Assange to be put on ice in Sweden

Last month a Swedish prosecutor, Marianne Ny, raised the possibility that, after first dealing with allegations of sexual misconduct, Assange could be extradited from Sweden to the United States.

He could be indicted by a grand jury meeting in secret near Washington D.C. to consider charges against him related to the publication of leaked American military and diplomatic documents. The Swedish prosecutor expressed little qualm flagging the extradition a non-European Union national to a non-EU jurisdiction. Assuming that the United Kingdom (being the country that surrendered Assange) consents. And it must consent - otherwise there can be no extradition.

Mark Stephens, one of Assange's London lawyers, has often expressed his fear to Al Jazeera that Assange would be travelling to Stockholm to do no more than to change planes for a fateful flight to Washington. But an associate at his practice, Jennifer Robinson, told Salon (an American online news site) that the existence of a grand jury was still "purely speculation."

Robinson also shed light on Assange's fate recently when interviewed by Fran Kelly on ABC Radio National, where she revealed that bail in Sweden is not granted to non-citizens. Assange could be in Sweden forever.

The Americans would surely prefer to extradite Assange from Sweden (rather than Britain) to face charges stemming from the Espionage Act (1917) because they have already spent years trying to get Britain to hand over a computer hacker. Gary McKinnon hacked into over 90 computers belonging to the United States Defence Department and NASA, searching, he asserts, for information about Unidentified Flying Objects.

But, even though a grand jury in Virginia indicted the then 37 year-old hacker back in 2002, the legal battle to remove McKinnon from the United Kingdom is still grinding away over eight years later.

In order to be extradited from Sweden to the United States, Assange has first to get to Sweden. This can take place after he loses every appeal against extradition. And on 2^nd November, in the High Court (Divisional Court) in London he came pretty close when the court rejected his arguments against his expulsion from the UK. Assange focused on four points - all of which were rejected by the Court.

The European Arrest Warrant had not been issued by a 'judicial authority'.

Assange contended that for the purposes of the Extradition Act 2003, the authority couldn't be the Swedish prosecutor. Sadly for the Australian, the Court concluded that although a prosecutor issued the warrant, the said prosecutor was a judicial authority under the 2003 Act.

The sexual offences as described did not meet the dual criminality test (a principle of extradition that a person should only be extradited where the conduct is an offence under the laws of both the State requesting extradition and the State from which the person's extradition is sought). The Court ruled that dual criminality was satisfied.

In regards to the offence referred to as "rape", Assange claimed that the allegation does not amount to "rape" as described by the Swedish Prosecutor. This claim the Court also threw out.

If Assange appeals to the Supreme Court and loses, or if he doesn't appeal, Theresa May, the Home Secretary, will be well within her rights to render Assange to Sweden.

While most of the attention regarding Julian Assange's possible extradition to the US has focused on the EU agreements that are meant to impede extradition - namely that the UK Home Office would have to consent to his extradition, little or no attention has been given to the temporary surrender (also called 'conditional release') mechanism that Sweden established bilaterally with the United States 27 years ago.

Under this treaty, Sweden may: "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...".

Temporary surrender allows for the swift and 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.

This would appear to bypass 'traditional' extradition safeguards. While the scheme is intended to combat serious crimes (such as drug trafficking and terrorism), the United States Attorney General, Eric H. Holder will likely argue that Assange is no less a threat to the Western struggle against Global Jihad than is the proverbial net- savvy Taliban fighter who has moved his jihad online.

Holder will, more assiduously than would be expected, demand Assange's extradition given he's under an unrelenting attack over his role in Operation Fast and Furious. Any diversion of the attention of the 51 congressmen seeking his resignation would be a welcome.

Under this procedure, Assange can be 'lent' to the US for prosecution on the condition that they will be returned for prosecution in Sweden at the end of his sentence (to stand trial for the 'lesser' offence of sexual misconduct once more evidence is gathered).

This procedure is much, much faster than a formal extradition. His solicitor, Gareth Peirce (best known for her role as defence lawyer for the Guilford Four) confirmed that she would ask senior judges in London on 5 December to certify that the highest court in the land should consider his case. But to do so she must establish that his case raises "a question of law of general public importance".

If she manages to pull such a rabbit out of her hat and convince the Court that indeed there is a question of law at stake, then she would have bought Assange at least three months more in the comfort of Ellingham Hall in Norfolk. If she fails, then Assange could be on the next flight to Stockholm out of Heathrow.

Should the Swedish Prosecution Authority conclude that conviction is very unlikely and that there is reasonable doubt about Assange's culpability, then with no certainty of guilt, if tried he would most likely be found not guilty. At least that's what Per-Ole Träskman and Sakari Melander contend.

All the more reason to believe that Assange will soon jet into Stockholm with just enough time for an airside court appearance before changing gates and boarding the last flight he'll be taking for a very long time.