Sweden is bound by different extradition agreements. It is not meant to grant onwards extradition to a third country without agreement from the extraditing country. But at the same level of the legal hierarchy there is a bilateral treaty between the US and Sweden that allows for extradition without consent from the UK or minimum tests. This is the temporary surrender/conditional release regime – automatic extradition on a loan basis. It is highly likely that the United States will soon request Julian Assange’s extradition from Sweden and this mechanism will be used while Julian Assange is in Swedish custody.
The US government is certainly looking at the technical aspects of the two extradition agreements between the UK and Sweden and then considering the political and legal atmosphere in both places. – John B. Bellinger III, former legal adviser to US State Department and National Security Council
Julian Assange’s Extradition to the United States
There are several main reasons for Julian Assange’s challenge to Sweden’s extradition order. Relevant to this topic, they are:
1) Julian Assange has not been charged with any offense.
2) Sweden has a bilateral agreement with the United States which would allow it to surrender Julian Assange without going through the traditional tests and standards of regular ’extradition’ procedures.
3) There are standard EU mechanisms (such as Mutual Legal Assistance) for Julian Assange to answer any questions the Swedish government may have. It is disproportionate, and an abuse, to use extradition proceedings in this manner.
4) Extradition law requires a “judicial authority” (e.g a judge or other independent body) to issue an extradition warrant, in order to keep the separation between the executive and the judiciary. It is an abuse to permit prosecutors, intelligence agents or other officials who are not independent to issue proceedings.
Temporary surrender – under the US-Sweden Extradition Treaty
Most of the attention regarding Julian Assange’s possible extradition to the US has focused on the EU agreements that are meant to prevent onward extradition – namely that the UK Home Office would have to consent to his onward extradition. Little or no attention has been given in Europe to the temporary surrender (sometimes called ’conditional release’, see the Panama example below) mechanism that Sweden established bilaterally with the United States in their 1984 treaty (TIAS 10812):
VI. If the extradition request is granted in the case of a person who is being prosecuted or is serving a sentence in the territory of the requested State for a different offense, the requested State may:
b) temporarily surrender the person sought to the requesting State for the purpose of prosecution. The person so surrendered shall be kept in custody while in the requesting State and shall be returned to the requested State after the conclusion of the proceedings against that person in accordance with conditions to be determined by mutual agreement of the Contracting States.
Temporary surrender has been incorporated into the EU-US Extradition and Mutual Legal Assistance agreements entered into in February 2010. The Council of the EU’s handbook explains temporary surrender in the following manner:
[Temporary surrender] facilitates the orderly and efficient prosecution of a person sought in two jurisdictions by allowing the temporary transfer of the person to the Requesting State for prosecution, when that person is subject to proceedings (either prosecution or service of a sentence) in the Requested State. The transfer is subject to conditions agreed to in advance of the transfer. – Council of the European Union – Handbook on the practical application of the EU-U.S. Mutual Legal Assistance and Extradition Agreements (p. 15)
The US has put what appears to be an expedient de facto extradition in place that effectively sidesteps traditional extradition safeguards. The background for this mechanism is to combat serious crimes – typically drug trafficking, terrorism, and so on – and it has implemented such innovative mechanisms with several strong allies.
One of the strategic allies that has implemented these types of mechanisms in the context of drug trafficking, is Panama: a recently released US embassy cable described the “conditional release” regime:
use of Conditional Release, under which the GOP [Government of Panama] releases to the US a suspect already under arrest in Panama on other charges. Under this procedure, the suspect is “lent” to the US for prosecution on the condition that they will be returned for prosecution in Panama at the end of their sentence. This procedure is much faster than a formal extradition, and has proven so successful, that DEA sometimes designs operations to bring suspects to Panama so they can be arrested in Panama and turned over to US authorities quickly. – US Embassy Panama Cable, 2008
The Conditional Release mechanism appears indistinguishable from the temporary surrender mechanism, apart from the fact that in conditional release the suspect will serve his/her sentence in the US before returning to the requested state (in the case above, Panama), while in temporary surrender the US would have to negotiate with Sweden at what point Julian Assange would be returned to the requested state for prosecution/serving a sentence.
A research paper prepared for US Congress in March 2010 by the Congressional Research Service (’Extradition To and From the United States: Overview of the Law and Recent Treaties’) does not mention the Conditional Release mechanism in the report and it appears that little is known about this preferred method of extradition.
US Embassy contacted regarding temporary surrender/conditional release of Julian Assange
The US Embassy in London was [contacted by The Guardian newspaper] after readers sought clarification about the temporary surrender/conditional release mechanism, and whether the US will employ it in its request to Sweden. The US embassy declined to give a statement.
Surprisingly prehaps, the Guardian did not attempt to contact the Swedish Embassy – it is after all Sweden that is bound by the two potentially conflicting extradition regimes (under the Framework Directive and the US Extradition Treaty, respectively) and would be best equipped to address whether it would treat a ’temporary surrender’ as regular extradition (with its safeguards). The EU Handbook on the US-EU Extradition Treaty seems to suggest differently:
The transfer is subject to conditions agreed to in advance of the transfer.
Despite the failure of The Guardian to get to the bottom of this potentially game-changing issue, the readers’ discussion raised some important hypotheticals: For example, the reader GregCallus suggested “this extradition takes place under a European Arrest Warrant [which] means that (as a matter of EU law) Sweden would be bound by the Article 28.4 rules on seeking permission from the UK (which would be judicially reviewable). If they tried to ignore those obligations, then a preliminary reference to the ECJ (on the super-fast track urgent) route would likely compel them to get the UK’s permission.”
However, the question remains: if the US uses not traditional extradition but temporary surrender do the presumed safeguards under EU law apply? Is it extradition if the suspect is merely ’on loan’ to the US and not ’extradited’ proper – as the US embassy cable suggests?
Could Julian Assange rely on any safeguards if the United States requested his ’temporary surrender’/conditional release from Sweden?
The retired Swedish judge Brita Sundberg-Weitman (who testified at the first extradition hearing in February) wrote to SwedenVersusAssange.com and explained that Sweden’s Act regarding Criminal Extradition (Lag 1957:668 om Utlämning för Brott) requires the Swedish government to apply to the Supreme Court for permission to exercise the “conditional release” mechanism.
Sundberg-Weitman notes, however, that the government could ignore that requirement with little risk to itself; the legal and/or political repercussions, if any, would most likely be negligible. They would in any event be too late to be of any use to Julian Assange, who would have already been turned over to the U.S.
Bearing in mind that the the Swedish Courts (Stockholm District Court, Svea Court of Appeal) granted the prosecutor’s application to have Julian Assange arrested without seriously considering the principle of proportionality and that the Supreme Court refused to reconsider that decision – it is rather likely that the Supreme Court would approve a request by the government to have Assange extradited to the US.
How likely is it that Sweden will extradite Julian Assange to the US?
Certainly Assange’s lawyers would mount a very vigorous opposition [to extradition] in either case [Sweden/UK], in London in particular. Past U.S. extradition requests for criminals from the UK have faced vigorous opposition, and a number of people have successfully resisted that through appeals through the House of Lords and ultimately all the way up to the European Court of Human Rights. We can anticipate lengthy litigation. – John B. Bellinger III
Both the UK and Sweden refuse to guarantee that they will not extradite Julian Assange to the United States. Political and military extraditions are expressly prohibited under the extradition treaty between Sweden and the United States, so this refusal is unusual. Moreover, it is likely that the US will request extradition on charges that are not overtly political (see below).
Shortly after issuing the EAW and Interpol Red Notice to 188 countries, the prosecutor Marianne Ny originally stated that extradition to the United States was ’out of the question’ (05 December 2010) – but her statements were later redacted (see Prosecution).
The Prime Minister Fredrik Reinfeldt has adopted several strategies in order to lessen the pressure on him to provide assurances that Julian Assange will not be extradited to the United States:
1. Reinfeldt claims that the decision to extradite Julian Assange is up to the courts, not the executive.
This is false. Sweden’s extradition treaty with the United States explicitly prohibits political and military extraditions. The final decision lies in the hands of the executive, who can block an extradition if it believes that political/military motivations underlie the extradition order. However, it it difficult to prove the underlying motivations of an extradition order. The US is likely to issue an order under charges that are not overtly political (see below).
It is likely that the United States will decide to charge Julian Assange with a number of offences (whether or not in conjunction with espionage) that are seemingly not political offences. The US Department of Justice has broadened its attack to include a possible indictment under the federal computer crimes statute, which it would argue was a non-political offence. Sweden is likely to consent to such an extradition given its close relationship with the US and the argument that the offences he is being sought for are not political in nature.
It is very difficult for an individual to prove that the underlying motivations for an extradition are political, especially where the requesting state is a close political ally, which is the case of the United States both for Sweden and for the UK. Swedish troops are under NATO-US command in Afghanistan. Sweden was one of the first countries to send fighter jets to Libya at the request of the US and, in June, the Swedish parliament voted to send marines to Libya together with more fighter jets (See Political Interference).
2. Reinfeldt claims that it is not up to Sweden, but up to the UK, whether or not Julian Assange is extradited to the United States.
Sweden is shifting attention away from the fact that the final decision of whether to extradite Julian Assange to the United States or to block it is an executive decision.
Under EU law, Sweden should only initiate Julian Assange’s onward extradition if and when the UK gives its agreement, but the UK has little incentive to block an extradition order if Sweden does not take the step to do so first. Moreover, legal commentators in the UK have stated that it is likely that the UK would consent to Julian Assange’s extradition from Sweden (this is likely to raise less criticism and mobilisation if Julian Assange is not physically under UK custody).
Sweden has in the recent past violated international treaties in relation to surrendering foreign nationals into US custody to be interrogated and tortured (case of extraordinary rendition, Agiza v. Sweden at the European Court of Human Rights). Furthermore, Amnesty International and the UN Committee against Torture criticised Sweden because it rendered two refugees to the CIA who were then tortured under the Egyptian regime of Hosni Mubarak.
Diplomatic assurances that the person extradited will not be subjected to torture or other inhumane and degrading treatment are not a sufficient guarantee to prevent Julian Assange from suffering such treatment while in US custody, or to realize a fair trial in the United States, given the politicization of the allegations against him.
The UK and Swedish governments can choose to allege that Julian Assange is not wanted for political offences, and will not interfere with a judicial decision (despite the fact that this ’judicial decision’ would be taken by the secret grand jury in Virginia where there is no judge or defence counsel).
Given that Julian Assange is neither a citizen nor permanent resident in Sweden or the UK, these countries have little incentive to afford him the type of protection they would afford one of their own citizens or permanent residents. Moreover, it is safe to assume that both the UK and Swedish government have come under pressure to comply with the United States’ upcoming request for Julian Assange’s extradition (these pressures by the US government proved effective in the extra-judicial and arbitrary denial of service by Mastercard, Visa, Paypal, Western Union & Bank of America of WikiLeaks donations).
Wouldn’t the UK be more likely to extradite Juilan Assange?
If the Justice Department were actually to issue charges against Mr. Assange while he was still in Britain there could be potentially a decision for the UK government whether to extradite him to Sweden or to the United States, and that could get to be a complicated clash between the two different requests which would put the UK government in a difficult position. – John B. Bellinger III on Fox News
Some critical voices claim that the UK-US extradition treaty is more permissive than the Sweden-US extradition treaty. Extradition to the US, they claim, would be simpler from the UK than from Sweden.
This argument fails on several points:
The UK’s extradition treaty does not have the temporary surrender (’conditional release’) clause. The UK’s judicial review process, while far from perfect, has a number of practical review mechanisms. The nearest equivalent case, of Gary McKinnon – a UK citizen who has been charged for hacking US military systems – has been opposed in the courts for 8 years.
Public opinion and the media (to a greater extent) are more sympathetic to Julian Assange in the UK than in Sweden. Public pressure could draw out the process of extradition to the United States in the UK. In Sweden the media climate is hostile (see Media climate in Sweden) due to the sex allegations. Public outcry would be significantly weaker and therefore less likely to stand in the way of a strategically convenient extradition.
In the UK, Julian Assange is better able to defend himself, muster support and understand the legal procedures against him. In Sweden on the other hand, the language barrier prevents him from effectively challenging the actions against.
The UK is politically better positioned to withstand pressure from the United States than Sweden. Sweden is a small country of nine million people close to Russia. It has grown increasingly dependent on the United States. In recent years Sweden has complied with directives from the United States in a manner that has not been scrutinised by Parliament, as has been revealed by the disclosed diplomatic cables (see Political Interference).
United States: Secret Grand Jury
The United States is looking to charge Julian Assange under the Espionage Act among other charges:
A secret grand jury located in Alexandria, Virginia, only six kilometres from central Washington D.C., has been meeting since December 2010. The grand jury decides whether to bring charges against Julian Assange and other people associated with WikiLeaks.
The grand jury is held in secret, with no judge and no defence counsel. Four prosecutors are imposing subpoenas on individuals who are affiliated with WikiLeaks and on social networking sites including Twitter to disclose information about WikiLeaks’ work.
The grand jury consists of 16-23 people. Given the high incidence of government employees and public and military contractors living in this geographical area, it is likely that a majority of the components of the grand jury are ideologically opposed to WikiLeaks’ work.
It is very likely that the grand jury will decide to prosecute, even on very weak grounds that would not withstand the minimum threshold under normal criminal prosecutions.
United States: What would happen if Julian Assange was extradited?
The suspected whistleblower Bradley Manning has been subjected to inhumane and degrading treatment. Julian Assange is likely to face similar treatment or worse: he will not be afforded the same constitutional rights as Bradley Manning because he is a foreign national. Over the past ten years the United States has developed a doctrine that denies basic rights to foreign political prisoners.
The 2012 US presidential elections are an opportunity to seize upon for the campaign trail: Julian Assange’s prosecution will probably be used by presidential candidates to show they are strong on “national security”. Senators and presidential candidates have already called on the Obama administration to take an aggressive approach.
Republican candidates have urged the US treasury and Department of State to label WikiLeaks as a terrorist organisation, and to ’illegally assassinate’ or kidnap him, and treat him and his associates as ’enemy combatants’.
In other words, internal political pressure is calling for the United States to illegally apply torture in order to extract information, subject him to inhumane and degrading treatment as they have with Bradley Manning, or sentence Julian Assange to the death penalty. Public pronouncements by US senators and television personalities amount to hate speech and persecution (see Timing of EAW and INTERPOL Red Notice ).