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Jason Dzubow on Political Asylum

Former CIA Official Reveals Secrets, Plans to Seek Asylum Abroad

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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

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....

Mr. Snowden fled to China, where stealing U.S. secrets is a national pastime.

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.

Originally posted on the Asylumist:

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Updated 07-16-2013 at 01:19 PM by JDzubow

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