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(updated below)
The New Statesman owes its readers a correction for a clear and crucial falsehood contained in this much-cited argument by its legal correspondent, David Allen Green. As I noted on Wednesday, Green purported to debunk what he called "common misconceptions" and "myths" being spread by supporters of Ecuador's asylum decision in the Assange case, but in doing so, he propagated his own myth on the key question in this matter. By doing so, he misled large numbers of readers not only at the New Statesman but in many other venues which cited his claims. Regardless of one's views on the asylum matter, nobody should want clear errors on the central issues to be left standing in major media outlets.
The falsehood here is clear and straightforward. One of the "myths" Green purported to debunk was that "Sweden should guarantee that there be no extradition to USA." Assange's lawyers, along with Ecuadorean officials, have repeatedly told Sweden and Britain that Assange would immediately travel to Stockholm to face these allegations if some type of satisfactory assurance against extradition to the US could be given. This is the paramount issue because it shows that it is not Assange and Ecuadorean officials -- but rather the Swedish and British governments -- who are preventing the sex assault allegations from being fairly and legally resolved as they should be.
But Green claimed that "[i]t would not be legally possible for Swedish government to give any guarantee about a future extradition, and nor would it have any binding effect on the Swedish legal system in the event of a future extradition request." He said that this is so in part because "any final word on an extradition would (quite properly) be with an independent Swedish court, and not the government giving the purported 'guarantee'." He then cited a British lawyer (notably, not a Swedish one) who made the same claim:
"[I]t appears that if the extradition is contested as it would be in Assange's case then it is a matter for the court not the government to decide if he is extradited."
This is completely and unquestionably false. It is simply untrue that it is Swedish courts, rather than the Swedish government, who are the final decision-makers in extradition requests. It is equally untrue that the Swedish government has no final decision-making power regarding extradition requests that are legally sanctioned by the Swedish judiciary. These are not matters for reasonable debate. The law is clear. Green's claim is false.
Last night, international law professor Kevin Jon Heller at Melbourne Law School emailed me and wrote:
"[I]t is incorrect to say that the final decision to extradite Assange from Sweden to the US would be made by the courts."
He directed me to this analysis from Mark Klamberg -- a professor of international law at the University of Stockholm -- who dissects Sweden's extradition law and makes Green's error as clear as it can be [my emphasis]:
"How does procedure work if somebody is to extradited from Sweden? ... [I]f the person referred to in the request has not consented to being extradited, the case shall be tried by the supreme court. Section 20(1) provides that if the supreme court has considered that there is a legal obstacle to extradition the request may not be granted.
"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. It does not work in the reverse way, the government can not grant extradition if the supreme court has found that any of the required conditions are lacking."
Let's repeat that: "Even if the supreme court has found that there are no obstacles, the government can refuse extradition." And: "Even if the prosecutor-general and the supreme court finds that all conditions for extradition are fulfilled the government may veto such extradition." In other words, under clear Swedish law, the Swedish government has exactly the final decision-making authority over extradition that Green told his readers it lacks.
Professor Klamberg is far from alone in making this clear. As I noted on Wednesday, this Swedish-Moroccon lawyer analyzed Swedish extradition law in rigorous detail to make the same point:
"Swedish extradition law clearly states that the Swedish government is the body deciding on any extradition request."
