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U.S. May Face Problem Extraditing Snowden Under Espionage Act

If the U.S. charges Edward Snowden under the Espionage Act, they may not be able to extradite him back to the U.S. due to a 1996 treaty with Hong Kong that exempts extradition for political offenses.

Published: June 17, 2013

 

Cross­pos­ted at MSNBC.com.

Edward Snowden’s continu­ing disclos­ures of sens­it­ive inform­a­tion are no doubt infuri­at­ing the Obama Admin­is­tra­tion. In short order, the former National Secur­ity Agency contractor has revealed: a surveil­lance program that scooped up millions of records of Amer­ic­ans’ commu­nic­a­tions; PRISM, a program used by the NSA to access digital data through the serv­ers of major Inter­net compan­ies; the iden­tit­ies of civil­ian computer networks in Hong Kong and China targeted by the U.S.; and eaves­drop­ping on foreign govern­ments by the U.S. and the United King­dom. The Depart­ment of Justice is reportedly prepar­ing an indict­ment against him and will prob­ably reach for its favored tool in leak cases: the Espi­on­age Act. Char­ac­ter­iz­ing Snowden’s actions as espi­on­age is legally possible. But doing so may actu­ally make it diffi­cult for Hong Kong courts to send him back for trial.

Those call­ing for Snowden’s head are convinced his disclos­ures harm national secur­ity. Others are more skep­tical. Are terror­ists going to change their beha­vior because they know about PRISM, or did they in any event presume that their commu­nic­a­tions were being monitored? Haven’t the Chinese always assumed that their civil­ian networks were being hacked, as they now say? Did diplo­mats really think that an Inter­net facil­ity set up by the U.K. was free from spyware? Even as these issues are debated, Snowden contin­ues to portray himself as a whis­tleblower for the world. He argues that his disclos­ures have brought no bene­fit to him, but will instead “help the public of the world, regard­less of whether that public is Amer­ican, European, or Asian.”

While these matters domin­ate the public discourse, they make no differ­ence to the govern­ment’s abil­ity to bring an Espi­on­age Act prosec­u­tion. Recent whis­tleblowers have been charged under a section of the law that only requires the govern­ment to show that Snowden “will­fully” commu­nic­ated inform­a­tion to someone not author­ized to receive it. At the urging of the Obama Admin­is­tra­tion, several courts have held that there is no require­ment that the accused inten­ded to cause harm to the United States or bene­fit another coun­try. Nor is it neces­sary that the disclos­ures actu­ally caused harm. It is enough if the accused had “reason to believe” that disclos­ures could injure the U.S. or aid a foreign nation.

But rely­ing on the Espi­on­age Act in Snowden’s case could back­fire. The 1996 extra­di­tion treaty between the United States and Hong Kong contains an excep­tion for polit­ical offenses, which Snowden will almost certainly invoke.

Espi­on­age is the archetypal polit­ical offense—it is perpet­rated against the state, not private persons. This posi­tion has long been accep­ted by Amer­ican courts, as well as those of other coun­tries. In a famous Cold War-era case, an Amer­ican, Dr. Robert Soblen, who was convicted under the Espi­on­age Act for spying for the Soviet Union, jumped bail and ended up in the U.K. He could not be extra­dited because the relev­ant treaty exemp­ted polit­ical crimes. In April 2013, the Depart­ment of Justice announced that the Swedish govern­ment would not extra­dite an Amer­ican accused of spying for Cuba. The reason: “Espi­on­age is considered a ‘polit­ical offense’ that, there­fore, falls outside the scope of Sweden’s extra­di­tion treaty.” Hong Kong courts may simil­arly refuse an extra­di­tion request if the charges against Snowden are framed around the Espi­on­age Act.

China, which regu­lates Hong Kong’s foreign rela­tions under the “one coun­try, two systems” policy, will likely play a crit­ical role. Hong Kong courts may punt to the Chinese govern­ment the ques­tion whether Snowden is being charged with a polit­ical offense. China could also inter­vene inform­ally. In 2008, for example, an Iranian oper­at­ive whom the United States was seek­ing to extra­dite from Hong Kong for attempt­ing to purchase embar­goed milit­ary equip­ment was suddenly released. This action was reportedly taken at the behest of Chinese author­it­ies. State­ments from Chinese sources suggest that they do not want to turn this into a “polit­ical” case. The U.S. should like­wise stay away from polit­ic­ally tinged offenses like espi­on­age.

The Obama Admin­is­tra­tion’s decision to use the legal process of extra­di­tion, rather than less formal means, to secure Snowden’s return is the correct one. Now the Admin­is­tra­tion should make a second wise choice and refrain from char­ging him under the Espi­on­age Act. This does­n’t mean that the U.S. can’t seek to extra­dite Snowden for a host of other common crimes—un­au­thor­ized reten­tion of clas­si­fied docu­ments or misuse of govern­ment computers, for example. These may not carry the perceived weight of an espi­on­age charge, and may even result in a lighter sentence. But restraint could save the admin­is­tra­tion a great deal of legal and polit­ical uncer­tainty and would also reas­sure those at home who believe it has gone too far in its pursuit of whis­tleblowers.

Photo by thewamphyri.