The Julian Assange Case: Assessing the Respondents' Narrative - II

[Continued from Part I]

II. The Context

1. A Dilemma

At the outset we are confronted with a dilemma of sorts: given that our primary focus is on the legal case against Assange, how much weightage should we give to Assange's and Wikileaks's ongoing political battle with the US administration, the outermost layer so to speak? There are some who argue that the two are not connected, and that Assange's persecution derives exclusively from his alleged sexual misconduct. This view is shared by even those who style themselves liberals, such as Kevin Huffman of The Washington Post. Responding to Michael Moore's $20,000 contribution towards Assange's bail, he writes, "Moore asserts that Assange is under attack solely because he had the courage to expose American war crimes . . .. Well, that and allegedly assaulting innocent women (one awake and one asleep)." In the very next paragraph, he goes on to say:

I'm not sure which piece of the whole episode offends me the most: Putting up bail money for an accused rapist you don't know simply because you like his politics? Defending the release of documents that harm confidential American diplomacy (i.e. the very efforts that may help keep us from entering unilateral wars in the first place)? Or the crushing blow this strikes against my deeply held belief that the far right is crazier than the far left?

The problem here is that it is inaccurate on two major counts. Assange has not been accused of rape in any formal sense: not till date, and certainly not in 2010 when the article was written (the author himself betrays some confusion on the point, since in the preceding paragraph he describes Assange as allegedlyassulting women). Furthermore, when was the last time America started a "unilateral war" (whatever that means) because its efforts at diplomacy were frustrated by document leaks? Thus Huffman's perspective fails as a general critique of Assange and also, and more important to us, as a justification for separating the legal aspects of the Assange case from the political. In fact he achieves the opposite of what presumably he had set out to do: he focusses attention on the shortcomings of the views he espouses. If the legal basis of the action against Assange is so tenuous, then why at all has it been undertaken? Is it to satisfy objectives that lie beyond the legal, perhaps even in the realm of the political? And equally pertinently, why is there so much misinformation spread about Assange? The very existence of these issues urges a closer look at the political background, if only to serve as the context in which the legal issues should be examined.

2. Official and Unofficial US Stances

The role Assange and his Wikileaks team has played in procuring and disclosing top-secret information in the public interest is well known. By revealing hidden truths on the "war on terror", he inflicted on the American military, security and political establishment arguably more embarrassment than it has ever had to face. The establishment's response has been one of unprecedented ferocity. In 2010, President Obama declared Assange's actions to be "deplorable". Robert Gibbs, then the White House Press Secretary, went on recordsaying "Wikileaks and people that disseminate information to people like this are criminals" (as the reporter wryly pointed out, this amounted to declaring Assange guilty even before charges have been framed). At a press briefing, P. J. Crowley, then Assistant Secretary at the State Department, accused him of pursuing a hidden political agenda and trying to undermine international cooperation. (Ironically, in 2011 Crowley himself resigned as State Department spokesperson over the harsh treatment of suspected Wikileaks source Bradley Manning.)

Not surprisingly, Republican leaders have been even more scathing in their criticism. Newt Gingrich has claimed he is engaging in terrorism; Muke Huckabee reportedly demanded he be given the death penalty. Sarah Palin seems to have gone a step further. According to the Christian Science Monitor, her tweets described Wikileaks's acts as "treasonous", and suggested the administration use "all necessary means to respond to and defeat WikiLeaks." It is not clear whether she considers "all necessary means" to include extra-legal measures such as kidnapping or assassination; however, the statement is certainly suggestive. But this is not to say such egregiousness is restricted to Republicans alone. Without doubt the finest gem I have encountered so far is a statementmade on the Fox Business Show by Bob Beckel, a Fox News analyst close to the Democratic Party: "This guy's a traitor, he's treasonous, and he has broken every law of the United States. And I'm not for the death penalty, so...there's only one way to do it: illegally shoot the son of a bitch." It is difficult to say which idea is more amusing: that illegally killing a person is the right way to deal with a person who has supposedly broken "every law of the United States", or that the moral repugnance associated with lawful execution does  not apparently extend to illegal assassination.

In contrast to the strong, at times over-the-top, reactions seen, the response of the US government appears surprisingly low-key. So far, its most visible actions are the dubious expedient of extra-judicially coercing banks and credit card companies into rescinding their contracts with Wikileaks. I had briefly referred to a prevalent contention that even the extradition case comprises a questionable tactic of this nature: the rape and other charges against him are a mere pretext to get him to Sweden, from where he can be extradited or "temporarily surrendered" (or some other euphemism-ed) to the United States. Extradition law experts such as Julian Knowles QC consider this possibility unlikely for a variety of reasons, including procedural issues and the overriding application of  Article 10, ECHR and the First Amendment to the US Constitution. Regardless, the question still remains: why would US resort to such underhand tactics in the first place? If its case is anywhere near as strong as the statements in the previous paragraph suggest, then surely it can prosecute its interests in a legitimate manner?

Actually no, that is precisely where the US stance falters. Assange's guilt is still a matter of conjecture. Palin's and Beckel's claims of treason against America are clearly invalid, because treason can be committed only against one's own country, and Assange is a citizen of Australia (even the Christian Science Monitor report on Palin's tweets points this out). A Washington Post articledating back to 2010 points out that prosecution under the Espionage Act, 1917 will be difficult, since subsequent to its passing several Supreme Court decisions have expanded the ambit of First Amendment protections. Secondly, the documents leaked by Wikileaks have been published in several mainstream newspapers: hence "How do you prosecute Julian Assange and not the New York Times?" Notwithstanding these problems, the Post article reports several sources including Attorney General Eric H. Holder as saying investigations are ongoing and charges could be filed under the 1917 Act. That was two years ago. Till date, the US administration has neither formally instituted proceedings against him, nor even issued any authoritative statement as to which legal provisions he is supposed to have violated.

Recent reports, however, indicate US government lawyers have not only prepared a secret indictment, but have also convened a secret grand jury (see Dorling, Suroor). (Ironically, this information comes to us through further Wikileaks revelations.) If true, it only makes us wonder what purpose this cloak-and-dagger act is intended to serve. A possibility is that the indictment is based on grounds so weak that straightforward extradition requests based on it might not succeed. It might be speculated that this is also the reason behind the extraordinarily convoluted strategy of extraditing Assange first to Sweden and then to America, and then finally prosecuting him. Possession is truly nine-tenths of the law. In any case, the secrecy behind the indictment only succeeds in lending credence to theories that the rape charges are actually intended to get him to the United States.

3. The Justifications

From this increasingly murky scenario, we can identify two different sets of claims. The first restricts itself to the parameters of the law. It seeks that Assange should be executed, or at least severely punished; this necessarily presupposes Assange's acts are punishable under US law. The second postulates that regardless of what the law says, whatever Assange has done is just plain wrong, and he should be punished for it even if it means going beyond the ambit of the law. Though the two appear distinct, the space between the two is filled with several intermediate positions, comprising blends of the legal and the extra-legal in varying proportions. The preparation of a secret indictment suggests rendering Assange to US through indirect means, and then prosecuting him under law once he arrives in America. A variation on this theme entails trying him in secret, where he may possibly be denied certain due-process rights defendants are usually invested with in criminal trials. How far this is possible is a moot question, since Assange is not a member of the US military, and is therefore subject to the jurisdiction of civilian courts.

The character of the claims determine the justification they require. Those claims that restrict themselves to within the law must derive justification through the law. Those that recommend extra-legal measures must establish that the concerned acts are so heinous as to render extra-legal measures ethically and morally acceptable if legally doubtful. This may be applied  mutatis mutandis to hybrid claims also; each separate element within the claim will then need to be justified according to its legal or extra-legal character. It is not necessary to go into the specifics of this issue. All we need to acknowledge is that justifying any action against Assange comprises an onerous task. And secondly, notwithstanding these difficulties, it is necessary in the interests of free society for state and international agencies to justify their actions in this manner. Doing otherwise will only validate Pilger's comment on descending into totaliarianism.

As against this, how much substantiation has actually been provided in the Assange matter? Here we encounteer several problems. How do you justify secret indictments or extradition arrangements? Official sources cannot do so, for they are, well, secret and hence cannot be acknowledged. Others are also handicapped by this secrecy, because they must justify not only the indictments and other measures, but also the secrecy behind them. Official and independent commentators alike are impeded in justifying legal measures generally: one cannot justify legal action unless it is known what crime Assange is charged with. Attempts like Marc Thiessen's 2010 article are typical. He begins by asserting: "Let's be clear: WikiLeaks is not a news organization; it is a criminal enterprise." Just two sentences later the assertion trails off into weasel-words and equivocations: "These actions are likely a violation of the Espionage Act, and they arguablyconstitute material support for terrorism." (emphasis added)

Then come justifications rooted not in law but in certain facts perceived as wrongs in themselves regardless of legal backing. Of them, the most reiterated equates Assange to a terrorist waging a cyber-war against US (McFarland, Sarah Palin quoted in Beckford). Another popular conjecture is that these leaks are jeopardising America's relations with other countries (see Huffman, Collins). Theissen's article suggests the murder of valuable collaborators, by revealing their identity, which extrapolates into a threat to the "War on Terror" in general. The problem with all these is that they are either so far-fetched as to not merit any serious consideration (example: cyber-terrorism) or mere conjectures which are yet to be verified in any meaningful sense of the term. Another class of justifications gather around the notion that harm caused to US interests constitute ipso factoa cause of action. This rather uninformed thinking fails to distinguish between legitimate and illegitimate threats to national interests. The first is indistinguishable from the facts-perceived-as-wrongs-in-themselves class of justification. And the second is no justification at all; one might as well declare China a threat to US economic interests merely because it produces goods cheaply.

To conclude, then, we find that there has been serious attempt made to justify projected US actions. This remains true notwithstanding that justifications are essential to the 'free world' of which America claims to be a leading member. It is against this backdrop that we must examine the legal issues involved in the Assange case.

[Continued in Part III]

The Julian Assange Case: Assessing the Respondents' Narrative - I

I. Introduction

The problem with attempting a legal analysis of Julian Assange's case is that one does not know quite where to start. If I resort to a little fanciful imagery, the facts and issues involved appear to be arranged in several concentric layers. At the outermost layer stands Assange's and Wikileaks's work as activists/journalists, particularly the truths they have revealed about the US-led "War on Terror"; for this they have been both acclaimed as crusaders and reviled as anarchists and cyber-terrorists. At a deeper layer lie the charges of rapefiled against him in Sweden. Nested within this are the proceedings instituted on the basis of these charges for extraditing him from UK to Sweden. This engenders at a technical level several subsidiary issues such as whether the extradition order (or to be precise the European Arrest Warrant or EAW) was appropriate given the prima facieminimal evidence on record; whether the EAW should have been issued when Assange had not even been formally charged with any offence; whether the proceedings were otherwise motivated, and so on.

All these issues were adjudicated upon, and dismissed, by several UK courts. Finally, the sole point on which proceedings at the Supreme Court were grounded must constitute the innermost layer of all: the question whether or not a Swedish prosecutor satisfies the requirements of the term "judicial authority" and is thus qualified to issue an EAW. Construed according to its common law meaning, the term excludes prosecutors from its ambit and thereby invalidates the EAW, whereas a wider reading in accordance with the practice of civil law countries enables the Warrant to remain valid and thus enforceable. In other words, this entire episode ultimately comes to rest on the single question whether "judicial authority" ought to be construed according to its common law or civil law meaning - "which is to be master - that’s all", as Humpty Dumpty famously declared in Through the Looking-Glass.

Or is that all? Perhaps not. For one, commentators such as John Pilger suggest that pervasive links exist across the layers; specifically, the rape and other charges are a device to get him to Sweden, from where he can be further extradited to the United States. And we cannot ignore how the interpretation of "judicial authority" will impact on issues as diverse as free speech, the "war on terror", the right to information, the law of rape, and extradition. Moreover, and much more significantly in my opinion, when the issue is subjected to a close examination a pattern appears to replicate across all the layers. At stake in each layer is the question whether or not one or more civil or political right of the individual ought to be diluted in consideration of "larger" interests - at times national, at times transcending even that. The Wikileaks issue can be construed as an attack on free speech as well as the right to information and transparent governance, particularly in regard to the "War on Terror". While the Assange rape allegations may be perceived in terms of a feminist vindication in some quarters, to my mind the hard core of the issue lies not the offence of rape per se, but rather in the question whether an EAW may be legitimately issued merely for questioning a suspect very early on in the investigative process (and that too by ignoring exculpatory evidence), and whether it amounts to a denial of the accused's due-process rights. This renders into a straightforward individual-versus-the-state conflict which bears little connection to the issue of rape.

The interpretation of "judicial authority", our "innermost layer" so designated, might be considered the apotheosis of this tendency. In the common-law, the appellation "judicial" is invested with considerable significance. Authorities designated as such are invested with discretionary powers denied to other authorities. Consequently, as a safeguard against the arbitrary exercise of such powers, they are accountable not only to norms of legality and reasonability in common with other authorities, but also to more rigorous standards such as fairness and natural justice. These safeguards do not figure in the civil law conception of the term, which is considerably wider. Thus  construing "judicial authority" in accordance with its meaning in civil law will surely erode much of the protection and safeguards the common law conception of the term extends to individuals.

Thus we see that arguments favouring these "larger interests" raise perturbing concerns. To begin with, is all this legally valid, that is, do our legal systems permit such extensive scaling-back of civil and political rights? Even if its validity is not in question, what is the rationale behind, say, issuing an EAW and a red-corner Interpol notice within two months of reopening investigations, and that too without formally charging Assange as an accused? Even if it is conceded that Swedish authorities have the power to do so, have they, or anyone else, ever contended it was the right, or even an appropriate thing to do? And if so, on what grounds? Similarly, as it is the EAW system has been heavily criticisedbecause of the arbitrariness it has sustained in the past. Widening the ambit of judicial authority in this fashion will erode the protection the common law conception confers on individuals, and thereby render them further vulnerable to the caprices of any and every EAW Framework Decisionmember-state. Beyond considerations of expediency as defined by the need for an efficient Europe-wide system of extradition, what purpose will such widening serve?

Examining the outermost layers reveals that at least attempts have been made to project the "War on Terror" as reason or purpose. The inner layers, entailing issues predominantly legal in character, do not even aspire to such justifications. According to Pilger, the consequences of Assange's deportation "lie not in Sweden but in the shadows cast by America's descent into totalitarianism." In the sense that once Assange reaches Sweden he becomes vulnerable to be extradited further to US, Pilger is of course entirely right. However, it is equally true that the legalconsequences of the entire episode will be borne not so much by America as the law of Sweden, of UK, even EU law as a whole. And if the scaling-back of rights is anything like what is envisaged here, then surely developments here will impact on the entire "free world" as we know it. Suffice it to say, therefore, that a re-appraisal of what I refer to as the respondents' narrative (i.e.the gamut of arguments ranged against Assange) is urgently called for. It entails implications so far-reaching that regardless of the ultimate outcome of the case (that is, whether or not finally Assange is extradited to US), it needs to be ascertained what this narrative really stands for (legally and in the larger context), what its long-term consequences are and, most crucially, what it means for the individual.

To this end, I undertake here a scrutiny of three specific aspects of the extradition proceedings against Assange. First, tenability: This aspect addresses issues such as whether the arguments in favour of extradition are based on a valid or acceptable interpretation of laws, and also in this connection, whether the involved facts have been construed in a proper manner. Specifically, can scaling back civil and political rights on the scale contemplated be sustained under the very laws that recognised these rights in the first place? Second, justifications: Whether or not the respondents' stated positions lie within the letter of the law, civil and political rights are surely matters so consequential that abridging or curtailing them should be undertaken only for good reasons. So what kind of reasons have the respondents adduced in their favour? Is it their contention that the issue is of little consequence as such? Or that the law already has in place safeguards to replace the ones taken away? Or that even if no such alternate safeguards exist, nevertheless curtailing existing rights and protections is desirable for the greater common good, particularly in the context of the "War on Terror". Such justifications demand close scrutiny, because it is within them that the larger intentions and purposes of the respondents' position are embedded. Third,consequences: An issue of this magnitude is bound to bear multiple consequences, both intended and unintended. This holds particularly good for issues of interpretation. How will construing "judicial authority" according to its civil law meaning affect the EAW system? Will it aid or hinder the system's original aims and objectives?

In addressing these issues, I initially focus on the interpretation of "judicial authority", i.e.the innermost layer. This is for the simple reason that all the High Court had dismissed all the other issues raised, including whether an EAW could be issued merely for questioning a suspect, whether EAWs are appropriate for the offences alleged, and so on. I strongly disagree with this conclusion. In my view, these issues are not only of themselves of great significance, but also still formally relevant in the sense that they play a role the construction of "judicial authority". Hence the scope of this article ultimately extends to them also, albeit in an indirect manner.

[Continued in Part II]