On June 17 2022, the Home Secretary of the United Kingdom approved the U.S. government's request to extradite WikiLeaks founder Julian Assange. Although Assange plans to appeal the decision, the move brings him one step closer to being sent to the U.S., where he faces trial under an 18-count indictment for conspiracy to obtain and disclose national defense information. If convicted, Assange faces a potential maximum penalty of 175 years in prison--in effect, a life sentence.
Assange was initially indicted in May 2018, when the Justice Department was headed by former Attorney General and Trump sycophant Jeff Sessions. The indictment has since been amended ("superseded" in the jargon of the law) twice, first in 2019 and again in 2020.
The indictment alleges that Assange conspired with former Army Intelligence Officer Chelsea Manning and others from 2009 to 2011 to obtain and publish national defense information about the wars in Afghanistan and Iraq. Items supplied by Manning and later published by WikiLeaks allegedly included some 750,000 classified State Department documents and cables as well as several CIA-interrogation videos. Manning also allegedly leaked a video of a 2007 attack staged by U.S. military Apache helicopters in Baghdad that killed two Reuters employees and a dozen other people. (The indictment does not concern WikiLeaks' publication of confidential Democratic Party emails related to the 2016 presidential campaign.)
Manning was convicted by court-martial in July 2013 of violations of the Espionage Act of 1917 and other offenses, and was sentenced to serve 35 years in prison. President Obama commuted her sentence in 2017.
From 2012 to 2019, Assange lived in the Ecuadorian embassy in London under a grant of asylum. His asylum status was revoked in April 2019, and he was arrested by British authorities for skipping a bail hearing in 2012 on charges related to a sexual assault case against him Sweden. Although the assault case has since been dropped, Assange remains confined in Belmarsh Prison, a high-security men's institution on the outskirts of London, pending his extradition to the U.S.
Even before Trump and Sessions decided to target Assange, the Obama administration reportedly considered bringing charges against him. Ultimately, however, Obama’s Justice Department opted against moving forward, fearing that prosecuting Assange could place mainstream publishers of leaked information in legal jeopardy.
The Trump administration, animated by the former president's personal vendetta against the press, had no such reservations. In any event, Assange's fate now rests with Attorney General Merrick Garland and the Biden Justice Department. Biden and Garland would be well-advised to drop the extradition request, give Assange credit for time served in British custody, and allow him to go free.
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Although Assange is adored by many on the American and international left, who see him as a martyr in the struggle against "deep-state" secrecy and malevolence, you don't have to be an Assange groupie to appreciate the moral, legal and political folly of extraditing him to stage what would become a latter-day show-trial.
Personally (full disclosure), I am not--and never have been--an Assange hagiographer. I think he long ago embraced the dark side of rightwing populism. I am, however, a staunch defender of the First Amendment, free speech, and freedom of the press.
Trying Assange on the indictment against him would raise serious First Amendment issues, forcing the Biden administration to draw constitutional distinctions between mainstream publications like the New York Times and the Washington Post and scrappy upstarts like WikiLeaks. Should the Justice Department succeed in taking down Assange, who would be next--The Nation, AlterNet, CounterPunch, Jacobin? The Justice Department should not be in the business of determining which publishers are legitimate and deserving of protection and which are not.
Trying Assange would also violate the public's First Amendment right to obtain important information about the operations of their own government. As Elizabeth Goitein, co-director of the liberty and national security program at the Brennan Center for Justice at New York University School of Law, observed in a 2019 Washington Post op-ed:
"The First Amendment encompasses the freedom to disclose information and the freedom to receive it. In essence, the right is shared by the speaker and his audience — which in this case includes Americans."
This doesn't mean that journalists should get a free pass for actively leaking classified information, but the allegations that Assange conspired with Manning, according to many First Amendment experts, amount to little more than the work investigative journalists routinely do to cultivate sources of information.
Finally, trying Assange would be a profound misuse of scarce resources at a time when the Justice Department has been hard pressed to prosecute the Jan. 6 insurrectionists, and has yet to bring any charges against Trump for inciting the insurrection.
The real threat to American democracy isn't languishing in Belmarsh Prison. That man has already been punished. The real threat to the future of democracy is preparing to run for president again in 2024, and he has yet to face any legal consequences for his actions.