US Officials Face Battle if They Want Julian Assange

The U.S. government may face an uphill battle if it tries to extradite and successfully prosecute WikiLeaks founder Julian Assange now that he's been jailed in Britain on sex allegations from Sweden.

Legal experts say that Assange's decision to fight his extradition to Sweden means the case could drag on in Britain for at least a year before he is handed over to Swedish authorities. Assange is being held in custody until the first hearing scheduled in the case on Dec. 14.

But even if Britain or Sweden, both of which have extradition treaties with the U.S., were to agree at a later date to extradite Assange, it's not clear if he could be successfully prosecuted under American espionage laws.

U.S. Sens. Joseph Lieberman and Dianne Feinstein are calling for Assange to be indicted under the Espionage Act, with Lieberman telling Fox News today that The New York Times should also be investigated under the law for having published WikiLeaks documents. Feinstein wrote an op-ed article on the subject in today's Wall Street Journal.

Stefan Rousseau, PA / AP

WikiLeaks founder Julian Assange is driven into Westminster Magistrates' Court in London on Tuesday after being arrested on a European Arrest Warrant.

But some tenets of the archaic Espionage Act, enacted in 1917, considered the only legal recourse U.S. officials have to prosecute Assange, conflict with the First Amendment. So building a case against him could be shaky at best.

U.S. Attorney General Eric Holder has said only that he plans "significant" actions as part of an ongoing Justice Department and Pentagon criminal investigation into WikiLeaks' release of classified government documents. Those actions reportedly include an examination of possibly going after Assange for violating the Espionage Act.

Plato Cacheris, a powerful Washington defense lawyer who specializes in high-profile political scandals and represented U.S. federal agents-turned-spies Aldrich Ames and Robert Hanssen, said a case against Assange could hinge on the debate over whether he is a radical whistle-blower or a journalist.

Assange, who has won media awards from the Economist magazine and Amnesty International, calls himself a journalist and uses "editor in chief" as his title on WikiLeaks. He told The Guardian recently that "our people mysteriously are alleged to cease to be journalists when they start writing for our organization."

"If I were defending him I'd say he was a journalist, but if I was the prosecutor I'd say he wasn't," Cacheris told AOL News today. "There are a lot of gray areas to the Espionage Act and a lot of imponderables involved in this case."

However, David B. Rivkin Jr., a Washington attorney who is an expert on constitutional law and served in the Justice Department under Presidents Ronald Reagan and George H.W. Bush, said he believes Assange could be successfully prosecuted under the Espionage Act because it would be fairly simple to prove he's not a journalist.

"He can and should be prosecuted and time is of the essence in this case," Rivkin told AOL News today. "The attorney general should be proceeding with the indictment today. We should be sending an extradition request now. I cannot say how amazed I am that the Justice Department has had months to jump on this and it's pathetic that they haven't done anything."

Rivkin said Assange cannot be considered a journalist in any traditional meaning of the word.