WikiLeaks founder Julian Assange's plea deal with prosecutors is a bad deal for American press freedom, but the outcome could have been much worse.
The deal, struck Wednesday in a court in the remote U.S. territory in the Western Pacific, paves the way for him to go free after more than five years in British custody, most of which he spent fighting extradition to the U.S. In exchange, he pleaded guilty to one count of violating the Espionage Act.
The result is an ambiguous end to a legal battle that has put at risk the ability of journalists to report on military, intelligence and diplomatic information that authorities deem secret. The role of a free press to uncover information that goes beyond what those in power have authorized to be made public is enshrined in the First Amendment to the U.S. Constitution and is a fundamental principle of American self-government.
This agreement marks the first time in American history that the collection and publication of information that the government considers secret has been successfully criminalized. This new precedent will send an intimidating message to national security journalists, who may be discouraged from pursuing their work if they see an increased risk of prosecution.
But its reach is limited, avoiding a larger threat: because Assange agreed to the deal, he is unlikely to challenge the validity of the Espionage Act's application to his actions, and so there is no risk that this case will result in a landmark Supreme Court decision upholding prosecutors' narrow interpretation of the First Amendment's right to freedom of the press.
“He's essentially pleading guilty to something that journalists have always done and should do,” said Jameel Jaffer, executive director of the Knight First Amendment Institute at Columbia University. “This will cast a shadow on press freedom, but it's not the same kind of shadow that would be cast by a judicial decision that this conduct is a crime and not protected by the First Amendment.”
So the results are mixed in terms of press freedom and “it's not all bad or all good,” he added.
The First Amendment implications of the case are often obscured by fierce debate over whether Assange qualifies as a journalist and by lingering Democratic anger over his publication of stolen emails from the Democratic Party during the 2016 presidential election.
Assange timed the release of the messages, obtained by Russian hackers, to damage Democratic candidate Hillary Clinton and disrupt her party's national convention, then released a steady stream of messages during the final stages of the campaign.
But in terms of press freedom, what matters is not who is a journalist, but whether journalistic activities are criminalized, whether performed by a journalist or by someone else. And the charge against Mr. Assange is not that Moscow secretly helped Donald J. Trump win the 2016 presidential election.
Rather, the indictment centered on the earlier publications that had made him world famous and a hero to the anti-war left: a video of a U.S. helicopter shooting at people, including a Reuters cameraman, in Baghdad, mountains of military records documenting the Afghanistan and Iraq wars, 250,000 diplomatic cables from U.S. embassies around the world, and documents relating to detainees at Guantanamo Bay.
The limited criminal allegations to which Assange pleaded guilty centered on a single count of conspiracy to violate the Espionage Act. According to court documents, Army intelligence analyst Chelsea Manning and Assange agreed that, despite not having a security clearance, she would send national security files to Assange, who would then “communicate” them, i.e., publish them, to other people who were “not entitled to receive them.”
While prosecutions of government officials with security clearances for allegedly leaking classified information for publishing news were once extremely rare, such prosecutions have become commonplace in the 21st century. The Justice Department began routinely prosecuting leak cases midway through the Bush administration and continued that pattern under subsequent administrations.
Manning was caught up in the military justice system, but was charged and sentenced to 35 years in prison after pleading guilty at a court-martial in 2013. President Barack Obama commuted most of her sentence in January 2017. In total, she was in custody for about seven years after her arrest.
But successfully prosecuting non-government officials for publishing public interest information about national security that they obtained in cooperation with a source is another story. No one has ever been prosecuted under the Espionage Act for acting as a journalist, in part because it has long been widely believed that applying the statute to such conduct is unconstitutional.
So the charges against Assange crossed a line. They suggested that a 21st-century crackdown on leakers could extend to criminalizing the same kinds of conduct that exposed major human rights abuses after September 11, 2001, like warrantless wiretapping and torture, as well as everyday journalism about military, intelligence and foreign affairs that helps people better understand the world.
The Justice Department took its first steps in this direction under President George W. Bush after Pentagon officials leaked classified information about Iran to two lobbyists for the pro-Israel group AIPAC. In addition to prosecuting the officials who pleaded guilty, prosecutors pursued the lobbyists in 2005 for leaking further classified information to journalists, even though they were not employees and did not have security clearances.
But a judge issued skeptical rulings that weakened the case, and the Obama administration's Justice Department dropped the case in 2009.
After Mr. Assange began going public with his Manning leaks the following year, Justice Department officials considered whether they could bring charges against him but hesitated, worried about setting a precedent that could harm mainstream media outlets such as The New York Times, which sometimes collect and publish information the government considers secret.
But the Justice Department under the Trump administration went ahead with Assange's prosecution, filing secret criminal charges in late 2017 and securing a sealed grand jury indictment a few months later — a move that allowed the government to seek Assange's arrest and extradition if he leaves the Ecuadorian embassy in London, where he had been hiding out for years.
The original indictment charged Assange with a narrow line of hacking-related conspiracy charges, largely avoiding press freedom issues, but in 2019 the Justice Department added an Espionage Act charge, angling the case into a critical First Amendment test.
Then in 2021, the Biden administration took office and pushed for Assange's extradition to face criminal trial on all of these charges. The Biden administration's Justice Department also negotiated a plea deal to resolve the case, dropping the hacking-related charges but winning a conviction for violating the Espionage Act.
While this case is unlikely to give the Supreme Court an opportunity to restrict First Amendment freedom of the press, the government could well use Assange as a precedent that could lead some national security journalists to avoid reporting important stories for fear of similar prosecution.
And if in the future the free flow of newsworthy information to the public is actually impeded and American democratic institutions are undermined, the responsibility will lie with officials of both administrations.