By M. Cherif Bassiouni
When Edward Snowden obtained documents as an employee of Booz Allen Hamilton and made them public, the information disclosed was covered by secrecy under US law. That obligation was part of his employment contract, and such disclosure constituted a crime.
He first disclosed this material to Glenn Greenwald of The Guardian in early June of 2013. On 14 June, the Department of Justice filed a complaint against Snowden, charging him with unauthorized disclosure of national defense information under the 1917 Espionage Act, unauthorized disclosure of classified communication intelligence, and theft of government property.
Snowden made these disclosures while in Hong Kong, and it is reported that the United States sought his extradition pursuant to the treaty it has with Hong Kong, which contains a provision for the exclusion of political offenses. This brings into question the nature of Snowden’s offence.
The Snowden case is inherently simple, and comes down to whether Snowden’s actions were politically motivated or based on social interest. There was no harm to human life, and there was no general social harm. On the contrary, it revealed abuses of secret practices that violate the constitutional right of privacy. Harm to the “national security” is not only subjective but it is also dependent upon who decides what is and what is not part of “national security.”
When it comes to extradition, both the nature of the crime and the motive of the requesting state are taken into account. If the crime for which the person is requested is of a political nature and there is no human or social harm, extradition may be denied on the grounds that it is a purely political offense. This theory is extended to what is called the “relative political offense exception,” when, as incidental to a “purely political offense exception” an unintended social harm results. For example, if someone exercises freedom of speech by speaking loudly in the middle of a square and is charged with disturbing the peace, flees the country, and is sought for extradition, that is a purely political offense exception. If, in the course of fleeing the park they accidentally knock over an aged person who is injured and the state charges him with assault and battery, which would be a relative political offense exception. But the fact that Snowden himself maintains that he did not make public any information that could put intelligence officers in harm’s way, or reveal sources to foreign rivals of the United States means that under extradition law, his case is purely political.
Almost all states allow for the purely political offense exception to apply. Those that do not, bypass the exception for political reasons. This explains why Snowden went to Russia, though the UK would have found it difficult to extradite him too. It helps to look back to the case of Julian Assange, who was sought by the United States when in the UK. When the UK could not extradite Assange because of the purely political offense exception doctrine, the United States had Sweden seek his extradition from the UK for what was a criminal investigation into a common crime (sexual assault). This is what led Assange to seek refuge in the Ecuadorian embassy.
The fact that the purely political offence exception doctrine arose with respect to the Snowden case, assuming it would be the subject of extradition proceedings, is curious to say the least. Would a government official of, say, the Comoros Islands be the subject of similar international attention for the disclosure of some secret skullduggery that the government had classified as top secret? The answer is of course no. What makes this case a cause célèbre is that it has to do with the United States, because it embarrasses the United States, and because it reveals that the government of the United States and at least one of its most important agencies (the NSA) has engaged in violations of the Constitution and laws on the protection of individual privacy. It has shown abuses of the powers by the executive branch to obtain information from private sector companies, which would not be otherwise obtainable without a proper court order. This of course is what makes the Snowden case so extraordinary since it is about a US citizen doing what he believed was right to better serve his country and whose very government was violating its constitution and laws.
M. Cherif Bassiouni is Emeritus Professor of Law at DePaul University where he taught from 1964-2012, where he was a founding member of the International Human Rights Law Institute (established in 1990), and served as President from 1990-2007, and then President Emeritus. He is also President, International Institute of Higher Studies in Criminal Sciences, Siracusa, Italy since 1989. He is the author of International Extradition: United States Law and Practice, Sixth Edition.
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Image: Screenshot of Edward Snowden by Laura Poitras/Praxis Films. CC-BY-3.0 via Wikimedia Commons.
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By M. Cherif Bassiouni
The Amanda Knox case is complex in view of Italy’s complicated procedure in matters involving serious crimes. These crimes are tried before a special court called the Court of Assizes. These courts have two professional judges and six lay judges, much like a jury in Anglo-American cases. But, in Italy, the lay judges sit alongside the ordinary judges and decide on questions of law and fact. In the Italian system, a conviction or an acquittal can be appealed to the Court of Appeals, which can either examine the merits of the case and hold a new hearing on the facts or decide on the proper application of law, or both. It can also remand a case to the trial court for a new trial. Such appeals are trials de novo, but the Appeals Court of Assizes seldom hears witnesses again, though it can. Usually, it decides on the record both questions of facts and law. Any case can be appealed to the Court of Cassation. If any court certifies there is a constitutional question at issue, that court can refer the case to the Constitutional Court. This complex procedure is designed to benefit the rights of the accused.
The Facts and the Procedural History of the Case
Amanda Knox, a US citizen, was a student at the University of Perugia in November 2007 when she was arrested for the murder of her British roommate, Meredith Kercher. The two women were studying in Perugia, Italy. Meredith Kercher was found dead in the apartment she shared with Knox with her throat slit and with evidence of a sexual assault. Knox, her Italian boyfriend Raffaele Sollecito, and Rudy Guede from the Ivory Coast, an acquaintance of the couple, were all charged with murder and sexual violence.
2009 – The Perugia Trial Court of Assizes convicted Amanda Knox for murder and slander.
All three pled innocent but were convicted by the Assizes Trial Court in December of 2009 for murder and sexual violence. Amanda Knox was also convicted for slander, having accused Mr. Patrick Lumumba (the owner of the bar in which she occasionally worked) as the murderer. Amanda Knox was sentenced to 26 years in jail, Raffaele Sollecito to 25 years, and Rudy Guede (who had opted for the accelerate procedure) to 30 years (a conviction now affirmed by the Italian Court of Cassation, but with a reduction of the sentence to 16 years).
The convictions of Knox and Sollecito were due to the court not being convinced of Knox’s story that she and Sollecito were not in the apartment the night of the murder but were instead at Sollecito’s apartment. Witnesses testified that they had seen Knox and Sollecito near the apartment where Meredith Kercher’s body was found at around 23.00 hours; and the main scientific exhibits—specifically, Exhibit 36, a 6.5 inch knife found in Sollecito’s apartment with Knox’s DNA on the handle and Meredith Kercher’s DNA on the blade (low quantity of DNA)—were compatible with the wounds according to court experts, and Exhibit 165, a clasp, was found on the murder scene with Meredith Kercher’s DNA and Sollecito’s DNA.
2011 – Amanda Knox appealed to the Appeals Court of Assizes of Perugia, which acquitted her of murder and affirmed her conviction for slander.
In October 2011, the Appeals Court of Assizes of Perugia acquitted both Knox and Sollecito after questions were raised by the defense regarding the protocol followed by the Italian police while gathering the forensic evidence that was used to convict them in 2009. The court’s judgment was also based on new scientific examinations that were previously requested by the defense during the first trial but were not authorized by the trial court. This evidence, according to the defense, would have disproved the presence of Knox and Sollecito at the crime scene. The appeals court concluded that the evidence that proved persuasive to the Perugia Trial Court of Assizes was obtained in a contaminated environment. More specifically, the appeals court concluded that (1) certain footprints initially attributed to Sollecito were also compatible with the size of Rudy Guede’s feet and (2) subsequent analysis on the 6.5 inch kitchen knife supposedly used to slit Meredith Kercher’s throat showed that the kitchen knife did not contain Knox’s DNA and that the kitchen knife could not have been the murder weapon.
2013 – The Prosecution appealed that decision to the Court of Cassation (Supreme Court), which remanded the case to the Appeals Court of Assizes of Florence.
Following the acquittal by the first appeals court in 2011, Knox left Italy and returned to the United States. In March 2013, the Prosecution in the Knox and Sollecito cases appealed to the Court of Cassation, Italy’s Supreme Court, which remanded the case to the Appeals Court of Assizes in Florence for reconsideration on the basis that there were discrepancies in testimony, inconsistencies, omissions, and contradictions in the ruling of the Appeals Court of Assizes of Perugia in 2011. The Court of Cassation upheld each of the grounds raised by the Perugia Chief Prosecutor. The Court of Cassation concluded that the Assizes Court of Appeals of Perugia, which reversed the murder conviction for Amanda Knox in 2011, had weighed the evidence in an inconsistent and piecemeal fashion.
2014 – The Appeals Court of Assizes of Florence overturned the acquittal by the Court of Appeals of Perugia for murder and affirmed the previous conviction of the trial court for murder and slander.
The case was then assigned to the Appeals Court of Assizes of Florence, which, on 30 January 2014, overturned the acquittals of the Perugia Assizes Court of Appeal based on the Court of Cassation’s previous judgment. This appeals court convicted Knox in absentia and sentenced her to 28 years and six months of imprisonment and sentenced Sollecito to 25 years of imprisonment. The Presiding Judge of the Florence Court has 90 days as of January 30, 2014 to write his judgment (with reasons) on the ruling. Lawyers for Knox and Sollecito have stated that as soon as the judgment is filed, they will appeal it to the Court of Cassation. The judgment is not final until the Court of Cassation rules on the eventual appeal of Knox and Sollecito.
Extradition from the United States to Italy
Italy is one of the few countries with this complex procedure, which it does not consider to be in violation of the constitutional prohibition of ne bis in idem (double jeopardy) reflected in article 649 of the Italian Code of Criminal procedure. The prohibition of ne bis in idem is included in the European Convention for the Protection of Human Rights and Fundamental Freedoms, but, so far, the European Court for Human Rights (ECHR) has not interpreted Italian law as violating the European Convention. Thus, the procedure described above has not been found to be in violation of ne bis in idem under the ECHR.
The 1983 U.S.–Italy Extradition Treaty states in article VI that extradition is not available in cases where the requested person has been acquitted or convicted of the “same acts” (in the English text) and the “same facts” (in the Italian text). Treaty interpretation needs to ascertain the intentions of the parties by relying on the plain language and meaning of the words. Italy’s law prohibiting ne bis in idem specifically uses the words stessi fatti, which are the same words used in the Italian version of article VI, meaning “same facts.” Because fatti, or “facts,” may include multiple acts, the Second Circuit Court of Appeals applied the test of “same conduct” in Sindona v. Grant, citing international extradition in US law and practice, based on this writer’s analysis.
Whatever the interpretation of article VI may be—“same act,” “same facts,” or the broader “same conduct”—Amanda Knox would not be extraditable to Italy should Italy seek her extradition because she was retried for the same acts, the same facts, and the same conduct. Her case was reviewed three times with different outcomes even though she was not actually tried three times. In light of the jurisprudence of the various circuits on this issue, it is unlikely that extradition would be granted.
The US Supreme Court can also make a constitutional determination under the Fifth Amendment of the applicability of double jeopardy to extradition cases, particularly with respect to a requesting state’s right to keep on reviewing its request for the same acts or facts in the hope of obtaining a conviction. But, no such interpretation was given to the Fifth Amendment in any extradition case to date. Surprising as it may be, neither the Supreme Court nor any Circuit Court has yet held that the Fifth Amendment’s “double jeopardy” provision applies to extradition. So far, double jeopardy defenses have been dealt with as they arise under the applicable treaty.
Conclusion: Amanda Knox’s extradition from the United States to Italy under existing jurisprudence is not likely.
M. Cherif Bassiouni is Emeritus Professor of Law at DePaul University where he taught from 1964-2012, where he was a founding member of the International Human Rights Law Institute (established in 1990), and served as President from 1990-2007, and then President Emeritus. He is also President, International Institute of Higher Studies in Criminal Sciences, Siracusa, Italy since 1989. He is the author of International Extradition: United States Law and Practice, Sixth Edition.
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Image credit: PERUGIA, ITALY – NOVEMBER 24: Amanda Knox is led away from Perugia’s Court of Appeal by police officers after the first session of her appeal against her murder conviction on November 24, 2010 in Perugia, Italy. © EdStock via iStockphoto.
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