MR. KOJO NNAMDIFrom WAMU 88.5 at American University in Washington, welcome to "The Kojo Nnamdi Show," connecting your neighborhood with the world. later in the broadcast Iran's new president, what moderate means in the context of that country's politics and what it means to the West.

MR. KOJO NNAMDIBut first, 11 days after his name made international headlines as the man who leaked secret information about government surveillance programs, Edward Snowden has dropped from sight in Hong Kong. But while Snowden contemplates where to go next countries from Iceland to Russia have offered to help him evade U.S. authorities.

MR. KOJO NNAMDIThe U.S. has extradition treaties with more than 120 countries but history has shown that getting an accused person home can be, well, a little sticky. Consider this of the 134 extradition requests Britain received from the U.S. from 2004 to 2012 it only granted 75 of them.

MR. KOJO NNAMDIFor three decades France has been sheltering Hollywood director Roman Polanski from facing rape charges in the U.S. and Iceland has never granted a U.S. extradition request. So what kind of challenges do cases like Snowden's and others pose to these politically charged agreements? And what does history say about what makes, what may be next?

MR. KOJO NNAMDIIn this case, joining us in studio to discuss this is Stephen Vladeck. He is a professor of law and associate dean for scholarship at American University's Washington College of Law. Stephen Vladeck, good to see you again.

MR. STEPHEN VLADECKGood to see you Kojo. joining us by phone is Douglass McNabb of the International Criminal Defense Attorney with McNabb Associates. He specializes in international extradition cases. Douglas McNabb, thank you for joining us.

MR. DOUGLAS MCNABBKojo, thank you so much for the invitation.

NNAMDIIf you have questions or comments, give us a call at 800-433-8850. Do you think Hong Kong should extradite Edward Snowden? 800-433-8850 or send us a tweet @kojoshow, email to kojo@wamu.org. Steve, as Edward Snowden complicates his next move from Hong Kong, I'd like to ask kind of big think question to kick off the conversations.

NNAMDIHow have cases like Snowden's and Wikileaks founder Julian Assange posed new challenges to international extradition agreements that had been in place for decades?

VLADECKWell, you know, Kojo, in some sense the challenges that these cases pose actually is a relatively old one which is the mix between law and politics when it comes to extradition. You know, on the one hand it seems based on what we know that these guys have committed crimes under U.S. law, that they have violated perhaps the Espionage Act, other statutes.

VLADECKOn the other, you know, almost all of our extradition treaties have an exception for what are called political offenses and, you know, it's the time, the age-old question in extradition law is, what makes a particular offense political? So when we're talking Julian Assange and we're talking about Snowden we're talking about these kinds of offenses.

VLADECKYou know, the politics are impossible to miss and then the question becomes, where's the line between, you know, a political offense and a pretty ordinary crime?

NNAMDIDouglas McNabb, this weekend hundreds of protestors in Hong Kong rallied behind Snowden who is still believed to be in that city. Has popular support or public pressure ever had a decisive impact on decisions to extradite people who are wanted by authorities?

MCNABBWell, as a practitioner I would say to you that I hoped that it didn't. but from a practical standpoint, yes I think that, I think that it does. We have seen, for example, Victor Boot, as known as the Merchant of Death, was placed in extradition proceedings between Thailand and the Southern District New York-Manhattan.

MCNABBArms merchant to violating sanction laws and the such and we have seen from the disclosure through Wiki leaks of some of the cables that the American politicians were placing great pressure on Thai officials in the hopes that they would place great, great on the judiciary to extradite Mr. Boot. So practically speaking I'm afraid so but not supposed to take place.

NNAMDIYou've handled international extradition cases involving defendants in more than two dozen countries and territories. How would you council Edward Snowden right now as he contemplates his next move?

MCNABBWell, let me say, first of all, that I'm not certainly giving legal advice to Mr. Snowden and I certainly can't assist him in evading the judicial process. Kojo, those are my two disclaimers. I don't want FBI agents showing up at my door going, hey, you're assisting him.

MCNABBBut, you know, he's gone to a state where not only as Steve pointed out, there's an extradition treaty but provides for political offense exception but it also has another provision which I've not seen in any other treaty where Hong Kong can deny extradition if they believe that, and I'm just paraphrasing, but if it's in the state's best interest in either a defense or foreign policy standpoint.

MCNABBSo if Hong Kong wants to refuse extradition they could hide behind that if they wanted to. What's interesting, if I may, is the asylum mix and I don't know a lot about asylum, that's really immigration not extradition. But he's talked a lot, Mr. Snowden has talked a lot about seeking asylum, whether Hong Kong or Iceland or somewhere else.

MCNABBAnd that certainly mucks up the process, from a defense prospective it could be a benefit. We generally don't want things to be nice, clean and clear-cut because we lose and we don't like to lose. I admit putting asylum in the mix with extradition it does muck it up a bit.

MCNABBA Hong Kong law professor last week reportedly said that there was a major case in March of this year where the court ordered the government to put in place review procedures for asylum applications and then in the mean time those that were applying could stay in Hong Kong indefinitely. If in fact that's true you put that in place with the contesting the extradition the U.S. may have great difficulty within the legal arena outside of politics.

NNAMDIIf that's where Edward Snowden wants to stay he can benefit from that kind of asylum limbo in which Hong Kong now finds itself. Steve Vladeck, remind us what requirements need to be met for a country to refuse extradition.

VLADECKWell, again, it really does depend on the specific terms of the treaty enforced between us and that country and so, you know, most of our extradition treaties have this political offense exception which allows a country to refuse an otherwise valid extradition request.

VLADECKIf the request is based upon a conclusion that the offense that is being sought is political, you know, most treaties, Kojo, have this requirement of dual criminality that the offense under which the guise being extradited has to be a crime in both the requesting country and the country where's he found. And, indeed, as Mr. McNabb suggests, you know, Hong Kong has this special provision which I think codifies what is true in most cases as a matter of policy.

VLADECKWhich is where there are compelling, you know, domestic policy reasons not to extradite, you know, there are ways to find, to read treaties creatively to get around it. So, you know, at the end of the day there are actually a bunch of ways in which someone like Snowden could end up successfully contesting extradition.

VLADECKThat's part of how we explain the statistics you quoted, about just how many cases have been denied when the U.S. has requested extradition from, for example, Great Britain, Iceland, other countries where I think we would expect a higher success rate.

NNAMDIWe're talking with Stephen Vladeck, he's a professor of law and associate dean for scholarship at American University's Washington College of Law and Douglas McNabb. He is an international criminal defense attorney with McNabb Associates who specializes in international extradition cases.

NNAMDIWe're examining international extradition and asylum, inviting your calls at 800-433-8850. Do you think countries with extradition treaties with the U.S. should always honor those treaties? Should the U.S. always honor extradition treaties with other countries? Speaking of previous cases here is Chris in Silver Spring, Md. Chris, you're on the air, go ahead please.

CHRISKojo, thank you for having me on. I don't know if you all remember about five, maybe a little more than five to 10 years ago in Wheaton, Md. two kids from Israel murdered a Hispanic kid, chopped him up and one of the kids' parents or family members jetted him to Israel and Doug Gansler was the state attorney of Montgomery County at the time.

CHRISIt was before he become, I guess, the attorney general for the state and he was livid that Israel would not send this kid back to face murder charges in Montgomery County and I think one of the kids committed suicide. But the one kid who made it to Israel is still there and I don't know what happened to him but Israel would send this kid back.

NNAMDIWell, what happened is that he was tried in Israel and he received a sentence that most people feel was much lighter than the sentence he would have received in the United States. But here is Stephen Vladeck on the technicalities of the extradition proceeding there.

VLADECKWell, I mean, I think, you know Kojo, it's a great example of how the differences between our laws and the laws of other countries come into play. You know, in that case part of what the issue was is that Israel has a special series of laws for, you know, for Jews, under the Law of Return, who are entitled to return to Israel.

VLADECKThere's actually, I mean, there's a bad "Law and Order" episode that tries to, you know, take off on this legal technicality. But, you know, what we really see Kojo is the vagaries of country by country approaches to extradition and also, I mean, you mentioned the sentence that was ultimately handed down in that case.

VLADECKYou know, one of the issues that has come up most prominently and most pervasively with regard to our foreign relations in extradition cases, is just how much more serious our sentences tend to be and just how much harsher prison conditions tend to be in the United States as compared at least our democratic partners in Western Europe.

VLADECKAnd so, you know, there's actually a very important European Court of Human Rights decision from last year where you had a, you know, you had a terrorism suspect in Europe who was basically trying to object to his extradition to the U.S. on the ground that, you know, he faced cruel and human degrading treatment if he was placed into the kind of custody we usually reserve for our high profile terrorism suspects.

VLADECKThe European court turned that down but again, it sort, it's all part of the fraught politics that you always encounter in cases like this and that explains why, you know, it's a never given, that extradition either will or will not be granted.

NNAMDIThank you for your call, Chris. Douglas McNabb, Bradley Manning's incarceration, his detention conditions have been described by some as extreme and even torture. He's been tried however under our military code. Edward Snowden will be tried under civilian law, which has not received that kind of criticism necessarily. How could that difference weigh into the decision about extradition?

MCNABBWell, Hong Kong's could certainly factor in the conditions in which Mr. Snowden might be detained pending trial and then potentially where it is that he would be, he would be housed if he were convicted and I wouldn't be surprised if he were placed in super max in Florence, Co.

MCNABBBut with regard to some of these states, you know, we have a relatively lower standard that the U.S. has to meet to have one extradited from UK to the U.S. There was an amendment to the treaty, basically it was an act of UK parliament that during Tony Blair's prime ministry except he, basically if the U.S. wants to seek to have someone extradited from UK back here, the U.S. is not required to show probable cause. It's not required to show that he probably committed the crime.

MCNABBIf UK, on the other hand, wants to extradite one from the U.S. to UK, they are required to show probable cause, just as the requirement in all of the other extradition treaties. And this act of parliament, as I understand it, was passed to expedite the extradition of terrorists from UK to the U.S. And as we have seen, the significant majority of those extradited, have not been alleged terrorists but have been those involved in white collar offenses.

MCNABBSo it is easier to extradite from UK to U.S. with regard to other countries, other states. Some states won't extradite if the individual is a national of that state. For example, Greece has that, not only an extradition treaty but in their constitution. I want to say Israel is the same way but I may be wrong about that. So, you know, as Steve suggested, you look to the terms of the treaty. It's a contract between two states, between two countries. And it's a language in that contract within the legal arena that is supposed to control what occurs and what does not occur.

NNAMDIGot to take a short break. When we come back we'll continue this conversation on examining international extradition and asylum. But you can still call us at 800-433-8850 or you can go to our website kojoshow.org. You'll see an interactive map of some of the more famous and infamous U.S. extraditions at our website kojoshow.org. Later in the broadcast, Iran's new president. What moderate means in the context of that country's politics and what it means to the West. I'm Kojo Nnamdi.

NNAMDIWelcome back to our conversation on examining international extradition and asylum. We're talking with Douglas McNabb. He's an international criminal defense attorney with McNabb Associates. He specializes in international extradition cases. Stephen Vladeck is a professor of law and associate dean for scholarship at American University's Washington College of Law. And you can call us at 800-433-8850. Do you think Hong Kong should extradite Edward Snowden, 800-433-8850?

NNAMDISteve, can you be extradited for a crime if the offense you're being accused of is not a crime in the country you're taking shelter in?

VLADECKSo usually not. I mean, under most extradition treaties, and I believe this is also true under the Hong Kong treaty, there's this principal of dual criminality. The idea being that it wouldn't be fair to be extradited for something that wouldn't have been illegal in the country where you're currently found.

VLADECKYou know, there are some marginal exceptions to this rule in cases where it's conduct that should universally be understood to be criminal, even if there's no express statute on point. So the Pinochet extradition proceedings in Britain helped to bring this out with regard to when it became clear. And under British law it was illegal to torture. But for the most part, no, the dual criminality rule does usually require that the specific offense be a crime in both jurisdictions.

VLADECKYou know, the flipside is, there's no requirement that the basic for extradition be the only charge that's ultimately brought. And so, you know, in theory the government could pursue extradition against Snowden on a charge that is clearly an offense in both jurisdictions, and perhaps tack on additional offenses at a later date.

NNAMDIDouglas, on the surface it seems like all you'd need to do to avoid extradition to the U.S. for criminal charges is to find a country with no extradition treaty with the U.S. or to find a country like Iceland that applies its own standards of justice in deciding whether to send someone home. But is it really that simple?

MCNABBWell, again, I don't feel comfortable in talking about states that one can go to to avoid extradition. But I do think it's fair to say that there are 121, I believe, states that the U.S. as extradition treaties with. And so if a state isn't on that list then we don't have a treaty with them. That doesn't necessarily mean that that particular state wouldn't extradite the individual or not really extradite, but deport or return that individual to the U.S.

MCNABBFor example, even though we have an extradition treaty with Hong Kong -- not with China but with Hong Kong, presumably he is there on some sort of a visa, tourist visa or whatever. If Hong Kong wanted to - it's a contradiction of international law, but if it wanted to it could just, rather than placing him in extradition proceedings, they could just revoke his visa.

MCNABBAnd if he's in the country then illegally then they could deport him either through formal deportation proceedings, or as I had one client that was in Costa Rica and the U.S. wanted him, Costa Rica revoked his citizenship, that they said that he acquired illegally. And rather than placing him in formal deportation proceedings, they placed him in informal deportation proceedings, meaning the police took him to the airport and the U.S. Marshalls had a plane and was sitting on the tarmac waiting for him to arrive. And they would shuttle him back to the U.S.

MCNABBAnd that is not -- even if one is kidnapped -- and I'm not suggesting that the U.S. would kidnap Mr. Snowden or anyone else -- but the U.S. Supreme Court has held that it is okay -- and I'm paraphrasing -- it is okay for federal agents to go into another state, kidnap an individual, even in contradiction of local law, bringing back to the U.S. to stand trial. And that is not the basis to have an indictment dismissed against him. The court can still proceed on the indictment.

VLADECKAnd, you know, Kojo, we've seen this in some terrorism cases. I mean, so there was a story a couple months back about three terrorism suspects who the U.S. picked up in Djibouti, a country with which we do not have an extradition treaty who just magically appeared in a federal district court, you know, in New York under some fairly serious terrorism charges. And under the so-called Ker-Frisbie doctrine, the Supreme Court ruled that Mr. McNabb was just alluding to, you know, there's nothing to do at that point. If they're here, they're here.

NNAMDIAnd indeed there was an interesting question posed by a New York Post columnist recently. He wondered what was stopping the Obama Administration from going in and snatching Edward Snowden from Hong Kong. While this might seem like breaking the law, you've mentioned that it has been used before.

VLADECKWell, I think that -- so that's part of the particular genius of the facts of this case, which is, you know, in Djibouti I think it's relatively straight forward for the government to go in and pick up these guys. What's stopping the U.S. government in this case is the Chinese military. And the very serious incident we would provoke if U.S. agents went into Hong Kong without the permission and consent of the local government and extracted someone from their custody.

VLADECKAnd so, again we come back to how so much of this is politics and not law, and how, you know, oftentimes it's a question of just how willing is the United States to piss off the country in which someone like Snowden has taken refuge.

NNAMDIChanging political climates can be hugely influential in assuring a safe haven from prosecution. And Iceland, which we've mentioned earlier, is Exhibit A in that regard. What kind of political currents gave rise to Iceland's status as a haven for whistleblowers?

VLADECKYou know, Kojo, it's a great question. I mean, I think a lot of it is just sort of history, that Iceland has, for the better part of the last generation, been a beacon for free flow of information. That, you know, Icelandic laws are set up in that regard, that the Icelandic people are generally very tolerant of information gathering as an activity. You know, it's a big part of why when WikiLeaks really got started, it had its base in Iceland. And its actually first really big story was about an Icelandic bank.

VLADECKAnd so, you know, I think it's just part of the culture to really support transparency in all forms, even those that are, you know, a little bit beneath the board.

NNAMDIDouglas, Edward Snowden has mentioned Iceland as a place where he could seek asylum, though Iceland has said he needs to be on its territory to do so. Does that mean doing like Julian Assange did in the UK, simply slipping into Iceland's embassy in Hong Kong?

MCNABBWell, I think that's certainly a possibility. He could do an Assange because he could seek asylum with any of the states' embassies. So if he wanted to seek asylum from a state other than Hong Kong for example, he could do that. But of course I'd be very surprised if Ecuador would encourage him to do that. I think they have their hands full with Mr. Assange.

MCNABBBut also as Mr. Assange has found, how does he get out? How does he get out of the embassy? If he could perhaps get in, you know, a car owned by the Ecuadorian government. But getting form the townhouse into the car essentially could be problematic. And so I guess Mr. Snowden could attempt to take that same approach all the while fighting extradition, if the U.S. sought to have him extradited. But, you know, what's being gained here? How does -- where does he go from there?

VLADECKAnd how much support does he have to receive from that government? I mean, I think there's a very big difference between, you know, showing up on Icelandic soil and saying I'm here. You know, please protect me versus actually having to enlist the affirmative support of the Icelandic government. I think that's a policy matter that's going to be a much tougher road to hoe.

NNAMDI800-433-8850. Here is Joan in Washington, D.C. Joan, you're on the air. Go ahead, please.

JOANWell, in response to the question, should the United States government seek to extradite in any manner, which is Edward Snowden, I'd say no. I think Snowden is fulfilling a very, very important role. I'm 81 years old, a grandmother of seven and I was a young woman when the Daniel Ellsberg case broke. And at that time I was very conflicted. I just didn't really know how I felt or what should've been my approach to the Ellsberg exposures.

JOANHowever, as time went on, and as I watched the unfolding of his case and the challenge that it posed to government -- our government and its various morphing around in such situations, I became more and more convinced that Ellsberg had done a brave and important thing...

NNAMDIWell, Joan, in that case let me cut to the chase in this situation. If you are the U.S. government, the Obama Administration, what do you do in the case of Edward Snowden? You say on the one hand that congress has been briefed about this, that there has been judicial oversight and that it comes under the FISA law. What do you think the Obama Administration should do?

JOANWhat I think the Obama Administration should do and will do are probably two different things. I think this administration should just get over it. I think that they have eroded enough of our civil liberties, they've killed enough U.S. citizens and foreign nationals to fill up, you know, baskets full. And I think that what we -- the only way that we average citizens can rely upon an oppressive powerful wealthy elite that is ruling our government and making decisions, supposedly on our behalf, but very often against us, is to have whistleblowers like Snowden, like Bradley Manning, like Ellsberg, like others who've come forward.

JOANThese three are lucky guys. They're still alive and kicking. But I think of others who have come forward and have, in various ways, been snuffed out before they could even get to square one to let the public know what was going on. And I'm thinking of course particularly...

NNAMDIAllow me to bring our panelists in on this discussion. Steve Vladeck, would any administration simply get over it?

VLADECKMaybe. I mean, I think, you know, we haven't yet seen any real push by the Obama Administration, for example, to get Assange, which I think would've been the highest profile example we could've seen to date. So, you know, I think it's certainly possible that this administration, any administration would make a lot of noise about how bad this is, would try to find ways of dissuading this kind of leaking in the future, but would otherwise let this case sort of quietly disappear.

VLADECKI think the tricky part is, you know, get into the real substantive issue that's behind all this, which is the pervasive secrecy under which our surveillance programs are carried out. Whether they're legal or not is actually so hard to assess because of all the secrecy. And I think part of why you see the administration treading carefully here is because they may not want that conversation. And the more that they push, the more that they're going to have that conversation, whether they like it or not.

NNAMDISame question to you, Douglas McNabb.

MCNABBI would be shocked if the U.S. government did not indict -- if they haven't already done so, Mr. Snowden as well as Mr. Assange. It is not at all unusual for the United States government to seek a return of an indictment from a federal grand jury, seek an arrest warrant from the United States federal magistrate judge and ask to have that indictment sealed where it's not made a matter of public record.

MCNABBThe U.S. will then go to Interpol in D.C. and request Interpol D.C. to request Interpol out of Leon, France to issue a red notice, which is like an all points bulletin for international fugitives, putting 190 countries on notice that there's an outstanding arrest warrant out of the U.S. for a particular individual. That red notice can also be sealed. Interpol has a public database an individual can run their name through it. If the name doesn't pop up and many think well there must not be a red notice.

MCNABBAnd that's really what Interpol and the requesting state hope, that that individual will think that so that they will travel. And when they go through immigration customs in country X and that red notice pops up and they're arrested and placed in extradition proceedings between country X and the U.S. I do not see the United States government letting this pass. I do see the United States government going after both of those individuals.

NNAMDIJoan, thank you very much for your call. Steve, I'll flip this question on its head and ask, how responsive has the U.S. been historically in extraditing foreigners back to their own countries?

VLADECKVery responsive. I mean, this is, I think, one of the strange, and then maybe not so strange, facts in this whole conversation, which is that for the most part the U.S. tends to be very cooperative when it comes to honoring extradition requests, except in cases where there's a valid asylum request or in cases where the person who is being sought can really prove that he or she incredibly fears torture or other forms of cruel and human degrading treatment if they're sent back to that country.

VLADECKAnd even then we've taken a rather, shall I say, sympathetic view towards such extradition requests, so much so that there are actually a series of controversial cases where you've had folks, for example, from the Philippines who have tried to object to their extradition on the ground that their co-defendants in the same case were tortured. And the government still said, nope, we don't think you're going to be tortured and the extradition went forward.

VLADECKSo, you know, for a combination of reasons, it actually tends to be relatively easy for other countries to get the U.S. to honor our extradition treaties. Although I think it's much harder to get the U.S. to cooperate in the informal cases. We heard Mr. McNabb describe those where there either isn't a formal extradition treaty or where there are reasons to want to sidestep it. I think that's where we get a lot more sensitive.

NNAMDISame question to you...

MCNABBOkay. Let me -- huh, I'm sorry.

NNAMDIYeah, go ahead.

MCNABBLet me follow up on this, if I may. I was in extradition proceeding in North Carolina the latter part of this last year. My client was a 27-year member of the armed forced -- the U.S. armed forces. He's former Delta, former Ranger, Special Forces. And he and some of his buddies worked in a European country three years ago for training for what Special Forces people do.

MCNABBAnd on Friday night -- he was to leave Saturday morning. On Friday night he went down to the bar to have a drink and there was a young lady there. And they left and went to a party and then left and went back to her apartment. And the allegations were that he raped her. And it took two years from the date of the alleged wrongful behavior for him to be questioned by the European detectives. And they did so on base in person, unfortunately waived council. And it was a six-hour recorded interview.

MCNABBHe was, a year after that, arrested under a provisional arrest warrant -- a temporary arrest warrant between this European country and the U.S. And the United States government stood up and said that he was a flight risk and therefore he should be denied bond. Now we knew this was coming. We knew that when he showed up at the office on base that the U.S. Marshalls would be there to arrest him. He certainly wasn't a flight risk and, therefore, he should be denied bond.

MCNABBNow, we knew this was coming. We knew that when he showed up at the office on base that the U.S. Marshals would be there to arrest him. He certainly wasn't a flight risk. But my point is two-fold. One, in United States Federal Court when an individual is placed in extradition proceedings based upon a request from a foreign country, the Bail Reform Act does not apply. If he attempted to kill the president of the United States, he'd have the right to have a hearing to determine whether he was either a flight risk or a danger to the community, and if not then released bond.

MCNABBIn extradition proceedings the Bail Reform Act doesn't apply. This is not a criminal case. It is a civil administrative case arising out of a criminal matter. So for us to be able to get a hearing, it took me an hour and a half arguing to the Court that we should, at the Court's discretion, be given a hearing. The Judge ultimately who ultimately granted that would not let me appear in person, would make his decision based on written submissions. You have to be able to show there's special circumstances to be able to get out on bond, and that is an incredibly difficult task to show that there's special circumstances.

MCNABBNow, I argued, as I did in the extradition proceeding, that he should be released on bond, he should -- the proceeding should be dismissed because he hadn't been charged. He had not been charged….

NNAMDIWill, we're running out of time, and I'm glad you were able to explain some of the complexity of this. Was he or was he not ultimately extradited?

MCNABBHe was, and when he hit the European country he was released on bond, and he's back in the U.S., and they've shown that the alleged victim has changed her story four times.

NNAMDIAnd that, I'm afraid, is how we're going to have to end this segment. Douglas McNabb is an international criminal defense attorney with McNabb Associates. He specializes in international extradition cases. Stephen Vladek is a professor of law and associate dean for scholarship at American University's Washington College of Law. Thank you both for joining us. We're going to take a short break. When we come back, Iran's new president, what moderate means in the context of that country's politics, and what it means to the west. I'm Kojo Nnamdi.