In a departure from previous strategies used by Assange and his legal team during his fight against being extradited to Sweden, the proceedings today were remarkable largely because of the dry, unemotional nature of many of the arguments raised. Whilst the spectre of a possible extradition to the USA leading to an extended period in Guantanamo or an equivalent detention facility was raised, this was only a very minor part of the case against the extradition. Relegating this argument to a minor role is probably a wise decision for two reasons. Firstly, it’s unlikely to serve any purpose and only serves to make the Assange team seem desperate, hysterical and overly paranoid. Indeed, it is, to quote barrister Julian Knowles, “frankly, a hopeless argument”, as he stated while being interviewed for an article here. Secondly, an extradition to the USA is probably more likely to succeed whilst Assange remains in the UK. Under the terms of the European Arrest Warrant (henceforth abbreviated to EAW), the Swedes would be legally barred to set aside their own legal proceedings to allow Assange to be passed to the USA. If, however, the USA were to request an extradition whilst the Swedish extradition was still being debated, the British Home Secretary (Theresa May) would have to decide which extradition to favour. It is likely that the American extradition would be preferred due to both the “Special Relationship” that the UK still believes it has with the USA and the fact that the charges emanating from the USA are likely to be more serious, especially given that Sweden is yet to charge Assange.
Sweden is attempting to extradite Assange under an EAW. This legislation, which emanated from an EU decision taken after only a singular week had passed since 9/11, has been controversial ever since it was introduced into law in 2003. Every day it creates injustices, with on average three people per day extradited from the UK alone. The warrants were originally intended to be a way of ensuring international co-operation in prosecuting those involved in terrorism or serious crime, but the evidence that the vast majority of those extradited under EAWs fall into either of these categories is scarce, at best, to the point that many of those who are involved with the process itself agree that many of the cases are, and I quote, “trivial”. For example, Jacek Jaskolski, a disabled, 58-year-old science teacher who also is the primary carer for his disabled wife, moved to the UK from Poland in 2004. In December 2010 he had to fight an EAW issued by the Polish authorities. His crime was that he had gone over his overdraft limit 10 years previously while he still lived in Poland. In the UK this would have been a matter for the civil courts, and not criminal courts, which makes the validity of the warrant. The relevance of this is that one of the arguments raised by the Assange legal team is that of the four allegations that Assange is wanted for questioning in respect to, three of them would not be crimes under the UK legal system. Further and in addition to this, the use of an EAW for pre-prosecution questioning is not allowed under UK law, according to the Assange legal team. Whilst this would prevent an extradition in most cases, under an EAW there is precedent for extraditions to continue anyway. An interesting guardian article regarding EAWs and the Polish case described can be found here. For a wider view of the history and implementation of EAWs, as well as a serious of notable cases, the wikipedia article is a good place to start, and can be found here (warning, the neutrality of that page is disputed).
A further argument the Assange team raised during the appeal proceedings was that there is a misleading difference between the wording and phraseology of the arrest warrant and the actual complaints made by the two women against Assange. Ben Emmerson, Assange’s barrister, stressed that the arrest warrant was misleading as there was “no violence or threats”, and that the sexual encounters, whilst perhaps discomforting for the women involved, were completely consensual. A further contention by Emmerson along similar lines was that the arrest warrant under which Assange is being held is flawed as it failed to provide a “fair, accurate and proper” description of the sexual misconduct that is alleged to have taken place. If the arrest warrant was found to have misleading, this may well affect whether the High Court sees fit to accept extradite Assange.
Importantly, the case made by the Assange legal team does not hinge on whether or not Assange himself accepts the description of events present in the complaints, but whether the arrest warrant with respect to these complaints is legally valid in itself. Also important to note is that, should this appeal by Assange fail, permission to appeal to the supreme court would only be granted if it were based on a point of law considered to be in the public interest.