When Should Whistle-Blowers Be Entitled to Asylum? Snowden and Beyond

By Mike Dorf

The news that Venezuela and Bolivia have offered Edward Snowden asylum could moot the question of whether Snowden is legally entitled to asylum under international law.  If Snowden accepts one of the offers and manages to get himself to Venezuela or Bolivia (or perhaps Nicaragua, which is also apparently toying with an asylum offer), then it will be up to the Venezuelan or Bolivian authorities to determine whether he is actually legally entitled to it--and presumably the offer of asylum reflects the conclusion by the respective governments either that Snowden is entitled to asylum or that they don't care whether he is entitled to asylum because granting it is a way to poke the Yankee imperialists in the eye (or perhaps both).

The legal issues raised by Snowden's asylum requests are quite interesting and have implications beyond his case.  Various signatories to the UN Convention and Protocol Relating to the Status of Refugees implement the treaty in slightly different ways, but American law is fairly typical.  It treats an asylum applicant as eligible if he or she establishes that he or she has a "well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion."

A Washington Post article that appeared last month does a generally excellent job of running down the arguments for and against refugee status for Snowden but, in my view, takes a wrong turn in suggesting that his best argument would develop a claim that whistleblowers count as a "particular social group" that is subject to persecution.  As I read the case law in the U.S. and elsewhere, the "particular social group" category applies to groups that are analogous to racial, religious and nationality-based groups.  For example, people fleeing countries where gay people are persecuted can argue that sexual orientation defines a particular social group.  Whistle-blowers, by contrast, are people who have engaged in a particular form of conduct, although I acknowledge that conduct can be linked to social group membership, as with sexual orientation and religion.

In any event, the better argument, it seems to me, is that prosecution for whistle-blowing is--at least sometimes--"persecution on account of . . . political opinion."  But don't take my word for it.  The U.S. Court of Appeals for the Ninth Circuit has a long line of cases--typefied by Baghdasaryan v. Holder--in which people who were persecuted by government authorities in retaliation for their exposure of government corruption or other vices were found eligible for asylum.  In none of these cases was it necessary for the asylum seeker to establish that whistle-blowers are a particular social group within the meaning of the asylum statute.

To be sure, whistle-blowers must prove that they are being persecuted, and prosecution for revelation of classified information is not per se persecution.  But distinguishing between a prosecution motivated by legitimate government interests in maintaining state secrets and one that simply seeks to retaliate against someone who has exposed wrongdoing is a normatively laden task.  Suppose that Aleksandr Solzhenitsyn faced charges in the Soviet Union for disclosing state secrets in his books on the gulag.  Even if his conduct clearly violated laws forbidding such disclosures by former prisoners, is there any doubt that he would have been entitled to refugee status if he managed to escape to the United States or some other sympathetic country?  Would the subjective intentions of Brezhnev and other Soviet officials have mattered?  Even if they really only were concerned about preserving state secrets rather than punishing Solzhenitsyn for the expression of his opinion, so what?  One might reasonably think that prosecution for revealing gross abuses of human rights is virtually per se persecution on the basis of political opinion.

And there's the rub.  To much of the world, the electronic eavesdropping programs that Snowden revealed do indeed look like a gross abuse of human rights, even if not an abuse in the same category as the Soviet gulag.  Accordingly, if one accepts the premise that Snowden brought to light some very serious government misconduct, then his asylum claim is non-frivolous.