Schneier on Security

Bertrand • February 13, 2018 10:21 PM

@ Ratio

1. Your first impressions probably don’t relate to his actual mindset at all. He wasn’t avoiding the charge, he was avoiding that being used as an excuse to rendition him to US custody to face prosecution for his Wikileaks role for which he was never actually charged. They all but admitted he would have been extradited if the US asked for him. How is it that you know nothing about this but want to sit in judgement of his mindset of all things? Ridiculous.
2. No legal bearing.
3. That’s not a summary of any of the arguments and your findings are not based in law.

I do really doubt you read anything about this case if those are your three takeaways. Ridiculous.

Bertrand • February 13, 2018 11:55 PM

@ Ratio

You certainly picked some arbitrary non-points to ‘summarize’ it with, odd choices either way.
Nothing to do with the case really at all.

It’s like you have no idea what he was being charged with or why he resisted extradition in the first place, and are tracing the reader’s digest version for the first time as if this hasn’t been going on for the better part of a decade already.

He submitted himself to the court on several occasions, he just wanted a guarantee that the charge (singular) that was brought would be served out in country if convicted. It was a bullshit charge and just about nobody was prosecuted under it. They wouldn’t give him any guarantees of safety, instead all kinds of doubletalk but in the end admitted that if the US asked for him, he would be given up to them.

Your blithe and unfettered layman’s readings of his personality and motivations, never having met him or knowing what he faced, well… they’re garbage.

Bertrand • February 14, 2018 1:03 AM

You omit anything that doesn’t smear the man as if that’s the entirety of his case and the ruling.
Your “summary” doesn’t even touch any single interesting or important part of it, as if that’s it?
Riduclous smear, find the courage anytime.

Defenses

The first was that Mr Assange had reasonable grounds for taking the course he did
because he feared being sent to the United States. The second was that the UN
Human Rights Council Working Group on Arbitrary Detention ruled that Mr
Assange’s situation in the Ecuadorian Embassy was disproportionate and
unreasonable. Thirdly, at all stages Mr Assange had been willing to be interviewed by
the Swedish prosecutor and if this had happened this would have brought the
proceedings to an end at a very early stage. Fourthly, the last five and a half years
might be thought adequate if not severe punishment for the actions which he took.
Fifthly, I was reminded that the law had changed since Mr Assange’s request and he
would no longer be extradited for an investigation.
11.I am grateful to Mr Summers for the usual clarity of his written and oral submissions.

Decision
12.My approach to this argument has been to consider the factors for and against
pursuing the section 6 proceedings. It seems to the court that as part of the weighing
up of the proportionality of the proceedings I have to have regard to the seriousness of
the failure to surrender, the level of culpability as I find it at this stage of the
proceedings to be and the harm caused including the impact on the community. If the
court considers the factors against the proceedings outweigh the factors in favour then
3
one outcome might be the withdrawal of the section 7 warrant for Mr Assange’s
arrest. I consider Mr Summers’ five points below.
The first point
13.Mr Summers argued that Mr Assange’s failure to surrender was justified. He said he
was not seeking to downplay the effect on justice but Mr Assange’s case was
exceptional. At the time, Chelsea Manning had been arrested and was in solitary
confinement and Mr Assange feared being rendered to the United States. The United
States had opened an investigation into him and some officials were calling for the
death penalty. This might amount to a reasonable excuse (although he accepted that
that might be for another day). These considerations which were extraordinary should
play into the interests of justice test. Also Ecuador, a friendly foreign State, had
considered Mr Assange’s fears and declared them to be well founded and that the risks
to him were and remain real.
14.I accept that Mr Assange had expressed fears of being returned to the United States
from a very early stage in the Swedish extradition proceedings but, absent any
evidence from Mr Assange on oath, I do not find that Mr Assange’s fears were
reasonable. I do not accept that Sweden would have rendered Mr Assange to the
United States. If that had happened there would have been a diplomatic crisis
between the United Kingdom, Sweden and the United States which would have
affected international relationships and extradition proceedings between the states.
15.Rather than rendering Mr Assange to the United States, if the US had initiated a
request to extradite Mr Assange from Sweden, Sweden would have contacted this
court and the judiciary here would have had to consider the request. Mr Assange
would then have been able to raise any bars to extradition including fair trial and
conditions of detention.
16.The position now is that the Swedish proceedings are at an end. If Mr Assange
surrenders to the section 7 warrant, this court would consider whether a prosecution
for failing to surrender should be launched. The Crown Prosecution Service which
has a right to invite the court to consider proceedings could do so. If the United States
initiates extradition proceedings, Mr Assange would have the ability to raise any bars
to the extradition and challenge the proceedings just as he did with the Swedish
proceedings.
The second point
17.Mr Summers pointed out that the United Nations’ Human Rights Council Working
Group on Arbitrary Detention had ruled in an Opinion in December 2015 that Mr
Assange had in effect been forced to choose between two impossible situations. The
parties making submissions to the Working Group were a “source” (on behalf of Mr
Assange), Sweden and the United Kingdom.
18.The “source” claimed that Mr Assange was being subject to arbitrary detention and
this arises “where a state forces an individual to ‘choose’ between confinement and
risking persecution, confinement and the ability to apply for asylum”.
4
19.The Working Group considered that various articles of the Universal Declaration of
Human Rights and the International Covenant on Civil and Political Rights had been
breached and that Mr Assange had not been guaranteed due process or a fair trial
during the period from detention “in isolation” in Wandsworth Prison, “the 550 days
under house arrest, and the continuation of the deprivation of liberty in the Embassy”.
20.The Group’s conclusion is at paragraph 99 headed Disposition. The deprivation of
liberty during the three periods above is described as arbitrary. The Working Group
asked Sweden and the Government of the United Kingdom to assess Mr Assange’s
situation to “ensure his safety and physical integrity, to facilitate the exercise of his
right to freedom of movement in an expedient manner, and to ensure the full
enjoyment of his rights guaranteed by the international norms of detention”.
21.I have read the Opinion. The group appears to have based its conclusions on some
misunderstandings of what occurred after Mr Assange’s arrest.
22.In trying to work out what weight I should give to the views of the Working Group, I
have had to consider the beginning of the extradition process conducted at the City of
Westminster Magistrates’ Court in relation to Mr Assange.
23.The “source” told the Working Group that Mr Assange was detained for (a.) ten days
in isolation in Wandsworth Prison from 7
th December 2010 to 16th December 2010,
(b.) for 550 days under house arrest and (c.) thereafter in the Ecuadorian Embassy.
24.In relation to Wandsworth Prison, paragraph 86 makes the point that there is
arbitrariness in this deprivation of liberty, because “the individual has been left
outside the cloak of legal protection, including the access to legal assistance”. The
implication is that Mr Assange was detained in isolation in Wandsworth Prison
without recourse to a lawyer.
25.In paragraph 89 of the Working Group’s opinion it says that it considers that Mr
Assange has not been guaranteed the international norms of due process and the
guarantees of fair trial during these three different moments ((a.) (b.) and (c.) above).
26.The Working Group found that this “initial deprivation of liberty then continued in the
form of house arrest for some 550 days”. The Working Group described his living
conditions as “harsh restrictions, including monitoring using an electric tag, an
obligation to report to the police every day, and a bar on being outside of his place of
residence at night”.
27.The Working Group goes on to say that it “has no choice but to query what has
prohibited the unfolding of judicial management of any kind in a reasonable manner
from occurring for such an extended period of time”. It is not clear whether the
Working Group understood there to be no judicial management exercised or whether
it believed that the judicial management which occurred was not reasonable.
28.These references by the Working Group to the beginning of the extradition
proceedings have led this court to check the original court file.
29.The court file notes that Mr Assange was arrested on 7
th December 2010 and brought
to the court the same day; he was represented by a barrister, John Jones, later QC, a
5
leading specialist in extradition before his untimely death in 2016. On 7
th December
2010 Mr John Jones suggested (on instructions from Mr Assange and in his presence)
a number of bail conditions including a condition of residence, a curfew and reporting
to a police station (quite apart from the securities and sureties). On 7
th December
2010 bail was refused and Mr Assange was remanded in custody.
30.Mr Assange appeared one week later on 14th December 2010. This time he was
represented by Geoffrey Robertson QC. This specialist in human rights with a
lifetime of experience in the criminal courts suggested the same bail conditions as Mr
Jones had offered the week before. Mr Robertson put forward the conditions of
residence, curfew and reporting (and various others). The judge then granted Mr
Assange bail with those conditions.
31.The district judge’s decision was appealed to the High Court by the Crown
Prosecution Service and on 16th December 2010 the High Court added a £200K
security to the conditions but confirmed the other conditions put forward by Mr Jones
and Mr Robertson. Mr Assange was released from Wandsworth Prison on conditional
bail the same day.
32.It was said by the “source” to the Working Group that Mr Assange was held in
isolation in Wandsworth Prison. I have not thought it appropriate to contact the prison
to find out whether he was held apart from the rest of the prison population; what I
can say is that the Working Group was quite wrong when it implied that Mr Assange
had been left outside the cloak of legal protection. Quite the opposite, he was
represented at the first and second hearings, by leading counsel at the second and the
bail package put together by his defence team led to his release on conditional bail. At
no stage do I understand that that bail package was challenged in court. There were
minor variations on certain dates to accommodate hearings in London and changes to
Mr Assange’s address but no changes to the residence, curfew or reporting.
33.As I hope is clear from the above, the “house arrest” and “harsh restrictions” referred
to by the Working Group which went on for 550 days were proposed by Mr Assange
himself. Mr Assange was staying in a country house, he had to be indoors at night
and had to attend the police station to sign on daily. I do not find those restrictions
harsh and there was certainly no such suggestion during the currency of the
extradition proceedings. The court (rightly as it turned out) had a fear Mr Assange
would not surrender himself to the court and to ensure his attendance the conditions
suggested by his lawyers were put in place. If the court had not been able to grant him
conditional bail, he would have been remanded in custody.
34.There was judicial management during this period of the proceedings and such
management was reasonable. Mr Assange could appeal at any point or apply to vary
the bail and it would appear from time to time that it was varied.
35.The Working Group considered Mr Assange’s stay in the Embassy as a “prolongation
of the already continued deprivation of liberty that had been conducted in breach of
the principles of reasonableness, necessity and proportionality” (paragraph 90). I do
not consider the 550 days on conditional bail to be a period of deprivation of liberty
6
but a restriction to Mr Assange’s freedom. I consider the same in relation to his
decision to live in the Ecuadorian Embassy.
36.It is true that he has restricted freedom in the Ecuadorian Embassy, but there is a
distinction between being held in Wandsworth Prison and living in the Embassy.
Firstly, he can leave the embassy whenever he wishes; secondly, he is free to receive,
it would seem, an unlimited number of visitors and those visits are not supervised;
thirdly, he can choose the food he eats, the time he sleeps and exercises. He can sit on
the balcony (I accept probably observed by the police and his supporters) to take the
air. He is not locked in at night. Importantly for a man who spends a great deal of
time on his computer, he is free to use multi-media, whether his computer or a mobile
telephone, in a way that prisoners are not allowed to do. I suspect if one were to ask
one of the men incarcerated in Wandsworth Prison whether conditions in the
Ecuadorian Embassy were akin to a remand in custody, the prisoner would dispute the
Working Group’s assertion.
37.My reading of the Working Group’s opinion led me to look at the dissenting opinion
of one of the members of the Working Group. This member of the group had
extensive criminal law experience at all levels of court. He said of Mr Assange’s
situation that it was self-confinement and 550 days of restriction of liberty rather than
deprivation of liberty and was not within the mandate of the Group.
38.Finally, the Working Group defines arbitrary; it explains that the detention can be
authorised by domestic law and still be arbitrary. The definition includes elements of
inappropriateness, injustice, lack of predictability and due process of law, as well as
elements of reasonableness, necessity and proportionality.
39.I do not find that Mr Assange’s stay in the Embassy is inappropriate, unjust,
unpredictable, unreasonable, unnecessary or disproportionate.
40.For reasons which must be clear I give little weight to the views of the Working
Group.
The third point
41. Mr Summers said that ordinarily the effect of absconding is to interfere with the
criminal process. This case was far from that paradigm. Mr Assange had sought to
engage with the process and asked to be interviewed. There was delay between 2012
and 2016 in which nothing happened. Delay was a justified concern of the Working
Group. The interview with Mr Assange took place and then the investigation came to
a sharp end. This is a significant factor in the interests of justice assessment of the
effects of his non-appearance. Mr Assange was not a defendant waiting out the
investigative process.
42. Mr Assange’s offer to make himself available to be interviewed by the Swedish
prosecutor from an early stage is confirmed by his Swedish lawyer, Mr Samuelson
(tab 3 of the latest bundle). The lawyer explained that from the earliest stage the
prosecution were told that Mr Assange was willing to engage with the investigation
by being interviewed. As soon as Mr Assange was interviewed the Swedish
prosecutor dropped the case. Mr Samuelson spoke about seeing but not being able to
7
copy certain texts which he said undermined the case against Mr Assange. It was Mr
Samuelson’s view that the prosecutor’s refusal to interview him earlier or give them
copies of the texts disadvantaged Mr Assange.
43. Mr Summers relied on a chronology at tab 6 and at tabs 4 and 5 copies of emails in
which a Crown Prosecution Service lawyer gives reasoned advice to the Swedish
prosecutor in January 2011 that she should not seek to interview Mr Assange in the
United Kingdom. Mr Summers also relies on an exchange of emails in October 2013
when the Swedish prosecutor was considering withdrawing the EAW; the Crown
Prosecution Service’s response was to send the link to Sweden about developments in
the United States and ask whether that affected their views.
44. At Mr Summers’ request I have not heard from the Crown Prosecution Service and I
cannot determine from the extracts of correspondence whether the lawyer in the
extradition unit acted inappropriately. It is too speculative to wonder what would
have happened to the Swedish case had Mr Assange been interviewed earlier.
45. Mr Assange’s failure to return has already led to three of the accusations becoming
time barred in August 2015. The fourth accusation of rape (“lesser degree” as it was
termed by the Swedish authorities) would have become time barred in 2020 had the
request not been withdrawn.
46. The Swedish prosecutor in her statement of 19th May 2017 explains that in the
circumstances executing the decision to extradite Mr Assange to Sweden is not
expected to be possible in the foreseeable future. She points out too that the
proportionality of the Swedish decision to arrest him has been repeatedly examined by
the Swedish courts.
47. In 2015 the Supreme Court in Sweden considered the public interest in the
investigation as well as the risk that Mr Assange would evade legal proceedings
against him. In 2015 the court decided that the continued arrest warrant was
proportionate despite the amount of time passed.
48. Ms Ny explains that on 14th to 15th November 2016 Mr Assange was interviewed by
two Ecuadorian prosecutors. The Swedes received the translation of the interview in
March 2017. Further investigative measures were taken and it was then not possible
to take any steps which would move the investigation forward. She said on 19th May
2017 that it had become less proportionate to maintain the arrest of Mr Assange in his
absence. She ends by saying that the continuation of the legal proceedings would
require Mr Assange’s personal appearance in court and there was no reason to
continue with the investigation.
49. Mr Assange relies upon the offers he made to be interviewed by the Swedish
authorities in the United Kingdom. I note that the Crown Prosecution Service advised
the Swedish authorities that there were downsides to this approach. I noted from the
Swedish Court of Appeal judgment in September 2016 that the Ecuadorian Embassy
had refused to allow an interview between Mr Assange and the prosecutor to take
place.
8
50. A request for mutual legal assistance was sent by Sweden to the United Kingdom and
Ecuador in Spring 2015. Whilst the United Kingdom accepted the request, Ecuador
did not. The Swedish government then took a separate initiative which resulted in an
agreement on mutual legal assistance in criminal matters between Sweden and
Ecuador in late summer 2015. The agreement came into force in December 2015, but
the request then made by Sweden for legal assistance was refused by Ecuador on
technical grounds. A new request (the third) was sent and accepted on 16th March
2016. As part of the agreement Mr Assange was not to be interviewed by a Swedish
prosecutor but by an Ecuadorian one and then the questions had to be submitted to Mr
Assange in advance.
51. Mr Assange’s complaints that the investigation was not being proceeded with in a
timely manner have been considered by the Swedish courts on a number of occasions.
Mr Assange was able to put his views to those courts and was represented at those
hearings. The appeal courts ruled against him. The investigator has made her
decision.
52. Mr Summers argues that the failing to surrender has had no effect on the proceedings
and has not brought them to a grinding halt. I do not agree. If Mr Assange had gone
back to Sweden when he should have done after he had exhausted the appeal
processes in this country, the Swedish prosecutor would have questioned him, then
either prosecuted him five years ago or discontinued the proceedings. The
complainants would have had their complaints resolved one way or another. Mr
Assange would have had the accusations resolved one way or another. The interview
on his own terms does not comply with the court’s order that he be extradited to
Sweden.
The fourth point
53. Mr Summers relies on what he says is the punishment that Mr Assange has
undergone. There is evidence of the medical effect of him spending four and a half
years in a small room. He has respiratory infections. Mr Summers says he has no
sunlight. He cannot leave the flat to have dental treatment or have an MRI scan on his
frozen shoulder. He is a resilient character but is suffering from significant
depression. For the first five years he was avoiding the extradition process but for the
last six months his incarceration is referable to his fears concerning exposure to the
actions of the United States if detained on this court’s arrest warrant. Even were he to
be committed to the Crown Court, Mr Summers argues, the maximum sentence for
failing to surrender would be 12 months’ imprisonment. He has served this sentence,
forfeited his own money and the money of his sureties. There is no residual public
interest in further punishment for failure to attend. It is disproportionate. The issue is
whether he has been punished enough for what he has done, whether it can be said
that it is proportionate and in the public interest to initiate the process.
54. I have read the medical reports. Mr Assange is fortunately in relatively good physical
health. He has a serious tooth problem and is in need of dental treatment and needs an
MRI scan on a shoulder which has been described as frozen. I accept he has
depression and suffers respiratory infections. Mr Sommers contends he has been
9
punished enough. I do not accept there is no sunlight; there are a number of
photographs of him on a balcony connected to the premises he inhabits. Mr
Assange’s health problems could be much worse.
The fifth point
55. Finally, Mr Summers points out that the law has changed since the Supreme Court
decision and Mr Assange would now not be returned to Sweden because of section
12A of the Extradition Act 2003. This section does not allow the return of an
individual if there are reasonable grounds to believe that the requesting State has
made no decision to charge or try and the individual’s absence from the requesting
State is not the sole reason for that failure. Having looked at the prosecutor’s record
of her decision dated 19th May 2017, Mr Summers is arguably wrong. In the last
paragraph of the decision Ms Ny states: “…In view of this, and that to continue with
legal proceedings would require JA’s personal appearance in court, there is no longer
any reason to continue with the investigation.” On the face of it, the reason for
stopping the investigation is Mr Assange’s absence from the court proceedings in
Sweden and on that basis extradition may not be barred were the Swedish request still
in place.

Bertrand • February 14, 2018 3:23 PM

@”Radio”

“…and one-sentence quote,” followed by cherry-picked smears as a summary of the entire ruling.

A selection is a selection, a cropping is an cropping, 8 sentences is 8 sentences of 10 pages.

“Like you, I did not reproduce the entirety of the ruling”

Picking 3 cherries makes for a nice pie but you left the crust out intentionally.
If your intent was not to smear Assange then you’ve done nobody any favors here.
Certainly not anyone interested in the relevant legal precepts.

My inclusion of the case-relevant text in total was not passed off as a complete summary.
It was however much more complete and a lot less overtly focused on smearing Assange.
An honest read can see that much, if.

Legally interesting, lol. Oh yes, the concept of legal proportionality is so interesting.
A fine point. Good luck with the confusion.

Bertrand • February 14, 2018 4:13 PM

“representative” not of any legally interesting precepts as claimed, (warrant law and proportionality), nor the legal basis for the meat of the ruling which was in dismissing his primary defenses without considering them based on thin judicial preference, not his 4th defense twice over as you selected for.

“So many words” + “wall of text” – Are you sure you even read the ruling?
You sure seem to be apprehensive about the text volume several times here.

It’s uncompelling to select three, (two actually) points from 8 sentences of 10 pages in a 7 year case as a “representative” legal summary, nor are they legally complex, novel or interesting in any way. Just the closing fluff comment presented as if it was all that was considered in it as though you hadn’t read the ruling or the case. As if it were that simple and reduced to those selected smears. If you can’t understand this, that does explain some of your confusion in promoting your personal selection as a “representative” summary. This is pretty basic stuff.

Bertrand • February 14, 2018 5:46 PM

“Why don’t you present a better, more representative sample”

Such points have been made above. That “wall of text” comprised of “so many words” is the body I posted to encompass your 8 sentence selection as summary, as you previously complained of it being difficult to read. Read it again if you need, it’s right there.

Your selection was blackletter warrant law upheld by rote and repeated twice on the point of proportionality in both 2 and 3, hardly novel. As opposed to appeal-considering grey areas of legal prudence in judicial preference in dismissing his primary defenses. The judge’s defense of basic warrant law by derisively intimating Assange’s valid legal calculus as arrogant in not submitting himself to a bench provably failing to consider his legal defenses or address his valid extrajudicial extradition concerns that have been borne true since, and as he was in contact with the court by correspondence and legal counsel the entire time, and as the Swedish court has dropped the initial half-baked prosecution in the first place, and in your decision to select only for that short smear as an “interesting summary” requires no further elucidation, lucem non poteris. Brevity is wit unless you’ve truncated information. I don’t believe you’re seeking any of those in continuing to defend what should be obvious or in asking to repeat myself.

Assange should be free to walk around after paying a modest fine. Defense of this ongoing charade is complicity, admitted by the court or yourself or not, and selections of smears as summary are evidence of nothing but that effort. Certainly not legal points of interest or value in defending rote law from a disallowed challenge. Happy reading.

Bertrand • February 14, 2018 7:00 PM

Or just read and say what’s interesting about it, 10 pages isn’t long. You’ve described it in 1 word.
‘Whiffing about’ instead of reading it serves you no legally interested nor interesting purpose.
If you contribute no actual interest then it’s what it is. Find the courage to admit one of the two.
What’s interesting about it to you?