U.S. Actions in Snowden Case Threaten Right to Seek Asylum

Revelations about the NSA's secret surveillance activities continue to make headlines both at home and abroad. In the last week alone, Brazil expressed concern about recent reports of NSA spying on millions of Brazilian citizens, the European Parliament adopted a resolution authorizing its Civil Liberties Committee to launch an "in-depth inquiry" into U.S. surveillance programs, and Germany made clear that EU concerns over U.S. spying would not be ignored. In addition to outrage over the NSA's activities, much attention has been paid to Edward Snowden's whereabouts. (He continues to be stranded in the transit area of the Moscow airport from where he reportedly has sought asylum in at least 21 countries.)

While it remains unclear where Mr. Snowden will ultimately end up and how he will be able to leave Russia, U.S. actions to secure his extradition must take place within an acceptable legal framework protecting his right to seek asylum.

Article 14 of the Universal Declaration of Human Rights (UDHR) states that "[e]veryone has the right to seek and to enjoy in other countries asylum from persecution. This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations." The American Convention on Human Rights explicitly provides for a right of an individual "to seek and be granted asylum in a foreign territory, in accordance with the legislation of the state and international conventions, in the event he is being pursued for political offenses or related common crimes."

In the case of Mr. Snowden, the United States has interfered with his right to seek asylum in two significant ways. First, the U.S. revoked Mr. Snowden's passport. While this action does not render Mr. Snowden "stateless" (because he is still a U.S. citizen), it does make it extremely difficult for him to travel or seek asylum, especially in countries that require asylees to be present in their territory at the time of the request. Second, while the United States is within its rights to seek Mr. Snowden's extradition to face charges in the United States, diplomatic and law enforcement efforts to extradite him must be consistent with international law. It appears that U.S. efforts have prevented Mr. Snowden from receiving fair and impartial consideration of his application for asylum in many of the countries to which he reportedly applied. These efforts allegedly led to an unprecedented event last week when Bolivian President Evo Morales' plane was denied the use of airspace by several European countries and forced to land in Austria. Once on the ground, the plane was reportedly searched because American intelligence officials believed that Mr. Snowden was on board.

Last Saturday the Nicaraguan government released Mr. Snowden's formal asylum request, which states in part that he seeks asylum:

because of the risk of being persecuted by the government of the United States and its agents in relation to my decision to make public serious violations on the part of the government of the United States of its Constitution, specifically of its Fourth and Fifth Amendments, and of various treaties of the United Nations that are binding on my country. As a result of my political opinions, and my desire to exercise my freedom of speech, through which I've shown that the government of the United States is intercepting the majority of communications in the world, the government of the United States has publicly announced a criminal investigation against me…I believe that, given these circumstances, it is unlikely that I would receive a fair trial or proper treatment prior to that trial, and face the possibility of life in prison or even death.

Mr. Snowden asserts that he acted on his political belief that the U.S. government violated the rights of its citizens and others through massive surveillance and spying operations. While the White House refused to comment on the asylum offers so far made by Venezuela, Nicaragua and Bolivia, earlier last week the Obama administration asked the Venezuelan government to arrest Mr. Snowden for the purpose of extradition to face Espionage Act charges, among others. Mr. Snowden has serious claims for asylum and has a legitimate right to seek asylum irrespective of the human rights record of the country that he ultimately ends up in. As the ACLU, Human Rights Watch, and Amnesty International have stated, U.S. law provides insufficient protections for whistleblowers. Any consideration of his asylum claims must take into account that Mr. Snowden could be at risk of facing an unfair trial, a very harsh sentence, and pre-trial and post-conviction solitary confinement, which can amount to cruel, inhuman or degrading treatment or punishment. Moreover, the ACLU has long held the view that leaks to the press in the public interest should not be prosecutable under the nation's espionage laws.

Ironically, U.S. actions (including whatever role the United States played in the incident involving President Morales' plane) have arguably strengthened Mr. Snowden's claims for asylum based on political persecution. In addition to infringing on Mr. Snowden's right to asylum, U.S. actions also create the risk of providing cover for other countries to crack down on whistleblowers and deny asylum to individuals who have exposed illegal activity or human rights violations.

That's a very dangerous precedent to set.

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nilst2011

Microsoft Helped The NSA Bypass Its Own Encryption Software, Spy On Its Clients : http://www.zerohedge.com/news/2013-07-11/microsoft-helped-nsa-bypass-its...

Russell Scott D...

Mr. Snowden can get a Transcendian passport. Transcendia is a nation of airports satisfying his "landed" status. I estimate 28 thousand would be a fair price now for I would have serious negotiations to hand one way or another. Likely more would be absolutely needed.
Still there are instructions and ways to pay and assemble all from on line. Transcendia.wikidot.com is most likely of most immediate utility.
Transcendia.org and Transcendia.org/wordpress are pretty much what I am building from.
I also offered passports to those whom Angelina Jolie wanted to help in refugee status.

Anonymous

Before this, I have always supported the positions and actions of the ACLU, but in this case, I differ in my opinion. No country is perfect, certainly not the USA; but millions of foreign-born persons dream of coming to the USA because of a lack of economic and political liberties in their own country. I used to be one of them. Certainly, what Edward Snowden has revealed is troubling, and needs to be acted on - but he has also committed a very serious crime, and, in my opinion, has truly enabled and helped our enemies to avoid our surveillance. If he truly believes what he did was a political and not criminal act, he should come back to the USA - voluntarily - and submit himself to the scrutiny of the courts and the political arena. once he arrives on USA soil, his notoriety will prevent serious harm to him.

To quote the article, "Article 14 of the Universal Declaration of Human Rights (UDHR) states that "[e]veryone has the right to seek and to enjoy in other countries asylum from persecution. This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations." What he has done, is not only a political matter, it is a *criminal* matter, and if he believes otherwise, he should have the guts to submit himself to the US courts - unless he is willing to assert that US courts are politically-driven.

Anonymous

Snowden is not a "whistleblower," but a criminal. As a longtime admirer of the ACLU (and a sometime donor), I am appalled that the organization would support or approve of Snowden's efforts to evade justice.

Anonymous

If we did not spy and have secret and top secret clearances we would have been taken over a long time ago. Snowden is a traitor period. He threatens our way of life as does many of the stuff ACLU does. We are a Christian nation and have to protect ourselves. ACLJ has the right values for our country.

Stockton

This blog piece is deeply flawed, and betrays the ACLU’s usual careful analysis of the facts.

Snowden was not persecuted. As a U.S. citizen, he was as free as anyone. Then he broke the law. Breaking the law trumps many rights, including trying to gain asylum to avoid arrest for the commission of a crime.

Whether he broke the law in a good cause or not is beside the point. We ALCU members believe in supporting human rights as one of the basic foundations of modern civilizations. But equally we believe in the rule of law, not of anarchy. We oppose the notion that “less government is better” because the end point of that philosophy is no government at all.

For you to argue, in a piece filled with red herrings such as the comments about Brazil (entirely irrelevant to the issue of asylum), that Snowden has a right he does not have, is distressing, and can undermine the ACLU’s credibility, which it has striven so hard over the years to maintain.

Anonymous

"...in the event he is being pursued for political offenses or related common crimes."

So you're claiming that Snowden commited a political offense? What political offense? I thought he just broke the federal laws surrounding the release of Top Secret information to individuals that are not authorized to receive it. In addition, beyond what he has stated, we don't know why or whether he has received compensation.

Funny, I was going to restart my monthly donations to the ACLU. Now, I guess I'll wait and see how this episode turns out.

Anonymous

Sir -

Snowden committed treason. He disclosed Top Secret information to the world (which includes 'our enemies') which, by the very definition, is treasonous.

To discuss this matter in any other light is silly.

Set aside his disclosures involving PRISM. If he had stuck to those, I have a feeling neither I nor the government would have a problem with him. I realize those are the disclosures the press wants to focus on, but they have nothing to do with his major breaches of security.

Snowden disclosed Russian codes we have broken (by detailing the contents of a diplomatic message from the Russian embassy), he disclosed servers we had penetrated in China as well as EU traffic we had decrypted and analyzed.

Please forget about PRISM. Snowden is a spy who has disclosed Top Secret information this country entrusted him with. He is not a whistle blower. He is a traitor.

There is no other way of looking at this guy.

Regards -

Mark Corsi

Snowden committed treason. He disclosed Top Secret information to the world (which includes 'our enemies') which, by the very definition, is treasonous.

To discuss this matter in any other light is silly.

Set aside his disclosures involving PRISM. If he had stuck to those, I have a feeling neither I nor the government would have a problem with him. I realize those are the disclosures the press wants to focus on, but they have nothing to do with his major breaches of security.

Snowden disclosed Russian codes we have broken (by detailing the contents of a diplomatic message from the Russian embassy), he disclosed servers we had penetrated in China as well as EU traffic we had decrypted and analyzed.

Please forget about PRISM. Snowden is a spy who has disclosed Top Secret information this country entrusted him with. He is not a whistle blower. He is a traitor.

There is no other way of looking at this guy.

Regards -

Mark Goretsky

Thank you, Jamil, for the powerful argument in your article article "US actions in Snowden case..." It deserves to be reprinted all over the world. Best wishes to you and ACLU.

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