United Kingdom

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.

Le Monde: WikiLeaks dévoile aussi comment fut gérée la crise bancaire (WikiLeaks reveals as well how the banking crisis was handled)

A U.S. diplomatic cable in which figure Mervyn King, chairman of the Bank of England, Robert Kimmitt, then U.S. deputy treasury secretary, and Robert Tuttle, U.S. ambassador to Britain, has been released by WikiLeaks. It shows the players agreeing, March 17, 2008, on a diagnosis of the crisis, one that they admit ceased, from summer 2007, to be a liquidity crisis and that became instead a solvency crisis generalized within the banking sector. Although a view widely shared by commentators in the financial press at the time, it will reverse the diagnosis that these players have chosen to present to the public, a position from which they have never departed.

Cable

Read more (French)

UK Information Commissioner Christopher Graham is interviewed by the Guardian:

We are strongly of the view that things should be published. Where you're open things will not be WikiLeaked. Whatever view you take about WikiLeaks – right or wrong – it means that things will now get out. It has changed things. I'm saying government and authorities need to factor it in. Be more proactive, [by] publishing more stuff, because quite a lot of this is only exciting because we didn't know it. You can't un-invent WikiLeaks. WikiLeaks is part of the phenomenon of the online, empowered citizen ... these are facts that aren't going to go away. Government and authorities need to wise up to that. ...

One response is that they will clam up and not write anything down, which is nonsense, you can't run any organisation that way. The other is to be even more open. The best form of defence is transparency — much more proactive publication of what organisations do. It's an attitude of 'OK. You want to know? Here it is'.

The following Pirate Parties of Europe have issued a joint statement condemning all attacks on the infrastructure of Wikileaks and employees of Wikileaks.

- Pirate Party of Germany
- Pirate Party of France
- Pirate Party of Italy
- Pirate Party of Austria
- Pirate Party of Russia
- Pirate Party of Switzerland
- Pirate Party of Luxembourg
- Pirate Party of the United Kingdom

There is no doubt that Wikileaks is under continuous attack: threats from the Pentagon; calls by the old Republican right and the recently empowered Tea Party for a direct attack on what they have called a “terrorist threat”; the renowned boycotts by Paypal, Moneybookers, Amazon and now even Apple; the Australian government’s reticence to defend its citizen (Julian Assange); the rejection of Mr. Assange’s residence in Sweden for unexplained causes, and the list grows.

Now even though many voices have hinted, or even openly declared, that the rape charges against him are just another part of this campaign, because of its sensitive nature it is wiser not to hurry in our conclusions. What is clear though is that the constant irregularities at the heart of the case can make it questionable, which is why many of those voices are worried about the real motivation behind the accusations. Last August, in the middle of the political storm unleashed by the leak in July related to the war in Afghanistan, Mr. Assange was casually dating the liberal politologist and Swedish activist, Anna Ardin. According to her version of the story, he would have forced her sexually on the night of the 14th of that month, pressing charges around a week later.

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:

Bianca Jagger has written a long and detailed article in the Huffington Post condemning Nick Davies' recent article for the Guardian.

I object to the Guardian's decision to publish selective passages from the Swedish police report, whilst omitting exculpatory evidence contained in the document. ...

Assange has been criticized for not being willing to return to Sweden to prove his innocence. It is hardly surprising he has reservations, given Sweden's human rights record. ...

In the Today Show on December 21st, Assange revealed that Sweden has requested that if he returns and is arrested, he is to be held incommunicado, and his Swedish lawyer is to be given a gag order. ...

I suspect that what is on trial here is not Julian Assange's alleged sexual misconduct, but freedom of speech ....

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.

Read more

Ekklesia asks for support for twenty-four year old medic Michael Lyons. On 17 December he lost his appeal to be allowed to leave the Royal Navy on grounds of conscience.

When he heard reports about civilian casualties, including children, he made an effort to find out more about the situation. ''I was unable to find a real, just and noble cause to go out but I still had a sense of duty to my country,'' he explained at his hearing.

Then WikiLeaks revelations alerted him to the fact that civilian casualties were far greater than had originally been reported. “'Examples included a convoy of marines tearing down a six-mile highway, firing at people with no discrimination.”

What is more, despite being a medic, he might not be allowed to treat everyone needing his help, and might even be called on to kill: “It seems from previous testimony and courses I've done that even going out as a medic with all good intention, if you're at a patrol base or forward operating base, it's likely you'll have to use your weapon and will have to turn civilians away who are in need of medical aid."

For those wondering why data previously in a system which allowed close to one million authorized users, currently in a world where the citizens of almost every country can view it, is being blocked only from the people serving in the military it concerns, this could be the reason. Please support Michael Lyons.

Following the Crown Prosecution Service's decision to appeal the bail granted on Tuesday by the Westminster Magistrates' Court, another hearing will take place today at 11:30 GMT at the High Court.

Peter Alexander of NBC News noted on Twitter that "Assange lawyer says defense has collected $315K bail. He's free if appeal's denied." The court had requested on Tuesday that the full bail amount be presented in cash.

Journalists present at the court, including a team from The Guardian, report that Julian Assange and his legal team have already arrived at the court for the hearing, which is expected to take two hours. It is unclear at this point whether live updates via Twitter will be allowed from the courtroom, as was the case at Tuesday's hearing.

In the meantime, please don't miss Peter Kemp's continued legal analysis of the bail and extradition arguments: Extradition Part 2--Bail, and Bail Arguments and the Appeal.

Update 1: Justice Ouseley has ruled that no Twitter updates will be allowed from the courtroom today, reports The Guardian's Luke Harding.

Update 2: The Guardian's Luke Harding quoted Justice Ouseley as saying, "The history of the way it [the case] has been dealt with by the Swedish prosecutors would give Mr Assange some basis that he might be acquitted following a trial." According to Mr Harding, "the case is looking good" for Julian Assange.

Update 3: The prosecution's appeal has been denied, reports Channel 4. Julian Assange has been granted bail, on slightly modified conditions compared to those specified at Tuesday's hearing, namely additional sureties, reports Guy Rundle for Crikey.

The next extradition hearing will take place on January 11.

According to testimony at Tuesday's hearing, Julian Assange will stay at the estate of Captain Vaughan Smith, founder of the Frontline Club. You can read Mr Smith's exclusive piece in yesterday's Independent, explaining his support for Julian Assange and WikiLeaks, concluding: "If to fight for this country we will have to fight for its fundamental principles of justice then I declare my position in the ranks."

Update 4: Guy Rundle reports that hearing costs have been awarded against the Crown Prosecution Service.

Update 5: After the formalities were completed, Julian Assange was released today at 6pm London time. He gave a short speech on the steps of the High Court, thanking supporters, his lawyers, members of the press "who were not all taken in," and the British justice system. He called on people to support those facing conditions harder than he did in prison, and promised to continue his work and reveal the evidence behind the allegations.

A video of the statement is available via the New York Times.

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.

MONDE

Il s'en explique dans un édito publié, mardi, sur le Huffington Post...

Michael Moore est remonté, et il le fait savoir. Dans l'édito «Pourquoi j'ai payé une partie de la caution de Julian Assange» publié mardi sur le Huffington Post, il livre un long plaidoyer en faveur de WikiLeaks.

«J'ai versé 20.000 dollars (15.000 euros, sur une caution de 240.000 euros, ndr) et j'offre mon site Internet, mes serveurs, mon nom de domaine et tout ce qui pourra être utile à WikiLeaks pour rester en vie et continuer à révéler les crimes concoctés en secret et perpétrés en notre nom avec l'argent du contribuable», explique le cinéaste. Il indique que le réalisateur Ken Loach a fait de même. La libération sous caution a dans un premier temps été acceptée par le juge, mais le parquet a fait appel, au nom des autorités suédoises.

Selon Moore, la raison invoquée par George W. Bush pour aller en Irak (la présence d'armes de destruction massive) était «un mensonge», et «des centaines de milliers de personnes sont mortes». Il demande: «Imaginez si WikiLeaks avait existé à l'époque.»
La transparence, rempart contre la corruption

Le réalisateur de Fahrenheit 9/11 va même plus loin. Il estime que le 11-Septembre aurait eu une chance d'être évité si les mémos remis à Bush trois mois avant, alertant de «la détermination de Ben Laden à frapper les Etats-Unis», notamment via «des détournements d'avion», avaient été rendus publics.

Selon Moore, «l'ouverture et la transparence sont les seuls moyens pour protéger les citoyens de la corruption». Publier des documents confidentiels peut-il causer du tort à des négociations diplomatiques? «Peut-être, mais c'est le prix à payer quand le gouvernement déclenche une guerre sur un faux prétexte.»

Cyberguerre au nom de la liberté d'expression. Près de 200 activistes québécois auraient pris part dans les derniers jours aux attaques informatiques lancées contre les détracteurs du site de coulage d'information WikiLeaks et son créateur, Julian Assange. C'est du moins ce qu'a indiqué hier au Devoir un de ces pirates informatiques engagés, membre d'un groupe international baptisé Anonymous.

Julian Assange Bail Appeal Trial

Julian Assange appeared in court this morning to appeal the court's decision last week to deny him a release on bail. Live updates were provided by The Guardian. and live tweeting in the court on the #wikitrial hashtag. It was apparently the first time a UK judge had allowed live tweeting during a trial (according to tweets).

An earlier article in The Guardian stated:

Assange's lawyer Mark Stephens visited him in Wandsworth prison yesterday afternoon and said his client was being held under harsher conditions than last week. He claimed Assange was being confined to his cell for all but half an hour a day, and denied association with others prisoners, access to the library or TV.

"He's subject to the most ridiculous censorship," Stephens said. "Time magazine sent him a copy of the magazine with him on the cover and they censored it not just by ripping off the cover but by destroying the whole magazine."

Stephens also claimed a number of letters to Assange from media organisations have not reached him. He said Assange was under 24-hour video surveillance and had complained that a tooth which broke off while he was eating had later been stolen from his cell.

According to Stephens, Assange's UK legal team had still not seen the prosecution evidence against him. "His Swedish lawyers have some of the material but not all and it's in Swedish so we can't take proper instructions."

Besides the lack of evidence provided by the Swedish prosecution, a key point is the fact that the crime Assange is accused of is not a crime in the UK. For extradition to go forward, the crime must be of a serious nature in both countries. This time, Assange's lawyers also offered a permanent address in England and suggested electronic monitoring, a curfew and travel restrictions as alternatives to incarceration. Over £200,000 was offered in surety for bail and ten international public figures also offered surety.

The appeal was granted with the following conditions:

Assange's counsel pointed out that it was a huge bail amount to be paid in cash, and Assange did not have the option of using Mastercard or Visa. The prosecution immediately appealed the decision, so Assange was taken back to jail to await the appeal trial which must be held within 48 hours. More information can be found here.

Cyberguerre au nom de la liberté d'expression. Près de 200 activistes québécois auraient pris part dans les derniers jours aux attaques informatiques lancées contre les détracteurs du site de coulage d'information WikiLeaks et son créateur, Julian Assange. C'est du moins ce qu'a indiqué hier au Devoir un de ces pirates informatiques engagés, membre d'un groupe international baptisé Anonymous.

There may be many unintended consequences of the race to prosecute Julian Assange, the WikiLeaks founder. But as he faces extradition to Sweden, where he is accused of rape, one of the more eccentric side effects has already become clear: the rise to prominence of the European arrest warrant.

This legal instrument has been controversial since it was introduced in 2003, creating everyday injustices; but rarely has anyone outside the small group of lawyers that handles cases really cared. Now followers of the WikiLeaks story wonder how Assange could be extradited with so few questions asked. Why, for example, can our prisons detain someone (Assange is currently on remand in Wandsworth prison) for an offence under Swedish law that does not exist in British law? And how can a judge agree to an extradition without having seen enough evidence to make out a prima facie case?

The 2003 Extradition Act originated in an EU decision agreed just one week after 9/11. It was sold to voters as a way of ensuring cross-border cohesion in prosecuting suspects wanted across Europe for terrorism and serious crime. The level of cohesion in criminal justice systems across Europe, the argument went, and their common obligations under the European convention on human rights, provided a sufficient basis of trust that an arrest warrant by an EU country could be agreed by the UK with little scrutiny.

It's been downhill from there. Around three people per day are now extradited from the UK, and there is little to suggest that the majority are terrorists or serious criminals. In fact those involved in the process agree that many of the cases are "trivial".

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.)

New rallies in support of WikiLeaks and Julian Assange have been announced as follows. Please see our Events and protests section for a list of all current rallies.

GERMANY

Berlin: Thursday, December 16th, 7:00pm
Location: Technical University Berlin, Room EB 407 (Erweiterungsbau),
Straße des 17. Juni 145, 10623 Berlin
Event page: http://wsws.org/de/2010/dez2010/meet-d10.shtml

UNITED KINGDOM

Manchester: Wednesday, December 15, 3:00pm - 5:00pm
Location: Piccadilly Gardens, M60 1HX
Event page: http://www.facebook.com/event.php?eid=119100648155152

AUSTRALIA

Adelaide: Tuesday, December 14, 4:30pm
Location: Parliament House

[!] EVENT UPDATES

Please note that the date for the Montreal protest has been changed to December 18. Also, the time for the London protest at the Swedish Embassy on December 13 has been changed from 4pm to 2pm.

In an interview with The Daily Mail, Julian Assange's Swedish lawyer, Björn Hurtig, said that he had seen police documents that prove Mr Assange is innocent, and that the accusers had a "hidden agenda" when they went to the police:

"From what I have read, it is clear that the women are lying and that they had an agenda when they went to the police, which had nothing to do with a crime having taken place. It was, I believe, more about jealousy and disappointment on their part. I can prove that at least one of them had very big expectations for something to happen with Julian."

He has asked for the Swedish prosecutor's permission to disclose the evidence: "If I am able to reveal what I know, everyone will realise this is all a charade," he said. "If I could tell the British courts, I suspect it would make extradition a moot point. But at the moment I'm bound by the rules of the Swedish legal system, which say that the information can only be used as evidence in this country. For me to do otherwise would lead to me being disbarred."

Mr Hurtig added that he was ready to fly to London and present the evidence at the court hearing this Tuesday, if he was given permission. "That said, I’m convinced that as soon as the case is heard in Sweden it will be thrown out," he added.

You can read the full interview here.

Also, please do not miss Australian lawyer Peter Kemp's new post on the Swedish law and its implications in this case: Ignorance of the Law is No Excuse, But...., and part one of his analysis of the extradition case: Extradition Part 1.