If Washington is serious about seeking Edward Snowden's extradition, US Congress had better rescind House Resolution 277, passed in 2003, which categorically rejected national security as grounds for curtailing individual freedom in Hong Kong. The congressional bill is coming back to haunt the US.
The US government's opposition to the proposed Article 23 security amendment to the Basic Law went as far as sending funds and observers for the July 2003 street protests by half a million Hongkongers. By its active intervention and uncompromising legal language, Washington crossed the political Rubicon for civil rights and cannot now reverse its stance without being seen as total hypocrites.
In the same vein as the US Homeland Security Act that came two years earlier, Article 23 was similar to most anti-subversion proposals in its heavy-handedness and dubious disregard for civil rights. It stated: "The HKSAR shall enact laws on its own to prohibit any act of treason, secession, sedition, subversion against the central people's government, or theft of state secrets."
Note the phrase "theft of state secrets". In its critique, Congress made no exception for the heist of government files and, on the contrary, defended the consulate's routine use of Hong Kong as a market for stolen documents. "The People's Republic of China's history of arbitrary application of its own criminal law against dissenters, and its pattern of imprisoning and exiling those with whom it disagrees, provide strong reasons to oppose the expansion of Beijing's ability to use its discretion against Hong Kong's freedoms," it said.
Congress argued that fugitives from security laws should be allowed to remain in the safe haven of Hong Kong with immunity from deportation back to a jurisdiction where stern punishment is meted out. "Subversion laws in the People's Republic of China are regularly used to convict and imprison journalists, labour activists, internet entrepreneurs, and academics." The detention of the WikiLeaks whistle-blower Bradley Manning and the harsh treatment of suspects at Guantanamo can hardly be taken as signs of leniency.
With indignant self-righteousness, even as the US was conducting its no-holds-barred "war on terror", Congress condemned "any restriction of the freedom of thought, expression, or association in Hong Kong, consistent with the United States-Hong Kong Policy Act of 1992".
Today, as Snowden incurs the wrath of the National Security Agency (NSA), Washington must either stand by its own words or eat them in public. Snowden entered Hong Kong not as a thief to auction the classified documents to the highest bidder but as an advocate of intellectual freedom to disclose their content for worldwide public debate.
Instead of authorising extralegal espionage against innocent civilians, Congress should rescind its own version of Article 23. The US, which prides itself for being "exceptional" in its defence of democracy, should lead by positive example.
As for the alarmed NSA spymasters and their CIA henchmen, desperate times should not call for desperate measures - for instance, the sort of kidnapping, detention and renditions done covertly from Hong Kong in the recent past. Those illegal methods give credence to Snowden's fears of reprisal and boost his chances for political asylum.
As stated by Congress in its lambast against Article 23: "It is the duty of freedom-loving people everywhere to stand with the people of Hong Kong against this dangerous erosion of its long-held and cherished rights." The Snowden affair is thus a test case for Washington as much as it is for Hong Kong lawmakers and its judicial system.
Yoichi Shimatsu, former editor of The Japan Times Weekly in Tokyo, was a founding faculty member of the Journalism and Media Studies Centre at the University of Hong KongTopics: Edward Snowden Article 23