WikiLeaks founder Julian Assange has walked free from a court in the US Commonwealth territory of Saipan after pleading guilty to violating US espionage law – the plea deal left the journalist and former hacker free to return home to Australia following an extraordinary 14-year legal saga, but leaves behind it a trail of unanswered legal questions and unresolved controversies regarding the scope of journalistic freedom of expression (FT, Guardian, Telegraph).
In a courthouse in the American outpost of 40,000 people in the Northern Mariana Islands, Assange accepted he had encouraged a source to provide classified information because he believed the US first amendment protected that activity, but as part of the plea conceded that this was in fact a violation of the US Espionage Act of 1917.
The hearing took place in the US Commonwealth territory because of Assange’s opposition to travelling to one of the 50 US states and the court’s proximity to Australia.
Assange was first arrested in Britain in 2010 on a European arrest warrant after Swedish authorities said they wanted to question him over rape and sexual molestation allegations that were later dropped. He has always denied the charges. In 2012 he skipped bail and fled to Ecuador’s embassy in London, where he remained for seven years, to avoid extradition to Sweden.
He was evicted from the embassy in 2019, immediately arrested by the Met Police for skipping bail in 2012 and then sentenced to 50 weeks in prison.
In 2019, the Trump administration unsealed its indictment against Assange revealing he was wanted by the US authorities for 17 charges of espionage and one of computer misuse connected to his website’s publication of hundreds of thousands of sensitive documents supplied in 2010 by Chelsea Manning, a former Army intelligence analyst who was later imprisoned for seven years before the sentence was commuted. If found guilty on all charges, Assange could have faced a cumulative sentence of up to 175 years.
When the US warrant was carried out and the Trump administration initiated extradition proceedings, Assange was transferred to HMP Belmarsh, a high-security prison usually reserved for terrorists and other enemies of the state.
In March 2022, the UK High Court refused to grant Assange permission to appeal his extradition to the US. Two months later, in May, an extradition order was signed by the then Home Secretary Priti Patel, and Assange’s legal team began a lengthy appeal process.
Earlier this year, Assange was finally granted permission to appeal his removal to the US after the High Court ruled his extradition would be incompatible with his right to freedom of expression, as guaranteed by article 10 of the European Convention on Human Rights.
The court gave only a brief judgement, stating there would be a full appeal on freedom of expression grounds, which had been expected later this year but will now not go ahead.
Appearing at the hearing in Saipan earlier this week, Assange formally pleaded guilty to a single criminal count of violating the Espionage Act by conspiring to obtain and publish top-secret information about the Iraq and Afghanistan wars. The Australian has now agreed to destroy the classified material, the court heard.
As soon as Assange formally pleaded guilty, the US government’s lawyers announced they were withdrawing their request to extradite Assange from the UK. Because the court subsequently accepted the 62 months he had already spent in Belmarsh Prison was a sufficient sentence, he had no more case to answer, and no more sentence to serve. (Notably the judge agreed with the US government that only the time Assange spent in Belmarsh counted as ‘detention’, leaving the legal status of the time he spent in the Ecuadorian embassy ambiguous.)
During the hearing, the judge said there had been “no personal victim” in Assange’s crime.
The US Department of Justice disagreed, arguing in a 1,161-word statement that Assange had endangered the lives of journalists, religious leaders, human rights advocates and political dissidents.
“Unlike news organisations that published redacted versions,” the statement read, Assange released “raw or unredacted” information that “placed individuals who had assisted the US government at great personal risk. The statement added: “Assange’s decision to reveal the names of human sources illegally shared with him by Manning created a grave and imminent risk to human life.”
Speaking in court, Assange said that while he agreed that publishing classified material was a “violation of the Espionage statute” he also believed his actions should have been protected by law. “Working as a journalist, I encouraged my source to provide information that was said to be classified in order to publish that information,” he said, before adding: “I believe the First Amendment and the Espionage Act are in contradiction.”
Standing outside the US court following the ruling, Assange’s lawyer Jennifer Robinson denounced the case against her client as “the greatest threat to the first amendment in the 21st century”, and described the plea deal as “historic”.
Writing for The Conversation, however, law professor Holly Cullen isn’t so sure, pointing out that the unusual conclusion to Assange’s case leaves behind it “a trail of unanswered legal questions and unresolved controversies”.
Because his potentially legally groundbreaking appeal hearing at the High Court will no longer take place later this year, the issue of whether a threat to the accused’s freedom of expression can stop extradition will therefore not be argued or decided.
The European Court of Human Rights and other human rights bodies have never addressed this point, and as Prof Cullen points out: “It’s unlikely to arise again soon.”
Another related and similarly unresolved issue is whether and to what extent the journalistic exercise of freedom of expression should constitute an exception to the offences under the Espionage Act of 1917.
Although Assange and the US government took different views on that issue, and the judge made no determination on which party was legally correct, it is nonetheless potentially significant that, during the case, Assange conceded that no existing US case law establishes such an exception. This leaves open the possibility that any future US administration could point to his case as an example of securing a conviction against a journalist under the Espionage Act.
It’s a line of reasoning echoed by Seth Stern, director of advocacy for Freedom of the Press Foundation (FPF), who said it was “alarming” the plea had been pursued. “The plea deal won’t have the precedential effect of a court ruling,” he said, “but it will still hang over the heads of national security reporters for years to come.”
