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Despite U.S. Pressure, Countries Have ‘Substantial Discretion’ on Extradition

June 24, 2013 at 12:00 AM EDT
NSA whistleblower Edward Snowden is on the run, and has thus far avoided being extradited to the United States. Margaret Warner talks to David Laufman, former federal prosecutor and Justice Department official, about the international legal issues surrounding Snowden's fugitive travels.
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MARGARET WARNER: For more on the legal issues surrounding Snowden’s fugitive travels, I’m joined by David Laufman, a former Department of Justice prosecutor and CIA analyst. He now works in private practice.

And, Mr. Laufman, welcome.

DAVID LAUFMAN, Former Justice Department Official: Thank you.

MARGARET WARNER: So, explain how this could happen. I mean, here’s a guy that the United States has been trying to get for 10 days. How was he able to leave Hong Kong, even after, according to the White House, Hong Kong had been informed about the — quote — “status” of this travel documents, in other words, that they were no longer valid?

DAVID LAUFMAN: Well, there’s a few possibilities.

One is that Hong Kong permitted him to travel on his U.S. passport, notwithstanding the fact that the U.S. told Hong Kong that it had revoked the passport. Another possibility is that he was issued some kind of travel document, either a laissez-passer or a refugee document that enabled him to get on a plane from Hong Kong to Moscow.

MARGARET WARNER: Now, that is in fact what WikiLeaks, who has jumped into this case, and is assisting him, said, that he got some sort of a refugee travel document issued by Ecuador. What is that?

DAVID LAUFMAN: It’s a document recognized in international law that a third country can issue to someone who is either a stateless person or who has been found to have some refugee status to enable them to get to someplace where they can be in a protected status.

MARGARET WARNER: So, according — The New York Times had an interesting story today about how Hong Kong actually facilitated his departure, gave him security on the way to the airport, knew full well he was leaving, was very happy he was leaving.

Despite the fact that the U.S. had made an extradition request, explain the international law here. I mean, was China violating this treaty by doing this? How binding are these treaties?

DAVID LAUFMAN: Well, the treaties are binding. The question is, does the treaty apply by its terms? So were the offenses Mr. Snowden was charged with criminally in the United States extraditable under the U.S.-Hong Kong treaty is sort of the first level of analysis.

And it remains unclear as to whether espionage-related offenses having to do with disclosing classified information or the theft of classified information were crimes under Hong Kong law. Only if they were crimes under Hong Kong law would Hong Kong have been under a legal obligation under the treaty to extradite him.

And there’s also an exception under that treaty that exists under other U.S. extradition treaties, like, for example, with Ecuador, where if the character and the conduct is of a political nature, then the sending country, Hong Kong, for example, is excused from its obligation to extradite.

MARGARET WARNER: And, in fact, aren’t there a lot of cases in history in which fugitives, despite having been indicted in their home country, despite extradition treaties, live on the lam for decades overseas?

DAVID LAUFMAN: Well, there have been cases like that, including in the context of an espionage case, the most prominent of which probably was a case involving a man named Philip Agee in the early 1980s, who left the CIA, publicly disclosed the names of undercover CIA officers and agents, went on the lam overseas.

The State Department revoked his passport. He then went on an odyssey of existence in several countries, culminating ultimately in his settlement in Cuba, where he died several years ago.

MARGARET WARNER: But did he always go to countries that had bad relations with the U.S. essentially?

DAVID LAUFMAN: Actually, in his case, he was in West Germany for a period of time, I believe.

But ultimately countries have substantial discretion as to whether to extradite, even if there are treaties in effect, because of the sovereignty associated with their own host government law enforcement.

MARGARET WARNER: So now the administration, the president, the secretary of state are putting big pressure on the Russians to expel him, make sure he can only come back to the United States. What leverage does the United States have in that case?

DAVID LAUFMAN: The only real leverage we have in the Russian government is political suasion.

There is no extradition treaty between the United States and Russia. So, we are bringing to bear the full force of our diplomatic pressure with the Russian government, law enforcement contacts, diplomatic contacts, intelligence contacts, to persuade the Russians that it’s in the interest of U.S.-Russian relations for the Russians to detain him and deport him to the United States under a pending U.S. arrest warrant.

MARGARET WARNER: And, in fact, the White House spokesman made a big point today about reciprocity, that there have been cases in which the U.S. has honored Russian — is that often an operative principle?

DAVID LAUFMAN: It can be because there have been times when, you know, we may receiving Russian extradition requests in cases that we may think are on the margins. And we may believe, in the interest of the U.S.-Russian relationships, to make the extradition.

MARGARET WARNER: What is at stake for the United States in this in apprehending him?

DAVID LAUFMAN: Well, I think, from the Obama administration’s standpoint, the most critical thing at stake is the potential disclosure of additional classified information by Mr. Snowden, who reportedly remains in possession of three or four laptop computers and terabytes of data that he obtained from his access to classified system.

So, from the standpoint of preventing the occurrence of any further harm, the most important urgency is to take him off the street, so to speak, and deprive him of the ability to further disclose classified information, secondarily to bring him back to the United States and bring him to justice.

MARGARET WARNER: But, of course, it’s not known whether — I mean, if someone is this good a computer hacker, he might well have set up some backdoor. I mean, he well have conveyed the information, if not to someone, but in a form that if he’s apprehended — we really don’t much about this, do we?

DAVID LAUFMAN: We have no idea what he has done with the, you know, classified information he’s in possession of, the digital copies of information. Anything could have happened over the next several — the last several days.

MARGARET WARNER: Now, if the Russians let him go, the countries he’s mentioned wanting to go to are Ecuador, Cuba and Venezuela. Again, the U.S. has put Latin American countries are notice, you shouldn’t accept him.

DAVID LAUFMAN: Right.

MARGARET WARNER: Is the same kind of — the same caveats apply, that really, whatever the treaties may be, these are political decisions?

DAVID LAUFMAN: Well, there’s always a political element to whether the host country extradites. Sometimes, the political element lags behind the legal piece. In this case, politics is going to be driving legal judgments to a large extent.

If he goes to Ecuador, there’s a U.S. extradition treaty with Ecuador. It requires that whatever he was charged with here also be a crime in Ecuador. There’s this political offense exception I described before. And then there’s the whole politics overlaying the U.S.-Ecuador relationship, which is fraught with tension over U.S. involvement in Latin America.

MARGARET WARNER: Not to mention Cuba and Venezuela.

Well, David Laufman, thank you so much.

DAVID LAUFMAN: Thank you.