WikiLeaks founder Julian Assange is considering his narrowing options after a November 2 London appeals court affirmation that he can be extradited to Sweden where he is charged with several sexual offenses. Looming over the European extradition case is the question of whether an American grand jury will indict Assange for the WikiLeaks disclosures and request his extradition to the United States.
Assange has approximately one week to decide whether to appeal further, a request that, too, must be approved by the UK’s judicial authorities. If approved, Assange could win several months longer in the UK. If he decides not to appeal, however, Assange may be extradited to Sweden in less than one month.
As this report was published, a source close to the Assange defense team said he didn’t “know the route the defense team will take” but might have an idea of “how the land lies” by today.
If a stay of extradition in Britain seems unlikely, then Assange faces the question of how to improve the public atmosphere around his possible trial in Sweden, which his previous lawyers and defenders have described as an unfriendly environment. For more on the Swedish dimension, please see "The Trials of Julain Assange: A View From Sweden."
Sweden might send Assange to the US by mutual agreement under a “temporary surrender” clause in its law. But that would presumably require an indictment in the US followed by the waiver of international agreements that seem to require the consent of both Sweden and the UK in the event that Assange is prosecuted under a different charge than the one he faces in Sweden. (Andy Greenberg, November 2, 2011)
This week’s appellate decision by Sir John Thomas and Mr. Justice Ouseley came more than three months after a two-day hearing in London on July 12-13.
The detailed ruling seems written to minimize the prospects for success on a further appeal to the UK’s Supreme Court. The ruling subordinates many questions and ambiguities concerning the case under one overriding judgment that the European Framework on judicial extradition between member states, adopted after the 9/11 attacks, guarantees that the same quality of justice is available in the UK, Sweden or any other European signatory. “The basic principle,” according to the two-judge panel, “was that when a judicial authority of a member state requested the surrender of a person, either because he had been convicted or being prosecuted, its decision must be recognized and executed automatically with only limited circumstances in which surrender could be refused.”
The Assange team vigorously contested the narrowness of the claim that extradition should be automatic except in limited circumstances, but its arguments were turned down on every point. To take one example, extradition is not permissible for the purposes of investigation, gathering of evidence, or questioning to see if an individual should be prosecuted; in the words of the two judges above, only if the defendant is “being prosecuted.”
In the Assange case, however, the Swedish prosecutor has acknowledged in a signed statement that her case is at a stage of “preliminary investigation” and that “any matters said by him” in an interview with her could “undermine my present view that he should be indicted.” Plainly Assange is only being issued a warrant for “possible prosecution.” To rationalize his extradition in any event, the two-judge panel made this murky finding: “We do not see why, looking at the matter through cosmopolitan eyes, it cannot be said that a person can be accused of an offense even though the decision has not been taken to prosecute or charge.”
At another point, the two-judge panel writes, “It cannot be said that what is set out is plainly wrong,” and further, “Whether there is sufficient evidence is a matter with which this court cannot be concerned.” The underlying thread is judicial support for the Swedish prosecutor’s right to prosecute, overriding all other factors.