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

By Jamil Dakwar, Director, ACLU Human Rights Program & Chandra Bhatnagar, Senior Staff Attorney

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.