Assange Is Free, But the Fight to Protect Press Freedom Is Far From Over

WikiLeaks co-founder Julian Assange has finally put an end to his 14-year-long judicial persecution by the United States and the United Kingdom, thanks to the prowess of his legal team and the tenacity of his family members, but also thanks to an assist from the British High Court and the support of millions of activists around the world.

Fifty-thousand people, for example, were logged onto the Flight Checker website June 25 and 26 in order to follow the plane taking Assange from London, where he had been held in Belmarsh prison for more than five years, to the city of Saipan in the Northern Mariana Islands for a two-day stopover and then, finally, on to Canberra airport in Australia — and freedom.

The U.S. had long planned a very different outcome. Once the British legal hurdles to extradition had been overcome, U.S. marshals were to grab Assange at the Belmarsh prison, handcuff, diaper and hood him, then drive him to a CIA plane that had been waiting for months on the tarmac of a London military airport. From there, he was to be flown directly to the district court in Alexandria, Virginia, near Washington, D.C. the infamous tribunal that imprisons anyone who, like Assange, is arraigned under the 1917 Espionage Act.

But things didn’t go that way. On June 25, Assange, on bail from Belmarsh prison at his request and so without handcuffs, took a comfortable executive jet paid for by Australia and showed up, of his own volition, at the U.S. district court farthest from D.C. — the Saipan civil courthouse. There, before an extremely accommodating judge, he accepted a previously agreed-upon plea deal that set him free in exchange for minimal concessions.

In chess terminology, Assange skillfully obtained, against all odds, a “resignation” worth a checkmate.

But what does the plea deal provide for? The U.S. sought to jail Assange for up to 175 years but instead, in the end, had to settle for only five years — time served. The U.S. had wanted to charge Assange with hacking; instead, the word is not even mentioned in the plea deal. The U.S. initially charged Assange with 17 counts of espionage; in the end, only one remained, the reception and dissemination of classified documents, which is no more than what all investigative journalists do, as protected by the First Amendment.

[Assange’s] admission by no means criminalizes investigative journalism: Plea deals do not constitute legal precedents and therefore cannot be used before courts in the future.

In pleading “guilty” to the last charge, Assange in no way reneged his beliefs; he simply told the truth. It is the Espionage Act that equates these actions with spying. Thus, by telling the truth, Assange exposed the Act as unconstitutional and the Department of Justice (DOJ) as duplicitous.

In order to get this admission of what amounts to guilt for practicing journalism, the DOJ had to (a) withdraw 17 of the 18 charges against Assange; (b) withdraw its current extradition request; and (c) pledge not to bring, in the future, any additional charges against Assange based upon his past conduct. This closes the case against him definitively.

In the process, the U.S. had to admit that Assange’s revelations never actually caused harm to any individual, only the “risk” of harm. Moreover, the U.S. had to agree to waive the right to demand any financial compensation for any future damages resulting from the WikiLeaks revelations. The state also had to forgo all fines, theoretically totaling over $100,000. Lastly, the U.S. had to agree to a clause that would have authorized Assange to leave Saipan and travel undisturbed to Australia if the court had issued a ruling failing to include all of these agreed-upon provisions.

What a turnabout! The DOJ, brandishing an iron fist, ended up with a fistful of dust.

Assange’s Concessions

To begin with, as was previously said, Assange had to admit “guilt” for doing no more than practicing journalism. Note that this admission by no means criminalizes investigative journalism, as numerous commentators have wrongly claimed: Plea deals do not constitute legal precedents and therefore cannot be used before courts in the future. Note, too, that by accepting the plea deal, Assange avoided standing trial in the Eastern Virginia District court, where his claim to have acted in the public interest and in accordance with the First Amendment would almost certainly be thrown out.

Additionally, Assange had to forgo asking for compensation from the U.S. government for his years of persecution. This is, admittedly, a genuine concession. The remaining concessions are, however, purely symbolic and inconsequential, as we shall see:

1. he had to agree to leave the territory of the U.S. immediately (something he was only too eager to do);
2. he had to agree to forgo using the Freedom of Information Act to obtain the documents on which the DOJ based its allegations (but nothing keeps his supporters from obtaining those documents for him);
3. he had to agree to destroy all remaining, unpublished files on the WikiLeaks server. This last concession is utterly surreal since Assange has already sent encrypted copies of his files — both published and unpublished — to other sites, some which he has no direct control over. Therefore, after having instructed his staff to delete all unpublished files on the WikiLeaks server, Assange has now only to request that the owners of the backup sites send him copies of the old files or, alternatively, release them directly to the public.

Under the plea deal, all the really important files can now legally remain on the WikiLeaks site with the blessing of the U.S. government. What’s even more astonishing is that Assange didn’t have to promise not to create, in the future, new files with new revelations furnished by a new generation of whistleblowers. This omission is incredible and opens the door to a revived WikiLeaks site.

How He Pulled It Off

The U.S. government certainly did not willingly give away so much to Assange in exchange for so little, so it’s legitimate to ask: What forced its hand?

Clearly, public pressure played a significant role. Even the British High Court judges took notice of the immense mobilization worldwide: In their March 26 sentence, for example, they mentioned the “exceptional level of national and international interest” around the Assange case.

Assange didn’t have to promise not to create, in the future, new files with new revelations furnished by a new generation of whistleblowers.

We must also give credit to Assange’s great skill and tenacity and that of his legal team in negotiating with the DOJ and British authorities for over a year. We can, in fact, date the start of negotiations with Assange’s May 5, 2023, Letter to King Charles. We don’t know how the negotiations actually proceeded over the course of time, but it is likely that the U.S. started off demanding a great deal, and that Assange held fast in spite of repeated threats of extradition, chipping away at the original demands and reducing them to a shadow of what they were.

He also got a helping hand from political events. The U.S. presidential election was drawing nearer, and so Assange’s extradition and subsequent trial in the district court for Eastern Virginia was becoming increasingly risky: It could spark a war over press freedom that would divide the country and disrupt the Democrats’ campaign. In addition, President Joe Biden probably felt the need to do something to recuperate his progressive wing, after having alienated it by supporting the Israeli-perpetrated genocide in Gaza. Finally, the British general election was also approaching, and the highly probable victory for Labour could give allies in the staunchly pro-Assange Australian Labour Party the chance to pressure U.K. institutions directly for Assange’s unconditional release. Seeing Assange walk free with no obligations would be a major blow to Washington hawks. Rather than that, any plea deal would be better.

But the straw that really broke the camel’s back was probably the May 20 sentence by British magistrates who, after years of legal hassling, finally allowed Assange to appeal against the order for his extradition to the U.S. Their sentence visibly shook the U.S. attorneys present in the courtroom. Their dismay surely redoubled when, a few days later, the judges scheduled the appeal hearings for July 9 and 10. In other words, instead of dallying as in the past, they convened the parties almost immediately — a signal that they were seriously considering rejecting the U.S. extradition request outright. Such a rejection would automatically trigger Assange’s immediate, unconditional release.

Let us put ourselves for a moment in the shoes of these U.S. lawyers. They started out seeking to impose the equivalent of two life sentences on Assange; now they see on the horizon the possibility of a total defeat. They needed to save face with a plea bargain. Still, they weren’t able to salvage much. The hawkish former Vice President Mike Pence called the plea deal signed in Saipan a “miscarriage of justice.” Indeed, we have seen how most of the concessions made by Assange have zero practical effect. But appearances matter, and the DOJ ultimately signed the deal.

If this is truly what happened, then we must commend the integrity of the British judiciary in this case. Despite its flaws, there are still British magistrates who will stand up to the wrath of the bully across the pond.

But one question remains: If it’s true that Assange had a good chance of being released by British magistrates on July 10, wouldn’t it therefore have been better for him to continue to reject the plea deal and trust in a judicial victory? This would mean walking free with zero concessions. Wouldn’t this have been preferable?

In our Western democracies mainstream journalists are not really free: They must continually respond to a handful of billionaire publishers.

Absolutely not. First, the DOJ would have appealed the High Court’s rejection of its extradition request, and Assange would have to spend more years in Belmarsh while appeals dragged on. More importantly, even if Assange was finally set free, he would only be free from immediate extradition to the U.S. He would not be free of the charges against him because only the U.S. District Court for Eastern Virginia can decide on those charges. Thus, with 18 indictments hanging over his head, Assange would be continually exposed to new DOJ extradition requests for the rest of his life. The only way to be completely free of entanglements was to lay the 18 indictments to rest — accepting one and getting the others withdrawn, which is exactly what he did.

What’s Next for Press Freedom?

While Assange regains his strength, it’s up to activists worldwide to continue his struggle for truly independent journalism.

It’s a titanic struggle because, as is well known, in our Western democracies mainstream journalists are not really free: They must continually respond to a handful of billionaire publishers who, through cross ownership, possess most mainstream media and ensure that the news that gets published does not upset the system.

Thus, for truly independent journalism to exist as a mainstream reality, it’s necessary to fight for legislation that puts an end to media concentration. Only with widespread pluralism of ownership can there be truly diversified editorial lines and, therefore, greater freedom of expression for individual journalists. If we succeed in putting an end to the current oligopoly, WikiLeaks can become just one of many free and independent voices in mainstream media.

But that’s not all we must do. Legislation is needed to reinforce the inadequate legal protection of whistleblowers; to strengthen the legal protection of investigative journalists and the secrecy of their sources; to enable unions to better protect journalists from retaliatory dismissals and mobbing; to criminalize the use of lawfare to persecute journalists; and to narrow the scope of state secrets by explicitly recognizing the public interest motivation in leaking them. This last point would entail significantly modifying the Espionage Act.

Finally, we should ask President Biden, as he leaves office, to pardon Assange, both to clear his record and to make it clear that, as a journalist, he committed no crime in revealing secret documents in the public interest, despite his guilty plea deal. A presidential pardon could, indeed, spark a campaign to reform the Espionage Act.

Assange is free, but journalism still remains on trial.

Note: An earlier version of this article appears in the Italian daily L’Indipendente.