Edward Snowden’s tricky path to justice
By: Reid J. Epstein and David Nather
June 10, 2013 05:07 AM EDT
The National Security Agency contractor who admitted to what officials have called one of the worst leaks in American history faces a complicated path to U.S. courts.
Edward Snowden, a 29-year-old Booz Allen Hamilton employee, said in a Guardian interview published Sunday that he is staying at a hotel in Hong Kong and hopes to win asylum in a country like Iceland.
While Snowden may be hoping for a life forever on the run, he’ll have to navigate a labyrinthine international legal system with little precedent for Americans accused of committing political crimes.
But for all the harm that government officials have warned of, legal experts expect that the charges he’d face would carry maximum penalties of 10 years apiece.
Snowden’s situation is different from that of Bradley Manning, the army private now on trial at Fort Meade, Md. Manning faces life imprisonment for the huge data dump he provided to WikiLeaks, but as a member of the military, he’s being tried via court-martial. And Snowden didn’t sell the secrets or give them to a foreign power, so he won’t be subject to the huge penalties of the espionage laws, as Robert Hanssen or Aldrich Ames were when they were caught spying.
The Justice Department can charge Snowden, indict him and leave the charge sitting out there — but to go beyond that, he would need to be brought back to U.S. soil.
Like many extradition treaties, the one between the United States and Hong Kong contains an exception for political crimes, a category Snowden’s admitted acts would almost certainly fall under. Even so, Hong Kong could decide simply to expel him without turning him over to American authorities.
And given Hong Kong’s reversion to Chinese sovereignty in 1997 — after the extradition treaty was entered into — it is not immediately clear which government would decide Snowden’s status. Coming immediately after the weekend summit between President Barack Obama and Chinese President Xi Jinping aimed at improving relations between the two countries, the questions are even more complicated: turning Snowden over, if the Americans seek that, could have major diplomatic consequences. Remanding him to the United States might serve as an act of good faith for the Chinese, but they would also likely have high demands for what they would want in return.
The United States does not have a separate extradition treaty with China.
“There has to be a political decision on the part of the extraditing country that that sort of act is in its political interest,” said Ryan Scoville, an expert in international law at Marquette University Law School.
If Snowden can get himself to a Hong Kong consulate of a nation that will welcome him, he could stay there indefinitely without being captured by U.S. or Chinese officials. Julian Assange of WikiLeaks has gone this route in London, staying in Ecuador’s embassy for nearly a year to avoid extradition to Sweden on sexual assault charges.
Scoville said it is unlikely that another country would shelter Snowden and bear the political costs of harboring such a high-profile American wanted by the U.S. government, but that possibility remains.
“If there were some sort of consulate in Hong Kong that was willing to grant him entry and shelter him from authorities that would want to cooperate, he could have the same sort of protection that Julian Assange has had over the last year or so,” Scoville said.
There’s some question about whether U.S. and international law would allow the U.S. to send agents to essentially kidnap Snowden wherever he is and bring him before American courts without the agreement of the country in which he is located.
The 2004 Supreme Court case Sosa v. Alvarez-Machain allowed a Mexican drug kingpin captured in Mexico to be tried in U.S. courts for the torture and murder of a Drug Enforcement Agency official.
“They can go get him and bring him back and it doesn’t matter how he gets before the court,” said Anthony Colangelo, an expert in extraterritorial jurisdiction at Southern Methodist University’s law school. “It doesn’t matter at all how you get somebody, if you get him back you can subject him to judicial process.”
Snowden acknowledged this possibility to The Guardian.
“Yes, I could be rendered by the CIA,” he told the paper. “I could have people come after me. Or any of the third-party partners.”
Politically, grabbing Snowden off the streets of Hong Kong is extremely difficult, particularly for such a high-profile target, Colangelo said.
It’s also not clear what kind of penalties Snowden could face. Director of National Intelligence James Clapper on Saturday called the leaks of classified electronic surveillance program “reckless,” but it remains unclear if Snowden’s case rises to the level of Manning’s.
Despite the image of the federal government locking Snowden away forever — treating him like another Manning — the most likely kinds of charges that could be filed in his case wouldn’t lead to lengthy jail time.
Kathleen Clark, a law professor at Washington University in St. Louis who works on national security issues, says national security leakers often face two kinds of charges under the Espionage Act: transmitting information to someone who’s not authorized to receive it, or, in lesser cases, illegal retention of national security information.
Each charge carries a maximum penalty of 10 years in jail.
The most likely outcome is some kind of Espionage Act charge as long as Snowden can be extradited, according to Aziz Huq of the University of Chicago Law School, who specializes in national security issues.
There’s also a separate civilian charge, theft of government property, that could be used depending on the specifics of the case, Clark said. That, too, carries a maximum penalty of 10 years in prison in most cases.
And even in other high-profile leak cases, the federal government hasn’t always used the harshest penalties.
Clark cited the case of Matthew Diaz, a former Navy lawyer who leaked a list of Guantánamo Bay prisoners to a civil rights lawyer in New York. He was dismissed from the Navy and disbarred, but got only six months of jail time.
It wasn’t as though Diaz got off easy — his life was basically ruined. But “they did not throw the book at him,” Clark said.
That case, however, wasn’t anywhere close to the scale of this leak — which exposed whole systems of antiterrorism intelligence, not just a list of prisoners.
And John Kiriakou, a former CIA analyst who pleaded guilty to disclosing classified information, was in January ordered to spend 30 months in prison. He began serving his sentence in February.