Författare: Holly Cullen Adjunct Professor in Law The University of West

Today Julian Assange walked out of the Federal Court Building in Saipan, North Marianas Islands, a free man. He pleaded guilty to one count of breaching the US Espionage Act.

With the court accepting his 62 months already spent in Belmarsh Prison as a sufficient sentence, he has no more case to answer, and no more sentence to serve.

However, this case leaves behind it a trail of unanswered legal questions and unresolved controversies. In particular, there are questions of fundamental human rights that can only now be addressed in future cases, if ever.

Can freedom of speech concerns stop extradition?

Once Assange had formally pleaded guilty, the US government’s lawyers announced they would immediately withdraw the request to extradite Assange from the UK.

That means the appeal that would have been heard later this year will not go ahead.

To recap, in May the UK High Court gave Assange the right to appeal the UK Home Secretary’s order for his extradition. This was granted on two grounds, both related to free speech.

Read more:
Julian Assange plea deal: what does it mean for the WikiLeaks founder, and what happens now?

The first ground of appeal accepted by the court was that extradition would be incompatible with Assange’s right to freedom of expression, as guaranteed in the European Convention on Human Rights.

The second ground, related to the first, is that he would be discriminated against on the basis of his nationality because he could, as a non-citizen of the US, be unable to rely on First Amendment freedom of speech rights.

But as this appeal is no longer proceeding, the issue of whether a threat to the accused’s freedom of expression can stop extradition will therefore not be argued or decided. The European Court of Human Rights and other human rights bodies have never addressed this point. It’s unlikely to arise again soon.

The appeal against Assange’s extradition to the US will no longer go ahead.
David Cliff/AP

An espionage precedent?

Also on freedom of expression, the relationship between the US Espionage Act and the First Amendment of the US Constitution remains an open question.

In today’s pleadings, Assange and the US government took different views on whether the exercise of freedom of expression should constitute an exception to the offences under the Espionage Act. Nonetheless, Assange accepted that no existing US case law established such an exception.

This leads to the question of whether today’s guilty plea establishes a precedent for prosecuting journalists for espionage.

In the strict legal meaning of precedent in common law, which refers to a binding judicial interpretation, it does not.

The judge made no determination on whether Assange or the US government was legally correct. However, the US government can now point to this case as an example of securing a conviction against a journalist under the Espionage Act.

The question of how much a non-national of the US can rely on the First Amendment likewise continues to be on the table. This issue would also have been addressed in the extradition appeal, as a question of whether Assange would be discriminated against on the basis of his nationality.

Detention or confinement?

Finally, today’s hearing revived the question of whether the time Assange spent in the Ecuadorian embassy between 2012 and 2019 counts as detention.

As the judge moved to determine whether the sentence of “time served” was a sufficient penalty for his offence, the US government insisted the judge could only consider the 62 months in Belmarsh.

Assange’s lawyers argued he had been detained for 14 years, including the period claiming asylum in the Ecuadorian embassy. In 2016, the UN Working Group on Arbitrary Detention found Assange was arbitrarily detained in the embassy, largely because of the disproportionate length of time between his initial arrest and the date of the working group’s opinion, over five years.

The UK and Sweden both rejected the working group’s findings, which they do not regard as binding. Furthermore, the findings went beyond the established case law on arbitrary detention, which usually focus on issues of legality and fair process rather than duration. Only the dissenting member of the Working Group analysed the impact of Assange’s voluntary conduct on the length of his stay in the embassy.

Read more:
Julian Assange has been in the headlines for almost two decades. Here’s why he’s such a significant public figure

In today’s hearing, the judge referred to Assange’s “14-year ordeal” but accepted the time in Belmarsh alone was sufficient penalty. The judge considered this period, just over five years, comparable to the seven years served by Chelsea Manning, who had provided the documents to Assange.

It is also worth noting that Australia’s Deputy Prime Minister Richard Marles, speaking on ABC Radio National, described Assange as “confined” in the Ecuadorian embassy, avoiding the legally significant term “detained”.

The legal status of Assange’s period in the embassy therefore remains ambiguous, despite the UN Working Group’s 2016 findings.

Today, the main story is that Assange no longer faces prosecution for espionage and is now free to return to his family. However, some of the legal issues emerging from this case remain tantalisingly unresolved. Läs mer…

After years of appeals and litigation, WikiLeaks founder Julian Assange has entered into a plea deal with the US government, according to court documents.

He was facing one count of computer misuse and multiple counts of espionage stemming from his work with WikiLeaks, publishing sensitive US government documents provided by Chelsea Manning. The US government had repeatedly claimed that Assange’s actions risked its national security.

Documents filed in the US Federal Court in Saipan, in the Northern Mariana Islands, show Assange will plead guilty to one count under the US Espionage Act. The rest of the charges would be dropped and the request for his extradition to the US would be withdrawn. The US is yet to publicly confirm the deal.

The deal is subject to a hearing and sentencing in Saipan on Wednesday morning, where outlets are reporting Assange will appear in person. He’s been released from London’s Belmarsh prison, with WikiLeaks sharing vision of him en route to London’s Stanstead Airport.

What’s in the deal?

Assange has been granted bail by the UK High Court.

Upon his guilty plea, Assange will be sentenced to 62 months in prison: time he’s already served in Belmarsh. It puts an end to all the ongoing legal action, including the proceedings in the UK High Court and the extradition order from the UK Home Secretary.

The plea deal seems largely consistent with rumours circulating earlier this year. It was widely assumed Assange would plead guilty to one charge, which was expected to be a misdemeanour charge of mishandling documents rather than under the US Espionage Act. The initial rumours also indicated that he would be able to complete the process remotely, whereas he will appear in person before the court.

This is significant as it’s a national security offence for which he’s served more than five years behind bars. This will place limitations on his future travel, including to the US, which is unlikely to grant him a visa.

Campaigns to free Julian Assange have lobbied hard for years.
Kin Cheung/AP

It also sets a practical precedent, if not necessarily a legal one, that a publisher can be convicted under the Espionage Act in the US. While the devil will be in the details of the deal, this is what many journalists were afraid of.

It means somebody who did nothing more than receive and publish information has been convicted under major US national security laws. If the deal had been about the Computer Misuse Act, this scenario wouldn’t have arisen. The concern may be that now it’s been done once, it could happen again.

Why is there a deal after all this time?

We may never know the US’ full reasoning, but there are several possibilities as to why it decided to go to a plea deal and not continue with litigation.

The Australian government has been pushing hard for a couple of years now for this case to end. The case for stopping prosecution has had bipartisan support here.

Although not confirming or denying the existence of a plea deal just yet, a spokesperson for the government reiterated Prime Minister Anthony Albanese’s position that there was “nothing to be gained from his [Assange’s] continued incarceration”.

MPs from across the political divide lobbied the government to try to stop the US’ prosecution of Assange.
Mick Tsikas/AAP

The fact the government has been consistent on this for about two years has changed the political environment for this prosecution.

There’s a growing consensus in the US, even among some republicans, that it’s not in the public interest to continue.

The UK general election will be held next week, and given the anticipated change of government there, the extradition order may have been reconsidered anyway. All of this would likely have informed the US’ cost-benefit analysis to ultimately bring the Assange saga to an end.

What happens now?

Following the hearing in Saipan, Assange will be free to return to Australia. The court was chosen because of Assange’s opposition to travelling to the continental US as well as its proximity to Australia.

Assange will likely find it difficult to travel in the future, given his serious criminal conviction. This may also apply in the UK, where he has also been convicted of absconding from bail, for which he was sentenced to a year’s imprisonment.

Looking further ahead, it’s entirely possible he will be pardoned by the US president, whomever it ends up being after the US election in November. The US allows much more discretion than most in the use of pardons.

For now, Assange will face court in Saipan and come home to Australia, albeit with a serious criminal record. Läs mer…