It’s facially unseemly that a British judge  refused to set bail for the release of Wikileaks founder Julian Assange.  Certainly the interest in him bears no relation to allegations of unprotected sex by two Swedish women,  dubious on a number of levels, while government officials  called for his prosecution for espionage, and even his assassination. 

Rarely does a case provide a clearer opportunity to test the integrity of the law.

At Head of Legal, former barrister Carl Gardner does what good lawyers do, separates the emotion and hyperbole from the legal issues surrounding Assange’s detention.

I’m not remotely surprised that bail wasn’t granted in this case. The charges of rape and sexual assault are serious ones, but more importantly, Julian Assange is a non-EU national merely visiting the UK, rather than having a home or close relationships here which would prevent him fleeing the jurisdiction. He’s known for moving from country to country. And at today’s hearing he couldn’t or wouldn’t give an address in the UK.

That on its own seems to me to make it difficult for the district judge to grant him bail. A number of famous names came forward to “stand surety” for him by putting up substantial sums to guarantee his reappearance, but there is a tendency, perhaps due to the influence of US crime dramas and the lack of accurate drama or televised reporting of English courts, to think that these decisions are about “posting bail” and that money matters a lot. It’s not as important as that. For a start, not all of those who were prepared to put up money even know Assange. Why should he care about them losing money?

As anarchy seems to be the flavor of the month (even from those still cashing checks from the government), many have put Assange on a pedestal, whether next to Martin Luther or Che Guevera. Such overwrought claims of his good or evil do nothing to assure him a fair shake in the process.

To the Westminster Magistrate, however, Julian Assange should be just another defendant, whose release or detention should depend not on visceral reaction but on the rational weighing of the equities necessary to determine what, if any conditions will assure his return to court. 

While the charges against him can be characterized as “serious,” that’s a subjective assessment that only carries weight in comparison to other charges.  This isn’t murder, nor even a claim of violent rape.  Rather, the women involved engaged in volitional sex, and complain only that Assange went without a condom, thus withdrawing their implicit consent.  Not good at all.  Not too evil in the scheme of things, assuming there’s merit to the claims.

Then there’s the fact that Assange walked into the police station of his own accord.  This is a huge factor in the scheme of flight, distinguishing the individual inclined to run from investigation and prosecution from the individual who voluntarily faces the accusation.  If Julian Assange was inclined to flee to avoid extradition and prosecution, then the time to do so was before walking into the police station.  People who come in on their own should not be presumed a risk of flight.

The most significant factor against Assange was his failure to provide a real address, a rather shocking omission.  While it’s understandable that Assange was disinclined to let potential black ops guys know where to find him, the consequence of denying that bit of critical information to the judge can’t be ignored.  The refusal to provide a real address where, should he fail to appear as required, he can be found is something of a requisite for release.  More to the point, the failure to provide it suggests that he doesn’t want to be found, which makes it very difficult for the magistrate to justify cutting him loose.

While I can’t claim to have a decent feel for either the British legal system or the relative likelihood that Assange would have been given bail but for Wikileaks, there is no question that the decision to detain him for extradition to Sweden appears to be predicated upon the extraneous concerns of his Wikileaks activities rather than for any purported unprotected poking.

It strikes me that the sub rosa context is not the Assange would flee from the charges against him, but from the fear that a hit squad from the United States will capture him in the middle of the night and plop him down in the middle of the southern district of somewhere for prosecution.  It’s funny how we employ extra-legal methods to vindicate our rule of law when it’s proves convenient.  And if that’s Assange’s fear as well, it would hardly make him appear paranoid.

It would prove embarrassing for the Westminster Magistrate to be the guy who cut Assange loose, only to have his disappear into the shadows.  There he was, in their grasp, and some goofy judge with a death wish for his career let him go.  That’s the big picture.

The little picture, however, is that Julian Assange is not an American citizen, and has not engaged in espionage against America by any rational definition.  That won’t stop the onslaught against him from a very angry government, and may well mean that it’s only a matter of time before he finds himself on a plane flying somewhere, whether it’s Sweden or the United States.

Like Carl, I’m not surprised that Assange was detained.  Not because he should have been detained, as there’s little doubt given his decision to subject himself to questioning by the Brits that conditions could be formulated to assure his appearance before the court as required. 

Rather, the lack of surprise stems from taking the safest route, detain him and then he’s guaranteed to be there when needed.  It’s not particularly comforting to know that our British cousins aren’t all that different from us, despite the many years that separate our respective legal traditions. 

The only bright spot, if there is one, is that Julian Assange, while in the custody of the Brits, can’t be whisked away in the middle of the night.  If he somehow finds himself in, say, New Jersey rather than old, his chances for a fair shake aren’t very good.

H/T CharonQC