Current Complaint is Defective; Would Not Require Extradition From Any Country
WASHINGTON, D.C. (February 11, 2017): Russia is apparently considering turning over Edward Snowden to U.S. authorities. If they do, it will probably be – as is being widely reported – as a “gift” to curry favor with President Trump, and not because his extradition would be warranted under what appears to be a legally defective criminal complaint, says public interest law professor John Banzhaf.

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Indeed, according to an analysis published by Banzhaf when Snowden’s extradition from Hong Kong was initially being sought, major legal defects in the complaint would have justified Hong Kong in refusing to comply with its obligations under its extradition treaty with the U.S., regardless of any influence by China, or other political pressures and concerns.

Indeed, the defects are so significant that any country to which he might go would be justified in refusing to extradite Snowden based upon that complaint, and his lawyers might be able to successfully contest his extradition even from countries friendly to the U.S., says Banzhaf, who was involved in a similar legal quandary some time ago.

The key charge in the Snowden criminal complaint, the only one which does not involve espionage and therefore would justify extradition under current international extradition treaties, is contrary to the very text of the criminal statute, to Supreme Court and other lower court rulings which have definitively interpreted it, and to the Justice Department’s own analysis and guidelines, says Banzhaf.

The criminal complaint asserts that Snowden violated three different federal criminal statutes: 18 U.S.C. § 641 (“Theft of Government Property”), 18 U.S.C. § 793(d) (“Unauthorized Communication of National Defense Information”), and 18 U.S.C. § 798(a)(3) (“Willful Communication of Classified Communications Intelligence to an Unauthorized Person”).

The latter two charges are part of U.S. laws commonly called the Espionage Act. But as the Congressional Research Service [CRS] and other legal sources have noted, “No U.S. extradition treaty currently in force lists espionage as an extraditable offense.” Thus, under the current criminal complaint, extradition can only be based upon the third charge, 18 U.S.C. § 641.

However, a key element of 18 U.S.C. § 641 is that the defendant must have taken the government property for “his own use or the use of another” or intends to “convert it to his use or gain.”

But the publicly available information, including Snowden’s own statements, indicates that he did not take the information for his own gain or use, or for the gain or use of others, but rather took it for the purpose of making it public.

Regardless of what one may think about his motives in disclosing classified information, it’s pretty clear than his intent was not to benefit himself or others. Thus any extradition request, based upon that statute, could be contested in the hearings normally required before extraditions are ordered, even if the country is friendly to the U.S. and disposed to return Snowden to us.

The Justice Department’s US Attorneys Criminal Resource Manual agrees.

It says that one of the several elements which the prosecutor must be prepared to prove is that “the defendant’s dealings with the property constituted a fraudulent conversion or appropriation of it TO HIS OWN USE. [emphasis added].

So if, as it appears, Snowden in no way tried to appropriate the information for his own use, the complaint would not apply to his actions, and could not provide a valid basis upon which to extradite him.

Interestingly, the manual also says that still another element of the crime which must be established beyond a reasonable doubt is that “the defendant acted with the intent to deprive the owner of the use of this property.”

Since Snowden apparently copied – rather than removed – the information, the U.S. arguably has not be deprived of its property.

Perhaps most telling of all, and most damaging to the government’s position, is the following statement of the Justice Department’s policy from the same manual: “the Criminal Division believes that it is inappropriate to bring a prosecution under 18 U.S.C. § 641 when: (1) the subject of the theft is intangible property, i.e., government information owned by, or under the care, custody, or control of the United States; (2) the defendant obtained or used the property primarily for the purpose of disseminating it to the public; and (3) the property was not obtained as a result of wiretapping, (18 U.S.C. § 2511) interception of correspondence (18 U.S.C. §§ 1702, 1708), criminal entry, or criminal or civil trespass.”

Thus, in addition to the theft allegation in the complaint being inconsistent with the very text of the relevant statute, and inconsistent with two of the elements which the Justice Department says must be established, bringing such a charge, under the facts as they are generally publicly known, seems to be contrary to the long standing and established public policy of the federal government.

It’s hard to demand that other countries abide by the rules of law when our own request is apparently based upon violation of our own laws and clearly established public policies, argued Banzhaf.

The Justice Department explains the primary purpose of this policy, of not prosecuting people who have done what Snowden appears to have done, as follows: “It protects ‘whistle-blowers.’ Thus, under this policy, a government employee who, for the primary purpose of public exposure of the material, reveals a government document to which he or she gained access lawfully or by non-trespassory means would not be subject to criminal prosecution for the theft.”

Whether one agrees or disagrees with Snowden’s stated motives, this description from the official manual, explaining why prosecutions should not be brought under certain circumstances even if they might appear to be otherwise warranted, appears to fit him to a “T,” notes Banzhaf.

A similar legal issue arose during 1984, in what has been called “Debategate,” when government documents prepared to help President Jimmy Carter in a forthcoming presidential debate were apparently copied in an unauthorized manner and made available to his challenger, Ronald Reagan.

Prof. Banzhaf sought to obtain a special prosecutor to investigate the “theft” of government documents, but many legal experts argued that no federal statute had been violated because the original documents remained in the possession of the government.

Banzhaf was able to persuade a federal judge that the taking did violate federal law, and that a special prosecutor should be appointed, but that ruling was later reversed on other legal grounds: that the statute did not authorize that type of law suit.