Friday, June 28, 2013

NSA Leaker Snowden and Political Asylum

Regardless of what you believe about what he did, there is something comical about the chain of events surrounding NSA leaker Edward Snowden. The idea that he is sitting in an airport terminal in Russia while Putin says there's nothing he can do and Julian Assange, held up in an embassy in London, works to help Snowden elude the U.S. government. Meanwhile, Ecuador, likely the desired destination for Mr. Snowden, decides to back out of a trade agreement with the United States so that the U.S. cannot use the trade agreement as leverage against Ecuador as Ecuador decides whether to provide Snowden with asylum protection.

But even if Snowden did make it to Ecuador (and it's not clear at this point that he can), is he even entitled to obtain asylum relief? The answer to this question really is based on what you think about Snowden's actions. To obtain asylum, an applicant has to show that he or she will be persecuted on account of one of the five protected grounds and that the government is responsible (or abdicates to to the actions of private individuals). If Snowden is sent back to the U.S., he will likely spend the rest of his life in jail. So is this persecution on account of a protected ground?

The five grounds are: race, religion, nationality, political opinion, and social group. Here, the protected ground at issue is political opinion. Snowden disclosed classified information. A law says that you cannot do this. Countries have a right to prosecute individuals who violate the law, right? Well, it depends. It can be a judgement call, requiring countries to pass judgment on the way that other countries address perceived human rights issues.

For example, China requires Christians to practice in sanctioned institutions (although the restrictions appear to be loosening). The United States believes Christians should be able to practice their religion in any matter they see fit. Thus, if a Christian in China is punished for attending services in a house church, the U.S. government might provide that person with asylum relief even though that person has technically violated a law in China.

A more on-point example for Snowden's purposes is whistleblower protection. Under the theory that they are expressing a political opinion, the U.S. has provided asylum relief to applicants who claim they face persecution because they tried to expose government corruption.

So where does the U.S. surveillance program fall? According to some recently conducted polls, a majority of people in the U.S. think the government's actions are a reasonable response to ongoing security threats. Should that matter? And what are the implications of countries using the asylum process as a way to simply stick it to the U.S. for broader reasons?

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