The Ecuadorian embassy is just beside Harrods, on the elevated ground floor of an Edwardian mansion block. It was the only safe place in London to leave your bicycle when for years it was staked out round the clock by teams of police doing nothing other than telling tourists the time. They were waiting for Julian Assange to lean so far over the balcony while addressing supporters that he might topple over it, into their outstretched arms, whereupon he would at that moment leave South America and instantaneously enter the United Kingdom. International law produces such miracles: embassy premises are ‘inviolable’ sovereign territory under the Vienna Convention, and one of Britain’s best qualities is that it generally abides by international law. So across the threshold of this pied-à-terre in Kensington neither SAS unit nor Navy Seal may enter. When Scotland Yard picked up a rumour that Assange on dark nights would ascend to the roof to smoke Cuban cigars, they prepared a snatch squad, only to be told that Ecuadorian sovereignty extended skywards.
Inside the embassy, which I visit from time to time to see him, there are some reminders of Ecuador: a travel magazine on the front desk, a few toy llamas, a portrait of the incumbent President, and smatterings of conversational Spanish from the ambassador. At the end of a corridor is the refugee’s lair, well stocked with books, computers, a sun lamp and an exercise machine. His bedroom is a converted toilet, a space that would rival in size the prison cell to which the government of the United States would wish him consigned for the rest of his life. But he is free, to do portentous things that keep his name in the headlines, like channelling Edward Snowden and exposing how the Democratic Party in the US dishonestly manipulated the presidential candidate selection process in favour of Hillary Clinton. That was in 2016, when the tergiversating Donald Trump tweeted, ‘I love WikiLeaks’. Then he appointed as his CIA director one Mike Pompeo, who listed WikiLeaks as a ‘hostile foreign intelligence agency’, and an Attorney General, Jeff Sessions, who said that Assange’s arrest was ‘a priority’. In the musical chairs at the Trump White House, Pompeo is currently Secretary of State, likely to apply for the Australian’s extradition should he venture out of the embassy.
What a long strange trip it has been (and continues to be) for this international man of mystery, whose baby face first glowed from the newswires in mid-2010, after he produced the ‘collateral murder’ tape, containing gunsight footage from a US Apache helicopter that showed US air crew shooting two Reuters reporters and several children. Assange’s was no shoulder-slumped mugshot, but the visage of a dangerous cherub, beaming beneath a halo of blond hair, which hid a cranium that could outwit the most powerful country in the world. He had no money nor interest in acquiring any, which gave him a rock-star image among the internet generation in Europe as he sang his siren song of political transparency, justice and human rights. Just how mesmeric Assange had become by mid-August of that year may be measured by the front-page reporting, throughout the world, of the allegation that he had raped a woman in Stockholm. Within a few hours seven million people had clicked on the website of Expressen, the tabloid paper to which the story had been leaked. There was much less publicity a day or so later, when the senior prosecutor of Stockholm dropped the charge and said there was virtually nothing else to investigate.
Then, a week later, the charge was reinstated by a ‘gender prosecutor’ in another Swedish city, after a secret appeal by a politician acting for the complainant. Irrespective of the merit of the complaints, this was no way to run a legal system: prosecuting authorities should not be in the business of giving ‘scoops’ to tabloids and should not allow secret appeals to another prosecutor, from which hearing the suspect’s lawyer is excluded. I said as much to a journalist, and in October I received a call from Assange, now back in London and in hiding as the threats from America and Sweden mounted. He was charming (save for a moment of pique when he lost an argument with my wife over the merits of Jane Austen) and when it turned out he had nowhere to stay for the next few nights it seemed only compatriotic to put him up.
Offering Julian Assange a bed for the night might have been hospitable, but it soon became clear that he was not going to sleep in it, or at all. He took up residence in the kitchen, computer on lap, curled up over it like a question mark. The only way I could get him to sleep – at 5 a.m. – was to indicate the kitchen’s glass ceiling and to point out that any police helicopter could spot him a mile away. He instantly folded his computer and went off to bed. He was paranoid, of course, but he had every reason for paranoia, given the threats emanating from American politicians and now from Swedish prosecutors who vowed to issue a European Arrest Warrant (EAW) if he did not return to Stockholm for ‘questioning’ – after which there is no doubt they intended to charge him and consign him to prison with no right to bail.
The next day I took him for a walk in the autumnal serenity of Regents Park (its gnarled tree-trunks had been a favourite ‘dead letter’ drop for spies during the Cold War). He seemed genuinely horrified by the sex allegations – it was ‘excruciating’ even to talk about them. His mind was on higher things, but two women who announced that they ‘wanted to teach him a lesson’ had enlisted for this purpose the power of the Swedish state. He had gone to bed, separately, with each of them, at their initiative, but they later found out about each other and petulantly presented him with an ultimatum to have a blood test to prove he did not have HIV/AIDS, or else they would go to the police. He refused to be ‘blackmailed’ (as he put it) and the very next day one of them did go to the police. Soon the prosecutor’s office was telling a tabloid that it was issuing a warrant for his arrest for rape. He had waited in Stockholm patiently for a month before returning to London in September, but now the Swedish prosecutors wanted him back and were pressing for his arrest. They would have succeeded, had they filled in the European Arrest Warrant forms correctly. While they corrected their mistake, Assange was allowed his moment of glory in London at the launch of ‘Cablegate’, when WikiLeaks began releasing classified cables from US embassies and consulates, exposing American diplomacy to a fascinated world.
In early December, the inevitable happened: Assange presented himself for arrest to the UK police and was taken to Wandsworth Prison, the first stage in his extradition to Sweden. By this time I was in Sydney, speaking at an international conference, and my client was not enjoying the petty restrictions of prison. My wife had sent him a Jane Austen novel, but he was not allowed access to the internet, and the latest issue of Time magazine was banned from the prison because it had his picture on the cover. His first bail hearing had not gone well. The Crown Prosecution Service (representing the Swedish prosecutor) endowed him with Houdini-like characteristics and suggested that well-connected supporters, such as US filmmaker Michael Moore, would be capable of spiriting him out of the country. So I was prevailed upon to give up a planned Christmas holiday on the beach with my family in order to make a new bail application in London. My old friend Richard Neville called before I left to impress upon me the importance of freeing Assange – I could scarcely believe it had been forty years since I had helped to get Neville out of the same prison after his conviction for publishing Oz.
The new bail hearing was jam-packed with journalists – hundreds attended from all over the world, straining and craning to see the human embodiment of internet freedom, captive in the court dock. I supported their request to allow, for the first time, tweeting from a courtroom, and it was granted: Assange’s first legal precedent in favour of freedom of speech. The atmosphere was tense throughout, but the allegations were put in perspective and character witnesses refuted any idea that he was some kind of sex pest: bail was granted. The hundreds of tweets announcing his imminent release, however, proved premature: the Swedish ‘gender prosecutor’, demonstrating her determination to punish him, insisted on appealing to the High Court, a move that kept him in prison for a few more days. Her appeal failed and it was 6 p.m. on Thursday 16 December before Julian Assange emerged on the court steps – just in time for the evening news.
He stood beneath the gothic archway of London’s High Court, his white hair dazzling in the television lights, speaking across the sheaf of microphones to a large crowd of supporters as light snow began to fall. I can be seen in the background, spoiling the iconic picture by looking at my watch (Assange can go on…). He spoke impressively, and after a week in which Cablegate revelations had wholly occupied the quality press of Western countries, this looked like his finest hour. A car to Norfolk had been laid on, and I told him to take it and lie low. A few hours later, I switched on Newsnight: there he was, live from Norfolk, clutching a cup of cocoa and trying to answer the questions I had advised him to avoid. He was attracted, like a moth, to TV lights.
The United States could not cope with his release of a quarter of a million of its diplomatic cables. There was a burst of hysteria against this alien, this peripatetic Australian, this blogosphere Machiavelli. Vice-President Biden labelled him ‘a high-tech terrorist’. Mike Huckabee, on Fox News, suggested that he be assassinated. Shock jock Rush Limbaugh yearned for him ‘to die of lead poisoning – from a bullet in the brain’, while Sarah Palin, shooting from the lip, said ‘he should be hunted down like Bin Laden’ (which would at least have given him nine more years of freedom).
Later, visiting him in the Norfolk countryside while he was on bail, I would keep a wary eye open for Navy Seals. I received a few death threats from America for representing him, although since they came by email I did not take much notice. Assange, of course, had many more, one – from the US authorities – frighteningly real. A grand jury had been convened in secrecy in Maryland to consider charges under the Espionage Act, which would put him in a US ‘supermax’ prison for many years. I was not without contacts high in the Obama White House, and they told me, ‘We don’t want him, but the Pentagon does,’ adding that the Pentagon usually gets its way. It kept its plans to punish him secret for some years – so successfully that many journalists and commentators in the UK derided Assange’s fears – but in 2017 the US finally admitted that his arrest was ‘a priority’. It had been ever since Cablegate.
* * *
It is worth going back, before going forward, to analyse why, exactly, America wants to incarcerate Assange for at least as long as it succeeded (until Obama mercifully interceded) in jailing his source, Chelsea Manning – which was for thirty-five years.
Assange was conceived off the coast of Townsville, on Magnetic Island. This is probably the only thing we have a common – he is a cyber geek and formerly a notorious hacker; I am a computer-phobic Luddite who still writes with a fountain pen (or at least a Montblanc biro). But, ironically, it is to the wisdom of the great Americans we have both turned for our free-speech arguments: to James Madison, urging for a First Amendment to create a nation ‘where knowledge will forever govern ignorance, and a people who mean to be their own governors must arm themselves with the power that knowledge brings’. To Theodore Roosevelt, who called on ‘muckrakers’ to destroy what he described as ‘the invisible government’ – the corrupt links between business and politics. To the US Supreme Court, when it refused to injunct the publication of a top-secret leak, the ‘Pentagon Papers’, because it ruled that the only protection against abuse of power was an enlightened citizenry – enlightened by the Post and by the New York Times.
Julian Assange, the man from Magnetic Island, took the American legal aphorism that ‘sunlight is the best disinfectant’ seriously. He invented what might be termed an electronic dead-letter box, where sources could send him secret documents in complete confidence and remain anonymous because even he could not find out who they were. There would be no problem about protecting his sources – they could waterboard him for weeks and he could not tell because he would not know. All he could do would be to check the authenticity of the document – and WikiLeaks, so far as I know, has never published an inauthentic document.
So Assange became the latter-day Johnny Appleseed of information, scattering it far and wide, watching it inspire revolutions, expose crooked politicians and bent policemen, provoke policy debates and make us more knowledgeable about history and context. Now, hardly a week goes by without reference in some news story to a WikiLeaks revelation.
The organisation (using ‘organisation’ very loosely – WikiLeaks is basically Julian Assange, an inveterate loner, with a few assistants) began in 2006, publishing documents about the massive corruption in Daniel arap Moi’s Kenya. Then documents were leaked exposing tax evasion through Cayman Island banks, then a document from the Church of Scientology, revealing malpractice. Then documents relating to banking fraud in Iceland; the dangers of a nuclear accident in Iran; and the greedy pricegouging of US and British contractors after the war in Iraq.
All these revelations were of obvious and immediate public interest and made him pretty popular. His exposés have not always benefited liberals or the left: WikiLeaks also helped to reveal ‘Climategate’, the apparent rigging of data by scientists. This gave a free kick to climate-change deniers, but it was true and WikiLeaks did not hesitate to host it.
After this came the material we now know to have been provided by Chelsea Manning. It is difficult to forget ‘collateral murder’, the tape that showed the aerial manslaughter of civilians by US forces. Then, in quick succession:
- The Afghan War Logs: revealing far higher civilian casualties from drone attacks than the US had been prepared to admit.
- Iraq-gate: no fewer than 400,000 filed reports, showing many thousands more civilian casualties than the US had admitted, and providing a treasure trove for war historians by revealing how the Iraq War had been fought on the ground, how blind eyes were turned to torture at Abu Ghraib and elsewhere, and how US forces would sometimes hand their prisoners over for torture and murder to pro-government death squads.
At this point, there had been only muted protest from the US government. But a number of other countries had become disturbed and had taken action to block all WikiLeaks-related websites, threatening to jail any of their citizens caught sending material to Assange. Which countries were these? Let me list them: China, Syria, North Korea, Russia, Thailand and Zimbabwe. These enemies of freedom sensed the danger, because dictators cannot cope with freedom of information.
Then, in November 2010, came Cablegate – the release of a quarter of a million American diplomatic cables. Hillary Clinton, then Secretary of State, warned foreign governments to be prepared for some unpleasant comments among the US government’s supposedly private communications. They said, so she reported, ‘Don’t worry. You should see what we say about you.’
And so it came to pass that the people of Egypt and Tunisia discovered facts about the endogenous corruption of their rulers that helped to fuel the Arab Spring. That phenomenon has complex causes, but in Tunisia anger erupted among protesters when they read a cable from the US ambassador describing the Ben Ali regime, accurately, as a political kleptocracy. It was headed ‘Corruption in Tunisia – what’s yours is mine’. The most virulent attack on WikiLeaks came in the midst of Cablegate, on 14 January 2011. Assange was accused of leading the protesters in Tunis astray by false claims against their incorruptible President. That attack was made by Colonel Gaddafi.
Once he was on bail in Norfolk, Assange worked to transmit the cables to ninety different countries, alerting their people to misfeasance, hitherto hidden, in their public life. The cables revealed Hillary Clinton’s plans to bug diplomats at the UN headquarters, and how Saudi Arabia and other Gulf States had urged the US to ‘cut off the head of the snake’ – the Iranian nuclear programme – by bombing Tehran.
But as Cablegate unfolded, it revealed, at least in my view, the most surprising secret of all: that US diplomacy is reasonably principled and pragmatic, and better informed and more objective than Western or locally based journalists. What WikiLeaks was doing, in some respects, was promulgating a CIA-sourced view of the world, ironically made to seem all the more credible by the US threats to silence Assange. The Cablegate releases certainly showed how heavy is the burden of world leadership that falls on the United States, under constant pressure from so many ‘friendly’ governments to bomb and brutalise, or at least protect them against their enemies.
Nonetheless, America was upset by dissemination of its diplomatic messages and the shrill, exaggerated voices calling for the messenger to be killed continued unhappily from the land of the First Amendment. American pride had been hurt by a pesky Australian, so they targeted him by grand jury proceedings and the military took out its anger on young Chelsea Manning, treating her abominably in prison until Hillary Clinton’s press spokesman, P. J. Crowley, resigned in protest. Manning had been kept for eight months in solitary confinement, naked and without blanket or pillow, awoken every few minutes for a pretended ‘suicide watch’. Her prosecutors hoped she would confess to being ‘groomed’ by Assange, and at one point, according to her lawyer, threatened her with the death penalty if she did not. Then came the CIA pressure on PayPal, MasterCard and Visa, to which they succumbed, to stop receiving donations for WikiLeaks or Assange. (You can still buy Nazi uniforms and Ku Klux Klan outfits with your Visa card but you can’t donate to WikiLeaks.)
On what basis was Assange demonised? There is no doubt that the cables were of manifest public interest, revealing many examples of human rights violations and political corruption that American diplomats (with their CIA sources) were well aware of, but which had not been made public. But his accusers claimed that release of the cables had put ‘lives at risk’, and that he had ‘blood on his hands’. However, over seven years have passed since Cablegate began, and five since all the cables were released. There has been no fatality causally related to their publication. Several US ambassadors and cable-authoring diplomats have had to be withdrawn because of their comments about their host country, but by August 2013, at the sentencing proceedings for Chelsea Manning, the Pentagon could produce no evidence that release of the cables had put any life in jeopardy, and was forced to retract an earlier claim that it had.
The lack of fatalities is unsurprising, and indeed to be expected, because none of the WikiLeaks cables was classified ‘top secret’ – the designation that diplomats must use if release would put lives at risk. The Pentagon Papers were classified ‘top secret’ and distributed only to a small circle of officials, but up to three million people, including 22-year-old soldiers, had access to the cables that Chelsea Manning uploaded on a Lady Gaga disc for Julian Assange. The fact that they were not classified as ‘top secret’ meant their authors did not expect any lethal reprisals if they were published, and none was in fact suffered, even after Assange published all the cables, including the parts ‘redacted’ by nervous newspapers.
We can all envisage situations where ‘leaks’ would be wrong and should be severely punished, because of the criminal way in which they are obtained – by bribery or duress or telephone hacking. Custodians of genuine secrets have a duty to classify them as such and to protect them, by ‘top secret’ classification, by encrypting or redacting their names, or simply by keeping them anonymous. It all comes back to a proper classification policy. If a ‘top secret’ class of harmful information does get out, then the first duty of government is to take steps to protect as best it can any persons whom the leak might put at risk, and then to make sure that its top-secret information is better protected in future. If it considers prosecuting the publisher – whether the New York Times or Julian Assange – it must only do so on evidence that they have procured the information by bribery or corruption or, at the very least, by inciting the leaker to reveal the information contrary to his duty, and always subject to a public interest defence if the information reveals serious abuse of power. There can be no criminal blame attached to journalists or publishers who receive state secrets from those who wish to divulge them. They have an ethical duty to protect their source, although if that source is caught through their own carelessness, he or she will have to suffer the legal consequences. (Chelsea Manning, for example, was caught because she confessed to someone who befriended her in an online chatroom.)
The issue of ‘incitement’ has been much discussed in relation to print journalism: there can be no criticism of a journalist who receives a secret document through the post from an unknown source, or meets a known source who, without encouragement other than a meal or a train fare home, hands over or reveals the secret information. Watergate’s ‘Deep Throat’ (FBI associate director Mark Felt) would move a pot plant on his window ledge to signal to Bob Woodward and Carl Bernstein that he was ready to talk. Assange’s arrangement for an electronic drop-box was the equivalent. In the Chelsea Manning proceedings, the prosecution suggested that the man Manning described as a ‘crazy white-haired Aussie’ and allegedly contacted online under the code name ‘pressassociation’ might have helped her navigate the contents of the Lady Gaga disc into the WikiLeaks electronic letter box, but the same principle would apply: Assange as journalist/publisher was not forcing or paying or inciting Manning to do what she very much wanted to do in any event.
There was no evidence against Assange to warrant opening the grand jury proceedings – an oppressive mechanism long abolished in England, in which prosecutors summon jurors and witnesses to a secret room where they alone hold court and there is no judge to exercise any independent or impartial control of proceedings. The jurors usually do what the prosecutor who has summoned them requests. ‘A grand jury would indict a ham sandwich,’ American lawyers say. The grand jury will return (or has, I suspect, already returned) a sealed indictment against Assange accusing him of Espionage Act crimes (so the US will be ready with an extradition application the minute Assange leaves the Ecuadorian embassy).
If the CIA gets its hands on Assange he will grow old in a US supermax prison, in order to deter other would-be publishers of US diplomatic data and military records. But WikiLeaks was not based in America and Assange owes it no national allegiance: he received the information outside the country and shared it with the media at the Guardian offices in London. Under the vague but broad provisions of the US Espionage Act of 1917, passed amid hysteria about spies in wartime, can a US grand jury’s writ run anywhere in the world? We shall see. He was public enemy number one in Washington after Cablegate in 2010–11 and again in 2016–17 when he published leaked emails exposing chicanery within the Democratic Party, allegedly sent to him by Russian hackers. But he is really in no different position to any journalist who receives authentic information of public interest from a source who is willing to go to some lengths to give it, and who really wants it to be published.
It can only diminish US leadership and dim the beacon of the First Amendment to raise that old blunderbuss the Espionage Act and to aim it beyond the jurisdiction at a publisher who is a national of a friendly country, who disseminated information of public interest that was not ‘top secret’ and was in any event accessible to three million Americans. Yet this is what the Trump administration intends, by an interpretation of the Espionage Act that would give US courts an exorbitant jurisdiction over nationals of other countries for their operations outside America. Its new theory, to catch Assange, is that the First Amendment applies to protect only publishers who are American citizens. A ruling to this effect by Trump-appointed judges would be disastrous for free speech in the US and in the world.
If the CIA were really intelligent, it would feed Assange some information about the corruption of Putin and his clique, or that confirms Putin’s order of the death by polonium poisoning in London of his enemy Alexander Litvinenko. This would test Assange’s integrity, but I am pretty sure he would publish it.
* * *
In 2017, Sweden’s ‘gender prosecutor’ finally withdrew her request for an extradition warrant to interview (and evidently to charge) Julian Assange with ‘minor rape’. She did so under pressure from the Swedish courts, after her behaviour in refusing for six years his repeated offers to be interviewed in England was severely criticised by the UN Working Group on Arbitrary Detention. Her allegations have left a lingering pall over his character, but he has never been vouchsafed the right of having them tested before an open and impartial court – Sweden, as I shall explain, offered neither. I had them thoroughly investigated when I led his defence team at the hearing over the arrest warrant. For all the books, movies, documentaries and articles about him, the facts are never fairly stated. Let me summarise them.
Sweden has three classes of rape: extreme, serious and minor. Assange was charged with ‘minor rape’ – a contradiction in terms, but that is what the Swedes actually call the allegation against him. It amounted to having consensual sex without a condom, the use of which had been an implied condition of the consent. The maximum sentence for ‘minor rape’ is four years, and experts in Swedish sentencing law – which is merciful – told me that given the circumstances the likely penalty for Assange if he were convicted would be non-custodial.
In the case of both complainants, the police dossier confirms that the sexual engagements were not merely consensual but actively desired. Assange had come to Sweden at the invitation of a fringe political party to deliver a lecture on Saturday 14 August 2010. The first complainant, a 33-year-old Social Democrat politician, told the organisers that Assange could stay in her tiny one-room, one-bed flat, giving them an assurance that she would be out of Stockholm on the Friday evening – Friday the 13th, as it happens. She returned, however, for no apparent reason, and took him to dinner and then to bed – supplying a condom that she requested him to use, and he did.
One week later she alleged to police that at some point that evening he had torn it, or had torn it off. Oddly, given that this event was the basis of several molestation charges, she made no complaint the next morning, Saturday, when a colleague called to take Assange to his lecture. At that time she was proudly describing herself as his ‘personal assistant’, and tweeting to the world about how ‘cool’ and clever he was (tweets that she later removed). She also later removed her puerile blog, entitled ‘7 steps to legal revenge’, which advised women on how to avenge themselves on ‘cheating’ men: ‘You should use a punishment with sex involved, like getting his new partner to be unfaithful or ensure he gets a madman after him – the ideal is revenge as strong as possible.’ Assange, for all his technical genius, does not appear to have looked at her blog before he permitted her to leap into bed. On Saturday afternoon, she volunteered to be his hostess at a ‘crayfish party’ (Swedes are inordinately fond of these lobster-and-liquor feasts) and arranged it for that evening in his honour. Witnesses confirm that she insisted he stay with her, despite others offering to put him up.
She did not complain to the police until one week later, after learning that he had spent the following Monday night in bed with the second complainant, a 26-year-old self-confessed ‘groupie’, who told police she had attended Assange’s lecture in the hope of sexually attracting him – an objective in which she succeeded all too well.
This second complainant took him by train to her flat in the suburbs on the Monday night, and took him to bed, where he fell asleep and began to snore – to her annoyance, as she tweeted at the time to her rather voyeuristic friends. However, during the course of that night they had intercourse three or four times. On one occasion, when she was ‘half asleep’, as she put it, she asked whether he was ‘wearing anything’ and he laconically replied, ‘I’m wearing you.’ She did not object at the time but later inferred that he was not wearing a condom.
Her friends had read that he had spent some time in Africa, so they advised her to have him take a test for HIV/AIDS. Her only way of contact was to call his personal assistant – the aforesaid first complainant, the self-styled expert on revenge who was now given a motive for her own. That’s when this ‘personal assistant’ called a journalist friend of Assange to make a menacing demand: unless he took a blood test for HIV/AIDS, both women would go to the police.
The journalist told police that he called Assange, who reacted with shock and said he was willing to take a blood test but did not want to do it as a result of blackmail. The next day (Friday 20 August) the first complainant directed the second to a police officer, who just happened to be her political colleague and Facebook friend.
In the course of the interview that ensued between this policewoman and the second complainant, the policewoman informed her that Assange would be charged with rape. She reacted to this news by fainting. Nonetheless, a few minutes later, an acting prosecutor, without further investigation, issued the warrant, and in breach of the rules revealed the fact to Expressen, a tabloid paper. Its scoop the next day – ‘Assange Wanted for Rape’ – went live to millions throughout the world. Two days later Stockholm’s very experienced senior prosecutor cancelled the arrest warrant and publicly stated that there was no basis to pursue a charge of rape. This statement received little publicity.
I have given but a cursory summary of the 98-page police dossier – it can be downloaded in full on the internet, so readers can judge for themselves whether my analysis is fair. It included some eerie photographs of what looked like a jellyfish but was in fact a condom, supplied to the police by the first complainant, who said she had found it on the floor of her flat, two weeks after Assange had stayed on Friday the 13th, and it might have been the one he ripped, or ripped off. There was a lab report, from a lab that reported that it had no experience of examining condoms but speculated that it could have been torn. This hardly amounted to corroboration of the first complainant’s story, but the photograph gets a surprised laugh from the audience when it appears in the We Steal Secrets documentary about WikiLeaks.
So this was not ‘rape’ as that term is normally understood. Whether it was an offence did not matter for the purposes of EAW extradition (Sweden had ticked the ‘rape’ box on the warrant, which was enough) but the very use of the word ‘rape’ gave a false impression of malice and violence.
I should make clear that I believe that it should be a sexual offence for a man deliberately to deceive a sex partner whose consent has been conditional upon his use of a condom. But in the Swedish police dossier – the prosecution papers, so to speak – there was no clear evidence that the second complainant had put any condition on her consent, nor indeed any evidence (other than his equivocal reply) that he had not, in fact, worn a condom. So how, after Stockholm’s chief prosecutor had declared that there was no evidence, did the case go any further?
Under Swedish law, victims are entitled from the outset to their own lawyer, paid for by the state. The two complainants chose a controversial, self-publicising Social Democrat politician, formerly Sweden’s ‘gender ombudsman’, who had called for a ban on football matches with Germany because the country had legalised prostitution. This man secretly contacted the ‘gender prosecutor’ in another city, Gothenburg, who was well known for her publicly stated view that prosecution of men charged with sex crimes is socially worthwhile even in cases in which the defendant is not found to be guilty.
Under a secret process, from which Assange’s lawyer was entirely excluded, this ‘gender prosecutor’ reinstated the rape charge and then took over the case. Assange obediently remained in Sweden throughout these events, turning up voluntarily to the police station to answer questions at an interview on 30 August. He denied the allegations, and waited in Sweden until the new prosecutor informed his lawyer that he was free to leave the country.
Back in London, he heard that the gender prosecutor wanted him to come back to Sweden to undergo a second police interview. He offered to answer police questions by telephone (the first complainant, after all, had made her complaint by telephone), by video-link from Scotland Yard’s special video suite, by Skype or in person with police at the Australian or Swedish embassies in London. The prosecutor refused, although these methods of interview are regularly used in Sweden and other countries when witnesses and suspects are abroad. She was determined to get him back to Sweden, and there was little doubt that, whatever he said in that interview, she planned to arrest him immediately afterwards and to make a spectacle of his imprisonment. So she issued a European Arrest Warrant (EAW).
It is rare to overcome an EAW. The leading countries of Europe agreed, sensibly enough, to make extradition between them for criminal offences very easy. All that is required is for a judicial authority in one country to issue an EAW and send it to police in another country, who will arrest the suspect and, subject to any flaw in the warrant, or so long as that trial will not be flagrantly unfair, dispatch him or her to stand that trial. The technical points usually run by lawyers at these extradition hearings would be unlikely to avail Assange: the British prosecution authority had ironed out the initial mistakes and the Swedes had ticked all the right boxes. They had, for example, ticked the box on the form confirming the crime for which he was sought was ‘rape’. We could not complain (although we tried) about the fact that he was only wanted at this stage for questioning, or about the fact that he had already been questioned, or about the rejection of his reasonable offer to undergo that questioning at Scotland Yard or at the Swedish or American embassies, or by Skype.
The only effective way to beat an EAW is by proving that the requesting state has some serious defect in its legal system – something that makes it fundamentally unfair by international human rights standards. At first, I thought this would be a hopeless line to run – no European justice system has a more squeaky-clean image than Sweden, a nice neutral nation that has given the world such treats as IKEA and ABBA. But a quick read of Stieg Larsson’s novels suggested a darker underbelly, so I sent Jen Robinson to Stockholm to investigate what would happen to Julian if he were extradited and put on trial there. She returned with the startling information that his trial would be held in total secrecy, and even the judgment would omit the crucial factual details. There would be no jury, just a judge sitting with three ‘lay judges’ who would vote on the verdict, people not selected at random or from a professional magistracy, but nominated by the main political parties, for which reason they were often retired politicians. All leaders of these parties had by now condemned Assange – and the first complainant, her lawyer and her Facebook friend policewoman who decided to arrest, were all members of the main opposition, the Social Democrats. As the trial would be in secret, any bias shown by these superannuated politician-judges would be undetectable.
This had to be a winning point – I simply could not imagine our Supreme Court justices, however much they might personally wish the nation rid of Assange, ordering him forcibly deported to face a secret trial. The ‘open justice’ principle is engraved on their hearts – it is a constant and powerful rhetoric throughout English case law, usually quoting Jeremy Bentham: ‘Publicity is the very soul of justice … It keeps the judge, while trying, under trial.’70 If we could get the district judge to find as a fact that Assange faced a secret trial, the higher courts would have to prevent his extradition.
Secrecy was the basis of our main attack on the warrant. The ‘gender prosecutor’ actually conceded it, stating that the purpose is that ‘the complainants may give evidence in confidence’ – i.e. confident that their testimony, and any cross-examination that may undercut or demolish it, will never be revealed to the public. This means, to those familiar with the Anglo-American tradition of open courts, that justice will not be seen to be done, and may therefore not be done at all. It means that if lies are told, members of the public who know the truth will not come forward, because they will not know that those lies are being told. In Sweden, only the verdict is published, and sometimes the judge’s legal reasoning, but because the evidence has not been heard or published, it will be impossible to know whether the reasoning is reasonable. While it is right that efforts should be made in rape cases to comfort alleged victims, that can best be done by limiting questions about their personal life and (in certain cases) granting them anonymity. Otherwise, open justice requires testimony in public. Sweden has the highest reported level of violent rape in Europe (a statistic that Amnesty International has deplored), and allowing complainants to give evidence in secret trials has not produced more convictions.
From society’s standpoint, the Swedish practice is wrong – the public is entitled to details of the case, and publicity serves the deterrent purpose of criminal law, as well as providing accountability for police, lawyers and judges. To deny open justice to Assange would be not only unprincipled but absurd: statements by his accusers concerning his sexual behaviour, made in intimate detail, had been leaked to the media from the prosecution papers, published in skewed and selective detail by newspapers, and placed on the internet for anyone to access. No trial could be ‘fair’ unless it permitted the public to observe how Assange challenged that evidence, how he gave testimony himself and how his own witnesses testified, as well as how the lawyers and judges behaved.
Proof that Assange’s trial in Sweden would not be fair was the key to keeping him in London. This depended on a finding of fact from the district judge to the effect that the evidence would be heard in secret. We knew that this was the invariable practice at rape trials in Sweden, although there was no statute that required it. It was at first blush surprising that the practice had never been challenged, either at appellate level or under the European Convention on Human Rights (which guarantees an open trial by independent and impartial judges), but there is a first time for everything.
At the hearing, we called a retired appeal judge from Stockholm and a senior Swedish prosecutor who testified that rape trials were indeed invariably held behind closed doors. The district judge in London accepted that this was the long-standing practice, ‘certainly alien as far as our system is concerned’. Crucially, he concluded that:
Any trial in this case would be heard by four judges, one professional and three lay. The lay judges are chosen by political parties … the evidence will almost certainly be heard privately. There has been considerable adverse publicity in Sweden for Mr Assange, in the popular press, on the television and in Parliament.
This factual finding was exactly what we wanted, even if the district judge failed to see that closed courts and political judges were not merely ‘alien to our system’ but should be alien to all systems. His reasoning was illogical and open to appeal. He said only that ‘if the Swedish practice was a flagrant breach of human rights, I would expect there to be a body of cases against Sweden confirming that’.
This is a bad argument – novel cases are brought successfully all the time to challenge time-honoured practices as inconsistent with human rights rules. And there is a simple explanation for the failure to challenge secrecy, namely that almost all defendants in rape cases are very happy to have the sordid and brutal details of the evidence shielded from public view – that is why their lawyers do not complain. Moreover, although there had been no specific case brought against Sweden, the European Court has made many rulings against closed courts in other countries. Even in terrorist cases, where witnesses might be at risk, the court has said that publicity is ‘indispensable’ and in a recent case, concerning a public figure whose alleged sexual affairs had been discussed in the media, the court insisted that considerations of privacy or ‘dignity of witnesses’ could never justify closing the court doors, because it was in the interests of the general public that justice should be seen to be done. So the prospects of appeal success, on this ground, were very good indeed.
‘Team Assange’ – myself, John Jones (a brilliant junior, soon to take silk, and author of a textbook on extradition) and Amal Alamuddin (as she then was), and our solicitors Mark Stephens and Jen Robinson – concentrated on this winning point in writing the appeal submissions. It was the only ground on which I thought we would succeed, although there were more technical arguments. Necessarily, it invoked a full-blooded assault on Sweden for a fundamental error in its handling of rape and sexual assault cases – by ignoring the ‘open justice’ guarantee in all the human rights treaties it had ratified and allowing a bench mainly composed of superannuated politicians to decide them in secret. But after the grounds were filed, a strange thing happened – although it was normal enough with Assange, who has a long history of falling out with supporters and advisers. He had a meltdown about Mark Stephens, his dedicated solicitor, and sacked him. Then, with new lawyers, his legal strategy changed dramatically. He would no longer be making any criticism of Sweden or its legal system.
Although the ‘open justice’ argument was far and away his best shot, this ground was withdrawn.
Why did Assange throw away his trump card? I don’t know, because I was not party to this change of strategy, which I thought ill-advised and indeed ridiculous. He instructed another solicitor, and took heed of other advisers, and it was announced (in a Bay Area newspaper in San Francisco, of all places) that he would no longer be making my criticism of the Swedish legal system. Media reports said that his strategy changed in the hope that the Swedish government and the two complainants might be mollified and would drop the extradition request. This seemed oddly optimistic, for a man famous for declaring that ‘Sweden is the Saudi Arabia of feminism’, and who had taken every opportunity to condemn, quite rightly, the country’s justice system, on grounds including those that had now been withdrawn. It was also reported that overtures were made on his behalf to the two complainants after this radical change of tack, but they and their self-publicising lawyer (always available when the media wanted someone to attack Assange) proved unwilling to budge. Withdrawal of the open justice appeal grounds deprived him of the best answer to the question ‘Why don’t you go to Sweden – you will get a fair trial there?’, namely that we had proven he would not get a fair trial there.
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A few days before the surrender deadline, I met him and his rather gloomy Swedish lawyers at a farewell party thrown by Helena Kennedy. He did his best to be upbeat, giving a little speech of thanks, but his heart was not in it. I thought I detected fear in his eyes, the sort of fear I had seen in the faces of men as I had farewelled them on death row, although that might have been my imagination. But if there was fear in his eyes at that party, it was certainly not fear of Sweden. It was fear of ending his life in an American supermax.
Julian had always believed that Sweden would be his gateway to America. The WikiLeaks cables fed this belief: in them, US diplomats boasted that behind its pretence of neutrality, the right-wing Swedish government was strongly pro-American. At the time of his arrest on the EAW, it was being advised by none other than Karl Rove – ‘Turd Blossom’, as George W. Bush so fondly described his election guru. In 2006, Sweden had been caught illegally ‘rendering’ terrorist suspects to the CIA without allowing them any court process, and had been condemned by the European Parliament for so doing. There was good reason to think that the Swedes would be happy to comply with any request from the US Justice Department. Any onward extradition would, under EAW law, require the consent of the British government, but that consent would certainly be forthcoming. Assange, in other words, had a not unreasonable fear that, once in Sweden, whether he was acquitted or released after his sentence, he would be rearrested before he could leave the country and held for extradition to the US. He would not be a free man before he was an old man.
I don’t think that Assange planned his walk into the embassy of Ecuador the day before he had to surrender. He had struck up a good relationship with President Correa when he had interviewed him for his TV show the previous week, and he was doubtless aware of the possibility of asylum in an embassy protected by diplomatic immunity. Maybe he simply could not face entering that dark tunnel that had formed in his mind, down which he would go – to Sweden and thence inevitably to America and permanent loss of liberty.
Assange’s arrival pleased the Ecuadorians, keen to flex a political muscle in Latin America, where everyone thought they had acted to defy the Yankees – and the US could not take reprisals or put on economic pressure because that would be an admission that they really did intend to take Assange should he go to Sweden. It even pleased Correa’s opposition: his new friendship with media freedom meant he might stop persecuting the local press. What seemed at first merely a gamble to delay the inevitable soon took on a life of its own. By the beginning of 2018, Assange had served five and a half years (and still counting) of diplomatic incarceration. He has single-mindedly suffered the loss of his freedom of movement in return for retaining his freedom of speech.
I visit him from time to time. WikiLeaks continues to provoke, although he has copped a lot of flak from some supporters who think that his exposure of skulduggery in the Democratic Party helped Donald Trump win the US election in 2016. The CIA says that those emails originated from Russian hackers, which he disputes, although that would not breach Assange’s principle of publishing anything of public interest. As I have said, I hope he would be principled enough to release any secret information he received about the corruption of Putin and his comrades, were the CIA smart enough to send him (anonymously, of course) the details. The US Justice Department, in 2018, is still determined to put him in prison. What do they intend to charge him with? We know now, because a court has disclosed a warrant that the FBI obtained against Google to search the private emails of Assange and his assistants; they alleged that he violated five sections of the US Espionage Act 1917. The sentences for doing so add up to forty-five years.
That is Assange’s reason for remaining in the Ecuadorian embassy after the Swedish proceedings against him were dropped. As soon as he emerges, the British police would arrest him for a breach of bail and although that is a minor offence (meriting at most a few weeks in prison) the US would immediately pounce and commence extradition proceedings, which would begin with his arrest and end two years later either with his release from prison in Britain (after a successful challenge to the extradition) or, if this failed, forced departure to Maryland for trial and (if convicted) incarceration for thirty-five or so years in an American supermax.
The Ecuadorian government, having granted him residency for over five years, at the beginning of 2018 made him an Ecuadorian citizen, and also appointed him as their political counsellor – a diplomatic position that normally carries with it immunity (and a salary). The UK has so far refused to recognise his diplomatic status – a change in its position since it automatically accepted the non-existent credentials of Dr Juffali. Ecuador claims this is a breach of the Vienna Convention. If the UK recognises his status it could then declare him ‘persona non grata’, which would require him to leave the embassy and the country but permit him to do so cloaked with immunity from US extradition requests, although there is no direct flight from London to Ecuador and Mr Pompeo might order the interception of any aircraft carrying his priority target. It’s a story that will run and run, even if Assange stays put.
* * *
I don’t share Assange’s politics, but I agree with A. J. P. Taylor’s maxim in that I think he’s one of those gifted and mischievous eccentrics that society should learn to treat with a degree of toleration and even appreciation. I detected that he was somewhere on the autism spectrum before he accepted that he probably was, and my experience of my son’s condition may also explain why I have stuck with him (despite losing several briefs from governments for doing so), while many of his supporters have fallen out. He is in many respects his own worst enemy and gives little thought to people other than himself, but his legion of critics – mostly journalists who have never met him – continue to overlook his genius and (actually) his courage. He is not a liberal’s ideal of a ‘nice’ person when his sarcasm turns nasty or he turns against friends, and snobbish critics in England typically deplore his table manners (they accuse him of eating with his fingers) and always remind readers, as if it makes him the ultimate outsider, that he is an Australian. Without money or freedom, he is in no position to refute the calumnies. When not raging against enemies real and imaginary (but never including himself), he is charming, funny and autodidactically erudite.
Assange is an Australian publisher, whose actions all took place outside America – yet he’s accused under the Espionage Act of disloyalty to America. He’s not an American and owes it no allegiance, and despite unproven allegations of loyalty to Russia, I suspect (and hope) that he remains rather his own man. I’m not alone in that view – when The Simpsons made its 500th programme, they honoured not Mandela or Madonna, but Assange. Kathy Lette was asked to write some dialogue, so when Assange cooks a BBQ for Homer, and Marge asks for the recipes for his delicious marinade, he replies, ‘I’m sorry, but I never reveal my sauces.’