The NSA Leaker’s Dumb Choice of Refuge: Hong Kong

by Julian Ku

There has been a rightful flurry of media interest in the saga of Edward Snowden, the U.S. government contractor who is the apparent source of the leaks about the U.S. National Security Program’s data mining surveillance program.  One area of focus is Snowden’s decision to take refuge in Hong Kong from a possible prosecution by the U.S. government.

As I noted here in my comments to this Foreign Policy post, this is an odd, borderline dumb, choice of refuge.  As everyone now realizes, the U.S. has a special extradition agreement with Hong Kong, although it does not have one in China.  This agreement looks pretty similar to other U.S. extradition agreements, and it has been something that the U.S. government and the HK governments valued so highly that they executed it in 1997, after HK’s return to Chinese sovereignty, to ensure continued cooperation in these sorts of matters.

If Snowden was really afraid of extradition, he should have gone to a place like Ecuador, which has shown it does not mind angering the U.S.  Or he could have wandered across the border into China, which doesn’t have an extradition treaty.  But in choosing Hong Kong, he exposes himself to a real possibility of an extradition proceeding without any guarantee of his prevailing.  And he launches a zillion conspiracy theories about his real intentions: is he secretly planning to turn himself into the Chinese government?

What he will get, I suppose, is the maximum level of publicity he could desire and a level of celebrity Julian Assange will be envious of.  Which is probably what he wants.

http://opiniojuris.org/2013/06/10/the-nsa-leakers-dumb-choice-of-refuge-hong-kong/

8 Responses

  1. I agree that Hong King is a rather strange destination for Snowden to flee to, considering the significant number of States with unfavorable (to say the least) relations with th US (though perhaps he does not seek to identify himself with such States). However, perhaps Snowden could argue that his actions should be considered a political crime, thereby precluding his extradition under customary international law?

  2. John, i don’t think “borderline dumb” is an adequate characterization of someone who heroically put his believes in a free, non-authoritarian, non-orwellian society as stipulated by the American constitution above any regards for his social, economic and physical well-being.
    That being said and concerning your legal assessment: Don’t judge the book by its cover (the book being the U.S.-Hong Kong Extradition Agreement)!
    It might not be feasable to extradite him on basis of the Hong Kong Agreement – at least not in relation to the relevant charge under the Espionage Act, that is “Disclosure of classified information” – 18 U.S.C. § 798(a)(3).
    First of all, offenses under the Espionage Act do likely not constitute applicable offenses in terms of the Hong Kong Agreement:
    Article 2 requires that the offence “is according to the laws of both Parties punishable by imprisonment or other form of detention“. But disclosure of US government state secrets is not a crime punishable by Hong Kong law.
    Furthermore, other offenses he might be charged with by DOJ are probably to be deemed political, as he leaked the classified information in order to make aware the American people and allow for a public dialogue about large-scale surveillance activities against US-citizens.
    Article 6 of the Hong Kong Agreement explicitly excepts political offenses from the obligation to surrender.
    If the Hong Kong government decides that they’d rather not let him stay for sake of binational relations with the US, they will rather deny him permit of residence and let him travel on to a destination of choice (as required by international law).

  3. “But disclosure of US government state secrets is not a crime punishable by Hong Kong law”
     
    the test will be whether Hong Kong similarly criminalizes disclosure of its own classified info, *not* whether it criminalizes disclosure of US info.

  4. @jpe
     

    Your argument is neither supported by the wording of the treaty nor by customary law.
    There is no “readjustment of facts” when testing for double criminality.
     
    Double criminality requires that the particular conduct charged with is criminal in both jurisdictions. This focus on the alledged conduct rather than on the naming of a particular statute is customary law at least since the 1950ish “Eisler case”:
    The extradition of Eisler to the United States for perjury was refused by the British Governement on the grounds that the act constituting perjury under US law was not perjury in English law. Even though perjury (in general) was punishable in both states. 
     
    The test is, “whether the acts upon which the charges of the requesting country are based are also proscribed by a law of the requested nation” (US v. Levy 905 F.2d 326).
     
    Clearly, 18 U.S.C. § 798(a) is based on the act of disclosing US state secrets.
    Such act ist not punishable under Hong Kong espionage laws.
    Double-criminality requirement not met. 

  5. Re: Max L. 
    Actually, doesn’t that show the opposite? The Eisler case merely asserts that the acts in question didn’t qualify as perjury in Britain— but perjury as such was unlawful, and if the acts had qualified then extradition would have been granted.
     
    Following this, if disclosure of government secrets is illegal in Hong Kong, then it would qualify. It wouldn’t require a law specifically outlawing disclosing US government secrets.

  6. The contemplated charges can be categorized as “pure” political offenses, mere “crimes against the state” (as opposed to “relative” political offenses) and, as such, there is no question that under customary international law (read into any treaty as an aid for interpretation) and the relevant extradition treaty, he would not be extraditable (and he should have standing to raise this defense).
    The “legal adviser” to CNN (Jeffrey T) demonstrated ignorance of relevant international law when claiming that if he is charged with a crime in the U.S. it can’t be a “political” offense!  Thank goodness for a blog like this!
    Hopefully NSA will “read” this and inform DOJ and State.
    Now the interesting question for tv or a movie would be: can he be targeted as a matter of “self-defense” if he is about to go over to the PRC or is captured by the PRC?  I suspect no, because there will be no “armed attack” involved — or will there if the “armed” (substitute what dictionaries do, weapon) “attack” is a continual “cyber-attack”?
    And if he is unlawfully “rendered” to the U.S., will he have a right to return? Sosa did not exactly rule on the transnational abduciton issue or the possible remedy.  Toscanino?

  7. Media report that he stole govt. property.  If he can be charged with a crime of theft of govt. property, although he did it for political purposes, the offense would shift from a “pure” p.o. to a “relative p.o., where the tests among U.S. circuits and states within the international community are different — split re: criteria.

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