Edward Snowden’s continuing disclosures of sensitive information are no doubt infuriating the Obama Administration. In short order, the former National Security Agency contractor has revealed: a surveillance program that scooped up millions of records of Americans’ communications; PRISM, a program used by the NSA to access digital data through the servers of major Internet companies; the identities of civilian computer networks in Hong Kong and China targeted by the U.S.; and eavesdropping on foreign governments by the U.S. and the United Kingdom. The Department of Justice is reportedly preparing an indictment against him and will probably reach for its favored tool in leak cases: the Espionage Act. Characterizing Snowden’s actions as espionage is legally possible. But doing so may actually make it difficult for Hong Kong courts to send him back for trial.
Those calling for Snowden’s head are convinced his disclosures harm national security. Others are more skeptical. Are terrorists going to change their behavior because they know about PRISM, or did they in any event presume that their communications were being monitored? Haven’t the Chinese always assumed that their civilian networks were being hacked, as they now say? Did diplomats really think that an Internet facility set up by the U.K. was free from spyware? Even as these issues are debated, Snowden continues to portray himself as a whistleblower for the world. He argues that his disclosures have brought no benefit to him, but will instead “help the public of the world, regardless of whether that public is American, European, or Asian.”
While these matters dominate the public discourse, they make no difference to the government’s ability to bring an Espionage Act prosecution. Recent whistleblowers have been charged under a section of the law that only requires the government to show that Snowden “willfully” communicated information to someone not authorized to receive it. At the urging of the Obama Administration, several courts have held that there is no requirement that the accused intended to cause harm to the United States or benefit another country. Nor is it necessary that the disclosures actually caused harm. It is enough if the accused had “reason to believe” that disclosures could injure the U.S. or aid a foreign nation.
But relying on the Espionage Act in Snowden’s case could backfire. The 1996 extradition treaty between the United States and Hong Kong contains an exception for political offenses, which Snowden will almost certainly invoke.
Espionage is the archetypal political offense—it is perpetrated against the state, not private persons. This position has long been accepted by American courts, as well as those of other countries. In a famous Cold War-era case, an American, Dr. Robert Soblen, who was convicted under the Espionage Act for spying for the Soviet Union, jumped bail and ended up in the U.K. He could not be extradited because the relevant treaty exempted political crimes. In April 2013, the Department of Justice announced that the Swedish government would not extradite an American accused of spying for Cuba. The reason: “Espionage is considered a ‘political offense’ that, therefore, falls outside the scope of Sweden’s extradition treaty.” Hong Kong courts may similarly refuse an extradition request if the charges against Snowden are framed around the Espionage Act.
China, which regulates Hong Kong’s foreign relations under the “one country, two systems” policy, will likely play a critical role. Hong Kong courts may punt to the Chinese government the question whether Snowden is being charged with a political offense. China could also intervene informally. In 2008, for example, an Iranian operative whom the United States was seeking to extradite from Hong Kong for attempting to purchase embargoed military equipment was suddenly released. This action was reportedly taken at the behest of Chinese authorities. Statements from Chinese sources suggest that they do not want to turn this into a “political” case. The U.S. should likewise stay away from politically tinged offenses like espionage.
The Obama Administration’s decision to use the legal process of extradition, rather than less formal means, to secure Snowden’s return is the correct one. Now the Administration should make a second wise choice and refrain from charging him under the Espionage Act. This doesn’t mean that the U.S. can’t seek to extradite Snowden for a host of other common crimes—unauthorized retention of classified documents or misuse of government computers, for example. These may not carry the perceived weight of an espionage charge, and may even result in a lighter sentence. But restraint could save the administration a great deal of legal and political uncertainty and would also reassure those at home who believe it has gone too far in its pursuit of whistleblowers.