Has the US become the type of nation from which you have to seek asylum?

June 9, 2013

The whistleblower who disclosed classified documents regarding NSA surveillance to The Washington Post and the Guardian has gone public. He is Edward Snowden, 29, an employee of defense contractor Booz Allen Hamilton.

Edward Snowden (The Guardian)
Edward Snowden (The Guardian)

Rather than face charges in the United States, Snowden has fled to Hong Kong. He plans to seek asylum in a nation with a strong civil liberties record, such as Iceland.

Americans are familiar with stories of dissidents fleeing repressive regimes such as those in China or Iran and seeking asylum in the United States. Snowden is in the opposite position. He's an American leaving the land of his birth because he fears persecution.

Four decades ago, Daniel Ellsberg surrendered to federal authorities to face charges of violating the Espionage Act. During his trial, he was allowed to go free on bail, giving him a chance to explain his actions to the media. His case was eventually thrown out after it was revealed that the government had wiretapped him illegally.

Bradley Manning, a soldier who released classified documents to WikiLeaks in 2010, has had a very different experience. Manning was held for three years without trial, including 11 months when he was held in de facto solitary confinement. During some of this period, he was forced to sleep naked at night, allegedly as a way to prevent him from committing suicide. The United Nations' special rapporteur on torture has condemned this as "cruel, inhuman and degrading treatment in violation of Article 16 of the convention against torture."

Ellsberg has argued that this degrading treatment alone should be grounds for dismissing the charges against Manning. Instead, the government has sought the harshest possible sentence. Even after Manning pleaded guilty to charges that could put him in prison for 20 years, the government has still pushed forward with additional charges, including "aiding the enemy" and violating the Espionage Act, that were intended to be used against foreign spies, not whistleblowers.

The civilian whistleblowers targeted by the Obama administration haven't received treatment as harsh as Manning's. But it's telling that in none of their cases have the courts reached the legal and constitutional merits. The government's strategy, in leak cases and many others, is to seek the maximum possible charges and then "plea bargain" down to a sentence the government considers more reasonable.

For example, John Kiriakou, who blew the whistle on torture by the CIA, was charged with five counts, each of which carries a maximum sentence of five to 10 years. With those harsh penalties hanging over his head, Kiriakou waived his right to a trial and accepted a sentence of 30 months in prison. Shamai Leibowitz, another leaker, accepted a 20-month sentence under similar circumstances. Another whistleblower had his case thrown out, and two others still have their cases pending.

If Snowden had chosen to stay in the United States, he would have faced a stark choice: accept a multi-year prison sentence for actions he believed to be in the public interest or go to trial and risk decades in prison if the courts were not persuaded by his legal and constitutional arguments. The American activist Aaron Swartz was facing exactly that choice when he committed suicide in January.

Because of the government's misconduct in the Ellsberg case, the courts never reached the legal and constitutional merits of prosecuting a whistleblower under the Espionage Act. But as he was going to trial, he would have had reason to be optimistic that the courts would see things his way. The Supreme Court had declared warrantless wiretapping unconstitutional in 1967 and refused to block publication of the Pentagon Papers in 1971.

The current Supreme Court is less sympathetic to civil liberties. For example, earlier this year, the justices threw out a constitutional challenge to the FISA Amendments Act because the plaintiffs could not prove that they had personally been targets of surveillance. Because of the documents Snowden released, we now know that the FISA Amendments Act is the basis for the NSA's PRISM program.

If Snowden had surrendered himself to U.S. authorities, he almost certainly would have faced charges that carry penalties of decades in prison. He might have rationally feared being subject to years of pretrial detention and the kind of degrading treatment Manning faced. And if he had chosen to fight the charges, he would have risked spending decades in prison if he lost.

There's no question that the United States has stronger protections for free speech and the rule of law than repressive regimes like China or Iran. But it's also clear that our courts defend constitutional rights less zealously today than they did in Ellsberg's day. Snowden wasn't crazy to question whether he'd be treated fairly by the American justice system.

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Neil Irwin · June 9, 2013