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Snowden in Deutschland?

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Monday, November 4, 2013 at 3:01 PM

Word has it that Edward Snowden might be willing to travel to Germany to testify to a public prosecutor or an investigating committee of the German parliament that is looking into mass surveillance.  How risky would that be, both for Snowden and for the U.S.-German relationship, including extradition relations?  Quite challenging for both, it would seem.

As a preliminary matter, Snowden may have no real intention of leaving Russia unless and until the U.S. drops its criminal case against him.  The letter he gave a German member of parliament stated, “I hope that when the difficulties of this [i.e., his] humanitarian situation have been resolved, I will be able to cooperate in the responsible finding of fact . . . . I look forward to speaking with you in your country when the situation is resolved . . . .”   Presumably “when the situation is resolved” means something like “when I am back in the United States without criminal charges hanging over my head.”  Yet the White House yesterday made clear that it has no intention of granting Snowden clemency.  By the terms of Snowden’s own letter, then, he may be leaving Russia no time soon.

If he decides to gamble and travel to Germany, maybe because he received commitments from one or more parts of the German government not to arrest him or transfer him elsewhere, what could happen?  Extradition is the first possibility.  In July, the United States sent Germany an extradition request for Snowden.  If Snowden travels to Germany, two provisions in the U.S.-Germany extradition treaty are particularly relevant.

A first test of whether extradition is possible is whether the request meets the “dual criminality” requirement, which provides that extraditable offenses are those punishable under the laws of both countries.  The United States charged Snowden with espionage and theft of government property.  A 1980 version of the U.S.-Germany extradition treaty listed “larceny” as an extraditable offense; it seems safe to assume it remains a crime in Germany.  The theft of property charge therefore would be covered by the contemporary treaty.

The espionage charges against Snowden are trickier.  While I don’t know what Germany’s espionage laws look like, in 2011 Germany charged Russian agents operating in Germany with acting as intelligence agents, a crime under the German Criminal Code.  But it’s not obvious that that offense tracks the basic elements of the U.S. Espionage Act.  So there might be a dual criminality problem on the espionage charges, though German law experts should feel free to correct me on this.  If there is no equivalent in German law to the type of espionage in which Snowden allegedly engaged, the rule of specialty means that the United States could only try him for the offenses for which Germany extradited him (absent a subsequent waiver by Germany).  Maybe Snowden would see that as appealing – a way to stand trial on only one of the three offenses with which he is charged.

The second important treaty provision is the political offense exception, which would relieve Germany from having to extradite Snowden even if the United States otherwise met the treaty’s requirements.  The treaty provides that “extradition shall not be granted if the offense in respect of which it is requested is regarded by the requested State as a political offense, an offense of a political character, or as an offense connected with such an offense.”  What constitutes a political offense has always been subject to dispute (though espionage typically is deemed one).  When Snowden was in Hong Kong and the United States sought his extradition, the political offense exception felt thinner.  Four months later, in the wake of many additional revelations about NSA activities, it seems more likely that German officials and judges would conclude that Snowden’s espionage was of a political character.  But that still leaves the theft charge.

At the very least, if the German government allows Snowden into Germany and then fails to submit the U.S. extradition request to its courts or if the courts deny extradition, it could raise questions about Germany’s fidelity to the extradition treaty and surely will be seen by the United States as a tit-for-tat move in response to the NSA surveillance issues.

One other way that Snowden might feel safe enough to travel to Germany is if the German government grants him safe passage, with a promise of subsequent asylum.  The Bundestag Research Department prepared a legal opinion stating that Germany could indeed offer Snowden “safe passage,” which presumably is the way he would travel from Germany to Russia, followed by a grant of asylum.  Germany’s national standard for not expelling a refugee (i.e., granting him asylum) is slightly different from the international standard.  Its Aliens Act provides that an alien may not be removed to a state “in which his life or freedom is threatened by virtue of his race, religion, nationality, membership of a particular social group, or political opinion.”  At least three of four parties in the Bundestag support granting asylum to Snowden, although there is a strong legal argument that Snowden does not warrant that status.  Granting Snowden asylum therefore would be a huge slap in the face to the United States.

Bottom line: If Snowden doesn’t travel to Germany, he will spare the U.S. and German governments – and himself – a lot of headaches.  No doubt the German executive, which regulates who enters Germany, will face strong pressures from the Bundestag to allow Snowden in, but they also open themselves up to serious diplomatic headaches if they do so.  Skype may be Snowden’s (and the Merkel government’s) best friend here.

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