Harvard law professor Alan Dershowitz tells Newsmax that the Obama administration was “stupid” to charge NSA leaker Edward Snowden with espionage since that may give Hong Kong officials a legitimate out to refuse extradition.
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“Forget about whether it’s warranted or not,” said Dershowitz in an exclusive interview on Saturday. “It’s really dumb to charge him with what might be considered to be a political offense when they’re trying to extradite him.”
In addition to being difficult for prosecutors to prove, the extradition treaty with Hong Kong “explicitly excludes political crimes and this gives them an excuse to say ‘we’re not going to turn him over to you because you’ve indicted him for a political crime,'” according to Dershowitz, who is also a Newsmax contributor.
“If they had just indicted him for theft and conversion of property — an ordinary crime — the chances of getting him extradited would have increased dramatically,” he explained. “But at this point they have really shot themselves in the foot. I don’t know why they did it.”
The Obama administration on Saturday sharply warned Hong Kong against slow-walking the extradition of Snowden, reflecting concerns over a prolonged legal battle before the government contractor ever appears in a U.S. courtroom to answer espionage charges for revealing two highly classified surveillance programs.
The U.S. has contacted authorities in Hong Kong to seek Snowden's extradition, the National Security Council confirmed Saturday in a statement. The NSC advises the president on matters of national security.
A formal extradition request to bring Snowden to the United States from Hong Kong could drag through appeal courts for years and would pit Beijing against Washington at a time China tries to deflect U.S. accusations that it carries out extensive surveillance on American government and commercial operations.
"Hong Kong has been a historically good partner of the United States in law enforcement matters, and we expect them to comply with the treaty in this case," White House national security adviser Tom Donilon said in an interview with CBS News. He said the U.S. presented Hong Kong with a "good case for extradition."
Meanwhile, a senior administration official issued a pointed warning that if Hong Kong doesn't act soon, "it will complicate our bilateral relations and raise questions about Hong Kong's commitment to the rule of law." The official was not authorized to discuss the matter by name and insisted on anonymity.
Under a recognized international legal principle, Dershowitz said that the U.S. had no choice but to charge Snowden with all of the offenses for which prosecutors wanted to extradite him.
Nevertheless, espionage will be the most difficult of the offenses to prove. “Espionage requires an intent to hurt the United States to help another country,” said Dershowitz.
“He doesn’t have that intent. He has the intent probably to help the United States. Whether or not you think he’s misguided or not, that’s probably his true intent,” he explained.
The defense will most likely try to argue that the 29-year-old Snowden is a ‘whistleblower’ who was attempting to perform an act of civil disobedience.
“It’s a moral defense but it’s not a legal defense,” Dershowitz asserted. “I don’t see what his defense would be for theft or conversion. The property — the intellectual property that he gave to the newspapers was not was not his to give. It was not his to take. He took computers with him that contained information that he was not authorized to have.”
He said that for a “real act of civil disobedience,” Snowden would typically have surrendered to U.S. authorities, and offered to serve time for his offense.
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“He’s not a spy. He’s a whistleblower who took the law in his own hands — who almost certainly committed a crime, which he believes was justified and warranted,” added Dershowitz. “He’s somebody who decided he had a moral right to break the law and perhaps is prepared to bear the consequences — perhaps not.”
Hong Kong's government had no immediate reaction to the charges against Snowden, a former National Security Agency contractor who admitted providing information to the news media about the secret programs.
Police Commissioner Andy Tsang told reporters only that the case would be dealt with according to the law. A police statement said it was "inappropriate" for the police to comment on the case.
“He’s not a hero,” Dershowitz said of Snowden. But “he’s certainly not a traitor under the technical terms of the crime of treason.”
The Associated Press contributed to this report.
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