Screen shot of Sky News' feed of Assange extradition appeal hearing in February 2012

(update below)

The Supreme Court in the United Kingdom issued a much anticipated decision today, ruling Sweden’s request for WikiLeaks founder and editor-in-chief Julian Assange’s extradition was “lawfully made.” By a majority of 5-to-2, the court found the Swedish public prosecutor in the case was in fact a “judicial authority” and held that the European arrest warrant (EAW) issued was valid.

Assange was not in court this morning. WikiLeaks spokesperson Kristinn Hrafnsson told Reuters, “This is not the final outcome. What we have here is retribution from the US.”  He was granted the right to stay in the UK for two weeks while his lawyers consider applying to the Supreme Court to reopen the case. If the Supreme Court does not allow for the case to be re-opened, Assange could appeal to the European Court of Human Rights (ECHR).

According to The Guardian’s live coverage, Assange’s lawyers had argued in February the “Swedish system is unfair because it puts the power to issue arrest warrants in the hands of the same prosecutors who are trying to put the accused person in jail.” Dinah Rose, Assange’s QC, claimed “judicial authorities” meant a “judge or magistrate, and not a prosecutor, who is not independent.” The Supreme Court had deliberated over whether the Swedish prosecutor constituted a “judicial authority under the European arrest warrant framework and the Extradition Act of 2003, which incorporates it into British law, along with discussions of the history of the European arrest warrant framework going back to the 1957 European convention on extradition.”

Lord Phillips found the framework had been created to establish “a single uniform system for the surrender of those accused or convicted of the more serious criminal offenses” and the 11 member states that are party to the decision wanted to be able to have a judge or public prosecutor be a “judicial authority.”

Lord Mance, on the other hand, concluded in a dissenting opinion, “Whatever may be the meaning of the Framework Decision as a matter of European law, the intention of Parliament and the effect of the Extradition Act 2003 was to restrict the recognition by British courts of incoming European arrest warrants to those issued by a judicial authority in the strict sense of a court, judge  or magistrate.”

The decision handed down was apparently decided under a point of law in the Vienna Convention on the Interpretation of Treaties, which was not argued by the prosecution or defense in the case. Assange’s lawyers or the Crown Prosecution Service, representing Swedish authorities, had also not been notified this would factor into the decision. (Full judgment available here.)

Highlighting the unlikelihood that the Supreme Court would reopen the case, legal commentator Joshua Rozenberg appeared on BBC News to describe this aspect of the decision:

It would be very embarrassing if the supreme court felt the need to reopen the case and it’s extraordinary, isn’t it, that they might have considered something which they gave the parties no opportunity to argue. From time to time judges do their research and they add points, minor points, that have not been considered, but it appears that the decisive point in this case was one that wasn’t argued, and that’s something which is pretty unusual, and that’s what prompted this unexpected intervention from Dinah Rose which took Lord Phillips so much by surprise that he mixed her up with the other counsel, Clare Montgomery.

It’s important to note that one key reason why Assange would want to vigorously fight the extradition involves the pre-trial restrictions and detention of which he might be subjected to in Sweden. Fair Trials International explains what will happen if extradited:

Mr Assange will be arrested on his arrival in Sweden and taken to a Swedish police station. Within 96 hours of being detained he will be brought to court, for a decision as to whether he should be remanded in custody until trial (see further below). This hearing is normally in private, unlike in many other countries, including the UK, where such hearings are normally in open court.

As soon as the investigation is over, a decision will be taken about whether to formally charge him. Swedish law requires a person to be physically present before charges can be laid, so this can only happen once Mr Assange is on Swedish territory. Alternatively, prosecutors may decide not to charge Mr Assange and to release him.

Arrestees hardly ever get bail. The presumption is on detention so Assange is likely to not even enjoy the minimal freedom of house arrest, which he has been held under for over five hundred days. Like Pfc. Bradley Manning, the soldier accused of releasing classified information to WikiLeaks, he could be held in isolation:

Mr Assange could be held in isolation and barred from communicating with anyone other than his lawyers. He may be subjected to a range of restrictions such as:

  • isolation: meaning that he is held in his cell for up to 23 hours a day;
  • no visits from anyone other than his lawyer or a priest;
  • restrictions on phone calls and written correspondence;
  • limited contact with other detainees; and
  • lack of access to newspapers, radio and television.

There has been international criticism of these conditions. The Council of Europe has reported ongoing concerns about remand conditions in Sweden and that many people feel that they are prevented from contacting family members to ‘break’ them. The US State Department has also noted that people are often subject to extended isolation and severe restriction on their activities whilst awaiting trial.

Supporters of Assange are concerned about the fact that a bilateral treaty between the US and Sweden allows extradition without consent from the UK. They find it highly likely that once Assange gets to Sweden the United States will formally request extradition from Sweden.

A website called “Justice for Assange” highlights a statement by former legal adviser to the US State Department and National Security Council John B. Bellinger III, who stated, “The US government is certainly looking at the technical aspects of the two extradition agreements between the UK and Sweden and then considering the political and legal atmosphere in both places.”

While Assange’s extradition to the US is becoming more and more inevitable, options are still available. His lawyers can prepare to take the case to the ECHR while pushing the Supreme Court to reopen the case. However, as journalist and supporter John Pilger made clear last month the prospects may be grim:

…Thanks to a secret deal between the US and Sweden, he can be “rendered” to the American gulag at any time. In his own country, Australia, prime minister Julia Gillard has conspired with those in Washington she calls her “true mates” to ensure her innocent fellow citizen is fitted for his orange jump suit just in case he should make it home. In February, her government wrote a “WikiLeaks Amendment” to the extradition treaty between Australia and the US that makes it easier for her “mates” to get their hands on him. She has even given them the power of approval over Freedom of Information searches – so that the world outside can be lied to, as is customary…

Furthermore, if sent to the US, he would be in a country where a US soldier who allegedly released information to Assange’s media organization is accused of “aiding the enemy.” He would be subjected to the findings of a secret federal grand jury in Alexandria, Virginia. And he would face a political trial to convict him of espionage or treason against the US.

There is no reason to doubt that the US will stop at nothing to make an example out of Assange because of what he did by releasing information they did not want released because it contained details on corruption, misconduct and war crimes being committed or perpetrated by the United States. He caused a major hiccup in the daily operations of American empire. He helped foster an act that could have potentially destroyed authority and power wielded by the United States. And, for that, he is a political target whom the US needs to make an example to show what happens when one challenges US dominance in the world.

Update

Here are two segments from Democracy Now! this morning on the extradition appeal decision. Glenn Greenwald and Helena Kennedy, British attorney for Assange, appeared on the show.