Photo by Michal Andrysiak
Berlin-based lawyer Wolfgang Kaleck is the NSA whistleblower’s legal support in Europe and a dedicated fighter in the struggle against state surveillance. The co-founder of the European Center for Constitutional and Human Rights regularly takes states and corporations to court for human rights abuses around the globe from his office on the fifth floor of a large factory building in Kreuzberg’s Zossener Straße.
Edward Snowden has two American lawyers and a Russian one. You are officially his European lawyer – what’s been your role so far?
We’ve been exploring the possibility of him getting to some type of safe haven in Europe. One country specifically was under discussion over the last 12 months: Germany. The German parliament set up an NSA investigation committee, and part of their discussion was to invite him to come to Germany to testify and give him some type of state security. It wasn’t very realistic, because obviously the two governing parties are not willing to have him here. People tried to make it happen, but there were still some legal issues. There are other European countries that want him as an expert and to hear his opinion on the issues that he raised, but it seems that for now he might stay in Russia...
So countries want him to testify, yet they don’t want to give him any guarantee...
My enemy's whistleblower is my friend and my own whistleblower is my enemy.
That is typical hypocrisy when it comes to civil liberties and human rights. My enemy’s whistleblower is my friend and my own whistleblower is my enemy. You should expect a more principled position, especially from Western European countries. This is not only about Edward Snowden, it is about a fundamental principle of transparency and democracy and enabling us, the national, European and global public, to discuss certain things. If he hadn’t come out with these revelations, we would have had no chance to participate in these discussions on a knowledgeable basis. None of us can deny that even our European democracies are violating laws. We need to balance that out, and whistleblowers do this.
Do you see hypocrisy in Germany?
Sure! The rule of law played a bigger role in Germany than in US policy over the last 15 years, that is for sure. Germany was much more willing to obey and advocate for international law. There is a difference between torturing suspects yourself, as the US did post-9/11, and some actions somehow evading German law, which is what we are talking about now. But still in the issue of secret services there is much hypocrisy, and if their conclusion from the NSA scandal is to better equip German, French and Swiss secret services, then we are not on the same page. I’m fighting for a less superficial critique of the US and a more principled discussion.
What about the right to privacy? Aren’t there any laws?
Privacy laws do exist, but with a lot of exceptions. When it comes to a confrontation between privacy and national security, privacy never wins. We as Western societies allow our secret services a lot. And it’s not only a problem in the US or since 9/11. We had the problems before, and it is not helpful to use the scandal to blame others... This is much more than accusing the NSA of collecting too much data. The idea that America is the bad guy prevents you from thinking and from really considering the big picture.
What about Snowden being recognised as a political dissident and granted political asylum in Europe? Not possible?
Unless you are a whistleblower from China or from Russia – then, it’s considered political persecution. If you come from those countries you won’t have a problem being acknowledged, but if you come from a ‘friendly’ country you will have a problem. But there can be other exceptions in international law where you have the guarantee of a safe stay.
So, concretely, what would happen if Snowden travelled to Berlin?
I don’t know. This is a political decision. If he took a plane from Moscow to Berlin, he would run the obvious risk of being arrested and extradited to the US. There would be an extradition procedure where he would have to defend himself. That is a very realistic scenario.
He wouldn’t have very good chances, would he?
It is not about a good chance. He’ll only enter the country if he has the assurance that he won’t be imprisoned or extradited or somehow rendered to the US.
Isn’t it crazy that in 21st-century Europe there isn’t one country that could guarantee this?
Most of European history was the opposite of what Europeans think of themselves. Yes, they claimed to follow the various paths of enlightenment and protect human rights everywhere… but at the same time, European history is a history of colonialism and post-colonial exploitation. On the one hand they hold speeches for human rights, and on the other they exploit indigenous populations all over the world in order to find cheaper natural resources. It’s not enough to only see one side.
Here in Germany, there’s a strong pro- Snowden movement...
As far as I can see, the media and the hype about Edward Snowden didn’t improve his situation regarding getting asylum in Germany or elsewhere. The government didn’t change its stance much from the beginning. It was a very self-centred discussion. It was news about nothing. The whole time, he was saying, “I don’t think I should be in the centre of this discussion. You shouldn’t discuss me, you should support the cause of anti-surveillance and protection of whistleblowers.” And that hasn’t happened so much. The discussion was about him, but it wasn’t his initiative... and that is not in his interest.
From early on he decided to show his face. Was it a smart gesture?
It was a catch-22. If he didn’t show his face, people would have accused him of being a coward. Now that he did, he’s criticised too. I think he has very strong arguments for the way he did it. It is a good way to prove that he is a bona fide whistleblower.
Is being recogniseable good legal protection for him, or just the opposite?
It’s not only about the law; it is law, morality and politics. He obviously gets a lot of moral support because he showed his face and is willing to answer questions. Whether this will lead to the right political conclusions, we will see. It’s not the end of the story.
Personally, you don’t think it makes any difference?
No, no, I’m not saying that. I have my sympathy for someone who does it that way. It makes it easier to defend him. The political outcome of these revelations is not Edward Snowden versus the NSA or Edward Snowden versus the US – it is the public, the defenders of human liberties plus Edward Snowden. It is an ongoing battle. You can’t draw conclusions. It is about taking up the cause and trying to enforce it.
Hubertus Knabe and others have filed charges against the NSA…
I think that the litigation so far may not have hit the right point. There was this interesting piece that Constanze Kurz [of the Computer Chaos Club] filed with others in the UK. They went to the European court in Strasbourg against the UK for the violation of privacy laws. I think it’s a crucial problem that we don’t have appropriate laws. We have to reform our laws to deal with the dangers of massive interception of information by secret services. This is the perfect time.
Like working on drafting laws to protect whistleblowers?
The Council of Europe wants to propose an additional protocol for the European Convention of Human Rights. Many people are proposing reforms, and we have to see if the Snowden revelations serve as a long-term solution for whistleblowers. The national parliaments have to decide.
Are you hopeful? Is the political will there?
I’m not interested in whether the political will is there or not. My task is to work on it.
When you see what happened to Chelsea Manning and people forget that Julian Assange is stuck in an embassy, what are your hopes for Snowden – and beyond?
Whistleblowers who get into trouble need strong allies, people who will take a high personal risk, not for them, but for the future. It is a long-term struggle. At this point in time it is more dangerous for whistleblowers; maybe we will be in a better situation in three to five years, but only if other people join this struggle. Let’s prepare to lay the ground for a better situation for Edward Snowden today or tomorrow, and for other whistleblowers in the future. Are you ready for the struggle? Yes or no?
Berlin ended up being a centre of Snowden support. Do you think that exiles like Laura Poitras, Sarah Harrison or Jacob Appelbaum are safer here?
I hope that they are all safe, but there is no guarantee. The point is that if some prosecutor in the world decides to issue an international or European arrest warrant, how do German authorities deal with that? We can hope that public opinion here is strong enough and that the community would back them up, but the test hasn’t come yet.
Originally published in issue #130, September 2014.