A common suggestion among United States commentators has been that National Security Agency whistleblower Edward Snowden should have remained in Hawaii, allowed himself to be arrested and taken responsibility for providing information on secret surveillance programs to the press.
As Snowden travels throughout the world presumably to Ecuador, there also is a focus on what other countries are doing to the United States by not complying with requests to stop Snowden from traveling. There is no reflection on how the US is responsible for this predicament where a former contractor who forced a debate on the country’s massive surveillance apparatus is now being helped by WikiLeaks, a media organization the US has targeted, and a WikiLeaks legal team led by former Spanish judge Baltasar Garzon, who US officials fought against when he wanted to investigate President George W. Bush’s administration for committing war crimes.
Snowden has been charged with two violations of the Espionage Act, a law passed in 1917 that may have been used to suppress dissent but had never been intended to be employed as a criminal statute against leaks. He also has been charged with “theft of government property.”
People like Senator Dianne Feinstein, supreme defenders of the NSA surveillance programs Snowden exposed, said on CBS’ “Face the Nation” yesterday, “I don’t think this man is a whistleblower. Whatever his motives are — and I take him at face value — he could have stayed and faced the music. I don’t think running is a noble thought. I don’t think there`s anything noble.”
Feinstein said in the same interview she did not want to comment on whether he was a traitor or not yet she had previously called what Snowden did a “act of treason.”
Secretary of State John Kerry, who in 2004 was the Democratic Party’s presidential nominee, called Snowden a “traitor to his country.” This is the face of the government requesting his extradition, who will possibly have to negotiate with a leader of some country if the US has any hope of ever getting Snowden back to the United States.
What US government officials like Feinstein and Kerry fail to realize is many of the extradition treaties that the US has with countries they would like to return Snowden to them have exceptions for political offenses.
Georgetown University law professor Jonathan Turley said on CNN yesterday:
The fact is these are very political issues. But what you have to keep in mind is for extradition, there’s an overriding question of whether a charged crime was a political act. Most extradition, if not all extradition, demands come with claims that someone committed a crime. But the country – the host country is allowed to look at that charge and consider whether it’s political. And doesn’t help to have all these senators and members of Congress calling for this guy’s head and saying they want to catch this traitor and he should face the possible death penalty. All this hue and cry adds to this sort of political perspective of the case that is not going to help the United States, State Department or Justice Department.
US State Department officials, members of Congress and others are huffing about and denouncing how Hong Kong and Russia would not follow a treaty and return him, but, as Turley also pointed out, “The United States itself has a rather checkered history of observing international treaties. We have been accused in the drone attacks of violating national sovereignty. We were accused of violating the treaties governing torture and not prosecuting American officials responsible for the so-called torture program. So, the United States has many critics in terms of how we enforce ourselves, international law, international obligations.”
Similar to the decision to grant asylum to WikiLeaks editor-in-chief Julian Assange, the Ecuador government could find that the “foundation” of the asylum application was that Snowden was accused of committing “political offenses” and this put him in imminent danger. This could “prejudice” him and violate his rights, integrity and risk to personal safety and freedom.
Espionage Act offenses are inarguably political offenses. Officials going around talking about how he is a traitor and will be brought to justice are only making it more impossible to convince a government to send him back to the United States.
The world is likely well aware that the administration of President Barack Obama has zealously gone after national security whistleblowers. Human Rights Watch recently urged the US government to “refrain from using the US Espionage Act, with its heavy penalties, to punish those who disclose classified information to the media for the purpose of exposing government wrongdoing and unethical policies.”
“To contend that publishing classified information on the Internet proves an intent to ‘aid the enemy’ simply because the ‘enemy’ might read publicly available news, as the government has done in the prosecution of the US soldier Bradley Manning, subverts freedom of speech and the public’s right to information that can be essential to protect human rights and democratic accountability,” the human rights organization declared.
However, despite criticism for prosecuting whistleblowers as spies and pursuing a record number of leakers by charging them with violating the Espionage Act, the Obama Justice Department still went ahead and slapped him with espionage charges
Snowden told The Guardian‘s Glenn Greenwald in the interview where he revealed he was the source of disclosures published by the media organization that he expected the “US government to attempt to use all its weight to punish him. ‘I am not afraid,” he said calmly, ‘because this is the choice I’ve made.’”
He knew the US government would launch an investigation and predicted they would say he had “broken the Espionage Act” and “helped” America’s enemies. But he also contended “that can be used against anyone who points out how massive and invasive the system has become.”
During an online chat at The Guardian, he commented on Obama’s war on whistleblowers:
Binney, Drake, Kiriakou, and Manning are all examples of how overly-harsh responses to public-interest whistle-blowing only escalate the scale, scope, and skill involved in future disclosures. Citizens with a conscience are not going to ignore wrong-doing simply because they’ll be destroyed for it: the conscience forbids it. Instead, these draconian responses simply build better whistleblowers. If the Obama administration responds with an even harsher hand against me, they can be assured that they’ll soon find themselves facing an equally harsh public response. [Note: Bill Binney and Thomas Drake are both NSA whistleblowers. John Kiriakou is a CIA whistleblower serving a 30-month jail sentence.]
Snowden fled the country because he wanted desperately to engage in his act of conscience but avoid what all four of those above-mentioned men have experienced.
If the US government did not want to be in a situation where it was chasing Snowden around the world, it should not have allowed the Marines to unlawfully punish Manning in conditions of solitary confinement while he was imprisoned at Quantico. It should not have put Kiriakou in jail for 30 months when he has a wife and five children and nothing he did caused any harm that US officials were willing to openly discuss with the public. It should not have pursued Drake as if he was an enemy of the state and, when he went through proper channels, tolerated an inspector general providing his name (and the name of Binney and two other NSA whistleblowers) to the Justice Department for possible prosecution in a leak investigation.
Whistleblowers escaping the United States to inform US citizens of what their government is doing in the shadows is becoming the new normal, and, without question, the US government bears responsibility.