International Law

In 'high-stakes gamble' against extradition, surveillance whistleblower is in Hong Kong

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Former CIA employee Edward Snowden revealed in a Guardian video interview from Hong Kong over the weekend that he is the leaker who exposed the data collection program by the National Security Agency. Can he avoid extradition?

According to the Guardian, it’s a “high-stakes gamble” for the 29-year-old man. Snowden told the Guardian he traveled to Hong Kong because its people have “a spirited commitment to free speech and the right of political dissent.” From that country, he is seeking asylum elsewhere, possibly Iceland. The New York Times and the Washington Post also have stories.

The United States extradition treaty with Kong Kong, signed before Hong Kong reverted to Chinese sovereignty in 1997, has an exception for political offenses, according to the Guardian and Politico. China gave its consent for Hong Kong to sign the treaty, and reserved a veto on extradition if China believed it would harm its own public interest.

It’s not clear whether Hong Kong or China would decide Snowden’s status, Politico says. Even if Hong Kong doesn’t extradite Snowden, it could decide to expel him. Or Snowden could seek safety in another nation’s Hong Kong consulate; Julian Assange of WikiLeaks took that route when he sought to avoid extradition on sexual assault charges by staying in Ecuador’s embassy in London.

Another possibility, says Southern Methodist University law professor Anthony Colangelo, is for the United States to send agents to capture Snowden and bring him back to the United States, a process allowed in the 2004 Supreme Court case Sosa v. Alvarez-Machain. That option could have political consequences, however, Colangelo noted in a Politco interview.

Two charges against Snowden are most likely, according to law professor Kathleen Clark of Washington University in St. Louis. He could be charged with transmitting information to an unauthorized person or illegal retention of national security information, she told Politico. A third possibility is theft of government property. All carry a maximum 10-year sentence.

In any event, Snowden’s sentence isn’t likely to be as harsh as the possible penalty for Bradley Manning, who released vast amounts of military information to WikiLeaks. He’s being tried in a court-martial and could face life in prison. And Snowden can’t be prosecuted under espionage laws, because he didn’t sell his information or give it to a foreign government, Politico says.

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