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13 Rich. J. Global L. & Bus. 49 (2014-2015)
Hong Kong's Failure to Extradite Edward Snowden: More than Just a Technical Defect

handle is hein.journals/rjnglbs13 and id is 57 raw text is: HONG KONG'S FAILURE TO EXTRADITE EDWARD SNOWDEN: MORE THAN JUST A TECHNICAL DEFECT By: Mark D. Kielsgard and Ken Gee-Kin Ip As the Edward Snowden case takes legs and exhibits all the earmarks of official misconduct and scandal, the U.S. government continues efforts aimed at extraditing this whistleblower, characterizing him as a traitor and do- ing damage control in the NSA. Part of this strategy in- cludes intimidating those sovereign states that refuse to coooperate in returning Snowden to face trial. Yet, the le- gal basis for these U.S. efforts is highly contentious. If Snowden had stayed in Hong Kong and fought extradi- tion, in all likelihood he would have prevailed. Thus, the U.S. is left with not credible basis for complaint, and its retaliatory diplomatic measures against other states are without merit. This essay reviews Snowden's defenses under the double criminaltiy principle and the political offense exception acccording to Hong Kong law, applying the British incidence standard, and casts light on a self- defeating U.S. Policy. On June 14, 2013, a criminal complaint was lodged by the United States against Edward Snowden for theft of government prop- erty and espionage (unauthorised communication of national defense information and wilful communication of classified intelligence to an unauthorised person).1 Snowden had fled to Hong Kong S.A.R. The U.S. government requested Snowden's extradition,2 but Hong Kong al- lowed him to leave for Russia.3 The Hong Kong government justified its actions on several grounds, including technical defects in the legal 1 Criminal Complaint, United States v. Snowden, No. 1:13 CR 265, (E.D. Va. June 14, 2013), available at http://www2.gwu.edu/-nsarchiv/NSAEBB/NSAEBB436/ docs/EBB-074.pdf.; each count carries a maximum of ten years imprisonment upon conviction, 18 U.S.C. §§ 641 (Chapter 31 - Embezzlement and Theft), 793(d), and 798(a)(3) (Chapter 37 - Espionage and Censorship) (2006). 2 Lana Lam & Tony Cheung, US Files Espionage Charges Against Snowden, Calls for His Arrest in Hong Kong, SOUTH CHINA MORNING POST, June 22, 2013, http:// www.scmp.com/news/world/article/1266483/us-charges-snowden-espionage-steal- ing-government-property?page=all. 3 Edward Snowden Leaves Hong Kong on Moscow Flight, BBC NEWS CHINA, June 23, 2013, http://www.bbc.co.uk/news/world-asia-china-23019414.