Federal prosecutors have filed a sealed criminal complaint against Edward Snowden, the former NSA contractor who leaked secret surveillance programs, and the United States has asked Hong Kong to detain him on a provisional arrest warrant, authorities said Friday.
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Snowden, 29, who is in hiding in Hong Kong, was charged with espionage, theft, and conversion of government property, The Washington Post reports.
The complaint was filed in the Eastern District of Virginia, where Snowden’s former employer, Booz Allen Hamilton, is based, the Post reports. The district has a long record of handling cases involving national security.
A Justice Department spokeswoman declined to comment to the Post.
Snowden flew to Hong Kong last month after leaving his job at the NSA facility in Hawaii with highly classified documents that he uploaded to a banned USB drive while working at the agency as a systems analyst.
The news came as the British Guardian newspaper published more Snowden revelations about the National Security Agency that showed British spies are running an online eavesdropping operation so vast, it outstrips even the U.S.’s international Internet surveillance effort.
Guardian reporter Glenn Greenwald was among the first reporters to whom Snowden leaked his documents.
The paper cited British intelligence memos leaked by Snowden to report that U.K. spies were tapping into the world's network of fiber-optic cables to deliver the "biggest Internet access" of any member of the Five Eyes — the name given to the espionage alliance composed of the United States, Britain, Canada, Australia, and New Zealand.
The information Snowden leaked also included classified memos and court orders regarding surveillance programs in the United States, the Post reports.
Snowden admitted in a June 9 interview with Britain's Guardian newspaper to leaking information on the NSA's surveillance programs, saying he went to Hong Kong because it provided him the "cultural and legal framework to allow me to work without being immediately detained," the Post reports.
Justice officials have said that Snowden was under a criminal investigation, but in filing a criminal complaint, prosecutors now have the legal foundation to make the request to Hong Kong authorities, the Post reports.
Prosecutors now have 60 days to indict Snowden, which probably would be done under seal, and then seek to have him extradited from Hong Kong for trial in the United States.
But Snowden can fight the United States in the Hong Kong courts, the Post reports.
“They’re going to fight the extradition in Hong Kong,” Mark Zaid, a national security lawyer in Washington, told Bloomberg News. “That could take months.”
The United States has an extradition treaty with Hong Kong, and American officials said cooperation with the Chinese territory, which enjoys some autonomy from Beijing, has been good in previous cases.
The treaty, however, has an exception for political offenses, and espionage has traditionally been treated as a political offense.
Snowden's defense team in Hong Kong is likely to invoke part of the treaty with the United States, which states that suspects will not be turned over to face criminal trial for offenses of a "political character," the Post reports.
Hong Kong’s chief executive, Leung Chun-ying, would decide whether to allow the request to move forward in the local courts, Simon Young, director of the Center for Comparative and Public Law at the University of Hong Kong, told Bloomberg News.
If Leung signs off, a magistrate could then issue a warrant for Snowden’s arrest, Young said in an e-mailed advisory.
“Bail is difficult to obtain because the assumption is against bail, which is only to be granted if there are special circumstances,” Young said.
Once Snowden was in custody, a magistrate would weigh the evidence in the U.S. case. The magistrate’s decision can be appealed through three separate courts. Leung would then have to decide whether to sign a surrender order allowing Snowden to be extradited, Young said.
Under Hong Kong law, a wanted person may not be surrendered on charges eligible for the death penalty unless the requesting country promises it won’t be applied, Young said. Extradition is also barred for offenses “of a political character,” he said.
A similar political-crimes provision in the U.S. extradition treaty with Sweden has posed obstacles to trying to arrest accused spies, most recently Marta Rita Velazquez, a former State Department lawyer charged with recruiting and inserting a spy for Cuba into the Defense Intelligence Agency 30 years ago.
U.S. prosecutors unsealed a nine-year-old indictment against Velazquez in April after alerting Swedish officials to the charges in 2011.
Leung refused to comment on whether the U.S. had approached Chinese authorities about extradition or other assistance during a June 12 interview with Bloomberg Television in New York.
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“We can’t comment on individual cases,” he said “We’ll handle the case according to our law.”
Snowden’s best option for avoiding prosecution is remaining in a country that refuses to extradite him, Zaid said. If brought back to the U.S., Snowden should try to negotiate a plea rather than take his chances with a trial, he said.
“He has erased any meaningful legal defense he could have by his own admissions,” Zaid said in a phone interview. “He freely admitted he’s the one who did it.”
Material from Bloomberg News was used in this story.
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