Tag Archives: Sweden

Questions for Stefan Lindskog’s lecture: “The Assange case and Freedom of the Press”

Swedish Supreme court judge Stefan Lindskog, funded by the Swedish Embassy and speaking about the legal questions surrounding Julian Assange’s case at the University of Adelaide, should be asked some simple question:
1.

In September 2012 Pentagon spokesman George Little confirmed the US government considers Wikileaks’ continuing possession of classified US “national defense” documents an “ongoing violation of the law”. Presumably this includes the Afghan War Diaries. In your opinion, is it feasible that Sweden’s new Espionage and other illegal intelligence (SOU 2012:95) law could be used to extradite Julian Assange from Sweden to the United States? If not, can you explain why not?

Background: http://abcnews.go.com/blogs/politics/2012/09/are-troops-talking-to-assange-communicating-with-the-enemy/

2.

New legislation is usually enacted in response to some crisis or event. What was the precipitating event behind Sweden’s new Espionage and other illegal intelligence law, do you know? New laws are generally subject to intense parliamentary debate before they are agreed in their final form – was there much of this in Sweden prior to this new law?

3.

In 2011 we learned from Wikileaks cables that US diplomats had dictated Sweden’s Ipred and data retention laws on copyright almost word-for-word. Do you think that in the next major leak of US government documents we might discover the same has been true about Sweden’s new Espionage and other illegal intelligence (SOU 2012:95) law?

Background: http://falkvinge.net/2011/09/05/cable-reveals-extent-of-lapdoggery-from-swedish-govt-on-copyright-monopoly/

4.

It’s been estimated that the Wikileaks Grand Jury empanelled in Alexandria, Virginia will finish sometime between July 2013 and January 2014. Given that Sweden’s new Espionage and other illegal intelligence (SOU 2012:95) covers joint military operations in which Sweden participates, can you talk a little about the timing of the new legislation and how it treats the concept of dual criminality?

Background: http://notes.rjgallagher.co.uk/2013/03/wikileaks-grand-jury-timetable-doj-obama-administration.html

5.

I understand Sweden’s new Espionage and other illegal intelligence (SOU 2012:95) law requires amendment to Sweden’s Freedom of Press Act and to the Swedish Constitution. Why do you think there has been so little debate in Sweden’s media regarding a proposed change to the law which surely threatens their profession and press freedom generally in Sweden?

Background: http://translate.google.com/translate?sl=auto&tl=en&js=n&prev=_t&hl=en&ie=UTF-8&eotf=1&u=http%3A%2F%2Fwww.advokatsamfundet.se%2FNyhetsarkiv%2F2013%2FFebruari%2FForstarkt-straffrattsligt-skydd-mot-spioneri%2F

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The Mutual Legal Assistance (MLA) Letter of Request (LOR), Disclosure and Abuse of Process in the Julian Assange Case: The Factors Requiring the Prosecution to Deny an Interview in London

In the case against Julian Assange, the use of the European Arrest Warrant (EAW) has caused huge controversy. In the UK only a judicial authority (a Judge) can issue a warrant under the Extradition Act 2003, with good reason; a prosecutor is liable to be highly partisan and likely to lose objectivity.

The disconnect between the EAW issued by Marianne Ny (Head of the Public Prosecutor’s Office, Development Unit in Gothenburg, Sweden) against Julian Assange and the allegations made by the complainants defies logic and illustrates the danger of foreign prosecutors being considered lawful judicial authorities by UK courts.

13-14 August 2010 Unlawful coercion Sexual molestation Anna Ardin, “[Assange asked Anna what she was doing], (Anna) [told him that she wanted him to wear a condom], [at that, Assange released Anna’s arms and put on a condom]. [Assange deliberately broke the condom]. [Ardin did not look closely at the condom in order to see if it was broken]. (Ardin submits as evidence a condom, which is found to contain absolutely no DNA from either herself or Julian Assange).

18 August 2010 Sexual molestation Anna Ardin, “he (sic) rubbed his lower body and erect penis against Anna. Anna (sic) moved down to a mattress on the floor and slept there instead of on the bed with Assange.”

17 August 2010 Rape Sofia Wilén, “After several acts of copulation she was half sleep.” Katarina Svensson, “Sofia also said that, when she was half asleep.”

Sexual and gender issues have recently become powerful political currencies in Sweden and this capital is used by those seeking elected office or positions connected to politics. Marianne Ny is a long-time campaigner for further reforming Sweden’s sexual offences legislation. Complainant Anna Ardin was a Swedish Social Democratic Party candidate in the Stockholm City Council elections with Irmeli Wreath (the police officer who interviewed complainant Sofia Wilén with Ardin) at the time of the alleged offences, and their legal representative Claes Borgström served as the SDP’s Equality Ombudsman between 2000 and 2007. Bias through political motive cannot be discounted in this case and again illustrates the danger of a UK court, recognizing a foreign prosecutor as a lawful judicial authority.

The use of a EAW is controversial for another reason: at the City of Westminster Magistrates’ Court in ‘The judicial authority in Sweden -v- Julian Paul Assange’, Judge Howard Riddle stated that Mutual Legal Assistance “was a more proportionate response than issuing an EAW” for the purpose of questioning a witness.

The question becomes why is a EAW being employed in the first place? It has clearly ‘sexed up’ the factual substance of the allegations. Julian Assange’s London lawyer, Mark Stephens, stated that “the arrest warrant was sent back by Scotland Yard (London police) because it did not comply with the law (UK) and was defective.” This explains why an interpol red notice issued for Julian Assange in November 2010, was for a time, without a warrent to back it. A credible source has stated that Myrianne Ny had failed to fill out the answers in the pre-printed form correctly and/or fully. Was the EAW then embellished and resubmitted because its initial interpretation of the allegations had failed to describe anything that Scotland Yard recognized as a crime? But why take this route anyway, when the far simpler path of Mutual Legal Assistance could have been used to question Assange?

Is the use of a EAW to shield a far greater controversy?

Judge Howard Riddle also stated “through Mr Hurtig, Mr Assange offered to be interviewed in Sweden after 9th/10th October, rejected as “too far away”, and later in a variety of ways from outside Sweden. All those offers were rejected by Ms Ny, who made it clear that the interview should take place in Sweden. A number of reasons have been speculated as to why she took that view. I am not in a position to say what the reason was.”

While Riddle is “not in a position to say,” we are in that position.

Marianne Ny at first denied that using the standard framework of Mutual Legal Assistance was legal, “Swedish law prohibits formal legal interviews over a telephone or video link. The Swedish embassy in London is not Swedish territory in the sense that we can hold interrogations there without formal approval of British authorities.” Time magazine by Eben Harrell 03.12.2010

Eventually, under the weight of legal comment, she was forced to admit that MLA is the standard method used in obtaining evidence and information in international inquiries  that it is perfectly legal and employed by Sweden whenever cases cross national boundaries. The Swedish government is, after all, a signatory to the European Union Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union. The Swedish Government website dealing with this matter states: “Swedish prosecutor or court can then request legal assistance regarding a hearing by telephone if an agreement has been concluded regarding such legal assistance under an international agreement with the other country or if that country otherwise provides such assistance.”

It is worth noting another example of duplicity by Ny in the Time magazine interview: “a case in the southern Swedish city of Helsingborg where a suspect was heard via telephone was heavily criticized by the Ombudsmen for Justice as not being in accordance with existing law.” However, she does not mention and no one has been criticized regarding the fact that one of the accusers of Julian Assange, Anna Ardin, was permitted to give evidence via telephone and that this is just as much standard practice in Sweden as it is everywhere else. Or that under Sweden’s Code of Judicial Procedure “the investigation should be conducted so that no person is unnecessarily exposed to suspicion, or put to unnecessary cost or inconvenience.”

In a witness statement submitted by fax to the extradition proceedings City of Westminster Magistrates’ Court (Ny refused to come in person to the court to be questioned about her evidence), apparently unaware of the contradiction and the nonsensical nature of her position, Ny stated: “It is submitted on Julian Assange’s behalf that it would be possible for me to interview him by way of Mutual Legal Assistance. This is not an appropriate course in Assange’s case. The preliminary investigation is at an advanced stage and I consider that it is necessary to interrogate Assange in person regarding the evidence in respect of the serious allegations made against him.” It seems, for some reason, that questioning Julian Assange via even video link is not ‘personal’ enough. Perhaps, considering such an unusual stance, the prosecutor ought to come here in person – like she couldn’t be bothered to do when asked to be cross-examined on the evidence she submitted to a UK court.

When Martha Kearney interviewed Karin Rosander, Director of Communications for the Swedish Prosecution Authority, on The World at One, BBC Radio 4, she seemed as perplexed as Judge Riddle:

KR: The prosecutor has stated that, according to circumstances in the investigation, her opinion is that it’s necessary that he is present in Sweden, and she hasn’t stated exactly what circumstances, but that’s her statement.

MK: But isn’t it the case that Swedish prosecutors have gone abroad to question defendants in serious cases at other times?

KR: Yes, that’s true, it has happened. And it’s for the individual – it’s for the prosecutor – to decide which measures to take. So it’s… it’s all about what the prosecutor decides to do.

MK: But what you’re saying is there are circumstances in this case that make it very different. It’s hard to understand what they might be!

KR: Yeah. And the prosecutor hasn’t stated exactly what kind of circumstance – what circumstances – but that’s her… her decision.

MK: So how is the deadlock going to be resolved then?

KR: Uhhh… I have no idea really.

When faced with someone holding an untenable position, there is usually a logic to why this person is choosing to cling to such ground. While many have remained mystified by this decision, is there a simple straightforward explanation?

That the use of the Mutual Legal Assistance Framework brings a danger – the only avenue to avoid this danger is to bypass it, and move to EAW and extradition.

The critical danger is that the defense could possibly, through disclosure, gain possession of a document that would be admissible as evidence in any future extradition hearing.

According to UK Home Office Guidelines this has to appear on a MLA LOR:

1. A description of the offences charged or under investigation and sentence or penalty.

2. Copy of legislation that criminalizes the conduct in requesting country, information on offence, penalty and rights afforded to the accused.

3. A summary of the facts giving rise to the request and connection this case has to the UK.

According to the UK Crown Prosecution Services’ Disclosure Manual Chapter 35: Legal Guidance:

35.29. In view of the nature of their contents, a letter of request (LOR) will not usually satisfy the disclosure test. However, if the principle of specialty under section 9(2) of the CICA that limits the use to which material obtained can be put, is not respected and/or there is a material departure from the requirements of sections 7 and 8 of the CICA, the defense legitimately may be able to raise an abuse argument or seek to exclude evidence under section 78 of the Police and Criminal Evidence Act 1984, then the prosecutor should carefully consider disclosure.

Section 7 CICA Requests for assistance in obtaining evidence abroad.

(1)If it appears to a judicial authority in the United Kingdom on an application made by a person mentioned in subsection (3).

(a)That an offence has been committed or that there are reasonable grounds for suspecting that an offence has been committed.

(The Request must establish reasonable grounds for believing that the offence in question has been committed – as opposed to a fishing expedition – this would be done within the body of the request which should set out the factual background of the information possessed by the foreign authority which led to the belief).

The LOR in this case might very well meet the disclosure test and therefore could be turned over to the defense  In that, a UK judicial authority would have to review the evidence in relation to the charges, to the UK standards seen above, to ascertain ‘reasonable grounds’ and decide if the disclosure test has been met. This would destroy the case against Julian Assange.

1. If the request was denied, for all intents and purposes the case would collapse.

Denial of such a request seems very likely, if Marianne Ny’s first attempt at a EAW was dismissed by Scotland Yard, one could imagine the UK Central Authority (UKCA) doing the same. UKCA is required to compare the charges to the evidence summary. Here, Marianne Ny would have to ‘sex up’ the evidence, a rather different prospect to the manipulation of a EAW, where the ‘interpretive nature’ of the charges temporarily provides cover.

2. If it was released to the defense, it could be admissible in open court.

If submitted in evidence, at extradition proceedings by the defense to show abuse of process, it could be employed by the defense to circumvent the inability of the court to directly look at the evidence. This possible exploitable loophole would not only cause the case to collapse, it would have serious repercussions for Marianne Ny in Sweden.

Recently Anne Ramberg, Secretary General of the Swedish Bar Association, has seen to it that politician-lawyer Claes Borgström stand trial in the Disciplinary Committee regarding misconduct in the infamous Thomas Quick case, Sweden’s greatest miscarriage of Justice. Claes Borgström is the legal representative of choice for the complainants, who telephoned him and asked him to intervene when the case was dropped by chief prosecutor Eva Finné who stated “there is no suspicion of any crime whatsoever.”

Even at this stage, a MLA LOR request document taken to the ECHR would, without any question, show a breach of the duty of candor re UK CPS Disclosure Manual and would cause “proceedings stayed on grounds of abuse of process.” 35.54

As time rolls on, as the stakes increase, as the siege of the Ecuadorian Embassy makes headlines across the Globe, Marianne Ny and everyone involved in this affair must realize that they can only delay an inevitable outcome and the certain consequences of their actions.

The abuses of process and mishandlings in this case are huge, spanning from the initial police procedures, to scandalous leaks to tabloid newspapers, to outright bias against the accused by not affording him Swedish procedures stated in the Prosecutors Manual. From the opening minutes of the case to the current stand-off, questions of conduct have been raised and ignored. They are raised again.

Sweden’s affairs in Cuba: a U.S. proxy and Julian Assange

As direct consequence of the allegations leveled against Julian Assange by Anna Ardin and Sofia Wilén, the editor and founder of WikiLeaks has found himself facing the possibility of being extradited from either a Swedish remand prison or prison, to the United States where he will likely be charged under the Espionage Act 1917. In response to this scenario (after a final appeal in the UK Supreme Court against extradition to Sweden had failed), Julian Assange sought (19th June 2012) and was granted political asylum by the Ecuadorean government. Unexpectedly, the U.S. Grand Jury’s indictments are being made to wait.

Back in August 2010, Anna Ardin’s allegations simply decimated Julian Assange’s ability to operate freely at the very moment such options were needed most – during the politically highly charged publishing of the Iraq War Logs and the United States diplomatic cables. When Swedish prosecutors refused to question Julian Assange in England and instead put out a European Arrest Warrant, and as the first evidence of a U.S. Grand Jury investigation emerged, the questions, suspicion and intrigue surrounding Assange’s accusers increased. With little information available about Sofia Wilén and with Anna Ardin’s political ties and instrumental role in events, almost all of this speculation and attention has been directed at her. Ardin’s willingness to give interviews to the press has also fueled debate.

Phillip Knightley (British Press Awards Journalist of the Year), spoke to the Sydney Morning Herald, December 2010, summing up the speculation surrounding Anna Ardin’s motives: “There’s no direct evidence [that Anna Ardin is a CIA agent]. She’s someone they would consider an asset. I do not think she has been recruited for this mission but once she realized she was in this position, she might have known the right people to contact. They are always on the lookout for people with what you might call ‘interesting friends’.” Knightley believes that Ardin’s political activities and contacts within Sweden’s historically dominant SDP party, as well as her activities in Cuba and Miami, fit the model of someone deemed useful to foreign intelligence agencies and also as a valuable resource for Sweden’s small spy agency.

To gain a better understanding of the events that led up to Julian Assange entering the Ecuadorean Embassy and to understand the factual basis of the speculation mentioned above, it is important to review Anna Ardin’s role in the Swedish government’s  activities in Cuba.

Anna Ardin (who also goes by the name Anna Bernardin) visited Cuba four times between 2003 and 2006, becoming involved in the 59 year de facto ‘war’ between Cuba and the United States of America. During this time she worked as intern in the Washington DC Swedish embassy and later worked at the Buenos Aires Swedish embassy as a PR manager.

Ardin was ostensibly visiting Cuba to research her Masters thesis ‘The Cuban Multi-Party System’. Her ‘field tutor’ was Miriam Leiva, a prominent member of the Damas de Blanco (Ladies in White). In 2003, the Cuban government arrested Miriam Leiva’s husband, Oscar Espinosa Chepe, for receiving money from U.S. ‘diplomats’. Espinosa Chepe was writing anti-Castro propaganda for Cubanet and CubaEncuentro, both of which were funded by the National Endowment for Democracy (NED), which in turn is funded by the U.S. Agency for International Development (USAID), an organisation funded by the U.S. State Department. Espinosa Chepe’s arrest was part of ‘Black Spring’, a crackdown on 75 U.S. funded dissidents involved in ‘destabilization’ / ‘pro-democracy’ activities. The ‘Ladies in White’ consists of the wives and other female relatives of the jailed dissidents.

After Ardin was asked to leave Cuba due to her political activities (in 2006), she traveled to Miami to continue her research, interviewing prominent expatriate Cuban anti-Castro and anti-Communist activists. In her 39-page thesis she does not mention U.S. interventionism in the internal affairs of Cuba, or how this might affect a future multi-party democracy. She does not mention that all of the political parties she explores receive U.S. funding, or the influence and control exerted by the United States upon these groups. The journal sources she cites (she later writes on Cuban affairs for websites funded by USAID, such as Miscelánea de Cuba) are the same U.S. State Department-funded publications that Oscar Espinosa Chepe worked with. These journals are accused by the Cuban government of being part of an ongoing attempt to manufacture, support and finance a U.S.-friendly internal opposition movements in Cuba via a wide range of organisations. The 2004 Democratic Presidential candidate and current U.S. Secretary of State John Kerry called the ‘Varela Project’ and other interventions “counterproductive” and stated that dissidents receiving money from U.S. sources, especially from the CIA, were immediately discredited. In 2008, the State Department and USAID trebled previous levels of funding, ‘awarding’ $45.7 million in ‘Cuba democracy’ grants.

The links between Miami-based anti-Castro Cuban-American organisations and the U.S. government’s Central Intelligence Agency forms one of the darkest episodes in U.S. history; the disastrous Bay of Pigs invasion of Cuba by a counter-revolutionary militia trained and funded by the CIA, the Cuban missile crisis blow-back and the tangled horror of the assassination of John F. Kennedy.

In Miami, Ardin interviewed the CIA counter-revolutionary militant Lino Fernándezaka Ojeda. Fernández and five hundred of his men were captured while awaiting a CIA air-drop one month before the invasion at the Bay of Pigs.

In Cuba, Ardin interviewed Manuel Cuesta Morúa, a leader of Arco Progresista (Progressive Arc Party), who in several interviews has described working with Ardin and the Swedish Social Democrats. It also seems that Ardin may have caused Cuesta Morúa various difficulties not dissimilar to those experienced by Julian Assange several years later:

And, strangely for us, Anna supports that accusation. I say strangely because she was the person receiving the expense reports of the small cash assistance they were giving us. Two or three groups of young people linked to the group that she headed came to Cuba between 2003 and 2005, up to twice a year. They brought the economic aid and took the reports. Then they informed us by e-mail, or in their next visit, of their assessment: always positive. The last economic aid was brought over by Anna herself in mid-2005. Later on, other people came over, took the reports and everything went well. Suddenly, after having acknowledged that all the reports were fine, Anna seemed to forget this and jumped on a Cuban Government report about us [misinformation from the Cuban government, constructed to damage the reputation of the Cuban Social Democratic movement], which was poorly and hastily written, which could not stand up to serious analysis, where I appeared as the villain of the story.

At this point I was surprised by two things: first, the lack of positive response to the institutional analysis we had convened – and which we carried out in the end – and second, her attempt to recruit other members of the European democratic left for her destroying venture – in which she succeeded to some extent. Her attitude was certainly an ironic setback for me, as I used to defend our relationship with the Swedish Social Democrats on the grounds that their political culture was exemplary; that is, based on strict adherence to the rules and on full respect for the word given. And behold, it was precisely a Swede who came to demolish these long-cherished theoretical certainties. But of course a philosopher among the Scythians cannot change the latter into philosophers. So I do not claim that a particular Swede represents the whole of Sweden. So my connection with her broke, if I remember correctly, in October 2006, following this rather odd behavior.

Why would a Social Democrat do this? For the same reason that a person who sees others as platforms for the deployment of their psychological world and their personal ambitions would act. Anna Ardin is yet another proof of why one should never underestimate the psychological motivations behind people’s actions. Every time we see a disproportional reactive behavior  we should stop to analyse the rationality (or lack thereof) they show in their behavior  And that’s the case with Ardin, not taking into account her constantly changing ideology.

Strictly rational motives are not always behind people’s behavior. I think her behavior was the combined product of psychological projection, Eurocentric impulse, personal ambition and unrestrained desire for fame – also linked to the frustration generated by disappointments. When frustration cannot be controlled, a desire to destroy the cherished object is activated. Assange’s lawyer said something along those lines when asked his opinion on Ardin’s motives in a recent interview with El País.

In political terms, this means that she could not find a way to explain in Sweden that her work in Havana was in trouble, and at the same time she felt powerless to control what we were doing. I see her as a less ideologically-minded version of Alan Woods (the latest of Hugo Chávez’s British neo-Marxist pseudo-advisers, who believes he knows better than Venezuelans themselves what suits them best – without leaving Europe). And as I come from a tradition that sees any attempt to dictate (coming from without or within) our aims and direction, like an unwanted old-fashioned oddity; Ardin could not comprehend the message and she burst whilst trying to bust us. She then proceeded on a strange itinerary: from a supposed Christian Socialism, she derived in a story of sexual explosion made public and morbidly exploited. A true revelation of personality inconsistencies.

Sweden has continued to support U.S. interests in Cuba. Oswaldo Payá, founder of the Christian Liberation Movement (MCL) and the Varela Project, was killed in a car crash on the 22nd July 2012 at the age of 61. Swedish politician and chairman of the Young Christian Democrats Jens Aron Modig and Spanish politician Angel Carromero Barrios, deputy secretary general of Nuevas Generaciones (the youth wing of Spain’s Partido Popular) were present and survived with minor injuries. As with Anna Ardin, they entered Cuba on tourist visas and later acknowledged that their visit was solely to conduct political work with dissidents. Jens Aron Modig said he first came to Cuba in 2009 to meet and support dissidents, and that on this trip the gave Oswaldo Payá $4,900 for his opposition work and help organizing dissident political youth groups. Henrik Ehrenberg, a spokesman for Sweden’s Christian Democratic Party, said that any cash carried by its members to dissidents was “private money”, and that “quite a number of Christian Democrats” had visited Cuba to show “moral support and solidarity” for Oswaldo Payá’s civil rights movement. Jens Aron Modig said he made the two trips under instructions of the Christian Democrats international department and admitted that “we don’t perform these types of activities in any other country.”

What began as ‘lines of communication’ in 2000 between Cuban dissidents and the Swedish government, had become by 2003 an overt attempt to manipulation of Cuba’s internal political landscape. We can imagine if the roles were reversed; the reaction of Western governments to such indelicate interventions by the unofficial allies of a hostile blockading power. In 2006, the U.S. had become increasingly disenchanted with the Miami-based anti-Castro organisations. Congressional auditors accused USAID of failing to administer properly its program and of having channeled tens of millions of dollars through exile groups, which were wasteful and kept questionable accounts. The auditors concluded that 30% of the exile groups who received USAID grants showed ‘problematic’ expenditures.

The repeated failure of the Miami-based organisations to make any perceivable impact on Cuba’s internal dynamics has clearly led to a change in U.S. strategy. After a period of more restrained activity following the ‘Black Spring’, young Mexican and European politicians acting under the banner of neutrality and activism were once again recruited with their governments’ assent to work as U.S. proxies. And once again, foreign intervention in a climate of siege has proven to be “counterproductive” and set back the process of change.

Sweden’s declared stance of neutrality belies a consistent history of acting either as a proxy for, or in concert with, the United States. From the ‘cold war‘, to the ‘war on terror‘ and military deployments in NATO-led operations, the pattern of an unofficial alliance persists.

The instant that Julian Assange found himself involved with a Swedish government agency, the relationship between Sweden and the United States came into play. The prosecution process was and remains deeply distorted by the gravity exerted by the United States interests. The Pirate Bay trial has also witnessed similar issues.

The motives behind Anna Ardin’s actions are a puzzle to many, including Julian Assange. In terms of the allegations and the reality of events in Stockholm, we already know through the established facts of the case, which exist irrespective of whose account one chooses to believe, that Anna Ardin sought to manipulate evidence (the politician-lawyer Claes Borgström, Anna Ardin’s publicly-financed representative, believes he can explain these actions within a narrative that excludes the political ramifications of WikiLeaks, while focusing solely on the fame of Julian Assange).

Perhaps this manipulation is not only a question of, as Phillip Knightley puts it, “I do not think she has been recruited for this mission but once she realized she was in this position, she might have known the right people to contact”, but also a case of being driven to act by an unmanageable impulsive tendency to use high risk, crude political tactics (as observed by Cuesta Morúa) in service of personal political ambitions.

The truth of Sweden’s relationship with the United States means that acting to please the latter (in the hope of gaining favor and political advancement) will surely please both. Ardin’s work in Cuba – and her knowledge of Cuban / American politics – shows that she would have been keenly aware of this. And yet, beneath both Knightley’s and Cuesta Morúa’s interpretations of Ardin’s behavior, lies her core rationale, which consists of an extraordinarily self-centered and simplistic calculation; that her actions would lead to a personally advantageous outcome.

The profound political and moral illiteracy found in most politicians is seen throughout the ‘Stockholm affair’, which above all else is a tale of individuals and groups – ruled by ambition and emotion, whilst willfully ignorant of risk, complexity and unintended consequences.

Full Manuel Cuesta Morúa interview.

An Overview: The Case Against Julian Assange

Witness Donald Boström. Date: 20 September 2010. “But at the same time, I began to think: How can it be possible? For, if they are having sex, consensual according to her, and something happens that she experiences as an assault, how can she nevertheless gladly arrange a crayfish party, let him remain in her flat, share a bed and so forth? I felt that there is something here that does not add up. So I had the feeling that she was a credible person, yet there was something about her story that did not add up. So those are pretty much the two impressions I have, parallel with each other: a credible young woman, a strong young woman who knows what she wants, but something that does not add up. And it is somewhat strengthened by the fact that I now had three versions of what happened..So for me, the accusation was first an enormous shock; and then another enormous shock that the whole business had come out so fast and that the prosecutor had acted so quickly. And then an enormous shock when the entire case was laid down. So that to me, the whole business smelled bad from beginning to end, because there was something that did not add up.

When Anna called, I think it was Thursday.. Up until then she had joked that, “He has not succeeded in bedding me”, and so on.. But on Thursday, that is why she said, “I have also had sex with Julian.. What I said before wasn’t true.” So it did come out that they had sex.. And the reason she said that was that Sofia called and told her about their night.. So that within the space of a minute or so, I understood that both of them had had sex with Julian – but also that the sex was consensual.. When she called me and said “we had sex” and this happened, she did not in any way imply that she had been the victim of sexual assault. In fact, she did not even want to go to the police. But the way she put it was like, “I want to go with, I promised Sofia I would go with her for support” – not that she had any reason to go, herself. And so my impression is that she did not experience anything very serious, but that she had become angry. Roughly: Don’t destroy the condom, but not that it was an assault. Then she called back and said, as I mentioned, that because she strengthened Sofia’s story with that one sentence, the case became stronger, as she expressed it. That was exactly what she said.. But it was not her case. But that Friday when the women went to the police; I think it was a Friday. Before that, Anna phoned me often and said that all we want is for him to take an HIV test; then we won’t file a complaint, she said.”

On the 11th of August, 2010, Julian Assange arrives in Stockholm. He stays at Anna Ardin’s Stockholm flat – she is away.

On the 13th of August, Anna Ardin returns a day early. He offers to find other lodgings, but she invites him to stay. They go out for a meal at a local eatery. Later that night and in the morning of the 14th of August the couple engage in sex.

On the 14th of August, Julian Assange is the principal speaker at the Social Democrats’ Brotherhood Movement (Broderskapsrörelsen) seminar on “War and the Role of Media”; Anna Ardin plays a key supporting role. Julian Assange spends the afternoon with Sofia Wilén, during which they engage in heavy petting and agree to meet again. That evening, Anna Ardin arranges a crayfish party in Julian Assange’s honour. Alternative lodgings are offered to Assange, but Anna Ardin invites him to continue residing at her flat. A guest at the party stated: “It was a very hearty evening” and when he offered for Julian Assange to stay at his apartment, Anna Ardin replied, “he can stay with me.”

On the 15th of August, at a meeting on the future activities of WikiLeaks in Sweden, Anna Ardin serves as Julian Assange’s press secretary. Later, Julian Assange and Anna Ardin attended a dinner party at Stockholm restaurant Glenfiddich organized by the founder of the Swedish Pirate Party, Rick Falkvinge.

On the 16th of August, Assange accompanies Sofia Wilén to her flat in the town of Enköping. He wears a condom during several consensual acts of sexual intercourse. He penetrates her once without a condom.

On the 17th of August, according to witness Johannes Wahlström, Anna Ardin was condescending when describing Sofia Wilén: “Here, this is what I wrote on 17 August: “Good morning. Can you remind J that we have a meeting at noon at the journalists’ union. I suspect that [inaudible] sleeping, and unfortunately I cannot fetch him today.” Anna Ardin replied: “He is not here. He has been planning every night to have sex with the cashmere girl, but has not been able to find the time. Perhaps he managed to do so yesterday?” That was at 9:40 a.m. on August 17th. My reply: “Poor taste. Do you have her number?” Her reply: “Not sure that he has any taste at all, to be honest; but she was cute. Not mentally quick enough according to J. But cashmere and breasts and idol worship compensate. No unfortunately not. sofia.wilen@hotmail.com. Works at the Museum of Natural History. That’s all I know.”

On the 19th of August, Sofia Wilén phones Anna Ardin to seek assistance in contacting Julian. Anna Ardin asks Julian to move out of her flat, which he does the following morning.

On the 20th of August, Sofia Wilén visited a sex crimes clinic at Söder Hospital where she was tested with a rape kit and received preventive medicine against HIV.

After visiting Söder Hospital, Sofia Wilén (now accompanied by Anna Ardin) went to Klara police station. There are other police stations much closer to Söder Hospital and Anna Ardin’s flat in the Södermalm district, however, Anna Ardin’s friend and fellow political associate in the Swedish HBT (homosexual, bisexual and transexual) and the SDP – the police officer Irmeli Krans, is currently on duty at the Klara station. Both Anna Ardin and Irmeli Krans are SDP candidates for the Stockholm City Council election which is currently in progress.

Sofia Wilén’s brother later said that his sister told him “that she did not want to make any charges against Julian, but only wanted him to get tested for (sexually transmitted) disease”. Anna Ardin said to friends that she merely wished to “provide moral support to Sofia Wilén.” However, by the time they entered the police station, Sofia Wilén had already had an HIV test. Witness Hanna Rosquist: “Hanna said that Sofia wanted Assange to be tested for venereal disease. Sofia had gotten a test, but it would take a much longer time before she got the results. It would go much faster if Assange were to get a test.”

The interview begins at 16:21 and ends at 18:40. Anna Ardin is present while Irmeli Krans questions Sofia Wilén and intervenes to make prejudiced comments against Julian Assange. Long before the process is completed, two colleagues of Irmeli Krans – Mats Gehlin and Linda Wassgren – telephone the on-call prosecutor with details of the continuing interview. Based on that limited information, prosecutor Maria Häljebo Kjellstrand issues an in absentia warrant for the arrest of Julian Assange on suspicion of raping Sofia Wilén and molesting Anna Ardin. Neither woman has been consulted; the decision is made on their behalf by the prosecutor. The warrant is issued at 17:00, with the interview still only half complete.

When Sofia Wilén is informed at 18:40 that Assange is to be arrested on suspicion of raping her, she is unable to continue. Irmeli Krans stated: “After being told about the arrest warrant, Sofia had difficulty concentrating on the interview. I therefore made the judgement that it would be best to break off the interview. It has not been read to her for approval.” As far as is known, Sofia Wilén has never approved officer Krans’s account of the interview, which is the principal basis of the most serious accusation against Julian Assange. Her friend Marie Thorn told the police that “what happened after Sofia went to the hospital and the police was not what she wanted. The only thing she wanted was for Julian to be tested. She felt that she had been run over by the police and by others around her.”

The interviews of Julian Assange and the journalists Donald Boström and Johannes Wahlström were recorded and transcribed, the other nine testimonies taken were not recorded and were ‘narrative’ testimonies written by the interviewing officer after the interviews, this is completely against police protocol. After the warrant for Julian Assange’s arrest is issued, the news is leaked by either the police officers, the on-call prosecutor, or Anna Ardin to the journalist Niklas Svensson of the tabloid newspaper Expressen.

Anna Ardin gave her statement by telephone the next day. She then gave her story to the Aftonbladet tabloid newspaper, she told their reporters: “Julian Assange has a skewed view of womanhood and doesn’t know how to take ‘no’ for an answer”; however, nowhere in her testimony is this word used, she clearly states that she gave consent, her main concern was the ‘deliberate’ breaking of a condom.

Within days, the police leak Anna Ardin’s and Sofia Wilén’s statements to the Expressen. When Julian Assange is eventually found for questioning (30th of August), his statement is also leaked to the Expressen and appears the following morning, despite assurances by Mats Gehlin that this would not happen. The Western mainstream media displays distorted facsimiles of the protocol contents with quotes selected that are not representative. Coverage of the unfolding affair conforms to a textbook case of public opinion manipulation. From the first report, a media consensus descends over the story, similar in structure and technique to those employed in the run up to the illegal 2003 Iraq war. (Manipulating Public Opinion: The Why and The How. Edward L. Bernays. American Journal of Sociology, Volume 33, Issue 6 (May, 1928), 958-971). Thoughtful reporting of the affair would have to have included content and opinion aimed at informing readers of the difficulties and uncertainties regarding interpretation, but reporting prefers only to provide misleading information.

Elements of the missing balance and detail:

Anna Ardin continued to allow Julian Assange to stay at her apartment for four days after the alleged offence. She repeatedly insists that he stay when others suggest accommodating him. Julian Assange said she also engaged in further consensual sex with him. After 9 days, she describes this as molestation. During this time she continued to act in a voluntary role as his press secretary. According to witness Kajsa Borgnäs “Among other things, Kajsa asked Anna if she was going to have sex with Julian, because Anna is single and she and Kajsa had earlier talked about sex. Anna had then related that she had already done so, but had said that it was the worst lay she’d ever had. Anna had also said that Kajsa could take him.”

Anna Ardin created and then deleted evidence (tweets) indicating that she was enjoying Julian Assange’s company at a crayfish party she had arranged at her house to honour him the night after the alleged incident: “Sitting outside.. nearly freezing, with the world’s coolest people. It’s pretty amazing!” She deleted a blog posting detailing how to get revenge on unfaithful lovers. There are the photos of her smiling with Julian Assange during a dinner engagement with members of the Swedish Pirate Party two nights after the night in question (see Page 2).

In both emails and SMS messages provided to defence attorney Björn Hurtig and in her own unrecorded ‘narrative’ account, Sofia Wilén states: “After several acts of copulation she was half sleep when she felt him entering her again. She said, “You’d better not have HIV” and he said: “Of course not,” but “she couldn’t be bothered to tell him one more time because she had been going on about the condom all night. She had never had unprotected sex before”.“She felt that it was too late. He was already inside her and she let him continue. She didn’t have the energy to tell him one more time. She had gone on and on about condoms all night long.” Witness Katarina Svensson: “Sofia also said that, when she was half asleep on her side, she had been aroused from slumber to feel that Assange was inside her.”

The Swedish prosecutor Marianne Ny later develops these allegations into Rape: “On 17 August 2010, in the home of the injured party Sofia Wilén, Julian Assange deliberately consummated sexual intercourse with her by improperly exploiting that she, due to sleep, was in a helpless state. The sexual act was designed to violate the injured party’s sexual integrity.”

Anna Ardin stated in the Aftonbladet: “It is quite wrong that we were afraid of him. He is not violent, and I do not feel threatened by him.” Anna Ardin alleged in her unrecorded ‘narrative’ police interview: “Anna tried several times to reach for a condom, but Assange stopped her from doing so by holding her arms and prying open her legs while trying to penetrate her with his penis without a condom. Assange asked Anna what she was doing and why she was squeezing her legs together. Anna then told him that she wanted him to wear a condom before he came in her. At that, Assange released Anna’s arms and put on a condom that Anna fetched for him.” Finally the condom was in use, however, “Anna is convinced that when he withdrew from her the first time, Assange deliberately broke the condom at its tip and then continued copulating to ejaculation. To my question Anna replies she did not look closely at the condom in order to see if it was broken in the way that she suspected; but she believes that she still has the condom at home and will check to see.” According to witness Donald Boström: “And I have to tell you that we also had sex at an early stage at my place, and right in the midst of the act he destroyed the condom.” Julian Assange’s “not violent” behavior and use of a condom when asked, is later developed into Unlawful Coercion and Sexual Molestation by Marianne Ny in the European Arrest Warrant.

A ‘worn’ looking condom, split at the end was submitted as evidence by complainant Anna Ardin 12 days after the alleged incident. It was examined by two forensic laboratories and was found to contain absolutely no chromosomal DNA fragments from either the complainant or Julian Assange. Chromosomal or nuclear DNA in dried stains is remarkably resilient to degradation and can remain detectable for years. The laboratories then applied more refined techniques to the condom. According to sources, an almost undetectable speck of mitochondrial DNA was found. Mitochondrial DNA, if there are absolutely no chromosomal DNA fragments present, can only come from hair or nails. Any condom used for sex should be awash with chromosomal DNA fragments from both parties.

Anna Ardin also alleged in her unrecorded ‘narrative’ police interview: “On one occasion (on Wednesday, 18 August) he had suddenly removed all the clothes from his lower body, and then rubbed his lower body and erect penis against Anna. Anna states that she felt this was strange and unpleasant behaviour, and had therefore moved down to a mattress on the floor and slept there instead of on the bed with Assange.” Julian Assange’s alleged behavior when sharing a single bed with the woman he’d had sex with, is later developed into Sexual Molestation by Marianne Ny in the European Arrest Warrant.

UK CPS Disclosure Manual Chapter 35. The duty of candour: 35.51. Prosecutors must bear in mind that the description of the conduct contained in an extradition request will usually be the only information upon which the extradition proceedings (including decisions on such matters as the question of bail) will be based. 35.52. It is therefore of the utmost importance that the description of the conduct alleged is framed with the greatest care; it is an essential protection to the person whose extradition is sought. 35.53. Whether or not evidence in support of the request is required to be submitted under the extradition scheme in question, the prosecution case must always be put accurately and fairly. 35.54 If there is a variance between the case as outlined in the extradition request and that which is subsequently put in court following the accused’s extradition, there is a risk that the proceedings may be stayed on the grounds of abuse of process.

On the same day that Anna Ardin is interviewed (21st of August), the police dossier is reviewed by prosecutor Eva Finné, to whom the case has been transferred at the direction of Prosecutor-General Anders Perklev. Eva Finné states: “I do not believe there is any reason to suspect that Julian Assange has committed rape,” The only remaining suspicion is that Julian Assange may have physically but not sexually molested Anna Ardin. The arrest warrant is cancelled.

On the 22nd of August, Anna Ardin learns the case is likely to be dropped, she telephones Claes Borgström asking for help.

On the 25th of August, Eva Finné decides to dismiss all sex related charges. “I have discontinued the preliminary investigation of the charge originally designated as rape. There is no suspicion of any crime whatsoever. I have gone through the interview with the complainant Sofia Wilén and as previously noted, the information which has emerged from the interview with the complainant is such that there is no longer any suspicion of rape. This does not mean that I do not find her testimony reliable. I have studied the interview to determine if there are grounds for suspicion of some other crime, primarily molestation or sexual molestation, but find that such is not the case according to my analysis.” The non-sexual molestation of Anna Ardin is to be further investigated.

Irmeli Krans, is not pleased with this decision. She writes on her Facebook page: “What the heck is this??? Judgement zero!!!” “SCANDAAAAAAAAL!!!!! My god!!! Scandal in every newspaper and broadcast news report. But our dear, eminent and exceedingly competent Claes Borgström will hopefully establish a little order!” Later she posts: “The overrated Assange bubble ready to burst.” “Way to go, Claes Borgström!!!”

On the 27th of August, Claes Borgström submits a formal request for the reconsideration of Eva Finné’s decision.

By the 29th of August, he begins asserting that Julian Assange is guilty of two rapes.

In an interview in the Aftonbladet tabloid newspaper, when asked why Anna Ardin at first did not believe that she had been raped, Claes Borgström explains: “She is not a lawyer.” When asked, did his clients fully support the move to proceed against Assange? “Yes, yes. They do. At the same time, maybe, if they had known from the very beginning what would happen, maybe they would not have gone to the police at all. I don’t know.”

At the request of Claes Borgström, prosecutor Marianne Ny announces (1st of September) that Julian Assange is once again suspected of rape, and that Eva Finné’s sole remaining suspicion of non-sexual molestation is to be “expanded” to include several instances of sexual coercion and sexual molestation.

On the 15th of September Marianne Ny gives permission (via Björn Hurtig, Julian Assange’s Swedish attorney) for Julian Assange to leave the country on the , however, he waits another two weeks before leaving to see if he can get matters cleared up. Björn Hurtig is still asking between 15th and 21st of September if an interview could be arranged “in the next few days”, every request is denied for one reason after another, “the police officer was ill”.

On the 27th of September, Julian Assange leaves Sweden returning to England via Berlin, to oversee the IraqWarLogs disclosures.

On the 18th of November, Marianne Ny issues a Swedish warrant for the arrest of Julian Assange on “reasonable suspicion” of rape, sexual molestation and unlawful coercion. Marianne Ny states that the warrant was needed because it had been impossible to arrange an interview with Julian Assange. However, her only attempt to arrange an interview occured on the 21st of September (19 days after she took over the case) and consisted of just two SMS messages and two telephone calls to Björn Hurtig. By the time this request was made, Björn Hurtig couldn’t reach Julian Assange who was by then engaged in the IraqWarLogs release. No other effort was made by Marianne Ny to arrange an interview. Björn Hurtig continued to attempt to arrange an interview after Julian Assange had left for England and was free from the IraqWarLogs work; all requests are denied without any reason being given.

Swedish prosecutor Marianne Ny refused to provide Julian Assange or his lawyers with information on the allegations against him in writing. This violates the Swedish Code of Procedure (RB 23:18.), the European Convention of Human Rights (article 5) and the EU Fundamental Charter on Human Rights. The prosecution also refused all voluntary offers for cooperation that fit under the Mutual Legal Assistance Protocol, such as making use of alternative methods to interview Julian Assange. Marianne Ny repeatedly stated in the press that British and Swedish law prevented her from questioning Julian Assange in London. In a witness statement submitted in the extradition proceedings 04.02.2011, she admitted that it was possible for her to interview Assange in London within the framework of Mutual Legal Assistance. However, Marianne Ny, (apparently unaware of the contradiction) then claimed that would not be ”an appropriate course” to take, because she considered it necessary to interrogate Assange “in person”. Under Sweden’s Code of Judicial Procedure “the investigation should be conducted so that no person is unnecessarily exposed to suspicion, or put to unnecessary cost or inconvenience;” (Chapter 23, Section 4) it is strange that Anna Ardin was allowed to give her evidence via telephone to a police station several miles away and Julian Assange, who stands to suffer a rather greater inconvenience and perhaps even endangerment, is not.

On the 20th of November, Marianne Ny issues a European Arrest Warrant and authorizes Interpol to post a Red Notice on Julian Assange- the highest priority alert, which is usually reserved for the most serious criminal suspects.

The ‘unusual handling’ of the case by Marianne Ny and the mounting risk of being extradited to the United States finally leads Julian Assange to contest the EWA and extradition to Sweden.

At the extradition hearing 07.02.11 City of Westminster Magistrates’ Court, the mismatches and exaggerations between the European Arrest Warrant (EAW) and the original accusers’ statements to the Swedish police are revealed. In particular the original police reports showed – contrary to the EAW – absence of alleged rape, absence of alleged force or injury, admission in both cases of consensual sex on the same occasions as the allegations, and splitting of a condom used with plaintiff 1 rather than failure to use one. Text messages exchanged between complainants and their friends completely contradict the factual allegations in the EAW issued for Julian Assange and cast immense doubt on the allegations. Judge Howard Riddle of the City of Westminster Magistrates’ Court stated that Mutual Legal Assistance, “was a more proportionate response than issuing an EAW.” On the 8th of October 2012, regarding sureties, Riddle stated, “the possibility that Mr Assange has a defence of reasonable cause to the allegation of failure to surrender cannot be excluded. The same applies when any defendant apparently absconds.”

The UK High Court has set a further precedent regarding the use of EAWs, UK citizens can now be extradited without charge to Europe, merely for questioning. In contrast to the UK High Court judges, the Irish Supreme Court recently ruled that extradition under the EAW without charge is not legal. The UK has recently announced that it intends to withdraw (opt-out) from the EAW system in 2014. A further precedent means that an ‘investigating prosecutor’ can now be viewed as an impartial ‘judicial authority’. In EAW extradition cases the judges are forbidden from testing the evidence to ensure that there is a prima facie case and are directed by the Framework Decision governing EAWs to follow “mutual recognition” of European justice systems, i.e. “trust” that judicial systems function well and fairly and that judges and prosecutors act impartially. Marianne Ny was in possession of the report from the Swedish National Forensics Lab regarding the condom evidence three weeks before she filled out the European Arrest Warrant describing the ‘torn’ condom encounter as an offence of sexual molestation. It is alleged that the grace period to make an appeal to the ECHR was reduced by the Supreme Court from 14 days to zero days – making it impossible for Julian Assange to take his case to the ECHR before his Supreme Court appeal time period expired and that this happened after Marianne Ny made a request to the UK’s Crown Prosecution Service.

When the politician-lawyer Claes Borgström had the Julian Assange case re-opened, he was in the midst of an election (he would later become the publicly-financed representative of Anna Ardin and Sofia Wilén). At this time, Claes Borgström’s re-election prospects were in difficulties; the political tide in Sweden was shifting decisively towards the centre-right Alliance Party and he had been heavily criticised for failing to protect his mentally disturbed client’s interests (Thomas Quick) in a case that was rapidly becoming known as Sweden’s most infamous miscarriage of justice. Recently Anne Ramberg, Secretary General of the Swedish Bar Association, investigated e-mail conversations (regarding a media campaign seeking to mitigate the depth of the Quick scandal) between Claes Borgström, Supreme Court Justice Göran Lambertz, prosecution lawyer Christer van der Kwast and interrogator Seppo Penttinen. The Bar Association board has decided to refer the case for trial in the Disciplinary Committee.

The similarities between Claes Borgström in the Julian Assange case and Giuliano Mignini in the Amanda Knox case are startling. Both were recently disgraced senior lawyers, both attempted to used a high profile case to salvage their reputations, seeking to deflect attention from damaging ongoing investigations into their conduct; and both succeeded only in condemning themselves further, whilst injuring everyone connected with the cases.

Thomas Bodström, the Swedish Justice minister responsible for the CIA renditions and subsequent torture of Ahmed Agiza and Muhammad al-Zery (two Egyptians citizens seeking asylum in Sweden), and Claes Borgström are business partners in a law firm (Borgström & Bodström Advokatbyrå). Claes Borgström is a friend of Anna Ardin’s, Irmeli Krans’s and Marianne Ny’s; he is the Social Democrat Party’s spokeperson on gender equality, he claims that all men carry a collective guilt for violence against women and has in this context supported Gudrun Schyman’s “Man Tax”.

Thomas Bodström, Claes Borgström, Marianne Ny, Irmeli Krans and Anna Ardin all have political ties to the Social Democrat Party. Thomas Bodström and Anna Ardin are members of a Christian faction of the Social Democrat party, the “Brotherhood Movement” (Bröderskapsrörelsen). On Irmeli Krans homepage she has published pictures of herself together with the retired leader of the party, Mona Sahlin, and the former minister Thomas Bodström.

Almost nothing is known about Sofia Wilén.

Both the EAW and the Interpol red-notice were issued for Julian Assange by Sweden just before Wikileaks began to publish Cablegate.

There is no bail system in Sweden; Julian Assange would be held in a remand prison throughout any proceedings and at any time the United States can file their extradition warrant. He would then remain in prison until extradition. Once in Sweden, Julian Assange will no longer be able to seek political asylum.

Very little attention has been given to the temporary surrender (sometimes called ‘conditional release’) mechanism that Sweden established bilaterally with the United States in their 1984 treaty (TIAS 10812) which supports the contention that an extradition from Sweden would be rather more straightforward than from the UK.

Tony Kevin, Australian ambassador to Poland (1991–94) and Cambodia (1994–97): “If he is soon extradited from the UK to Sweden, as now seems likely, he faces the danger of early ‘temporary surrender’ from there to the US, under a Swedish-US arrangement for transferring people charged with crimes in both countries. This enables the two governments to avoid procedural requirements and opportunities for appeal that exist under normal extradition arrangements. Assange could then face very serious charges in the US. Cables recently obtained by the Sydney Morning Herald under Freedom of Information from the Australian Embassy in Washington confirm that since 2010 the US Justice Department has conducted an ‘active and vigorous inquiry into whether Assange can be charged under US law, most likely the 1917 Espionage Act’”.

The Stratfor emails, gathered by the hacker collective Anonymous and published on WikiLeaks (the so-called GIFiles), indicate a secret indictment against Julian Assange; this information was also published in Rolling Stone 28.02.12. In one of the emails, sent to Stratfor intelligence analysts on 26.01.11, the company’s vice-president for intelligence, Fred Burton, wrote: “We have a sealed indictment on Assange.” Stratfor’s vice-president of public policy, Bart Mongoven, writes that Assange should face “whatever trumped-up charge is available to get this guy and his servers off the streets.”

ABC Four Corners Andrew Fowler 23.06.12: “Four Corners has obtained a copy of a subpoena from a grand jury which is examining evidence for possible charges relating to ‘conspiracy to communicate or transmit national defence information’ and obtaining ‘information protected from disclosure from national defence’. Critically, the subpoena (Grand Jury case number: 10GJ3793) contains the identifying codes 10 and 3793”. Michael Ratner: “There’s a grand jury currently sitting in Alexandria, Virginia, and it’s interesting the grand jury’s number is 10, standing for the year it began. (There’s) GJ, which is grand jury, and then 3793. Three is the conspiracy statute in the US and 793 is the espionage statute. So what they’re investigating is 3793; conspiracy to commit espionage.”

The Correction of David Allen Green’s ‘Legal Myths about the Assange Extradition’

Whenever the Julian Assange extradition comes up in the news, many of his supporters make various confident assertions about legal aspects of the case.
David Allen Green is but one lawyer, and as we all know, the legal profession exists to have internal disagreements. It is part of the mundane work of a lawyer to take laws, precedents and facts, and actively rework them so as to service a prior agenda. Lawyers fabricate arguments to fit paid-for biases such as “that man is guilty,” or “my client is innocent.” That is what they do. Even the most mediocre ones are passingly good at it.
Readers are therefore well advised to always exercise caution when offered ‘legal expertise’ masquerading as journalism. Journalism is the documentary approach to truth. ‘Legal expertise’ is most often a rhetorical approach to a longed-for conclusion.

With this in mind, introductory paragraphs like the following, purporting to offer The Truth According To David Allen Green, should already put readers on alert:

Some Assange supporters will maintain these contentions regardless of the law and the evidence – they are like “zombie facts” which stagger on even when shot down; but for anyone genuinely interested in getting at the truth, this quick post sets out five common misconceptions and some links to the relevant commentary and material. It complements a similar post on the leading Blog That Peter Wrote.

“Zombie facts” is an unfortunate coinage, because a “fact” is, according to any classical epistemology, something that makes a proposition true. The world is the totality of facts. A fact cannot be anything other than the case. Anyone who “shoots down” a fact is, by definition, uttering a false statement. If you find yourself confronting a “zombie fact,” which just refuses to die, that means that you are just being wrong, over and over again. And as it turns out, several of David Allen Green’s now widely-dispersed ‘rebuttals’ are seriously disingenuous.

One: “The allegation of rape would not be rape under English law”

This is flatly untrue. The Assange legal team argued this twice before English courts, and twice the English courts ruled clearly that the allegation would also constitute rape under English law. (See my post at Jack of Kent for further detail on this.)

Never reluctant to exploit a tautology, David Allen Green points out here that an allegation of rape cannot be anything other than an allegation of rape. The Swedish prosecutor defined the allegation in question at a sufficient level of generality to bring it within the definition of rape accepted in UK law. The UK court was not entitled to look beyond that ostensive definition, and decided that the requirement of dual criminality was met: “I have looked only at the language used in the warrant.”

This is all very neat, but the people David Allen Green is taking aim at here were arguing something like “if Assange was to be tried on the details of this allegation in the UK, he probably would not be convicted.” That argument tends to examine the details in the police documents under the lens of UK criminal law, and speculate on the hypothetical outcome of a trial on those facts, something that the UK courts did not do. There may be a rebuttal of that argument, too. But it would likely require more than a paragraph, and isn’t the one that David Allen Green presents here. This “zombie fact” hasn’t even taken a hit.

Two: “Assange is more likely to be extradited to USA from Sweden than the United Kingdom”

This is similarly untrue. Any extradition from Sweden to the United States would actually be more difficult. This is because it would require the consent of both Sweden and the United Kingdom. (See Francis FitzGibbon QC’s Nothing Like the Sun for further detail on this.)

One can add that there is no evidence whatsoever that the United Kingdom would not swiftly comply with any extradition request from the United States; quite the reverse. Ask Gary McKinnon, or Richard O’Dwyer, or the NatWest Three.
In reality, the best opportunity for the United States for Assange to be extradited is whilst he is in the United Kingdom.

Firstly: Pay attention to this one, especially the statement “it would require the consent of both Sweden and the United Kingdom.” Because it’s going to come up in Point Three.

Secondly: Given the complexity of extradition law, where you end up churning into political bedrock wherever you dive, ultimately all ‘expert opinion’ on this point is speculative. Arguments that it would be easier to extradite from Sweden do not hinge solely on the treaties, but make reference to the pragmatic realities of London’s larger and more robust legal community. They hold that while Assange would be more vulnerable to extradition de jure, he would be in a de facto stronger position. The UK’s almost unilateral extradition treaty with the US is of course shameful, and arguments taking that into account certainly merit attention.

However, what David Allen Green fails to mention is that it is all moot. Neither the UK nor Sweden are attractive places from which to be fighting extradition to the United States. We can quibble over which is worse, but that’s missing the point. The extradition case kept Assange pinned in the UK under bail conditions. Far from wishing to remain vulnerable to the terms of the UK-US treaty, Assange was forced to be. That “the United Kingdom would.. swiftly comply with any extradition request from the United States” is most likely true. That only further justifies Assange’s asylum bid.

Three: “Sweden should guarantee that there be no extradition to USA”

It would not be legally possible for Swedish government to give any guarantee about a future extradition, and nor would it have any binding effect on the Swedish legal system in the event of a future extradition request. 

By asking for this ‘guarantee’, Assange is asking the impossible, as he probably knows. Under international law, all extradition requests have to be dealt with on their merits and in accordance with the applicable law; and any final word on an extradition would (quite properly) be with an independent Swedish court, and not the government giving the purported ‘guarantee’. (See extradition and criminal lawyer Niall McCluskey for further detail on this.)

Also Sweden (like the United Kingdom) is bound by EU and ECHR law not to extradite in circumstances where there is any risk of the death penalty or torture. There would be no extradition to the United States in such circumstances. (See Mark Klamberg’s blog for further information on this.)

Craftily though he has presented it as such, a request that Sweden give assurances is not a request that it interfere with its own juduciary. It is true that – in principle – no guarantee could have any effect on extradition proceedings in the Swedish courts. However, the final decision on whether to extradite someone in Sweden is an executive decision. After the courts determine that an extradition is possible, there is decisive political input. Consider the determination of the Australian diplomatic mission, in Sweden, writing home to Canberra:

The process required a request from another state, a decision by Sweden’s Supreme Court on whether extradition was possible, and finally a decision by The process required a request from another state, a decision by Sweden’s Supreme Court on whether extradition was possible, and finally a decision by  government to go forward with the extradition. In the Swedish system of ‘consensus decision-making’, a decision by government entailed a decision by a Cabinet of Ministers. As advised previously, in cases where a European Arrest Warrant had been used, the consent of the surrendering state (in this case the UK) was also required.

and:

Any temporary surrender or extradition (to a non-EU or Nordic country) required the approval of the Prosecutor-General, the Supreme Court and then the Government (and, in Assange’s ase, the UK Government due to the application of the European Arrest Warrant). The Swedish Government could deny an extradition or temporary surrender that the Supreme Court had approved, but if the Supreme Court denied an extradition or temporary surrender application, then the matter ended there. i.e. the Government could not approve a process that the Supreme Court had rejected.

In fact, David Allen Green had already waved this ‘zombie fact’ through the perimeter fence, when he stated “it would require the consent of both Sweden and the United Kingdom.” Both countries are in a position to give assurances, and their refusal is conspicuous.

Four: “The Swedes should interview Assange in London”

This is currently the most popular contention of Assange’s many vocal supporters. But this too is based on a misunderstanding.

Assange is not wanted merely for questioning.

He is wanted for arrest.

This arrest is for an alleged crime in Sweden as the procedural stage before charging (or “indictment”). Indeed, to those who complain that Assange has not yet been charged, the answer is simple: he cannot actually be charged until he is arrested.

It is not for any person accused of rape and sexual assault to dictate the terms on which he is investigated, whether it be Assange or otherwise. The question is whether the Swedish investigators can now, at this stage of the process, arrest Assange.

Here the best guide is the High Court judgment. In paragraph 140, the Court sets out the prosecutor’s position, and this should be read in full be anyone following this case:

140. Mr Assange contended prior to the hearing before the Senior District Judge that the warrant had been issued for the purpose of questioning Mr Assange rather than prosecuting him and that he was not accused of an offence. In response to that contention, shortly before that hearing, Mrs Ny provided a signed statement dated 11 February 2011 on behalf of the Prosecutor:
“6. A domestic warrant for [Julian Assange’s] arrest was upheld [on] 24 November 2010 by the Court of Appeal, Sweden. An arrest warrant was issued on the basis that Julian Assange is accused with probable cause of the offences outlined on the EAW.
“7. According to Swedish law, a formal decision to indict may not be taken at the stage that the criminal process is currently at. Julian Assange’s case is currently at the stage of “preliminary investigation”. It will only be concluded when Julian Assange is surrendered to Sweden and has been interrogated.
“8. The purpose of a preliminary investigation is to investigate the crime, provide underlying material on which to base a decision concerning prosecution and prepare the case so that all evidence can be presented at trial. Once a decision to indict has been made, an indictment is filed with the court. In the case of a person in pre-trial detention, the trial must commence within 2 weeks. Once started, the trial may not be adjourned. It can, therefore be seen that the formal decision to indict is made at an advanced stage of the criminal proceedings. There is no easy analogy to be drawn with the English criminal procedure. I issued the EAW because I was satisfied that there was substantial and probable cause to accuse Julian Assange of the offences.
“9. It is submitted on Julian Assange’s behalf that it would be possible for me to interview him by way of Mutual Legal Assistance. This is not an appropriate course in Assange’s case. The preliminary investigation is at an advanced stage and I consider that is necessary to interrogate Assange, in person, regarding the evidence in respect of the serious allegations made against him.
“10. Once the interrogation is complete it may be that further questions need to be put to witnesses or the forensic scientists. Subject to any matters said by him, which undermine my present view that he should be indicted, an indictment will be lodged with the court thereafter. It can therefore be seen that Assange is sought for the purpose of conducting criminal proceedings and that he is not sought merely to assist with our enquiries.”

And in paragraph 160 of the same judgment, the High Court explains why such a requirement is not “disproportionate” as submitted by Assange’s lawyers:

160. We would add that although some criticism was made of Ms Ny in this case, it is difficult to say, irrespective of the decision of the Court of Appeal of Svea, that her failure to take up the offer of a video link for questioning was so unreasonable as to make it disproportionate to seek Mr Assange’s surrender, given all the other matters raised by Mr Assange in the course of the proceedings before the Senior District Judge.
The Prosecutor must be entitled to seek to apply the provisions of Swedish law to the procedure once it has been determined that Mr Assange is an accused and is required for the purposes of prosecution.
Under the law of Sweden the final stage occurs shortly before trial. Those procedural provisions must be respected by us given the mutual recognition and confidence required by the Framework Decision; to do otherwise would be to undermine the effectiveness of the principles on which the Framework Decision is based. In any event, we were far from persuaded that other procedures suggested on behalf of Mr Assange would have proved practicable or would not have been the subject of lengthy dispute.

Mystifyingly, when read closely, the above argument is inconclusive as to why the Swedish prosecutor cannot seek to question Assange in London. She does not unequivocally state, as does David Allen Green, that he is to be indicted, leaving open the possibility that the outcome of his interrogation would undermine her view of the case. In a departure from at least three statements she made in 2010, she no longer claims that it would be illegal to question Assange in London, only that it would be “an inappropriate course.” The court is prevented by the terms of the EAW regime from reviewing her claim that it would be an “inappropriate course,” instead being obliged to accord “mutual recognition and confidence.”

While one might feasibly defer to this High Court judgment, given the situation at the time, Assange went on to invoke his right to seek asylum from the government of Ecuador. The government of Ecuador, in its consideration of his asylum claim, invited the prosecutor to interrogate Assange in the embassy in London, under the Mutual Legal Assistance provisions mentioned in the High Court judgment. The Swedish prosecutor refused to do so, reportedly as an exercise in the upkeep of Swedish “prestige”. Against David Allen Green’s expert legal opinion on Swedish criminal process is that of a Swedish professor emeritus of international law, Ove Bring, who stated:

It would have been possible to go to London directly, many months ago, when he had just arrived there. But now it’s a matter of prestige, and it’s a matter of prestige not only for prosecutors, but for the Swedish legal system. To make an exception for him, because he is a famous person, is not a very good idea now. The exception should have been made earlier on, when it was less dramatic.

Perhaps David Allen Green and Ove Bring would arrive at a mutual agreement over this question, were they to correspond over it. If they did, they would not have been prohibited from considering the substance of the question by the terms of the European Arrest Warrant system, as the High Court was. For now, it is enough to note that legal opinion is seldom univocal.

Five: “By giving Assange asylum, Ecuador is protecting freedom of the press”

This is perhaps the strangest proposition.

Ecuador has a woeful record on freedom of the press. It is 104th in the index of world press freedom, and even the quickest glance at the examples of press abuse in Ecuador accumulated by Reporters Without Borders and Index on Censorship indicate a regime with a starkly dreadful and illiberal record on freedom of expression.

It has even recently been reported that a blogger called Alexander Barankov is to be extradited by Ecuador to Belarus, of all places, where he may face the death penalty.

Whatever the reason for Ecuador granting political asylum to Assange, there is no basis for seeing it as based on any sincere concern for media freedom either in Ecuador or elsewhere.

The ostensive reason Ecuador granted Assange asylum was to shelter him from political persecution. The claim that, in doing so, it protects freedom of the press, is ancillary. This ‘zombie fact’ is from the wrong horror movie.

Ecuador has been roundly savaged in the British press lately, in order to prove that Assange is a hypocrite for seeking asylum from a country with an imperfect press freedom record. On this, Greenwald is strong:

Apparently, activists should only seek asylum from countries with pristine human rights records, whichever countries those might be: a newly concocted standard that was conspicuously missing during the saga of blind Chinese human rights activist Chen Guangcheng at the US embassy; I don’t recall any western media outlets accusing Guangcheng of hypocrisy for seeking refuge from a country that indefinitely imprisons people with no charges, attacked Iraq, assassinates its own citizens with no due process on the secret orders of the president, bombs funerals and rescuers in Pakistan, uses extreme force and mass arrests to try to obliterate the peaceful Occupy protest movement, wages an unprecedented war on whistleblowers, prosecutes its Muslim citizens for posting YouTube videos critical of US foreign policy, embraces and arms the world’s most oppressive regimes, and imprisoned Muslim journalists for years at Guantánamo and elsewhere with no charges of any kind.

It may, however, be overstating the case to say that Ecuador has a “starkly dreadful and illiberal record on freedom of expression.” The assertion derives from a lazy reliance on cherrypicked NGO reports. Reporters Without Borders is an NGO. NGOs are a typical go-to source for suspicion-free ammunition against the whipping boy of the week, for writers who don’t know the first thing about Ecuador. RSF’s principal claim to prominence is its annual Press Freedoms Index – a methodologically bankrupt study ranking the countries of the world on their relative press freedoms, based on subjective assessment surveys filled out by small pools of handchosen RSF correspondents in each country. It is approximately as objective a measure of comparitive press freedoms as Channel Four is a measure of the world’s “funniest” comedians.

RSF is not without controversy as to its funding structure and organizational biases, with some of its main donors drawn from the Cuban ex-pat community. It does not have a great track record of impartiality on nominally socialist Latin American states. More discerning researchers will have already determined that the so-called “media crackdown” in Ecuador is the result of the introduction of a strong UK-style media regulation regime in Ecuador – where regulatory decisions on the use of spectrum have remained unenforced for years. In the UK, pirate radio stations are routinely raided by the police, and shut down. There it is called “regulation.” When a now twice reelected, popular-by-supermajority Latin American socialist government does it, it is “starkly dreadful and illiberal.” OFCOM’s banishment of Press TV – at a time when the US-UK axis is stoking hostility towards Iran – has been quickly forgotten.

The most likely response to the above will be scorn and dismissal from David Allen Green. At this point, however, the ‘zombie facts’ have overrun the compound.

David Allen Green is the legal correspondent of the New Statesman.

21.08.12