God knows who’s styling Julian Assange these days, but they need to be a bit more on the ball. The WikiLeaks supremo emerged onto the tiny balconyette of the Ecuadorian embassy in Knightsbridge last Friday, wearing a sort of fake leather jacket and raising his fist, which made him look like either a fascist or a Thunderbird, hard to think of which was worse. Stick to a suit, boyo.
Nevertheless, Assange was cheerful, and he had reasons to be. The Swedish prosecutor has indefinitely stayed the seven-year investigation into an accusation around a sexual encounter in 2010 — an encounter that one section of the Swedish prosecution service had defined as an accusation of minor rape (Sweden has three degrees of rape on its criminal statutes).
The move is being presented as the defeat of due process. In fact, it’s most likely a sleazy bit of face-saving. Having interviewed Assange at the embassy, the prosecutors now have everything they need — a complainant, witness statements, Assange’s statement — to proceed if they wanted. They aren’t because there is no case to answer — exactly as the Stockholm region prosecutor Eva Finne concluded the day after the complaint was first presented in 2010.
Furthermore they have the following: an initial statement to the police, in which complainant S* stated that she never wanted to make a complaint and that she had been railroaded into it by the police and people around her; statements from friends of hers that she and the first complainant, prominent Social Democratic Party activist Anna Ardin, had joked about making money by going to the newspapers with the story; witness statements by same friends that S’s account of the events contradicted her official statement; and a series of text messages between the two complainants — never released because legally confidential, but attested to by both sides — which, according to lawyers who have seen them, demonstrate collusion in an attempt to get Assange into legal trouble for some sexual encounters gone wrong.
Get Crikey FREE to your inbox every weekday morning with the Crikey Worm.
They have no case, even by the non-Anglo-jurisprudential measures of the Swedish system. By staying, rather than discontinuing the investigation, the Swedish state, via prosecutor Marianne Ny, is playing the victim — as she/they have done throughout the process. The case was initially discontinued less than 24 hours after it had been inaugurated by a stand-in duty prosecutor in the middle of the Swedish summer holidays. It should be discontinued now.
Fat chance of that. The Swedish state is like the social worker in the old Rottweiler joke (what’s the difference? The Rottweiler eventually gives the kid back). Now the Australian state must act, on behalf of one of its citizens. Julian Assange is an investigative journalist who, like all investigative journalists, uses leaked documents to publish stories. He does it with novel methods, and a greater volume than many, but these are differences of degree.
Assange has a guarantee of entry to Ecuador by its government and asylum granted by it. The Australian government must demand that the UK honour that granting with safe passage. Currently, the UK government is arguing that it has no power to interfere in police arrest for breaching bail conditions — which occurred when Assange walked into the embassy in 2012. This is nonsense. The Attorney-General has clear powers to stand this down, even if it involves some simple judicial procedures. It is done frequently.
This will become a more urgent question if Ecuador — its left-wing government re-elected in April — ups the ante. The simplest way to do this would be for them to grant Assange Ecuadorian citizenship, appoint him to the Ecuadorian diplomatic service, and then present his credentials to the UK government (yes, yes, the frikkin Court of St James). If the government accepts them, well, Assange would have diplomatic immunity, and could finally get to Harrods. If the UK rejects them, well, he has to return to the fondly remembered cool hills of Quito for which he yearns. The passage back to Ecuador would surely attract diplomatic privilege for the journey to the airport. The Turnbull government must insist, if this occurs, that dual citizen Assange has his rights respected.
Simultaneously, they must also assert to the US government that the act of investigative journalism using leaked documents is not a crime and that any prosecution based on such acts would amount to extranational, exceptional pursuit of an Australian citizen by its most consistent ally. Given that we have a PM who made his bones as the flamboyant QC defending the right of an ex-MI5 agent — Peter Wright, mad author of Spycatcher — to contravene confidentiality agreements he’d signed up to, the rights of Assange should enjoy the same defence.
In this matter, Assange deserves the defence of anyone who considers themselves of the left, or critical of state power in its current Western form. The incidents that sparked this legal saga do not need dwelling on, but they do need repeating: the sum total of what Assange has been accused of is initiating sex with a half-sleeping woman, S, the morning after they had had a night of consensual sex. By S’ account, she consented to the morning sex seconds after it began. But even that is not required: consent, by case law, in the UK, Australian and Sweden, is held to carry over in any case, even when sleep intervenes. There was never a case to answer by any reasonable standard. **
Sadly, many people who should be sceptical of state power, and autonomous state processes, lost any sense of critical judgement because accusations of sex crime were involved. The suggestion from many — including many who had praised the release of the “collateral murder” video and the “cablegate” archive — was that someone who had released half a million files detailing 10 years of violent folly and criminality by the most powerful country in the world should return to a country with compulsory remand, an extradition treaty with the US, and the most pro-US government in its history, on the basis of what occurred during 45 seconds of a sustained consensual sexual encounter.
Although the whole case began as a product of the autonomous processes of the Swedish state, it rapidly became a “honeytrap” (“vinegartrap” might be a better term). When Finne, the Stockholm prosecutor, threw out the investigation 24 hours after it was opened, the two accusers rapidly acquired as a lawyer Claes Borgstrom, a high-powered politician.
Before the accusation, Assange had come to Sweden to base WikiLeaks there and take advantage of Sweden’s shield laws protecting whistleblowers. Such protection required a residency and work permit; the ongoing accusations made those impossible to obtain. There is no question that the US would have started to withhold intelligence from Sweden if Assange had gained those protections — withholding of intel is the US’ big stick, waved around repeatedly (for example, on the weekend of November 8 and 9, 1975, two days before Whitlam was sacked) — at a time when Sweden wanted to be closer in the US embrace. The intent is bare-faced, obvious. It worked in part, by dividing Assange’s supporters on the very sort of issues they care most about. In that respect, they need to support Julian Assange 100% in getting free passage to Ecuador, regardless of their opinion of his recent political choices, not from the other side, out of regard to his slightly exaggerated public persona, but simply because the last seven years have always been a stitch-up. Simple, all-in checklists of political causes doesn’t work anymore. Neither does that jacket.
The full police report, translated into English by Rixstep, is available at www.swedenvassange.com
* Hitherto I’ve used the name of the second complainant (who is now the sole complainant on extraditable accusations), because it was in general circulation on the internet. Since it has faded somewhat, I’ll use a letter.
** The alleged non-wearing of a condom in that morning encounter is not the key element to the case. For legal reasons too complex to go into, it doesn’t form part of the legal fabric of a rape case, whatever the morality of it is.