The British High Court of Justice in London has given WikiLeaks founder Julian Assange a significant reprieve in his fight against extradition to the United States on charges of espionage. In a 66-page judgment issued on March 26, a two-judge panel stopped short of granting Assange outright permission to appeal the extradition order signed in 2022 by the British Home Secretary. But the panel held that permission will be granted unless the U.S. provides assurances that if Assange is sent to the United States, he will be “permitted to rely on the First Amendment, that [he]... is not prejudiced at trial (including sentence) by reason of his nationality, that he is afforded the same First Amendment protections as a United States citizen, and that the death penalty is not imposed.”

In the British legal system, such appeals are discretionary, and require the approval of the High Court to move forward. The panel gave the United States until April 16 to lodge its assurances.

Given the U.S. Supreme Court’s First Amendment case law, it is doubtful the Biden administration’s Department of Justice (DOJ) will be able to meet the panel’s conditions. While the DOJ is not seeking the death penalty (though it is technically available under the Espionage Act of 1917) and can readily claim that Assange will be afforded all the due process trial protections given to American citizens, it will not be able to satisfy the panel’s First Amendment concerns. Under established Supreme Court precedent, the First Amendment does not apply to foreign citizens outside the United States and its territories. The DOJ is bound by that precedent.

The only thing worse for the Biden administration than extraditing Assange and triggering a First Amendment crisis would be an embarrassing loss in a high-profile trial.

This means that Assange’s appeal, which could take a year or more, should move forward, causing the Biden administration additional embarrassment at a time when its international human rights record has been called into question over its support of the Israeli invasion of Gaza.

The better course of action, both for President Joe Biden and Assange, would be to negotiate a mutually acceptable plea bargain to drop the extradition demand. Fortunately, a resolution may indeed be in the offing.

According to The Wall Street Journal, the DOJ is considering a plea deal for Assange. Under the terms of the arrangement, the U.S. would drop the 18 Espionage Act and conspiracy charges set forth in the second superseding indictment lodged against Assange in June 2020. In return, Assange would plead guilty to the misdemeanor offense of mishandling classified documents related to the Afghanistan and Iraq wars. Assange would be permitted to plead remotely from prison in London. With the plea in hand, the DOJ would withdraw its extradition demand, and Assange would walk free.

Although Assange’s lawyers say they have not yet been approached with a deal, both parties to the longstanding international legal battle would be well advised to negotiate.

Born in Australia and trained as a computer programmer, Assange created the WikiLeaks website in 2006 to expose human rights abuses committed by governments around the world through the publication of official documents obtained from anonymous sources. His efforts made him a hero in some circles of the international left, but he also incurred the wrath of the United States for releasing, in 2010, war logs and other materials on the wars in Afghanistan and Iraq, and later for publishing emails taken from the Democratic National Committee during the 2016 presidential election campaign. The United States initiated formal extradition proceedings against him in 2019. Assange has been resisting extradition to the United States in British courts ever since.

For Assange, the benefits of a plea bargain with the Biden administration are obvious. After 14 years of confinement, including 7 years as a political asylee at the Ecuadorian embassy in London, he would be able to resume his work. Yes, he would have to admit guilt, but he would likely lose no political or moral standing with his supporters. No one could credibly accuse him of copping out or capitulating.

The Biden administration also has compelling reasons to put Assange in the rearview mirror. In fact, it has at least five good reasons:

1. Avoiding a First Amendment Catastrophe

Even if the First Amendment does not apply to Assange, the case carries profound First Amendment implications. Last April, 7 progressive House Democrats sent a letter to Attorney General Merrick Garland, urging him to drop the charges against Assange and warning:

It isn’t just American news outlets and journalists who would be harmed by a successful prosecution of Assange. The American public would also be damaged. As the Supreme Court has long recognized, the First Amendment doesn’t just protect the right to speak and publish. It also safeguards the right to receive information and ideas and the right to read. The prosecution of Assange imperils both aspects of our First Amendment freedoms. Seen in this light, the case against Assange portends a First Amendment catastrophe the Biden administration should want to avoid.

2. The Case Is Weak

From a purely evidentiary standpoint, the case against Assange is weak. The superseding indictment alleges that starting in 2009, Assange conspired with Chelsea Manning to hack military computers to facilitate Manning’s acquisition and transmission of classified information. However, as The Intercept’s Micah Lee has reported, expert testimony at Manning’s 2013 court martial trial and Assange’s 2020 extradition hearing raised serious doubts about the existence of any conspiracy.

Manning, according to Lee, “had authorized access to, and the ability to exfiltrate, all of the documents that she was accused of leaking—without receiving any technical help from WikiLeaks.” Far from being airtight, Lee argues, “the government’s... case [against Assange] appears to be rooted entirely in a few offhand remarks in what it says are chat logs between Manning and Assange discussing password cracking—a topic that other soldiers at Forward Operating Base Hammer........

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