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
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 society…legal 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, are 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 offence 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.