August 20, 2012
Allow me to place my cards on the table right away. I believe very firmly that the US is out to indict Assange. I believe this on the basis of attempts by US prosecutors to inculpate him as a co-conspirator in the Manning case. I believe this on the basis of evidence of a sealed indictment involving a secret grand jury which is pursuing Wikileaks and its founder. I believe it on the basis of the interest expressed by senior US politicians in indicting Assange, and possibly assassinating him. I believe it on the basis of leaked information that the US are actively pursuing Assange, despite official denials. I believe it on the basis of the direction of Obama's policy, the escalation of repression using espionage legislation, the hoarding of executive power linked to imperialism, the hunting of 'hacktivists' of various kinds. I believe it on the basis of Attorney General Eric Holder's declaration that he intends to close any legal "gaps" that might seem to protect whistleblowers.
I think all of this amounts to an active, concrete threat to Assange's safety, grounded in well understood lines of policy under the Obama administration. I think that Assange is right to say that there is a war on whistleblowers, and it is obvious that he is in the crosshairs. I think that if the US gets hold of him, they will try to make an example of him; and I don't believe his celebrity would necessarily protect him. I think the only question is when and how they go after him, and that is a question of politics and timing, not legal niceties. I think those dismissive of this threat (cf. "conspiracy theory") are either being ignorant or obtuse. And I think it is 'no accident', as they used to say, that those who are most attuned to this problem are the likes of Glenn Greenwald
and the Center for Constitutional Rights in the US who have been monitoring the administration's behaviour up close.
If the US were extraditing Assange from the UK, on a straightforward charge of espionage, there would be a lot less controversy about all this. But as it is Sweden that is presently attempting to extradite him on seemingly unrelated sexual assault charges, the question arises: is the threat from the US related to the extradition to Sweden? If you don't mind, I am setting aside the 'CIA honey trap' stuff, as it rather has the disadvantage of preempting any evidence, and also of smearing the women who are the alleged victims. I am not even asking if there is any way in which some aspects of this prosecution have become politicised. It seems obvious to me that they would be, though I am sceptical of some of the claims
of irregularities in the prosecution, and the alleged
involvement of Republican strategist Karl Rove in the prosecution. I am simply asking,
and necessarily this is purely speculation, is there any way in which Assange being extradited to Sweden would place him under any additional threat?
This question produces the oddest effect from certain quarters:
first, a wonderful passion for Sweden's due process (it is irrelevant, how dare Assange force the Swedes to negotiate with his lawyers?); and second, a
remarkable, instant expertise in international extradition law. One
hears from people, who yesterday knew about as much on this subject as I
do about the life and times of the Kardashians, opinions like: "he
would be under no greater legal risk in Sweden than in the UK, which has
a fast-track extradition agreement with the US, hobviously." Or, "the very fact of a threat to Assange would mean that the ECHR
would automatically impose strict limitations on Sweden's behaviour, fickoooo". Or even, "Assange could not be tried on any known US law, stoopid". Now this usually means the person in question has looked up a blog written by a lawyer or aspiring lawyer, or has tweeted someone who is a lawyer or aspiring lawyer.
Yet, I would find this level of argument laughable even from an actual lawyer. I do respect real expertise, and I do think the law matters. However:
this resort to positivist jurisprudence strikes me as a sign of despair - somehow a legal guarantee will sort out all the complexities and we can thereby focus on cultivating righteous anger against Assange;
b) there are as many legal opinions as there are lawyers, and it isn't as if there aren't ranks of lawyers amassing on Assange's side including the likes of Gareth Pierce and Michael Ratner, meaning that there is a significant body of very well informed legal opinion that interprets a real threat. In particular, Assange's legal team might argue that the clause of 'temporary surrender' in Sweden's extradition treaty with the US allows a much easier transfer of a suspect to American custody, suspending normal conditions and standards, than the instapundits would admit. They might say that the UK's review mechanisms are far more potentially obstructive to the US than in Sweden. They would probably say that with the US administration openly declaring war on Wikileaks, and its intent to close any legal 'gaps', that it will find a way to phrase charges so that an indictment could be drummed up. They might add that the European Court of Human Rights was unable to prevent the torture of the asylum seeker Ahmed Hussein Mustafa Kamil Agiza who was extradited to US custody in violation of international treaties. But their responses, whatever they were, would generate counter-responses, and a further chain of legal reasoning and wrangling, which would not conclude in agreement.;
c) there is no reason to suppose that the
determining factor in this political situation would be law. Law might be the terrain in which this battle is fought out, the language of its prosecution, but this will be a process of interpretation in which the immense resources of the United States will be brought to bear. A large part of the reason why Guantanamo Bay is still open for business, why drone strikes still happen, why the torture circuit is still in motion, and why people like Babar Ahmed and Talha Ahsan are being dragged through the courts while US war criminals enjoy immunity, is because a critical UN report, or a critical mass of legal opinion, is no match for the political, military, economic and diplomatic strength of the dominant imperial power, which also translates into legal strength. It is a misconception of the last decade that the Bush administration was 'lawless'. In fact, it was punctiliously lawful, just as the present administration is. And you can rest assured that as Obama and his administration go about enforcing the crackdown on whistleblowers, just as they have with the 'kill list' and surveillance, they will do so with careful, informed, virtuous legal decisions underwriting everything they do, and grounding it firmly in both international and domestic law.
I consider the effort to decide the complexities of this case with a few peremptory, borrowed legalisms wholly unconvincing. And if I'm ready to patronise a trained lawyer, I'll damned well patronise Owen Jones over it. Moreover, there is a point at which what is necessarily speculation (we do not know what is on the minds of US prosecutors, or what agreements they have struck, or what their legal approach would be, or indeed what if any aspects of the prosecution are politicised), becomes a demand for speculation. "If the US really wants Assange, why didn't they pressure their Swedish friends to withdraw their extradition, and issue their own?" Or, "if the US really wants Assange, surely it makes no difference where he is, they can just snap him up?" And so on.
I could try to answer such challenges. I could say that were Assange extradited to Sweden, he would immediately be imprisoned in solitary confinement,
before any charges were
imposed, while being questioned. He obviously would have no freedom of
movement, as he has had in the UK (albeit under tagging etc), and thus
no opportunity to seek protection should the US issue an extradition. I could suggest that, as the Swedish extradition request would be
fulfilled, the way would be clear for a notoriously cooperative
government to release Assange to the authorities, either within or in
violation of treaty conditions. And the Swedish government has refused
to offer any safeguards in this respect. I could say that, were his
case to even reach trial, it would take place in
secret. This is normal in Swedish rape cases, and I suspect there are
some good reasons why it is the case: it does, though, rather leave
the door open to abuse. However, it seems to me that we're going to descend into rapidly unspooling chains of speculative logic if we go down that road. There is no need to answer such questions except by saying, ask them. We know the US intends to indict Assange. There is ample evidence of this in the works. If they have not done so yet, it is not because they don't intend to. So, rather than shoot the messenger, inquire as to America's extensive investigation of its intended target with those who are actually running it.
Worse than the instant expertise is the rhetorical bombast from many of the people whose
opinions I ordinarily respe... Sorry, I couldn't say that with a
straight face. But the point is, there is an
incredible amount of highly personalised resentment directed at Assange
which seems to go well beyond any valid political disagreement, or
distance toward his celebrity. Imagine the offended Tweets as he gave
his speech from the balcony in the Ecuadorian embassy today: "What?
Comparing himself to Pussy Riot? No, they had the guts to face their accusers." (I really didn't think they had a choice in the matter).
Or: "Bradley Manning is far more of a real hero than the sleazy
Assange." (Critiquing hero worship with an alternative hero worship). I do understand the discomfort people have when someone who stands thus accused summons such passionate loyalty and support from many people. I appreciate the disdain for deifying 'great men'. However, the appearance of charged sentiments like this, and this is a
sample of the milder material - many people seem to assume that Assange
has already been proven guilty - proves that resentment is taking
precedence over analysis.
This is surely not that difficult an issue, yet I've never seen an issue so divisive on the Left, since the last issue that was this
divisive. On the face of it, the difficulty arises from an inability to
walk and chew gum at the same time. That is: it is
surely quite possible to take these rape allegations against Assange
seriously, and not participate in typical patriarchal denigration of
women reporting rape, while at the same time taking the US threat to
Assange seriously and supporting efforts to resist that. If this needs to be expressed in a concrete demand, then the demand should be for the Swedish prosecutors to facilitate justice - which will not be served by Assange's extradition to the US - by arranging a safe way for him to answer police questions, where he doesn't risk being abducted. That would be best both for Assange and for his accusers. See? It isn't hard. Yet the polarised reactions almost seem
to suggest there's an impossible dilemma at stake.
Last year, there was an
unbelievable spectacle: a very large number of people on the Left who
said that the rape allegations were not serious - that is, the
allegations were about consensual sex and were only regarded as rape in
Sweden's kooky local culture. There was also some theorising along the
lines that this was a stitch-up, a CIA honey trap. Of course, that sort
of thing happens. And of course, whistleblowers are always subject to
some type of smear. But rape also happens, rather frequently, and the
tremendous bias against women reporting rape is a reason to take such
allegations seriously. This year's alarming deviation is a claque of
leftists either outright denying that there is any serious threat to
Assange from the US or tacitly minimising it. Such wild oscillations aren't really healthy. And I reiterate my previous position: it really isn't that difficult.