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 surely misdirected. Taking the overall situation into account, whatever anger is generated, should rather be directed at the United States for employing such arrogant language and crude methods in its hopefully vain effort to gain custody over Snowden. From almost every angle of relevant law, morality, and politics the case for protecting Snowden against the long arm of American criminal law is overwhelming. Anyone who commits nonviolent ‘political crimes’ should be entitled to be protected, and should certainly not be compelled to hole up in an airport transit lounge for weeks of anguishing suspense.

This contrary official US approach was concisely explained by an American embassy official in Moscow to a Human Rights Watch representative who then was apparently asked to repeat it to Snowden at his airport press conference held a few days ago: “US 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.”

It has become increasingly evident even to American public opinion that a twisted logic has gripped Washington, and has been tacitly accepted by many governments throughout the world who should know better. International law allows a government to refuse a request for extradition in the event that the accusation involves a political crime, although the definition is unsettled, and does not extend by state practice and expert opinion to violent and heinous behaviour involved in genocide, crimes against humanity, terrorism, and maybe hate speech.

It should be a ‘no brainer’ that Snowden’s alleged crimes were quintessentially ‘political’ in nature, making a grant of extradition unlawful and regressive. Not only this, but by far the most serious ‘crimes’ exposed were really focused upon the wrongdoing of the US Government and its private contractors, such as Snowden’s employer, Booz, Allen, & Hamilton. As the world knows, the controversial surveillance targets were not only the totality of Americans, but, as well, included foreign governments and their most confidential activities. Under these circumstances, it seems surprising that Washington did not decide to downplay rather than highlight Snowden’s supposed crimes.

Media misdirection

To date, with the mainstream media dutifully tagging along, the American strategy has managed to keep public attention focused on Snowden rather than on what his disclosures revealed. 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 realise that extradition is a technique to foster maximum international collaboration in 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. What the United States has been arguing is that since it is empowered to cancel 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 resident 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 seems to have been invented just to catch Snowden under circumstances where more conventional techniques would not work.

Lawyers, of course, earn their living by finding ways to produce counter-arguments that sometimes override not only common sense, but public reason. In this vein, can it not 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 this behaviour does not deserve to be treated as a political crime? Some commentators have pointed to the volunteer Israeli spy, Jonathan Pollard, who has languished in American jails for years to strengthen their argument that the US is entitled to gain control over Snowden.

Even the slightest reflection would be convincing that such an analogy is monumentally unconvincing. 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 prosecution. His crimes might then be defended as extra-legal instances of civil disobedience. Snowden’s conduct might also be defended as legal by stressing his benign intentions and the ‘necessity’ to reveal the realities about the truly frightening scope and depth surveillance to avoid the greater harm to public interests. These were more or less the arguments that Daniel Ellsberg so persuasively relied upon in the Pentagon Papers case 40 years ago.

Bait and switch

What has happened here, it seems, is a classic instance of bait and switch. Since extradition could not get the results Washington so desperately wanted, only diplomatic leverage could do the job. Here international law is less help to Snowden, although I would hope that international morality would come to his rescue. The debate now swirls around the appropriateness of a grant of asylum by some foreign government. 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. 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.

States possess wide discretion with respect to asylum, although it is conferred as a human right in Article 14 of the Universal Declaration of Human Rights, and is supposed to 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 by 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.

Because asylum, unlike extradition, is treated as discretionary at the national level, diplomatic pressure is more common. Asylum is situated at the interface of law and morality, creating much more room for political manoeuvre, and intense geopolitical pressures can be brought to bear as in this case. It is most unseemly to place small Latin American countries under the gun of United States’ threat of retaliatory diplomacy, especially when they seem to be acting empathetically toward someone who has acted so clearly on behalf of freedom and democracy with nothing to gain materially and much to lose. Surely, Russia is better situated than Venezuela to harbour Snowden without having to worry about adverse consequences. In such event, 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 US Government, the American independent media, and to governments and people throughout the world is to consider whether such a massive regime of secret unregulated surveillance by the US government in the name of national security is legally and politically acceptable. Snowden’s individual fate, although properly a matter of utmost concern, is secondary to the substance of the issues of principle raised for all of us. 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 to gain custody of Snowden, it is forgotten that his ‘criminal’ acts have already borne fruit:

Opening an overdue national debate in the United States as to theproper 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 offoreign governmental activity and the privacy of ordinary persons everywhere;

Encouraging relevant Congressional committees to consider placinglimitations 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 whole point of Snowden’s ‘crimes’ if we do not devote our attention to these fundamental political challenges directed at human security and democratic ways of life, and stop being distracted any longer by the circus of the chase!

Richard Falk is Albert G Milbank Professor Emeritus of International Law at Princeton University and Visiting Distinguished Professor in Global and International Studies at the University of California, Santa Barbara.