It is "impossible to handicap" whether Edward Snowden, wanted by the U.S. government on espionage charges for his unauthorized leaks of classified national security data, will be extradited back to the United States, says legal scholar Stephen Vladeck. The process is more a function of diplomatic relations than a purely legal matter, he says. "Part of what's complicated the U.S. position in the Snowden case is definitely some hostility and bitterness" from countries like China and Russia that are resentful of the U.S. surveillance practices Snowden is disclosing, he says. Vladeck supports greater oversight of U.S. surveillance activities as well as enhanced privacy protections. "The law has not yet caught up with changes in technology," he says.
What are the chances that Snowden is extradited to the United States?
It's impossible to handicap because a lot of it depends on what country he ends up in and how much political pressure the U.S. government brings to bear. It also depends on diplomatic and foreign policy considerations that really are impossible to quantify because extradition is such a political—as opposed to a legal—process, especially where we're talking about extraditing someone from a country with which we don't have an extradition treaty, like Russia.
When there is an extradition treaty, in theory, there is a way for the requesting country, in this case the United States, to argue that the other country must extradite the person in question. Where there is no extradition treaty, there is no way to argue that, so it just comes down to politics.
What are some of the legal considerations that foreign countries take into account when determining asylum cases?
From Snowden's perspective, the U.S. government is seeking his return for the purpose of persecuting him, while from the U.S. government's perspective, it's just seeking the return of a guy who committed a felony.
Every country has their own stance on asylum, but the typical baseline that you hear is whether the individual requesting asylum has a reasonable fear that they will be persecuted—that they will be punished for illicit and improper reasons if they are returned to the country that is seeking them.
That is what is tricky about this case. From Snowden's perspective, the U.S. government is seeking his return for the purpose of persecuting him, while from the U.S. government's perspective, it's just seeking the return of a guy who committed a felony to try him in our criminal justice system, which is not usually in the business of persecuting criminal defendants. The problem here is that what law there is on the subject is only part of the consideration; it also depends on who exactly is answering that question: which country and which country's judges.
Is the potential for capital punishment under the Espionage Act an issue that may preclude some countries from extraditing him?
It is certainly true that capital punishment in the U.S. has been an obstacle to prior extradition cases, especially from countries in which the death penalty has been abolished. In Snowden's case, the Espionage Act at least theoretically does allow for a capital prosecution, but only where the government alleges and then proves that the underlying espionage, the underlying conduct, directly led to someone's death. And I don't know that there's any allegation in public, and certainly not in any of the papers that we have seen thus far in the Snowden case, that that's the government's theory. Absent that, there won't be any opportunity for the government to try to seek the death penalty, and so I don't think that would be a particularly onerous complication here.
If and when he is extradited, can the government amend or up the charges?
This is a bit of a gray area. Most extradition treaties have language that can be read either way on the question of whether the government can add charges after extradition. But whether it's in the letter of the treaty or not, it would certainly be in bad faith. The strength of a country's good word is actually really important when it comes to this area, and I don't know that the U.S. is willing to sacrifice that to get Edward Snowden.
The U.S. has condemned China and Russia for allegedly aiding Snowden's odyssey. How do these cases affect diplomatic relations?
Part of what's complicated the U.S. position in the Snowden case is definitely some hostility and bitterness on the part of the Chinas and Russias of the world to the very conduct that the U.S. now wants to prosecute Snowden for disclosing. These countries that might be reluctant enough to cooperate with the U.S. in a perfectly ordinary case are especially reluctant when what the U.S. is trying to prosecute Snowden for is exposing ways in which the U.S. has actually been conducting operations against these countries.
Roughly what percentage of extradition requests does the United States fulfill?
In general, the U.S. tends to be more cooperative going out than other countries tend to be coming in. The statistic I have heard quoted most often is that the U.S. in the aggregate grants somewhere between 75 and 85 percent of the extradition requests it receives, and that, depending on what country you look at, the numbers for how many of our requests are granted are often lower. The best generalization we can make is that more than half of extradition requests are usually granted, but how much more depends really very much on what country we're talking about, on what kinds of cases we are talking about, and what kind of diplomatic relations we have with that country.
What's your take on the government's legal case against Snowden?
Unless there are a lot of things that we don't yet know, like if there are facts that are just not yet remotely part of the public record, it seems like the government has Snowden in a pretty tight spot if they ever actually get him into a U.S. courtroom. There seems to be little question, at least based on Snowden's own statements, that he did in fact steal government property and disclose classified information to individuals who are not entitled to receive it.
That being said, there is one huge variable here, which is the jury. Part of the whole purpose of having the jury system is that the jury is allowed to serve as a check on the government and a check on the prosecutor. The mere fact that the government might have Snowden dead to rights on the charges against him doesn't by itself guarantee a conviction. You never know what happens when you get twelve jurors, some of whom may be quite sympathetic to Snowden, asked to decide his fate.
Can you talk about the legal protections for whistleblowers in the United States?
There is the general Whistleblower Protection Act and then for folks like Snowden, for people who are actually working in the intelligence community, there's a specific statue called the Intelligence Community Whistleblower Protection Act. The idea behind these statutes is to protect from retaliatory employment action (i.e., firing) and from prosecution those government employees who report the way they're supposed to on fraud, on waste, on abuse, or on illegality by other government employees or their agencies. The problem in Snowden's case is that, even if we assume for the sake of argument that the programs he disclosed were illegal, which by the way is not at all settled, he still disclosed them to the wrong people.
Under the Intelligence Community Whistleblower statute, the disclosures of classified information are only authorized to your agency's inspector general—in Snowden's case, to the inspector general of the NSA—and where that doesn't work, to the so-called Gang of Eight [the chair and ranking members of the House and Senate intelligence committees]. The problem in Snowden's case is that he skipped all of those and instead went straight to, by all accounts, [Guardian journalist] Glenn Greenwald. So even if what he was disclosing was illegal, he wouldn't be entitled to whistleblower protection.
The charges against Snowden were filed in the U.S. District Court for the Eastern District of Virginia. What is the precedent for these types of cases, and why this court in particular?
There's precedent for prosecuting leakers in particular when they are government employees. There is a very important case from the 1980s involving Samuel Morison, who was a government employee who leaked classified U.S. spy satellite images of the then brand new Soviet aircraft carrier to Jane's Defence Weekly—not to harm U.S. national security or to benefit the Soviets, but really just for money. That case was brought in the Eastern District of Virginia, like many of these cases for two reasons: 1) it's the court that has physical jurisdiction over the Defense Department and the CIA, and so there's a convenience factor, and 2) more importantly, the Eastern District is where the government brings most of its high profile national security cases because it moves quickly, has well-established procedures for handling these matters with due respect for the government's secrecy interests, and most importantly, thanks to this tradition there's precedent.
The government has defended its controversial surveillance activities exposed by Snowden as legal, as limited, and as overseen by Congress. What's your take on how the Obama administration has interpreted the law?
The notion that there is adequate oversight and accountability for government surveillance under the Foreign Intelligence Surveillance Act is deeply problematic. I find it troubling that the government only briefed the intelligence committees and not the rest of Congress about what it's up to with these programs, and only gets the Foreign Intelligence Surveillance Court to sign off on these programs every once in a while. I have very little faith that that disposes of their legality, and if they weren't so worried about the legality of these programs, they would be more willing to open them up to public and judicial oversight. At least on the merits, there is a lot to worry about here.
With regard to the administration's position and its interpretation of the laws, the tricky part comes down to how our expectations of privacy have changed over the past ten years. We have an expectation of privacy on our phone calls—that the government doesn't have a general right to listen in or obtain data about the call. But the reality today is that, if I make a call on my cellphone, it doesn't mean anything. The problem is that the government has such expansive authority now under section 215 of the Patriot Act to obtain what are called business records, which now apparently include any record made by a business, such as a record of my phone call to my friend.
But also, under section 702 of the Foreign Intelligence Surveillance Act amendments of 2008, the government can intercept so many communications without a warrant I would never have thought it had the power or legal authority to intercept. The problem is that the Obama administration may well be right on the law, but that's largely because the law has not yet caught up with changes in technology—changes that should have required us to rethink expectations of privacy in the digital age.
And this privacy-security debate is not exclusive to the United States?
That's generally right, but part of the problem that is unique to the U.S. approach is that historically our principal privacy protections have been constitutionally grounded because they have been tied to how our Supreme Court has interpreted the Fourth Amendment. Whereas many of our European friends, their privacy protections are statutory and so are much more often debated and routinely revisited by their legislatures.
The Supreme Court has, for lack of a better word, "relaxed" some of the Fourth Amendment's constrictions in the past ten or fifteen years and thereby relaxed the privacy constraints that come with that. It has opened the door for the government to do that much more without a warrant in cases where we would have previously thought they needed a warrant. It's a similar problem that we share with many of our friends overseas. I just think for our friends overseas there is much more of a tradition of solving this problem through statutes. Meanwhile, our Congress is more used to waiting for the courts to address this issue.