Wherever Edward Snowden is now — according to WikiLeaks spokesman Kristinn Hrafnsson it is in a “safe” if secret location; according to Russian President Vladimir Putin, a transit zone in Moscow’s airport — it is clear that his disappearance, however temporary, is causing enormous anxiety to his U.S. pursuers. Ecuador, where the fugitive National Security Agency (NSA) whistle-blower has officially requested asylum, is his most likely final destination. But among the many questions being asked is to what extent did Hong Kong, where Snowden had been in hiding for a month before his departure, help him escape? And to what degree was Hong Kong’s sovereign power Beijing behind the decision to allow Snowden to board Aeroflot flight SU213 on Sunday, leaving the city’s famous lights far behind him in his quest for a new life?
A stern rebuke given by White House spokesman Jay Carney suggests that the U.S. is holding Hong Kong accountable and that Snowden’s safe passage out of the territory will have political repercussions. “This was a deliberate choice by the [Hong Kong] government to release a fugitive despite a valid arrest warrant,” he said, “and that decision unquestionably has a negative impact on the U.S.-China relationship.” On Tuesday in Beijing, Chinese Foreign Ministry spokeswoman Hua Chunying retorted: “The U.S. side has no reason to call into question the Hong Kong government’s handling of affairs according to law.”
The Hong Kong government has said that it had no legal reason to prevent Snowden from boarding his flight to Sheremetyevo Airport. It released a statement on Sunday, after Snowden had taken off, saying that said the extradition request received from the U.S. “did not fully comply with the legal requirements under Hong Kong law.” Hong Kong officials say their American counterparts were notified of this early last Friday morning, giving the U.S. Department of Justice a full day to rectify the paperwork. Though the U.S. maintains it provided all the necessary facts, on Tuesday Hong Kong Secretary for Justice Rimsky Yuen told reporters that there was a discrepancy between U.S. and Hong Kong records over Snowden’s full name and that his department never received Snowden’s passport number, which it had requested. Yuen said there was thus no basis for detaining Snowden. While this may seem like an overreliance on formalities — the identity of the man being sought was, after all, not in doubt — it will prompt a wry grin of recognition from anybody familiar with Hong Kong’s rigid insistence on correct, consistent documentation. This is a city where checks are not honored, or agreements invalidated, precisely because of a missing initial.
But was Snowden’s exit from Hong Kong permitted purely because of this technicality, or was it simply mandated by Beijing, disregarding Hong Kong’s much vaunted legal autonomy? (The territory is a Special Administrative Region of China and as such enjoys a much greater degree of freedom.) Opinions are divided. “Public statements indicate Beijing has been careful not to appear to be meddling in Hong Kong’s decisionmaking,” says Zha Daojiong, a professor of Peking University’s School of International Studies. Martin Lee, a Hong Kong barrister and democracy activist, thinks otherwise. He sees Beijing’s influence from “beginning to end” and says this was “clearly a political matter.”
Snowden, a former CIA employee and NSA contractor, first burst onto the world stage when he revealed to the Guardian and Washington Post large-scale phone and Internet surveillance by the U.S. government. Washington issued formal charges against him last Friday, his 30th birthday, for engaging in unauthorized communication of national-defense information and willful communication of classified communications intelligence — both crimes under America’s Espionage Act — as well as theft of government property. All three offenses carry maximum sentences of 10 years imprisonment.
The 1996 extradition treaty signed between Hong Kong and the U.S. maintains that there must be comparable charges in both jurisdictions. Michael DeGolyer, a professor in the Department of Government and International Studies at Hong Kong Baptist University, notes that Hong Kong’s privacy laws are different from the U.S.’s and so there may have been an argument for refusing extradition. “Theft of state secrets is a very touchy charge [here],” says DeGolyer, who points out that in 2003 half-a-million people — more than 7% of the population — marched against legislation that would have introduced a similar offense in the territory.
Still, Hong Kong hardly has a reputation for obstinacy when it comes to exercising surrender requests. In 2004, Libyan dissident Sami al-Saadi was placed upon a secret rendition flight from Hong Kong to Tripoli, in an operation allegedly planned and executed by the U.K., U.S. and Libyan governments. Al-Saadi claims he was first flown on an Egyptian aircraft to Bangkok and then transferred to his homeland. Some suspect that a similar solution — sending Snowden to a third country where he was not at immediate peril, with the proviso that he would then be moved to the U.S. — could have been negotiated, thereby avoiding the explicit violation of any nonreturn application and saving face on all sides. Snowden may have well realized this or been warned of it by his Hong Kong counsel, barrister Robert Tibbo and solicitors Albert Ho and Jonathan Man — the latter is also involved in preparing a lawsuit against the Hong Kong authorities on behalf of al-Saadi. That, and the fear of a protracted legal battle, could have prompted a decision to flee.
It’s not that Snowden was entirely unwelcome in Hong Kong. Beijing must have quietly enjoyed the delicious irony of having a Western “dissident” — as state-run news site China.org.cn described him — seeking sanctuary in a territory belonging to the communist state. His revelations of U.S. spying on Hong Kong and Chinese computer systems also punctured any moral superiority Washington had been able to maintain in its ongoing cybersecurity war with Beijing. The Hong Kong–based South China Morning Post was told by Snowden that U.S. spies were hacking into Chinese mobile-phone companies to steal text messages and attacking servers at Tsinghua University in Beijing, prompting protests and cries of American hypocrisy in mainland China.
But while there was schadenfreude at U.S. embarrassment over the revelations, Beijing didn’t want Snowden to stick around too long — a situation that could have easily drawn ongoing attention to its own questionable record on human rights and privacy. For that reason, Beijing was “quite happy to let Snowden go” says Joseph Cheng, a China watcher at City University of Hong Kong.
Ho, Snowden’s legal adviser, believes that the matter “was decided by Beijing.” The American, Ho tells TIME, “came to Hong Kong because he believes Hong Kong has good rule of law, but he did not realize how complicated entering the court process would be. He felt that the situation was getting complicated, and therefore changed his view.” Whether Beijing’s discomfort or Hong Kong’s desire to avoid a messy extradition ultimately held sway, both had their reasons for wanting the whistle-blower to disappear. And Snowden was only too happy to oblige.
— With reporting by Jennifer Cheng / Hong Kong