Despite the complexities of European arrest warrants, the methods of the Swedish criminal justice system and the confusing claims about his behaviour in Sweden in August 2010, the Julian Assange case should be, from the perspective of the Australian government, relatively simple.

As an Australian citizen, Assange has a right to expect his government will seek to ensure that he is accorded due process by other countries seeking to prosecute him. And all of us should legitimately expect that our government will not stand by while a journalist engaged in the endeavour of holding governments to account and bringing transparency to their actions is threatened and prosecuted.

This applies regardless of whether you like WikiLeaks or not, whether you approve of its release of US diplomatic cables, or war logs from the Iraq and Afghanistan conflicts, or any other material that has embarrassed governments, companies, NGOs, prominent individuals or even climate scientists since 2006.

Some reject the view that Assange is a journalist. But those who think so might try to explain why to bodies as diverse as the Walkley Foundation, the United Kingdom High Court, the Australian editors and proprietors who wrote to the Prime Minister a year ago to note that in publishing the diplomatic cables, WikiLeaks was doing “what the media have always done”, or the committee behind Britain’s Martha Gellhorn Prize for Journalism, which awarded Assange its 2010 prize. The inaugural winner of that prize, by the way, was Guardian journalist Nick Davies, these days a serial critic of Assange.

The Australian government’s reaction to Assange’s legal plight and the WikiLeaks revelations has been peculiarly polarised. There was the embarrassment of the Prime Minister incorrectly describing the release of the diplomatic cables as “an illegal act”, then-Attorney-General Robert McClelland claiming Australian laws had been broken (since refuted by the Australian Federal Police) and that the government had considered cancelling Assange’s passport, and the government strengthening the powers of ASIO in order to enable the domestic intelligence agency to spy on WikiLeaks.

Foreign Minister Kevin Rudd, on the other hand, has implicitly rebuked his colleagues by rejecting the cancellation of Assange’s passport and providing consular support services for him. Rudd’s diplomats also sought, on three separate occasions a year ago and early this year, assurances that Assange would be afforded due process by the Swedish government in relation to the allegations against him.

Should Assange lose his appeal, or decide to go to Sweden anyway in order to address the claims against him,”due process” will involve his being remanded in custody despite the lack of any charges being laid against him, and being held incommunicado. While this wouldn’t be accepted in Australia, there is no suggestion Assange should be afforded special treatment in Sweden. However, the circumstances of his custody in Sweden would facilitate extradition to United States, should it be sought, via the mechanism of “temporary surrender”.

It is “temporary surrender” that most concerns Assange’s lawyers, supporters and those who have signed this letter. The concern is that “temporary surrender”, in which someone charged in two countries is handed from one to the other, evades the normal requirements of due process and legal rights afforded to anyone being extradited to another country. If those concerns are well-founded, Assange’s arrival in Sweden and entry into custody there could be the precursor to a rapid extradition to the United States.

Some lawyers believe there is minimal threat to Assange from the “temporary surrender mechanism”. We hope they are correct. But there remains a substantial risk they are not. Moreover, “temporary surrender” from Sweden is merely one option for the US government; if that fails, it is likely to pursue others. How do we know? Because when it comes to WikiLeaks, the US government has form. It instigated an illegal financial blockade of WikiLeaks that continues today. The Department of Justice played a key role in bringing together the cyber security firms that developed a plan to attack WikiLeaks and its supporters.

The Vice-President has called Assange a “high-tech terrorist” despite administration officials conceding no harm resulted from the leaking of diplomatic cables. Bradley Manning has been pressured to cooperate with US military investigators to implicate Assange in the leaking of the diplomatic cables, war logs and combat videos. And the US Department of State has claimed Assange is not a journalist, but rather a “political actor”, because he has “political objectives”, a bizarre line from the home country of Fox News and MSNBC. But depriving Assange of his status as a journalist is important to the US government’s attempts to manufacture an indictment against him.

Given all this, who can seriously suggest Assange would receive a fair trial in the United States? And given the number of public figures who have suggested he be harmed or assassinated, how could his safety even be guaranteed in custody there?

As the letter to Rudd makes clear, this is more than a question of ensuring Assange is afforded due process. There are larger issues at stake than an individual’s fate or even that of WikiLeaks. The successful harassment, extradition and prosecution of Assange for his journalism will be a profound blow against a free press not merely in the United States but across the globe.

The Australian government faces a key decision — whether to continue to allow its enthusiasm for the US alliance and Julia Gillard’s apparent reflexive support of the Obama administration to colour its actions on Julian Assange, or whether it makes clear to the Americans that the persecution of an Australian journalist for embarrassing the US is unacceptable to a democratic government.

*Bernard Keane helped coordinate and signed a letter to the Foreign Minister and Attorney-General about Julian Assange

Peter Fray

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