The PJ Tatler

Snowden Charged with Espionage

Edward Snowden, the man responsible for leaking top-secret details of NSA surveillance programs, has been charged with espionage and theft of government property, according to an indictment unsealed by the Justice Department yesterday.

The Washington Post reports:

There was never any doubt that the Justice Department would seek to prosecute Snowden for one of the most significant national security leaks in the country’s history. The Obama administration has shown a particular propensity to go after leakers and has launched more investigations than any previous administration. This White House is responsible for bringing six of the nine total indictments ever brought under the 1917 Espionage Act. Snowden will be the seventh individual when he is formally indicted.

Justice Department officials had already said that a criminal investigation of Snowden was underway and was being run out of the FBI’s Washington field office in conjunction with lawyers from the department’s National Security Division.

By filing a criminal complaint, prosecutors have a legal basis to make the detention request of the authorities in Hong Kong. Prosecutors now have 60 days to file an indictment, probably under seal, and can then move to have Snowden extradited from Hong Kong for trial in the United States.

Snowden, however, can fight the extradition effort in the courts in Hong Kong. Any battle is likely to reach Hong Kong’s highest court and could last many months, lawyers in the United States and Hong Kong said.

The United States has an extradition treaty with Hong Kong, and U.S. officials said cooperation with the Chinese territory, which enjoys some autonomy from Beijing, has been good in previous cases.

The treaty, however, has an exception for political offenses, and espionage has traditionally been treated as a political offense. Snowden’s defense team in Hong Kong is likely to invoke part of the extradition treaty with the United States, which states that suspects will not be turned over to face criminal trial for offenses of a “political character.”

Typically in such cases, Hong Kong’s chief executive must first decide whether to issue a warrant for the accused’s arrest. But the extradition treaty also says that in exceptional cases a provisional warrant can be issued by a Hong Kong judge without the chief executive’s approval. The judge must give the chief executive notice, however, that he has issued the warrant.

Sounds like the legal maneuvering is well underway. Snowden’s act can easily be seen as “political,” but it’s unclear if he can make a successful legal argument that it is. And there is a political element to the extradition itself. Failing to send Snowden back is going to make the U.S. government very unhappy. Will the possibility of U.S. retaliation against China or Hong Kong play a role in the judge’s decision?

Snowden may escape Hong Kong and try for another country where he may seek asylum. Iceland has been mentioned as a possibility, but that tiny country is a member of NATO. The government of Iceland may not wish to suffer retaliation from the U.S. for allowing Snowden to claim political persecution.

If Snowden decides to return on his own, or is extradited from wherever he ends up, he better get himself a crackerjack lawyer. Unless his attorney can get the Guardian and WaPo articles excluded as evidence, the U.S. government has him dead to rights and he will probably spend the rest of his life in jail.

But Snowden’s flight to Hong Kong would seem to indicate he has no intention of returning. At this point, he is probably relying on a network of whistle blowers and anti-American activists to stay hidden. Perhaps even a friendly government is assisting him. Eventually, he is going to have to surface — if only to emerge in another country where he is guaranteed asylum. That’s a very short list of possibilities given the reach of the U.S. government and Snowden’s own statements regarding how comfortable he would be in a country with broad privacy and free-speech protections.

The only way that Snowden will stay out of jail for the rest of his life is if he doesn’t set foot on American soil again.