The US wants Edward Snowden. For its part, Germany has indicated that it would welcome Snowden’s testimony in the course of an investigation of the NSA’s surveillance activities in Germany. The legal hurdles set by the US request of extradition with respect to Germany’s enquiry are complex but would not be insurmountable. In fact, Germany is divided by two opinions: There is, on the one hand, the German Government, which does not want to affront an influential partner. And on the other hand, there is the public opinion, together with a notable number of MPs, which claims a gapless clarification of the events, even on account of the US-German relations.
In June this year, Edward Snowden revealed that the NSA, in its fight against international terrorism, collected, throughout the world, 124,8 billion telephone data items and 97,1 billion computer data items. The United Kingdom and Germany are supposed to be the top two targeted nations in Europe in terms of numbers of interceptions. Initially, the German government tried to play down the incident. The public anger retreated, but never disappeared completely. In October, news broke that Chancellor Merkel’s mobile phone was being wiretapped, along with those of other State officials and international diplomats. Consequently, the German government, which had previously been so hesitant to criticise the US, gave the competent State authorities the green light to commence investigations.
The facts underlying this factual scenario are as yet insufficient to allow for a comprehensive legal assessment. Instead, this post aims to provide a brief overview about potential pertinent judicial issues.
In response to Snowden’s actions, US federal prosecutors charged Snowden with espionage and theft of government property and issued a request for extradition on the basis of inter alia the 2003 Agreement on Extradition Between the EU and the US (the‘2003 Agreement’). Russia in its place granted Snowden asylum under the condition to ‘stop his work aimed at harming our American partners. Recently, a German MP traveled to Moscow to enquire Snowden’s willingness to testify on the legal, political, economic, and diplomatic implications of the mass-surveillance programs.
This has completely shaken the world with the revelations that have come out, it can be hard for people to comprehend how large this scale is on surveillance of other countries. However, with it being as serious as it is, creative sectors, such as film and books, are creating entertainment for the population to add extra expression to what is happening, making people want to learn more and as well as distract them by how invasive this is. There are websites such as http://www.snowden-movie.jp/%e3%82%ab%e3%82%b8%e3%83%8e%e3%82%a8%e3%83%83%e3%82%af%e3%82%b9-%e3%82%a2%e3%83%a1%e3%83%aa%e3%82%ab-nsa-cia-dell-%e6%a8%aa%e7%94%b0%e5%9f%ba%e5%9c%b0-%e6%9c%80%e9%ab%98%e6%a9%9f%e5%af%86-%e3%83%9e/ that discuss how the film about this has been made into a casino game for people to play. It is astounding how a breach of American intelligence can be made into entertainment to help people get through it.
The first step: To apply for a residence permit
It is very likely that Snowden possesses highly valuable details regarding the interception of German communication lines throughout the past years. In other words, he could be a key witness in this affair. For that purpose, he has already signaled his willingness to testify in the course of the investigation process, however, only if questioned on German territory. This brings into play Art. 4 (1) of the 2003 Agreement, which imposes on the German State the duty to expatriate Snowden to the US. Based on the derogation clause of Art. 17 (1) of the 2003 Agreement, German legal experts are now searching for possible legal exemptions in order to welcome Mr.Snowden to Germany without breaching international law.
As for every non-EU national, and more especially because his passport has been revoked by US authorities, in order to enter Germany Snowden needs to apply for a residence permit. As a general rule, to apply for a residence permit, Snowden would have to be on German soil. But given the US extradition request, if he set foot on German territory, Snowden would be detained immediately. In order to circumvent the geographical requirement, Snowden may apply for a residence permit pursuant to the exceptional grounds of § 22 German Residence Act from abroad. In this case, the Ministry of Interior, as the competent authority, would be even obliged to grant Snowden a residence permit, however, if claimed to be necessary ‘to uphold the political interests of’ Germany. Although the German government has a certain margin of appreciation to define the ‘political interests’, it would be the judiciary who will have the last word in this respect.
The second step: Getting rid of the request of extradition
If Snowden happens to enter Germany, enabled to do so by a granted residence permit, German authorities would be still under the duty to detain him. In order to dispose of this duty, on may invoke the rule contained in Art. 4 (1) of the 1978 Treaty between Germany and the US Concerning Extradition. This provision states that extradition shall not be granted, if the respective offense is regarded as a political offense by the requested State. In view of the German Government, Snowden’s case is not to be regarded as a political offense.
Therefore, another possibility may be invoked: the mechanism of ‘safe conduct’ in the sense of § 295 German Code of Criminal Procedure. The safe conduct-rule is to be seen as a state-controlled self-restriction: A penal court may prohibit the executive, including the German government, to detain a suspect and eventually extradite him. Although it is unlikely that criminal proceedings will be initiated, the most probable State institution to scrutinise the practices of the NSA would be a temporary parliamentary committee of inquiry, yet to be convened by the MP’s of the German Parliament. The committee would be vested with almost all means provided for penal courts in accordance with the Code of Criminal Procedure. However, although the safe conduct-rule may also apply to foreign nationals, it is even more controversial in the national debate, if State institutions other than penal courts may summon Snowden on the basis of § 295 German Code of Criminal Procedure.
The German Government repeatedly emphasized it has no intention that Snowden will be interviewed on German soil. Although, Germany has a strong interest to shed light on the affair, Merkel tries not to impair the transnational relationship with the US. However, it is unclear whether the legal circumstances of the case would allow for Snowden’s examination on German soil even against the government’s will. In any case, if the temporary parliamentary committee of inquiry initiates its investigation, there is a chance that the government may turn in due to a situation of factual coercion created by the committee, MPs and public opinion.
The overall aim: Not to affront the US
Apart from that, and in line with Russia’s claim not to allow Snowden to leave the country, members of the temporary parliamentary committee of inquiry could interview him in the German embassy located in Moscow. The rules concerning the procedure of the committee would allow a protocol of a potential interview with Snowden in Moscow to be read out in front of the bench of the committee. In this regard, Art. 6 (1) of the 2003 Agreement on Mutual Legal Assistance Between the EU and the US specifically establishes video conferencing as a means for taking testimony in a proceeding. But first, this convention does not regulate the relation between Germany and Russia, and secondly, the question arises, whether such a rule would also be effective in respect of a temporary parliamentary committee of inquiry.
Separately from the legal challenges paving the way to question Snowden in Moscow, this option would be most beneficial to the German government, which, on the one hand, struggles to avoid a diplomatic conflict with the US, and on the other hand is legally and morally on duty to investigate the scandal.Meanwhile, the key witness Edward Snowden finds himself in the uncomfortable position in-between the three powerful States.
It has to be noted, that the handling of the affair also entails the risk for Germany to set a dangerous precedent with respect to whistle-blowers in general, and German whistle-blowers especially, who might consequently insist to be treated in the same way as Snowden. Against this background and taking the importance of safeguarding US-German relations into account, Germany’s current refusal to interview Snowden in Germany is understandable. Because once Snowden is welcome, Germany, for the time being, would be responsible for him. However, at the same time it seems questionable at least from a moral point of view that the German government is only interested in accessing Snowden’s information without actually considering to offer him something in return.