Header graphic for print
Tilting the Scales Business Issues with a Legal Slant

Asylum’s Just Another Word for Nowhere Left to Go

Posted in Criminal Law, Legal Risk Management

U. Hyde Meah’s employer required him to agree contractually that top secret information he reviewed as a technical contractor for the United States government would not be disclosed. Later Hyde leaked details of several top-secret mass surveillance programs to the press. Hyde sees himself as a hero and a whistleblower. The U.S. government views him as a common thief who stole U.S. property knowingly to use against the government, and intends to prosecute Hyde for espionage and, less likely, treason. Claiming that deportation to the U.S. would certainly result in his torture and execution, U. Hyde Meah is actively seeking asylum outside the U.S. Can Hyde avoid extradition if he secures asylum? Is he likely to get asylum?

Political Asylum

The good news for Hyde? If a country does grant him asylum status he will be protected from being extradited. The bad news? Although each country determines for itself whether he qualifies, it’s likely that he does not satisfy the internationally recognized benchmark legal requirements for asylum. Moreover, Hyde is a political hot potato with not much to offer.

Punishable Crime or Political Opinion?

Asylum is not as simple as landing in a foreign country and asking for special status and permanent residency just because you did something that was a crime at home but is legal elsewhere. If so, Canada would be overflowing with American drug users seeking to escape criminal charges. If Hyde is being persecuted for his political opinion, then the principle of non-refoulement established by the 1951 United Nations Convention Relating to the Status of Refugees governs him as a refugee. Ratified by most countries, including the United States, the principle expressly forbids a country from expelling or returning “a refugee…to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, or membership in  a particular social group or political opinion.”

Was Hyde’s conduct a crime – theft of property, espionage or treason – or just being a whistleblower complaining about conduct (invasion of privacy) that qualifies Meah as “membership of a particular social group or political opinion”? Plain old garden variety crime, or political opinion? Prosecution or persecution? Whistleblowers must prove that they are being persecuted, and prosecution for disclosing classified information is not, by definition, persecution. While opinion may have truly motivated Hyde, at the trial of his criminal case the prosecutor would argue that the information leaks, not his personal beliefs, drove his conduct. (Put another way, if someone sabotaged a U.S. drone base and was indicted for destruction of property, claiming persecution because of an opposition to drones would not likely prevail.)

Yet, 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 challenge. Maybe the real question is whether the electronic eavesdropping programs that Hyde Meah revealed do indeed look like a gross abuse of human rights.  Many think so. Accordingly, if one accepts the premise that Hyde brought to light some very serious government misconduct, then his asylum claim might look more like persecution for a political opinion.

Nowhere to Hide

The bottom line? U. Hyde Meah is neither sympathetic nor politically appealing. Countries are free to grant residence, citizenship, and other forms of protection to anyone they want, for whatever reason they want, and political reasons can play a role. So even if Hyde Meah does not qualify for asylum under the normal rules, countries could give him asylum if they wanted to. Hyde’s problem is that these countries wouldn’t gain anything by giving him asylum. He presumably already revealed everything he knows or is planning to soon. Foreign governments can benefit from Hyde’s disclosures without doing anything in return. U. Hyde Meah is a political hot potato that is too hot.

Tilting the Scales in Your Favor. If you plan to put a bullseye on your back by revealing top secret government information, plan for a variety of outcomes and strategies to navigate them. Specifically, be aware of whether you have information that makes you valuable to others. As they say at the poker table, don’t show your whole card if you plan to bet the house.