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What's Next for Julian Assange?

The homepage of with a picture of its founder Julian Assange. Getty Images

WikiLeaks founder Julian Assange has been denied bail by a judge after surrendering to British authorities over a Swedish arrest warrant because he was considered a flight risk. Consequently, Assange will stay in jail until another hearing next week. He opposes extradition -- he has argued he is willing to cooperate with the Swedes and can be interviewed via videotape.

Can he be extradited to the U.S.?

If Assange is charged for releasing classified U.S. State Department cables -- which will be difficult under existing U.S. laws -- the government will need to get him here for trial. At this point, the government doesn't have jurisdiction over him, so it couldn't try him unless another country agreed to extradite him. Although we have extradition treaties, the question is whether the offense -- releasing the cables -- is also a crime in, say, Sweden. And that's unclear -- most European countries have pretty strong laws protecting journalists, and Sweden may see inadequate basis for extraditing him here based on a novel application of our Extradition Act. They could well be unwilling to send him here for charges and trial.

What would Assange be charged with?

U.S. Attorney General Eric Holder said this week that Assange had committed a crime... but it's not clear under what law. Sen. Dianne Feinstein (D-Calif.) has said he should be charged under the Espionage Act of 1917, but that's a tough row to hoe. The Supreme Court ruled in the Pentagon Papers case in 1971 that media outlets are allowed to publish classified info under the First Amendment.

Furthermore, the Espionage Act would only apply if the government can show Assange released the information specifically to hurt the United States. The government would have to show Mr. Assange intended harm to the US -- which would be extremely difficult to prove. He could argue he wasn't trying to hurt the U.S., but to shed light on foreign policy decisions and, as a result, the Act does not apply to him.

He also could argue that he had no more intent to hurt the U.S. than the New York Times did when it published the documents -- and he, like the Times and other publications, instead were publishing information on critical matters of public concern. So if he's charged, so too should be the Times -- something Sen. Joe Lieberman (I-Conn.) has suggestedshould be considered.