Edward Snowden, whose disclosure of U.S. electronic surveillance operations led to his being charged with espionage, faces the same question confronting earlier fugitives from American justice: where to run?
In avoiding U.S. efforts to repatriate him, Snowden, 30, a former National Security Agency contract worker, joins the ranks of earlier suspects who fled U.S. charges including commodities trader Marc Rich, Comverse Technology Inc. Chief Executive Officer Jacob “Kobi” Alexander and financier Robert Vesco. In many cases, the choice of where to run isn’t about the existence of a treaty so much as the crime and whether it fits a loophole.
“The U.S. has extradition agreements, some of which are 100 years old and never been amended, with virtually every country on earth,” said Chicago lawyer Chris Gair, who in 2007 defeated a Polish government attempt to extradite a man from the U.S. accused of helping to plot the murder of a police official. “The existence of a treaty is a formal requirement” for extradition, he said, “but there’s a lot of ways to avoid it.”
In choosing Ecuador, Snowden aligned himself with Julian Assange, the WikiLeaks founder who’s been sheltered in that nation’s London embassy for more than a year. Assange, whose group is assisting Snowden, has been battling extradition to Sweden where he’s wanted for questioning on rape and sexual molestation allegations.
“The government of Ecuador has received an asylum request,” Foreign Minister Ricardo Patino Aroca said of Snowden yesterday in a Twitter.com posting, adding a leg to a global odyssey that saw Snowden depart Hong Kong in the wake of a U.S. extradition request and later land in Moscow.
Ecuador has an extradition treaty with the U.S., as does Cuba, where Vesco -- sought by the U.S. for allegedly cheating investors out of more than $200 million -- lived until his reported death in 2008.
Rich, accused of evading more than $48 million in taxes and facing prosecution for allegedly violating U.S. sanctions by trading oil with Iran, was living in Switzerland when he was pardoned by President Bill Clinton in 2001.
Namibia, despite having no treaty with the U.S., according to the State Department, considered Alexander’s extradition to face 35 criminal counts related to securities fraud, including stock-option backdating.
While Alexander won an appeal of a Namibian court ruling in 2010, he nevertheless later agreed to pay $53.6 million to settle a Securities and Exchange Commission probe of allegations that he led an options backdating scheme at Comverse.
All such treaties proceed from the premise of “dual criminality,” Gair and New York criminal defense attorney Douglas T. Burns said. The concept requires that the crime for which the requesting country seeks extradition is also a crime in the country to which the request is made.
“The conduct has to be criminalized in both places,” said Burns, a former federal prosecutor.
Snowden’s departure from Hong Kong came two days after the U.S. revealed charges against him in Alexandria, Virginia federal court. The charges include government theft and espionage for Snowden’s role in disclosing the classified details of a phone records collection program, as well as an Internet monitoring program that targeted foreign-based individuals suspected of terrorism.
He faces as many as 10 years in prison on the theft count and 10 years on each of two espionage charges.
Ecuador’s treaty with the U.S., first signed in 1872, lists crimes for which extradition can be sought, including murder, rape, arson, piracy, mutiny, burglary, robbery, forgery, counterfeiting and embezzlement of public property.
The accord , however, contains an exception for “crimes or offenses of a political character.”
American courts would interpret this to cover only things like criticizing the government, Gair said.
“However the Ecuadorean courts are free to interpret this in their own way and could conceivably see” Snowden’s case as one of “a political crime,” especially since espionage isn’t among the enumerated offenses for which extradition is possible under the treaty, Gair said.
It’s probably for that reason that prosecutors also charged Snowden with theft of government property, said Burns, the New York-based attorney.
Snowden asked WikiLeaks to use its legal expertise and experience to secure his safety, the group said in a statement posted on its website. His asylum request will be “formally processed” once he arrives in the South American nation of about 15.4 million people, the organization said.
The federal government will pursue him, Democratic U.S. Senator Dianne Feinstein of California said yesterday.
Snowden’s U.S. passport has been revoked, according to a U.S. official who spoke on condition of anonymity. Jen Psaki, a State Department spokeswoman, declined to comment specifically on Snowden’s passport, citing privacy protections.
“In all of our extradition treaties, the secretary of state has authority to refuse extradition, even if all the requirements are met,” Gair said. “I’m sure that’s how all the other countries are. If he can secrete himself in a country that doesn’t want to play ball with the U.S. or seeks to hurt us, the U.S. will have a hell of a time trying to get him back.”
The case is U.S. v Snowden, 13-cr-265, U.S. District Court, Eastern District of Virginia (Alexandria).