Why Edward Snowden Is a Terrible Candidate for Asylum

Eric Posner weighs in.
July 3 2013 10:36 AM

Why Won’t Anyone Take Edward Snowden?

Because he is a terrible candidate for asylum.

In this handout photo provided by The Guardian, Edward Snowden speaks during an interview in Hong Kong.
Countries have nothing to gain from taking in Edward Snowden, who should come home to the United States.

Photo by the Guardian via Getty Images

Poor Edward Snowden! He’s willing to live nearly anywhere, but no country is willing to accept him. Not Ecuador. Not China, Russia, Norway, or Spain. Why not? Because he is a terrible candidate for asylum.

Countries pass asylum laws that offer refuge to people fleeing persecution. But these laws apply only to people who reach the countries’ territory. Thus, a Tibetan dissident can’t phone the U.S. embassy and ask for asylum. The reason for this is that there are far too many refugees for countries to absorb. More than 15 million are holed up in various camps around the world; countless others would eagerly apply for refugee status if they knew they would end up in a nice country like France or Italy rather than in a tent somewhere on the border of Afghanistan or Somalia. The rule that you must set foot on the territory of the country from which you seek asylum serves as a highly effective barrier to entry, keeping refugee flows to a manageable level. No country wants to invite a flood of applications by making an exception for Snowden.

On the merits, Snowden’s claim for asylum would not count for much in any country. Applicants for asylum typically must prove they are the victims of persecution on account of their race, ethnicity, religion, or membership in a social or political group. Frequently, these are political dissidents who are fleeing government oppression, or members of the wrong group in a civil war or ethnic conflict. They have been tortured, their families have been massacred. Snowden could be regarded as a political dissenter, but the United States is attempting to arrest him not because he holds dissenting views, but because he violated the law by disclosing information that he had sworn to keep secret. All countries have such laws; they could hardly grant asylum to an American for committing acts that they themselves would regard as crimes if committed by their own nationals.

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But countries are free to grant residence, citizenship, and other forms of protection to anyone they want, for whatever reason they want, and political reasons can play role. So even if Snowden does not qualify for asylum under the normal rules, countries could give him asylum if they wanted to. Why won’t any country do this?

The problem for Snowden is that these countries wouldn’t gain anything by giving him asylum. He has presumably already revealed everything he knows or is planning to soon. Foreign governments can benefit from these disclosures without doing anything for Snowden in return. Most spies sell their secrets to other countries rather than give them away, and bargain hard for an escape route.

Meanwhile, Snowden is not the type of person you want living in your country. Countries don’t grant citizenship or permanent residence to people they know to be felons. These people are more trouble than they’re worth. For all his IT skills, Snowden is not likely to be an appealing employee to a government or business that might otherwise be able to use them.

Snowden has few options left. Any country with an extradition treaty with the United States would probably extradite him—so his efforts to get into Germany or France are pretty pointless. Perhaps, if he reached Cuba or Bolivia, he could stay in one of those countries, in the process giving up the civil liberties that he holds so dear.

Even Snowden’s supporters realize that he must face the music. The Guardian, having wrung him dry of secrets, has solemnly declared that he should be tried albeit as a “whistleblower,” whatever that means. If he returns to the United States, prosecutors can and will charge him under whatever law he broke, and that includes the Espionage Act. He is likely to be convicted, but he has an outside chance of an embarrassing mistrial, a nullifying jury, even a sympathetic judge who goes easy on him in sentencing. Americans have a soft spot for people like Snowden. This country has a long history of unsuccessful prosecutions of dissenters, from the alleged Nazi sympathizer Elizabeth Dilling, to the Chicago Eight, to Daniel Ellsberg. Thoreau, abettors of fugitive slaves, civil rights protesters, and Vietnam-era draft dodgers are honored in historical memory. The founders themselves were traitors who made good. Today, secure but stifling in the embrace of a government that protects us from crime, terrorism, old age, and ill health by keeping track of our every move, we play Patrick Henry and enact harmless mini-rebellions by cheering on people like Snowden and Julian Assange. They defy the system without threatening it.

Eric Posner, a professor at the University of Chicago Law School, is a co-author of The Executive Unbound: After the Madisonian Republic and Climate Change Justice. Follow him on Twitter.