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David Leopold Headshot

Snowden: Prosecution or Persecution?

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The international definition of a refugee includes a person who has a "well-founded fear" of "persecution" in his or her home country on account of race, religion, nationality, membership in a particular social group and or political opinion.

That's persecution, not prosecution. International law does not generally offer protection to a person who is a fugitive from justice.

Which brings me to Edward J. Snowden, the former American intelligence contractor who is wanted in the United States for allegedly leaking classified national security information -- a violation of U.S. espionage law. Snowden, who has been holed up for weeks in a transit lounge in Moscow's Sheremetyevo Airport, has applied for asylum in numerous countries, including, as of today, Russia. His basic claim is that if he is returned to the U.S. he will be persecuted, apparently "on account of" being a whistle-blower who exposed privacy abuses by the U.S. government.

Even a first year law student knows that doesn't amount to a good asylum claim.

Nor does the revocation of Snowden's passport by U.S. authorities amount to a violation of his rights, let alone form the basis of an asylum claim under international law. First, the passport is the property of the U.S. government, not Snowden. Second, the law plainly gives the U.S. Department of State the authority to revoke Snowden's U.S. passport since he is the subject of a federal warrant of arrest for a felony.

Nevertheless, there's no doubt a savvy lawyer could concoct an argument that Snowden has been targeted by the American government "on account of" his political opinion or whistleblower status. But even so, it's difficult to see how Snowden could plausibly claim he fears persecution by the U.S.

Persecution, which has no bright line legal definition, essentially amounts to the systematic mistreatment of an individual or a group. If Snowden returns to the U.S. he'll likely be prosecuted for serious espionage related offenses which could result in significant prison time. But those charges do not amount to persecution, they amount to prosecution. And the American system of justice contains due process guarantees, including the Constitution's right to effective counsel. Ironically, that's an assurance not available in several of the countries in which Snowden has sought refuge.

So, on its legal merits, Snowden's asylum claim barely passes the giggle test.

But that doesn't really matter when it comes down to international politics. The question of offering a safe haven to Snowden is political not legal. Whatever the legal pretext is, any country that offers Snowden asylum from the U.S. justice system, will be motivated by raw politics. It's hardly any surprise that the countries which have seriously considered Snowden's asylum claim -- Venezuela, Ecuador, Bolivia, and, most recently, Russia, also happen to be at odds with the U.S. politically.

But aside from the legal issues, there is something quite unsettling about a person who purports to be operating on behalf of the public good -- whistle-blowing privacy abuses -- but then finds it necessary to run and hide in an airport transit lounge where he can safely avoid taking responsibility for his actions. In other words, if Snowden truly believed he held the legal and moral high ground with respect to leaking classified information, why not return to the US and force the government to its constitutional burden of proof in a court of law. Surely, if Snowden did nothing wrong, violated no statute, and was merely revealing government abuses in a valiant effort to protect the public, he would not hesitate to stand tall and return to the U.S.