Is Edward Snowden Actually a Refugee?

If he told Russian officials he was hiding from political persecution, they technically couldn't deport him.
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A television screen in a billiards room in St. Petersburg shows Edward Snowden. (Reuters)

Russian officials have so far defended their refusal to extradite NSA leaker Edward Snowden on the grounds that he's holed up in the transit terminal of Moscow's Sheremetyevo airport -- which if you believe their descriptions is some sort of no-man's land protected by a force field that not even Putin can breach.

"He didn't cross the Russian border," Russian foreign minister Sergei Lavrov said. Putin also referred to Snowden, who is wanted in the U.S. on espionage and theft charges, as a "free man."

The trouble is, he's not. He's technically in Russia illegally and without a passport. As my former colleague Max Fisher pointed out, Russia's own visa rules dictate that Snowden had to have obtained a transit visa within 24 hours of arriving in the airport, and it's now been 48 and counting.

The airport isn't the reason Russia won't extradite Snowden.

"Being in the transit zone is as 'being in Russia' as standing on the Kremlin steps," said James C. Hathaway, the director of the Program on Refugee and Asylum Law at the University of Michigan law school. Even though Russia and the U.S. don't share an extradition treaty, "if Putin wanted to cooperate with the U.S., he would."

But there's actually another way Snowden could gain sanctuary in Russia -- or any one of the other 146 countries that are signatories to the 1951 Refugee Convention: He could walk up to any official in the airport, say he's a political refugee, and could not be sent away.

Regardless of whether or not they have extradition treaties, countries that have signed the refugee treaty are prohibited from deporting people who say they have reason to believe they would be persecuted for their political beliefs in their home countries. (Hong Kong hasn't signed the treaty, so in some ways it made sense for Snowden to go to Russia.)

"If he said to any government official in the airport, 'I'm a refugee and I can't be sent home or I'll be persecuted,' at that point, Russia's obligations are engaged," Hathaway explained, "and they can't put him on an airplane that would directly or indirectly get him sent back to the U.S."

But from there, countries must actually evaluate the claim. And wouldn't Russia, which is occasionally kind of ornery when it comes to international relations, just reject Snowden's? Not necessarily, says Hathaway: Political sentiments can factor into the the claims' approval. The U.S. is home to plenty of political refugees who were whistle-blowers in China and elsewhere. While it might not be a total bastion of civil liberties, Russia may be as good a country as any for Snowden to restart his new life as a refugee.

The tougher part of Snowden's refugee claim would be proving that the punishment he'd receive once back in the U.S. would be unfair or disproportionate to his crime -- thus making it "persecution," not "prosecution."

The slightly easier aspect would be showing that he's being hunted for his political views, not for committing a crime. Snowden's actions since the PRISM scandal in some ways indicate that he's positioning himself as being motivated by loftier ideals of democracy and freedom. If he had simply sold a thumb drive with all the PRISM slides to the Washington Post, for example, he could be perceived as having done so for personal gain. But instead, he's spoken out against government surveillance and secrecy in interviews, which could be construed as political activism.

"It's not a slam-dunk claim," Hathaway said, "but it's not one that can be dismissed as clearly without substance."

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Olga Khazan is an associate editor at The Atlantic, where she covers health.

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