Much of the world is eyeing Hong Kong in anticipation of whatever happens to Edward Snowden — public enemy number one to the U.S. intelligence community, accused of treason by a U.S. senator.
His story and his circumstances invite imaginations to run wild. Snowden himself has suggested his life might be in danger. If this were a spy thriller, the nature of his disclosures and the tradecraft that facilitated them, might be followed by a similar cloak-and-dagger operation to capture him and return him to the United States.
This isn’t a movie, of course. But if you’re an espionage geek, you can take solace in the fact that such an outcome is entirely possible and would be perfectly kosher under U.S. law. The likelier and less exciting reality, though, is that officials will undertake a more straightforward diplomatic and legal process that could result in Snowden’s extradition back to the United States.Bruce Maloy, an attorney and law professor at Emory University, is an expert in U.S. extradition law. In a phone interview with TPM, he explained how the U.S. government, working in conjunction with officials in Hong Kong, would seek to have Snowden returned to his home country on a “by the books” basis — and how they might seek to legally circumvent the traditional treaty process.
According to Maloy, the formal process begins with an arrest.
“The Hong Kong government would notify the government of the U.S. that he’s in custody,” Maloy said. “‘We found the interpol notice, we arrested him per your request,'” they would inform officials here.
That would start the a 60-day clock, under the terms of the treaty, for the U.S. to prepare a formal extradition request. “If no extradition request has been received, the defendant is entitled to be released.”
The extradition request is a physical document — red wax, gold seal, blue ribbon.
“It is a formal request, generally it is an affidavit by a federal prosecutor, it says we have investigated Mr. Snowden, and a judge has issued a warrant for his arrest,” Maloy told me. “Generally a copy of the treaty is attached, along with a copy of information like a passport photo to make sure that the person arrested in Hong Kong is the person the United States wants.”
But that wouldn’t be enough on its own to ensure that Hong Kong authorities arrest Snowden and put him on a plane back to America.
There’s essentially a three-part test the U.S. government has to meet in order for a magistrate in Hong Kong to approve the U.S.’s request.
First, identity: Is this the person the U.S. wants?
Second, is there an extradition treaty between the two countries?
In a case like this, these first two questions would presumably be formalities — there is an extradition treaty between the U.S. and Hong Kong, and assuming U.S. officials determine that Snowden has been truthful about what he’s admitted, making sure he’s the person the U.S. government wants would be very straightforward.
It’s the third part of the test that can potentially complicate things. Because law has grown complex, Maloy says, it stopped making sense for treaties to be highly enumerated. “Modern treaties simply say extradition can be requested if the conduct is a crime in both countries punishable by more than one year in jail.”
The U.S. and Hong Kong by contrast have a more old-fashioned treaty, which in addition to the one-year-in-prison standard, lists offenses that are extraditable.
For Snowden to be extradited, the U.S. would have to show that “the factual recitation in the extradition request … describe[s] conduct that is either one of the enumerated offenses or one that violates both the laws of the United States and Hong Kong,” Maloy explains.
If the request passes all three parts of the test, the extradition is a go, and in all likelihood Snowden would be returned home.
Assuming Snowden is still in Hong Kong, that’s what former officials and experts on the island think will happen, according to the New York Times.
Hong Kong authorities have worked closely with law enforcement agencies in the United States for years and have usually accepted requests for extradition under longstanding bilateral agreements, according to Regina Ip, a former secretary of security who is now a member of the territory’s legislature.
“He won’t find Hong Kong a safe harbor,” Ms. Ip said. “Those agreements have been enforced for more than 10 years. If the U.S. submits a request, we would act in accordance with the law.”
But there are some caveats. And because there are caveats, there are ways countries including the U.S. can circumvent the process altogether.
First, there are political offense exceptions, under which requested countries — in this case Hong Kong — are not required to carry out the extradition. What constitutes a political offense is a bit subjective and there’s an enormous amount of literature about it, but Maloy described some canonical examples.
“A number of the IRA members in the 1970s and 80s were able to avoid extradition from the U.S. back to Northern Ireland because they were able to demonstrate that their conduct amounted to a political offense,” he said.
Likewise common crimes, such as destruction of property, if carried out with political motives can be deemed political offenses. On the other side of that coin, if a requesting country is pursuing a suspect for political reasons but accusing that person of a crime that isn’t typically enforced — an adultery law, say — then the requested country can exercise its discretion and determine that it’s not an appropriate offense under the treaty.
Moreover, all of these treaties include a catchall provision allowing the requested country to decline if the extradition is not in its own interest.
“Every sovereign country reserves the right to turn down the request, if it’s deemed in the interest of the country,” Maloy said.
These are both provocative exceptions in Snowden’s case. Whether anyone officially accepts it or not, an argument that he’s wanted for a political offense writes itself. And due to the enormous publicity and the sensitivity of the relationship between the U.S. and China, it’s possible to imagine that Hong Kong (or Beijing) determine that Snowden is just too hot right now.
Some experts on U.S.-Sino relations speculate that the question of what happens to Snowden will ultimately run through Beijing precisely for this reason. Former CIA officer Paul Pillar, who wants the U.S. to throw the book at Snowden, says the U.S. should be willing to call in favors to get Snowden returned, if that’s what it takes.
“If it requires using any of our chits with the Chinese on extradition matters… I think we should,” Pillar told me.
Even if that doesn’t work, though, Snowden will either be stuck in Hong Kong for some time (if he leaves Hong Kong, he’ll be flagged by Interpol and the process will begin anew; if Hong Kong were to send him elsewhere to avoid extradition proceedings it would be a diplomatic affront to the U.S.) or he’ll be rendered via less orthodox measures.
Specifically, he could be expelled, he could be kidnapped, or he could be lured into custody via some sort of trickery. Any of these steps could land him back in the U.S. — all are legal.
The Supreme Court settled the kidnapping issue in the 1992 case of the U.S. vs. Humberto Alvarez Machain — a Mexican physician whom the U.S. believed took medical steps to keep a captured, undercover DEA agent alive after he was identified, captured, tortured, and eventually killed.
In response, the DEA hired Mexicans to kidnap Machain and deliver him to the United States.
The Mexican government was outraged when they learned of the DEA’s actions. “Those individuals remain in the Witness Protection Program to this day,” Maloy says. The irony is that after the Supreme Court determined he could be tried for his crimes, Machain himself ultimately went free when a judge ruled there wasn’t enough evidence to hold him and found him not guilty.
Maloy says for legal purposes there’s no real distinction between what DEA did, and what the Obama administration attempted when it sent a SEAL team in to Pakistan to apprehend Osama bin Laden.
But it’s extraordinarily unlikely that the U.S. will undertake this approach.
“The U.S. is not going to go and take this guy as a matter of realpolitik … especially if he’s been granted asylum,” said Ashley Deeks, a University of Virginia law professor and former State Department adviser on matters of extradition. “The U.S. probably wants to do this right because it doesn’t want to litigate more issues in court than it has to.”
Less obtrusively, the U.S. government could ask the government of Hong Kong not to renew his visa and put him on a plane back to the U.S. It could also revoke Snowden’s passport, and ask Hong Kong to hand him over — a process called “deportation or expulsion,” according to Deeks.
More elaborately, an agent of the U.S. government could lure him deceptively on to a plane or boat that ultimately changes course toward U.S. shores.
The broader point, though, is the U.S. has no shortage of options. And even if he manages to avoid capture for the immediate future, he won’t be able to rest easy unless the Department of Justice seeks to have a warrant for his arrest dismissed by ministerial action, a U.S. president takes the unusual step of pardoning him, or a country grants him asylum.
For that to happen, according to Jason Dzubow, an asylum attorney in Washington, D.C., “he would need to show he has a well founded fear of persecution based on one of the five protected grounds: race, religion, nationality, political opinion, and particular social group” — the latter is a catchall term intended to encompass communities that don’t fall under the former four.
That’ll be tough for him, Dzubow suspects. “He’ll have to show he’d face persecution, as opposed to prosecution, in the United States…. Just going to prison wouldn’t qualify.”
Snowden’s public statements suggest he believes he faces more than just straightforward legal proceedings in the U.S. — but that’s not enough either.
“There’s an objective aspect to that and the subjective aspect. The subject aspect is just to have him say “I feel fear,” to testify that he fears going back to his country,” Dzubow told me in a telephone interview Monday. But he’d also likely have to make the case that he’d face unusual treatment.
“If he was going to make an argument that he was going to face extended solitary confinement,” for instance, he could argue that he faced persecution within the normal judicial channels. “I just think it’s going to be hard to objectively make that argument about the U.S. prison system,” Dzubow said.
Snowden’s least bad option, then, might just be to hold out as long as he can and cross his fingers.
“There’s no double jeopardy in extradition,” Maloy warns. “So if the U.S. sent over an extradition request to Hong Kong and the judge found some defect in it … and said, ‘I’m dismissing this request as not meeting the treaty standards,’ there’s nothing stopping the U.S. from sending a second request or a third request until they send one that’s satisfactory to Hong Kong.”
This post has been updated to clarify the definition of “deportation or expulsion.”