An American Who Deserves Asylum

June 11, 2013 Current Commentary Comments Off
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I have never believed that an American would genuinely need to seek, nor be entitled to receive, political asylum abroad during my lifetime. Until now.

Edward Snowden, the National Security Agency contractor who leaked the documents that triggered a national debate on privacy and security last week, has taken refuge in Hong Kong, at least for the time being. He may make a formal asylum request there or elsewhere in an attempt to avoid prosecution in the United States that could put him in prison for decades.

Based on what we currently know, I hope Snowden receives asylum if he chooses to seek it.

I am painfully aware of the irony in the fact that his sanctuary may come in Hong Kong, which is part of the sovereign, if uniquely self-governing, territory of the People’s Republic of China. The PRC’s approach to liberty and justice is so divorced from our own that I, as a frequent critic of that government, would not feel personally welcome or terribly secure traveling there – though I think the most likely consequence of my views is that I simply would not be admitted in the first place.

By his own account, Snowden violated American law as well as the commitments he made to his employer and the U.S. government in disclosing the massive data hoarding that government agencies have undertaken in the interest of security from future terrorist attack. Snowden frames his actions as civil disobedience, and though he has sought safety in another land, in the interviews released over the weekend, he appears resigned to whatever fate may befall him.

His attitude is well-founded. Civil disobedience is rarely justified in a democracy. Even when it is, those who engage in it should be prepared to face its consequences, as were those who fought for civil rights in this country a half-century ago.

In my lifetime, I never believed political asylum abroad to be justified, because we had varied and vigorous alternatives here at home. An independent judiciary, Congressional oversight, the jury system and a free press all serve to check the kind of injustices that warrant asylum.

These mechanisms have, however, broken down on occasions in our history. The anti-communist witch hunts and blacklists of the 1940s and 1950s come to mind. So do the Espionage Act of 1917 and the Sedition Act of 1918. So do the Alien and Sedition Acts, which were passed all the way back in 1798 and signed into law by John Adams. This is not to say that Congress has provided advance authorization for all of our historical excesses. Franklin Roosevelt’s Executive Order 9066 triggered the internment of Japanese-Americans during World War II without congressional action, though Congress knew about this racist outrage against U.S. citizens and did nothing to stop it.

Every era has its threats, real and perceived. There have always been those who argue that such threats require the compromise of basic liberties. (Benjamin Franklin’s aphorism on liberty and safety comes to mind.) But since my own coming of age in the 1960s and ‘70s, I have never believed that our system was so broken that an American dissident’s only avenue for genuine justice was to seek asylum elsewhere.

Even as recently as Daniel Ellsberg’s trial in the 1970s, someone in a position similar to Snowden’s could at least expect to be offered bail and to be able to participate meaningfully and publicly in his own defense. Yet more recent leakers, including WikiLeaks informant Pfc. Bradley Manning (whose alleged misconduct was, to be sure, far more egregious and less defensible than Snowden’s), have been handled far more harshly, both before and, in applicable cases, after conviction. Snowden has every reason to believe he would be treated as severely as the law allows, not necessarily because his own conduct warrants it, but because the authorities he defied want to make an example of him for others who would abuse their security clearances.

President Obama claims that he welcomes a debate on the government’s collection of our personal data, the safeguards that he contends will prevent the abuse and misuse of that data, and the benefits of that data’s collection for national security. That’s exactly the debate that Snowden says he wanted to start. The difference is that Obama could have initiated that debate any time in the past 4 1/2 years, in an orderly way, without the risk of spending most of his life in prison as a consequence. The president opted not to do that. Had Snowden not acted, there is no reason to think we would have actually had the discussion the president claims to welcome, and certainly not any time soon.

Snowden may well be a criminal. He may also be a hero and a defender of the civil rights of all Americans. The two rarely coincide (despite many claims), but in Snowden, for the first time in my life, I see the likely confluence of criminality and genuine courage. I don’t think, based on what is currently known, that his prosecution would be just or would serve justice, and I don’t trust that our system is prepared to acknowledge this without at least subjecting him first to abusive pretrial treatment.

Whether Snowden plans to linger in Hong Kong, or whether he yet has any other option, is not entirely clear. Hong Kong’s unique political position, and the recent tangle of its laws on extradition, means that he has at least bought himself some time to consider his next move. In his weekend interview, he mentioned Iceland as an example of a country with “shared values” where he might seek asylum as a long-term solution

I think Snowden deserves the asylum from his own country that he is likely to seek. I hope he gets it, and I hope his case leads us to the reforms we need to make, so I will never have to write these words again.


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