Can Sweden grant Assange any assurances?

no extradition for Julian Assange

no extradition for Julian Assange (via Vertigogen, Flickr)

There’s an interesting online debate currently ranging about whether Sweden can grant Julian Assange any assurances that he will not be extradited to the USA. The debate erupted after the New Statesman’s legal commentator David Green wrote an article entitled Legal Myths about the Assange extradition. The article made several points, all of which merit further analysis, but the most contentious was his claim that it would not be possible for the Swedish government to give any legal guarantee about possible future extradition. Green claimed that:

Any final word on an extradition would (quite properly) be with an independent Swedish court, and not the government giving the purported ‘guarantee’.

This is supported by Swedish Foreign Minister Carl Bildt who recently said that the government could issue no assurances:

The Swedish court system is independent. I cannot make any declaration that bind the court system in any way. I would then be violating the Swedish constitution.

American critic Glenn Greenwald picked up on Green’s article claiming it was false and demanded that Green issue a clarification and apology to New Statesman readers. Greenwald quoted Swedish legal professor Mark Klamberg who had earlier addressed the issue on his personal blog saying:

Even if the supreme court has found that there are no obstacles, the government can refuse extradition. This is because section 1(1) provides that if certain conditions are fulfilled, a person ‘may’ not ‘shall’ be extradited. In other words, even if the prosecutor-general and the supreme court finds that all conditions for extradition are fulfilled the government may veto such extradition.

Klamberg then hit back saying he had been misquoted by Greenwald. In a post entitled Sequencing and the discretion of Government in extradition cases, he claimed that the situation was not as straightforward as Greenwald claims. Klamberg writes:

In essence (Greenwald) is arguing that the Government should have the first and the last say with the Supreme Court in the middle. That would make the Supreme Court redundant which is contrary to the sequence that is provided for in the Extradition Act which I have tried to describe. It may also violate the principle of separation of powers.

Klamberg also quoted fellow international law professor Ove Bring interviewed in Swedish newspaper Dagens Nyheter who says:

The Supreme Court can not predict its own decision. If such a request is asked for it must be processed pursuant to the established manner. Subsequently the Government may deny extradition even if the Supreme Court has said yes but the Government can not issue any guarantees at the current stage. That would mean that the Government bulldozes the judicial system and says that it is irrelevant. It does not work that way in a democracy.

Finally, Klamberg also highlighted US-Swedish extradition treaty obligations which may complicate the issue further.

Greenwald wrote a repost to this on his personal blog this time quoting the Swedish government website which seemed to agree with Klamberg’s original assessment. Greenwald later took aim at Klamberg on Twitter questioning his objectivity on this issue because he is married to a Swedish government minister.

It does seem therefore that although the Swedish government would have final say, it can’t do anything until an extradition request has been made and the Swedish Supreme Court has considered that request. The question is then, can the Swedish government even issue any kind of worthwhile statement to Assange? Perhaps a simple public statement of the law is all that’s possible.

I suggested this possibility to Klamberg several days ago in the comment thread of most recent post:

Thanks for this detailed analysis Mark. Would it be fair to say then that the Swedish government could issue a statement along the lines of: “The government has discretion on any Supreme Court ruling on extradition but it should be remembered that it is also bound by international extradition agreements that may take precedent.”

So far there has been no reply. Greenwald made a similar point in his post:

Swedish authorities could, for instance, publicly state that they view espionage charges for the “crime” of reporting on government secrets to be a “political crime” not subject to extradition, but still reserve the right to formally decide upon any extradition request if and when they receive one.

However, you can understand the Swedish government’s reluctance to simply state Swedish law. In their view, the law is the law and it would be applied to Assange the same way as it would anyone else. Making an exception for him with some kind of public statement would be simply unnecessary in their eyes. If Assange really is asking for something impossible from the Swedish government, it seems the situation will remain deadlocked for a very long time to come.