How Edward Snowden could sidestep extradition

How Edward Snowden could sidestep extradition | Special for CyberTruth

(Editor's note: In this guest essay, former federal prosecutor Jacques Semmelman, now a partner at Curtis, Mallet-Prevost, Colt & Mosle, outlines the intricacies of extraditing whistleblower Edward Snowden.)

The case of Edward Snowden, the admitted NSA leaker, creates a dilemma for the U.S. government. Ordinarily, a person who commits a crime in the U.S. is formally charged with the crime or crimes committed. If the accused has fled the country, those charges form the basis of a request for extradition to the U.S. to stand trial. Snowden has yet to be formally charged. What makes Snowden's case unusual is that charges involving unauthorized disclosure of classified information could trigger the "political offense exception" to extradition. And therein lies the rub.

The political offense exception is found in most international extradition treaties. It is based on a concept, developed in the nineteenth century and still applied today, that political offenders – a term that lacks a universal definition – should be shielded from extradition. The extradition treaty between the U.S. and Hong Kong (where Snowden is believed to be) contains such an exception. This concept is distinct from that of asylum based on fear of persecution or mistreatment.

The political offense exception applies without regard to the fairness of the requesting country's judicial system or its anticipated treatment of the accused. U.S. courts have stated that treason, sedition, and espionage are political offenses shielded from extradition. Snowden's unlawful disclosure of classified information might therefore be deemed a political offense. While Hong Kong is not obligated to define "political offense" the way the U.S. defines it, Snowden has an argument that the U.S. should be held to its own standards.

Thus, in its charging decision, the U.S. faces a conundrum: on the one hand, the U.S. wants to charge Snowden with the crimes he has committed by disclosing classified information; on the other hand, the U.S. wants to sidestep the political offense exception.

Undoubtedly, U.S. prosecutors have been trying to find a way to charge Snowden without triggering the exception. One idea in circulation is to charge theft of government property. But arguably, there is a difference between stealing a government vehicle and leaking classified information, even if the latter involves copying files from government computers onto a thumb drive. The Hong Kong courts could recognize such a distinction in analyzing the political offense issue.

It remains to be seen how U.S. prosecutors address this challenge, and whether their charging strategy proves effective. The upcoming weeks and months should be interesting.