U.S. charges Snowden with espionage

U.S. charges Snowden with espionage

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View Photo Gallery — Who is Edward Snowden?: A 29-year-old government contractor who admitted that he was behind recent leaks of classified intelligence has vaulted from obscurity to international notoriety, joining the ranks of high-profile leakers such as Daniel Ellsberg of Pentagon Papers fame.

By Peter Finn and Sari Horwitz, E-mail the writers

Federal prosecutors have filed a sealed criminal complaint against Edward Snowden, the former National Security Agency contractor who leaked a trove of documents about top-secret surveillance programs, and the United States has asked Hong Kong to detain him on a provisional arrest warrant, according to U.S. officials.
Snowden was charged with espionage, theft and conversion of government property, the officials said.

The complaint was filed in the Eastern District of Virginia, a jurisdiction where Snowden’s former employer, Booz Allen Hamilton, is headquartered, and a district with a long track record in prosecuting cases with national security implications.
A Justice Department spokeswoman declined to comment.
Snowden flew to Hong Kong last month after leaving his job at an NSA facility in Hawaii with a collection of highly classified documents that he acquired while working at the agency as a systems analyst.
The documents, some of which have been published in The Washington Post and Britain’s Guardian newspaper, detailed some of the most secret surveillance operations undertaken by the United States and the United Kingdom, as well as classified legal memos and court orders underpinning the programs in the United States.
The 29-year-old intelligence analyst revealed himself June 9 as the leaker in an interview with the Guardian and said he went to Hong Kong because it provided him the “cultural and legal framework to allow me to work without being immediately detained.”
Snowden subsequently disappeared from public view; it is thought that he is still in the Chinese territory. Hong Kong has its own legislative and legal systems but ultimately answers to Beijing, under the so-called “one country, two systems” arrangement.
The leaks have sparked national and international debates about the secret powers of the NSA to infringe on the privacy of both Americans and foreigners. Officials from President Obama down have said they welcomed the opportunity to explain the importance of the programs, and the safeguards they say are built into them. Skeptics, including some in Congress, have said the NSA has assumed power to soak up data about Americans that were never intended under the law.
There was never any doubt that the Justice Department would seek to prosecute Snowden for one of the most significant national security leaks in the country’s history. The Obama administration has shown a particular propensity to go after leakers, and has launched more investigations that any previous administration.
Justice Department officials had already said that a criminal investigation of Snowden was underway and was being run out of the FBI’s Washington field office in conjunction with lawyers from the department’s National Security Division.
By filing a criminal complaint, prosecutors have a legal basis to make the request of the authorities in Hong Kong. Prosecutors now have 60 days to file an indictment, probably also under seal, and can then move to have Snowden extradited from Hong Kong for trial in the United States.
Snowden, however, can fight the U.S. effort to have him extradited in the courts in Hong Kong. Any court battle is likely to reach Hong Kong’s highest court, and could last many months, lawyers in the U.S. and Hong Kong said.
The United States has an extradition treaty with Hong Kong, and U.S. officials said cooperation with the Chinese territory, which enjoys some autonomy from Beijing, has been good in previous cases.
The treaty, however, has an exception for political offenses, and espionage has traditionally been treated as a political offense. Snowden’s defense team in Hong Kong is likely to invoke part of the extradition treaty with the United States, which states that suspects will not be turned over to face criminal trial for offenses of a “political character.”
Snowden could also remain in Hong Kong if the Chinese government decides that it is not in the defense or foreign policy interests of the government in Beijing to have him sent back to the United States for trial.
Snowden could also apply for asylum in Hong Kong, or attempt to reach another jurisdiction and seek asylum there before the authorities in Hong Kong act.
The anti-secrecy group Wikileaks has held some discussions with officials in Iceland about providing asylum to Snowden. A businessman in Iceland has offered to fly Snowden on a chartered jet to his country if he is granted asylum there.
The chief executive of Hong Kong, Leung Chun-ying, said last week that the city’s government would follow existing law if and when the U.S. government requested help.
“When the relevant mechanism is activated, the Hong Kong [Special Administrative Region] Government will handle the case of Mr. Snowden in accordance with the laws and established procedures of Hong Kong,” Leung said in a statement.

http://www.washingtonpost.com/world/national-security/us-charges-snowden-with-espionage/2013/06/21/507497d8-dab1-11e2-a016-92547bf094cc_story.html

The Six Tricky Steps to Edward Snowden's Extradition, Explained

AP
Philip Bump 6,838 Views Jun 20, 2013

Whether you planned on greeting him with a parade or with pitchforks, don't expect to see Edward Snowden on American soil again anytime soon. Unless he chooses to return — which seems highly unlikely — the process of extraditing him from Hong Kong would be tedious, extensive, and riddled with political nuance. And hyperbolic calls for harsh punishment might do more harm than good.

The Washington Post walks through the process set out in the United States' 1996 treaty with the semi-autonomous city — an agreement signed "with the 'authorization' of its sovereign nation," as a contemporaneous Senate report explains. The legal complexities involved prompted one attorney who specializes in extradition to comment to the Post that "Mr. Snowden is much wiser from a legal perspective than many people initially gave him credit for."

Extraditing Snowden to the United States is a six-step process.

1. Determine the charges.

This is a critical step. Only certain felonies are eligible for extradition; were Snowden wanted for unpaid parking tickets, for example, an extradition would be a non-starter.

But there are some tricky spots that the Department of Justice (which is tasked with developing the charges) needs to avoid. For example, that Senate report describes the "political offenses" section of the treaty, its Article 6.

In general, the Hong Kong Agreement excepts political offenses from the obligation to surrender. Even though U.S. extradition practice universally has precluded extradition for political offenses, there has been a trend over the past 20 years toward narrowing the scope of the political offense exception to exclude from its protections crimes such as terrorism, hijacking, and murder of political leaders. The Hong Kong Agreement comports with that trend.

Clearly, Snowden's actions don't fall within the scope of terror, hijacking, or murder. Whether or not Hong Kong views his actions as political, as Snowden does, isn't clear. One expert the Post cites indicates that such consideration would be unique for the city.

It gets trickier. Several senators have argued that Snowden is a traitor. Were the government to charge him with treason, however dubious and unlikely that charge might be, it would be an invocation of a capital offense. That's a no-go for Hong Kong.

The Hong Kong Agreement provides that the requested Party may refuse extradition whenever the extraditable offense is punishable by death in the jurisdiction of the requesting, but not the requested, Party, unless the requesting Party furnishes such assurances as the requested Party considers sufficient that the death sentence will not be imposed and executed.

2. Ask Hong Kong to hold him.

Once it files a criminal complain, the United States needs to ask Hong Kong to take Snowden into custody on "provisional arrest," according to the Post. This is where the politics really kick in. And, as Stephen Vladeck, a dean at American University, suggested to the paper, "The dirty little secret about extradition law is it’s really about 90 percent politics and only 10 percent law."

3. File an indictment within 60 days.

After Snowden is in custody, the United States needs to file an indictment with the court in Hong Kong — perhaps a secret one, given the issues at hand.

4. Judge rules in favor of extradition.

A legal hearing ensues, and the judge needs to rule in the United States favor. However …

5. The U.S. overcomes appeals.

Snowden can then appeal, as many times as the courts find appropriate. It could eventually reach the highest court in Hong Kong, the last possible stop. If that court were to rule against him, his options are exhausted.

6. Snowden is extradited.

At that point, he'd be put on a plane to the U.S., where another criminal trial begins.

But even that complicated procedure makes it sound easier than it is. There are a variety of complications that could emerge over the course of the discussion.

Where is he? First and foremost is that it's not publicly clear where Snowden is. It's unlikely that the United States government or Hong Kong authorities don't know where he is, but if they don't, that puts a crimp in their ability to hold him under provisional arrest. Or, if he's not in Hong Kong at all, the process would obviously restart.

Hong Kong can refuse. The Post points out that extradition hearings don't always result in an extradition. Even the United Kingdom has extradited only 60 percent of those people the U.S. Has sought since 2004. Iceland, which Snowden has repeatedly indicted is his ultimate destination, has never granted an American extradition request.

China can intervene. Given its unusual international status, the treaty with Hong Kong includes a unique stipulation, according to the paper.

Hong Kong also has an additional and unusual exception in its treaty that could provide a defense for Snowden, according to Douglas McNabb, a lawyer who specializes in international extradition cases. Hong Kong authorities can refuse the extradition of a suspect “if they believe it should be denied from a defense or foreign policy perspective,” McNabb said. “I have not seen that in any other treaty.”

If, for example, it turns out that Snowden is a Chinese spy, that might be considered a reason to deny extradition.

Hong Kong could feel pressured by public opinion. Many people in Hong Kong don't want Snowden extradited — an issue that certainly links to that "90% political" comment. Courts aren't obliged to make decisions based on opinion, but politicians often are. This could add a level of complexity. (Luckily, Politico has some public relations tips for Snowden, so he can keep that pressure going.)

Snowden could seek asylum from Hong Kong. Of course, Snowden could also seek asylum from other countries while in Hong Kong. It's unclear if this process has begun, although Julian Assange says he's helping Snowden talk to Iceland. This is probably Snowden's ultimate goal and — if successful — it's likely that he'd never face criminal prosecution in the United States. But as the Assange case makes clear, that's a long, complex process itself.

Want to add to this story? Let us know in comments or send an email to the author at pbump@theatlantic.com. You can share ideas for stories on the Open Wire.

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