The man who revealed the U.S. government’s program of secret surveillance, including of millions of U.S. citizens, has fled to Hong Kong and indicated that he will be seeking asylum from “any countries that believe in free speech and oppose the victimization of global privacy.”
Edward Snowden is a 29-year former CIA employee who was working for the consulting firm Booz Allen Hamilton, where he contracted with the National Security Agency. The Washington Post describes the details of Mr. Snowden’s reveal:
The National Security Agency and the FBI are tapping directly into the central servers of nine leading U.S. Internet companies, extracting audio and video chats, photographs, e-mails, documents, and connection logs that enable analysts to track foreign targets….
The Director of National Intelligence James R. Clapper responded to the revelations last week:
Information collected under this program is among the most important and valuable foreign intelligence information we collect, and is used to protect our nation from a wide variety of threats. The unauthorized disclosure of information about this important and entirely legal program is reprehensible and risks important protections for the security of Americans.
Mr. Snowden came forward and identified himself over the weekend. “I have no intention of hiding who I am,” he said, “because I know I have done nothing wrong.” Mr. Snowden is clearly convinced of the righteousness of his cause:
I can’t in good conscience allow the US government to destroy privacy, internet freedom and basic liberties for people around the world with this massive surveillance machine they’re secretly building.
I carefully evaluated every single document I disclosed to ensure that each was legitimately in the public interest. There are all sorts of documents that would have made a big impact that I didn’t turn over, because harming people isn’t my goal. Transparency is.
By revealing himself, Mr. Snowden has put his freedom and his future (and perhaps his life) at risk.
Here, I don’t want to discuss the virtues of Mr. Snowden’s actions (though I will note that I have been critical of another whistleblower/asylum seeker, Julian Assange, whose revelations put many people at risk). Rather, I want to discuss the merits of any potential asylum claim by Mr. Snowden.
To qualify for asylum under international law, a person must demonstrate a well-founded fear of persecution on account of race, religion, nationality, particular social group or political opinion. At least under U.S. asylum law, whistleblowers have been found eligible for asylum in some circumstances:
Whistleblowing against one’s supervisors at work is not, as a matter of law, always an exercise of political opinion. However, where the whistle blows against corrupt government officials, it may constitute political activity sufficient to form the basis of persecution…
So the first question is whether Mr. Snowden’s actions constitute whistleblowing. I suppose that would depend on whether he was blowing the whistle against illegal activities or simply against activities that he disagreed with. If it was the latter, it would seem to me that granting him asylum would set a dangerous precedent. Does anyone who disagrees with a democratically elected government have the right to break laws they disagree with, search for a country willing to accept them, and then flee to that country for asylum? Sad to say, the answer is probably “yes,” but I think this does not bode well for international law or relations.
Reasonable minds can differ on whether Mr. Snowden’s actions were justified or whether they constitute whistleblowing. But assuming we accept that such actions are whistleblowing, we need to be prepared to deal with the consequential damage to the rule of law.
Second, even if Mr. Snowden’s actions constitute whistleblowing and can be characterized as an expression of his political opinion, he still needs to demonstrate that he faces persecution–as opposed to prosecution–on account of those actions. While I would like to think that any asylum seeker fleeing the U.S. would have a hard time demonstrating that he faces prosecution, I am not so sure. Between waterboarding, indefinite detention, and the over-use of solitary confinement (not to mention the death penalty, which probably would not apply to him), an asylum seeker like Mr. Snowden can probably make a decent argument that he would suffer persecution if he were returned to the United States.
Overall, I think Mr. Snowden will have a difficult–but not impossible–time qualifying for asylum under international law. However, like Julian Assange, there will probably be a number of countries willing to offer him asylum. If so, it likely will not be based on a careful analysis of international law, but instead on a calculation of that country’s own interests vis-a-vis the United States.