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Hong Kong Unlikely Refuge for NSA Whistleblower
The Asian Lawyer
Edward Snowden, a 29-year-old former defense contractor who blew the whistle on wide-ranging surveillance programs run by the U.S. National Security Agency, announced his identity to the world from the Chinese territory of Hong Kong.
In an interview with The Guardian, which has published most of Snowdens disclosures on the NSAs widespread monitoring of phone calls and usage of Google, Facebook, and other popular Internet sites, Snowden said he decided to flee to Hong Kong because it has a spirited commitment to free speech and the right of political dissent.
There have been no charges yet filed against Snowden, so he currently remains free to come and go. But if he chooses to stay in Hong Kong, local lawyers say, he is far from guaranteed safe refuge.
A former British colony, Hong Kong was handed over to Chinese rule in 1997 but retains a high degree of autonomy with a separate government and legal system. A mini-constitution guarantees Hong Kong residents civil liberties like free speech not offered to citizens of mainland China.
The United States has had an extradition treaty with Hong Kong since the handover, but both sides have a right to refuse if political persecution is feared. That possibility has attracted the lions share of attention in local media in Hong Kong.
Theyre all jumping the gun and speculating that Hong Kong has the right of refusal, says Kevin Steel, a defense lawyer with local firm Robertsons. I think you have to go back to basics and find out what the offense is that hes committed.
Steel and other local lawyers say they have little doubt that once the U.S. Department of Justice has decided on the charges it will bring against Snowden, an extradition request will come.
Snowden could ask the Hong Kong courts to deny extradition on the grounds that he would face political persecution back in the U.S. But that would be a major departure for the Hong Kong courts, which have a reputation for being cooperative with their U.S. counterparts.
One Hong Kong criminal defense lawyer, who requested anonymity because his firm may become involved in the case, says the Hong Kong government would likely want to avoid a confrontation with the U.S. over Snowden. The courts can take that desire into account, he notes.
Its one of the factors that judges have to consider, the relationship between Hong Kong and America, but thats balanced against the rights of the individual, the lawyer says. So the relation of Hong Kong and America may mean the judges say, Go run your defense in America, Im still extraditing you.
China also has a right to refuse extradition in cases involving national security, defense, foreign affairs, or an essential public interest or policy. However, lawyers and academics in Hong Kong doubt Beijing would get involved.
The mainland, I think, stays out of this, says Hong Kong University law professor Simon Young, adding that its hard to see what interest China could claim in the Snowden matter.
They wouldnt interfere willy-nilly in Hong Kong affairs, he says.
If Snowden lost his fight against extradition to the U.S., Young says, he might still be able to request asylum in Hong Kong, similarly citing a fear of political persecution in the United States. But the professor also notes that the Hong Kong government could reject such an application on the grounds that the courts had already decided against Snowden on the issue.
Young does point out that the current state of Hong Kongs asylum process may work in Snowdens favor, though. Hong Kongs Court of Final Appeal ruled in March that the government could no longer hand off its refugee assessment process to the United Nations. The court ordered the government to create a new system to determine the refugee status of asylum-seekers, but that has yet to happen.
That may have been a factor in Snowdens choosing Hong Kong, says Young. As long as there is no process to determine refugee status, asylum-seekers will remain in legal limbo.
In this state, the government cant return you, he says. If you knew this was Hong Kongs situation, that it would probably take months if not years for Hong Kong government to resolve this, [Hong Kong] seems like a fairly safe place to be in.
But Cosmo Beatson, executive director of Vision First, a refugee assistance group, says Snowden does not have a realistic chance of winning asylum in Hong Kong. He notes that since 1992, out of some 13,000 cases filed, there have been only four asylum cases accepted, all involving Tamil rebels fleeing civil war in Sri Lanka. Beatson says Snowden must have been advised of this and is likely in Hong Kong for other reasons.
"The real route to asylum is a dead end here [in Hong Kong]," he says. "So he's not here to seek asylum, and he knows that."
This article originally appeared in The Asian Lawyer.