Assange, various governments and the cul-de-sac of misfired moves – 17 August 2012

Anyone approaching this subject must do so with some trepidation. Everyone involved in it appears to have got terribly excited. Getting terribly excited is bad for policy-making. Excited is the opposite of effective. This is why revolutionary governments tend towards the basket-of-frogs-with-party-hats-on zone reasonably quickly, or at least within forty years…

And the commentariat have also got excited. That’s within their remit (mostly) and bless them as being excited sells whatever deadtree press or online thing they write for. So, I’m going to go for the most sober line I think of. Because if you can’t write soberly on an academic blog that doesn’t have an income stream.. where can you?
So, we have Julian Assange holed up in the Ecuadorian embassy in Kensington, and claiming asylum on the basis that he fears current and future persecution mostly from the Americans, but via the British and Swedish along the way. And the Ecuadorians agree with him.

He’s wanted for questioning on some (very unpleasant) allegations that seemed to flare up, go away, and then come back again. And whilst all of this is contested, the particular circumstances, timeline and dynamics involved in the Swedish legal machinations have led his supporters to strongly suggest that the allegations aren’t the real problem, it’s all just about getting Assange to America to face charges of assisting the enemy. His supporters say they have evidence, or certainly informed clues (but none of it publicly available), that American authorities are lining up to prosecute Assange and in extremis not just to take the oxygen of publicity away from him, but the oxygen of oxygen too. If that were true, it would make it very difficult to extradite Assange from Europe: the prevailing European laws prohibit extradition to countries that maintain the death penalty for the specified charges. But I haven’t seen any legal opinion yet (amongst the excitable commentary) as to whether the US could extradite him on spec charges of being of pain-in-the-rear and then feed the higher charges in afterwards. Once he was in the US, I assume this is possible and besides exactly which of the UK and Sweden would tell them that was naughty?
In going to the Ecuadorian embassy, Assange played on one of the oldest and firmest international traditions – the inviolability of an embassy. I don’t want to meander into excitable territory – I had a good breakfast, and I don’t want the dust unsettled – but this inviolability is the lubricant in the diplomatic machine. Not even head case governments’ troop into embassies to extract people they don’t like. Rarely even in wars. And a raft of former British ambassadors to ‘interesting’ places filled the airwaves yesterday saying their jobs would have been impossible if host countries thought it acceptable to raid embassies. If for no other reason, think of the intelligence problems of having host country security personnel crawling over an embassy, containing sensitive files, cryptography etc. It is actually beyond the pale. Which then raises the question of the relative value of Assange (I will return to the law in a minute) in diplomatic terms. Is one man with a website (albeit a highly embarrassing website if you happen to be a diplomat who has written cables in the last five years) worth overturning well established precedent and international law for? I’m not sure yanking even Pol-Pot from embassy is worth the upheaval of this precedent… not unless someone else can fund the enhanced security that would be needed at every single British embassy around the world. As much as I love my country, I realise that other misguided fools are not so keen. So, as to his relative value – well, for all the talk of upholding binding obligations (yes, true and fine) there is a sort of determination here that seems out of kilter with the norm. We held on to Pinochet like he was some kind of family member, and we don’t seem to be able to get rid of people labelled hate preachers no matter how hard we try. The excitable and non-excitable commentariat simply don’t know what the diplomatic value of Assange is because we’re not privy to the behind the scenes discussions.
The Ecuadorians have accused the British Foreign Office of threatening them. The FCO has replied that it was merely outlining the position as they saw it. The most likely scenario is that some well-meaning desk officer in Quito thought they’d gently lean on the Ecuadorians who – after all – are not known for being bastions of human rights and fair play (recent upheavals have been messy). And they thought the gentle lean would mean that Ecuador would see the correct path, and all would be over. Well, Assange would be in the news again, and a load of high profile backers would stumble over their tofu slippers to say what an outrage it all was, but ultimately all would be fine. But the Ecuadorians hadn’t read this script and had, what is termed in diplomatic circles, a hissy.

 

So, now the Ecuadorians cannot back down – not happily – or they’ll look like a small post-colonial state who tried to make a big point and then had to back down. And the British government cannot afford to back down or they’ll presumably get a clip round the ear from Uncle Sam, and also be pilloried from most sides. At the moment, they also look like they’ve have a collective hissy, which is the sort of excitable position that makes for bad policies…it’s very un-FCO.
And that leaves the Swedes.

And the Swedes, as they have in other situations, could interview potential suspects outside their territorial area. There are suggestions this has been offered to them. But the Swedes – with the European Arrest Warrant booklet in their pocket – have decided they want face time. And really it has come to the point – in layman’s terms – where they either need to poo or get off the pot (charge Assange or not). Because to do so – either via an interview in the UK or by video-link – would provide clarity. If charged there would be far fewer objections to him being extradited: only a very small minority could reasonably complain. If not-charged, and positively indicated that this was the end of that particular process, then the US could bring an extradition request to the UK (if they did that now, they’d sit behind the Swedes in the line). This would at least bring the issue to a neat head.

So, sorry Sweden, but it’s your turn to be pragmatic. And to start building Saabs again. Great cars, Saabs.. why did you ever let Saab go bust… Because no-one else is going to be pragmatic, and this is going to end up in one of the most voluntary diplomatic cock-ups of the modern era unless you are.

Postscript:

Having a free press involves allowing accredited people to say things that we don’t like within a legal framework (which sometimes includes a public interest defence) and to hold officials to account, and to be protected to do so. This is, after all, how Watergate broke and broke a Presidency. Legal systems are the means by which vengeance is put to one side and due processes and equity come to the fore. For my part, I don’t think that our common understanding of what journalism is has caught up with the internet revolution – and perhaps in time the settled position will be the traditional status quo. But these questions are important, not just with reference to Wikileaks and Assange, because it is precisely because these new media outlets are neither settled as one thing or another that their legal protection or ostracisation are so fluid and contested. What we can observe is that this particular form of the freemarket seems at distinct odds with any form of regulation: further friction seems guaranteed.

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