9 July 2013. A sends:
Statement from Irish government advising the US gov to correct and resubmit
the Snowden extradition warrant application again. Note middle paragraph
"the Government will take any action open to it to ensure that the State's
obligations in relation to extradition arrangements are met."
Statement by Minister for Justice, Equality and Defence, Alan Shatter TD,
on judgement in the case of an application for a provisional arrest warrant
in relation to Edward Snowden
The courts are, of course, independent in the exercise of their functions
and it is for the courts to determine any applications that come before them
pursuant to Section 27 of the Extradition Act for the issuing of an Arrest
Warrant in respect of any person.
The determination of the court does not in any way prevent a fresh application
being made for a provisional Arrest Warrant, taking into account the findings
of the court. The Irish and US authorities have remained in close contact
about this matter and, for its part, the Government will take any action
open to it to ensure that the State's obligations in relation to extradition
arrangements are met.
It should be noted that what the court in its judgement today addressed was
the issuing of an Arrest Warrant on the basis of specific information, rather
than a determination as to whether an individual should or should not be
8 July 2013
9 July 2013
Irish Court Order Denying Snowden Extradition
THE HIGH COURT
[2013 168 EXT]
THE ATTORNEY GENERAL
EDWARD J. SNOWDEN
EX TEMPORE JUDGMENT of Mr. Justice Colm
Mac Eochaidh delivered on the 6th day of July 2013
This is an application pursuant to s. 27 of
the Extradition Act 1965 for a provisional Arrest Warrant in respect of Edward
J. Snowden, a citizen of the United States of America.
The request is one which contrasts with a request
for a warrant where an extradition request has been made and where the Minister
certifies the existence of that request.
Section 26(1)(a) of the 1965 Act provides that
if the Minister receives a request for the extradition of any person, he
shall, subject to the provisions of the section, certify that the request
has been made.
In s. 26(1)(b) of the 1965 Act, the parameters
of the High Courts jurisdiction in relation to arrests following an
extradition request is set out. The sub-section provides that on production
to a judge of the High Court of a certificate of the Minister under paragraph
1(a) stating that a request referred to in that paragraph has been made,
the judge shall issue a warrant for the arrest of the person concerned.
That is in contrast with the power of the High
Court under s. 27(1) which provides that a judge of the High Court may, without
a certificate of the Minister under s. 26(1)(a), issue a warrant for the
arrest of any person on the sworn information of a member of An Garda
Síochána not below the rank of Inspector that a request for
a provisional arrest of that person has been made on the ground of urgency.
The key and obvious point of contrast is that under s. 27(1), the court has
discretion whether or not to issue a provisional Arrest Warrant whereas an
arrest warrant must issue if sought where the Minister certifies that an
extradition request is extant.
The parameters of the courts discretion
are set out in the section itself. The court is required to ensure that certain
matters are contained in the request for a provisional Arrest Warrant from
the foreign country.
Before I describe what the minimum content
of a request for a provisional warrant is it is useful to recall that in
s. 25 of the Act, there is also a minimum content requirement for an extradition
request. Section 25 provides that:
A request for extradition shall be supported
by the following documents
(a) the original or an authenticated copy of
the conviction and sentence or detention order immediately enforceable or,
as the case may be, of the warrant of arrest or other order having the same
effect and issued in accordance with the procedure laid down in the law of
the requesting country;
(b) a statement of each offence for which
extradition is requested specifying, as accurately as possible, the time
and place of commission, its legal description and a reference to the relevant
provisions of the law of the requesting country [Emphasis added]
The contrast between that provision and its
partner provision in s. 27 is something which I bear in mind. Clearly, an
extradition request is required to state as accurately as possible the time
and place of commission of the alleged offence or offences.
In respect of Mr. Snowden, it would appear
that the American authorities made contact with Irish authorities on an informal
basis to begin with on 4th July 2013. On 5th July 2013, the Embassy of the
United States of America communicated a request for a provisional Arrest
Warrant to the Department of Foreign Affairs and Trade. It is in respect
of that request that I must exercise the powers given to me by s. 27 of the
1965 Act. In particular, because the United States of America is a Convention
country, what is required to be contained within the request is set out in
s. 27(2A) of the Act. That provides that a request for a provisional arrest
warrant shall state that one of the documents mentioned in s. 25(1)(a) exists
in respect of that person. The documents mentioned in s. 25(1)(a) are either
the original or an authenticated copy of the conviction and sentence of detention
order immediately enforceable or, as the case may be, or the warrant of arrest
or other order of the same effect.
In this respect, what one is looking for in
the request from the United States is a statement that one of the documents,
in this case the warrant of arrest, exists. I am satisfied that at page 2
of the request, the Embassy of the United States, states that on 14th
June 2013, a warrant for the arrest of Mr. Snowden was issued by US Judge
John F. Anderson for the offences charged in the complaint. This warrant
remains valid and executable. I am satisfied that that is a statement
that one of the documents set out in s. 25(1)(a) exists.
The provision then goes on to require that
the request shall be accompanied by a statement of the offences to which
the request relates, specifying the nature and description under the law
of the requesting country of the offences concerned.
On the first page of the request from the Embassy
of the United States of America, the legislative provisions creating the
criminal offences which Mr. Snowden is alleged to have committed are set
out. The following paragraph appears which says that Mr. Snowden is charged
by complaint in Case No. 113CR265 filed on 14th June 2013 in the United States
District Court for the Eastern District of Virginia. Mr. Snowden is charged
with violations of 18 USC s. 793(d) (Unauthorised Disclosure of National
Defence Information); 18 USC s. 798(a)(3) (Unauthorised Disclosure of Classified
Communication Intelligence) and 18 USC s. 641 (Theft of Government Property).
The question for the court is whether that
is a statement of the offences to which the request relates which specifies
the nature and description under the law of the requesting country of the
offences concerned. I am satisfied that that statement of the offences and
the description of them satisfies the requirement of s. 27(2A)(b) of the
I should also say that counsel for the Attorney
General in this case has submitted through witnesses tendered to the court
a number of documents which were used to obtain the arrest warrant in the
United States of America. In that context, an affidavit was sworn by a US
Official under seal. That affidavit appears to have been sworn for the purposes
of establishing probable cause that the offences were committed. Paragraph
3 of the affidavit says that the affidavit is submitted in support of a criminal
complaint alleging breaches of 18 USC 793, 798 and 641. The deponent says
that because the affidavit has been submitted for the limited purposes of
establishing probable cause for the accompanying complaint, not every fact
known concerning the investigation is included.
At paragraphs 11, 12 and 13 of the affidavit,
the deponent sets out in full the provisions of 18 USC s. 793(d), 18 USC
s. 798(a)(3) and 18 USC s. 641, those being the offences of unauthorised
disclosure of national defence information and the unauthorised disclosure
of classified communication intelligence and theft of government property,
respectively. I am also satisfied that that statement in that affidavit
constitutes compliance with the requirements of s. 27(2A)(b) being a statement
of the offences to which the request relates specifying the nature and
description under the law of the requesting country of the offences
Section 27(2A)(c) is the next sub-section of
the provision, compliance with which I must ensure. It is complex and has
a number of different elements in it. The section provides that the request
(i) the circumstances in which the offences
are alleged to have been committed;
(ii) the time the offences were alleged to
have been committed;
(iii) the place of the commission of the alleged
(iv) the degree of involvement of the person
in respect of whom the request is made in the commission of the alleged
I must ensure that the request complies with
that sub-section and that the four elements required to be in the request
in respect of the offences are all there.
The first matter to be looked at is whether
the circumstances in which offences were said to have been committed are
set out in the request. In this respect, I refer to page 2 of the request
delivered by the United States Embassy to the Department of Foreign Affairs
which has the following text:
Snowden, a US citizen and fugitive,
unlawfully released classified information and documents to international
media outlets. Since approximately March 2013, Snowden was employed by the
US based strategy and technology consulting firm Booz Allen Hamilton (Booz
Allen), a company which, among other roles, serves as a contractor for the
United States Government including US agencies. As part of his employment
and following a background investigation, Snowden was granted a United States
Government security clearance which entitled him to access to classified
national defence information. Additionally, Snowden acknowledged his
responsibility and agreed to protect that classified defence information
from disclosure to persons not entitled to receive it.
Between on or about 5 June 2013 and 9 June
2013, classified information was published on the Internet and in print by
multiple newspapers including the Washington Post and the
Guardian. The articles and Internet postings by the Washington
Post and the Guardian included classified documents that
were marked Top Secret. The Washington Post and the
Guardian later revealed that Snowden was the principal source
for the classified information. Snowden, on or about 9 June 2013, in a videotaped
interview with the Guardian admitted that he was the person who
illegally provided those documents to reporters. Evidence indicates that
Snowden had access to the classified documents in question, accessed those
documents and subsequently provided those documents to media outlets without
authorisation and in violation of US law.
It is in those two paragraphs in particular
that I look to for compliance with s. 27(2A)(c) of the 1965 Act.
I am satisfied that in respect of item one,
which is the circumstances in which the offences were committed, and item
four, the degree of involvement of Mr. Snowden in the commission of the alleged
offences, are adequately set out. This is evident from the manner in which
the request gives details about the connection between Mr. Snowden and a
firm described as being a US based firm. The connection between Mr. Snowden
and this firm is set out, the fact that there was access to the documentation
and the fact that there was publication of the documents between 5th June
and 9th June 2013.
The second matter of which I have to be satisfied,
is whether the request specifies the time when the offences took place. Counsel
for the Attorney General has urged upon me that there is adequate information
in respect of the time when the offences took place by reference to the
timeframes which are in the request and that is the beginning of Mr.
Snowdens employment with Booz Allen Hamilton which is said to have
been in March 2013 and the final publication and admission by Mr. Snowden
of his involvement in the offences on 9th June 2013. Mr. Murphy S.C. urges
upon me that that is an adequate expression of the time when the offences
Not without some hesitation, and having considered
the matter carefully, it appears to me that there is adequate information
about the time within which the offences were said to have taken place set
out by reference to that timeframe. I am aware that there is a difference
between the degree of information required to ground an application for a
provisional warrant and that which would be required in respect of an extradition
request. Having regard to that difference between the provisions of s. 25(b)
and s. 27(2A)(c), I say that there is adequate description of the time when
the offence may have taken place.
The final matter which I must check by reference
to the provisions under section 27(2A) is whether the request informs this
court where the offences took place.
In this regard, I refer again to the affidavit
sworn in support of the application for an Arrest Warrant in the United States
of America. It is urged upon me that the content of this affidavit should
fairly be considered to be comprised in the request for the provisional Arrest
It is arguable that the only document extraneous
to the request itself which may lawfully form part of the request and be
checked for compliance with the rules in s. 27 is an accompanying statement
of offences. I am not necessarily deciding whether such approach is lawful
but I am willing to assume that I am permitted to have regard to the information
that was sworn and available to the court in the United States of America
when it issued the Arrest Warrant. In particular, I note the contents which
start at paragraph 26 of the affidavit and which says that on or about 15th
May 2013, based on badge access records, Mr. Snowden accessed an NSA facility
in Hawaii for the last time.
This is the first indication in any of the
documents before the court as to where these offences might have taken place.
The request itself does not state where the offences actually took place.
There is a reference to Mr. Snowden being employed by a US based company
but the request does not say that the employment took place in the United
States of America. I am willing to assume that the statement in the request
that Booz Allen is based in the United States of America allows me to be
satisfied that Mr. Snowden was employed in the United States and therefore
there is a likelihood that the offences were committed in the United States.
I might well be able to do that but I would have a concern. The concern would
be that there is insufficient detail about where in the United States the
employment might be based. However, that might not be completely fatal, it
might be sufficient for the request to say that the offences were committed
somewhere in the United States of America.
The affidavit to which I have been referring
says that having accessed the NSA (which I understand refers to the National
Security Agency) facility in Hawaii for the last time, on or about 19th May
2013, Mr. Snowden travelled from Hawaii to Japan. On or about 20th May 2013,
Mr. Snowden arrived in Hong Kong. On 20th May 2013, Mr. Snowden posted on
social media the words Im okay, it had to be done.
The publication of the material happened between
5th, 6th, 7th and 9th June 2013 and the interview which was videotaped where
Mr. Snowden appears to admit to his dissemination of information was broadcast
on the Guardian website on 9th June 2013.
The difficulty with this is that we have a
timeframe within which Mr. Snowden was definitely in the United States of
America and that is between March 2013 and 19th May 2013. Thereafter, Mr.
Snowden, on the information available to this court, was outside of the United
States of America. I am told that he was in Japan and in Hong Kong.
It is of note that the offences with which
Mr. Snowden is charged relate, not to the publication of the information,
but to its unauthorised disclosure. The question for this court is whether
the request for the provisional warrant tells this court where the unauthorised
disclosure took place. It seems to me that there are a number of possibilities.
(i) That the information was disclosed in the
United States of America;
(ii) That the disclosure took place in Japan
some time on or after 19th May 2013 or in Hong Kong some time after 20th
The question of where the offence took place
is not a minor detail but is a matter which could have very serious consequences
in any further stage that might be reached in an extradition process. That
is because if it is the case that the offences took place outside of the
territory of the United States of America, the question will arise as to
whether there is extraterritorial effect in respect of the US offences, but
more importantly, whether the Irish equivalent offences have an extraterritorial
effect or aspect to them. There would need to be sufficient similarity between
the two offences in order for there to be an extradition. That is a matter
that is not before the court now and is of no concern. I am simply referring
to that as to why I think it is important that the place where the commission
of the offences be indicated.
My conclusion in this matter is that the request
made on 5th July 2013 by the United States of America through its Embassy
in Dublin fails to indicate the place where any of the offences took place.
Therefore, I am compelled to refuse the application
by the United States of America for a provisional Arrest Warrant in respect
of Mr Edward J. Snowden.
(Though the judgment as delivered referred
to the failure of the request to state where the alleged unauthorised disclosures
took place, the decision of the court was also based on the same failure
in respect of the offence of theft of government property. The court could
not discern what property had been allegedly stolen nor where the theft took
place. The offence may relate to theft of information and its misuse rather
than to physical property. In the absence of some information about this
alleged offence it could not be assumed that the theft took place in