Snowden and the stateless man

Michael J. Ellis | Lawyer

When Edward Snowden fled the US in late May, the fugitive leaker imagined he would by now be comfortably ensconced in Iceland, bastion of Internet freedom. Instead, the former National Security Agency contractor spent more than a month in international no-man’s land — the “transit zone” of the Moscow’s Sheremetyevo Airport — before receiving temporary asylum in Russia. Snowden, who dreamed of a world without secrets or borders, now finds himself at the mercy of a traditional superpower whose leader has insisted that the leaks must stop.

Snowden’s transition from Internet freedom fighter to ward of the Kremlin illustrates the surprising resilience of the international state system that the former contractor sought to dismantle. The self-styled “whistleblower” struck that system at its core: A state’s ability to protect its internal communications is a necessary precursor to conducting meaningful diplomacy. Snowden revealed American surveillance programs because electronic eavesdropping is “wrong no matter the target.” Indeed, he believes the NSA lacks authority to conduct any suspicionless surveillance on anyone, including foreigners on foreign soil who wish the US ill.

Unsurprisingly, Julian Assange and Wikileaks came to Snowden’s aid. An organization dedicated to exposing states’ secrets, Wikileaks belongs to no state at all. Its core idea, that “transparency creates a better society for all people,” proposes to do away with states as building blocks of international order. In this vision, the enlightened few must monitor their own and each other’s governments. Wikileaks aspires to become the indispensable truth-teller of a secretless utopia.

After Snowden surfaced, Assange chartered a plane to ferry the former contractor to Iceland. Yet Snowden never made it anywhere near Reykjavik. Next up was Ecuador, whose London embassy shelters Assange. Quito repudiated its free trade treaty with the US, its largest trading partner by a factor of three, as the anticipated price of hosting Snowden. Still, Snowden remained in Moscow because his passport — a document a state issues for its citizens — had been revoked.

Intrigue devolved into farce when several European countries forced the plane of Bolivian president Evo Morales to land in Vienna to ensure Snowden was not aboard. Morales relies on the convention of international law that forbids states meddling in each other’s internal affairs to suppress political opposition at home. Yet he cried foul when European countries that are no friends of NSA surveillance asserted sovereign control of their airspace.

Both Snowden and Assange have been forced to seek asylum, paradoxically placing them at the mercy of the state system they despise. The privilege of asylum is not free-floating, and Wikileaks is unable to protect leakers from state authorities. Rather, asylum is a fundamental incident of sovereignty, which gives governments the right to control who and what crosses their borders. Snowden and Assange have thus become prisoners of the very concepts they hoped to transcend, forced to wrap themselves in the protections of the state system as they simultaneously advocate for its destruction. Assange, who favors open access to government secrets, has staked his liberty on the ability of Ecuador to restrict access to its London embassy.

Snowden’s fate, moreover, makes a mockery of his ideals. Vladimir Putin’s Russia is hardly a paragon of transparency and free speech. Snowden is powerless to promote his views without a state, but the only state that will have him is fundamentally intolerant of the views he espouses. A man who started as a whistleblower for humanity has become — like his forebears William Martin and Bernon Mitchell, NSA cryptologists who defected to Moscow in 1960 — no more than a traitor to his state. That transformation gives the lie to an ideology that tolerates no secrets.

The era of Wikileaks undoubtedly represents a serious challenge to the international state system. Snowden will not be the last disaffected leaker who wages an asymmetric war against a state system that is slow to respond to pinprick attacks. The contractor’s quixotic adventure, however, indicates that the system’s demise has been prematurely reported. The Westphalian order has proved remarkably durable, and the “war on secrecy” is but its latest challenge.

It is fitting that Snowden’s lawyer brought him a copy of Crime and Punishment to help pass the time in Sheremetyevo Airport. Like Dostoyevsky’s protagonist, Raskolnikov, Snowden believed he was an extraordinary figure who could break his country’s laws to serve his own idea of the higher good. It took time in a Siberian penal colony for Raskolnikov to realize he had deceived himself. Only time will tell if Snowden reaches the same conclusion in his Russian exile.

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