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Could Edward Snowden come to Germany?

Edward Snowden’s three-year Russian residency permit allows him to travel abroad for periods of up to three months. This new possibility has reopened debate on a topic that the German government has gone to some lengths to keep closed: could Edward Snowden come to Berlin to testify to the Bundestag inquiry?

The issue of whether Edward Snowden should be called as a witness has dominated proceedings of Germany’s NSA Investigation Committee since it was set up in March this year. The committee’s first chair, Clemens Binniger, resigned less than a week after the committee opened, after failing to stop the committee issuing an invitation. Glenn Greenwald has refused to testify himself unless the committee hears from Edward Snowden in person.

In an effort to close the issue in May, the German government published a legal opinion that it had commissioned from a US law firm warning of “criminal exposure” for those who received classified information from Edward Snowden – even if they were German legislators listening to testimony. Last month the German Justice Minister suggested that Edward Snowden should return to the United States, provoking widespread criticism.

It is testament to the support Edward Snowden has in Germany – a recent poll showed that a majority of the population thinks that the German government should offer the NSA whistleblower asylum – that this discussion continues despite German officials’ efforts.

Two contrasting legal analyses have been published recently in the German press. Although speculative, they illustrate the degree to which the German government’s position has been determined by a desire to protect its unusual relationship with the United States.

A political offence

Nikolaos Gazeas, an international legal scholar from the University of Cologne, argued in Die Zeit that despite German government’s insistence to the contrary, it would not be obliged to abide by a US extradition request for Edward Snowden:

What if Mr. Snowden went against expectations and travelled to Germany to testify before the NSA committee? Would the federal government hand him over to the United States? The answer is a brief one: it would not have to. In fact, the federal government should not deliver Snowden, because the United States would be demanding his extradition for a political offense. In such a case, there is good reason why there is no obligation to extradite.

Like most extradition treaties, Germany’s agreement with the US does not allow extradition for political offences. Gazeas argues that, should the issue ever come to court in Germany, “in all probability” the German judiciary would refuse a request to transfer Edward Snowden to US custody.

Realpolitik and US military law in Germany

This week, Suddeutsche Zeitung published a very different opinion from Josef Foschepoth, Professor of Contemporary History at the Albert-Ludwigs-University in Freiburg. Foschepoth writes bluntly that, should Edward Snowden ever find himself on German soil, it would result in a “political meltdown”. The relationship between the US and Germany is unusual by international standards: the US still stations military personnel in Germany and enjoys privileges dating from the post-war era.

The privileges of the United States range from tax and duty-free treatment on the co-financing of military infrastructure and acquisition of social benefits for German civilian employees to benefits for American companies providing certain services to US troops in Germany, including in the intelligence area. There are also special rights in the field of criminal justice and law enforcement.

Foschepoth argues that the intense cooperation between US and German military services on German soil, including in the administration of military justice, makes it difficult to see how Germany could refuse an outright request. Snowden, he concludes, “should not set foot on German soil.”