The Wall Street Journal on June 12, 2013 released the following:
“By Jacob Gershman
As the United States government ponders a strategy for securing the surrender of fugitive NSA leaker Edward Snowden, the government is bracing for a politically bumpy path toward extradition.
But if Hong Kong — where Mr. Snowden is believed to be holed up — were to put up a fight, what’s stopping the Obama administration from snatching him anyway and dragging him home?
The question was posed by Seth Lipsky, the ever-contrarian author of “The Citizen’s Constitution: An Annotated Guide” and founding editor of The New York Sun, where Law Blog used to work.
“The idea might seem to violate the rule of law,” says Mr. Lipsky, not to mention risk all sorts of political and diplomatic consequences. But that doesn’t mean courts would necessarily object to him standing trial for leaking classified data.
Supreme Court precedent, going back more than a century, suggests that the court wouldn’t “be overly particular as to how President Obama might bring Snowden in,” Mr. Lipsky writes in a New York Post column Wednesday.
The case often cited is an 1886 ruling, Ker v. Illinois. It was triggered by the abduction of Frederick Ker, a U.S. citizen accused of larceny who took refuge in Peru. A private messenger with a warrant requesting extradition was dispatched to Peru with instructions to follow protocol but apparently thought it easier to kidnap Ker instead. The court held:
- The treaties of extradition to which the United States are parties do not guarantee a fugitive from the justice of one of the countries an asylum in the other.
About a century later, the high court considered the case of Dr. Humberto Alvarez-Machain, a Mexican doctor accused of helping to kidnap and murder a DEA agent. The U.S. government arrested him after he was abducted in Mexico and flown to Texas.
A U.S. District Court dismissed the indictment against the doctor because it violated the extradition treaty between the United States and Mexico. But the Supreme Court reversed that ruling.
“While respondent may be correct that his abduction was ‘shocking’ and in violation of general international law principles, the decision whether he should be returned to Mexico, as a matter outside the Treaty, is a matter for the Executive Branch,” the court held. (A judge later dismissed the charges against Dr. Alvarez-Machain for lack of evidence.)
Says Mr. Lipsky: “Perhaps a raid isn’t the best way to go about getting Snowden into custody. But if it is, the Supreme Court is unlikely to object.””
Douglas McNabb – McNabb Associates, P.C.’s
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