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European Arrest Warrant System Heavily Scrutinized in Assange Court Hearing

[UPDATE – 1:15 PM ET] Case details from Sweden were posted to The Guardian‘s live blog at the end of the hearing. “The Crown Prosecution Service said [The Guardian] could not post until the end of the day.” Here they are.

[UPDATE – 1:10 PM ET] According to The Guardian, the decision in the Julian Assange court hearing will come “within weeks.” They provide a nice summary on the appeal:

The WikiLeaks founder’s appeal revolves around whether a prosecutor has the right to request an extradition – as Sweden’s has – under the terms of the European arrest warrant (EAW) framework decision and the Extradition Act 2003 that incorporates it into British law.

That summary will help you understand many of the updates in the blog. Assange’s lawyer argued the judicial authority was a judge or magistrate and was never meant to be a prosecutor. Sweden’s lawyer argued there is no need for independence. A judicial authority can be prosecutors in some EU countries.

[UPDATE – 10:54 AM ET] Dinah Rose QC rebutting Montgomery’s argument. She was granted an hour even though court was to be adjourned by 11:00 AM ET (16:00 GMT).

Rose took issue with Montgomery, who apparently changed what she was arguing on the divisional court in her argument today. Rose spent yesterday making an argument about the divisional court that Sweden had been making, which Montgomery didn’t make today. She reminded the court this is about the meaning of “judicial authority” under the framework (the European Arrest Warrant system). She said she did not know that a person had to read into the notion of independence and impartiality.

Rose then went back and forth with judges (UK Lords) on Montgomery’s argument. A judge challenged Rose as she was suggesting an interpretation that may be right but which all countries do not necessarily apply to their utilization of the EAW system.

She made points about the European Human Rights Court (EHCR) saying it has already determined the question being deliberated, which is what constitutes an autonomous judicial authority (one that may not be a magistrate).

[UPDATE – 10:33 AM ET] Listening to Montgomery make arguments for Sweden has been nauseating. WikiLeaks supporters on Twitter have been tweeting witty messages for past hours: “This is the moment in the cartoon where the grand piano falls from the ceiling and squashes the troll” and “Jesus Christ where is the trapdoor?” via @NOH8ER; “Monty is far worse than waterboarding” and “Monty is giving people stomach aches” via @RixstepNews; finally, “Hope they took that horrid ankle tracker off of Julian during this appeal. Sitting there so long, and enduring Montgomery is bad enough” via @seasangJ

@HomoCarnula, who is known for translating German news stories that involve WikiLeaks, suggested Montgomery was using the “Chewbacca defense” here.

[UPDATE – 10:28 AM ET] Montgomery tells the judges that “judicial authority” requires a wide meaning because it serves an internationalist purpose. All countries must be covered so they can take advantage of the instruments in the European arrest warrant (EAW) system.

Per London journalist Barbara Gunnell, she noted Montgomery had said there is no language for human rights, challenging Rose’s argument that Assange’s rights were somehow violated.

Original Post

Screen shot of Sky News feed of Assange extradition appeal hearing. Montgomery defends Sweden's push for extradition.

WikiLeaks founder Julian Assange’s extradition appeal hearing is in the final hours of its second day. Claire Montgomery QC has been making the argument for Sweden in defense of Assange’s extradition. Yesterday, Dinah Rose QC made the argument in support of the appeal.

[WATCH: Final part of hearing streaming live now.]

London journalist Barbara Gunnell, who has been covering the hearing, reports that Montgomery outlined why a “judicial authority” can be a prosecutor. She appeared. But she stumbled and didn’t appear to be doing well with her argument.

Gunnell said Montgomery was arguing for “different local practices” and “different local interpretations of authority.” The judges (the Lords) appeared to be in disagreement and did not think this could include a prosecutor.

Lord Phillips requested a chronology on how laws were developed that included a description of the UK process for extradition. Phillips then disputed that a domestic warrant that had been obtained that preceded the European arrest warrant had “judicial authority.” She then began to flip frantically through papers and drafts she had lying before her, something she would do for much of the rest of the hearing.

It was noted in court by Montgomery that the framework that determines “judicial authority” was badly drafted in the wake of 9/11. Naomi Colvin, who is with UK Friends of Bradley Manning, reacted, “The 9/11 context in which EAW came into being is the nub of this whole issue, the reason why we’re here – in any number of ways.”

The Schengen Info System (SIS), a government database that is utilized by European countries to share information on individuals, popped up in the discussion. Montgomery argued that the UK was not a “Schengen country,” according to Griffin Boyce, but that it follows “bits of the Schengen scheme for extradition purposes.” [Background on SIS.]

According to Gunnell, the English notion of an arrest warrant that requires “judicial authority” is an exception. Montgomery conceded the system for warrants is “asymmetric.” A judge asked if the UK was wasting time to get a judge to sign arrest warrants. Montgomery said yes (which may not have been the best answer since she is in the UK). She continued to grasp for thin air periodically as judges challenged what she was saying.

A person watching the hearing could have turned off the hearing and seen that the prosecution was having trouble. There was a certain level of mania to the way in which Montgomery was making her argument. She was disorganized, didn’t have all her papers properly marked for the judges to follow and she claimed she had not had enough time to prepare. This was said despite the fact that Assange has been on house arrest for over four hundred days.

Of course, many of her arguments are part of mainstream legal thinking. Her manner and inability to clearly articulate her argument may or may not have an impact.

The British Supreme Court has the potential to greatly impact and influence changes to the way Europe does extraditions. This is a high profile hearing that is bringing great attention to inadequacies in the EAW system.

Some background, which I drew attention to yesterday.

Geoffrey Robertson, who served as president of the UN’s war crimes court in Sierra Leone, explained the central focus of the hearing today: judicial authority.

The principle is simple, at least in Anglo-American law. Judges must, as their defining quality, be independent of government. Police and prosecutors employed and promoted by the state obviously cannot be perceived as impartial if they are permitted to decide issues on the liberty of individuals. They are expected to be zealous in working up evidence against a suspect, so they are the last people who can be trusted to weigh up impartially the evidence they themselves have drummed up. That is a matter for a court.

So how comes it that in Sweden and 11 other continental countries, prosecutors and even policemen are allowed to issue a European Arrest Warrant (EAW), which has the draconian effect of requiring the arrest of people in another country and dragging them off for trial in the state that has issued the warrant?

For more background on the hearing, I encourage you to visit

Now, here is the stream of the hearing from Sky News. The hearing will run for the next few hours until 4:00 pm GMT (11:00 am ET). This is second day of the hearing.

Assange is represented by Dinah Rose QC and Gareth Peirce, who happens to be a pretty well-known human rights lawyer. Clare Montgomery QC is making arguments for Sweden.

The appeal hearing is an opportunity to wade into British justice and, more specifically, European extradition law and this issue of “judicial authority.” It may not be as sensational as the release of classified information but this shows what kind of legal cobwebs Julian Assange has to untangle in order to beat extradition to Sweden and get out of house arrest, which he has been under for more than a year.

*Stay tuned to this blog. I will post updates as the hearing wraps up.

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Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."