There are two things Snowden has to do, legally speaking, to make a case for asylum once he's landed in the country he wants to shelter him. First, he has to prove that he meets the definition of an asylum-seeker, which likely means demonstrating that he's being persecuted either because of his political speech or because he belongs to a protected group, typically defined, for example, by race or religion. Second, he has to prove that he hasn't committed any serious non-political crimes. Given that the United States is expected to indict Snowden for leaking national security secrets, he'd have to prove that his leaks are considered a crime primarily for political reasons. If he can't prove this, he'll likely be barred from seeking asylum.
All of this might well boil down to one deceptively simple question. If he's able to get himself in front of an asylum judge in Iceland or Hong Kong or wherever he wants to end up, that court may in large part base their decision on asking, is Snowden fleeing prosecution or persecution? If the court decides that he's just trying to dodge prosecution from U.S. law enforcement for breaking the law – for committing a non-political crime – then he probably would not qualify for asylum. But if the court believes Snowden is fleeing persecution, much as the Russian dissidents or Chinese missionaries who often seek asylum in the United States, then he's got a real claim.
While Snowden could conceivably claim that whistleblowers -- as some are describing him -- are a protected social group who suffer persecution in the United States – a 2000 U.S. case, ironically, established that whistleblowers can seek asylum in the United States – there is not an international norm against the prosecution of whistleblowers as there is with members of racial or religious minorities.
"More central to Mr. Snowden's case is, does he even face persecution or is this legitimate prosecution," Karen Musalo, an expert on international and comparative asylum law who teaches at the University of California's Hastings College of Law, said. "I would put what's going to be the difficult issue more on the prosecution/persecution than is he a particular social group. These cases come up very frequently where you say, is this persecution for political opinion or is this prosecution for commission of a crime?"
Much of Snowden's fate, then, could hinge on how an asylum court abroad interprets not just his actions but those of the U.S. government. If that court decides that the U.S. efforts to arrest the high-profile leaker amount to "prosecution for commission of a crime," Musalo explained, then that court might reason, "That's not persecution on account of political opinion. He isn't being punished because he has an opinion that what the NSA did was wrong. He's being punished because he committed a crime."
Figuring out the difference can be tricky. Something that can help push a case from prosecution into persecution is the way that the government pursues it. Musalso explained that, for example, in the landmark 1990 case of Fidel Armando Toboso-Alfonso, a gay Cuban who won asylum in the United States, his case was about more than just arguing that it was wrong for Cuba to criminalize homosexuality, although this was certainly enough on its own. In addition to facing prison time for being gay, which itself would have been grounds for asylum, Toboso-Alfonso was suffering harassment and abuse by Cuban police and government officials, forced to endure humiliating and unnecessary interrogations and medical exams.
Snowden can't demonstrate that he's suffered any such persecution from the U.S. government because, in the house since he unveiled himself, he's been abroad and beyond the Obama administration's reach. His case, then, might hinge on demonstrating that he has a "well-founded fear of political persecution," as Musalo put it. But this means doing a lot more than just arguing that the U.S. law, as it's written, does not offer whistleblowers enough protections. That's a legislative problem, not deliberate persecution. While it's true that the Obama administration has, by American standards, pursued unusually aggressive cases against leakers, it might be difficult to demonstrate that this rises to the level of persecution, as defined in international law, by virtue of Obama setting a lower bar for what sorts of leak will invite arrest. (Had Snowden leaked this information during the Bush or Clinton administration, surely he would also expect arrest.)
If Snowden can argue that he has a legitimate fear that the United States will severely mistreat him, then that would help to establish the U.S. as not just prosecuting him for a crime but outright persecuting him. This, after all, is what Toboso-Alfonso did when he argued that Cuba doesn't just criminalize homosexuality but harasses and abuses them to the point of persecution. And Snowden's best case there might be the most famous national security leaker of the last 10 years, Bradley Manning.
Manning, the 24-year-old army private accused of leaking hundreds of thousands of secret U.S. documents to WikiLeaks, was kept in solitary confinement for more than eight months, stripped of his clothes, forced to change in front of guards, forbidden bedding or pillows and kept locked in his cells for 23 hours a day. His treatment has generated outrage and sympathy abroad.
Musalo, imagining the sort of case Snowden might mount based on Manning's treatment, said, "The sort of additional things that are done to [Manning], look like they are channeling the anger at him for what he did in a way that is above and beyond a legitimate prosecution of an individual." Though not taking a position herself, she speculated that a lawyer for Snowden could argue that Manning's treatment "seemed intended to isolate, stigmatize, humiliate a person" and thus may have risen to the level of persecution. Still, she added, "Really good lawyers with a lot of integrity could argue both sides [of that] with credibility." The issue, she said, "is not black and white."
In the end, though, a case as high-profile as Snowden's may come down more to politics than law. Musalo suggested that, based on her experience, Snowden should look at different countries's case law on asylum and in particular on whistleblowers, whether their extradition law has an exception for political offenses, what conventions they've signed to and how they've applied them. But he should also ask, she said, "What country wants to stand up to the U.S.?" Granting political asylum is often a matter of not just law but also foreign policy and international relations. "Although it should not be perceived this way, a grant of asylum to an individual from Country X is seen sometimes as an indictment of Country X." So who wants to stick their thumb in Uncle Sam's eye?