Julian Assange should never have been charged with espionage by the US. The release of the WikiLeaks founder from custody in the UK is good news, and it is especially welcome to his family and supporters. He is due to plead guilty to a single charge of conspiring to obtain and disclose classified US national defence documents at a hearing early on Wednesday, but is not expected to face further jail time. The court in Saipan, a remote Pacific island which is a US territory, is expected to approve the deal, crediting him for the five years he has already spent on remand in prison.
His opportunity to live with his young family comes thanks to Australian diplomacy under the prime minister, Anthony Albanese, who had made clear his desire for a resolution, and the Biden administration’s keenness to get a controversial case off its plate, particularly in an election year. Seventeen of the charges have been dropped. The one that remains, however, is cause for serious alarm. It was the Trump administration that brought this case. But while the Biden administration has dropped 17 of the 18 charges, it insisted on a charge under the 1917 Espionage Act, rather than the one first brought against him of conspiracy to commit computer intrusion.
This is no triumph for press freedom. Mr Assange’s plea has prevented the setting of a frightening judicial precedent for journalists, avoiding a decision that might bind future courts. Nonetheless, this is the first conviction for basic journalistic efforts under the 1917 act.
Using espionage charges was always a bad and cynical move. The case relates to hundreds of thousands of leaked documents about the Afghanistan and Iraq wars, as well as diplomatic cables, which were made public by WikiLeaks working with the Guardian and other media organisations. They revealed appalling abuses by the US and other governments, which would not otherwise have been exposed – and for which no one has been held liable, despite the pursuit of Mr Assange.
National security laws are necessary. But it is also necessary to acknowledge that governments keep secrets for bad reasons as well as good. Alarmingly, the Espionage Act allows no public interest defence, preventing defendants from discussing the material leaked, why they shared it, and why they believe the public should know about it. The Obama administration correctly identified the chilling effect that spying charges could have on investigative journalism, and chose not to bring them on that basis. The Biden administration – which proclaims itself a champion of press freedom globally – should not have pursued them. The UK government should never have agreed to Mr Assange’s extradition.
The bad news is that the prosecutorial policy is now clear. Federal prosecutors can chalk this one up as a win. It is possible that future administrations could take this case as encouragement to pursue the press under the Espionage Act. It is likely that an emboldened second Trump administration would do so. The Republican candidate has repeatedly cast the media as his “real opponent” and the enemy of the people.
The political solution to this lengthy saga is welcome, particularly given the reported impact on Mr Assange’s health after years holed up in London’s Ecuadorian embassy and then in Belmarsh prison. But the threat to press freedom has not ended. Its defence cannot rest either.