According to recent news reports, Edward Snowden, the whistleblower who leaked documents revealing the scope of the National Security Agency’s surveillance program, has applied for political asylum in at least twenty-one countries. Though his applications have not been made public, Snowden has received at least three offers of asylum: from Bolivia, Nicaragua, and Venezuela. The proffered grounds for these asylum grants have varied from Bolivian President Evo Morales, who presented it as a “fair protest” for preventing his presidential airplane from entering the airspace of several European countries; to Venezuelan President Nicolas Maduro, who saw a need to protect “the young American” against “persecution from the empire“; to Nicaraguan President Daniel Ortega, who remained vague on the details.
None of these explanations bears much relation to international refugee law, which, though rarely an arm’s length from politics, does require some rigorous legal analysis. To be fair, each country has the right to grant asylum based on their own domestic law, which may be more generous than international refugee law standards. (Though the terms “asylum” and “refugee status” are often used interchangeably, in the United States, the former technically refers to domestic law and the latter to international law.) But given the legitimacy that the international legal standards might afford a claim like Snowden’s, it’s worth attempting a more thorough analysis of his asylum claim.
The 1951 United Nations Convention Relating to the Status of Refugees defines a refugee as a person who has a “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.” Snowden might fit within the “political opinion” category or a “particular social group” of whistleblowers. The central question is whether he risks persecution at the hands of the U.S. government on account of his membership in that category. (While Snowden might argue that his prosecution is political, the argument that he engaged in civil disobedience and therefore should expect to defend himself in court is more compelling.)
The U.S. government would argue that Snowden faces prosecution for criminal actions — and that prosecution is different from persecution. But prosecution can cross the line into persecution for several reasons, including if punishment is unreasonably severe. So far, the three espionage charges filed against Snowden carry penalties of fines and up to 10 years in prison. That seems insufficient under international standards to make out a claim of persecution. It’s possible that, as Pentagon Papers leaker Daniel Ellsberg suggested, Snowden could face solitary confinement, which might meet the definition of persecution.
But what happens if, as several senators have suggested he should be, Snowden is charged with treason? I’m not an expert on the law of treason, but the important point is that treason is punishable by death. In the Soering v. United Kingdom decision, the European Court of Human Rights determined that Article 3 of the European Convention on Human Rights, which prohibits cruel, inhuman, or degrading treatment, prohibited the extradition to the United States of a German national charged with capital murder in Virginia. In other words, the risk of the death penalty could well rise to the level of persecution under international refugee law. Even though the treason case against Snowden appears weak, he may face enough of a risk to turn a weak asylum claim into a legitimate one.