A HIGH COURT judge in Ireland has said he is refusing an application by the United States of America for a provisional arrest warrant for Edward Snowden.
The US had made an application for a provisional arrest warrant in respect of Snowden under the Extradition Act 1965.
In the request, it referred to Snowden as a “fugitive” who had “unlawfully released classified information and documents to international media outlets”.
On Friday, Wikileaks had said that Snowden had put in asylum applications to six new countries in his effort to find refuge from American prosecutions.
He is believed to be stuck in a Moscow airport transit area.
Judge Colm Mac Eochaidh said that he was compelled to refuse the application due to the issue of where Snowden’s alleged offences took place.
He said he was satisfied in respect to the circumstances in which the offences were committed, and the degree of involvement of Snowden in the commission of the alleged offences, as well as the request specifying the time when the offences took place.
Judge Mac Eochaidh said it also appeared to him that there is adequate information about the time within which the offences were said to have taken place set out by a reference to that timeframe.
However, in determining where the offences took place, he referred again to the affidavit sworn in support of the arrest warrant application.
Mr Justice Mac Eochaidh noted in the affidavit where it says that on or about 15 May 2013, based on badge access records, 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,” he continued. “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.
He said that the affidavit says that on or about 19 May 2013, Snowden travelled from Hawaii to Japan, and on 20 May arrived in Hong Kong.
Judge Mac Eochaidh said that the difficulty “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 19 May 2013. Thereafter, Mr Snowden, on the information available to this court, was outside of the United States of America.”
He said it is possible that the information was disclosed in the United States of America or took place in Japan some time on or after 19 May 2013 or in Hong Kong some time after 20 May 2013.
“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,” said the Judge.
My conclusion in this matter is that the request made on 5 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.
Minister for Justice
The Minister for Justice, Alan Shatter, said that 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.
He added that 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 extradited”.