Understanding the Wikileaks Grand Jury

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Summary of the Supreme Court decision

Today, May 30th 2012, the Supreme Court rejected the appeal opposing Julian Assange’s extradition but there is still hope the case will be reopened.

His solicitor, Dinah Rose QC had argued in February that the European arrest warrant was invalid, since Marianne Ny, who had filed the EAW, could not be considered a legitimate judicial authority.

With a majority of 5-2, the court rejected the claim. However, Dinah Rose stood to ask for an extra 14 days to request a reopening of the case at the Supreme Court. Reopening a case once a decision has already been ruled is very unusual in Britain and it is certainly a good sign that the court considered the request “reasonable enough.”

The Guardian, interviewed Julian Assange’s attorney Gareth Pierce, who explained Ms Rose’s decision:

Ms Rose has indicated that she may make an application to reopen the court’s decision.  Ms Rose suggested that the majority of the court appear to have based their decision on the interpretation of the Vienna Convention on the Law of Treaties, on which no argument was heard and no opportunity of making submission was given.

The Supreme Court has granted Ms Rose fourteen days to make such an application. If she decides to do so, the justices will then decide whether to reopen the appeal and accept further submissions (either verbally through a further hearing, or on paper) on the matter.

While some of Assange’s supporters, such as John Pilger, consider the court has to be taken to be the European court of human rights; his legal team is for now more measured.

During his last public appearance Julian Assange had appeared wearing a black Anonymous mask to get the world used to not seeing him publicly anymore. Today he did not come to court.

The US/Sweden agreement

Next Wednesday, the UK Supreme Court will officially release its decision regarding Julian Assange’s extradition to Sweden to respond to allegations of sexual offences, while no charge has been placed yet.

However if the founder of Wikileaks gets extradited Sweden may not be the final destination of this long legal journey.

Indeed in March 14th 1983 – while the Cold War was still dividing the world and influencing political and diplomatic decisions – Ronald Reagan, then President of the United States – signed a treaty with Sweden in order to “make more effective the Extradition Convention signed at Washington October 24, 1961,” in other words to facilitate the extradition of individuals considered criminals or potential criminals by the United States and Sweden.

This treaty would force Sweden to hand Julian Assange over to the United States, if the US was to ask Julian Assange’s extradition. Indeed, Article I states that “each Contracting State undertakes to surrender to the other (…) persons found in its territory who are sought for the purpose of prosecution, who have been found guilty of committing an offense, or who are wanted for the enforcement of a sentence.”

This treaty also applies to anyone suspected of “conspiring in, attempting, preparing for, or participating in, the commission of an offense.”

Hence a simple request from the United States would lead to Julian Assange’s extradition to the United States.

Technically the United States does not have to wait for Sweden to sort out the sexual offence allegations. Article VI(b) indeed mentions that someone prosecuted in the requested state (in Assange’s case Sweden) can be handed over to the requesting country (in this case the US) for the prosecution and may be handed back to the requested state after the decision has been taken, following an agreement decided upon by the two states.

With this framework the US could ask Sweden for Assange upon his arrival and after being prosecuted in the US for espionnage, the US and Sweden would decide whether he should be sent back to Sweden to eventually sort out the sexual offense allegations.

Article XII of the treaty could also have a decisive influence in the coming days – if Julian Assange were to be extradited to Sweden. The article indeed allows the provisional arrest of someone whose extradition has been requested. Interpol is in this case asked to intervene.

For more info on Julian Assange’s extradition to Sweden, take a look at Justice for Assange.

Understanding the Wikileaks Grand Jury will be live tweeting from the Supreme Court on Wednesday. Check out the blog or our twitter account (@wlgrandjury) for frequent updates starting from 8:30.

 

Erratum

Apologies to my readers: I had made a factual error in two posts, suggesting the Wikileaks Grand Jury had started in May 2011. While the hearings may have started then, the grand jury itself was known of by the public since December 2010 and Wikileaks says it started on September 15th 2010. The posts have now been corrected. Sorry again!

Eric Holder, portrait of a man who matters – Part two: what the cables revealed about him

While the release of the Cablegate has unveiled his resentment against Wikileaks, Eric Holder was already known for his actions in the war against terrorism. A partisan of the “shoot first, ask question later” theory, he reminds the executive branch must make “real-time decisions” when handling terrorist.

Wikileaks cables have also revealed that when the Spanish interior minister visited Eric Holder they had signed an agreement allowing the sharing of fingerprints and other data of terrorists and criminals, “while protecting individual privacy”. The cable did not mention what measures had been taken to protect individual privacy…

Another cable from Madrid has shed light on the case of a NGO, which attempted to file a complaint against six US official who had created a legal framework to allow torture in Guantanamo. Since Spanish citizens had been tortured the NGO had hoped to see the American officials judged in Spain. Chief Prosecutor Javier Zaragoza acted as an informant, providing information on the case and potential flaws in the complaints. Eventually Spain declared that the NGO would have to file the complaint in the United States. The cable mentioned that meetings would be organised between Chief Prosecutor Javier Zaragoza and Eric Holder.

A cable from Rome showed Eric Holder was involved in discussions with other countries regarding the “relocation” of Guantanamo detainees.

However the cables mainly reveal the important influence of the US in law enforcement and criminality questions abroad. Eric Holder has thus been found helping Iraq in reinforcing its fight against criminality  and in “strengthening the Iraqi judiciary.”

A cable from Barbados, where Holder is originally from, depicted a similar desire to “modernize” the judicial system of other countries and develop cooperation in crime and security.

This intervening attitude the US have adopted toward other countries’ judiciary is an element that has already played an important part in Julian Assange’s legal fight against the United States, with the refusal of Australia to show any form of support, and may well influence his future battles.

What we learnt from the Stratfor emails – part two: Stratfor, a key player

The emails have also revealed the close attention Stratfor has been paying to Wikileaks and the company’s involvement in attempting to convict Assange. In June 2010, Fred Burton wrote the following email:

Is he an Aussie?

As a foreign national, we could revoke his travel status and deport.

Could also be taken into custody as a material witness.

We COULD have a sealed indictment and lock him up. Depends upon how far
along the military case is.

Again the email raises obvious interrogations as to what the implications of Stratfor were on the Grand Jury and this mysterious indictment. In an email from December 12th 2010, while Julian Assange was in Wandsworth prison, Fred Burton sent an email announcing that he had informed Sky News of his “concerns for US extradition.” Five days before Fred Burton, responding to a chain of emails on getting Assange arrested had written:

Will take weeks for extradition, unless he waves the process. DOJ [Department of Justice] (Holder) won’t seek prosecution on their own, but look for the GOP (Congress) to press for criminal prosecution. Be easy to indict. I would pursue Conspiracy and Political Terrorism charges and declassify the death of a source someone which I could link to Wiki.

That chain of emails reveals the “brain storming” undertaken to hamper Wikileaks’ work. In that same chain Burton wrote:

One other point is this. Ferreting out his confederates is also key. Find out what other disgruntled rogues inside the tent or outside. Pile on. Move him from country to country to face various charges for the next 25 years. But, seize everything he and his family own, to include every person linked to Wiki.

Sean Noonan was an analyst who seemed to have a central position in the discussion regarding Julian Assange’s. According to him

All this trouble with internet hosting could serve to slow down this set of leaks. And maybe a combination of wikileaks arrest and server shutdowns could stop it.

Different ways to pressure Wikileaks and whether the organization would outlive Julian Assange were discussed:

Yes, like Fred’s source pointed out–arrest and trial would just be a political circus. It would probably not disrupt wikileaks. BUT, occasionally a leader makes an organization, and maybe no one as capable will be willing to fill his shoes. Or at least, won’t be able to get as much publicity for wikileaks. As you also said, it could tarnish both Assange’s and Wikileaks’ repution. That could serve to discredit and undermine the group. Maybe people would be less inclined to leak to it, or the public would be less inclined to pay attention–or more importantly support wikileaks financially. Though I admit the chance of this causing the public to pay less attention is minimal, and in fact would probably increase attention on the guy. (though personally, getting a rapist off the street is getting a rapist off the street. Also, his mom owns a puppet theater…)

If Assange is running the show and his staff isn’t as confident as he is, then arresting him now could very well stop the flow of cables. But all it takes is one person to keep it going – or just dump them all at once if it gets too dicey, and these files have been very widely distributed so far. I can’t imagine anyone reclaiming all the documents now.

In a different chain of emails, Burton explains:

The espionage laws, believe it or not, do not make an exception for
reporters, Martin says. However, as a matter of policy, reporters and publishers have never been charged under espionage laws.

To which Sean Noonan replies:

This seems like a pretty good analysis. Certainly better than most of
our own conjecture. ‘Given that Assange has run hundreds of thousands of classified documents on his web site, each one that is properly classified could be included as
a separate count of an indictment.’ I look forward to Manning and Assange facing a bajillion-thousand counts of espionage.

A privately owned intelligence agency, Stratfor seems to reflect the issue of all secret services: its obscure interferences with the rest of society and the legal system in this context.

What we learnt from the Stratfor emails – part one: what sealed indictment?

In spite of the golden rule of secrecy, some of the 5 million emails from private global intelligence company Stratfor currently being released by Wikileaks, have suggested the grand jury and its decisions have not been kept secret for everyone.

In an email from January 26th 2011 Fred Burton – vice president of Stratfor for Counterterrorism and Corporate Security and a former Deputy Chief of the Department of State’s counterterrorism division for the Diplomatic Security Service – wrote:

Not for Pub –

We have a sealed indictment on Assange.

Pls protect

The timeline is particularly interesting: the grand jury hearings were said to have started in May 2011, when a witness from Massachusetts was subpoenaed, and the grand jury probably started a few months before around December 2010. Was Fred Burton referring to an indictment from a different court? Were the witnesses requested to testify although a decision had already been made?

The term “grand jury” is used in none of the 973 emails released so far, which forces us to wonder to what extent the whole procedure in Virginia is not a travesty of justice to provide a legal ground to Julian Assange’s potential future arrest.

Sealed indictments in grand juries are however a legal option mentioned in Rule 6(e)(G)(4) of the Federal Rules of Criminal Procedures to prevent the decision from being known before the defendant is in custody:

Sealed Indictment. The magistrate judge to whom an indictment is returned may direct that the indictment be kept secret until the defendant is in custody or has been released pending trial. The clerk must then seal the indictment, and no person may disclose the indictment’s existence except as necessary to issue or execute a warrant or summons.

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