Edward Snowden, the former technical contractor for the National Security Agency who caused quite a sensation by disclosing highly classified documents that reveal the existence and scope of the United States government’s system of monitoring Internet and telephone communications, is not your average asylum-seeker. Snowden has been charged with theft of government property and espionage. By the time the information held by Snowden was leaked to the world last month, he already had fled the United States and taken refuge in Hong Kong. When the United States sought Snowden’s return through its extradition treaty with Hong Kong, Hong Kong officials apparently chose to deal with the political hot potato Snowden has become by asking him to leave. Since June 23, Snowden has been holed up in an airport in Russia. Media reports indicate that Snowden is attempting to avoid extradition altogether by seeking asylum from at least 20 different countries. Although many observers are focused on whether Snowden qualifies for asylum, the question arises – if Snowden’s asylum application is accepted, will his case dilute the asylum process and the safety it provides to the vulnerable individuals who typically seek its protections.
To ensure the presence of defendants for trial in the United States, the government typically seeks the return of fugitives through an extradition treaty. In a routine treaty, the party-countries agree that they may extradite, or return, individuals found within their jurisdiction who have been charged with extraditable offenses in the requesting country. A treaty may also contain offenses for which extradition will not be granted, such as political or military offenses, or offenses punishable by death under the laws of the requesting nation. Federal prosecutors submit a formal request for extradition which frequently includes an affidavit explaining the facts of the case, copies of the statutes alleged to have been violated and the applicable statute of limitations, evidence in the form of affidavits or other documents, and any applicable arrest warrants, complaints, indictments, or judgments of convictions. In most cases, the element of “dual criminality” also must exist, which means that the conduct at issue constitutes a crime under the laws of both countries. The decision whether to extradite is often made in the context of a judicial hearing in the foreign country where the individual is located.
The normal rules of extradition, however, do not apply in cases where an individual qualifies for asylum. Countries that are signatories to the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol are obligated to recognize valid claims for asylum by refusing to return a refugee – a person outside his country of nationality – who fears persecution or violence in his home country on account of a “protected ground.” Protected grounds include punishment based upon race, nationality, religion, political opinion and membership in a particular social group. Asylum-seekers often include African women hoping to avoid deportation to home countries where they will be physically mutilated, or people fleeing ethnic cleansing or genocide in their home countries, or women or men fleeing domestic violence in countries that do not provide protection against such violence.
According to a report from the United Nations Refugee Agency, almost 480,000 asylum applications were filed in the 44 industrialized countries in 2012. The United States was the largest single recipient of new asylum claims for the seventh consecutive year, with an estimated 83,400 claims. Slightly less than half of the asylum-seekers originated from Asia, while approximately 25% of all claims came from individuals from Africa. The top five source countries of asylum-seekers in 2012 were Afghanistan, the Syrian Arab Republic, Serbia and Kosovo, China and Pakistan.
How does Snowden fit into this picture? Snowden and his supporters claim he will be persecuted in the United States due to his political beliefs, because he has asserted that the United States government’s secret monitoring systems violate human rights. In support of this claim, some point to the case of United States Army Private First Class Bradley Manning who was arrested in Iraq and accused of providing WikiLeaks with hundreds of thousands of confidential intelligence documents and videos. Earlier this year, a military judge ruled that Manning’s confinement, which included 23 hours a day in solitary confinement, being forced to sleep naked without pillows and sheets, and restriction from physical recreation and access to television and newspapers, was “excessive.” Although parallels may be drawn between the two cases and the conduct charged, Manning’s case is being tried in a military tribunal because he is in the United States Army, while Snowden’s would be tried in a civilian court with a greater degree of protection for individual liberties.
Most countries considering Snowden’s asylum request likely will recognize the significant protection afforded Snowden by the United States Constitution. Nevertheless, countries that have a poor relationship with the United States (i.e., Cuba or certain South American countries that have been identified in press reports), may see fit to grant Snowden’s asylum request for their own political reasons, despite a lack of evidence that he will be “persecuted” if returned to the United States. Such a decision runs the risk of watering-down the practice of political asylum and the protections it’s designed to provide to individuals whose lives hang in the balance.