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 rape filed 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 facie minimal 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 criticised because 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 Decision member-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 legal consequences 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]