Edward Snowden, the former government contractor who exposed the NSA's massive surveillance of U.S. cell networks and Internet activity last week, is currently hiding out in Hong Kong. As my colleague Jia Lynn Yang noted, that's kind of a weird choice.
Hong Kong has an extradition treaty with the United States signed by President Clinton in December 1996, right before sovereignty over the city transferred from the United Kingdom to China. And it's a pretty standard treaty, too. Hong Kong agrees to extradite individuals who have been indicted in the United States, with a "political offense exception" for cases in which the extraditing party believes the individual is being pursued for political reasons, or "on account of his race, religion, nationality or political opinion," or that he will be denied a fair trial if extradited.
That's pretty much the norm for extradition treaties, says Michele Martinez Campbell, a former federal prosecutor and a professor at Vermont Law School. Hong Kong, she says, is "one of the places you'd be fairly confident that extradition would proceed normally." Hong Kong could hold Snowden for 60 days pending a formal extradition request, which would have to establish both that he is actually the person under indictment as well as the evidence that he committed the crime in question. But if the United States does that, Hong Kong would likely send him back stateside.
Worse, he also has to secure asylum or some other kind of legal residency in Hong Kong if he's going to stay longterm. Just because a country refuses to extradite someone doesn't mean they have to grant their visa requests. Extradition "would be handled by the particular provisions of the treaty, and whether or not someone could apply for asylum would be governed by immigration laws separately," Martinez Campbell says. "They would proceed along separate tracks. He might be found extraditable even if he has a basis for political asylum."
That's not to say that Snowden couldn't attempt to use the political exemption, of course. There's also a provision in the treaty stating that the Chinese government can veto extradition requests if they relate to "defense, foreign affairs, or essential public interest or policy of the State whose government is responsible for the foreign affairs relating to Hong Kong." ("the State whose government…" being an awesome euphemism for the People's Republic of China)
If invoked by the Chinese leadership, that could block an extradition. There's some question as to whether that provision applies to people who aren't Hong Kong or Chinese nationals, but Christopher Blakesley, an extradition expert and law professor at the University of Nevada at Las Vegas, says that ultimately, the Chinese executive branch always has the power to overturn these kinds of decisions. "The reality is that the state executive branch always has a functional veto," he writes in an e-mail.
And let's not forget that to be extradited for a crime, Snowden must first be indicted, most likely by a federal grand jury, or have an arrest warrant and criminal complaint issued against him by the federal government. That hasn't happened yet to the best of our knowledge, and any investigation into whether he violated the Espionage Act or other federal laws governing the disclosure of classified information would be in the very early stages at this point. So he's likely safe in Hong Kong until the government obtains an indictment upon which an extradition request could be based. Update - this paragraph originally said he needs an indictment; an arrest warrant and complaint would work too. We regret the error.
Meantime, he might do well to go somewhere else, says Blakesley. Contrary to popular belief, Latin American countries like Brazil and Argentina aren't actually good candidates if you're not a Nazi in the 1950s. "People used to talk about Brazil, but they extradite all the time," Blakesley said.
If he were advising Snowden, Blakesley says he would tell him to go to Iceland (where Snowden has hinted he may be headed) or to France. Sweden, Finland, or another Nordic country would do in a pinch; Iceland, Sweden, Finland, Denmark and Norway all adhere to a similar extradition model, and are, according to Blakesley, "very independent and strong in protecting folks in situations such as this."
"Go to Iceland, go to France, which we have a treaty with, but who have refused a lot of sensitive extraditions even from us," he says. "Finland is very strict and very good on protecting the rights of the defendant as well as maintaining the legal relationship through a treaty."
It may be a while before the feds actually have a warrant to arrest Snowden, so if he likes Hong Kong he may be able to stay. But if he wants to cool his heels in a place that he has a better shot of not being kicked out of, Scandinavia or France is probably a better bet.