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Assange case: it’s time for Gillard to ask Obama some important questions

When Obama meets Gillard today, one wonders whether Julian Assange will come up in conversation. In sharp contrast to Gillard’s personal offer of support to an Australian teenager arrested in Bali on drug charges, her actions with respect to the threat of Assange’s prosecution in the US for WikiLeaks’ publication of US diplomatic cables have been at best passive, at worst hostile. If freedom of the press and the protection of Australian citizens mean anything to our nation and our Prime Minister, then its time Gillard starts asking Obama some important questions.

The recent decision of the High Court in London to extradite Assange to Sweden, subject to one last possible appeal, means return Sweden may be imminent. In response to questions about the potential for his US prosecution, US Ambassador Susman told the BBC last December that the US will wait to see what happens in Sweden. At that same time, UK paper, The Independent, reported that Sweden and the US had already been in talks regarding arrangements for Assange’s extradition to the US. Understanding the content of those talks is more pressing than ever.

When Assange is extradited to Sweden, he will be placed in custody – likely incommunicado detention – pending charge and trial. His appeal lawyer, Gareth Peirce, asserts ‘the very real danger’ that once Assange is in Swedish custody the US will apply for his ‘temporary surrender’ for what are, at this time, unspecified charges related to the publication of documents by WikiLeaks. Under the US-Sweden treaty, the terms of surrender are by ‘mutual agreement’ between those two states. What role will Australia have – or has it had – in any such negotiation process given the serious consequences for an Australian citizen?

US constitutional experts have concluded that Assange, as editor-in-chief of WikiLeaks, is entitled to the full protection of the First Amendment. Nevertheless, grand jury investigations continue in secret session in Virginia, assessing what charges can be laid against Assange. Several WikiLeaks associates have had their Twitter accounts subpoenaed. Indeed, many have asserted a sealed indictment for Assange could have been issued already and may simply be held pending the most appropriate time to issue an extradition request.

Assange will suffer grave consequences if returned to the US. Many question whether he would receive a fair trial in a state where numerous high profile politicians, including a Presidential candidate, have called him a terrorist, an enemy combatant and called for his extrajudicial killing. Experienced US lawyers have expressed concern at the choice of Alexandria, Virginia as the location for the grand jury investigation and the jury catchment area for future trial, being as it is the ‘dormitory’ of the national security establishment.

One need only look to the treatment of Bradley Manning to reinforce these concerns. Manning has been held in conditions described as inhuman and degrading treatment and Obama declared him guilty of passing confidential information to WikiLeaks before he has gone on trial or been convicted. Leaving aside the politically charged circumstances in this case, other governments have initiated inquiries into all extradition to the US over concerns regarding coercive plea pressure, the excessive use of isolation in prison and the enormity of potential sentences. But what is the Australian government asking of the US and of Sweden in these circumstances? The threat of US prosecution of Assange is clear. The human rights and fair trial concerns in any such prosecution are also clear. What is not clear are what charges he will face or the terms upon which his extradition from Sweden will be granted.

Commentators had earlier dismissed arguments about the threat of onward extradition from Sweden arguing Assange’s extradition would be easier from the UK than from Sweden. Not only is this wrong, but it misses the point. The real question is not about the relative ease of extradition from different jurisdictions, but whether US extradition can happen at all – and on what terms.

As explained by former State Department legal advisor, John Bellinger, if the US issued charges against Assange while he remains in Britain it would result in “a complicated clash” between the respective Swedish and US extradition requests, putting the UK government in ‘a difficult position’. Under the UK Extradition Act, the Home Secretary would have had to decide which of the conflicting requests should be given priority, requiring an assessment of the relative seriousness of the offences and the timing of the requests. For this reason, Bellinger told Associated Press that the US would “wait to see if he is prosecuted in Sweden and then still seek his extradition.”

Once in Swedish custody, Assange is at risk of being surrendered to the US before he is charged and prosecuted in Sweden or after conviction while still serving sentence under a procedure known as temporary surrender.

The EU Council describes temporary surrender as facilitating ‘the orderly and efficient prosecution of a person sought in two jurisdictions by allowing the temporary transfer of the person… subject to conditions agreed to in advance’. The US Senate Committee on Foreign Relations states that temporary surrender provisions were introduced to ‘help ensure that extraditions are not denied on purely procedural grounds’. A diplomatic cable released by WikiLeaks describes the procedure, also known as ‘conditional release’, as being ‘much faster than a formal extradition, and has proven so successful, that DEA sometimes designs operations to bring suspects to Panama so they can be arrested in Panama and turned over to US authorities quickly.’

The US-Sweden treaty does not provide for judicial oversight or any conditions for temporary surrender. Instead, Assange’s surrender will be determined by ‘mutual agreement’ between the US and Sweden. Gillard must ask Obama: what agreement, if any, has been reached between Sweden and the US for this purpose? What role will Australia have in any such negotiation and agreement? If Assange is to be surrendered to the US under this provision do EU safeguards against extradition apply? What guarantees can be provided as to his treatment and his return to Australia?

Even if temporary surrender is not sought, it is a matter of public record that the US has synchronised extradition requests with the conclusion of a pending case, arresting the requested person within hours or days of release from custody, and has relied on the cooperation of Sweden in doing so. Once the case against Assange in Sweden has been determined, it is likely he will be served with a US extradition request immediately after being released in Sweden but before he is able to return to Australia. Swedish lawyers have advised that extradition to the US is a mere administrative process. Figures recently reported show that Sweden has never turned down an extradition request from the US. We can hope that Sweden would refuse to extradite Assange to the US – but what concrete inquiries have Gillard and our government made in this regard? What assurances have been sought from Sweden that Assange can return to Australia after matters are resolved there?

These ought to be serious concerns for the Australian government and for Gillard. It is highly unsatisfactory that an Australian citizen could be bumped around between foreign states, with minimal procedural safeguards, to be tried for conduct that does not amount to crimes under Australian law. Experts have concluded that Assange’s conduct in Sweden does not amount to a crime under English or Australian law. Contrary to Gillard’s prejudicial statements in December, the Australian Federal Police found that no Australian law had been broken in publishing the US diplomatic cables.

It is time for Australia to stand up for its citizens, for its values and for itself as a nation. Gillard reassured the Australian public that our government was doing “everything it could” to get that 14 year-old Australian home from Bali. Can we say the same for what she is doing for Assange?

Jennifer Robinson is a London-based media and human rights lawyer, who advises Julian Assange and WikiLeaks. Jen also has a special interest in West Papua and is an active member of International Lawyers for West Papua. Follow Jen on Twitter: @suigenerisjen

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  • 1
    Scott
    Posted November 17, 2011 at 3:35 pm | Permalink

    “US constitutional experts have concluded that Assange, as editor-in-chief of WikiLeaks, is entitled to the full protection of the First Amendment”

    You are kidding right? Wikileaks is not a US entity, Julian Assange is not a US citizen. He has absolutely no right to the First Amendment provided under the US constitution. Assange has deliberately tried to place himself outside the US jurisdiction and ironically because of this fact, will not be entitled to it’s protections. Live by the sword etc…

  • 2
    Archer
    Posted November 17, 2011 at 5:12 pm | Permalink

    Oh, get over yourself Jennifer. He took possession of stolen data and released it without consideration for anyone named or possibly placed in danger. He didn’t commit the crimes in Australia, he committed them overseas under other countries laws. This person seams rather intelligent, surely he knew the trouble he was getting himself into.

    Now he is trying to hide under any legal rock to prevent his extradition. It was stolen U.S. data he released, let the U.S. legal system deal with him. Why should we stand up for this narcissistic fool who believes he is a modern day cyber revolutionary, a waste of money.

  • 3
    Williams Pauline
    Posted November 17, 2011 at 6:29 pm | Permalink

    Jennifer is right. Australians should stand staunt for other courageous Australians in pursuit of publishing the truth. Let us look beyond how the material was attained whether is was obtained illegally or not: what is important to all the peoples of the world is the material content, that is what the issue is….the truth….. and his intentions are never to cause harm but to stop it worldwide. He has a good soul and he has used his talents as a modern day cyber revolutionary to do good works with his gifts from God.
    The ones that cannot deal with the truth are obviously dealing with it and they want him SILENCED. I wonder what Scott and Archer stand for? You do not get to heaven any more with just one handful of good deeds. Assange has taken personal risks to produce honest journalism, what is wrong with that. I welcome any US journalist to do the same here downunder and expose any local corruption – what a better world it would be if every country could boast a HERO like Assange. God Bless him through these proceedings. My Dad (91) who is still alive fought for Australia’s freedom and he sees Julian as a true modern day soldier fighting for the same cause. Our freedom which is priceless! Julia was probably too busy talking socialistic reform to the President to care about our Austraian digger that is currently in the trenches and we should have him come home before we are totally sold out to a one world government. Pauline

  • 4
    Robin Cameron
    Posted November 17, 2011 at 9:38 pm | Permalink

    Archer, let us not presume whether or not Jennifer needs to get over herself and address the content of her argument. Which brings me to the substantive point of your comment; surely if we were judging actions solely on the basis of their legality or illegality there would be some harsh conclusions to be drawn of many US foreign policy decisions.

    This I think is what Assange as a rather intelligent man has made a decision to draw attention to, quite possibly with full knowledge of likely consequences. They scale of his illegality and costs in human lives stemming from his decisions of much smaller scale than the foreign policy actions of the US.

  • 5
    Stephen Perrett
    Posted November 17, 2011 at 10:51 pm | Permalink

    I would think that an Australian government that is sincere in its valuing of democracy, free speech and human rights would act to try and ensure Julian Assange is not extradited to the US.

    Julian’s work with Wikileaks in revealing proof of the dishonest, insincere and treacherous ways of governments around the world has done the majority of people a massive favour.

    We now see that it is indeed possible for governments to be held accountable. The Arab Spring and Occupy movements represent a new found enthusiasm for greater levels of democracy and the most reasonable explanation for their development has to be the revelations provided by Wikileaks.

    Under massive pressure and attacks by many high profile politicians, Julian and Wikileaks have been seen to act with the utmost integrity. The lack of support coming from the Australian Government, suggests our democratic systems are corrupt and in need of major revision.

  • 6
    pandak61
    Posted November 18, 2011 at 7:10 am | Permalink

    Scott and Archer, I am with you. I am SO tired of people like Williams deifying Assange. Stephen Perret how do you figure that “Julian” has acted with ‘utmost integrity’. He’s just scrambling to avoid answering some pretty sordid allegations. To demonstrate integrity, he needs to stand up and answer the questions the Swedish police want to ask of him. I think this is just another case of a celebrity using their fame, money and position to avoid being held accountable for their actions (I am talking about the rape allegations here.) It is sickening to listen to his mother condem all and sundry for the mess this pillock finds himself in – I guess she must’ve fought all his battles for him as a kid, but he’s now 40 yrs old which makes him (supposedly) an adult. Talk about drinking the koolaid…

  • 7
    LisaCrago
    Posted November 18, 2011 at 8:04 am | Permalink

    Afraid I have to agree with Scott here (whether I like it or not)

    I think he has already had his 15 minutes of fame.

    To think “one wonders whether Julian Assange will come up in conversation.”
    Are you kidding?

    With the worlds fiscal problems and us being at war with USA in Ghan do you think they would waste their breath on last years news.

    His cry for money to feed his ego and keep his fame alive and pay for his rape court case, come on people, haven’t you already had enough of this guy?

  • 8
    Liam Jones
    Posted November 18, 2011 at 8:35 am | Permalink

    @Scott Your argument is self defeating. If Assange is outside US jurisdiction, then the US has NO Jurisdiction over him and can do nothing, if however the US is able to pursue him, it follows he MUST be under US jurisdiction, and is entitled to First Amendment rights.

    Secondly, the first amendment does not specify that it is only available to US citizens. In fact in the Declaration of independence, it states “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights”

    That is “All Men”, not “US citizens” not “People under US jurisdiction who do not publish leaked documents”

    Furthermore, The Supreme Court in 2008 (Boumediene v. Bush) declared it unconstitutional to not grant rights such as ‘habeas corpus’ to Guantanamo detainees.

    So no, despite what you really wish. And despite your self refuting argument, by law Assange is protected by the first amendment.

  • 9
    Scott
    Posted November 18, 2011 at 5:04 pm | Permalink

    @Liam Jones

    In my comment, I said he “TRIED” to get himself outside US Jurisdiction. He may still be outside the jurisdiction of the US courts (he hasn’t actually been charged with anything in the US yet at the end of the day).

    But, hypothetically, if we say that he is charged and extradited to the US, he still may not necessarily have all the protections a US citizen may have. From the case you have linked to, he will definitely have the right to habeas corpus which I think we are all happy about. Everyone should have the right to a fair trail and the supreme court was pretty specific in saying that denying this right is a breach of the separation of powers (as the executive should not be able to control the judiciary)

    But there is nothing about separation of powers in the First Amendment.
    In the case “CITIZENS UNITED v. FEDERAL ELECTION
    COMMISSION (2009), one opinion seems to indicate that they may not have an issue with denying first ammendment rights to foreign nationals.

    “The Government routinely places special restrictions on the speech rights of students, prisoners, members of the Armed Forces, foreigners, and its own employees. When such restrictions are justified by a legitimate governmental interest, they do not necessarily raise constitutional problems.”

    As for the declaration of independence, while a nice mission statement for the US, it’s relevance to the first ammendment is a bit vague (as the only rights mentioned are life, liberty and the pursuit of happiness).

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