NSA leaker Edward Snowden gave his first public statement in weeks from the Moscow International Airport, where he remains out of reach from U.S. authorities. He has asked Russia for asylum, and is weighing asylum offers from Venezuela, Nicaragua and Bolivia. Some say legal issues may matter less in this case than diplomatic ones. We explore the growing tension between the U.S. and the countries offering Snowden refuge, as well as issues around Snowden’s legal status.

Guests

  • Michael Shifter President, Inter-American Dialogue; and Adjunct Professor, Georgetown University School of Foreign Service
  • Stephen Vladeck Professor of Law and Associate Dean for Scholarship, American University Washington College of Law

Transcript

  • 13:06:40

    MR. MARC FISHERFrom WAMU 88.5 at American University in Washington, welcome to "The Kojo Nnamdi Show," connecting your community with the world. I'm Marc Fisher of The Washington Post sitting in for Kojo. Coming up later this hour, we meet a Baltimore native who started working a funeral home at age 15. Her "Nine Years Under: A Young Life Inside an Inner City Funeral Parlor" later this hour.

  • 13:07:10

    MR. MARC FISHERBut first, Edward Snowden, the former intelligence contractor who leaked classified documents, gave his first public statement in weeks Friday. He spoke from the transit area of Moscow's international airport where he remains out of the reach of U.S. authorities.

  • 13:07:26

    MR. MARC FISHERWhat he'll do next is unclear but he's asking Russia for asylum and weighing offers by several Latin American countries to take him in. With diplomatic tensions the Snowden case is revealing some bitter attitudes towards the U.S. in places such as Venezuela and Nicaragua and Bolivia.

  • 13:07:43

    MR. MARC FISHERAnd joining us to discuss the Snowden situation, Michael Shifter is president of Inter-America Dialogue, a center focused on policy analysis exchange and communication across the Americas. And Stephen Vladeck is professor of law and associate dean for scholarship at American University.

  • 13:08:02

    MR. MARC FISHERAnd Stephen Vladeck, as you see this sort of dance of countries going on around Edward Snowden, where, if you're an American government diplomat or prosecutor who's looking at this situation, do you see a path through it? Is there in this nexus of extradition policies and just the intricacies of going after this guy, what are the American authorities looking at right now?

  • 13:08:36

    MR. STEPHEN VLADECKWell, I think it really depends on what their end game is. I mean, if the end game really is to have Edward Snowden facing serious criminal charges in the U.S. court then I think the question is how to basically make it impossible for him to end up with any kind of permanent status, be it asylum or any other form of legal status in any other country.

  • 13:08:56

    MR. STEPHEN VLADECKCan they drag out this process, can they keep him basically in this limbo, in this purgatory at the transit area of Sheremetyevo Airport until there's literally nowhere else for him to go but home? And I think, you know, that's part of what's going on behind the scenes is an effort by the U.S. to deny him access to airspace, to deny him access to other countries diplomatic processes, to put pressure on those countries to really not do anything affirmative to help Snowden leave the airport.

  • 13:09:25

    FISHERAll in the interests of waiting of him out?

  • 13:09:28

    VLADECKIn the interest of waiting of him out, in the interests of taking his options off the table. I mean, I think from the U.S. government perspective, you know, the scenario that is the most difficult for them to control, the scenario that puts them in the most difficult position at the end of the day is one where Snowden ends up in a country that is willing to and indeed does grant him asylum.

  • 13:09:48

    VLADECKBecause at that point from a legal perspective he is, and should be, untouchable and so I think the question for the U.S. is if they really want to have him in a U.S. courtroom and we can debate whether that's really what they want.

  • 13:10:01

    VLADECKI think that's what they're trying to avoid, is a scenario where he ends up in Venezuela or in some other country with asylum and therefore really beyond the legal process of international law.

  • 13:10:11

    FISHERWell, you raise an interesting point there. There's a possibility that we don't want him to stand trial in this country, why would that be?

  • 13:10:18

    VLADECKWell, you know, there's new reports this morning from Glen Greenwald that Snowden actually has more information about the NSA. If in fact he has spilled most of what is of interest, if in fact he has actually shared most of the information that is damaging to the U.S. then it may be the U.S.'s view quietly and behind the scenes that they're better off just letting the story die.

  • 13:10:40

    VLADECKThat rather than having him come to a U.S. court where you can mount a defense or he can basically put the government on trial as they put him on trial, if in fact he has nothing more to really damage the U.S. with, you know, the solution is to make it go away.

  • 13:10:53

    VLADECKIf Glen Greenwald's story this morning is right though he still has plenty of damaging information and so all the more reason for the U.S. to try to force his hand, to try to wait him out, to try to get him into a U.S. federal court.

  • 13:11:05

    FISHERYou can join our conversation by calling 1-800-433-8850 or email kojo@wamu.org. And Michael Shifter, is there, as we look at the offers of asylum from places such as Venezuela, Bolivia, Nicaragua, why are these countries eager to step into the fray and be on the wrong side of the United States?

  • 13:11:31

    MR. MICHAEL SHIFTERWell, I'm not so sure they're eager to accept Snowden. I don't they'd be too enthusiastic other than there'd be a lot of celebrations if Snowden ends up in one of these countries. But they certainly couldn't resist the temptation to needle the United States or defy the United States.

  • 13:11:47

    MR. MICHAEL SHIFTERThey are countries that are committed to curtailing the influence of the United States under Chavez, President Chavez, who died in March, he was kind of the leader of this group and they are carrying out, according to them, a revolution, a socialist revolution in their countries and of course this touched a real nerve this case.

  • 13:12:09

    MR. MICHAEL SHIFTERCertainly the Snowden case itself and then it was exacerbated considerably by not allowing, by four European countries now, allowing President Morales of Bolivia's plan to use the airspace. That was really, that really generated enormously strong reaction and then you started to get these offers for asylum.

  • 13:12:29

    FISHERSo if these countries are more interested in scoring rhetorical points against the United States than they are at actually having Edward Snowden be situated in their countries, how would they go about saying okay we didn't really mean, we want to talk about this guy but we don't really want him in our country.

  • 13:12:46

    SHIFTERWell, I think they're in a tough position. They've put themselves in a tough position and obviously if Snowden decides that he can find a way, for example, to get to Venezuela it would be very difficult for President Maduro of Venezuela to say, no now we don't want you.

  • 13:12:58

    SHIFTERThey've made the offer, the formal offer and it's hard to walk that back. But I think you have to understand that these countries despite their very strong rhetorical positions defying the United States also don't want to go too far.

  • 13:13:12

    SHIFTERThey do have trade relationships, Venezuela sells most of its oil to the United States, Nicaragua has a very strong relationship with the United States as does Bolivia and Ecuador which is a country that has been involved in this as well, they haven't offered asylum, also has trade preferences with the United States.

  • 13:13:26

    SHIFTERSo they want to go up to a point, but I don't think they want to go too far. But they've put themselves in a position where it may be difficult to walk that back.

  • 13:13:34

    FISHERSo do you think that at this point it's fair to conclude that the United States is putting considerable economic pressure on those countries to have them back away from those offers?

  • 13:13:42

    SHIFTERI think there's little question about that. I think it's been communicated in a very clear and consistent way that should these countries accept, I think already its had a cost just by making the offer, but if Snowden should end up at one of these countries I think the consequences would be clear and I have no doubt that's been communicated to all of these governments.

  • 13:14:02

    FISHERYou can join our conversation at 1-800-433-8850. Do you think Edward Snowden deserves asylum in another country, why or why not? Give us a call and let us know. Stephen Vladeck, this is a legal issue and yet it is also a diplomatic political issue and I would gather that this second of those sets of issues is really the more active and important one at this moment.

  • 13:14:27

    VLADECKBy far, I mean, the, you know, I've said before that the dirty little secret extradition law is that it really is only about five to 10 percent law and, you know, 90 to 95 percent politics. And, you know, I think Michael helped to sort of paint the picture of some of the political complications.

  • 13:14:41

    VLADECKThe other piece of it here is that, you know, we don't have an extradition treaty with Russia which is where Snowden is right now and so, you know, there are legal means of obtaining him from Russia but they all depend upon the good graces of the Russia as opposed to in a treaty context, where you could say we have a formal claim under the treaty, you know, Russia would then have to say why the treaty wouldn't apply.

  • 13:15:01

    VLADECKSo, you know, this case has been about politics from the get-go but the longer it goes on I think the more it becomes really a political issue not a legal one.

  • 13:15:11

    FISHERAnd, Michael Shifter, the Snowden case is obviously highlighting some of these negative attitudes towards the United States including specific issues with the surveillance tactics that Snowden revealed.

  • 13:15:26

    FISHERIs there anything about that surveillance policy that particularly rubs Latin American countries the wrong way? Is there something that they're reacting to here that in their sense of their relationship with the United States?

  • 13:15:40

    SHIFTERWell, I think they're reacting to what they've always reacted to, which is power and the asymmetry of power. The United States is more powerful than the other Latin American countries, that's been the source of a lot of strain and tension in the hemisphere in the past.

  • 13:15:55

    SHIFTERThe act of surveillance itself, I think, is widespread and there have been some articles that are shown that many of these Latin American governments conduct surveillance programs on their own citizens. There's no small measure of hypocrisy in this issue, there are a lot of ironies, there are a lot of double standards to go around.

  • 13:16:12

    SHIFTERBut what it does is it touches a nerve of the old complaint of Latin America that the United States using more resources and having these programs and it's unclear the nature of these programs. In some cases, for example, the United States has intelligence programs joint programs with the Columbian government.

  • 13:16:29

    SHIFTERSo there is some of the surveillance going on but it's with the consent and cooperation of the governments. One really has to pick these apart but I think it has, it is a sensitive area because the U.S. is seen as still the dominant power.

  • 13:16:41

    FISHERLet's here from Dan, in Gaithersburg. Dan, you're on the air.

  • 13:16:44

    DANYes, I'm wondering what the practical realities of asylum are. If a host country accepts him, how does support himself, what are the obligations of the country? I mean, if he ends up in a country, is he stuck there for the next 67 years of his life and what does that look like?

  • 13:17:02

    FISHERStephen Vladeck.

  • 13:17:02

    VLADECKI mean every country's different. You know, U.S. asylum law is different in important respects from British asylum laws, different from Spanish asylum law. You know, I think in Venezuela, you know, one of the issues for Snowden is that he'd have asylum but he really wouldn't have many options that, you know, there's not that much of an obligation that a government that provides asylum look after its asylees.

  • 13:17:26

    VLADECKYou know, obviously he ability to travel out of the country would be dramatically restricted because asylum does not cross boundaries. Yes, so he wouldn't be able to sort of take his asylum with him.

  • 13:17:37

    VLADECKYou know, but I think what it boils down to is I don't think for Snowden it's a problem of supporting himself. I mean, I think he's going to be able to find meaningful employment wherever he ends up, if he ends up anywhere besides a jail cell.

  • 13:17:49

    VLADECKI think the issue is much more about finding a situation where he actually has some kind of long term stability. You know, I think Michael points out quite rightly, that even these countries that are making noises about providing asylum have reasons to not necessarily be fully into that.

  • 13:18:05

    VLADECKAnd not necessarily actually want that to happen at the end of the day. That may actually have a lot to say about why we're still here and why Snowden hasn't actually gotten on one of these planes and ended up in one of these countries. That's it's a lot rhetoric at this point but actually very, very tentative action.

  • 13:18:21

    VLADECKNot because if he gets asylum, you know, the world ends but because the countries are really not sure about the pressures they've created that did it.

  • 13:18:28

    FISHERAnd is the situation further complicated by the fact that the United States has revoked Snowden's passport? We've a tweet from Peter, asking how the government's tactic of imposed statelessness is in conflict with existing treaties.

  • 13:18:43

    VLADECKSo it's important to draw what might seem like a legalistic distinction. Revoking a passport is not in fact the same thing as revoking citizenship. It's actually much harder and requires at least some judicial process usually to revoke...

  • 13:18:55

    FISHERWhich is much harder?

  • 13:18:57

    VLADECKI'm sorry, revoking citizenship is much harder and takes additional steps that aren't yet available in Snowden's case. Revoking his passport is a procedural administration determination...

  • 13:19:06

    FISHERLike a consult kind of thing?

  • 13:19:07

    VLADECKThat makes it hard for him to travel. But he is still a U.S. citizen and so the passport revocation means that he cannot leave the transit area at Sheremetyevo airport without some other country providing him with some kind of travel papers.

  • 13:19:22

    VLADECKWhether you wanted analogize it to the terminal or to Casablanca.

  • 13:19:24

    FISHERCasablanca is what comes to mind.

  • 13:19:26

    VLADECKIndeed, you know, the two permits. But, you know, so revoking the passport is really all about exerting pressure on him and on these other countries to, instead of making noise, actually step up to the plate and provide formal, legal, travel status which would have to be the first step before he could receive asylum.

  • 13:19:47

    VLADECKOther than from Russia because he's already in Russia. Russia could just grant him asylum if it chose to do so. so the passport revocation's a big step but it's not nearly the same thing as revoking his citizenship.

  • 13:19:57

    FISHERStephen Vladeck is professor of law and associate dean for scholarship at American University. We're also joined by Michael Shifter, president of Inter-American Dialogue. And Michael Shifter, Venezuela is among the countries very publicly offering Snowden asylum. But it had seemed as if the U.S. and Venezuela's new president were moving toward somewhat better relations until recently. Is this the end of that progress?

  • 13:20:21

    SHIFTERWell, it's hard to say that that's going to advance very far in this context. And of course if Snowden were to wind up in Venezuela that would be -- completely paralyze that process. It's also important to point out that not only the Secretary of State John Kerry on his first visit to Latin America met with the foreign minister of Venezuela, but certainly also President Obama's recently been to Mexico and Costa Rica. Vice-president Biden's been to Colombia recently as well.

  • 13:20:46

    SHIFTERThere's been a push by the Obama Administration via Latin America. This has kind of chilled the atmosphere a little bit. It certainly hasn't broken relations. It's important not to overstate it but even among more moderate pragmatic friendly governments to Washington, they're asking for explanations. They're asking for clarification. Certainly what happened to President Morales' plane provoked a very strong reaction. And there really isn't clarity about why that happened. And they're demanding a response. So some of this reengagement of the U.S. towards the region I think has slowed down quite a bit.

  • 13:21:20

    FISHERLet's go to Matt in Alexandria. Matt, you're on the air.

  • 13:21:24

    MATTHi. Thank you for taking my call. I'm going to try to -- I'm going off the top of my head. A lot of people have concerns about this case. Just a couple pieces of information that I've heard, and you can correct me if I'm wrong. It seems in this country you have about 1 percent of the population with a security clearance. And of that 1 percent of the population with security clearance, many of them are actual contractors that are privileged to information that common people in the country aren't privileged to, like laws of the FISA court and such things.

  • 13:21:51

    MATTSo let's take this person, this man on the run, without mentioning his name. I don't think he's interested in asylum at all. He's interested in coming back to the country. But he doesn't want to come back under espionage law, as an act that could charge him with espionage. I'm wondering how he can be charged with espionage by revealing things that are being done to the American people. I could understand if he was revealing things that we were monitoring on other countries or monitoring on foreign nationals. But how can you be charged with espionage if you're actually revealing information that affects every innocent American. And I'll let it go at that.

  • 13:22:25

    FISHERStephen Vladeck, is there such thing as domestic espionage?

  • 13:22:28

    VLADECKYou know, there is and there isn't. I mean, it's a great question. It picks up on a real problem in our laws that has not been fully and fairly addressed really since the Espionage Act was written in 1917, which is that the Espionage Act is actually not about espionage. It's about wrongfully disclosing national security information, which can mean any number of things, having nothing to do with classic James Bond style espionage.

  • 13:22:52

    FISHERSo it doesn't have to be a foreign player.

  • 13:22:53

    VLADECKIt doesn't have to be a foreign player at all. The only issue under the statute is that the person who is doing the disclosing, the stealing, the whatever has to have reason to believe -- has as to know or should know that the information if disclosed is likely to either harm the United States or benefit a foreign power. There's no intent requirement in the Espionage Act. It's just about knowledge.

  • 13:23:15

    VLADECKAnd it's complicated in Snowden's case by a 2006 Supreme Court decision that dramatically curtails the First Amendment rights of government employees. So Snowden's potential First Amendment defense, as Matt suggests, that he was just acting in the best interest of the country, that he was speaking on matters of public concern would actually have a hard time thriving in light of the Supreme Court decision Garcetti v. Ceballos.

  • 13:23:39

    VLADECKSo, you know, I think the -- there's a problem here with our laws but there's very little question that if Snowden comes back to the country he could be prosecuted under the Espionage Act. He probably would be prosecuted under the Espionage Act. And he'd be very unlikely to have a First Amendment defense simply because what he is disclosing is information that we all care about deeply. And that indeed may reveal details on improper if not unlawful government activity.

  • 13:24:05

    FISHERAnd obviously Snowden is going to -- if he ever were to be brought before a court, he would present himself as a whistleblower, as a leaker of classified information for these higher purposes. Is there any precedent in the law that would offer guidance as to the connection between that whistleblower status and his entitlement to refugee status?

  • 13:24:27

    VLADECKYou know, there's no direct connection between whistleblower and refugee status. But before we even get there, the larger problem in Snowden's case is that however much we may want to call him a whistleblower, federal law would not. Because under the various federal whistleblower laws, there's no whistleblower protection for revealing the details of a classified national security program, no matter how illegal it may or may not be. And of course, we're still debating the merits of what the NSA is doing.

  • 13:24:54

    VLADECKSo, you know, whatever descriptor we want to put on Snowden, legally the problem is that he's not a whistleblower. And so even if there were some way to tie whistle blowing to some entitlement to refugee status, in Snowden's case it wouldn't be appropriate.

  • 13:25:08

    FISHEROkay. And so as we wrap up, I need to ask you both for a prediction. Where does this guy go and, you know, where does he end up? Michael Shifter.

  • 13:25:19

    VLADECKBoy, I really have no idea. It's hard to know where this is going to end up but just, again, people ask if he's going to Latin America. I really -- I would be surprised if he does, even though he's indicated that that's, you know, a real option for him. But I just think that would just create too many problems for the country. Yeah, where the country ends up and with the region as a whole. It certainly would change the mood a little bit.

  • 13:25:47

    FISHERAnd Stephen Vladeck, is there any reason to believe that this guy will end up in the next Spielberg movie in 20 years?

  • 13:25:55

    VLADECKYou know, or at least someone will play him in that movie.

  • 13:25:57

    FISHERRight.

  • 13:25:58

    VLADECKYou know, I mean, the sad part is, you know, in the real life story that the terminal movie is based on, the guy actually languished for 20 years in the transit area in the airport or as Tom Hanks got out in something like six months. And there was no Catherine Zeta Jones character in life. I think the longer this goes on the more this becomes about the United States and Russia and nobody else. and so with every day that passes without some formal movement by Venezuela, Bolivia, whomever, what it really boils down to is, is Russia really willing to create the kind of PR fiasco it would be. Or is Snowden just going to run out of options?

  • 13:26:36

    VLADECKAnd I think that, you know, eventually it may just be that the U.S., you know, wins by attrition where he's left with no other options other than to literally stay in the international transit area indefinitely or to agree to come back to the U.S. perhaps on some kind of more favorable terms of prosecution.

  • 13:26:52

    FISHERStephen Vladeck is professor of law at American University. And Michael Shifter is president of Inter-American Dialogue. Thanks very much to both of you for being here. When we come back after a short break, a look inside the world of funeral homes with Sheri Booker, a Baltimore-based writer and poet, about her nine years in a funeral home in the inner-city. I'm Marc Fisher. This is "The Kojo Nnamdi Show."

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