Sometimes, a story is not a story, because it is inevitable, except for the ignorant accusations that demonstrate how one side is completely filled with hot air and not much competence.
Such is the case of the dramatic “escape” of Edward Snowden from HK to Russia (of all places).
It was expected, because even US probably anticipated some kind of Snowden escape, to somewhere.
Hence, US appeared to be in a great rush to put a stop to it a week ago. Except, as usual, a rush often produces mistakes, big mistakes. And as usual, no one want to claim responsibility for the mistakes, just want to blame everyone else.
What is now becoming much clearer, is how Vengeful and Childish Western Democracies can be to punish any individual who speak out against them.
Background:
US issued a “provisional arrest warrant” request with HK last week on June 14, as a prelude to a more formal extradition request.
Big Problem
Except, there is 1 major problem with this “provisional arrest warrant” request: under standard treaties on such matters, a “provisional arrest warrant” request REQUIRES either a valid corresponding arrest warrant in the country of request (US in this case), or at least a declaration that such an arrest warrant exists.
See a US case on this subject: https://bulk.resource.org/courts.gov/c/F2/786/786.F2d.1395.85-6156.html
Under the Treaty, the extradition request must include an arrest warrant. Extradition Treaty, art. 11(3). In case of urgency, the Treaty permits the requesting country to seek the fugitive’s provisional arrest. Id. art. 12. A request for provisional arrest need only be accompanied by a declaration that an arrest warrant exists; it need not actually include a warrant. Id.
NOTE: It’s not a declaration that an arrest warrant will be obtained, but rather that the “arrest warrant” ALREADY exists at the time of the provisional arrest request.
US – HK Extradition Agreement:
http://www.gpo.gov/fdsys/pkg/CRPT-105erpt2/html/CRPT-105erpt2.htm
Specifically:
Article 8(3) states that if the fugitive is a person who has not yet been convicted of the crime for which surrender is requested, the requesting Party must provide a copy of the arrest warrant, and “such evidence as, according to the law of the requested Party, would justify his committal for trial if the offense had been committed within the jurisdiction of the requested Party.” This is consistent with fundamental extradition jurisprudence in the United States, under which this language is interpreted to require countries seeking extradition from the U.S. to provide evidence establishing probable cause. 29 However, Hong Kong under its current law requires prima facie evidence of guilt in order to either extradite a fugitive, or to commit a case for trial in Hong Kong. During the negotiations, the Hong Kong delegation indicated that Hong Kong does not plan to change this evidentiary standard for either extradition, or committal for trial. Consequently, U.S. requests to Hong Kong for the surrender of fugitives will likely require prima facie evidence even after the Agreement enters into force, i.e., the same quantum of evidence we provide under the current extradition treaty.
————————————————————————–
\29\ Courts applying 18 U.S.C. Sec. 3184 have long required probable cause for international extradition. Restatement (Third) of the Foreign Relations Law of the United States, Section 476, comment b.
Unfortunately, for US, on June 14, when the “provisional arrest warrant” request was made to HK, Edward Snowden has NOT been indicted (charged) in US yet, hence, no formal arrest warrant in US.
Edward Snowden was finally publicly indicted in US on June 21, Friday, by a federal grand jury in Alexandria, Virginia.
In short, the “provisional arrest warrant” request from US was insufficient on June 14, because it was not accompanied by a corresponding US arrest warrant.
(In other words, HK cannot arrest someone for US, when US has not issued an arrest warrant domestically for that same person).
HK government hence asked US to supply additional information, i.e. the missing US arrest warrant for Snowden, and whether the charges are political in nature.
OOPS!! Big OOPS!!
*Although, TECHNICALLY, HK did not actually reject US’s request. The Provisional Arrest request was technically “under consideration”, pending additional documents. But in the mean time, if Snowden wanted to leave HK, there was no legal way to stop him. Afterall, an arrest warrant isn’t valid until it is approved.
And technically, HK didn’t hold up the processing of that request either, since US botch it with the missing documents.
The Rushed Screwup
No doubt someone decided to rush Snowden’s indictment in Alexandria Federal Court, a place previously known for “secret Grand Jury” for investigating Julian Assange, and also issued grand jury subpoena to members of the Bradley Manning Support Network (BMSN) and others in the Boston area. (A rather Pro-US government grand jury venue).
http://www.cnn.com/2010/CRIME/12/13/wikileaks.investigation/index.html
http://grandjuryresistance.org/recent.html
The US government (and its attorney machinery) finally managed to get the indictment, around evening time on Friday June 21, US, according to the timestamp of earliest news reports of this by Washington Post and AP.
By which time, it would have been Saturday morning in HK. Weekend. No courts in session. Government offices closed. OOPS!! Even if US wanted to, it’s doubtful they can call up anyone in HK government to process the US indictment to supplement the original “provisional arrest” request.
Around the same week, US government via the State Department, also revoked Edward Snowden’s US Passport, the hopes of restricting his travel. This is alleged by some anonymous US official, and cannot be verified at this point.
Wikileak Gets Wind of Screwup Early, Spots Screwup, Whisk Away Snowden to Russia
After June 14, Wikileak founder Julian Assange appeared to have already gotten wind of upcoming indictment of Snowden (which was filed on June 14 as well), and immediately sent his advisors working on the case.
Somewhere along the line, Assange’s people realized that there might have been a screwup with the provisional arrest request in HK, and decided along with Snowden to take a chance (risking exposing Snowden to actual arrest).
The timing was down to the last minutes proverbially. If they were wrong, Snowden could have been arrested by HK authority at the airport, or turned back and exposed Snowden’s location in HK.
Also, they had to get clearance from Russia and others to take Snowden, not an easy task, considering that Russia is no friend of Assange.
But Assange’s and Snowden’s gamble paid off. HK didn’t have a valid pending arrest request for Snowden under treaties, so they let him leave.
The Blames Fly
Unwilling to accept the blunders, US politicians and media personnel immediately went to work blaming everyone else.
Russia is blamed for taking Snowden in.
China is blamed for essentially letting HK let Snowden escape. Naturally, suspect China in having a hand in doing nothing to stop Snowden from leaving HK.
Some even suggested that HK should have detained Snowden, even if the provisional arrest request was invalid, because Snowden’s US passport was revoked.
Uh, point of international law.
HK has no obligation to stop people from LEAVING, just for an expired passport.
Airlines do generally check validity of passport. If someone has an invalid passport, the Airlines may be fined by destination country for allowing such persons to travel. HOWEVER, the destination country can choose to waive this requirement, and allow the person to travel, just as if such a person didn’t have a valid visa.
This suggestion itself is just plain ignorance of even the practices of US itself in handling political dissidents’ travels. Seriously, how many political refugees that end up in US have valid passports from their home countries??!
Russia, as the destination country, of course could decide to waive any requirement of a valid US passport for Snowden. And Snowden boarded an Aeroflot flight, a Russian airline (Yes, they could let him)!
ThanksGiving of Snowden
Right now, Edward Snowden has a lot to be thankful for, temporarily.
He definitely dodged a bullet there, escaping the reach of a US extradition, in the nick of time. (Even if the alternative is that such extradition might have been caught up in HK’s court for years, there were already pressure from US to force HK to expedite the process).
He should be thankful for Assange’s people, Russia, Ecuador, HK, and China, even if they all had probably their own ulterior motives, and perhaps didn’t do their best to help.
But really, Snowden should be thankful mostly for the usual inefficiency and incompetence of the US government and politicians in handling this matter.
Too many hands in the cookie jar. In the last 2 or so weeks, US politicians and officials were too eager to make not so veiled threats publicly against Snowden. For what? To grab limelight for themselves.
In doing so, they leaked critical information about what they were doing to catch Snowden, even before such actions were properly executed, forcing procedures to go ahead, when supporting documents were not yet done.
US politicians ultimately spooked Snowden and Assange. Snowden took a chance, because he was spooked, and his timing was lucky.
Seriously, if anyone should be prosecuted now, it should be all the US politicians who made statements that spooked Snowden.
If you can’t even keep secrets to go after 1 leaker, there is no such thing as Government secret, and you have nothing to blame Snowden on.
UK Guardian’s Greenwald implied the same couple of days ago. He tweeted
Glenn GreenwaldVerified accountAnyone have interest in a criminal investigation to discover which “officials” leaked news of the sealed indictment?
Good question.
Washington Post noted:
After The Washington Post reported the charges, senior administration officials said late Friday that the Justice Department was barraged with calls from lawmakers and reporters and decided to unseal the criminal complaint.
Casting a Flimsy Net With “Invalid Passport”
On Sunday, US either actually revoked Snowden’s US passport or confirmed such revocation, or both.
http://english.astroawani.com/news/show/us-scrambles-to-stop-globe-trotting-leaker-snowden-16996
US State Department spokeswoman Jen Psaki, traveling with Secretary of State John Kerry in India, confirmed that the United States revoked Snowden’s passport due to “felony arrest warrants” against him.
A State Department official said the United States has been in contact with “countries in the Western Hemisphere through which Snowden might transit or that could serve as final destinations.”
“The US is advising these governments that Snowden is wanted on felony charges, and as such should not be allowed to proceed in any further international travel” unless he is being returned to the United States.
The irony of that self-serving and double talking and desperate statement is quite lost on the US government, as US currently hosts murders of “dissident”/asylee crows from all over the world, most of whom have no valid passports from their own home countries.
Does US ever hold up travels of Dalai Lama?
Does it just suck quite “Democratically”, when one’s own past precedents get in one’s way to stomping one’s own enemies of the state?!
The Global Vendetta Against One Man
I have said in the past, that the fact that China has “dissidents” is a proof that people are not that afraid of the Chinese government. In the worst case, the “dissidents” leave. Most of time, the Chinese government just consider them “persona non-grata”, and don’t bother with them any more.
But US and UK? If you p*ss them off, they are more than happy to render some Democratic rage unto you.
If all this spying/snooping stuff was righteous and legal by US and UK standards, then why go after Snowden for his different opinion? Afterall, isn’t he supposed to be the crazy nonrelevant high school dropout military wash out??! Why treat him so seriously, when US media and politicians keep denouncing him as not serious??
UK preemptively orders its airlines NOT to fly Snowden anywhere on UK territory.
US now instituting a full scaled global hunt for Snowden, and threatening pretty much all nations against helping Snowden in any way.
But come on, doesn’t that just make US and UK look foolish and impotent?
Snowden is not Bin Laden. He doesn’t have “organizations”, “networks”, or “cells” helping him. He’s just some IT geek with 4 laptops.
The fact that this IT geek with 4 laptops is causing US to blow steam out of its proverbial ears, is making US looking foolish and impotent globally.
Take a story out of China for comparison:
When “dissident” Chen Guangcheng wanted to leave China, China gave (and expedited) passports to him and his relatives for leaving. End of story. Enough said.
US Temper Tantrum
Why is US so mad?
UK’s Independent summed it up as:
They said they needed more information from the US Justice Department but did not give the US the courtesy of waiting for it to be provided. No wonder Mr Kerry was piqued.
Well, as some say in matters of law, you snooze you lose.
Snowden wasn’t going to wait for US to get the documents in order. He wanted to leave! Kinda of sneaky, but Justice waits for no man, especially not going to make someone else wait for it.
N.M.Cheung says
I am sure Hong Kong government and China followed the rule of law in this case (wink, wink), and we should demand Obama administration prosecute whoever leaked the sealed indictment as they have been vigorous in prosecuting any violation of secrecy so far.
Black Pheonix says
Sources now appear to confirm that Snowden’s US passport was not revoked until Saturday June 22.
http://www.telegram.com/article/20130623/NEWS/130629901/1116
Some US officials have questioned why that was not done earlier.
Well, another point of law.
Under US law, the State Department may ONLY revoke a US passport for someone who is named in a Federal Warrant in existence.
Ah, it may have been that because Snowden was not actually indicted until June 21 Friday evening, then the State Department could revoke his US passport on Saturday.
Another OOPS!!
That whole process was just screwed up from the beginning.
Charles Liu says
Western nations have on many occassions ignored China’s request for arrest of criminals via Interpol, on the ground the charge is political. I wonder if China and Russia will now respond in kind?
If it really comes down to it, forcing Snowden’s hand will lead to him seeking asylum. Wonder if that factored in the delay?
Also, according to LA Times, charge against Snowden was made on the 14th, possibly unsealed on the 21st:
http://www.latimes.com/news/politics/la-pn-espionage-charges-edward-snowden-20130621,0,4999142.story
Mister Unknown says
Politically speaking, there is NO WAY that the governments of either Russia or China can afford to extradite Snowden EVEN IF THEY WANTED TO, how would they look in front of their own people if they did so? I think Snowden & those who aid him know this very well, & that’s why they chose those countries.
pug_ster says
My complaint with the Chinese/Hong Kong government officials is that they seem to have chicken out in this diplomatic situation about Snowden. They should’ve confronted the US about the hacking issue, paraded Snowden in front of Chinese Officials, like what US government does with Chinese dissidents. Instead, these Chinese officals made up an excuse with the ‘paperwork’ problems and encourged him to leave. The US government has been screwing with China economically, politically, socially and diplomatically for the past 20+ years yet when China has a opportunity landed in front of them they simply flaunt it.
Black Pheonix says
@pug_ster
I don’t think Chinese or HK government officials had much of a hand in “encouraging” Snowden to leave.
(A) one have to assume that somehow Chinese or HK officials were in contact with Snowden,
(B) one have to assume that somehow they then informed Snowden that US was trying to have him detained in HK.
(C) one have to assume that they also know that Snowden decided to leave HK,
(D) one have to assume that they then decided to instruct HK border agents to allow Snowden to leave without detaining him.
That’s a lot of assumptions.
Given the time line, I don’t think they had the time to plan all this out. Remember it took US government more than 8 days, JUST to file the sealed complaint against Snowden. (From June 6 to June 14).
HK’s bureaucratic time line is not that long in comparison. They responded by asking for more documents after only 3 days. (They received the Provisional Arrest request on Wednesday June 19, and asked for more docs on June 21.)
@Charles Liu
To correctly state the time line:
the US government filed sealed complaint against Snowden on June 14th. That sealed complaint was unsealed on June 21.
The problem is, we don’t know precisely when the Grand Jury approved the indictment based on the complaint. Some implied that the Grand jury approved in the indictment on June 14th.
I don’t think so. Grand juries usually meet only 1 time in a month in a specific venue.
I believe the Alexandria one meets around June 21, not June 14th. (according to some of the older indictments handed down from Federal Court in Alexandria).
Additionally, the timeline for the revocation of his passport also fits.
There is no reason why the State Department would delay the revocation of Snowden’s passport, except for perhaps that the federal warrant/indictment for Snowden was not yet issued.
So, again, Indictment on Friday June 21, then revocation of his passport on Saturday June 22. It was very clear that they were rushing it, because they knew they screwed it up.
Black Pheonix says
1 standard Western media byline (And these are being repeated more and more now in Western media, and you can tell that they are written by some kind of government approved language, fuzzy and non-detailed):
The byline basically say that US prosecutors have 60 days after the complaint to file for the indictment.
(1) that basically admitted that they actually didn’t obtain the indictment, at the time of the sealed complaint.
(2) This point of law is TRUE. HK would allow them 60 days to obtain the indictment, to supplement the Provisional Arrest request.
However, that just means that if US didn’t obtain the indictment in 60 days, the provisional arrest request would be formally rejected.
Also, while they are waiting for the indictment in that 60 days, the provisional arrest request is just pending, NOT approved.
And if in that waiting period, Snowden decides to leave HK, there is nothing in HK to detain him.
OOPSies for US! That “60 days” isn’t some kind of Gift registry hold for HK to start arresting Snowden.
*
This kind of stuff actually goes on a lot in international extradition. Which is why one has to get the Extradition request right 1st time around. Otherwise, the “fugitive” can get spooked and fly the coop.
I mean, this whole mess was clearly the fault of US side.
For nearly 2 weeks, the US politicians were openly threatening extraditions, and giving hints on details of what they were planning on doing.
Snowden and Assange were clearly spooked. Perhaps they may even have informants in US telling them what’s going on.
Assange’s supporters, for a long time, knew what was going on in the “secret grand jury” in Alexandria, even though that investigation of Assange was never published.
I think there is someone on that “Grand Jury” in Alexandria that has been leaking to Assange.
*That “grand jury” in Alexandria, BTW, is heavily guarded. The room is not open to public, its membership is not publicized, etc. It’s more secretive than the NSA.
William says
You can travel without a passport from any country! Whether or not your country of citizenship actually revokes your citizenship as well as just your passport, you can revoke it yourself. Stateless persons can travel on a UN stateless person’s travel document.
Black Pheonix says
@William
Yes, it just depends on the host country.
HK/China can deport Snowden for having an invalid visa, but they can’t stop him from leaving on his own with an expired passport.
And if Russia (or any other country) want to accept Snowden without a valid passport, that’s their own choice.
last time I checked, an expired passport does not equate to an order to detain.
Black Pheonix says
http://www.guardian.co.uk/world/2013/jun/24/edward-snowden-booked-on-plane-from-moscow-to-havana-live-coverage
US White House continues to make the same ridiculous assertions about Snowden’s passport.
Carney fully rejects the Hong Kong explanation that Snowden was allowed to travel because the US request for his arrest and extradition was legally incomplete:
The Hong Kong authorities were advised of the status of Mr. Snowden’s travel documents in plenty of time to have prohibited his travel as appropriate.
We do not buy the suggestion that China could not have taken action.
*And other threats of retaliations against China, Russia, and anyone else.
Charles Liu says
According to this article, HK authority had informally conveyed to Snowden they can’t guarantee him no jail time while fighting extradition:
http://www.nytimes.com/2013/06/25/world/asia/snowden-departure-from-hong-kong.html
Black Pheonix says
I don’t know if I can believe some of Albert Ho’s story.
But HK authority would be correctly stating their position, if Snowden had asked.
I think Snowden just asked someone who practiced law in HK, who would have given the same exact answer to Snowden.
There was a huge probability that if an order to detain Snowden actually came down the line, the HK government can’t let him out on bail. He’s a high flight risk, considering how hard US is coming down on him.
I doubt very much this whole story of some mystery “intermediary” who went as a go between. That’s just another person who might be tracked back to Snowden.
James says
Read this brilliant story in the New Yorker about why US journalists have demonized Snowden. The most important part:
“In a post that followed the first wave of stories, [Snowden critic and founder of TalkingPointsMemo John] Marshall wrote, ‘At the end of the day, for all its faults, the U.S. military is the armed force of a political community I identify with and a government I support….’
“I suspect that many Washington journalists, especially the types who go on Sunday talk shows, feel the way Marshall does, but perhaps don’t have his level of self-awareness. It’s not just a matter of defending the Obama Administration, although there’s probably a bit of that. It’s something deeper, which has to do with attitudes toward authority. Proud of their craft and good at what they do, successful journalists like to think of themselves as fiercely independent. But, at the same time, they are part of the media and political establishment that stands accused of ignoring, or failing to pick up on, an intelligence outrage that’s been going on for years.”
Allen says
@Black Pheonix
Not sure if this is correct. From the same resource you cited (Congressional notes on the treaty, not the treaty itself),
So an actual arrest can be made – a gift registry hold can be made – subject to the restrictions given in Article 10, Paragraphs 2-4, which I presume would be less stringent than that given for full extraditions as given in Article 8.
Actually, everything I have read thus far regarding the extradition request – the warrant – and the deficiencies (alleged deficiencies) of the request – have been fuzzy and non-detailed. I guess that’s expected given the nation security nature of the crimes allegedly involved. It’s frustrating, but we should be fair when fairness is due. HK is just as fuzzy ad non-detailed as the U.S. It may say something … or not. We just can’t tell…
Allen says
I have a problem with “The Big Problem Section” of this post. Since I have no details of the U.S. request to Hong Kong, I can’t know for sure, but when the media (or whitehouse) says they asked for a provisional arrest, I believe it refers to an Article 10 arrest, not Article 8 (see congressional notes on treaty you provided).
Even if an Article 8 request is made (I highly doubt it), your interpretation of what a provisional arrest is may not be on point. The case you linked to (See a US case on this subject: https://bulk.resource.org/courts.gov/c/F2/786/786.F2d.1395.85-6156.html) is to a US-Argentine extradition agreement, and the requirements of a provisional arrest is made in context of that agreement, citing specific articles of that agreement. Without citations that the two treaties contain exact (or very similar wordings) on the conditions for provisional arrests, It’s too big a stretch to use that case (1986 case) to frame a reading of Hong Kong’s treaty (1996).
Black Pheonix says
Eric Sommer, a Beijing-based Canadian writing in the Global Times, even encouraged Beijing to reconsider offering Snowden a haven. “It is not too late for the Chinese government to consider offering asylum to whistle-blowers like him,” he wrote.
“Imagine that the situation was reversed, that a Chinese citizen fled to the U.S. with documentary proof of a vast worldwide Chinese cyber-surveillance and cyber-spying program … which included hundreds of break-ins of sensitive U.S. computers and the theft of millions of text messages,” he added. “Would the U.S. government send that person back to China? It is virtually certain that individual would be granted refugee status.”
*Interesting point
Black Pheonix says
@Allen
I disagree with your reading. Article 10 is referenced by Article 8(1). Article 10 generally describes the “provisional arrest”, but Article 8 is describing in detail , as titled “required documents.”
Also article 8(3): “Article 8(3) states that if the fugitive is a person who has not yet been convicted of the crime for which surrender is requested,”
The 2 articles are not contradictory to each other, as article 8 provides additional details for article 10.
So it’s not an “article 8 request”. It’s an “article 10 request” with documents required by article 8.
* I gave US case only as an example, because the US-HK agreement (congressional note) also stated:
“This is consistent with fundamental extradition jurisprudence in the United States, under which this language is interpreted to require countries seeking extradition from the U.S. to provide evidence establishing probable cause.”
“Courts applying 18 U.S.C. Sec. 3184 have long required probable cause for international extradition. Restatement (Third) of the Foreign Relations Law of the United States, Section 476, comment b.”
Black Pheonix says
@Allen
“So an actual arrest can be made – a gift registry hold can be made – subject to the restrictions given in Article 10, Paragraphs 2-4, which I presume would be less stringent than that given for full extraditions as given in Article 8.”
I disagree with your reading.
Provisional arrest request is only effective to detain a person if it is approved by HK.
Article 10(5): “Article 10(5) states that if the formal surrender request with the necessary supporting documents has not been received by the requested Party within sixty days of arrest….”
I think you are confusing the “formal surrender request” with the “provisional arrest request”. This is referring to a formal extradition request, which is REQUIRED 60 days AFTER a provisional arrest is APPROVED and the person is detained.
It doesn’t mean that provisional arrest request is granted automatically giving 60 days to provide support documents.
“formal surrender request” requires even more documentations, and not merely “copy” of arrest warrant. See Article 8(2)-8(3) for required documents.
Black Pheonix says
@Black Pheonix
Eric Sommer is giving me an interesting thought about all this.
Since US is unwilling to consider that China actually tried to be nice about Snowden and NOT give US more embarrassments, and US is continuing to blame China for this matter, then China should formally invite Snowden back, give him asylum.
Why not? US is still going to keep blaming China, either way.
Zack says
@Black Pheonix
agreed, It’s past time the Elites of Washington got a taste of their own medicine; it’s also past due that the crumbling edifice of US Supremacy is hastened to its inevitable conclusion.
Black Pheonix says
Snowden’s June 14 sealed complaint: http://www.documentcloud.org/documents/716865-snowden-complaint.html
I should note: This document might not be sufficient as the only supporting document for a provisional arrest request in HK, because it doesn’t go into any kind of detail about the nature of the charges, or the nature of the criminal conducts alleged. “Probable cause” is required by evidence in HK.
Black Pheonix says
Secretary of State John Kerry let slip some facts:
http://www.state.gov/secretary/remarks/2013/06/211089.htm
QUESTION: Well, it seems a little bit that you let him fall through the cracks because you waited two weeks to revoke his passport. I understand there was no Interpol notice, so were there some errors in —
SECRETARY KERRY: Well, that’s actually not correct. That is not correct at all. He was under a sealed indictment, and the moment the indictment was unsealed and we knew of it, at that point his passport was pulled within two hours. So his passport was pulled immediately that there was an unsealed – not indictment, as a matter of fact, it was a complaint.
And so we don’t know what authorities allowed him to leave under those circumstances. We obviously have to find out from the Chinese what happened. We hope that the Russians will recognize the request of the United States, particularly given that over the last two years we have sent seven prisoners back that they requested from the United States. So we need to cooperate on this because it’s important to upholding rule of law, and we hope they will.
*Point of law: A complaint is not necessarily an indictment. June 14, US filed the complaint under seal, the indictment itself was not obtained until later.
A complaint itself may not be sufficient as an arrest warrant needed for a provisional arrest in HK.
Black Pheonix says
It’s also odd that Eric Holder was handling the provisional arrest request with HK. He’s not a diplomat.
This type of request is usually handled by State Department.
Zack says
@Black Pheonix
the US is fast proving itself to be a country governed by Rule by law, rather than a country where the Rule of Law is practiced.
How does the Obama administration decide that somehow Snowden was ‘whisked away’ under Beijing’s auspices? Seems to me, and if PRISM wasn’t a big enough proof, that Obama and his predecessor and practically 90% of the powerbroker Elites in Washington have become paranoid as to suspect ‘if you’re not with us, you’re against us.
Black Pheonix says
HK Justice Secretary gives more details of his interactions with US government on the handling of the matter:
http://sc.isd.gov.hk/gb/www.info.gov.hk/gia/general/201306/25/P201306250634.htm
律政司司长谈斯诺登事件
＊＊＊＊＊＊＊＊＊＊＊
以下为律政司司长袁国强资深大律师今日（六月二十五日）与传媒谈斯诺登事件的谈话全文∶
律政司司长∶各位传媒朋友，就斯诺登事件，近日律政司这两天收到很多传媒查询。我希望借此机会向大家讲几件事：
第一，美国与香港就逃犯移交的事宜，正如我以前说过，是根据香港法例第503章《逃犯移交条例》及美国与香港于一九九六年十二月签署的协定所规范。因此，任何由美国就逃犯移交或相关的要求，包括临时拘捕令的要求，均须依据这条法例及协定规管。
其中一项法律要求，是美国政府提出的刑事指控，必须为协定第2条下描述的刑事罪行，相关涉及的行为亦同时构成香港的罪行，两个条件其中一个不成立不可以进行引渡，亦有第三方面的考虑，就是移交的要求是不可以涉及政治检控或因为某人的政治意见而作出的检控。
在斯诺登事件上，香港律政司有收到美国临时拘捕令的要求，但无收到正式移交逃犯的要求。
要求发出临时拘捕令的文件在香港时间六月十五日（星期六）下午收到。文件显示美国政府向斯诺登提出三项指控。第一项是未获授权披露国防资料，第二是未获授权披露情报资料，而第三项是窃取国家财物，即相关资料。律政司国际法律科的同事在收到文件后，随即研究美国政府向斯诺登提出的刑事指控是否符合法律要求，及审视其他所需的基本资料是否足够。
在六月十七日（星期一），律政司同事以电邮方式通知美国司法部，香港正草拟一份问题清单，希望澄清相关需要的资料。
在六月十九日，美国司法部要求与我联络。因应美国政府的要求，我在六月二十日早上（香港时间）与美国司法部部长进行通话。在简短的通话过程中，我向美国司法部部长明确提出两点：
第一点是就美方提出临时拘捕令的要求，我们会严格依照香港的法律和一九九六年香港和美国所签订的协议处理；第二，斯诺登这件事的情况复杂，所以律政司的同事需要一点时间处理，但会尽快回覆，并指出预期应该可以在（香港时间）上星期五或之前向美方提交我们要求的资料。
在六月二十一日（星期五）早上（香港时间），特区政府透过保安局致函美国政府，要求就有报道指美国政府机构入侵香港电脑系统作出澄清。同日（六月二十一日）下午，即美国时间星期五早上，律政司以电邮及速递方式致函美国司法部，要求美国政府就临时拘捕令的要求提供进一步资料。我们要求的进一步资料包括以下几方面∶
第一，美国政府向斯诺登提出的刑事指控，特别是第一及第二项，即未获授权泄露国防资料和情报资料，是他们认为在一九九六年美国与香港所签订的协议第2条下，属于哪一条条款。我刚才已说，他们对斯诺登提出的起诉，一定要在属第2条下的罪行才可提出移交，所以我们要求澄清他们所依靠的是第2条下的哪一条条款。
第二项我们要求的资料涉及美国政府将会依赖的证据的一些相关法律问题，因为文件中并无清楚交代他们将会用的证据，而当中在香港的法律会衍生一些问题，所以有必要澄清。
第三，都是一些其他基本资料需要澄清，我可以举两个例子。例如在我们有的资料和文件中，发现斯诺登的英文名字有出入。在外交文件用的名字是Edward James Snowden，在我们有的入境纪录中，斯诺登的名称是Edward Joseph Snowden，所以外交文件用了James这个middle name，入境纪录中是Joseph这个middle name，而美国司法部提交的美国法院文件只用Edward J. Snowden这名字。这三个名字并非完全一致，故此我们认为有需要澄清，否则，当发出临时拘捕令时，可能引伸法律问题。
另一方面，我们留意到美国提供的文件提及斯诺登持有美国护照，但文件中没提及此护照的编号。在确认某人身分时，我们认为护照编号是相关资料。所以除了刚才所说其他法律问题，包括刑事罪行、证据等其他问题外，我们亦要求美国司法部提供这方面的基本资料。
另外，如刚才所说，有报道提及美国政府机构入侵香港电脑系统。就此事，我们于上星期五下午发出的要求提供资料的信件，亦有就这方面向美国司法部提出，因为这方面的情况，将影响我们考虑美国政府对斯诺登提出的指控会否被认定为政治检控，或因为斯诺登的政治意见而受美国政府的政治检控。因此我们认为需要求美国政府作出澄清。
众所周知，斯诺登于上星期日（六月二十三日）早上自行以合法的正常途径离开香港，直到斯诺登离港那一刻、那一分钟，美国没有回覆律政司要求的进一步资料。因此，在香港法律制度下，律政司不可能、亦无法律基础要求香港法官签发临时拘捕令。在没有临时拘捕令的签发下，香港特区政府没有法律依据限制或禁止斯诺登离开香港。
在整件事的处理上，律政司的态度及采取的标准一直非常清晰。律政司没有刻意放生斯诺登，更没有刻意放缓处理美方要求的步伐。相反，如刚才所说，我们一直以香港法律、香港与美国之间的协定及香港的法治精神处理这事。亦如我刚才简述一样，一直有与美方相关部门保持联络。
直到现在，美国政府仍未回覆上星期五保安局向美国政府致函要求澄清有报道指美国政府机构入侵香港电脑系统的查询，亦无回覆律政府上星期五的信件，亦有提及入侵香港电脑系统一事。到目前为止，美国政府并无回覆保安局或律政司。
香港作为一个国际金融、经贸及资讯中心，网络保安十分重要，特区政府非常关注香港电脑的保安问题，我们将继续跟进事件，亦希望美国政府可尽快向香港市民作全面和令人满意的交代。多谢大家。
记者∶美国政府指特区政府故意放走斯诺登，你认为这指控是否完全没有根据？特区政府如何看待美国政府如此强硬的指控？
律政司司长∶正如刚才所说，我们绝对没有刻意放走斯诺登。我们完全不同意这观察。我们明白这事情上，如特首日前所说，我们理解美国的感受。但我们作为香港特区政府，我作为香港的律政司司长，我们可以做的、应该做的，是依据香港法律办事。我刚才已解释过，我们一开始已告知对方，这事情是复杂的，我们可能需要进一步的资料，而我们亦确实曾要求资料。在整件事中，我们没有刻意拖慢步伐。
记者∶就今次事件，有没有问中央（政府）意见？
律政司司长∶在这方面，我们与外交部驻港特派员公署有正常的沟通，但我刚才说的所有有关香港法律的事情，是律政司根据香港法例进行的决定。
记者∶美国政府处理这事时，久久未能提交资料，有否认为美方处理速度缓慢？斯诺登离开香港时，是旅客抑或难民身分？有关美国入侵香港电脑系统，美方至今没有回应，律政司有没有要求回应的deadline？
律政司司长∶美方政府的情况，我不宜评论，因为我不知道他们为何会以此进程处理事件，可能有他们的原因，我不方便、亦不希望猜测。斯诺登于星期日早上以正常旅客身分离开香港。就有报道指美国入侵香港电脑系统，刚才我已提及，香港非常关注这问题，我们会配合其他相关部门，特别是保安局跟进此事。现阶段不方便透露实际情况的其他详情，但我可以跟大家说，我们非常关注这方面的报道，因为特区政府非常重网络安全，所以我们会积极跟进。
记者∶与外交部沟通了什么？有没有影响香港？
律政司司长∶刚才我说过，就这事件，我们有与外交部驻港特派员公署沟通，这是正常的工作沟通，因为这件事无可否认涉及外交成分，所有正常沟通是绝对正常。不单是在今次的事件，其他涉及外交情况，其他相关政府部门亦会有正常工作关系的沟通。我希望强调，我们的沟通绝对符合香港法律，绝对没有违反「一国两制」原则。
（请同时参阅谈话内容的英文部分。）
完
２０１３年６月２５日（星期二）
香港时间２１时０７分
Black Pheonix says
Appears HK’s main problems are these 2 points:
第一，美国政府向斯诺登提出的刑事指控，特别是第一及第二项，即未获授权泄露国防资料和情报资料，是他们认为在一九九六年美国与香港所签订的协议第2条下，属于哪一条条款。我刚才已说，他们对斯诺登提出的起诉，一定要在属第2条下的罪行才可提出移交，所以我们要求澄清他们所依靠的是第2条下的哪一条条款。
第二项我们要求的资料涉及美国政府将会依赖的证据的一些相关法律问题，因为文件中并无清楚交代他们将会用的证据，而当中在香港的法律会衍生一些问题，所以有必要澄清。
This mostly had to do with the question of “extradictable offenses” under Article 2 of the agreement:
The Hong Kong Extradition Agreement identifies an
extraditable offense as either a crime enumerated in a long
list of covered felonies (punishable by imprisonment of more
than one year), or any other offense that is punishable by
imprisonment of more than one year by both the requesting and
requested Party 3 (Art. 2(1)). Although many modern
U.S. treaties merely apply such a “dual criminality test,” to
determine whether an offense is extraditable, the hybrid
application of dual criminality in addition to a listing of
felonies has precedent in many modern U.S. extradition
treaties.
—————————————————————————
\3\ This concept is termed “dual criminality.”
**
In essence, when US supplied the provisional arrest request, HK Justice Department requested additional information on charges: Unauthorized Communication of National Defense information, because the charges don’t show up on the list of “dual criminality” charges in the treaty, and there are no corresponding crimes in HK.
Black Pheonix says
Furthermore:
另外，如刚才所说，有报道提及美国政府机构入侵香港电脑系统。就此事，我们于上星期五下午发出的要求提供资料的信件，亦有就这方面向美国司法部提出，因为这方面的情况，将影响我们考虑美国政府对斯诺登提出的指控会否被认定为政治检控，或因为斯诺登的政治意见而受美国政府的政治检控。因此我们认为需要求美国政府作出澄清。
This is the “political crime” question.
Black Pheonix says
If Snowden committed “theft” of government “property”, then NSA committed massive “theft” of world wide property.
1st charge against Snowden: Theft of Government property.
Which in itself there is a small problem.
Theft is commonly defined in law as, “The unauthorized taking and removal of the Personal Property of another by an individual who intends to permanently deprive the owner of it; a crime against the right of possession.”
1 essential part of theft, is that there is an intention to “permanent deprive the owner” of possession of the property.
However, Theft of Government documents by copying them??? Afterall, Snowden merely archived those documents, made copies for himself. That’s not “theft”, since the Government still has possession of the original copy.
(It’s no more “theft” than NSA’s own sneaky copying of private data from the global internet. That’s the point).
*I can see why HK Justice Department had a problem with this charge at least, because it seems contrived.
“Theft of government property” should be more like if one steals a government office computer, that sort of things, not when one copies government documents (especially when one had the proper authorization at the time).
Black Pheonix says
http://www.fas.org/sgp/eprint/jpi-theft.pdf
discusses 18 USC 641, for the 1st charge.
That particular law seems to be more applicable to information that has some economic value (like say, government records of private companies’ confidential financial filings).
And it is only a felony if the document in question is valued at more than $1000. And in this case, NSA’s power point documents have little economic value.
Allen says
@Black Pheonix
I don’t really know the proper reading of section 8 and 10 – especially on such short reading, but I doubt section 8’s document requirements is to apply to section 10 (provisional arrest).
See, e.g., https://bulk.resource.org/gpo.gov/documents/105/td003.105.txt
That is, Article 10 arrest is provisional to a full Article 8 arrest. If and when the full set of documents stipulated by Article 8 is not available, the person sought for custody should be discharged, although when and if the documents are later supplemented, the fact of the release should not prejudice the requirements for subsequent arrests.
pug_ster says
@Black Pheonix
I agree with what Eric says. China should stand up to the US and question about the hackings into China and Hong Kong and grant Snowden temporary asylum until the US answers these questions and notify China how to prevent it. I am surprised that Russia president Putin is staying out of the sidelines also, making up stories that Snowden is not out of Russia’s territory. He should be demanding of why was Dmitry Medvedev’s phone calls was tapped.
Black Pheonix says
@Allen
Article 8 is titled “required documents,” and article 8(3) clearly specified that it applies to “if the fugitive is a person who has not yet been convicted of the crime for which surrender is requested.”
even your citation of article 10 summary indicates that it is to be “in conformity with Article 8”.
Thus, I disagree your reading of article 8 as “full article 8 arrest”. That’s not what Article 8 is. It is the article that describes the “REQUIRED DOCUMENTS”, as its title reads, for all different situations (and since article 10 also refers back to it).
* “the release should not prejudice subsequent arrests”. I would agree with that, but there has NOT been even a 1st arrest of Snowden, there is no “release” to speak of.
1st arrest cannot occur, UNLESS the provisional arrest request is approved by HK. That means, the provisional request must MEET SOME document requirements, even if NOT fully documented extradition.
**
“provides for the provisional arrest and detention of
the person sought pending receipt of a fully documented
extradition, request in conformity with Article 8”
I think your reading of this part is incorrect. “In conformity with Article 8” does not imply that Article 8 itself is “Full Extradition request”. Indeed, Article 8 titled “REQUIRED documents”, in different parts, need to be satisfied for either provisional or full extradition request.
There is nothing in what you cited for Article 10 portion says a Provisional Arrest request can skip the required documents. Article 8 clearly provided different levels of required documents.
What you quoted should be properly interpreted as that Article 10 ALSO need to be in conformity with relevant portions of Article 8 “required documents”.
Black Pheonix says
@pug_ster
I think Russia will play this one very coolly. And they should. They don’t need to get angry or agitated. They are just having laughs watching US government squirm.
Putin is probably ordering people,
“Hey, don’t answer the phone, if the caller ID shows up linked to Americans. We are not available. No, better yet, make them wait for the voice mail greeting. And put some really annoying elevator music on. No, NO, better yet, put on Pussy Riot on the voice mail greeting, OVER AND OVER AGAIN.”
Black Pheonix says
@Allen
Also, here are the US Attorney’s manual sections of provisional arrest request to send to foreign nations (this is standard recommended procedure):
http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/15mcrm.htm#9-15.230
http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/crm00604.htm
The Office of International Affairs (OIA) determines whether the facts meet the requirement of urgency under the terms of the applicable treaty. If they do, OIA requests provisional arrest; if not, the prosecutor assembles the documents for a formal request. The latter method is favored when the defendant is unlikely to flee because the time pressures generated by a request for provisional arrest often result in errors that can damage the case. If provisional arrest is necessary because of the risk of flight, the prosecutor should complete the form for requesting provisional arrest and forward it, along with a copy of the charging document and arrest warrant, to OIA by fax (see the Criminal Resource Manual at 604);
International Extradition
Request for Provisional Arrest
Name of fugitive:
Case caption (if the fugitive is not the principal defendant in the case):
Date discussed with OIA and name of OIA contact:
Prosecutor responsible for this request (name, telephone number, fax number, E-mail address):
Case agent (name, agency, telephone number, pager number and fax number):
Name, telephone number, and fax number of State extradition official who authorized payment of all expenses required to complete extradition (State requests only):
List all charges for which extradition will be sought (name and statutory citation):
Warrant information (name of court (district and division), docket number, name of judge or magistrate who signed the warrant, date of warrant):
Description of fugitive:
aliases:
date of birth:
place of birth:
citizen of:
passport number/date and place of issue:
other identity documents:
height:
weight:
hair:
eyes:
other identifying features:
Location of fugitive (full address and/or telephone number; names and addresses of associates, etc.) and any contact in the foreign country aware of fugitives’s location (Name, title, telephone and pager number.):
Facts of case. [Using a narrative style, provide sufficient information, including date and place of offense, to establish probable cause that a crime was committed and that the fugitive committed it. Choose simple, descriptive language that you might use in an affidavit in support of a warrant application, not the formal or statutory language of a formal charging document. Continue on a separate sheet if necessary.]
Prosecutor’s certification. [A statement by the prosecutor acknowledging that if the fugitive is arrested it will be necessary for extradition documents to be prepared according to the terms of the relevant treaty. Further, the prosecutor must also certify that those documents will be prepared and sent to OIA according to the schedule set by the OIA attorney.]
Last bit is important, even AFTER provisional arrest is made, ADDITIONAL documents are needed for full extradition.
Allen says
@Black Pheonix
Yes. Of course. The provisional arrest is made pending the docs for a full extradition. That’s still how I read the treaty … for now.
@Black Pheonix
Ok. Agreed. Article 8 is about documents needed – for an extradition, not, ummm, an arrest per se. I was too haste. Still… I believe my reading that an Article 10 arrest does not require all documents specified Article 8 is ultimately correct.
I am going to upload the full text of the treaty up … and then a post from the angle of rule of law, as I see it, next.
Black Pheonix says
@Allen
Yes, Provisional arrest does not require all the documents, but at the very least the copy of arrest warrant, which is standard US attorney manual practice as well.
As I said, Provisional Arrest request still need to be approved by HK, based on SOME required documents, even if not all of the ones required for full extradition.
A full extradition would also require a “certified copy” of the arrest warrant (in the USAM as well). That seem to make some additional difference. (And also additional details and evidence regarding the criminal charges and activities).
*
I think US side tried to do the bare minimum required documents for provisional arrest request, thinking that it should have been enough.
But HK had a problem with the descriptions of the charges, because they are not on the “list” of specific extraditable offenses in the treaty. (HK’s Justice Secretary specifically said that he asked US side to point out which offenses under Treaty Article 2 those charges corresponded to).
我们要求的进一步资料包括以下几方面∶
第一，美国政府向斯诺登提出的刑事指控，特别是第一及第二项，即未获授权泄露国防资料和情报资料，是他们认为在一九九六年美国与香港所签订的协议第2条下，属于哪一条条款。我刚才已说，他们对斯诺登提出的起诉，一定要在属第2条下的罪行才可提出移交，所以我们要求澄清他们所依靠的是第2条下的哪一条条款。
AGAIN, I stress, before HK approves a Provisional Arrest request, there is NO legal authority to detain a fugitive. That’s standard legal practice, for pretty much all the countries.
Just because US filed a provisional arrest request, does not mean that HK could stop Snowden at the airport.
Black Pheonix says
Article 2 of the treaty lists the number of extraditable offenses.
The ONLY 1 that might fit, is the catch all clause sub-article XXXVI (36), for any crime punishable by more than 1 year in prison, by laws of both jurisdictions, unless surrender is prohibited by the laws of the requested party (HK here).
I think the US charges don’t have corresponding HK crimes.
pug_ster says
http://www.thestandard.com.hk/news_detail.asp?pp_cat=30&art_id=134957&sid=39870263&con_type=1
The HK government was asking for Snowden’s passport # as well as trying to ask for evidence and charges is not a political one. Chief Executive Leung Chun-ying was also asking about the US hacking into Hong Kong which was not answered.
Zack says
the US has suffered an immense loss of prestige and the arrogant imperialist statements made by US leaders certainly has many ordinary Americans wondering if such actions are adding to America’s humiliation:
http://edition.cnn.com/2013/06/25/opinion/snowden-us-humilation/?hpt=us_mid
Black Pheonix says
@pug_ster
Yes, Identity of “fugitive” is the essential information needed in any extradition or provisional arrest request.
passport number is absolutely required information, per standard procedure in US Attorney Manual.
Black Pheonix says
A real poll on Cyber-snooping:
http://rt.com/news/privacy-services-companies-boom-142/
Encryption communication services companies are gaining momentum as public trust in US technology companies and social media networks are at an all-time low following explosive revelations by Edward Snowden