The Biden administration has been saying all the right things lately about respecting a free and vigorous press, after four years of relentless media-bashing and legal assaults under Donald Trump.
The attorney general, Merrick Garland, has even put in place expanded protections for journalists this fall, saying that “a free and independent press is vital to the functioning of our democracy”.
But the biggest test of Biden’s commitment remains imprisoned in a jail cell in London, where WikiLeaks founder Julian Assange has been held since 2019 while facing prosecution in the United States under the Espionage Act, a century-old statute that has never been used before for publishing classified information.
Whether the US justice department continues to pursue the Trump-era charges against the notorious leaker, whose group put out secret information on the wars in Iraq and Afghanistan, Guantánamo Bay, American diplomacy and internal Democratic politics before the 2016 election, will go a long way toward determining whether the current administration intends to make good on its pledges to protect the press.
Now Biden is facing a re-energized push, both inside the United States and overseas, to drop Assange’s protracted prosecution.
Five major media organizations that relied on his trove of government secrets, including the Guardian and the New York Times, put out an open letter earlier this month saying that his indictment “sets a dangerous precedent” and threatens to undermine the first amendment.
At the same time, officials in Australia, where Assange was born and remains a citizen, met with American counterparts to appeal for his release. “My position is clear and has been made clear to the US administration: that it is time that this matter be brought to a close,” Australia’s prime minister, Anthony Albanese, told the Australian parliament late last month.
In Brazil, meanwhile, President-elect Luis Inácio Lula da Silva demanded an end to what he called the “unjust imprisonment” of Assange after a meeting with WikiLeaks editors lobbying for his freedom.
Some of Assange’s defenders, who have attacked his prosecution as a trampling of the first amendment, say they are optimistic that the case may have reached a turning point that could ultimately lead to his freedom.
“This case is hugely significant,” the Columbia University law professor Jameel Jaffer, who runs the Knight First Amendment Institute at the university, said in an interview. “At the end of the day, I find it hard to believe that the Biden administration wants this case to be its press freedom legacy, and it will be its legacy if they continue to pursue it. That will overshadow everything else when it comes to press freedom.”
Justice department officials aren’t tipping their hand about where Assange’s prosecution might eventually lead, as he continues to challenge his extradition to the US before a British appeals court. The justice department declined to comment on all the outside calls to drop the case, but one official, speaking on condition of anonymity, said that Garland “has made clear that he will follow the law wherever it leads”, as he has in other politically charged cases.
For all the outside pressure on the justice department to drop the case, a critical factor could turn out to be the internal regulations that Garland announced in October banning the use of records seizures and other investigative steps against “news media acting within the scope of news gathering” except in what the department said would be limited circumstances.
The new regulations grew out of a year-long review that followed frequent complaints from news organizations about intrusive tactics used by the department during the Trump administration to gather up records from journalists and pry into news-gathering practices in the course of investigations into leaks and other sensitive matters.
One central dispute in Assange’s rise to notoriety has always been the question of whether he should be considered a journalist covered by the first amendment, as his advocates have long maintained, or a rogue operative who, as the Republican senator Ben Sasse of Nebraska once said, was “an outlet for foreign propaganda and … an enemy of the American people”.
Barry J Pollack, the lead lawyer for Assange in the US, told the Guardian that “the new regulations certainly cry out for someone at the highest levels of the justice department to take a fresh look at this prosecution to see whether it is really consistent with the new policy” and to determine “is this the type of case we want to be pursuing?”
“The timing is ripe for that,” Pollack said.
Assange has been a polarizing figure around the world for a dozen years now, ever since WikiLeaks began publishing and sometimes sharing with major media outlets, including the Guardian and the New York Times, millions of page of often-classified materials it had gathered from government whistleblowers and other sources. His advocates applauded him as a brash truth teller, while critics – often within the intelligence agencies – have attacked him for the damage they maintain the leaks have caused to ongoing operations.
His group’s first major exposés in 2010 documented American military abuses and missteps in Iraq and Afghanistan, and each subsequent batch of leaked materials, from secret state department cables to CIA hacking tools, brought Assange more notoriety and attention.
Beyond the massive leaks, Assange was also facing sexual assault allegations in Sweden – although the investigation was eventually dropped because Swedish prosecutors said the evidence was not strong enough. To avoid capture, he took refuge in 2012 in the Ecuadorian embassy in London under a deal granting him political asylum. The CIA and the Trump administration were so fixated on the secrets he had exposed that they discussed the prospect of kidnapping Assange from the embassy and assassinating him, according to a report last year from Yahoo News.
The justice department, under Trump, first brought criminal charges against Assange in 2019, when British authorities arrested and dragged him out of the embassy. Assange, looking dishevelled with a long, white beard, yelled: “This is unlawful, I am not leaving.”
Beginning less than two weeks after Biden was inaugurated in January of 2021, his justice department has repeatedly asked the British courts to renew the American request for Assange’s extradition. After a lengthy battle in the British courts, the then home secretary, Priti Patel, approved the US extradition request in June, but Assange is appealing against that decision, arguing that he was “being prosecuted and punished for his political opinions”.
Almost all of the 18 charges brought against Assange in the 2019 indictment center on the actual publication online of secret military and government material by WikiLeaks, much of it garnered from former US military whistleblower Chelsea Manning. Only one of the charges accuses Assange of actively working to help Manning secure the classified information. In that instance, prosecutors charged that Assange offered to help Manning to crack the password for one classified military system – an attempt that failed.
Manning was ultimately sentenced to 35 years in prison for leaking government secrets before President Barack Obama commuted the remainder of her sentence in 2017. At a court-martial hearing in 2013, Manning insisted that there was never pressure from WikiLeaks to seize any secret material from the military’s computer systems. “The decisions that I made to send documents and information to (WikiLeaks) and the website were my own decisions, and I take full responsibility for my actions,” Manning said.
The charges against Assange for obtaining and publishing classified information, without any active role in actually stealing it mark “the crossing of a legal rubicon”, said Jaffer at Columbia University. That’s an ominous legal threshold, he said, for Assange and all journalists.
“It’s the first time the US government has used the Espionage Act to go after a publisher and the implications are huge,” Jaffer said. Assange “has been indicted for activity that reporters are engaged in every day and that reporters have to engage in every day to inform the public. This would have dramatic implications for national security journalism.”
• This article was amended on 12 December 2022 to clarify that Assange faced sexual assault allegations, not charges, in Sweden. Also, Biden’s inauguration year was 2021, not 2020.
