Regardless of what Judge Ramona V Manglona decided about his plea deal in her Saipan courtroom on Wednesday, Julian Assange was going home. That’s not because Judge Manglona was some kind of Pacific outpost rubber-stamp. It’s because the US government promised in writing that Assange would be allowed back to Australia.
The fine print of the deal the Australian Wikileaks publisher’s lawyers struck with the United States Department of Justice to plead guilty in return for his freedom reveals the US had guaranteed that even if the judge rejected it, or tried to modify it, Assange was going to be allowed to fly on to Australia.
It’s a highly unorthodox legal arrangement in a highly unusual case and reveals both just how tricky these negotiations were and how much all the stakeholders – including the US government – really wanted it resolved.
Pleading guilty to espionage – a felony under US law – required that Assange appear in court in person. He and his lawyers had insisted he would not agree to attend a mainland US court because of the risk of being ambushed by some legal manoeuvre that stopped him leaving.
So the DoJ proposed Saipan in the North Mariana Islands, a tiny American Pacific outpost, relatively close to Australia.
The 23-page agreement facilitating this allowed either party to withdraw if the court in Saipan did not accept it. If Assange withdrew, then the Saipan arrangement would be off and he would have to appear before an eastern district of Virginia court in the US.
Paragraph 14 provided a backup plan in the form of a series of cascading clauses to ensure that whatever happened in Saipan, provided he kept his side of the deal, Assange would be free.
It said if the Saipan judge refused to endorse it, or imposed a different sentence, and either party withdrew as a result – which they clearly would – Assange was to be released on bail and allowed to continue to Australia.
If the Saipan court detained him based on admissions in the agreement, the US would dismiss the information within it until he could leave US territory and then refile it, once he’d gone. It also agreed not to detain him pursuant to the indictment that was then still pending in Virginia.
In the event of all that, a resolution was to be negotiated within 45 days that achieved basically the same result: a guilty plea and a sentence that equalled time served. He’d have to go back to US territory to repeat the process.
These intricate legal twists are how politics and the law managed to accommodate each other and satisfy the imperatives of both – across three countries including Britain, where Assange was in jail and subject to a US extradition application, and without trampling too much on the separation of powers.
There were many, many moving parts.
It began in 2019, when Assange was moved to London’s Belmarsh Prison from the Ecuadorian embassy where he’d been granted sanctuary and lived for seven years. The Morrison government did little to assist. When Labor won office in 2022, the new prime minister Anthony Albanese and his foreign minister Penny Wong began raising Assange’s case with their counterparts and urging a resolution.
It was early last year that a plea deal became a real possibility.
On 13 March, 2023, Albanese joined US President Joe Biden and British prime minister Rishi Sunak at Point Loma Naval Base in San Diego to seal the Aukus submarine deal that had been unveiled in September 2021 when Scott Morrison was prime minister.
In San Diego, Australia’s then ambassador to Washington, Arthur Sinodinos, briefed Albanese on key bilateral issues, including the Assange case. Recounting this on ABC Radio National on Friday, Sinodinos danced carefully around the details, saying only that he talked about a way forward and the prime minister decided to get the attorney general’s department involved.
It seems a plea deal had begun to take shape. Even now, after its conclusion, nobody is willing to confirm just where the idea came from.
But nine days after the San Diego briefing, in an address to the National Press Club in Canberra alongside Assange’s wife Stella, his Australian lawyer, Jennifer Robinson, confirmed a deal was possible.
“We are considering all options,” Robinson said at the time. “The difficulty is that our primary position is, of course, that the case ought to be dropped. We say that no crime has been committed and the facts involved in the case don’t support a crime. So what is it that Julian would be pleading to?”
This week Robinson would describe the final impetus, but not the genesis.
“Deal discussions started last year but moved more quickly after Julian won leave to appeal in the UK and it was apparent the US might lose the extradition case,” Robinson told Guardian Australia. “We worked around the clock in the last few weeks to finalise the deal.”
In January, attorney general Mark Dreyfus went to the US to see his counterpart Merrick Garland. The Assange case was part of their discussions.
In March, the Wall Street Journal published a report suggesting the DoJ was considering a lesser charge of mishandling classified information – a misdemeanour that would have allowed Assange to plead remotely and avoid a US court appearance.
At the time, he was awaiting a decision in the British courts on whether he would have leave to appeal his extradition to the US, on grounds that as a foreign citizen he may not be able to avail himself of the free-speech protections available to Americans there under the first amendment to the US constitution.
Inside the Albanese government there was panic that the Wall Street Journal report might derail the whole thing, when they had hoped it might have been almost concluded.
It didn’t. But the deal would ultimately not see Assange pleading to a misdemeanour.
In between, the British court granted his right to appeal. Suddenly, there was the prospect of more lengthy court proceedings. Assange’s health had deteriorated and there were grave fears he might not survive it. For the US, the possibility the appeal might succeed raised the spectre of a complete loss.
But winning wasn’t entirely attractive either. That would bring a high-profile Espionage Act trial, just down the road from Washington DC in a presidential election year.
Ultimately, the case might even have ended up before the US supreme court – its decisions influenced heavily by Donald Trump appointees – which could have been asked to rule on the extent of the constitution’s free speech protections. On top of this, Australia was raising the case at every opportunity. The US was motivated to find a way out.
The DoJ had to persuade the US agencies whose material Wikileaks published that offering a deal was better than rolling the dice. It may have had to expend some political capital to get them across the line.
That could be why it decided anything less than a felony charge was a dealbreaker. Assange would have to appear in a US court.
In May, the British court granted the leave to appeal upon which all his hopes were pinned. So the geographical solution was found, details thrashed out and the deal struck. Assange signed it on Monday in London, the US government’s attorney on Tuesday. By Wednesday night Canberra time, Assange was home.
Along with the legal negotiators, there were key political players. Albanese and Biden were central, their political heft helping focus minds in the DoJ to find what is being described as a “creative” solution.
So, too, was high commissioner Stephen Smith in London, who reopened communications with the Assange team, and especially ambassador Kevin Rudd in Washington, who is being given much credit for relentless persistence and helping navigate obstacles.
Smith travelled with Assange, his presence a condition of the British bail order which remained in place until the US dropped the extradition proceedings after the final court endorsement. Rudd joined them in Saipan to ensure nothing went wrong at the last minute.
Some in the Australian security community have protested that such high-level diplomatic escorts gave Assange a status he didn’t deserve and a protection usually reserved for Australian political prisoners freed from non-democratic regimes. But it does suggest even the assurances of our closest ally required insurance.
The Australian government’s warm welcome for Assange was noted in Washington. He did, after all, publish their secrets. The US view was encapsulated by secretary of state Antony Blinken during last year’s AusMin talks in Brisbane.
“Just as we understand sensitivities here,” Blinken said, when asked about Assange, “it’s important that our friends understand sensitivities in the United States.”
High as they were, the legal hurdles in Assange’s case were eventually cleared and the bilateral relationship will endure.
But sensitivities, well, they have a way of hanging around.