Thus, the question is if the principle of dual criminality shall be applied based on the actual circumstances (documents classified under US rules and aiding US enemies) or on an equivalent Swedish situation (documents classified under Swedish rules and aiding Swedish enemies).
Further: what about the source privilege? Under Swedish law, it is with some exceptions not punishable to leak classified information to the media. There is, however, an exception as regards Swedish military secrets. Is the source privilege applicable when it comes to extradition?
Yes, probably. If, for example, a leakage to the press of business secrets in another jurisdiction is regarded as a crime and extradition from Sweden is sought, the application should be denied – notwithstanding that such leakage, in general, is criminalised also in Sweden.
The source privilege takes over. But what about foreign military secrets? Is the exception to the source privilege as regards military secrets applicable to only Swedish secrets or, in extradition cases, also to military secrets of the foreign state? There are further questions:
a) Do you leak information to the enemy in a legal sense when you leak it to the world at large?
b) It could also be asked if the offence is purely military or to be regarded as political.
Other questions could also be put. But I restrict myself to these queries and put them to you for your consideration.
Principles that govern
It is obvious that globalisation demands well-organised and far-reaching co-operation between states in order to efficiently fight cross-border crimes.
But co-operation means you must, in large measure, trust authorities in other jurisdictions. These are sensitive issues. They concern the rule of law.
During my years as a practising lawyer I learned to mistrust any organisation, including the state. When people come together and think of themselves as united with a special task or goal, astonishing dynamics can cause strange things to happen. Thus, I think that one shall not presume that the state, or any part of it, is always good. If anything should be presumed at all, it is to the contrary. It is sometimes necessary to view the different authorities of the state as heads of a vicious Hydra. You have to be attentive and to be prepared to fight the evil that a misled intent to do well can result in.
Now, if a foreign authority wants anything, you should be even more aware. Why? Not because other states are even more wicked than your own – I guess they are more or less the same. But because, when a state acts outside its borders, the presumption is – plainly put – that it shall mind its own business.
That applies to extradition, I think, especially when it comes to crimes that are not directed against individuals, but against the state. Generally, in my opinion a state that claims to have been offended – and therefore applies for extradition of the purported persecutor – should not be helped out. This is also, to a certain extent, reflected in Swedish legislation – including the agreements between the US and Sweden – in that extradition shall not be granted when the alleged crime is military or political in nature.
Leaked information
At the end of the day, many years from now, I think Assange will not, even in Sweden, be associated with his efforts to escape the laws of Sweden. He will be thought of as the person who made public some pieces of classified information to the benefit of mankind.Crimes against humanity such as the [WikiLeaks images of Iraqi civilians being killed in a] helicopter shooting need to be made known. The good made by leakage of such information cannot be underestimated.
It should never be a crime to make crimes of state known.
But leaks of that kind need not only facilitators like Assange. They also need conscientious brave men and women like Bradley Manning. Let us not forget him. Let us hope and pray that he will have a fair trial and balanced sentence. I cannot judge to what extent leakage of all the documents was ethically defendable.
But I strongly hold that part of the leak was to the good of society and should not be punished.
http://www.afr.com/p/lifestyle/review/julian_assange_swedish_judge_view_UKXfH1Wo...
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