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Could Switzerland grant Edward Snowden safe passage?

Switzerland’s Attorney General has raised the possibility that Edward Snowden could testify about NSA surveillance in Switzerland – and apply for asylum there – without fear of onward extradition to the United States.

The written legal opinion, seen by Swiss newspapers le Matin Dimanche and Sonntags Zeitung, states there is no legal impediment to Mr Snowden being granted Swiss asylum but leaves open the possibility of “higher state obligations” taking priority. While those “higher state obligations” are left undefined, this is – on the face of it – a rather more positive response than inquiries seeking Mr Snowden’s participation in person have received elsewhere.

Obstacles to participation in other inquiries

While Edward Snowden has taken part in a number of inquiries since gaining asylum in Russia in August 2013, he has always done so via videolink or in writing. Nevertheless, we know that at least two of the inquiries that have issued invitations to Mr Snowden have tried to secure his participation in person.

One of those organisations is the Council of Europe. In June this year, Dutch MP Peter Omtzigt told le Monde that attempts to have Mr Snowden speak to the Council of Europe’s Parliamentary Assembly in person had “taken months” and met resistance from “some agencies from some countries.”

In Germany, the issue of Edward Snowden’s participation has dominated the NSA Investigation Committee since it first convened in March. The German Government has gone so far as to suggest that the Parliamentarians on the committee might themselves risk criminal exposure if they so much as hear from Mr Snowden. Just last month, Glenn Greenwald announced that he would not participate in the inquiry unless “the German Parliament finds the courage to do what it should obviously do – interview Snowden in person, on German soil, regardless of how the U.S. Government would react.”

The Swiss reaction to mass surveillance

Edward Snowden has confirmed in a number of interviews that he worked for the CIA in Geneva under diplomatic cover.

In December 2013, the Swiss government approved a request from the Federal Prosecutor’s Office to open a criminal investigation into allegations of espionage by the US and other countries in Switzerland. At the time, Chief Federal Prosecutor Michael Lauber told the Swiss newspaper Zentralschweiz am Sonntag that it would be difficult for him to make progress on the investigation without Edward Snowden’s participation and that this would need to happen “in person.”

In addition to this criminal investigation, the Swiss Federal Parliament has mandated the formation of a Commission of Experts to determine the country’s response to the Snowden revelations, although this has not yet started to take evidence.

This summer, Edward Snowden’s legal team brought in Zurich-based lawyer Marcel Bosonnet to explore the possibility of Edward Snowden travelling to Switzerland. In an interview with le Temps in June, Bosonnet said that prior guarantees of Mr Snowden’s safety would be required to move the situation along:

It is up to the Swiss authorities to say how they could ensure the presence of Edward Snowden without him being arrested and handed over to the US authorities.

This weekend’s reports are the first indication that those guarantees might be possible. They centre on a document written by the Attorney General dating from November 2013, which provides an opinion on what would happen if the United States issued an extradition request for Mr Snowden while he was on Swiss soil.

The document considers four scenarios, one of which is that Mr Snowden is granted safe conduct to come to Switzerland by the Public Prosecutor to provide evidence to an ongoing criminal investigation. It is in this scenario that only “higher
state obligations” could prevent Mr Snowden’s safe passage.

While it is difficult to imagine political pressure not being brought on Switzerland to obstruct Mr Snowden’s freedom of movement, his Swiss lawyer has said that on the basis of the Attorney General’s document, “the legal requirements for safe conduct are met.” Marcel Bosonnet added that Mr Snowden had expressed interest in coming to Switzerland.

Edward Snowden is able to travel for periods of up to three months under the terms of his three-year residency in Russia. Before Mr Snowden’s original grant of Russian asylum in 2013, he made an asylum application to Switzerland, which failed because Switzerland no longer accepts applications made at its embassies.