The Swedish and British case against Julian Assange grossly abuses his human rights and basic principles of justice

Back in November 2016 the Swedish prosecutor leading the investigation into the rape allegations against Julian Assange finally did what she had spent years refusing to do, which is have Assange questioned about the allegations in Britain, in fact in the place where he has been given asylum, which is the Ecuadorian embassy.

Shortly after Julian Assange published a statement setting out his own detailed response to the rape allegations,.  This statement was provided to the Swedish prosecutor, and further sets out and elaborates what Assange told the prosecutor in answer to the prosecutor’s questions.

Julian Assange is residing in the Ecuadorian embassy because he is the subject of a European arrest warrant issued at the instigation of the Swedish authorities, which the British authorities in legal proceedings have upheld, and which requires Assange’s return to Sweden to face questioning there.

This European arrest warrant was not issued because Assange has ever been charged with rape, the crime which his accusers allege he committed whilst he was in Sweden. Assange has never been charged with rape.

Instead the Swedish prosecutor had the warrant issued in order – purportedly – to bring Assange to Sweden so that he could be questioned there about the rape allegations.  The decision as to whether or not he would be charged with rape was to be made after he was questioned, in part on the basis of what his answers to the questions might be.

It is a matter of huge controversy whether the Swedish and British authorities should have enforced a European arrest warrant for such a purpose – to oblige Assange’s return to Sweden to be questioned there – when Assange had repeatedly offered to make himself available for questioning in Britain.  The fact the Swedish prosecutor in November 2016 after years of refusals did finally question Assange in Britain lends force to those who say that enforcing a European arrest warrant for such a purpose was wrong.

However it is what has happened since Assange was questioned that should cause even greater concern.

It is now the last day in April, five months since Assange was questioned about the rape allegations in Britain.  However there is no word from Sweden either of the case against him being dropped or of the rape charges against him being pressed.

Meanwhile the European arrest warrant been not been cancelled, and the extradition request to Britain has not been dropped, even though their purported purpose – to have Assange questioned about the rape allegations – has been fulfilled in Britain.

Meanwhile the British authorities have taken no steps to review their grant of the Swedish extradition request notwithstanding that the purported purpose of that request – to return Assange to Sweden so that he could be questioned about the rape allegations there – has been fulfilled in Britain.

This is despite the fact that the Working Group on Arbitrary Detention of the UN Human Rights Council has said that the treatment of Julian Assange by the British and Swedish authorities already  violates his human rights.

The result is that Assange remains trapped in limbo in the Ecuadorian embassy despite the fact that there are no charges against him, despite his having complied with the Swedish request that he be questioned about the rape allegations, and despite the fact that the Working Group on Arbitrary Detention of the UN Human Rights Council says his human rights are being violated.

It should be said clearly that this is completely unacceptable and wrong, and further violates Assange’s human rights, which have already been violated, but does so to an even greater degree.

There is a possible – though very disturbing – explanation for all this.  It is one which has been frequently made by Assange’s supporters, and which was hinted at by Assange himself in the statement he published in December.

This is that the Swedish and British proceedings which have been brought against Assange are a sham, and that the real purpose of these proceedings is not to investigate rape allegations against him (about which even the alleged victim is supposed to have expressed doubts), but to restrict his movements and to prevent him leaving either Britain or Sweden – countries with which the US has extradition arrangements – until a case the US is preparing against him under the Espionage Act is ready and can be pressed.

That such a case exists has been known about for a long time, and was discussed in detail by Assange in his statement.

Since the US’s conduct of this case, and the way it may have a bearing on the conduct of the Swedish case, is of central importance to any discussion of what has been happening to Assange, I will set out what Assange has to say about it in his statement at length.  I am able to do so this since this statement, made in legal proceedings and published by Assange himself, is now in the public record.

Obviously this statement sets out Assange’s claims and his side of the story.  Anyone who wishes to take issue with it, or who says that things Assange says in the statement are wrong or false, has the right to say so, and to challenge what he says in his statement

1. II. REASONS WHY I TRAVELLED TO STOCKHOLM IN AUGUST 2010

2. ……..

    

3. 33.The US launched an investigation against me in early 2010 under the Obama administration, while Hillary Clinton was the US Secretary of State. This administration has expended very substantial resources on attempting to prosecute me and attempting to spy on my publishing work despite its constitutionally protected status. The US government’s WikiLeaks investigation is described in official diplomatic correspondence as being “unprecedented in scale and nature”. 

    

4. 34.All the citations I mention are in my affidavit from 2 September 2013, which I am entering into the official record of this proceeding. 

    

5. 35.The US government has periodically confirmed in public that the national security case against WikiLeaks remains open and ongoing, including in proceedings from this year. Numerous human rights and freedom of speech organizations such as Human Rights Watch have criticized the Obama administration for pursuing a criminal case against WikiLeaks and me.  

1. 36.The investigation against Wikileaks is led by the FBI and has involved a dozen other agencies, including the CIA, the NSA, and the Defence Intelligence Agency. The US government has described the investigation as a “whole of government” investigation. In Alexandria, Virginia, a Grand Jury has been meeting behind closed doors for the past six years under case number 10GJ3793 to explore ways to imprison me and seven others who they have identified as “founders, owners or managers of WikiLeaks”. The prosecution in the Chelsea Manning case attempted to establish that Private Manning acted as an agent under my control rather than as a journalistic source of mine, even though in Private Manning’s own statement to the court, she said this was not the case. The US military charged Private Manning with twenty-two counts in connection with the release of more than 700,000 classified or confidential documents to WikiLeaks. On 30 July 2013 private Manning was convicted of twenty of these counts and sentenced to thirty-five years in prison on 20 August 2013. 

    

2. 37.Private Manning was detained for more than 1,000 days before the trial commenced. During this time she remained for 258 days in solitary confinement. The UN Special Rapporteur on Torture found that the conditions and length of private Private Manning’s confinement at Quantico, Virginia, amounted to “inhuman and degrading treatment”. Private Manning’s lawyer, David Coombs, said that the treatment of Private Manning was an attempt at breaking her so that Manning would implicate me. The US military court system eventually found that Private Manning was unlawfully punished as a result of this treatment while in US custody. Private Manning was convicted of espionage; the first whistleblower ever so convicted. Private Manning was acquitted of the “aiding the enemy” charge, but the US government could still seek to employ this charge against me. Private Manning is serving a 35 year prison sentence.  

    

3. 38.According to the respected UK newspaper The Independent, the US and Sweden entered informal talks regarding my extradition from Sweden to the United States in early December 2010. These talks of my extradition concerned the US Grand Jury and FBI investigation against WikiLeaks, which is also the reason that Ecuador granted me asylum. 

    

4. 39.The aggressive calls to stop WikiLeaks from publishing were the reason for my travel to Stockholm. US officials‘ rhetoric grew increasingly aggressive in the period immediately prior to my visit to Sweden on 11 August 2010. In June, a Daily Beast news report entitled ‘The State Department’s Worst Nightmare’ revealed that the Pentagon was “conducting an aggressive investigation” into whether WikiLeaks had 260,000 US diplomatic cables and the material’s whereabouts. 

    

5. 40.Two days later, an article titled ‘Pentagon Manhunt’ appeared, describing Pentagon investigators desperately trying to track me down in relation to the impending publication of Cablegate: 

    

   “Anxious that Wikileaks may be on the verge of publishing a batch of secret State Department cables, investigators are desperately searching for founder Julian Assange”. 

    

6. 41.On 17 June 2010 US Department of Defense spokesman Geoff Morrell stated there was an  

“ongoing criminal investigation [concerning WikiLeaks], involving the Army Criminal Investigation Division, as well as, I believe, some other law enforcement agencies.”

1. 42.The Pentagon officials “would not discuss the methods being used to find Assange, nor would they say if they had information to suggest where he is now.” On reading this, I realised WikiLeaks‘ continued ability to publish effectively and my own personal safety were at serious risk.  

    

2. 43.During the month of July I worked with a team of journalists in the United Kingdom to publish the Afghan War Diaries: 75,000 secret Pentagon documents about the war in Afghanistan, which included the detailed records about the deaths of nearly 20,000 people. The day after WikiLeaks published the Afghan War Diaries, White House Press Secretary Robert Gibbs stated that WikiLeaks “poses a very real and potential threat”. 

    

3. 44.I published the Afghan War Diaries approximately two weeks before I travelled to Sweden. In the aftermath of the publication, US government officials made efforts to influence the way in which the media reported on our publications. The purpose was to delegitimise WikiLeaks protections as a publisher under the US First Amendment. For example, it attempted to falsely cast WikiLeaks as an adversary, opposed to US national interests, a false claim that I would later see echoed in Swedish media.  

    

4. 45.The New York Times reported that the White House had emailed its reporters with suggested “reporting tacks to take” on WikiLeaks and WikiLeaks‘ disclosures, in an attempt to induce news outlets into referring to WikiLeaks in these terms. 

    

5. 46.The White House sent an e-mail with the subject heading “Thoughts on Wikileaks” containing a memo in which the White House 

    

   1. • “advised journalists on possible reporting tacks to take on the [Afghan War Diaries] documents […] As you report on this issue, it’s worth noting that wikileaks is not an objective news outlet but rather an organization that opposes US policy in Afghanistan.”

1. 47.I also learned from news reports that security authorities from my home country Australia were assisting the US intelligence investigation into WikiLeaks and me:  

“Australian security authorities are assisting a United States intelligence probe into the whistleblower website Wikileaks and its Australian founder and editor, Julian Assange. The US request for support in what Australian national security sources described as ‘a counter-espionage investigation’ preceded Wikileaks’ dramatic publication yesterday of a leaked US military operations log, described as an ”extraordinary compendium” of 91,000 reports by United States and allied soldiers fighting in Afghanistan.”

1. 48.On July 28th, just three days after publishing the Afghan War Diaries and two weeks before I travelled to Sweden, US Department of Defense Secretary Gates “called FBI Director Robert Mueller and asked for the FBI’s assistance in [the WikiLeaks] investigation as a partner.” The US Defence Department declared: 

“Calling on the FBI to aid the investigation ensures that the department will have all the resources needed to investigate… noting that use of the bureau ensures the investigation can go wherever it needs to go.”

1. 49.The New York Times reported that US Defense Secretary Robert Gates 

“declined to comment about the investigation beyond noting that he had enlisted the Federal Bureau of Investigation to assist Army investigators, a move that is seen as a precursor to potentially charging people who are not uniformed service members […] A person familiar with the investigation has said that Justice Department lawyers are exploring whether Mr. Assange and WikiLeaks could be charged with inducing, or conspiring in, violations of the Espionage Act, a 1917 law that prohibits the unauthorized disclosure of national security information.”

1. 50.On 1 August 2010, the press reported that the FBI and British police were carrying out searches and interrogations in the UK, where I found myself at the time, in connection with WikiLeaks‘ publications. 

1. 51.Over the next days, US rhetoric and actions against WikiLeaks intensified. Prominent commentators and former White House officials championed extraterritorial measures and the violation of international law “if necessary”.  

    

2. 52.One of these commentators was former presidential speech writer Marc Thiessen, who published a Washington Post article entitled ‘WikiLeaks Must be Stopped’: 

“…the government has a wide range of options for dealing with him. It can employ not only law enforcement but also intelligence and military assets to bring Assange to justice.”

1. 53.Thiessen argued that the US should put pressure on any state in which I was located and that the US should, if necessary, arrest me even without the consent of that state. He cited legal advice from the Department of Justice regarding FBI operations abroad: 

“The United States should make clear that it will not tolerate any country — and particularly NATO allies such as Belgium and Iceland — providing safe haven for criminals who put the lives of NATO forces at risk. With appropriate diplomatic pressure, these governments may cooperate in bringing Assange to justice. But if they refuse, the United States can arrest Assange on their territory without their knowledge or approval.”

1. 54.Thiessen further asserted that the FBI could violate international law in order to stop me and apprehend other people associated with WikiLeaks’ publishing activities. Thiessen cited a Department of Justice memo: 

“the FBI may use its statutory authority to investigate and arrest individuals for violating United States law, even if the FBI’s actions contravene customary international law” and that an “arrest that is inconsistent with international or foreign law does not violate the Fourth Amendment.” In other words, we do not need permission to apprehend Assange or his co-conspirators anywhere in the world.

Arresting Assange would be a major blow to his organization. But taking him off the streets is not enough; we must also recover the documents he unlawfully possesses and disable the system he has built to illegally disseminate classified information.

This should be done, ideally, through international law enforcement cooperation. But if such cooperation is not forthcoming, the United States can and should act alone.”

1. 55.Seven days before I travelled to Sweden I was acutely aware that my personal safety was at risk. Scott Horton, legal affairs and national security contributor at Harper’s, wrote the article ‘WikiLeaks: The National-Security State Strikes Back’: 

“[Assange] will certainly be targeted for petty harassment and subject to steady surveillance, and efforts to kidnap him are almost certainly being spun at this very moment.“

1. 56.Pentagon Press Secretary Geoff Morrell announced an anti-WikiLeaks task force comprised of 80 people was operating 24 hours a day. One month later, it had grown to 120 people. The “distinct responsibility” of the Information Review Task Force – dubbed by some occupants as the “WikiLeaks War Room” – was 

    

   1. • “…to gather evidence about the workings of WikiLeaks that might someday be used by the Justice Department to prosecute Assange and others on espionage charges.”

2. 57.The article “’The General Gunning for WikiLeaks” described the task force: 

“In a nondescript suite of government offices not far from the Pentagon, nearly 120 intelligence analysts, FBI agents, and others are at work—24 hours a day, seven days a week—on the frontlines of the government’s secret war against WikiLeaks.

Dubbed the WikiLeaks War Room by some of its occupants, the round-the-clock operation is on high alert this month …”

1. 58.The same article states that Brig. General Robert A. Carr, who runs “the Pentagon’s equivalent to the CIA”, the Defense Counterintelligence and Human Intelligence Center of the Defense Intelligence Agency (DIA), was “handpicked” by Defense Secretary Robert Gates to head the team because he “is highly respected …and a fitting adversary to Assange”. 

1. 59.General Carr’s “central assignment” was reportedly “to try to determine exactly what classified information might have been leaked to WikiLeaks”. General Carr testified at the Chelsea Manning sentencing hearing on 31 July 2013. 

1. 60.I followed closely how pressure mounted on US allies to track my movements and to stop our publications. Official sources within the administration revealed to the press that the US was not only considering how to prosecute me in relation to WikiLeaks’ publications in the US, but was also requesting their allies to prosecute me under their own national security laws: 

    

“American officials confirmed last month that the Justice Department was weighing a range of criminal charges against Assange and others […]

Now, the officials say, they want other foreign governments to consider the same sorts of criminal charges.”

An article published the day before I went to Sweden stated that “The Obama administration is pressing Britain, Germany, Australia, and other allied Western governments to consider opening criminal investigations of WikiLeaks founder Julian Assange and to severely limit his nomadic travels across international borders, American officials say.”

1. 61.In addition to the stated intention to restrict my freedom of movement, the US government attempted to convince its allies not to allow me entry into their territory as a warning to me, to those working with me and WikiLeaks, and to our supporters: 

    

“Through diplomatic and military channels, the Obama administration is hoping to convince Britain, Germany, and Australia, among other allied governments, that Assange should not be welcome on their shores either, given the danger that his group poses to their troops stationed in Afghanistan, American officials say. They say severe limitations on Assange’s travels might serve as a useful warning to his followers that their own freedom is now at risk.”

1. 62.The Australian government publicly entertained the possibility of canceling my passport, reportedly as a result of pressure placed on Australia by the United States. Australian Attorney General Robert McClelland assured the United States that the Australian government would “provide every assistance to United States law-enforcement authorities”, including by exploring the possibility of canceling my passport. 

    

2. 63.US pressure even resulted in public attempts to influence decisions based on human rights considerations where I and WikiLeaks were concerned. Through US ambassador to Switzerland Donald Beyer, the Obama administration pressured Switzerland not to grant me political asylum while I participated at the UN Human Rights Council’s Universal Periodic Review of the United States. US ambassador Beyer gave an interview to Swiss newspaper Sonntag: 

    

“The United States ambassador to Switzerland, Donald Beyer, has also entered the Wikileaks debate. He has warned the Swiss government against granting Assange asylum, which the Australian founder of Wikileaks has said he was considering requesting. “Switzerland should very carefully consider whether to provide shelter to someone who is on the run from the law”.

1. 64.The Daily Beast reported that Washington was prepared to review its diplomatic relations with Iceland because parts of WikiLeaks operations had been conducted in that country:  

“An American military official tells The Daily Beast that Washington may also want to closely review its relations with Iceland in the wake of the release of the Afghan war logs.”

1. 65.In the context of my heightened concerns about US activities in the United Kingdom in relation to the WikiLeaks investigation, I decided to leave the country. When I travelled to Sweden on 11 August 2010, the aggressive rhetoric against me had reached new heights. Former CIA general counsel Jeffrey Smith told National Public Radio:  

“I think it is entirely appropriate for us to be very aggressive […] If I were the US government, I would be trying to make it as difficult as possible for the WikiLeaks founder to continue to do business… To the extent we can persuade our allies to consider prosecution, I think that’s all to the good.”

1. 66.On the same day I arrived in Sweden, 11 August 2010, I received information from an Australian intelligence source that extra-legal actions might be taken against me by the US or its allies. This was later reported in the Australian newspaper The Age: 

“An Australian intelligence official privately warned Wikileaks on August 11 last year that Assange was the subject of inquiries by the Australian Security Intelligence Organisation, and that information relating to him and others associated with Wikileaks had been provided to the US in response to requests through intelligence liaison channels. The Australian intelligence official is also claimed to have specifically warned that Assange could be at risk of ‘dirty tricks’ from the US intelligence community.”

The US, British and Swedish authorities of course strongly dispute any suggestion that the Swedish case against Assange is a sham, or that it is intended to obstruct his movements whilst the US prepares its case against him.  There are three facts however which – at least for me – lend weight to this theory.

The first is that the British High Court’s decision to uphold the European arrest warrant seemed to me to go against precedent, something that seemed to me all the more remarkable given that one of the judges who decided Assange’s case had himself made the precedent.

I appreciate that this is vigorously disputed, including of course by the judge himself.  However I note that after the High Court’s decision the law was changed to bring it back into line with what I understood the law according to the precedent to be.  That incidentally means that it is now impossible for what the British authorities tried to do to Assange – have him extradited from Britain on the strength of a European arrest warrant signed not by a court but by a prosecutor – to be done to anyone else again.

The second is the failure of the Swedish authorities to bring charges against Assange or to drop the case against him 5 months after he was questioned (see above).

The third is the ugly mixture of threats and warnings made against Assange, Wikileaks and their supporters, by CIA Director Mike Pompeo during a speech at the Center for Strategic and International Studies on 13th April 2017.

Here is how Pompeo described Wikileaks during that speech

WikiLeaks walks like a hostile intelligence service and talks like a hostile intelligence service. It has encouraged its followers to find jobs at CIA in order to obtain intelligence. It directed Chelsea Manning in her theft of specific secret information. And it overwhelmingly focuses on the United States, while seeking support from anti-democratic countries and organizations.

It is time to call out WikiLeaks for what it really is – a non-state hostile intelligence service often abetted by state actors like Russia. In January of this year, our Intelligence Community determined that Russian military intelligence—the GRU—had used WikiLeaks to release data of US victims that the GRU had obtained through cyber operations against the Democratic National Committee. And the report also found that Russia’s primary propaganda outlet, RT, has actively collaborated with WikiLeaks.

And here is what Pompeo said the US was going to do about it

First, it is high time we called out those who grant a platform to these leakers and so-called transparency activists. We know the danger that Assange and his not-so-merry band of brothers pose to democracies around the world. Ignorance or misplaced idealism is no longer an acceptable excuse for lionizing these demons.

Second, there are steps that we have to take at home—in fact, this is a process we’ve already started. We’ve got to strengthen our own systems; we’ve got to improve internal mechanisms that help us in our counterintelligence mission. All of us in the Intelligence Community had a wake-up call after Snowden’s treachery. Unfortunately, the threat has not abated.

I can’t go into great detail, but the steps we take can’t be static. Our approach to security has to be constantly evolving. We need to be as clever and innovative as the enemies we face. They won’t relent, and neither will we.

We can never truly eliminate the threat but we can mitigate and manage it. This relies on agility and on dynamic “defense in depth.” It depends on a fundamental change in how we address digital problems, understanding that best practices have to evolve in real time. It is a long-term project but the strides we have taken—particularly the rapid and tireless response of our Directorate of Digital Innovation—give us grounds for optimism.

Third, we have to recognize that we can no longer allow Assange and his colleagues the latitude to use free speech values against us. To give them the space to crush us with misappropriated secrets is a perversion of what our great Constitution stands for. It ends now.

(bold italics added)

What provoked Pompeo’s tirade against Assange and Wikileaks was obviously Wikileaks’ recent publication of the CIA’s Vault 7 documents.  However the words I have highlighted strongly imply that legal action against Assange is now imminent, and that the case the US is bringing against him is now ready.

If so then that means that as soon as Assange leaves the safety of the Ecuadorian embassy the US will press charges against him under the Espionage Act, and will seek his extradition from Britain on that basis.

Pompeo’s claim that Wikileaks is in effect an intelligence agency, a claim by the way which I find preposterous, also strongly hints at this.

I am not going to try to anticipate the merits or lack of them of whatever legal case the US may be intending to bring against Assange.  Until details of this case become public, it is impossible for me to do this.  Besides such a case would be brought under US law, about which I am not an authority.

However if the European authorities, and in particular those in Britain and Sweden, have colluded in the bringing of this case by concocting a case against Assange in Sweden and Britain so as to restrict his movements until the US case is ready, then that is wholly and completely wrong, and is a gross abuse and corruption of the law and is indeed an outrage.

The massive damage done to Assange’s reputation of course makes it much worse.

What is now important is that this disastrous episode should be brought to an end.

If the Swedes have grounds to bring charges against Assange, then they should do so, and do so without further delay.  If they do not intend to press charges against Assange, then they should say so publicly and without further delay, clearing him of the false allegations which have been made against him, and which have done so much damage to his reputation.  Basic principles of human conscience and of justice, and fundamental principles of law and due process, demand no less.

The Swedes and the British should in the latter case also provide clear explanations for their actions, explaining why Assange was subjected to legal proceedings when it was possible to question him in Britain, and why they delayed so long in dropping the case against him after it became clear following his questioning that there was actually no case against him when there was already in existence a legal ruling which said that his human rights were being violated.

Indeed in that case the issue would be so serious that that I think it would justify convening some sort of public inquiry in Britain to look into the whole matter, and to review how decisions were taken that have done Assange so much harm – including to his reputation – and which caused him to seek refuge in the Ecuadorian embassy.  I say so even though I appreciate that it is unprecedented for an inquiry in Britain to review judgments of the court.

Assange should in that case also be paid substantial compensation for the wrong the Swedes and the British have done to him.

If none of this happens, and if this grotesque situation continues for much longer, then before long it will be difficult if not impossible to doubt the worst.

In that case it will be legitimate to question the integrity of the legal authorities in Sweden and Britain, and of the legal processes in both countries, in light of the way they appear to have been abused throughout the conduct of this case.