Political Offenses in Extradition Law and the Case of Edward Snowden

In an increasingly globalized world, international law is playing a larger role in mediating transnational criminal justice. Extradition law, in particular, presents a venue through which states can negotiate the transfer of criminals and enter into treaties that provide for reciprocity and legal structure. This essay will engage with a brief history of general extradition law and a comparative approach to the area of political offenses. Then it will introduce the case of Edward Snowden, a former technical contractor for the United States government and whistle-blower who leaked classified information from the National Security Agency to the public in 2013, to show the complications of the political offense exception in extradition law.

First, a logistical note. Some legal scholars classify any exchange of criminals as extradition whether that exchange occurs on an international or inter-state level. This lack of clarity, however, presents some difficulty to readers who are unaware of the difference. A term that more precisely describes the transfer of fugitives from one state to another in a federal system would be interstate rendition, not international extradition. International extradition is akin to a contract between two parties (being the nations), with a subject matter (being the delivery of the criminal) and a mutual consideration (being the repression of crime).[1] To understand how the current international extradition regime developed, a short overview of extradition history would be useful. The concept of extradition can be traced back to 1258 B.C., when the ancient Egyptians and Hittites entered into the first known extradition agreement. Ancient Greek and Roman city-states also used extradition agreements, relying on noxae deditio, the notion that “[a] state that harbored a foreign criminal was considered to be poisoned or tainted by the presence of that individual, and could be held liable for that criminal’s actions.”[2] Later in history, during the early modern period, a global legal order ius commune provided early principles for transnational criminal justice such as compensatory prosecution and aut dedere aut judiciare (the legal obligation to extradite).[3]

Under The Law of Nations, which is a work of political philosophy published in 1758 that modernized international law, sovereign states should ideally refuse asylum to accused criminals pursued by another state. Today, extradition represents an avenue through which criminals can be prosecuted across boundaries. The process ensures “that fugitives from justice shall not, by flight from the jurisdiction of the laws which they have violated, be protected against arrest in the country to which they have fled, and that, upon proper evidence of their guilt, they shall be returned to that jurisdiction for trial and punishment.”[4] With globalization and advances in communication methods and transportation technology,[5] modern extradition often results from “mutual comity and convenience,” but requires a special compact, such as a treaty, to assert the weight of international law.[6] For instance, courts in the United States have ruled unanimously that there is no obligation to arrest, detain, or deliver[7] a criminal unless treaty stipulations exist.[8] However, among modern countries, the ideas of international law and moral rights have “fictitious dignity” because these principles are practically unenforceable.[9]

Governments comply with extradition treaties for a variety of reasons even though international law is not practically binding or mandatory; governments which have binding compacts would experience political repercussions and strains in international relations if the compact were not honored. There are several theories that attempt to explain why governments enforce extradition. Two main competing paradigms for interpreting international relations are divided into different schools of thought: Machiavellian and Grotian.[10] For Machiavellians, a cooperative international community bound by common values, rules, and institutions does not exist; instead, states are motivated by self-interest. There are no moral rules restraining state interactions and there is no universal concept of crime.[11] The pessimistic, Machiavellian framework discounts the “good faith” paradigm for enforcing international regulations and so governments operating under this framework would discount the legitimacy of extradition procedure altogether. For Grotians, however, all humans share a concern for the suppression of crime based on civitas maxima, which is the idea that all humans are bound by a sort of universal social contract. Under this theory, sovereign nations surrender fugitive criminals through extradition because they share the “common interest of civilised communities,”[12] which includes a civilized state’s duties to protect its own citizens from dangerous persons and to promote friendly relations with other countries.[13] Similarly, Kantian thought explains interstate collaboration based on the idea of a cooperative, collective “society of states.”[14] These theories offer some insight in explaining state behavior. Because there are different explanations for why states legally enforce international treaties and provisions, there are opportunities for change and variation in application.

Bilateral treaties for extradition vary in content and purpose, though they are usually characterized by general principles and procedures such as reciprocal rights and duties, enumeration and specification of extraditable offenses, the rule of evidence, and the process of surrender.[15] Multilateral conventions and national extradition acts often include special provisions for limitations on the age of the crime and for scenarios where there is an extradition demand by two or more countries. Traditionally, extradition treaties create provisions for the protection of individual rights in three distinct areas: the political offense exception, the rule of double criminality, and the principle of specialty.[16] The political offense exception protects the right to protest government action and engage in activism for political change; the rule of double criminality provides that an extradition cannot occur unless the crime charged is an offense in both the demanding state and the extraditing state; the rule of specialty commands that the extradited individual does not have to answer to any prior crimes other than the specific crime for which she is extradited.[17] On the surface, extradition treaties seem to provide for simple and plausible surrender procedures. In practice, however, these treaties are often negated by constitutional safeguards in the criminal laws of the countries that agree to them.[18] Some factors that can frustrate the formal process include, a “risk that extradition targets will be alerted to the request giving them time to flee; the host state may not possess an effective police force and so may not be capable of locating persons within its borders; the foreign government may simply be reluctant to comply with extradition requests or extradition may be barred by the non-fulfilment of a formality in the treaty.”[19] Moreover, these general principles and procedures in extradition treaties are often up to the interpretation of the countries which have signed the agreement. Especially when it comes to the area of individual rights protections, different countries can read treaty stipulations differently, or not comply with the language at all, without facing harsh consequences. Existing supranational organizations, such as the United Nations which governs international affairs, do not have the effectual authority or the power to enforce compliance with a particular reading of the treaty, and can only issue non-binding opinion statements.

Within the body of extradition law, there exists a doctrine protecting individual rights which is frequently interpreted variably and subjectively: the political offense exception. This exception dictates that countries should not extradite criminals if their crime is political in nature. Though many countries adopt a rule of non-inquiry, under which “courts may not examine the requesting country’s justice system or human rights record in determining whether to extradite an individual out of respect and courtesy,”[20] the idea behind the political offense exception acknowledges that governments are concerned that “an individual would be subjected to an unfair trial or inhuman treatment if extradited to the requesting State for committing a political offense.”[21] Despite the fact that, ideally, “[e]xtradition pronounces no judgment upon the laws of other countries, and exercises no judicial power in the trial of criminals, or the administration of punishment,”[22] political offenses represent a limitation on the surrender of fugitives because there exists a need for the two participating states’ laws to be alike. If the laws are dissimilar, then “the political sinner of one State may be the political saint of another.”[23] As a general principle “if the offense with which the fugitive is charged or of which he has been convicted is of a political nature (e.g. treason or sedition), he is not to be surrendered.”[24]

The political offense exception has been quite an unclear and murky doctrine of extradition law, especially since conventions and laws refer to political offenses without defining them. Many times, states do not agree on what constitutes a political offense. Different countries have different interpretations of how they handle political offenses. In extradition, the term has been interpreted to split into two categories of offenses: first, “purely” political offenses are against the political organization or government of a state, injuring public rights, and containing no common crime element, e.g. a tweet criticizing the president; second, “relative” political offenses are offenses in which a common crime is either implicit in or connected with a political act, e.g. someone vandalizing a government building.[25] While most countries agree that political offenders of the first category ought not be extradited, the uncertainty that lies mostly in the second category causes countries to disagree on whether to extradite.[26]

Different countries explain the political offense exception differently. Tribunals in Switzerland often consider offenses on a case-by-case basis rather than creating a general rule as to when an offense should be considered “predominately common or predominantly political.”[27] Using three principles—purpose, direct connection, and level of atrocity—the tribunals can determine the predominately political character of an offense.[28] For example, if the level of atrocity is too heinous, the nature of the crime outweighs the political offense exception. Belgium’s system, on the other hand, is less standardized and allows the courts greater freedom and flexibility in interpreting what constitutes a political offense, though they also subscribe to the theory of predominance. The French distinguish between political and social crimes; the former are committed against a government, the latter, against society, e.g. gambling, prostitution, and drug abuse.[29] Germany classifies offenses into common offenses and political offenses, for which asylum was universally recognized.[30] Since different countries have different interpretations of what constitutes a political offense, the political offense exception remains undefined and unclear.

Different time periods have wound up influencing how the political offense exception is handled as well. For instance, during the French Revolution, the king viewed political offenses as prosecutable and political exile as a viable strategy to reinforce his power because the French press spread news, propaganda, and conspiracies across borders and increased the likelihood of international insurrection, transnational political subversion, and transnational political crime.[31] He saw these trends in the press as threatening since they opened avenues of cooperation and information-sharing conducive to political dissent and subversion. Instead of a legal institution, extradition was an arbitrary power of kings to suppress and punish dissenters. In addition, the Russian government, from 1800 to 1825, rejected the doctrine of political asylum and attempted to force smaller states to extradite political offenders to Russian jurisdiction.[32] However, after World War II, the Soviet Union relied on “administrative rather than political channels of cooperation.”[33] As the dynastic system yielded to constitutionalism, extradition shifted from a political matter to a judicial one.[34] While extradition has a more uniform structure today than it did earlier in history, the political offense exception remains up to interpretation by the countries participating in the exchange of criminals. The situation becomes increasingly complicated if the two countries do not have an extradition agreement.

The United States and Russia do not currently have a bilateral extradition treaty.[35] The two countries likely do not have a treaty due to the tensions rising from the Cold War, the War on Terror, and the Ukraine crisis. Throughout their history, the United States-Russia relationship has fluctuated between amicable and hostile. During the existence of the U.S.S.R., the U.S. Senate entered into a mutual extradition treaty to prosecute potential assassins but it was heavily protested by American citizens. Though the politically unfavorable treaty was never formally terminated, neither government recognized an enforceable agreement and its stipulations were ignored despite the legal obligation.[36] Indeed, “[w]ithout an extradition treaty, the argument to extradite a suspect in order to face charges in another country becomes a political, as opposed to a legal, issue.”[37] However, Russia has increased its interest in forming extradition treaties with the U.S. since Russian nationals have been intercepted in countries that have extradition agreements with the U.S., which transfer the Russian criminals to American jurisdiction.[38] Russia wishes to have a more even-footed exchange of criminals with the United States since the Russian government itself does not have the same number of treaties with other countries as the U.S. does. So, Russia and the U.S. entered into the 1999 Treaty on Assistance in Criminal Matter; however, “the terms of that arrangement do not call for unequivocal extradition but rather simply assistance in legal matters abroad.”[39]

When Edward Snowden, a whistle-blower who leaked classified U.S. National Security Agency documents to journalists, sought asylum in Russia, the implications of his actions provided an example for how the political offense exception would be applied. Snowden was charged as a felon for stealing government property and giving classified intelligence data to unauthorized persons, namely representatives at the Washington Post and The Guardian newspapers. He uncovered the NSA’s surveillance of citizen cell phones, media, and emails and international spying, which makes him a “relative” political offender. The United States revoked his passport, blocked asylum requests in Latin America (arguably violating customary international law), and is actively seeking Snowden’s capture.[40] The Snowden affair became an international issue since he was classified as a political offender. The parliament of the European Union voted to call its member nations to grant Edward Snowden asylum because of the political nature of his crime in a non-legally binding resolution, which simply pushes the issue to all E.U. member nations. The vote itself does not grant Snowden any protections, but it does ask the E.U. to drop extradition charges against the exiled American because he is an “international human rights defender.”[41] Similar support has been extended to political offenders in the past –  “the moment a national boundary line [was] crossed… [t]he criminal bec[ame] an object of special consideration, if not of sympathy.”[42] The fugitive could plea for the human right of asylum, which is granted under Article 14 of the Universal Declaration of Human Rights.[43] Despite the political display in Europe, however, the U.S. State Department’s stance on Snowden’s status remains the same—he needs to return to the United States and face the judicial process.[44] The United States requested that Russia deny Snowden’s application for temporary asylum and extradite him to the United States for prosecution under the Espionage Act. If Snowden had stayed in Hong Kong, the United States would have had an extradition treaty to enforce capture without Russian assistance.[45] However, as it is, Russia denied the U.S. demand under the Obama administration since no treaty exists and has further stated “it will continue to extend asylum protections to Snowden and will not send him back home.”[46] After Snowden waited in a legal limbo, stranded in the transit zone at the Shermetyevo Airport in Moscow for a month, Russia granted him asylum.

The Snowden case shows how politically volatile the handling of the political offense exception is in the realm of international extradition law. U.S. intelligence sources have obtained information that says Russia may extradite Snowden as a gift to win favor with President Donald Trump, who has described Snowden in the past to be a traitor who should be executed.[47] The charges against Snowden by the Justice Department could bring a sentence of thirty years in prison under the 1917 Espionage Act. Unlike U.S. Army leaker Chelsea Manning, Snowden was not granted commutations by former President Barack Obama on his way out of office.[48] President Donald Trump is not expected to take a softer approach. Nevertheless, commentators have noted that Edward Snowden’s extradition to the U.S. is impossible on “legal and moral” grounds for the simple reason that there is no agreement for mutual extradition.[49] At the end of five years, Snowden could even apply for Russian citizenship. The Snowden case thus shows how the political offense exception is heavily influenced by a number of factors: the presence of an extradition treaty, international political relations, public opinion, and changes in government administrations.

Political offenses in international extradition law represent an important exception to agreements of mutual assistance. The exception attempts to skirt the murky territory of political crimes which may be received differently in different countries. This lack of uniformity makes it difficult to prosecute or pursue political dissidents. In the case of Edward Snowden, the intricacies of the political offense exception are obvious. While extradition seems an unlikely prospect in his case, international law attempts to impose the normative measures of what ought to happen. Governments are beginning to rely on methods of international law enforcement other than extradition for political offenses; namely, judicial assistance, treaties for the exchange of prisoners, and administrative arrangements for deportation or extra-territorial prosecution.[50] Perhaps these venues will be more fruitful to resolve the case of Edward Snowden and to clarify the uncertainty of the political offense exception.

[1] Chartres Biron and Kenneth Chalmers, The Law and Practice of Extradition (London: Steven and Sons, 1903), p. 3.

[2] William C. Herrington, “‘Snowed In’ in Russia: A Historical Analysis of American and Russian Extradition and How the Snowden Saga Might Impact the Future,” Journal of Law & Policy 48 (2015): p. 322.

[3] Karl Harter, “Security and Cross-Border Political Crime: The Formation of Transnational Security Regimes in the 18th and 19th Century Europe,” Historische Sozialforschung 38, no. 1 (2013): p. 98-99.

[4] Samuel T. Spear, Law of Extradition (Albany: Weed, Parsons & Company, 1884), p. 40.

[5] Biron & Chalmers, p. 2.

[6] Spear, p. 3.

[7] Ibid., p. 31.

[8] Ibid., p. 10.

[9] Biron & Chalmers, p. 3.

[10] Helen McDermott, “The Structure of International Cooperation in the Transfer of Suspects. Extradite or Abduct?,” International Criminal Law Review 15, no. 2 (2015): p. 254-297.

[11] Ibid., p. 254-297.

[12] Biron, p. 1.

[13] Ibid., p. 1-2.

[14] McDermott, p. 254-297.

[15] Spear, p. 43-46.

[16] Abbey G. Moffitt, “A Place for Snowden: U.S.-Russian Extradition Relations & Benefits of a Future Partnership,” Transnational Law & Contemporary Problems 24, no. 1, (December 2014): p. 249.

[17] Ibid., p. 249-50.

[18] Igor I. Kavass, eds. Adolf Sprudzs, International Journal of Law Libraries Vol. 9, No. 5, Chicago: The University of Chicago, (1981) p. 231.

[19] McDermott, p. 254-297.

[20] Herrington, p. 325.

[21] Ibid., p. 325.

[22] Spear, p. 40.

[23] Biron, p. 11.

[24] John Bassett Moore, “The Difficulties of Extradition,” Proceedings of the Academy of Political Science in the City of New York 1, no. 4 (1911): 631.

[25] Lora L. Deere, “Political Offenses in the Law and Practice of Extradition,” The American Journal of International Law 27, No. 2 (1993) p. 248.

[26] Ibid., p. 248.

[27] Ibid., p. 257.

[28] Ibid., p. 258.

[29] Ibid., p. 262.

[30] Ibid., p. 264.

[31] Harter, p. 99.

[32] Moffitt, p. 253.

[33] Ibid., p. 254.

[34] Harter, p. 249.

[35] Moffitt, p. 243

[36] Ibid., p. 251.

[37] Ibid., p. 267.

[38] Ibid., p. 260.

[39] Ibid., p. 244.

[40] Ibid., p. 246.

[41] Andrew Husband, “EU Wants to Grant Edward Snowden Protection Against Extradition,” Newstex Trade & Industry Blogs, Chatham: Newstex, October 30, 2015.

[42] Moore, p. 625.

[43] Universal Declaration of Human Rights, General Assembly Resolution 217, U.N. Document, 10 December 1948.

[44] Husband, p. 1.

[45] Ibid., p. 245.

[46] Moffitt, p. 247.

[47] Jeff John Roberts, “Snowden May Return to U.S. as “Gift” from Russia, Report Says,” Fortune, February 11, 2017.

[48] Lydia O’Neal, “Will Edward Snowden Go To Jail? US Indicts A Former NSA Contractor For Violating Espionage Act,” International Business Times, February 8, 2017.

[49] Brendan McDermid, “Moscow has no legal, moral reasons to extradite Snowden – Russia envoy to US,” Reuters, October 12, 2016.

[50] Kavass, p. 231.