The race is on to find Edward Snowden, the runaway former consultant to the National Security Agency. When we find him, we could just snatch him from his new hideout and bring him home for trial.
Snowden vanished from his hotel room in Hong Kong after giving an interview in which he confessed to being the source of The Guardian’s big scoop about how the US government has been gathering data on phone calls. It’s hard to think of a situation quite like it since the movie “Catch Me if You Can.”
What would the courts do if the Obama administration, instead of beginning a long extradition process with Hong Kong or negotiations with Communist China, simply grabbed young Snowden and brought him into an American court?
The idea might seem to violate the rule of law. But check the precedents: A number of Supreme Court cases, including some that are relatively recent, suggest the court wouldn’t be overly particular as to how President Obama might bring Snowden in.
I first raised this idea after a Scottish court freed the Libyan agent who’d been serving a sentence for bombing Pam Am Flight 103, killing 270 people. The killer, Abdelbaset Ali al-Megrahi, was permitted to fly back to Libya, supposedly to die of cancer — but instead to be welcomed with open arms by the Khadafy regime.
No one raised any legal objection to the idea that Obama send a raiding party to Libya to seize Megrahi, but neither did Obama act. Megrahi died a free man.
Perhaps a raid isn’t the best way to go about getting Snowden into custody. But if it is, the Supreme Court is unlikely to object.
This came into focus in the 1992 case of Mexican physician Humberto Alvarez Machain, who’d been indicted for participating in the murder of a special agent, Enrique Camarena Salazar of the Drug Enforcement Administration, and a pilot working with him. The doctor allegedly kept Camarena alive so that others could torture and kill him.
Alvarez was kidnapped from his medical office at Guadalajara, Mexico, and flown by private plane to El Paso, Texas, where US agents were waiting and arrested him.
Our lower courts concluded that Alvarez had been kidnapped by the DEA, and tried to send him back to Mexico on the theory that the kidnapping violated America’s extradition treaty with that nation.
The Supreme Court, however, proved to be not so much of a patsy.
It cited a number of precedents, including one that suggested a prosecution would have a freer hand in dealing with a fugitive if the government dispensed with extradition proceedings and simply kidnapped the culprit. It seems that once the government uses an extradition treaty, it must obey its terms, which can have their own restrictions.
The high court also cited a case in which Michigan had kidnapped a wanted person from Illinois. In that opinion, Justice Hugo Black wrote that the court has “never departed” from the rule that “the power of a court to try a person for crime is not impaired by the fact that he had been brought within the court’s jurisdiction by reason of a ‘forcible abduction.’ ”
The court conceded the kidnapping was “shocking” but concluded that it wouldn’t prohibit Alvarez from being tried.
So this is a moment of truth not only for Edward Snowden but also for Obama. How seriously does our president take the war we’re in and the crime that Snowden admits to committing?
There is speculation in Hong Kong that Snowden could seek political asylum there, while the Kremlin is beckoning him to take refuge in Russia.
Is Obama going to dicker under extradition treaties with countries that lack the full freedoms of democracy? Or is he prepared to test the powers of his office and of his intelligence services to the fullest extent that the Supreme Court has allowed?