Amidst the cacophony of war crimes and crimes against humanity in Libya perpetrated by forces loyal to Muammar Gadaffi - which this writer finds unbearable - (and for which the command principle at least holds him ultimately responsible) including murders, torture, bombing and artillery destruction of civilian infrastructure and the like, the case of Eman al Obaidi stands alone as one of particular importance as well as nauseating repugnance.
Firstly we must acknowledge the presumption of innocence within the particular context of Eman’s allegations. This was brought to my attention by a tweet from Bianca Jagger who said on 28th March:
I have the most enormous respect for Bianca Jagger and found her vehement statement on this matter appropriate on the face of the circumstances in the arena of probabilities but not necessarily in the arena of presumptive law. In one respect the presumption needed further explanation: the LA Times headlines clearly were missing some nuance in that their traditional headline using the word ‘alleged” implicitly acknowledged the presumption, but they erred in not commenting contextually – the probability arena.
Update: Complete edited podcast is now posted for listen and download
Last week, “This Week in WikiLeaks” took the week off. The host Kevin Gosztola participated in a WikiLeaks panel at the Left Forum in New York City. I appeared with Danny Schechter, who can be found at MediaChannel.org.
The panel looked at what has been revealed by WikiLeaks and had extra significance as it happened right around the eighth anniversary of the Iraq War. Audio of my presentation and Schechter’s presentation will be posted as a podcast episode soon.
Regular scheduled programming resumed last weekend. The show’s guest was Trevor Timm, the person behind the Twitter account @WLLegal. Timm recently helped to make possible a great Personal Democracy Forum event called, “WikiLeaks & the Law.” [Go here for video of the full panel.]
The podcast is now edited and can be listened to by clicking on the widget below:
A whole new avenue of the Wikileaks story opened up in late November, early December 2010 when the Prime Minister of Australia said the following about Julian Assange:
It’s a grossly irresponsible thing to do and an illegal thing to do.
This writer took umbrage and responded with a letter posted here on 4th December 2011. Many others were outraged and spoke out.
Immediately prior to that, on 29th November 2010 the Federal Attorney General Robert McClelland had said:
From Australia's point of view we think there are potentially a number of criminal laws that could have been breached.
A defence taskforce which had been monitoring Wikileaks would become a "whole-of-government taskforce", Mr McClelland said.
According to the Sydney Morning Herald today 12th March 2011:
The Australian government discussed the charge of treason - the most serious of federal offences and one that carries a mandatory life sentence - when it examined the WikiLeaks matter last year.
The advice, in a departmental briefing for the Attorney-General, Robert McClelland, was among several documents published yesterday by the department in response to Senate estimates questions.
It was provided by a senior officer in the Attorney-General's Department in September, after WikiLeaks published 90,000 US military reports filed during the war in Afghanistan.
Julian Assange has lost the case at the extradition hearing. Full ruling here in PDF. While this writer expected considerable difficulty for Assange's case on count 4, Chief Magistrate Howard Riddle found all four counts to be extraditable. More on that and his findings for another day.
An important first point is that this extradition finding should not be misinterpreted as some species of proven guilt. Julian Assange is still presumed innocent until proven guilty by a proper trial process. The extradition process and appeals to follow in the UK are not that trial process.
The European Arrest Warrant system is flawed and has again been used by a signatory nation to the Framework Decision 2001 (PDF) without having to prove the strength of the prosecution case.
At the final day of the extradition hearing on 11th February 2011 SC Montgomery from the Crown Prosecution Service, acting for the Swedish prosecution authorities, made what this writer considers to be some extraordinary submissions. One of them was directed personally at Robertson and was simply unacceptable, if, and I believe it to be so, that the tweeter @federicacocco correctly recorded it:
Robertson SC has every right to report her to the Bar Council of England and Wales. It was uncalled for and unhelpful to the case and one can’t help thinking of automatic adverse inferences on both counsel and his client, the respondent/defendant Julian Assange which would have been aggravated if there had been a jury involved.
Perhaps I’m wrong and the English bar allows practitioners to insult each other at the bar table in such fashion but I rather doubt it.
The following is a reconstruction of the Julian Assange extradition proceedings on 11 February 2011 based primarily on the tweets of @federicacocco (Federica Cocco) and in much smaller part from the tweets of @channel4news. WL Central acknowledges those sources. The tweets have been preserved as much as possible and combined but are rewritten in parts for clarity, and legal terminology has been inserted where appropriate. Clarifying additions are generally in italics and may be assumptions within the legal context.
SC Robertson’s Submissions.
Robertson QC opens submissions with an account of the attack on Julian Assange by Fredrik Reinfeldt, prime minister of Sweden; Robertson says that Reinfeldt's comments earlier this week amount to his labelling Assange an "enemy of the people" in Sweden.
"This will influence a fair trial,” says Robertson, who quotes the prime minister as claiming that Assange and his lawyers are “sexist and condescending to Sweden."
The Swedish chancellor added to the prime minister's remarks, which Robertson says is an intolerable development; he adds that it is unprecedented for a government minister to comment in that way.
The Australian attorney general's response to an open letter to the Australian Prime Minister Julia Gillard re Julian Assange
From the Guardian's timeline, rewritten for chronology and with legal terminology:
The hearing opened with Clare Montgomery QC, for the Crown Prosecution Service on behalf of the Swedish authorities. Opening submissions are that the Swedish prosecutor, Marianne Ny, is asserted to be an issuing authority for the purposes of a European Arrest Warrant (EAW).
In relation to the offences, the court decides that the alleged victims are to be called Woman A (three counts of sexual assault alleged) and Woman B (one count of r*pe alleged)
Ms Montgomery says the matters are extraditable offences because the definitions in the two countries are the same. "Mr Assange had sexual intercourse with her and exploited the fact that she was asleep." This is submitted to be an offence under English law. In relation to Woman A there are three counts of sexual assault "without consent" and again contrary to English law.
Julian Assange appears tomorrow, 7 February, at Westminster Magistrates Court for what has been announced as a two-day hearing, but judging from past extradition hearings in the UK, it is likely (with appeals) to take much longer, even a year or more, with the second-last word being that of the Supreme Court (formerly House of Lords) and then, under certain circumstances, the last word from the Home Secretary.
Readers should note that the procedure is not to judge the actual case on its merits as a criminal procedure but to judge it according to relevant sections of the UK Extradition Act. Such evidence of the alleged offences that has surfaced is only relevant indirectly, such as to prosecutorial abuses, not to the arguable merits of that evidence and a future case in Sweden if extradition occurs.
The Skeleton Argumentbegins with a challenge to prosecutor Ms Ny’s authority to issue an European Arrest Warrant (EAW). The case of Enander v. The Swedish National Police Board [2005] EWHC 3036 (Admin) is cited; it states that only the Swedish National Police Board is the authorised authority.
We owe a huge debt of gratitude to Wikileaks, not only for the exposure of the lies and deceptions of various world powers, not just for exposure of the inner workings and chicanery of state institutions and corporations, their hypocrisy and double dealings, but also for what follows in future: the advancement of human rights for all, and a major corollary of that, the increased potential for prosecution of those who have prima facie cases to answer for breaches of human rights.
Firstly some analogies with theoretical physics.
For theoretical physicists like Lawrence Krauss, (whose understandable scientific explanations of the universe leave this writer in awe), supernova are useful as standard candles …for which the intrinsic brightness, the absolute magnitude, is known. This allows the object's distance to be measured from its actual observed brightness, or apparent magnitude. With distance and the amount of spectrum “redshift” the expansion of the universe can be measured, and its present acceleration.
If I may draw an analogy, for those concerned about human rights, Wikileaks is akin to a supernova, it is our “standard candle,” so to speak. Not only is it an additional and great illumination for breaches of our measurable “universal” human rights but it has created a new standard for real journalism and in so doing has motivated the world in moral and legal outrage to a significantly higher plane. It has struck a chord with so many, in so many dimensions all over the world. It is difficult to quantify those dimensions, but the human rights aspect of it is not only real but palpable.
We are indebted to Julian Assange who apparently instructed his counsel to make available the "Skeleton Argument" for the extradition hearing proper.
It was expected, per my previous post Extradition Part 3 that the issue of extradition (and arrest) for the purposes of investigation only, would be a highly significant issue for the extradition arguments, and so it was.
One part of that document however that shocked me, that I have discussed with colleagues (likewise shocked) was paragraph 88, the legal implications of which I was unaware. It now seems that some (or indeed all?) of the prospective charges of a sexual nature in Sweden do not have as a required element that the prosecution must prove (for a conviction to be sustained) the element of mens rea, the "guilty mind" otherwise known as the fault element.
Common law conspiracy is an agreement by two or more to do an unlawful act, or to do a lawful act by unlawful means. The actus reus (guilty act) is the agreement itself. The mens rea (guilty mind) is the intention to carry out the unlawful act. Another way of putting it is that there must be a "meeting of the minds" to commit the unlawful act.
It does not matter that the conspiracy was not carried out, liability for common law conspiracy arises simply from the the agreement.
It goes almost without saying, that to avoid First Amendment protection of a hypothetical Espionage case (and I will leave those arguments to US constitutional lawyers), conspiracy appears to have a much greater prospect of success for the DOJ,
Further to my open letter on those inciting murder upon Julian Assange, this op ed style post again responds to those who say that Julian Assange should be kidnapped, executed, murdered or otherwise be "whacked", to use a favourite Hollywood gangster expression. It is a much expanded variant of the open letter to the inciters at Wikileaks Central.
The CIA and/or US military forces have been invoked by some, as the agents who would carry out such extra curial "services" of which it must be said, such actions both incitement and carrying the incitement out, are undoubtedly unlawful. Doubtless the early December Assange-illegal-posturing Prime Minister of Australia would not officially, take kindly to the latter course of action.
The web roll of inciters or borderline inciters is growing.
Extradition 3
Backtracking a little from the UK’s Extradition Act (in the Extradition 1 post) it is necessary to understand that the origin of that legislation comes from the European Arrest Warrant (“EAW”) regime in turn based on the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States.(Pdf)
It is also necessary to understand that where interpreting legislation like the UK’s Extradition Act (that will be applied in Assange's hearing) and if finding ambiguity or uncertainty, resort can be made--ordinarily to parliamentry second reading speeches in countries like Australia for example
—to examining, in this case, that very document of the Council Framework Decision.
The Preamble to the Council Framework Decision states in part:
The Guardian reports on Julian Assange's views on a prospective extradition request from the USA while he is in the UK in an ongoing Swedish extradition process.
Julian Assange said today that it would be "politically impossible" for Britain to extradite him to the United States, and that the final word on his fate if he were charged with espionage would rest with David Cameron.
In an interview with the Guardian in Ellingham Hall, the Norfolk country mansion where he is living under virtual house arrest, the founder of WikiLeaks said it would be difficult for the prime minister to hand him over to the Americans if there was strong support for him from the British people.
"It's all a matter of politics. We can presume there will be an attempt to influence UK political opinion, and to influence the perception of our standing as a moral actor," he said.
It's taken a while before some detailed information has come to light on the arguments presented by prosecutor and defence at the bail hearing yesterday.
The Telegraph reports:
http://www.telegraph.co.uk/news/worldnews/wikileaks/8202524/WikiLeaks-Ju...
Earlier, during the two hour long hearing, the court was told that the “strength” of the evidence was poor.
His legal team argued that particularly the rape allegation was wrong and if the case was tried in Britain the case would not be classified as such a crime.
This refers or alludes to, apparently, the rape allegation being in the nature of a relatively minor sexual molestation in which case it seems to me, it then doesn't fit within the 12 month European Arrest Warrant system requirement of an offence where the maximum sentence must be 12 months or more for extradition to be valid. If in the UK such an alleged rape evidence was prima facie (on the face of it) low category molestation, per UK law, attracting less than 12 months custodial sentence, then it would not appear to qualify as an extraditable offence.
INTERLUDE-BAIL APPLICATION 14/12/2010
The principles of bail in both English and Australian law are close. Without looking at bail legislation in the UK (no time sorry) these are most of the factors in NSW Australia that a court will consider in a bail application, with comments as to how they apply, or not,
Firstly there are the presumptions for bail, which have a set of legislated determinants which I won't go into but are an indicator of how a court will ordinarily look on a bail application from the outset. Defence makes submissions on presumptions, prosecutor might have a different view but most often agree on presumption.
OFFENCE: Circumstances of the offence, Strength of prosecution case, Likely penalty on conviction.
Only the strength of the prosecution case is really relevant here and while this is a factor for bail it is not a factor ordinarily for the extradition proper. (Will post on that later, an EU human rights "backdoor" might allow some of it through, per the UK Extradition Act.)
This is the first of a series looking into the extradition process by which Sweden is seeking to have Julian Assange extradited from the UK.
While I'm not a European lawyer, our Aussie system has a lot in common with the UK, which is logical since our legal heritage came from the UK.
Here's my take on a preliminary examination of legislation and it's application to the Swedish extradition application.
Firstly, there is the European Arrest Warrant system (EAW) by which signatory parties have a common warrant form in all the different languages which for the purposes of extracting relevant information (and not going through tortuous online translations from Swedish), I shall cite the UK version, but keep in mind it's the UK form designed for UK prosecutors to extradite from other category 1 territories.
That form template is here:
http://www.cps.gov.uk/legal/d_to_g/extradition/annex_b/
Scrolling down we find the following:
Statement
By Peter Kemp, Solicitor of the Supreme Court of New South Wales, on 2010-12-04
Dear Prime Minister
From the Sydney Morning Herald I note you made a comment of "illegal" on the matter of Mr Assange in relation to the ongoing leaks of US diplomatic cables.
Previously your colleague and Attorney General the Honourable McClelland announced an investigation of possible criminality by Mr Assange.
As a lawyer and citizen I find this most disturbing, particularly so when a brief perusal of the Commonwealth Criminal Code shows that liability arises under the Espionage provisions, for example, only when it is the Commonwealth's "secrets" that are disclosed and that there must be intent to damage the Commonwealth.
Likewise under Treason law, there must be an intent to assist an enemy. Clearly, and reinforced by publicly available material such as Professor Saul's excellent article:
http://www.theage.com.au/opinion/society-and-culture/dont-cry-over-wikil...
...Julian Assange has almost certainly committed no crime under Australian law in relation to his involvement in Wikileaks.
I join with Professor Saul also in asking you Prime Minister why has there been no public complaint to the US about both Secretaries of State Condaleeza Rice and Hillary Clinton being in major breach of International law ie UN Covenants, by making orders to spy on UN personnel, including the Secretary General, to include theft of their credit card details and communication passwords. Perhaps the Attorney General should investigate this clear prima facie evidence of crime (likely against Australian diplomats as well), rather than he attempts to prosecute the messenger of those crimes.
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