Where the U.S.—and Snowden—Could Go From Here

By Olga Khazan
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Television screens show former U.S. spy agency contractor Edward Snowden during a news bulletin at an electronics store in Moscow on June 25, 2013.(Reuters)

Russian president Vladimir Putin has said Russia won't extradite Edward Snowden, saying the NSA leaker hasn't committed a crime on Russian soil and calling U.S. criticism of the country's actions "ravings and rubbish." Meanwhile, Snowden is hanging out in the legal limbo that is the transit zone of Moscow's Sheremetyevo airport, which Putin said doesn't count as Russia.

Snowden's next move will be risky no matter what, but he could find a way to evade the clutches of U.S. authorities for years. The U.S. has extradition agreements with 107 different countries, but at this point the Snowden case is mostly political, not legal, says Douglas McNabb, an international criminal lawyer and expert on extraditions. For example, Hong Kong does have an extradition treaty with the U.S., but the territory claimed that the U.S. warrant wasn't valid and let Snowden slip off to Russia, thereby both washing their hands of the situation and preserving their U.S. relationship.

Earlier this week, Snowden was reported to be en route to Ecuador, which is already sheltering WikiLeaks founder Julian Assange in its London embassy and could be willing to take on Snowden, as well. WikiLeaks has also prepared refugee documents for Snowden, which, if accepted for travel by the Moscow authorities, could serve in lieu of his passport, which the U.S. has already revoked.

Extradition and asylum is supposed to be dictated by an established set of treaties and conventions, but in reality, obscure exemptions and political maneuvers can keep fugitives abroad for years. U.S. chess champion Bobby Fischer eluded U.S. authorities for decades and was briefly detained in Japan before being granted asylum in Iceland, where he lived out the rest of his life. France has also refused to hand over Roman Polanski, who faces rape charges, because it doesn't extradite its own citizens, or Seattle-ites Michael and Linda Mastro, who face money laundering charges, because of health concerns.

There are still a few options the U.S. still has to catch Snowden, though:

1) There are no direct flights from Moscow to Quito, Ecuador, but some have pointed out that the Havana flight Snowden originally planned to take would actually graze U.S. airspace. If he tries that route, McNabb says the U.S. could ground the flight and arrest Snowden -- he's wanted on two charges of espionage and one of theft.

2) Ecuador does have an extradition treaty with the U.S. -- it went into force in 1872 -- but espionage is not on that treaty's list of extradition-worthy crimes. Ecuador could easily point to that or another exemption to avoid sending Snowden home. But alas, 45 percent of Ecuador's exports go to the U.S., so Congress could conceivably threaten trade sanctions on the Latin American nation until they agree to give up Snowden.

3) There's also a law that allows the U.S. to abduct fugitives abroad, an option the DEA and other agencies have exercised in the past, occasionally for drug criminals. Attempting such a feat in Russia would be tricky, though, because of the brittle relationship between the two countries.

If they weren't careful, "the FBI agent could be arrested by the Russians instead," McNabb said, joking that because of the high stakes, "[The kidnapping option] would really be a job for the Navy Seals or something."

4) Finally, if Snowden lands not in Ecuador or Venezuela but some country that is slightly friendlier to America, the U.S. could seek his extradition even if Snowden obtained some protected status. McNabb said he once had a client who was charged for a crime in the U.S., fled to Costa Rica, and secured Costa Rican citizenship. After continued pressure from American authorities, though, Costa Rica combed back over his citizenship application, found an error, revoked his citizenship and promptly deported him.

"These states can really do anything they want to do," McNabb said. "It's just that China and Russia really like tweaking the U.S. for various reasons."

Snowden also has options, though they're a bit more limited and riskier:

1) Snowden could claim that his offenses aren't criminal -- they're "political," a vague term that essentially means he's avoiding the U.S. for fear of persecution for his dissenting views. If he does manage to get to Ecuador, the country's extradition treaty doesn't allow deportation for political reasons, which gives Snowden a possible out. Ecuador is also a party to the 1951 Refugee Convention, which defines a refugee as someone who is fleeing, among other reasons, for their "political opinions." The Convention could therefore prevent his deportation on those grounds, says Andrew Kent, an associate professor at Fordham Law School.

2) He could also pull an Assange and try to walk into what he believes to be a friendly embassy in Moscow, like Ecuador or Iceland -- another country that has a history of standing up for whistleblowers. But then he'd basically be in house arrest for an indefinite period of time: Assange, for example, sleeps on an air mattress in a tiny back office in the Ecuadorian embassy, gets practically no sunlight, and occasionally dances for exercise. Not exactly a glamorous life for Snowden, but at least he'd have access to his treasured computer.

This article available online at:

http://www.theatlantic.com/international/archive/2013/06/where-the-us-and-snowden-could-go-from-here/277214/