Edward Snowden

Why Edward Snowden would be better off back in Hong Kong

Mike Rowse says he could rely on Hong Kong's courts to do the right thing

PUBLISHED : Monday, 08 July, 2013, 12:00am
UPDATED : Monday, 08 July, 2013, 1:35am

Am I the only person in Hong Kong who thinks the best thing to happen next in the Edward Snowden saga would be for him to return to our city? Perhaps, but it wouldn't be the first time I have been in a minority of one.

The first reason I want him back is that I want to know more about the identity of the several hundred people whose e-mail accounts have been hacked and whose calls are being monitored by various US intelligence agencies.

Bearing in mind that this activity, while illegal under Hong Kong law, has apparently been "authorised" under US domestic legislation, surely the main point is that these people must (under the terms of that legislation) be suspected of links to terrorism. Up to this point I had not considered Hong Kong a hotbed of al-Qaeda activity, but if I am wrong then I think we are all entitled to know more.

Secondly, I would like to see a test of our extradition procedures and our arrangements for handling applications for political asylum. Before the friends of Snowden start to panic, let me assure them I can think of three very good reasons why a Hong Kong court should reject any request for his return to the US.

The first is the possibility of torture. The nearest comparable case in recent times is that of Bradley Manning, the US soldier now on trial for leaking thousands of confidential documents to WikiLeaks. Following his arrest, Manning was kept in solitary confinement for 11 months, and for long periods during that time was deprived of his clothes.

A UN report concluded that his treatment constituted torture. No Hong Kong judge worthy of the name could order extradition in a case where there was a significant risk of the prisoner being tortured.

The second question a judge would have to ask is whether the accused had a reasonable prospect of a fair trial. The serving US president, the previous vice-president and the current secretary of state, among others, have all stated explicitly or by implication that this man is a traitor who should be sent back to America. What reasonable prospect would there be of a fair trial in such circumstances?

Then there is the issue of a "public interest" defence. In broad terms, a whistle-blower can argue for acquittal if he can show that the benefit to society of revealing various activities outweighs the damage to the public interest of revealing official secrets. The US Patriot Act specifically excludes use of the public interest defence. However, that does not mean it could not be raised in a Hong Kong court.

Each of these three reasons may, by itself, constitute sufficient grounds to refuse extradition. Taken together, they could be overwhelming.

The public relations spin by US officials on the case is also very illuminating. One line of argument is that this is a minor matter, every government does this, everybody knows it goes on, no one can possibly be surprised, so what is all the fuss about.

The alternative approach is that this is an extremely serious matter; disclosing top secret details is treason, "people will die because of this" (that's an actual quote, used by several people), and he should be extradited immediately.

The interesting thing is that these lines have been used by the same people in the same conversation even though both cannot be true at the same time.

Unless … the position is that spying on Hong Kong people is a minor matter, while telling the truth about it is a serious matter because it shows America in a bad light.

Consul General Stephen Young has said it will take a long time to restore trust between the US and Hong Kong. I fear he is right, but not in the way he means.

Mike Rowse is the search director of Stanton Chase International and an adjunct professor at the Chinese University of Hong Kong. [email protected]