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Opinion

Snowden's Asylum: 'It's the law, stupid'

It should be made clear that Russia has no legal, political or moral duty to turn Snowden over to American authorities.

Last Modified: 08 Aug 2013 14:15
Richard Falk

Richard Falk is Albert G. Milbank Professor Emeritus of International Law at Princeton University and Visiting Distinguished Professor in Global and International Studies at the University of California, Santa Barbara. He is also the United Nations Special Rapporteur on Palestinian human rights.
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Russia's grant of temporary refugee status to Snowden for one year was in full accord with the normal level of protection to be given to anyone accused of nonviolent political crimes in a foreign country, writes Richard Falk [AP]

The most influential media in the United States has lived up to its pro-government bias in the Snowden Affair in three major ways: firstly, by consistently referring to Snowden by the demeaning designation of 'leaker' rather than as 'whistleblower' or 'surveillance dissident,' both more respectful and accurate.

Secondly, they are completely ignoring the degree to which Russia's grant of temporary refugee status to Snowden for one year was in full accord with the normal level of protection to be given to anyone accused of nonviolent political crimes in a foreign country, and pursued diplomatically and legally by the government that is seeking to indict and prosecute. In effect, for Russia to have turned Snowden over to the United States under these conditions would have been morally and politically scandalous considering the nature of his alleged crimes.

Thirdly, the media's refusal to point out that espionage, the main accusation against Snowden, is the quintessential 'political offense' in international law, and as such is routinely excluded from any list of extraditable offenses. That is, even if there had been an extradition treaty between the United States and Russia, it should have been made clear that there was no legal duty on Russia's part to turn Snowden over to American authorities for criminal prosecution, and a moral and political duty not to do so, especially in the circumstances surrounding the controversy over Snowden.

If the world were composed of equal sovereign states and a global rule of law existed, the United States would have meekly apologised and, at the very least, promised to refrain from such behaviour in the future.

If these elements had been clearly articulated, the United States government would have seemed ridiculous if it complained about the willingness of some foreign governments to give Snowden asylum. The Obama administration, and senate hot heads could bemoan Snowden's unavailability for prosecution to their heart's content, but it would be then seen for what it is: a petulant empire exhibiting its rage and anger because it's hard power global presence is of no use, and its policy options are constrained by the rule of law.

Under these conditions to be threatening foreign countries with adverse diplomatic consequences if they refuse to play ball is not only exhibiting a child's frustration, but it is self-defeating. If properly presented, those countries that offered asylum or refused Washington's demand for the transfer of Snowden to American custody did the only decent thing.

What should be surprising is that more governments were not forthcoming, leaving it to such small countries as Bolivia, Venezuela, and Nicaragua to withstand the strong arm tactics of the United States, perhaps signaling a welcome new resolve throughout Latin America to no longer accept a regional identity of being the backyard of the colossus of the North.

If anything, President Vladimir Putin, considering the nature of the Snowden disclosures about the global reach of American surveillance systems, acted with exceptional deference to the sensitivities of the United States. Instead of merely pointing out that Snowden could not be transferred to the United States against his will, Putin went out of his way to say that he did not want the incident to harm relations with the United States, and even went so far as to condition Snowden's asylum on an unusual pledge that he refrain from any further release of documents damaging to American interests.

Such a constructive approach to a delicate situation hardly merits the hyperbolic aggressive words of the supposedly liberal Democratic senator from New York, Charles Schumer: "Russia has stabbed us in the back…Each day that Mr. Snowden is allowed to roam free is another turn of the knife".

We should ask these deeply aggrieved senators for honest answers, including John McCain and Lindsey Graham never ones to shy away from a good fight, what they would have done had a comparable Russian whistleblower revealed a Russian surveillance system that was listening in on secret government deliberations in Washington as well as invading the privacy of ordinary Americans. The righteous indignation surrounding such revelations and the gratitude that would be bestowed on a Russian Snowden would know no bounds.

It would seem that a genuinely democratic government would not wish that the commission of war crimes and invasions of the privacy of citizens were kept secret, and beyond procedures of accountability.

Washington seems to be casting around for tangible ways to express its displeasure with Russia. The American presidential press secretary, Jay Carney, talks of 'extreme disappointment' leading to the possible cancellation of the Obama/Putin summit scheduled for September where such issues as Syria, reduction of nuclear arsenals, and Iran would be on the agenda.

Senators John McCain and Lindsey Graham, reminiscent of Cold War days, issued an inflammatory joint statement urging the United States to view Russia through an optic of conflict. It impetuously proposed reacting to Snowden's asylum by beefing up the commitment to deploy missile defense systems in Europe and expanding NATO in ways that the Kremlin would find antagonistic.

Of course, Putin's new identity as 'human rights defender' lacks any principled credibility given his approach to political dissent in Russia, but that does not diminish the basic correctness of his response to Snowden. There is a certain obtuseness in the American diplomatic shrillness in this instance. Snowden's acts of espionage are pure political offense. Beyond this, the nature of what was disclosed revealed sustained threats to the confidentiality of government communications throughout the world.

If anything, rather than being intimidated by American inappropriate demands, the more natural and healthier international response would have been to cry 'foul play!' If the world were composed of equal sovereign states and a global rule of law existed, the United States would have meekly apologised and, at the very least, promised to refrain from such behaviour in the future. Snowden would have been chastised for breaking American law, but commended for bringing to the surface some ugly encroachments on freedom and constitutional order, including within America, that shows how dangerous it is to leave the balancing of security and civil liberties to the good faith and judgment of bureaucrats and politicians.

It is a sad moment of truth that reveals much about alignments and sensibilities. Some prominent public commentators in the United States, such as the former head of the CIA, Robert Gates, and Jeffrey Toobin, CNN's talking head on legal issues, fall into line with the established order by affirming how much more they trust anonymous dedicated public servants in government than a dissident figure like Edward Snowden who takes it upon himself to decide what the public needs to know.

As with Julian Assange and Bradley Manning, the litmus test is not on such a level of abstraction, but with respect to the concreteness of ascertaining whether what was revealed were the kind of dirty secrets that should be known in a democratic society. It would seem that a genuinely democratic government would not wish that the commission of war crimes and invasions of the privacy of citizens were kept secret, and beyond procedures of accountability.

In the age of digital wonders, more than ever we are dependent upon the vigilance of citizens of conscience to protect us against Orwellian scenarios of those many wannabe Darth Vaders lurking in the murky depths of the governmental bureaucracy in Washington. It is such individuals that have repeatedly taken the United States to the dark side in places like Guantanamo, Abu Ghraib, and Bagram Air Force Base, as well as arranging those infamous 'black sites' and devising depraved procedures such as 'extreme rendition' to ensure that a suspect will be duly tortured with no consequences if it turns out that he is innocent.

We, as citizens of the world, should be thankful for the sacrifices made individuals such as Julian Assange, Bradley Manning, and Edward Snowden, surely deserving heroes of our time! And if we are ever to achieve legitimate government, then even our elected leaders and representatives would be grateful for such a check on the abuses of government.  

Richard Falk is Albert G. Milbank Professor Emeritus of International Law at Princeton University and Visiting Distinguished Professor in Global and International Studies at the University of California, Santa Barbara. He is also the United Nations Special Rapporteur on Palestinian human rights.

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The views expressed in this article are the author's own and do not necessarily reflect Al Jazeera's editorial policy.

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