Analysts: U.S. is likely to seek Snowden's extradition, but Beijing has the right of veto
(CNN) — Edward Snowden, the former technical assistant for the CIA who has leaked details of a top-secret American program, is hiding out in a hotel in Hong Kong.
What happens to him next is a subject of intense speculation - and no little legal analysis.
Analysts say the United States is likely to seek his extradition. But Hong Kong could refuse if the government in Beijing decides it might be useful to keep him, and countries such as Iceland could step in to grant him asylum (although there is no suggestion Snowden has yet applied for asylum there.)
By Snowden's own admission, however, all his "options are bad."
"Yes, I could be rendered by the CIA. I could have people come after me. Or any of the third party partners. They work closely with a number of other nations. Or they could pay off the Triads. Any of their agents or assets," he told The Guardian newspaper.
"We have got a CIA station just up the road -- the consulate here in Hong Kong -- and I am sure they are going to be busy for the next week. And that is a concern I will live with for the rest of my life, however long that happens to be."
The U.S. signed an extradition treaty with Hong Kong in 1996 just seven months before the then British colony was handed back to Beijing. Hong Kong's extradition laws had previously been governed by the United States-United Kingdom extradition treaty.
This new treaty established an agreement under Hong Kong's "one country, two systems" that allows Hong Kong autonomy from Beijing in all matters apart from defense and foreign policy.
Analysts say Snowden's leaks puts him squarely in the grey area that straddles Hong Kong's autonomy and Beijing's foreign policy.
"This is a huge political statement," former CIA operative Robert Baer told CNN. "He has put himself in serious legal jeopardy. He leaked signals intelligence and the (U.S.) government is almost mandated to go prosecute him. They will not let this go at all."
He said the U.S. would likely seek an extradition warrant so that Snowden, whom he said was in clear violation of laws governing disclosure of U.S. state secrets, could face felony charges.
Baer also surmised that Snowden's timing may have played to Beijing's anger over charges by the U.S. that China's military had hacked into U.S. government and corporate networks.
"Frankly ... I think they're very angry over the hacking charges that have been brought up over the past couple of months," he said. "I think it's no coincidence that this interview was aired just as the Chinese premier was leaving the United States."
A two-day summit between President Obama and his Chinese counterpart, Xi Jinping, wrapped up Saturday in California - and the thorny issue of cyber-security was on the agenda.
"If you're going to make a political statement like this so strongly with such evidence, you either do it in Washington DC on Capitol Hill or at worst you go to some place like Sweden or Iceland that isn't in the game on this deal.
"I think we're going to hear a lot more about this as the weeks go on and there's a lot more to it," Baer said.
Under the Hong Kong-U.S. treaty, both sides have the right of refusal in the case of political offenses. However, under Hong Kong's Fugitives Offenders Ordinance, Beijing has the right of veto over extraditions that could significantly affect defense or foreign affairs.
Patricia Ho, a lawyer with Daly & Associates in Hong Kong whose firm has handled asylum and refugee claims, said that given Hong Kong's lackluster track record on granting asylum, she was surprised Snowden had lauded the region for its commitment to civil liberties.
Libyan dissident Sami al-Saadi still plans to sue the Hong Kong government for its role in his illegal rendition to and imprisonment in Libya in 2004.
"Within China itself, Hong Kong has better civil liberties but I couldn't see the Hong Kong government granting him asylum given their present practices," she said.
She said if Snowden pursued an asylum claim within Hong Kong, he would have to establish one of three categories of threat: torture, cruel, inhuman and degrading treatment or persecution. The last category is designed to cover ordinary refugees fleeing persecution at home.
The case of WikiLeaks source Bradley Manning -- currently in detention in the U.S. - could help Snowden, Ho said. In 2012, the U.N. Special Rapporteur on Torture found that his detention in solitary confinement for 11 months "constitutes at a minimum cruel, inhuman and degrading treatment in violation of article 16 of the convention against torture."
In this case, Hong Kong could resist extradition unless the US made diplomatic guarantees that Snowden would not meet the same fate as Manning.
Whether China, which exerts considerable behind-the-scenes influence in Hong Kong, would put at risk its relationship with the U.S. over Snowden remains to be seen, she said.
"If he does come forward and decides to resist extradition from within Hong Kong then this would become a very fascinating case because it would challenge 'one country, two systems,'" Ho said.
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