Title

What’s Right or Wrong with This Chinese Stance on Edward Snowden?

A ChinaFile Conversation

For today’s ChinaFile Conversation we asked contributors to react to the following excerpt from an op-ed published on Monday June 17 in the Global Times about Edward Snowden, the 29-year-old American contract intelligence analyst who last week in Hong Kong alleged that the U.S. National Security Agency has been snooping into Chinese computers since 2009. Snowden has been at the center of an international debate ever since—about transnational cyberintelligence, ethics and the treatment and legal protection of whistleblowers.  The Global Times is an English language newspaper owned by The People’s Daily, the mouthpiece of the Chinese Communist Party.


Extraditing Snowden an Unwise Decision

Washington must be grinding its teeth because Snowden's revelations have almost overturned the image of the U.S. as the defender of a free Internet. After losing this image, which has been abused by the U.S. government to boss others around, there is no way it won't want Snowden to be extradited. However, it would be a face-losing outcome for both the Hong Kong S.A.R. government and the Chinese Central government if Snowden is extradited back to the US. Unlike a common criminal, Snowden did not hurt anybody. His "crime" is that he blew the whistle on the US government's violation of civil rights...China's growing power is attracting people to seek asylum in China. This is unavoidable and should be used to accumulate moral standing. The "no comment" attitude of the Chinese Central government and the ambiguous statements from the Hong Kong administration are the proper responses. China should follow public opinion and safeguard its interests.

—Global Times

Comments

I would love to have been inside central propaganda headquarters a few days ago. I can imagine the conversation: “Wait, so they were able to spy on all those calls and emails? Where can we buy this?”

Followed a few days later by: “Wait, so the guy who leaked the spy program was living in Hawaii with a pole dancer, and then fled to Hong Kong because of its reputation as a haven for free speech?"

Then breaking the moment of contemplative silence that followed: “Wait. You said he’s where? Uh oh.”

For the Chinese, Snowden’s a very, very hot potato. On the one hand, every day longer he’s in Hong Kong is another day of lurid headlines steering attention away from Chinese cyber-spying.

On the other hand, every day longer he’s in Hong Kong he turns into a bigger diplomatic headache. Do they detain him? Revoke his visa? Offer asylum? Gently encourage him to shove off? Hail him as a cyber-superhero?

China’s policy has been ambiguous so far. This is where Global Times poses some interesting problems. For starters, whose interests do they represent? Global Times is under the party’s mouthpiece the People’s Daily. But they say they have a different, racier mandate: “The Chinese public is not satisfied with old orthodoxies and stale stories, and neither is the Global Times," the paper says on its website.

When the Global Times suggests Snowden shouldn’t be extradited back to the U.S., are they parroting the views of the cadres at propaganda control?

My guess is that the editors at the Global Times are out on limb with this.

That’s because every day longer Snowden stays in Hong Kong is one more opportunity for Chinese public opinion to ricochet back from decrying U.S. spying to anger at domestic censorship.

China would be in an awkward position if it fought any possible extradition on the grounds of defending freedom of the internet while continuing to jail Chinese attempting to express their views back home. As the Global Times says “China should follow public opinion and safeguard its interests.”

It may be that its interests may be to get Snowden out as quickly as possible.

The discussion on the PRC side is confused. So let’s get clear about the legal (as opposed to the political issues).

Mr. Snowden did not flee to the PRC. Rather, he fled to Hong Kong. Unlike the PRC, which has a miserable record with respect to the rule of law, Hong Kong is generally rated higher than even the United States in its commitment to the rule of law. What this means is that the decision on what to do about Mr. Snowden will be made by the Hong Kong judiciary in accordance with Hong Kong law.

What is the law? Hong Kong has an extradition treaty with the United States that went into force in 1998. This treaty is unique in that the United States has no treaty with the PRC. There are two sections of the treaty that are relevant. Article 1 provides for extradition basically for all crimes that are felonies, punishable by more than one year in prison. Certainly, Mr. Snowden is being accused by the United States of the commission of such a crime. If this were the only consideration, Mr. Snowden should be extradited.

However, Article 6 of the Treaty provides that an extradition request can be denied in the case that the crime is a political offenses where no violence has occurred. As the editorial from the Global Times illustrates, a strong argument can be made that Mr. Snowden is being charged in the U.S. for such a political offense. Thus, under this provision, it is entirely likely that the Hong Kong authorities will determine that Mr. Snowden should not be extradited.

This “political offense” exception is a standard provision that is demanded by the Untied States in all extradition treaties. It would be ironic and certainly fitting if this provision is used against the United States by a foreign country. To the extent that comity is relevant here, it seems to me that the United States would refuse to extradite a Chinese citizen to the PRC in this situation. However, the PRC is not directly involved and I have no idea how the U.S. would respond to a request from Hong Kong. However, if the Hong Kong authorities view the political issue from the standpoint of the PRC, they could easily decide not to extradite. As you can see, however, Article 6 requires a political analysis, not a legal analysis. It is impossible for a lawyer to predict at this time which way the Hong Kong authorities will go.

Finally, note that the Global Times editorial makes no mention whatsoever of the legal issues. This shows why Mr. Snowden fled to Hong Kong and not the PRC. He wanted to be in a jurisdiction that venerates the rule of law, not a jurisdiction that shows contempt for the rule of law.

I take issue with the Global Times comment in two places. First – and the Global Times is by no means alone in this – in saying that the revelations “almost overturned the image of the U.S. as the defender of a free Internet”, they confuse internet surveillance with suppression of speech on the internet. These are two completely different things. Nobody supposes that the right of free speech in a country is somehow compromised when police use communications between criminals to gather evidence and obtain convictions. The right of free speech is implicated when the offense lies in the very content of the communication. Here, it is emphatically untrue that (as the Global Times would like us to believe) everybody does it. Some countries will readily put you in jail just for what you say, and other countries will not. Whatever the problematic aspects of the NSA’s activities, all its evidence-gathering will not result in people going to jail for, say, criticizing Barack Obama.

 

Second, it’s doubly ironic that the Global Times should argue that Snowden’s acts did not constitute a crime because nobody was hurt and he blew the whistle on the US government’s violation of civil rights. So far at least it seems that the US government’s acts, like them or not, were lawful under US law. By contrast, Chinese are regularly imprisoned or otherwise punished for blowing the whistle on the Chinese government’s violation of its own laws. I do not recall the Global Times taking up the cudgel on their behalf.