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Richard Falk: Snowden’s Post-Asylum Relevance

August 20, 2013

With Snowden temporarily safe in Russia, the impact of his leaks on U.S. foreign relations is still an open question.

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Image from Flickr via ubiquit23

By Richard Falk
By arrangement with Richard Falk

Now that Snowden has been given temporary asylum in Russia for a year, attention in the drama has shifted in two directions, although overshadowed at the present by the horrific happenings in Egypt and Syria. The Snowden issues remain important, and it is too soon to turn aside as if the only question was whether the U.S. Government would in the end, through guile and muscle, gain control of Snowden. Among the issues that should continue to occupy us are as follows:

  • Interpreting the negative impact on U.S.-Russia relations.
  • The claim that if Edward Snowden is a sincere whistle-blower he will now, despite asylum, voluntarily return to the United States to tell his story in open court so as to answer charges that he is guilty of criminal espionage and conversion of government property.

As before, to grasp this post-asylum phase of the Snowden drama a few aspects of the background need to be appreciated:

  • It continues to bias the public to describe Snowden as “a leaker,” which is the usual way he is identified in the mainstream media, including such authoritative newspapers as the New York Times and Washington Post; on the right, he is simply called “a traitor,” and for the liberal elite the jury is out on whether to conclude that Snowden is “a whistle-blower” deserving some belated sympathy á la Ellsberg or “a traitor” for his supposed gifts to the enemies of the United States that undermine “security,” and deserve harsh punishment. As always, language matters, and its careful analysis is revealing as to where to locate “the vital center” of American and international opinion.
  • Snowden’s own statement of his rationale for acting “unlawfully” seems credible and idealistic, and given the wrongful nature of what was revealed and its bearing on the constitutional rights of Americans and the norms of international law, should have been sufficient to induce a humane government to drop all charges, and even acknowledge Snowden’s service as a dutiful citizen, inviting his return to the United States. Here are Snowden’s words befitting someone who deserves exoneration not criminal confinement: “America is a fundamentally good country; we have good people with good values who want to do the right thing, but the structure of power that exist are working to their own ends to extend their capability at the expense of the freedom of all publics.”

In a plural international order, it is highly desirable to provide foreign sanctuary to those who act peacefully in opposition to an established national political order.

  • Russia (and China) never had an obligation, legal, moral, and political, to transfer Snowden in response to the extradition request of the United States Government. Even if there had been an extradition treaty, “political crimes” are not subject to extradition for good reasons. In a plural international order, it is highly desirable to provide foreign sanctuary to those who act peacefully in opposition to an established national political order. The United States itself has engaged repeatedly in such practice, shielding even political fugitives who have engaged in terrorist acts, provided only that the target government was viewed as hostile by Washington at the time of the alleged crimes, e.g. Cuba, Nicaragua, Venezuela.
  • The rationale for refusing to extradite Snowden is particularly strong given the nature of his disclosures, the substance of which have evoked strong denunciations from a range of foreign governments, including such friends of the U.S. as Brazil and the United Kingdom; although espionage has long been routine in international relations, the deliberate and comprehensive spying on foreign citizens and confidential governmental undertakings is treated as unacceptable when exposed, and would be viewed as such if Russia (or any country) was detected as having established such a comparably broad surveillance program in the United States; there is an admitted schizophrenia present, making their spies criminals, ours heroes, and vice versa; such are the games played by states, whether friends or enemies.
  • The United States angered a number of countries by its tactics designed to gain custody over Snowden, especially in Latin America. Its hegemonic style was most crudely displayed when it succeeded in persuading several European governments to deny airspace to the presidential plane carrying the Bolivian president, Evo Morales. It is almost certain that the United States would treat such behavior as an act of war if the situation were reversed; more privately, it evidently cajoled and threatened foreign leaders via diplomatic hard ball to withhold asylum from Snowden. Such an effort, in effect, attempted to subvert sovereign discretion in relation to asylum as a respected human rights practice entirely appropriate in the context of Snowden’s plight, which included, it should be remembered, the voiding of his U.S. passport.

According to Friedman, Snowden is supposed to come home, face trial, and by so doing allow American courts to make the judgment as to whether to view him as “whistle-blower” or “traitor.”

  • Obama has finally admitted at a press conference of August 11th that negative reactions even in Washington to what was widely perceived as surveillance far in excess of what could be reasonably justified by invoking post 9/11 security, was prompting the government to take steps to protect privacy and roll back the program. Whether these planned reforms will amount to more than gestures to quiet the present public uproar remains to be seen. Obama did acknowledge, what everyone knew in any event, that it was the Snowden’s4 disclosures that prompted such official action at this time, but even with this show of recognition, the president still called on Snowden to return to the United States to tell his story to a criminal court if he seeks vindication. In his words, if Snowden thought he had done the right thing, “then, like every American citizen, he can come here, appear before the court with a lawyer and make his case.” Really!

In the aftermath of the Bradley Manning saga, the treatment of Guantanamo detainees, the acquittal of Zimmerman in the Trayvon Martin case, and the denial of “compassionate release” to Lynne Stewart, a brave and admired lawyer with a reputation for defending unpopular clients who lies shackled in a Texas jail while dying of terminal cancer, it could only be a naïve fool who would risk their future on a scale of justice offered by the American criminal law system. It seems rather perverse for Snowden’s father, Lou Snowden, to be reported as planning to visit his son in Moscow with the intention of urging his return to face charges, although only if the government provides appropriate reassurances. It should by now be obvious that such reassurances to Snowden would be meaningless even if made in good faith by the Attorney General. Normally, the judge and jury in any criminal trial involving alleged breaches of national security defers to the government’s view of the situation and would be unlikely to allow Snowden the option of introducing evidence as to his motivation, which is normally excluded, especially if classified material is at stake. In a trial of this sort the government only needs to show criminal intent, that is, the deliberate flouting by Snowden of relevant American law. Since this is uncontested, it would mean that Snowden would have to claim “necessity,” a defense rarely entertained by American courts, and here would also require that Snowden be able to depict the surveillance system and why it was a threat to American democracy and the rights of American citizens, which could not be done without declassifying the very documents that Snowden is accused of wrongfully disclosing.

A Tale of Two Texts

Without dwelling on their detailed character, it is worth noting two texts that illustrate the range of reaction to the Snowden controversy. The first is by Thomas Friedman, the New York Times columnist with a flair for pithy supercilious commentary on the passing scene and an arrogance rarely exceeded even in Washington. The second is by Antonio Patriota, the foreign minister of Brazil, a country that has rarely used its voice to question even the most questionable behavior of its hegemonic neighbor to the North.

Friedman’s column, published on August 13, is entitled “Obama, Snowden and Putin,” and its theme is that Snowden and Putin have an opportunity to overcome their bad behavior by seizing the opportunity for a second chance. Snowden is supposed to come home, face trial, and by so doing allow American courts to make the judgment as to whether to view him as “whistle-blower” or “traitor.”

Outside America, especially in Latin America, the focus following Snowden’s leaks is on the fundamental logic of reciprocity upon which peaceful and friendly relations among sovereign states depends.

As for Putin, even before angering the United States by giving asylum to Snowden, he gave up the “reset” opportunity given by Obama for good relations with the United States. According to Friedman, Putin’s failure was not repression at home, but his failure to follow the American lead in foreign policy, whether on Syria, Iran, cyber security. And from this outlook, Putin is seen as staking his domestic political future in Russia through an alleged adoption of an anti-American set of policies. Friedman never pauses to wonder whether American policies in the Middle East and elsewhere in the world are worthy of support. He never asks whether Putin was right or wrong in defying Obama in the Snowden context. He never notes that Moscow was very forthcoming in cooperative law enforcement in the aftermath of the Boston Marathon bombing last April, or that Putin expressed his hope that the Snowden incident would not harm relations between Russia and the United States. Friedman did not even pause to wonder about the provocative nature of American joint military exercise with Georgia, a hostile presence on the border of the Russian heartland, or the way in which NATO has been given a second life after the Cold War that includes the deployment of defensive missile systems threatening to Russia.

What is most astonishing is that Friedman exempts Obama from any blame, presumably because he doesn’t need a second chance. It seems Friedman conveniently forgets the heavy handed abuse of Manning, the refusal to look into the substance of the war crimes disclosed by the WikiLeaks documents, and the belated admission that the surveillance network had overreached legitimate security requirements. It would seem that with Guantanamo still open, and engaged in the force-feeding of hunger-striking detainees, most of whom are deemed innocent by their captors, it would be a gaping wound in the body politic that might call for presidential remedial intervention! And nowhere does Friedman note that Obama’s handling of the Snowden case needlessly damaged America’s relations in the Western Hemisphere. But do not hold your breath until Friedman makes such comments that would surely be unwelcome in the White House.

In contrast, hampered in rhetoric by traditions of diplomatic courtesy, Foreign Minister Patriota, made the following statement on the Snowden disclosures at the UN Security Council on August 6th: “..the interception of telecommunications and acts of espionage, practices that are in defiance of the sovereignty and in detriment to the relations among nation. They constitute a violation of our citizen’ human rights and the right to privacy.” The minister then goes to say that several leading states in Latin America, including Brazil, intend to pursue their grievance in other venues of the UN, including the Security Council. He explains that this “is a serious issue, with a profound impact on the international order. Brazil has been coordinating with countries that share similar concerns to uphold an international order that is respectful of sovereignty of States and of human rights.” Also, Mr. Patriota welcomed the statement of the UN High Commissioner for Human Rights, Navi Pillay, who called attention to the Snowden disclosures as revealing forms of surveillance that violate Article 12 of the Universal Declaration of Human Rights and Article 17 of the International Covenant on Civil and Political Rights.

These two texts illuminate the inside/outside nature of international relations brought to the attention of scholars a decade ago in the work of R.B.J Walker. Inside of America, the problems are seen as relating to Snowden, and his culpability combined with a superpower’s frustrations resulting from an inability to swallow him whole. Outside America, especially in Latin America, the domain of gunboat diplomacy and the Monroe Doctrine, the focus is on the fundamental logic of reciprocity upon which peaceful and friendly relations among sovereign states depends. Nothing better shows the hegemonic nature of the United States presence in the world than its unyielding refusal to grasp, let alone accept, this logic of reciprocity even in dealing with friends and neighbors.

Richard Falk is an international law and international relations scholar who taught at Princeton University for forty years. Since 2002 he has lived in Santa Barbara, California, and taught at the local campus of the University of California in Global and International Studies and since 2005 chaired the Board of the Nuclear Age Peace Foundation.

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