June 24 (Bloomberg) -- Hong Kong’s decision to let Edward Snowden leave despite a U.S. warrant for his arrest spared the city a legal battle that would have left it trapped between the competing interests of Chinese and American leaders.
In allowing the ex-National Security Agency contractor to board a flight to Moscow yesterday, Hong Kong no longer has to weigh American extradition demands against signs China didn’t want the city to give up Snowden, who exposed programs in which he said the U.S. monitored its own citizens and millions of Chinese text messages. The consequences include U.S. ire over the move and cast a spotlight on the city’s respect for legal procedures.
Hong Kong’s government yesterday found “no legal basis” to stop Snowden, less than two weeks after Chief Executive Leung Chun-ying said any extradition request would be handled according to the law. American senators decried the move and a Justice Department official said it raised concerns for the U.S.
“It’s a neat option from the Hong Kong government’s point of view but there are also consequences,” Willy Wo-Lap Lam, a politics professor at the Chinese University of Hong Kong, said by phone. “The decision risks being judged as a pretext and not respecting the rule of law and also not respecting the spirit of the extradition agreement with the U.S.”
Hong Kong said the U.S. arrest warrant didn’t meet legal requirements. The Justice official, asking not to be named due to the sensitivity of the issue, said U.S. authorities believed the documents provided for the extradition request met the requirements of the agreement between the two countries. Discussions between the two countries over how and why the incident occurred will continue, the official said.
Snowden, 30, landed in Moscow yesterday evening. He requested political asylum in Ecuador, that nation’s foreign minister, Ricardo Patino Aroca, said in a posting on Twitter. While Snowden’s revelations sparked espionage charges in the U.S., China’s state media said an extradition would tarnish Hong Kong and highlighted that his actions were applauded worldwide.
Hong Kong’s dilemma arose in part from the “one country-two systems” arrangement under which it has its own legal system even as China retains ultimate sovereignty and dictates its foreign policy. At the same time, it has an extradition treaty with the U.S. that dates back to 1996, the year before it returned to Chinese control.
“China clearly had a role in this, in my view -- I don’t think this was just Hong Kong without Chinese acquiescence,” Dianne Feinstein, a Democratic senator from California and chair of the Senate Intelligence Committee, said in an interview on CBS’s “Face the Nation” yesterday.
Charles Schumer of New York, the third-ranked Democrat in the Senate, said “very disappointing what Hong Kong has done,” on CNN’s “State of the Union” program. “I have a feeling the hand of Beijing was involved.”
Hong Kong had been asked to detain Snowden, charged with exposing a secret government electronic-surveillance program, while the extradition request was being completed, according to two U.S. officials familiar with the matter. Snowden’s leaks revealed how the NSA collects data under a U.S. government program code-named PRISM.
“It is a very low threshold test to get the provisional warrant in place,” Simon Young, a law professor at the University of Hong Kong, said in an e-mail. “Only two requirements are needed, evidence that the person is in Hong Kong -- no doubt here -- and that the person is wanted for prosecution in the U.S. -- again, another no brainer.”
Snowden, who fled to Hong Kong on May 20, said private text messages of millions of Chinese mobile-phone company subscribers have been intercepted by the NSA, the South China Morning Post reported yesterday, citing data provided by Snowden in a June 12 interview.
The agency also attacked Tsinghua University’s server and accessed computers at the Hong Kong headquarters of Pacnet Ltd., which owns one of the most extensive fiber-optic submarine cable networks in the region, the Post cited Snowden as saying. China had filed a diplomatic protest to the U.S., Foreign Ministry spokeswoman Hua Chunying said in a statement on the ministry’s website yesterday.
NSA Director General Keith B. Alexander, asked in an interview on ABC’s “This Week” whether he was confident the U.S. hadn’t broken Hong Kong laws, said “I’m confident that we’re following the laws that our country has in doing what we do. We have a set of laws that guide how NSA acts. We follow those laws.”
Sealed charges of theft of government property, unauthorized communication of national defense information and willful communication of classified communications intelligence information to an unauthorized person by the U.S. were filed against Snowden on June 14. They were unsealed June 21.
“To allow him out of the country one or two days after extradition papers were served is not good faith, and for some reason Hong Kong and China wanted to let Snowden get away and this is a direct slap at the U.S.,” Representative Peter King, a New York Republican who serves on both the House Intelligence and Homeland Security committees, said in an interview on Bloomberg TV today.
China’s official Xinhua News Agency noted how Snowden’s revelations came soon after U.S. President Barack Obama raised allegations of Chinese cyber-attacks during a meeting with President Xi Jinping in June.
“These, along with previous allegations, are clearly troubling signs,” the June 22 Xinhua commentary. “They demonstrate that the United States, which has long been trying to play innocent as a victim of cyber-attacks, has turned out to be the biggest villain in our age.”
That came after the state-run Global Times newspaper had said “extraditing Snowden back to the U.S. would not only be a betrayal of Snowden’s trust, but a disappointment for expectations around the world.”
Under Hong Kong law, the city’s chief executive decides whether to act on a surrender request, according to Kevin Egan, a former Hong Kong prosecutor who has since worked as a defense lawyer on extradition cases.
“The chief executive has to and will consult China as to whether its foreign or defense affairs are affected by the request,” Egan said.
In its official statement on its decision to allow Snowden to leave, the Hong Kong government said it had queried the U.S. over Snowden’s hacking claims. The statement said Hong Kong will “continue to follow up on the matter so as to protect the legal rights of the people of Hong Kong.”
That mention was “included deliberately as a pre-emptive move to guard against recriminations from the U.S.,” Lam said.
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