Snowden, Thulasi force US into legal extradition quagmire

[TamilNet, Monday, 24 June 2013, 00:04 GMT]
In 2008, the United States Government requested the extradition of Eezham Tamil defendant, Thulasitharan Santhirarajah, from Australia for an alleged offense in providing material support to a "terrorist" organization, and now the US is requesting, or will request, the extradition of Edward J Snowden from Hong Kong, and other likely destinations of Snowden, for alleged offenses of “unauthorized communication of national defense information” and “willful communication of classified communications intelligence information to an unauthorized person." In the Thulasitharan case, the Melbourne Court determined that the charged offenses are "either pure or relative political offenses," and in the high-profile Snowden case, legal experts acknowledge that U.S. will likely meet with the same fate for similar reasons.

The U.S. Justice Department's complaint in the Eastern District Court of Virginia contained three charges that the defendant Snowden violated the provisions of:
  • 18 U.S.C. 641 Theft of Government Property
  • 18 U.S.C. 793(d) Unauthorized Communication of National Defense information
  • 18 U.S.C. 798(a)(3) Willfull Communication of Classified Communications Intelligence Information to Unauthorized Person
Edward J Snowden
Edward J Snowden
While legal experts believe Snowden admitted to the disclosure of secret information, and therefore, have lost any legal defense against the violations, other factors, domestic and international, might frustrate the US Government interests in prosecuting Snowden.

Locally, while NSA snooping has been deemed 'legal,' scholars believe that the NSA activities are likely unconstitutional and that the US Executive overreach has dangerously compromised "expectations of privacy." Snowden episode has triggered substantial debate in the media, making the issue an embarrassing political setback for the current US administration, giving the matter a political character.

In Santhirarajah v. Attorney General (Australia) the court determined that the AG erred in several legal issues, the two pertinent to Snowden case are that:
    On the political offense exception issue the four offenses charged by the US are "either pure or relative" political offenses, and therefore, the AG violated the exception clause in approving the extradition

    On the torture issue the AG erred in forming her satisfaction that the applicant will not be tortured. The court further added that the AG, in this issue, misunderstood that the obligation of the US was different from that of Australia under Article 3 of the UN Convention against Torture (CAT).
Historically, in jurisprudence, there has been tension between positive law, i.e., written law of a rules, statutes, regulations, and natural law, i.e., moral, ethical principles inherent in human nature. Snowden and Santhirarajah's actions likely fall into the space which can be reasonably characterized as morally defensible, and prosecuting individuals for such alleged crimes, while legal, is considered to fall under the political exception regime. While U.S. administration will argue the legality of its charges under positive law, Snowden may triumph with his increasing world-wide support underpinned by the natural law claims.

"There is a bar under Hong Kong's extradition law to extradition for an offense that is of a political character, [where] the prosecution is thought not just to be the application of the criminal law, but to crush that person or to crush their dissent," a Hong Kong based immigration lawyer, Mr Parker, told the BBC.

Another hurdle to extradition is related to the "well-founded fear of persecution," a doctrine that evolved from the asylum cases that help determine non-refoulement.

In Thulasitharan's case, the Melbourne court believed that the AG erred in her judgement in determining that the defendant will not face torture if he was extradited.

Similarly, a handover could also be halted if Mr Snowden was believed to be in danger of receiving inhumane treatment in the US, according to Mr Parker.

The treatment of Bradley Manning, the Army private who was charged for sending war-related and other classified U.S. documents to WikiLeaks, while in solitary confinement, which was described by the UN special rapporteur on torture as "cruel, inhuman and degrading", may bolster Snowden's chances of avoiding a US trial altogether by fighting extradition.

"In terms of seeking asylum, Snowden would definitely qualify in terms of fear of persecution," a legal expert said. "Bradley Manning would be exhibit A in that argument."

International media reported that, Snowden, after flying to Moscow, has sought asylum in Ecuador, and is speculated to be travelling to Ecuador via Cuba soon. Wikileaks staff and legal counsel are said to be assisting Snowden, according to reports.

Meanwhile, US officials watching Mr Snowden’s movements from afar, "expressed private and public fury with both Russia and Hong Kong," and also cancelled Snowden's passport.

Related Articles:
09.09.12   Australia deals legal setback to US on extradition cases
01.09.12   Australian Court denies US extradition request
31.07.12   Australia's extradition of Tamil to US violates due process,..

External Links:
WP:  U.S. charges Snowden with espionage
BLR: The Twilight Zone of Positive and Natural Law
CSM: Harsh prison treatment for Manning
Cornell: 18 U.S.C. 641
HK: Fugitive Offenders Order (US and Hong Kong)
WP: NSA surveillance may be legal — but it’s unconstitutional
Economist:  Cost-benefit analysis and state secrecy: Foiled plots and bathtub falls
DT: Edward Snowden seeks Ecuador asylum
BBC: Sheltering Snowden
Cornell: 18 U.S.C. 793
Guardian: Catch-all Espionage Act would leave Snowden with little room for defence
Cornell: 18 U.S.C. 798
NYT: U.S. Petitions for Extradition in N.S.A. Case


Latest 15 Reports
10.07.20 00:05   Photo
SL Police harasses Shivajilingam at 25th Remembrance of Navaali massacre in Jaffna
09.07.20 09:33  
SL Navy brutally assaults Tamil fishers in Mullaith-theevu
08.07.20 16:33   Photo
Sinhala colonists encroach into Kangku-veali, Mean-kamam reservoirs in Trincomalee
07.07.20 19:36   Photo
Colombo schemes to expand ilmenite scooping into North from Pulmoaddai in East
06.07.20 19:06  
Colombo transfers Tamil Political Prisoners to notorious Anuradhapura prison
05.07.20 23:06   Photo
University students, Shivajilingam brave SL harassment to commemorate fallen Black Tigers
04.07.20 22:28   Photo
Monk commanding Sinhala-Buddhicisation of North-East threatens Tamil villagers in Batticaloa
03.07.20 19:28   Photo
After Naavat-kuzhi, Colombo targets Poonakari for Sinhala colonisation across Jaffna lagoon
02.07.20 22:26  
Colombo imposes restrictions on Tamil valour related symbolism in schools of North
01.07.20 13:22  
New secret unit among four SL military and police squads competing to arrest Tamil youth in North
30.06.20 22:10  
Tamils blocked from accessing properties near SL Navy training base in Champoor, Trincomalee
29.06.20 23:29   Photo
Moragoda advising Gotabaya prompts Sinhala parties to scrap Provincial Councils
28.06.20 22:06  
India privileging BRIC/RIC over Quad ‘discordant’, says former US top diplomat
27.06.20 22:11  
Indo-Pacific expert wants US to seek opportunities in ‘Sri Lanka’
26.06.20 21:24  
Russia steps up influence on New Delhi to uphold “multilateralism” against US “rules-based order”
Find this article at: