“Is Edward Snowden stateless and where can he go?”

July 2, 2013

The Guardian on July 2, 2013 released the following:

“Even if another state grants Snowden asylum and issues him with a letter of passage, Russia would have to agree to accept it

A Guardian guide to extradition – interactive

Owen Bowcott, legal affairs correspondent

Is Edward Snowden stateless?

The US whistleblower has accused Washington of revoking his passport, leaving him a stateless person. The Obama administration, however, insists it has only cancelled the validity of Snowden’s travel document, not deprived him of citizenship. The US State Department has now offered him a “one-entry travel document” to return home – an option unlikely to tempt Snowden to board a US-bound plane.

Can he be rendered stateless?

Making anybody stateless 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 can voluntarily renounce their US citizenship – but they have to turn up in person at a US embassy.

Are airports outside national territory?

States normally retain full control over airside transit areas. Russia appears to be treating Moscow’s Sheremetyevo international airport, where Snowden is believed to be hiding, as beyond its control. Gemma Lindfield, a London barrister specialising in extradition and international law, said: “Russia is taking the view that he has not entered Russian territory. It’s finding a reason to do what it wants. The authorities have redefined the space of the airport as international.”

What documents would Snowden require to leave Moscow?

Ecuador initially provided him with a laissez-passer (from the French for “let pass”), or temporary letter of passage, requesting a country to allow a person without other identity documents to cross international borders. But even with a laissez-passer, Lindfield said, “Russia would have to agree to accept it. It would also come down to whether the airline carrier would be happy to take him.”

How long can anyone remain in an airport?

Mehran Karimi Nasseri, an Iranian refugee, lived in the departure lounge of Charles de Gaulle airport in Paris for 18 years. His story, Terminal Man, was later turned into a film, The Terminal. Another Iranian refugee, Zahra Kamalfar, spent 10 months at Sheremetyevo airport before flying on to Canada in 2007. Apart from Julian Assange, who is confined to Ecuador’s embassy in London, others trapped in long-term legal limbo have included Archbishop József Mindszenty, the Catholic primate of Hungary, who spent 15 years in the US embassy in Budapest.

What are Snowden’s other options?

Formal requests for asylum have been lodged on Snowden’s behalf with 21 states. His initial applications were to Ecuador and Iceland. The WikiLeaks activist Sarah Harrison has submitted additional letters to Austria, Bolivia, Brazil, China, Cuba, Finland, France, Germany, India, Italy, Ireland, the Netherlands, Nicaragua, Norway, Poland, Russia, Spain, Switzerland and Venezuela.

How are those requests progressing?

Snowden has withdrawn his asylum request to Russia because it said he would be welcome only if he stopped “his work aimed at bringing harm” to the US. Norway, Poland, Germany, Austria, Finland, Spain and Switzerland say that asylum requests can only be made on their soil. Ecuador is reported to have revoked the safe passage letter written for Snowden to leave Hong Kong because the president, Rafael Correa, was not informed before it was issued.

Which country should he choose to escape the reach of US justice?

States that do not have extradition treaties with the US are likely to offer the best hope of securing his freedom. But lawyers point out that even the absence of a treaty may not be sufficient protection against extradition. The UK has managed to extradite suspects from Somalia through case-by-case bilateral agreements. In the end his asylum may come down to political will more than international law. “You would do well to choose a country that has historically terrible diplomatic relations with the US,” Lindfield suggested.”

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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

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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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International criminal defense questions, but want to be anonymous?

Free Skype Tel: +1.202.470.3427, OR

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“Analysis: Knox case could pit extradition treaty against U.S. Constitution”

March 27, 2013

Reuters on March 26, 2013 released the following updated story:

“By Terry Baynes

(Reuters) – The possibility that American Amanda Knox could be convicted of murder and extradited to Italy for punishment could force U.S. courts to enter legal territory that is largely uncharted, legal experts said.

Italy’s top court on Tuesday ordered the retrial of Knox, 25, for the 2007 murder of British student Meredith Kercher.

The move potentially pits a U.S. constitutional ban on double jeopardy, or being tried twice for the same offense after an acquittal, against international extradition agreements, experts said.

The issue hinges on whether a lower court decision overturning her conviction amounted to an acquittal, they said.

If Knox is retried after she was acquitted, that would violate her constitutional rights, said Christopher Blakesley, a law professor at the University of Nevada Las Vegas who specializes in international criminal law. On the other hand, the United States entered into an extradition treaty and, in doing so, accepted Italy’s criminal justice system, he added.

“If Knox is found guilty, there’s still a whole lot of room for battle before she would ever be extradited,” Blakesley said.

Knox and her former boyfriend, Raffaele Sollecito, were accused of killing 21-year-old Meredith Kercher during a drug-fuelled sexual encounter in Perugia, Italy. The two were found guilty in 2009 and sentenced to 26 and 25 years in prison respectively.

In 2011, an appeals court, comprised of a panel of judges and lay jurors, overturned the convictions of Knox and Sollecito after forensic experts challenged evidence from the original trial. Knox and Sollecito were released after four years in prison, and Knox returned to her family home near Seattle.

Prosecutors and Kercher family lawyers appealed to Italy’s high court, the Court of Cassation, calling the prior ruling “contradictory and illogical.”

On Tuesday, the Court of Cassation agreed to overturn the appeals court’s acquittals. The high court has not yet provided a full reasoning for its decision, and a date has not yet been set for the new trial, which will be held before a different court of appeals in Florence.

Knox’s Italian lawyer, Carlo Dalla Vedova, said via email that the new trial would likely occur in late 2013 or early 2014. Knox does not intend to return to Italy for the proceeding, he said, and the court of appeals can retry the case in absentia.

The Italian government could ask for extradition once the Italian courts have reached a final decision, Dalla Vedova said. If it does, the U.S. Department of State would then have to decide whether to act on the request. If the State Department chooses to comply, it would then deploy the U.S. Attorney’s Office to a U.S. court to seek Knox’s extradition.

What is unpredictable is how such a case would play out in front of a U.S. judge who would have to weigh the U.S. constitutional protection against double jeopardy with the 1984 bilateral extradition treaty between the United States and Italy. The treaty contains a provision that attempts to protect against double jeopardy, but it is not clear whether that provision would bar extradition in Knox’s case.

The legal question would be whether Knox was acquitted, as U.S. courts would define the term, or whether the case was merely reversed and still open for further appeal, said criminal lawyer and Harvard Law Professor Alan Dershowitz.

“It’s very complicated, and there’s no clear answer. It’s in the range of unpredictable,” Dershowitz said.

Much of the complication stems from the differences between the Italian and U.S. legal systems. In the United States, if a defendant is acquitted, the case cannot be retried.

In Italy, prosecutors and lawyers for interested parties, such as Kercher’s family, can file an appeal. Unlike American courts of appeal, which only consider legal errors in the courts below, Italian courts of appeal, which are comprised of both judges and jurors, can reconsider the facts of a case.

Depending on the Italian high court’s reason for overturning Knox’s acquittal, it is possible that the court of appeals could consider new evidence that’s introduced, said Dalla Vedova. As a result, a defendant can effectively be retried in the course of one case in Italy.

Dalla Vedova said the high court’s decision does not raise a double jeopardy problem because the retrial would not be a new case but rather a continuation of the same case on appeal.

Other defendants who have been acquitted in other countries and then convicted on appeal have attempted to raise the double jeopardy principle to avoid extradition, without much success, said Mary Fan, a law professor at the University of Washington who specializes in cross-border criminal law.

The text of the treaty prevents extradition if the person has already been convicted or acquitted of the same offense by the “requested” country, which would be the United States in Knox’s case because Italy would be requesting extradition from the United States. Because Knox was never prosecuted or acquitted for homicide in the United States, the treaty’s double-jeopardy provision would not prevent Knox’s extradition, said Fan.

While the issue is rare in the United States, several courts have rejected the double jeopardy argument in similar cases. In 2010, a federal court in California found that a man who was acquitted of murder in Mexico and later convicted after prosecutors appealed the acquittal, could not claim double jeopardy to avoid extradition to Mexico. That court cited a 1974 decision from the 2nd U.S. Circuit Court of Appeals in New York, that reached the same conclusion with respect to Canadian law, which also allows the government to appeal an acquittal.

When asked about the potential extradition of Knox at a press briefing on Tuesday, a spokesman for the U.S. State Department said the question was hypothetical and declined to comment.”

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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

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

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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:


Why Julian Assange Might Be Better Off In Sweden

November 2, 2011

Forbes on November 2, 2011 released the following:

By: Andy Greenberg, Forbes Staff

“Throughout the 11-month legal process to determine whether Julian Assange will be extradited from the United Kingdom to Sweden to face questioning over alleged sex crimes, Assange’s lawyers have argued that a trip across the North Sea would be the first leg in a journey that ends in an American prison.

But as a second London court denied the WikiLeaks’ founder’s appeal against extradition to Stockholm Wednesday and brought the WikiLeaks founder one step closer to a trip to Stockholm, the effect may not be so clear. (See the judge’s full ruling against that appeal here.) In fact, lawyers I’ve spoken to say the real result of sending Assange to Sweden may be to put the decision of whether to allow him to be prosecuted in the U.S. into the hands of unpredictable Swedish leaders rather than leaving it to Britain’s U.S.-friendly laws, a situation that may represent another barrier to the U.S. Justice Department’s barely secret ambitions to indict him.

Assange’s relocation to Sweden for trial could end up complicating the process of charging him with crimes in the U.S., says Douglas McNabb, a lawyer with the firm of McNabb [Associates] who specializes in cases of international criminal law and extradition. “If Assange is going to be extradited, he’d much rather be extradited to Sweden than to the U.S.,” says McNabb. “In fact, the U.S. would get him much more quickly from the U.K. than from Sweden.”

McNabb points to Britain’s Extradition Act of 2003, a controversial law passed in the wake of 9/11 that gives the United States special privileges in seeking the extradition of prisoners in the United Kingdom. He argues the act’s “accelerated extradition process” means Britain would likely pose little resistance to American prosecutors seeking Assange’s extradition. That same law is currently being used to extradite hacker Gary McKinnon to the United States despite his British citizenship, and a U.K. judicial review upheld the statute in October.

Frank Rubino, an international defense lawyer who has represented Panamanian general Manuel Noriega and Lockerbie bomber Abdelbasset Al-Megrahi, calls Assange’s argument that Sweden is more likely to extradite him to the U.S. than Britain “ridiculous.” “Short of Iran, they could move to extradite him from pretty much anywhere,” says Rubino, “From London as much as from Stockholm. But if Sweden doesn’t recognize whatever the U.S. charges him with as a violation of Swedish law, they might not extradite him at all.”

Extradition from Sweden, after all, requires determining “dual criminality”–that whatever Assange has been charged with in the United States is also a crime in Sweden. The grand jury that has convened in Alexandria, Virginia to decide whether Assange will be indicted in the U.S. has yet to make public any charges against him, but some have speculated on and called for his indictment under the same Espionage Act once used to prosecute Daniel Ellsberg for leaking the Pentagon Papers.

If Assange is in Sweden and the U.S. presses charges, it might need the cooperation of both the United Kingdom and Sweden to achieve its own extradition on top of Sweden’s, as the Electronic Frontier Foundation’s legal activist Trevor Timm has pointed out. The judge in the original February decision on the extradition case wrote:

“If Mr Assange is surrendered to Sweden and a request is made to Sweden for his extradition to the United States of America, then…In such an event the consent of the Secretary of State in this country will be required, in accordance with section 58 of the Extradition Act 2003, before Sweden can order Mr Assange’s extradition to a third State. The Secretary of State is required to give notice to Mr Assange unless it is impracticable to do so. Mr Assange would have the protection of the courts in Sweden and, as the Secretary of State’s decision can be reviewed, he would have the protection of the English courts also.”

Sweden, it’s important to note, be able to circumvent those restrictions on traditional extradition. The Assange support site SwedenVersusAssange.com argues that Sweden will use a clause in its extradition treaty with the United States that allows a “temporary surrender” of a prisoner to the U.S. by “mutual agreement.” That clause, Assange’s backers fear, means Assange could be passed on to the U.S. without either the usual extradition hearing under Swedish law or the consent of the U.K. government.

But McNabb argues that even in spite of that potential loophole, Assange has a better shot of staying out of American hands in Sweden than he would have in the United Kingdom, where the Extradition Act practically pre-ordains his trip to America. “It would be almost certain in the UK,” says McNabb. “In Sweden, it’s a toss-up.”

Prior to Wednesday’s hearing, WikiLeaks’ Twitter feed was full of descriptions of Sweden as America’s lapdog, calling it “the Israel of the north” and writing that its “ subservience to the US [is] now on naked display.”

But setting Assange’s sex crime charges aside, Sweden has yet to apply the same political pressure to WikiLeaks that U.S. leaders have to American WikiLeaks partners. Even as Senator Joe Lieberman successfully influenced American companies like Amazon, PayPal, Visa, MasterCard, and Western Union to cut their services to the secret-spilling group in early 2011, Swedish hosting companies PRQ and Bahnhof have both continued to serve WikiLeaks at the height of its controversy without threats from the Swedish government.

Whether that government will provide the same haven for WikiLeaks’ leader as it has for WikiLeaks’ data may soon be put to the test.”

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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 and OFAC SDN Sanctions Removal.

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