10 Saturday Dec 2011, Field notes, a blog by senator scott ludlum
No-one was celebrating when it became apparent that the dense hour of argument and counter argument in the vaulted courtroom number 4 in London had resulted in a further stay of extradition for WikiLeaks editor-in-chief Julian Assange.The arguments turned on obscure but important skirmishes over the controversial use of European Arrest Warrants (EAWs) to transfer people from one country to another.
To get the technicalities out of the way, leave has been given for Mr Assange’s legal team to apply to the Supreme Court to have an argument heard that a politically appointed prosecutor in Sweden doesn’t qualify as a ‘Judicial Authority’ under mutual assistance agreements between Sweden and the UK.
The court would normally take up to six weeks – well into February 2012 – to decide if it wants to hear the argument, but someone behind the scenes appears to be in a serious hurry and it’s likely a decision will be made on December 19th, one day after the deadline for Mr Assange’s legal team to present their arguments. Depending on the outcome, Mr Assange may well shortly thereafter find himself in Gothenberg prison awaiting questioning and possible prosecution.
In the mean time, he will continue to live in legal limbo at Ellingham Hall in Norfolk with an electronic ankle manacle and a curfew for company. Not quite a cause for celebration, but it was nonetheless a valuable opportunity to take part in the post-hearing debrief where the tight knit team of lawyers, campaigners, hackers and troublemakers downloaded a year of suspense and misadventure for the benefit of travellers from afar.
Assange in person is focused and measured, warm and remarkably good humoured for someone who has deliberately aroused murderous fury amongst some of the most powerful people on the planet. The antidote to pervasive hostile surveillance appears to be cheerful self-surveillance – every conversation is recorded and documented to within an inch of its life – in addition to the occasional all-out transparency assault on the watchers themselves, for which the WikiLeaks founder now has a well deserved reputation.
Stockholm in winter is about as far from summer in Fremantle as you can get. It is a long way to chase another Australian citizen from courtrooms in London to Sweden, but it is worth it to gain a better understanding of what his conditions and entitlements will be if the extradition goes ahead. I trust that proceedings in Sweden will be conducted with fairness and rigour – if there are charges, let them be finally laid and the evidence heard.
The reason for my visit is that I have no such trust in how the rule of law will be applied in the United States in the current political climate, and I hold grave fears for Mr Assange’s safety if he is transferred there. In an election year in which senior Republican figures have pre-emptively declared him a terrorist, we need to look no further than the medieval treatment of Private Bradley Manning to understand the risks now faced by Julian Assange.
It is easy to dismiss calls for his casual murder as voices from the fringe, but remember – the United States has now completely normalised extrajudicial killing of foreign citizens by remote-piloted drones and highly trained kill teams. The post-911 legal environment in the US long ago passed the point of corrosive paranoia with regards anything relating to terrorism, and has drifted into a realm quite unhinged from the constitutional protections of which America was justifiably proud.
The regular process of extradition from Sweden to the US comes with important safeguards, the most important being that Sweden would never consent to an extradition for politically motivated charges, and the UK Home Secretary would also have to give its consent, a process safeguarded by judicial appeal.
But here we come to a grey area. What will the Swedish Government do if the US seeks the ‘temporary surrender’ of Mr Assange while in custody in Sweden? This is a little-known and poorly understood clause buried within the EU-US Extradition and Mutual Legal Assistance agreements signed into Swedish law in February 2010. It appears to allow a ‘fast track’ extradition, more akin to extraordinary rendition, in which Mr Assange could be taken rapidly out of custody in Sweden and transferred to the US to face prosecution on serious charges relating to espionage or computer crime. This would require the consent of the Swedish Prime Minister. The question is whether this option is on the table.
It is now more than a year since the spectacular releases of US State Department diplomatic cables to the world’s major newspapers, longer yet since the horrific revelations of the Iraq and Afghanistan war logs. There has been time enough to consider the consequences.
The issue at stake here is trust. There is a form of consensus of the governed in open democratic societies, that we understand the need for a certain amount of confidentiality in international diplomacy. This does not mean we deserve to be lied to, tediously and repetitively deceived on matters of life and death.
I discovered things about my country that sit extremely uncomfortably. So did citizens of Sweden, and citizens of the United States. The release of this information was strongly in the public interest – not because states don’t deserve a modicum of discretion in their operations (I believe they do), but because occasional acts of unexpected transparency hold up a mirror of truth.
For those who have told the truth, the release of the cables hold little consequence other than validation. For those who have honourably dissembled, the releases are instructive and clarifying. For those who have just simply lied about war, governance and commerce, they are an indictment. And a very great many people have lied, in our names, and on our payroll.
Open democracies where the truth still holds currency will weather this transparency storm vastly better than regimes that have come unmoored from the rule of law. Twelve months after the cable releases, senior military and political figures in the US have acknowledged that while embarrassing, the releases did no lasting damage. No-one died. We just understand better how power really works, and that is the primary role of a free press.
In the first line of the London High Court’s ruling in November, Mr Assange was rightfully acknowledged as a journalist. On the other side of the world, in Australia’s most prestigious media awards a few weeks later, he was honoured with a Walkley Award for outstanding services to journalism. Without people willing to take such risks to confront power, the democratic protections which those of us in fortunate parts of the world take for granted are sapped and eroded.
The Australian Government has been slow to react to the possibility of the publishing organisation known as WikiLeaks being crushed by a wounded superpower, it still doesn’t appear to understand the threat of Mr Assange’s rendition to the US, and our Prime Minister appears mainly concerned with keeping her head down in the hope this will all go away.
The thing is, it won’t. Time is now very short. If Mr Assange ends up jailed in Sweden, Australia has the ability to repatriate him under the International Transfer of Prisoners (ITP) scheme. Australia must strongly insist that there will be no rendition to the US under the ‘temporary surrender’ mechanism. It’s time our Government pushed back on companies including Visa, Mastercard and Paypal, and demanded to know why they are continuing the crippling financial blockade of WikiLeaks. If indeed the blockade is legal under Australian trade practices law, then that’s a problem the Australian Parliament can remedy.
Remember the campaign against the unwanted and misguided internet filter? No-one directed that campaign – it was won by tens of thousands of people spontaneously deciding that their individual contribution was worth the effort. The messy, unplanned collective result was worth vastly more than the sum of its parts – inventive, well networked, determined and effective.
The stakes here are much higher, because freedom of speech, freedom to publish, freedom to demand transparency of government and privacy of the individual, are the sources from which all our other freedoms flow.