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Snowden extradition in hands of Hong Kong government

Hong Kong authorities give no sign how they will respond to the U.S. request. An extradition treaty exists, but includes exceptions that might prevent the return of the NSA leaker.

June 22, 2013|By Julie Makinen, Los Angeles Times
  • A banner in Hong Kong expresses support for former U.S. National Security Agency worker Edward Snowden. The U.S. formally asked Hong Kong for his extradition.
A banner in Hong Kong expresses support for former U.S. National Security… (Philippe Lopez, AFP/Getty…)

BEIJING — With U.S. prosecutors having filed criminal charges against Edward Snowden, attention turned Saturday to Hong Kong, whose authorities now must decide how to proceed with the case of the self-proclaimed National Security Agency leaker believed to be holed up in the Chinese territory.

At a brief news conference Saturday, Hong Kong Police Commissioner Andy Tsang said only that the matter would be handled according to law, and refused to answer a question about whether Snowden was in a police "safe house." After initially spending time in a Hong Kong hotel, Snowden reportedly moved to a private residence in the territory of 7 million, which has its own legal system apart from that of mainland China.

In Washington, National Security Council spokeswoman Caitlin Hayden confirmed Saturday that the U.S. "has contacted authorities in Hong Kong to seek the extradition of Mr. Snowden." And a senior administration official said 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."

Hong Kong and the United States have a treaty that allows for extraditions; however, there are several scenarios under which Snowden might avoid being returned to the United States. The treaty carries an exception for political offenses; some experts say espionage cases could certainly be regarded as political. Snowden could also file an asylum claim.

Snowden's case has galvanized a variety of Hong Kong civic groups, who regard the case as a test of the city's autonomy vis-a-vis Beijing and are upset by his revelations that U.S. hacking activities targeted facilities in the territory. A public opinion poll last weekend found that half of respondents were against his extradition.

Leaders of the League of Social Democrats, a left-leaning political party, planned to march Sunday to the offices of the territory's chief executive, Leung Chun-ying, to urge him not to extradite Snowden.

According to Simon N.M. Young, director of the Center for Comparative and Public Law at the University of Hong Kong, once the territory receives a formal request for Snowden's surrender, Leung must issue what is known as an authority to proceed.

Hypothetically, Leung could refuse to grant such an authority — if, for instance, he determines that doing so would violate Hong Kong law. Hong Kong authorities can't honor the extradition request unless they have a statute in their own law that corresponds with a violation of U.S. law.

Snowden has been charged by U.S. federal authorities with theft of government property and two violations of the Espionage Act: unauthorized communication of national defense information and providing U.S. classified intelligence to an unauthorized person.

As to whether those charges might trigger the political offense exception, Young said his initial sense was that the "elements of these offenses exist in neutral terms and cannot necessarily be said to be of a political character."

More important, he said, would be "the surrounding circumstances including the motivation for the prosecution, the unfairness of his trial at home and his likely treatment in custody."

If Leung does issue an authority to proceed, a magistrate can then issue an arrest warrant; in exceptional cases, a provisional arrest warrant may be issued without an authority to proceed. Young said he suspected a provisional warrant had already been issued.

Were Snowden to be detained, Young said, bail would be difficult to obtain. He would then go before a magistrate for "committal proceedings," during which the judge essentially assesses whether there is sufficient evidence to warrant a trial.

If the magistrate finds there is insufficient cause to surrender Snowden, or determines that doing so would violate Hong Kong law, Snowden could be freed. If the magistrate finds in favor of sending Snowden back to the United States, Snowden could appeal.

Concurrently, Snowden could also file an asylum claim, arguing that he faces political persecution, punishment that would constitute torture, or punishment that is cruel, inhuman or degrading.

"If he goes through the entire process and fights every issue, it certainly could be prolonged," Young said. "The extent to which he's willing and able to do that, it's unclear."

It was not yet clear whom Snowden has retained as legal advisors. On Saturday, the South China Morning Post, a Hong Kong newspaper that has interviewed Snowden, published new details of the alleged U.S. hacking activities in China and Hong Kong.

The paper reported that information provided by Snowden revealed extensive hacking of major telecommunication companies in China to access text messages; sustained attacks on network backbones at Tsinghua University, one of China's most prestigious colleges; and hacking of computers at the Hong Kong headquarters of Pacnet, which owns one of the most extensive fiber-optic submarine cable networks in the region.

Leaders of Hong Kong's Civic Party asked U.S. Consul-General Stephen Young in a letter Saturday to respond to Snowden's revelations.

"The U.S. government's attempts to justify such indiscriminate surveillance on the grounds of national security only serves to set a dangerous precedent for authoritarian governments which may use the same excuse to justify violations of human rights and suppression of dissidents," the letter said.

"If the United States wishes to be respected as a champion of rights and freedoms, it is imperative that the serious allegations made by Mr. Snowden are responded to promptly and clearly," it said.

julie.makinen@latimes.com

Times staff writer Kathleen Hennessey in Washington contributed to this report.

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