Julian Assange is on the verge of being set free after the WikiLeaks founder and US authorities have agreed to a surprising plea deal. While it should be a relief to anyone who cares about press freedom that Assange will not be coming to the US to face trial, the Biden administration should be ashamed at how this case has played out.
Assange is flying from the UK to a US territory in the Pacific Ocean to make a brief court appearance today, and soon after, he may officially be a free man in his native Australia.
The deal is undoubtedly good for Assange, who has been holed up in Belmarsh prison suffering from serious medical problems for the past five years, and stuck in the Ecuadorian embassy in London for seven years prior to that. It’s good for the Biden administration, which avoids the embarrassment of potentially losing its extradition case in the UK high court, but more importantly avoids the Assange case becoming a polarising issue in the election.
But is the deal good for press freedom? Not so much. Don’t get me wrong: there’s no doubt the worst fate was avoided and every journalist breathed a sigh of relief that this result did not occur via a court decision. A plea deal does not create an official precedent that a conviction and appeals court ruling would – something that could have potentially bound other courts to rule against journalists in future cases.
But it’s hard not to be shaken by the charge the US justice department forced Assange to plea to in order to get his freedom: a conspiracy to violate the Espionage Act, which according to the law, amounts to “receiving and obtaining” secret documents, and “willfully communicating” them “to persons not entitled to receive them”. (In Assange’s case, that means the public). That is a “crime” that journalists at mainstream outlets all over the US commit virtually every day.
A court won’t readily be able to cite DoJ v Assange in future rulings, but that doesn’t mean this guilty plea won’t embolden future federal prosecutors with an axe to grind against the press. They will see this case as a success. And it doesn’t mean the legal arms of news outlets won’t now be worried a case can be brought against their own journalists for ordinary journalistic conduct that was once assuredly protected by the first amendment.
Just imagine what an attorney general in a second Trump administration will think, knowing they’ve already got one guilty plea from a publisher under the Espionage Act. Trump, after all, has been out on the campaign trail repeatedly opining about how he would like to see journalists – who he sees as “enemies of the people” – in jail. Why the Biden administration would hand him any ammo is beyond belief.
So if the Biden administration is looking for plaudits for ending this case, they should get exactly none. They could have dropped this case three years ago when they took control of the DoJ. Every major civil liberties and human rights group in the country repeatedly implored them to. They could have just dropped the case today, with Assange spending the same amount of time in prison, but they felt the need to again emphasise in court documents that they believe obtaining and publishing secret government documents is a crime.
Of course, some will say, “oh, Assange got what he deserved,” or “he’s no journalist, why should I care,” as people do whenever you bring up the inconvenient fact that prosecuting Assange will affect countless other journalists. Assange made himself the permanent enemy of millions of Democratic voters after publishing leaked emails from the DNC and Clinton campaign in the run-up to the 2016 election, and many people can’t see past that. But it’s worth repeating that this case had nothing at all to do with 2016. And whether you think Assange is a “journalist” or not, the DoJ wanted him convicted under the Espionage Act for acts of journalism, which would leave many reporters, including at the Guardian, exposed to the same.
Now we can only hope this case is an aberration and not a harbinger of things to come.
Trevor Timm is executive director of the Freedom of the Press Foundation