THE PERSECUTION OF JULIAN ASSANGE (Part 1)
A review of Nils Melzer: The Trial of Julian Assange, Verso Books, 2022
A CASE FOR A RAPPORTEUR ON TORTURE
By Peter Brooke
The persecution and torture of Julian Assange can only be understood in its details as caused by the coming together of two distinct political projects. On the one hand there was the desire of the Swedish Social Democratic Party – and in particular a Christian subset within it, the broderskapsrorelsen, “the Brotherhood movement” – to establish that the offence of which Assange was accused was very serious and required to be punished. On the other hand there was the desire of the US government and its allies to incapacitate a man who had found a means by which the conduct of war could become a matter of accurately informed public debate. Although the two projects can be separated out conceptually they nonetheless together formed a marvellous symbiosis and it is difficult to separate them out in practice.
Nils Melzer’s book is concentrated almost wholly on the US project despite the fact that, as I hope to show later, he himself fell victim for a while to the Swedish project. Melzer is the United Nations Special Rapporteur on Torture. That means his job is to investigate accusations of torture coming from all over the world. It is an unpaid job – he earns his living as an academic. He has an office in Geneva and two assistants. It is obvious that with such limited means – hardly likely to strike fear in the hearts of wrongdoers – he has to choose his priorities carefully. He was first contacted by Assange’s lawyers in December 2018. He admits (p.10) that his first reaction was negative: ‘Julian Assange? Was this not the founder of Wikileaks, the shady hacker with the white hair and leather jacket who was hiding out in an embassy somewhere because of rape allegations … No, I certainly would not be manipulated by this guy.’ Even when his fellow rapporteurs on the situation of human rights defenders and on the UN Working Group on Arbitrary detention put out a press statement calling on the UK to let Assange leave the Ecuadorian embassy freely, he refused to be associated with them.
It was in March 2019, and specifically because of a report on Assange’s state of health by Dr Sondra [sic – PB] Crosby, that he began to change his mind (p.33): ‘Crosby was not just anyone. A medical doctor and professor of medicine at Boston University, she was specialised in the examination of refugees and victims of torture and had been one of the first physicians to independently examine detainees in Guantanamo. She had an excellent reputation and her voice carried weight. Most important to me she was not associated with the Assange activist camp and was therefore unlikely to take a one-sided position.’
The conditions under which Assange was living in the Ecuadorian Embassy had begun to deteriorate radically with a change of government that took place in Ecuador which took place in March 2017. The left-wing President, Rafael Correa, who had given Assange refuge in 2012, was replaced by his Vice-President, Lenin Moreno. As Implied in Moreno’s first name, this ought to have been a continuity government, but of course, as members of the British Labour Party have been discovering lately, first names are not to be trusted.
Melzer’s account of what followed is a little odd. He says that Moreno was willing to offer Assange’s rendition to the US in exchange for financial concessions, including debt relief, as early as May 2017. But in fact Moreno’s first initiatives seem to have been favourable to Assange. In December 2017 he granted Assange Ecuadorian citizenship which meant that he could them appoint him as Ecuadorian Ambassador to Moscow. On the face of it rather a brilliant solution to the problem. Had Britain been a country that had any respect for international law that would have given him diplomatic immunity and enabled him to leave the embassy. But Britain had been maintaining a police siege of the embassy (at a total cost to the London ratepayer of some £16 million) since 2012 to prevent Assange from leaving, and Britain is a country that has little or no respect for international law, at least when it comes to being inconvenienced by an insignificant little country such as Ecuador.
Following this, Moreno set about getting Assange out of the embassy by other means, basically by making the conditions of his life as uncomfortable as possible. Of course they were hardly comfortable prior to that. For five years he had been unable to leave the building. He had a small room and a bathroom to himself. But he had, for the most part, good relations with the embassy staff and, most importantly, he had access to the internet, enabling him to continue his work for Wikileaks.
In March 2018, however, Assange’s internet and telephone access were blocked and his right to receive visitors, other than from lawyers and doctors, severely restricted. Meetings could only take place in a conference room monitored through surveillance cameras and hidden microphones. Embassy staff deemed to be sympathetic to him were replaced. The consul-general himself, Fidel Narvaez, was removed in the Summer, about the same time that Moreno in Ecuador received a visit from the US Vice-President, Mike Pence. Internet access was restored in October 2018 but in the context of a Special Protocol of visits, communications and medical attention for Mr Julian Paul Assange. ‘According to Narvaez,’ Melzer tells us (p.201), ‘the purpose of the protocol is to “lay out banana peels all over the floor,” making sure that Assange will repeatedly slip and thus supply excuses for his expulsion by the Ecuadorian government.’
The process of rendering life intolerable in the embassy was cheered on by the British government, and specifically by Sir Alan Duncan, Minister for Europe and the Americas. In March 2018, as the process began, Melzer (p.207) quotes Duncan telling the House of Commons: ‘It’s about time that this miserable little worm walked out of the embassy and gave himself up to British justice’ and in January 2019 he recorded in his diary (Melzer, p.199): ‘Meet the new Ecuador Ambassador, Jaime Marchan-Romero. His principal mission is to get Assange out of the embassy – it has been six years – and although he had been aiming for tomorrow, as I’d just learnt, it’s going to be longer. A tad frustrating, but we’ll get there.’ Duncan, incidentally, was one of the politicians targeted by the Israeli Embassy for their supposed Palestinian sympathies, as revealed in January 2017 in the Al Jazeera series, The Lobby. In 2014, he had declared that anyone who refused to recognise that West Bank settlements were illegal should be judged unfit for office and had made reference to a ‘very powerful financial lobby’ which dominates US politics. The Board of Deputies of British Jews had complained, but this of course was before they had the weapon of the International Holocaust Remembrance Alliance definition of antisemitism.
Assange was still in the embassy in March 2019, when Melzer began to feel there was a case that needed his attention. He wrote an op-ed on the subject, submitting it to ‘The Guardian, The Times, the Financial Times, the Sydney Morning Herald, the Australian, the Canberra Times, the Telegraph, the New York Times, the Washington Post, Thomson Reuters Foundation, and Newsweek. None responded positively.’[1] He secured permission to visit Assange on 25th April. He also wanted to discuss with the British authorities the possibility that Assange would be arrested and extradited to the United States. The British ambassador to the UN in Geneva refused his request on 10th April, saying (p.39): ‘You will appreciate that it would not be appropriate for officials to speculate on hypothetical scenarios.’ The hypothetical scenario began to play out the very next day, 11th April. Assange was – in a day, by presidential order – stripped of his Ecuadorian citizenship, dragged out of the embassy without any prior notice, pushed into a police car, brought before Westminster Magistrates Court and sent to Belmarsh prison after a fifteen minute hearing to await sentencing. The judge, Michael Snow, informed him that he was ‘a narcissist who cannot get beyond his own selfish interests.’ (p.47)
THE SWEDISH ‘PRELIMINARY INVESTIGATION’
Assange was sent to Belmarsh – Britain’s highest security gaol – on the basis of his indictment for skipping bail when he had sought asylum in 2012. That was to avoid extradition to Sweden, hence the oft-repeated smear that he was ‘hiding’ in the Ecuadorian embassy in order to avoid extradition to Sweden in order to avoid the Swedish investigation of an accusation of sexual assault. But when the accusation was made, Assange had waited four weeks in Sweden to be interviewed by the Director of Public Prosecutions, Marianne Ny, for the ‘preliminary investigation’ which had to be conducted before any charges could be brought. The most important accusation, that of rape, had been quickly dropped by the Stockholm prosecutor, Eva Finné, for lack of evidence, though not before it had been splashed all over the Swedish, and hence world press. It was taken up again by Finné’s superior, Ny, on 1st September after an application by the lawyer Claes Bogström. According to Gary Lord’s history of Wikileaks, quoting the Australian Swedish-speaking journalist Guy Rundle: ‘Claes Borgström was “not only the Social Democratic Party’s gender equality spokesperson, but a major driver of Sweden’s Sexual Offences Act 2005”. And the new prosecutor, Marianne Ny, was a sex crime expert who “had headed a crime development unit whose brief was to explore ways in which sex crime law might be changed or extended”.’[2] Borgström, Ny and Anna Ardin, one of the two women at the centre of the case, were all members of the broderskapsrorelsen. [3]
A fortnight later, on 15th September, without yet having interviewed him, Ny told Assange’s Swedish lawyer that he was free to leave Sweden. He left on 27th September. On that very day, according to the account by the Swedish political commentator Marcello Ferrada de Noli, unbeknownst to Assange, Ny issued a detention warrant for his arrest. It was issued at 14.15. Assange arrived at the airport at noon but took a later flight than expected, which left at 17.15. Since on his arrival in Berlin his laptops and checked-in suitcase were missing, the security services were well aware of who he was and could have arrested him if they had been properly notified of the warrant, as normally they would have been.
De Noli argues that had he been detained at the airport ‘The prosecutor would have had to interrogate Assange within a few hours. Assange would have requested the presence of a lawyer or that the interview was videotaped. Afterwards he would have been released because in terms of the evidence available to the prosecutor there would have been nothing new that had not already come up in the preliminary investigation conducted by prosecutor Eva Finné (who had previously dismissed the case on this evidence). He would have never been held incommunicado, as he will certainly be if he comes to Sweden under the extradition terms that resulted from the EAW.’[4] In other words, the whole point was to let Assange leave Sweden in order then to be able to produced a European Arrest Warrant and indeed an Interpol ‘red notice’, normally only issued for dangerous criminals and ‘terrorists’. To take up Melzer’s account (p.161): ‘The plan clearly does not appear to be to arrest Assange but to create and perpetuate the public narrative of a fugitive sex offender, all the while denying him an opportunity to defend himself. Although Prosecutor Ny was obliged by law to issue an arrest warrant against Assange as soon as she had reopened the rape investigation on 1st September, she only does so once he appears in the passenger monitoring system a few hours before his departure. She then allows him to leave the country and thereby gets him to inadvertently confirm the alleged flight risk by his own action.’
Assange offered through his solicitor to come to Sweden any time during the week beginning 10th October but Ny, who had kept him waiting for four weeks between her taking the case up and calling him for interview, declared that that was too late. Assange presenting himself voluntarily for interview didn’t fit the desired scenario.
By the time the European Arrest Warrant was issued, on 18th November 2010, Assange was insisting on a guarantee that his removal to Sweden on the sexual assault charge, where he could now be immediately imprisoned as a flight risk, would not be followed by his removal to the United States, where the consequences could be a great deal more serious. A ‘Grand Jury’ had been convened in Alexandria, Virginia, to investigate Wikileaks. Grand Juries meet in secret and have the power to issue sealed indictments but, more openly, Assange was the object of what a statement issued by Wikileaks in January 2011 called:
‘unprecedented violent rhetoric by US prominent media personalities, including Sarah Palin, who urged the US administration to “Hunt down the WikiLeaks chief like the Taliban”. Prominent US politician Mike Huckabee called for the execution of WikiLeaks spokesman Julian Assange on his Fox News program last November, and Fox News commentator Bob Beckel, referring to Assange, publicly called for people to “illegally shoot the son of a bitch.” US radio personality Rush Limbaugh has called for pressure to “Give [Fox News President Roger] Ailes the order and [then] there is no Assange, I’ll guarantee you, and there will be no fingerprints on it.”, while the Washington Times columnist Jeffery T. Kuhner titled his column “Assassinate Assange” captioned with a picture Julian Assange overlayed with a gun site, blood spatters, and “WANTED DEAD or ALIVE” with the alive crossed out. John Hawkins of Townhall.com has stated “If Julian Assange is shot in the head tomorrow or if his car is blown up when he turns the key, what message do you think that would send about releasing sensitive American data?” Christian Whiton in a Fox News opinion piece called for violence against WikiLeaks publishers and editors, saying the US should “designate WikiLeaks and its officers as enemy combatants, paving the way for non-judicial actions against them.”‘
Melzer (p.81) explains why it was thought that Sweden was more likely to extradite Assange than the UK. The extradition arrangements both Sweden and the UK had with the US included a provision, which could obviously be used by a defence lawyer, excluding political reasons for the extradition. However Sweden, unlike the UK, had a ‘mechanism of “temporary surrender”, a loophole in the US-Swedish extradition treaty permitting the United States to “borrow” a suspect from Sweden for the purposes of criminal prosecution without full extradition proceedings. While such surrender must remain “temporary”, its duration is to be agreed by the two governments on a case-by-case basis – enough room for a tailor-made arrangement ensuring Assange’s permanent disappearance into the black hole of a US Supermax prison.’ That Wikileaks supporters were fully aware of this possibility is shown in a series of tweets issued by Assange’s mother, Christine, explaining the dangers faced by her son. They included these:
’11. The Swedish/US Bilateral Treaty gets around safeguards of normal extradition with a fast-track “Temporary Surrender” clause.
’12. The US Grand Jury convenes in secret. There are 4 prosecutors, no defence, and no judge. It can issue indictments for Extradition with no proper legal process.
’13. Sweden has not refused an Extradition request from the USA for over 20 years.
’14. In 2001 Sweden gave two innocent Egyptian refugees to the CIA for rendition to Egypt, where they were tortured.
’15. The Swedish Justice Minister who signed off on the CIA rendition torture flight was Thomas Bodström.
’16. Thomas Bodström is now the business partner of Claes Borgström, the politician/lawyer of the two Swedish women in the Assange case.’[5]
The US, however, carefully refrained from issuing any indictment or request for extradition so it was easy to accuse Assange of paranoia or reluctance to face up to the Swedish sex allegations. Assange’s Swedish lawyer, Björn Hartig, tried to have the ‘preliminary investigation’ conducted in London, but Ny insisted: ‘The interview planned with Assange must take place in Sweden for investigative reasons. These include, among other things, that the interview with Assange must be conducted in the same manner as the interviews with other persons in this investigation, and that these interviews are likely to lead to other investigative measures.’ Melzer comments (p.169): ‘This is a rather brazen justification, given that the initial interviews with most witnesses and one of the alleged victims had been conducted by phone, whereas Assange had personally come to the police for questioning on 30th August 2010.’
ENTER KEIR STARMER (PERHAPS)
By now (2011), Assange was living in relatively comfortable house arrest in Ellingham Hall, a stately home owned by military man, organic farmer, video journalist (specialising in war coverage), ‘right wing libertarian’, Vaughan Smith. He was to be living there for 550 days, wearing an electronic tag and reporting daily to the police. The delay in implementing the Swedish extradition request came down to a technicality. The European Arrest Warrant had been issued by Marianne Ny, a prosecutor. Assange’s lawyers argued that the 2003 British Extradition Act, implementing the EU legislation concerning the Arrest Warrant, required that the warrant be issued by a ‘judicial authority’ and that in the House of Commons debates on the act it was emphasised that this meant a court or a judge, not the police or a public prosecutor. It was when the case finally reached the Supreme Court which ruled (for reasons Melzer finds bizarre) in favour of a broad definition of the term, that Assange knew the game was up, skipped bail and, on 19th June 2012, entered the Ecuadorian Embassy, asking for asylum (President Correa had previously indicated that such a request would be looked on favourably).
But before that happened an interesting correspondence was struck up between the British Crown Prosecution Service and Marianne Ny.
In January 2011, while Assange was still in house arrest in Ellingham Hall, Marianne Ny seems to have shown signs of weakening: ‘it almost seemed as if Prosecutor Ny had changed her mind and was now seriously entertaining the idea of interviewing Assange in London.’ But she was advised against it by the Crown Prosecution Service. The CPS was charged with representing the interests of the Swedish prosecution service and on 25th January 2011 the officer responsible, Paul Close, wrote: ‘My earlier advice remains, that in my view it would not be prudent for the Swedish authorities to try to interview the defendant in the UK.’ Close gives reasons which I thought rather obscure, why such a course would give possible arguments to Assange’s defence, but in the course of explaining them Melzer refers to ‘the Swedish practice of detaining rape suspects without bail’, which would seem to be highly relevant (Melzer pp.174-5).
In his book Rather his own man, Geoffrey Robertson QC, who acted for Assange in the period immediately following the European Arrest Warrant, complains that his lawyers had failed to use what he regarded as the strongest case for resisting extradition – that under Swedish law ‘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 those parties had by now condemned Assange …’[6]
It is, then, fairly obvious why there would be advantages in conducting the ‘preliminary investigation’ in Sweden.
Melzer goes on to say (p.80) that once the Supreme Court had made its final decision on 14th June, Ny requested his immediate surrender, ‘thus effectively withdrawing the suspensive effect of a possible appeal by Assange to the European Court of Human Rights in Strasbourg.’ But the Supreme Court refused Ny’s request, giving Assange ‘ a final reprieve of fourteen days.’ He doesn’t explain why, then, Assange didn’t use this time to appeal to the European Court. Neither can I explain it but when, five days later on the 19th June, Assange sought asylum in the Ecuadorian embassy, he explained, in an interview with ABC News, that ‘we had the surprise news that the Crown Prosecution Service here suddenly objected to the fourteen days we were meant to have to file an EU appeal, and were asking for zero.’[7]
There was more to come. Ecuador made the formal decision to grant Assange asylum on the 16th August and soon afterwards in an interview Assange said he thought the most likely outcome was that Sweden would drop the case. Ny then got the famous email from the CPS which read ‘Don’t you dare get cold feet!’ Raising the question why should the CPS care if she got cold feet? Did they feel so strongly about the question whether or not Julian Assange was wearing a condom on two nights in August 2010 (that was the point at issue) that they were willing to continue paying – or requiring London to pay – ‘over £15,000 a day for round the clock police surveillance of the Ecuadorian embassy’? Boris Johnson, then Mayor of London, complained that it was ‘absolutely ridiculous; that money should be spent on frontline policing … it’s completely wasted.’ Baronness Jenny Jones, Deputy Chair of the Police and Crime Committee at the London Assembly, said: ‘It’s absolute madness … either somebody else has to pay – that is, the Swedish authorities – or we just have to back off and stop guarding the embassy. It is ludicrous.’[8]
Even the Swedish authorities seem to have had doubts on the matter. In October 2013, Ny wrote to the CPS, saying:
‘There is a demand in Swedish law for coercive measures to be proportionate. The time passing, the costs and how severe the crime is to be taken into account, together with the intrusion or detriment to the suspect.’
In December, she elaborated on the ‘costs’ in question:
‘It has been argued in Sweden that the English police regards the costs getting unreasonably high. I understand from your answer that the costs on your side is not an issue that we should take into consideration at this stage?’
She was assured in the reply: ‘Just to confirm that I do not consider costs are a relevant factor in this matter … I am not aware of any adverse comment or concern being expressed by any government departments.’ (Account in Melzer, pp.186-7)
Keir Starmer was Head of the Crown Prosecution Service and Director of Public Prosecutions from July 2008 to November 2013 so in the period covered by these emails, except the ones exchanged in December, which were apparently just confirming advice already given. Whether or not the crimes for which Jimmy Savile was accused were sufficiently important to attract his attention, it seems very improbable that he wouldn’t have had a say in the Assange case with its obviously important international and political ramifications. The lawyer who actually signed the emails, Paul Close, retired in 2014 and his emails were deleted ‘in accordance with standard procedure.’[9] They were recovered by the Italian Journalist Stefania Maurizi, after a long and determined pursuit of Freedom of Information requests, from the Swedish side of the correspondence.
Part 2 will continue with an account of the state JA was in when he entered the Embassy – which would include a brief account of the enormity of his achievement – and the state he was in when he left it, renewing with Melzer’s account of his own involvement when he found himself under attack from Anna Ardin (she called for him to be dismissed from his post in the UN and had the support of a letter with 300 signatures) which would lead into an attempt to understand what Ardin, Ny and Bogström thought they were doing, independent of what the US was doing, and ending with an account of the US extradition process and the manipulations of Judge Baraitser.
[1] He issued it after Assange’s expulsion from the embassy ‘on the occasion of the International Day in Support of Torture Victims, 26 June 2019.’ Nils Melzer: Demasking the torture of Julian Assange, https://medium.com/@njmelzer/demasking-the-torture-of-julian-assange-b252ffdcb768
[2] Gary Lord: Wikileaks: a true history, Chapter six: mid 2010, https://jaraparilla.xyz/ch6.html
[3] A footnote in Prof Marcello Ferrada de Noli: Sweden vs Assange, human rights issues, Sweden, Libertarian Books, 2014, p.244, informs us that ‘Mr Claes Bogström advocates for the institution in Sweden of a ”man tax”. Meaning that the totality of the male population of Sweden should pay a special, separate tax to the state, in compensation for the ”patriarchal” situation that would have existed in Sweden back in hundreds years, and thus affected women as a gender. He has quite recently abandoned the Social Democratic Party to enter the “Vänster” Party (formerly the Communist Party of Sweden), an organization that in spite its name has voted favourably in the Swedish Parliament for C Bildt’s propositions to intervene militarily on behalf of NATO in the recent Libyan war.’ [I have made some minor grammatical corrections – PB]
[4] op.cit., p.30.
[5] Gary Lord: Wikileaks, Chapter thirteen, https://jaraparilla.xyz/ch13.html
[6] Geoffrey Robertson: Rather his own man – in court with tyrants, tarts and troublemakers, Penguin Random House, 2018, p.353.
[7] Gary Lord: Wikileaks, chapter fourteen, https://jaraparilla.xyz/ch14.html.
[8] Quotes from the account in Russia Today, 6th August, 2014.
[9] Ewen MacAskill and Owen Boycott: ‘UK prosecutors admit destroying key emails in Julian Assange case’, The Guardian, 10th November, 2017
Labour Affairs 