IN PRAISE OF EDWARD SNOWDEN
Tags: #EdwardSnowden, #InPraiseOfEdwardSnowden,#SnowdenWatch
The continuing spectacle of the enforced limbo of Edward Snowden in the “no man’s land” of the transit zone of Moscow’s Scheremetchevo Airport gives us increasing cause to ponder and reflect not only upon the striking personalities and drama gracing our daily news, but also on the extended environment of our globalized International Community, national and International Law, the nature, powers and limits of the Nation-State and its laws, the function and limits of the Intelligence services and militaries of the Great Powers, the role of freedom of speech in national and international democracy, and the nature, place and inalienable rights of the individual under national and International Law.
Edward Snowden presents a fine figure of courage and principled integrity, whether one agrees with his acts or not. My first impressions of him on the news and from the Internet coverage of his journey was that of a fine young American of extraordinary courage in the face of immense danger acting out of principles of the highest idealism, expressing the reasons for his controversial actions clearly and convincingly. His arguments came across to me forcefully, taking on the simplicity and forthrightness of the “Common Sense,” of another of the heroes of the American Revolution I had come to admire, Thomas Paine. He has exhibited the “grace under pressure” of Hemingway, and a steadiness of nerve and youthful resilience reminiscent of Michelangelo’s David confronting Goliath. Of course our impressions from the media are always based on very limited information and are often later qualified, but up to now he has presented himself admirably. One feels drawn to an instinctive solidarity with such a person willing to sacrifice himself, even in the tradition of Christ, for our common good and liberties. Even many of the more traditional minded who condemn his actions admit to an underlying personal sympathy for him as a young man of moral courage, even tacitly hoping he makes his good his escape, feeling it would be a tragedy for such a fine young man to spend the rest of his life in a maximum security prison.
But hasn’t he broken the law and potentially endangered the national interest? Shouldn’t the law bring him to punishment for his transgressions? As one who has served as a lawyer and as a Professor of International Law I feel a deep respect for the institution of law and would be loath to lightly condone its warrantless transgression. It is said that those that would eat sausages should not observe too closely what goes into them, and those who have worked intimately with the law, if they retain any integrity of mind about it, can readily observe that what the law is is not at always what it should be or is imagined to be, and therefore it is wise not to overly fetishize the law with an unthinking reverence and over rigid demands for unreserved compliance. Law is a human institution with human failings and intrinsic limitations even when it operates accurately without overt corruption. This is why in the Anglo-American Common Law Tradition, there was evolved a supervening system of Equity, designed to correct the inevitable injustice and irrationality that an unswerving, computer-like mechanistic application of rigid and blind rules of law might necessarily create in situations more morally complex than the standard applicable legal case. This is why the powers of Pardon, Reprieve and Prosecutorial Discretion exist alongside the machinery of the codes of law.
Thoreau, Tolstoy, Gandhi and King are famous for pointing out instances and contexts in which the law has become corrupt or serves corrupted ends and justifies acts of civil disobedience by moral men. St. Thomas Aquinas identified instances where a “higher law” derived from God may justify or even compel violation of the secular law. Washington, Jefferson and Thomas Paine were undoubtedly culpable criminals under the British laws in force over them, until appeal to natural law, higher law and natural right compelled their violation of such laws for higher ends, and the forcible replacement of that law with a better law. Very often the letter of the law reflects the relative power of elites, wealth, power holders and institutions to manipulate and control the legislative process rather than the interests or of the people, which law is idealistically presumed to represent. The domination of the American “democratic” system by the “legalized corruption” of the unbridled influence of money, PAC’s, and the financial elite is now obscenely bordering on the brink of de-legitimatizing the entire system and ought to operate as an effective antidote to any naive and innocent “veneration of the law” which we might have grown up with and respected as children.
THE NECESSITY OF A CRIMINAL AND CIVIL LEGAL DEFENSE OF “PUBLIC INTEREST DISCLOSURE”
Seen in such a higher perspective, the failing of American law with regard to “Whistleblowers” criminal and civil defenses may very plausibly be seen to justify underscore his moral innocence or even morally justify his flight. An ideal or better American “Whistleblower Law” would take into account the public interest in the disclosure of critical information vital to the democratic oversight of public administration, particularly in the case of secret intelligence activities backed by the frightening powers of the government with potential to unjustifiably erode the liberties of the people. For instance, in Canada the Security of Information Act (R.S.C., 1985, c. O-5) provides: “15. (1) No person is guilty of an offence under section 13 or 14 if the person establishes that he or she acted in the public interest,” and that furthermore:
(2) Subject to subsection (4), a person acts in the public interest if
(a) the person acts for the purpose of disclosing an offence under an Act of Parliament that he or she reasonably believes has been, is being or is about to be committed by another person in the purported performance of that person’s duties and functions for, or on behalf of, the Government of Canada; and
(b) the public interest in the disclosure outweighs the public interest in non-disclosure.
In Australia, the Public Interest Disclosure Act of 2010 similarly aims to ensure that government is open and accountable to democratic oversight and the people, and such bodies as the Ombudsman and Public Service Commission were created to protect whistleblowers in the public interest from repression and retaliation by affected government departments. Even these laws, however, are imperfect and an ideal system might provide higher levels of protection in providing criminal and civil defences in appropriate whistleblower contexts.
If a “Public Interest Defence” were included in American law, under appropriate circumstances and limitations, an act otherwise judged a violation of civil or criminal law would be legally justified or excused, just as when a policeman or soldier kills another, it is not legally punishable under appropriate circumstances of legal justification or public duty. Although the whistleblower would similarly on the surface commit a prima facie offense, the disclosure of “classified” or “secret” information, the existence of such a legal defence of public interest, if proven, would exonerate him.
Thus, in a fair legal system, Edward Snowden would not have to flee from the nation whose freedoms he has acted courageously to protect, but would be able to defend himself in court with a just and reasonable Criminal and Civil Defence, on a par with commonplace defences such as Self-Defence, Public Authority, Necessity or Legal Justification. He would have his day in court to prove that the public interest in the disclosure of the information outweighed the public interest in its non-disclosure. The non-existence of this reasonable feature in existing American law does much to morally justify his flight and quest for Asylum under International Human Rights and Humanitarian Law. On the limited information available through the media, it would seem that Snowden has disclosed his information in a principled fashion, refusing to disclose details that would endanger the lives or legitimate operations of the intelligence services and limiting his disclosures as much as practicable to those items which endanger not only the liberties of the American people but those of similarly placed peoples across the globe, weighting the balance of public interest in his favour.
If such a fair court under a fair law weighed Snowden’s disclosures in an open manner would the disclosures be justified? Here, of course we are limited by the very small amount of information we have available, what has filtered through the media to our attention. At a minimum, we could say that a great deal of what has been disclosed has been disclosed in a principled way to bring to the attention of the American people and the peoples of the world that which is a direct potential threat to their liberties. The fact that a comprehensive database has been compiled by the NSA that includes every phone call that you or I make, as well as every e-mail with the subject line open to government inspection without a warrant, and the existence of a wholly inadequate system allowing accessing their complete content on mere tangential connection and wild suspicions is surely enough to justify the public knowledge of such practices, as is evidenced by the vigorous Congressional hearings that followed the disclosures.
THE INADEQUACY OF THE FOREIGN INTELLIGENCE SURVEILLANCE COURT AND OTHER FLAWED OVERSIGHT MECHANISMS
Does the existence and action of the Foreign Intelligence Surveillance Court under the Foreign Intelligence Surveillance Act justify or exonerate these invasive practices of the NSA? You may have heard that the Foreign Intelligence Surveillance Court, despite the severe criticism raised in Congress on the trail of the Snowden disclosures, renewed the telephone surveillance authority of the NSA this week. This act, without proper input from the millions of Americans subject to such surveillance, including those subject to the Verizon order, is a clear indication of the incompetence of the FISC to regulate the rights of the 300 million Americans affected by this activity, as there is no mechanism for public review, discussion of the deleterious effects of the extension, democratic oversight or appeal of the decision. Also, the members of the court are not even selected by democratically elected public officials who can be turned out of office in cases of public dissatisfaction, but rather the Chief Justice of the Supreme Court, not subject to democratic oversight. This is obviously no way in which the daily exercised rights of 300 million Americans should be determined. While Undoubtedly in some substantial cases of actual “terrorist” activity the actions of the NSA and other intelligence services under the Court have been legitimate and proper to their duties. But as the disclosure of the PRISM system discloses, the NSA and other services have gone far beyond any legitimate invasions of Fourth Amendment and privacy rights, as in compelling all of the principal e-Mail, telephone and Internet companies such as Verizon to provide access to personal communications and all so-called “metadata” on their servers. There is no effective restraint to investigators going on a “witch hunt” or freelark investigation into anything far-fetchedly connected to any investigation. As one Congressman observed, the “three-hop” process across the “degrees of relatedness” could lead in any case from one merely suspected subject, assuming each person had a minimum of 40 contacts, to accessing the communications of 2.4 million people on the merest suspicion of one.
The Foreign Intelligence Surveillance Court in compelling such compliance from Microsoft, Yahoo, Google, Verizon and all the PRISM program involuntary participants has shown not only that it has exceeded its legitimate remit, but that the FISC is a wholly inadequate mechanism for protecting the Fourth Amendment and other Constitutional and human rights of the American people and of peoples internationally. Such a secret court was not designed for, and is incapable of effectively serving to define the balance of Fourth Amendment, privacy, and other constitutional and international human rights of hundreds of millions of Americans and foreign citizens in their daily communications. There is no adversary system in the Court to present countervailing rights and interests against the insistences and narrow institutional interests of the intelligence services. The judges are handpicked to be sympathetic to the intelligence, police and investigative services, most with prosecutorial, intelligence, police or security backgrounds that share the limited worldview of those services. Even persons of good will within such a system such as case investigators or lawyers have immense institutional pressures and incentives to vindicate the interests of the intelligence services and disincentives and fear of reprisal for attempts to vindicate the countervailing rights of the people under the Fourth Amendment and International Human Rights Law to be secure in their persons, letters, communications and homes from excessive government intrusion. There is no hearing in the traditional sense and the approval is given in secret, not subject to appeal, review or public comment. It is argued that this is necessitated by the secret nature of the work itself. That cannot be or remain the case as systems such as the PRISM system affect and potentially threaten the rights of almost every person, citizen and non-citizen, not only almost each of us 300 million Americans at home or abroad, with the billions of similar innocent citizens of other countries not at war with the United States, including those of allies such as the European Union, which has brought much criticism of the PRISM and other disclosed programs.
At a minimum there should be a Public Interest Ombudsman or Tribune, with equal security clearance to those who present the government case to the Court, a kind of security “Public Defender’s Office” authorized with equal security clearance access to all information to review any case in the Public Interest to provide balance in the court, and authorized to receive overt or anonymous tips from whistleblowers such as Snowden as to illicit practices. Even in military Courts Martial there is a provision for representation of both parties or sides to each question. Such an office should have the right to demand a public hearing in an appeals procedure in serious cases of infringement of public liberties and rights of substantial numbers of people beyond the few suspected perpetrators, where such infringement has been condoned by the FISC in the first instance. The fact that in its entire history the Court has denied access in only one or two cases gives rise to legitimate concern that it functions, even with good will, as little more than a “Kangaroo Court” in protecting the rights of the people.
Furthermore, the limited horse-blinkered “Nation-State” perspective of the FISA, or Foreign Intelligence Surveillance Act, along with the Patriot Act, is grounded in a flawed self-centered, nationalistic perspective. The primary task of the NSA defenders in the Congressional hearings following the Snowden disclosures has only been to prove that the constitutional rights of “American Citizens” have not been violated contrary to the U.S. Constitution and the law, including the FISA. This might have been admirable had it been the case. However, in a globalized world of telecommunications it evades the larger and more important question. What about the parallel rights of non-U.S. Citizens and foreign private individuals entitled to an equal protection of their privacy, security and freedom from unwarranted government intrusion by the U.S. or any other government? Can we accept that U.S. citizens as a corollary therefore have no right of protection against the parallel intelligence activities of foreign governments and intelligence services? Can we seriously hope to live in a globalized world where only U.S. Citizens have rights, and all the rest are treated as open targets in a free fire zone of intelligence warfare? In a globalized world a very substantial portion of our daily communications, business and travel involve interactions with foreign persons. Perhaps a third of my daily e-mails, Facebook and LinkedIn communications are with non-U.S. Citizens.
Our allies in the European Union, comrades in two World Wars against totalitarianism, partners in NATO and the foreign anchors of our own geo-political security throughout the world, have been the first to be outraged by our high-handed and indiscriminate technological interventions. Is it an acceptable ethos that the NSA or other government agents can invade and read the private letters and communications of British, French, German and Canadian private citizens, not to speak of Latin American, Indian and Egyptians, with no restrictions whatsoever, because they are not American citizens? In the question of drone attacks the question is even of greater impact and finality. Can the American people condone a government which arrogates to itself in its international acts the right to kill others of any nationality, so long as they do not have U.S. citizenship? Does technological hubris justify the conclusion that because the secret services of one nation may antiseptically extinguish the life a victim viewed from a remote satellite or drone camera, or that they are clothed in a uniform or purported public authority that they are any less culpable, if unjustified in their actions, than a common murderer, assassin or so-called “terrorist?” Are extrajudicial acts of “Technological State Terrorism” any less morally reprehensible than the hackings of a machete or a pistol shot to the back of the head in a terrorist video, simply because they are funded by billion dollar budgets, equipped by multi-national armaments corporations, utilize more advanced high-technology and are authorized by men at computers in air-conditioned offices in national capitals? The assumption that rich capital-owning nations have a right to antiseptically extrajudically assassinate with impunity the sons and daughters of nations that cannot afford drones, satellites and global PRISM computer surveillance networks, or seal them in unfreedom behind walls, or read their private communications at will, while our sons and daughters enjoy exemption from similar treatment only because of our bigger bank accounts and technological superiority, is self-evident of a self-indulgent and ultimately unsustainable moral corruption that breeds ill-will towards America throughout the world. It inspires the vulnerable victims of such behaviour only to re-strengthen their efforts to counter and surpass our own ability to commit such outrages, a necessary corollary law of unintended consequences.
The fact that we may cause real deaths through the unfeeling cerebral technology of an unreal video-game-like consoles, or violate the privacy and Fourth Amendment constitutional rights of citizens and non-citizens with the click of a mouse linked to billion-dollar supercomputers does not excuse the moral failure of doing so, where such acts are otherwise without justification. It seems that technology and the moneyed capital that enables it has somehow become a dangerous narcotic drug which has profoundly anesthetized our moral judgement, a “successful” high-tech heart-bypass operation, absolving us from the moral consequences of such technology’s use. We have somehow set our moral judgement on a flawed autopilot, unsustainably excusing ourselves from any personal or collective responsibility for the acts of the machines and systems that do the dirty work for us. Extrajudicial murder and violation of rights is only a problem of “systems calibration.”
In short, we must strive for a world in which the security, freedom and rights of every individual are secure against the violations of all governments anywhere in the world, whether within their own countries or in foreign countries, and regardless of discriminations on the basis of citizenship, national origin, wealth, technological development, religion, race, sex or place of residence.
The tragedy of the Snowden case is underlined also by the circumstance that the American government is headed by a President and many leaders who can also be seen as admirable in many ways, and often believe themselves to be also acting in the public interest. This also illustrates the danger that even men and women of goodwill may be easily seduced and “captured” by the institutional interests and technological elites they are sent into government to oversee, and whose mindset is often compelling to those who attain the seats of power. In condoning the erosion of our freedoms they may be seduced into believing that they are acting “more maturely,” “more responsibly” and more “techno-optimally and efficiently” than those advocates of freedom, who they may come to perceive as “naive and overly romantic idealists,” or alternatively as dishonest “politicians” pandering to an immature left-wing constituency of their own.
YES, THERE ARE LEGITIMATE INTELLIGENCE ACTIVITIES……BUT…..
But are we being unreasonably idealistic and naively romantic in such a formulation, divorced from the real world dangers and threats, terrorism and world war, that our intelligence services were created to protect us against? Such a question would be a fair one from any conservatively oriented critic, but not necessarily dispositive of the question. Arguably, the work of the intelligence services in time of war or threatened war has been vital. The history of World War II strongly points to the miracle of the Ultra or Enigma Program of the British Government Code and Cipher School at Bletchley Park, part of British MI6 or the Secret Intelligence Service, a forerunner of the American CIA and NSA, which enabled the Allies to break and listen in to military, naval and diplomatic transmissions of the Nazi and Japanese war machines, and which many scholars credit with the actual survival of the democracies, or the shortening of the war by years sparing millions of lives. We all might now be speaking German and Japanese in Fascist colonies, or not speaking at all if the security services had not done their job remarkably well, enabling such victories as the American destruction of the Japanese aircraft carrier superiority at the Battle of Midway or the success of the D-Day Invasion of Nazi occupied Europe. Isn’t “9-11” a watchword for the necessity of a robust intelligence establishment directed towards the “War on Terrorism?”
Undoubtedly there are legitimate intelligence gathering functions that are vital to the survival of democratic governments and peoples in a sometimes hostile world, as the “Ultra” Program of MI6, aided by Polish and American intelligence in WWII proved. For those of you who may suspect that I am being “hopelessly naive” and a typical “fuzzy-minded” romantic, liberal-do gooder or irresponsible pointy-headed intellectual in these matters, let me relate that I served in the Military Police of the United States Army, and in the Judge Advocate General section of a Military Police Brigade attached to a NATO Group Army Headquarters whose mission in time of war was to rush into the Fulda Gap to confront the massively superior numbers of tank divisions the Soviet Bloc Red Army was presumed to attempt to Blitzkrieg across Germany into France should the Cold War ever turn hot. Luckily for me and my children such event never happened. Had I been sweating in my Chemical Warfare suit and gas mask checking the nerve gas detectors and Atropine injectors in the Fulda Gap I would certainly have been praying that those “good ol’ NSA and Bletchley boys” had broken every goddamn Soviet code in existence to give me a half-chance of ever seeing my children again. But I am equally distressed that the unbridled growth of surveillance not only by government entities, but by the Internet companies themselves who invade the privacy of netizens for the merest profit-motive, may be eroding our fundamental freedoms, and the exponential way in which the Internet and other technologies have taken over and dominated every aspect of our lives justifies a new vigilance to protect those increasingly vulnerable freedoms in a revolutionized technological environment.
What is clear is that in many cases we have lost rational perspective in weighing the dangers of “terrorism” against the cost in civil liberties and damage to democratic oversight of the countermeasures taken against it.
Snowden sounded very much like Tom Paine’s invocation of “Common Sense” when he in Hong Kong pointed out that the danger to the average American from “terrorism” is far less than that of a “bathtub slip and fall” let alone a traffic accident, even taking into account such horrendous incidents as 9/11 and the World Trade Towers. We have in many instances been huckstered by repressive interests into surrendering our everyday freedoms by the demagogic incitement of fears and anxieties, reminiscent of the excesses of the McCarthy Era in witchhunts against the threat of “communism,” which were so often uncovered to be the machinations of elite, moneyed, privileged and powerful interest groups to protect their own special interests against the interests of the people. Winston Churchill observed that “patriotism” and “war” are the “last refuge of scoundrels,” in that reactionary demagogues and special interests will always manipulate fears in the mind of the public to justify repressive actions to preserve their own wealth, power and privileges if left unchecked and unrecognized by the people. Fundamentalist religion has often also been perverted to such a function. Shall we be deluded into the loss or erosion of our day-to-day freedoms and our privacy rights by such remote dangers?
Furthermore, the public has often proven itself childish in being manipulated in such a degree, by McCarthyites and “Counter-Terrorists.” There is no absolute security in this world and this life and we should all be mature enough to accept some level of danger to preserve our freedoms. We accept the much more substantial danger of traffic accidents when we get in our cars or cross streets in exercise of our freedoms of travel and association. Yes, we could be the victims of a wildly unlikely terrorist act, but we should not give up our freedoms any more than we should lock ourselves in our homes to avoid traffic accidents. We are all going to die. It is an inevitable part of life, as is an ineradicable element of danger in life. We accept the risk to enjoy the life and its freedoms and the possibility of the pursuit of happiness. We should as a public give up the infantile expectation of 100% security and safety and our childish chastisement of the President and public officials that they have not acted with the omniscience and omnipotence of a God when some harmful event occurs. As we are all going to die in the course of life we should accept with grace some reasonable element of risk, including that of terrorism, in order to preserve the freedoms of our life, and get on with the more important task of living a rich and free life while we enjoy it. Of course we should take reasonable measures to minimize such risk, but not at the cost of our fundamental freedoms.
THE VULNERABLE POSITION OF THE INDIVIDUAL AND OF INDIVIDUAL RIGHTS IN THE SYSTEM OF INTERNATIONAL LAW
The spectacle of Edward Snowden holed up and stranded in the Transit Area of Sheremetchevo Airport in Moscow seeking Asylum further highlights the vulnerability of the individual and of individual Human Rights within our inadequate, imperfect and still evolving system of International Law. As a Professor of International Law, who has taught courses on Public International Law, including International Humanitarian Law in universities including Peking University and in the Chinese Academy of Social Sciences (CASS) this has long been a central concern to me professionally and as a citizen of the world. It has also motivated me to be active in the Campaign for a United Nations Parliamentary Assembly, a globalized version of the EU European Parliament as a new advisory organ of the United Nations system to provide additional democratic oversight and reduce the “democratic deficit” in our international institutions, with the goal of reforming the system of International Law to provide a firmer foundation for the status, freedom and inalienable rights of the individual, as opposed to the present system focused primarily on the relations and powers of Nation-States. The fact that there is no European Parliament-style democratically elected body as part of the United Nations is a contributory cause of the system of International Law systematically failing to incorporate the inalienable rights of the individual on a reasonable and commensurate basis as against the powers of the Nation-State, which have unreasonably been solely represented in the creation, formulation and maintenance of that inadequate system.
Also, lest it be imagined by some that my work in China on behalf of International Law, personal rights and freedoms and International Human Rights might be skewed in favour of the Communist government of that nation, or imputation of other so-called “Anti-American” bias, let me also make clear my equal abhorrence to the repressions of communist, left-wing, Islamist, or any other governments against the legitimate rights and security of the individual, including the repression of democratic dissent, as in the case of Liu Xiaobo in China, imprisoned primarily for the expression of ideas which the Chinese people have every right to hear and consider in determining their future, as the American people have the right to hear the ideas and legitimate “public interest” disclosures of Edward Snowden.
Why is Edward Snowden in limbo in the international transit section of Moscow’s Scheremetchevo Airport? Why can’t he just take a taxi to the Iceland, Venezuelan, Bolivian, or Nicaraguan embassies in Moscow, file his papers for Asylum and be on his way? Because, as Charlie Chaplin was wont to decry in his late film, “A King in New York” after his own Green Card and Re-Entry Permit was revoked for illegitimate political reasons in the McCarthy scare era, you don’t exist without a passport! This is emblematic of the underlying fact that International Law is a system of law centered on Nation-States and only indirectly acknowledging the existence of individuals and their rights, primarily as the sometimes protected “subjects” of those states. Edward Snowden or any aggrieved individual could never go to the International Court of Justice, or World Court in The Hague to ask it to vindicate his rights, as he would have no “standing,” meaning he would not exist as a legally cognizable “person” or “party” within such court. It is thus a sad discovery for some persons such as Snowden or persons who have become “stateless” that they are treated effectively as “unpersons” within International Law, especially when they attempt to determine their personal fates outside the borders of their own country. In the international system of the European Union, the international legal system has evolved further with the development of the European “Court of First Instance” which as an innovation has allowed individual and corporate persons to be recognized in international legal process. It is hoped that the general system of International Law will evolve further in this direction from its present immature form.
The long and the short of it is that each individual and his inalienable human rights should be recognized within international law independent of his relationship with his nation of citizenship, and no nation should be competent to make an individual abroad an “unperson” by revoking his passport or even citizenship. An individual should enjoy full freedom of travel and abode abroad without the sponsorship of any national government, simply on the ground of his status as a human being. This is not to deny the right of any nation to regulate their own national territory by determining whether to grant entry at its borders based on legitimate concerns for deleterious actions of persons within their borders (not however, in the ideal world, based solely on disapproval of any person’s personal beliefs or values unrelated to specific harmful actions), nor the right of governments to detain and extradite criminals in legitimate cases subject to treaties. But where the “offense” is essentially political, and consists of embarrassing a nation’s government or challenging its abuses, or as in Snowden’s case disclosing material illegitimately classified as secret with the primary aim of covering up improper conduct of the government of which the people and citizens of that country have a right to know for practicing essential democratic oversight and control, the right to asylum and refusal to treat such a person as a common criminal in other countries should be protected within reasonable limitations. Thus in a reasonable system of International Law and governance, Snowden should be able to leave the airport on his own recognizance with or without a passport to visit the various embassies in Moscow to make arrangements for international asylum. The fact that he is a real person with real international rights under the UN Universal Declaration of Human Rights, and International Humanitarian Law grounded in the United Nations Covenants on Civil and Political Rights, as well as that on Economic, Social and Cultural Rights, amoung others, should be the primary consideration, rather than the status or deleterious actions of his own government with regard to his passport. That this is not the case is a measure of the immaturity of our international regime of law and governance, and its illicit exclusive dominance by Nation-States as opposed to concern with real individuals with real rights.
Does Edward Snowden have a Right to Asylum under presently existing International Law, as opposed to an ideal International Law? Article 14 of the Universal Declaration of Human Rights states that “Everyone has the right to seek and to enjoy in other countries asylum from persecution.” The United Nations 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees guides national legislation concerning political asylum. Under these agreements, a refugee (or for cases where repressing base means has been applied directly or environmentally to the defoulé refugee) is a person who is outside their own country’s territory (or place of habitual residence if stateless) owing to fear of persecution on protected grounds. Protected grounds include race, nationality, religion, political opinions and membership and/or participation in any particular social group or social activities. Rendering true victims of persecution to their persecutor is a particularly odious violation of a principle called non-refoulement, part of the customary and treaty Law of Nations. Whether Snowden would have a right to asylum under international law would thus depend on the interpretation of the concept of “persecution” in his case. In traditional terms, the United States government would undoubtedly claim that he is not being subject to “persecution” under International Humanitarian Law, but rather “prosecution” for criminal activity, namely illegal and felonious disclosure of secret classified NSA intelligence documents. However, Snowden and asylum granting nations could well conclude that such so-called prosecution, prima facie valid under existing American law, was an illegitimate repression of his First Amendment rights of freedom of speech as the disclosures were in the public interest and for the purposes of enabling the American people to exercise restraint, oversight and control of government activities which may well be illegal under the Fourth Amendment of the constitution, and that therefore the “prosecution” was in reality and substance a “political persecution” of his beliefs in greater democracy at variance with the political establishment’s desire to continue unwarranted surveillance of the private communications of the American people and the position of power of the surveilling elite of the military-industrial-intelligence complex warned against by Eisenhower. Such activity would plausibly fall under the “political offense” exception to most extradition treaties. They could well conclude that the ostensible criminal prosecution was really retaliatory action motivated by the political embarrassment of the American government caught with its own hands in the illicit intelligence surveillance cookie jar. The fact that Snowden’s disclosures so far have been limited and principled and in fact highly welcomed in Congress as revealing a critical need for enhanced democratic oversight of these clandestine surveillance activities, would tell in the favor of the latter interpretation. Simply because the American government has the power to rig its own system by writing the technicalities of the law to characterize Snowden’s actions as criminal without including in its law a “Public Interest Disclosure” defense to keep the disclosures within the protected First Amendment freedoms of expression, would not necessarily be dispositive in other asylum granting nations interpretation of International Law. Snowden might prevail even within the US legal system decades later through innovative appeals to the US Supreme Court, but this would most probably occur only after years of harsh imprisonment.
Thus asylum-granting nations could well justify the grant of asylum on grounds of International Humanitarian law and humanitarian interests, provided of course, with a “reality check” of “Realpolitik” calculations, that they concluded they could afford to incur the wrath of the American superpower, which, as in the words of Wordsworth, like the “still, sad music of humanity,” “hath ample power to chasten and subdue.” As Snowden cautioned the American political establishment, “The Truth is Coming,” but in the world of “Realpolitik” it is still well doubtful whether the lone, courageous truth-telling individual martyr will derive the benefit of the archetypal martyr Jesus’ words that “The truth shall set you free.” More likely in the Orwellian world of American Doublespeak and the Alice in Wonderland Topsy-Turvy inverted world of “Superpower Realpolitik,” Jesus’ invocation would have about as much efficacy in an American secret intelligence courtroom as the words over the door of the concentration camp, “Arbeit Macht Frei,” the more likely outcome reflecting the words over Dante’s Inferno, “Abandon Hope All Who Enter Here.” But as Jesus was also wont to invoke, miracles do occur from time to time.
THE TRAJECTORY OF EVOLUTION OF INTERNATIONAL LAW
Why does present International Law give so little weight to the rights and security of the individual as opposed to confirming the powers of the Nation-State? One important reason was the founding principle of “Sovereignty” under early International Law, usually referred to as the Westphalian system arising from the Peace of Westphalia in 1648, which ended the “Thirty-Years’ War” in the Holy Roman Empire and the “Eighty-Years’ War” between Spain and the Dutch Republic. Under an early and somewhat absolutist view of “Sovereignty” any nation within its borders was absolutely free to do whatever it pleased without any claim of outside interference by other Nation-States. This would imply that the Nazi Holocaust against the Jews and other groups or Stalinist mass murders and relocations, or genocides against minorities were simply “none of your business” with regard to other nations. Of course such an “absolutist” view of sovereignty was never completely true, and indeed reflected only a particular phase of history, having been preceded by the oversight of the international system by the Church in Medieval times, and succeeded by the development of the United Nations system of collective security and control and the growing limitations on sovereignty of International Human Rights Law after World War II. Thus in Medieval times “Asylum” was an effective limitation on sovereign power associated with the Church. If a pursued “criminal” found his way to a Church sanctuary, the Church under appropriate circumstances would grant him asylum or temporary sanctuary. Often in Medieval Europe, a pursued suspect such as Snowden could find sanctuary for at least 40 days in a church or Bishop’s house free from the intervention of police or soldiers of the secular state. Thereafter, the Church would generally supervise his exile, or attainment of more permanent asylum, by guaranteeing him “safe transit” over the highways to the nearest port where he could embark to another nation for asylum. Such was the customary moral authority of the Church that the arbitrary use of force by the state was very often prevented. In more modern times as the concept of absolute sovereignty waned, international organizations such as the United Nations and the High Commissioner for Refugees would often organize analogous operations.
What is a Nation-State? At its crassest, de-romanticized and unadorned level, a “Nation-State” is simply a Monopoly of Force sustainably exercised over an extent of territory and a body of people within it. Most “monopolies of force” in their origins were usually established “the old fashioned way,” namely the forcible extirpation of all internal opposition by some powerful elite group within the population, generally an emperor, king or other sovereign backed up with an army, family cronies elevated to “noble” status, and secret police vicious enough to eliminate all effective resistance on a relatively sustainable basis and repress all competing social classes, accompanied by an external equilibrium of armed force with regard to neighboring “monopolies of force” founded on a similar basis. Usually the concept of “sovereignty” was a practical necessity or convenience, dividing up the “global turf” between dangerous potential aggressors, who in “enlightened self-interest” like Mafia bosses dividing up territories to avoid excessive conflict and concentrate on the more profitable business of exploiting the weaker classes within their own bloc of turf. International treaty arrangements such as the “Concert of Europe” by which Metternich sought to ally reactionary governments against the tide of democratic revolution, were thus essentially conspiracies of dominant elites against their own publics, reaching a “modus vivendi” with those who had sufficient power to threaten them, and a “modus operandi” with regard to the central business of exploiting the larger and weaker social classes subject to their local “monopoly of force.” Thus it is not surprising that early “International Law” operated as a “conspiracy against the peoples of the world against their ruling and exploiting elites,” and had little concern for the rights, security and well-being of the individual.
Beginning with the American Revolution, and continuing with the French Revolution Nation-States began to become subject to internal restrictions on the exercise of sovereign powers, generally under the category of “Constitutionalism.” The American Constitution in particular, with its Bill of Rights, restricted and forbade the use of sovereign powers in derogation of the rights of the individual and the people. Constitutionalism reformed internal sovereign national laws by placing the individual and individual rights at the center of the relationship of human communities and power holding elites. The growth of democracy, often fragile, also strengthened the position of the individual within the legal system.
The classical conception of Sovereignty implied the right of Nation-States to freely resort to war to protect and enforce their sovereign rights. It took the horrendous experience of the two World Wars, their attendant War Crimes and genocides including the Holocaust to convince the nations of the world to begin limiting sovereignty in the name of protecting the rights of both individuals and subject peoples. Thus the Kellogg-Briand Treaty purportedly outlawed aggressive war and the founding of the United Nations limited the use of force by nations under the concept of sovereignty to legitimate and limited self-defense subject to the authorization of the use of force by the Security Council of the United Nations, effectively though, still a club of the “Great Powers” or “veto holders” acting in the name of the international community generally and sometimes in its interest. Various Hague Conventions on the International Law of Armed Conflict outlawed “War Crimes” including crimes against civilian populations, under which Nazi and Japanese war criminals were executed, including “Crimes against Humanity.” Following World War II this was supplemented by the rise of International Human Rights Law, under the UN Conventions on Civil and Political Rights and Economic, Social and Cultural Rights, which allowed a limitation of national sovereignty in respect of acts against their own peoples.
At the present time, and with the gradual evolution of International Human Rights Law alongside the evolution of international communities of nations collectively limiting national sovereignty, such as the European Union subject to mutual obligations for the protection of individual rights, the system of International Law is also gradually placing the individual and his inalienable rights towards the center of the International Law system, but still at an embryonic stage of development compared to the progress of Constitutionalism within nations. But with individual lives becoming more and more international with the advent of “Globalization” and mass communications such as the Internet, employment in multinational corporations and enlarged international travel and migration, the necessity for further evolution of the place, status and security of inalienable rights of the individual grows in importance and necessity yearly. Individuals increasingly need to be guaranteed respect of their security and rights as they pass through dozens of national jurisdictions in the course of doing business, travel, electronic communications, education and normal public life. Thus it is expected that the system of International Law will evolve to place the security and rights of the individual beyond the country of citizenship increasingly at the center of the legal system, as had the prior internal evolution of legal systems through the growth of the “rule of law” and Constitutionalism.
This process shows that the unsustainable contradictions of the unbridled operation of such programs as the American PRISM program. On the one hand the FISA Foreign Intelligence Surveillance Act strives to meet the demands of Constitutionalism and “rule of law” with regard to its own citizens within its own borders. But in a globalized world such wanton violations of the parallel rights of the peoples and citizens of other nations, including our closes allies the European Union, can ultimately only be found to constitute an unsustainable act of technological hubris. Evolution of the International Law system towards and International Constitutionalism will therefore become necessary. Failure of such an evolution will likely result in the division and conflict, and weakening of the constitutional democracies, resulting in the ascendency of the illiberal and more totalitarian powers, following the Law of Unintended Consequences. It is hoped that this evolution of International Law and its component International Human Rights Law with function on the principle of Complementarity, with the evolving “Constitutionalism” in International Law supplementing the existing “Constitutionalism” guaranteeing individual rights within the national legal systems. In cases such as the Snowden case, where failure of the national system of “Constitutionalism” fails because the public authorities fall captive to institutional power elites who ride roughshod over the Constitutional rights of the people and the individual, it is hoped that the evolving system of International Constitutionalism, embracing International Humanitarian Law and associated international rights of the individual, such as the Right of Asylum will act as Complementary Checks and Balances on abuse of individual rights, until such time as the internal democratic processes and Constitutional checks can catch up in order to right the abuses of the errant institutional power elites and restore the integrity of the US and other national Constitutions.
The courageous acts of such young men as Edward Snowden may thus make a contribution to the onward evolution of our system of International Law, Global Governance and international Human Rights Law, transcending the prior Nation-State bound ingrown weaknesses and abuses. Whether such an evolution will come at any time soon enough to affect his own fate is dubious, though not impossible. More likely Snowden’s role as a “Truth Bringer” will result not in “The Truth Will Set You Free” as in the ideal of another famous unwelcomed Truth Bearer, Jesus, but rather in the reversed-mirror image of “Realpolitik” and Orwellian Doublespeak, in its exact opposite for him. But as Jesus also reminds us, miracles do happen from time to time.