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.
This article is from the archive of our partner The Wire.
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