4corners

This article was described by English lawyer and blogger and lawyer Peter Ede as “outstanding stuff“. He later added that it “takes the 4 Corners show apart point by point“.

The “4 Corners” show titled “Sex, Lies and Julian Assange” made by Andrew Fowler for ABC Australia has serious problems with inaccuracies and omissions. Many thanks to Göran Rudling for providing most of the detailed fact-checking on this one – but as ever we verified by digging out (and linking to) the primary sources below.

Though we have not used the names of the women involved in the case, some of the linked sources do and the ABC show does repeatedly.

A video summary of some of the below findings can be viewed here:

Contents
Assange’s Swedish Residency and work permit application
The question of consent
Charges?
STD tests?
Free to leave Sweden?
Arrest ordered
Red Notice
Back Doors
Detained without charge?
Are rape victims allowed to smile?
“Lawyer” vs “målsägarbiträde”
Unsigned statement?
Leaks – real and otherwise
Appealing a decision
Returning to Sweden?
Asylum from Sweden
Sweden and espionage extraditions
US allegations of espionage
Extradition, deportation, and rendition
Rick Falkvinge
Summary
ABC Response
ABC Update

06:20 – 07:30 Assange’s Swedish Residency and work permit application

It’s interesting to note that in this segment, 4 Corners comment a lot on the servers being used by Wikileaks, but make no mention of the other purpose of Assange’s trip to Sweden: to apply for residency and a work permit – which he did on 18th August. The request was refused in October, by which time Assange had left Sweden and refused to return for questioning. Swedish residency would have been very helpful to Assange, because it would have granted him protection under Sweden’s very open-minded laws on whistleblowers: whistleblowing is positively encouraged, and it is actually illegal for a journalist to reveal a source without permission in Sweden- see section 2.3.6.

10:07 The question of consent

4 Corners state that the question of consent is about whether a condom was used. In fact, the question is whether the woman was asleep at the time: both her being asleep and the lack of condom (for which there was a clear lack of consent) are the actual allegations.

According to Fowler himself, this was an “editorial decision”.


An editorial decision which just happened to remove a substantial part of the most serious allegation. We encourage the reader to look at that whole exchange of tweets, and we have screencapped it here and here – just in case. Perhaps Mr Fowler had not even read the High Court Summary of the case – but we can’t understand why this would be so. It is only four pages long, and is surely the sort of thing that a journalist would pick up first. On page three the summary points to paragraph 124 of the full judgment, and quotes it:

“The description of the conduct makes clear that he consummated sexual intercourse when she was asleep and that she had insisted upon him wearing a condom. …… it is difficult to see how a person could reasonably have believed in consent if the complaint alleges a state of sleep or half sleep, and secondly it avers that consent would not have been given without a condom”

Fowler also stated:

 

Which we find to be a very odd reading of the very clearly phrased paragraph from the High Court. We invite Mr Fowler to explain in more detail the reasons for his “editorial decision”, and what his understanding of that paragraph is – and why.

10:50 Charges?

Per Samuelson claims that neither woman filed charges. In fact, both women made complaints according to a memo by Linda Wassgrens on Aug 22. Charges, as anyone who has followed the case could tell you, can’t happen until after Assange is interviewed in Sweden – which is why he has not yet been charged, despite criminal proceedings having begun (see
our Common Misconception page for the court records). Remember that the next time you hear Mr Assange remind everyone that he “hasn’t even been charged with anything”. He hasn’t been charged only because he can’t be charged until he returns to Sweden according to the (different) Swedish process. But he has reached the equivalent stage in the process as if he had been charged under English law.

It has been pointed out that one of the women spoke to a newspaper on 21st August and another report is made on 22nd August. In both articles the woman is reported as saying that both women felt assaulted and went to the police to report that. However, this is testimony directly from one of the plaintiffs and cannot be considered neutral.

10:59 STD tests

Fowler claims that the women tried to get the police to force Assange to take an STD test. This is not mentioned in the memo by Linda Wassgrens describing events at the police station. The source of this rumour appears to be the Detention Memo which was supplied to Assange’s solicitors and then leaked (see below). It is not a claim made by either of the two women, the police, or the prosecutor: but rather by Assange and two other people who were interviewed.

We don’t think that anyone disputes that both women wanted STD tests; nor does anyone contest that they tried to get Assange to take one. However, we can find no evidence to suggest that the police were asked to enforce this.

We wonder whether Fowler has a more reliable source than the suspect and two other people – or if he is taking witness statements at face value? But isn’t the whole point of the 4 Corners show about the dangers of taking witness statements at face value? Odd.

12:30 Free to leave Sweden?

Samuelson claims that Assange’s former lawyer (Bjorn Hurtig) gave Assange a message that he was not wanted for interview and was free to leave Sweden. But the exact message from the prosecutor was that “no force measures are in place” to prevent Assange from leaving Sweden, and that the officer dealing with the case was ill so an interview could not be conducted at that point.

At no point did the prosecutor indicate that Assange was not under suspicion or would not be requested to attend an interview. In fact, the prosecutor was asking for an interview by September 21st at the latest – according to Mr Hurtig’s amended evidence.

Originally, Hurtig claimed (page 7):

a time for Mr Assange’s interview but was never given… leaving me with the impression that they may close the rape case without even bothering to interview him

but in court (page 8):

Hurtig confirmed.. his proof of evidence is wrong…

He then confirmed that on 22nd September 2010 at 16.46 he has a message [still on his mobile phone] from Ms Ny saying: “Hello – it is possible to have an interview Tuesday”.

Next there was a message saying: “Thanks for letting me know. We will pursue Tuesday 28th at 1700”. He then accepted that there must have been a text from him. “You can interpret these text messages as saying that we had a phone call, but I can’t say if it was on 21st or 22nd”. He conceded that it is possible that Ms Ny told him on the 21st that she wanted to interview his client. She requested a date as soon as possible. He agrees that the following day, 22nd, she contacted him at least twice.

13:39 Arrest ordered

The prosecutor ordered Assange’s arrest on 27th September at 14:15, after Hurtig informed her that he had been unable to contact Assange since the interview (due on the 28th) had been arranged on the 21st. Assange left Sweden the same day as his arrest was ordered, on the 17:20 flight to Berlin. Was he aware that a week earlier his lawyer had arranged an interview for the next day, or that his arrest had been ordered? Nobody is quite sure, and Hurtig himself even claims not to be able to remember:

He said “I don’t think I left a message warning him” (about the possibility of arrest)…

He referred to receiving a text from Ms Ny at 09.11 on 27th
September, the day his client left Sweden. He had earlier said he had seen a baggage ticket that Mr Assange had taken a plane that day…

He added “I can’t say if I told Ms Ny that Julian Assange had no intention of coming back to Sweden”. He agrees that at least at first he was giving the impression that Mr Assange was willing to come back…

In re-examination he confirmed that he did not know Mr Assange was leaving Sweden on 27th September and first learned he was abroad on 29th.

(Magistrates court findings, page 8)

14:00 Red Notice

Fowler claims that the Swedish prosecution “upped the ante” by issuing a Red Notice. As we have seen, it was in fact Assange who upped the ante by being unavailable to his lawyer for at least a week, then leaving Sweden the day that his arrest was ordered and refusing to return. When a valid arrest warrant has been issued in the EU but the suspect has gone abroad, a red notice is standard procedure for many jurisdictions. A Red Notice, far from being reserved for “Terrorists and Dictators” as Jen Robinson states, is merely a notice sent by Interpol that an individual is wanted for arrest. Some countries treat them as automatic arrest warrants: others do not.

An Interpol report from 2007 states that red notices for sex crimes are by no means unusual, and that fraud is in fact the most common reason. Indeed, one has even been issued for drink driving, and there was a red notice for a man wanted for making voyeur videos of college students – not a nice thing to do, but a less serious allegation than rape and sexual assault. Terrorists and (fleeing) dictators get an Orange Notice from Interpol to warn of the danger they may present and a red notice when they are actively sought for arrest – according to Interpol.

We invite Jen Robinson to clarify for us if she indeed believes that a Red Notice is as she appears to state in the 4 Corners show.

17:15 Back doors

Fowler speculates that extradition to Sweden would be a “back door” to onward extradition to the USA for espionage – using the standard procedure of “Temporary Surrender”, which bypasses nothing at all (see article 18). The English Crown Prosecution Service also have a summary at the bottom of this page. Temporary Surrender is a standard EU process, so the English version will be similar to the Swedish. But in any case, Sweden does not extradite for military or political crimes according to Swedish legal expert Mark Klamberg – and Sweden classifies espionage as a political crime.

So as far as we can tell: Fowler thinks that a standard process may be used to take Assange to the USA (then return him so that extradition hearings can begin) in order for the Swedish courts to reject a totally invalid request that explicitly falls outside the US extradition treaty with Sweden, for an offense that Sweden has repeatedly refused to extradite for. But any Temporary Surrender request would itself be rejected out of hand if it was for an act which Sweden do not consider to be extraditable.

Again, we would very much appreciate a clarification from Mr Fowler on what he intended to say here.

18:18 Detained without charge?

Assange (talking from the Ecuadorian Embassy) says that if he returns to Sweden, he would be detained without charge. We have already covered at what point charges are laid – and that Assange has already reached that stage in the Swedish process. Pretrial detention is indeed standard for a suspect who is believed to be a flight risk (and not just in Sweden). But in Sweden, pre-trial detention is a fairly standard practise for most suspects of serious crimes – though the detention must be reviewed after three and a half days (not four, as Samuelson states elsewhere in the show). But given Mr Assange’s current location on Ecuadorian territory, there are probably reasonable grounds to suspect that he does indeed represent somewhat of a flight risk if he ever does return to Sweden.

It is worth noting that before he fled Sweden, the prosecutor had stated that he could attend an interview “discretely” (Supreme Court agreed facts, item 20 – no online link available to the court site, but scribd has what claims to be a copy).

22:50 Are rape victims allowed to smile?

Per Samuelson appears to state that there is some sort of standard formula that rape victims should follow after being raped. The English Crown Prosecution Service beg to differ, as do all rape victim support groups. It is also worth noting that Samuelson is talking about the woman who has not made an allegation of rape.

23:15 “Lawyer” vs “målsägarbiträde”

The caption given to Claes Borgstorm is “Lawyer for [REDACTED] & [REDACTED].” As Goran Rudling has pointed out elsewhere, this is not the case. While Borgstrom is a qualified and practising lawyer, his role in this case is one of “målsägarbiträde” to the two women. There is no easy English translation, but a good approximation is “assistant”. While Borgstrom happens to be a lawyer, that is not a requirement: a målsägarbiträde could be a police officer, or even a member of the public with insight into the processes. He was appointed by the court (and is paid by the state for his work on the case). Rudling’s explanation is very clear – his role is to:

provide support and assistance to the injured party and defend his/her interests in the case. It is also the duty of the “målsägarbiträde” to look after the economical interests of the injured party.

To call him the “lawyer” for the two complainants could give quite the wrong impression to an English-speaking audience who are unfamiliar with the role of “målsägarbiträde”. A closer English equivalent would be “counsellor to” or “advisor to”. We wonder why 4 Corners chose “lawyer” instead?

27:05 Unsigned statement?

Fowler claims that one woman refused to sign her statement. The statement was indeed not signed immediately – but this could be because they did not wish to keep the woman waiting around while the paperwork was completed. There is nothing in the police record (or anywhere else that we are aware) to suggest that she refused to sign… it’s another of those persistent rumours that one hears but cannot find an origin for. Again, we assume that Mr Fowler has accounted for the dangers in taking witness statements at face value, so we presume that he has something official on this. We would very much like to see it.

It is worth noting that in Sweden a signature is not required until trial. Statements can remain unsigned for a while after they are first taken.

28:15 Leaks – real and otherwise

Contrary to what Fowler states, there were no documents leaked by the authorities to the tabloids. Somebody (who remains unknown) gave the media the full details. Rudling believes that at least three media organisations were given the details. The Expressen called the original prosecutor with the full details already to hand, and she confirmed that Assange had been arrested in absentia. She should not have done this. The media then applied for the police statements under the Swedish equivalent of the Freedom of Information Act, and the police were obliged to release (redacted) copies.

But unredacted copies were leaked later. From the leaked material, it appears that these were copies of documents that were given to Assange’s legal team – note the fax appears to be from Bjorn Hurtig to Jennifer Robinson. Mr Hurtig even notes on the front page:

Please notice that the documents are legally priviliged information for Mr Julian Assange and nobody else.

These documents were sent by fax from one lawyer to another and clearly marked as priviliged. Yet here they are: leaked. 4 Corners appear to have missed the real leak and instead supposed another one which never actually existed.

28:57 Appealing a decision

Fowler states that the case being re-opened was a “strange twist”. In Sweden, a case decision can be appealed. If the original prosecutor stands by their first decision, the appeal is then heard by the next most senior prosecutor. This is known as “överprövning av åklagarbeslut”, and the (absolutely standard) process is documented here. From that government page, we can see that in 2010, 12% of all appeals were successful.

Eva Finné made the decision to drop the rape charge. It was appealed by Borgström on 27th Aug. Finné stuck to her decision. Finné was the highest ranked at City Åklagarkammare, so it went to next level: Utvecklingscentrum in Gothenburg. Marianne Ny overruled Finne’s decision.

So this is by no means unheard of. We can only assume that – despite his research – Fowler didn’t manage to uncover this aspect of the standard Swedish legal processes, or that 12% of all appeals in the same year as Assange’s had the same “strange twist”. We find this surprising, since he must surely have been specifically looking into this process: and the statistic is documented on the same government web page that describes the process itself.

30:20 Returning to Sweden?

Fowler claims that Assange offered to “return within a month”. He was actually due to return anyway. This is even acknowledged on the highly biased rixstep.com website (which contains the now infamous attack article which the official Wikieaks twitter feed linked topossible trigger warning if you click through to that – you can see selected quotes from the article here).

The Rixstep site says:

Julian Assange was due to return to Sweden in less than a week as part of a conference on Afghanistan. He was to hold a talk on 6 October together with Pratap Chatterjee and Jesper Huor.

So it appears that Assange was scheduled to give a talk on 6th October in Sweden. The prosecutor arranged for him to be questioned there. From Hurtig’s evidence (page 7, Magistrates court findings):

[Hurtig] gives details about a proposal to hold an interrogation on 6th October, which he believes was because the police thought his client would be in Sweden then giving a lecture. That information was leaked to him.

It is not clear if Hurtig meant that the information was leaked to himself from the authorities, or to Assange by somebody. In any event, Assange never arrived to give the talk that Rixstep claims he was due to give.

The warrant has now been examined by six courts: the Swedish court that issued it, the Swedish Court of Appeal of Svay, the Swedish Supreme Court, the English Magistrate’s Court, the English High Court, and the English Supreme Court.

Every single one of those courts has examined the warrant and found that it is valid.

We note that two years on, Assange has not yet returned to Sweden, but rather he has fled to the Ecuadorian Embassy. We consider that six courts and an asylum claim are a rather odd way of returning to Sweden within a month.

31:44 Asylum from Sweden

Assange states he could not claim asylum once in Sweden. Yet Sweden can and does offer asylum from the USA: several hundred former US military personnel are currently resident in Sweden precisely because they deserted the US military. Sweden does not extradite for political or military crimes. Even Edward Lee Howard (who was detained by the Swedish authorities for an expired visa) was allowed to depart quite freely to the destination of his choice upon his release even though the USA had requested his extradition. More on this later.

However, Assange’s meaning could be ambiguous. If he means that whilst detained in Sweden he would be unable to apply for asylum from Sweden, then that is indeed the case. But he has always maintained that he will happily return to Sweden if he is not then given to the USA for espionage – which Sweden cannot do.

We remain puzzled on this one.

32:00 Sweden and espionage extraditions

Jen Robinson says that the Assange legal team fear that the US will apply for extradition from Sweden. Presumably for espionage – which, as we have seen, Sweden does not extradite for. She fears that Assange may not be able to return to Australia: a country which does extradite for espionage, and would be a much more likely bet for any US attempt. For the outside observer, it looks very much as if the safest place for Mr Assange to be if the USA issued a warrant would in fact be Sweden.

33:42 US allegations of espionage

4 Corners have obtained Grand Jury evidence which mentions “national defense”. Which is espionage. Which Sweden doesn’t extradite for. Swedish expert in international law Mark Klamberg is very clear on this. Did 4 Corners check to see if Sweden could actually extradite for espionage, before basing their entire show on that assumption? We find it difficult to believe that they did, as all the Swedish legal experts (and case histories) seem to be in agreement on this.

Edward Lee Howard was wanted by the USA for espionage after he deserted from the CIA and gave the Soviets classified information – reportedly leading to at least one death. The Swedes had arrested him due to an expired visa. The USA requested an extradition, which Sweden refused on the grounds that it was for espionage, and Howard returned to Moscow where he lived out the rest of his life in peace.

Who was the Swedish Prime Minister at that time? It was one Carl Bildt: the very same man that some people are claiming is a US puppet, willing to help extradite for espionage at the drop of a hat.

43:20 Extradition, deportation, and rendition

Fowler claims that Sweden has acted illegally in past extraditions. There is no dispute that Sweden acted illegally in deporting the two Egyptian men – but that was a deportation to their home country. It was not an extradition, and followed a different process. The courts were not involved, for one thing.

This deportation caused quite a scandal in Sweden, and rendition flights were stopped altogether in 2006 when the Swedish military boarded such a flight to prevent it. This caused a diplomatic row between the USA and their (according to the 4 Corners show) lapdog partner Sweden. Sweden refused to back down and halted the flights. We know all this because the details were leaked in December 2010: by Wikileaks.

43:27 Rick Falkvinge

We’re not quite sure what Rick Falkvinge is doing on this show at all. He is the founder of the niche “Pirate party” in Sweden, which polled 0.65% of the vote in 2010 (well below the 4% required to win representation in Parliament). Falkvinge quit the leadership of his own party a few months after making controversial remarks about child pornography. It is quite ironic to see the founder of a party that has “personal privacy” as a core value speaking on a show which names the women in the case. We wonder if he knew this was going to happen, and what his views on it are? If anyone can let us know, we’d be fascinated.

Update: many thanks to Rick Falkvinge himself for clarifying his position on the naming of the women by tweets from his account (links are to the tweets).

I was not aware they would be named on television. I don’t think it’s appropriate to name neither accuser nor defendant of still-open case. It could be argued that their names are common knowledge, and perhaps AU’s traditions are diff than SE’s.

Perhaps I should clarify. I was not, to my memory, directly informed that they would. In hindsight, I could have deduced if somebody had asked me the question. “Could I have realized?” Yes, but I didn’t. “Was I aware?” So, no.

Rick Falkvinge makes another appearance at the end, to share his opinion of international politics. We are still unsure why 4 Corners think that Falkvinge is qualified to speak on this at all. According to Falkvinge, Sweden is a US lapdog who jump at the behest of the USA. Perhaps he is unaware of Edward Lee Howard, the several hundred US military deserters and the Swedish military intervention over rendition flights?

At 43:50, Falkvinge seems to be under the impression that the two Egyptian deportees were Swedish citizens. But some quick research showed us that neither was a Swedish citizen: the two Egyptian men were in fact two Egyptian men.

Update: Thanks again to Rick Falkvinge for clarifying via twitter:

I am not aware of the case you mentioned. I was shocked to learn SE had _ever_ performed rendition assistance to US.

Update 2: Mr Falkvinge gave us some further comments:

If a connection is implied, I’d like to make absolutely clear there isn’t any. I have specified my… five reasons for stepping down clearly here: http://t.co/KAgFhtvs. The statements you refer to were part of my job duties – responding to media about policy.

Summary

There are numerous errors of fact in this broadcast. Some are surprisingly basic.

Several observers have commented that the evidence against Mr Assange does not seem terribly strong, and that he may not even be charged once the Swedish prosecutor has managed to conduct the interview that was first arranged for 28th Setpember 2010.

We have now seen the actual facts, including the real risk of extradition to the USA from Sweden for espionage. So while we strongly believe that it is the job of the court to examine the evidence, we do have to ask: if the evidence really is as weak as the 4 Corners show suggests, then why is Mr Assange still avoiding facing the allegations in Sweden?

To conclude: as entertainment, we think that the 4 Corners show certainly delivered. But we can’t really, in good conscience, call it a “documentary”. We wouldn’t call it “accurate”, and we are hesitant to use the word “researched” at all: though clearly some background information had been gathered prior to the show, much of it seems to have evaded even the most cursory background check.

ABC response

We contacted ABC some time ago (when this article first went live) and asked them to comment. Kieran Doyle of the Audience and Consumer Affairs department replied on 28th September 2012, stating that ABC Australia are unable either to view our webpage or to follow the links that we provided:

if you wish to submit a complaint to the ABC, you must send that complaint directly to the ABC, not direct the ABC to go and have a look at your complaint on another platform.

We had submitted the link to this webpage directly to ABC using their standard complaints channels.

Mr Doyle has requested a submission in plain text. This has been sent. We look forward to Mr Doyle’s reply.


UPDATE

The ACMA (Australian Communications and Media Authority) investigated the 4 corners show. They concluded that:

“ABC presented Mr Assange’s experience of the allegations of rape and sexual assault and his fears (whether founded or not) about potenatial ownward extradition”

and

“ABC is entitled to present and explore Mr Assange’s perspective”

which we really must acknowledge that they did exceedingly well.

The ACMA also thought that:

“the comments from [Jen Robinson], Mr Assange’s UK lawyer about the issue of the Red Notice being unusual was an expression of opinion, accurately reported”

4 Corners describe themselves as having:

a proud tradition of investigative journalism and rigorous analysis

We wonder which other past episodes have also looked exactly like rigorous analysis but were, in fact, wildly erroneous and “opinion” based.

Andrew Fowler parted company with ABC during the investigation. We do not know if his departure is in any way related to the investigation.