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Another loss, and another round of debates. The Assange saga now moves to its next phase after the loss in the High Court that seemingly propels him closer to Sweden. The technicalities of the cases remain as they always have been, but they merely seem to be obfuscating the broader issues at stake. For all the seriousness of the allegations, which do require accounting, there is still a fundamental point to be made: he has not been charged.
These claims (rape, molestation, coercion) were contained in that most unimpeachable of documents called the European Arrest Warrant (EAW). The EAW must itself be valid, and correctly served on the person. Once that takes place, the person being served must show that it is disproportionate, an abuse of process, or otherwise a violation of the defendant’s human rights. If this cannot be done, the United Kingdom court must order the extradition.
Before the judges Lord Justice John Thomas and Justice Duncan Ouseley, four arguments were presented, and all systematically rejected. The issue of a competent authority was again raised by Assange’s lawyers. The EAW, in other words, could not be valid in that it did not emanate from an ‘independent person or body exercising judicial power and functions’. There was a large hurdle to overcome here as the EAW had already been certified by the Serious Organised Crime Agency (SOCA). Besides, argued the judges, a prosecutor could be deemed in some member states a ‘judicial authority’.
Then came the dual criminality requirement, which was relevant to the charges of sexual molestation and unlawful coercion. Again, the judges were not convinced. After all, the charge of rape was itself not one that was needed to satisfy that requirement at all.
A third ground of appeal was that Assange could not be said to have been charged at all. As he claimed after the trial proceedings, ‘I have not been charged with any crime in any country. Despite this, the European arrest warrant is so restrictive that it prevents UK courts from considering the facts of the case, as judges have made clear here today’ (CNN, Nov 2). The reasoning of the court was that there was sufficient gravity here in the complaints to suggest that Assange was wanted for more than mere ‘questioning’, and that he was an ‘accused’ party within the meaning of the Extradition Act 2003.
The final ground of appeal for Assange lay in the issue of proportion – that extradition would be a disproportionate response for someone who had only been accused of an offence. The judges were far from impressed with this line, arguing that Assange had not been accused of ‘a trivial offence’ but ‘serious sexual offences.’
Assange is having something of a bad trot in the courts. He has also had a run of sheer rotten luck. His expert witness, Bjorn Hurtig, did his level best to sabotage his previous case, claiming that the prosecutor had made no effort to interview Assange on the rape charge whilst the accused was still in Sweden. That claim was what Assange’s two other legal experts relied upon. The castle began crumbling, the extradition process suddenly seeming an awful reality.
The reality of then being extradited to the US once Assange finds himself in Sweden is very much on the cards. Some commentators in the US have speculated that he could well be prosecuted under the Espionage Act of 1917 for the dissemination of national defense information. The Act makes it a crime to disclose information ‘relating to the national defense’ to ‘any person not entitled to receive it’ (WSJ, Dec 8, 2010).
There are other features of the judgment to consider. For one thing, the judgment describes Assange as a journalist. Should Assange ever find himself in the none too cosy arms of American justice, this will bring up issues of the First Amendment. That, however, is entirely dependent on the restrictions placed on Assange’s exercise of that right. Given the Disneyland justice demanded by such advocates as Andrew C. McCarthy, writing for the National Review (Dec 8, 2010), ‘we should presume that constitutional protections do not extend to aliens located overseas, particularly those who are hostile to our government.’ While that will be quite a way down the track, the case throws up grave issues about how the EWA operates and how it curtails a judge’s capacity to look past it.
Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne.