Where Can NSA Leaker Find Asylum?
Edward Snowden says he plans to fight extradition from Hong Kong.
After revealing his identity as the source of the recent disclosures about the U.S. National Security Agency's surveillance programs, former government contractor Edward Snowden is on the lam.
The former Booz Allen Hamilton employee was in hiding for two days after checking out of his Hong Kong hotel room on Monday. He resurfaced on Wednesday, still in Hong Kong, telling a local journalist that he intends to remain in the territory and fight extradition.
Snowden has revealed himself to be the primary source behind last week's stories in the Guardian and the Washington Post detailing extensive monitoring and intelligence collection by the NSA and other arms of the U.S. government.
With the NSA requesting a criminal probe and the Justice Department reportedly closing in on formally charging him, what are Snowden's chances of avoiding American authorities and potential extradition to the United States?
"Leaving the country was definitely a good idea," says Jesselyn Radack, director of national security and human rights at the Government Accountability Project, an organization that represents whistleblowers. The U.S. "has a horrible record with regard to whistleblowers, in terms of charging them under the Espionage Act and trying to put them in jail."
Snowden's label as a whistleblower is open to considerable debate, but no one doubts that had he stayed in the U.S. he would be facing imminent arrest. Many observers, however, are questioning his choice to go to Hong Kong, a semi-autonomous protectorate that is governed by China and has a closely collaborative relationship with the U.S.
Many countries have acted as refuges for American citizens fleeing the reach of U.S. law enforcement, but "there are not a lot of good choices," says Robert Anello, a New York lawyer and international extradition expert. "If you look at cases through the years, Americans who have fled the country have not done very well."
Here are some of Snowden's options and the complications they present:
The semi-autonomous protectorate and the U.S. maintain a bilateral extradition treaty, signed before the 1997 handover of Hong Kong from Britain to China and in force since 1998.
The treaty was invoked last March to extradite Trent Martin, a financial analyst accused of insider trading involving IBM. (Martin holds an Australian passport, and a New York judge later released him on bail, but not before he spent three months in a Hong Kong jail.)
As an American citizen, Snowden is headed for a rocky legal ride in Hong Kong following his decision to remain there. Local officials have emphasized that they will uphold the law if the U.S. requests extradition. And although Snowden has the right to fight the order, his chances are slim, said Douglas McNabb, a lawyer specializing in international criminal defense and extraditions: "Mr. Snowden's public statement—that he has indeed done what the U.S. government will charge him with doing—will certainly make it more difficult to defend him."
China has nominal veto power over Hong Kong's extradition decisions—and no extradition treaty of its own with the U.S.—but so far it has not interfered in these matters. It remains to be seen if the mainland will decide to weigh in on such a high-profile case.
What happens next depends on what Snowden is charged with, says Anello. "China can decide he is a troublesome person and they can just put him on the plane. But in choosing Hong Kong, he must have felt confident that he would be protected by the Chinese government—I'm not sure why. Maybe he knows something we don't?"
Requesting political asylum, an option Snowden is said to be considering, is a way to buy time—if not to ensure freedom. Hong Kong's asylum framework is being overhauled, opening the possibility of an indefinite wait time for asylum applicants until the reform is complete.
Snowden has floated the idea of seeking asylum in Iceland, thanks to the Nordic island's reputation for welcoming free speech advocates and Internet renegades.
Two major complications stand in his way, though. First, Snowden must be in Iceland to apply for asylum, and Reykjavik is more than 20 hours away from Hong Kong. The flight would almost certainly require a stopover in another European country, during which time Snowden would be potentially open to arrest (provided the U.S. had charged Snowden and informed Interpol, an international organization that facilitates police cooperation).
Second, the conservative government currently in power in Iceland is attempting to strengthen ties with the U.S. and may choose to honor the existing bilateral extradition treaty currently in place.
"Iceland would not want to have unfriendly relations with the U.S. government," says Anello. "And Mr. Snowden—I don't think he's important enough for them."
Snowden does have an ally, however, in Icelandic parliamentarian Birgitta Jónsdóttir—the public face of the country's Pirate Party, which supports media freedom—who has said that the party already has a lawyer available to Snowden should he make it to Iceland.
But because the Pirate Party lacks political clout (it holds only 3 of the 63 seats in parliament), Jónsdóttir didn't seem optimistic. If all else fails, she told Mother Jones, "maybe we need to create like a whistleblower freedom boat somewhere to pick up refugees."
The bizarre odyssey of John McAfee, a software pioneer who was wanted in Belize as a person of interest in the murder of his American neighbor, illustrates that Guatemala is a subpar option for an American seeking to evade the reach of the law.
McAfee fled to Guatemala last year as Belize's authorities sought him for questioning. He attempted to seek political asylum, but was instead charged with illegal border crossing. His subsequent imprisonment in a Guatemalan jail put him a hair's breadth away from being extradited back to Belize, avoided only thanks to an apparent heart attack that he later admitted was faked. Guatemala was all too happy to deport him back to the U.S. shortly afterward.
A Kremlin spokesperson told the Russian newspaper Kommersant that Russia would consider asylum for Snowden if he were to formally request it, pointing out that Russia does have a consulate in Hong Kong, unlike Iceland.
The Soviet Union had a long history of granting asylum and citizenship to disgruntled and traitorous Westerners, from Kim Philby to George Blake to NSA defector Victor Norris Hamilton (discovered in 1992 in a Russian psychiatric hospital, where he spent 21 years).
Most recently, French actor Gerard Depardieu, fleeing high taxes in France, was granted Russian citizenship by President Vladimir Putin. He now legally resides in the Russian province of Mordovia and has plans to star in the Chechnya-set revenge flick "Turquoise" alongside Elizabeth Hurley.
Fidel Castro's Cuba became the preferred hideout for American financier Robert Vesco, who fled the U.S. in 1973 after becoming America's most wanted financial criminal. The charges against him included massive business fraud, conspiracy, and later, while he was in exile, drug smuggling.
A fugitive in possession of a large fortune, Vesco settled in Cuba after hopscotching through Costa Rica, the Bahamas, Antigua (where he unsuccessfully attempted to buy an island and make it his own sovereign state), and Nicaragua. When Vesco finally settled in Havana in 1982, the Cuban government refused to extradite him to the U.S. Doing so would be "immoral," Fidel Castro was reported to say.
Yet Vesco's good fortunes ultimately turned. Having run afoul of the Cuban government, he was jailed for fraud and died in a Cuban prison of lung cancer in 2007.
Vesco's case demonstrates that "for an American, you have to be a very wealthy person if you want to avoid U.S. jurisdiction," says extradition expert Anello. "If your fortune runs out, you may find that you are no longer welcome."
WikiLeaks founder Julian Assange has taken refuge in the Ecuadorian Embassy in London since June 2012. After a British court cleared the way for Assange's extradition to Sweden on charges of sexual assault, the Australian sought protection from the government of Ecuadorian President Rafael Correa. Correa granted Assange asylum at the embassy to protect him against extradition "to a third country," a veiled reference to the United States, where Assange is being investigated for his part in WikiLeaks' release of hundreds of thousands of classified documents.
Assange's case is a good example of the complications involved in seeking refuge in a foreign embassy. British authorities have stated that Assange will be arrested if he leaves the embassy, putting him in a permanent state of temporary residence.
The situation won't be resolved anytime soon. At a recent meeting between the Ecuadorian ambassador and a U.K. Foreign Office minister, the ambassador asked, "What are we going to do about the stone in the shoe?" The minister's response: "Not my stone. Not my shoe."
This story was updated on 6/12/13.