Much ink has been spilled about Edward Snowden's revelations about the globe-spanning Prism programme that spies on virtually all communications, much of it expended on the minutiae of the case: Will he or won't he get asylum? Did everyone in the know already know? And most importantly of all, does Vladimir Putin really shear pigs?
However, we should really be backing up and looking at things from a wider angle, because, the astute observer may have noticed a pattern emerging here. Bradley Manning is currently standing trial in the United States for leaking the "Collateral Murder" video and thousands of embassy cables, while Julian Assange remains holed up in the Ecuadorian Embassy in London, but these are only the headline cases in what must now feel like a whistleblowing epidemic for those who would prefer, shall we say, a more exclusive approach to information handling. Over the past decade, Matthew Diaz, a former JAG at Guantanamo Bay was convicted under the US's Universal Code of Military Justice for leaking details on the identity of inmates to the Centre for Constitutional Rights in New York, while Katherine Gun, a GCHQ translator narrowly escaped prosecution for revealing that the US and UK were bugging the offices of United Nations Security Council members in the run-up to the Second Iraq War, to name but a few other prominent whistleblowers. And of course, we have our latest, and arguably greatest, Mr. Snowden.
From the perspective of international law, the intricate international tango that ensues on these occasions is fascinating to behold, as the vast majority of States attempt to do nothing at all while justifying this extraordinary level of non-action to their citizens. We thus hear a great deal about the insurmountable difficulty of issuing travel documents and how Snowden would have to arrive at the frontiers of Ireland (or any other European nation) in order to be granted asylum (the same reason, interestingly enough, given by Ireland nearly twenty years ago for refusing asylum to Mordechai Vanunu, who spent more than fifteen years in jail for blowing the whistle on Israel's nuclear weapons programme). Both of these claims are entirely frivolous, as at the highest levels States may issue travel documents to whomever they choose (indeed, this is precisely what Ecuador did in regards to Snowden's travel from Hong Kong to Russia), and asylum laws, such as Ireland's are phrased in positive not negative terms. This means that in Ireland a person who demands asylum at the frontiers of the nation must be given an interview and may formally apply for asylum; the law itself is silent on whether or not such an interview or application may be made in any other circumstances, and the various regulations and orders interpreting this law, do not seem to contain any provisions to the contrary. Phrasing laws this way is standard practice, as States like to keep their options open. However, even assuming that such a provision is buried somewhere is the finest of all fine print, there is still the rather obvious point that laws can always be changed and that asylum is hardly the only way of gaining the right to enter or reside in a country.
No, what we are currently witnessing is not a legal issue, but rather that other part of the international game: the power part. For our dear Mr. Snowden is a little hot potato at the moment that very few States want to be caught holding onto when the music stops, for fear of the possible consequences (Trade embargoes? Character assassination? Real assassination? In the world of international politics nothing's ever truly off the table.) As one of the only two States in the world powerful enough to be immune to both threat and action, Russia can afford to decide whether holding on to Mr. Snowden is better entertainment than getting whatever the US is prepared to offer for him.
On the other hand, European politicians are wedged rather uncomfortably between this risk of "consequences" from the United States, and their constituents, who are less than impressed to learn of this large-scale invasion of their privacy and apparently not inclined to throw the messenger who brought them this news to the wolves (a survey by television show Tagesschau polled German support for letting Snowden into the country above 80%, while a survey conducted by TMS EMNID found that 59% of Germans favoured asylum for Snowden and 35% were prepared to personally hide him in their homes). Hence the delicate side-stepping and obfuscation with legalistic arguments that do not stand up to even a cursory examination.
In all of this, it is easy to lose sight of the bigger issue and that is that we are at a fork in the road. Down one path, apparently, governments are permitted to put us under constant surveillance in the absence of a warrant, thus delivering an enormous blow to the entire rule of law system that Western civilization is founded upon, and those who inform us of this information-gathering are to be punished for opening their mouths, thus highly discouraging the practice. Down the other path we have a society in which citizens more or less know what their governments are doing, a characteristic that I would go so far as to say is useful in eg. a democracy. With stakes like this, apathy is not the best policy. At the very least, European governments, including the Irish government, could be honest with their citizens about the real reasons for not taking Snowden in - not immigration technicalities, but fear of having to bear the brunt of punitive action from the US. Considering the importance of this decision, it should be up to the people of the individual States concerned whether they prefer the risk of an immediate deterioration in their relations with the US or the longer-term risk of de facto forfeiting their legal rights to privacy.