Julian Assange, the founder of WikiLeaks, is expected to appear in a UK court tomorrow!

[Peter Lemkin]

Britain's Supreme Court has upheld the extradition of WikiLeaks founder Julian Assange to Sweden to face questioning over alleged sex crimes. Swedish authorities want to question Assange over accusations of rape and sexual assault made by two women. Assange has been under house arrest in Britain since December 2010. Assange's lawyers had argued the Swedish public prosecutor did not have the legal authority to issue the arrest warrant. Earlier this morning, the British Supreme Court handed down a split decision. Five judges supported extradition, two judges opposed it. Nicholas Phillips, the president of the Supreme Court, said the decision came down to the definition of "judicial authority" under the terms of the European Extradition Treaty.

NICHOLAS PHILLIPS: The point of law is simply, what do the words "judicial authority" mean? Mr. Assange has argued that they mean a court or judge. Sweden's request has been issued by a public prosecutor who is not a court or judge, so Mr. Assange's argument is that request is invalid and he doesn't have to go back to Sweden. The point of law is simple to state, but it has not been simple to resolve. Indeed, we have only reached our decision by a majority of 5-2. There was discussion in parliament about the words judicial authority when the bill which became the Extradition Act was being debated. The bill used the words "judicial authority" because those words were in the Framework Decision and the act was designed to give effect to the framework decision. It is clear that some members of parliament believe that the words "judicial authority" in the Framework Decision meant a court or a judge. Indeed, one minister specifically stated to a parliamentary committee that this was the case. But he was mistaken. Judicial authority is the English translation of the French words "autorité judicial." The Framework decision in both English and French, so it's necessary to have regard also to what the French phrase means. The French phrase has a wider meaning than the English phrase. In French, the words "judicial authority" can be used of a public prosecutor. For these reasons, the majority has concluded that the Swedish public prosecutor was a judicial authority within the meaning of both the Framework Decision and the Extradition Act. It follows that the request for Mr. Assange's extradition has been lawfully made and his appeal against extradition is accordingly dismissed.

NERMEEN SHAIKH: Nicholas Phillips, president of the British Supreme court. Moments later, Dinah Rose, an attorney for Julian Assange, addressed the court.

DINAH ROSE: There is one matter which causes us considerable concern on our initial reading of the decision, and that is that it would appear that a majority of the members of this court have decided the point either principally or solely on the basis of the interpretation of the Vienna Convention on the Law of Treaties, a point with respect which was not argued during the appeal, and which we were given no opportunity to address. Now, obviously, this court will have in mind its recent decision in [a previous case] holding that Article 6 applies to extradition proceedings in the United kingdom. We are therefore currently considering our position on whether or not it will be necessary, with great regret, to make an application to this court that this matter should be reopened so we have an opportunity to argue this point.

AMY GOODMAN: In response to the legal concerns raised, the Supreme Court gave Assange a stay of 14 days on the extradition order so that the ruling could be challenged. To talk more about the case, we're joined by two guests, Helena Kennedy is joining us from Oxford in England. She's a British attorney on the legal team representing Julian Assange. She will be joining us in a minute. And joining us by Democracy Now videostream, Glenn Greenwald, blogger for Salon.com, constitutional lawyer as well. He has been closely following the WikiLeaks story. Glenn, can you respond to the decision of the British High Court that Julian Assange will be extradited to Sweden?

GLENN GREENWALD: I think it's difficult to have expected any other outcome. Remember Julian Assange is one of the people most hated by Western governments because of the transparency that he brought, and typically, unfortunately, judicial branches in the United States and in the United Kingdom do the opposite of what they're intended to do, which is they protect institutional power and help to punish and deprive the rights of those who are most scorned. And so, I would have been most shocked had the court ruled in favor of Assange, even though as the two dissenting judges on the high court pointed out, the argument of Sweden and those advocating extradition is directly and anathetical to what the statute says. No one thinks that a prosecutor is a judicial authority. He has not been charged with a crime, and therefore, there is no court or judge seeking his extradition. It's purely a prosecutor. But the law in these cases typically is not what governs. What governs are political considerations and the views of the party. And so absence of some unexpected event-highly unexpected event-at some point in the near future, it is likely he will be extradited to Sweden.

NERMEEN SHAIKH: And apparently, Glenn, of course, the punishment that he is likely to face in Sweden, even if is charged, is much less than what he is likely to face if he is extradited to the U.S. where the punishment he faces for possible espionage and conspiracy charges will be much greater. Can you say a little about that?

GLENN GREENWALD: I think there's two issues of concern with being extradited to Sweden. One is that, although we don't think about Sweden this way, it is none the less the case that they have a very oppressive I would even say borderline barbaric system of pretrial detention where when somebody is charged with a crime, they are almost especially in Assange's case where he's not a Swedish citizen automatically, more or less, consigned to prison, not released on bail, even though he's proven over the course of the last two years that his appearances can be secured. And not only would he likely be imprisoned pending trial, but he would be imprisoned under very oppressive conditions, where he could be held incommunicato, denied all contact or communication with the outside world. The hearings , pretrial hearings in Sweden, are not public. They are entirely private. The media, the public has no idea what takes place within these hearings. And given how sensitive this case is, the idea that judicial decisions in Sweden will be made privately and secretly is very alarming. But, I think the broader concern is the one you just raised, which is clearly in the U.S. efforts underway, not just to investigate but to convene a grand jury, and there are reports that he had already been indicted with a sealed indictment. There are certainly efforts by the U.S. government to do so, and the real concern is that Sweden, which in the past has demonstrated subservience to the United States with rendition and other things, will hand him over without much of a fight and he will face life in prison under espionage statutes for doing nothing more than what newspapers do every day, which is publishing classified information in the public interest.

AMY GOODMAN: Can you talk about the significance of Hillary Clinton, the Secretary of State, going to Sweden? It is the first time in a very long time that a U.S. Secretary of State is going to Sweden. First, it was announced the high court would be making its decision today, Glenn. Then, Sweden tweeted out that Hillary Clinton would be coming there on Sunday.

GLENN GREENWALD: Right. I mean, one of the causes for concern is that there has been a flurry of activity recently with FBI agents harassing people who are alleged to have communication or contact or association with WikiLeaks. A French citizen and an Icelandic citizen both in the past couple of weeks have been very aggressively accosted by FBI agents on foreign soil. And now you have what looks to be high-level meetings between the State Department, Secretary of State, and Swedish officials. There really is not much of a secret that the Obama administration is busting at the seams to punish Assange. Remember, this is an administration that has more aggressively than any prior president has punished people who are government employees who have been whistleblowers, and yet here is a someone who is not a government employee, has no duty to safeguard classified information, and yet it looks very much like the U.S. government is eager to get their hands on Julian Assange. That has been the concern all along going to Sweden. He has never been worried about facing these charges. He feels very confident that he will be ultimately vindicated, that there is nothing to them. I have no opinion one way or the other on that. He has always been willing to face these accusations. The issue has always been because he is not charged, there has been this extraordinary and unusual effort to get him onto Swedish soil. The fear has always been that is just a pretext for turning him over to the United States, something that Britain would have a very hard time doing for a variety of reasons, but that Sweden, as they have proven, can be coerced and bullied and pressured into doing it fairly easily. Once he's in the grip of the U.S., it is really hard to imagine how he will ever secure his freedom or liberty again, given what the U.S. has demonstrated it is willing to do in terms of flouting conventions of justice and other things when it comes to people accused of harming national security.

NERMEEN SHAIKH: Why is that though Glenn? Can you explain why would Sweden be more amenable to extradition to the U.S. and not the U.K., which is a very close ally of the U.S.?

GLENN GREENWALD: For one thing, just a matter of basic international relations it is much easier for a country like the U.S. to pressure and coerce smaller countries than it is larger countries. I think there would be a big outcry [NO AUDIO]

AMY GOODMAN: Glenn, you were finishing up saying?

GLENN GREENWALD: ...and where Sweden is a small country, much more susceptible to that pressure and again they've demonstrated in the past to be willing the U.N. Commission found they actually violated international law and prohibitions on oppressive treatment in the way that they allowed CIA agents to basically abduct Egyptian nationals on their soil and render them to Egypt. So, I think there's a real concern when you add on to that the secrecy behind these pre-trial proceedings that there's a much higher risk that Sweden will be complicit in turning over Assange to the United States.

AMY GOODMAN: We are joined in Britain by one of the attorneys for Julian Assange, Helena Kennedy. When the judge announced the Supreme Court's decision to uphold Assange's extradition, he invoked the 1957 European Convention on extradition. I want to ask Helena Kennedy about the significance of that Convention and why it was put into effect. We're going to just go to a clip of the ruling first. This is Lord Nicholas Phillips, President of the Supreme Court in Britain.

NICHOLAS PHILLIPS: The Swedish public prosecutor has requested the extradition of Mr. Assange on charges of serious sexual offenses. That request has raised a point of law of general public importance. It is not a point in respect of which the particular facts of Mr. Assange's case have any relevance. This summary is about that point of law. It used to be the case this country would not extradite a person to another European country until a court here had considered the evidence against that person. The court would not approve extradition unless the evidence justified his being subjected to a criminal trial. All that changed in 2001 when we gave effect to the 1957 European Convention on extradition.

AMY GOODMAN: That's Lord Nicholas Phillips, President of the Supreme Court in Britain, explaining the decision to extradite Julian Assange, the founder of WikiLeaks, to Sweden. Helena Kennedy, you're one of the members of Julian Assange's legal team. Can you respond to the decision that was just handed down hours before this broadcast?

HELENA KENNEDY: Well, I'm a consultant to the team, and extradition is one of the areas of law that I have some practice and knowledge of. It is right that it is comparatively recently that we have become much more closely involved in legal arrangements with the rest of Europe about the handing over of persons sought for questioning or for proceeding on to criminal trial. On a much more sort of familiar basis so that we do it with little examination of evidence and the idea is that we respect the legal systems of these other countries to be just and fair, even if they're different from ours. The problem about that is, or course, in other parts of Europe we don't have a common law system. In fact, the American system is much closer to the British system, and there's a civil law system, where the whole arrangements are rather different. And so, one of the concerns that was raised in this case was that a really important point of law, which was about this request having been made by prosecutor who wanted to question Assange. There is still an issue as to whether he would ever be charged.

There is no doubt that if the old processes had been relied upon, the evidence would not have been enough to justify a prosecution here in Britain. But they were invoking the new arrangement. The new arrangement in this last decade or so has been that a Euro warrant can be issued and that it does not involve a close examination of evidence, and the request had been made by a judicial authority. That's how it has always been presented and that's how it was introduced into law in Britain. Two of the judges, interestingly, did not go along with this decision. It was a 5-2 majority decision. But another two of the five say that had parliament known the judicial authority might mean a prosecutor and not a judge, it may be that the arrangement would not have been accepted by parliament. But now that it has been and has been going on for the last years, this practice should be accepted as one that is respectful of other jurisdictions.

Now, the concern that we all had, and I think that any democrat in Britain would have, is that the idea of a prosecutor demanding that someone is brought by force to their country in order to be questioned, and that that is not a decision being made by a judge or a court, is alarming to us because we believe in judicial independence. We believe that the state sometimes does things that have to be called into question, or certainly have oversight by an independent judge, and that hasn't happened here. And so, that is why this was a very important issue and went all the way to our Supreme court, and the court has, by a majority, come down saying that really they have to be respectful of the fact and other systems, this is what happens; that a prosecutor can make these decisions without judicial oversight. Well, I think that has left a lot of us feeling very unhappy about the arrangement we've entered into and as to whether it really complies with our respect for the rule of law and independence of the judiciary to overview what decisions are made by prosecutors, because it is not a happy situation that prosecutors can decide who they're going to have brought by warrant and by force back for questioning without any judicial intervention.

NERMEEN SHAIKH: Helena Kennedy, isn't it relevant at all that Julian Assange hasn't in fact been charged with any offense in Sweden yet? Doesn't that have any bearing on the European arrest warrant?

HELENA KENNEDY: Well, the European arrest warrant says that you can be arrested in order to be questioned, but it is interesting that Assange volunteered to be questioned here at the Swedish Embassy or at Scotland Yard. He didn't see why that it was required that he should go all the way to Sweden. And of course, what he suspects and is concerned about is that as soon as he sets foot on Swedish soil, that he becomes much more vulnerable to the perhaps intentions of the U.S. to have him extradited from there to the United States to stand trial on much more worrying charges, from his perspective, because he would face the sort of American sentences that go along with espionage.

AMY GOODMAN: While Julian Assange didn't address the news media after today's Supreme Court decision, the news reports said he was caught in heavy traffic. I want to play for you what he said in November after he lost his initial appeal.

JULIAN ASSANGE: I have not been charged with any crime in any country. Despite this, the European arrest warrants is so restrictive that it prevents U.K. courts from considering the facts of a case, as judges have made clear here today. We will be considering our next step in the days ahead. The full judgment will be available on swedenversusassange.com. No doubt, throw the many attempts made to try and spin these proceedings as they occurred today, but they are merely technical. So, please go to swedenversusassange.com if you really want to know what's going on in this case.

AMY GOODMAN: That was Julian Assange, not this time, but in November after he lost his initial appeal. Speaking to us from Oxford, England is Helena Kennedy. She is a consultant to Assange's legal team. I'd like you to respond to that and also the decision of the judges when raised by his attorney Dinah Rose, that they allow her to argue on this point that she said that she hadn't gotten a chance to argue on, the decision that they had made that he can stay for another two weeks. What are the avenues that Assange has right now?

HELENA KENNEDY: What came up in court was the Vienna Convention was invoked by the judge's to say that, basically, the words the French words are the words which they looked at which is "judicial authority""autorité judicial," and that that has been translated into judicial authority which we the British common law listeners took to be a judge and a court and certainly that is what the British Parliament thought. Whereas, in fact, to Europeans who have a different system, it would be interpreted as being a prosecutor, and therefore in endorsing the Vienna Convention on extradition, then we committed ourselves to the French interpretation. So, I think, I know, that Dinah wants to be able to have a look at that and to see whether that is a proper interpretation, because she didn't have the opportunity of dealing with it; it wasn't raised by the other side at the original hearing.

Now, I've spoken to Julian Assange since the he is caught in traffic and I spoke to him since his hearing of the judgment. We will all look at what this means and whether we think it is likely to make any difference. It is very rare for the Supreme Court to give an opportunity to revisit an argument. The last time I remember it was in the Pinochet case. But certainly one will have a look at this. But, it is the sense one is getting is that even in this court, there was argument as to whether this is an acceptable thing within the common law tradition that you just hand somebody over on the say so over prosecutor, and there was definite unease in two of the judges. The sole woman we have and another judge both took a different position and therefore didn't go along with the majority. So there's serious argument that there should be on this and may actually have to be revisited by parliament in the fulness of time, but It might not be good for Assange because the decision is going to be as it stands at the moment. So, it's a matter of serious concern.

I listened to Glenn talking about the implications of this if he's returned to Sweden. Glenn Greenwald is right. Sweden does not let people out on bail. It is very, very rare that they would allow anybody, particularly someone who is a foreign national, to be in any position other than in custody and in secure custody. So, it means that he will be returning there, and even if a decision is made which is favorable to Assange in Sweden, one just wonders if he's going to be slapped with a warrant from the United States wanting him to be extradited to the U.S. And that has to be a matter of concern for us and for those who are advising him legally.

NERMEEN SHAIKH: If the legal team has to seek recourse with the European Court of Human Rights in Strasbourg, which is apparently the last court of appeal, what is the likely outcome of that? Is it possible that the European Court could stay his extradition?

HELENA KENNEDY: You have to understand that the European Court isn't quite like a last court of appeal. It is an avenue that is open. If it's an issue which the European Court would think was a matter that needed to be resolved because it had implications for lots of other countries. It is very rare for a case like this on this kind of point to go to European court. But, obviously, we will take a look at that and we will put that argument in writing to the European court, and they can either say yea or nay and that will determine whether there is any further avenue left to us. So we're getting to the situation where there's going to be the options are narrowing by the day, and so I think that we will probably have to make decisions over the next 48 hours as to what happens next.

AMY GOODMAN: Finally, Helena Kennedy, you said you spoke to Julian Assange. He is caught in traffic. Usually does make a statement after a decision is handed down. What was his response to the high court ruling that he should be extradited to Sweden?

HELENA KENNEDY: Well, in many ways, Julian of course is skeptical about any kind of judicial decision making in this field, and he's very aware that Britain, of course, is part of Europe and has made agreements and has found a sort of modalities and arrangements for our different systems to work together. So there is a general unwillingness not to respond to a call from another country for somebody to be taken there on a warrant. So, it is right that this has political with a small p implications, if not even with a big P. But, I think that he was actually heartened that there was so much argument, clearly, between the judges and that two of the judges came to the view that this was not right that a prosecutor could call for somebody to be just handed over for questioning. And was also heartened by the fact that two of the judges who remained, who went along with the judgement, still had reservations about whether parliament would have agreed with this, but basically, ended up going with the majority decision on the basis it had been in practice now for a number of years and it was now inbedded. So, that is how they came to that majority opinion. So, he has been heartened by the fact that in many ways it points to just how complicated this whole issue is.