Europeans Urge United States to Allow Edward Snowden a Public Interest Defense
By Sandy Coliver
European parliamentarians have called on the United States to allow the national security surveillance whistleblower Edward Snowden to return home “without fear of criminal prosecution under conditions that would not allow him to raise the public interest defense.”
The call, in a vote on whisteblower protections by members of the Legal Affairs Committee of the Parliamentary Assembly of the Council of Europe (PACE), marks the first time that any inter-governmental body has called on the United States not to prosecute Snowden unless he is afforded the opportunity to raise a public interest defense.
The resolution, passed on March 18, also marked the first time that an intergovernmental body has called on governments to offer asylum to whistleblowers who face the prospect of retaliation in their home countries for disclosing information where the public interest value of the disclosure outweighs the harm.
Snowden currently faces up to 30 years’ imprisonment for offenses, including under the Espionage Act of 1917, for unauthorized communication of national defense information and theft of government property.
Although Snowden’s revelations exposed a disturbing expansion of surveillance powers by the National Security Agency, the Espionage Act does not allow the public interest in the information disclosed to be considered as a defense or in mitigation of penalty, and does not require proof of harm or intent to harm. U.S. law is significantly out of step with other democracies concerning penalties (see Penalties for Unauthorized Disclosure of National Security Related Secrets [PDF]) and available defenses (see study of 20 European countries [PDF]).
In a resolution, “Improving Protection of Whistleblowers,” the legal affairs committee made clear that whistleblower protection measures should cover all individuals who denounce wrongdoing, including those working for national security or intelligence agencies. The United States’ pursuit of espionage charges against Snowden for these important public disclosures makes the need for such protections all the more compelling and urgent.
In justifying its resolution, the legal affairs committee referenced a near-unanimous vote by the full assembly in October 2013 that endorsed the Tshwane Principles on National Security and the Right to Information, a set of 50 principles drafted by 22 NGOs and academic centers in consultation with more than 500 experts from 70 countries, including security sector professionals and government officials, led and facilitated by the Justice Initiative with the support of many other parts of the Open Society Foundations. The principles have also been endorsed by the EU Parliament and the UN, OAS, and African Commission on Human and Peoples Rights Rapporteurs on Freedom of Expression.
The committee, in addition, relied upon a meticulously researched draft report by Pieter Omtzigt (a Dutch MP). That report cites the Tshwane Principles extensively, including to support the calls on European states to “grant asylum … to whistleblowers threatened by retaliation in their home countries provided their disclosures qualify for protection under the principles”; enact whistleblower protection laws that cover “employees of national security or intelligence services as well as of private firms working in this field”; and agree on a binding treaty on whistleblower protection.
The PACE committee is influential. The full assembly, comprised of 318 parliamentarians across the political spectrum from 47 European countries representing 820 million people, is expected to endorse and reiterate the committee’s vote when it next meets in late June.
Previously, in February 2014, a committee of the European Parliament had considered such a resolution, calling for asylum and protection for Snowden should he leave Russia, but it was voted down reportedly under pressure from both the Obama administration and European governments.
Sandra Coliver is the senior managing legal officer for civic space with the Open Society Justice Initiative.