Spinning Out Of Control

Am I the only person in Hong Kong who thinks the best thing to happen next in the Edward Snowden saga would be for him to return to our city?

Perhaps I am but it wouldn’t be the first time I have been in a minority of one.

The first reason I want him back is that I want to know more about the identity of the several hundred people whose email accounts have been hacked and whose phone calls are being monitored by various US intelligence agencies.

Bearing in mind that this activity, while illegal under Hong Kong law, has apparently been "authorized" under US domestic legislation, surely the main point is that these people must (under the terms of that legislation) be suspected of links to terrorism.

Up to this point I had not considered Hong Kong a hotbed of Al Qaeda activity but if I am wrong then by golly I think we are all entitled to know more.

Secondly, I would like to see a test of our extradition procedures and our arrangements for handling applications for political asylum.

Before the friends of Mr Snowden start to panic, let me assure them I can think of three very good reasons why a Hong Kong court should reject a request for his return to the USA.

The first is the possibility of torture. The nearest comparable case in recent times is that of Bradley Manning, the US soldier now on trial for leaking thousands of confidential documents to Wikileaks.

Following his arrest, Manning was kept in solitary confinement for 11 months, and for long periods during that time was deprived of his clothes and was interned completely naked.

A United Nations report later concluded that his treatment constituted torture. No Hong Kong judge worthy of the name could order extradition in a case where there was a significant risk of the prisoner being tortured.

The second question a judge would have to ask himself is whether the accused had a reasonable prospect of a fair trial. The serving President, the previous Vice President, the current Secretary of State, the Democratic chairwoman of the Senate Select Committee on Intelligence and the Republican leader of the House of Representatives have all stated explicitly or by implication that this man is a traitor who should be sent back to America.

What reasonable prospect would there be of a defendant getting a fair trial in such circumstances?

Then there is the issue of a "Public Interest" defence. In broad terms, a whistleblower can argue for acquittal if he can show that the benefit to society of revealing various activities outweighs the damage to the public interest of revealing official secrets.

Now, the Patriot Act of the United States specifically excludes use of the public interest defence.

However that does not mean the same defence could not be raised in a Hong Kong court.

Each of these three reasons may, by itself, constitute sufficient grounds to refuse extradition. Taken together, they could be overwhelming.

The PR spin being put out by US officials on the case is very illuminating.

One line of argument runs thus: this is a minor matter, every government does this, everybody knows it goes on, no one can possibly be surprised, what is all the fuss about.

The alternative approach is: this is an extremely serious matter, disclosing top secret details is treason, "people will die because of this" (actual quote, used by several different persons), he should be extradited immediately.

The interesting thing about these lines to take is that they are used by the same people in the same conversation even though they are mutually exclusive.

Either of them could be true, but they cannot both be true at the same time.

Unless… well unless the position is being taken that spying on Hong Kong people is a minor matter, while telling the truth about it as a serious matter because it shows America in a bad light.

Consul General Stephen Young – a good man – has said it will take a long time to restore trust between the US and Hong Kong. I fear he is right, but not in the way he means.

President Barack Obama – another good man – says he is not going to barter for Snowden’s return. Meanwhile officials speaking on his behalf but anonymously make clear that the proposal to give HK passport holders visa-free entry to the United States is now in danger.

For the last 16 years, Hong Kong people have been concerned to defend one country, two systems and the rule of law. I doubt many suspected one source of threat would be from Washington DC.

Just to make it clear, our freedoms and principles are not subject of barter either. Mr President, you can keep your damned visas.