Despite U.S. government pressure, Russian President Vladimir Putin is balking at demands that he extradite Edward Snowden from Moscow to face espionage charges for leaking secrets about America’s global surveillance operations. Still, Snowden’s status remains dicey, as Marjorie Cohn explains to Dennis J Bernstein.
"Times New Roman";mso-bidi-font-family:"Times New Roman"”>DB: Why don’t you begin with an overview of the case, and how you see it.
MC: Edward Snowden revealed a secret program of massive spying on Americans and people all around the world and turned them [documents] over to the Guardian and Washington Post. Then he went to Hong Kong, which is where he was until he left [on Sunday]. The U.S. government is going to charge him under the Espionage Act with crimes that could garner him 30 years, or even life in prison if they decide to add extra charges.
The Obama administration has gone after whistleblowers in an unprecedented manner, filing charges against eight people under the Espionage Act, more than twice all prior presidents combined. Most recently, the firestorm around Mr. Snowden is about whether he will be extradited back to the U.S. to stand trial on these charges. He was in Hong Kong, left and stopped in Moscow. There have been reports that he might go to Ecuador where he applied for political asylum and he did confer with officials from the Ecuadoran government when he was in Russia.
He could be extradited, sent back to the U.S. for trial, either by Russia or any country he passes through on the way to Ecuador. Or Ecuador could extradite him back to the U.S. Russia and the U.S. do not have an extradition treaty, but the U.S. has extradited seven Russian prisoners in the last two years. A country can refuse extradition when the offense is political in nature. He would be charged under the Espionage Act and espionage is a classic political act that gives rise to a refusal of extradition, so they could refuse extradition on those grounds.
There’s also a provision in the Convention against Torture called non-refoulement that forbids extradition of a person to a country where there are substantial grounds to believe he would be in danger of being tortured. Since Bradley Manning, another prominent whistleblower, was tortured by being held in solitary confinement for nine months, a country could conclude Edward Snowden might be subjected to the same fate, and deny extradition on that ground.
Also a country has an obligation to refuse extradition when it would violate fundamental rights. The right to be free from torture and cruel treatment is a fundamental right. Under the refugee convention, Ecuador or Iceland, where he’s applied for asylum as well, or any country, could grant Snowden political asylum if he can show he has a well-founded fear of being persecuted for reasons of political opinion in the U.S. He probably could make that showing in one of those countries. At this point it’s very fluid.
The Johannesburg Principles of national security, freedom of expression and access to information, which were issued in 1996 provide, “No person may be punished on national security grounds for disclosure of information if the public interest in knowing the information outweighs the harm from the disclosure.” It’s important to be talking about that. What did Edward Snowden do? Did he harm the national security?
There have been claims that terrorist attacks were thwarted by the massive dragnet surveillance Snowden exposed, but Senators [Mark] Udall and [Ron] Wyden, who have been on the Senate Select Committee on Intelligence and looking at this classified information for years, say that’s not true. The intelligence that is the most useful for foiling these plots is traditional intelligence and not a dragnet surveillance where they listen in to people’s phone calls and track what kinds of places they visit on the internet.
Even if they are not listening in on the content of the phone calls or reading the content of the messages, the fact that they are profiling, coming up with so-called patterns based upon the websites people visit or the people they call could be a tremendous invasion of privacy and lead to a lot of false intelligence.
"Times New Roman";mso-bidi-font-family:"Times New Roman"”>DB: Is there any precedent, any case you could make that this man acted for the greater good of society?
MC: A precedent is Dan Ellsberg who leaked the Pentagon Papers, which revealed what was going on in the Vietnam War and helped ultimately end that war. You could say that was for the greater good. Also, Bradley Manning leaked evidence of war crimes, the collateral murder video, among other things, which showed commission of war crimes as defined by the Geneva Conventions, by people in the U.S. Army. Yes, there is precedent for this.
"Times New Roman";mso-bidi-font-family:"Times New Roman"”>DB: Is there any legal justification for the U.S. to do that?
MC: No, but somebody could do it and say they weren’t working for the government. The government could say he’s a traitor and we need to bring him to justice in our country and he is being shielded.
Special Ed: Voices from a Hidden Classroom. You can access the audio archives at www.flashpoints.net.