Edward Snowden can run, but according to his own revelations about ubiquitous U.S. surveillance, he cannot hide. He seems to fit the definition of a “whistleblower” rather than a criminal, having acted out of conscience to reveal an eavesdropping operation on such a scale that the public in his own democracy, and in others, should have a right to know about it, at least in the general terms in which he has described Prism. There is no evidence at this stage that he has deliberately or directly put lives at stake. Where could such a political fugitive be safe from extradition to face trial under the 1917 Espionage Act, with a death penalty possible but a more likely sentence being many years in a U.S. supermax prison?
Hong Kong was not the best choice—its Court of Final Appeal is really a court of penultimate appeal, with decisions subject to reversal by the government in Beijing, which may find it convenient to do a deal with the U.S. Pyongyang would offer a safe sanctuary, but North Korea is a gulag. Algeria, the refuge of choice for American public enemies like Eldridge Cleaver and Timothy Leary in the 1960s, is now keen for CIA support against al Qaeda affiliates. Moscow beckons, but although Snowden’s ballerina girlfriend might get to dance at the Kirov, the Magnitsky case (Sergei Magnitsky informed on the crimes of state officials, who detained him in prison where he was killed) shows the world that Putin is no friend to whistleblowers. He would be miserable in Iceland, which is vulnerable to U.S. pressure.
Oddly enough, Snowden might be better off both legally, and in quality-of-life terms, in Europe—in Germany, say, where politicians are particularly upset that Prism subjects non-Americans to forms of surveillance that cannot be imposed on U.S. citizens without a court order. It is not widely understood that Article 10 of the European Convention (the free-speech guarantee) protects journalists much more securely than the over-vaunted First Amendment, under which the U.S. Supreme Court in Branzburg v. Hayes supinely permitted prosecutors to put journalists in jail for refusing to reveal their sources. The European Court of Human Rights, in Goodwin v. U.K., decided differently: whistleblower protection was necessary for the “watchdog” function of investigative journalism. Moreover, that court has long insisted that there must be no extradition to the U.S. when there is the remotest prospect of a death penalty or a disproportionate sentence or oppressive treatment in prison. It could well decide that the severe punishment awaiting Snowden, for making revelations of considerable interest to the European public, precludes his extradition.
The Obama administration cannot seem to grasp just how damaging the brutal treatment of Bradley Manning has appeared to European legal sensibilities. Snowden’s lawyers would need only to reference the eight months of enforced nakedness and intrusive cell surveillance as an example of inhumane treatment accorded to those charged under the 1917 Espionage Act. Moreover, the Manning prosecutors are arguing that the mere fact of communication of information to The Guardian and Der Spiegel makes him guilty of communicating it to the enemy—a claim that would amount to a prospective breach of Article 10 free-speech rights. The same argument was rejected as “oppressive” by a high-court judge in England back in 1979 in the “ABC” official secrets trial, pointing out that revealing details about GCHQ (Government Communications Headquarters) to a Time Out journalist was not the equivalent of selling it to the Russian embassy.
Snowden might, on this basis, even be safe in the U.K., despite Foreign Secretary William Hague’s aggressive defense of GCHQ, because he could not be extradited from London to the U.S. without final approval from the European Court in Strasbourg. Despite Hague’s bluster, it is hard to see how obtaining Prism data on 197 British subjects, collected by the NSA without any oversight, could square with the U.K.’s statutory data and surveillance requirements. Moreover, Hague’s Commons statement about “the strong framework of democratic accountability and oversight that governs the use of secret intelligence in the U.K.” sounds disingenuous in Strasbourg, where “democratic accountability” means authorization by independent judges, not by populist politicians who, whether Labour or Tory, rubber-stamp almost every request they receive from the spooks.
This is the fatal flaw in the British law relating to secret surveillance, from telephone tapping to GCHQ’s electronic data collection. It is authorized by party politicians who are security service patsies rather than by judges who are not. It is not, therefore, “authorized by law,” other than in the sense of a law (the Regulation of Investigatory Powers Act), which insists that only government ministers, not independent judges, can sign warrants for surveillance operations that they, in their sole and subjective discretion, think “legitimate.” Elsewhere in Europe, and in the U.S. even under the Patriot Act, warrants to intercept citizen messages must be authorized by a judge.
If Snowden is right in his allegations that the NSA spies on foreigners without needing a warrant, and transmits the information to European agencies who do not go through any authorization procedure to obtain it, then there is a gap in the legal protection for privacy in Europe. Snowden, if he flies to Bonn or Brussels or Strasbourg, might find that governments there are disinclined to hand him over to the U.S. marshals.