Image: Julian Assange
Stefan Rousseau  /  AP
WikiLeaks founder Julian Assange, back to camera, is driven into Westminster Magistrates Court in London on Tuesday after being arrested on a European arrest warrant.
NBC, msnbc.com and news services
updated 12/10/2010 2:06:00 PM ET 2010-12-10T19:06:00

A lawyer for WikiLeaks founder Julian Assange said Friday that she expects the U.S. to indict him soon, but the prospect of Assange being sent to Sweden in a sex-crimes inquiry may make it less likely that he'll wind up before an American judge.

While Britain, where Assange is being held, has one of the most U.S.-friendly extradition regimes in Europe, Sweden may not be so quick to hand the 39-year-old Australian over.

"(U.S. officials) might be well advised, if they think they have a basis, to try to extradite him while he's still here," said Peter Sommer, a cybercrime expert at the London School of Economics.

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Assange faces allegations of rape and molestation in Sweden by two women, though he has not been charged.

U.S. officials are investigating whether he could be charged in U.S. court under the Espionage Act or other crimes — such as theft of government property or receipt of stolen government property — for publishing troves of secret U.S. diplomatic cables and military documents.

Jennifer Robinson, Assange's attorney, told ABC News that she expects an indictment on the spying charges.

"Our position of course is that we don't believe it applies to Mr. Assange and that in any event he's entitled to First Amendment protection as publisher of Wikileaks and any prosecution under the Espionage Act would in my view be unconstitutional and puts at risk all media organizations in the U.S.," she added.

A Justice Department official told NBC News on Friday that legal action against Assange "is not imminent." The U.S. government is moving slowly because it wants to make sure the prosecution is on solid ground, officials said.

The first congressional hearing relating to WikiLeaks will come next week, NBC News reported.

The House Judiciary Committee plans to hold a hearing on Thursday to look at how U.S. espionage laws can be brought up to date, according to sources. The laws, enacted nearly a century ago, are widely considered inadequate to deal with disclosures of government secrets in the digital age.

Members of Congress from both parties have expressed interest in giving the government new authority to prosecute leaks.

U.S. Attorney General Eric Holder this week authorized a criminal investigation into Assange. But if U.S. officials want to try him on those charges, they'll have to get their hands on the elusive Web activist first.

Britain and the United States signed a fast-track extradition treaty in 2003, a pact aimed at ensuring that terrorists and money launderers could more easily be taken from one country to stand trial in another. Karen Todner, a lawyer who has been involved in several high-profile extradition cases, said from a U.S. prosecutors' point of view, Britain would be the best place in Europe to seek a suspect.

"Nowhere is more favorable to the U.S.," she said.

Sweden has a long history of neutrality and its press freedom laws were recently rated as among the most liberal in the world, according to Reporters Without Borders. Extraditing Assange for what many in the Nordic country consider an act of journalism would be tricky.

That said, extraditions from the United Kingdom are not always straightforward either — a point illustrated by the case of self-confessed computer hacker Gary McKinnon, one of Todner's best-known clients.

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McKinnon admits that he broke into U.S. military computers in the months after Sept. 11, 2001, but his extradition has dragged on for more than eight years following arguments over McKinnon's human rights and whether he is fit to stand trial because he has Asperger syndrome, a type of autism.

Although the McKinnon case is exceptional, yearslong extradition delays aren't unusual. And there's no guarantee that, in Assange's case, WikiLeaks would stop publishing secret U.S. government documents while Washington sought his extradition.

"It can take a very long time," Sommer said. "Periods of 18 months to two years might not be unusual."

Then there are legal arguments. The United States would have to show that what it considers a crime is also considered a crime in Britain before any extradition can go ahead, something Sommer said was not easy.

"Maybe the U.S. Espionage Act is similar to the U.K. Official Secrets Act," he said. "Maybe it isn't."

Sommer also said Assange's lawyers would probably argue he would not receive a fair trial in the United States, where prominent pundits have called for him to be indicted, hunted down or even put to death.

Sarah Palin, the former U.S. vice presidential candidate, called Assange "an anti-American operative with blood on his hands" and questioned why he wasn't "pursued with the same urgency we pursue al-Qaida and Taliban leaders."

Republican Sen. Mitch McConnell of Kentucky described Assange as "a high-tech terrorist," while Sen. Joe Lieberman, I-Conn. and another former vice presidential candidate, characterized Assange's actions as the "most serious violation of the Espionage Act in our history."

Those statements may end up backfiring, Sommer said.

"Lieberman, in his desire to get headlines, may be impeding efforts to bring Assange into the United States," he noted.

It also isn't clear whether British prosecutors have much appetite to pursue Assange.

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British authorities have generally condemned the disclosures, but unlike Australia, whose attorney general has pledged to investigate Assange, officials here don't seem to be in any hurry to put him or his network of activists under the legal microscope.

Justice Secretary Ken Clarke told Britain's Channel 4 News he didn't know much about WikiLeaks and hadn't had any contact with U.S. officials about it. While he condemned the WikiLeaks disclosures, he also struck a sympathetic note.

"I disagree with what WikiLeaks has done," Clarke said, citing the damage it had dealt to international diplomacy. But he added: "some of the things it's revealed — let's be fair — are of genuine public interest."

"On balance it's done a great deal of harm, but that's not a criminal offense," Clarke said.

Some WikiLeaks supporters fear that Assange is being sent to Sweden so he can then be extradited to the United States — but Swedish officials say that would be impossible without British approval.

The Swedish Prosecution Authority has issued a statement saying Sweden does not simply hand people over. That's particularly true if the country requesting extradition lies outside the European Union.

Non-EU countries seeking a suspect who has been extradited to Sweden under a European arrest warrant would have to seek the permission of the EU nation that made the arrest in the first place — Britain, in Assange's case.

The Associated Press contributed to this report.

Video: Hometown turns back on suspected leaker

  1. Closed captioning of: Hometown turns back on suspected leaker

    >>> the american army private who was the alleged source in the wikileaks case is now awaiting court-martial in what's described as a massive cust -- nbc's mike tiabbi explains.

    >> reporter: bradley manning was the undersized sax player in the band, the straight a student, and his lifelong friend jordan davis who says he often got under classmates words. now he's the alleged source in the middle of the wikileaks firestorm, an army intelligence officer entrusted with downloading and distributing classified documents made public by wikileaks . in his hometown of crescent, oklahoma some are already judging him, like former marine roger campbell.

    >> i think he should be executed for doing what he did?

    >> reporter: and if he did it, why? a former computer hacker says he had a -- i want people to see the truth, manning wrote about war strategy, air strikes that killed civilians in iraq and about all those cables in the state department database. it belongs in the public domain , he said repeatedly, he says i couldn't be a spy, spies don't post things for the world to see.

    >> he described himself at one point to be a hacktivist.

    >> reporter: he sometimes refused to say the pledge of allegiance at school.

    >> that was one of the things that was a little different about him.

    >> reporter: he talked about his parents divorce, about a boy who joined an army who would not allow him to serve as a gay man. i was the only one in town who was nonreligious, i am godless.

    >> if found guilty, he deserves all he gets.

    >> reporter: given the current charges he faces, that could be 52 years. for today, mike tiabbi, nbc news, crescent, oklahoma.

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