The High Court has refused an application by the United States for an arrest warrant for the former intelligence contractor Edward Snowden.
In a judgment issued this afternoon, Judge Colm Mac Eochaidh said he was "compelled" to reject the application for a provisional arrest warrant, which was made by the US embassy to the Department of Foreign Affairs last Friday, because it did not state where the alleged offences were committed.
The application, under the Extradition Act 1965, was brought to the High Court by the attorney general last Saturday.
According to the judgment, the US authorities made contact with their Irish counterparts on an informal basis on July 4th. The following day, the US embassy made a formal request for a provisional arrest warrant to the Department of Foreign Affairs and Trade.
The request specified that, in documents filed on June 14th in the US District Court for the Eastern District of Virginia, Mr Snowden was charged with unauthorised disclosure of national defence information, unauthorised disclosure of classified communication intelligence and theft of government property.
According to the judgment, the request by the US embassy in Dublin describes Mr Snowden as “a US citizen and fugitive”.
The letter from the embassy read: “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.”
Judge Mac Eochaidh said he was satisfied that the US request met a number of the conditions set out in the relevant act for him to grant the arrest warrant. These included the fact it set out the time when the alleged offences took place, the circumstances in which the offences were committed and the degree of involvement of Mr Snowden in the commission of the alleged offences.
However, the judge observed that the request did not state where the offences actually took place - a condition that must be met by such applications.
“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,” the judge wrote.
“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.”
He continued: “There would need to be sufficient similarity between the two offences in order for there to be an extradition.”
Given that the request from the US embassy did not indicate where any of the alleged offences took place, Judge Mac Eochaidh said he was “compelled” to refuse the application for a provisional arrest warrant by the US.
