The Edward Snowden Affair

by Michael Gurnow

  Snowden told the SCMP, “My intention is to ask the courts and people of Hong Kong to decide my fate. I have had many opportunities to flee Hong Kong, but I would rather stay and fight the United States government in the courts, because I have faith in Hong Kong’s rule of law.” He was subtly informing Hong Kong, and consequently the world, that he was prepared to use the local court system to his advantage should the need arise. Snowden could stay 90 days on his visa.74 It was confirmed he was working with human rights attorneys Robert Tibbo, Albert Ho and Jonathan Man, the latter two of Ho, Tse, Wai & Partners. Tibbo and Man had a history of battling extradition proceedings.75 They had attempted to sue Hong Kong for detaining then extraditing Sami al-Saadi in 2004. Their client had cited fear of unfair treatment and abuse at the hands of dictator Muammar Gaddafi if he were returned to Tripoli.76 On June 19, a WikiLeaks consulting team arrived in Hong Kong to further aid Snowden.77 During their discussions, as he had with Poitras and Greenwald, Snowden insisted all parties remove their cell batteries and place their phones in a refrigerator.78

  Snowden was aware that for deportation to occur, the U.S. would have to make a convincing case. It needed to find equivalent charges in the country’s extradition agreement.79 If it could not, Hong Kong would be unable to consider him a criminal for an act it didn’t consider illegal. Both countries had espionage laws, and “unlawful use of computers” was included in the treaty. The U.S. knew regardless of what ensued, Snowden would appeal his detention, which would force his case to be heard before he could be lawfully extradited. The process could take months, if not years. Washington’s greatest concern was that he make a bid for asylum citing the fear of abuse by U.S. authorities. Fellow whistleblower Bradley Manning had already filed this complaint. While waiting trial, he was placed in solitary confinement in Quantico, Virginia. He reported inhumane treatment at the hands of his guards.80

  On June 14, a day after the SCMP reports that the U.S. had hacked Chinese University, a federal court signs and seals charges against Snowden.81 It is accompanied by an arrest warrant.

  On June 15, the American government quietly asks for Snowden to be provisionally arrested and detained. A provisional arrest expedites the detainment proceedings and supersedes the need for a standard arrest, which can only be executed after the charges have been recognized by the host country.

  On June 17, Washington anxiously inquires as to why Hong Kong had not met its demands. Hong Kong responds that the matter is still “under review.”

  On June 19, as disclosures continue to appear, U.S. Attorney General Eric Holder places a personal call to Hong Kong Secretary for Justice Rimsky Yuen. He pleads for Hong Kong to detain Snowden.

  On June 21, as the sealed charges are made public, citing Snowden with theft, “unauthorized communication of national defense information” and “willful communication of classified communications intelligence information to an unauthorized person,” Hong Kong finally responds to Washington. It asks for more details concerning Snowden’s case.82

  Washington made several mistakes while attempting to convince Hong Kong to surrender the whistleblower. The most obvious blunder was listing Snowden’s middle name as “James” instead of “Joseph” on a number of officially submitted papers. The Justice Department had also failed to include his passport number.83 The paperwork was rushed because Washington arrogantly assumed where the request was coming from was justification enough. It had failed to explain “how two of the three charges the US mentioned in its arrest request fell within the scope of a US-Hong Kong rendition of fugitive offenders agreement signed in 1996.”84 This undoubtedly refers to the latter two charges which Snowden himself had predicted would be the U.S. government’s vital misstep. During his June 9 interview with Greenwald and MacAskill, he said, “But I don’t think I have committed a crime outside the domain of the U.S. I think it will be clearly shown to be political in nature.”85 By including espionage charges instead of merely indicting him on theft, the U.S. permitted Hong Kong to argue Washington’s motive was political as opposed to strictly criminal. This automatically placed Snowden in debatable refugee status. To cover all of its bases, Washington would have had to request that Interpol issue a Red Notice for Snowden. Interpol is the world’s police agency, and a Red Notice would force 190 countries’ airports to stop Snowden’s departure. Though an Interpol official later commented that the agency would have been unable to act upon an alleged political crime, the symbolic gesture by the U.S. would have nonetheless reinforced how severe the charges put to Snowden were.86 When requesting further details about the charges, which Washington vainly denied having ever received,87 Hong Kong also asked the U.S. to address claims of hacking as reported by the SCMP.88 At this juncture, the United States should have read between the lines. It wasn’t getting Snowden back.

  Snowden left China because the country’s officials knew that when Washington didn’t immediately respond to the request for more detailed information about the American exile, the Capitol was up to something. The U.S. government was unwilling to content itself with Hong Kong playing political opossum, so the Justice Department changed tactics. It was going to pin Snowden down and then bury China in paperwork until it submitted.

  The U.S. was planning to revoke Snowden’s passport. China anticipated this and tipped him off.

  On June 22, Snowden’s passport is revoked.89

  Though Beijing refuted the claim, Ho reported Snowden had been informed by a government representative that he was a free man and should act upon it. True to the word he’d given the SCMP, when Snowden was asked to leave, he did. Ho could not confirm whether the diplomat was from Hong Kong or Beijing but strongly suspected the latter.90 Chief Executive and President of the Executive Council of the Hong Kong Special Administrative Region (HKSAR) Leung Chunying interjected, stating Hong Kong’s hand had not been forced, and Beijing only offered its advice. An anonymous source familiar with Snowden’s case said, “One hundred percent there was communication between Hong Kong and the central government regarding how to handle Snowden.”91 Regardless of whether Beijing issued an explicit or implicit “suggestion,” it was clear mainland China did not want to contend with the political implications of harboring Snowden.

  Washington’s gravest mistake was dragging its feet in revoking Snowden’s passport atop bowing to public pressure in revealing the charges before the purported fugitive was in custody. It allowed the world to know exactly what Snowden was up against and enabled him to prepare accordingly.

  China sought neutrality when it came to Snowden. By neither detaining him nor protecting him, it had essentially ignored him. China’s official communist newspaper, People’s Daily, made sure to highlight this fact: “China is generous enough not to hype this incident in consideration of the Sino-US relationship.”92 It had likewise refused to neither help nor hinder the U.S. government just as the U.S. had for China the year before. Heralded police official Wang Lijun was thought to be seeking political asylum when he entered the U.S. Consulate in Chengdu on February 6, 2012. Washington neither recognized an appeal if one was made nor did it arrest the Chinese fugitive. It merely asked him to leave. China had now returned the indifferent favor.93 Representative King was perhaps unaware of this piece of historical trivia when he stated, “For some reason Hong Kong and China wanted to let Snowden get away and this is a direct slap at the U.S.”94

  A Shanghai official speaking on a condition of anonymity rightly observed that Snowden served no purpose to China: “It is also impractical for China to hope Snowden will cooperate with us. If he wanted to do that, he’d have flown to Beijing.”95 Not only did mainland China acknowledge the implied and later overt message by Snowden in his decision to land in Hong Kong instead of China’s capital, it realized he meant what he said on June 17. He was only willing to work with the press, not governments. From a political perspective, apathy had been met with apathy.

  On Sunday, June 23, to the U.S. government’s dismay, it discovers Snowden has flo
wn to Russia.

  Midday Sunday, after 34 days in the Pearl of the Orient, Ho and Man accompanied Snowden to Chek Lap Kok Airport.96 He boarded Aeroflot SU213 with WikiLeaks’ Sara Harrison, a close advisor to Julian Assange.97 At 5 p.m. local time, they landed 4,500 miles away at Moscow’s Sheremetyevo International Airport.98 WikiLeaks footed the tab for the flight as well as a portion of his lodgings while in Hong Kong and later Russia.99

  Though the American government thought it was on the verge of cornering Snowden and forcing China to hand him over, Washington satisfied itself believing it had him on the run.

  What the Capitol didn’t know was that it was about to be cast in the role of the fool in one of the most beautifully orchestrated multinational political ploys in modern history. Weeks before, Snowden had received a quiet offer to make the former Soviet Union his home. In order to avoid straining already-taut relations between America and Russia, all he had to do was wait until it appeared he had no other choice but flee Hong Kong. To make his coincidental arrival in Russia appear convincing, an expertly choreographed plot involving international intrigue and denial was devised. The script was ambitious. The fact that it succeeded is nothing short of breathtaking.

  Chapter 5

  Polar Bear in a Snowstorm

  “Perhaps, in such times, loving one’s country means being hated by its government.”

  –Edward Snowden, letter to former congressman Gordon Humphrey, July 15, 20131

  SNOWDEN ORIGINALLY BELIEVED ICELAND was his ideal adopted home because of its shared ideals on Internet freedom.2 Though it had an extradition treaty with the U.S., Iceland had never surrendered anyone to America.3 A day after the WikiLeaks team arrived in Hong Kong, Icelandic entrepreneur and head of WikiLeaks partner conglomerate DataCell, Olafur Sigurvinsson, told Channel2 television, “We have a plane and all the logistics in place. Now we are only awaiting a response from the [Icelandic] government.”4 A Gulfstream G550 had been contracted from a Chinese firm at a cost of nearly a quarter-of-a-million dollars. Funds had come from individual donations made to Datacell.5 The only problem is Snowden had not formally sought refuge in Iceland. WikiLeaks and Sigurvinsson had taken it upon themselves to make inquiries on Snowden’s behalf starting June 12.6 Only after he arrived in Russia did he begin submitting asylum requests. His first were to Iceland and Ecuador. Snowden was informed he needed to be on Icelandic soil to apply for asylum.7 Then he requested Icelandic citizenship which, if granted, would supersede the extradition treaty.8 Having previously voiced his preference for Iceland to the media, the U.S. government quietly pressured the U.N. to lobby the island nation. The U.N. sent its secretary general to meet with Icelandic parliament.9 Four days after his citizenship paperwork arrived, only six members of Iceland’s 63-seat legislative body voted in favor of putting the matter on the government’s agenda.10 Even if it had been placed on parliament’s docket, Iceland’s legislature was going on summer vacation and would not reconvene until September.

  Assange and WikiLeaks were putting on a good show because sometime between June 12-18 WikiLeaks representative Kristinn Hrafnsson had been informed by Icelandic officials that Snowden would have to apply in person.11

  What should have tipped off the U.S. government that something was amiss was that the entire month Snowden was in China, every waking second wasn’t being spent filing asylum requests. Instead he provided more disclosures to the local press and conducted interviews despite American authorities exerting more and more pressure upon Hong Kong and Beijing to detain him. That a plot was afoot is retrospectively obvious because of all of the legal powerhouses working on Snowden’s behalf, it was an apparent surprise to everyone that several countries he would later petition had clearly defined legislation requiring an asylum applicant to apply in person. If Snowden’s concern for safety was genuine—especially since impending felony charges would almost invariably involve passport nullification—as soon as WikiLeaks affirmed it had a working budget of at least $240,000, Snowden would have set to globetrotting as he dropped off asylum requests along the way. Snowden already knew all of this. If he was astute enough to have researched which country would have difficulty extraditing him before coincidentally traveling to another which had no such treaty with the U.S., it is reasonable to assume he also knew which countries would accept his application without his presence. He was playing opossum. Nonetheless, by filing asylum requests Snowden would also delay extradition proceedings until a determination was made with each sanctuary plea. It was now obvious his statement during the live Q & A session that he hadn’t flown directly to Iceland because “Iceland could be pushed harder, quicker, before the public could have a chance to make their feelings known, and I would not put that past the current US administration”12 meant he did not have incriminating evidence against the U.S. government in respect to Iceland. He couldn’t mount popular support as easily. However, being on Icelandic soil, Snowden could prolong extradition proceedings after submitting an asylum request in person.

  Snowden didn’t do any of this because he wasn’t worried.

  Two days after it learned of his identity, amid global outrage as most every country distanced itself from Snowden for fear of American backlash, Russia made a curious announcement. The Russian president’s spokesman, Dmitry Peskov, boldly informed the local newspaper Kommersant, “If such an appeal [from Snowden] is given, it will be considered.”13 The next day the SCMP interviewed Snowden and asked if he’d been offered Russian asylum. He answered, “My only comment is that I am glad there are governments that refuse to be intimidated by great power.”14

  At the time of the interview, Snowden was still mulling over the offer. It is likely he made up his mind on June 20, the day after Harrison arrived in Hong Kong. After the two discussed the matter and came to a decision, a celebratory pre-birthday party was thrown at the apartment he’d taken after leaving the Mira, the same one he would move out of the following day under the veil of night. By this birthday, he was settled into the Russian Embassy, which was located on the 21st floor of a skyscraper.15 Another indication Snowden and Russia had been speaking was that the G20 disclosure was released a week after Russia discovered who he was. As he had done with China, he was endearing himself to his soon-to-be adopted country as he pitted the Soviet government and citizenry against Washington. All that was left to do was to make Snowden’s entry into Russia appear convincing and plausible.

  The first step was to find a way to get him to Russia but not make it apparent he was there to stay. The day Hong Kong requested more information from the American government about his case, Snowden was instructed to purchase a ticket from Hong Kong to Havana, Cuba via Moscow on Aeroflot, Russia’s national airline.16 Russia and Snowden now had to wait for his passport to be revoked. Both Russia and Snowden knew China would not detain him. Because he was on a connecting flight, he would be permitted to alight in the geopolitically neutral transit zone at Sheremetyevo International Airport. As a safety precaution and for the sake of appearance, on June 22 he had been issued an Ecuadorian safe pass from the London Embassy. The refugee document allowed “the bearer to travel to the territory of Ecuador for the purpose of political asylum.”17 To make the scenario more believable, Ecuadorian Embassy cars would be sitting at the airport when he arrived.18 Upon landing, he would be “stuck” in Russia. Signs that he never intended to arrive in Cuba were glaring and obvious. It was understood Snowden was flying through Russia to get to Cuba in order to board a flight to Venezuela to gain refuge in Ecuador.

  Amid the frenzy, no one seemed to notice the incongruity of Snowden fleeing through one and to another country with American extradition treaties; his having to pass through U.N. and American airspace to reach Cuba; in 2006 Cuba had given assurances to the U.S. that it would not accept “new” American fugitives as a gesture of good faith amid a history of strife between the two nations;19 and in order to apply for asylum in Ecuador, one had to either be standing in the country or file at an Ecuadorian Embassy20 (
not one report appeared confirming or denying whether Snowden had filed Ecuadorian asylum paperwork while in Hong Kong). Snowden had no intention of traveling to Cuba. The giveaway should have been that his first stop was in a country which did not have an extradition agreement with the United States.

  Despite the suspicious conditions which brought him to Russia, on June 24 journalists piled onto Aeroflot SU150 to Cuba.21 Snowden’s seat, 17A, was vacant. Kommersant made sure to mention the flight and seat number a full day prior to departure. It was estimated that a quarter of economy and over half of business class was comprised of reporters. When he failed to appear by takeoff, photojournalists were left with nothing to do over the course of the 12-hour flight but take pictures of the unoccupied seat. As Maxim Shemetov of Reuters admitted a day later, “It looked suspicious that everyone knew when and how a top secret target was going to leave Russia.”22 By comparison, passengers on Snowden’s arrival flight could not confirm whether he had been aboard. He and Harrison had been seated separately from the other passengers, were released and greeted on the tarmac by numerous Russian security agents and their baggage was loaded directly from the plane.23