Below is a statement from Jennifer Robinson, a key member of Julian Assange’s legal team, that struck me this week:

“I want to make very clear, he has pleaded guilty to a charge of conspiracy to commit espionage for receiving and publishing information from a government source which revealed evidence of war crimes, human rights violations, and wrongdoing by the U.S. Government. That is doing journalism. That is criminalising journalism. But that is what he had to do for his freedom, and that is a problem when we talk about free speech and journalism.”

As we look back on a week of news dominated by Assange's release and arrival in Canberra, this comment revealed an internal tension that I think warrants a deeper look.

Here’s a super-fast rundown on Assange’s case. (If you want more detail, you can listen to our podcast here).

In 2010, Assange published classified documents to his website, WikiLeaks, implicating the U.S. military in 15,000 civilian deaths in Afghanistan and Iraq.

Swedish police then charged him with rape. If Assange went to Sweden to face those charges, he could then be extradited (forced to go) to the U.S. to face trial over the leaked documents. He sought protection in the Ecuadorian embassy in London in 2012.

The Swedish charges were later dropped, but meanwhile, the U.S. built its case against him — 18 charges with a penalty of 175 years in prison or even death.

When Ecuador revoked his protection in 2019, he was arrested by UK police.

Assange remained in a high-security London prison until this week, fighting extradition to the U.S., with a final appeal progressing as recently as last month.

This week, after years of diplomatic tussles, Assange’s legal team reached a plea deal with the U.S. Department of Justice (DoJ). In the deal, Assange agreed to plead guilty to one charge, instead of the original 18 offences, while the DoJ agreed to count the time Assange had served in the UK prison system.

All it needed was a U.S. court to certify the deal, but Assange said he did not want to step foot on the U.S. mainland. Enter the tiny U.S. territory of the Northern Mariana Islands, in the middle of the western Pacific Ocean, and the location of the U.S. courthouse that certified the deal. At the end of it all, Assange was free.

For the deal to work, U.S. prosecutors needed Assange to plead guilty to a criminal offence - conspiring to obtain and disclose classified U.S. national defence documents under the Espionage Act of 1917. As a key part of the agreement, Assange had to admit guilt . That means he can’t appeal the conviction down the line.

This could have huge ramifications for journalists in the U.S. For the first time in U.S. history, a person has been convicted of gathering and publishing information that the government considers to be confidential.

We’ve seen those who leak confidential material from within an organisation like the CIA charged before - Chelsea Manning, who sent Assange the files, was sentenced to 35 years in prison for her role (she ended up serving seven years after her sentence was reduced by the Obama Administration). But we’ve never seen someone who publishes the leaked material - a journalist or someone who is performing a journalist-like activity - be charged. Until now.

It’s clear from Robinson’s comments that Assange and his legal team fundamentally believe no crime has been committed at all. But, in order to get out of prison after 14 years of restricted movement and five years of spending 23 hours a day in a maximum-security cell, it was “what he had to do” to cut a deal. In fact, Robinson was as specific in saying that crime was the only one the U.S. would accept in order to do a deal.

The First Amendment to the U.S. Constitution protects freedom of speech, which journalists rely on to report on what their government is doing in secret, especially if it’s a ‘bad secret’.

In the days since Assange’s plea deal, a number of prominent media outlets have published editorials expressing fear that this plea deal has given a stamp of approval to the idea of charging a journalist for publishing secrets under the Espionage Act.

As journalist Charlie Savage wrote in The New York Times, “The government has still made an example of Mr 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”.

In an upcoming U.S. Presidential election where one of the candidates is known to characterise the media as his “opponent”, one could argue that the idea of now charging journalists under the Espionage Act could now be used by a new President in harmful ways.

There is one ray of good news for investigative journalists. Because Assange agreed to the deal, he can’t appeal the conviction in the Supreme Court, where the question of the wider impact of the conviction on investigative journalism would have been fully explored.

Had the Supreme Court enforced the conviction, that would have cemented beyond any doubt that a journalist could be charged for reporting government secrets. We aren’t there, yet.

It is clear the plea deal could have ramifications across the broader U.S. media system. It’s also clear that, as Robinson said, the only way for Assange to get out of jail was to plead guilty to the particular crime that would satisfy the U.S.

There is substantial reporting on the deteriorating health condition of Assange while in prison - both mental and physical. Whilst this is a highly controversial and polarising journalistic and political figure, driven by ideals of freedom of information and of the press, Robinson said he desperately wanted to get out of prison to “come home and be with his family”.

It is a diabolical choice. Risk the safety of investigative journalists in the U.S, or stay in prison for the rest of your life. For Assange, a plea deal was what he had to do.

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