A Simple Guide to How Extradition Works, For Everyone Who Thinks Edward Snowden is a Criminal

Russia is growing increasingly impatient with the ongoing Edward Snowden saga at Moscow’s Sheremetyevo airport, now in its second week. Russian authorities claim that by remaining in the international transit terminal, Snowden has not yet entered Russian territory and is therefore outside of their reach. Even if he leaves the terminal and passes through immigration and customs controls, Russian authorities cannot take him into custody or extradite him the U.S. After all, he has not broken any Russian laws and Russia does not have a bilateral extradition treaty with the U.S.

Snowden arrived in Moscow from Hong Kong, which allowed him to depart despite an outstanding American request to detain him pending formal extradition proceedings. The Hong Kong government justified its decision to allow him to leave based on the failure of the U.S. request to comply with technical aspects of local law. Most observers believe that Hong Kong was looking for any excuse to rid itself of the drama Moscow has now inherited.

With Washington clamoring for Snowden’s extradition to face charges on U.S. soil, it is important to understand how extradition actually works (or in this case doesn’t work). Below is a simple guide to how extradition works based on the official Department of Justice (“DOJ”) manual for U.S. prosecutors.

What is Extradition?

Extradition is the process by which a person located outside the U.S. is handed over by a foreign government to the U.S. government for trial and/or punishment back in the States.

Extradition normally requires a treaty between the U.S. and another country that specifies who can be extradited, for what crimes, etc. The U.S. has roughly 107 extradition treaties in place, including with Venezuela, where Snowden has announced he will seek asylum.

Extradition is different from deportation/expulsion wherein a person present in a foreign country is sent back to the U.S. (or the country he or she came from). This can happen for a variety of reasons defined by the local law of the foreign country, including invalid travel documents or being a risk to public safety. It is typically a more flexible and discretionary alternative to extradition, assuming the foreign country’s laws allow for it. For instance, the State Department may revoke the passport of a fugitive named in a federal warrant, which oftentimes will result in loss of the fugitive's lawful residence status, thereby provoking his or her deportation. The U.S. did not revoke Snowden’s passport (and/or notify Hong Kong) until after he had left on a flight to Moscow.

“Extraordinary rendition” is also different from extradition and refers to the forcible abduction of a person in a foreign country by U.S. agents or private bounty hunters, who physically bring the individual to the U.S. The Supreme Court has recognized the legality of this practice in limited circumstances, but the U.S. government stresses that prosecutors should not arrange for the rendition of suspects “without advance approval by the Department of Justice” (Jack Bauer, take note).

Who Can be Extradited?

Not everyone can be extradited. First, the fugitive must be charged with or have been convicted a criminal offense – extradition cannot be sought if a person is only a suspect. Older extradition treaties almost always limit extradition to cases involving a specific list of crimes, including murder, attempted murder, rape, kidnapping, burglary, robbery, etc.

Luckily for Snowden, the crimes he has been charged with – espionage and theft and conversion of government property – are not traditional extraditable offenses. They are not included in the U.S.-Venezuela Extradition Treaty of 1922, for example, which would in theory allow the Venezuelan government to deny a U.S. extradition request should Snowden make his way to Venezuela. The U.S. would likely argue, however, that theft and conversion of U.S. government property falls within the treaty’s definition of larceny -- “the theft of effects, personally property, or money of the value of 50 dollars” or more.

Newer extradition treaties commonly remedy this limitation and allow for extradition in any case where the crime committed or alleged is a felony in both countries. But it is also common for extradition treaties (such as the U.S. extradition treaties with Venezuela and Ecuador) to prohibit extradition for any “crime of offense of a political charter” (a term that is left undefined in the treaties). Some experts have argued that Snowden’s crimes may be considered political in nature in that his stated motive was to shed light on troubling U.S. government practices and he is being punished for such politically-motivated acts.

It is also important to know the citizenship of the fugitive. Even if he or she has committed an extraditable offense, many countries will refuse to extradite their own citizens. This does not seem to help Snowden because he is a citizen of the U.S. only. Many countries will also refuse to extradite a fugitive who faces the death penalty for his or her crimes. 

How Does the Extradition Process Work?

The Justice Department oversees U.S. extradition requests and ensures that the paperwork (i.e. an affidavit stating the facts of the case, copies of the U.S. laws allegedly broken, copies of the indictment/arrest warrant if applicable, summary of relevant evidence, etc.) is prepared properly. Once the extradition package is complete, it is translated (as needed) and transmitted by the State Department to the U.S. Embassy in the foreign country and then on to the local government. If extradition is approved, the Embassy will coordinate the hand over of the fugitive to the U.S. Marshals, who typically escort the fugitive back to the U.S. to face justice.

Given the time required to prepare a formal extradition request, most treaties allow for provisional arrest of fugitives in urgent cases. The U.S. requested that Hong Kong provisionally arrest Snowden pending a formal extradition request, but Hong Kong demurred on technical grounds (even though politics was likely the real culprit).

What Will Snowden Do?

Lacking a valid passport and stranded in the Moscow airport, Snowden’s options are extremely limited. He could leave the airport and attempt to enter Russia, but Russia is likely or stop him because he does not have valid travel documents (e.g. a passport, visa, etc.). It may not deport him to the U.S., but Russia would at a minimum likely require him to fly onward to a third country (as Hong Kong did).

Venezuela has offered Snowden asylum, but it remains unclear whether he can reach Caracas without flying over or through a country that would bend to U.S. requests for his arrest and/or eventual extradition. The forced landing of Bolivian President Evo Morales’ plane last week – that was suspected of carrying Snowden – in Austria suggests that Snowden would need to avoid U.S. airspace and that of its allies if he wants to dodge arrest.

Flying from Moscow to Havana, Cuba, and then onwards to Venezuela is possible but not without risks. After all, the flight from Moscow would likely transit at least one Baltic or Scandinavian country. Any one of those countries could order the flight to land and take Snowden into custody once it does so.

With no commercial direct flight from Moscow to Caracas, Snowden's safest bet is probably to travel via private jet. The question is, are there enough lines of communication open to coordinate such an operation – and ensure a flight routing that avoids the airspace of all U.S. allies? And even if there are, what jet-toting billionaire is willing to lend his or her plane to Snowden and risk spurring the ire of the U.S. intelligence apparatus?