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You can find the current article at its original source at http://www.guardian.co.uk/commentisfree/2012/aug/24/new-statesman-error-assange-swedish-extradition
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| The New Statesman must correct its error over Assange and extradition | The New Statesman must correct its error over Assange and extradition |
| (about 14 hours later) | |
| (updated below - Update II [Sat.]) | |
| The New Statesman owes its readers a correction for a clear and crucial falsehood contained in this much-cited argument by its legal correspondent, David Allen Green. As I noted on Wednesday, Green purported to debunk what he called "common misconceptions" and "myths" being spread by supporters of Ecuador's asylum decision in the Assange case, but in doing so, he propagated his own myth on the key question in this matter. By doing so, he misled large numbers of readers not only at the New Statesman but in many other venues which cited his claims. Regardless of one's views on the asylum matter, nobody should want clear errors on the central issues to be left standing in major media outlets. | The New Statesman owes its readers a correction for a clear and crucial falsehood contained in this much-cited argument by its legal correspondent, David Allen Green. As I noted on Wednesday, Green purported to debunk what he called "common misconceptions" and "myths" being spread by supporters of Ecuador's asylum decision in the Assange case, but in doing so, he propagated his own myth on the key question in this matter. By doing so, he misled large numbers of readers not only at the New Statesman but in many other venues which cited his claims. Regardless of one's views on the asylum matter, nobody should want clear errors on the central issues to be left standing in major media outlets. |
| The falsehood here is clear and straightforward. One of the "myths" Green purported to debunk was that "Sweden should guarantee that there be no extradition to USA." Assange's lawyers, along with Ecuadorean officials, have repeatedly told Sweden and Britain that Assange would immediately travel to Stockholm to face these allegations if some type of satisfactory assurance against extradition to the US could be given. This is the paramount issue because it shows that it is not Assange and Ecuadorean officials – but rather the Swedish and British governments – who are preventing the sex assault allegations from being fairly and legally resolved as they should be. | The falsehood here is clear and straightforward. One of the "myths" Green purported to debunk was that "Sweden should guarantee that there be no extradition to USA." Assange's lawyers, along with Ecuadorean officials, have repeatedly told Sweden and Britain that Assange would immediately travel to Stockholm to face these allegations if some type of satisfactory assurance against extradition to the US could be given. This is the paramount issue because it shows that it is not Assange and Ecuadorean officials – but rather the Swedish and British governments – who are preventing the sex assault allegations from being fairly and legally resolved as they should be. |
| But Green claimed that "[i]t would not be legally possible for Swedish government to give any guarantee about a future extradition, and nor would it have any binding effect on the Swedish legal system in the event of a future extradition request." He said that this is so in part because "any final word on an extradition would (quite properly) be with an independent Swedish court, and not the government giving the purported 'guarantee'." He then cited a British lawyer (notably, not a Swedish one) who made the same claim: | But Green claimed that "[i]t would not be legally possible for Swedish government to give any guarantee about a future extradition, and nor would it have any binding effect on the Swedish legal system in the event of a future extradition request." He said that this is so in part because "any final word on an extradition would (quite properly) be with an independent Swedish court, and not the government giving the purported 'guarantee'." He then cited a British lawyer (notably, not a Swedish one) who made the same claim: |
| "[I]t appears that if the extradition is contested as it would be in Assange's case then it is a matter for the court not the government to decide if he is extradited." | "[I]t appears that if the extradition is contested as it would be in Assange's case then it is a matter for the court not the government to decide if he is extradited." |
| This is completely and unquestionably false. It is simply untrue that it is Swedish courts, rather than the Swedish government, who are the final decision-makers in extradition requests. It is equally untrue that the Swedish government has no final decision-making power regarding extradition requests that are legally sanctioned by the Swedish judiciary. These are not matters for reasonable debate. The law is clear. Green's claim is false. | This is completely and unquestionably false. It is simply untrue that it is Swedish courts, rather than the Swedish government, who are the final decision-makers in extradition requests. It is equally untrue that the Swedish government has no final decision-making power regarding extradition requests that are legally sanctioned by the Swedish judiciary. These are not matters for reasonable debate. The law is clear. Green's claim is false. |
| Last night, international law professor Kevin Jon Heller at Melbourne Law School emailed me and wrote: | Last night, international law professor Kevin Jon Heller at Melbourne Law School emailed me and wrote: |
| "[I]t is incorrect to say that the final decision to extradite Assange from Sweden to the US would be made by the courts." | "[I]t is incorrect to say that the final decision to extradite Assange from Sweden to the US would be made by the courts." |
| He directed me to this analysis from Mark Klamberg – a professor of international law at the University of Stockholm – who dissects Sweden's extradition law and makes Green's error as clear as it can be [my emphasis]: | He directed me to this analysis from Mark Klamberg – a professor of international law at the University of Stockholm – who dissects Sweden's extradition law and makes Green's error as clear as it can be [my emphasis]: |
| "How does procedure work if somebody is to extradited from Sweden? … [I]f the person referred to in the request has not consented to being extradited, the case shall be tried by the supreme court. Section 20(1) provides that if the supreme court has considered that there is a legal obstacle to extradition the request may not be granted. | "How does procedure work if somebody is to extradited from Sweden? … [I]f the person referred to in the request has not consented to being extradited, the case shall be tried by the supreme court. Section 20(1) provides that if the supreme court has considered that there is a legal obstacle to extradition the request may not be granted. |
| "Even if the supreme court has found that there are no obstacles, the government can refuse extradition. This is because section 1(1) provides that if certain conditions are fulfilled, a person 'may' not 'shall' be extradited. In other words, even if the prosecutor-general and the supreme court finds that all conditions for extradition are fulfilled the government may veto such extradition. It does not work in the reverse way, the government can not grant extradition if the supreme court has found that any of the required conditions are lacking." | "Even if the supreme court has found that there are no obstacles, the government can refuse extradition. This is because section 1(1) provides that if certain conditions are fulfilled, a person 'may' not 'shall' be extradited. In other words, even if the prosecutor-general and the supreme court finds that all conditions for extradition are fulfilled the government may veto such extradition. It does not work in the reverse way, the government can not grant extradition if the supreme court has found that any of the required conditions are lacking." |
| Let's repeat that: "Even if the supreme court has found that there are no obstacles, the government can refuse extradition." And: "Even if the prosecutor-general and the supreme court finds that all conditions for extradition are fulfilled the government may veto such extradition." In other words, under clear Swedish law, the Swedish government has exactly the final decision-making authority over extradition that Green told his readers it lacks. | Let's repeat that: "Even if the supreme court has found that there are no obstacles, the government can refuse extradition." And: "Even if the prosecutor-general and the supreme court finds that all conditions for extradition are fulfilled the government may veto such extradition." In other words, under clear Swedish law, the Swedish government has exactly the final decision-making authority over extradition that Green told his readers it lacks. |
| Professor Klamberg is far from alone in making this clear. As I noted on Wednesday, this Swedish-Moroccon lawyer analyzed Swedish extradition law in rigorous detail to make the same point: | Professor Klamberg is far from alone in making this clear. As I noted on Wednesday, this Swedish-Moroccon lawyer analyzed Swedish extradition law in rigorous detail to make the same point: |
| "Swedish extradition law clearly states that the Swedish government is the body deciding on any extradition request." | "Swedish extradition law clearly states that the Swedish government is the body deciding on any extradition request." |
| Moreover: | Moreover: |
| "No provision gives any court the right to decide on an extraditions request." | "No provision gives any court the right to decide on an extraditions request." |
| The court's role in extradition requests is limited to this situation: | The court's role in extradition requests is limited to this situation: |
| "The government may not extradite someone for whom the supreme court has found that an extradition would not be in conformity with the law." | "The government may not extradite someone for whom the supreme court has found that an extradition would not be in conformity with the law." |
| As I noted on Wednesday, his analysis of the law (exactly like Professor Klamberg's) shows there are two possible outcomes once the contested extradition request goes to the Swedish court: first, the court rules the extradition request is not cognizable under relevant law, in which case the Swedish government is barred from extraditing; or second, the court rules the extradition request is cognizable under relevant law, in which case the Swedish government has the option not to extradite. As he put it: | As I noted on Wednesday, his analysis of the law (exactly like Professor Klamberg's) shows there are two possible outcomes once the contested extradition request goes to the Swedish court: first, the court rules the extradition request is not cognizable under relevant law, in which case the Swedish government is barred from extraditing; or second, the court rules the extradition request is cognizable under relevant law, in which case the Swedish government has the option not to extradite. As he put it: |
| "The deciding body is thus the government, with an input by the prosecutor general." | "The deciding body is thus the government, with an input by the prosecutor general." |
| Swedish extradition law is written to ensure that if an extradition is to occur, Swedish government officials, not its courts, are the final decision-makers on whether that should take place. | Swedish extradition law is written to ensure that if an extradition is to occur, Swedish government officials, not its courts, are the final decision-makers on whether that should take place. |
| More clear evidence of Green's error, first noted by this superb debunking of Green, comes from documents sent by the Australian diplomatic mission in Sweden to its home government on the Assange/extradition matter (they were declassified and released to the public by the Australian government). In response to questions from Canberra about what an extradition request to Sweden would entail, the Australian diplomatic mission explained: | More clear evidence of Green's error, first noted by this superb debunking of Green, comes from documents sent by the Australian diplomatic mission in Sweden to its home government on the Assange/extradition matter (they were declassified and released to the public by the Australian government). In response to questions from Canberra about what an extradition request to Sweden would entail, the Australian diplomatic mission explained: |
| "The process require[s] a request from another state, a decision by Sweden's supreme court on whether extradition was possible, and finally a decision by government to go forward with the extradition." [my emphasis; p61] | "The process require[s] a request from another state, a decision by Sweden's supreme court on whether extradition was possible, and finally a decision by government to go forward with the extradition." [my emphasis; p61] |
| The internal communications in the Australian government go on to note: | The internal communications in the Australian government go on to note: |
| "The Swedish government could deny an extradition or temporary surrender that the supreme court had approved, but if the supreme court denied an extradition or temporary surrender application, then the matter ended there; ie, the government could not approve a process that the supreme court had rejected." | "The Swedish government could deny an extradition or temporary surrender that the supreme court had approved, but if the supreme court denied an extradition or temporary surrender application, then the matter ended there; ie, the government could not approve a process that the supreme court had rejected." |
| Again: the Swedish courts simply decide whether extradition is legally possible, but the final decision as to whether to extradite is vested in the Swedish government. | Again: the Swedish courts simply decide whether extradition is legally possible, but the final decision as to whether to extradite is vested in the Swedish government. |
| This is not some sort of strange or exotic feature of Swedish law. As Professor Heller wrote when explaining that the Swedish government possesses exactly the final decision-making authority Green denied it has: | This is not some sort of strange or exotic feature of Swedish law. As Professor Heller wrote when explaining that the Swedish government possesses exactly the final decision-making authority Green denied it has: |
| "Nor is that unusual; I don't know of any states that give the final decision to courts instead of to the executive." | "Nor is that unusual; I don't know of any states that give the final decision to courts instead of to the executive." |
| In light of this abundant evidence, I trust that even the most hardened Assange critic will acknowledge that Green was radically wrong on this key point. It should be noted that those sources I just cited are not Assange supporters, but rather are the opposite: they are all, to varying degrees, hostile to his fight against extradition to Sweden. Professor Klamberg (along with Professor Heller) is highly skeptical that Sweden would extradite Assange to the US. The Swedish-Moroccon lawyer I cited began his analysis by declaring: | In light of this abundant evidence, I trust that even the most hardened Assange critic will acknowledge that Green was radically wrong on this key point. It should be noted that those sources I just cited are not Assange supporters, but rather are the opposite: they are all, to varying degrees, hostile to his fight against extradition to Sweden. Professor Klamberg (along with Professor Heller) is highly skeptical that Sweden would extradite Assange to the US. The Swedish-Moroccon lawyer I cited began his analysis by declaring: |
| "First, let me state that I am as adamantly in favour of Julian Assange being extradited to Sweden as I am opposed to him being extradited to the USA for any WikiLeaks-related offense." | "First, let me state that I am as adamantly in favour of Julian Assange being extradited to Sweden as I am opposed to him being extradited to the USA for any WikiLeaks-related offense." |
| And the Australian government has been infamously unsupportive of the rights of its citizen. But they nonetheless all make crystal clear that Green's statement about the Swedish government lacking the power to decide extradition is factually false. | And the Australian government has been infamously unsupportive of the rights of its citizen. But they nonetheless all make crystal clear that Green's statement about the Swedish government lacking the power to decide extradition is factually false. |
| It is inconceivable that the New Statesman would allow such a flagrant error on this key issue to remain unretracted, particularly since it was offered under the guise of Green's legal expertise. Indeed, when replying to Green on Wednesday, I myself assumed that there must be some reasonable basis to his claim about the lack of authority on the part of the Swedish government over extradition requests, and thus too readily vested his claim with credibility: a mistake I immediately corrected with updates upon learning that his claim was false. The New Statesman has the absolute journalistic obligation to prominently correct this error. | It is inconceivable that the New Statesman would allow such a flagrant error on this key issue to remain unretracted, particularly since it was offered under the guise of Green's legal expertise. Indeed, when replying to Green on Wednesday, I myself assumed that there must be some reasonable basis to his claim about the lack of authority on the part of the Swedish government over extradition requests, and thus too readily vested his claim with credibility: a mistake I immediately corrected with updates upon learning that his claim was false. The New Statesman has the absolute journalistic obligation to prominently correct this error. |
| It may be true that there are other independent reasons to argue that Sweden should not offer Assange the assurance against extradition that he seeks. One may contend, for instance, that Sweden should, or even must, wait until it receives an extradition request and its courts rule on its legality before it can make a determination as to whether it will comply. That is an argument Green makes. Professor Klamberg notes there "is nothing in the extradition of criminal offences act that deals with this scenario, but it would depart from established practice." | It may be true that there are other independent reasons to argue that Sweden should not offer Assange the assurance against extradition that he seeks. One may contend, for instance, that Sweden should, or even must, wait until it receives an extradition request and its courts rule on its legality before it can make a determination as to whether it will comply. That is an argument Green makes. Professor Klamberg notes there "is nothing in the extradition of criminal offences act that deals with this scenario, but it would depart from established practice." |
| I happen not to find that objection valid. At the very least, one can imagine all sorts of ways that Sweden, Ecuador and Assange's lawyers could negotiate a resolution that provides Assange with meaningful protections against his fear of extradition to the US while following standard procedure on extraditions. Swedish authorities could, for instance, publicly state that they view espionage charges for the "crime" of reporting on government secrets to be a "political crime" not subject to extradition, but still reserve the right to formally decide upon any extradition request if and when they receive one. In the last four paragraphs of his analysis, this lawyer lays out exactly how such a deal could be reached consistent with Swedish law. If there were any real desire to find a resolution, one could be found. It is Sweden's steadfast refusal even to negotiate these matters that led the Ecuadoreans to be suspicious of their motives and to conclude that asylum was necessary here to protect Assange from political prosecution. | I happen not to find that objection valid. At the very least, one can imagine all sorts of ways that Sweden, Ecuador and Assange's lawyers could negotiate a resolution that provides Assange with meaningful protections against his fear of extradition to the US while following standard procedure on extraditions. Swedish authorities could, for instance, publicly state that they view espionage charges for the "crime" of reporting on government secrets to be a "political crime" not subject to extradition, but still reserve the right to formally decide upon any extradition request if and when they receive one. In the last four paragraphs of his analysis, this lawyer lays out exactly how such a deal could be reached consistent with Swedish law. If there were any real desire to find a resolution, one could be found. It is Sweden's steadfast refusal even to negotiate these matters that led the Ecuadoreans to be suspicious of their motives and to conclude that asylum was necessary here to protect Assange from political prosecution. |
| But all of that is a completely separate issue from the glaring error in Green's post about whether it is the Swedish government or its courts that have final decision-making authority. The fact that Green made other arguments in support of his ultimate conclusion does not remotely mitigate his false claim that "any final word on an extradition would (quite properly) be with an independent Swedish court, and not the government giving the purported 'guarantee'." Nor does it relieve the New Statesman of the obligation to prominently correct this error. | But all of that is a completely separate issue from the glaring error in Green's post about whether it is the Swedish government or its courts that have final decision-making authority. The fact that Green made other arguments in support of his ultimate conclusion does not remotely mitigate his false claim that "any final word on an extradition would (quite properly) be with an independent Swedish court, and not the government giving the purported 'guarantee'." Nor does it relieve the New Statesman of the obligation to prominently correct this error. |
| I'm certainly not accusing Green of bad faith – ie, of knowingly making false claims. It is difficult to discern Swedish extradition law without being a Swedish legal expert or relying on them, which is why it's a good idea for people like Green not to do it, especially in a periodical. But motives aside, what he told his readers under the guise of legal expertise is unquestionably false, and it had serious consequences for how this whole debate has been perceived. | I'm certainly not accusing Green of bad faith – ie, of knowingly making false claims. It is difficult to discern Swedish extradition law without being a Swedish legal expert or relying on them, which is why it's a good idea for people like Green not to do it, especially in a periodical. But motives aside, what he told his readers under the guise of legal expertise is unquestionably false, and it had serious consequences for how this whole debate has been perceived. |
| This is why this is so crucial: if Sweden (and/or Britain) would provide some meaningful assurance that Assange would not be extradited to the US to face espionage charges for WikiLeaks' journalism, then the vast majority of asylum supporters (including me) would loudly demand that he immediately travel to Stockholm to confront those allegations; Assange himself has said he would do so. That gives the lie to the ugly slander that those who have expressed support for Ecuador's asylum decision are dismissive of the sex assault claims or do not care about seeing them resolved. | This is why this is so crucial: if Sweden (and/or Britain) would provide some meaningful assurance that Assange would not be extradited to the US to face espionage charges for WikiLeaks' journalism, then the vast majority of asylum supporters (including me) would loudly demand that he immediately travel to Stockholm to confront those allegations; Assange himself has said he would do so. That gives the lie to the ugly slander that those who have expressed support for Ecuador's asylum decision are dismissive of the sex assault claims or do not care about seeing them resolved. |
| Speaking for myself, I have always said the same thing about those allegations in Sweden from the moment they emerged: they are serious and deserve legal resolution. It is not Assange or his supporters preventing that resolution, but the Swedish and British governments, which are strangely refusing even to negotiate as to how Assange's rights against unjust extradition and political persecution can be safeguarded along with the rights of the complainants to have their allegations addressed. Green's false claim that the Swedish government is unable to act because it has no final authority over extradition has seriously distorted this issue, and it is why it should be promptly and prominently corrected by the New Statesman. | Speaking for myself, I have always said the same thing about those allegations in Sweden from the moment they emerged: they are serious and deserve legal resolution. It is not Assange or his supporters preventing that resolution, but the Swedish and British governments, which are strangely refusing even to negotiate as to how Assange's rights against unjust extradition and political persecution can be safeguarded along with the rights of the complainants to have their allegations addressed. Green's false claim that the Swedish government is unable to act because it has no final authority over extradition has seriously distorted this issue, and it is why it should be promptly and prominently corrected by the New Statesman. |
| * * * * * | * * * * * |
| UPDATE: On Twitter today, one of the four legal sources cited here, Mark Klamberg, claimed that I "distorted" his argument by omitting certain claims he made. Independent of the fact that there are three other legal sources I cited for the same point for which I cited Klamberg, I encourage everyone to read the initial post he wrote – and my reply to him today – and form your own judgment. | UPDATE: On Twitter today, one of the four legal sources cited here, Mark Klamberg, claimed that I "distorted" his argument by omitting certain claims he made. Independent of the fact that there are three other legal sources I cited for the same point for which I cited Klamberg, I encourage everyone to read the initial post he wrote – and my reply to him today – and form your own judgment. |
| * * * * * | |
| UPDATE II [Sat.]: For more on Professor Klamberg's claims, from Law Professor Kevin Jon Heller, see here. |