NSA whistleblower Edward Snowden has several potential ways to avoid trial in America if and when the U.S. government files criminal charges against him, extradition experts and law enforcement officials told Sari Horwitz and Jia Lynn Yang of The Washington Post.
“There are a number of hurdles that the government will have to jump through before Snowden will ever end up in a U.S. courtroom,” Stephen I. Vladeck, an associate dean at American University’s Washington College of Law, told the Post.
Specifically, there are certain quirks to the extradition treaty between the U.S. and Hong Kong.
The U.S-Hong Kong treaty has an unusual exception in that Hong Kong authorities can refuse the extradition of a suspect “if they believe it should be denied from a defense or foreign policy perspective," international extradition lawyer Douglas McNabb told the Post.
“The dirty little secret about extradition law is it’s really about 90 percent politics and only 10 percent law,” Vladeck said.
The 1997 treaty also states that a suspect will not be surrendered to face criminal prosecution for an offense of an activist or “political character,” a term that lacks a clear legal interpretation in Hong Kong.
One thing going for the U.S. in that situation, Hong-Kong-based law expert Simon Young told CNN, is a 1996 UN-Hong treaty that includes a clause on "offenses involving the unlawful use of computers."
Snowden leaked the first concrete evidence of the NSA's domestic surveillance apparatus when he gave Guardian journalist Glenn Greenwald “thousands” of classified documents, “dozens” of which Greenwald says are newsworthy.
He will likely face charges under the Espionage Act and could also could be charged with theft and the conversion of property belonging to the U.S. government, experts told the Post. After filing a criminal complaint, U.S. officials could formally move to extradite Snowden for trial in America.
The 29-year-old ex-Booz Allen employee could apply for asylum in Hong Kong, Iceland, or another country.
It's unclear where Snowden, whose travel visa expires in mid-August, is located right now. On Monday he participated in a web chat with the public, and on Wednesday WikiLeaks Founder Julian Assange said his legal team had been in touch with Icelandic officials on Snowden’s behalf.
The Post notes that if he does apply for asylum, Snowden will enter a convoluted system in Hong Kong that is understaffed and has a backlog of asylum requests — some asylum seekers in Hong Kong have been there for years.
“I think Mr. Snowden is much wiser from a legal perspective than many people initially gave him credit for,” McNabb told the Post. “I think he’s thought about this for a long time.”
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