Saturday, 18 December 2010
10 days in Sweden: the full allegations against Julian Assange
Julian Assange at Ellingham Hall. Photograph: Paul Hackett/Reuters
Documents seen by the Guardian reveal for the first time the full details of the allegations of rape and sexual assault that have led to extradition hearings against the WikiLeaks founder, Julian Assange.
The case against Assange, which has been the subject of intense speculation and dispute in mainstream media and on the internet, is laid out in police material held in Stockholm to which the Guardian received unauthorised access.
Assange, who was released on bail on Thursday, denies the Swedish allegations and has not formally been charged with any offence. The two Swedish women behind the charges have been accused by his supporters of making malicious complaints or being "honeytraps" in a wider conspiracy to discredit him.
Assange's UK lawyer, Mark Stephens, attributed the allegations to "dark forces", saying: "The honeytrap has been sprung ... After what we've seen so far you can reasonably conclude this is part of a greater plan." The journalist John Pilger dismissed the case as a "political stunt" and in an interview with ABC news, Assange said Swedish prosecutors were withholding evidence which suggested he had been "set up."
However, unredacted statements held by prosecutors in Stockholm, along with interviews with some of the central characters, shed fresh light on the hotly disputed sequence of events that has become the centre of a global storm.
Stephens has repeatedly complained that Assange has not been allowed to see the full allegations against him, but it is understood his Swedish defence team have copies of all the documents seen by the Guardian.
The allegations centre on a 10-day period after Assange flew into Stockholm on Wednesday 11 August. One of the women, named in court as Miss A, told police that she had arranged Assange's trip to Sweden, and let him stay in her flat because she was due to be away. She returned early, on Friday 13 August, after which the pair went for a meal and then returned to her flat.
Her account to police, which Assange disputes, stated that he began stroking her leg as they drank tea, before he pulled off her clothes and snapped a necklace that she was wearing. According to her statement she "tried to put on some articles of clothing as it was going too quickly and uncomfortably but Assange ripped them off again". Miss A told police that she didn't want to go any further "but that it was too late to stop Assange as she had gone along with it so far", and so she allowed him to undress her.
According to the statement, Miss A then realised he was trying to have unprotected sex with her. She told police that she had tried a number of times to reach for a condom but Assange had stopped her by holding her arms and pinning her legs. The statement records Miss A describing how Assange then released her arms and agreed to use a condom, but she told the police that at some stage Assange had "done something" with the condom that resulted in it becoming ripped, and ejaculated without withdrawing.
When he was later interviewed by police in Stockholm, Assange agreed that he had had sex with Miss A but said he did not tear the condom, and that he was not aware that it had been torn. He told police that he had continued to sleep in Miss A's bed for the following week and she had never mentioned a torn condom.
On the following morning, Saturday 14 August, Assange spoke at a seminar organised by Miss A. A second woman, Miss W, had contacted Miss A to ask if she could attend. Both women joined Assange, the co-ordinator of the Swedish WikiLeaks group, whom we will call "Harold", and a few others for lunch.
Assange left the lunch with Miss W. She told the police that she and Assange had visited the place where she worked and had then gone to a cinema where they had moved to the back row. He had kissed her and put his hands inside her clothing, she said.
That evening, Miss A held a party at her flat. One of her friends, "Monica", later told police that during the party Miss A had told her about the ripped condom and unprotected sex. Another friend told police that during the evening Miss A told her that she had had "the worst sex ever" with Assange: "Not only had it been the world's worst screw, it had also been violent."...
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Nick Davies @'The Guardian'
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Wikileaks: Barriers to possible US Assange prosecution
The US government will face significant legal and diplomatic hurdles if it attempts to prosecute Wikileaks founder Julian Assange in connection with the massive internet dump of secret US documents, legal scholars, defence lawyers and former prosecutors say.
Mr Assange is currently free on bail in Britain awaiting possible extradition to Sweden on sex crime charges. But the US authorities have made it clear they hope to prosecute him in the US over the release of thousands of classified diplomatic cables.
US Attorney General Eric Holder said officials were pursuing a "very serious criminal investigation" into the matter.
Recent reports indicate the US justice department may be seeking to indict him on charges of conspiring to steal documents with Private First Class Bradley Manning, a US soldier who is currently awaiting trial on charges he provided classified material to Wikileaks.
Yet while Mr Assange has widely acknowledged his role in disseminating classified documents, legal experts say US criminal statutes and case law do not cleanly apply to his case.
And extradition treaties covering the US, UK and Sweden make it difficult to transfer people accused of espionage and other "political" crimes, presenting a challenge for the Department of Justice if it should seek to remove him to the US for trial.
In the past, US espionage law has been used to prosecute US officials who provided secrets to foreign governments or foreign spies who pursued US secrets.
But Mr Assange, an Australian citizen, former computer hacker and self-described journalist, did not work for the US government, has no known links to foreign governments, and operates on the internet, by all accounts far from US soil.
Proof of harm
No single US law makes it a crime specifically to disclose classified government documents.
Were the US to charge Mr Assange with espionage, prosecutors would have to prove Mr Assange was aware the leaks could harm US national security, or show he had a hand in improperly obtaining them from the government.
"That act is a difficult act to prosecute people under, especially someone who might be considered a journalist, as he would argue he is," said Gabriel Schoenfeld, a senior fellow at the Hudson Institute and author of Necessary Secrets: National Security, the Media, and the Rule of Law.
In only one known instance has the US prosecuted for espionage individuals who were neither in a position of trust with the government nor agents of a foreign power. That effort ended in failure.
In 2005, two pro-Israel lobbyists associated with Aipac, an Israeli interest group, were indicted and accused of obtaining government information and spreading it to colleagues, journalists and Israeli diplomats. But prosecutors dropped the charges after a judge ruled they would have to prove the pair knew distributing the information would hurt the US.
In Mr Assange's case, lawyer Baruch Weiss, who represented the pro-Israel lobbyists, noted in a Washington Post article that Secretary of Defence Robert Gates has said the leaked diplomatic cables were embarrassing but would have only "modest" consequences for US foreign policy.
In addition, in November Mr Assange contacted US Ambassador in London Louis Susman asking for help redacting information that could put individuals at risk. When the US government refused, Mr Assange wrote he therefore concluded the risk of harm was "fanciful" while stating he had no interest in hurting US national security.
Collusion?
Apart from an espionage charge, the US could prosecute Mr Assange in connection with the initial removal of the documents from US government computers, an approach that reports indicate is increasingly likely.
Pte Manning, a US Army intelligence analyst, is currently jailed at a Marine Corps base in Virginia, awaiting a court martial on charges he leaked classified material to Wikileaks in violation of military law.
The New York Times reported this week that prosecutors were looking into whether Mr Assange had colluded with Pte Manning, encouraging or aiding him in the initial leak.
If he is found to have done so, that action could potentially make him liable as a conspirator under statutes criminalising the taking of government secrets, records or property, rather than a mere recipient or publisher.
"The conspiracy would turn on whether or not there turned out to be concrete proof of real collusion or even direction of Manning" by Mr Assange, said Paul Rosenzweig, a former homeland security official under President George W Bush and a consultant on legal and national security issues at the Heritage Foundation.
But the government would probably want to see more than mere encouragement from Mr Assange, because encouraging sources to provide secret information is what journalists do every day, Mr Rosenzweig said, and courts would be wary of criminalising such activity.
Rather, Mr Rosenzweig said, the government would prefer evidence Mr Assange had given Pte Manning technical help or other substantive aid.
'Leaks rarely punished'
If Mr Assange were convicted, on appeal he could claim that he is a journalist afforded free speech protections under the US constitution - and would have a strong defence, some legal experts say.
"Leaks of classified information to the press have only rarely been punished as crimes, and we are aware of no case in which a publisher of information obtained through unauthorized disclosure by a government employee has been prosecuted for publishing it," wrote Jennifer Elsea, a legal researcher for the US Congress, in a report obtained by the BBC.
Mr Assange's lawyers could also argue in court that the Espionage Act does not apply to foreign nationals acting outside of US territory.
But even getting Mr Assange to the US would prove troublesome, according to Jacques Semmelman, a New York lawyer and authority on extradition law.
Espionage is seen as a political crime, and political offences are not subject to extradition under the US-UK, US-Sweden and UK-Sweden treaties, Mr Semmelman said.
"No US extradition treaty currently in force lists espionage as an extraditable offence," wrote Ms Elsea, the legal researcher for Congress.
Daniel Nasaw @'BBC'
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