Why Edward Snowden Isn’t a Refugee

And why Ecuador's a bad place to go if you are one

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Glenn Greenwald / Laura Poitras / The Guardian / Reuters

NSA whistle-blower Edward Snowden in a still image taken from video during an interview by the Guardian in his hotel room in Hong Kong on June 6, 2013

NSA leaker Edward Snowden appears to be a lot of things: brave, well spoken and a committed proponent of civil disobedience. But one thing he almost certainly is not is a refugee. Snowden landed Sunday in Russia from Hong Kong, where the U.S. was seeking his extradition on espionage charges. Ecuador’s Foreign Minister, Ricardo Patiño, subsequently announced via Twitter that Snowden had requested asylum in the impoverished South American country.

Here’s how the governing piece of international law, the U.N. Convention Relating to the Status of Refugees as amended in 1967 [PDF], defines a refugee: any person who

… owing to 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 … or is unwilling to return to it.

The convention further explicitly defines someone who is not a refugee as:

 … any person with respect to whom there are serious reasons for considering that … he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee.

(MORE: On the Run to Moscow, Edward Snowden Keeps Americans Guessing)

Most of the countries in the world have signed the treaty or its 1967 amendment, including the U.S., China, Russia and Ecuador. (Hong Kong hasn’t, and China hasn’t required it to abide by the convention since it took control of the territory, but that’s moot now that Snowden’s in Russia.)

So for Snowden to be a refugee with a valid claim to asylum he would have to argue two things. First, he’d have to show that he has a well-founded fear of persecution based on his political opinion. Second, he’d have to show that the crime he has admitted to, namely leaking highly classified documents, is either nonserious or political.

That’s a tall order on all counts. Snowden isn’t being persecuted for holding a political opinion, he’s being prosecuted for violating U.S. law. Few countries in the world, if any, have greater protections for freedom of expression of political beliefs than the U.S. (Germany bans public espousal of Nazism, Russia criminalizes offenses to various public figures, Ecuador just passed a restrictive press law, and so on.) If Snowden wanted to express his opinion about the surveillance state he could do so with near absolute protection under the First Amendment.

But even he says that’s not what he’s doing. Which gets to the second hurdle he has to clear. Snowden has admitted to breaking the law and said he is performing serious civil disobedience. In his first interview after coming forward as the source of the documents exposing the NSA’s broad surveillance programs, he said of his actions, “When you are subverting the power of government that’s a fundamentally dangerous thing to democracy.”

That was a particularly impressive and well-thought-out statement, but it also appears to be a stark admission that he is committing the kind of serious crime that denies him the protection of a refugee.

(MORE: Why Snowden Picked Moscow as His Transit Point)

To understand exactly why that is, it helps to focus on those for whom the international protections of asylum were originally created. Sometimes individual dissidents are granted asylum for their membership in a political group that is being persecuted — there have been landmark cases in the U.S. for victims of genital mutilation and of persecution on the basis of sexual orientation.

But the convention was created to help defenseless people forced across borders by conflict, specifically World War II. They are often rendered stateless and helpless in the process and can’t safely return home. Under the convention, states granting asylum are doing so to give them the protections that often only a state can in times of war — shelter, security from criminal activity or exploitation and so on.

Different countries do that to different degrees when they face an influx of miserable, destitute people fleeing a conflict. One place that does it increasingly poorly is Ecuador. Bordering Colombia and Peru, it has faced a high rate of asylum seekers. The U.N. High Commissioner for Refugees (UNHCR) recently said that in Ecuador “access to asylum has become difficult” thanks to the passage recently of a government directive that makes it harder for Colombians and others to get a fair hearing on their refugee status, and nearly impossible for them to appeal if they’re denied.

So Ecuador may be an attractive place to seek asylum for people claiming a novel kind of political persecution, like Snowden or Julian Assange, who has spent a year in the Ecuadorean embassy in London in hopes of avoiding extradition to Sweden to face rape charges. But it is not a particularly safe place to go if you are, say, an Afro-Colombian fleeing fighting in the south of that country.

All that said, the U.N. convention is silent on how someone is given the status of a refugee. Many countries say the first safe country arrived at should determine the validity of the claim, rather than having asylum seekers shop around for a country that will take him or her.

The UNHCR urges countries to presume an asylum claim is valid until the would-be refugee is shown not to be in danger. Whenever he gets a final hearing on his claim, says Jana Mason of the UNHCR’s Washington office, the issue “will be determining whether he’s subject to persecution or legitimate prosecution.”

MORE: Before Snowden: Others Who Have Gone on the Lam From the Feds

117 comments
andres.ascazubi
andres.ascazubi

Apparently the US did not follow the same criteria that Mr. Calabresi points out in order to get asylum when the US government granted asylum to the Isaías brothers, two Ecuadorean corrupt bankers who now live in Miami. Mr. Calabresi, are the Isaías brothers refugees? Another thing that TIME should investigate a little more is about the situation of Colombian refugees in Ecuador. According to the UN Refugee Agency, Ecuador is the Latin American country with more refugees, 98% of them Colombian. 

DarrellImaginarian
DarrellImaginarian

Totally irrelevant.  Ecuador has put up Julian Assange in their embassy for more than a year so he can escape being extradited for a rape charge in Sweden.  It's entirely up to their leadership if they want to help out Snowden, and for a Latin American leftist politician sticking it to Uncle Gringo is usually pretty tempting.

NelsonPerez
NelsonPerez

Ecuador  rubber-stamp legislature passed a new media law, widely known as the “gag law,” that was aptly described by the Inter-American Press Association as “the most serious setback for freedom of the press and of expression in the recent history of Latin America.”

Mr. Snowden should be particularly interested in Section 30 of the law, which bans the “free circulation, especially by means of the communications media” of information “protected under a reserve clause established by law.” The legislation empowers a new superintendent of information and communication to heavily fine anyone involved in releasing such information, even before they are prosecuted in the courts. In other words, had Mr. Snowden done his leaking in Ecuador, not just he but also any journalist who received his information would be subject to immediate financial sanction, followed by prosecution.

Other provisions of Ecuador’s new law would limit private media to 33 percent of the broadcast market and establish a new crime of “media lynching,” defined as the dissemination of information to reduce the public credibility of someone — such as Mr. Correa, for example. As the Committee to Protect Journalists put it, “this legislation puts into law a key goal of the Correa presidency: muzzling all critics.”

NelsonPerez
NelsonPerez

I find it interesting that Snowden would seek refuge in countries that violate human rights such as China, Russia, Cuba, and Vietnam. I thought he did what he did in the name of freedom. Interesting!

race_to_the_bottom
race_to_the_bottom

Oh please. If anyone from Russia, China, or Iran fled to the US under these circumstances, do you think he would not be regarded as eligible for political asylum?? Do you think he could be sent back to Iran for stealing laptops and state secrets?  Exactly.



RadLeaker
RadLeaker

Massimo, this piece of crap you wrote is pathetic. 

BillyWillyson
BillyWillyson

Obviously you don't realize that not wanting to be spied on is a political opinion. Gheesh ... where have you been the last xxxx years while the US gave sanctuary to people from other countries for far less. Snowden is clearly eligible for refugee protection

dwightneller
dwightneller

Sometimes you have to run for the dump to hide from the garbage.

Statism_sux
Statism_sux

I find it interesting how the press seems to value the freedom of speech it enjoys until valuable stuff gets leaked to a paper other than their own. Then they turn and become ravenous wolves. Then they all turn on the leaker. Makes you think the press is getting paid off by the CIA to spread its good will. Say hi to them for me, will ya?

conservativeNRA
conservativeNRA

I must say I certainly find it ironic that Edward Snowden, the whistleblower and champion of the public's right to know, is seeking asylum in Ecuador, a corrupt country with a history of discrimination against the press.  I'm not saying I like or dislike him or find support his cause, but I certainly find it ironic.

richard.draucker
richard.draucker

Massimo Calabresi joined the Washington bureau of TIME in 1999 and has covered the CIA, State, Justice, Treasury, Congress and the White House. He covered the wars in Bosnia, Croatia and Kosovo as TIME's Central Europe bureau chief from 1995 to 1999 and the collapse of the Soviet Union as a freelancer in Moscow in 1991.

CIA contact: "Hey Massi, how ya doin'? Great, great.  You know, we've done you a lot of favors over the years that have been very beneficial to your career, right?  Well, now we need a favor.  Nothing big.  We need you to write what looks like an authoritative article on why Snowden shouldn't be granted asylum. Can ya do that for us?  Great, thanks.  See you at the CIA picnic next month. Bye bye"


Augleigh
Augleigh

If a boy scout's point of view prevailed in international politics, I could agree with this opinion piece. But let's face it, Edward Snowden has incurred the wrath of the political arm of the U.S. government. It's judicial arm is expendable. Constitutional protections are expendable. Look how Bradley Manning was treated, way before he came to trial.  Yes, there are routes "official" refugees should be taking, but when the U.S. government is after you and is probably willing to destroy you no matter how your transgressions are labeled, you run the best way you know how.  All political prisoners have been sentenced for breaking a law in their countries because no country admits to having political prisoners.

Iceland is supposed to have offered Snowden asylum and I think he should have probably gone there. It may be cold, and a bit dull, but it does have the world's most contented population. I don't think you could say the same for Ecuador. Someone as idealistic as Snowden will become incompatible with the Ecuadorean system very fast.

Iceland has a much more politically and ethically stable population too, as well as a good reputation among the world's advanced countries.  Who knows how long the current Ecuadorean government and its President will last. Also, the U.S. can come into Ecuador and get him by simply forming an alliance with the present government's enemies, or bribing the right people well enough, and who is going to care if Ecuador's sovereignty is transgressed. Then what will happen to Snowden?

2fortheshow
2fortheshow

The USA is working with Al Queda..Yep the same people that supposedly brought down the World Trade Center. 

How many Americans lost their lives fighting Al Queeda in the "War of Terror" a film by George Bush 

Here is infowars and Alex Jones revealing the U.N admitting the USA  is now working with Al Queda..

Amazing ..wake up people! 

http://youtu.be/gh1aYYYEw_g?t=1m

renfieldc
renfieldc

When it comes to International Law, the USA is a paragon of virtue, is it not? Leaving out interfering in other countries affairs, Geneva Conventions relating to conducts of war, etc., etc.

JoeBlowZCUI
JoeBlowZCUI

Whether Snowden is a refugee per se is irrelevant.

In fact, he's on record saying that he's an "ordinary guy" with "no special training". Yet he's put his life, liberty and future happiness at risk for the betterment of the world. It is blindingly obvious that he did not do this for personal advancement--not for money, power, or influence. Nor did he do it for one country. He did it for mankind.

He may not be a saint, but he is a hero. Not the one we deserve, perhaps. But the one we need.

And, for what it's worth Mr. Calabresi, I consider him a far greater man than a petty editorial writer could ever be. However much such a writer qualifies his anti-Snowden rhetoric.

History will not treat the current and previous American Administrations kindly. Nor will history look kindly upon apologists for (and I do not consider this too strong a word) evil--some level of privacy is a basic human right. By implicitly writing in favour of the current regime, you are acting against all who hold the electronic age dear.

The internet never forgets. It never forgives. It is bigger, meaner, smarter, and much more ill-tempered than a writer will ever be. Than Time will ever be. Than the NSA could ever be. Never f**k with the internet.

pjenxx
pjenxx

This article needs to be renamed "why TIME is irrelevant".

constantine
constantine

Espionage, which he has been charged with, is a political crime if every there was one. It's not a crime committed against a private individual, but against the body politic. The main reason that provisions like this exist is to prevent a state from having to turn over spies and defectors to a hostile power, to protect states' freedom of action and sovereignty.

ScallywagNYC
ScallywagNYC

Should anyone be surprised that Edward Snowden was a no show? Isn't that why he was able to get this far in the first place? So now the question is who is harboring him, why, what do they stand to gain and what will the US do and what does the US already know that it is not revealing and what does China, Ecuador, Russia, and Wikileaks gain to stand to have Snowden camped out in their corner?

Could it be that Snowden is now being used as a decoy and bait switcher as others get involved ....?

Or would Snowden really best served to affect the change he seeks by simply returning to the US?

http://scallywagandvagabond.com/2013/06/edward-snowden-might-be-playing-the-world-as-he-fails-to-show-up-on-his-plane-trip/

KrissHalpern
KrissHalpern

Whether or not Mr. Snowden is being prosecuted for the expression of a political opinion is, I think, rather complicated and  unclear at this point in time. 

There is no question that he has political opinions he is expressing. No one could watch what is taking place and not see that much. He clearly believes in the right of people to be free from surveillance of various kinds. He clearly believes in certain limitations on governmental authority and intrusion. Those principles are modern versions of the same kinds of 18th century intrusions as the Quartering Act of England from which the colonists rebelled when British soldiers moved in to the homes of New Englanders. The physical intrusion is different but the underlying principle as to why such intrusions are intolerable is not terribly different.  

The question then becomes whether or not the allegedly criminal actions of Mr. Snowden to promote his political opinions go beyond some vague line that removes the protective description - "political."

That is the complicated issue.

The mere creation of a law which renders the expression of a political opinion an overt criminal act does not in and of itself negate the expression of the opinion so that the expression can be deemed not to exist by merely defining it out of existence. 

For example, when Solzhenitsyn was prosecuted by the Soviet Union, the Soviets did not announce that they were sentencing him to Siberia because he believed in freedom of speech. He was prosecuted for the manner in which he expressed his opinions, not the opinion itself. And, indeed, when Reverend King was jailed, he too was not jailed merely for having an opinion. He was jailed for overt acts in which he expressed those opinions. As we watch and wait to bereave the impending loss of Nelson Mandela, we can only appreciate the fact that he too spent years in prison for his expression of opinions.

In short, the prosecuting authority always has a crime that can be charged; and that crime is always predicated on a physical act, not mere thought and opinion. 

Therefore, the issue is how and whether the act alleged somehow removes the blanket of protection that is political expression.

If one robs a bank in order to raise money to support and advertise a political opinion, there is a clear criminal act that would be criminal regardless of the supposed purpose of the theft.

If one murders in order to rebel for some cause, the murder remains a criminal act, regardless of the claimed cause of taking it on.

How and whether the alleged criminal act is one that negates the political motive is the element that is complicated and, in this case, as yet uncertain. 

And, frankly, it seems that one's opinion of the alleged criminal act will most frequently fall on the side of one's view of the political opinion being expressed by it. If a person who believed in Democracy and freedom killed Hitler and robbed the Third Reich, would we not have cheered and welcomed that person for those acts and welcomed him or her as a hero who saved millions and clearly merited asylum having fled prosecution? 

JohnBond
JohnBond

The USA needs a new government. The garbage we have running the show need some jail time.

We need honest people to run for office and if they win, we need impeachment for the treasonous scum we have in office now. Once they are removed, we can jail the bassturds

NelsonPerez
NelsonPerez

@DarrellImaginarian 

totally relevant.  you cant believe in one thing, as snowden states of freedoms, and yet seek assistance from those who repress the press and their own people.  that my friend is speaking with "forked tongue".


DarrellImaginarian
DarrellImaginarian

We have a guy like that, Ken Alibek.  He was a bigshot scientist in Russia's bioweapons program before he defected to the United States in 1992.  He's never going back to Russia again, but he's a highly respected and compensated scientist in the US now... he works for a private firm as chief scientist and has testified before Congress on numerous occasions.

CwrRwc
CwrRwc

@BillyWillyson  "Obviously you don't realize that not wanting to be spied on is a political opinion," Yeah, but stealing top secret government property is not a political opinion but a crime in every sense of the word. Regardless how you feel about the surveillance aspect, this man stole vital information, and then has to audacity to be in Russia and China with this info in hand, grow up kid.

mahadragon
mahadragon

@conservativeNRA Snowden has become a whistleblower of the U.S. government, showing it to be untrustworthy towards the people. Snowden is running away from the U.S. government because they have proven to be untrustworthy and he knows he will not get a fair trial. Snowden is seeking asylum in Ecuador because it's one of the few places that will not persecute him for uncovering violations of privacy by the U.S. government.

conservativeNRA
conservativeNRA

@2fortheshow You're sighting Alex Jones as a reliable source.  Really? The guy who spends his entire life pandering to the paranoid and uneducated? The guy who believes that a shadowy new world order cabal is preparing to take over the world, and the only thing that stands in their way is the US constitution? The 9/11 truther? Alex Jones isn't a reliable source.  He's a paranoid raving lunatic.  I'm a freedom-loving tea party republican NRA member, and I still hate him.  You need to start listening to some non-troll news sources.

jmac
jmac

@JoeBlowZCUI  History isn't going to look kindly on a guy who took a job for four weeks just to download information on his own country to take to China and tell them what we're doing - especially since  China has been hacking us repeatedly.  When you're big bad internet goes silent or your bank fails because it's been hacked - the jokes on you.  Cyber war is real, it's happening and it's dangerous. 

richard.draucker
richard.draucker

@ScallywagNYC> who is harboring him, why, what do they stand to gain

Limiting actions to those for which you have something tangible to gain is a purely American cultural concept.  There are still citiziens and politicians in the world who take action, not based on what they have to gain, but based on nothing more than principle and the satisfaction that they are doing the right thing.  

Here's a such people from history: 

Nelson Mandela in his opposition to South Afrian apartheid.

Martin Luther King in his opposition to segregation.

Thomas Jefferson in his advocacy of a Bill Of Rights

KampbamsenOve
KampbamsenOve

@ScallywagNYC I hope he goes to Norway and seeks political asylum. I think he'd get it and I think that would be hilarious.

jmac
jmac

@KrissHalpern    From an article in the NY Times, which was hacked by China for months:  "The mounting number of attacks that have been traced back to China suggest that hackers there are behind a far-reaching spying campaign aimed at an expanding set of targets including corporations, government agencies, activist groups and media organizations inside the United States."  

He's no hero.  He fled to a country that has snooping as a middle name.  

KampbamsenOve
KampbamsenOve

@JohnBond So which third party candidate will you be supporting? Because that is the only way in which the US can get a change in regime.

NelsonPerez
NelsonPerez

@DarrellImaginarian 

btw.  rape charge has nothing to do with freedoms or sticking it to uncle gringo.  it has to do with a crime.  a country that protects a rapist is nothing more than criminal itself.

NelsonPerez
NelsonPerez

@mahadragon @conservativeNRA

Are you sure of your comments?  The country’s rubber-stamp legislature passed a new media law, widely known as the “gag law,” that was aptly described by the Inter-American Press Association as “the most serious setback for freedom of the press and of expression in the recent history of Latin America.”

Mr. Snowden should be particularly interested in Section 30 of the law, which bans the “free circulation, especially by means of the communications media” of information “protected under a reserve clause established by law.” The legislation empowers a new superintendent of information and communication to heavily fine anyone involved in releasing such information, even before they are prosecuted in the courts. In other words, had Mr. Snowden done his leaking in Ecuador, not just he but also any journalist who received his information would be subject to immediate financial sanction, followed by prosecution.

Other provisions of Ecuador’s new law would limit private media to 33 percent of the broadcast market and establish a new crime of “media lynching,” defined as the dissemination of information to reduce the public credibility of someone — such as Mr. Correa, for example. As the Committee to Protect Journalists put it, “this legislation puts into law a key goal of the Correa presidency: muzzling all critics.”

BelissimasBorg
BelissimasBorg

so, now that you have disparaged the source, what is your opinion about the allegations made? I think they are valid and I am a liberal.

InAwe
InAwe

@jmac @JoeBlowZCUI  Why are you so misinformed?

Go read something rather than wasting finger energy on typing such heavily flawed comments. 

Do u have no interest in checking if ur current world view is actually balanced rather than brainwashed idiotic mess.

KrissHalpern
KrissHalpern

@thomasvesely @KrissHalpern

I am unsure of the date that I would agree with you it was too soon to know if murdering Hitler could have received a grant of asylum. I know you are correct up to some point in time. I know there is a date past which any person concerned with humanity would have welcomed the murder of Hitler.

As I tried to come up with one, I learned of an actual historical events that illustrates what I was contemplating. In October 1938 the Third Reich confiscated the homes and property of thousands of Jews and forced them into internment camps in Poland. The 17 year old son of one such family went to the German Embassy in Paris where he shot and killed a German official as he searched for the German Ambassador to France to kill him. 

http://www.jewishvirtuallibrary.org/jsource/Holocaust/kristallnacht.html

Germany could have demanded, and presumably did demand, that France deliver the murderer of its official - who acted in the German Embassy, so technically on German territory . 

Would France have been correct to grant the young man asylum, regardless of the criminal act committed, based on the political nature of the act?

Again, in hindsight, I find it easy to say yes.

But in this case I believe there is an argument that under the circumstances then present it would have amounted to murder to return the young man to Germany. And that France would have clearly been in the right not to do it.

What to do with him is a far more difficult question. Try him in France? Confine him to a mental hospital until he could recover? Give him a medal and let him enlist in the French Army? [I am being facetious, mostly.]

My point is not to compare the actions of Edward Snowden to the murder of a Nazi official. Rather, it is only to point out that even the most obvious of criminal acts is one that can merit the grant of asylum.   

InAwe
InAwe

@jmac @KrissHalpern Again. Here you go.

I think you really don't realize what US is been up to if you make the statement that "(China) has snooping as a middle name."

Read up. Don't be so ignorant. Worst still, others like yourself will read your comment and feel justified in continuing to live a misinformed life.

richard.draucker
richard.draucker

@msbpodcast1 @JohnBond  Anyone in Congress will tell you that doesn't work.  They will tell you it takes one term in office to realize you're being run over by the unelected permanent bureaucrats.  Few in Congress actually get control of their office until their third term.  The politicians are only barely in control.  Those running the show are the bureaucrats and lobbiests who manage the flow of information the politicians have access to. 

cmkieffer78
cmkieffer78

That's the problem. Its either the rights or the lefts. We need a much bigger party system, more pickings. With all of these scandals, unwarranted data mining/snooping, the Obama administration cannot fix what they broke. They (Obama Administration) instead has to go on the defense and protect Obama's dictatorship. So, the debt crisis is put on the back burner, the school systems are out of whack, China owns us because we owe them so much damn money. Nothing like taking a great nation and flushing it down the toilet. 

10000Ways
10000Ways

@KampbamsenOve @JohnBond `

Interesting you should ask. While I have known many people who have voted based on a single issue, I have always through that to be a pretty dumb way to operate in a democracy.  Yet I now will be assessing my vote on this one issue - our right to liberty and privacy.


The only game in town seems to be Rand Paul. I agree with some of his positions yet there are many others where I am strongly opposed. Yet he does defend liberty. So there is my challenge if he is a candidate for the highest office. Today I would vote for him as to me this Government encroachment on privacy could be the first of many erosion's of our liberties. if not stopped.



DarrellImaginarian
DarrellImaginarian

I don't believe him and I don't admire Assange.  It suits the president of Ecuador because it plays well with his domestic political base.  There's a long list of political defectors from the Cold War with extremely unsavory personal histories and who had often committed crimes... such as stealing expensive aircraft from the Soviet Air Force or having been responsible for making tons of weaponized smallpox.  But they were welcomed with open arms by the West and there  wasn't any fuss over whether they were sufficiently blameless and downtrodden to qualify as refugees.

DarrellImaginarian
DarrellImaginarian

Assange's argument is that the rape charge is just a stalking horse for extradition to the US for political reasons.  Whether you believe that or not, Ecuador made a pretty flexible interpretation of the treaty in his case..  The main point of this article is that Snowden can't make a case for being a refugee.  I say that the Ecuadoreans will construe the law however it suits their political desires.  And that goes for  the Russians and the Chinese and everybody else.

BelissimasBorg
BelissimasBorg

gosh it is so much easier here to just buy up the media and then control the message, right?

InAwe
InAwe

@10000Ways @KampbamsenOve @JohnBond Rand Paul is unstable in his stance - he isnt constant enough with his stances and reasoning behind it as it is, so as a President, I dont know how solid he will be.

His father, Ron Paul, a different story. That guy has solid foundation, too bad his son didnt follow suit.