[Blogger’s note: Our guest blogger today is Careen Shannon, Of Counsel at Fragomen, Del Rey, Bernsen & Loewy, LLP and an Adjunct Professor of Law at the Benjamin N. Cardozo School of Law in New York. Careen Shannon and Austin Fragomen blog about immigration issues at Fragomen on Immigration. She writes to offer a background on the law of asylum applied to perhaps the world's most famous -- albeit temporary -- recipient, Edward Snowden, granted that international treaty protection by Russia's Vladimir Putin. Pundits are not sure who loses more by the grant of temporary asylum -- Putin or Snowden. Immigration lawyers are divided on whether it's prudent to opine on asylum eligibility because usually no one on the outside can know the facts. In this case, however, with Snowden's leaking releasing a flood of media focus on his background, an exception is warranted -- especially if it elucidates key concepts and dispels popular misconceptions, as Careen does here.]
Edward Snowden and the Politics of Asylum
By Careen Shannon
Edward Snowden has now been granted temporary asylum in Russia, which he earlier indicated he was seeking only while he looked for a more permanent option elsewhere. Whether you think Snowden is a hero or a traitor, his quest for asylum raises interesting questions from an international law perspective. Does he actually qualify for asylum under international standards? Or would any country—including Russia—that grants him asylum really be engaging in what immigration attorney Jason Dzubnow has called the realpolitik of asylum?
Under the principle of non-refoulement in international law, countries have a duty not to return (“refouler”) a person to a place where they would face persecution. This principle was embodied in the 1951 Convention relating to the Status of Refugees (which most countries of the world, but not the United States, signed that year) and the 1967 Protocol relating to the Status of Refugees, which expanded the 1951 convention and which the United States did sign.
In 1980, Congress enacted the Refugee Act of 1980, which implemented the UN Protocol. Under this Act, a refugee was defined as “any person who is outside of any country of such person’s nationality . . . who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” A grant of asylum can only be made to a person who fits this definition of what constitutes a refugee. This definition is now part of the U.S. Immigration and Nationality Act, and mirrors the language which most countries around the world have also adopted, including, notably, Russia, as well as Iceland, Ecuador, Bolivia and Venezuela, which have all been mentioned as possible final destinations for Snowden.
The Department of Justice stated in a letter to the Russian Minister of Justice that Snowden would not be subject either to torture or to the death penalty were he to be returned to the United States—undermining any claim Snowden might otherwise have made under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (which, unlike asylum, does not require that the fear of torture be based on one of the five enumerated grounds). This has left Snowden with few options other than to seek asylum.
In Snowden’s case, the question then becomes whether he can establish a claim to asylum based on one of the five enumerated grounds. Since race, religion and nationality play no part in his story, he would have to qualify either on the basis of political opinion or by virtue of being a member of a particular social group that has been singled out for persecution by the U.S. government. The Russian government has not disclosed the basis for granting temporary asylum to Snowden. Given the swiftness with which the government granted his application, which was submitted a mere two weeks ago, it would seem that pragmatic considerations—defusing the tension created by Snowden’s having been holed up in the transit area of Moscow’s Sheremetyevo International Airport for several weeks—were probably paramount.
So let’s assume that Snowden will now attempt to use his passport-like Russian refugee document to travel to another country in order to secure a permanent grant of asylum. Eric Posner, a professor at the University of Chicago Law School, has suggested that Snowden is actually a terrible candidate for asylum. Claiming a well-founded fear of persecution based on political opinion would certainly appear to be a challenge, unless Snowden could successfully argue that his act of disclosing government secrets amounted to an expression of his political opinion. Even if Snowden can credibly paint himself as a person who has fled his country due to his dissenting political views, however, the U.S. government seeks his extradition not because of his political opinions per se, but because he violated federal law by disclosing classified information. Here, the United States can credibly draw a fairly clear distinction between prosecution and persecution.
Snowden’s best option, as Max Fisher suggested in the Washington Post, might be to seek asylum on the ground that he has a well-founded fear of persecution based on membership in a particular social group, which in his case might require him to argue that the United States persecutes whistleblowers. This may not be as far-fetched as it sounds. According to a report by Thomas Hedges in Salon, it wouldn’t be the first time that the U.S. government has at least arguably persecuted a CIA whistleblower. John Kiriakou, a former CIA agent who revealed details of the George W. Bush administration’s torture program, claims, with substantial basis, that he was pursued by the CIA, FBI and Department of Justice for years until they finally managed to find a criminal charge that would stick and land him in prison.
Interestingly enough, the United States has granted asylum to foreign nationals whose claims were based on having engaged in whistleblowing against government corruption. In Snowden’s case, while the information he has disclosed might be shocking to the public, it would be a stretch to characterize it as government corruption—since, whatever one thinks about the secret court and secret warrants that authorized the government action that Snowden revealed, such action was, in fact, legal under existing U.S. law. Another country, however, might have a more expansive view of whistleblowing for asylum purposes. (After all, lawfulness per se does not necessarily mean persecution has not occurred.) On the other hand, how many countries really want to set the precedent that disclosing government secrets is a good reason to grant a person asylum?
If Snowden cannot demonstrate a well-founded fear of persecution based on either social group or political opinion, might a nation somewhere in the world still opt to grant him permanent asylum, just as Russia has done on a temporary basis? The righteousness of Snowden’s cause has certainly been undermined by his flight to countries—China and Russia—that are themselves hardly paragons of democracy and transparency. A country that decides to offer Snowden permanent refuge notwithstanding his inability to qualify for asylum under accepted international standards would most likely be seeking to burnish its own image, damage U.S. foreign policy, and take advantage of a unique opportunity to stand up to the United States. While this might provide a country like, for example, Ecuador a certain amount of prestige among its Bolivarian neighbors in the short term, it is unclear to what extent the country—or Snowden himself, for that matter—would benefit from such a decision in the long run.
Russia’s decision to grant Snowden asylum only temporarily indicates that it wishes to avoid creating long-term damage to its relations with the United States. As Eric Posner wrote in Slate, “[C]ountries are free to grant residence, citizenship, and other forms of protection to anyone they want, for whatever reason they want, and political reasons can play [a] role…. [But] Snowden is not the type of person you want living in your country. Countries don’t grant citizenship or permanent residence to people they know to be felons.”
In the popular mind, asylum is typically equated with “political asylum,” which is technically inaccurate since there are four other grounds on the basis of which a country can grant an individual asylum. But asylum is inherently political in nature, and the decision to grant asylum necessarily includes an implicit rebuke against the country from which the person has fled. While the story that Snowden has to tell about secret U.S. government policies may or may not be over, his personal story—and its implications for U.S. policy, the international law of asylum and international relations as a whole—has in many ways just begun.