“Snowden extradition may be complicated process if criminal charges are filed”

June 20, 2013

The Washington Post on June 19, 2013 released the following:

“By Sari Horwitz and Jia Lynn Yang

If U.S. officials criminally charge Edward Snowden, they are likely to confront a complicated and lengthy process to bring the admitted leaker of top-secret documents back home to stand trial, according to extradition experts and law enforcement officials.

Although the United States has an extradition treaty with Hong Kong, where Snowden was last seen, the treaty offers an exception for political offenses. It also has a rare exception that would allow Snowden to stay in Hong Kong if the government there determines it to be in its best interest. He also could apply for asylum in Hong Kong, Iceland or another country. On Wednesday, the founder of WikiLeaks told reporters that his legal advisers had been in touch with Icelandic officials on Snowden’s behalf.

“There are a number of hurdles that the government will have to jump through before Snowden will ever end up in a U.S. courtroom,” said Stephen I. Vladeck, an associate dean at American University’s Washington College of Law who studies national security law.

In the end, the ability to bring the former National Security Agency contractor back to the United States will come down to legal maneuvering and creative diplomacy, Vladeck said.

“The dirty little secret about extradition law,” he said, “is it’s really about 90 percent politics and only 10 percent law.”

Snowden, 29, revealed himself June 9 as the anonymous source for articles in the British newspaper the Guardian and The Washington Post about the NSA surveillance of telephone calls and Internet communications. He was staying in an upscale hotel in Hong Kong, a city that he said he had chosen because he felt he might win asylum there.

But Snowden subsequently left the hotel, and it is unclear where he is. In an unusual live Web chat Monday, he said he sees no possibility of a fair trial in the United States and suggested that he would try to elude authorities as long as possible.

Justice Department officials have said that a criminal investigation is underway, led by agents from the FBI’s Washington field office and lawyers from the department’s national security division. Investigators are gathering forensic material to back up possible criminal charges, most likely under the Espionage Act, according to former Justice Department officials.

Snowden also could be charged with theft and the conversion of property belonging to the U.S. government, experts say. A thorny issue for U.S. authorities trying to build their case against Snowden involves how much to reveal about the highly classified material that he allegedly acquired, according to former Justice Department officials.

U.S. officials could file a criminal complaint and try to have Snowden detained in Hong Kong on a provisional arrest, extradition lawyers said. They would then have 60 days to file an indictment, possibly under seal, setting out probable cause. U.S. authorities could then formally move to extradite Snowden for trial in the United States — a move he could fight in the courts.

The United States has extradition treaties with about 120 countries, but that doesn’t necessarily make it easier to extract people accused of a crime from those countries. For example, of 130 extradition requests to Britain since 2004, only 77 people were extradited to the United States.

To fight extradition, Snowden could invoke Article 6 of the 1997 pact between the United States and Hong Kong, which states that a suspect will not be surrendered to face criminal prosecution for an offense of a “political character.”

That’s a standard and historic exception in treaties between governments but one that lacks a standard definition or clear legal interpretation. In the United States, as well as in other states, what constitutes a political act has narrowed. How the Hong Kong courts would view such an assertion is unclear. If Snowden argues that he is an activist, said Simon N.M. Young, director for the Center of Comparative and Public Law at the University of Hong Kong, “this will be one of our first cases.”

Hong Kong also has an additional and unusual exception in its treaty that could provide a defense for Snowden, according to Douglas McNabb, a lawyer who specializes in international extradition cases. Hong Kong authorities can refuse the extradition of a suspect “if they believe it should be denied from a defense or foreign policy perspective,” McNabb said. “I have not seen that in any other treaty.” Public sentiment in support of Snowden has built in Hong Kong, and hundreds rallied in the streets Saturday.

Should a Hong Kong judge rule against Snowden, he could continue to appeal, all the way up to Hong Kong’s highest court, dragging the process out over many months. Bail is unlikely to be offered, so Snowden could be in jail at that point, possibly at the Lai Chi Kok maximum-
security facility in Kowloon, where conditions are harsh. “That will be added pressure on him for how long he wants to fight it out here,” Young said.

Aside from the courts, Snowden could plead for asylum, the route taken by WikiLeaks founder Julian Assange, who has been holed up for a year in the Ecuadoran Embassy in London.

Snowden, in an interview with the Guardian, floated the idea of asylum in Iceland, which has historically provided a haven for whistleblowers and never granted a U.S. extradition request.

Johannes Skulason, an Icelandic government official, told the Associated Press on Wednesday that WikiLeaks spokesman Kristinn Hrafnsson had held informal talks with assistants at the Interior Ministry and the prime minister’s office.

Skulason said Hrafnsson “presented his case that he was in contact with Snowden and wanted to see what the legal framework was like.”

But the United States could try to prevent Snowden from traveling by asking the International Criminal Police Organization, or Interpol, to put out a “red notice,” which is a bulletin for international fugitives and which alerts about 190 countries that there is an outstanding warrant for Snowden’s arrest.

Snowden could also apply for asylum in another country’s embassy in Hong Kong, as Assange did in London. Or he could make an asylum claim in Hong Kong after his travel visa expires in mid-August or if the U.S. government requests his surrender.

If he does apply for asylum, Snowden will be stumbling into a labyrinthine system criticized by human rights lawyers as dysfunctional and inefficient.

Hong Kong did not sign the United Nations’ 1951 Refugee Convention, and so the government has no obligation to process refu­gee claims. Instead, it relies mostly on the U.N. High Commissioner for Refugees’ office in Hong Kong, which is underderstaffed and has a backlog of asylum requests. In cases in which the applicants claim that they may be tortured if sent home, the Hong Kong government reviews the case. An estimated 5,000 claims are being processed by both the UNHCR and the Hong Kong government.

“We have asylum seekers who have been in Hong Kong for years,” Young said.

Because the UNHCR and the Hong Kong government evaluate claims, Snowden could seek to have his asylum case reviewed by both. Complicating the picture are two recent court cases mandating that Hong Kong consolidate its refu­gee system and establish a new process.

“I think Mr. Snowden is much wiser from a legal perspective than many people initially gave him credit for,” McNabb said. “I think he’s thought about this for a long time.””

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Douglas McNabb – McNabb Associates, P.C.’s
International Extradition Lawyers Videos:

International Extradition – When the FBI Seeks Extradition

International Extradition – Wire Transfer – Email – Telephone Call

————————————————————–

To find additional global criminal news, please read The Global Criminal Defense Daily.

Douglas McNabb and other members of the U.S. law firm practice and write and/or report extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition Defense, OFAC SDN Sanctions Removal, International Criminal Court Defense, and US Seizure of Non-Resident, Foreign-Owned Assets. Because we have experience dealing with INTERPOL, our firm understands the inter-relationship that INTERPOL’s “Red Notice” brings to this equation.

The author of this blog is Douglas C. McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.

————————————————————–

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“NSA Whistleblower Edward Snowden Seeks Asylum”

June 10, 2013

The Fiscal Times on June 9, 2013 released the following:

“By BARTON GELLMAN and AARON BLAKE, The Washington Post

Edward Snowden, a 29-year-old former undercover CIA employee, unmasked himself Sunday as the principal source of recent Washington Post and Guardian disclosures about top-secret National Security Agency programs.

Snowden, who has contracted for the NSA and works for the consulting firm Booz Allen Hamilton, denounced what he described as systematic surveillance of innocent citizens and said in an interview that “it’s important to send a message to government that people will not be intimidated.”

Director of National Intelligence James R. Clapper Jr. said Saturday that the NSA had initiated a Justice Department investigation into who leaked the information — an investigation supported by intelligence officials in Congress.

Snowden, whose full name is Edward Joseph Snowden, said he understands the risks of disclosing the information but felt it was important to do. “I’m not going to hide,” Snowden told The Post from Hong Kong, where he has been staying. The Guardian was the first to publicly identify Snowden, at his request. “Allowing the U.S. government to intimidate its people with threats of retaliation for revealing wrongdoing is contrary to the public interest.”

Asked whether he believed his disclosures would change anything, he said: “I think they already have. Everyone everywhere now understands how bad things have gotten — and they’re talking about it. They have the power to decide for themselves whether they are willing to sacrifice their privacy to the surveillance state.”

Snowden said nobody was aware of his actions, including those closest to him. He said there wasn’t a single event that spurred his decision to leak the information. “It was more of a slow realization that presidents could openly lie to secure the office and then break public promises without consequence,” he said.

Snowden said President Obama hasn’t lived up to his pledges of transparency. He blamed a lack of accountability in the Bush administration for continued abuses. “It set an example that when powerful figures are suspected of wrongdoing, releasing them from the accountability of law is ‘for our own good,’” Snowden said. “That’s corrosive to the basic fairness of society.” The White House did not respond to multiple e-mails seeking comment and spokesman Josh Earnest, who was traveling with the president, said the White House would have no comment Sunday.

A brief statement from a spokesperson for Clapper’s office referred media to the Justice Department for comment and said the intelligence community was “reviewing the damage” that had been done by the leaks. “Any person who has a security clearance knows that he or she has an obligation to protect classified information and abide by the law,” the statement said.

Snowden also expressed hope that the NSA surveillance programs would now be open to legal challenge for the first time. Earlier this year, in Amnesty International v. Clapper, the Supreme Court dismissed a lawsuit against the mass collection of phone records because the plaintiffs could not prove exactly what the program did or that they were personally subject to surveillance.

“The government can’t reasonably assert the state secrets privilege for a program it has acknowledged. The courts can now allow challenges to be heard on that basis,” Snowden said.

Snowden said he is seeking “asylum from any countries that believe in free speech and oppose the victimization of global privacy,” but the law appears to provide for his extradition from Hong Kong to the United States. Hong Kong is a semiautonomous territory of China, but while the United States doesn’t have an extradition agreement with China, it has had one with Hong Kong since 1998.

This means that the U.S. government could indict Snowden and seek to bring him back to American soil.

Such proceedings can take months and even years, but extradition expert Douglas McNabb said Snowden has not put himself in a favorable position. “The fact that he outed himself and basically said, from what I understand he has said, ‘I feel very comfortable with what I have done,’that’s not going to help him in his extradition contest,” McNabb said. “I am very surprised by the way that he’s handled it.”

Current and former U.S. intelligence officials said the revelation of Snowden’s role in the leaks would lead to a sweeping re-examination of security measures at the CIA and NSA, and described his apparent decision to come forward as a stunning conclusion to a week of disclosures that had already rattled the intelligence community. “This is significant on a number of fronts: the scope, the range. It’s major, it’s major,” said John Rizzo, former general counsel of the CIA, who worked at the agency for decades. “And then to have him out himself… I can’t think of any previous leak case involving a CIA officer where the officer raised his hand and said, ‘I’m the guy.’”

A half-dozen former intelligence officials, including one who now works at Booz Allen Hamilton, said they did not know Snowden or anything about his background. Still, several former officials said that he easily could have been part of a surge in the number of computer experts and technical hires brought in by the agency in the years after the Sept. 11, 2001, terrorist attacks as its budget and mission swelled. “Like a lot of things after 9/11, they just went on a hiring binge and in the technical arena young smart nerds were in high demand,” a former U.S. intelligence official said. “There were battalions of them.”

Officials said that the CIA and other spy agencies did not relax their screening measures as the workforce expanded. Still, several officials said that the agency would undoubtedly now begin reviewing the process by which Snowden was hired, seeking to determine whether there were any missed signs that he might one day betray national secrets. More broadly, the CIA and NSA may be forced to reexamine their relationships with contractors, who were employed in roles ranging from technical support to paramilitary operations before concerns about the outsourcing of such sensitive assignments prompted a backlash in Congress and pledges from the agencies to begin thinning their contracting ranks.

Some former CIA officials said they were troubled by aspects of Snowden’s background, at least as he described it in his comments to the Guardian. Snowden said he did not even have a high school degree. One former CIA official said it was extremely unusual for the agency to have hired someone with such thin academic credentials, particularly for a technical job, and that the terms Snowden used to describe his agency positions didn’t match internal job descriptions.

Snowden’s claim to have been placed under diplomatic cover for a position in Switzerland after an apparently brief stint at the CIA as a systems administrator also raised suspicions. “I just have never heard of anyone being hired with so little academic credentials,” the former CIA official said. The agency does employ technical specialists in overseas stations, the former official said, “but their breadth of experience is huge and they tend not to start out as systems administrators.”

Snowden’s name surfaced as top intelligence officials in the Obama administration and Congress pushed back against the journalists responsible for revealing the existence of sensitive surveillance programs and called for an investigation into the leaks. The Guardian initially reported the existence of a program that collects data on all phone calls made on the Verizon network. Later in the week, the Guardian and The Post reported the existence of a separate program, code-named PRISM, that collects the Internet data of foreigners from major Internet companies.

Clapper, in an interview with NBC that aired Saturday night, condemned the leaker’s actions but also sought to spotlight the media who first reported the programs, calling their disclosures irresponsible and full of “hyperbole.” Earlier Saturday, he had issued a statement accusing the media of a “rush to publish.”

“For me, it is literally — not figuratively — literally gut-wrenching to see this happen because of the huge, grave damage it does to our intelligence capabilities,” Clapper said.

On Sunday morning, prior to Snowden’s unmasking, Clapper got some backup from the chairs of the House and Senate intelligence committees, who appeared jointly on ABC’s “This Week” to espouse the values of the programs. House Intelligence Committee Chairman Mike Rogers (R-Mich.) had harsh words for the then-unnamed leaker and for the journalist who first reported the NSA’s collection of phone records, The Guardian’s Glenn Greenwald.

“[Greenwald] doesn’t have a clue how this thing works; nether did the person who released just enough information to literally be dangerous,” Rogers said, adding, “I absolutely think [the leaker] should be prosecuted.”

Senate Intelligence Committee Chairwoman Dianne Feinstein (D-Calif.) agreed that whoever had leaked the information should be prosecuted, and she sought to beat back media reports that suggest the Obama administration overplayed the impact of the programs. Greenwald, who appeared earlier on the same show, said the secrecy is the reason the programs must be laid bare. After opponents of the programs questioned their value last week, anonymous administration officials pointed to the thwarting of a bomb plot targeting the New York City subway system in 2009. Soon after, though, reporters noted that public documents suggested regular police work was responsible for thwarting the attack rather than a secret government intelligence program.

Feinstein confirmed that the programs were invaluable in both the New York case and another one involving an American plotting to bomb a hotel in India in 2008. “One of them is the case of David Headley, who went to Mumbai to the Taj [Mahal] Hotel and scoped it out for the terrorist attack,” Feinstein said. “The second is Najibullah Zazi, who lived in Colorado, who made the decision that he was going to blow up a New York subway.”

Feinstein noted that she could talk about those two cases because they have been declassified, but she suggested the surveillance programs also assisted in other terrorism-related cases. That explanation wasn’t enough to satisfy some critics of the programs.

Her Senate Intelligence Committee colleague, Sen. Mark Udall (D-Colo.), agreed that the PRISM program has “been very effective.” But he said the collection of Americans’ phone metadata has not proven so. “It’s unclear to me that we’ve developed any intelligence through the metadata program that’s led to the disruption of plots that we couldn’t obtain through other programs,” Udall said Sunday on CNN’s “State of the Union.”

Udall and two Democrats from Oregon — Sens. Ron Wyden and Jeff Merkley — have emerged as key voices critical of the phone record collection.

Another chief critic of the efforts, Sen. Rand Paul (R-Ky.), said he is looking at filing a lawsuit against the government and called on Americans to join in. “I’m going to be asking all the Internet providers and all of the phone companies, ask your customers to join me in a class action lawsuit,” Paul said on “Fox News Sunday.” “If we get 10 million Americans saying we don’t want our phone records looked at, then somebody will wake up and say things will change in Washington.”

This article originally appeared in The Washington Post. Greg Miller also contributed to this article.”

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Douglas McNabb – McNabb Associates, P.C.’s
International Extradition Lawyers Videos:

International Extradition – When the FBI Seeks Extradition

International Extradition – Wire Transfer – Email – Telephone Call

————————————————————–

We previously discussed the extradition treaty between the United States and Hong Kong here.

————————————————————–

To find additional global criminal news, please read The Global Criminal Defense Daily.

Douglas McNabb and other members of the U.S. law firm practice and write and/or report extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition Defense, OFAC SDN Sanctions Removal, International Criminal Court Defense, and US Seizure of Non-Resident, Foreign-Owned Assets. Because we have experience dealing with INTERPOL, our firm understands the inter-relationship that INTERPOL’s “Red Notice” brings to this equation.

The author of this blog is Douglas C. McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.

————————————————————–

International criminal defense questions, but want to be anonymous?

Free Skype Tel: +1.202.470.3427, OR

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“Beyond Hong Kong: Edward Snowden’s best options for asylum”

June 10, 2013
Edward Snowden
“Edward Snowden explained that he had chosen Hong Kong because it ‘has a strong tradition of free speech’. Photograph: The Guardian/AFP/Getty Images”

The Guardian on June 10, 2013 released the following:

“Choice of Hong Kong as refuge is admired, but speculation remains that he could seek sanctuary in Iceland

[BY] Owen Bowcott and Alexandra Topping

Edward Snowden’s choice of Hong Kong as a refuge from US retribution has been admired by some international lawyers – but it has not quelled speculation that he may seek asylum in another state thereafter, and activists in Iceland are making preparations should the whistleblower try to head there.

Hong Kong is a separate jurisdiction from China and has an extradition treaty with the United States, but the agreement has exceptions – including for crimes deemed to be political. In his video interview with the Guardian, Snowden, 29, an IT contractor, explained that he had chosen the semi-autonomous territory because “Hong Kong has a strong tradition of free speech”.

Under Hong Kong’s Fugitives Offenders Ordinance, however, China can issue an “instruction” to the city’s leader to take or not take action on extraditions where the interests of China “in matters of defence or foreign affairs would be significantly affected”.

One US lawyer, Douglas McNabb, a Houston-based extradition expert, said it would not be difficult for the United States to provide justification for any request. “This guy came out and said: ‘I did it,'” he commented. “[Snowden’s] best defence would probably be that this is a political case instead of a criminal one.”

Other states being mentioned where Snowden might seek sanctuary have included Ecuador, whose embassy in London is currently home to the fugitive WikiLeaks founder Julian Assange, Venezuela and Iceland – where WikiLeaks has received support.

Iceland’s ministry of the interior – which would have the final say on whether Snowden received asylum – denied that it had received any application from the whistleblower.

“We have heard about this, but we cannot speculate,” said Johannes Tomasson, spokesman for the ministry. “At the moment we have received no inquiry or application from Mr Snowden, and we cannot therefore speculate on whether any such application would be granted.”

But there was a groundswell of support for Snowden, according to information activist Smári McCarthy, executive director of the International Modern Media Institute in Iceland (IMMI), which has started making inquiries about how Snowden might be given refuge.

“Of course we have been following the story with morbid fascination and as soon as [he] mentioned Iceland, that was our cue to take action,” said McCarthy. “We are working on the basis that if he were to arrive in Iceland we would have a plan in place and ready to go.”

McCarthy’s organisation has requested a meeting with the minister of the interior and is in discussions with lawyers about the possibility of Snowden gaining protection in Iceland. One concern for campaigners is that Iceland has an extradition treaty with the US and that it could be diplomatically difficult for the small nation to grant asylum.

“It is not sure whether Iceland would be up for the fight as the US is a major trading partner,” he said. “However, it would be rather embarrassing for the States if it cut ties with this small nation because it had complied with its human rights duties.”

Snowden would have to arrive on Icelandic soil or at one of its embassies in order to claim asylum, but would have popular support in Iceland, said McCarthy. “Everywhere in the Icelandic media today we are seeing that support, with people thinking that Snowden is deserving of Iceland’s protection.”

Iceland has a history of providing asylum, famously giving former world chess champion Bobby Fischer Icelandic citizenship after a vote in the country’s parliament and is considered a world leader in human rights. The US government is unlikely to deprive Snowden of his nationality as a punishment since that could undermine any attempt to extradite him back to the United States to face charges.

Rendering anyone stateless against their will is formally forbidden by the Universal Declaration of Human Rights, adopted by the United Nations in 1948, which declares under article 15 that: “(1) Everyone has the right to a nationality; (2) No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.”

Individuals, however, can voluntarily renounce their US citizenship. In order to do so they must, according to the US state department, “appear in person before a US consular or diplomatic officer, in a foreign country (normally at a US embassy or consulate); and sign an oath of renunciation.”

The regulations add: “Persons intending to renounce US citizenship should be aware that, unless they already possess a foreign nationality, they may be rendered stateless and, thus, lack the protection of any government. They may also have difficulty travelling as they may not be entitled to a passport from any country.””

————————————————————–

Douglas McNabb – McNabb Associates, P.C.’s
International Extradition Lawyers Videos:

International Extradition – When the FBI Seeks Extradition

International Extradition – Wire Transfer – Email – Telephone Call

————————————————————–

We previously discussed the extradition treaty between the United States and Hong Kong here.

————————————————————–

To find additional global criminal news, please read The Global Criminal Defense Daily.

Douglas McNabb and other members of the U.S. law firm practice and write and/or report extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition Defense, OFAC SDN Sanctions Removal, International Criminal Court Defense, and US Seizure of Non-Resident, Foreign-Owned Assets. Because we have experience dealing with INTERPOL, our firm understands the inter-relationship that INTERPOL’s “Red Notice” brings to this equation.

The author of this blog is Douglas C. McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.

————————————————————–

International criminal defense questions, but want to be anonymous?

Free Skype Tel: +1.202.470.3427, OR

Free Skype call:

           Office Locations

Email: