Ecuador has granted Julian Assange's asylum, the UK must honour that, and Australia must see that they do. Because no matter your opinion on the man or his recent political choices, the whole Swedish investigation has been a stitch-up from the start.
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.
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.
Jan 20, 2017
Is Julian Assange's long stint in the Ecuadorian embassy a martyr's travail or a narcissist's temper tantrum?
He’s such a tease, that Julian Assange. First he tweets that, if President Obama grants clemency to Chelsea Manning, he will release himself from his Ecuadorian prison and accept extradition to the United States. Obama then commutes Manning’s 35-year sentence back to a release date this coming May. But Assange, via his US lawyer, now says “Mr Assange had called for Chelsea Manning to receive clemency and be released immediately”. Conditions not met, so Assange is staying put.
For starters, bullshit. Assange did not stipulate immediate release, and commuting a sentence is the very definition of clemency. Anyway, nobody asked Assange to get involved in Manning’s case in the first place, so all his posturing has achieved is further confirmation that this really is going to be the International Year of the Narcissistic Tweetstorm.
What actually is Assange’s martyrdom all about? On his narrative, he’s been holed up in the Ecuadorian embassy in London since 2012 because the UK government wants to extradite him to Sweden on trumped-up sexual assault charges, from where he’ll be sent on to the US, where they want to shoot him as a spy. The real story is a little less romantic.
Why does the United States hate Julian Assange?
In 2010, WikiLeaks published the 700,000 classified files Chelsea (then called Bradley) Manning stole from the US government while working in intelligence. The Americans were unamused and threw several books at Manning, who was ultimately convicted of espionage and numerous other crimes and got 35 years.
There’s no doubt that WikiLeaks and its attitude to open-sourcing the deep secrets of government has changed the game fundamentally. Assange is a figure of major importance. Vice-President Joe Biden called him a “cyber-terrorist”.
Has the US charged Julian Assange with anything?
We don’t know. The US Department of Justice has never announced any charges against Assange. WikiLeaks suspects the charges may be under seal and therefore secret. It’s possible, but there’s no evidence either way.
If Assange was ever charged, it’d be unprecedented in US history. The First Amendment offers the most powerful free speech protection in the world, and no news organisation or journalist has ever been prosecuted there for publishing classified material. If they had a crack at Assange, it’d be a reflection of how much they fear WikiLeaks. It would be legally risky and a significant political calculation.
Assange’s period of greatest risk in terms of the US is now over anyway. Obama proved to be the most anti-whistleblower president ever, to everyone’s surprise. Donald Trump, well, who knows what he’s likely to do about anything, but I’m guessing it won’t include addressing questions that look hard, and he has tweeted favourably about Assange (on which measure, Alec Baldwin may be facing lese-majeste charges soon).
What about Sweden?
There are two schools of thought. One says that he allegedly sexually assaulted two women in 2010. The other holds that his innocence is obvious and there’s an inter-governmental conspiracy. Call me a lawyer, but I’m a fan of these things being resolved in court rather than by social media.
The facts are that Swedish authorities issued an arrest warrant for Assange in 2010, he was arrested in London, given bail and then in 2012 ordered to be extradited to Sweden. Instead, he entered the Ecuadorian embassy. Ecuador has granted him asylum, but he can’t physically get there. (Actually, since the coppers ended their 24/7 vigil, it probably would be feasible to sneak him onto a boat and float to Quito, which makes me wonder again how badly Assange really wants to escape the limelight.)
In 2015, two of the charges against Assange became time barred, but the allegation of rape remains and can still be turned into a criminal charge if the Swedes ever get their hands on him.
As to whether the UK would put Assange on a plane to JFK if he stepped out into the Knightsbridge night, there’s no reason not to assume that they’d follow through with the more legally pressing imperative of extradition to Sweden. It is, if it needs repeating, an allegation of rape that he faces. Journalistic freedom and WikiLeaks’ social mission are not part of that equation.
Assange and extradition to the US
Whether from the UK or Sweden, Assange’s risk of extradition into American hands is anything but assured. There are a few legal hurdles and none of them small.
Apart from question marks over whether the US offences with which Assange might be charged fall within the relevant extradition treaties, those treaties expressly exclude extradition in the case of “political offences”. Traditionally, espionage, along with treason and sedition, has been treated by the courts as a political offence.
There’s also then the problem that Assange could, hypothetically if convicted of espionage offences (and his lawyers have assiduously argued this point), face the death penalty in the US. The European Convention prevents extradition where the defendant is exposed to that outcome, and there is precedent for the proposition that the US prosecutors would be unable to offer a binding assurance that it would not be sought against Assange even if they had no such plans.
All of this is untested and worthy of a very long textbook, but the point is that Assange is in reality far less likely to end up cuffed to a US marshal on a transatlantic flight than has been suggested, should he go out for a walk.
Stripping it back
A simple counterfactual may assist in working out what’s really happening here. Say the Swedish rape allegation had never come up. The Manning disclosures on WikiLeaks had already happened, which means that Assange was as exposed to US prosecution before he knew he was facing Swedish charges as he was afterwards.
Assange was at risk of extradition to the US from the UK any time from the WikiLeaks publication in 2010 up until when he entered the embassy in 2012. That risk didn’t go up or down. The only thing that changed was that he was ordered extradited to Sweden. His risk of extradition from Sweden to the US wasn’t different to the already existing risk from the UK.
It’s all a bit strange, and tempting to conclude that what’s been playing out in the Ecuadorian embassy all these years (and it appears for more to come) isn’t so much a freedom fighter’s travail as a really long temper tantrum.
By the way, the remaining potential Swedish charge of rape will become time-barred in 2020.
Dec 8, 2016
The rape allegations against Assange were an early manifestation of a split on the left/progressive side. That has deepened with his release of his second interview with prosecutors.
WikiLeaks editor Julian Assange has released a summary record of the testimony he gave to Swedish prosecutors last month, when they interviewed him at the Ecuadorian embassy in London — and it contains a record of texts between the two women who had accused him of rape and sexual assault, which includes a denial that rape occurred, and a plan to sell their story to the Swedish tabloids.
The interview was the second one to which Assange had submitted — the first being with Swedish police during the initial investigations of the accusations in August 2010. He was targeted for extradition by the Swedish government, after leaving Sweden several weeks later without being re-interviewed. Since 2012, he has been in political asylum at the Ecuadorian embassy, offering to be re-interviewed there. Swedish prosecutors refused to consider doing so until a year ago, and the interview took place last month.
Assange’s account of his days with SW — the woman on whose behalf Swedish prosecutors started a prosecution for “third degree rape” — gives a mildly different slant to the stories now circulating, based on SW’s testimony, but it varies little in account of events and timelines, etc. The gist, for those who’ve purged it from their memory, is this: in August 2010, Assange went to Sweden to try to base WikiLeaks there and take advantage of Swedish whistleblower protection. In the days following a talk he gave, he had separate sexual encounters with lecture organiser Anna Ardin and SW, who attended. Several days later, both women communicated and decided they wanted Assange to take an STI test, as both encounters had been less than fully protected. They claim Assange refused to do so; Assange claims poor communication, and that he had agreed to do it in a few days. They went to the police to, they claim, inquire about forcing an STI test; on the basis of an interview regarding SW’s encounter — morning sex, during sleep, without a condom — a junior prosecutor issued a warrant for rape. This was rescinded the next day by the Stockholm prosecutor, who said there was no case to answer — and then reinstated by a different prosecutor, on appeal, two weeks later.
Transcripts of police interviews with SW show that she did not want a rape prosecution at the time, saying that the police had wanted it, and that they had bullied her into it. When the prosecution was reopened both women were represented by Claes Borgstrom, a former Social Democratic government minister, indicating that the state had got involved in a big way.
The deal of scepticism around the accusations were undermined in December, on the eve of Assange’s extradition pre-hearing in London when The Guardian, WikiLeaks’s former partner in publishing the Cablegate archive, published an account of the events (from a police file leaked by a disgruntled WikiLeakista), which, as I’ve shown elsewhere, misconstructed consensual rough sex as non-consensual, and omitted SW’s misgivings.
Assange’s record of second interview puts a different slant on some of the events — noting that his personal bank accounts had been blocked during his stay there, forcing him to rely on a limited network of supporters. He also records his initial suspicions of SW, who had inveigled her way into the lecture, and was a trifle obsessed with Assange ––believing her to be a possible “honeytrap”.
Most importantly however, Assange records the contents of several text messages between Ardin and SW, obtained by police, made available for viewing to his lawyer, but not permitted further circulation. These have been spoken of before, but their contents only gleaned implicitly through the police report.
SW’s texts record (after the encounter) that “[the sex] turned out all right”; on August 20 she texted that “did not want to put any charges on Julian Assange” but that “the police were keen on getting their hands on him” (14:26); that she was “chocked [sic shocked] when they arrested him” because she “only wanted him to take a test” (17:06).
On August 23, Ardin — who was still acting as Assange’s press liaison in Sweden — texted to SW that it was important that she went public with her story so that they could form public opinion for their case (06:43); that afternoon, SW replied that it was the police, not herself, who started the whole thing (16:02). On 26 August, Ardin tweeted to “SW” that they ought to sell their stories for money to a newspaper (13:38). Apparently, by August 28 SW had been convinced, for “AA” texted that they had a contact on the biggest Swedish tabloid (12:53); “SW” texted back that their lawyer negotiated with the tabloid (15:59).
Quite possibly, Swedish prosecutors may deny that this is a record of the texts (they have yet to do so, though they weren’t expecting the interview to be leaked, Swedes thinking Swedishly to the last). But it matches up with interviews contained in the police report, especially of friends of SW’s who spoke to police days and weeks after the initial arrest of Assange was sought. Asked about the texts in which SW talks of a tabloid sale, a friend who received it dismissed it as a joke. Another friend noted that SW had told her she was “half-asleep” when the encounter in question began.
There was no sale to the tabloids by the two women, so far as one can tell. But by that time the appeal against non-prosecution had begun, and things had swung into high gear; indeed the appearance of Borgstrom (imagine, say, Bob Carr, suddenly turning up to represent two young Labor activists accusing a visiting, and inconvenient, say, Tibetan activist of sexual assault, and you get the picture) indicated that the case had become part of wider political currents almost immediately.
Currently, only SW remains a complainant (Ardin’s accusations hit the five-year statute of limitations). If she did not want to press the issue initially, she appears to have changed her mind — last year she sacked Borgstrom and hired a feminist law firm that specialises in honour killings and women trafficking (and is the family lawyer of ex-PM Carl Reinhardt).
Why would the state become so involved in a case like this? One answer lies in Assange’s attempt to base WikiLeaks in Sweden and take advantage of its journalist and whistleblower protections. That would have made it impossible for the Swedish government to prosecute for the publication of leaked materials, including exchanged US-Swedish intelligence. That would certainly have meant a suspension of intelligence sharing by the US.
The rape allegations against Assange were an early manifestation of a split on the left/progressive side, with those supporting him arguing, or de facto accepting, that the scenario — the commencement of sex in the morning with a sleeping/half-sleeping partner, with consent gained almost immediately — in no way constitutes rape. The other side, a certain formation of statist feminism, argue that a rape accusation should always be played through, no matter what other geopolitical moves are afoot. In the years since, these divisions have only become more stark.
The crucial question might now be whether some notion of complexity can be allowed back in. The release by Assange of his own testimony as regards the complainants’ texts is a place from which to put pressure on the Swedish prosecutors to release the texts themselves, in an authoritative version. This they certainly will not do. That puts them further on the defensive, and may well swing some broader public opinion back to WikiLeaks.
Good God, it goes on.
Julian Assange faces very serious allegations, politicians like to say. That was the description from UK Prime Minister David Cameron’s office three years ago, defending the UK’s determination to extradite him to Sweden. And that was the description early this year from then-UK deputy PM Nick Clegg, too — “he should go to Sweden to face very serious allegations and charges of rape,” said Clegg, not long before leading his party to annihilation in this year’s general election. Clegg, of course, was peddling the oft-repeated lie that there are charges against Assange.
But for very serious allegations – sexual molestation, unlawful coercion, sexual assault — the UK and Swedish governments have displayed zero interest in investigating them. In fact, the history of the case against Assange is a history of increasingly bizarre efforts by authorities to avoid questioning him.
When Swedish prosecutors first examined complaints about Assange by two women in 2010, the Chief Prosecutor of Stockholm dismissed all but one of the allegations, including the accusation of sexual assault, saying “there is no suspicion of any crime whatsoever”. After speaking to prosecutors, Assange remained in Sweden for another week to be interviewed about the one remaining allegation (of molestation). However, after an appeal by former Swedish politician Claes Borgstrom, another prosecutor, Marianne Ny, reopened the whole case. Assange remained in Sweden and offered to be interviewed again, but, in the first of what would turn out to be a long litany of excuses, was told Ny was unable to speak to him because one of her staff was ill. Ny’s office then told Assange’s lawyer he was free to leave Sweden, but once Assange did so, an arrest warrant was issued for him. Assange then offered to return to Sweden to speak to Ny and gave her a full week of dates in which he would do so. These were all rejected.
This was all despite Swedish police having access to the texts of one of the alleged victims of Assange saying she “did not want to put any charges on JA but that the police were keen on getting a grip on him”, that she was shocked when he was arrested given she only wanted him to take an STD test, and that “it was the police who made up the charges”.
Ny’s unwillingnness to interview Assange would become the pattern for the next five years: Assange repeatedly offered to speak to Swedish authorities by phone, by videolink, or in person at the Australian embassy. The Swedes refused all opportunities to do so and demanded Assange return to Sweden, issuing a European arrest warrant for him. Eventually the EAW would be upheld by British courts under UK laws, which since then have been amended. Under current British law, a similar case to Assange’s would now be successfully appealed and the EAW rejected.
Once he had sought refuge in the Ecaudorean embassy in 2012, Assange continued to offer Swedish authorities the opportunity to speak with him, and they continued to reject them. But while they regularly rejected Assange’s offer to be interviewed, other suspects were treated very differently: during the last five years, the Swedes have on 44 occasions asked to travel to the UK to interview, or asked British police to interview, other people in Britain in relation to allegations including violent crime, fraud and even murder. Assange, however, couldn’t be treated the same way — he had to go to Sweden.
In fact, so absurd was Ny’s refusal to question Assange that in November last year, a Swedish court found she had breached her duty in failing to progress the case. With Assange’s Swedish arrest warrant in danger of being quashed due to her inaction and the expiry of three elements of the investigation looming due to Sweden’s statute of limitations, Ny then performed a sudden about-face — she said she would question Assange in the Ecuadorean embassy, as requested by Assange and Ecuador for years, and contacted UK authorities about the process for doing so.
But Ny still had a card left to play: despite her saying in March that she would do so, she never contacted the Ecuadoreans about the interview — in fact, eventually she admitted that she hadn’t bothered contacting the Ecuadorean Foreign Ministry in Quito until “a late stage” — just five days before a scheduled interview with Assange in June. When the Ecuadoreans said they wanted diplomatic staff present during the interview given the country had given him refuge, the Swedes called the interview off and blamed the Ecuadoreans for failing to co-operate. Ny had managed to avoid yet another interview opportunity.
The refusal of the Swedes to interview Assange seems to give credence to Assange’s fears the Swedes’ priority is to get him in custody not so the now one remaining allegation of sexual assault can be progressed, but so he can be extradited to the United States under the investigation into WikiLeaks’ role in the release of Chelsea Manning cables. We learnt in March that this US investigation is still on foot, despite Manning now being in the third year of her sentence.
But if that seems like a conspiracy theory, it gets better: in October, it was revealed via freedom of information laws that UK prosecutors had urged Ny not to interview Assange in the UK, even before he sought refuge with the Ecuadoreans. “I suggest you interview him only on surrender to Sweden,” prosecutor Paul Close told Ny in 2011. He was concerned that the interview might suggest Assange was innocent.
So despite the serious allegations the UK government said Assange faced, its prosecutors didn’t want him interviewed by the Swedes about them.
Meantime, the Australian government had said nothing. Julie Bishop was happy to use Assange to criticise the Gillard government but since becoming Foreign Minister has barely mentioned him.
If the plan was to use a sexual assault allegation — one prosecutors refused to investigate, one described by one of alleged victims as invented by police — to nullify WikiLeaks even if Assange avoided being extradited to the United States, it’s only partly worked. This year WikiLeaks has had its best year since 2010, releasing, inter alia, repeated iterations of chapters from the Trans-Pacific Partnership, a vast accumulation of diplomatic cables from the monstrous Saudi Arabian regime, emails from CIA director John Brennan’s unauthorised personal email account, more revelations about National Security Agency surveillance targets, the text of the secret Trade In Services Agreement draft and details of the NSA’s massive spying on French presidents, which infuriated the government of Francois Hollande.
Even so, Assange remains confined on the basis of very serious allegations, with the Swedish and UK governments apparently keen to ensure they are never properly investigated, while his own government would prefer that Australians forget about him entirely.
Correction: the article originated stated that in 2010, Marianne Ny declined a request from Julian Assange to be interviewed while he was still in Sweden because she was ill; in fact, it was because one of her staff was ill. The article has been corrected and a link to the source added.
Aug 14, 2015
The statute of limitations has expired on three of the accusations facing Assange, but one remains. But Crikey's writer-at-large raises serious questions about the circumstances around that charge ...
With a leap Assange was free … not. The founder of WikiLeaks, who has been holed up in the Ecuadorian embassy in London on political asylum from UK extradition to Sweden, has passed an important milestone. Three of the four sex-crime accusations against him have lapsed due to a five-year statute of limitations. The Swedish prosecutor Marianne Ny has issued a statement saying that the prosecution on these counts has been discontinued, which makes it sound like an active decision (and thus has it been reported round the world), when in fact the prosecution has simply ceased to exist, the clock having run out.
Assange came to police attention in August 2010, after going to Sweden to deliver a lecture to a leftist Christian group within the Social Democratic party. A week after his arrival, two women with whom he had had sexual encounters made inquiries with the police as to whether he could be compelled to take an STI test, based on his reluctance to wear a condom.
A duty prosecutor opened a case for “third-degree rape” and “harassment” (ofredande) based on these interviews, but the rape accusation was thrown out by a senior prosecutor 24 hours later, who said that Assange had no case to answer. The two women, now complainants, then acquired as a lawyer Claes Borgstrom, a former gender equality minister, to appeal the decision not to prosecute.
The rape prosecution was reinstated for complainant B, Sofia Wilen, Another accusation — sexual coercion — was added by complainant A, Anna Ardin. Assange stayed in Sweden for several weeks and was interviewed once by police, with no follow-up from authorities, before he returned to the UK to launch the massive Cablegate archive with The Guardian and The New York Times. At that point, Sweden began to seek his extradition.
With a bevy of lawyers including Geoffrey Robertson, Assange fought extradition for months, arguing that Sweden could — and did in other cases — interview accused persons out-of-country, and pointing out that Sweden’s system of compulsory remand for felony accusations would leave him open to extradition to the US on espionage charges. In June 2012, when all appeals failed, he walked into the Ecuador embassy and was given asylum by the leftist Correa government.
Over the months and years, the lurid details of the case became visible, showing either a full-court press to have Assange in an orange jumpsuit, or a shambles, or both. The complainant of “minor rape”, Sofia Wilen, was a student who had crashed Assange’s insiders-only lecture. The accusation of rape hinged on a passage in her police record in which she said that Assange had initiated unprotected sex with her while she was still asleep, which she consented to some seconds after initiation — this taking place the morning after consensual sex the previous night.
Ardin had had sex with Assange the night of his arrival in Sweden, as she had lent him her apartment, and then come back early from political campaigning out of town. Her initial accusation was that Assange had made two unwanted sexual advances to her in the days following, after she had made it clear that she no longer wanted to have sex with him but that he was welcome to continue to share her studio apartment and bed. The third accusation — of minor sexual assault — was added only after Wilen’s rape prosecution had been thrown out and appealed. It centred on Ardin’s accusation that Assange had torn off a condom during sex, after she had insisted he wear one.
It’s the three accusations by Ardin that have now lapsed, leaving her no longer party to the prosecution. However, the minor rape accusation has another five years on the books. Initially Assange supporters hoped that this accusation too could be dismissed. Wilen, the complainant, had initially told police that she had never wanted Assange prosecuted, and she had been hounded into going to by people around her — Ardin had taken her to a police station where a friend of Ardin’s was a duty officer. The duty officer was later reprimanded for posting “prosecute Assange” messages on her Facebook page.
The prosecution was further complicated by proof that Ardin had attempted to destroy evidence — two tweets that showed she was well-disposed to Assange days after the alleged sexual assault — evidence from friends of Wilen’s that she had remarked/joked about making money from the accusations, and Ardin’s production of a torn condom one week after prosecution was reinstated (and more than a fortnight after the sexual encounter in question), on which no DNA could be found.
The accusations came at the height of Assange’s visibility, and public support for WikiLeaks’ release of the Cablegate files — nearly 250,000 diplomatic cables showing US manipulation and interference in dozens of countries, leaked to WikiLeaks by US military communications grunt Chelsea (then Bradley) Manning. The accusations split mass support for Assange — on the left and across to the centre and libertarian right — right down the middle. His reputation was further damaged in the English-speaking world by a report on extradition proceedings by The Guardian, after WikiLeaks and the paper had discontinued their association with each other. Based on a leaked copy of the police report, the article (which your correspondent filleted at great length in The Monthly) constructed the rough consensual foreplay reported by Ardin as coercive, even though Ardin was not making a complaint based on that part of the encounter. And it omitted the final part of Wilen’s testimony, in which she breaks down and claims that she never wanted Assange prosecuted, and that she had been “railroaded” into it by the people around her.
But Assange has also been to a degree less-than-well served by some of his most defenders, such as John Pilger, who have repeatedly refused to go into the details of the accusations, or to foreground The Guardian‘s major role in damaging the reputation of their former co-publisher. This refusal to make clear how far the accusations fall below any reasonable standard of rape has given the impression that Assange has no requirement to answer accusations because he’s Julian Assange. He has no need to answer the accusations because they’re the product of a Swedish state process that has made all shades of consensual, if misjudged or jerky, sex, liable to prosecution.
The discontinuation of the prosecution based around Ardin’s accusations has not got Assange out of the cross-hairs. In the years since, Wilen’s attitude appears to have hardened. She has sacked Borgstrom as her lawyer and engaged a feminist law firm that specialises in trafficked women and honour killings. Several months ago Sweden agreed to interview Assange at the Ecuadorian embassy on this continuing accusation, but talks between Sweden and Ecuador broke down on the details. The UK has refused to allow Assange to travel to Ecuador from the embassy.
And there it rests — until the next shocking revelation. Or 2020 …
Jun 22, 2015
Julian Assange has revealed a lot that powerful governments do not want us to know. But what should be made of the rape allegations against him? PhD candidate and former UN adviser Felicity Ruby explains.
Julian Assange has now been living in the Ecuadorian Embassy in London for three years. WikiLeaks has revealed a lot that powerful governments do not want us to know. But what should be made of the rape allegations against him?
WikiLeaks’ disclosures have been devastating. For the naked government and corporate emperors caught stealing and lying, theirs is the devastation of losing power or acute embarrassment. For citizens unable to seize back illusions, theirs is the devastation of knowing that governments suppress truths, routinely lie and manipulate even more than previously imagined.
The most cynical and conspiratorial among us have found devastating detail to justify further re-examination of our belief systems, trust in leaders, our governments, their pretexts and execution of wars with corporate partners.
WikiLeaks’ disclosures about the distortion and manipulation of UN process, including the theft of biometric data of UN personnel, have shown why diplomacy at the UN has so often failed; the institution has been corrupted, infiltrated and attacked.
I suspected this when I worked at the UN. Now I know.
But as a feminist and a rape survivor, it’s the debate about feminism, WikiLeaks and Assange that has continued to disturb me the most.
The use of feminist goals and principles to attack WikiLeaks has amplified my devastation not only because WikiLeaks has provided the peace and women’s movements with many gifts — troves of evidence, example after example of the crimes and culture of militarised masculinity on the battlefield, in the board room, in the embassy.
I would be less worried if the epidemic of violence against women were being addressed as athletically by governments, the media, courts and police as it is in Assange’s case, if arrest warrants and manhunts were occurring with quite the same fervour.
Because they are not, I don’t find this selective and concerted effort on one man to be a feminist victory. Rather than “something being better than nothing”, selectivity damages and delegitimises real efforts to address violence against women.
Instead of a feminist victory, I see the violations we named and the laws and standards we agitated for being cynically used by forces that are not feminist to try to shut down WikiLeaks, to punish the organisation for revealing the truth about war, corruption and the ineptitude of governments.
This is not an investigation of alleged sexual offences in isolation.
This case started one month before a Swedish election, and several Swedes involved in the case are prominent members of one party.
The case also started within the eight to nine weeks between the release of the Afghan and the Iraq War Logs when the US government was aware that Assange was walking around with access to 251,000 diplomatic cables with intent to publish.
This case started when there was a 120-man Pentagon task force in operation.
I’ve read everything to do with the allegations — the good, the bad and the ugly — and it seems to me that:
- Both women had consensual sex with Assange — quite a lot of it. Neither claims they said no or showed or demonstrated non-consent. That matters a lot, as it happens. Failing to see the difference between what happened and rape insults rape survivors and fails to recognise a continuum of violence that places consensual sex, failure to use a condom and rape in fundamentally different frames.
- The senior prosecutor, Eva Finne, took on the case but then dropped the investigation not because she didn’t believe the women — she did — but because she said from the alleged conduct there was no indication of criminality.
- One of the women has stated that she felt “railroaded” and has refused to have anything to do with the case. It appears the women have essentially lost any agency; they were not pressing charges; their inquiry to police was about STD testing. If the women were pressing charges and calling for feminist solidarity, it might make sense to offer it. In this case, it doesn’t, because they are not.
- Isn’t justice delayed justice denied? Wouldn’t it have been in the interests of the women, justice and feminist aspirations in this area for the investigation to have involved swift questioning of Assange when he was in Sweden and making himself available for just this? Why have means routinely used under the mutual legal assistance procedures such as questioning in an embassy or by phone or video link still not been used?
The UK Supreme Court has ruled that any person in the UK can now be extradited to anywhere in Europe by any partisan prosecutor, without charge, without having to show any evidence and without proper judicial oversight. I find that as frightening as I do the potential of Assange finding himself temporarily surrendered to the US while his government looks the other way.
I hope that my feminist friends and colleagues think more about what is happening here — not only in terms of the cause but also how our movement is being used. If the world is not safe for an organisation like WikiLeaks to provide some of the most devastating revelations — including about militarised masculinity and its routine abuse of women and civilians in war — then it is not safe for any of us, least of all feminists.
Nov 3, 2011
Sitting at the Royal Courts of Justice, the appeals court dismissed all four separate arguments made by Assange’s legal team, thus committing him to extradition to Sweden, should the Supreme Court refuse to review the appeal.
WikiLeaks editor-in-chief Julian Assange has lost his appeal against extradition to Sweden for further questioning on four allegations of s-xual misconduct and third degree r-pe.
Sitting at the Royal Courts of Justice, the appeals court dismissed all four separate arguments made by Assange’s legal team, thus committing him to extradition to Sweden, should the Supreme Court refuse to review the appeal.
Assange’s team has 14 days to request a review. His bail conditions requiring him to live at Ellingham Hall, home of Captain Vaughan Smith, owner of the Frontline Club, have been continued.
Extradition to Sweden would take Assange from an open-court, jury-based system, to the Swedish closed-court system run by judges alone, a process that many have argued falls short of European standards as set out by the ECHR. Geoffrey Robertson, part of Assange’s initial defence team, and still advising him in an informal capacity, today repeated his call for “the Australian government to make representations to Sweden to ensure that Assange gets a fair trial”.
Assange’s team argued that the law that triggered the extradition process was not issued by a competent authority in Sweden, that three of the four accusations were not crimes in Britain, hence not subject to double criminality, and that the fourth, “third degree r-pe/indecent assault” was not a “framework” offence, that the law (i.e. a European arrest warrant) was being used as a fishing expedition without a crime, and that the issuing of the law was disproportionate when questioning could have occurred by phone or in Britain.
In its full judgment (available here), the court dismissed all four arguments, a serious set-back for Assange and team. On the question as to whether or not the Swedish prosecutor was a competent authority, it noted that non-British court justice systems have a closer relationship between executive and judiciary — but that in any case the accusations had been reviewed by a district court before the EAW was issued.
On the second matter — whether the accusations amounted to actual crimes in Britain, or crimes that authorise unilateral extradition — the court concluded that they clearly were, and that no consideration of the Assange team’s more complex defence — that the allegations were misdescribed, based on complainant statements — was required. However, they desired to consider them anyway, and rejected that argument as well (even had they accepted it, it would not have been binding).
The “fishing expedition” argument was also unsuccessful — the Assange team had argued that for an intended extraditee to be “accused” as the warrant stated, an actual prosecution was required to have been started. The court concluded that though there is no clear definition of what “accused” means, a statement of intent by the Swedish prosecutor — that Assange was wanted for questioning with the intent of prosecution — satisfied the condition.
Finally, the question of proportionality — whether an EAW was manifestly over-the-top for what was required (in this case, questioning) — was dismissed in a few paragraphs, the court noting that it is not a legal requirement for the extraditing authority to be proportionate, and that, given the contestation of an arrest warrant, the Swedish prosecutors’ act wasn’t disproportionate anyway.
Were Assange to decline to challenge the ruling, he would be removed to Sweden within 10 days. To contest it is no straightforward matter. He must now petition for his case to be awarded a “certificate of general public importance” by the court, a hearing on which will take place in 21 days (should he proceed). The certificate will be awarded should his lawyers successfully argue that an issue associated with the case is of public interest, and will have consequences for citizenship, justice, etc, beyond this initial case.
On the face of it, that’s a slam-dunk. Assange’s case has become one of the most high-profile challenges to the automatic application of EAWs, and the manner in which a warrant has been enacted on a prosecution that the Swedish prosecution service has already discontinued once, should be a matter of interest. Yet, on the other hand, most of the issues raised by Assange’s defence against extradition have already been dealt with in precedent. It’s quite possible that the court could conclude that there is no novel point of law of public interest that would warrant a referral onto the Supreme Court.
There are numerous areas where one could object to the whole EAW process — the manner by which a complete prosecution case can be introduced for example, with the defence having little capacity to foreshadow its case in any meaningful way. One legal expert argued that Assange had missed his best chance by abandoning an earlier line of defence, centred on the combination of negative Swedish publicity and the closed-judicial system in Sweden: “no British court would send someone to a system where a judge and two ex-politicians — which is the Swedish system — decide the case in a closed court, if the system were made clear to them”.
Assange’s most recent defence didn’t go in that direction. But if there is a point on which the Supremes will take an interest, it will almost certainly be — or at least should be — objection one, that the Swedish Prosecution Service is held by the EAW to be a judicial authority. This was dealt with extensively with regard to case law on EAWs in the judgement, which eventually comes up with what would, in other circumstances, be a political bombshell:
This observation is in keeping with the principle of the EAW, but in doing so it is a fundamental breach, by virtue of the EU doctrine of “mutual recognition” of differing legal systems, of the Anglo-Saxon separation of powers. Though the various EU treaties acknowledge the idea of an independent judiciary, that concept has a very different meaning on the Continent than in the Anglosphere. In particular, the notion of a Continental-style “inquisatorial” judiciary, is quite distinct from the adversarial, Anglo-Saxon, one, in which there is a stricter separation of prosecutor and judiciary, and less of a notion that the judiciary somehow represents the collective will of the society.
There are arguments for and against both systems — and a string of injustices on both sides of the English Channel suggests that each could benefit from a dose of the other — but the signal fact is that such systems are seen in all countries as an expression of national identity, but especially in the UK. Rightly or wrongly, the British believe that a heritage from Magna Carta through the 1688 revolution has given them a uniquely just justice system — especially compared with the collective systems (many of them of recent derivation, from Napoleon) of Europe.
That’s what makes paragraph 41 so crucial. Because it elevates a recent imperative — European integration, as represented by the notion of “reciprocal recognition” of incommensurate justice systems — as an overarching principle, it effectively overrides the core of English law, to conform it to alien legal traditions.
This is the sort of thing that British eurosceptics — who recently staged a substantial rebellion on Europe in the Tory Party — usually get enraged by. Yet, curiously, the EAW attracts little Tory angst compared to regulations on the straightness of bananas, or elf and safety regulation, etc. The reasons are not hard to find. Most people being shuffled around via EAWs are from “the criminal classes”, — Poles who’ve done a runner on dodgy loans in Pflfft, etc. When it’s Brits being hauled overseas, it is often as not politically unconnected types who’ve king-hit someone on a tourist holiday, or financial spivs who’ve been pinged by foreign financial authorities.
Yet the unlimited extension of the EAW represents the greatest challenge to national sovereignty — and ultimately to democracy — contained within the EU project. Indeed, in its own way it is more far-reaching than the euro. As Geoffrey Robertson notes, “the principle of the EAW is that extradition from the UK to Sweden should be as straightforward as extradition from NSW to Victoria …” One might add, to hammer home the point, from the UK to Romania, or rural Portugal to Finland, and so on. The EAW makes absolutely no allowance for many of the considerations that one entered into an extradition request — the question of defending oneself within a foreign legal system and language, isolation from support networks, and the residual misoxeny of national populations.
Why aren’t the British eurosceptic Right more exercised in this case? In part, of course, it is the identification of Assange with the Left, and the general impression that he is not sound on notions of national loyalty. Yet it may be with the Tory Right that Assange’s fate lies. If this group can be mobilised on the Right, as the radical Left has already been mobilised, then it may be possible to create a degree of oomph in the UK around the sudden and dramatic extension of trans-European non-state policing.
It is worth remembering that, by the end of November, Assange will have spent a year either in remand or bailed to house curfew with an electronic tag — the maximum amount of time he could have been jailed were he to be charged and convicted on the accusations made. He will need to turn this predicament into a wider cause in the next couple of weeks. Otherwise, the grey blur — now sporting a TISM-era mullet — may have to develop again a taste for smorgasbord.
Nov 2, 2011
By the end of November, Julian Assange will have spent a year either in remand or bailed to house curfew, with an electronic tag – the maximum amount of time he could have been jailed were he to be charged and convicted on the accusations made.
WikiLeaks editor Julian Assange has lost his appeal against extradition to Sweden for further questioning on four allegations of sexual misconduct and third degree rape.
Sitting at the royal courts of justice the appeals court dismissed all four separate arguments made by Assange’s legal team, thus committing him to extradition to Sweden, should the Supreme Court refuse to review the appeal.
Assange’s team has fourteen days to request a review. Assange’s bail conditions requiring him to live at Ellingham hall, home of Captain Vaughn Smith, owner of the Front Line Club, has been continued.
Assange’s team argued that the law that triggered the extradition process was not issued by a competent authority in Sweden, that three of the four accusations were not crimes in the UK, hence not subject to double criminality, and that the fourth, third degree rape/indecent assault was not a ‘framework’ offence, that the law (ie a European arrest warrant) was being used as a fishing expedition without a crime, and that the issuing of the law was disproportionate when questioning could have occurred by phone or in the UK.
The court dismissed all four arguments, but reasons were not given in court. The full judgement is available on the royal court of appeal website – case co/1925/2011.
Assange was committed to extradition in February of this year, and has been resident at Ellingham Hall since December 2010. His team have not yet issued a statement as to whether they will seek a review. They have fourteen days to do so, and it would be made by a review in open court.
By the end of November, Assange will have spent a year either in remand or bailed to house curfew, with an electronic tag – the maximum amount of time he could have been jailed were he to be charged and convicted on the accusations made.
The hearing on the right to appeal will be heard in twenty one days. If successful, the case then goes to the Supreme Court — ie into 2012.
Jul 14, 2011
Two justices, representing the near-pinnacle of English law have spent a more than a day considering the details of two one-night stands and a tackle rub undertaken nearly a year ago in a faraway city.
Older readers, very older readers, OK, dead readers may recall the humorous column “Beachcomber“, which ran in the Daily Express for many a decade, famous for Dr Strabismus (whom God preserve) of Utrecht, and transcripts of high court proceedings under Mr Justice Cocklecarrot, whose attempts to get to the bottom of a suit involving the Plaza Hotel and the Persian Filthistan Trio who specialised in the human see-saw in their foyer. These were stories that would run for up to a dozen, admittedly not very funny, episodes.
Proceedings in WikiLeaks founder Julian Assange’s third extradition hearing would, if reports are to be believed, fit right into the Beachcomber oeuvre. For two days, two Justices have been sitting to hear Assange’s appeal against an order to extradite him to Sweden, made in February.
These august personages, representing the near-pinnacle of English law, have spent a more than a day considering the details of two one-night stands and a tackle rub undertaken nearly a year ago in a faraway city.
They have considered the mechanics of condom application, of the possible retroactivity of consent after being penetrated while asleep, or half-asleep, and of how much swing-room a man in the full flush of enthusiasm may be permitted in a single bed — all of this bound up with a series of arguments about the provenance of a European Arrest Warrant, and comparative European legal systems.
They have now reserved their judgment for another month. And if the loser from that decision can find a point of law, the case will go to the UK Supreme Court — and would have gone to the Law Lords, if it hadn’t been for the spoilsports in New Labour, with their new-fangled separation-of-powers nonsense.
Assange surprised everyone in the weeks leading up to this hearing by changing his legal team, replacing lead solicitor Mark Stephens and barrister Geoffrey Robertson with a team led by human rights supremo Gareth Pierce (who is, of course, a woman), with barristers Mark Summers and Ben Emmerson. No one is saying anything about the reason for the change-over, but one clear purpose of it has been to change tack — the earlier attempt to resist extradition had linked a passage to Sweden with eventual extradition to America, and played up some of the harsher aspects of Swedish justice — in-camera trials for s-x crimes, absence of bail, allegations of systemic bias and the like.
These have been largely discarded by the new team, who have focused on the more mundane question of whether the European Arrest Warrant by which extradition is being sought had been properly issued, whether the crimes of which Assange is accused (but not charged with) are extraditable offences in the UK, and whether there is even a case to answer in Sweden.
It’s the last of these that sent the court into yet another raking over of the nights that Assange spent with Anna Ardin, the left Christian/bis-xual/Middle-East activist/animal rights campaigner/fetish club proprietor who had been organising a speaking gig for him in Sweden, and Sofia Wilen, a young, mildly besotted student, whom Ardin contemptuously dubbed “pink cashmere sweater girl”.
Assange’s encounter with the latter involved morning s-x, which Wilen claimed was initiated while she was asleep, and without a condom, which she had previously made clear was a condition of entry. By Wilen’s account, she consented to the s-x pretty soon after it had begun, and by the accounts of friends she had spoken to of the incident after, she had claimed to be only “half-asleep” at the time. Wilen decided to go to the police a few days later, having tried and failed to get in touch with Assange to ask him to take an STI test.
Ardin had had a one-night stand with Assange a few days earlier, the night he moved into her flat. She went to the police with Sofia, after the latter had contacted her. At the time, Ardin’s allegations warranted only two accusations of misdemeanour “annoyance” — the deliberate tearing of a condom, and an uninvited Johnson rub a few days later.
However, when Wilen’s r-pe accusation had been dumped by the prosecutor and then reinstated by another prosecutor two weeks later, Ardin had added another accusation — that of s-xual coercion, alleging that Assange had physically prevented her from applying a condom.
Arguing the minutiae of this in a British appeals court has brought to the surface one big truth about s-x crime law across Western countries, and that is that no one really knows how the laws work at their boundaries any more.
Assange’s team argues that “s-x while sleeping” with a previously consenting partner doesn’t count as a crime in the UK, even if a wish concerning a condom has not been honoured. If there is no “double criminality” — i.e. in the UK and Sweden — then the warrant cannot be served. Continue reading “The madness of Assange’s third extradition hearing”