kind of capricious place where things don’t particularly make sense and you can’t really control what's going on, that's when conspiracy theories are at their strongest," he says. Conspiracy theories "allege that things that are happening are basically controllable". 

It is hard to say whether any of this is at work in the mind of Conspirator-in-Chief Donald Trump. The President has previously spread information from Jones’ Infowars, most notably when he claimed three million votes in the election were cast illegally. “I won the popular vote,” he tweeted alongside this alleged fact, perhaps attempting to explain away his own cognitive dissonance. Yet whether or not Trump believes the conspiracies he spreads, the psychologists I speak agree on one thing. Having such a high-profile figure spreading conspiracies means they're not going away any time soon.

Amelia Tait is a technology and digital culture writer at the New Statesman.