Below is an email from international law professor Kevin Jon Heller at Melbourne Law School to me last night, August 24, 2012 (Professor Heller is the one who first emailed me to draw my attention to Mark Klamberg's post arguing that it is the Swedish government, not Sweden's courts, that is the final decision-maker on extradition; Klamberg was one of four legal sources I cited in my column on the false statement by David Allen Green about extradition):
Wow, my apologies. I'm shocked by Klamberg's tweets -- I completely and unequivocally endorse your reading of his post. I have no idea why he thinks you misrepresented him, because you didn't. I can only assume he doesn't like being used to support a political position with which he disagrees.
For the record, here is the text of a Congressional Research Service report on extradition under U.S. law, which takes exactly the same position as Swedish law:
If the judge or magistrate certifies the fugitive for extradition, the matter then falls to the discretion of the Secretary of State to determine whether as a matter of policy the fugitive should be released or surrendered to the agents of the country that has requested his or her extradition. United States v. Kin-Hong, 110 F.3d 103, 109 (1st Cir. 1997) (“It is then within the Secretary of State’s sole discretion to determine whether or not the relator should actually be extradited. See 18 U.S.C. §3186 (`The Secretary of State may order the person committed under section 3184 . . . of this title to be delivered to any authorized agent of such foreign government . . .’”); Executive Discretion in Extradition, 62 COLUMBIA LAW REVIEW 1313 (1962)._____________
Here is the first email Professor Heller sent me, from the day before:
Just one note: it is incorrect to say that the final decision to extradite Assange from Sweden to the US would be made by the courts.
As my friend Mark Klamberg -- a professor of international law at the University of Stockholm -- points out in this post, the government could refuse to extradite Assange even if the courts approved it.
Nor is that unusual; I don't know of any states that give the final decision to courts instead of to the executive._____________
Along with the four separate sources I cited in my article, Professor Heller's email makes five legal authorities all saying the same thing: that it is the Swedish Government, not its courts, that is the final-decision-maker in extradition matters.
That means that what David Allen Green wrote in the New Statesman -- "any final word on an extradition would (quite properly) be with an independent Swedish court, and not the government giving the purported 'guarantee'." -- is 100%, factually false, and merits a correction by the New Statesman.
As Professor Heller notes, one of those five sources supporting this conclusion continues to be Mark Klamberg, who, when writing about the Assange extradition controversy, wrote: "Even if the supreme court has found that there are no obstacles, the government can refuse extradition." Klamberg also wrote: "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."
Unless and until Mark Klamberg repudiates his own words, then he -- along with the other four sources I cited -- all prove Green was fundamentally wrong. Indeed, after spending all day yesterday claiming I "distorted" his argument, Klamberg today wrote regarding a different post he cited: "both [Green] and [Greenwald] are right, but also that both are wrong."
The issue I wrote about is a narrow but vital one. It was not about the general issue of whether Sweden can issue a guarantee now (an issue on which -- as I noted -- Klamberg disagrees with me). It was about one issue only: namely, is it the courts that are the final decision-maker on extradition (as Green claimed), or the Swedish government (as all of these legal sources state)?
Klamberg's post could not have been clearer on this question. It is the government, not the courts, that is the final-decision maker. That is the only proposition for which I cited him, and it is exactly what he wrote.
The fact that Klamberg, whose wife is a high-level official in the Swedish government, may be embarrassed or uncomfortable that what he wrote can be used -- and, by me, was used -- to support the Assange argument in this controversy does not change the clarity of what he wrote. I expressly noted that Klamberg was hostile to the pro-Assange argument, but the clarity of his words resolves this dispute conclusively.
If Klamberg wants to say now that it is the Swedish courts rather than the government that is the final decision-maker -- and thus reverse himself and go against the overwhelming weight of authorities who say the opposite -- then he should do so explicitly. Unless and until he does so, his post supports exactly the point I made, and I encourage everyone to compare what I cited him for to what he wrote.
UPDATE: In addition to all the other sources I cited, here is the Swedish government's official website on the process of extradition:
If the Supreme Court finds that there is any legal impediment to extradition, the Government is not allowed to approve the request. The Government can, however, refuse extradition even if the Supreme Court has not declared against extradition, as the law states that if certain conditions are fulfilled, a person "may" be extradited - not "shall" be extradited.Can that be any clearer? At this point, only the most wilfully irrational person can deny that Green made a factually false claim when he wrote that "any final word on an extradition would (quite properly) be with an independent Swedish court, and not the government giving the purported 'guarantee'."
UPDATE II: In a letter it sent last week to the Organization of American States "on the Situation between Ecuador and the United Kingdom," the Swedish government made clear that it is not its courts that are the final decision-maker on extradition, but the government itself [my emphasis]:
The Extradition Act also includes grounds for refusal of extradition, such as political or military offences and situations in which the person who is extradited is at risk of persecution. If the person sought does not consent to the extradition, the request for extradition is examined by Sweden's Supreme Court before a final decision on extradition is made.Like all the other above-listed evidence, this is the precise opposite of what David Allen Green told his readers: "any final word on an extradition would (quite properly) be with an independent Swedish court, and not the government giving the purported 'guarantee'." That is why, though it will not be forthcoming, the New Statesman owes its readers a correction on such a key point.