To be Edward Snowden is to live on an Alice in Wonderland planet that is simultaneously tiny and immense: few countries are open to you, while those that are are separated by vast forbidden airspace. President Barack Obama said that America wouldn’t “scramble jets” to nab you, but Bolivian President Evo Morales’s plane was grounded under suspicious circumstances because you were suspected to be on board. The paranoids in America and Britain are so angry at you that in tantrum-like fashion they bust the domestic partner of Glenn Greenwald, who writes about you. Russia has been generous and stalwart in granting temporary asylum, but for how much longer can the odd couple relationship of you and President Vladimir Putin last?
What Mr. Snowden desperately needs is a country that can receive him as a refugee, that has a sane legal system, and that is an easy hop from Russia. He should try Canada.
Canadians have long provided a bolt-hole for American dissidents. Thousands came during the Vietnam war and got a warm reception from Pierre Trudeau’s Liberal government. Then scores came because of the Iraq and Afghanistan wars, although Stephen Harper’s Conservative (and pro-war) government has done its best to eject them.
Yet even in this harsh climate, some of those American dissidents have brought legal challenge and staved off deportation for years. The poster boy of the American war resisters, paratrooper Jeremy Hinzman, deserted the military and fled to Canada in 2004. Today he is still here, working as a Toronto bicycle courier, raising a family and enjoying minor celebrity status. 1 The Harper government has tried doggedly to turf him, but so far Canada’s courts have not allowed it. Whether he wins or loses in the end, Mr. Hinzman will have enjoyed a decade of freedom that he otherwise would not have had.
Mr. Snowden would find Canada’s legal system similarly favorable.
Canadian refugee law is unusual. Like most countries, refugees in Canada can seek asylum on arrival, and that is the preferred way. But unlike most countries, refugees outside Canada can also seek asylum from abroad-say, from Moscow. To do that, a refugee needs five trustworthy Canadian sponsors, and patience because sponsorship applications take years. 2 Still, if Mr. Snowden can wait it out in Russia, an Abacus poll suggests no shortage of willing sponsors: 60% of Canadians consider Mr. Snowden a whistleblower, and only 23% think he should be prosecuted. 3 Those numbers would tilt even more favorably if Mr. Snowden furnished proof of the NSA snooping on Canadians’ emails and phone calls (which it almost surely is).
Nonetheless, the Harper government is unreservedly hostile to having Mr. Snowden on Canadian soil: it will do everything possible to deny him asylum. 4 Yet Canada is a country of laws, and if Mr. Snowden was willing to litigate as Mr. Hinzman has, odds are high that he cannot be deported or extradited.
The legal argument is straightforward. Refugees can be refused admissibility to Canada for reasons of criminality. But unusually, in Mr. Snowden’s case, the criminal charges levied by the US Justice Department - disclosure of classified national security information and theft - are not criminalized in Canada. 5 It is not a criminal offence in Canada to leak US-classified documents, and oftentimes not even an offence to leak Canadian-classified documents, since a 2006 Ontario court decision struck down a swathe of the secrecy law as unconstitutional. 6 Nor is it necessarily an offence in Canada to steal US government property, for whilst stealing is of course illegal, Canada’s theft statute omits the peculiar American interpretation where copying computer files without depriving the US government of possession is theft.
Simply put, the crimes America alleges are unknown in Canada’s legal system. No matter how Washington bays for Mr. Snowden’s head, if the Harper government tried to deport him as an inadmissible refugee, he could judicially review that and quite likely win. The same reasoning holds for extradition, too.
Thus in any scenario, Canadian asylum is attractive. At worst, Mr. Snowden will have to “do a Hinzman” and fight legal challenges for a decade - but that is hardly tragic because it means liberty, a work permit, freedom of expression, and time for cooler heads to prevail. At best, Mr. Snowden would win his legal challenges and become a permanent resident of Canada. Either outcome beats the alternatives.
And how should he get here? Short of waiting the years for a sponsored refugee application or bravely dog-sledding across the Arctic - for the eponymous Snowdens are famously cold-hardy Yorkshiremen - there are nonstop flights from Moscow to Toronto, which cross only Scandinavian airspace. It is exceedingly doubtful that Washington could ground a commercial flight, whether by suasion or scrambling jets. 7 Doing so clearly violates the Chicago Convention on International Civil Aviation, and if anyone in the world reveres international law too much for that, it is the Scandinavians.
Does all this amount to unseemly legal hacking? To some it will seem so. But hacking is often what lawyers do: Apple and Google hacked their way around the world’s tax statutes, as did America’s NSA and Britain’s GCHQ around the world’s privacy laws, lawfully it is said. Can there be a logical, principled reason why self-interested, lawful avoidance is fair game for the powerful, but not for the persecuted? I doubt it.
6. O'Neill v. Canada (Attorney General), 2006 CanLII 35004 (ON SC). http://canlii.ca/t/1psx1
Article by Professor Amir Attaran of the Faculty of Law & Faculty of Medicine at the University of Ottawa, Canada. In February 2007, he brought forward testimony from Afghan prisoners who had been captured by Canadians and handed over to the custody of the Afghan National Army (ANA). The prisoners said they had later been abused by the ANA.
This article has been crossposted with Wikileaks Press.
November 2, 2013