Sitting in a restaurant in Belize City last week, I was mesmerized by television reports describing NSA whistleblower Edward Snowden. Most of the press coverage of Snowden's leaks has dealt with the breathtaking scope of the U.S. government surveillance he revealed. But, I've been thinking about the reprisals that he's likely to face—and what options the United States has to force his return.
Snowden's last known location was a hotel in Hong Kong. He's now in an undisclosed location, but presumably remains in Hong Kong.
U.S. authorities have several options to retrieve the 29-year-old Snowden to face trial in the United States for unauthorized release of data, and possibly, for violations of the Espionage Act. The two options that the media has highlighted are extradition or a revocation of his U.S. passport. Both options would require U.S. authorities to first file criminal charges against Snowden and secure the cooperation of Hong Kong officials.
Another option would be for the United States to kidnap Snowden. The Supreme Court has upheld the practice of kidnapping individuals from foreign countries and bringing them against their will to the United States to stand trial. I view this as a less likely option due to the "clout" of Hong Kong's political master, the People's Republic of China.
In an interview with The Guardian newspaper, Snowden says that he will fight extradition from Hong Kong. However, Hong Kong has an extradition treaty with the United States and tends to comply with U.S. extradition requests. Snowden is apparently counting on clauses in the extradition treaty giving Hong Kong the right to refuse to extradite a criminal suspect under certain conditions.
One exception is if the crime or crimes for which Snowden is eventually charged as criminal conduct aren't considered criminal conduct in Hong Kong. This "dual criminality" provision appears in almost all extradition treaties. In addition, the U.S.-Hong Kong treaty, along with most other extradition agreements, contains an exemption for crimes considered political crimes. Some examples of political crimes are treason, espionage, disclosing classified material, failing to register as a foreign agent and violating sanctions and embargoes.
Two cases come to mind under this exemption: Phillip Agee, a former CIA agent who disclosed the identity of other agents in the 1970s, and Bobby Fischer, the chess champion who violated sanctions against former Yugoslavia by playing a chess match there in 1992. The United States ultimately failed to extradite Agee from the Netherlands (and several other countries), or Fischer from Iceland, based on the political crimes exception to the relevant extradition treaties.
I believe Snowden's case would likely fall under the political crime statute of the U.S.-Hong Kong extradition treaty. Any extradition request would be difficult, complicated, and probably ultimately unsuccessful.
However, if Snowden succeeds in fighting extradition from Hong Kong, the United States can revoke his passport. It's also possible that because of the likely difficulty of extradition, U.S. authorities will simply revoke Snowden's passport and demand his return, and bypass the extradition option entirely. The most likely procedure would be for the Justice Department to issue a criminal complaint and present it to the State Department along with a request to revoke Snowden's passport. Notice of the revocation, meaning that the suspect would then be illegally in the country, would be sent to Hong Kong authorities who could then deport Snowden back to the United States.
There are numerous other circumstances under which U.S. authorities can revoke your passport, or refuse to renew it:
- If a federal or state court has ordered you not to leave the United States
- If another country has requested your extradition
- If you owe more than $2,500 in delinquent child support payments
- If doubts arise about the legitimacy of your birthplace or naturalization as a U.S. citizen.
Even if none of these criteria apply, the list of reasons for the United States to confiscate or non-renew your passport may increase in the years ahead:
- In 2011, the State Department proposed a new "Biographical Questionnaire" that, if approved, you might have to complete to receive or renew your U.S. passport. Among numerous other intrusive questions, the State Department wanted to know "if there were any religious or institutional recoding of your birth or event occurring around the time of birth (Example: baptism, circumcision, confirmation or other religious ceremony)."
- The 2012 Highway Funding Bill eventually signed by President Obama originally contained a provision, later removed, that would confiscate the passport of anyone with a "seriously delinquent tax debt.
- Are you “engaging in, or purposefully or materially supporting, hostilities” against the United States?” If you are, a law proposed in 2011 would revoke both your U.S. passport—and your U.S. citizenship as well. The proposal would eliminate the requirement that U.S. citizens can lose their U.S. citizenship only if they demonstrate their intent to do so.
The only way that Snowden or any other U.S. citizen facing passport revocation and involuntary relocation to the United States can prevent that outcome is with a valid citizenship and passport from another country. This is how Phillip Agee and Bobby Fischer ultimately avoided extradition and deportation to face politically motivated criminal charges in the United States.
I don't know if Snowden has a second passport, or not. I certainly hope so, because I regard his actions to reveal the extent of U.S. surveillance to the world to be nothing less than heroic.
Since the United States uses passport non-renewal as a weapon against political enemies, it only makes sense to obtain a second nationality and passport, “just in case.”
If you don’t qualify for a second passport by virtue of your ancestry, marital status, religious background, or naturalization, you can obtain “economic citizenship” in a matter of months from a selected number of countries in exchange for a contribution or investment. Total expenses for this option range from $130,000 to more than $3 million. The Nestmann Group, Ltd. can assist individuals seeking a second passport in this manner in the Commonwealth of Dominica, St. Kitts & Nevis, and in selected EU countries. Please contact us for more information.
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