Edward Snowden, blower of the biggest whistle of the century so far, is holed up in Hong Kong where he’s investigating his options for asylum, lawyers in tow. It’s not such an easy process, explains SIMON ALLISON, although Snowden might have it easier than most.
Americans don’t, as a rule, apply for asylum in Hong Kong. In fact, Americans don’t really apply for asylum anywhere, coming as they do from a developed country with a generally healthy respect for the rule of law, the justice system and the principle of non-discrimination (Canada is an exception to this rule; it continues to be the favoured destination for conscientious objectors trying to avoid fighting America’s wars).
Thing is, although every person has the right to apply for asylum, not just anyone can be a refugee. You can’t just rock up in a country with a long story about abuse, torture and discrimination and expect to be allowed to stay.
That’s not how it works.
To actually acquire refugee status, you have to prove to the determining body – usually the country’s government to which you have fled, or the local UNHCR office – that you meet one of the internationally-agreed grounds for granting refugee status. These are: persecution on the basis of race, religion, nationality, ethnicity, political opinion, membership of a political social group. Applicants must also show that their own governments are either incapable or unwilling to provide protection from this persecution.
This isn’t easy to prove. If you really have fled, you’ve probably have left behind the necessary documentation, assuming there was any; or the scars might have already healed. And it takes time, many years in some places with a high concentration of asylum seekers – places like the UK, South Africa and Hong Kong. The wheels of bureaucracy turn slowly, even with the best will in the world, and too often authorities don’t offer anything close to that, treating asylum seekers with suspicion, viewing them as a nuisance or even a threat.
In the meantime, in Hong Kong at least, “aslyum seekers often arrive penniless, traumatised and are thrown into a confusing environment with massive language barriers and a complex refugee status determination system that sometimes make it difficult for their claims to be properly heard,” said Aleta Miller, executive director for the Hong Kong Refugee Advice Centre, the only provider of legal aid to refugees in Hong Kong (full disclosure: my wife works for this organisation). Once they’ve made a claim, asylum seekers are given HK$1,200 (R1,570) per month on rent (almost nothing in a city with some of the highest rents in the world) and provided with meagre food handouts. They aren’t allowed to work, and risk jail terms if they do. This forces most into the margins of society – some pick up illegal, below-minimum-wage jobs, and almost all strain to maintain their dignity in the face of endemic, institutionalised poverty.
This won’t be Edward Snowden’s fate.
Snowden, in case you’ve forgotten, taught the world a few things this week. Thanks to just a handful of highly classified documents that he showed the Guardian and the Washington Post (a few court orders and a badly designed Powerpoint slide), we now know for sure – the Obama administration has even begrudgingly confirmed it – that American spies have near unfettered access to mobile phone records within America and, globally, the content of most emails, photo and video uploads, and online calls. This is thanks to a comprehensive and systematic surveillance operation that has effectively eviscerated America’s constitutionally-protected right to freedom of speech, conducted in the name of national security and given a fig leaf of legality by secret, unaccountable courts.
To some, this makes Snowden a hero. “Snowden’s whistleblowing gives us the possibility to roll back a key part of what has amounted to an ‘executive coup’ against the US constitution,” commented Daniel Ellsberg, who should know a thing or two about whistleblowing – it was his leak of the infamous Pentagon Papers which revealed that successive American presidents had lied about the reasons and scale of American involvement in Vietnam.
But others, particularly members of the American political establishment, aren’t so enthused. “He’s a traitor,” said Republican Speaker of the House John Boehner, a sentiment that appeared to have bipartisan support. “I don’t look at this as being a whistle-blower. I think it’s an act of treason,” said Democratic Senator (and chairwoman of the Senate Intelligence Committee) Dianne Feinsten. And it seems clear that America is not planning on letting Snowden’s actions go unpunished.
“If Edward Snowden did, in fact, leak the data, as he claims, the United States government must prosecute him to the fullest extent of the law and begin extradition proceedings at the earliest date,” said Representative Peter King in comments echoed by other lawmakers. “The United States must make it clear that no country should be granting this individual asylum. This is a matter of extraordinary consequence to American intelligence.”
Snowden, in other words, is on the run from American justice, and has chosen Hong Kong to make his stand (at least for now; his 90-day visa expires in mid-August, and he doesn’t have to make any decision until then). If he does decide to apply for asylum there, he will be far from a typical refugee.
For a start, he’ll have to figure out the grounds on which he seeks to make his claim. He’s got a few options, but the most obvious route would be to argue that he faces possible torture and an unfair trial should he return home. Ironically, the surveillance apparatus which he exposed is just part of a larger erosion in American civil liberties justified by the War on Terror – a trend which might provide grounds for this kind of claim. In recent years, America’s demonstrated disregard for international norms on torture (think Abu Ghraib and Guantanamo Bay) and their own fair trial and due process procedures (Guantanamo Bay again) could be the foundation of a solid argument that, when the government feels the country’s interest is at stake or has been violated, it is prepared to waive its citizens’ rights.
Another thing that distinguishes Snowden from other refugees is that he will be well-funded. He’s already wealthier than most, as his choice of hotel suggests – the Mira on Nathan Road is a top class and very expensive hotel, although it is just a few doors away from Chungking Mansions, the infamous building that hosts a large number of asylum seekers in shared rooms in dingy hostels (subsequent to the publication of his identity, Snowden has checked out of the Mira. No one’s sure where he is now). But he’s also received pledges of funding from many sources, including the non-profit Progressive Change Campaign Committee and crowd-funding campaign on Crowdtilt. This means he’s unlikely to ensure the kind of deprivation that most asylum seekers in Hong Kong go through, and he won’t lack for legal representation either.
Finally, Snowden is likely to benefit from intense international scrutiny of his case, which should guarantee that legal procedures are followed exactly and should rule out the chance of any dirty tactics (Snowden fears this. “Yes, I could be rendered by the CIA. I could have people come after me.”). By choosing Hong Kong, he’s also gambled that he can play in his favour the big power politics between the USA and China (which can legally veto any extradition from Hong Kong on grounds of foreign policy). And it’s easy to see how he might think so: what better propaganda coup could there be for China’s Communist government than to offer an American their protection from credible threats of human rights violations? Then again, it would be difficult for the Chinese leadership to break the newfound spirit of friendship that permeated the recent meeting between President Obama and Xi.
But it is a gamble. As others have pointed out, Hong Kong has long cooperated with the USA in terms of extraditing wanted men and women; and it is not quite the bastion of free speech that Snowden has held it up to be. As for its treatment of refugees, well, the Hong Kong government has a long track record of avoiding responsibility, leaving claims to be processed by UNHCR. A recent court order might force the government to take a more hands-on approach, but this could take years to implement, potentially leaving Snowden, and thousands of other asylum seekers in Hong Kong, in legal limbo. Snowden, at least, will have the resources to make sure his case is properly heard – and the world will be listening. (That, of course, in case he doesn’t try reaching Iceland, which he already mentioned could be the solution. Iceland has already shown goodwill to exiles by extending a helping hand to one Bobby Fischer, the former chess world champion and the man wanted in the US for breaking the UN sanctions against Yugoslavia in 1992. – Ed)
“Refugees are among the most invisible and marginalised people in Hong Kong,” said Miller. No matter what happens to Snowden, he’s certainly not that. DM
Photo: People rest at a waterfront in Kowloon peninsula, opposite Hong Kong island June 11, 2013. Edward Snowden, 29, a contractor at the National Security Agency who leaked details of top-secret U.S. surveillance programs dropped out of sight in Hong Kong on Monday ahead of a likely push by the U.S. government to have him sent back to the United States to face charges. REUTERS/Bobby Yip
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