By Charlie Savage

WASHINGTON — The plea deal that Julian Assange, the founder of WikiLeaks, has reached with prosecutors is bad for American press freedoms. But the outcome also could have been worse.

The deal, which was finalized Wednesday (26) in a courtroom in a remote US commonwealth in the Western Pacific, cleared the way for him to walk free after more than five years in British custody, most of which he spent fighting extradition to the United States. In exchange, he pleaded guilty to one charge of violating the Espionage Act.

The result is an ambiguous end to a legal saga that has jeopardized the ability of journalists to report on military, intelligence or diplomatic information that officials deem secret. Enshrined in the First Amendment, the role of a free press in bringing to light information beyond what those in power approve for release is a foundational principle of American self-government.

The agreement means that for the first time in American history, gathering and publishing information the government considers secret has been successfully treated as a crime. This new precedent will send a threatening message to national security journalists, who may be chilled in how aggressively they do their jobs because they will see a greater risk of prosecution.

But its reach is also limited, dodging a bigger threat. Because Assange agreed to a deal, he will not challenge the legitimacy of applying the Espionage Act to his actions. The outcome, then, averts the risk that the case might lead to a definitive Supreme Court ruling blessing prosecutors’ narrow interpretation of First Amendment press freedoms.

“He’s basically pleading guilty to things that journalists do all the time and need to do,” said Jameel Jaffer, executive director of the Knight First Amendment Institute at Columbia University. “It will cast a shadow over press freedom — but not the same kind of a shadow that would have been cast by a judicial opinion holding that this activity is criminal and unprotected by the First Amendment.”

In short, he added, the outcome was complicated from the perspective of press freedom and could be seen as neither “all bad nor all good”.

The First Amendment implications of the case have often been clouded by fierce debate over whether Assange counts as a journalist — and by residual anger from Democrats over his publication of emails stolen from their party during the 2016 presidential election.

Assange timed the release of those messages, obtained by Russian hackers, to hurt Hillary Clinton, the Democratic nominee, disrupting the party’s national convention and then steadily sharing batches in the final stretch of the campaign.

But for the purposes of press freedom, what matters is not who counts as a journalist but whether journalistic-style activities — whether performed by a journalist or anyone else — can be treated as crimes. And the charges against Assange are not about Moscow’s covert efforts to help Donald Trump win the 2016 election.

Rather, the charges centred on the earlier publications that vaulted him to global notoriety and made him a hero to the anti-war left: a video of a US helicopter gunning down people in Baghdad, including a Reuters photographer; troves of military incident logs documenting the Afghanistan and Iraq wars; a quarter-million diplomatic cables from US embassies around the world; and dossiers about Guantánamo detainees.

The narrow criminal information to which Assange pleaded guilty centres on one count of conspiring to violate the Espionage Act. The court document says that Chelsea Manning, an Army intelligence analyst, and Assange agreed that she would send him national security files, even though he had no security clearance, and that he would then “communicate them” to others who were also “not entitled to receive them” — that is, publish them.

Charging a government official who had a security clearance with leaking national security information for news publication was once exceedingly rare, but such prosecutions have become routine in the 21st century. The Justice Department began regularly charging leak cases midway through the Bush administration and continued that pattern under successive administrations.

Although charged in the military justice system, Manning was part of that wave, admitting guilt in a 2013 court-martial and receiving a 35-year prison sentence. President Barack Obama commuted most of that sentence in January 2017; in all, she was in custody for about seven years from the time of her arrest.

But successfully indicting a nongovernment official for publishing national security information of public interest that he had obtained while working with a source is different. No one had ever been charged under the Espionage Act for a journalistic act, in part because there had long been a widespread assumption that applying that law to such acts would be unconstitutional.

The charge against Assange, then, crossed a line. It showed that the 21st-century crackdown on leakers could expand to encompass criminalizing the same sort of actions that brought to light important post-9/11 abuses, including warrantless wiretapping and torture, as well as day-to-day journalism about military, intelligence or diplomatic matters that help people better understand the world.

The Justice Department under President George W. Bush took a first step in this direction after a Pentagon official leaked classified intelligence about Iran to two lobbyists for AIPAC, a pro-Israel group. In addition to charging the official, who pleaded guilty, prosecutors in 2005 went after the lobbyists — even though they were not officials and did not have security clearances — for further disseminating the secrets to journalists.

But a judge issued sceptical rulings that undercut the case, and the Obama-era department dropped it in 2009.

The next year, after Assange began publishing Manning’s leaks, Justice Department officials weighed whether he could be charged with some kind of crime. But they hesitated at the prospect of establishing a precedent that could be used against mainstream news outlets, such as The New York Times, which also sometimes gather and publish information the government has deemed secret.

However, the Justice Department under the Trump administration moved forward with charging Assange, secretly filing a criminal complaint in late 2017 and, several months later, obtaining a sealed grand jury indictment. The move ensured the government could seek his arrest and extradition if he ever left the Ecuadorean Embassy in London, where he had been holed up for years.

The initial indictment largely avoided issues of press freedom by bringing a narrow charge against Assange, accusing him of a hacking-related conspiracy. But in 2019, the Justice Department added Espionage Act charges, gambling on transforming it into a momentous test of the First Amendment.

And in 2021, the Biden administration took office and continued to press forward with trying to extradite Assange to face criminal trial on all those charges. The Biden-era department also negotiated the plea agreement to resolve the case, dropping the hacking-related accusations but winning an Espionage Act conviction.

While the case is not likely to give the Supreme Court an opportunity to curtail First Amendment press freedoms, the government has still made an example of Assange in a way that may well lead some national security journalists to leave some important stories unreported out of fear of facing similar prosecution.

And if the future free flow of newsworthy information to the public has indeed been inhibited, damaging the American system of democracy, responsibility is shared by officials from both administrations.

-New York Times