Asked and Answered

Paul Dubinsky on NSA Whistleblower

By Steve Thorpe
sthorpe@legalnews.com

Former U.S. intelligence employee Edward Snowden recently revealed to the Washington Post and to the Guardian newspaper aspects of the National Security Agency’s sweeping collection of data relating to telephone calls, email communications, and Internet use. Snowden left his job with U.S. government contractor Booz Allen, traveled to Hong Kong, and then identified himself as the source of the leaks about the government’s controversial program. Since then, a national debate has raged in the U.S. about the U.S. government’s access to phone and Internet records of U.S. citizens, and about whether Snowden should be indicted and extradited. Paul Dubinsky, associate professor of law and director of graduate studies at Wayne State University Law School, is an expert on international law and national security law. A graduate of Yale College, Harvard Law School and the Universiteit Katholieke of Leuven, Belgium, he often gives presentations on national security legal issues.

Thorpe: Should the government’s pursuit of individuals accused of national security crimes be different, in terms of extradition, than its pursuit of those accused of drug crimes, violent crimes and human rights atrocities?

Dubinsky: The approach should be similar but not identical. At the heart of whether to seek extradition is the strength of the evidence that a violation of American criminal law has taken place and whether the specific offense falls within the scope of one of our extradition treaties. That should be the starting place in all four situations. That said, there are five additional considerations that make national security extraditions different from the others.

First is the potential harm that national security crimes pose. A $10 million shipment of heroin into the U.S. is terrible, but a cybercrime that could take down one of our electrical grids is potentially catastrophic. The second factor is time. Any government lawyer will tell you that the best way to limit the damage in the Snowden case is to get Mr. Snowden back to the United States as soon as possible. In contrast, even in the case of the most egregious human rights offenses, more than a decade elapsed before Radovan Karadzic and Ratko Mladic found themselves in the Hague. Third, in extradition proceedings involving drug traffickers and human rights abusers, there is more at stake than enforcement of national law. Also at stake is vindication of international law. Torture is a violation not only of a U.S. federal statute but also of the UN Torture Convention. A country that seeks the extradition of a torturer is acting not only in its self-interest but also as an agent of the international community. Generally, the same cannot be said when a country pursues an individual accused of violating its own laws designed to protect its national security. Fourth, our extradition treaties contain a political offense exception. We likely would not extradite a person charged with leading the current demonstrations in Brazil or Turkey, even if that person acted illegally under Brazilian or Turkish law. To the authorities in Hong Kong or elsewhere, Snowden’s acts of cyber civil disobedience may look like a political objection to a policy of the American government that in the eyes of some is contrary to international law or just wrong. Fifth, some extradition proceedings play themselves out on a world stage. Seasoned lawyers in the Department of Justice and the Department of State understand that what is involved here is not merely getting our hands on this one individual and meeting our immediate national security objectives. This case is also about how the rest of the world perceives us. Recent polls in Germany suggest that we are seen as obsessed with 100 percent security for our citizens at the expense of the privacy of people elsewhere. Will extradition proceedings reinforce that impression? Will such proceedings make us appear secretive and vindictive?

Thorpe: Tell us about bilateral extradition treaties, which were not written with national security crimes in mind. Do they need to be revisited? How might the U.S. seek to modify them and how successful might we be?

Dubinsky: We are party to a large number of bilateral extradition treaties. Not all of them are with countries with which we enjoy warm friendship all of the time. The basis of these treaties is mutual interest.
They work best in the case of murder and hijacking. The former is a crime under every national legal system and is defined similarly from country to country. The latter is the focus of international treaties with nearly universal ratification. In contrast, there is great variation, from one country to another, in defining threats to national security. Does it include the denial of access to petroleum from foreign producers? Does it include complete control over illegal immigration, including acts or omissions outside the country? For several decades, the United States has defined its national security interests quite broadly. It is difficult to imagine a large number of countries embracing our definition and being willing to ratify revised extradition treaties that would obligate them to extradite people like Snowden with no questions asked.
Thorpe: Rep. Mike Rogers, R-Michigan, recently said on CNN that the NSA “is not listening to Americans’ phone calls” or monitoring their e-mails. The NSA has repeatedly said that it collects only metadata, phone numbers and duration, of phone calls, but not the actual conversations. Does national security law treat metadata differently than content?

Dubinsky: This is an excellent question but one that is not entirely resolved. In the context of a criminal investigation focused on a limited number of suspects, Fourth Amendment law treats metadata as different from conversation content. The Supreme Court has concluded that a person has little constitutionally protected privacy interest in what he or she voluntarily exposes to public view, such as his or her telephone number or the fact that a credit card purchase was made on a certain date. According to the Court, this is so even if he or she exposes information in a context in which no one is likely to be watching or inspecting (for example, trash placed on the curb or marijuana grown in a hedge-surrounded backyard). But what we have in the just-filed ACLU v. NSA case is government data accumulation and analysis on a massive scale and not supported by individual-specific probable cause. In my view, what the Court has said so far in cases focused on apprehending specific suspects for past crimes, rather than preventing terrorist attacks in the future, does not clearly resolve the fundamental and far-reaching questions before us: Is there any limit to the amount of information about us that the United States government can collect? Can the U.S. government require us to assist it in this process? Is there any limit on the length of time that this information can be stored?

In my view, it would be best for our society at this time if the Supreme Court did not need to answer such questions. Many would take some comfort if the political branches pursued sensible solutions that demonstrated a noticeable degree of self-restraint.

Thorpe:
What about when the “shoe is on the other foot,” so to speak? Does the U.S. respond differently when a defector comes here with secrets from Cuba or Iran?

Dubinsky:
We sure do. Cuba and Iran may not be the best examples; we do not have extradition treaties with either of those countries, though you are right that some would think that a defecting nuclear scientist from Iran should throw out the first pitch at Comerica Park. But consider a hypothetical case that I will give to my students next semester. It concerns military procurement and restrictions on how some U.S. manufactured arms can be used (e.g., no transfer to third countries or no use whatsoever in the context of domestic street demonstrations). How would we regard a foreign whistleblower who violated foreign law and told U.S. officials that these restrictions were being violated? Would we extradite such a person?


 

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