Julian Assange is Finally Free – But Should Not Have Been Prosecuted in the First Place

Ken Roth in The Guardian: Julian Assange’s lengthy detention has finally ended, but the danger that his prosecution poses to the rights of journalists remains. As is widely known, the US government’s pursuit of Assange under the Espionage Act threatens to criminalize common journalistic practices. Sadly, Assange’s guilty plea and release from custody have done nothing to ease that threat.

That Assange was indicted under the Espionage Act, a US law designed to punish spies and traitors, should not be considered the normal course of business. Barack Obama’s justice department never charged Assange because it couldn’t distinguish what he had done from ordinary journalism. The espionage charges were filed by the justice department of Donald Trump. Joe Biden could have reverted to the Obama position and withdrawn the charges but never did.

The 18-count indictment filed under Trump accused Assange of having solicited secret US government information and encouraged Chelsea Manning to provide it. Manning committed a crime when she delivered that information because she was a government employee who had pledged to safeguard confidential information on pain of punishment. But Assange’s alleged solicitation of that information, and the steps he was said to have taken to ensure that it could be transferred anonymously, are common procedure for many journalists who report on national security issues. If these practices were to be criminalized, our ability to monitor government conduct would be seriously compromised.

To make matters worse, someone accused under the Espionage Act is not allowed to argue to a jury that disclosures were made in the public interest. The unauthorized disclosure of secret information deemed prejudicial to national security is sufficient for conviction regardless of motive.

To justify Espionage Act charges, the Trump-era prosecutors stressed that Assange was accused of not only soliciting and receiving secret government information but also agreeing to help crack a password that would provide access to US government files. That is not ordinary journalistic behavior. An Espionage Act prosecution for computer hacking is very different from a prosecution for merely soliciting and receiving secret information.

Even if it would not withdraw the Trump-era charges, Biden’s justice department could have limited the harm to journalistic freedom by ensuring that the alleged computer hacking was at the center of Assange’s guilty plea. In fact, it was nowhere to be found.

The terms for the proceeding were outlined in a 23-page “plea agreement” filed with the US District Court for the Northern Mariana Islands, where Assange appeared by consent. Assange agreed to plead guilty to a single charge of violating the Espionage Act, but under US law, it is not enough to plead in the abstract. A suspect must concede facts that would constitute an offense.

More here.

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