With the appeal hearing against the bailing of WikiLeaks editor-in-chief Julian Assange scheduled for 11.30 tomorrow morning, his ever-expanding legal team are no doubt hard at it, trying to anticipate what the Swedes will come up with. Not much, appears the likely answer. The Swedish Prosecutor’s Office has declined the opportunity to present evidence supporting the case in court twice now, leaving the Crown Prosecution Service hung out to dry.

They are not required to produce any evidence in an extradition hearing, but as Assange’s lawyer Geoffrey Robertson pointed out, the question of bail depends in part on the seriousness of the evidence against you. If there is no case you may be far less likely to abscond.

The appeal case will turn on questions of law of course — in effect it will be a taster of what this extradition will become, less a trial of Assange than of the European Arrest warrant, and the weird mix of bureaucratic-Hegelian logic driving the European Union project, in which every innovation is judged not on its merits, but on whether it furthers the cause of a united post-democratic Europe.

The Swedes are either convinced Assange will abscond, or vindictive, depending on whom you believe, but it’s fair to say their relentlessness surprised everyone on this score — including the CPS, who sources close to Assange’s legal team say advised the Swedish prosecutors not to appeal.

There are some very strange things going on here. In the case yesterday, the prosecutor apologised for the Swedish prosecutor’s failure to make a response to certain written defence arguments, saying that the person handling them “doesn’t have very good English.” Really? In Sweden in 2010? Where English has been a compulsory school subject since the late 1950s? Half the subjects in a law course are taught in English. It’s odd and very unconvincing — a small detail that suggest a larger pattern.

So Assange’s team are winning the war for public sentiment, with a great degree of incredulity across the world as to what he’s been charged with, and a greater willingness to call the thing an outright stitch-up, designed to secure him for American extradition.

But that victory may well set them up for a later loss, if the Swedish prosecutors do eventually produce some evidence, for the actual official public campaign coming from the Assange camp is non-existent, and in the vacuum where it should be, a huge amount of counter-productive misinformation is breeding. For a cause that can command a great number of dedicated followers and supporters, the team has shown no interest in the sort of thing any such campaign would usually do — have a supporter website, pump out briefing documents and explainers, get their line straight, and get the line out to their high-profile supporters.

This particularly turns on the difficult question of how you talk about these domestic criminal charges as possibly forming part of a stitch-up — either as a honeytrap, with a little vinegar in the mix (a very unlikely scenario), or a series of events being used opportunistically. Had Assange been charged with financial fraud, everyone would be happily dissecting the evidence left right and centre. Now that he’s charged with r-pe, a portcullis falls in the gap, and there is a sudden great reluctance to discuss the strength of the case.

To some degree that comes from the good intention of not drawing in questions of character or behaviour. But some appear to have taken that further and suggested that any notion of examining the evidence, the handling of such and the overall process of the prosecution is out of bounds, which is ridiculous. Assange has been through months of accusation, suspicion and finally remand, far from a process without life cost. If there are serious holes in the process and evidence they deserve to be examined.

I don’t propose to go over the arguments again in detail; they’re elsewhere. The brief version is that potential evidence has unquestionably been tampered with, that there is evidence that undermines the motive of making the complaint, that the most serious charge of r-pe — the only one likely to warrant extradition of itself — has swapped from one complainant to the other, that this occurred after the Stockholm prosecutor declined to prosecute the initial charge as r-pe, that the complainant initially presented as the lead one is now alleging only one charge of a sexual assault (s-x while sleeping) that may well not attract a custodial sentence, and that a “pro-complainant” version of events that nevertheless contradicts the new array of charges was removed from a feminist collective blog run by one of the complainants around the time the charges shifted. Oh yes, nothing to see here.

The key outrage here is process and evidence, not some off-the-cuff assessment of what happened. It’s inevitable that there would be a lot of that stuff around the fringes. What’s troubling is that Assange’s defenders are repeating the same shopworn stories about the case, and getting it wrong. Thus Michael Moore, appearing on Newsnight last night, said that “the charge was only that some condom had broken or something”; various grandees giving vox-pops at Tuesday’s hearing asserted that what he was charged with “wasn’t even a crime”; Naomi Wolf wrote a satirical article asking Interpol to arrest every narcissistic jerk she’d been on a date with.

None of these interventions seemed to credit that there was no mention of withdrawn or cancelled consent, no broken condom and that one of the charges was one of rape with physical force. The problem is not that a charge of that nature is absent; it is that its process has been shoddy and contradictory, and it has the strong suggestion of being retroactively engineered from various parts, holus-bolus. Should that prove not to be the case, and the Swedish prosecutors have other evidence, the shoddiness and possible political complicity would stand, but there may well be some nasty evidence coming out of the woodshed, and those prejudging the prosecution case as being total stitch up will be left looking silly indeed.

Two weeks ago I noted that this case was proving to be the crucial point for the final dissolution and recomposition of second-wave feminism. So it has proved. People have judged Assange’s life and works so significant, so powerful that they have thrown over the usual niceties to simply denounce the trial as hysteria if not honeytrap. That this has been women as well as men — Pilger and Naomi Klein, Human Rights Watch and Women Against R-pe – shows that, for all its crudity, this is not a restaging of old ideas of nothing other than jealous females. Klein and others are talking about the way in which the social process has been plugged into the domestic state, which has then been plugged into the (inter)national security and military apparatus. Thus the EAW and the US-UK extradition fast-track combine to create the extension of rendition across the spectrum, from bag-over-the-head abduction to the intersection of domestic criminal charges, with far greater movements.

Significant in that respect are the cables revealed in recent WikiLeaks releases as coming out of Stockholm, and talking of the desire to continue informal arrangements of information sharing between SAPO (the Swedish domestic secret service) and US agencies, lest the actual scrutiny of a working parliament make further progress difficult.

In particular, the cable cites the huge social protest over the recent “surveillance” law, an unnecessary wiretapping act that generated a vast protest movement — and helped kick off the Swedish pirate party, the libertarian group that would eventually offer to host WikiLeaks in Sweden. There is a persistent rumour — from multiple directions but not yet sourced — that the US threatened to withdraw security co-operation from SAPO if Assange was granted residency and WikiLeaks based itself there. Assange’s residency was later rejected because of course he was accused of r-pe.

These matters have come to a head, just as another political storm has developed, about the US conducting extensive spying missions in Sweden – not on other spies, but on everyday Swedes. According to a former employee at the U.S. Embassy in Stockholm: “there have been a so-called SDU-group, whose task was to monitor and record people on behalf of U.S. authorities.

“They were interested in all sorts of information. Everything that could be of value. There was everything from color, to clothing, to hair color, hair length, hair type and age. What language they spoke, everything…

Among other things, [Swedes] worked with the group to monitor demonstrations in Stockholm in order to report potential threats to the embassy, said the source.”

There would of course be nothing to the fact that Sweden got its first domestic terrorist act for quite a while three days ago when a suicide bomber blew himself up in the city streets. I can’t imagine that security services let a known crazy slip through the net to blow himself and no-one else up, to focus the mind a little.

Just as I can’t of course believe that a process of domestic private criminal law could become a part of surveillance and control, if it increasingly divides up every smaller level of fluid human behaviour, until it becomes in some way, very difficult for a living breathing human being not to break the law — at which point the very interface between the state, the law and the public is itself a trap. Not insignificant is the outfit you’re trying to nobble is trying to transform that relationship altogether.

Assange’s defenders will need to talk about that more and better — about a process of control, exception and rendition that is using not abnormal state processes, but normal ones to achieve their ends, turning the world into one huge airport security scanner.

And yes, we will need to talk about r-pe, and how we think about the accusations of it, and whether we can talk about character, deceit, jealousy and much more, in the open, rather than as we now all do, in a manner of sealed evidence.

Peter Fray

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