FEB 7 ASSANGE

A Hearing was held today in the U.K. on the matter of extraditing Julian Assange – Wikileaks founder – to Sweden on allegations (they are not yet ‘charges’) of sex offenses comprising some form of abuse and some form of something that may or may not rise to rape (not being snarky here; read on).

Here’s what I’m going to do. There are several articles and I’m just going to review them quickly for a couple of choice and relevant points. Links provided and I always urge you to read them yourself.

THEN I am going to review (you of course get the link to the document itself) the Submission made by Assange’s lawyers to the U.K. court. I consider it to be hugely revealing not only of matters relevant to Assange’s case (the man is, in this regard, somehow caught up in the toils of the SO Mania) but also reveals stunning material about how the Regime works in Sweden and yet also some of its more hidden dynamic principles.

So let’s get to it then.

First is the AOL article which appeared on here.

Swedish rape trials are held in secret (in camera is the Latin legal term for it, like the Courts of Star Chamber which the Framers most assuredly did NOT want happening . More on this when I get to the court filing.

In response, the British lawyer representing Sweden in the British court pooh-poohed the problem thus created by cheeribly pointing out that the evidence – such as it might be – “will often be published after the trial and recited in the judgment”. Note that first of all there is no guarantee that the said ‘evidence’ would be revealed. And second that there is absolutely no way to independently confirm that what you are getting in the official publishing is what actually was presented in the trial.

Note also that this taking-the-government’s-word-for-it is not a classic American principle. Quite the opposite. Note also that since the days of the SO Mania’s establishment the US government has really amped up the insistence that we just take their word for it and ‘trust them’ – and now there’s all that torture stuff and so on. But Americans were to trust the government, that it would never do anything wrong or dumb while exercising the freedom that public trust in government secrecy confers.*

The article respectfully repeats the conventional excuse, here made by the Swedish government, that the rape trials are held in secret “to protect the alleged victims”. But – and this will come up again in the review of the court filing – the need for openness in court trials is so profoundly important that no other consideration, no matter how legitimate, can be accorded primacy over it. This was PRECISELY the vital jurisprudential and constitutional firewall that Victimism’s lurid and stagey-cagey emphasis on ‘outrage’ and ‘pain’ was designed to overcome: get people so worked up that they would allow the destruction of key principles that constitute the foundation of the American system of law and government.

Assange’s attorneys note that he has not even now been charged with a crime. This will be dealt with in the court-filing commentary, but suffice it to say here that the fact undermines the validity of the warrant issued for his apprehension.

The crime for which Assange is not yet charged is known in Swedish law as “minor rape” – a concept which fails so many tests on so many levels that you start to wonder if the Swedes haven’t actually set out here to parody themselves and all of feminist/victimist -inspired rape law.

Assange’s attorneys raise the point that if he is extradited to Sweden, there is no small chance that he will somehow wind up being extradited to the U.S. or into U.S. control on some form of charges arising from the Wikileaks document release, with the sex-offense stuff either being disposed of or ignored for the pretext that it may well always have been. The Swedish government insists that such things would not happen because there are “strict rules”, but in matters of the SO Mania there is a strong tendency for government to ignore the rules, or at least to ignore those rules which it has not already subverted in the name of ‘reform’.

The article helpfully points out that in Sweden it is considered a crime to have sex with a sleeping person. I am not contesting that any actually nonconsensual sex is reprehensible. But I can’t get my mind around how one can have sex and actually remain asleep through it. But I am not widely informed on the subject, through reading or experience. Unconscious, is one thing – but simply ‘asleep’?

‘The Guardian’ newspaper (a U.K paper that used to be the old ‘Manchester Guardian’) has taken a different tack. It sent a reporter over to Stockholm – as best I can make out – so that she could file a report that would enable feminists to do some damage control for themselves (thereby also fronting for the Swedish government and doing some of its dirty work for it) before anybody actually got to look at the court filings.

This conforms to the cynical assumption that most uncommitted folks will simply go with whatever ‘story’ captured their attention first. And that the committed ‘true believers’ would simply need to be given a set of talking points (and thinking points) that would enable them to go on believing.

It may also be of relevance that Assange had at one point threatened to sue the paper for libel.

Aside from reading a bit like a script treatment with a story-like setting of the scene, the article’s gambit is to present the feminist position as one that “many Swedes” espouse in the case, hoping to create some actual support by ‘reporting’ that it already widely exists.

She interviews a columnist, Johane Hildebrandt, for a major Swedish paper: while Hildebrandt is all for Wikileaks and internet freedom, yet “with the rape charges, Julian Assange lost all credibility”. Which is a bit odd for a major professional journalist: if these are only charges (and they haven’t even risen to the level of legal charges yet, after all this time) then how can she so quickly and totally have her mind changed? And is there any proportion between the (lack of) seriousness of the charges and the profound issues that Wikileaks has brought to light? And even if the ‘charges’ were true, how could they affect Assange’s credibility? Indeed, what ‘credibility’ is involved? He isn’t publishing his own opinions – he’s simply publishing documents.

Hildebrandt, of course, isn’t being interviewed for intelligent comments; she’s there to get the Memo out to the cadres courtesy of her sister ‘journalist’ and the good offices of the axe-grinding ‘Guardian’. Thus the article gives her the chance to lay down the mantra-lines: “What’s he afraid of in Sweden? What’s he hiding?”

This is a familiar gambit in the SO Mania, and a treacherous one: If by any chance the accused – on his own or through counsel who know how bad things are under the Regime – decides to avoid putting himself into the teeth of the thing, out of prudence and a hardly-unjustified fear of how this wild thing will maul him, or if he gives comments that don’t play into the desired script, then you accuse him by insinuating questions: What’s he afraid of if he’s innocent? What’s he hiding? Verrrrrry kewt.

But then Hildebrandt tries to lay it on even more thickly, is faithfully ‘reported’ by her sister colleague, and winds up going through the weird door: “In my view, Julian Assange was a priest who turned into a clown when he started criticising the system here. A freedom of speech priest who wanted to reveal everything but his own story.”

Say what?

The ‘priest’ bit is a clumsy (one might almost say stupidly clumsy) attempt to somehow tie in Assange to the priest-abuse scandals. The idea, I think, being that he was supposed to be a trusted authority figure who turns out to do all the things he tells other people not to: in this case, he was a free-speech advocate who was being very secretive about his own life. I imagine that this trope will start to turn up in assorted group sessions all over the place.

Hildebrandt is then quoted as saying that “one hears frequently from Swedes” (meaning this is what she wants you to think about what the Swedes are thinking) that they have gone from being supporters of Wikileaks to saying ‘We’ll see when the trial is up’. Again, are Swedes really as dumb as Hildebrandt seems to be … that somehow Assange’s sex life is a valid indicator of how much they should trust the Wikileaks document publications? But this gambit does, I think, show that it is a major dovetail objective of both feminist-victimists and of the Swedish government to somehow discredit Assange: either as a male or as a revealer of governmental skullduggery.

But there is a bit of ‘the other side’, nicely. A former Swedish chief prosecutor can’t see why Assange “is being sought in Sweden for questioning when he was permitted to leave the country, and has not been allowed [by the Swedes] to be interviewed in Britain”. As a prosecutor, he says, you’d want to interview him as quickly as possible so as to see if you had a case at all, and then the extradition problem wouldn’t arise.

But of course that’s not how the Swedish prosecutor has gone about things.

Still, he has to keep his union card. While he admits he certainly wouldn’t have done things the way they’ve been done in this matter, he pooh-poohs any idea that there are any outside pressures that are distorting the process, nor does he think that the current prosecutor has made so many mistakes (been so “unorthodox”) as to render the whole thing legally illegitimate. (Think of him when you see what the court filings reveal.)

A former prosecutor “who frequently works on rape cases” (I’m thinking not for the defendant male) says that in regard to the sudden reversal of the reversal of the prosecutorial dismissal of the initial case you have to realize that any prosecutorial decision can be appealed and that “10-13%” are actually reversed, so - she says – “it’s quite common”. One out of ten doesn’t strike me as quite common; you certainly wouldn’t stay in business with a track record of a 10 percent fail or success rate.

As for the attorney who represents the two allegators, who was asked whether his clients fully support the move to proceed against Assange, he responds "Yes, yes. They do. At the same time, maybe, if they had known from the very beginning what would happen, maybe they would not have gone to the police at all. I don't know." So, if you had trouble following the bouncing ball there, it’s: Yes, Yes, I don’t know.

I will not descend to Swedish jokes but just how does anything get done in conditions of such general and deep confusion?

A Swedish feminist and the justice minister – thank ya verrry mutch - “has worked hard to educate police and prosecutors about sex crimes, resulting in increased confidence in victims to report crimes”. The SO community is familiar with such ‘education’, and that the increased confidence has been purchased at the stunning expense of fundamental legal principles whose corruption effectively removes any danger of being held accountable for false reports, false accusations, perjury, or obstruction of justice. And when you are a cop and the Justice Minister is doing the ‘educating’ … well, how’s that going to turn out, d’ye think?

Madam Ministrix cawn’t think why (she is “bewildered”) there would be any suggestion of “political pressure” from the US or anywhere else. Ovvvvvvv courssssssssssse. The US would no more consider exercising pressure on a sovereign foreign government than the victimist-feminists would consider twisting arms in the law enforcement system once they got a few cadres into big-office and gold-badge jobs.

“For what reason would there be political pressure?” she asks. This woman is either promoted wayyyy above her competence level or else she is not telling the truth. The reporter stenographs it all respectfully – this is, after all, an important Memo for the cadres.**

Lastly, ‘The Daily Telegraph’ (another U.K. paper) adds a interesting point. A former Swedish Appeals Court judge appearing as an expert, “described the behaviour of [the Swedish prosecutor] as ‘extremely peculiar’”. It’s peculiar in the extreme because, the former judge says, Assange could have been interviewed in any number of ways (over the phone or internet video) without any of this extradition brouhaha at all.

Well what is going on here then?

The judge has an answer: she thinks that the prosecutor (prosecutrix?) “had a rather biased view against men in the treatment of sexual offence cases … they seem to take for granted that everyone under prosecution is guilty … it looks malicious … I think maybe she wants to make him suffer”. That has a familiar ring to it.

But the judge isn’t finished yet: the prosecutrix is “involved in sexual politics” and that’s “very much” a political issue over there. Over here too.

But I still can’t rule out that sexual-politics in the feminist-vicitimist and SO Mania mode dovetails nicely with – and actually shares blood lineage with – governmental skullduggery, secrecy, and the undermining of the rule of law as it has been evolved in the West over long centuries.

So much for the articles.

The 74 pages of the Assange attorneys’ Skeleton Argument (the formal British legal term for it) are remarkably readable, more so than many American legal documents. I would urge you to look it over yourself, not only for the material I will mention here as relevant to the SO Mania but so that you can see for yourself just how much of a dragon these knights are facing. The SO community here will not be surprised at any particular point, I think, but to see the sum of this thing as it has mutated … you realize just what has been created that is now threatening the foundations of the West.

I mean that. Reading this filing, I suddenly got a sense of what the old Godzilla movies were actually driving at in the early 1950s: the advanced nations actually aroused an ancient monster and created this present threat and now it’s running around loose. But at least in the old Godzilla movies, people had the wit to recognize the threat for what it was, and government had the decency to send in the military to try to stop the thing. Nowadays – a sign of how far worse off we are than the early-1950s folks – the monstrous threat is taken for ‘progress’ and, at worst, a cheeky and prickly transgressiveness. It is a dragon and it is here.

The link to the pdf of this document is here.

Number 3 (pp.2-3) lists quickly the 8 major points that Assange’s attorneys will raise as they proceed through the Argument. Since I’ll be saying a bit about each as we go along, there’s no need to do so here.

Number 6 (pp.6-7) gives a factual Overview of the original matter. Among other things, he had gone to the Swedish police station and been interviewed at that level ; the current prosecutor (Marianne Ny) is not a national-level prosecutor but a gender crimes prosecutor in Gothenburg who somehow overruled the Senior Prosecutor in Stockholm (the national capital) and then re-opened the case and appointed herself as the case prosecutor; she refused Assange’s offers to be interviewed before he left Sweden - very legally – in late September; and in late November issued – claiming she had the authority to do so – a European Arrest Warrant (EAW) claiming all along that she sought to ‘interview’ Assange.

Further (Number 15, p.8) Ny did not submit her Statement in response to this filing until 12:30 pm on the afternoon of the Hearing, giving them – and I won’t accept ‘by coincidence’ – almost no time to include her remarks in their filing. Eiither Ny is verrrry incompetent or she is trying verrrry hard to screw things up.

To further gum up the works, the prosecution (Sweden, represented in this British court by a British attorney), while demanding that Assange’s attorney produce their Expert Witnesses for cross-examination, introduced Ny’s Witness Statement but did not make her available for cross-examination. This is not the behavior of folks who are trying to either get to the bottom of the matter or are trying to air a strong case in full view.

The first issue (starting at Number 16, p. 9) is that Ny did not have the authority to issue the EAW in the first place. The European statute requires that each State (national government) appoint “competent judicial authority” for issuing these EAWs. Ny is a prosecutor, and not even the chief prosecutor (Prosecutor General) of Sweden. The EAW itself merely refers to its issuing authority as “the Swedish prosecution authority”; no name, address, or phone number is given for it, which is not surprising, really, since no such entity exists in the Swedish government.

She further describes herself in the EAW as the “director of Swedish prosecutions” and – wait for it – no such Office exists in the roster of the Swedish government. She’s sort of – I can’t resist it – playing dress-up here.

Thus, say Assange’s attorneys, the EAW is invalid on its face and it is a mystery how the (British) Serious Organised Crime Agency (SOCA) should have certified the thing as legitimate in the first place. A most curious and significant oversight by presumably professional top-level law enforcement.

Worse, when queried on the point by Assange’s attorneys SOCA simply referred them to a Swedish government document that, SOCA said, would demonstrate that Ny had the authority to issue the EAW and it turns out upon reading it that the document does nothing of the sort. So Ny “does not hold that non-existent office, and has not been [formally noted by the Swedish government] as an issuing authority”. (Number 20, p.11) When last head from, SOCA – which certified the EAW as valid – merely claims that it has no power to withdraw the EAW, quietly evading the key question as to whether it has the power to withdraw its own Certification of the EAW such that British law enforcement authorities must enforce the EAW in Britain.

The second issue, flowing from the first, is that Ny is not a “competent judicial authority” (starting at Number 22, p.11). With a refreshing British directness, though always polite and understated, Assange’s attorneys state that “to describe a prosecutor as a competent judicial authority is a contradiction in terms”. (p.11) Clearly, a prosecutor is not an impartial judge but rather a “partisan” player in the trial process.

The third issue (starting at Number 26, page 13) is that Ny actually committed an “abuse of process” by issuing an EAW, reserved for the arrest of accused and charged defendants, merely for the purpose of getting him to Sweden for ‘investigation’. This is quite possibly prosecutorial misconduct on an international level. At the time (December 10, 2010) she issued the EAW she had stated that she did not intend to prosecute him, as is required for the EAW to be valid. (Number 31, p.14) She had even stated so clearly in a letter responding to the Australian Ambassador’s (Assange is an Australian citizen) request for clarification. (Number 35, p.15)

She couldn’t claim that she wanted to prosecute him, actually, because then she would have been required at that time to make available to his attorneys all the relevant materials pertaining to the charges against him – and she has proven remarkably reluctant to show Assange’s attorneys any evidence she claims to have against him.

In a pithy summary of the corner into which she has now painted herself, Assange’s attorneys point out that either A) she has made the decision to prosecute him and therefore she is legally – even under Swedish law – required to turn over all the evidence to his attorneys; or else B) Assange is not being sought by Sweden for the purposes of prosecution, in which case there is no basis to the EAW and no grounds for extradition. (Number 39, p.17)

It also comes out here (Number 40, p.18) that she signed her Witness Statement on a Friday afternoon before a Monday Hearing, thus guaranteeing that it would not be delivered to Assange’s attorneys until the day of the Hearing, by which time they would not have been able to fully incorporate her Statement in their Skeleton Argument filing. Again, either incompetence here or else a sleazy effort to gum up the workings of justice.

Thus, having refused to interview him in Sweden and having even personally allowed him to leave the country legally, her claim in the EAW that all efforts to interview him had failed are – again to put it politely – “highly inaccurate”. (Number 42, p.19)

Contrary to normal usage, in which the sought-party is characterized as the ‘accused’ or the ‘offender’ or the ‘defendant’, Ny’s EAW simply and consistently refers to Assange by name with no characterization whatsoever. (Number 48, p.21)

Indeed, she is also not accurate when she claims (Number 50, p.22) that Assange’s absence is the “sole impediment” to completing the investigation. She has still failed to interview key witnesses who allegedly can provide exculpatory evidence and the condom (one allegator claims he deliberately ripped the condom before using it for sex) is still being examined by a laboratory “which reports that it has no expertise to do the analysis”. (Number 50, p.22)

In Number 65 (starting on p. 27) Assange’s attorneys list further evidence of Abuse of Process: contrary to Swedish law, an acting prosecutor illegally released Assange’s name to the media as a ‘suspect’ in a rape investigation; the appeal which led to the reinstatement of the complaint was a secret process from which Assange’s counsel was excluded – a blatant breach of applicable European judicial regulations and procedures; the repeated refusal to interview Assange except on Swedish territory constitutes unreasonable demand – again a breach of applicable European judicial regulations and procedures; Ny’s office continues to refuse all requests to make evidence available to them in English (she had sent some initial reports along in Swedish); Ny’s office has made excerpts of evidence available to the media.

Additionally – and rather stunning it is to find this out – the Swedish government will pay for an attorney to publicly attack the credibility of an accused rapist even before he is formally charged; thus in this case one Claes Borgstrom, noted feministical supporter (quoted above as saying Yes, Yes, and also I don’t know). Apparently the dangers of character assassination and prejudicing a fair trial are not  high-priority concerns in feminist-victimist shaped Swedish rape law.

The fourth issue (beginning at Number 66, p.28) is that the EAW is not valid because it is not for the purposes of prosecution and fails to provide sufficient particulars.

Nicely, European law and courts hold that “mere suspicion that an individual has committed offences is insufficient to place him in the category of an ‘accused’ person”. (Number 67, p.29) This is contrary to the American Mania approach, shaped by feminist-victimist demands, whereby one must ‘believe the pain’ and one must not ‘re-victimize the victim’ by daring to assess any allegations; rather one must assume that any self-declared victim is by virtue of said claimed victimhood a genuine and invariably truthful allegator who must be believed as a point of justice and in order to get the healing and closure processes rolling (one politely refrains from using the V – vengeance – or R – revenge – words).

More strikingly, the EAW claims in Swedish that Assange is wanted for ‘lagforging’ (Number 75, p.33) which Ny’s office translated into English as ‘prosecution’ but which an official Swedish translator points out actually means the more general ‘legal proceedings’, which is not only far less specific but could also apply to civil as well as criminal process. There are other Swedish words for ‘prosecution’ in the criminal sense. A curious mistake for a professional law enforcement office to make, but convenient to Ny’s purposes. As Assange’s attorney’s point out, this is a “fatal” ambiguity that undermines the integrity of the EAW.

The fifth issue (beginning at Number 85, p.36) is that the EAW is disproportionate given his willingness to be interviewed; there’s no need to issue an EAW and subject Assange to all the legal ramifications.

The EAW, after all, “is a draconian instrument that affects individual liberty”. (Number 89, p.37) So you shouldn’t go throwing these things around like they were party favors. But of course, the radical feminist-victimist assumption is that the ‘emergency’ of male sexual abusiveness is so great that you can’t really go overboard in combating it. Curiously, where Barry Goldwater was laughed off the American political stage in 1964 when he claimed that “extremism in the defense of liberty is no vice”, yet less than 20 years later extremism in the defense of victimism was no vice – except that you couldn’t even call it ‘extremism’; it was ‘sensitivity’ and ‘responsiveness’ and ‘reformist’ and ‘progressive’ and fill in the blank and etcetera and etcetera and etcetera.

The attorneys also point out that if this EAW is allowed, then prosecutors all over Europe are going to be throwing these EAWs around like confetti (my imagery). (Number 92, p.39) And especially in SO matters or in what appears to be a semipermanent new skullduggery: governments looking for a handy and publicly acceptable tripwire pretext to neutralize or obliterate persons they have come to dislike.

The sixth issue (starting at Number 93, p.39) is that the claimed offences do not rise to extradition offences because the alleged conduct is not an offence in English law.

There is here a ‘double criminality’ element to extradition law: the alleged or charged behavior has to rise to the level of crime in both the requesting country and the country receiving the EAW.

The issuing authority that sends the EAW must as “a duty of good faith” inform the accused (and the potential arresting and extraditing nation) the particulars of the charges against him. (Number 99, p.41) This, of course, is to the victimist way of thinking mere sinister obstructionism: no government owes, or can owe, any duty of good faith to a victimizer once he has been painted as such by any allegator.

In this regard, Assange’s attorneys note that in the matter of one of the two allegators, there is no allegation either that the female refused consent or that Assange had reason to believe that she did not consent to sex. (Number 103, p.43) And there’s a reason for that: “the two elements are not alleged because they cannot be alleged: the court dossier clearly shows that the complainant told police that she had consented”. (Number 104, p.44)

Further, “there is no English law designed to punish conduct that ‘seeks to violate sexual integrity’, a phrase far too vague to be the basis of a criminal charge in this country”. (Number 105, p.44) How on earth could you define ‘sexual integrity’? Morally? Psychologically? Legally? Do you lose it when you lose your virginity? (THAT clearly cannot be the case.)

I have to quote Number 106 (pp. 44-5) simply because this type of clarity and candid acuity is so often lacking in American SO legal discourse: “This is a hopeless charge. 1) It does not specify a date. 2) The description of ‘conduct designed to violate sexual integrity’ is much too vague a charge to be an element of an offence in this country. 3) There is no allegation of the ‘actus reus’ – namely that B did not consent. 4) There is no accusation that A did not reasonably believe that B had consented.”

The seventh issue (starting at Number 108, p.45) is that one of the offences “is not an extradition offence because it is wrongly described as rape and the conduct alleged does not answer to that description in European law”.

Again nicely, the attorneys point out that “’minor rape’ (the term used by Ms. Ny in para 13 of her statement) is a contradiction in terms”. What Ny describes does not include force or lack of consent, but only that the allegator was “in a helpless state … due to sleep”. But a witness who had seen the full investigation dossier claimed that the allegator had claimed she was half-asleep (which, Assange’s attorneys astutely calculate, meant that she was “half awake”). It is also here (Number 110, p.46) that the existence of text or Tweet messages is mentioned; apparently Assange’s initial Swedish counsel was able to see or hear them but was not permitted copies of his own; these messages indicate that the Allegator was not at all under the impression she had been raped in the days following the incident, and indeed planned, hosted or attended parties and generally had a good time (busily texting or Tweeting all the while).

Sweden’s especially broad definition of rape measured by whether the victim was in a “helpless state” rather than according to the criteria of force or lack of consent is not typical of European rape laws. (Number 118, p.49) The Swedish law includes “improperly exploiting” a person’s ‘state’ … is there a proper exploiting? Perhaps the Swedes do understand a bit about human nature after all.

Ominously, and the attorneys note this (Number 120, p.50) there is no ‘mens rea’ for this ‘minor rape’ of exploiting a helpless person: it appears to be a statutory sort of thing: once helplessness and penetration are established then sex with a “helpless’ person is rape and that’s that. And, of course, that leaves open the questions of who defines ‘helpless’ and how and when?

Interestingly, the Minister of Justice of Denmark had said that it was “not natural” to call helpless-exploitation ‘rape’. The Swedish Bar Association had tried to raise the same point in a letter to the Swedish Minister of Justice in 2004, just before – alas – the Swedish rape reform laws of 2005 were enacted: “The proposals … mean that crime terminology with a long tradition now come to have another meaning … More dubious is the fact that the crime terminology includes acts that do not reflect the terminology. Rape is one example of where acts are included which do not need to contain any aspect of assault or sexual coercion, acts that do not involve any force.” (Number 129, p.54)

This elasticity of terminology is lethal both for potential defendants and for the public: I have often used the examples of sexual ‘abuse’ – which can now mean anything an allegator wants it to mean – and ‘battering’ – which can now legally include keeping your mouth shut in a telephone conversation.

The eighth issue (starting at Number 132, p.55) is that extraditing Assange would constitute a violation of his right to a fair trial and flagrantly violate the U.K. principles of due process and freedom of expression.

“The crucial basis for this submission is that rape trials in Sweden are held behind closed doors so the court is being asked to surrender a man for a secret trial”. Such as the Star Chamber trials of the 17th century in England itself.

The attorneys continue in the same Number: “The facts are short, stark, and astonishing: in all rape trials (and at their preliminary Hearings) the doors of the court are closed and the press and public excluded so that they cannot hear or report the evidence”. And that “Ms. Ny concedes that rape trials are ‘often’ heard in private ‘so that complainants are able to give the best evidence …’ This concedes the real risk of a secret court and hence of a trial unfair to a defendant”.

Why is evidence ‘best’ when given in secret? This cannot be the real reason – some implied desire to get the ‘best’ evidence. Something else is going on here.

The attorneys provide an acute assessment of the consequences (Number 135, p.56): “The public will not be able to judge whether the court is giving him a fair trial … The inconsistencies in the complainants’ stories will not be revealed because they will be cross-examined in secret and no one will know Mr. Assange’s account or that of his exculpatory witnesses. The complainants will be able to lie with impunity since friends and acquaintances who know the truth will not know that untruths are being told and will not come forward therefore to contest their evidence. Any sense of justice, any sense of fair play, revolts at this Swedish practice. It is not merely a difference between our systems; it is a fundamental breach of Europe’s commitment to open justice and it should not be countenanced.”

And as they will say a bit further on: “Justice unseen is no justice at all”.

So much in encompassed here.

You can see where a system like this is queasily and treacherously designed to provide the classic ‘self-licking ice cream cone’: the secrecy prevents public revelation of any mischief on the part of any allegator: at the very worst, an allegator will fail in a case but there will be no publicity and hence no pressure for sanctions to be applied for false report, false accusation, perjury, or the obstruction of justice. Concomitantly, the entire SO Mania is preserved because its most lethal and egregious consequences will be hidden from public view and its enablers and allegators left free to carry on next time.

The attorneys rightly point out that this Swedish approach is hell-and-gone from the “European” approach. I would say from the Western approach. The Swedes did not get this secret court crap from the West.

But from the East, as it were. The Swedes, I would say, got it from Russia, especially Soviet Russia. And they got it through the Socialists (once a powerful and very large Swedish political party) who, finding themselves out of a Cause as the USSR declined and imploded, took up radical-feminism – which itself had derived much of its theory, jargon, and conceptual discourse from Marxism (as I have said before: reading ‘deep’ feminist thought is unavoidably reminiscent of reading old Marxist-Leninist tomes, with ‘women’ substituted for ‘the masses’).

‘Revolutionary justice’ – in the Soviet system – meant that anything that supported the Revolution and the Cause was ‘justice’ and anything that opposed same was a crime pure and simple; against which the job of the court was not to discern truth but to strike the enemy-of-the-Revolution with the weapon of the statutes. The court in the Revolutionary scheme was merely the procedural middleman – window dressing really – between the Enemy-of-the-Revolution and the firing squad (or Siberia).

Radical feminism and victimism found this approach verrrry congenial indeed. And the Swedes, never quite fully European, deformed by their admittedly scary proximity to the Eastern colossus, slid down the road of Revolutionary justice … it was just a different Revolution from the Soviet one.

To the American SO community, none of this will seem strange. The attempt to ‘reform’ American law to bring it more in conformity with Revolutionary justice struck first in the SO Mania Regime(s). But I think SO’s were simply the first test-run. The only thing that might save this country from a robust expansion of Revolutionary, non-Western justice is that the money will run out. But huge damage has already been wrought to jurisprudence, law enforcement, legal education, and to the public’s own ability to judge what is going on and the difference between a ‘reform’ and a lethal corrosion. You don’t ‘reform’ a watertight bulkhead by drilling numerous holes in it; you destroy its integrity and its ability to protect you from the chaotic power of the sea.

But it gets worse, as will soon be seen as the document continues.

Jurists like Blackstone and thinkers like Bentham insisted that openness was a vital pre-condition of English justice, “particularly to safeguard against judicial error”. (Number 137, p.57) As Bentham put it, “publicity is the very soul of justice … It keeps the judge himself, while trying, under trial”. I wouldn’t agree with Bentham that publicity is the soul of justice, but it is essential.

And the US itself, after 40 years where elites of the Beltway, whether of Right or Left, have been running their favorite game-plans and playbooks through willing legislators, has not been well-served. For that matter, the Pentagon Whiz Kids of the Kennedy-Johnson era didn’t do very well with Vietnam. The coterie that figured Iraq would be a “cakewalk” also could have used some public input.

But then too, Bentham never envisioned the type of purposeful manipulation of public opinion that by the end of the 19th century and the first half of the 20th was elevated into a frighteningly cynical and ruthless weapon against entire citizenries.

And that was the matrix and seed-ground of the SO Mania Regime(s).

“Moreover, publicity deters perjury, in that witnesses are likely to come forward to confound lies when they learn they are being told.” (Number 139, p.58) I wonder if this is a particular reason why the SO Mania Regimes here had to be ratcheted up with so much politically-correct victimist lockstep: so that people who knew truth would not want to come forward for fear of being labeled – cartoonishly and treacherously – as ‘insensitive’ and ‘enablers’ if they tried to defend a declared ‘enemy of the Revolution’.

Surely, the vast majority of priest-abuse cases here have, as I mentioned in a recent Post, precisely not been subjected to public examination. And I wonder if not only courts but the media are harmed by the lack of openness.

It may seem strange to suggest that the media are harmed by not being ‘public’ but the very dynamic of political-correctness, I think, has been to prevent people even from criticizing skewed and selective or outright inaccurate reporting. Not only the courts but even the ‘press’ are insulated from public examination and public judgment.

“A criminal trial is a public event.” (Number 141, p.58) In the Revolutionary system, this is true only if you can guarantee the outcome you want and thus make the trial an ‘educational’ experience for the onlookers (the message: THIS is what can happen to YOU if you don’t go along). Stalin turned the entire Soviet judicial system into his instrument; Hitler not quite so much (Germany had a Western heritage) – he had to institute special Party-run courts to ‘try’ defendants whom regular German courts were too decent to grind up. But you get the idea of what Western justice has always been aiming at with this idea of openness – and in that regard political-correctness is an element of ‘closing’ courts and ‘hiding’ justice.

The European Court of Human Rights (ECtHR) went so far as to insist that Russia could not hold secret trials even for the purpose of protecting victims' and witnesses' safety due to the gravity of the charges. “This could not justify the restriction of such a fundamental tenet of judicial proceedings as their openness to the public.” (Number 144, p.60)

Contrast this with the disregard for ‘fundamental tenets’ in this country’s law schools and among its legal ‘elites’. Who would dare allow such a ‘male abstraction’ and such outdated formalism as ‘fundamental tenets’ or musty principles stand in the way of ‘sensitivity to pain’? All pain must have a cause, the cause must be something that will not upset the constituent, and then the cause thus identified must be eradicated: that’s the hash of politics and legal thinking as it has mutated here.

Can you imagine any public official telling the Maniacs that no matter how painful it may be for an alleged victim to participate in public process, the fundamentals of American law (and, really, its legitimacy) depend upon it? This is how far the country has declined.

But this all leads to what I imagine the Swedish government – however it allowed itself to get into this Assange mess – always wanted to avoid: the attorneys here submit to the court that through this matter of secret trials, which up to now have been a quiet (and dirty) little secret the Swedish government kept to itself, it is clear to them that “Sweden is in fundamental breach of” of basic European Union law and treaties. (Number 150, p.62) The terms “flagrant” and “deliberate” are also in the attorneys’ mix.

Sweden now stands accused of being in serious breach of EU law, its little secret of secret trials having been brought to light in the litigation that Sweden itself rendered necessary.

The attorneys then tick off a list of non-legal factors which also militate against extradition: one of them is Trial by Media (Number 155, page 64) which was fueled by the illegal release of information about Mr. Assange.

A second one is – you can’t make this stuff up – politically appointed lay judges in rape trials (Number 156, p.64): yes, the 5-judge panels that sit on these things include only 3 trained jurists, and the other 2 are laypersons appointed by pols – no doubt in case the real judges might tend to give more weight to the law than to the allegator’s sensibilities and pain. (In this case they remind me of nothing so much as the Political Officers assigned to the Red Army at all command ranks to ensure that the professional military men didn’t let actual military concerns interfere with Comrade Stalin’s desires and thoughts.)

In Swedish rape cases prosecutors have the right to hold rape suspects without bail, incommunicado, for months (there is no limit to pre-trial detention). (Number 163, p.67) Interestingly, Ny asked in the EAW that the Brits hold Assange incommunicado: which nicely prevents the man’s story from getting out and allowing the prosecution (and the allegators and the attorney paid for by the Swedish government to attack the accused’s credibility) to have a field day unhindered by any possibility of their ‘stories’ and spin being disputed.

And then Assange’s attorneys drag another of Sweden’s hitherto unnoticed secrets into the light: in 2009 the EU commission that keeps an eye out for torture and degrading treatment of prisoners failed Sweden, which had done nothing to improve in this area since the committee’s 1991 visit. By amazing coincidence the greatest site of concern is the Gothenburg Remand Prison – and Gothenburg is the city where Marianne Ny is a prosecutor. (Number 164, p.67)

Assange’s attorney conclude with several Numbers concerning the real danger of Assange being extradited from Sweden into the U.S.’s labyrinth of terrorist-related black holes, stretching across Europe and the Middle East (with stop-overs and friendly support-services provided by – wait for it – Sweden).

And again another dirty Swedish secret: in 2005 the UN Committee Against Torture had determined that Sweden had violated the UN Convention Against Torture (Number 173, p.70), and then had obstructed the Committee’s investigation of the charge. (Number 174, p.71).

And that the UN Committee on Human Rights had found that Sweden had violated the prohibition against torture contained in the International Covenant on Civil and Political Rights. (Number 175, p.71)

And that the Swedes had done so multiple times by taking the ‘diplomatic word’ of US and Egyptian (!) agents that a suspect the Swedes were turning over to them would not be tortured (again, I will NOT make a Swedish joke here – nobody can really be this dumb). (Number 176, p.71)

The attorneys, therefore, are not impressed by Swedish government assurances that it will not turn Assange over to the US, several of whose prominent political persons (Mike Huckabee and Sarah Palin are mentioned by name) have implied or explicitly called for his execution or assassination, whichever is more doable. (Number 178, p.72)

And that’s the Assange Skeleton Argument.

I say again that the American SO community is remarkably well-positioned to grasp what is going on within and beneath the SO Mania Regime here and – alas – in other putatively advanced countries, even ones which have always seemed to Americans the very soul of pleasant, small-scale, decent polities.

The American people have a lot of hard lessons to learn as hard rain falls with increasing intensity here.

As they emerge into a harsh light, far reduced from their former estate, they will resemble in some way those German burghers rounded up by Allied troops to go look at that ‘camp’ just outside of town. There will be many dark things to see, and corrections to be made.

What will shock and stun many Americans is what has been the daily burden of the SO community for two decades and more now.

NOTES

*Mario Vargas Llosa’s latest novel, El Sueno del Celta – true to his consistent authorial interests – “explores the evil to which people sink when they have too much power” and, using among others the vivid example of Leopold II’s brutalization of Congo natives when Belgium ruled that unhappy place, “the way evil can take over in places where there are no limits to the power of those in charge”. Secrecy confers such ‘power’. And governments can create even more damage than individuals – AND even then distract everybody by using its power to create alternative ‘bad guys’. See the ‘Time Literary Supplement’, print edition of December 17, 2010, pp. 20-1 for the quoted review. Online access is by subscription or purchase only.

**In a Feb.10 statement, made thus 3 days AFTER the initial Hearing discussed here and a day before the Friday final Hearing tomorrow, this Minister – Beatrice Ask – urged Assange to “turn himself in”. Which is mighty odd indeed, for a country whose extradition case is already before the U.K. court. And it sounds like the gambit of a country that realizes its case is not going to prevail in court. She further claims that Sweden takes great care in administering its legal system and Assange has nothing to worry about … ovvvvvvv coursssssssssse. The unspoken bit is the difference between what is legal in Swedish and Mania rape law and what is just.


ADDENDUM

I just came across this article in which a witness testified that he dug up the Tweets that were made by one of the allegators.