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Jan 12, 2011

Assange legal team's skeleton argument on strong ground

Julian Assange’s legal team is on very strong ground and English courts have in recent years repeatedly shown a robustness that the political class of that country lacks when it comes to human rights.

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Julian Assange’s lawyers are going for the jugular in their attack on the Swedish and UK government’s attempts to extradite Assange to Sweden where there is an investigation under way concerning his alleged in involvement in sexual offences. Not only do Assange’s lawyers run the usual arguments about the offences not being extradition offences — that is, there are no like charges in English law — but they say that the Swedish prosecutor who wants Assange extradited has no authority to do so, and that the whole thing is an abuse of process.

Strong stuff, but if the 35-page skeleton argument that Assange’s legal team has filed overnight with the City of Westminster Magistrates Court, ahead of the hearing in early February, is correct in its view of the law, then the Swedes are cactus! (See video here of Assange’s brief appearance at Belmarsh Magistrates’ court in London overnight.)

The Swedish prosecutor who is handling the Assange sex offences matter, Marianne Ny, a Public Prosecutor in Gothenburg, has no power to seek extradition, say Assange’s lawyers.  The submission cites media statements by Ny and correspondence she had with the Australian High Commission in London in December in which she made it clear that her “purpose in requesting an arrest warrant, and subsequently an [extradition warrant], against Assange, was not in order to prosecute him, but in order to facilitate his ‘interrogation’, i.e. to facilitate his questioning.”

Assange’s lawyers correctly cite a line of strong and unambiguous English and European legal authority that says that you cannot extradite a person merely to question them. And you certainly cannot do so when there is documented evidence, as there is in this case, that Assange’s lawyers have repeatedly told the Swedish authorities that Assange was more than happy to meet them for questioning.

As to Ny’s argument that there was no other way of her getting Assange into the Gothenburg interviewing room, Assange’s lawyers say this is false.

What also emerges from Assange’s lawyers’ submission is that Ny has not complied with the cardinal principle of full disclosure — in other words, an accused person is entitled to see all the evidence against him. In the Assange case, much has been made of text messages said to have been sent by the women Assange is said to have slept with, including one where one of the women says she was half asleep. Other “messages from and between the complainants that the Swedish Prosecutor has refused to disclose but which Assange’s lawyer, (Bjorn) Hurtig, has seen (but was not allowed by the prosecutor to take notes or copies of), speak of revenge and of the opportunity to make lots of money and of going to the Swedish national newspaper, Expressen,” says the submission.

In short, Assange’s lawyers must be provided with copies of such potentially useful evidence before matters go any further.

By refusing Assange’s legal team access to the text messages, Ny is caught on the horns of a painful dilemma, argue Assange’s lawyers. And they are right.

In perhaps the most damaging portion of the submission, Ny is accused of abuse of process because either “Assange’s extradition is sought for purposes of prosecution, and thus a decision has been taken as to his prosecution and he is then entitled under Swedish law to disclosure of the entire investigation file, including the SMS messages and blog evidence — and yet these crucial items of evidence have not been disclosed to him, representing a serious violation of Swedish criminal procedure law and dereliction of duty on the part of  Ny, and thus an abuse of process”, or “Mr Assange’s extradition is not being sought for the purposes of prosecution, in which case it should not have been sought at all. Either way, it is an abuse of process for Ms Ny to proceed in the way in which she is doing.”

The final argument raised by Assange’s lawyers, and one that should be supported by the Gillard government (but don’t hold your breath) is that if Assange is extradited, compliant Swedish authorities will allow the Americans to swoop on Assange and dump him in Guantanamo Bay or some other place of torture. This is a genuine threat given the extremist nature of the American political and legal responses to Assange so far and because of the pressure on President Obama to tack to the hard right on the issue.

Julian Assange’s legal team is on very strong ground and English courts have in recent years repeatedly shown a robustness that the political class of that country lacks when it comes to human rights. It would be a surprise if Assange were handed to the likes of Ny and the Americans, given that to do so would be to hand him over to a political and diplomatic witch-hunt in Sweden and the US.

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39 thoughts on “Assange legal team’s skeleton argument on strong ground

  1. Cripes...

    Gitmo express for Julian. Hope he enjoys water-sports!

  2. justwantanaccount

    Oh my gosh, THANK YOU for not saying that the skeleton argument is based on Assange’s fear of being extradited to the US! God, I’m going crazy reading all those crazy newspapers about how Assange is trying to counter the extradition by arguing that if he’s extradited to Sweden then he’ll get extradited to the US. I mean, it’s part of the argument, but a VERY minor one.

  3. Beermatman

    Bloody hell; I’ve always thought the US to be a corrupt country, but after reading the reply by STREAMFORTYSEVEN. I’m devastated to even think this could happen in America.
    It seems that if someone like Assange stays in the UK he will need to have a 24hr armed guard to protect him; not from terrorists or fanatics but from our “friends” across the pond.
    Is this what they speak about when the quote the “special relationship”? …. Frightning!
    Beermatman
    http://www.beermatsadvertising.com

  4. drsmithy

    “There’s a saying, that America is so big that anything you can say about it is true. I guess there are some areas more educated in constitutionalism than others.”

    I’m sure there are some places in Australia that are more educated than others, as well, especially in their own opinion.

    “By the way, I never suggested they were all “thoughtful and insightful, carefully balancing pros and cons before forming opinions.” Rather, I suggest that over there, even the most illiterate hillbilly has had some exposure to the concept of a republic.”

    That may be true – I am not intimately familiar with the US education system so I couldn’t say – but the outcome for “the most illiterate hillbillies” (and a large proportion of very literate and successful middle-class folks) of said exposure is completely absent any sort of temperance in opinion or faith in the system.

    There’s a reason why Palin & Co. are so popular with their fear-mongering soundbites about “big Government” (eg: the stupidity about “death panels”), and it’s precisely because their rhetoric is believable to decidedly non-trivial proportions of the community.

    “Whereas many highly educated Australians, who might be far more reasonable in their willingness to listen and compromise, simply were never exposed to any political theory in school except simplistic bromides like “one man one vote.” It would just never occur to them that there was anything more to know about Australian foundations than this, other than nuts and bolts such as, say, the inner workings of the Hare-Clark vote counting system.”

    Meanwhile, in America, vast numbers of people believe they vote directly for the President, and do not understand how a candidate could “win the popular vote” but not actually end up in the top spot.

    You seem to be having a serious case of The Grass is Greener. Believe me, it’s not. The average American is *at least* as uninformed and ignorant as the average Australian when it comes to both the theory and practice of their political systems.

  5. freecountry

    I mean, speaking for myself, the conception of Australia’s system of government that I was taught in school was, in hindsight, deplorable. The same with political science subjects in university, just laughable. You would learn more from reading Leunig cartoons. It was years later, incidental to researching what seemed like a fairly narrow social topic (policy approaches to child abuse, actually) that I realized I knew far less than I thought I did, and would have to educate myself all over again. That’s Australian political education for you.

  6. freecountry

    DrSmithy,

    There’s a saying, that America is so big that anything you can say about it is true. I guess there are some areas more educated in constitutionalism than others.

    By the way, I never suggested they were all “thoughtful and insightful, carefully balancing pros and cons before forming opinions.” Rather, I suggest that over there, even the most illiterate hillbilly has had some exposure to the concept of a republic.

    Whereas many highly educated Australians, who might be far more reasonable in their willingness to listen and compromise, simply were never exposed to any political theory in school except simplistic bromides like “one man one vote.” It would just never occur to them that there was anything more to know about Australian foundations than this, other than nuts and bolts such as, say, the inner workings of the Hare-Clark vote counting system.

    I agree with you about the often poisonous tone and lack of larger perspective, and a public life where talking is more fun than listening, and shouting more fun than talking. But of course, America is a big place, and there’s a whole nother side to it where some of the people are great listeners and calm thinkers.

  7. Cripes...

    Perhaps a movie will be made around 2050: “Disney presents ‘Gitmo Gardener’. The bizarre tale of a narcissistic sociopath caught in the web of his own self-deception. At Guantanamo Bay the guards wondered what to do with him; torture would be a waste, high-security would be pointless. But wait, Prisoner Assange could do his time behind a shovel at the prison garden manure pile.”

  8. drsmithy

    “A third football team in the winner-take-all match?”

    It’s *NOT* a “winner take all match”. Nor, in my experience, do most Australians perceive it as such.

    Americans, OTOH, absolutely consider it in that context – and with good reason as it’s essentially what their system is.

    That was my point.

    “That doesn’t begin to approach the ingrained American conception of constitutionalism, rule of law, limited government, separation of powers, decentralization of responsibilities, distinction between different levels of government … stuff that many Americans learn in primary school. Stuff that is assumed knowledge in much of the political media coverage, so that we often miss a lot of nuances when we’re reading American newspaper reports.”

    It might be “assumed knowledge” (though I strongly question that assertion, from both aspects) but it most certainly doesn’t apply to reality. I can confidently say that I know as much, if not more, about the structure of the US governmental system than probably half the US citizens I work with (probably 9/10ths of whom have either never voted in their life, or would only ever vote for a single party), and I would by no stretch claim to have a comprehensive understanding of same.

    “We keep adding further separations, such as the ABC, the Reserve Bank, and the independent prosecutorial services which I mentioned earlier, but little of this penetrates the Australian public mind.”

    On the contrary, I would assert that these things are intuitively understood by most people, even if they cannot describe in a formal fashion how they fall into the structure of government. That is why in Australia a vote for someone other than a representative of the two major parties is perceived at worst as a protest, not a waste, as it is in America.

    I do not believe, for example, that most Australians perceive our judiciary as a tool the Government uses to “end run” around the system’s checks and balances. I can nearly guarantee you that most American’s perceive their judiciary as such.

    Similarly, I am quite confident most people would consider the Reserve Bank to operate almost completely free of government influence. I sincerely doubt the same would be true of perceptions of the Fed.

    “Most of this theory goes right over Australians’ heads. They blissfully imagine that the only thing standing between them and out-of-control government is their vote, and the human virtues in their favourite political party.”

    Again, this sounds far more like the America I’m living in now than the Australia I had been living in before I left a few years ago. Heck, half of America (the “losing” side – regardless of which side loses) barely even feel that their vote “stands between them and out of control government”, but that the whole Government itself (*ALL* branches) is some independent and self-directing entity they have no meaningful influence on. This attitude is noticably more vocal and extreme from the US Right – especially since the Obama administration took power – and is vigorously egged on by voyeuristic nutjobs like Glen Beck, Ann Coulter and Sarah Palin.

    I don’t know where you’ve gotten this idea that the American electorate is well-educated, thoughtful and insightful, carefully balancing pros and cons before forming opinions, but it in no way represents reality. When it comes to politics, Americans are obstinate, almost to a [wo]man vote along party lines (usually the same as their parents) based on a handful of wedge issues (abortion, healthcare, second amendment, etc) and have attitudes towards their Government ranging from resigned cynicism to – completely unjustifiable, IMHO – paranoia, bordering on psychosis.

    This is in no small part due to the poisonous nature of mainstream media here, which is a) nearly completely opinionative and b) treats “balance” as two people on barely opposite sides of some wedge issue yelling at each other about how the other side is completely wrong. However, in my opinion the fundamental problem is simply that, as a contemporary culture, Americans are both highly individualistic and nearly incapable of compromise.

    The fundamental difference is this; In Australia, Government is perceived as a tool that can be influenced and manipulated by regular people to achieve their goals, or at worst force a compromise with those they disagree with. In America, Government is perceived as either a mortal enemy, or an ally against the barbarian horde. I know which attitude I would expect from a well-educated and well-informed electorate, and prefer in my community, and it’s not the one I see in America.

    I will in no way claim to be an expert in social studies, politics, or anything else, but from living in both places, the suggestion that the American public is better educated, more insightful or more informed than the Australia public when it comes to politics is laughable at best, insulting at worst. Personally I attribute a large part of this to compulsory voting, which “forces” the apathetic and disillusioned to at least be somewhat involved in the system.

  9. Elan

    I could not agree more GM.

    …..and I would never suggest that such has occurred.

    To clarify: I would never suggest it as a fact.

    (And I do know a tiny bit about the law).

  10. freecountry

    DRSmithy,

    A third football team in the winner-take-all match? That’s your idea of checks and balances? That doesn’t begin to approach the ingrained American conception of constitutionalism, rule of law, limited government, separation of powers, decentralization of responsibilities, distinction between different levels of government … stuff that many Americans learn in primary school. Stuff that is assumed knowledge in much of the political media coverage, so that we often miss a lot of nuances when we’re reading American newspaper reports.

    Australians’ idea of constitutional awareness was to laugh superciliously at Joh Bjelke-Petersen for failing to explain the separation of powers. His ignorance certainly was embarrassing. And yet, I doubt if one in a hundred Australians could answer the same question correctly. In particular, there is no strict doctrine of separation of powers between the executive and the legislature in the Westminster system of government. This is not a design flaw as many journalists and even some lawyers believe, it’s like that for a reason.

    And if we asked Australians to explain the difference between separation of powers in Westminster (legislature and courts), separation of power in the American republic model (legislature, courts, and executive), and responsible government (legislature and executive), then I doubt if one in a thousand Australians could answer correctly. Even most journalists and politicians would be at a loss to explain it. Australia’s federal system was a profound advance in separation of powers, a division which had often been proposed in the UK but was never able to be implemented until very recently. We keep adding further separations, such as the ABC, the Reserve Bank, and the independent prosecutorial services which I mentioned earlier, but little of this penetrates the Australian public mind.

    Most of this theory goes right over Australians’ heads. They blissfully imagine that the only thing standing between them and out-of-control government is their vote, and the human virtues in their favourite political party. But during about 1860 to 1920, most of this stuff was widely discussed in the Australian newspapers and in bestselling books about constitutional theory. It’s structural arrangements like these, not some Team Green interjecting motherhood statements in the triennial sports match, that keeps Australia from the kind of rapacious governments that less fortunate people around the world have voted in and then been unable to remove.

  11. Gavin Moodie

    I don’t think anyone who is not a party to legal proceedings should seek to influence the outcome of those proceedings. And I would be even more concerned if anyone from the executive or parliamentary branches of government sought to influence the judicial branch in fulfilling its functions.

    A politician’s attempt to influence the court to grant Sweden’s application to extradite Assange may encourage the court to resist that influence and even deny the application, but a desired outcome in this case would be too high a price to pay for the further erosion of the judiciary’s independence.

  12. Elan

    “Élan – this may be true but I remember all too well the political interference that led to Augusto Pinochet’s free release to Chile instead of being extradited to Spain where he faced human rights charges. Not, of course, the fault of the House of Lords – but political interference (Thatcher & Bush via Jack Straw) at it’s highest and most abominable.”

    Absolutely agree MLF! I remember that one well. Thatcher publicly stated that Pinochet was a friend………

    Perhaps I should qualify what I said. Not that any judicial is tainted by political interference you understand..

    If such were to occur, then hypothetically it would be agreed at the highest levels beforehand.

    What the judiciary frown upon is challenge/criticism of their decisions by politicians.

    Personally I would love to see the British and Australian Government pass strong comment on what they feel the judiciary should do in the matter of Mr A.

    I encourage them.
    I think they should.
    Just one big mouthed backbencher would do..

  13. drsmithy

    “What I’m saying is that Australia has a superior political design to that of the US — a later, more refined model, you could say — but an inferior level of political awareness and education in the media and the general population.”

    Wait, what ? You think Australia has “an inferior level of political awareness and education in the media and the general population” ? Have you ever been to America ?

    “In the minds of most Australians, there’s basically team red and team blue, they have a sports match every three years, then the winning team gets to do whatever they want.”

    That sounds a lot more like America than Australia. In Australia there’s at least team green in the tournament as well, even if they won’t win, and a handful of guys who just run onto the field and randomly kick a ball every now and then.

  14. freecountry

    Gavin Moodie,
    The latter is probably more likely. Swedish prosecutor Maryanne Ny may be on a power trip, she may be seeking a high-profile case to advertise her version of feminism, or to advance her career, or she may have some other purpose we don’t know. But she seems to be a wild card in the Wikileaks affair, acting independently of the Swedish government. As far as benefitting the Americans, it was probably more serendipitous for them in flushing Assange out of safe haven in Sweden, rather than reeling him back in.

  15. Gavin Moodie

    Thanx MLF. I suspected as much, in which case either the Swedish proceeding is not connected to US interests (which I understand many find hard to believe) or it is convenient for the US to have Assange tied up in proceedings in Sweden, preferably in custody, while it tries to build a case for his complicity in breaking US law by, for example, soliciting or helping the leaker to submit the material to WikiLeaks.

  16. MLF

    Élan – this may be true but I remember all too well the political interference that led to Augusto Pinochet’s free release to Chile instead of being extradited to Spain where he faced human rights charges. Not, of course, the fault of the House of Lords – but political interference (Thatcher & Bush via Jack Straw) at it’s highest and most abominable.

  17. MLF

    In response to Gavin’s initial question – I don’t think it can be easier. Tony Blair established an agreement with the US for automatic extradition upon request. It came into UK law in 2004, i think. So, no, it couldn’t be easier than the US simply asking the Poms to do it. Assange will be classed as a resident of the UK so Aus citizenship does not have any influence.

  18. streamfortyseven

    It is true that the Supreme Court did not reach the question of torture in its finding in Alvarez-Machain,

    from Justice Stevens’ dissent in US v Alvarez-Machain (1992):

    “For example, provisions requiring “sufficient” evidence to grant extradition (Art. 3), withholding extradition for political or military offenses (Art. 5), … and granting the requested State discretion to refuse to extradite an individual who would face the death penalty in the requesting country (Art. 8), would serve little purpose if the requesting country could simply kidnap the person. As the Court of Appeals for the Ninth Circuit recognized in a related case, “[e]ach of these provisions would be utterly frustrated if a kidnapping were held to be a permissible course of governmental conduct.” United States v. Verdugo Urquidez, 939 F. 2d 1341, 1349 (1991)”

    and

    “It is true, as the Court notes, that there is no express promise by either party to refrain from forcible abductions in the territory of the other Nation. See ante, at 9. Relying on that omission, [n.10] the Court, in effect, concludes that the “Treaty merely creates an optional method of obtaining jurisdiction over alleged offenders, and that the parties silently reserved the right to resort to self help whenever they deem force more expeditious than legal process. [n.11] If the United States, for example, thought it more expedient to torture or simply to execute a person rather than to attempt extradition, these options would be equally available because they, too, were not explicitly prohibited by the Treaty. [n.12]”

    and, in Note 33, Justice Stevens states:

    “As Justice Brandeis so wisely urged:
    In a government of laws, existence of the government will be imperilled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means–to declare that the Government may commit crimes in order to secure the conviction of a private criminal–would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face.” Olmstead v. United States, 277 U.S. 438, 485 (1928) (Brandeis, J., dissenting).” Alvarez-Machain, at Note 33 of Dissent.

    (Dissent at: http://www.law.cornell.edu/supct/html/91-712.ZD.html)

    Of course, the Supreme Court went the other way, and held that US agents could do as they wished in extraterritorial “law enforcement” matters. Because of this, Assange is in peril if he is extradited to Sweden, a country where there is significant informal cooperation between US and Swedish intelligence and law enforcement agencies.

  19. Elan

    The British judiciary take a very dim view of political interference in matters legal.

    It has taken many years in some cases, but British political process particularly under Thatcher, over imprisonment of Irish political prisoners, has led to some damning reports/releases/comp payouts.

    If the courts get a sniff of political interference/manipulation-Mr A will remain on British soil.

    And Julia Gillard will do all she can to assist her Australian subject.

    (Spot where I telt a lie!)

  20. freecountry

    SBH: “But FC, we don’t have a bill of rights.”

    Yes, that may be why Australia’s structural protections of civil rights, though imperfect, usually work better than the US Bill of Rights which took 70 years to abolish slavery and even today provide no protection against torture by American forces abroad.

    “And in the US are not prosecutors political rather than statutory office holders?”

    US Attorneys are statutory office holders since 1789, not to be confused with Attorneys General who are politicians. In 2006, President GW Bush used his established presidential power to sack seven US Attorneys and appoint interim US Attorneys in their place. There had been several controversial investigations of Republican figures in progress at the time. Under the Patriot Act 2005, the previous 120 day limit for these interim appointments no longer applied. This was a major scandal which led to the resignation of Attorney General Alberto Gonzales and six of his senior Department of Justice officials.

    What I’m saying is that Australia has a superior political design to that of the US–a later, more refined model, you could say–but an inferior level of political awareness and education in the media and the general population.

    In the minds of most Australians, there’s basically team red and team blue, they have a sports match every three years, then the winning team gets to do whatever they want. Or would do, if disruptive elements like oppositions, cross-benches, senators, and state premiers, could just f*** off and respect the people’s choice of team red or team blue. This attitude seems to pervade not only the struggletown suburbs but also newspapers, schools, universities, even the High Court at times.

  21. Cripes...

    Big money buys big justice.

  22. SBH

    But FC, we don’t have a bill of rights.

    And in the US are not prosecutors political rather than statutory office holders?

  23. kyeho

    Reading the above commentary [ranging from speculation to legal interpretation of what might be used for the extradition of Assange to Sweden] .. I don’t like his chances of avoiding the US if he is extradited to Sweden. Neither the Swedish nor the Oz government seem to want to be involved in preventing extradition to the US or to be involved with the Assange/Wikileaks affair in any way.

    Let’s hope the Brits can do for him what others are not willing to try … namely … see a modicum of justice applied to his position. He is not blame free since he published the documentation. There is a chain of links from the person who leaked to ALL those who published including Wikileaks and the 4 major world newspapers who also published.

    If one person is to be held accountable for these actions then all newspapers should also be held accountable for the same publication of Wikileak files. If the Swedish prosecutor really wants Assange on sexual assault charges then she should give him a guarantee that he won’t be handed over to the US by the Swedish government.

    Hero or not, publication is an offence on its own separate from the leaking of the documentation. No one should go free if any one person/company is to be charged with dissemination of government classified documents. If no one is to be charged then all should go free.

    Sometimes I think it’s very middle class to have concepts about justice .. itself a matter of how deep one’s pockets are. Cynical yes .. I don’t think the US wants to see this matter disappear without getting some form of vengeance.

  24. freecountry

    Streamfortyseven,

    The passage of judgement that you quote does not say what you summarize it to say in your last paragraph.

    (What it does do, on another issue which has been topical in Australia recently, is to illustrate the kind of legal spaghetti that can ensue, when you attempt to enumerate human rights protections in a Bill of Rights, rather than setting up checks and balances in such a way as to frustrate human rights violations.)

    One of those checks and balances is a statutory office of public prosecutor, who is independent of both the political government and the police. (And Victoria’s full implementation of this concept in 1986 was a milestone in Western jurisprudence.)

    My point is that Sweden’s prosecutors, though set up very differently to those in Commonwealth countries, also have some measure of political independence, so Maryanne Ny is making her decisions with some kind of formal autonomy. Whether she’s under some kind of hidden pressure is another question. But we should not talk of “The Swedes” pursuing this action, when it is just one Swede conducting this crusade on her own authority, without any need for government or voter support, against the advice of some of her colleagues, and seemingly to the embarrassment of much of the Swedish population.

  25. Richard Wilson

    The people of Australia must apply maximum pressure to this excuse for a government representing the interests of Australian citizens to ensure they provide support for our citizens rather than smoothing the passage for their rendition by a pariah state.

  26. Oscar Jones

    I think I’ll take Geoffrey Robertson’s view rather than Scott’s.

  27. streamfortyseven

    Here’s the reference for the Alvarez-Machain v. US case: http://ftp.resource.org/courts.gov/c/F3/107/107.F3d.696.95-56121.95-55768.95-55464.html

  28. David

    Enjoying the debate on this one. My money is on Assange lawyers, but keep it going folks. Not being of a legal mind, this is interesting stuff.

  29. streamfortyseven

    The concern should be not whether Assange can be extradited from Sweden by the US, it should be whether the US can let him stay in Swedish “custody” for 30 seconds and then bundle him aboard an Air America flight bound for Guantanamo. There’s precedent for this, and the US Supreme Court says that this sort of thing would be perfectly legit.

    In the case of US v. Verdugo-Urquidez, 110 S.Ct. 1056 (1990), the Court held that none of the usual Constitutional protections for people in the US apply. Moreover, it’s possible under this decision for US agents to kidnap people and forcibly take them back to the US for interrogation and trial, as was done in Alvarez-Machain v. US, 107 F.3d 696 (9thCir.1996):

    “On April 2, 1990, a team of men alleged to be hired by DEA agents working in Mexico, abducted Dr. Alvarez-Machain from his office in Guadalajara. They blindfolded him, transported him to an unknown location, and proceeded to beat him and subject him to electrical shocks. His kidnappers injected him with unknown chemical substances causing nausea and dizziness, denied him food and water, and forced him to lie face down on the floor for a long period of time. His life was repeatedly threatened, as well as the safety of his family. After enduring this torment for several hours, he was delivered into the hands of the DEA in El Paso, Texas …

    In dismissing the constitutional claims arising out of conduct in Mexico, the district court held that the United States Constitution does not protect Mexican nationals in Mexico from wrongs committed against them by United States government agents engaged in extraterritorial law enforcement. …

    Alvarez-Machain argues that the district court erred in holding that the Fifth Amendment due process clause does not protect aliens from actions taken by the United States abroad. We find it unnecessary to reach this issue. The issue is precluded because, under the instruction of the Supreme Court, in his criminal prosecution, we have already held that the actions taken by United States government agents or their employees against Alvarez-Machain in Mexico did not violate due process. United States v. Alvarez-Machain, 971 F.2d 310 (9th Cir.1992) (on remand from the United States Supreme Court).”

    So agents from the US could be at the airport, snatch Assange, and take him to a foreign country as interrogate him, and then disappear him to Guantanamo, and no due process issues would arise. He could be kept for 10 years, he could be killed, and there would be no recourse in US courts.

  30. shepherdmarilyn

    Gee Scott, so you think people should be rendered up based on no charges just because a government feels like it?

  31. Bkouki

    Scott
    U said”It also doesn’t matter why the European Arrest Warrant was issued. As long as it is valid and issued by the appropriate judicial authority, it is fine. In fact, the Warrant has been challenged in Sweden itself and was turned down by a court of appeal and with the high court refusing to hear the case.”
    The Swedish prosecutor who issued an arrest warrant for Assange did not have the power to do so.
    This will be base around who can issue these warrants and if there r named authorities in the extradition act. The English court is NOT under The Swedish court and can make its own judgement
    U also said”It’s an extradition hearing. Therefore the only law that really matters is the Extradition Act (2003). ”
    Sorry, but the UK has been sued and paid out big settlements for using that reasoning in Gitmo cases. The EU human rights MUST be followed.
    I further say the USG threat is VERY real and must be taken into account.
    There is a secret grand jury hearing going on now, which has just been exposed by Twitter.
    Tnx Twitter for ur courage.
    He is an Australia journalist/publisher/citizen, that released information in another country. He never did this in the US. He does not vote in the US. How can he have a trial by his peers?
    He is has freedom of speech under the UN human rights Article 19:
    Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
    Repeat after me “Everyone has the right ” “to seek, receive and impart information and ideas through any media and regardless of frontiers.”
    Repeat”any media”
    The US, Aus, the UK and Sweden signed but….
    Yet those in power r threatening his death…..
    Who will be next? Can an American be extradited for insulting Muhummed? It is considered an attack on the state, in some countries.

  32. Scott

    I think these arguments are rubbish.

    It’s an extradition hearing. Therefore the only law that really matters is the Extradition Act (2003).

    There are reasons to refuse extradition in the Act, but the arguments listed here do not apply. It doesn’t matter that the offences are not offences under UK law. As long as they are in the list of offences in the European Framework that is enough.

    It also doesn’t matter why the European Arrest Warrant was issued. As long as it is valid and issued by the appropriate judicial authority, it is fine. In fact, the Warrant has been challenged in Sweden itself and was turned down by a court of appeal and with the high court refusing to hear the case.

    The full disclosure argument is also a red herring. The prosecution will argue, successfully, that this will happen once the brief is presented to a Swedish judge.

    As for the US extradition threat, that is pure speculation at the moment and will be thrown out.

    The only real argument that might work is that the charges are politically motivated (as that is grounds for the extradition request to be denied in the act). But hard to prove when the country is Sweden, not know for it’s political oppression.

    I think Assange will end up in Stockholm soon enough. Then the trial will really begin.

  33. SusieQ

    Gavin, must admit I’m with you a bit on this. Marilyn may have partly answered the question, although I’m not sure if it is complicated by Assange being an Australian citizen? The Brits have been happy to let UK citizens be extradited to other EU countries in the past few years even where the evidence is dodgy. A computer hacker has (or will be soon) been extradited to the USA from the UK too, so they do have form in this.

    And I agree with the author – lets not hold our breath waiting for any support from Gillard et al – they’ve sat back and let American politicians and commentators talk about execution, hunting down etc and not said a word!

  34. Gavin Moodie

    I’m sorry for being slow, but it is still not obvious to me why it would be easier for the US to extradite someone from Sweden than from the UK. They are both members of the European Union which I thought had a law on extradition that applies to all members.

  35. Liz45

    @GAVIN – I’d have thought that the answer to that question is glaringly obvious. The Swedes are really behaving in a most unprofessional manner, which indicates to me, that this action in the Courts is just a ‘cover’ for their main agenda – to hand Julian Assange over to the US. I’d like to think, that the British system of justice is superior.

    I recall the actions of the British legal system re those who were languishing in Guantanamo Bay – they insisted on their being sent home. I also recall the case of ?Beck, who was another British citizen jailed by the US in Guantanamo Bay. I read his story, and it was his father’s consistent actions that brought justice in his instance.

    The fact that Assange has always shown a willingness to speak to the legal people in Sweden; the fact that they dropped the first lot of charges; the fact that they weren’t overly concerned with him leaving the country in the first instance, coupled with the fact, that it was when the US started to use harsh rhetoric about the Wikileaks articles, which clearly showed their contempt for their own people and the rest of us, was when the Swedes became ‘interested’ in the alleged sexual offences. Even the most conservative person would begin to smell a rat – or an intended rendition?

    I can’t wait for the next disclosure. A US bank? The co-operation of US pollies in its activities, and some of the info of the Howard/Blair/Bush behaviours? Bring it on I say!

  36. Meski

    If the Americans want to try him, then they should do it in the US, not Gitmo. Not that I think they should. And they shouldn’t use this pretense of a rape trial to get him.

  37. shepherdmarilyn

    Because the Brits have had to pay out millions in compo. for rendered citizens tortured in Gitmo and Assange has not been charged with anything in England.

    Actually it’s sort of the same as all the poor devils locked up in Gitmo for years on end after rendering and torture.

    It simply is not possible to render people for questioning.

  38. Gavin Moodie

    Why might it be easier for the US to extradite Assange from Sweden than from the UK?

  39. kennethrobinson2

    Whats with the Swedes, up until now I have been proud of my one eighth Swedish blood, from the way this case is proceeding, it looks like they are a pack of idiots, or worse seeking to please their US masters, just like our heroic PM.
    If this was just a plain sexual assault crime I would say, go and have your day in court, but with treachery afoot, he doesn’t have a chance, lets see how good the British justice system is.

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