Why Edward Snowden must be the story too – The US, whistleblowers and our basic human rights

I don’t know about you, but I am getting increasingly worried about Edward Snowden these days. As he remains stuck in limbo at Moscow’s Sheremetyevo airport, the noose around him seems to be getting tighter and tighter.

On Wednesday, there was some confusion over Snowden’s status as various news agencies reported that he had been issued with temporary papers, allowing him to leave the airport and move freely around Russia. This turned out not to be true.

According to his lawyer, Snowden was never issued with any papers, although he was kindly provided with fresh shirts, pizza and books. Unsurprisingly, this caused some jeers on Twitter. Apparently, Mr Snowden will remain in the transit area of Moscow’s airport until further notice. It has also been alleged, by his lawyer, that he is considering staying in Russia indefinitely. I admit that this gave me an uneasy feeling, as it was the first of Snowden’s decisions that I could not immediately follow. I can now and it does not just make me uneasy, it gives me the creeps, although for entirely different reasons.

What creeps me out even more, is the continued pressure the US government is exercising on the world’s administrations to make sure that Snowden is returned to the States. As the Washington Post reports, “U.S. sanctions against any country offering asylum to Edward Snowden advanced in Congress [last] Thursday” – note that a bill to that effect was passed “unanimously” and authorizes “trade or other sanctions against Russia or any other country that offers asylum to Snowden”.

As if that in itself wasn’t outrageous enough, the US attorney general has written a letter to the Russian Minister of Justice, reassuring him that Snowden will not be tortured or killed if extradited. Both these developments are disturbing; I am struggling to get my head around the fact that the US can and would impose trade sanctions on any country willing to help Snowden exercise his right to seek asylum. In light of this crackdown, it is less and less unsurprising that most countries refuse to extend offers to Snowden, despite the fact that what is happening here is a violation of Article 14.1 of the Universal Declaration of Human Rights. The problem with that is of course that the Universal Declaration of Human Rights in itself is not legally binding. Rather, it is the foundation for a number of international human rights treaties, not all of which the US has even signed and ratified. Sadly, the right to asylum was not laid down in any of these treaties.

Obviously, whether or not Edward Snowden is extradited to the US depends amongst other things on the extradition treaties the US has with various countries. Currently, the US lacks such a treaty with Russia and President Putin has said that Russia will not extradite Snowden – several news agencies report that this position has not changed even after Mr Holder’s letter was received.
This should be welcome news to Lon Snowden, Edward Snowden’s father, who came out in a telephone interview with Associated Press, saying that he “thinks his […] son is better off avoiding the US if possible until an administration that respects the constitution comes into office”. This from a man who has been working tirelessly over the past weeks to find a way of ensuring that his son got a fair trial if he returned to the US. Snowden Sr. who “ha[s] lost faith in recent weeks that his son would be treated fairly by the justice department,” seems to believe that Russia is least likely to cave in to US pressure. But it that true? And even if it is, does that mean that Edward Snowden is safe in Russia? Russian officials have been quoted repeatedly as saying that President Putin has no intentions of letting the row over Snowden damage US-Russian relations further. Then just how much option is there? While Edward Snowden may be dutifully reading the Russian literature given to him by his lawyer, US and Russian intelligence services are now “in talks” over him. Just what does that mean?

I will come back to that in a minute. Before that, I would like to quickly point out two other important events this week.

1.)    US Congress voted on something called the Amash amendment last Wednesday. Proposed by Justin Amash, the amendment would have ended indiscriminate collection of phone records. The run up to the vote saw hitherto unheard of alliances across party lines in favour or disfavour of the amendment respectively. It was defeated with 717 to 705 votes. Disappointing, certainly, but still – as commentators have it – a clear signal that “people are deeply and rightly concerned about the NSA’s domestic spying program”. This is important, as it shows – much like demonstrations in Germany and New Zealand this weekend – that people are taking Snowden’s revelations seriously and that they are acting upon them.

2.)   Meanwhile, in the related case of US army whistleblower Bradley Manning prosecution and defence both gave their closing arguments, with the prosecution once again claiming that Manning’s disclosures to Wikileaks aided US enemies. Although the defence painted the opposite picture, insisting that Manning “did not know al-Qaida would see the material and did not have ‘evil intent’,” it is not looking good for the defendant. This is a case that will be decided not by a jury but by the judge alone (at Manning’s own request) – Judge Col. Denise Lind who previously refused to dismiss the charge that Manning aided the enemy. If convicted of aiding the enemy, Manning faces a lifetime in jail. This will send an important signal to other whistleblowers and brings me round to what I would like to discuss this week: the US’s response to whistleblowers, of which their treatment of Snowden is a case in point.

Now. Snowden. Much has been said about the US media obsession with his faults and personality, the questioning of his choice of destinations and his perhaps ill-phrased praise of the countries that offered him help. Certainly, the events surrounding Snowden’s flight and attempted apprehension by the Obama administration have prompted some rather ridiculous reactions. Consider for example Vladimir Putin who seized the opportunity of taking the moral high ground by saying: “Assange and Snowden consider themselves human rights activists and say they are fighting for the spread of information. Ask yourself this: should you hand these people over so they will be put in prison?” I am sure two words will suffice by way of comment: stones and glasshouse.

It has been criticized time and again that the extensive –and extended– reporting on Snowden’s asylum status has moved the focus of public attention towards Snowden himself and away from what the US government is doing. While this may be true of certain factions of the US media in particular, his revelations have still led to the above debate in Congress and discussions on global and national surveillance in much of South America, India and some of Europe. They have also prompted several law suits from Human Rights Groups in several countries, including France, the UK and the US.

In any case, culpability for the skewered focus of media reporting should hardly be laid at Snowden’s door. Snowden himself has said that he wishes the focus to be on the mass surveillance undertaken worldwide by the NSA rather than on himself. Clearly, he foresaw not only how the US government was likely to react but also how the media were likely to react.

I am not sure though in how far he expected the shocking reactions of most other western governments. As German journalist Frank Schirrmacher has put it, by refusing to stand with Edward Snowden, the world’s democracies reveal themselves to be in a deep crisis, helplessly looking on as the US casually pass over other countries’ sovereignty to violate international law. This is indicative of the other very deeply worrying aspect of this whole affair; the attitude the USA seem to have towards themselves and the rest of the world, us as citizens and our rights as both citizens and human beings. It also indicates that the balance of power has shifted so much in favour of the US that European governments not only never considered granting Edward Snowden asylum but also infringed the rights of a sovereign state when Evo Morales’ private plane had to be diverted to Austria.

Last week saw the deadline for a decision on Snowden’s asylum request come and go without a decision being made. Meanwhile, both US attorney general Eric Holder and Congress once more demonstrated how willing the US really are to lean on other governments to have Mr Snowden returned to the US so he can be put on trial for the various charges that are being laid against him (theft of government property, unauthorized communication of national defence information, wilful communication of classified communications intelligence information to an unauthorized person).

And this is precisely why Edward Snowden needs to be the story too; because the US government’s response to him, its treatment of the situation and the reaction of other governments is intimately connected to the substance of Edward Snowden’s revelations. And not just because Edward Snowden, the person, is the red thread here. It is because what Edward Snowden has revealed, amongst other things, is that in the so-called “war on terror” our rights are sacrificed to protect us from some obscure threat or faceless enemy.
One of the charges levelled against US army whistleblower Bradley Manning is that he “aided the enemy” by leaking documents and videos to WikiLeaks. The charge seems to be all the rage these days as it diverts attention neatly away from the fact that, by leaking these documents, Manning revealed that, in this day and age, when we are facing a threat that seems as undefinable as it seems omnipresent the government seems to think it is okay to curtail our rights – and to decide in secret how far they want to go with that. The potential threat of a terrorist attack has become some sort of get-out-of-jail free card for governments and a get-into-jail-immediately card for anyone who dares to shine a light on what is really going on behind the smokescreen that is called “classified information”.

So, you see, Edward Snowden’s fate needs to be discussed because what is happening to him now, and what might happen to him if he is extradited to the US, is directly connected to that other, very real and very worrying aspect of what has emerged: that our rights are at risk not (only) from terrorists but (also) from our own governments – and that it’s getting to the point where there is precious little any of us can do about it.

You might argue that we already knew that. And that it never really looked that good for Snowden. And that Snowden knew this even before he first leaked information to the Guardian and then came out as the person behind the leaks. All of this is true and I have been meaning for a while to make the point that Snowden has to be discussed along with everything else.

So, you may ask, why now? What happened last week that got me so worried? A couple of things and I am not sure that they bode well for Snowden at all. Most importantly, there was Eric Holder’s letter which was obviously trying to undermine Snowden’s request for asylum on the grounds that he might face torture or the death penalty if extradited. Russia has said repeatedly that it will “not hand anyone over”. Given the fact that Snowden was not issued with any travel documents last Wednesday, I am not sure how to read that statement. Do they mean that they will not extradite Snowden to the US no matter what happens? Or do they, in fact, mean that they will not just “hand him over” for free?

Not only has the US’s conduct over the past weeks isolated Edward Snowden in an extraterritorial area with very limited options. It also seems that Snowden is now caught in the middle of some bizarre US-Russian face-off. This could lead to several denouements, none of which look particularly promising for Snowden. As Reuter’s reports, Russian security expert Andrei Soldatov “said the talks [between Russian and US security services] may be about how to secure a promise from Snowden to stop leaking if he were granted sanctuary in Russia. ‘The United States maybe understands that they are not going to get Snowden, so my theory is that they are trying to save face and stop Snowden from publishing new exposes.’”

Snowden has been criticised repeatedly for his choice of potential safe havens and I admit that I had a bit of trouble getting to grips with his announcement that he might want to stay in Russia indefinitely; after all, Snowden previously said that he would travel on to South America. A decision to stay in Russia may mean that he will not be able to leak any further information as Vladimir Putin has made this the condition for asylum. So, why would Snowden accept a gag? Now, I am going to repeat what I wrote in my last post because this is important: “None of the three Latin American countries [Bolivia, Nicaragua and Venezuela which have offered Snowden asylum and where he had planned to travel to from Russia] can be reached by a direct commercial flight from Moscow so Snowden has requested temporary asylum in Russia until he believes he can safely reach one of them.” The Guardian’s Geoffrey Roberts makes the excellent point that Snowden might not even be safe on a commercial flight. The confusion over his papers on Wednesday, the incident with Evo Morales’ plane several weeks ago, the bill passed by Congress on Thursday not only point to the kind of unresolvable situation the US have created for him. There is also the question of what Russia’s own interests are in this and what they might do to see them met.

Unlike Lon Snowden, who has said that Russia might be “the best place to seek asylum because it was most likely to withstand US pressure,” I am not sure that this is about withstanding pressure at all. It might just be about getting the best deal. Snowden might currently be spending his time reading Russian literature that suggests he should just shut up and “submit to the powers that be” – in this case Russia. Perhaps, if Snowden is lucky, any “deal” would indeed mean a gag but no extradition for him.

Yet, should Russia decide not to stand by its word of not handing him over, then what is to stop them from apprehending him and shipping him back to the US, despite claims that he is safe while in transit at the airport?

What also upsets me deeply about this is that, should the US and Russia strike a deal of any kind, we, the public, the electorate, the people who are being spied on, the ones ready to stand with Snowden, would not be able to do very much at all, despite our best intentions. Ultimately, when our governments decide to do their thing, all we can really do is watch – such is the state of our democracy, and this is what the NSA leaks, Snowden’s treatment and the international reaction to both really reveal.

For that reason, let us look at Snowden’s situation in a little more detail.

On Friday, then, this letter. Written by the US’s attorney general Eric Holder to the Russian Minister of justice, it reassures the minister that the USA would not seek the death penalty against Edward Snowden for two reasons.

One, the charges brought against him do not carry the death penalty (that is because they do not (yet) – as Snowden feared – include the “aided the enemy” charge).

Two, even if other charges were brought forward that were subject to capital punishment (such as the “aided the enemy” charge), the US would not seek that punishment against Mr Snowden. The letter also states that Mr Snowden, should he return to the US, would not be in danger of torture, as “torture is outlawed in the US”.

Now. Pardon me, if I do not find this letter reassuring in any way.
Obviously, it doesn’t reassure Edward Snowden’s father either. Obviously, the sentiments of both Snowdens are subjective and their fears of an unfair trial, torture and death may, as Mr Holder’s letter has it, be “entirely without merit”. I do, however, suggest that we have a look at how entirely with or without merit these fears really are.

In his letter, Mr Holder states that “Mr Snowden will not be tortured [because] torture is unlawful in the United States.” Sounds fair and straightforward enough, doesn’t it? Show of hands who is fooled. Exactly. Actually, the statement is deeply worrying. Why? I will tell you.
First and foremost, there is the fact that it has to be made at all. Surely, the US being – or claiming to be – a democracy that respects human rights (a status that people like Al Gore and Jimmy Carter recently have voiced some concerns about) should not have to reassure anyone that they will give an alleged criminal a fair trial. Well, I suppose you could argue that Mr Snowden’s “casual discussion” of his potential torture has made the US government feel that they need to stress this. However, that would be failing to take into account two things:

Firstly, that there are certain people the US classifies as “unlawful combatants” for example, who are denied certain privileges, freedom from torture apparently being one of them.

Secondly, other similar cases like the one of Bradley Manning, whose treatment at the hands of the US government has just been branded “inhuman and cruel” by the UN special rapporteur on torture. Consider this carefully; this is Juan Mendez, the UN torture chief, who has conducted a 14-month investigation into Manning’s treatment, concluding that “the US military was at least culpable of cruel and inhumane treatment in keeping Manning locked up alone for 23 hours a day over an 11-month period in conditions that [Mendez] also found might have constituted torture.” The italics are mine and I am sure you get the point.

To quote the report itself:

“Mr. Manning was held in solitary confinement for twenty-three hours a day following his arrest in May 2010 in Iraq, and continuing through his transfer to the brig at Marine Corps Base Quantico. His solitary confinement -lasting about eleven months- was terminated upon his transfer from Quantico to the Joint Regional Correctional Facility at Fort Leavenworth on 20 April 2011.”

Picture this: being held in a cell on your own for 23 hours a day over a period of eleven months! This is a 6’ by 8’ (unless I get my calculations wrong this means roughly 2 by 2.5 metres) cell and Manning was “deprived of just about everything”, including his clothes, while being allowed to sleep “only when facing his lamp”. The reality of what this means in Bradley Mannings own words: ‘You could see the reflection of the reflection of the skylight if you angled your face on the cell door’. No wonder that “[i]n his report, the Special Rapporteur stresses that “solitary confinement is a harsh measure which may cause serious psychological and physiological adverse effects on individuals regardless of their specific conditions.” Moreover, “[d]epending on the specific reason for its application, conditions, length, effects and other circumstances, solitary confinement can amount to a breach of article 7 of the International Covenant on Civil and Political Rights, and to an act defined in article 1 or article 16 of the Convention against Torture.” Note that the US has ratified the International Covenant on Civil and Political Rights only with “reservations, understandings and declarations”, declaring it to be “non-self-executing” so that it “does not add anything to human rights under U.S. domestic law”.

Also, pardon me for saying so, but Mr Mendez’s verdict is only based on information that the US government provided. Tellingly, the report continues:

            “Before the transfer of Pfc Manning to Fort Leavenworth, the Special Rapporteur requested an opportunity to interview him in order to ascertain the precise conditions of his detention. The US Government authorized the visit but ascertained that it could not ensure that the conversation would not be monitored. Since a non-private conversation with an inmate would violate the terms of reference applied universally in fact-finding by Special Procedures, the Special Rapporteur had to decline the invitation.”

Now, I am sure I do not have to comment further on how telling it is that no private conversation was possible – this is, by the way, the only way the Special Rapporteur can work; out of earshot of the suspected torturers. Hence, his need to “decline the invitation.”

So, here is a man held in isolation for almost a year, barred from speaking to pretty much anyone and at that point in time not even proven guilty of any crime. Rather, the report states that when asked on whose authority Mr Manning was held in solitary confinement, “the government responded that the prison rules authorized the brig commander to impose it on account of the seriousness of the offense for which he would eventually be charged.” Again, my italics.

Obviously, imposing punishment based on the seriousness of an offence with which someone will be charged in the future is absurd. And it gets weirder: the above statement is at odds with the answer the US government gave to the question of why Manning was held in solitary confinement in the first place. They said it happened for his own protection. To summarize: the brig commander has the authority “to impose [solitary confinement] on account of the seriousness of the offense for which [Manning] would eventually be charged”, but that’s not why he did it. Rather, “his regimen was not “solitary confinement” [at all] but “prevention of harm watch”. Interestingly, the US government then failed to specify what “harm” Manning needed to be protected from. (It emerged during the trial later on that apparently he needed to be protected both from other inmates and from harming himself. Yet the behaviourisms he displayed that led to the conclusion that he may be suicidal were probably caused by solitary confinement in the first place).

Now, excuse me, but can I just ask, what’s that again that the Universal Declaration of Human Rights says about being “subjected[ed] to torture or to cruel, inhuman or degrading treatment or punishment.”? Oh, that’s right: that no one shall be subjected to them! Or, to say it in the words of Mr Mendez, the US’s treatment of Bradley Manning constitutes “a violation of [Mr Manning’s] right to physical and psychological integrity as well as of his presumption of innocence”. ‘nuff said? Sorry but no. I suggest you read for yourselves those parts of Mr Mendez’s report pertaining not only to his (repeatedly thwarted) attempts at meeting Mr Manning in private but also to the alleged appalling (read: solitary confinement, torture) ill-treatment of “16 gay and transgender individuals […] while in detention in U.S. immigration facilities. Furthermore, there was reportedly a lack of protection from persecution and respect for the principle of non-refoulement for those who risk torture if returned to their home countries on account of their sexual orientation, gender identity or HIV status”.

Yes, I know, I have said it myself; the Universal Declaration of Human Rights is not a legally binding document, and neither is the Special Rapporteur’s report. More than that, the US has not even ratified all international human rights treaties and ratified others with reservations. In light of this, some questions: if everyone seems able to make up their own minds about whether or not they choose to obey international treaties designed to protect human rights, doesn’t that erode the treaties? What are those treaties actually for? Oh, that’s right: for bashing other governments about violating human rights while taking a much more liberal stance to your own observations of them – isn’t that right, Mr Kerry, Mr Putin?

 “Mr Snowden will not be tortured. Torture is unlawful in the US,” writes Mr Holder. Let’s assume then, just for the sake of the argument, that the US government has no idea that unlawful practises are being committed within its territory or in its various holding facilities (after all, the failure to ratify the Optional Protocol to the UN Convention Against Torture means that US prisons and miscellaneous are exempt from “a system of regular visits undertaken by independent international and national bodies to places where people are deprived of their liberty, in order to prevent torture and other cruel, inhuman or degrading treatment or punishment”).

So, let’s say that what’s going on behind US prison walls is so secret that not even the US government knows about it. Well, sorry, but in that case the government is not only failing to protect its own citizens but also those seeking protection from prosecution in asylum facilities. Obviously, it is highly unlikely pretty damn impossible that they don’t know about this in the first place – by now, we have all heard about Guantanamo, right? If you haven’t, I suggest you read up on it. After all, this is the prison President Obama, despite promises to the contrary, has still failed to close.

So, it’s probably safe to assume that the US government knows perfectly well what is going on and is thus either conducting unlawful practises itself or endorsing them. Note that what Mr Holder is not saying is that “Mr Snowden will not be tortured [because] torture is unlawful in the US” and no one is currently being tortured in the US or has been for a long time. The reason he cannot say that, of course, is that that would make him, at worst, a liar, or, at best, terrifyingly ignorant – you could call it “dangerously naïve”.

Now, I am sure that a government that allows for “various violations of the provisions under the Convention against Torture” (or at least the evidence strongly suggest this) will grant Edward Snowden a fair trial. I am also sure that they will protect him from any physical and psychological harm by placing him in solitary confinement under “prevention of harm watch”.

I suppose you could argue that Edward Snowden’s case is very different from Bradley Manning’s or in fact the people held in US immigration facilities because one, he is a civilian, not a Private First Class in the US military and two, he is a US citizen. I suppose you could quote that passage in Mr Holder’s letter which reads that “Mr Snowden would promptly be brought before a civilian court” and that he “would receive all the protections that US law provides persons charged with federal criminal offences […] In particular, Mr Snowden would be appointed (or, if he chose so, could retain) counsel. Any questioning of Mr Snowden could be conducted only with his consent: his participation would be entirely voluntary, and his legal counsel would be present should he wish it. Mr Snowden would have the right to a public jury trial; he would have the right to testify if he wished to do so; and the United States would have to prove his guilt beyond reasonable doubt to a unanimous jury. If convicted, Mr Snowden would have the right to appeal […].

Doesn’t sound so bad, eh? Now, let’s see what this could potentially mean.

Scenario one: The Face-Value-Scenario

In which I am taking everything Mr Holder writes at face-value and a former NSA-contractor turned whistleblower returns to the US to face charges brought against him by the US government. In this scenario, Mr Snowden “is brought promptly before a civilian court” and “receive[s] all the protection that US law provides persons charged with federal criminal offences”.

So, assuming that the law – and hence the US government – honours and protects Mr Snowden’s rights to a fair trial, freedom of speech, prohibition of torture or degrading treatment and no punishment without law, he promptly receives a public trial “at which he has had all the guarantees necessary for his defence” (in accordance with article 11.1 of the Declaration of Human Rights). Following a lengthy and thorough examination of the facts, the jury rules in favour of Mr Snowden, applauds him as an advocate of civil rights and clears him of all charges, sending an unprecedented signal to him and all future whisteblowers that the exposure of unlawful practices by a government does not constitute an act of treason but of reason, conscience and good judgement.

He is then awarded the Nobel Peace Prize (jointly with Bradley Manning who, by the way, has actually been nominated) to the sound of those media hacks who denounced him eating their words, while a humbled US government launches a full inquiry into the potentially unlawful practices of its foreign intelligence agency and the alleged human rights abuses committed in its prison facilities, while also finally fulfilling its promise of closing Guantanamo Bay. Russia and the US kiss and make up and we all live happily ever after.

I am sure my sarcastic tone and hyperbolic vision of world unanimity gives away just how likely I believe the “fair trial”-scenario to be: about one in a gazillion aka when hell freezes over. Okay, to be fair, my imagination ran away with me a little bit but you are welcome to leave out the second paragraph and correct the likelihood to one in a billion aka when a nice and pleasant breeze relieves the heat of purgatory.

To be fair, the trial scenario could play out differently and still not end in a conviction for Snowden. Consider the case of Thomas Drake. Like Drake, Snowden could be arrested and charged. All charges would later be dropped “in return for [Snowden’s] agreement to plead guilty to [some] misdemeanour [or other]. Snowden [might be] sentenced to one year of probation and community service,” and the US government might publicly state “that the prosecution of [Edward Snowden] was not intended to deter government employees from reporting problems.” They might say that “Whistle-blowers are the key to many, many department investigations — we don’t retaliate against them, we encourage them.”

Yeah, right. Again, not likely. While this is what happened in Thomas Drake’s case (and I do not mean in any way to mitigate the immense difficulties the whole affair caused him), the charges brought against him were not actually as serious as the ones likely to be brought against Snowden – most notably the “aiding the enemy” charge.

Now, that charge is in itself noteworthy for its deeply worrying implications. As was argued by the defence in the Bradley Manning trial “by equating the transfer of classified materials to the media with ‘aiding the enemy’ – essentially treason – the government was creating a framework of intimidation for “people for getting information out to the press, to basically put . . . a hammer down on any whistleblower.” 

Note that, in this case the government “claims that Manning “indirectly” aided Al Qaeda by causing intelligence information to be posted on WikiLeaks’ website, knowing that Al Qaeda has access to the internet”. Bravo! So, supposing Al Qaeda didn’t have access to the internet (stranger things have happened) – would that then be enough for the “aided the enemy” charge to be thrown out? Or would it suffice for Al Qaeda to have access to the international press which picked up the story and multiplied it? Is giving information to the press (as whistleblowers do and as Edward Snowden has done) “indirectly aiding the enemy” too and, by the same token, did the journalists that multiplied the story also indirectly aid the enemy? Yes, that’s precisely what it means. Making any kind of potentially useful information available publicly could be seen as “indirectly aiding the enemy”. If you think it through, you can see the effect it could have not only on whistleblowers but also on the press itself.

As I’ve said before, Holder’s letter does not actually list “aiding the enemy” amongst the charges made against Edward Snowden. It does, however, refer to “additional, death penalty-eligible crimes” (I love that wording: the death penalty! Are you eligible?) with which Snowden might be charged. Note that “aiding the enemy” is the kind of charge that makes you eligible for the death penalty.

If you think my view too bleak, I have another scenario for you: Snowden is prosecuted under the 1917 Espionage Act for releasing classified information to the public. But the case is thrown out because it is found that the government itself has engaged in illegal wiretapping and other misconduct (dragnet collection of metadata, retention of user data, emails, phone calls, detaining prisoners without charge, torture…). Again, this has actually happened. In 1971, Daniel Ellsberg leaked the Pentagon Papers to a reporter of the NY Times and became the first person to be prosecuted under the Espionage Act. Ellsberg’s “case was thrown out after the judge learned that the government had engaged in the illegal wiretapping of Ellsberg and other misconduct”.

Sorry to say that this scenario is, again, unlikely. Consider that Ellsberg believes that had he been tried under today’s administration, it would have meant a life sentence. Further note that “[t]oday, Ellsberg is one of the most outspoken critics of the Obama administration’s prosecution of leakers,” that he is publicly supporting both Bradley Manning and Edward Snowden, arguing “that there is little difference between what Manning did in 2010 and what [Ellsberg] did four decades earlier”.

So, what is the difference between then and now? You could argue that the difference between Manning and Ellsberg is that Ellsberg went to the NY times, while Manning went to Wikileaks which may not be considered a respectable news outlet by the US government. Since Snowden went to the Guardian, this objection doesn’t apply to him. Cue Ellsberg who points out that: “Everything that Richard Nixon did to me, for which he faced impeachment and prosecution, which led to his resignation, is now legal under the Patriot Act, the FISA [Foreign Intelligence Surveillance Act] amendment act, the National Defense Authorization Act.” That being the case, I don’t have much faith that any judge would dismiss charges against Snowden on grounds of government misconduct – it’s all legal these days and even if it isn’t, it’s so classified that you cannot prove it to be otherwise, that’s the FISC for you. Also, given Bradley Manning’s treatment before his trial, his case should have been thrown out too – only it wasn’t. Therefore, let me propose a different scenario for Edward Snowden’s return to the US.

Scenario two: the Reading-between-the-lines-I-don’t-believe-a-word-you-say-scenario

In which the same former NSA-contractor turned whistleblower returns to the US to face charges brought against him the US government. Upon giving himself up to representatives of the US government (or being given up to them), Edward Snowden is dragged off back to the US and immediately incarcerated. By the time he is tried by a jury three years later, Snowden has spent most of his imprisonment in solitary confinement being treated in ways that are “condemned by the UN and Nobel laureates (and you can guess which of the laureates did not partake of the condemning) as tantamount to torture.” This is because the US says Snowden stole a trove of sensitive documents and sent them to the Guardian, thereby “aiding the enemy”. Obviously, what Snowden actually did was to document the extend of data collection done by the NSA and several other foreign intelligence agencies, exposing an infringement of people’s right to privacy that many agree should be, if not condemned, at least discussed in public. But the Obama administration has made it perfectly clear that it sees nothing laudable or heroic in Mr Snowden’s actions. Rather, it views them as treasonous. And thus it retaliates.

For 23 hours a day over a period just short of a year, Edward Snowden is held in solitary confinement in an 8’ (2.5m) by 8’ (2.5m) by 8’ (2.5m) cell, deprived of clothes, sleep, company. Requests by the UN Special Rapporteur for a confidential meeting with Snowden are repeatedly denied or ignored entirely. Upon the start of his trial three years later, many people do not even realize that the trial is happening, because three years “is plenty of time for the public to mistakenly assume there was already a court decision and sentencing”. Three years is also, importantly, plenty of time for the discussion that Edward Snowden’s leaks have started to die down. As you may have guessed, this, too, has happened. The trial is happening right now, the verdict is due today (Tuesday, 30th June at 13.00 EST – that’s 17.00 GMT to you) and the person being tried is Bradley Manning.

So, this week, as Snowden had hoped, people have been talking substance. For them and for many others, “Edward Snowden isn’t the story” anymore. They and he are right that we should not lose track of what the real issue is, of what he has revealed.

And yet I can only repeat what I have been saying all along; that we must discuss Snowden as well. No, not his character, certainly not how heartbroken his cute girlfriend is. Instead, let us discuss what both the NSA surveillance and the persecution of Edward Snowden glaringly reveal. That our rights are being eroded, that our governments seem helpless or careless when it comes to standing up for us, for protecting these basic rights. There seems to be an idea going round that somehow, a human being – by committing certain actions – can forfeit the rights laid down in the Universal Declaration of Human Rights and international human rights treaties. This is wrong. These rights cannot be forfeit. Not ever. Not. Under. Any. Circumstance. Some rights are fundamental and inviolate. Edward Snowden believes this; he gave up his life to protect these rights. Yet in the eyes of the powers that be, this is precisely what seems to have lost him his own rights.

So then we must watch. We must follow what happens to Edward Snowden just as closely as we must follow the actions of our governments. 

Let us not forget what the US government’s persecution of whistleblowers and other governments’ failure to stand with them says about the erosion of values like freedom of speech, freedom of the press, right to a fair trial, right to freedom from torture and degrading treatment, right to seek asylum, right to life…. Have a look at the Universal Declaration of Human Rights – a declaration the US is quick to cite when it comes to rebuking other nations for their human rights violations – and ask yourself how many of the rights you believe are being applied to whistleblowers in the US.

Then look at Edward Snowden, look at Bradley Manning, look long and hard and do not let them out of your sight. I might even be so bold as to suggest that we shine a spotlight on them by awarding them the Nobel Peace Prize in the hope that this will make it much harder for laureate Barack Obama to persecute fellow laureates, and for the EU (another laureate) to steer clear of the issue without looking at least a little bit dodgy. The lack of attention paid to the Manning trial has been criticised by many – and for good reason. Do not let the same happen with Edward Snowden.

Bear in mind that the NSA “in internal documents […] identifies terrorists and hackers as being particularly threatening. Even more dangerous, however, the documents say, is if an insider decides to blow the whistle. An insider like Edward […] Snowden.”

I ask you, thus, to look at Snowden and talk – or even better: shout – about him, about Manning, about the NSA, GSHQ, Prism, Tempora, Boundless informant, democracy, government, human rights. Surely, we cannot be too busy or too uninterested to discuss more than one topic at a time? Discuss Snowden’s revelations and their implications but discuss Snowden too.  It’s not just his, it’s all our lives, all our rights at stake.


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