Tuesday, 8 February 2011
Former Swedish judge Sundberg-Weitman speaks out on the handling of the Julian Assange case
The article has 3 parts: Background, justification of extradition fears and clarification of related political considerations under Swedish law. Each is summarized here.
Background
On Friday, August 20, 2010, the decision was made by Maria Häljebo Kjellstrand to arrest Julian Assange, in absentia, on grounds of “suspected rape. This decision was made upon a telephone report by a police officer.” As we know, the police had interviewed the two women concerned. However, Sundberg-Weitman points out that the arrest decision was made “before the police interviews of the two women concerned were finished.”
It was also previously known that “[s]omebody leaked the decision to the Swedish tabloid Expressen, and it was made public all over the world,” and that the decision “was overruled within 24 hours by chief prosecutor Eva Finné. She stated that Assange was no longer suspected of rape.”
Claes Borgström, a lawyer known for feminist activism, lodged an appeal on behalf of the two women. The appeal was examined by Marianne Ny, chief of a prosecution “development center” specialized in, among other things, sexual offences.Sundberg-Weitman then notes that despite the belief that an accused man should be detained irrespective of innocence, Ny did not arrest Julian Assange, who was in Sweden at the time. “[Nor] did [Ny] interview him about the allegations under investigation.”
[Ny] decided to overrule Finné’s decision and reopen the case of suspected rape. Like Borgström Ny is a feminist. She is known to have said that when a woman alleges she has been a victim of assault by a man, it is a good idea to have the man detained, because it is not until he is arrested that the woman has time to think of her life in peace and realize how she has been treated. According to Ny the detention has a good effect as protection for the woman ”even in cases where the perpetrator is prosecuted but not found guilty”.
When Assange had left Sweden (his application for a residence permit was rejected) Ny decided to arrest him in absentia and applied to the Stockholm District Court to confirm her decision. The District Court granted her application and, after appeal, its decision was confirmed by the Svea Court of Appeal. However, even before the Court of Appeal had had time to examine the appeal, Ny issued a European Arrest Warrant against Assange.It is also noted that “[t]he Court of Appeal was chaired by its President, who was until recently National Prosecutor General.”
The question Sundberg-Weitman raises is that of why Ny did not take the opportunity “to interview Assange whilst he was still in Sweden” and “why she did not accept Assange’s proposal to be interrogated in England,” which is a legitimate request, in accordance with “rules valid in both Sweden and Britain on Mutual Legal Assistance.” She goes on to explain that The Handbook on International Legal Assistance, published by the Swedish National Prosecutor General, provides various means by which to proceed with interrogations in such cases. This detail is highlighted because Ny had claimed that “it would not be compatible with Swedish law to interrogate Assange in England.” Sundberg-Weitman notes that this “obviously is not true.”
In later interviews Ny answered that in the case of where it turned out after an interrogation of Assange that he should be immediately arrested, that would not be possible unless he was in Sweden. Possibly we see here a reflection of her view that it is a good thing to have a ”perpetrator” (!) locked up even in cases where he is subsequently acquitted in a court of law.Assange’s fear of being extradited from Sweden to US
Sundberg-Weitman points out that Assange was opposed to the idea of being surrendered to Sweden because his fear was “that Sweden would in its turn extradite him to US, where he would be likely to be put away in jail or even murdered as a result of the anger Wikileaks has caused in US.” She reminds us that “there are prominent persons who have expressed the view that he should be treated as a terrorist and sentenced to death,” due to the perception that Assange “violated US law on espionage.” She adds that arguments have been raised to the effect that “it would be legally easier for US to have him extradited from UK than from Sweden.”
However, Sundberg-Weitman notes that this argument overlooks some important points. She states that Assange “has much more popular support in UK than in Sweden” and concludes that an extradition from the UK to the US would be less probable, on a political level, than an extradition from Sweden to the US.
[H]aving him extradited from Sweden would probably not cause much protest amongst Swedes. All the mass media in Sweden have a rather biased view on the case to the detriment of Assange, and they express great confidence in Sweden’s judiciary in the present case.Sundberg-Weitman points out 2 facts that justify, in her own view, Assange’s “fear of being extradited from Sweden to US.”
- [T]here are extremely strong interests in US who want him delivered because of Wikileaks.
- [R]eports from the US embassy in Stockholm published by Wikileaks have revealed that the Swedish Government has gone out of its way to be helpful to US in various controversial matters.
Political considerations under Swedish law
This final section deals with the question of whether it would be illegal, under Swedish law, for “political considerations” to influence the manner in which Assange is treated “by Swedish authorities as to the suspected sexual offences”. Questions pertaining to the events involving the arrest and its media coverage are also discussed.
Sundberg-Weitman considers the possibility that perhaps “Marianne Ny should not be blamed for wanting to press the definition of rape in cases of consensual sex,” noting that Ny “is, after all, she “heading a ‘development center’ specialized in sexual offences.” She argues:
To be sure, there can be no doubt that [Ny] has acted contrary to European law as established by the Court of Justice of the European Union. The issuing of a European Arrest Warrant against Assange runs counter to the European principle of proportionality: in interfering with a person’s freedom a State authority must limit itself to what is necessary in order to achieve its objective. In the present case Ny has clearly stated that her objective by issuing the European Arrest Warrant is to question Assange, because only after having heard his statements will she able to decide whether or not to prosecute him. Obviously Ny could have had Assange interrogated in England.Sundberg-Weitman explains that “the Swedish version of the principle of proportionality is more blurred than that developed by the Court of Justice of the European Union.”
Thus, the Swedish statutory instrument regulating the issuance of European Arrest Warrants provides (under the headline ”Proportionalitet”) that a warrant may be issued only in cases where, considering the harm inflicted upon the person concerned, the delay and the costs that may be expected, an Arrest Warrant should be justified with respect to the nature and gravity of the offence “and other circumstances”.Sundberg-Weitman points out that the words and other circumstances “seem to put no limit to what considerations are legal under the Swedish principle of proportionality enshrined in the statutory instrument.” This entails, in her opinion, that under Swedish law, it is therefore legal “to let considerations of foreign relations policy influence a prosecutor’s decision whether or not to issue a European Arrest Warrant”.
The previous point emphasizes not only the broadness of the Swedish principle of proportionality, but also various peculiarities that ensued in events involving both Ny’s subsequent actions and media coverage of the situation.
In point of fact the Swedish fundamental law, the Instrument of Government, provides that where an issue of importance for Sweden’s relation to another State appears in a public authority, the authority has to inform the Minister of Foreign Affairs (Chapter 10 § 8). The official comment to this provision states that the Minister must have an opportunity to explain to the authority what aspects of foreign policy may be involved. As a corollary of this provision the Handbook on European Arrest Warrant published by the National Prosecutor General provides that in case of doubt the National Prosecutor General’s office is to be consulted.It follows from these provisions, says Sundberg-Weitman, that Ny was required to consult the National Prosecutor General prior to issuing the European Arrest Warrant against Assange, and that the National Prosecutor General, in turn, “must have presented the matter before the Minister of Foreign Affairs.” Yet an Expressen interview with National Prosecutor General Anders Perklev indicates otherwise. In the interview, says Sundberg-Weitman, he
gives the impression that Marianne Ny has been acting totally independently in the Assange case: ”Every prosecutor dealing with the case makes an independent evaluation. It is not the Prosecution Authority as such that makes a decision, it is the individual prosecutor who decides in his or her own name.This, according to Sundberg-Weitman , “seems odd”.
Another rather peculiar thing is a communication made by Ny when the Westminster City Magistrates’ Court in London released Assange on condition of bail and rather severe restrictions. Sweden was given two hours’ time to decide whether or not to appeal. When the two hours were almost gone it was reported on the radio that Sweden had not appealed. But then, in the very last moment, it was dramatically noted that Sweden had indeed decided to appeal.Events following the announcement do not appear consistent with the facts, however, since
[t]he following day Ny communicated on the Prosecutors’ home page that it was ”the British prosecutor” who had made the decision to appeal. Likewise, a representative of the National Prosecutor General, Nils Rekke, confirmed on TV that the appeal was a ”purely internal British” decision. Later on, however, Ny stated that she was ”content” with the decision – one may guess that the British Prosecutor had protested against being indirectly accused of high-handedness.Sundberg-Weitman concludes by asking, “Why these half-truths allocating all responsibility to Ny for the procedure in Sweden and to the British for Sweden´s appeal in Britain?” Her answer: “Well, I don’t know the answer to that, but it does appear as if something is being hidden under the carpet.”
knowledgeempire @'WL Central'
Guardian Music Weekly podcast: Earth's Dylan Carlson
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@'The Guardian'
Monday, 7 February 2011
Assange arrives at Belmarsh for extradition hearing
The Preliminary Note of the Skeleton Argument in Sweden v Julian Assange is available for download here
Evgeny Morozov: The age of the WikiLeaks-style vigilante geek is over
Supporters of WikiLeaks founder Julian Assange wear masks featuring the US flag during a protest in front of the of Swedish embassy in Kiev. Photograph: Efrem Lukatsky/APNow that the dust over the US embassy cables is beginning to settle, WikiLeaks finds itself at a crossroads. To effectively continue its war on government secrecy, it will need to make fundamental adjustments to how it operates – with no guarantees that the new, more mainstream WikiLeaks will be in much demand.Its other option is to sidestep its transparency work, delegate it to more nimble and decentralised WikiLeaks-clones, and focus on solving a problem that is likely to be a determining factor in the success of this nascent global transparency movement. It's only by making the publishing of leaked materials insusceptible to the whims of corporate intermediaries such as Amazon or PayPal as well as by increasing its resilience against cyber attacks and other forms of political and legal pressure that this movement can succeed. In other words, Julian Assange's other option is to dedicate himself to campaigning on freedom of expression issues, with the explicit goal of creating technical infrastructure that would allow the next generation of WikiLeaks-clones to remain uncensorable.
Why can't WikiLeaks just continue as it is? If anything, the US embassy cables have made it clear that the success of a WikiLeaks campaign greatly depends on who gets to analyse the leaks and who gets to publicise them.
None of these two activities can currently be done in-house and WikiLeaks has to partner media outlets such as the Guardian and Der Spiegel, borrowing their journalists and essentially making them serve as both "data analysts" (who go through the leaked material to separate the important from the trivial) and "advocacy co-ordinators" (who write articles on issues that WikiLeaks finds important – even though in reality it has little editorial control over what gets written in the end).
As it grows, WikiLeaks will become even more dependent on its partners. Thanks to its easily recognisable global brand, it does have the capacity to attract more leaks – but it doesn't have the matching capacity to make sense of them, let alone identify leaks that might be fake – and this latter type is poised to become more ubiquitous, given WikiLeaks's growing list of enemies. Geeks don't always make suave data analysts.
Similarly, one of the main challenges facing WikiLeaks is learning how to discriminate between different documents: data storage may be getting cheaper and leaks may be becoming more ubiquitous but the events of the past few months have shown that WikiLeaks is a more formidable actor with less data, not more. So while everyone can upload files to its site, these files won't make a difference until someone knowledgeable (and salaried) takes a look at them – and, even better, spends a week or two chasing the characters involved.
In this respect, WikiLeaks (at least in its current incarnation) embodies an ideology that can only be called anti-web 2.0: they value professionals over amateurs and explicitly reject the "anyone can edit" ethos of Wikipedia, believing that waiting for this mystical "anyone" is like waiting for Godot. All of this is for a good reason: unlike Wikipedia, WikiLeaks cannot just crowdsource this process, put all the leaked documents online and solicit help from total strangers – the strangers, after all, might have political agendas of their own (something that WikiLeaks is slowly discovering thanks to its association with Israel Shamir, who has successfully leveraged his status as a "WikiLeaks freelancer" to solicit meetings with the big shots in Moscow and Minsk).
But while WikiLeaks badly needs its media partners, it's not clear that the media partners actually need WikiLeaks. It didn't take al-Jazeera all that long to build a dedicated "transparency unit" on its site, allowing anyone to upload leaked materials directly (and, most importantly, securely) to al-Jazeera's site. This can be done on the cheap and, as the release of the Palestine papers shows, it can generate as much heat as the documents released by WikiLeaks. What future is there for WikiLeaks after other major news organisations create similar "transparency units" on their own websites?
Of course, WikiLeaks can also go its own way: hire a fleet of in-house data analysts, pair them up with in-house reporters, and turn itself into a non-profit news entity competing with the likes of the Guardian or al-Jazeera. In theory, this could be a smart strategic move but it is likely to "domesticate" Julian Assange; running such an NGO would require too many boring meetings with potential funders (many of whom have already been alienated by the organisation) and a nine-to-five office routine – the exact opposite of the glamorous nomadic lifestyle that the founder of WikiLeaks has become famous for.
By becoming a regular NGO, WikiLeaks may still be able to score some scoops but it seems that its real talents lie elsewhere. It has now garnered the unprecedented support of thousands of geeks all around the world – and it would be silly not to capitalise on it. But it's in the realm of free expression – rather than transparency – where the geeks can make the greatest contribution.
While the best way forward may, indeed, be to let a thousand Wiki-clones bloom – with local equivalents of WikiLeaks popping up in Russia, Bulgaria or Azerbaijan and not just on sites of global media outlets – it's important to remember that these clones will only be effective if they manage to resist the immense pressure that is likely to come from organisations and individuals unhappy with the leaked materials that they post.
WikiLeaks itself knows this problem first-hand, having been a target of both cyber attacks and political pressure. Thus, the only way to ensure that these new clone sites deliver is to offer them a platform that would sustain the wrath of politicians, corporations, and fringe hackers. WikiLeaks was relatively successful in fielding off such attacks – but only because it already had a global brand which guaranteed it some protection; its clones, however, do not have the same option.
Finding a way to make online information resistant to censorship has always been an objective for WikiLeaks, even though only a secondary one. Given the high profile it has obtained with the geek community – with plenty of coders willing to work for free to help it stay online – what Assange should do is to make it his primary objective.
This task looks particularly formidable and worthy after last week's internet shutdown in Egypt. This is an area where the WikiLeaks community can achieve progress relatively quickly, as many of the initiatives underway are technology projects that simply need an injection of new coders – and many of them will jump at the opportunity once Assange blesses it.
Would such a shift of focus be disastrous for WikiLeaks's original mission? As the publication of the Palestine papers suggests, leaks will continue, with or without WikiLeaks. So far the playing field is open to big-name players who can afford lawyers or backing by nation states. But who will be the platform to host leaked documents about local corruption in Azerbaijan or Mongolia?
The stakes may be too small for big players – and the small regional players, who are in a much better position to vet and process such documents, may not survive the publication of such leaks, getting bogged down in cyber attacks and other instances of legal and technological harassment. Finding a way to ensure that such local voices get heard may be the single biggest contribution that the WikiLeaks geeks could make to the global fight for transparency.
@'The Guardian'
The Apostate: Paul Haggis vs. the Church of Scientology
Haggis was prominent in both Scientology and Hollywood, two communities that often converge. Although he is less famous than certain other Scientologists, such as Tom Cruise and John Travolta, he had been in the organization for nearly thirty-five years. Haggis wrote the screenplay for “Million Dollar Baby,” which won the Oscar for Best Picture in 2004, and he wrote and directed “Crash,” which won Best Picture the next year—the only time in Academy history that that has happened.
Davis, too, is part of Hollywood society; his mother is Anne Archer, who starred in “Fatal Attraction” and “Patriot Games,” among other films. Before becoming Scientology’s spokesperson, Davis was a senior vice-president of the church’s Celebrity Centre International network.
In previous correspondence with Davis, Haggis had demanded that the church publicly renounce Proposition 8. “I feel strongly about this for a number of reasons,” he wrote. “You and I both know there has been a hidden anti-gay sentiment in the church for a long time. I have been shocked on too many occasions to hear Scientologists make derogatory remarks about gay people, and then quote L.R.H. in their defense.” The initials stand for L. Ron Hubbard, the founder of Scientology, whose extensive writings and lectures form the church’s scripture. Haggis related a story about Katy, the youngest of three daughters from his first marriage, who lost the friendship of a fellow-Scientologist after revealing that she was gay. The friend began warning others, “Katy is ‘1.1.’ ” The number refers to a sliding Tone Scale of emotional states that Hubbard published in a 1951 book, “The Science of Survival.” A person classified “1.1” was, Hubbard said, “Covertly Hostile”—“the most dangerous and wicked level”—and he noted that people in this state engaged in such things as casual sex, sadism, and homosexual activity. Hubbard’s Tone Scale, Haggis wrote, equated “homosexuality with being a pervert.” (Such remarks don’t appear in recent editions of the book...)
Continue reading
Lawrence Wright @'The New Yorker'
Health risks take the gloss off enamel artworks
Changing tack ... Hazel Dooney at work. Photo: Hazel Dooney
But it's a toxic love affair and after almost 15 years of a range of nasty side-effects, Dooney is ditching the medium. Other than already commissioned works, she will no longer produce enamel paintings.
Dooney is not the first artist to abandon enamel paint after suffering rashes, blisters and nosebleeds. But gallery owners say it could make enamel works more sought-after.
The death of Dooney's father, Thomas Dooney, in January, from cancer, was the catalyst for the change, making her think about the health risks of long exposure to the paint and its fumes. Wearing gloves and a face mask helped but did not eradicate all symptoms, she says.
''I would get a red, blotchy rash on my chest and neck, my skin would break out in itchy sores, [the paint fumes] dried out the inside of my nose'', causing nosebleeds.
Exposure to paints and solvents, especially when ventilation is poor, can cause nausea and irritate skin, according to WorkCover NSW. Longer-term effects include asthma and lung cancer.
Safety sheets provided by paint suppliers advise people to wear eye protection and gloves when using high-gloss enamel paint. Some brands warn that prolonged skin contact may lead to dermatitis. Inhaling paint fumes may irritate airways and cause headaches and dizziness, among other things.
One artist, Jeremy Kibel, recognised for the use of enamel in his landscapes and backgrounds, has also suffered serious side effects from the paint and uses it only in small amounts.
''I used to use it because it was cheap,'' Kibel says. ''The stuff is horrid. I was getting smoker's cough from the fumes. When you use it all the time you get blistering in your nose.''
Kibel's GP advised him to stop using the paint but the artist says it has not affected him professionally.
''People did love those enamel paintings but most people are under-standing about why I flicked it.''
Big enamel works by the likes of Dooney and Kibel will remain popular, according to the owner of Melbourne's MARS Gallery, Andy Dinan. Dinan says Dooney's decision to quit the medium won't hurt her reputation.
''Hazel has worked across several mediums - photography, pen and ink drawings, watercolours - but the big collectors have always wanted the enamels,'' she says.
''[Her work] is so glossy it just pops off the wall.''
Wendy Frew @'SMH'
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