Hiding whistleblowers

Whistleblowers like Edward Snowden can run—but his own revelations about United States surveillance indicate that he cannot hide. People who reveal such secrets, rather than having criminal motives, act out of conscience—in his case to reveal an eavesdropping operation on such a scale that the public in his own democracy and others should have a right to know about it, at least in the general terms in which he has described Prism.

There is no evidence that he has put lives at risk. But the US reacts badly to the spilling of its secrets and goes to great lengths to punish whistleblowers. Where could a US whistleblower be safe from extradition and the ensuing trial under the 1917 Espionage Act, from which might follow a long stint in a US “supermax” prison—possibly even the death penalty?

Hong Kong, where Snowden says he will resist extradition, is not ideal—its “Court of Final Appeal” is really a court of penultimate appeal, with decisions subject to reversal by Beijing, which may find it convenient to deal with the US. Pyongyang would offer safety, but North Korea is a gulag. Algeria, the refuge of choice for American public enemies like Eldridge Cleaver and Timothy Leary in the 60s and 70s, wants CIA support against al Qaeda affiliates. Moscow beckons, but the Magnitsky case (Sergei Magnitsky informed on the crimes of state officials, for which he was detained in prison, where he was killed) shows that Putin is no friend to whistleblowers. Iceland is vulnerable to US pressure.

A fugitive might be better off, both legally and in quality-of-life terms, in Europe—in Germany, say, where politicians are upset that Prism subjects non-Americans to forms of surveillance that cannot be imposed on US citizens without a court order. Article 10 of the European Convention on Human Rights protects journalists much more securely than the over-vaunted First Amendment, under which prosecutors can put journalists in jail for refusing to reveal their sources. The European Court of Human Rights holds that whistleblower protection is necessary for the “watchdog” function of investigative journalism. Moreover, that court has long insisted that there must be no extradition to the US when there is the remotest prospect of a death penalty, or else if the likely punishment does not fit the crime or involves inhumane treatment. It could decide that the severe sentence awaiting a whistleblower, for making revelations of interest to the European public, precludes extradition.

The Obama administration does not seem to grasp the damage done by its brutal treatment of Bradley Manning, the US army whistleblower. European lawyers would only need to instance the eight months of nakedness and intrusive cell surveillance suffered by Manning as an example of inhumane treatment accorded to those charged under the 1917 Espionage Act to make extradition unlikely. Moreover, the Manning prosecutors argue that the mere fact of communication of information to the Guardian and Der Spiegel makes him guilty of communicating it to the enemy, a claim that would breach Article 10. The same argument was rejected as “oppressive” by a High Court judge in England during a 1978 “official secrets trial,” pointing out that revealing details about GCHQ to a Time Out journalist was not the equivalent of selling it to the Russian embassy.

A whistleblower might, on this basis, even be safe in the UK, because he or she could not be extradited from London without final approval from Strasbourg, which was the problem with Abu Qatada. In Snowden’s case, it is hard to see how the supposed obtaining by GCHQ of 197 Prism data reports on British subjects, collected by the NSA without any oversight, could square with the UK’s statutory data and surveillance requirements. Moreover, William Hague’s Commons statement about “the strong framework of democratic accountability and oversight that governs the use of secret intelligence in the UK” sounds disingenuous in Strasbourg, where “democratic accountability” means authorisation by independent judges, not by populist politicians who, whether Labour or Tory, rubber-stamp most of the spooks’ requests.

This is the fatal flaw in the British law on secret surveillance, from telephone tapping to GCHQ’s electronic data collection. It is authorised by politicians who are security service patsies, rather than judges who are not. It is not, therefore, “authorised by law,” other than in the sense of a law (the Regulation of Investigatory Powers Act) which insists that only government ministers, not independent judges, can sign warrants for surveillance operations. Elsewhere in Europe, and even in the US under the Patriot Act, warrants to intercept citizen messages must be authorised by a judge.

If Snowden’s allegations are true and the NSA spies on foreigners without needing a warrant, and transmits the information to European agencies who do not go through any authorisation procedure to obtain it, then there is a gap in the legal protection for privacy in Europe. On this basis, intelligence whistleblowers who fly to Bonn or Brussels or Strasbourg might find a disinclination on the part of the authorities to hand them over to the US Marshals.