What If a Russian Snowden?

9 Aug

Political Crimes’ are Non-Extraditable and Snowden’s Transfer to the United States for Prosecution would have been a Setback for Human Rights and International Law

 

What is most troubling about how the Snowden case has played out diplomatically and via the media is the almost total refusal to focus attention on the central legal, moral, and political issues. The United States Government from the outset has acted as if it is entitled to have Snowden transferred to its custody because he is a fugitive from American criminal justice. Pursuing this line of reasoning, Washington has exerted pressure on Latin American governments not to grant Snowden asylum and expressed disappointment with Hong Kong, China, and Russia for their refusal to comply with the U.S. request. The assumption has been that this is a simple instance of cooperative law enforcement, and it is thus unfriendly and unreasonable for another government to shelter Snowden by a grant of asylum.

Barack Obama has underscored the importance he gives to this issue by canceling a scheduled a high profile summit meeting in September with Vladimir Putin. He even contends that Russian non-cooperation in relation to Snowden exhibits a ‘Cold War mentality’ that backslides from recent instances of Russian-American cooperation such as after the Boston Marathon bombing. Fairly construed, it would seem that it was Obama, not Putin, who was guilty of Cold War posturing. Recall that even during the Cold War Nixon agreed to meet with Nikita Khrushchev in Moscow at the height of international tensions. It is Obama who frequently tells us of his readiness to negotiate even with the most obdurate of Republican hardliners, but apparently this willingness does not extend to foreign leaders who fail to do what Washington’s wants! Further, it should be appreciated that it is Putin who has affirmed from the outset that he didn’t want the Snowden incident to harm Russia’s relations with the United States. Even after the cancellation of the diplomatic meeting of heads of state, Putin has expressed regret rather than righteous indignation, or even disappointment. As so often, the misuse of political language, 1984 style, inverts reality, and misses what could have been used as ‘a teaching moment’ on the protection of human rights and the promotion of political pluralism in a world of sovereign states.

The misleading character of this Snowden discourse also goes largely unnoticed because it has been not substantively contested, especially by China and Russia. The Latin American triumvirate of Venezuela, Bolivia, and Nicaragua base their offers of asylum on a principled human rights rationale, but even they do not explain their reasoning, especially its legal roots and political justification. All of this leaves a false impression that both sides of the debate about Snowden are acting within a domain of pure discretion, and even leading human rights organizations have reinforced such a misunderstanding by remaining largely silent spectators. As a result, Obama’s petulant cancellation of the summit, and with it an important opportunity on which to explore ways to end the Syrian internal war and to avert a military confrontation with Iran is irresponsibly lost, and for what?

The overall situation could have been far better understood if all parties involved had put forward arguments that articulated their claims in a coherent manner. The United States could have then insisted that despite Snowden’s claims of a political motivation, his acts of espionage and conversion of government property, should not be viewed as ‘political crimes.’ Such a position could have included the assertion that the revelation of American surveillance efforts endangered national and global security, putting the American people and foreign countries at risk, and that there existed a world interest in preventing terrorism creating a shared interest in the enforcement of criminal law. Such a rationale would doubtless include an insistence that present levels of secrecy and scrutiny were reasonable, restricted, and necessary. Further, it would be claimed that the collection of data was done in a non-invasive manner protective of privacy to the extent possible, and designed only to identify suspicious behavior. In effect, the U.S. Government could have argued that what Snowden did was tantamount to complicity with ‘terrorism’ and should be dealt with as a matter of transnational criminal law enforcement and diplomatic cooperation so as to serve the global public good and promote human security.

The Russian position would rest on a contrary line of reasoning based on the belief that Snowden’s acts clearly constituted a ‘political crime’ because of the political nature of what was revealed, the absence of any commercial motivation, the absence of any violent acts, and the evident intention of Snowden to warn the peoples and governments of the world about legally dubious secret and excessive encroachments on privacy and confidentiality of communications. This means that even if an extradition treaty between the countries had existed to oblige Russia to cooperate with the United States in relation to the enforcement of criminal law, a request to extradite Snowden would be rejected because of the nature of his alleged crimes. It is standard practice, long upheld in doctrine and practice by the United States as well, to include a political crimes exception to the mutual obligation to extradite.

In fact, if Russia had transferred Snowden to the United States for prosecution, there would have been a widespread public outcry, no doubt intensified by the perception that other whistleblowers in the security area, especially Bradley Manning and Julian Assange have been recently subject to vindictive and abusive treatment for comparable breaches of American secrecy in the name of national security. The Russian decision that Snowden’s acts should be treated as political crimes seems convincing and reasonable, although regrettably  not articulated along these lines.

As should be obvious, my sympathies lie with the governments that seek to provide Snowden with sanctuary, treating him in effect as ‘a prisoner of conscience’ and someone whose acts will be remembered not for their alleged criminality, but because they raised vital concerns about the nature and proper limits of democratic governance in the 21st century. What Snowden did was not easy. It has established him for many of us as a brave individual who had the courage to step outside the edifices of government and corporate bureaucracy to scream ‘enough!’ Perhaps, the scream has come too late, past the tipping point in this ominous revelation of a digital panopticon. Let us hope not.

In each of these instances where government secrets of the United States were disclosed, the leadership of the country has refused to discuss the substantive issues raised beyond a monolithic denunciation of ‘the leaker’ and a less than credible plea, ‘trust us!’ Trust us, the national security government as we have the experience, knowledge, and sensitivity to strike the right balance between the requirements of security and the protection of freedom. ‘Fooling most of the people most of the time’ is not a prescription for sustainable democracy even acknowledging the vulnerability of the country to the difficulties of addressing the security threats posed by extremist violence in the post-9/11 world.

Unfortunately, also, the most influential media in the United States has not helped clarify the terms of debate by reference to the legal, moral, and political issues. Instead it has largely exhibited its lack of independence and pro-government bias in the Snowden Affair in three major ways:

–consistently referring to Snowden by the demeaning designation of ‘leaker’ rather than as ‘whistleblower’ or ‘surveillance dissident,’ both more respectful and accurate;

–totally ignoring the degree to which Russia’s grant of temporary refugee status to Snowden for one year is in full accord with the normal level of protection to be given to anyone accused of nonviolent political crimes in a foreign country, and pursued diplomatically and legally by the government that is seeking to indict and prosecute; in effect, for Russia to have turned Snowden over to the United States under these conditions would have set a morally and politically scandalous precedent considering the nature of his alleged crimes; such a decision would have been especially objectionable as there was no extradition treaty that established any legal obligation to hand over individuals accused of crimes by a foreign government, and thus to transfer Snowden would have meant doing  gratuitously what even a treaty had it existed would not have required;

–failing to point out that espionage, the main accusation against Snowden, is the quintessential ‘political offense’ in international law, and as such is routinely excluded from any list of extraditable offenses; there are good reasons why the safety valve provided by whistleblowers and dissidents is especially valuable for the citizenry of democratic societies at the present time. When the nature of security threats is so widely dispersed, and can extend to citizens and the far corners of the earth, the possibility of anti-democractic abuse is great. What Snowden has revealed, shows that this danger is more than a possibility, and calls for remedial action in the United States that establishes more restrictive guidelines on what the government may do in relation to privacy and confidentiality than previously existed. In effect, Snowden performed a public service that is being indirectly acknowledged by new attention given in Congress and by the media to a rebalancing of security and freedom more responsive to the values of privacy.

If these elements had been clearly articulated, the United States Government would have seemed ridiculous to complain about the willingness of some foreign governments to give Snowden asylum, and worse than complain, to use its diplomatic leverage in relation to small and vulnerable government to induce them to do the wrong thing. The Obama administration, and Senate hot heads could call Snowden a traitor and bemoan his unavailability for prosecution to their heart’s content, but such behavior would be then seen for what it was: a petulant empire exhibiting its rage and frustration because its hard power global presence was of no use, and its policy options were effectively constrained because other countries abided by the rule of law. Under these conditions to be threatening foreign governments with adverse diplomatic consequences if they refuse to play ball is not only exhibiting a child’s frustration, but it is self-defeating. If properly presented, those countries that offered asylum or refused Washington’s demand for the transfer of Snowden to American custody were behaving in accord with the best teachings of human rights. What should be surprising is that more governments were not forthcoming, leaving it to such small countries as Bolivia, Venezuela, and Nicaragua to withstand the strong arm tactics of the United States, perhaps signaling a welcome new resolve throughout Latin America to no longer accept their former regional identity of providing a backyard for the benefit of the colossus of the North.

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

Such a tactful approach to a delicate situation hardly merits the hyperbolic aggressive words of the supposedly liberal Democratic senator from New York, Charles Schumer: “Russia has stabbed us in the back..Each day that Mr. Snowden is allowed to roam free is another turn of the knife.” We should ask these deeply aggrieved senators for honest answers, including John McCain and Lindsey Graham, who added their own fiery denunciations of both Snowden and Russia, what they would have done if the situation had been reversed—if a comparable Russian whistleblower had revealed a Russian surveillance system that was listening in on secret government deliberations in Washington as well as invading the privacy of ordinary Americans. I suspect they would have demanded that Obama cancel the meeting because of what such disclosures revealed about Russia’s wrongdoing.

I would expect that the righteous indignation surrounding such revelations and the gratitude in the United States that would be bestowed on a Russian Snowden would know few bounds. The American media too in that situation would have been quick to produce experts on a nightly basis explaining why extraditing such a person would be wrong, and that there existed a contrary duty to provide sanctuary from the harsh workings of the Russian criminal justice system. Pious suggestions would be made that this Russian Snowden is deserving of the Nobel Peace Prize.

In a not so subtle way, the Snowden diplomacy is yet another illustration of American exceptionalism: that is, there is an obligation for others to do what our government would never think of doing. What might be called ‘the iron law of hegemony.’ International law and morality operate on a contrary logic: equal situations should be treated equally. Revealingly, American domestic law is clear about its commitment to protect a Russian Snowden: “No return or surrender shall be made of any person charged with the commission of any offense of a political nature.” 18 United States Code §3185. The United States has repeatedly shielded even individuals associated with violent political acts if the target involves a hostile government or its citizens and property, most notoriously Cuba.

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23 Responses to “What If a Russian Snowden?”

  1. monalisa August 9, 2013 at 2:40 am #

    Dear Richard,

    you put it perfectly – the reverse case.

    The US trade deficit is huge and most of our global countries are aware of.
    The trade deficit of USA with Russia alone amounts to more than 40%.
    Reading that USA pre-amble trade talks with Russia (can be understood as reaction concerning the pending individual case of Snowden) is not only unwise it is terribly stupid. And surely puts Russia in a much better position than USA.
    However, maybe this will be revised. I do hope for the sake of US citizen.

    I am still wondering why a person educated in law can as president doing things which are all contradict to his profession as a lawyer. That’s the point.
    And I think that he is just a puppet as the EU is a puppet of the USA.

    Take care of yourself,

    monalisa

    • monalisa August 9, 2013 at 2:43 am #

      Remakr:
      Somehow my computer eat some word:
      please read 7nd row:

      Reading that USA cancelled pre-amble trade talks with Russia ….”

      monalisa

      • Kata Fisher August 9, 2013 at 4:26 pm #

        I have another reflection: It is a mocking of a spirit—that which is going on.

      • Kata Fisher August 9, 2013 at 7:28 pm #

        I have another reflection:
        It is about the condition of the Law International @ UN –that which I read about just a few days ago. It was saying that UN acts to/wants’ to reduce the impact of the Law International (or doing away with that, in part) it was in a blog- or something like that. I cannot recall specifics—I just had a fast flash-overlook over that.
        (I do not even know if is true/accurate—that report that I got somewhere online by a flash). I did try to find that, and I could not. I am not sure how I got to it).
        Could such thing be true—that there are attempts by UN to reduce validity of the Law international, by any means, if applicable? (Since there is all kind of things, circulating that are not true, I do wonder). Is it anything like that going on? To what extent, I do wonder…attempts by whom, in specific terms?
        Does anyone has any reference to that…in any shape-or form? (A valid one, please).
        Any attempts to impair the Law International (in any extent) would cause catastrophic consequences to the order, all together. I think on that..
        K.F.

    • Kata Fisher August 9, 2013 at 4:21 pm #

      Yes, we ask why?
      Look and see why can someone be a “moppet”, and act “just as a puppet”? It is possible…when deceiving-spirits are around (in a way).
      I just did a fast reference on some “Q/A’s” that I had.

      https://en.wikipedia.org/wiki/Camp_David_Accords

  2. Gene Schulman August 9, 2013 at 6:48 am #

    Another excellent article, Richard. Danny and I were just discussing these issues over lunch today. You might want to see just what lengths the Obama administration is going to now. This just in: http://www.thiscantbehappening.net/print/1912

  3. Gendzier, Irene L August 9, 2013 at 7:39 am #

    Thank you for this extraordinary review- would that it be read and contemplated while there is still time… irene

  4. Sergey August 9, 2013 at 4:15 pm #

    Dear Dr. Falk,

    Thank you for your very perceptive reflection on the Snowden’s affair.
    I cannot agree with you more! If it were a Russian secret service agent who leaked very sensitive information on legal transgressions of Russian government, very few politicians in the U.S. would be demanding the immediate extradition of the agent back to Russia. As critical as I am of the current Russian government, I think it made the right decision by granting Snowden asylum.

    • Richard Falk August 10, 2013 at 3:11 am #

      Thanks, Sergey, I appreciate your comment, and share this double sense that Putin did the right thing (although without a clear explanation that might have put the matter to rest), which contradicts his miserable human rights record within Russia. Of course, the same contradiction could be laid at the feet of Obama, but in more subtle forms by and large (yet force-feeding of prisoners at Guantanamo or extraordinary renditions are pretty crude).

      Hope your summer includes many pleasures!

  5. jg August 10, 2013 at 2:25 am #

    Dear Professor Falk,

    Thank you for sharing your perspective on flexibility, alternate positions and missed opportunity.

    Now that I have read what you have said, whatever I heard this evening on the news (PBS/BBC) falls away.

    My immediate reaction, is, who does President Obama have to advise him on such a delicate matter?

    This is something outside the experience, I believe, of recent Presidents. I may be wrong.
    I am not sophisticated, nor pretend to know how one should proceed. The phrase “nothing ventured, nothing gained”, comes to mind. Perhaps that is too naïve, or simplistic for this set of circumstances.

    It is unfortunate that President Obama did not consider other steps, as you have outlined.

    An analogy, might be, don’t “cut off your nose, to spite your face”. The rationales involved are, obviously, much more complicated.

    I think the administration, President Obama, and America would greatly benefit from your creative insight, negotiation skills and ability thinking tough situations through.

    Not being sophisticated, I need to digest, more fully, what you have written. I think, I understand the overall ideas.

    I thought the President spoke of “inclusion” – not “exclusion” – This does not seem to have been operational at this time. I, also, think the disappointing cancellation, amongst other things, may have sent the wrong message, or backfired.
    More time is lost, little has been gained. Mr. Snowden/America is caught in the fogging.

    When I first attended university, my father enrolled me in Political Science – yes, he chose my subjects that first year.
    I did not even know what it was… I wasn’t interested. Shortly after I started, the class was cancelled; the Prof. was replaced and the syllabus changed. That was the end of Political Science for me.
    I came to see and learn about human injustice and civil rights over the years, and gradually some history. Here I am ‘commenting” on very difficult events, really quite clueless.

    Your sharing of your ideas, and the digest helps to give greater room for deliberation and bridge building, to open, rather than close doors, for meaningful dialogue, rather than “cold war mentality”( I hope I have it right).

    Thank you.

    • Richard Falk August 10, 2013 at 3:04 am #

      Thanks for this thoughtful, sensitive, and humble message. I think your sense of the situation created by the Snowden incident is just
      right.

      With my best wishes

  6. Ray Joseph Cormier August 10, 2013 at 6:33 am #

    You don’t have to speculate what America would do with a Russian “leaker.”

    Just recently, the US brought pressure to bear on Panama to release wanted former CIA agent Robert Seldon Lady arrested on an Interpol warrant, having been convicted in an Italian Court of kidnapping an Egyptian Muslim Cleric off the streets of Milan for rendition to be tortured in Mubarack’s Egypt.

    http://www.presstv.com/detail/2013/07/21/314813/wanted-former-cia-agent-flown-to-us/

    This appears to be one more instance of the US dictating to a soverign country – do as I say, not as I do.

  7. Carl August 11, 2013 at 1:09 am #

    Good day Richard,

    My name is Carl and I’m the creative director for Stache Magazine, a non-profit online magazine for the creative youth. Because of the gravity of the issue surrounding Edward Snowden and the NSA, we were wondering if you may grant us permission republish this article in our online magazine? Our readers are mostly young adults, and it would be amazing for them to be able to read your point of view on the issue.

    Should we be given this permission, rest assured that proper credit to the article will be given, as well as links to this article and this blog.

    We are looking forward to your positive reply.

    Sincerely,

    Stache Team

    • Richard Falk August 11, 2013 at 3:43 am #

      Dear Carl:

      First of all, thanks for the online courtesy of seeking permission. So often in my experience republication is done with neither permission nor even notification.

      In fact, I am delighted to grant permission. To reach youth with a message about the menace of government surveillance is at the core of my intentions! I wish you well with your endeavors.

      Warm greetings,

      Richard

  8. Gene Schulman August 13, 2013 at 4:56 am #

    I was happy to see your blog reprinted in the New York Times Examiner http://www.nytexaminer.com/ with the new introduction which adds much to your original post. I hope your readers will take the time to look at it.

  9. wynajemmebli.blinkweb.com September 9, 2013 at 4:56 am #

    Oh my goodness! Incredible article dude! Thank you, However I am experiencing problems with your RSS.
    I don’t know why I cannot subscribe to it. Is there anybody else getting
    the same RSS issues? Anyone that knows the solution can you
    kindly respond? Thanks!!

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