Gimme shelter: international political asylum in the information age.

• Author: Stafford, Jacob

Abstract

On June 5, 2013, an article in the Guardian revealed highly classified information about surveillance operations being performed by the United States National Security Administration (NSA). The source of this information was a former NSA contractor named Edward Snowden. After arriving in Moscow on June 23, Snowden spent the next forty days in the transit area of Sheremetyevo International Airport in a bizarre state of geopolitical purgatory. Eventually, Russia granted Snowden temporary asylum for one year, followed by a three-year residency permit. This Note uses Snowden's circumstance to consider the current state of international political asylum within the context of domestic whistleblower regimes. The technological progress of the early twenty-first century has enabled not only previously unimaginable intelligence-gathering capabilities but also the capacity to instantaneously alert countries throughout the world to the existence of such activities. This Note addresses the resulting tension by recommending a range of preventative measures and suggesting an evolution in domestic applications of international asylum law.

Table of Contents I. The Snowden Affair II. General Asylum Background A. Historical Origins of Asylum B. In Pursuit of Neutral Language III. Explanation of Current Law A. Modern International Asylum Law B. Domestic Laws and Whistleblower Protections 1. The United States 2. Russia 3. Iceland IV. Remedies for Tension Between Sovereignty and Transparency A. Preventative Measures 1. Diplomatic Disarmament 2. Unilateral Transparency B. Damage Control C. Application to Snowden I. The Snowden Affair

On June 5, 2013, the Guardian published an article under the headline, "NSA collecting phone records of millions of Verizon customers daily." (1) The article contained a copy of a classified order from the U.S. Foreign Intelligence Surveillance Court (FISA Court). (2) The order required telecommunications company Verizon Wireless to provide the National Security Agency (NSA) certain metadata from all of its customers' domestic phone calls from April 25, 2013, through July 19, 2013. (3) In the months following this disclosure, numerous articles revealing further highly classified information about the surveillance apparatus of the United States would appear in the Guardian, Der Spiegel, (4) Le Monde, (5) and other media outlets. (6)

The source of the classified national security information was a former NSA contractor named Edward Snowden. (7) On June 5, at the time the initial article was published, Snowden had already positioned himself beyond the direct reach of American authorities. (8) On June 9, from a Hong Kong hotel room, Snowden revealed his identity as the source behind the disclosure. (9) On June 21, the Washington Post reported that U.S. federal prosecutors had brought three criminal charges against Snowden: two charges under the 1917 Espionage Act and one charge of theft. (10) Fearing extradition, Snowden flew to Moscow on June 23. (11) For the next forty days, Snowden stayed in the transit area of Sheremetyevo International Airport in a bizarre state of geopolitical purgatory. (12)

During his time in both Hong Kong and the Sheremetyevo Airport, Snowden submitted applications for asylum to over twenty countries. (13) Snowden's asylum requests were largely unsuccessful. Countries either denied his claim outright or refused to consider his application on procedural grounds. (14) After June 21, the United States suspended the validity of Snowden's travel documents. (15) Although Venezuela and Nicaragua offered Snowden asylum, (16) this suspension left him unable to arrange travel to either country. Eventually, Russia granted Snowden temporary asylum for one year on August 1, 2013. (17) Russia's decision sparked disappointment and anger from the United States, (18) and further strained diplomatic relations between the two countries, which were already upset by the surveillance disclosures. (19)

Snowden's saga highlights the potential dynamics at play where an asylum applicant claims to be a political dissident. (20) Even though there is a uniform international law of asylum, standardized law does not necessarily lead to consistent application. (21) Individual countries are responsible for interpreting and applying this uniform international law within their own borders. (22) Political considerations inevitably affect asylum decisions. (23) For example, two Latin American countries with relatively adversarial relationships toward the United States offered full asylum to Snowden. (24) Because these countries perceived Snowden a dissident, offering asylum demonstrated political allegiance to his cause. (25)

Russia is a more complicated case. At the time Snowden received temporary asylum, Russia's relationship with the United States was uneasy. The two countries had, in the recent past, displayed disharmony one moment and cooperation the next. In April 2013 alone, the United States and Russia each banned from their countries eighteen of the other's citizens for alleged human rights abuses. (26) The countries later worked together through their intelligence services after the Boston Marathon bombing. (27) However, after Russia granted Snowden temporary asylum for one year on August 1, 2013, the United States-Russia relationship deteriorated to its least cooperative level in decades. (28) And so, as the one-year asylum term was set to expire on August 1, 2014, Russia's reconsideration of Snowden's status was reinforced with political considerations. (29) From this adversarial posture, Russia granted Snowden a three-year residency permit. (30)

This Note will explore international asylum law in the context of proclaimed political whistleblower Edward Snowden. Part II discusses the importance of classification to asylum considerations and provides perspectives on the origins of asylum law. Part III provides an overview of the modern state of international asylum law as well as the various asylum laws and whistleblower protections of the United States, Russia, and Iceland. Part IV offers solutions to problems presented by political whistleblowers and is broken into three parts. Subpart A argues that countries should foster more open and frequent dialogue with one another so that the type of national security operations revealed by Snowden are not necessary in the first place. Subpart A also advocates for more unilateral disclosure of information that would have previously been classified, effectively discouraging whistleblowers by controlling the dissemination of information rather than reacting to leaks. Both approaches seek to eliminate any negative or potentially illegal behavior before the point of disclosure. Subpart B recognizes that the solutions of subpart A may be inadequate and difficult to verify. To address the difficult circumstances that will nonetheless arise even if subpart A is implemented, subpart B encourages countries use state policy, as expressed through domestic whistleblower statutes, as a guidepost in domestic implementation of international asylum law. Finally, subpart C applies this Note's proposals to Snowden and concludes.

2. General Asylum Background

   Although the primary focus of this Note is the current state of international political asylum, the general notion of asylum has existed in some form for thousands of years. (31) Examining the origins and evolution of asylum law provides insight into the policy considerations built into the present international asylum regime. (32) Subpart A contextualizes the modern state of international asylum law by exploring its history, while subpart B considers the impact of whistleblower labeling.

   1. Historical Origins of Asylum

      Asylum likely arose in connection with religion in ancient civilizations. (33) Greece established a complex system of religious asylum in its temples whereby criminals and noncriminals alike could avoid apprehension by civil authorities and civilian pursuers in a place where a deity resided out of respect for, and fear of retribution from, the resident god. (34) An asylum seeker would publically perform an act of supplication in a temple, (35) and the temple priest would then determine whether to grant the supplicant asylum. (36) Foreign supplicants granted asylum had a defense to extradition, as well as a claim of immunity from pursuing authorities. (37) However, granting asylum could provoke displeasure and confrontation with the foreigner's home state. (38) Leaders were therefore forced to make practical political decisions as part of the asylum determination. 39 In order to avoid unwanted repercussions while maintaining their sovereign asylum traditions, Greece even intercepted some potentially controversial foreigners before they could reach a sanctuary to begin the asylum process. (40)

      As Rome seized power, asylum law evolved. In 22 CE, Rome significantly curtailed the Greek system by stripping most temples of their power to grant asylum. (41) Rome implemented a less liberal regime designed primarily to provide fugitives temporary reprieve from immediate violence in order to gather evidence for a trial. (42) Asylum law again evolved as the Roman Empire waned, taking on a Christian influence. (43) Roman Emperor Constantine issued the Edict of Toleration in 313 CE. (44) The Edit of Toleration allowed Christianity to exist openly and formally recognized the power of the church to grant asylum. (45) Where past asylum regimes protected innocent or unfairly targeted fugitives, the primary aim of this church asylum was to dispense divine mercy. (46)

      A far-reaching religious asylum regime persisted in most of medieval Europe until the twelfth century. (47) This regime fractured as church officials increasingly claimed immunity for their criminal activity, which strained public confidence. (48) Additionally, the rise of nation-states produced civil authorities intent on controlling their...