ON THE RUN

06.24.13

As Snowden Eyes Ecuador, WikiLeaks Begins to Lay Out His Legal Case

If Snowden does apply for asylum in Ecuador, it would lead to legal questions with little precedent should the U.S. apply to have him returned. Eli Lake and Ben Jacobs report.

With former NSA contractor Edward Snowden now in Moscow, lawyers for the anti-secrecy group WikiLeaks say he will now seek political asylum in Ecuador on the grounds that his whistleblowing disclosed criminality by the U.S. government, which would protect him from extradition.

Snowden this weekend boarded a plane from Hong Kong, where he’d been at an undisclosed location since leaving Hawaii on May 20, to Moscow with lawyers and other activists associated with WikiLeaks. The group’s founder, Julian Assange, last week told reporters that his organization was providing Snowden with legal advice and support, and a statement from the group on Sunday said he was “bound for the Republic of Ecuador via a safe route for the purposes of asylum, and is being escorted by diplomats and legal advisers from WikiLeaks.” Assange himself has spent more than a year at the Ecuadorian Embassy in London to avoid the prospect of extradition to the United States over the mass leak of diplomatic cable leaks to his group from U.S. Army Pvt. Bradley Manning, who is now being court-martialed more than three years after his arrest, most of it spent in arduous confinement.

In an interview with The Daily Beast, Michael Ratner, a lawyer who has worked closely with WikiLeaks, said Snowden’s disclosures to The Guardian and the Washington Post “revealed criminality through the massive surveillance of a significant number of people in the world.” Ratner added that the activities of the NSA made public by Snowden violate “people’s property rights, the rights of privacy, and the right to associate with people.” He added that the NSA’s dragnet-style surveillance of call records and data from phone and Internet companies violated both international law and the United States Constitution.

Ecuador’s extradition treaty with the United States (PDF) which dates back to 1873, contains a standard clause that exempts “crimes or offenses of a political character” from being subject to the treaty.

“No other country is allowed to interfere with the granting of asylum or the person who is asking for asylum,” said Ratner, who worked closely with Assange on the WikiLeaks founder’s own application for asylum. Any American request for Snowden to be returned would be heard by the Ecuadorian courts and present mostly unprecedented legal—and perhaps also political—questions for them to consider.

It’s uncertain, however, that Snowden will actually end up in Ecuador. Rumors have swirled that he could be travelling to other Latin American countries, particularly Cuba or Venezuela. And his American passport has been revoked, making it much more difficult for him to travel and raising the prospect that he could be deported back to the United States before reaching a safe haven.

‘No other country is allowed to interfere with the granting of asylum or the person who is asking for asylum.’

“The United States has been in touch via diplomatic and law-enforcement channels with countries in the Western Hemisphere through which Snowden might transit or that could serve as final destinations,” a State Department official said, speaking on background. “The U.S. is advising these governments that Snowden is wanted on felony charges, and as such should not be allowed to proceed in any further international travel, other than is necessary to return him to the United States.”

Snowden boarded the plane for Moscow after Hong Kong authorities rejected an extradition request from the United States on the grounds that the request itself did not follow proper procedure. Hong Kong authorities also formally queried the U.S. government about the NSA’s programs to target Chinese and Hong Kong computers as well as the text-message system used by many residents of the city-state. Snowden disclosed these details in interviews he granted the South China Morning Post.

In recent years senior Obama administration officials have called out China for conducting massive hacking operations into U.S. computer networks. The revelations from Snowden provide evidence that such hacking is a two-way street.

“If the United States is tapping every text in Hong Kong, that’s a massive global surveillance system,” Ratner said. “Snowden has done us a huge favor in disclosing not just what the NSA is doing in the United States but all over the world. That is an important global discussion.”

Traditional legal doctrine includes three basic offenses—treason, sedition, and espionage—as covered by the political-offense exemption, which has been a bedrock principle of extradition law for nearly two centuries. These are considered purely political offenses because, in the words of one treatise writer, they “injure no private right whatever but only the public rights of the state.”

While the political-offense exception has often been applied in struggles between revolutionaries and regimes and to shield those on the losing side of an internecine conflict from extradition, there is no precedent for whether or not it applies to a leaker who exposes secretive government programs.

Still, the political-offense exception would presents serious issues for the United States, where the case law has always defined espionage as a pure political offense, according to Jacques Semmelman, an extradition-law expert who is a partner at the firm of Curtis, Mallet-Prevost, Colt & Mosle. If Snowden ends up before a court in Ecuador, which would make the determination of extradition, he "certainly has a argument that United States should be held to its own standards," said Semmelman.