Forbes on November 2, 2011 released the following:
By: Andy Greenberg, Forbes Staff
“Throughout the 11-month legal process to determine whether Julian Assange will be extradited from the United Kingdom to Sweden to face questioning over alleged sex crimes, Assange’s lawyers have argued that a trip across the North Sea would be the first leg in a journey that ends in an American prison.
But as a second London court denied the WikiLeaks’ founder’s appeal against extradition to Stockholm Wednesday and brought the WikiLeaks founder one step closer to a trip to Stockholm, the effect may not be so clear. (See the judge’s full ruling against that appeal here.) In fact, lawyers I’ve spoken to say the real result of sending Assange to Sweden may be to put the decision of whether to allow him to be prosecuted in the U.S. into the hands of unpredictable Swedish leaders rather than leaving it to Britain’s U.S.-friendly laws, a situation that may represent another barrier to the U.S. Justice Department’s barely secret ambitions to indict him.
Assange’s relocation to Sweden for trial could end up complicating the process of charging him with crimes in the U.S., says Douglas McNabb, a lawyer with the firm of McNabb [Associates] who specializes in cases of international criminal law and extradition. “If Assange is going to be extradited, he’d much rather be extradited to Sweden than to the U.S.,” says McNabb. “In fact, the U.S. would get him much more quickly from the U.K. than from Sweden.”
McNabb points to Britain’s Extradition Act of 2003, a controversial law passed in the wake of 9/11 that gives the United States special privileges in seeking the extradition of prisoners in the United Kingdom. He argues the act’s “accelerated extradition process” means Britain would likely pose little resistance to American prosecutors seeking Assange’s extradition. That same law is currently being used to extradite hacker Gary McKinnon to the United States despite his British citizenship, and a U.K. judicial review upheld the statute in October.
Frank Rubino, an international defense lawyer who has represented Panamanian general Manuel Noriega and Lockerbie bomber Abdelbasset Al-Megrahi, calls Assange’s argument that Sweden is more likely to extradite him to the U.S. than Britain “ridiculous.” “Short of Iran, they could move to extradite him from pretty much anywhere,” says Rubino, “From London as much as from Stockholm. But if Sweden doesn’t recognize whatever the U.S. charges him with as a violation of Swedish law, they might not extradite him at all.”
Extradition from Sweden, after all, requires determining “dual criminality”–that whatever Assange has been charged with in the United States is also a crime in Sweden. The grand jury that has convened in Alexandria, Virginia to decide whether Assange will be indicted in the U.S. has yet to make public any charges against him, but some have speculated on and called for his indictment under the same Espionage Act once used to prosecute Daniel Ellsberg for leaking the Pentagon Papers.
If Assange is in Sweden and the U.S. presses charges, it might need the cooperation of both the United Kingdom and Sweden to achieve its own extradition on top of Sweden’s, as the Electronic Frontier Foundation’s legal activist Trevor Timm has pointed out. The judge in the original February decision on the extradition case wrote:
“If Mr Assange is surrendered to Sweden and a request is made to Sweden for his extradition to the United States of America, then…In such an event the consent of the Secretary of State in this country will be required, in accordance with section 58 of the Extradition Act 2003, before Sweden can order Mr Assange’s extradition to a third State. The Secretary of State is required to give notice to Mr Assange unless it is impracticable to do so. Mr Assange would have the protection of the courts in Sweden and, as the Secretary of State’s decision can be reviewed, he would have the protection of the English courts also.”
Sweden, it’s important to note, be able to circumvent those restrictions on traditional extradition. The Assange support site SwedenVersusAssange.com argues that Sweden will use a clause in its extradition treaty with the United States that allows a “temporary surrender” of a prisoner to the U.S. by “mutual agreement.” That clause, Assange’s backers fear, means Assange could be passed on to the U.S. without either the usual extradition hearing under Swedish law or the consent of the U.K. government.
But McNabb argues that even in spite of that potential loophole, Assange has a better shot of staying out of American hands in Sweden than he would have in the United Kingdom, where the Extradition Act practically pre-ordains his trip to America. “It would be almost certain in the UK,” says McNabb. “In Sweden, it’s a toss-up.”
Prior to Wednesday’s hearing, WikiLeaks’ Twitter feed was full of descriptions of Sweden as America’s lapdog, calling it “the Israel of the north” and writing that its “ subservience to the US [is] now on naked display.”
But setting Assange’s sex crime charges aside, Sweden has yet to apply the same political pressure to WikiLeaks that U.S. leaders have to American WikiLeaks partners. Even as Senator Joe Lieberman successfully influenced American companies like Amazon, PayPal, Visa, MasterCard, and Western Union to cut their services to the secret-spilling group in early 2011, Swedish hosting companies PRQ and Bahnhof have both continued to serve WikiLeaks at the height of its controversy without threats from the Swedish government.
Whether that government will provide the same haven for WikiLeaks’ leader as it has for WikiLeaks’ data may soon be put to the test.”
Douglas McNabb – McNabb Associates, P.C.’s
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