Snowden’s Case for Asylum
Despite U.S. government pressure, Russian President Vladimir Putin is balking at demands that he extradite Edward Snowden from Moscow to face espionage charges for leaking secrets about America’s global surveillance operations. Still, Snowden’s status remains dicey, as Marjorie Cohn explains to Dennis J Bernstein.
By Dennis J Bernstein
"Consortium News" - The U.S. government is putting on a full-court press to track down, arrest and prosecute Edward Snowden for blowing the whistle on the National Security Agency’s massive collection of data on phone calls by Americans and Internet use by foreigners.
Despite U.S. government pressure, Russian President Vladimir Putin is balking at demands that he extradite Edward Snowden from Moscow to face espionage charges for leaking secrets about America’s global surveillance operations. Still, Snowden’s status remains dicey, as Marjorie Cohn explains to Dennis J Bernstein.
By Dennis J Bernstein
"Consortium News" - The U.S. government is putting on a full-court press to track down, arrest and prosecute Edward Snowden for blowing the whistle on the National Security Agency’s massive collection of data on phone calls by Americans and Internet use by foreigners.
U.S. Secretary of State John Kerry urged Russia to “do the right thing,” block Snowden from leaving Moscow, and instead turn him over to the United States for prosecution. Talking to reporters in New Delhi, India, Kerry said, “We think it is very important in terms of our relationship. We think it is very important in terms of rule of law. There are important standards.”
But
Marjorie Cohn, professor at Thomas Jefferson School of Law, said
there is another rule of law, international law, that may give
the 30-year-old systems analyst a path to political asylum. Cohn
said Snowden could cite “a well-founded fear of persecution”
based on the mistreatment of fellow whistleblower Bradley
Manning. Professor Cohn spoke about the Snowden case to Dennis J
Bernstein on Monday on the Flashpoints show on Pacifica Radio:
DB: Why
don’t you begin with an overview of the case, and how you see
it.
MC: Edward
Snowden revealed a secret program of massive spying on Americans
and people all around the world and turned them [documents] over
to the Guardian and Washington Post. Then he
went to Hong Kong, which is where he was until he left [on
Sunday]. The U.S. government is going to charge him under the
Espionage Act with crimes that could garner him 30 years, or
even life in prison if they decide to add extra charges.
The Obama
administration has gone after whistleblowers in an unprecedented
manner, filing charges against eight people under the Espionage
Act, more than twice all prior presidents combined. Most
recently, the firestorm around Mr. Snowden is about whether he
will be extradited back to the U.S. to stand trial on these
charges. He was in Hong Kong, left and stopped in Moscow. There
have been reports that he might go to Ecuador where he applied
for political asylum and he did confer with officials from the
Ecuadoran government when he was in Russia.
He could
be extradited, sent back to the U.S. for trial, either by Russia
or any country he passes through on the way to Ecuador. Or
Ecuador could extradite him back to the U.S. Russia and the U.S.
do not have an extradition treaty, but the U.S. has extradited
seven Russian prisoners in the last two years. A country can
refuse extradition when the offense is political in nature. He
would be charged under the Espionage Act and espionage is a
classic political act that gives rise to a refusal of
extradition, so they could refuse extradition on those grounds.
There’s
also a provision in the Convention against Torture called
non-refoulement that forbids extradition of a person to a
country where there are substantial grounds to believe he would
be in danger of being tortured. Since Bradley Manning, another
prominent whistleblower, was tortured by being held in solitary
confinement for nine months, a country could conclude Edward
Snowden might be subjected to the same fate, and deny
extradition on that ground.
Also a
country has an obligation to refuse extradition when it would
violate fundamental rights. The right to be free from torture
and cruel treatment is a fundamental right. Under the refugee
convention, Ecuador or Iceland, where he’s applied for asylum as
well, or any country, could grant Snowden political asylum if he
can show he has a well-founded fear of being persecuted for
reasons of political opinion in the U.S. He probably could make
that showing in one of those countries. At this point it’s very
fluid.
The
Johannesburg Principles of national security, freedom of
expression and access to information, which were issued in 1996
provide, “No person may be punished on national security grounds
for disclosure of information if the public interest in knowing
the information outweighs the harm from the disclosure.” It’s
important to be talking about that. What did Edward Snowden do?
Did he harm the national security?
There have
been claims that terrorist attacks were thwarted by the massive
dragnet surveillance Snowden exposed, but Senators [Mark] Udall
and [Ron] Wyden, who have been on the Senate Select Committee on
Intelligence and looking at this classified information for
years, say that’s not true. The intelligence that is the most
useful for foiling these plots is traditional intelligence and
not a dragnet surveillance where they listen in to people’s
phone calls and track what kinds of places they visit on the
internet.
Even if
they are not listening in on the content of the phone calls or
reading the content of the messages, the fact that they are
profiling, coming up with so-called patterns based upon the
websites people visit or the people they call could be a
tremendous invasion of privacy and lead to a lot of false
intelligence.
DB: The
scuttlebutt in the press today talks about how Snowden’s lack of
character is reflected by his choice of going to one of the U.S.
enemies, Ecuador, Cuba or Russia.
MC: Quite
frankly, if the U.S. didn’t have such an antagonistic and
ill-advised policy against countries like Venezuela and Cuba,
even Ecuador, then these countries would probably be extraditing
him back to the United States. But when the United States
pursues the kinds of policies it does in Latin America, it
alienates progressive governments, like Ecuador, which has a
democratic, not tyrannical government.
Let’s keep
in mind that In the 70s and 80s, the U.S. was supporting all the
tyrannical countries in Latin America that were kidnapping,
disappearing, torturing and murdering people. But it’s hard to
blame these governments for not being willing to jump to
whatever the U.S. says. According to Michael Ratner, a lawyer
for Julian Assange, the Obama administration is bullying
countries all over the world so they can get Ed Snowden rendered
to the U.S. where he can be prosecuted.
Certainly
the U.S. government is known for its bullying. It has bullied
countries that signed the Rome Statute for the International
Criminal Court [ICC] – bullied them into not turning Americans
over to the court if Americans are found in those countries. The
Bush administration certainly bullied countries about the ICC.
Even the Obama administration has, if not by bullying,
influenced Spain to drop charges under universal jurisdiction
against the six Bush torture lawyers. That could be a form of
bullying.
The U.S.
has been notorious for bullying countries, especially smaller
countries, for years – they are blackmailed into believing they
will lose foreign assistance from the U.S. if they don’t do what
the U.S. wants. When Americans are asked in the polls about what
Edward Snowden did, and they think about it personally – do we
want the government monitoring our personal communications –
they are very much against these massive spying programs and not
so critical of Edward Snowden.
It’s
important that the independent media bring what is happening to
the people so they are not just left with sound bites from the
corporate media that will paint Snowden as a traitor because he
violated national security that keeps us safe from terrorist
attacks. We heard that all through the Bush administration and
it certainly didn’t make us any safer than we would have been
otherwise. It probably makes us less safe since there’s so much
hatred for the U.S. since we invaded and killed so many people
in Iraq and Afghanistan. The extensive torture, Guantanamo, the
drone strikes, which have been stepped up during the Obama
administration, have all created much more hatred against the
United States.
DB: Is
there any precedent, any case you could make that this man acted
for the greater good of society?
MC: A
precedent is Dan Ellsberg who leaked the Pentagon Papers, which
revealed what was going on in the Vietnam War and helped
ultimately end that war. You could say that was for the greater
good. Also, Bradley Manning leaked evidence of war crimes, the
collateral murder video, among other things, which showed
commission of war crimes as defined by the Geneva Conventions,
by people in the U.S. Army. Yes, there is precedent for this.
DB: Do you
think the U.S. is going to figure out a way to get him? Would
they be breaking international law if they sent a pick-up team
to get him, wherever he was?
MC: Yes,
they would. He needs very tight security wherever he is because
it’s not beyond belief to think some thugs could kidnap him and
render him to the U.S.
DB: Is
there any legal justification for the U.S. to do that?
MC: No,
but somebody could do it and say they weren’t working for the
government. The government could say he’s a traitor and we need
to bring him to justice in our country and he is being shielded.
DB: So he
can be kidnapped and left somewhere the U.S. could get him? The
U.S. could say, “We didn’t get him. We found him here.”
MC: That’s
possible.
Dennis J Bernstein is a
host of “Flashpoints” on the Pacifica radio network and the
author of
Special Ed: Voices from a Hidden Classroom. You can
access the audio archives at
www.flashpoints.net.
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