Legal, political maneuvering let Snowden flee

U.S. defense contractor Edward Snowden discusses his motivation behind the NSA leak and why he is revealing himself as the whistleblower behind the major story. Courtesy of Laura Poitras and Glenn Greenwald. (Courtesy of Laura Poitras and Glenn Greenwald)

The authorities in Hong Kong made a political decision to wash their hands of National Security Agency leaker Edward Snowden and used quibbles about U.S. legal documents as cover to allow him to fly to Moscow despite a direct plea from Attorney General Eric H. Holder Jr. to make an arrest, U.S. officials said.

Snowden’s ability to board an Aeroflot flight Sunday to Moscow, despite the revocation of his passport and the warrant for his arrest, was one more move in a series of artful legal and diplomatic maneuvers that have involved China, the Kremlin, WikiLeaks and the Ecuadoran government and kept the 30-year-old outside the grasp of the normally long arm of U.S. justice.

The Obama administration and politicians on Capitol Hill are likely to be infuriated if Snowden makes it to Ecuador, where he has requested asylum. But the former contractor who had worked at an NSA facility in Hawaii until he fled to Hong Kong skillfully placed his fate in the hands of WikiLeaks and countries that nurse animosities toward the United States. And Snowden’s odyssey is likely to exacerbate the United States’ strained relations with China and Russia.

“It is unfortunate that Hong Kong inappropriately failed to take action on our requests of them and permitted a fugitive to simply leave their country in an obvious attempt to escape justice,” a senior administration official said Sunday evening. In a statement earlier Sunday, the Hong Kong government said it had been provided “no legal basis to restrict Mr. Snowden from leaving.”

It is unclear what options the United States has to persuade other countries on Snowden’s itinerary to cooperate.

Hong Kong gets request

The United States filed a criminal complaint against Snowden in federal court on June 14, charging him with theft and offenses under the Espionage Act for taking documents about top-secret U.S. surveillance programs that he turned over to The Washington Post and the Guardian. The next day, the United States requested Snowden’s detention in Hong Kong on a provisional arrest warrant. The United States issued its own arrest warrant when the complaint was filed in the Eastern District of Virginia.

On June 17, Hong Kong acknowledged receipt of the request, but officials in the Chinese territory did not respond to U.S. inquiries about whether they needed further information, according to a U.S. official who provided a timeline of events on the condition of anonymity. Officials in Hong Kong told the United States that the case was under review.

Two days later, Holder placed a phone call to his counterpart, Hong Kong Secretary for Justice Rimsky Yuen, and stressed the importance of the matter. He urged Hong Kong “to honor our request for Snowden’s arrest,” the U.S. official said.

On Friday, Hong Kong authorities requested more information about the charges, and the United States was in the process of responding when the Justice Department learned that Snowden had left, the U.S. official said.

“At no point, in all of our discussions through Friday, did the authorities in Hong Kong raise any issues regarding the sufficiency of the U.S.’s provisional arrest request,” the official said. “In light of this, we find their decision to be particularly troubling.”

The threshold for obtaining a provisional warrant is “very low,” according to Simon Young, a law professor at the University of Hong Kong. There are only two requirements: that the person is in Hong Kong and that the person is wanted for prosecution in the United States.

“It’s a shocker,” Young said in an e-mail.

"I think it's a very big surprise," said Sen. Dianne Feinstein (D-Cal.) on the news that NSA leaker Edward Snowden fled Hong Kong and arrived in Moscow on Sunday. "I had actually thought that China would see this as an opportunity to improve relations and extradite him to the United States."

Steve Vladeck, a professor at the American University Washington College of Law, said extradition decisions are almost entirely political and diplomatic calculations, not strictly legal matters.

“The Hong Kong authorities used the murkiness of extradition law to make what was a political decision,” he said.

U.S. revokes passport

On Saturday, Obama’s national security adviser, Thomas E. Donilon, in an unusual public intervention in an extradition case, said, “We expect them to comply.” And a senior administration official, speaking on the condition of anonymity later that day, warned in unusually direct language that “if Hong Kong doesn’t act soon, it will complicate our bilateral relations and raise questions about Hong Kong’s commitment to the rule of law.”

Also Saturday, in an effort to prevent Snowden from fleeing, the United States revoked his passport. It is unclear whether the authorities in Hong Kong knew that he no longer had valid travel papers.

Sen. Dianne Feinstein (D-Calif.), chairman of the Senate Intelligence Committee, said Sunday that she believes mainland China “clearly had a role” in allowing Snowden to leave Hong Kong, wasting what she called an opportunity to “improve relations” with the United States.

“I don’t think this was just Hong Kong without Chinese acquiescence,” Feinstein said on CBS’s “Face the Nation.”

In a series of statements over the previous week, a spokesman for President Vladi­mir Putin has been coy about how Moscow would react if Snowden attempted to come to Russia. Aeroflot is 51 percent owned by the Russian government, and it seems unlikely that Snowden would have been allowed to board the national carrier’s flight without the approval of Moscow. The British government had warned airlines not to allow Snowden to board any flight heading to the United Kingdom.

Among the information leaked by Snowden was the allegation that an NSA facility in Britain eavesdropped on Russia’s then-president, Dmitry Medvedev, during a Group of 20 summit in London in 2009.

The Kremlin also may have been motivated to help Snowden because of its anger over the use of international sting operations to detain and extradite Russian citizens, including arms dealer Viktor Bout from Thailand. Bout, who reputedly had close ties to some in the Russian security establishment, was convicted on terrorism charges in New York. He was sentenced to 25 years in prison last year for planning to sell arms to the Revolutionary Armed Forces of Colombia, or FARC.

On his flight from Hong Kong, Snowden was accompanied by representatives of the anti-
secrecy group WikiLeaks, which has published vast quantities of secret U.S. government documents. Its founder, Julian Assange, is the subject of a criminal investigation in the United States, and he has taken shelter in the Ecuadoran Embassy in London to avoid extradition to Sweden for questioning over sexual-assault allegations. Assange and his attorneys have argued that Sweden will turn him over to the United States.

While in the embassy, where he has been for a year, Assange had his own interview show on Russia Today, the Kremlin-funded international broadcaster. And among his guests was Ecuadoran President Rafael Correa, who has given asylum to Assange.

Flight to Cuba on Monday?

The Interfax news agency, quoting a Russian law enforcement source, said Snowden could continue on his journey from Moscow despite the revocation of his U.S. passport if the country where he was seeking asylum provided him with travel documents. Those documents could include affirmation of refugee status, Interfax reported, or even a passport from the destination country.

Kremlin officials also noted that Snowden has not technically entered Russia and remains in the transit area, where he was reported to have met with Ecuadoran diplomats.

“Everything has been done to allow Snowden to spend the night peacefully at the airport’s capsule hotel and to fly quietly to Cuba,” an unnamed official told Interfax.

It is possible that he could go to Cuba on Monday via a regularly scheduled Aeroflot flight and continue from there to Ecuador.

The flight to Cuba from Moscow would normally transit U.S. airspace as well as the airspace of several close U.S. allies, including Norway and Canada. If it follows its normal course, the United States could compel it to land. But if the plane uses a different flight plan — north toward the Arctic and then south over the middle of the Atlantic Ocean — the Russian authorities will have directly participated in Snowden’s escape.

Yang reported from Hong Kong. Ernesto Londoño in Kabul, Liu Liu in Beijing and Sean Sullivan in Washington contributed to this report.

Sari Horwitz covers the Justice Department and criminal justice issues nationwide for The Washington Post, where she has been a reporter for 30 years. Follow her @SariHorwitz.
Jia Lynn Yang is a staff writer at The Washington Post who covers policy and business. Before joining the Post, she worked at Fortune magazine.
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