When Obama meets Gillard today, one wonders whether Julian Assange will come up in conversation. In sharp contrast to Gillard’s personal offer of support to an Australian teenager arrested in Bali on drug charges, her actions with respect to the threat of Assange’s prosecution in the US for WikiLeaks’ publication of US diplomatic cables have been at best passive, at worst hostile. If freedom of the press and the protection of Australian citizens mean anything to our nation and our Prime Minister, then its time Gillard starts asking Obama some important questions.

The recent decision of the High Court in London to extradite Assange to Sweden, subject to one last possible appeal, means return Sweden may be imminent. In response to questions about the potential for his US prosecution, US Ambassador Susman told the BBC last December that the US will wait to see what happens in Sweden. At that same time, UK paper, The Independent, reported that Sweden and the US had already been in talks regarding arrangements for Assange’s extradition to the US. Understanding the content of those talks is more pressing than ever.

When Assange is extradited to Sweden, he will be placed in custody – likely incommunicado detention – pending charge and trial. His appeal lawyer, Gareth Peirce, asserts ‘the very real danger’ that once Assange is in Swedish custody the US will apply for his ‘temporary surrender’ for what are, at this time, unspecified charges related to the publication of documents by WikiLeaks. Under the US-Sweden treaty, the terms of surrender are by ‘mutual agreement’ between those two states. What role will Australia have – or has it had – in any such negotiation process given the serious consequences for an Australian citizen?

US constitutional experts have concluded that Assange, as editor-in-chief of WikiLeaks, is entitled to the full protection of the First Amendment. Nevertheless, grand jury investigations continue in secret session in Virginia, assessing what charges can be laid against Assange. Several WikiLeaks associates have had their Twitter accounts subpoenaed. Indeed, many have asserted a sealed indictment for Assange could have been issued already and may simply be held pending the most appropriate time to issue an extradition request.

Assange will suffer grave consequences if returned to the US. Many question whether he would receive a fair trial in a state where numerous high profile politicians, including a Presidential candidate, have called him a terrorist, an enemy combatant and called for his extrajudicial killing. Experienced US lawyers have expressed concern at the choice of Alexandria, Virginia as the location for the grand jury investigation and the jury catchment area for future trial, being as it is the ‘dormitory’ of the national security establishment.

One need only look to the treatment of Bradley Manning to reinforce these concerns. Manning has been held in conditions described as inhuman and degrading treatment and Obama declared him guilty of passing confidential information to WikiLeaks before he has gone on trial or been convicted. Leaving aside the politically charged circumstances in this case, other governments have initiated inquiries into all extradition to the US over concerns regarding coercive plea pressure, the excessive use of isolation in prison and the enormity of potential sentences. But what is the Australian government asking of the US and of Sweden in these circumstances? The threat of US prosecution of Assange is clear. The human rights and fair trial concerns in any such prosecution are also clear. What is not clear are what charges he will face or the terms upon which his extradition from Sweden will be granted.

Commentators had earlier dismissed arguments about the threat of onward extradition from Sweden arguing Assange’s extradition would be easier from the UK than from Sweden. Not only is this wrong, but it misses the point. The real question is not about the relative ease of extradition from different jurisdictions, but whether US extradition can happen at all – and on what terms.

As explained by former State Department legal advisor, John Bellinger, if the US issued charges against Assange while he remains in Britain it would result in “a complicated clash” between the respective Swedish and US extradition requests, putting the UK government in ‘a difficult position’. Under the UK Extradition Act, the Home Secretary would have had to decide which of the conflicting requests should be given priority, requiring an assessment of the relative seriousness of the offences and the timing of the requests. For this reason, Bellinger told Associated Press that the US would “wait to see if he is prosecuted in Sweden and then still seek his extradition.”

Once in Swedish custody, Assange is at risk of being surrendered to the US before he is charged and prosecuted in Sweden or after conviction while still serving sentence under a procedure known as temporary surrender.

The EU Council describes temporary surrender as facilitating ‘the orderly and efficient prosecution of a person sought in two jurisdictions by allowing the temporary transfer of the person… subject to conditions agreed to in advance’. The US Senate Committee on Foreign Relations states that temporary surrender provisions were introduced to ‘help ensure that extraditions are not denied on purely procedural grounds’. A diplomatic cable released by WikiLeaks describes the procedure, also known as ‘conditional release’, as being ‘much faster than a formal extradition, and has proven so successful, that DEA sometimes designs operations to bring suspects to Panama so they can be arrested in Panama and turned over to US authorities quickly.’

The US-Sweden treaty does not provide for judicial oversight or any conditions for temporary surrender. Instead, Assange’s surrender will be determined by ‘mutual agreement’ between the US and Sweden. Gillard must ask Obama: what agreement, if any, has been reached between Sweden and the US for this purpose? What role will Australia have in any such negotiation and agreement? If Assange is to be surrendered to the US under this provision do EU safeguards against extradition apply? What guarantees can be provided as to his treatment and his return to Australia?

Even if temporary surrender is not sought, it is a matter of public record that the US has synchronised extradition requests with the conclusion of a pending case, arresting the requested person within hours or days of release from custody, and has relied on the cooperation of Sweden in doing so. Once the case against Assange in Sweden has been determined, it is likely he will be served with a US extradition request immediately after being released in Sweden but before he is able to return to Australia. Swedish lawyers have advised that extradition to the US is a mere administrative process. Figures recently reported show that Sweden has never turned down an extradition request from the US. We can hope that Sweden would refuse to extradite Assange to the US – but what concrete inquiries have Gillard and our government made in this regard? What assurances have been sought from Sweden that Assange can return to Australia after matters are resolved there?

These ought to be serious concerns for the Australian government and for Gillard. It is highly unsatisfactory that an Australian citizen could be bumped around between foreign states, with minimal procedural safeguards, to be tried for conduct that does not amount to crimes under Australian law. Experts have concluded that Assange’s conduct in Sweden does not amount to a crime under English or Australian law. Contrary to Gillard’s prejudicial statements in December, the Australian Federal Police found that no Australian law had been broken in publishing the US diplomatic cables.

It is time for Australia to stand up for its citizens, for its values and for itself as a nation. Gillard reassured the Australian public that our government was doing “everything it could” to get that 14 year-old Australian home from Bali. Can we say the same for what she is doing for Assange?

Jennifer Robinson is a London-based media and human rights lawyer, who advises Julian Assange and WikiLeaks. Jen also has a special interest in West Papua and is an active member of International Lawyers for West Papua. Follow Jen on Twitter: @suigenerisjen

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