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How Edward Snowden Can Fight Extradition

Where do you go after you uncover your country's secret spy program?
Compromised Hong Kong. Photo by David Leo Veksler.

Where can a whistleblower find a safe port in a gathering legal storm? For Edward Snowden, the man who leaked details about NSA's PRISM program, finding a friendly country won't be easy. But oddly enough, the worse the penalty he faces in America, the more options that will likely open up across Europe. That's just one of the weird quirks trying to find a foreign government who won’t turn you over to your own.

Snowden has already given up on the green grass of home, telling the Guardian, “I do not expect to see home again, even though that’s what I want.” But some politicians, claiming that Snowden’s actions have endangered America, are calling for Snowden to return to the United States for punishment whether he wants to or not.

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New York Republican Peter King, chairman of the House homeland security subcommittee, said in a written statement, "If Edward Snowden did in fact leak the NSA data as he claims, the United States government must prosecute him to the fullest extent of the law and begin extradition proceedings at the earliest date."

Extradition is where one country turns a suspected or convicted criminal over to another country, typically the one who wants to convict or punish said criminal. Friendly countries have treaties with each other to track down and turn over each other’s criminals upon request. Most treaties have a lot of exceptions built into them; several states won’t hand over their own citizens, for example.

The United States, a popular but by no means universally-loved country, has extradition treaties with most other countries. If Snowden is looking for a place without one, he’s left choosing from states with pretty clear downsides for someone known for their ability to leak secrets about US intelligence: North Korea, Bahrain, Namibia, the United Arab Emirates, and the People’s Republic of China—excluding Hong Kong, that is.

Snowden told the Guardian he chose to hold up in Hong Kong because “they have a spirited commitment to free speech and the right of political dissent." However, as The New York Times pointed out, they also have their own extradition treaty with the United States that dates back to 1996, when the semi-autonomous city was still a British colony.

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Hong Kong’s reputation as a bastion for free speech comes from its history as a place for Chinese dissidents to seek refuge from their government. When it comes to foreigners hiding in Hong Kong, the Times reports, “the Hong Kong authorities have worked closely with law enforcement agencies in the United States for years and have usually accepted requests for extradition under longstanding bilateral agreements.”

As Nicholas Bequelin of Human Rights Watch told the Times, “His explanation of his choice of Hong Kong was a little off.”

As the South China Morning Post reports "Hong Kong does not grant asylum itself, but allows those seeking it to stay indefinitely until they are able to find a country willing to host them." However, in the same article, Vision First's Cosmo Beatson said he didn't think Snowden would go that route.

"He'll have to surrender his passport, and he'd have to stay in Hong Kong until his claim is settled. I don't see him wanting to give that up if he's being chased," said Beatson.

So Snowden is right to be looking elsewhere. One obvious choice is dashing off to the nearby Chinese mainland, which is far from ideal. Despite a lack of extradition treaty, the Chinese government isn’t likely to harm their relationship with Washington—just strengthened over a big guys weekend between Obama and Xi Jinping—by granting Snowden asylum. And while Snowden has said he was motivated by patriotism to leak the information he leaked, shacking up with a foreign power that the US has accused of digital snooping looks pretty bad. Like treason bad.

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So due to some legal peculiarities, Hong Kong is a better option than the mainland. If Snowden applies for political asylum in Hong Kong, even if he doesn’t get it, he can likely buy some time as his application is reviewed under a legal system that has been in revision since March. Most legal experts seem to believe that such a move is only delaying the inevitable and that eventually Hong Kong or China will turn him over once they're asked.

So Snowden is already looking into refuge elsewhere, specifically in Iceland, which, he said, “stood up for people over internet freedom.”

The Icelandic alternative. Photo by poptech

A member of Icelandic parliament said, “We are already working on detailing the legal protocols required to apply for asylum, and will be seeking a meeting with the newly appointed interior minister of Iceland, […] to discuss whether an asylum request can be processed in a swift manner, should such an application be made.”

Of course, Iceland also has an extradition treaty with the US, which dates back to 1906. However, like almost every European country (except for Belarus), Iceland won’t turn over someone who they believe will be tortured or put to death.

Whether or not Snowden is up for Guantanamo or the death penalty depends on the laws Snowden is charged with breaking, when he is charged. If Snowden is charged under the Espionage Act, he might. It’s too early to tell if that’s a likely outcome, but the haunting specter of the death penalty actually opens up hitherto closed countries as options for Snowden to seek asylum.

If America wants Snowden back, they’ll have to stop short of charging him under the Espionage Act, as they’re trying to do to fellow-whistleblower Bradley Manning, and as they’d like to do to Julian Assange, lest Iceland or another European state have a reason not to send him back.

Of course all of this depends on the US government following the rules, and so-called “extraordinary rendition” is another tool in the War on Terror toolbox, where the CIA just goes and takes whoever they want. They haven’t done this to Assange, which either means that they’re only using it in immediate and extreme circumstances or just that a high enough profile will keep you safe.

Snowden has achieved a high profile, at least. Government officials are publicly pissed at him right now, but it’s not yet clear what legal repercussions he’s going to face. Getting out of the U.S. before the documents leaked was prudent. Now prudence dictates that Snowden leave Hong Kong.

From the beginning, he's seemed aware that a life on the lam would follow the document leak. Snowden, today is the first day of the rest of that life.