U.S. May Face Significant Obstacles in Attempt to Apprehend Edward Snowden

On June 14, U.S. prosecutors filed a criminal complaint against Edward Snowden for leaking classified information regarding National Security Agency surveillance programs, claiming that he committed offenses concerning the theft of government property, unauthorized communication of national defense information, and willful communication of classified intelligence information with unauthorized persons. In order for Snowden to be prosecuted for criminal wrongdoing by U.S. authorities, he must first be taken into U.S. custody. This would likely require the cooperation of the foreign country where Snowden is located. However, there are multiple legal obstacles which may impede Snowden's extradition to the United States.

Extradition to or from the United States is almost exclusively a creature of treaty. The United States has extradition treaties with more than 100 countries [alternative link], although there are many countries with which it does not [alternative link](e.g., Russia). In some instances, as with Cuba, while a bilateral extradition treaty exists, it is effectively in abeyance due to current relations between the parties. In some cases, as well, subsequent modifications in a treaty party's domestic law have effectively limited a treaty's effect. For example, while the United States has extradition treaties with numerous Latin American countries, many of them (including Ecuador) have subsequently amended their constitutions to bar the extradition of their nationals.

Extradition treaties generally authorize the transfer of persons for criminal offenses identified by the underlying agreement. Most modern treaties adopt a dual criminality [alternative link]approach, under which extradition is available when each party recognizes a particular form of misconduct as a punishable offense. However, early U.S. extradition treaties typically provided a list of specific crimes for which extradition was permitted. Many such treaties would not appear to cover the criminal conduct identified by prosecutors in the criminal complaint against Snowden. For example, the U.S.-Ecuador extradition treaty of 1872, as amended, would not appear to authorize extradition for any of the offenses identified in the complaint against Snowden unless, perhaps, U.S. and Ecuadoran authorities interpret the treaty provisions authorizing extradition for larceny or embezzlement offenses very broadly.

Significantly as well, every extradition treaty to which the United States is a party contains a provision barring extradition for so-called "political offenses," or offenses of a political nature. The nature and scope of offenses covered under these provisions vary by treaty and by the understanding of the respective parties to the agreement. Some countries have historically interpreted the political offense exception narrowly to cover a handful of criminal offenses directed singularly at a sovereign nation and that lack the features of an ordinary offense (e.g., there is no violation of the private rights of individuals). Treason, sedition, and espionage are quintessential examples of so-called "pure political offenses." Others countries have interpreted the political offense exception more broadly to cover "relative political offenses" that may include common crimes that have a political motivation of context. While the U.S. authorities appear to take the view that Snowden's offenses do not fall under the political offense exception, it is possible that other countries may disagree. Ecuador, for example, provided refuge to Wikileaks founder Julian Assange in its London embassy because of concern that he faced "political persecution" by U.S. and British authorities on account of his alleged role in the dissemination of classified information. Ecuador is currently considering a request from Snowden that he may be granted refuge in the country, with Snowden characterizing his leaking of NSA surveillance information as a political act for which extradition should not be granted. For further discussion of legal issues raised by the prosecution of persons for the dissemination of classified information, see CRS Report R41404, Criminal Prohibitions on the Publication of Classified Defense Information [alternative link], by Jennifer K. Elsea.