The Snowden Kerfuffle- How would Sri Lanka have reacted?

| by Dr. Ruwantissa Abeyratne

( July 9, 2013, Montreal, Sri Lanka Guardian) The case of the 29 year old whistle blower Edward Snowden brought to bear the serious ripples of diplomatic fallout that follow an international event of espionage, nuances of law, political interests and strategic manoeuvring between three of the most powerful and influential States in the world. Although there are several issues involved in this case this article will only address the issue of extradition.

If Snowden had fled to Sri Lanka instead of to Hong Kong and Moscow, where he is holed up in the airport transit lounge, what issues would Sri Lanka have to face?

In June 2013, Edward Snowden, a former technical contractor to the National Security Agency (NSA) and the Central Intelligence Agency (CIA) leaked to the media (The Washington Post and The Guardian newspaper) details of top secret American and British mass surveillance programmes. The leaked material included a variety of classified intelligence programmes containing inter alia, intercepted telephone metadata and internet surveillance programmes. This act constituted a breach of United States law, making Snowden a felon. On 14 June 2013 US federal prosecutors filed a sealed complaint which was released to the public on 21 June. The charges against Snowden included espionage, theft of government property, unauthorized communication of national defence information and wilful communication of classified intelligence to unauthorized persons. The latter two offences were claimed to be in direct violation of the US Espionage Act. Charges of espionage and theft were based on Snowden’s access and downloading of classified documents from NSA servers, which led to the publication of several articles regarding the NSA’s surveillance programs, including PRISM, which is alleged to harvest private user data through cooperation with a slew of American corporations including Facebook, Yahoo, Google, Apple and Microsoft. The US is seeking the return of Snowden to the country to face charges laid against him.

Extradition is a process by which one State affects the return of a person required by another State who has committed an offence in the requesting State or who has committed an offence adversely affecting that State, upon request of that State. The request for extradition usually follows the desire of the requesting state to subject the offender to trial for a crime punishable in that State. Extradition is regulated within States by local laws or by treaties between States. Some extradition treaties prescribe that a person can be extradited from one State to another only if the offence committed by that person is also a crime in the State which is requested to extradite that person. Extradition is an exception to the fundamental principle of territoriality applicable to criminal law - that a State does not apply its penal statutes to acts committed outside the territory of that State, except in the instance of protection of its national interests. Extradition is based on international comity and cooperation where States oblige requests for extradition in the interests of bringing a criminal to justice.

Had Snowden fled to Sri Lanka instead of to Hong Kong and Moscow, a slightly different scenario would have unfolded, as Sri Lanka has a valid extradition treaty with the United States, signed by the United States on September 30, 1999 and ratified by Sri Lanka 27 November 2000. The treaty entered into force on 12 January 2001. Under the Treaty, both Contracting States agree to extradite to each other, pursuant to the provisions of the Treaty, persons sought by the authorities in the Requesting State for trial or punishment for an extraditable offense. An offense under the Treaty is an extraditable offense if it is punishable under the laws in both Contracting States by deprivation of liberty for a period of more than one year or by a more severe penalty. An offense is also an extraditable offense if it consists of an attempt or a conspiracy to commit, aiding or abetting, counseling or procuring the commission of, or being an accessory before or after the fact to, any offense described above.

Article 2.3 of the Treaty further provides that an offense shall be an extraditable offense whether or not the laws in the Contracting States place the offense within the same category of offenses or describe the offense by the same terminology; or whether or not the offense is one for which United States federal law requires the showing of such matters as interstate transportation, or use of the malls or of other facilities affecting interstate or foreign commerce, such matters being merely for the purpose of establishing jurisdiction in a United States federal court.

Extradition will be granted for an extraditable offense regardless of where the act or acts constituting the offense were committed. If extradition has been granted for an extraditable offense, it would also be granted for any other offense specified in the request even if the latter offense is punishable by less than one year’s deprivation of liberty, provided that all other requirements for extradition are met. Nationality is not an issue as extradition shall not be refused on the ground that the person sought is a national of the Requested State. However, extradition shall not be granted if the offense for which extradition is requested is a political offense. Extradition will not be granted if the executive authority of the Requested State determines that the request was politically motivated. The executive authority of the Requested State may refuse extradition for offenses under military law which are not offenses under ordinary criminal law.

Article 11.2 stipulates that the application for provisional arrest shall contain: a description of the person sought; the location of the person sought, if known; a brief statement of the facts of the case, including, if possible, the time and location of the offense; a description of the laws violated; a statement of the existence of a warrant of arrest or a finding of guilt or judgment of conviction against the person sought; and a statement that a request for extradition for the person sought will follow. The Requesting State will be notified without delay of the disposition of its application and the reasons for any denial.

One of the key considerations for extradition under this treaty is that an offence, to be extraditable, has to be an offence under the laws of both State Parties. Of some relevance might be The Information and Communication Technology Act No 27 of 2003 which admits of the Minister in Charge of information and technology making regulations for the purpose of giving effect to the principles and provisions of the Act and in respect of any matter which is required or authorized by the Act to be prescribed. Such regulations may pertain, inter alia, to Codes of Conduct for the different sectors in so far as they are necessary, within the framework of the National Policy on Information and Communication Technology, for the purpose of the implementation of such policy.

The Extradition Law of 1977 of Sri Lanka , which makes provision for the extradition of fugitive persons, has 31 specifies extraditable offences, one of which inter alia is theft, criminal breach of trust, dishonest misappropriation of property. On this basis, Snowden would have seemingly committed an offence in the statute books of both the United States and Sri Lanka, satisfying the Treaty between the two countries which calls for an extraditable offence to be one in both jurisdictions. Article 3 (1) of the extradition Law provides for the Minister to declare by order published in the Government Gazette, that the provisions of the law shall apply to the foreign State Party of an extradition treaty with Sri Lanka. Article 6(1) (a) provides that any offence of which a person is accused or has been convicted in any treaty State shall be deemed extraditable if in the case of a offence against the law of a treaty State is an offence which is provided for in the extradition arrangement. Also, an offence will be deemed extraditable in any case if the act or omission constituting the offence or the equivalent act or omission would constitute an offence against the law of Sri Lanka, if it took place within Sri Lanka or outside Sri Lanka.

In the context of the above discussion, it is arguable that, Snowden, had he fled to Sri Lanka, would have been subject to extradition.