Originally posted 3 July 2013 on the Human Rights Watch website
Edward Snowden’s disclosures about the massive surveillance of communications data by the United States and the United Kingdom point to a serious infringement on the right of privacy. If true, these disclosures indicate that data is being collected about the communications, associations, and movements of millions of ordinary people who aren’t suspected of wrongdoing or considered a threat. This indiscriminate collection of data is intrinsically overbroad and cannot be justified by some future hypothetical usefulness against potential threats to these countries.
The law often criminalizes the disclosure of secrets by employees or agents of a government. But international law recognizes that revealing official secrets is sometimes justified in the public interest. In particular it may be necessary to expose and protect against serious human rights violations, including overreaching or unjustifiable surveillance. International principles on national security whistleblowers outline various circumstances under which governments should protect people from punishment if they disclose information of public concern.
US whistleblower protections fall far short of these standards for people who disclose abuse in the national security arena. US law simply does not provide national security whistleblowers with adequate protection from retaliation or punishment for disclosures in the public interest.
Snowden, a former National Security Agency consultant, faces various charges in US federal court, some of which could carry lengthy prison sentences. These include charges under the antiquated US Espionage Act. The US government has interpreted this vague statute in ways that are inconsistent with international human rights law, providing no exceptions or adequate defenses for whistleblowers who disclose matters of serious public import.
There is little precedent to indicate how a US court would interpret the Espionage Act in this case. But the US government has in the past argued that the statute does not require it to prove, among other things, either that a whistleblower intended to harm the national interest or that the publication of the information caused actual harm.
As a result, Snowden could base a claim for asylum on the grounds that, if he were returned to the US, he would face serious harm on account of his political opinion – his view that the public must be informed of massive government intrusion on privacy rights. He could contend that since the law provides no reliable protection, defenses, or exceptions for whistleblowers, the prospect of prosecution, and possibly harsh sentencing, would cause him serious harm, as required under international refugee law.
In addition, US prison conditions for both pre-trial detainees and people serving sentences can be onerous, including prolonged solitary confinement and other communication restrictions. Any country considering an extradition request from the United States would have to assess whether Snowden would be at risk of cruel, inhuman, or degrading treatment if he were returned to the US for trial.
Any country where Snowden seeks asylum should consider his claim fairly and protect his rights under international law. It may be that some countries most likely to resist US pressure to return him for prosecution themselves have poor records of protecting their own critics and dissidents. But that would be no reason for them to disregard the requirements of international refugee law in Snowden’s case.
Any country that speaks up in Snowden’s defense should also guarantee the free speech rights of its own citizens, critics, and whistleblowers, and the right of its own people to freedom of information. The US should also keep in mind that for many decades it has offered political asylum to people who suffer severe penalties for criticizing their governments. It should not apply a double standard by working against other governments that might extend asylum in this case.