Monday, June 10, 2013

Will Edward Snowden be Extradited?

On Sunday, 29-year old Booz Allen Hamilton employee Edward Snowden was revealed to be the source behind the recent disclosure of highly classified documents describing top secret National Security Agency surveillance programs of telephone and internet data. Snowden disclosed his identity to the Guardian in an interview from Hong Kong, where he currently remains. His choice to leave the U.S. for Hong Kong was, in his words, driven by the belief that the Chinese-administered region has a "spirited commitment to free speech and the right of political dissent." But Snowden is not completely free from the reach of U.S. law. The United States and Hong Kong have in force an extradition treaty under which the U.S. could obtain his return for prosecution.

Why did Snowden escape to Hong Kong, likely knowing that he could be extradited? My sense is that it isn't because he was poorly informed, but rather because his no-extradition alternatives were not particularly great. The overlap between countries with "spirited commitments" to freedom and countries with which the United States does not have an extradition treaty is virtually nil. Even Iceland, Snowden's asylum target, has an extradition treaty with the U.S. in force since the 1900s.

Countries the US has extradition treaties with (light blue, US shown here in dark blue) From Wikimedia Commons
But will Snowden be extradited back to the United States? I would argue that yes, extradition is probable*, but the process will be very tedious simply because the offense is so different from previous extradition cases. Whereas most extradition requests concern explicitly criminal matters, Snowden's may be a "political offense" for which extradition is not permitted. Working out this question will take time, but Hong Kong's track record of typically approving requests suggests that the odds are in the U.S. government's favor. Moreover, I do not think that Beijing will be able to tip the legal scales towards rejection if it so desires, despite its influence in Hong Kong.

China's preferences in this matter are certainly relevant, but the law is much more of a constraint in this process than some commentators have suggested. The security stakes are actually rather low. Snowden is not particularly useful as an intelligence asset. He no longer has access to NSA databases - all he has are whatever documents or files he could bring with him to Hong Kong, documents that were apparently selectively chosen. This is not a Cablegate-style data-dump and PRISM is hardly China's greatest intelligence fear. Certainly Beijing might want to obtain anything that Snowden still has in his possession, but it's unclear how cooperative he would be given his political leanings.

Influencing the extradition proceedings is also not costless for Beijing. Despite China's sovereignty over Hong Kong, the SAR has significant political autonomy in most areas. Indeed, it can and has concluded a number of extradition and mutual legal assistance treaties with other states. Hong Kong is a global financial hub and devotes significant legal and administrative resources to combating money laundering, financial crimes, trafficking and other such offenses. The high cross-border mobility of these types of offenders gives the Government of Hong Kong significant incentives to maintain the integrity of its extradition agreements in order to prosecute financial criminals who flee its territory. Undue influence by Beijing in the process might jeopardize the credibility of Hong Kong's other agreements. While China's ability to weigh in on extradition is clear, the decision to refuse extradition ultimately lies with the Chief Executive of Hong Kong.

Moreover, Hong Kong is also much more limited in its ability to reject extradition than some news reports have suggested. This South China Morning Post article, quoted by Doug Mataconis at OTB, gives the impression that China has de-facto veto power over any extradition request. This is not the case.

The SCMP article states that, according to the 1996 treaty, "Hong Kong has the "right of refusal when surrender implicates the 'defense, foreign affairs or essential public interest or policy'." However, this provision is irrelevant to the Snowden case since, according to Article 3, it only applies when the subject of the extradition request is a national of the PRC.
...(3) The executive authority of the Government of Hong Kong reserves the right to refuse the surrender of nationals of the State whose government is responsible for the foreign affairs relating to Hong Kong in cases in which: 
(a) The requested surrender relates to the defence, foreign affairs or essential public interest or policy of the State whose government is responsible for the foreign affairs relating to Hong Kong, or...
The article also notes that Hong Kong could reject a request if it determines that the extradition is "politically motivated." However, the article omits the fact that this determination is to be made by the "competent authority of the requested Party" which, according to the committee report that accompanied the treaty's ratification, is interpreted as the judiciary and not the executive of Hong Kong.
...Notwithstanding the terms of paragraph (2) of this Article, surrender shall not be granted if the competent authority of the requested Party, which for the United States shall be the executive authority, determines: 
(a) that the request was politically motivated...
Meddling with Hong Kong's independent judiciary would be politically costly for Beijing. In fact, it could jeopardize the extradition agreement itself. When the U.S. Senate ratified the treaty, it attached an understanding emphasizing the continued independence of Hong Kong's judiciary
"Any attempt by the Government of Hong Kong or the Government of the People's Republic of China to curtail the jurisdiction and power of final adjudication of the Hong Kong courts may be considered grounds for withdrawal from the Agreement."
It's unlikely that Snowden could win a political persecution argument. Regardless of whether his actions are justified, they very clearly violated U.S. statute - he is not being arbitrarily singled out. A more potentially persuasive case for refusal might be made in light of Bradley Manning's treatment in pre-trial detention. Article 7 permits the refusal of extradition "when such surrender is likely to entail exceptionally serious consequences related to age or health." However, concerns over treatment are typically resolved by bilateral legal assurances that the extradited person will not be mistreated. Indeed, U.S. authorities have strong incentives to not mistreat Snowden if he is extradited as such actions would likely jeopardize future legal cooperation with Hong Kong.

This is not to say that extradition is a sure thing, but the challenges facing Snowden's extradition are currently more legal than political. Pretty much all previous extradition proceedings between the U.S. and Hong Kong have concerned clear-cut criminal offenses - violent and white-collar crimes in particular. Hong Kong has consistently accepted U.S. requests for extradition for these cases. But the leaking of classified information might fall under the category of "political offenses" for which extradition is prohibited. Extradition treaties have, for centuries contained provisions that refuse extradition for "offenses of a political character." The exception emerged in treaties during the 1800s as a way of limiting the ability of states to pursue dissenters and political opponents. However, interpretation of what constitutes a "political offense" has always been unclear and open to interpretation. Fearing that a vague interpretation of "political offense" would unduly burden states, most treaties since then have included provisions delineating offenses that cannot be considered "political." Compared to most modern treaties, the U.S.-Hong Kong treaty has relatively few political offense exceptions: murder or other crimes committed against a head of state are exempt as are offenses criminalized by a multilateral international agreement. This leaves a lot of grey area.

Most treaties signed in the last half-century do not explicitly enumerate offenses for which extradition is granted, typically defining an extraditable offense as anything criminalized under the laws of both parties. However, the Hong Kong treaty has both a list and a provision for extradition for "dual criminality." A request for extradition under the Espionage Act would likely fall under the scope of extraditable offenses since Hong Kong's Official Secrets Ordinance has similar provisions criminalizing the release of classified information, but could potentially be ruled a political offense. Law professor Julian Ku suggests that the U.S. might choose to pursue an alternative route and seek extradition under an offense explicitly enumerated in the treaty.
The Snowden leaks have now been referred to the Justice Department, and U.S. prosecutors have several options available to them. According to Ku, prosecutors may avoid charging Snowden under the Espionage Act -- which could be considered a political prosecution by courts in Hong Kong -- and indict him under a different statute. 
Among the crimes listed on the U.S.-Hong Kong agreement as within the bounds of extradition, one offense in particular stands out: "the unlawful use of computers."
Requesting extradition for an explicitly enumerated offense might help support an argument that the offense is not a political one. The patchwork of U.S. classification law also appears to have provisions relating to the "unlawful use of computers" - the Computer Fraud and Abuse Act.  According to a CRS report,
18 U.S.C. Section 1030(a)(1) punishes the willful retention, communication, or transmission, etc., of classified information retrieved by means of knowingly accessing a computer without (or in excess of) authorization, with reason to believe that such information “could be used to the injury of the United States, or to the advantage of any foreign nation.”...The provision imposes a fine or imprisonment for not more than 10 years, or both, in the case of a first offense or attempted violation. Repeat offenses or attempts can incur a prison sentence of up to 20 years.
Moreover, the sentences under the Computer Fraud and Abuse Act are comparable to those in the relevant Espionage Act provisions. Assuming U.S. prosecutors are strategic, I would expect the forthcoming request  to be for offenses under the CFAA and not the Espionage Act.

The base rate for extradition approval is high so the easiest bet is that Snowden will likely be extradited (assuming he does not successfully flee Hong Kong as well). But this case is markedly different from previous ones. There is not much "data" for extradition when the offense involves the leaking of classified information. It has certainly occurred in other contexts, but is entirely new ground for the U.S.-Hong Kong legal cooperation relationship (I'd love it if anyone could point me to more examples). Snowden may have some basis for challenging a request and extradition proceedings are likely to drag on for some time. Indeed, it's not entirely impossible for Hong Kong to deny extradition, though it would generate significant political friction with the U.S. The legal deck is stacked in the United States' favor, despite the novelty of this case. So be wary of pop-Realist foreign policy commentaries that claim it's all about China - Chinese influence in Hong Kong's affairs is neither infinite, nor cost-free.

*Sadly, I don't have a model for making a more precise claim/prediction here, though an interesting project might involve using GDELT to identify successful/failed extradition cases and model P(approval) using a combination of political and legal variables. Certainly more than a blog post can carry.

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