Edward Snowden has probably
learned a lot about asylum law in the past few days. His recent revelation that he was behind last
week’s stories in The Guardian and the Washington Post providing details about top-secret NSA programs have made him somewhat
of an international sensation. The U.S.
is expected to indict Snowden for leaking national security secrets. Russia and Iceland have indicated they might
consider offering Snowden asylum. But
would he even qualify for asylum as defined by international law?
In order to qualify for asylum
under the 1951 Refugee
Convention, you must show that you are unable to unwilling to return to
your home country because you have suffered past
persecution or you have a well-founded fear of future persecution based upon one of five protected grounds: your
race, religion, nationality, membership in a particular social group, or your
political opinions.
Snowden’s case illustrates
the complex relationship between refugee law and global politics. In order to be granted asylum, he would have
to argue that he is being prosecuted for leaking top-secret government
information primarily for political reasons. Thus, a crucial question in Snowden’s case is when
does prosecution by a state cross the line from legitimate investigation into
persecution, thus rendering the accused eligible for asylum?
In some cases, the
prosecuting state's motives are obviously illegitimate, seeking to punish
dissidents for engaging in activities protected by international law. For
example, Aung San Suu
Kyi, a long-time political opponent of the Burmese government, was held
under house arrest in Burma
for almost 15 of the past 21 years merely for engaging in politics. This example illustrates one end of
the prosecution/ persecution spectrum, with obviously politically motivated
charges in countries that lack any pretense of the rule of law, and makes for
relatively straightforward refugee claims.
Snowden’s case is not so
clear cut. It basically boils down to
this question: Is the U.S. government indicting Snowden because he broke the
law or because of his political opinion (that he believes what the NSA did was
wrong)? If an asylum court abroad
determines that U.S. efforts to arrest and prosecute Snowden amount to “prosecution”
for the commission of a crime and NOT persecution on account of political
opinion, Snowden may be out of luck.
However, Snowden may be able
to show he has a legitimate fear of future prosecution by arguing that the U.S.
government will mistreat him (that is, persecute him) if/when he is brought
into custody. A review of Bradley
Manning, another famous national security leaker, and his treatment
while in custody is enough to make anyone shudder (8 months of solitary
confinement, locked in his cell for 23 hours a day, stripped of his clothes,
humiliated, etc.). It is possible that
an asylum judge would find this persuasive.
It’s really up to Snowden. Hong Kong and the U.S. maintain a bilateral extradition
treaty, which would be hard to fight.
Iceland has offered asylum to at least one big name in the past (Bobby
Fischer) and its minority leader for the Pirate party seems keen
to help out. Snowden would still
have to find his way to Iceland without being intercepted, and the government
may not be willing to sacrifice good trade relations with the U.S. in order to
protect Snowden. Other options
include Russia, China, Ecuador, Guatemala, or Cuba. It’s anyone’s guess which of these countries
might be willing to accept the political fallout that would result from
granting Snowden asylum.
