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Snowden and the lawlessness of extradition law

Whether Edward Snowden ends up in a U.S.
People hold portraits of former U.S. spy agency contractor Edward Snowden (L) and U.S. Army Private First Class Bradley Manning in front of their faces during a protest in front Brandenburg Gate in Berlin, July 4, 2013. (Photo by Thomas Peter/Reuters)
People hold portraits of former U.S. spy agency contractor Edward Snowden (L) and U.S. Army Private First Class Bradley Manning in front of their faces...

Whether Edward Snowden ends up in a U.S. courtroom, a Venezuelan safe house, or some kind of permanent purgatory in the international transit zone at Moscow’s Sheremetyevo Airport, his case is a stark reminder of a principle that even the most seasoned legal experts often neglect: There is exceedingly little “law” in extradition law.

The “dirty little secret” of extradition is that it’s roughly 90% politics and 10% law, which may be dramatically overstating the role of law in some cases. That is what has made it so difficult for the United States to secure Snowden for trial: In a case that is almost entirely about political considerations, the politics are pretty bad for the United States, which must try to convince countries already suspicious of how we wield our power to turn over an individual who has provided only further evidence to vindicate such suspicions.

Part of why there is so little law in extradition law is tradition: Historically, international law imposed no obligation on sovereign nations to surrender to other countries individuals found within their jurisdiction. Instead, nations generally have the final say over what happens to those within their borders, leaving questions of extradition to the protocols and fortuities of international politics and diplomatic relations.

Two sets of developments have produced small shifts in this understanding: The first is bilateral extradition treaties in which two countries agree to routine exchanges of prisoners when certain preconditions are met. The United States has such treaties with just over half of the countries in the world but they usually include exceptions and carve-outs that make it all-too-easy for politics, again, to supersede law. To take one example, our agreement with Hong Kong (like most of our extradition treaties) allows extradition to be refused when it is sought for “political offenses,” a term that the treaty doesn’t define. Whether a particular offense is “political” is a question deeply enmeshed in—you guessed it—politics.

At the same time, international law has also witnessed the emergence of the principle of aut dedere aut judicare—“extradite or prosecute”—for international crimes, including genocide, crimes against humanity, or other offenses for which the obligation is specifically imposed by treaty. Under this principle, countries have an obligation to honor extradition requests for serious international offenses unless they are willing and able to prosecute the suspects on their own soil. But that tends to be of little utility in cases like Snowden’s, where the charges, though serious, hardly rise to the necessary level.

Law also doesn’t have a lot to say about how prisoners end up in U.S. custody. Under the Ker-Frisbie doctrine—named after the two Supreme Court cases from which it derives—criminal defendants can be prosecuted in U.S. courts regardless of the means by which they came to be within the jurisdiction of the United States. Simply put, under Ker-Frisbie, kidnapping is not a domestic legal bar to prosecution. The only obstacle, again, is politics—whether we’re willing to violate the territory of another country.

But the issue isn’t only about the political willpower the United States needs to acquire Snowden. The politics of international extradition are a two-way street. And that, more than anything, is why Snowden’s case has proven to be so fraught. Even if Hong Kong and Russia don’t want Snowden on their own soil, they’re also hardly in a hurry to hasten his appearance in a U.S. courtroom. And even if Venezuela and Bolivia are willing to grant Snowden asylum and safe haven from U.S. criminal law, he still has to get there, travel that is complicated rather dramatically by the internal political considerations of every country whose airspace must be traversed to get from Moscow to South America, to say nothing of the external pressure apparently being brought to bear on those countries by the U.S. government.

And so, for all the hard questions raised by the Snowden affair, perhaps the most unique issue is whether, at the end of the day, the lawlessness of extradition law is a good thing or not. Only in cases like Snowden’s, where the politics will so dramatically dwarf legal considerations, will this issue truly become relevant. The question then becomes whether we want the answer dictated by case-specific political calculations or by general legal rules that will apply equally regardless of the facts. Reasonable people may well disagree as to how to answer that question; Snowden’s travails present an opportunity to do so that we’d be remiss to pass up.