Kafka-like Persecution of Julian Assange
July 31, 2015
In an era when powerful
institutions demonize decent people – and the mainstream media joins in, piling
on the abuse – legal proceedings have become another Kafka-esque weapon of
coercion. Few cases are more troubling than the persecution of WikiLeaks
founder Julian Assange, as John Pilger describes.
By John Pilger
WikiLeaks founder Julian Assange at a media conference in Copenhagen, Denmark. (Photo credit: New Media Days / Peter Erichsen)
The siege of Knightsbridge
is both an emblem of gross injustice and a grueling farce. For three years, a
police cordon around the Ecuadorean embassy in London has served no purpose
other than to flaunt the power of the state. It has cost £12 million (about
$18.7 million). The quarry is an Australian charged with no crime, a refugee
whose only security is the room given him by a brave South American country.
His “crime” is to have initiated a wave of truth-telling in an era of lies,
cynicism and war.
The persecution of Julian
Assange is about to flare again as it enters a dangerous stage. From Aug. 20,
three quarters of the Swedish prosecutor’s case against Assange regarding
sexual misconduct in 2010 will disappear as the statute of limitations expires.
At the same time Washington’s obsession with Assange and WikiLeaks has intensified.
Indeed, it is vindictive American power that offers the greatest threat – as
Chelsea Manning and those still held in Guantanamo can attest.
The Americans are pursuing
Assange because WikiLeaks exposed their epic crimes in Afghanistan and Iraq:
the wholesale killing of tens of thousands of civilians, which they covered up,
and their contempt for sovereignty and international law, as demonstrated
vividly in their leaked diplomatic cables.
WikiLeaks continues to
expose criminal activity by the U.S., having just published top secret U.S.
intercepts – U.S. spies’ reports detailing private phone calls of the
presidents of France and Germany, and other senior officials, relating to
internal European political and economic affairs.
None of this is illegal
under the U.S. Constitution. As a presidential candidate in 2008, Barack Obama,
a professor of constitutional law, lauded whistleblowers as “part of a healthy
democracy [and they] must be protected from reprisal.” In 2012, the campaign to
re-elect President Barack Obama boasted on its website that he had prosecuted
more whistleblowers in his first term than all other U.S. presidents combined.
Before Chelsea Manning had
even received a trial, Obama had pronounced the whisletblower guilty. He was
subsequently sentenced to 35 years in prison, having been tortured during his
long pre-trial detention.
Few doubt that should the
U.S. government get its hands on Assange, a similar fate awaits him. Threats of
the capture and assassination of Assange became the currency of the political
extremes in the U.S. following Vice President Joe Biden’s preposterous slur
that the WikiLeaks founder was a “cyber-terrorist.” Those doubting the degree
of ruthlessness Assange can expect should remember the forcing down of the
Bolivian president’s plane in 2013 – wrongly believed to be carrying Edward
Snowden.
According to documents
released by Edward Snowden, Assange is on a “Manhunt target list.” Washington’s
bid to get him, say Australian diplomatic cables, is “unprecedented in scale
and nature.” In Alexandria, Virginia, a secret grand jury has spent five years
attempting to contrive a crime for which Assange can be prosecuted. This is not
easy. The First Amendment to the U.S. Constitution protects publishers,
journalists and whistleblowers.
Faced with this
constitutional hurdle, the U.S. Justice Department has contrived charges of
“espionage,” “conspiracy to commit espionage,” “conversion” (theft of
government property), “computer fraud and abuse” (computer hacking) and general
“conspiracy.” The Espionage Act has life in prison and death penalty
provisions.
Assange’s ability to defend
himself in this Kafkaesque world has been handicapped by the U.S. declaring his
case a state secret. In March, a federal court in Washington blocked the
release of all information about the “national security” investigation against
WikiLeaks, because it was “active and ongoing” and would harm the “pending
prosecution” of Assange. The judge, Barbara J. Rosthstein, said it was
necessary to show “appropriate deference to the executive in matters of
national security.” Such is the “justice” of a kangaroo court.
The supporting act in this
grim farce is Sweden, played by the Swedish prosecutor Marianne Ny. Until
recently, Ny refused to comply with a routine European procedure routine that
required her to travel to London to question Assange and so advance the case.
For four and a half years, Ny has never properly explained why she has refused
to come to London, just as the Swedish authorities have never explained why
they refuse to give Assange a guarantee that they will not extradite him on to
the U.S. under a secret arrangement agreed between Stockholm and Washington. In
December 2010, The Independent revealed that the two
governments had discussed his onward extradition to the U.S.
Contrary to its 1960s
reputation as a liberal bastion, Sweden has drawn so close to Washington that
it has allowed secret CIA “renditions” – including the illegal deportation of
refugees. The rendition and subsequent torture of two Egyptian political refugees
in 2001 was condemned by the UN Committee against Torture, Amnesty
International and Human Rights Watch; the complicity and duplicity of the
Swedish state are documented in successful civil litigation and in WikiLeaks
cables. In the summer of 2010, Assange had flown to Sweden to talk about
WikiLeaks revelations of the war in Afghanistan – in which Sweden had forces
under U.S. command.
“Documents released by
WikiLeaks since Assange moved to England,” wrote Al Burke, editor of the online
Nordic News Network, an authority on the multiple twists and dangers facing
Assange, “clearly indicate that Sweden has consistently submitted to pressure
from the United States in matters relating to civil rights. There is every
reason for concern that if Assange were to be taken into custody by Swedish
authorities, he could be turned over to the United States without due
consideration of his legal rights.”
Why hasn’t the Swedish
prosecutor resolved the Assange case? Many in the legal community in Sweden
believe her behavior inexplicable. Once implacably hostile to Assange, the
Swedish press has published headlines such as: “Go to London, for God’s sake.”
Why hasn’t she? More to the
point, why won’t she allow the Swedish court access to hundreds of SMS messages
that the police extracted from the phone of one of the two women involved in
the misconduct allegations? Why won’t she hand them over to Assange’s Swedish
lawyers? She says she is not legally required to do so until a formal charge is
laid and she has questioned him. Then, why doesn’t she question him? And if she
did question him, the conditions she would demand of him and his lawyers – that
they could not challenge her – would make injustice a near certainty.
On a point of law, the
Swedish Supreme Court has decided Ny can continue to obstruct on the vital
issue of the SMS messages. This will now go to the European Court of Human
Rights. What Ny fears is that the SMS messages will destroy her case against
Assange.
One of the messages makes
clear that one of the women did not want any charges brought against Assange,
“but the police were keen on getting a hold on him”. She was “shocked” when
they arrested him because she only “wanted him to take [an HIV] test.” She “did
not want to accuse JA of anything” and “it was the police who made up the
charges.” (In a witness statement, she is quoted as saying that she had been
“railroaded by police and others around her”.)
Neither woman claimed she
had been raped. Indeed, both have denied they were raped and one of them has
since tweeted, “I have not been raped.” That they were manipulated by police
and their wishes ignored is evident – whatever their lawyers might say now.
Certainly, they are victims of a saga which blights the reputation of Sweden
itself.
For Assange, his only trial
has been trial by media. On Aug. 20, 2010, the Swedish police opened a “rape
investigation” and immediately – and unlawfully – told the Stockholm tabloids
that there was a warrant for Assange’s arrest for the “rape of two women.” This
was the news that went round the world.
In Washington, a smiling
U.S. Defense Secretary Robert Gates told reporters that the arrest “sounds like
good news to me.” Twitter accounts associated with the Pentagon described
Assange as a “rapist” and a “fugitive.”
Less than 24 hours later,
the Stockholm Chief Prosecutor, Eva Finne, took over the investigation. She
wasted no time in cancelling the arrest warrant, saying, “I don’t believe there
is any reason to suspect that he has committed rape.” Four days later, she
dismissed the rape investigation altogether, saying, “There is no suspicion of
any crime whatsoever.” The file was closed.
Enter Claes Borgstrom, a
high-profile politician in the Social Democratic Party then standing as a
candidate in Sweden’s imminent general election. Within days of the chief
prosecutor’s dismissal of the case, Borgstrom, a lawyer, announced to the media
that he was representing the two women and had sought a different prosecutor in
the city of Gothenberg. This was Marianne Ny, whom Borgstrom knew well,
personally and politically.
On Aug. 30, Assange attended
a police station in Stockholm voluntarily and answered all the questions put to
him. He understood that was the end of the matter. Two days later, Ny announced
she was re-opening the case. Borgstrom was asked by a Swedish reporter why the
case was proceeding when it had already been dismissed, citing one of the women
as saying she had not been raped.
He replied, “Ah, but she is
not a lawyer.” Assange’s Australian barrister, James Catlin, responded, “This
is a laughingstock … it’s as if they make it up as they go along.”
On the day Marianne Ny
reactivated the case, the head of Sweden’s military intelligence service –
which has the acronym MUST – publicly denounced WikiLeaks in an article
entitled “WikiLeaks [is] a threat to our soldiers.” Assange was warned that the
Swedish intelligence service, SAPO, had been told by its U.S. counterparts that
U.S.-Sweden intelligence-sharing arrangements would be “cut off” if Sweden
sheltered him.
For five weeks, Assange
waited in Sweden for the new investigation to take its course. The Guardian was
then on the brink of publishing the Iraq “War Logs” based on WikiLeaks’
disclosures which Assange was to oversee. His lawyer in Stockholm asked Ny if
she had any objection to his leaving the country. She said he was free to
leave.
Inexplicably, as soon as he
left Sweden – at the height of media and public interest in the WikiLeaks
disclosures – Ny issued a European Arrest Warrant and an Interpol “red alert”
normally used for terrorists and dangerous criminals. Put out in five languages
around the world, it ensured a media frenzy.
Assange attended a police
station in London, was arrested and spent ten days in Wandsworth Prison, in
solitary confinement. Released on £340,000 ($531,000) bail, he was
electronically tagged, required to report to police daily and placed under
virtual house arrest while his case began its long journey to the Supreme
Court. He still had not been charged with any offence. His lawyers repeated his
offer to be questioned by Ny in London, pointing out that she had given him
permission to leave Sweden. They suggested a special facility at Scotland Yard
commonly used for that purpose. She refused.
Katrin Axelsson and Lisa
Longstaff of Women Against Rape wrote: “The allegations against [Assange] are a
smokescreen behind which a number of governments are trying to clamp down on
WikiLeaks for having audaciously revealed to the public their secret planning
of wars and occupations with their attendant rape, murder and destruction. …
“The authorities care so
little about violence against women that they manipulate rape allegations at
will. [Assange] has made it clear he is available for questioning by the
Swedish authorities, in Britain or via Skype. Why are they refusing this
essential step in their investigation? What are they afraid of?”
This question remained
unanswered as Ny deployed the European Arrest Warrant, a draconian and now
discredited product of the “war on terror” supposedly designed to catch
terrorists and organized criminals. The EAW had abolished the obligation on a
petitioning state to provide any evidence of a crime.
More than a thousand EAWs
are issued each month; only a few have anything to do with potential “terror”
charges. Most are issued for trivial offences, such as overdue bank charges and
fines. Many of those extradited face months in prison without charge. There
have been a number of shocking miscarriages of justice, of which British judges
have been highly critical.
The Assange case finally
reached the UK Supreme Court in May 2012. In a judgment that upheld the EAW –
whose rigid demands had left the courts almost no room for maneuver – the
judges found that European prosecutors could issue extradition warrants in the
UK without any judicial oversight, even though Parliament intended otherwise.
They made clear that Parliament had been “misled” by the Blair government. The
court was split, 5-2, and consequently found against Assange.
However, the Chief Justice,
Lord Phillips, made one mistake. He applied the Vienna Convention on treaty
interpretation, allowing for state practice to override the letter of the law.
As Assange’s barrister, Dinah Rose QC, pointed out, this did not apply to the
EAW.
The Supreme Court only
recognized this crucial error when it dealt with another appeal against the EAW
in November 2013. The Assange decision had been wrong, but it was too late to
go back. With extradition imminent, the Swedish prosecutor told Assange’s
lawyers that Assange, once in Sweden, would be immediately placed in one of
Sweden’s infamous remand prisons.
Assange’s choice was stark:
extradition to a country that had refused to say whether or not it would send
him on to the U.S., or to seek what seemed his last opportunity for refuge and
safety. Supported by most of Latin America, the courageous government of
Ecuador granted him refugee status on the basis of documented evidence and
legal advice that he faced the prospect of cruel and unusual punishment in the
U.S.; that this threat violated his basic human rights; and that his own
government in Australia had abandoned him and colluded with Washington. The Labor
government of Prime Minister Julia Gillard had even threatened to take away his
passport.
Gareth Peirce, the renowned
human rights lawyer who represents Assange in London, wrote to the then
Australian foreign minister, Kevin Rudd: “Given the extent of the public
discussion, frequently on the basis of entirely false assumptions … it is very
hard to attempt to preserve for him any presumption of innocence. Mr. Assange
has now hanging over him not one but two Damocles swords, of potential
extradition to two different jurisdictions in turn for two different alleged
crimes, neither of which are crimes in his own country, and that his personal
safety has become at risk in circumstances that are highly politically
charged.”
It was not until she
contacted the Australian High Commission in London that Peirce received a
response, which answered none of the pressing points she raised. In a meeting I
attended with her, the Australian Consul-General, Ken Pascoe, made the
astonishing claim that he knew “only what I read in the newspapers” about the
details of the case.
Meanwhile, the prospect of a
grotesque miscarriage of justice was drowned in a vituperative campaign against
the WikiLeaks founder. Deeply personal, petty, vicious and inhuman attacks were
aimed at a man not charged with any crime yet subjected to treatment not even
meted out to a defendant facing extradition on a charge of murdering his wife.
That the U.S. threat to Assange was a threat to all journalists, to freedom of
speech, was lost in the sordid and the ambitious.
Books were published, movie
deals struck and media careers launched or kick-started on the back of
WikiLeaks and an assumption that attacking Assange was fair game and he was too
poor to sue. People have made money, often big money, while WikiLeaks has
struggled to survive. The editor of the Guardian, Alan Rusbridger, called the
WikiLeaks disclosures, which his newspaper published, “one of the greatest
journalistic scoops of the last 30 years.” It became part of his marketing plan
to raise the newspaper’s cover price
.
With not a penny going to
Assange or to WikiLeaks, a hyped Guardian book led to a lucrative Hollywood
movie. The book’s authors, Luke Harding and David Leigh, gratuitously described
Assange as a “damaged personality” and “callous.” They also revealed the secret
password he had given the paper in confidence, which was designed to protect a
digital file containing the U.S. embassy cables. With Assange now trapped in
the Ecuadorean embassy, Harding, standing among the police outside, gloated on
his blog that “Scotland Yard may get the last laugh.”
The injustice meted out to
Assange is one of the reasons Parliament reformed the Extradition Act to
prevent the misuse of the EAW. The draconian catch-all used against him could
not happen now; charges would have to be brought and “questioning” would be
insufficient grounds for extradition.
“His case has been won lock,
stock and barrel,” Gareth Peirce told me, “these changes in the law mean that
the UK now recognizes as correct everything that was argued in his case. Yet he
does not benefit.” In other words, the change in the UK law in 2014 mean that
Assange would have won his case and he would not have been forced to take
refuge.
Ecuador’s decision to
protect Assange in 2012 bloomed into a major international affair. Even though
the granting of asylum is a humanitarian act, and the power to do so is enjoyed
by all states under international law, both Sweden and the United Kingdom
refused to recognize the legitimacy of Ecuador’s decision.
Ignoring international law,
the Cameron government refused to grant Assange safe passage to Ecuador.
Instead, Ecuador’s embassy was placed under siege and its government abused
with a series of ultimatums.
When William Hague’s Foreign
Office threatened to violate the Vienna Convention on Diplomatic Relations,
warning that it would remove the diplomatic inviolability of the embassy and
send the police in to get Assange, outrage across the world forced the
government to back down. During one night, police appeared at the windows of
the embassy in an obvious attempt to intimidate Assange and his protectors.
Since then, Julian Assange
has been confined to a small room under Ecuador’s protection, without sunlight
or space to exercise, surrounded by police under orders to arrest him on sight.
For three years, Ecuador has made clear to the Swedish prosecutor that Assange
is available to be questioned in the London embassy, and for three years she
has remained intransigent.
In the same period Sweden
has questioned 44 people in the UK in connection with police investigations.
Her role, and that of the Swedish state, is demonstrably political; and for Ny,
facing retirement in two years, she must “win.”
In despair, Assange has
challenged the arrest warrant in the Swedish courts. His lawyers have cited
rulings by the European Court of Human Rights that he has been under arbitrary,
indefinite detention and that he had been a virtual prisoner for longer than
any actual prison sentence he might face. The Court of Appeal judge agreed with
Assange’s lawyers: the prosecutor had indeed breached her duty by keeping the
case suspended for years. Another judge issued a rebuke to the prosecutor. And
yet she defied the court.
Last December, Assange took
his case to the Swedish Supreme Court, which ordered Marianne Ny’s boss – the
Prosecutor General of Sweden Anders Perklev – to explain. The next day, Ny
announced, without explanation, that she had changed her mind and would now
question Assange in London.
In his submission to the
Supreme Court, the Prosecutor General made some important concessions: he
argued that the coercion of Assange had been “intrusive” and that that the
period in the embassy has been a “great strain” on him. He even conceded that
if the matter had ever come to prosecution, trial, conviction and serving a
sentence in Sweden, Julian Assange would have left Sweden long ago.
In a split decision, one
Supreme Court judge argued that the arrest warrant should have been revoked.
The majority of the judges ruled that, since the prosecutor had now said she
would go to London, Assange’s arguments had become “moot.” But the Court ruled
that it would have found against the prosecutor if she had not suddenly changed
her mind. Justice by caprice.
Writing in the Swedish
press, a former Swedish prosecutor, Rolf Hillegren, accused Ny of losing all
impartiality. He described her personal investment in the case as “abnormal”
and demanded that she be replaced.
Having said she would go to
London in June, Ny did not go, but sent a deputy, knowing that the questioning
would not be legal under these circumstances, especially as Sweden had not
bothered to get Ecuador’s approval for the meeting. At the same time, her
office tipped off the Swedish tabloid newspaper Expressen, which
sent its London correspondent to wait outside Ecuador’s embassy for “news.” The
news was that Ny was cancelling the appointment and blaming Ecuador for the
confusion and by implication an “uncooperative” Assange – when the opposite was
true.
As the statute of
limitations date approaches – Aug. 20 – another chapter in this hideous story
will doubtless unfold, with Marianne Ny pulling yet another rabbit out of her
hat and the commissars and prosecutors in Washington the beneficiaries. Perhaps
none of this is surprising.
In 2008, a war on WikiLeaks
and on Julian Assange was foretold in a secret Pentagon document prepared by
the “Cyber Counterintelligence Assessments Branch.” It described a detailed
plan to destroy the feeling of “trust” which is WikiLeaks’ “centre of gravity.”
This would be achieved with threats of “exposure [and] criminal prosecution.”
Silencing and criminalizing
such a rare source of truth-telling was the aim, smear the method. While this
scandal continues the very notion of justice is diminished, along with the
reputation of Sweden, and the shadow of America’s menace touches us all.
John Pilger is an Australian-British journalist based
in London. Pilger’s
Web site is: www.johnpilger.com
For additional information,
click on the following links:
http://www.theguardian.com/media/2015/jul/23/julian-assange-ecuador-and-sweden-in-tense-standoff-over-interview?CMP=twt_gu http://assangeinsweden.com/2015/03/17/the-prosecutor-in-the-assange-case-should-be-replaced/
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