The object at the center of fourteen years of litigation is an Australian passport, and the entire dispute was about whether its holder could use it.
Seven years inside an embassy in London, five years in a high-security prison, and a succession of extradition hearings, all turning on where one man was permitted to be. Julian Assange flew out of Britain this week under an agreement to plead guilty to a single count in a United States courtroom in the Northern Mariana Islands, and then to go home.
The date to look back at is 2010, when the material was published, and what the intervening years turned out to mean is mostly a story about how criminal charges function as a constraint rather than as a judgment.
What happened in 2010
WikiLeaks published a series of large classified United States datasets obtained from an army intelligence analyst: military incident reports from Afghanistan and Iraq, and roughly a quarter of a million State Department cables.
The publication was done in partnership with several major newspapers, which is a fact of considerable legal significance and was not accidental. Those newspapers published the same material, and no newspaper was charged.
The analyst who supplied it was prosecuted, convicted, and had the sentence commuted in 2017.
What the charges were, and why they mattered
The eventual indictment ran to eighteen counts, seventeen of them under the Espionage Act of 1917.
That statute is the thing that made this case different from anything before it. It had been used against leakers, repeatedly, and had never been used to convict a publisher for publishing. The theoretical exposure was measured in decades.
One count was different: conspiracy to commit computer intrusion, alleging assistance in cracking a password. That count is about conduct rather than publication, and it is the one that does not implicate what a journalist does.
What fourteen years turned out to mean
This is the part worth sitting with, because the outcome is not what anybody on either side predicted.
The case never reached trial. No American jury ever considered whether publishing classified material is protected, and no court ever ruled on the central question the indictment raised.
What the charges did instead was hold a person in one place for fourteen years. An indictment plus an extradition request is a mechanism that constrains movement completely, and it operates without any of the machinery of proof. He spent seven years unable to leave a building, then five years in prison, none of it as a sentence.
So the practical effect of the prosecution was achieved entirely before the prosecution happened, which is a property of this instrument that is rarely stated. A charge that is never tested still detains.
There is a second consequence of never reaching trial, and it runs the other way. No court ever examined the government’s case either. Allegations in an indictment are assertions, they were never put to proof, and a plea to one count leaves seventeen others neither established nor withdrawn on the merits. Both sides spent fourteen years asserting things that will now never be tested by anybody.
What the plea actually resolves
Very little, and that appears to be the design.
A guilty plea to a single count, with a sentence of time already served, produces a conviction without a trial, a record without a precedent, and an end without an answer. Nobody has to litigate whether the Espionage Act reaches publishers, because the case is over.
Both sides get something they wanted and neither gets what they said they wanted. The government secures a felony conviction under the statute, which is an outcome it can point to. The defendant goes home, which is the only outcome he was ever going to accept.
The question that made the case significant to every news organization in the world remains exactly where it was in 2010: unanswered, with a statute on the books that has now been used to obtain a conviction connected to publication, and no ruling saying whether that was lawful.
What the newspapers did, and what happened to them
The comparison that has sat underneath this for fourteen years deserves stating.
The Guardian, the New York Times, Der Spiegel, Le Monde and El País published the same material, in coordination, with redactions negotiated among them. Their editors made the same decisions about what was in the public interest that the indictment treated as criminal when made by somebody else.
None was charged. The distinction the government drew was about conduct rather than publication: the alleged assistance in obtaining the material, and the alleged publication of unredacted names. Whether that distinction holds as a matter of law is exactly the question a trial would have decided.
It is also a distinction that depends on the prosecutor’s characterization rather than on anything a court has affirmed, which is the position every editor who worked on those files has been in since 2010 and remains in now.
Why the hearing was in Saipan
A detail that sounds like trivia and is not.
A guilty plea must be entered in a United States federal court, and the defendant declined to enter the continental United States. The Northern Mariana Islands are a commonwealth in political union with the United States, with a federal district court, and they are close to Australia.
So the venue was chosen to satisfy two conditions: American jurisdiction, and a location the defendant would agree to travel to and depart from. That such a place had to be found at all is the clearest indication of how little trust either party had in the other’s assurances.
Two governments also did work here that is not in any court file. Australia’s parliament passed a motion calling for the matter to be brought to a close, and the case had become a persistent item in the relationship between two allies. Diplomatic pressure does not appear in an indictment and it is frequently the thing that resolves one.
What is left on the record
One felony conviction, under a 1917 statute, arising from the publication of government documents by a person who was not a government employee.
Whatever anybody thinks of him, that sentence now exists in American law as a thing that happened, and it exists without a court ever having held that it was permissible. The next prosecutor considering a similar charge has a precedent in the loose sense that somebody pleaded to it, and no precedent at all in the sense that matters, which is a ruling.
Every newspaper that published the same cables in 2010 is therefore in precisely the position it occupied then: not charged, not cleared, and dependent on the continued discretion of people who have now demonstrated that the charge is available and that it works.
