Alan Dershowitz, International Law

Edward Snowden Stars In ‘The Terminal 2: This Time For Real’

Does anybody remember that forgettable Tom Hanks movie, The Terminal? Tom Hanks was some kind of foreigner, he got stuck in an airport’s international zone because of a visa problem, and he like learned about America from the airport? Or something?

This seems to be the real life of NSA leaker Edward Snowden. According to reports over the weekend, Snowden is in “legal limbo” at Moscow’s Sheremetyevo Airport’s transit zone. He doesn’t have a valid U.S. passport or a Russian visa and evidently can’t leave the airport. Let’s hope he’s at least getting some love from the Russian Catherine Zeta-Jones (Mila Kunis?), cause otherwise it’s starting to look like leaving Hong Kong was a bad move.

So maybe professor Alan Dershowitz was wrong when he called the Obama administration “stupid” for charging Snowden with espionage?

The Obama administration has come under some fire for its handling of the Snowden situation. Apparently people feel like Obama should be doing more to catch this guy. I was on the Mike Huckabee show this weekend defending Obama (Here’s the clip, up on Buzzfeed), and it seems to me that people are forgetting that Obama has a pretty good track record when it comes to “searching and destroying” people — Americans or otherwise — on foreign soil. If Obama decides to get you, you get got.

Whether or not any of it is done in the most legally elegant way is a different question altogether. Towards that end, Harvard Law Professor Alan Dershowitz piped up a week ago, saying that the Obama administration mishandled the charges against Snowden. From Newsmax:

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.

“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.”

But perhaps it was Snowden who shot himself in the foot with a panic move after the Obama administration charged him with a high crime. From the Wall Street Journal:

Mr. Snowden’s limbo is the product of a series of rapid decisions made during his final 24 hours in Hong Kong, when he was struggling over whether to remain there or seek asylum elsewhere….

At least part of his legal team believed Hong Kong represented the best option to protect their client’s safety and interests, one of the people familiar with his case said. Mr. Snowden, though, was getting a different message from WikiLeaks. On June 12, Mr. Snowden through an intermediary asked the antisecrecy organization to help him seek asylum in Iceland, WikiLeaks said on June 19. In the days after his approach, WikiLeaks asked other governments about asylum possibilities on Mr. Snowden’s behalf.

“He obviously chose to go to Moscow, though I don’t know why. I wouldn’t have,” said Patricia Ho of Hong Kong law firm Daly & Associates, who isn’t involved in the case. She said Mr. Snowden had had a range of options still open to him before he left Hong Kong, including filing for asylum or contesting the U.S.’s request in the city’s robust judicial system.

But Mr. Snowden’s escape plan stalled when he got stuck in the transit area of the Moscow airport.

It’s been widely reported that Snowden eventually planned to go to Ecuador to seek asylum. But I was talking with some international law types this weekend, and they pointed out the objective fact that there are no direct commercial flights from Moscow to Ecuador. And every place Snowden might stop in between has an extradition treaty with the U.S.

That means Snowden would need a private jet, which would be expensive. And even those would need to make at least one fuel stop somewhere, probably in Cuba.

So whatever you think about the Obama administration’s understanding of legal doctrine, its mastery of the Earth’s geography seems more than solid.

Certainly, the administration is using all of its diplomatic options to further restrict Snowden’s legal safe havens:

The Obama administration sought to systematically cut off Mr. Snowden’s asylum options once he left Hong Kong, said senior U.S. officials working on the strategy.

One focus, these officials said, has been to repeatedly stress to Moscow that hopes for better cooperation on issues ranging from counterterrorism to Syria could be jeopardized without cooperation on Mr. Snowden.

On Ecuador, senior U.S. officials, including Vice President Joe Biden, have told Quito that its economic engagement with the U.S. could diminish if Mr. Snowden is granted asylum.

Catching him is one thing, a thing that I think will almost certainly happen at some point. Convicting him will be an entirely different story. Here, I think Dershowitz is exactly on point:

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.

It’s going to be very hard to convince Americans that the guy who told Americans that the government is spying on us is a spy. He might be a criminal, but when this movie switches from The Terminal 2 to “1984 2: So I Was Off By 30 Years,” the government is going to have a much harder case.

Dershowitz to Newsmax: Obama Administration ‘Stupid’ to Charge Snowden with Espionage [Newsmax]
Snowden’s Options for Refuge Narrow [Wall Street Journal]

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