The release from a UK prison of Julian Assange is a victory for him and his many supporters around the world, but not necessarily a clear win for the principle underlying his defence, the freedom of the press.
The charges Assange is anticipated to plead guilty to as part of a US deal, and for which he will be sentenced to time served, are drawn from the 1917 Espionage Act, for “conspiring to unlawfully obtain and disseminate classified information related to the national defense of the United States”.
So although the WikiLeaks founder is expected to walk free from the US district court in Saipan after Wednesday’s hearing, the Espionage Act will still hang over the heads of journalists reporting on national security issues, not just in the US. Assange himself is an Australian, not a US citizen.
US prosecutors argued that Assange was not a proper journalist, but a hacker and an activist with his own agenda, who endangered the lives of US sources and contacts, so the Espionage Act could be applied without harming press freedom.
But press and civil liberties advocates took the view that it was irrelevant how Assange was defined. The things he was accused of doing, “obtaining and disseminating classified information”, are what national security journalists do for a living.
The revelations WikiLeaks published about the Iraq and Afghan wars in 2010, leaked to the organisation by an army intelligence analyst, Chelsea Manning, brought to light possible human rights abuses by the US military in those wars, among other things. They were published by the Guardian and other news organisations on the grounds there was a strong public interest in those secrets being brought to light.
When it took office in 2021, the Biden administration had the option of dropping the Espionage Act charges brought by its predecessor, the Trump presidency. After all, the justice department under Barack Obama had chosen not to pursue them because of concerns for the implications for journalism.
US prosecutors under Biden chose however to pursue the Trump charges and fought to extradite Assange from the UK. They had the option of making a plea deal based on other charges, such as getting Assange to plead guilty to the misdemeanour of mishandling classified documents, the deal reportedly floated in March with the encouragement of the Australian government. Or they could have opted for a hacking conspiracy charge, which would not have had the same spillover implications for journalism.
By all accounts, Joe Biden did not even want Assange to be brought to the US. Assange’s extradition to face trial would have been a damaging distraction for the struggling president in an election year, further alienating progressives and libertarians.
Biden said in April that he was considering an Australian request to drop the prosecution. But the justice department seems to have stuck to its guns and the prosecutors pressed ahead, only agreeing to a plea deal after Assange won the right last month to appeal against his extradition in the high court in London. Even then, the justice department stuck to its insistence on using Espionage Act charges.
“A plea deal would avert the worst-case scenario for press freedom, but this deal contemplates that Assange will have served five years in prison for activities that journalists engage in every day,” Jameel Jaffer, executive director of the Knight First Amendment Institute at Columbia University, said.
“It will cast a long shadow over the most important kinds of journalism, not just in this country but around the world.”
