Reviving the Israel-Palestine Negotiations: The Indyk Appointment

Appointing Martin Indyk as Special Envoy to the upcoming peace talks was to be expected. It was signaled in advance. And yet it is revealing and distressing.

The only other candidates considered for the job were equally known as Israeli partisans: Daniel Kurtzer, former ambassador to Israel before becoming Commissioner of Israel’s Baseball League and Dennis Ross, co-founder in the 1980s (with Indyk) of the AIPAC backed Washington Institute for Near East Policy; handled the 2000 Camp David negotiations on behalf of Clinton.

The winner among these three was Martin Indyk, former ambassador to Israel (1995-97; 2000-01), onetime AIPAC employee, British born, Australian educated American diplomat, with a long list of pro-Israeli credentials.

Does it not seem strange for the United States, the convening party and the unconditional supporter of Israel, to rely exclusively for diplomatic guidance in this concerted effort to revive the peace talks on persons with such strong and unmistakable pro-Israeli credentials?

What is stranger, still, is that the media never bothers to observe this peculiarity of a negotiating framework in which the side with massive advantages in hard and soft power, as well as great diplomatic and media leverage, needs to be further strengthened by having the mediating third-party so clearly in its corner. Is this numbness or bias? Are we so accustomed to a biased framework that it is taken for granted, or is it overlooked because it might spoil the PR effect of reviving the moribund peace process?

John Kerry, the U.S. Secretary of State, whose show this is, dutifully indicated when announcing the Indyk appointment, that success in the negotiations will depend on the willingness of the two sides to make ‘reasonable compromises.’ But who will decide on what is reasonable? It would be criminally negligent for the Palestinians to risk their future by trusting Mr. Indyk’s understanding of what is reasonable for the parties. But the Palestinians are now potentially entrapped. If they are put in a position where Israel accepts, and the Palestinian Authority rejects, “(un)reasonable compromises,” the Israelis will insist they have no “partner” for peace, and once more hasbara will rule the air waves.

It is important to take note of the language of reasonable compromises, which as in earlier attempts at direct negotiations, excludes any reference to international law or the rights of the parties. Such an exclusion confirms that the essential feature of this diplomacy of negotiations is a bargaining process in which relative power and influence weighs heavily on what is proposed by and acceptable to the two sides. If I were advising the Palestinians, I would never recommend accepting a diplomatic framework that does not explicitly acknowledge the relevance of international law and the rights of the parties. In the relation of Israel and Palestine, international law could be the great equalizer, soft power neutralizing hard power. And this is precisely why Israel has worked so hard to keep international law out of the process, which is what I would certainly recommend if in Tel Aviv’s diplomatic corner.

Can one even begin to contemplate, except in despair, what Benjamin Netanyahu and his pro-settler cabinet consider reasonable compromises?  On what issues can we expect Israel to give ground: borders, Jerusalem, refugees, settlements, security?

It would have been easy for Kerry to create a more positive format if he had done either of two things: appointed a Palestinian or at least someone of Middle Eastern background as co-envoy to the talks. Rashid Khalidi, President Obama’s onetime Chicago friend and neighbor, would have been a reassuring choice for the Palestinian side. Admittedly, having published a book a few months ago with the title Brokers of Deceit: How the U.S. Undermined Peace in the Middle East, the appointment of Khalidi, despite his stellar credentials, would have produced a firestorm in Washington. Agreed, Khalidi is beyond serious contemplation, but what about John Esposito, Chas Freeman, Ray Close? None of these alternatives, even Khalidi, is as close to the Palestinians as Indyk is to the Israelis, and yet such a selection would have been seen as a step taken to close the huge credibility deficit. Yet such credibility remains outside the boundaries of the Beltway’s political imagination, and is thus inhabits the realm of the unthinkable.

It may be that Kerry is sincere in seeking to broker a solution to the conflict, yet this way of proceeding does not. Perhaps, there was no viable alternative. Israel would not come even to negotiate negotiations without being reassured in advance by an Indyk-like appointment. And if Israel had signaled its disapproval, Washington would be paralyzed.

The only remaining question is why the Palestinian Authority goes along so meekly. What is there to gain in such a setting? Having accepted the Washington auspices, why could they not have demanded, at least, a more neutral or balanced negotiating envoy? I fear the answer to such questions is ‘blowin’ in the wind.’

And so we can expect to witness yet another charade falsely advertized as ‘the peace process.’ Such a diversion is costly for the Palestinians, beneficial for the Israelis. Settlement expansion and associated projects will continue, the occupation with all its rigors and humiliations will continue, and the prospects for a unified Palestinian leadership will be put on indefinite hold. Not a pretty picture.

This picture is made more macabre when account is taken of the wider regional scene, especially the horrifying civil war in Syria and the bloody military coup in Egypt. Not to be forgotten, as well, are Israeli threats directed at Iran, backed to the hilt by the U.S. Congress, and the terrible legacy of violent sectarian struggle that is ripping Iraq apart. Naturally, there is speculation that some kind of faux solution to the Israel/Palestine conflict would release political energy in Washington that could be diverted to an anti-Assad intervention in Syria and even an attack on Iran. We cannot rule out such infatuations with morbid geopolitical projects, but neither should we assume that conspiratorial scenarios foretell the future.

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Geopolitical Winds Blow in China’s Direction

 

 

            Among those who comment influentially from the sidelines of power, there are new trends visible in thinking about American foreign policy. The most salient of these concerns is a shift away from the post-9/11 counterterrorist agenda to a new phase of mainstream policy advocacy that emphasizes the renewed strategic importance of geopolitical rivalry among leading sovereign states. There is also a shift away from the temptations of military intervention and regime change as a favored Western tactic for sustaining influence in the post-colonial world. There is a realization, at least temporarily, that adventures in military intervention, whether Afghanistan, Iraq, or Libya, are just that—‘adventures,’ if not fiascos. And costly too, rarely a success even when overwhelming military superiority is brought to bear.

 

After the Vietnam War there emerged a similar reluctance to intervene overseas that was derisively labeled ‘the Vietnam Syndrome.’ It endured for more than a decade being finally overcome by the low-casualty victory in the Gulf War. I think it is safe to assume that for the rest of the Obama presidency, barring a major unforeseen development, that both counterterrorism and military intervention will be occupy a much lower place on the foreign policy agenda. This observation does not mean that such issues will disappear from view, as the recurrent debate on Syria shows. It does argue that they will be treated by political leaders as Gordian Knots, and addressed only warily and tangentially.

 

But power centers abhor a geopolitical vacuum. Policymakers must find something to take the place of the al-Qaeda sequel to the Cold War and the liberal embrace of aggressive forms of ‘democratic peace’ that for a time built support for periodic interventions in the non-Western world. It seems that vacuum is likely to be filled by a return to ‘the great game’ of great power politics.

 

It is not surprising that we should look first to Wall Street for clues, and we will not be disappointed. The gold standard of finance capital in the age of globalization, Goldman Sachs, already in 2001 alerted the attentive public to the relevance of the changing geopolitical landscape with its clever acronym of BRICs, that is, Brazil, Russia, India, and China. Jim O’Neill, an economist at Goldman Sachs, had initially proposed the acronym in an analytical paper on global trends. It did not catch on in the wider literature until 2008 or 2009.

 

In effect, Goldman Sachs was telling the investing world to take account of challenges to and opportunities for American and Western interests in global economic policy associated with these rising powers. Of course, putting Russia on the list seemed strange to some because their military prowess, size, and resource endowments meant that they were never really off the list, and from an opposite viewpoint, its economic achievements were not so impressive as to put it in the same class as the most rapid growth economies. Others suggested that the BRIC enclosure excluded such other states as South Africa, Turkey, and Indonesia that deserved a similar recognition in light of their economic success, political stability, and increasing regional and global assertiveness.

 

Yet, broadly speaking, the BRIC hypothesis possessed geopolitical plausibility, and caught on, not least among the BRIC countries themselves, which welcomed this certification of status and relevance. It was given intellectual validation by that neocon heavyweight, Robert Kagan, in his book, The Return of History and the End of Dreams (New York: Knopf, 2008), who in effect suggested that the interval after the Cold War in the 1990s that seemed free from geopolitics was a deceptive hiatus. The geopolitical backbone of world politics had recovered.

 

For India and Brazil old dreams of Security Council membership and regional influence became new political projects. The move from the G-8 to the G-20 for global economic policymaking was an indirect acknowledgement that the global context was changing in ways that required more representation of the South to have any hope of effectiveness and legitimacy.

 

At present, there seems to be a further reassessment of geopolitical concern: Brazil and India have for the time being lost their claims to be regarded as candidates for front row seats, while China and Russia have maintained, if not enhanced their claims. China, especially, despite the slowing of its extraordinary growth economy to a rate that would still make Western political drool with joy and pride, is increasingly perceived as a threat to American global dominance. The Obama presidency seemingly admitted this reality by its much proclaimed ‘pivot’ to Asia that was a thinly disguised message to Beijing: the United States intended to pursue a diplomacy of ‘soft containment’ of China as the highest priority in its future foreign policy. This adjustment was a notable sequel to the 1990s pivot from Europe to the Middle East.

 

These latest expressions of concern about U.S. adaptation to a changing security setting is giving rise to two kinds of reaction. The first is illustrated by a thoughtful comment of Colin Dueck, a Fellow at the Foreign Policy Research Institute, on the overall importance of geopolitics for constructing foreign policy. Dueck faults American foreign policy not for the pivot to Asia, but for what he calls its ‘under-resourced’ implementation, which he insists is evidenced by recent cuts in the budget of the U.S. Navy. He concludes that “..the U.S. response to a rising China has simply not been adequate.” [Colin Dueck, “Geopolitics Reborn,” E-Notes, Foreign Policy Research Institute, Philadelphia, PA, July 2013] Such a view of geopolitics is explicitly tied to hard power calculations based on the historical agency of military superiority, and takes no account of globalization, networking, soft power diplomatic creativity, and the rise of non-state actors and transnational social movements that in aggregate constitute the alternate promise of a ‘new geopolitics.’

 

Then there is the view of Leslie Gelb and Dimitri Simes, two titans of the American foreign policy intellectual establishment, who writing in the New York Times [“A New Anti-American Axis,” July 6, 2013; Gelb is former president of the Council on Foreign Relations and Pentagon official; Simes is president of The Center for the National Interest and publisher of The National Interest], want us to consider not separate states as challenges, but an emergent cooperative anti-American relationship that joins China and Russia together in thwarting the American global design. Oddly, they use as their telling example of a menacing development, the cooperation between China and Russia in enabling Edward Snowden to elude American efforts to gain custody over him by facilitating his flight from Hong Kong to Moscow.  What might have been proclaimed as the protection of someone charged with ‘political crimes’ (and hence, exempt from extradition), is presented in crude foreign policy terms by Gelb and Simes.

 

They point to the incident as evidence of China and Russia’s  “growing assertiveness and their willingness to take action at America’s expense.” Among the additional examples cited are the refusal to back the West at the UN with respect to Syria, Chinese hacking of American corporate websites, and Russian cyber attacks on their enemies. Aside from Syria, these other complaints refer to national policies that are not cooperatively undertaken by the two countries. Also, with characteristic American myopia, there is no recognition that the United States might be doing things that are deeply threatening to Beijing and Moscow, and that their cooperation may be actually, on balance, prudent and beneficial for the global public good. Such nationalistic approaches to geopolitics consider ‘balance’ only desirable to contain the ‘other,’ never the ‘self.’ From an objective historical standpoint, considering the global role of the United States in the last two decades, it would seem that Washington’s diplomacy of force that has produced long and destructive wars, unbalanced support for Israel, cyber attacks against Iran, global surveillance regime, and notorious places of detention associated with Abu Ghraib and Guantanamo are greater threats to a benevolent world order than giving sanctuary to Snowden.

 

The larger argument being put forward by Gelb and Simes is more nuanced. It suggests that it would be important to avoid either passivity or aggressiveness in response once it is understood that such global cooperation between China and Russia, if not properly addressed, “could pose grave risks for America and the world.” It recognizes that despite this obstructionism by these adversary states there are also strong common interests in trade and global economic stability, as well as in some aspects of security concerns, including North Korean and Iranian nuclear programs. Gelb and Simes are clear about not wanting to revive the Cold War, and certainly are not counseling policies that risk military confrontations, but rather favor a policy of selective firmness and pragmatic cooperation. There is a recognition of a certain level of multipolarity with respect to the management of conflict, suggesting that such security challenges as currently posed by Iran, Syria, and North Korea could only be handled in an effective and practical way if China and Russia agree to cooperate with the United States. They might have added climate change, food security, and refugee policy as areas where cooperation seems vital. To fail to produce this mix of resistant and cooperative diplomacy would be, in their words, “folly of historic proportions.”

 

What is worth noticing is this return to the abandonment of any pretension of the sort that surfaced after the Cold War in various guises such as ‘the unipolar moment’ or ‘the end of history.’ There also seems to be a tacit realization that the 20^th century struggle over the future of Europe is no longer of geopolitical interest, nor is Europe an independent political force on the global stage in the way that China and Russia are. It also represents a step back from the BRIC worldview as Brazil and India can once again be safely ignored from a global perspective. Perhaps, but only as an outside possibility, Gelb and Simes are the intellectual precursors of ‘a new trilateralism’ that is built around the idea that the new circle of ‘indispensable nation’ has been enlarged beyond the United States to include China and Russia.

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Global Big Brother and the Snowden Hollywood Chase

The post below is a major revision of another piece on the Snowden Affair that was published in AJE. I have dwelled on the pursuit of Snowden because it raises such vital issues of principle, but also because so much of the public discourse has proceeded on a mistaken understanding of the applicable international law. Beyond the legal guidelines on extradition and asylum that are applicable, there are considerations of world order: protecting dissent and pluralism in a global setting in which the principal political actors are sovereign states that increasingly rely on secrecy and security rationales to constrain democratic open spaces. What Snowden did was to expose this dynamic of constraint in relation to secret surveillance programs administered  by private, for profit, contractors. Also exposed was the ‘Global Big Brother’ implications of extending surveillance to foreign societies and their governments. It is these questions that should receive our attention, and the Hollywood circus chase of Edward Snowden should cease for humanitarian and political reasons.

 

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I find the discourse surrounding the Snowden Affair bewildering. The latest reports suggest that the United States is using maximum political leverage, including coercive diplomacy, to discourage small Latin American countries from granting asylum to Edward Snowden. It is also complaining that Russia is giving Snowden ‘a propaganda platform’ and expressing its ‘disappointment’ with China/Hong Kong for its earlier refusal to expel Snowden back to the United States to face charges once his passport was cancelled.

 

This anger is misdirected.  Taking the overall situation into account, whatever anger has been generated by the Snowden Affair, should be directed at the United States for expecting other governments under the circumstances to transfer custody over Snowden. From almost every angle of relevant law, morality, and politics the human rights case for protecting Snowden against the long arm of American criminal law is overwhelming. Anyone who commits nonviolent ‘political crimes’ should almost always be entitled to be protected, and should certainly not be compelled to hole up in an airport transit lounge for weeks of anguishing suspense while governments sort out the interplay between dealing justly with Snowden and not upsetting the diplomatic applecart.

 

The persisting official U.S. approach was concisely conveyed by an American embassy official in Moscow to a Human Rights Watch representative who then was apparently asked to relay it to Snowden at his airport press conference held a few days ago: “U.S. authorities do not consider him to be a human rights defender or a whistleblower. He broke the law and he has to be held accountable.” Yes, Snowden broke American law, but he did it to reveal improprieties in the American surveillance programs that raised serious questions of the Constitutional rights of citizens, as well as the overseas legitimate concerns of foreign governments.  President Obama made an enigmatic statement to the press about the pursuit of Snowden: “We’re following all the appropriate legal cannels and working with various other countries to make sure the rule of law is observed.” If read as I would interpret the applicable rule of law, the United States should abandon its efforts to gain custody as Snowden’s alleged crimes are ‘political offenses.’ Obviously, Obama has a different understanding.

 

Russia did its part to create legal confusion when the Russian president, Vladimir Putin, told the world media that Moscow was refusing to comply with the American request to turn Snowden over because Russia had no extradition treaty with the United States, but such an assertion overlooks the political offense exception to extradition, which should certainly be applied here.

 

It has become increasingly evident even to American public opinion that a twisted logic has gripped Washington in this case. What is more, the underlying U.S. assumptions have been partially accepted by many governments throughout the world who should know better, namely that Snowden should not be the benefit of sanctuary in the face of this all out effort by the United States to prosecute him criminally. There are no applicable extradition treaties that bind the governments to turn Snowden over for prosecution to the United States in the countries where he has so far been present, and even if such a treaty did bind China or Russia, it should not be of help to Washington. Remember the elaborate inquiry into whether the Spanish extradition request in 1998 so as to prosecute the Chilean dictator, Augusto Pinochet, should be honored led to an elaborate set of legal inquiries in Britain where he was detained; he was finally sent home from London to Chile on the grounds that his medical condition made him unfit to stand trial in Spain.

It is standard practice for international law to allow governments to refuse a request for extradition in the event that the accusation involves a political crime.  It is true that the definition of a political crime is unsettled. It is widely understood that violent and heinous behavior involved in genocide, crimes against humanity, terrorism, and maybe hate speech, are not considered to be ‘political crimes.’ The rationale for this exception to transnational criminal law enforceable is humane and in keeping with a pluralist world of sovereign states. As with any protective policy, there may be a cost, but the democratic ethos is in favor of incurring such costs in the interest of curtailing abuses of state power. Such costs seem worth bearing, especially in the United States, considering several recent trends: projection of global power in a unique manner; imposing a regime of homeland security on the American people that has been shown vulnerable to abuse; a decline in the checks and balance mechanisms that offer the citizenry protection against autocratic tendencies of government, especially under wartime conditions; privatization of the security and paramilitary functions of the state. Snowden’s acts should be seen as swimming against this authoritarian tide.

 

It is a matter of upholding the quality of world order, as well as supporting an international legal order that makes the world safe for political diversity and dissent. It is the latter norm that is raised by the Snowden disclosures, the global public interest in strengthening the options of individuals who challenge what they believe to be an overreaching of state power. In the world of the 21^st century, ideological diversity is less significant than whistleblowing dissent that is a fantastic public service on behalf of democratic openness, countering tendencies to rely on excessive secrecy in the name of post-9/11 security in which literally everyone, everywhere is a hypothetical threat. Of course, the balance of values and interests is not so clear except to conspiracy-minded dogmatists. The state is responsible for protecting its people against threats, and these can be mounted from within and without. It is said that ‘two wrongs don’t make a right,’ but here it is possible that ‘two rights should not be treated as a wrong.’ It may be that Snowden deserves some credit even here as reportedly he has not disclosed some material that would expose the way in which the National Security Agency (NSA) operates, which could jeopardize reasonable data collection procedures.

 

Should revealing a secret government surveillance system of global proportions be treated as revealing an international  wrong? It should be a ‘no brainer’ that Snowden’s alleged crimes are quintessentially ‘political’ in nature, which would make a grant of extradition an unlawful and regressive violation, as well as an encroachment on Snowden’s human rights. Not only this, but by far the most serious ‘crimes’ exposed by Snowden documented the seeming wrongdoing of the U.S. Government and its private contractors, including Snowden’s employer, Booz, Allen, & Hamilton. As the world now knows thanks to Snowden, the controversial surveillance targets were not only the totality of Americans, but, as well, included foreign governments and many of their most confidential activities. Under these circumstances, it seems surprising that Washington has been so vigorous in the pursuit of Snowden under conditions that made it inappropriate to prosecute him for crimes under U.S. law so long as he remained outside the country.

 

To date, the mainstream media dutifully tagging along with the crime chase narrative. The American strategy has managed to keep public attention focused on Snowden rather than on what his disclosures to date have revealed, and what more further bomb shells may be present in the material that is in the hands of the media, but not yet disclosed. It is one more negative example of ‘American exceptionalism.’ It is hard to imagine that the political leadership in Moscow or Beijing, or even London or Paris, would be lecturing Washington in a similar fashion if the shoe were on the other foot. Such a government would probably and sensibly shut up, and hope that the whole mess would quietly slip from view. Why the United States decides to act differently is worth a separate investigation.

 

We need to realize that extradition is a technique to foster maximum international collaboration designed to encourage the enhanced enforcement of national criminal law. If extradition is unavailable, as here, or even if it had been available, it would be inapplicable, there exists no respectable legal basis for the American international pursuit of Snowden? The approach adopted by Washington is quite absurd if examined objectively, and rests exclusively on its presumed geopolitical clout. What the United States has been arguing is that since it claims the authority to cancel summarily Snowden’s passport (which itself may not be ‘legal’ since the right to travel is constitutionally protected unless there has been a prior formal judicial proceeding), he has no legal right to be present in a foreign country, and hence the politically appropriate act by a foreign government is to expel him forthwith to his country of nationality. In effect, such an approach if generally adopted would make extradition completely superfluous, and in fact, because of its limitations, far less effective than the passport cancellation/expulsion ‘remedy’ that would circumvent the political crimes exception where it is most needed and appropriate.

 

Lawyers, of course, earn their living by finding ingenious ways to produce counter-arguments that sometimes override not only common sense, but public reason. In this vein, it can be plausibly argued that the crimes charged against Snowden involve espionage laws and theft of government property, and as such, extradition could be granted because such behavior does not deserve to be treated as a political crime? Some commentators have reinforced this assert by pointing to the volunteer Israeli spy, Jonathan Pollard, who has languished in American jails for years to show that the U.S. is entitled to gain control over Snowden to punish those who violate its espionage laws. Even the slightest reflection would reject the relevance of such an analogy. Pollard was unlawfully giving highly classified information to a foreign government and apprehended in the territory where the crime was committed, which makes the political nature of the crime irrelevant. If Snowden remained in the United States his political motivations could be argued in a court, but would not exempt him from criminal indictment and prosecution. His crimes could then be explained as politically motivated extra-legal instances of civil disobedience in the Thoreau/Martin Luther King tradition. Snowden’s conduct might also be defended legally by stressing his non-criminal intentions and the ‘necessity’ he reasonably believed provided a basis to reveal the realities about the truly frightening scope and depth of surveillance, and thus avoid the greater harm to public interests by its undisclosed contiuation. These were more or less the arguments that Daniel Ellsberg so persuasively relied upon in the Pentagon Papers case 40 years ago to support his contention that the American people were entitled to know how their leaders manipulated facts and law to justify Vietnam War policies.

 

What the U.S. Government is attempting with Snowden, it seems, is a classic instance of bait and switch. Since extradition could not get the results Washington so desperately wanted even if it had been available, only diplomatic leverage could do the job. Here international law is less help to Snowden, although I would have hoped that international morality would come to his rescue. The debate now evidently swirls around the appropriateness of a grant of asylum by some foreign government, and securing safe passage to such a country. Surely, a foreign government that acceded to American demands and handed Snowden over for prosecution would bear the responsibility of knowing that Snowden’s imprisonment would follow as certainly as night follows day, and that they were weakening the protection of individuals who are wanted by governments eager to prosecute political crimes.

 

So far no government has been so craven as to adopt such a course of action, although none has really mounted a principled challenge to what the United States has done, and several European states have unlawfully denied air navigation rights to Bolivia’s presidential plane because the United States suspected that Snowden was on board. And apparently Austria allowed the plane carrying Evo Morales, President of Bolivia, to make an emergency landing and then be searched, and only after it was found that he was not on board was the plane allowed to resume its flight. If he had been on board, then issue of transfer would have been raised.

There does exist an extradition treaty between Austria and the United States that entered into force in 2000, and contains the following provision in Article 4(1): “Extradition shall not be granted if the offense for which extradition is requested is a political offense.” End of story!

 

States possess wide discretion with respect to asylum policy, although asylum  is conferred as a human right by Article 14(1) of the Universal Declaration of Human Rights. Asylum should be granted whenever there exists well-founded grounds for fearing persecution if the person in question is expelled to the country of nationality. The granting and withholding of asylum has always been surrounded bycontroversial ideological considerations. During the Cold War the United States, although not formally granting asylum, never deported someone seek sanctuary from Castro’s Cuba or other Communist countries and rarely allowed sanctuary for claimants from anti-Communist countries even if fears about their wellbeing if returned were well established. It is far preferable to put asylum policy on a principled basis, but as matters now stand, there is no international legal standards that govern asylum practice.

 

Because asylum, unlike extradition, is treated as discretionary at the national level, diplomatic pressure is to be expected. Asylum is situated at the interface of law and morality, creating ample room for political maneuver. Intense geopolitical pressures can be brought to bear as in this case, but inappropriately from the perspective of human rights or the maintenance of a democratic and pluralist world order. It is particularly unseemly to place small Latin American countries under the gun of United States’ retaliatory diplomacy, especially when these governments are acting empathetically toward someone whose challenged conduct was undertaken on behalf of freedom and democracy with nothing personal to gain materially and much to lose.  It was not as if Snowden was disgruntled after being fired from his lucrative joy as a government contract employee. Or even like the CIA retirees who wait until their pensions kick in before breaking with the agency, and writing their

‘show and tell’ stories.

 

Surely, Russia is better situated than Venezuela to harbor Snowden without having to worry about adverse political consequences.  In Russia went ahead and offered Snowden asylum, perhaps the White House would express its frustration by issuing an intemperate statement about Russia’s unfriendly move, but likely leave at that. Doing anything more would be incredibly foolish, but of course that is no assurance that it wouldn’t happen.

 

All along the true challenge to the U.S. Government, the American and world independent media, and to governments and people throughout the world is consider whether such a massive regime of secret unregulated surveillance by the U.S. government in the name of national security is legally, morally, and politically acceptable. Snowden’s individual fate, although properly a matter of the greatest concern, is secondary to the substance of the issues of principle that are present.  In an unusual show of global public spiritedness and sensitivity, Navi Pillay, the UN High Commissioner for Human Rights issued a highly relevant statement: “Snowden’s case has shown the need to protect persons disclosing information on matters that have implications for human rights, as well as the importance of ensuring the rights of privacy. National systems must ensure that there are adequate avenues for individuals disclosing violations to express their concern without fear of reprisal.”

 

Despite the hue and cry associated with this rather indecent and extended effort by the U.S. Government to gain custody of Snowden, it is forgotten that his ‘criminal’ acts have already had some beneficial results:

–opening an overdue national debate in the United States as to the proper balance between surveillance and security;

–creating a global awareness of the extent to which the American surveillance regime has a global reach that threatens confidentiality of foreign governmental activity and the privacy of ordinary persons everywhere;

–encouraging relevant Congressional committees to consider placing limitations on invasions of privacy;

–tightening of the rules and policies relating to Department of Justice interference with journalists via acquisition of phone logs and emails.

 

We will miss the most crucial point of Snowden’s ‘crimes’ if we do not devote our attention to these fundamental political challenges directed at human security, democratic ways of life, and a pluralist world order. To be  distracted by the circus of the Snowden chase any longer is to play along with a shameless geopolitical caper!

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Misreading the Snowden Affair

This post is a revised and modified version of an essay published as an Op/Ed two days ago by Al Jazeera English; it attempt to reflect on the significance of the Snowden disclosures, and why governments did not rebuff the American efforts to take Snowden into custody as an accused criminal by the simple assertion that ‘political crimes‘ should never be the subject of cooperative inter-governmental efforts to achieve the enforcement of criminal law in a foreign country. The world benefits from the safety valve of such sanctuary, as does the country that is seeking to arrest and punish the whistleblower even if most of its leaders and opinion makers do not realize this. So far even the U.S. Government has not insisted that Snowden’s crime is somehow not to be considered ‘a political crime,’ nor could it plausibly make such an argument. For this reason to capture Snowden the United States has relied on its diplomatic clout and geopolitical capacity to impose costs on those who do not comply with its wishes. So far in the Snowden Affair it is small Latin American countries, including Bolivia, Ecuador, and Venezuela, that have risked the ire of the United States by pursuing independent policies with respect to Snowden, and acting correctly from the perspective of law and morality.

 

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            I had thought that there was a clear set of principles that make the frantic American diplomatic pursuit of Edward Snowden as a fugitive from justice a rather empty and futile gesture. As far as I can tell, there is not even a need for asylum, which is normally reserved for someone with reasonable fears that persecution will occur is forced to return to his country of nationality. Every foreign governments should have been prepared to grant Snowden residence status because his alleged criminal acts in the United States were without doubt political crimes.

 

            I had thought it was as straightforward as law can be that any person who has committed a political crime should be exempted from mandatory extradition even if a treaty existed imposed a duty on its parties to hand over individuals accused of serious criminal activity. To be sure, from the perspective of the United States Government, Snowden’s exposure of the PRISM surveillance program was a flagrant violation of the Espionage Act and breach of classification constraints was unlawful. But it was also as self-evidently a political crime as almost any undertaking can be. There was no violence involved or threatened, and no person is harmed by the disclosures.

Quite the contrary, information in the public interest, related to the defense of individual liberties and national sovereign rights was made available, enhancing the prospects for protecting democracy against its many enemies.

 

            What puzzles me is why the refusal to hand Snowden over by expelling him to the United States, which is what Washington has asked Russia to do, raises any kind of serious question beyond wondering how and why the U.S. government officials posed such a request almost in the form of a demand in the first place. The U.S. Government approached Moscow as if they were harboring a common criminal: “We expect the Russian Government to look at all options available to expel Mr. Snowden to the United States to face justice for the crimes with which he is charged.” Putin spurned the request, but he might have made his correct stand stronger either by indicating that Snowden was welcome to remain in Russia or by rebuffing such a strongly worded request as inappropriate.

 

            It is also puzzling why governments in Europe did not politely respond to Washington by simply saying that it has long been their firm policy and consistent practice not to collaborate with foreign governments in the pursuit of individuals accused of committing nonviolent political crimes. There are excellent public policy and humanitarian reasons why such ‘criminals’ should not be treated internationally as fugitives from justice. Whistleblowing serves the overall public interest relating to maintain a balance of state and society in democratic polities, and providing sanctuary for those who commit political crimes benefits the public good of a state-centric world order.  

 

            It seems clearly within the domain of reason to believe that the extent of secret surveillance, both conducted by the United States within its own borders and globally, is posing a dangerous threat to the future of democracy, to the freedom, privacy, and the security of individuals, and to the national sovereignty of all states. In these respects, Snowden’s crimes are from a global perspective not crimes at all, but should be viewed as timely and brave contributions to human security.

 

            His disclosures can also be interpreted from within the United States as acts of civil disobedience, that is, deliberate violations of law to call attention to greater wrongs.   It was Snowden’s conscience as a citizen that appears to have led him to act against his normal interests, giving up a successful career and high income as a skilled government contract employee working in the private sector and accepting the pressures and insults that he must have anticipated would follow upon such a frontal challenge to counter-terrorist security policies relied upon by the most powerful country in the world. There is every indication that Snowden knew exactly what he was doing, and why. He deliberately violated the applicable criminal law of the United States in a sensitive area of national security, and not surprisingly has been labeled ‘a traitor’ by politicians and some media opinion writers, and some zealots have even accused him of ‘treason.’ Beyond this, more moderate critics have insisted that unlike Daniel Ellsberg who remained in the country after he released the Pentagon Papers, Snowden does not deserve to be respected as a whistleblower because he did not stay around to face the legal music, subservience to the criminal law system being regarded as the essential expression of good faith by those who claim to be acting for the public good when they defy the law for a supposedly higher good. It should be appreciated that in the post-9/11 world, especially within the United States, there is an almost unlimited willingness of American courts to treat government procedures of surveillance and policies of confidentiality as ‘reasonable’ provided only that a justification is made that such measures are needed to keep American safe and prevent future terrorist incidents. It is true that Snowden is insisting that his balancing of security and freedom is to be preferred over that of the government, including its elected representatives and leaders.

 

            The U.S. Government international pursuit of Snowden seems to  contradict its own long standing practice of refusing to give up to foreign governments those wanted for political crimes, including in some instances even shielding persons charged with terrorist activity if the target country is viewed as an enemy state. The most notorious example of such a pattern involves Luis Posada Carrilles, an exile from Cuba with a long record of involvement in anti-Castro terrorist activity and state terrorism. Carrilles, among other violent acts, is alleged to have been centrally involved with a plot to blow up a Cuban passenger plane in 1976 that killed all 73 persons on board. He has been living for decades without legal difficulties in Florida. This is not meant to show the extremes to which the political crimes doctrine is carried. Rather it illustrates carrying this exemption from criminal accountability much too far, and raises the opposite problem from that associated with the affair of Snowden.

 

            The shameful behavior of several European governments, succumbing to American pressure, cannot be overlooked, and suggests the extent to which law and morality can be bent by the exertion of geopolitical leverage. It is notable that such well established governments of France, Portugal, Spain, and Italy caved in, denying overflight rights to the plane carrying Evo Morales, President of Bolivia, apparently hoping to persuade a friendly government to seize Snowden wherever the plane eventually landed, and then turn him over to American authorities if he were on board who would have him transported back to the United States to face charges. It should hardly be surprising that such diplomatic hard ball at Bolivia’s expense angered several Latin American countries, justifiably sensitive to such a display of U.S. willingness to throw its weight around in a manner humiliating to a head of state in a Latin American country. It is unimaginable that the United States would tolerate such behavior if its president were to be denied normal overflight rights because there was believed to be on board an Iranian who had just revealed some state secrets about Iran’s nuclear program because he was fearful that the development of nuclear weapons by Iran would lead to war. Undoubtedly this effort to divert the Bolivian presidential plane was an anguishing reminder to Latin America that the imperial mentality responsible for the Monroe Doctrine and ‘gunboat diplomacy’ in the Western Hemisphere was not entirely a thing of the past.

 

            It is not known why Snowden himself shifted the context from the exemption of political crimes to a request for asylum, which presupposes a justifiable fear of persecution of returned to the country of nationality. It may be that he was not advised about the availability of political crimes exception to extradition or that he was informed by Russia and other governments that he would not welcome to remain in their country, perhaps because of seeking to avoid diplomatic difficulties with the United States. As it was, the U.S. officials and influential media commentators treated the refusal of Russia, China, and Hong Kong to hand Snowden over as an unfriendly, if not hostile, act. Secretary of State Kerry somewhat bizarrely reminded Russia of their recent cooperation in relation to the Boston Marathon terrorist case, as if this somehow created an obligation on Russia’s part to behave in a similar way with respect to Snowden. What make this bizarre is the seeming equivalence struck between the Boston murderers and Snowden.

 

            It is against such a background that Nicolás Maduro, President of Venezuela, offered Snowden asylum on July 5^th, the national holiday celebrating independence in his country. The offer of asylum to Snowden on such an occasion was resonant with symbolism relating to a reminder to Washington that time have indeed changed, and even small Latin American countries will define their own national interests and shape public policy on the basis of Venezuelan values. Snowden has reportedly accepted the offer, but there is no indication how he will make sure that his trip from Shermetyevo International Airport in Moscow to Caracas is not interrupted on route in a way that allows the United States to take him into custody.

 

            There is another question lurking in the background. Will Venezuela be now made to pay for doing the right thing? And what of Bolivia, Nicaragua, Ecuador that each indicated sympathy with Snowden’s request for asylum? There has been speculation that in the post-Chavez era Maduro has been seeking to normalize relations with the United States, and that this goal might now be put on indefinite hold. And what about Hong Kong, China, and Russia that spurned American efforts to have Snowden expelled to the United States after his passport was cancelled? How far will the U.S. Government push this anti-leak diplomacy?

 

            I suppose that this attack of ‘surveillance panic’ is a symptom of the larger importance being attached by Washington to cyber security, and worries about disabling attacks directed at information networks by way of hacking and debilitating viruses. Even granting this, to go after Snowden in this way is more than panic, it suggests one more example of American exceptionalism that causes anger and resentment throughout the world—in effect, the United States is insisting that we expect from others far more than we are prepared to give. It is especially striking that among Snowden’s disclosures are confirmations of the earlier rumors that the United States and Israel had collaborate to develop the computer worm or virus, Stuxnet, that had been used in 2010 to disrupt operations in Iran’s nuclear facilities. As with the use of drones around the world, the blowback risks seem once more ignored as America flexes its geopolitical muscles without regard for the constraints of international law, the logic of reciprocity, and the values of a free society.

 

            Reciprocity is the indispensable foundation of effective international law, and it is here that the Snowden Affair seems particularly disturbing. If a Chinese Snowden was to make comparable revelations that violated Chinese criminal law there would not be a chance in a million that the United States would return such an individual to China, and wouldn’t Washington be outraged if China used its leverage to persuade governments to divert a plane suspected of carrying the person they were seeking to prosecute, especially if it were a plane known to be carrying the president of a sovereign state?

 

           

            Why should it be deemed ‘unfriendly’ to offer sanctuary to Snowden as European countries, and even China and Russia, seemed to believe? Why were even the Latin American countries seemingly only led to act when the Bolivian president was denied normal international comity in international airspace as head of a sovereign state, and this seemed like an affront that called for a response? Giving sanctuary to political crimes helps makes the world safe for political dissent and pluralism, and offers a shield against the autocratic security state. It should be expected as a dimension of a commitment to human rights and democracy. It is admirable that Venezuela, whatever its reasons, stepped forward to offer Snowden asylum, which was certainly deserved from the perspective of refugee law, considering the vindictive and punitive approach taken toward such other recent ‘leakers’ as Bradley Manning and Julian Assange.

 

            What may be most regrettable in this yet unfinished drama is the American refusal to engage in self-scrutiny, to wonder whether surveillance and secrecy are not being abused, a gross over-reaction to 9/11 and extremist threats, that alters the balance between state and society in an anti-democratic manner, as well as treats the entire world as if falls within the ‘territorial’ domain of U.S. national security. Such a worldview is decidedly imperial as it has no intention of honoring reciprocal claims made by others, and implicitly places the United States above the law by allowing it to seize such a fugitive from justice wherever in the world he might be found, thereby manipulating cooperative international criminal law enforcement to suit its own particular priorities.

 

            Instead of seeking to prosecute and punish Snowden, the healthy national response would be to consider placing stronger limits on governmental surveillance and extraterritorial security claims, and certainly to open such a debate. It is crucial that American citizens not be fooled by the politics of deflection by which the government and a pliant media avoid the message of disclosure and obsess about the messenger who discloses. It has never been more important for Americans and others to discuss the substantive concerns that prompted Snowden to take such a hazardous course. And yet the energy of the country has been almost exclusively devoted up to now to the purported need to punish this individual of conscience who chose courageously to endure the predictable fury of a state when some of its most unseemly secrets were shared with the public. Snowden gave us as planetary citizens this incredible opportunity and responsibility to evaluate the acceptability of these state secrets, which if not taken, might fasten forever the tentacles of the security state upon an increasingly nominal and pliant body politic. 

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Protecting Snowden

Such self-designated ‘wise men’ of our time as David Brooks and Tom Friedman, highly influential opinion and opinionated writers of the NY Times, have been telling their readers that Edward Snowden was decent and intelligent, but overstepped the law by arrogating to himself the disclosure of the ‘total data’ surveillance programs of the National Security Agency of the U.S. Government. By deliberately releasing abundant evidence of the astonishing breadth and depth of surveillance, Snowden was clearly motivated by the concern that rights of privacy, the quality of democratic life, and respect for the sovereignty of foreign countries and the confidentiality of diplomatic events were being placed in jeopardy. For some, this bold decision to expose American intelligence gathering made Snowden a villain, called ‘a traitor’ by a variety of public officials including John Kerry, the Secretary of State. There is no doubt that Snowden is guilty of violating espionage laws, which automatically almost constitutes treason for those who possess an ultra-nationalist mentality. Those who think this way believe Snowden deserves to be punished to the limits of the law, and that foreign governments friendly to this country should accede to Washington’s request for his detention and expulsion to the United States to face charges.

Of course for many others Snowden is a hero for our times, actions that should be honored by a Nobel Prize. Snowden put democratic accountability ahead of his own career and security, knowingly placing himself at great risk by daring to challenge the security policies of the government of his own mighty country for the sake of avoiding a gathering Orwellian political storm. What President Obama speaking after the Snowden leaks described in Germany somewhat disingenuously as “a circumscribed, narrow system directed at us being able to protect our own people.” What protection of the American people have to do with listening in on the diplomatic communications of European Union members seems more than far fetched!

There are many sober voices declaring themselves worried about the dangerous implications of such a massive breach of national security, especially following the major discrediting disclosures of those recent master whistle blowers—Bradley Manning and Julian Assange. In effect, given the kind of security threats that exist in the post-9/11 world the public must trust the government to strike the right balance between protecting the country against threats to national security and upholding the liberty of its citizens and respecting the sovereignty of other countries. As Michael Hayden, former director of the CIA and later the NSA, put it after these events: “We are now going to target the U.S. as if it were a foreign country.” Should Snowden’s violation of his oath and of espionage laws be welcomed as ‘a safety valve,’ a check upon abusive government, or as a gaping hole in governmental operations that needs to be closed as tightly as possible? The Belt Way insiders’ argument is that unless this latter approach is taken governmental policymaking will suffer because the needed institutional confidence that secrets are kept will be lost.

I find the Big Brother fears more credible than these anxieties about leaks in the secrecy enclosures relied upon by supposedly constitutional governments in defiance of the democratic ethos of accountability, transparency, and participation. What one finds consistently in government practice is an excess of secrecy via promiscuous classification tendencies that seem frequently used often to avoid embarrassing politicians from exposing dubious behavior or protecting bureaucrats from second-guessing and hostile commentary by journalists and the public. What is evident is that the government, even in a country that prides itself on freedom and privacy, tends to view information gathering in a spirit similar to weaponry—do whatever the technology allows so long as the costs are reasonable and the risks can be contained at moderate levels. And with the advent of digitized information technology, the sky is the limit: the PRISM program that was what Snowden was working on in his role as private contractor in the employ of the consulting firm of Booz, Allen, and Hamilton, and —-, was an indiscriminate data collection process that didn’t confine its intrusions to those for whom there existed grounds of suspicion. Indeed, every person everywhere was now living under a cloud of suspicion, there were no roster of ‘usual suspects’ to be rounded up in the aftermath of serious criminal incidents. The distinction crucial for the political wellbeing of people living in a liberal society between suspect and citizen now seems superseded and irrelevant, and this is an ominous development that should be challenged.

Two major developments brought this unsavory reality into being, and given ‘libertarian politics’ a new credibility. First, the most feared existential security threat became associated with potential political extremists who could be anywhere, within or beyond national borders, with or without affiliations to a political network. Consider such instances as the Norwegian Islamophobic right wing sociopath, Anders Breivik, guilty of a massacre on July 22, 2011 or the Tsarnaev brothers who carried out the Boston Marathon bombers on April 15, 2013. It is truly the case that the presence of isolated individuals, as well as transnational terrorist networks, pose severe threats to the viability of constitutional democracies. Many have voiced fears that a repetition of 9/11 in the United States would produce a slide into a kind of reactive fascism, and thus some sacrificing of freedoms, placing our trust in elected leaders and representative institutions, and hoping for the best is a kind of situational necessity. Politicians contend that such information trolling in the private domains of peoples’ lives has already contributed to the avoidance of terrorist attacks and horrifying incidents in as many as 90% of the cases of successful prevention. That is, the kind of threat that dominates our current fears can only be addressed in a responsible manner by giving up any expectations of autonomous citizenship or the promises of accountable government. Such a democratic slippage may simply have become a fact of 21^st century life about which most of society has accepted, even if with scant awareness of what is happening.

The second important factor is the ‘can do’ quality of digital technology as applied to the temptations of mass surveillance whether for purposes of governmental control or private profit. Information can be gathered, enlisting the social networking infrastructures of modern society, stored, analyzed, coded, and made available for a wide range of licit and illicit uses. There is a sinister continuity between the technological capabilities of the massive data collection program of the NSA known as PRISM and the lethal drone missions controlled by civilian operators acting far from any combat zone, carrying out battle plans based on the selection of targets from a kill list presented daily to the president, and approving in secret the execution of American citizens and those living in foreign countries who owe no allegiance to American laws. Such is the nature of the ‘global war’ unleashed by George W. Bush after 9/11 and continued by Barack Obama. There are reassurances that care is taken, efforts are made to minimize mistakes, and only the most imminent of threats are targets. The objective assessment of the killing fields tell a different story—of innocent persons killed, of ‘signature’ strikes targeting for death those against whom there is only vague circumstantial evidence, of a reign of terror in areas where suspects are supposed to be based.

In actuality, what Snowden did was surprisingly responsive to national security concerns, including the protection of secrecy surrounding controversial overseas undertakings. Snowden has indicated that he never had an intention to release any documents that implicate particular agents engaged in covert operations or that reveal the location of CIA bases in foreign countries. In effect, Snowden was acknowledging that the government has ‘secrets’ that deserve keeping, and that he was distinguishing these from the those that were not justified by security considerations and posed a severe threat to the future quality of constitutional democracy. It is undoubtedly the case, as Snowden has hinted, that he had good reason to believe without such an unauthorized disclosure, the public would have no way of finding out what was going on and no say in shaping the privacy/security balance, and the government would undoubtedly continue to rely on excessive claims of secrecy to insulate itself from procedures of accountability, including the rather unconvincing forms of oversight that are entrusted with avoiding wrongdoing in its surveillance gulag. I think there is good reason to conclude that it is only the obtrusiveness of whistleblowers that produces these occasional glimmers of sunlight that illumine to some degree the dark corridors of governmental power.

The three major whistleblowing incidents of the last half century bearing on national security, (Ellsberg (Pentagon Papers), Bradley Manning (Iraq and Afghanistan document trove), and Snowden (the NSA Prism Program of Surveillance) had one thing in come, disclosures of state crimes that had been long covered up, and were integral to structures of impunity that seem vital to the performance of the dirty work of empire. Daniel Ellsberg in a Salon interview with Brad Friedman on June 14, 2013 [Salon.com] insisted that a more permissive political atmosphere existed in 1972 when he released the Pentagon Papers. There was then at least the possibility of getting the story out without being thrown into prison under conditions of solitary confinement (Manning) or hounded as if a common criminal (Assange, and now Snowden). Under current conditions it seems as if the only way for Snowden to have some opportunity to give his reasons for doing what he did was to go abroad, and then seek asylum.

What seems most dismaying about the Snowden affair is the prosecutorial zeal of the Obama presidency, supposedly liberal in its outlook on matters of personal freedom and the values of constitutional government. What Snowden has done is so clearly ‘a political crime,’ if it is a crime at all, and in recognition of this there has existed since the French Revolution been seen as inconsistent with the generally desirable policy of inter-governmental cooperation in the apprehension of suspected criminals. In such circumstances it is unseemly to instruct the Vice President to call around the world exerting leverage to discourage grants of asylum or sanctuary to Snowden, or worse yet, to use American influence to interfere with international flights thought to be associated with Snowden’s attempt to seek asylum, itself a right conferred in Article 14(1) of the Universal Declaration of Human Rights. Maybe it is a legal stretch to insist on Snowden’s right of asylum considering that the ‘persecution’ he might face if returned to the United States would be nothing more (or less) than prosecution under applicable American criminal law, which presumably would be carried out in a judicially supervised manner as constitutionally prescribed by due process standards. But given the vindictive response to the Manning release of a cache of documents to WikiLeaks, and the refusal of the government to acknowledge the implications of policies that are criminal in nature, asylum should be granted to Snowden, and the failure to do so exhibits two features of present world order: American exceptionalism (would the US Government really turn over to China or Cuba a person who had risked everything to disclose state secrets to the world? The following statutory language is certainly suggestive of an answer: “No return or surrender shall be made of any person charged with the commission of any offense of a political nature.”); and the logic of major states that share an interest in collaborating with each other so as to keep the lid of secrecy covering their most nefarious practices.

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