The refugee

Date

November 2, 2013

It’s three years since Julian Assange was first accused of rape by two Swedish women. With the WikiLeaks founder now the subject of a feature film, Geoffrey Robertson analyses the case against Assange – and finds serious flaws – in this exclusive book extract.

A temporary reprieve … Assange with Geoffrey Robertson after being freed from Wandsworth Prison on bail in December 2010. Photo: Rex

London has a new tourist attraction. The Ecuadorian embassy is just beside Harrods, the famous Knightsbridge department store. This elevated ground floor of an Edwardian mansion block is staked out around the clock by some very bored British bobbies who seem to know that they will do nothing for the next few years other than tell tourists the time. Unless, of course, Julian Assange leans so far over the balcony while addressing supporters that he topples into their outstretched arms, thereby leaving South America and landing, instantaneously, in the United Kingdom.

International law produces such miracles: embassy premises are “inviolable” sovereign terri-tory under the Vienna Convention, and one of Britain’s best qualities is that it actually abides by international law. So across the threshold of this pied-à-terre in Ecuador neither SAS unit nor navy SEAL may enter. When Scotland Yard picked up a rumour that Assange would ascend to the roof to smoke Cuban cigars on dark nights, they prepared a snatch squad, only to be told that Ecuadorian sovereignty might extend skywards.

Inside the embassy, there are some reminders of Ecuador: a travel magazine on the front desk, a few toy llamas, a portrait of the incumbent president, a smattering of conversational Spanish from the ambassador, a strikingly attractive woman who insists on being called “Anna” and not “Your Excellency”. The large front room from which Assange addresses the outside world is her office; there is a function room that operates as a party space. And a corridor, at the end of which is the asylum-seeker’s lair, well stocked with books, computers, a sun lamp and an exercise machine. His bedroom is a converted toilet, a space that would rival in size the prison cell to which the governments of Sweden and the United States would wish him consigned. But he is free to do portentous things that keep his name in the headlines, like channelling Edward Snowden when he was holed up in a hotel near Moscow Airport, and promoting, long-distance, his unsuccessful candidacy for the Australian Senate.

“He was paranoid, of course, but he had every reason for paranoia, given the threats” … Geoffrey Robertson on Julian Assange. Photo: Austral

For all his workaholism, Assange has time for parties – for birthdays and celebrations of Ecuadorian national days, attended by friends and journalists and beautiful young people who often turn out to be human-rights lawyers; the brilliant Jen Robinson; his loyal WikiLeaks associates Joseph Farrell and Sarah Harrison; a few peers of the realm; admirers such as Yoko Ono and Bianca Jagger.

Sarah Harrison disappeared for a while, and his detractors put about rumours that she must have defected from her “manipulative” and “megalomaniac” boss, before she broke cover at a press conference in Moscow as Snowden’s shepherd. Assange is not, as everyone says, a “control freak” (he has no one to control) and he is certainly not in line to become “Australia’s L. Ron Hubbard”, another snarky headline that makes no sense because he has no brainwashed followers and – the most obvious difference – no money.

That lack of material wealth was an attractive feature of the international man of mystery whose baby-face first glowed from the news wires in mid-2010, after he produced the “collateral murder” tape showing a US helicopter gunship killing two reporters, along with other men, and wounding two children, in Baghdad in 2007. His was no shoulder-slumped mugshot, but the visage of a dangerous cherub, beaming beneath a halo of blond hair, which hid a cranium that could outwit the most powerful country in the world. He had no money nor interest in acquiring any. Among the internet generation in Europe, this gave him a rock-star image, as he sang his siren song of political transparency, justice and human rights. Just how mesmeric Assange had become by mid-August of that year may be measured by the front-page reporting, throughout the world, of the allegation that he had raped a woman in Stockholm. Within a few hours, seven million people had clicked on the website of Expressen, the Swedish newspaper to which the story had been leaked. There was much less publicity a day or so later, when the senior prosecutor in Stockholm dropped the charge and said there was virtually nothing else to investigate.

A most wanted man … Assange makes a statement from the balcony of the Ecuadorian embassy in August 2012. Photo: Splash News

Then, a week later, the charge was reinstated by a “gender prosecutor” in another Swedish city, after a secret appeal by a lawyer-politician acting for the complainant. Irrespective of the merit of the complaints, this was no way to run a legal system: prosecuting authorities should not be in the business of giving “scoops” to tabloids and should not allow secret appeals to another prosecutor in a hearing from which the suspect’s lawyer is excluded.

I said as much to a journalist from Crikey, and in October received a call from Assange, now back in London and in hiding as the threats from America and Sweden mounted. I invited him for lunch and he came with Sarah Harrison. He was charming (save for a moment of pique when he lost an argument with my wife, Kathy Lette, over the merits of Jane Austen) and when it turned out he had nowhere to stay for the next few nights, it seemed only compatriotic to put him up.

Offering Julian Assange a bed for the night might have been hospitable, but it soon became clear that he was not going to sleep in it, or at all. He took up residence in the kitchen, computer on lap, curled over it like a question mark.

The only way I could get him to sleep – at 5am – was to indicate the kitchen’s glass ceiling and to point out that any police helicopter could spot him a mile away. He instantly folded his computer and went off to bed. He was paranoid, of course, but he had every reason for paranoia, given the threats emanating from American politicians (Sarah Palin said he should be “hunted down like bin Laden”) and now from Swedish prosecutors, who vowed to issue a European Arrest Warrant (EAW) if he did not return to Stockholm for questioning.

The next day I took him for a walk in the autumnal serenity of Regents Park (its gnarled tree-trunks had been favourite “dead letter” drops for British spies during the Cold War). He seemed genuinely horrified by the sex allegations – it was “excruciating” for him even to talk about them. His mind was on higher things, but two women who announced that they “wanted to teach him a lesson” had enlisted for this purpose the power of the Swedish state. He had gone to bed, separately, with both of them, at their initiative, but they later found out about each other and presented him with an ultimatum to have a blood test to prove he did not have HIV/AIDS, or else they would go to the police.

He refused to be “blackmailed” (as he put it) and the very next day they had gone to the police. Immediately the prosecutor’s office told a tabloid that it was issuing a warrant for his arrest for rape. The hunt was now on: he had waited in Stockholm for six weeks before returning to London in October, but now the Swedish prosecutors wanted him back and were pressing for his arrest. They would have succeeded, had they filled in the EAWs correctly. While they corrected their mistake, Assange was allowed his moment of glory with the launch of “Cablegate”, hundreds of thousands of diplomatic messages exposing US diplomacy to a fascinated world.

In early December 2010, the inevitable happened: Assange presented himself for arrest to the UK police and was taken to Wandsworth Prison, the first stage in his extradition to Sweden. By this time I was in Sydney, having been invited by the federal attorney-general to conduct a Hypothetical at an international conference on child pornography. There had been an uncomprehending reaction to Cablegate by Australian politicians: Julia Gillard had immediately declared that Assange should be prosecuted under the Crimes Act, despite a famous decision of the Australian High Court in 1983 that declared that obtaining diplomatic cables could not be made subject to a prosecution under this Act. So I was providently placed to advise the government (and did) both on how Australia might protect children from porn and how Assange should be protected from knee-jerk defamation by his own prime minister.

Back in Britain, my client did not enjoy the petty restrictions of prison. My wife had sent him a Jane Austen novel, but he was not allowed access to the internet, and an issue of Time magazine was banned from the prison because it had his picture on the cover. I was prevailed upon to return from a Christmas holiday at Bondi in order to make a new bail application in London. What did surprise and slightly humble me was the number of “ordinary” Australians – Qantas crew, customs officials and the like – who had heard the reason for my departure and wished me success. They seemed proud that Australia had produced this wild-spirited genius, and certainly felt it unfair that he should suffer for revealing American secrets that mattered to the world. At present, however, he was suffering for allegedly molesting two women. But he was entitled to freedom until the Swedish extradition claim could be assessed by a UK court.

For his bail application, I had to refute some false allegations – for example that he had refused to be interviewed in Sweden (he had voluntarily attended a police interview at which he denied the allegations). But the central fact that affected the judge’s mind was that the charges facing Assange were “very serious”.

Rape always sounds very serious, and the Swedish prosecutors (in breach of their duty under European law) had refused to make available in English their dossier of evidence. Because of this, WikiLeaks had been forced to spend £10,000 translating it. So I was able to put before the court some facts about the case that had gone unmentioned in the media, and still tend to be overlooked.

It turns out that Sweden has three classes of rape – extreme, serious and minor. Assange was charged with “minor rape” – a contradiction in terms, but that is what the Swedes actually call the allegation against him. It amounted to allegations of having consensual sex without a condom, the use of which had been an implied condition of the consent. The maximum sentence for “minor rape” is four years, and an expert in Swedish sentencing law declared that given the circumstances of the offences the likely penalty for Assange, if he were convicted, would be non-custodial, or no more than a few months in prison.

In the case of both complainants, the police dossier confirmed that the sexual engagements were not merely consensual, but actively desired. Assange had come to Sweden at the invitation of a fringe political party to deliver a lecture on Saturday, August 14, 2010. The first complainant, a 33-year-old Social Democrat politician, told the lecture’s organisers that Assange could stay in her tiny one-room, one-bed flat, giving them an assurance that she would be out of Stockholm electioneering on the Friday evening. She returned, however, for no apparent reason, and took him to dinner and to bed – supplying a condom that she requested him to use, which he did.

One week later she alleged to police that at some point that evening he had torn it, or had torn it off. Oddly, given that this event is the basis of the molestation charges, she made no complaint the next morning, Saturday, when a colleague called to take Assange to his lecture. By that time she was proudly describing herself as his “personal assistant” and tweeting to the world about how “cool” and clever he was – tweets she later removed. On Saturday afternoon, she volunteered to be his hostess at a crayfish party and arranged it for that evening in his honour. Witnesses confirm that she insisted he stay with her, despite others offering to put him up.

She did not complain to the police until one week later, after learning that he had spent the next Monday night in bed with the second complainant, a 26-year-old self-confessed “groupie”, who told police she had attended Assange’s lecture in the hope of attracting him – an objective in which she succeeded all too well.

This second complainant took him by train to her flat in the suburbs on the Monday night, and then to bed, where he fell asleep and began to snore – to her annoyance, as she tweeted at the time to her rather voyeuristic friends. However, during the course of that night they had intercourse three or four times. On one occasion, when she was “half asleep”, as she put it, she asked whether he was wearing anything and he laconically replied, “I’m wearing you.” She did not object at the time but later inferred that he was not wearing a condom.

Her friends had read that he had spent some time in Africa so they advised her to have him take a test for HIV/AIDS. Her only way of contacting Assange was to call his “personal assistant” – the aforesaid first complainant. That’s when this “personal assistant” called a journalist friend of Assange’s to make a menacing demand: unless he took a blood test for HIV/AIDS, both women would go to the police.

The journalist told police he called Assange, who reacted with shock and said he was willing to take a blood test but did not want to do it as a result of blackmail. The next day (Friday, August 20), the first complainant directed the second to a police officer, who just happened to be her political colleague and “Facebook friend”.

In the course of the interview that ensued between this policewoman and the second complainant, the policewoman informed her that Assange would be charged with rape. The complainant reacted to this news by fainting. Nonetheless, a few minutes later an acting prosecutor, without further investigation, issued the warrant, and in breach of the rules revealed the fact to Expressen. Its scoop the next day – “Assange Wanted for Rape” – went live to millions throughout the world. Two days later, Stockholm’s senior prosecutor cancelled the arrest warrant and publicly stated that there was no basis to pursue a charge of rape.

I have given but a cursory summary of the 98-page police dossier – it can be read in full on the internet. It includes some eerie photographs of what looked like a jellyfish but was in fact a condom, supplied to the police by the first complainant, who said she had found it on the floor of her flat, two weeks after Assange had stayed overnight, and it might have been the one he ripped, or ripped off. There was a lab report, from a lab that reported that it had no experience of examining condoms, but it could have been torn. This hardly amounted to corroboration of the first complainant’s story.

But this was not “rape” as that term is normally understood. Whether it was an offence did not matter for the purposes of EAW extradition (that Sweden had ticked the “rape” box on the warrant was enough) but the very use of the word rape gives a false impression of malice and violence.

I should make clear that I believe that it should be a sexual offence for a man to deliberately deceive a partner whose consent has been conditional upon his use of a condom. That is the real allegation Julian Assange has an obligation to answer in Sweden, if (but only if) he can receive a fair trial.

But in Sweden, all rape trials, including allegations of “minor rape”, are held in secret. This, so the “gender prosecutor” explained to the court in a written statement, is so that “the complainants may give evidence in confidence” – i.e. confident that their testimony, and any cross-examination that may undercut or demolish it, will never be revealed to the public.

This means, to those familiar with the Anglo-American tradition of open courts, that justice will not be seen to be done, and may therefore not be done at all. It means that if lies are told, members of the public who know the truth will not come forward, because they will not know that those lies are being told. In Sweden, only the verdict is published, and sometimes the judge’s reasoning, but where the evidence has not been heard or published, it will be impossible to know whether the reasoning is reasonable. “Publicity,” in the words of British philosopher and jurist Jeremy Bentham, “is the very soul of justice: it keeps the judge, while trying, under trial.”

To deny open justice to Assange would not only be unprincipled, but absurd: statements by his accusers concerning his sexual behaviour, made in intimate detail, had been leaked to the media from the prosecution, published in skewed and selective detail by newspapers, and placed on the internet for anyone to access. No trial could be “fair” unless it permitted the public to observe how Assange challenged that evidence.

There is another curiosity of Swedish criminal justice that will render Assange’s trial unfair. There is no jury – only a judge and three part-time “lay judges”, who participate in and vote on the verdict. Astonishingly, they are selected not at random but by the main political parties and are, for that reason, very often retired politicians. As it happens, the major opposition party – the Social Democrats – has among its active members the first complainant and her lawyer and the policewoman who decided to issue the warrant. How could a member of that party judge him fairly? As for the government, the prime minister, the chancellor and other ministers in the coalition government all launched quite outrageous public attacks on Assange for criticising Swedish legal procedure. The very notion that he will be tried by superannuated politicians is unacceptable – all the more so as they will try him in secret, so any bias they actually show will be undetectable.

Swedish legal practice presents a further problem for Assange: he will not be allowed bail. Are Swedish prisons inhumane? Yes, says the European Committee on Torture, which should know: in 2009 it issued a report drawing the Council of Europe’s attention to Sweden’s ill-treatment of foreign prisoners, particularly in Gothenburg, the prison where Assange is likely to be held.

The reality of Swedish justice belies the country’s squeaky-clean image of a nice, neutral nation that has given the world such treats as Ikea and Abba. A closer look – for example, through the eyes of the novelist Stieg Larsson – shows a different side to this small country, or at least a hidden underbelly. It has the highest reported level of violent rape in Europe, for example (a statistic that Amnesty International has deplored), and allowing complainants to give evidence in secret has not produced more convictions.

Should the Australian government be doing more to cut the Gordian knot that keeps Assange in Ecuador indefinitely? It has a duty to help its nationals in difficulty, without necessarily supporting the conduct that has led them into that difficulty. The failure of the Howard government, over five years, to utter a squeak about the unfairness of the proceedings against David Hicks was deplorable, and although the two cases are different, the failure for almost three years to seek a fair trial for Assange in Sweden does begin to look like indifference. Our new foreign minister should summon the Swedish ambassador and make four requests:

1. That on Assange’s return to Sweden, arrangements should be made that would leave him at liberty (in the Australian embassy, if necessary) until any custodial sentence imposed at the end of his trial.

2. That his trial must be held in open court.

3. That he should be tried by a judge alone, or at least without “lay judges” recruited from political parties.

4. That when found not guilty, or at the end of any prison sentence served on conviction, he should be permitted to leave Sweden and return directly to Australia irrespective of any extradition request from any other state.

This would remove the prospect that Assange would receive an unfair trial and would give Ecuador no basis for continuing its protection – so long as the US was prepared to stay its hand (e.g. by not having him arrested in Dubai or Singapore, the Qantas stops on his way back home). That would require a foreign minister with the gumption to ask our great ally to put up or shut up.

The US grand jury has been sitting since October 2010: the prosecutors should either discharge it, or else bring down an indictment. If they do want to put this Australian on trial, will they please wait until he returns to Australia and then make their extradition request, so that Australian courts can consider whether to extradite an Australian?

This would be an entirely appropriate way for an independent country to act in relation to one of its nationals accused by prosecutors in a friendly nation of spilling its secrets. As well as consular assistance, it can and should express concern when Assange’s treatment falls short of the minimum values Australia itself promotes, certainly when they are in any case universal minimum standards: open trial, impartial judges and the opportunity for bail in the case of Sweden; due process and freedom of information in the case of the United States. Just as the Howard government should have spoken out for Hicks when his detention at Guantanamo became indefinite, so an Abbott government should be capable of asking the US to decide whether it wants to prosecute Assange as a spy, and, if so, produce its evidence to an Australian court once he returns home.

Meanwhile, Julian Assange cools his heels at the embassy, a prisoner of his own conscience. He suffers the slings and arrows of outrageous libels – enemies know that he has no money to sue for defamation and could not turn up in court if he did. But he still receives accolades, the highest of which was the decision of the producers of The Simpsons to make him – and not Nelson Mandela or Madonna – the honoured guest on the 500th episode of the program. (Kathy Lette was asked to contribute dialogue, so when Assange cooks a barbecue for Homer and Marge and they ask the recipe for his delicious marinade, he replies, “I’m sorry, but I never reveal my sauces.”)

If the Australian government fails to negotiate a solution then his pursuers may have to await a change of government in Ecuador, in 2018 at the earliest, before flushing him out. For now, he has plenty of visitors who leave their bicycles leaning on the embassy railings (it’s the only place in London where you don’t need to chain your bike) and take treats from the Harrods food hall to add to his menu. Although deathly white from lack of sun, there is little chance that this maverick Australian will pale into insignificance.

An edited extract from Dreaming Too Loud: Reflections on a Race Apart, by Geoffrey Robertson, published this week by Vintage Australia. © Geoffrey Robertson 2013. All rights reserved.