Julian Assange's extradition to Sweden has nothing to do with , it's all about rape – or so we are told. And as I've frequently written before, rape is an allegation to be taken seriously. The outright dismissal of claims by a woman that she has been the victim of sexual assault, the crowdsourcing approach to dissecting a rape case – the latest viral response to Assange's arrest – leave a bad, bad taste in the mouth.
Having said that, even Swedish rape experts – whose primary concern is with the treatment of female victims of rape – have told me that when it comes to the question of political interference in Sweden's criminal justice system, "it's impossible to rule it out". There are various questions to be asked about the timing of Assange's possible extradition to Sweden, and – for those who see rape allegations as something of a distraction from the main story here – what happens next?
America has made no secret of its interest in Assange. So much so that a group of respected figures – including Noam Chomsky – decrying the bloodthirsty rhetoric emerging from the American right: "kill him", "snatch him", "neutralise him" … you get the picture.
But it's members of the Democratic government, and not rightwing commentators, who are really of interest. The attorney general, Eric Holder, is still insisting that criminal charges against Assange in the US are a real possibility.
They have been investigating how to indict Assange since way before the current wave of cable leaks, and their primary weapon so far has been the espionage act. But, , this is problematic for various reasons.
The espionage act makes it a crime to disclose information "relating to the national defence" to "any person not entitled to receive it". But this is an offence designed to prosecute insiders who commit acts of espionage or leaking – it has never been used successfully against a media organisation. When the current act was passed in 1917, there was a debate about whether to make the law broad enough to specifically restrict the press, and instead the emphasis was placed on espionage. Not such good news for Bradley Manning, the former military intelligence official now in detention for disclosing secrets to WikiLeaks. But good news for Assange. Even during the second world war – when the national security argument was perhaps easier to make – and the Chicago Tribune published information that really could have jeopardised military strategy, the case was ultimately abandoned.
The difference between then and now, of course, is the capacity of leaks to go viral. One of the reasons that the second world war prosecution was dropped was the classic problem that also arises in libel cases – bringing legal proceedings in respect of confidential information often has the exact opposite effect, bringing it to the attention of anyone who missed it the first time round.
It's unlikely that many people have missed the information coming out of WikiLeaks – even shutting the site down has failed to stem the spread of mirror sites. Even as Assange was warming up for his first night in prison yesterday, WikiLeaks vowed to plough on with the remainder of the 250,000 leaks in its possession.
And since the initial espionage cases in the first half of the last century, America's supreme court has strengthened protection for freedom of speech, which has constitutional status in the US under the first amendment. Holder has obviously cottoned on to this weakness. "I don't want to get into specifics here, but people would have a misimpression if the only statute you think that we are looking at is the espionage act," Holder said at a news conference.
"That is certainly something that might play a role, but there are other statutes, other tools that we have at our disposal." What are those other tools? Conspiracy to commit espionage is one option – for example if investigators can show that Assange directed or assisted Manning or others in his violations of the espionage act.
Trafficking in stolen government property is another. But I'm probably as guilty of that as Assange is – as are any of you who read the Guardian stories and tweet them, forward them or link to them on Facebook. As the leaked documents are already copies, these offences go back to the same problem as those under the espionage act – Assange was not the one dealing in the data in the first instance.
If the US does get it together to indict Assange, then an indictment would be handed down by a grand jury, proceedings that are kept secret in the US. This has led to speculation that any such indictment would be kept under wraps until the time came for a viable extradition to the country.
That is unlikely to happen any time soon though. First there is the small matter of the current rape proceedings in Sweden. Assange is facing extradition there from the UK under the terms of the European arrest warrant fast-track proceedings, which facilitate transfers between European countries.
If Assange is sent to Sweden – and that remains an "if" at the moment as his lawyers have plenty of arguments with which they plan to contest the extradition request – then the question of an extradition to the US will become relevant.
There is a Sweden-US extradition treaty, signed in 1961, which provides a legal foundation for extraditions between the countries. But there is still discretion for Sweden to refuse extraditions for "political offences" or where the suspect has reason to fear persecution on account of their membership of a social group or political beliefs.
The treaty also specifies the offences which qualify for extradition, and espionage is not one of them. If the treaty doesn't apply, there would still be scope for the country to agree to his extradition to the US – Swedish law permits extradition more generally to countries outside Europe, but this could only take place after the current rape proceedings were concluded.
Under similar arrangements, Assange could also be vulnerable to extradition requests from other countries, including his native Australia, where the authorities are still investigating a potential case against him.
In short, for every politician itching to put Assange on trial, there is a legal obstacle to be overcome, which makes one thing and one thing only certain – for the question of Assange's future under the law, there is no end in sight.