The U.S. Justice Department has charged former National Security Agency contractor Edward Snowden with espionage and theft of government property in the NSA surveillance case.
Mr. Snowden, believed to be holed up in Hong Kong, has admitted providing information to the news media about two highly classified NSA surveillance programmes.
A criminal complaint unsealed on Friday in federal court in Alexandria, Virginia, says Mr. Snowden engaged in unauthorised communication of national defence information and wilful communication of classified communications intelligence information. Both are charges under the Espionage Act. Mr. Snowden also is charged with theft of government property. All three crimes carry a maximum 10-year prison penalty.
The federal court in the Eastern District of Virginia where the complaint was filed is headquarters for Mr. Snowden’s former employer, government contractor Booz Allen Hamilton.
The complaint is dated June 14, 2013 five days after Mr. Snowden’s name first surfaced as the leaker of information about the two programmes in which the NSA gathered telephone and Internet records to ferret out terror plots.
The complaint could become an integral part of a U.S. government effort to have Mr. Snowden extradited from Hong Kong, a process that could turn into a prolonged legal battle. Mr. Snowden could contest extradition on grounds of political persecution. In general, the extradition agreement between the U.S. and Hong Kong makes an exception for political offences from the obligation to turn over a person.
It was unclear late Friday whether the U.S. had made an extradition request. Hong Kong had no immediate reaction to word of the charges against Mr. Snowden.
The Espionage Act arguably is a political offence. The Obama administration has now used the act in eight criminal cases in an unprecedented effort to stem leaks. In one of them, Army Pfc. Bradley Manning acknowledged he sent more than 700,000 battlefield reports, diplomatic cables and other materials to the anti-secrecy website WikiLeaks. His military trial is underway.
The U.S. and Hong Kong cooperate on law enforcement matters and have a standing agreement on the surrender of fugitives.
The success or failure of any extradition proceeding depends on what the suspect is charged with under U.S. law and how it corresponds to Hong Kong law under the treaty. In order for Hong Kong officials to honour the extradition request, they have to have some applicable statute under their law that corresponds with a violation of U.S. law.
In Iceland, a business executive said on Friday that a private plane was on standby to transport Mr. Snowden from Hong Kong to Iceland, although Iceland’s government says it has not received an asylum request from Mr. Snowden.
Business executive Olafur Vignir Sigurvinsson said he has been in contact with someone representing Mr. Snowden and has not spoken to the American himself. Private donations are being collected to pay for the flight, he said.
“There are a number of people that are interested in freedom of speech and recognise the importance of knowing who is spying on us,” Mr. Sigurvinsson said. “We are people that care about privacy.”
Disclosure of the criminal complaint came as President Barack Obama held his first meeting with a privacy and civil liberties board as his intelligence chief sought ways to help Americans understand more about sweeping government surveillance efforts exposed by Mr. Snowden.
The five members of the little-known Privacy and Civil Liberties Oversight Board met with Mr. Obama for an hour in the White House Situation Room, questioning the President on the two NSA programmes that have stoked controversy.
One programme collects billions of U.S. phone records. The second gathers audio, video, email, photographic and Internet search usage of foreign nationals overseas, and probably some Americans in the process, who use major providers such as Microsoft, Google, Apple, and Yahoo.
Hong Kong silent on extradition
Hong Kong was silent on Saturday on whether Mr. Snowden should be extradited to the United States now that he has been charged with espionage, but some legislators said the decision should be up to the Chinese government.
It is not known if the U.S. government has made a formal extradition request to Hong Kong, and the Hong Kong government had no immediate reaction to the charges against Mr. Snowden. Police Commissioner, Andy Tsang, when was asked about the development, told reporters only that the case would be dealt with according to the law. A police statement said it was "inappropriate" for the police to comment on the case.
When China regained control of Hong Kong in 1997, the former British colony was granted a high degree of autonomy and granted rights and freedoms not seen on mainland China. However, under the city's mini-constitution Beijing is allowed to intervene in matters involving defense and diplomatic affairs.
Legislator Leung Kwok-hung said Beijing should instruct Hong Kong to protect Snowden from extradition before his case gets dragged through the court system. Leung also urged the people of Hong Kong to "take to the streets to protect Snowden."
Another legislator, Cyd Ho, vice-chairwoman of the pro-democracy Labour Party, said China "should now make its stance clear to the Hong Kong SAR (Special Administrative Region) government" before the case goes before a court.
China has urged Washington to provide explanations following the disclosures of National Security Agency programmes which collect millions of telephone records and track foreign Internet activity on U.S. networks, but it has not commented on Mr. Snowden's status in Hong Kong.
A formal extradition request, which could drag through appeal courts for years, would pit Beijing against Washington at a time China tries to deflect U.S. accusations that it carries out extensive surveillance on American government and commercial operations.
A prominent former politician, Martin Lee, the founding chairman of the Democratic Party, said he doubted whether Beijing would intervene at this stage.
"Beijing would only intervene according to my understanding at the last stage. If the magistrate said there is enough to extradite, then Mr. Snowden can then appeal," he said.
Mr. Lee said Beijing could then decide at the end of the appeal process if it wanted Mr. Snowden extradited or not.
Hong Kong lawyer Mark Sutherland said that the filing of a refugee, torture or inhuman punishment claim acts as an automatic bar on any extradition proceedings until those claims can be assessed.
"Some asylum seekers came to Hong Kong 10 years ago and still haven't had their protection claims assessed," Mr. Sutherland said.
Organisers of a public protest in support of Mr. Snowden last week said on Saturday that there were no plans for similar demonstrations this weekend.