Whistleblowing about government surveillance: political offense or serious crime?

[cross-posted from http://cyberlaw.stanford.edu/blog] It seems like the world has been turned upside down when a US citizen flees to China seeking political asylum.  And yet Edward Snowden is apparently hiding out in a secret location in Hong Kong after revealing that he is responsible for the leaked information on the US government’s PRISM program of surveillance.  He explains his choice of refuge as being based on Hong Kong’s reputation for defending freedom of speech.  He is also apparently considering Iceland as another potential refuge.  But if the US chooses to prosecute him, will he be able to avoid being sent home to face charges?  A key part of the answer lies in whether his leaking of official secrets qualifies as a ‘political offense’.

The two parallel processes by which Edward Snowden could legally be returned to the US against his will are extradition or immigration removal.  Extradition is the government-to-government process for transferring an individual to another country to face criminal prosecution.  Immigration removal (including deportation) occurs when a non-citizen is no longer legally entitled to remain in a country and is forced to leave.  Often, the individual returns to their country of citizenship, but this is not always the case.  Both of these processes have protections under international law when the person is being sought for prosecution of a ‘political offense’.

Protections for ‘political criminals’

The first thing to note about the protection under refugee law is that in order to get to the point of considering whether Snowden’s alleged offence is ‘political’, he would first need to demonstrate that he is entitled to protection under the Convention on the Status of Refugees.  This requires that there be a ‘wellfounded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion’.  As other commentators have already noted, it may be a tall order to show that Snowden is being persecuted (rather than just prosecuted) and that this ‘persecution’ is because of his membership of a particular group or political opinion.  If, and only if, he can show that he meets this test under the Convention on the Status of Refugees, article 1(F)(b) of the Convention would mean that Snowden could not be denied refugee status on the basis of his alleged crime IF it is a ‘political crime’.

If Snowden does not qualify for protection as a refugee, he could be subject to extradition under the extradition treaty between the US and Hong Kong.  The extradition treaty protects ‘political criminals’ by allowing the requested country to refuse to extradite an individual if the alleged offence is a ‘political offence’.  It is important to note that this is entirely discretionary; it would be up to Hong Kong as to whether it considers the offense to be ‘political’ and, if it does, whether it wants to refuse extradition on that basis.  Extradition can be a very sensitive matter between countries and decisions about whether or not to invoke a discretionary provision in a treaty fall into the realm of foreign relations, not black letter law.

But what exactly is a ‘political offense’?

The protections under extradition and refugee law share some terminology and there is definitely an overlap.  However, international human rights lawyers can pass many an hour debating the exact nature of the relationship and reasonable minds could certainly differ about the scope of the protections.

Extradition law

It is generally accepted in extradition law that political offenses can be either absolute (a purely political crime such as treason) or relative (a common crime that is given a political flavor by its context or purpose).  The challenge is to differentiate common crimes from ‘relative political crimes’.  There are two key approaches that can be identified from the cases:  the incidence test; and the predominance test.  Under the ‘incidence’ test, the act must be ‘done in furtherance of, done with the intention of assistance, as a sort of overt act in the course of acting in a political matter, a political rising, or a dispute between two parties in the state as to which is to have the government in its hands’ (as defined in the 1891 case of Re Castioni).  Snowden would have a tough time claiming that his act of leaking information was done as part of a political uprising or dispute about government.  He would therefore need to argue that the ‘predominance test’ should apply.

The predominance test weighs the common law criminal elements of the crime against the political elements of the crime in order to determine whether it is predominantly political.  Factors to consider in making this assessment include the existence of an underlying political struggle, the offender’s motive, the nature of the act and the efficacy of the act in achieving its goals.  Snowden would have some good arguments to make using this approach.  He asserts that he was motivated by the belief that the government’s surveillance program breaches the US Constitution and undermines important democratic rights.  There is no violence or direct loss of life caused by his actions but they have been highly effective in generating political debate and public scrutiny.  He would certainly have good case to make that his acts are predominantly political and therefore Hong Kong should not be obliged to extradite him to the US.

Refugee law

There is no definition of ‘political crime’ in the Refugee Convention.  The UN Office of the High Commissioner for Refugees’ guidelines suggest that the following factors should be taken into account:

  1. the crime’s ‘nature and purpose ie whether it has been committed out of genuine political motives and not merely for personal reasons or gain’;
  2. whether there is ‘a close and direct causal link between the crime committed and its alleged political purpose and object’; and
  3. whether the political element of the offence ‘outweighs its common-law character’, which would not be the case ‘if the acts committed are grossly out of proportion to the alleged objective’.

These factors are similar to the factors that are considered in extradition in the context of the incidence test and the proportionality test.  When applying article 1(F)(b), courts have drawn heavily on extradition jurisprudence.

So what does this all actually mean?

In a politically-charged situation like this, the legal framework is important but the outcome will likely be determined by political pressures and careful diplomatic footwork.  The main take-homes of this discussion are that it is not a foregone conclusion that Snowden’s acts will be considered ‘political’, nor that this will prevent him from being either extradited or deported to the US.

Extradition is a very formal process, which can be slow and costly.  Moreover, it can put the two countries in a very awkward situation.  Seeking Snowden’s extradition from Hong Kong would raise the possibility that Hong Kong would have the discretion to refuse on the basis that it is a political offense.  This kind of decision can have a damaging effect on the broader bilateral relationship and both countries would likely prefer to avoid being put in this situation.

Since Snowden is a US citizen, the government may prefer to find a solution through immigration channels rather than seek extradition.  This would mean that Snowden would have to meet the more difficult test of qualifying as a ‘refugee’ before Hong Kong would need to make any decisions about ‘political offenses’.  While this is perhaps an arena in which the countries would feel more comfortable, the case of Julian Assange shows that it certainly does not necessarily remove all controversy.  Whatever happens, we can be sure that it will not be an easy case and the world will be watching very closely.