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The Political Offense Exception: Punishing Whistleblowers Abroad

Published on November 14, 2013        Author: 

Mark KielsgardDr. Mark D. Kielsgard, is an Assistant Professor of Law at City University of Hong Kong.

 

 

On June 14, 2013, the U.S. lodged a criminal complaint against Edward Snowden for theft of government property and espionage after he had fled the country. Snowden is seen by many as a hero and modern whistleblower. Protecting whistleblowers has become increasingly important as the U.S. has been stepping-up use of the Espionage Act of 1917 to prosecute suspected whistleblowers (Obama’s Abuse of the Espionage Act is Modern-day McCarthyism, The Guardian, Aug. 6, 2013). Government employees, contractors and journalists have voiced concern over reporting misconduct for fear of government reprisals. In light of recent developments in the U.S. and the general temptation of all governments to cut corners in the post-911 era, extradition protection for whistleblowers who seek protection abroad is essential to protect political activism and foster political change. This essay will consider the continued relevance of the political offense exception common to most extradition treaties and discuss its implications for modern whistleblowers abroad.

The U.S. seems to provide fugitives with among the lowest threshold of protection while many other states have evolved their standards. This is largely due to the antiquated interpretation of the traditional “incidence” test recognized for “relative political offenses” under U.S. law. As virtually no political offense can qualify as a “pure political offense,” a “relative political offense” analysis is indispensible. By recognizing a lower threshold of protection for “relative political offenses,” U.S. law has effectively rendered this exception meaningless.

The Political Offense Exception

The political offense exception dates back to at least the 19th century and has several justifications. It is premised on the belief that individuals have a right to resort to political activism to foster political change and manifests the requirement of fairness that individuals should not be returned to countries where they may be subjected to unfair trials and punishments because of their political opinions. Additionally, it complies with the right of self-determination, that foreign governments should not intervene in the internal political struggles of other nations. This exception is commonly included in extradition treaties and is provided in the United Nations Model Treaty on Extradition (G.A. Res. 45/116) at article 3(a). Read the rest of this entry…

 
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