The Negotiations Begin: Obama's Constitution, Snowden's Constitution and Criminal Law

Tuesday, 06 August 2013 14:02 By Rob Hager, SpeakOut | News Analysis
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Edward Snowden is not a constitutional lawyer. But his public statements explaining his decision to blow the whistle on what he and Congress both know to be only the "tip of the iceberg" of state snooping secrets express a belief in the meaning of the Constitution: in a democracy, the people – not his defense contractor employers or the government that hires them - should ultimately determine whether mass surveillance interfering with everyone's privacy is reasonable. Attorney General Eric H. Holder, Jr.'s July 23, 2013 letter to Russia's Minister of Justice Konovalov has opened negotiations that suggest a means by which the public might be able make that determination.

1. Obama's Constitution

Some, like President Obama, have tried to minimize the import of the snooping exposed by Snowden on the grounds that the government is just storing the information it gathers, and has not yet searched it. The Fourth Amendment of the Constitution prohibits "unreasonable searches and seizures." "Seizure" – the taking of private information, "taking" in the sense of taking a picture as with "mail covers," i.e., collecting evidence – is what the government has now been forced to admit. The prosecution of Snowden is for his telling the truth about secret universal seizures, which nobody can now doubt.

The Fourth Amendment is not an anti-theft or burglary law. It was intended specifically to prevent the government from collecting evidence of crime from the zone of privacy necessary to sustain a degree of personal sovereignty which government cannot invade without good reason. Totalitarian governments deny this zone of personal sovereignty because they know it is the location from which democratic action originates to challenge tyranny.

"Surveillance tacitly encourages a limited range of thought in which all people participate. You wind up with one cookbook of recipes for the human condition," says Jon Rappoport.

The fact that people lose only intangible privacy, but not anything tangible by government interception of their private data streams is therefore irrelevant to the purpose of the Fourth Amendment. What is relevant is that the government now possesses, is "seized" of, evidence that it did not have before it was illegally acquired by its massive invasion of privacy. Whether or not the state ever chooses to "search" the seized information, the universal, non-consensual seizure itself of what used to be called "pen register" data grossly invades individual privacy, and vastly empowers government to concoct retroactive cases or leak one-sided evidence against disfavored targets, all in violation of the Constitution if "unreasonable."

The Supreme Court reads the Fourth Amendment's "unreasonable" test to mean not "objectively reasonable," United States v. Leon, 468 U.S. 897, 922 (1984). This would mean "reasonable" as viewed by ordinary citizens - like Snowden. The Fourth Amendment is a unique exception to the Constitution's general choice of representative democracy ("a Republican Form of Government," Art. IV, §4) over direct democracy. The term "reasonable" appears nowhere in the Constitution except in the Fourth Amendment, although it is a concept well-known to law. For example, legal negligence is a breach of what a jury determines a "reasonable man" would do in the same circumstances. A similar standard has been imported into Fourth Amendment determinations. The Supreme Court long ago said that "probable cause for a search exists when the facts and circumstances within the police officer's knowledge provide a reasonably trustworthy basis for a man [sic] of reasonable caution to believe that a criminal offense has been committed or is about to take place." Carroll v. United States, 267 U.S. 132 (1925).  So what the Constitution means by "reasonable" is what the public believes to be reasonable.

Though public opinion is always relevant to interpretations of the Constitution, the Fourth Amendment provides the only context where the Constitution directly assigns to the people the power to determine what the Constitution means. This suggests the Fourth Amendment's key function as the people's first defense against tyranny.

By definition, the people cannot deem to be "reasonable" what they do not even know about. Snowden uniquely did know. So like a digital era Paul Revere, he decided to share his knowledge with his fellow citizens to test his hypothesis that they would not consider dragnet surveillance and storage of their private electronic communications any more reasonable than he did, and like him, as citizens, they might choose to act upon that knowledge. What makes Edward Snowden, along with a few other whistleblowers, so unique is his selfless confounding of Upton Sinclair's dictum that "It is difficult to get a man to understand something when his salary depends upon his not understanding it."

 A strong case can be made that Snowden's understanding is right. Hence there is no need for him, or his supporters, to concede that he has broken any law. Laws used to cover up constitutional violations are themselves invalid as applied. The cover-up is as bad as the crime. Snowden's acts were purely for the purpose of disclosing Fourth Amendment violations. He has been rigorous on this point.

According to the Supreme Court, "[i]t remains a cardinal principle that searches conducted outside the judicial process, without prior approval by judge or magistrate, areper seunreasonable under the Fourth Amendment - subject only to a few specifically established and well-delineated exceptions." California v. Acevedo, 500 U.S. 565 (1991) (quoting Katz v. U.S.)

The scope and duration of the seizures revealed by Snowden make them inherently non-judicial in nature, as discussed below. Any exception to the Fourth Amendment's "right of the people to be secure in their persons, houses. papers, and effects" in the absence of showing individualized probable cause – or even reasonable suspicion – that a crime is being or will imminently be committed places it well outside the judicial process. This imposes a heavy burden on the state to prove that its search was otherwise "reasonable," and not a breach of the Fourth Amendment's "bulwark against police practices that prevail in totalitarian regimes." (id., Stevens, J., dissenting).

According to the Snowden revelations, the Obama administration has violated this rule. A valid judicial warrant could not have been issued under this rule when no reasonable person could possibly believe, no matter how much irrational fear the state and its propagandists are able to drum up, that universal crime by the general public, or by Verizon subscribers in particular, has been committed or is about to take place. In recent years, the Court has drilled some holes in the Fourth Amendment for some special circumstances that people can theoretically choose to avoid – for example suspicionless searches connected to one's employment or travel choices. It is this exception that the Obama administration now wants to extend to the status of being a person. The very proposition sounds unreasonable and patently contrary to the purpose of the Fourth Amendment to establish a general rule of individual privacy, with specific narrow and reasonable exceptions.

The state's burden of proving reasonableness is more difficult to carry in that the Constitution was designed to prohibit in every conceivable way known to its framers just the kind of totalitarian intrusion by central government on autonomous self-governing citizens that the Bush/Obama administration's power-grabbing, privacy-invading, nationwide snooping on unsuspected and unsuspecting citizens represents. At least three constitutional protections against tyranny in addition to the Fourth Amendment reasonableness requirement should also invalidate such encroachments.

1. In his Federalist #47, James Madison explained the separation of powers principle: "The accumulation of all powers legislative, executive and judiciary, in the same hands ... may justly be pronounced the very definition of tyranny." The dual sovereignty of the federal system was intended to further divide those separated powers between what is truly of national concern and what is of only local concern. "By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power." Bond v. United States, 564 U.S. __ (2011) (Kennedy, J., for unanimous Court ).

   A) The question as to separation of powers is: which branch of the state, if any, can be trusted to accurately discern and express the judgment of the people as to the Fourth Amendment reasonableness of a permanent and universal regime of seizure and storage of private communications? Since the subject restrained by the Fourth Amendment is the state acting in its executive capacity, the contours of the restraint on executive powers cannot be left to the subjective determination of the executive branch itself to define. Allowing the executive branch to decide the reasonableness of its own actions would obviously defeat the purpose of the Fourth Amendment. Hence the views of President Obama, his prosecutors, military, and spies are all irrelevant to this determination. They stand accused of violating the rule of reasonableness, the scope of which, not them, but the people must decide. 

The judicial power under Article III of the Constitution extends only to the application of law to individual cases. Like stories, cases have a beginning, a middle and an end. The state does not have the power to initiate and courts do not have the power to hear a never-ending case against the whole population of the United States, or evenagainst the subset of all the customers of Verizon. Only a police state with its secret tribunals takes such an adversarial posture against its whole people. Where government officials diffusely suspect and secretly snoop on the public, in a democracy, it is the officials that prove themselves unrepresentative, illegitimate, unreasonable, in violation of their oath to support the Constitution - and therefore the criminals.

The power to make rules that affect everyone into the indefinite future is inherently a legislative and not a judicial power. An unelected "court" that violates the separation of powers by exercising legislative powers in order to make new rules empowering the executive in secret collaboration between the two separate branches is the very definition of tyranny, in Madison's terms. It "accumulates" executive, judicial, and legislative powers. Chief Justice Marshall famously said it would be "treason to the constitution" for the Supreme Court to "usurp [jurisdiction] which is not given." Cohens v. Virginia, 19 U.S. at 387.

Having a member of the judicial branch perform or authorize a legislative act or any other non-judicial act does not turn that into a "judicial process" as required by Katz. No judge or magistrate, let alone one judge of a multi-judge secret tribunal such as Colleen Kollar-Kotelly acting in secret even from her own secret FISA court, can exercise Article III judicial authority, let alone collaborate with Article II executive power, to decree a universal and unending search or seizure of private communications. Any such unlimited "search and seizure" of persons who are not even suspects takes place inherently "outside the judicial process" of deciding individual cases, which is all the Constitution authorizes judges to do. The Sixth Amendment requirement of a "public trial" of criminal matters casts further doubt whether conduct of an exclusively and permanently secret "court" whose acts never reach the light of day can qualify as "judicial process." As stated in Acevedo and Katz quoted above, seizures made outside a legitimate judicial process are therefore presumed "per se unreasonable under the Fourth Amendment."

A legislature authentically representative of the people might determine that such a generalized seizure for mass storage of information is a reasonable and necessary exception to this per se rule under some "specifically established and well-delineated" circumstance "that society is prepared to recognize as `reasonable,'" Katz (Harlan, J, at 361). Though Obama claims that Congress authorized the spying, that has obviously not been done. Few in Congress were even aware of the scope of the snooping being conducted by the Obama administration under its strained interpretations. Nor were the elected legislators aware of the secret advisory opinions from a nominal court in fact serving as a secret unelected legislature in secret complicity with the executive branch to circumvent constitutional norms and usurp Congress' legislative power.

The details of the Patriot Act and FISA laws that Congress did enact have been carefully parsed by informed academics who find NSA's "two programs violate both the letter and the spirit of federal law. No statute explicitly authorizes mass surveillance." But the question of constitutional validity should not be lost in debates over technical analysis of legislative text. The constitutional test is not highly technical. It is ultimately about what the people find reasonable, not what legislators intended.

The question the legislators must face is whether they properly represented what the people find reasonable. Legislators were proscribed from sharing with their constituents any knowledge they did acquire about these programs. Hence they could not represent any views of their constituents about the reasonability of secret spying which their constituents did not even know about. This is true irrespective of how the language they approved in a hurry in 2001, without even reading it, might be interpreted by Obama's spies and a complicit judge.

   B) With respect to federalism, the general police power to define and enforce criminal law resides with the states, not the federal government. Most of what the federal government now targets as part of its domestic "war on terrorism," which it invokes to justify universal snooping, in fact constitutes local common law crimes including those traditionally described as "riot" or "mayhem." The federal government has no generalized power to enforce state criminal law or to make its own. General criminal law is not enumerated as a federal power. If the commerce clause is not elastic enough to include the insurance mandate as the Roberts 5 held in the 2012 Sibelius case, it is certainly not elastic enough to absorb all the various mandates of state criminal law.

There is no general power given the federal government in the Constitution to "fight terror" - which is a tactic. The government therefore has an initial burden to prove that its invasion of the privacy of every target of its dragnet surveillance program was "necessary and proper" to enforce some specific federal power that is enumerated in the Constitution.

This proof has been alleged but, if it exists at all, it remains hidden under a blanket assertion of state secrecy. The government's proportionality analysis between loss of liberty and security is difficult to take seriously when, as one comedian observes, falling furniture accidents cause more harm than the incidents of terrorism offered to justify the government's erosion of liberties. What the people can see before their own eyes is the most expensive security state in the history of the world incompetent to prevent, except for those attempts resulting primarily from the state's own entrapments, several atrocious domestic crimes having varying degrees of international provenance. If spying actually did prevent other attempted crimes, as alleged, then where are the attempt and conspiracy indictments and prosecutions to prove it?

2. Since the domestic "war" against terrorism is not a war in any traditional meaning of the term, but rather domestic law enforcement by military means, and the NSA is a military spy agency, the Third Amendment command that, "No solider shall, in time of peace be quartered in any house" may be dusted off for application in the information age to this extreme case of state intrusion into the constitutionally protected privacy of private homes.

This is a time of peace in North America both because Congress has not declared war in any traditional notion of the term, and because the framers' original concept of war for Third Amendment purposes did not include overseas imperial adventures. The Third Amendment bespeaks war within the United States.

Electronic communications capacity unimagined by the framers has become an inherent feature of any modern dwelling house in the United States. Yet every electronic communication originated and sent from private homes is being seized by the military. Such permanent residence by Big Brother military spies within one's home-based private stream of communications could be seen as an updated form of unconstitutional "quartering," the same kind of abuse of power by the military against citizens that the founders detested and prohibited, except in time of war.

If the Constitution lives, this spy program should be considered an absolute violation of the principle embodied in the Third Amendment of the Constitution, of the separation of powers and of federalism. This totalitarian intrusion upon the zone of individual sovereignty is designed to give government the capacity to lend an appearance of verisimilitude to character assassination of selected individuals who might challenge a tyrannous government in the future. Examples of this common propaganda technique of ad hominem attack as a means to avoid the substance of democratic debate abound, and need not be recounted here.  But the quasi-government mass media's treatment of Snowden himself furnishes one such example, as have other leaks of private information for discrediting or intimidation by public targeting of dissidents who exercise their civil liberties.

Aside from these constitutional restrictions on Congress from authorizing a police state universal spying and evidence acquisition program, and Congress's actual failure to assess and represent general public views about the reasonableness of such a program, there is another factor that precludes Congress as it currently functions in the era of money in politics from representing the objective public view of Fourth Amendment reasonableness.

What makes a modern Paul Revere like Edward Snowden necessary is that even an elected, Congress itself cannot be trusted to represent the will of the people, in these corrupt times, on virtually any subject on which money speaks. Polls show confidence in Congress declining to around 10%, while about 80% of voters consider the government to be illegitimate in terms of the Declaration, i.e., lacking the "consent of the governed." Of likely voters, 69% think Congress will "break the rules" for their financial contributors. Other polls express the country's universal understanding that big money invests in politics for the large financial returns it earns by controlling government. A July 2013 poll reported (Q10,11) that 57% of adults think that their own representative does not deserve reelection and would vote to replace the whole Congress if they could.

Such polls indicate a widespread understanding that Congress, as a whole, does not represent the people in any real sense. Its members and leadership are widely perceived as instead beholden to money. No politician wins office without some compromise of democratic legitimacy by dependence on plutocrats and special interest money, and certainly not a governing majority and its leadership without an avalanche of such money. Thus enactment of a law by Congress purporting to determine what the people think is reasonable with regard to police state practices would not necessarily constitute a constitutionally valid law that mirrors objective reasonableness.

Even aside from the lucrative government surveillance contracts that special interest money secures from Congress to subsidize "America’s last growth industry," the plutocrats who buy politicians and policy feel more secure when the people are stripped of their liberties. Without civil liberties, the people of the United States cannot sustain a democracy erected upon that "consent of the governed" engraved on its foundation stone when laid in 1776. Without civil liberty, money's rule by purchasing influence from elected peddlers remains effectively unopposed. In this corrupted system what the overwhelming majority of people may consider reasonable is now irrelevant to members of Congress, whether the subject is establishing effective weapon background checks or anything else opposed by the plutocrat class. See Martin Gilens,Affluence & Influence: Economic Inequality and Political Power in America (2012). Congress can thus not reliably represent the public's view of Fourth Amendment reasonableness, even if it had tried. As in the Amash amendment, Congress is capable of occasionally holding a close vote that allows always a minority, only the most vulnerable, of its members to pander to majority views on highly visible issues. But a majority of members can be depended upon to remain loyal to their plutocratic masters.

Politicians are in the pockets of too many special interests that profit from the surveillance state. Such a close bi-partisan vote does provide a useful demarcation line thatorganized single issue voters could use to impose much-deserved term limits on the most loyally sold-out, anti-democratic "no" voters of both parties.

2. Snowden's Constitution

What then do the American people consider reasonable concerning mass surveillance? Public opinion polling confirms the lack of any consensus that police state practices are a reasonable response to whatever actual threat they are intended to guard against.

A Washington Post poll (question #8) taken after the Boston Marathon bombing suggests that most Americans with an opinion would worry that government surveillance in the name of fighting terrorism would be unreasonable (i.e. "go too far"):

"Which worries you more: that the government (will not go far enough to investigate terrorism because of concerns about constitutional rights), or that it (will go too far in compromising constitutional rights in order to investigate terrorism)?

                   Will not go  Will go               Neither            No

                   far enough  too far        (volunteered)       opinion

   4/18/13:         41             48             5               6"

Quinnipiac poll asked whether "government's anti-terrorism policies ... have gone too far in restricting the average person's civil liberties, or that they have not gone far enough to adequately protect the country?"

                               Not gone      Gone

                              far enough     too far      

    5/28 – 7/8, 2013:             40%         45%

A clear majority thought the government's phone surveillance "program is too much intrusion into Americans' personal privacy," by 54-45%. An overwhelming majority thought Edward Snowden "more of a whistle-blower" than "a traitor" by 55-34%.

Pew poll taken after the Snowden revelations confirmed that a similar majority finds mass surveillance unreasonable. They answered "no," by 52-45%, to the question: "Should the gov't be able to monitor everyone's email to prevent possible terrorism?" That question might be understood by some to assert that mass surveillance does "prevent possible terrorism," an unproven proposition.

If they "knew government had collected their data," 63% claimed they "would feel their personal privacy was violated." Of those respondents who agree with the Tea Party, 65% "Disapprove Gov't collection of telephone and internet data as part of anti-terrorism efforts." On the question of whether Snowden's NSA leak "serves the public interest" a majority with an opinion thinks it did, by 49-44%.

TIME poll has 54% thinking Snowden did a "good thing," in response to a neutrallyquestion: "Do you feel that the person who leaked the information about this secret program did a good thing in informing the American public or a bad thing?

Washington Post/ABC Poll asked: "The NSA surveillance program was classified as secret, and was made public by a former government contractor named Edward Snowden. Do you support or oppose Snowden being charged with a crime for disclosing the NSA surveillance program?"

A majority having an opinion opposed prosecution 48-43%, with independents opposing even more. An overwhelming majority of 65% supported "having the U.S. Congress hold public hearings on the NSA surveillance program," suggesting the public rejects the government's claim that secrecy is more important than access to facts necessary for the public to determine its own privacy interests.

All these answers together suggest the public considers the government to be more likely in violation of the law than was Snowden. Indeed the wrong the government would have violated is the Constitution, a far more serious charge than those against Snowden.

When such a majority suggested by this polling evidence, or even a substantial minority, opposes government snooping into everyone's electronic communications, that should be a conclusive indication as to whether such a search and seizure is generally viewed as unreasonable. If reasonable people can differ on the question, then such a search and seizure cannot be held to be reasonable. "Reasonable" is what any reasonable informed person of the kind permitted to sit and deliberate on a jury would accept, not what such reasonable people would continue to debate.

 As one scholar recently observed, "the actual course that Internet surveillance law will take remains extremely difficult to predict." That is because such a public consensus of reasonableness has not been reliably and formally determined and expressed. It is important for the public to step in now to resolve this uncertainty by formulating and expressing informed views on the reasonableness of maintaining a secretive dragnet surveillance state. The "judicial" appraisal of reasonableness that has taken place outside of public view is only a single data-point for the public to consider in reaching its own independent assessment of reasonableness.

How does the public decide the meaning of this key term? Those who would rely upon Smith v. Maryland (1979) for a rule that pen registers are inherently exempt from the Fourth Amendment, due to the court-determined lack of public "expectation" of privacy with regard to dialed telephone numbers, ignore the Court's important proviso in that same case that swallows any such firm rule based primarily on word-play.

The five-judge majority in Smith held that such attributed "expectations" would not govern, and "a normative inquiry would be proper … [f]or example, if the Government were suddenly to announce on nationwide television that all homes henceforth would be subject to warrantless entry," 442 U.S.740-741, n. 5. In 1979 this could still be considered an ad absurdam argument. In the dilapidated democracy Americans now inhabit, that is essentially what just happened, with respect to all private digital communications.

It is not what the public cynically "expects" from a tyrannical and intrusive government that secretly evades its constitutional obligations, but what the public "normatively" considers reasonable which must govern application of the Fourth Amendment. The people are thus entitled to "expect" what they think is reasonable conduct from their government even if such conduct is not in fact forthcoming from a government demonstrably independent of the people's opinion, and the public knows it. Otherwise, as Justice Marshall wrote, reliance on public "expectations" in the sense of factual predictions of government behavior, "would allow the government to define the scope of Fourth Amendment protections."

Smith provides no support for the idea that the public would either expect or consider "normatively" reasonable the indiscriminate maintenance of pen registers and storage of related data for all the electronic communications of persons, the overwhelming portion of whom were not remotely suspected, let alone probably guilty, of any specific crime committed against any complaining witness, either involving or not involving such communications.

Justice Marshall also cogently attacked the word-play foundations of the Smith majority opinion by pointing out that because persons may release private information to a third party for one purpose "it does not follow that they expect this information to be made available to the public in general or the government in particular. Privacy is not a discrete commodity, possessed absolutely or not at all." Since this false dichotomy of "expectations" used by the majority is a logical fallacy and propaganda technique, the public would likely find far more reasonable the more measured view of privacy expressed by Justice Marshall that "[t]hose who disclose certain facts to a bank or phone company for a limited business purpose need not assume that this information will be released to other persons for other purposes" without a warrant.

Whether the contrary holding by the Smith majority was unreasonable is a question for the public to decide, and for courts to merely discern, not dictate. For a Fourth Amendment determination of what is "unreasonable," the Supreme Court does not have the power to decree, but only to mirror and reflect, the public's objective sense of reasonableness of government intrusions on their individual privacy.                                                                                                                                                                  

The standard remedy against the state for making an unreasonable search or seizure is a damages claim against the officials involved where a jury would determine reasonableness. At the time of the Constitution, this was the practice for protection of citizens from state intrusion. "An officer who searched or seized without a warrant did so at his own risk; he would be liable for trespass, including exemplary [i.e., punitive] damages, unless the jury found that his action was "reasonable." … [T]he Framers [of the Fourth Amendment] endeavored to preserve the jury's role in regulating searches and seizures."500 U.S. 581-2(Scalia. J., concurring).

A jury, properly selected and informed, can be fairly representative of, and a legitimate disinterested proxy for, informed public opinion. A civil jury is thereby institutionally capable of reflecting what society at large considers reasonable. The Federal Rules of Civil Procedure, Rule 48, requires a unanimous verdict of at least six jurors. Thus even a minority of jurors representing a similar minority of the public can force either a compromise verdict by which alleged snooping is found unreasonable, or at least a mistrial and another spin of the wheel if other jurors refuse to negotiate a verdict.

The problem with the civil justice solution contemplated by the Constitution's Seventh Amendment, however, is that courts have invented official immunities to protect government officials from civil juries. E.g. Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364 (2009). This tends to remove the question of Fourth Amendment reasonableness from the jury where the Constitution originally placed it, and delegate that decision right back to those very officials who cannot be trusted to guard the privacy chicken-coop, and to the judges who invent defenses subversive of the Constitution in order to absolve those officials of their constitutional responsibility.

Even aside from judge-made official immunities from civil liability, new judge-made "standing to sue" rules prevent victims of unconstitutional secret surveillance from seeking any remedy in court without prior individualized evidence. E.g. ACLU v. NSA.Judge-made state-secret and sovereign immunty doctrines, in catch-22 fashion, block plaintiffsfrom getting that evidence.

The justices on the Supreme Court appointed through an increasingly corrupt and unrepresentative political process (three justices of the Smith majority were Nixon appointees) cannot be trusted to reflect the public's objective view of what may be a reasonable sacrifice of privacy in exchange for achieving some proportionate benefit in reaching legitimate law enforcement goals. As observed by one of the last great Supreme Court justices, appointed to the Court just prior to the institutionalization of Nixonian corruption by legalized money in politics, the "Court has become a loyal foot soldier in the Executive's fight against crime" in Fourth Amendment cases. (Stevens, J.).

Whenever the infrastructure of plutocracy is involved, the current five Judge majority's sense of rationality cannot be trusted. An infamous example is their irrational holding in Citizens United. According to five Supreme Court justices, the unlimited illegal moneys they surreally label "speech" and allow to support or oppose election campaignsin the form of "independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption" (emphasis added). As mentioned above, this distorted perspective of corruption defies the scientifically substantiated views of most Americans that corporations and others invest in politics for the very purpose of buying profitable policies which government would not otherwise adopt. Most Americans with an opinion also overwhelmingly disagree that money is speech. In such defining cases as Citizens United, these five justices, the loyal plutocrats that constitute the Roberts 5, are at least as unrepresentative of public opinion and conversely beholden to plutocratic opinion as is Congress itself which is directly paid for its loyalty.

Another example is provided by the Court's creation, five months after Citizens United, of a new exception to free speech. In Holder v. Humanitarian Law Project, 561 U. S.  (June 21, 2010) the Roberts 5 reversed its Citizens United priorities. Whereas in Citizens United, the First Amendment was given absolute priority over any other concern, thereby guaranteeing plutocrats the transcendent "speech" right to overthrow the republic by corruption as detailed in the convincing record                                                                                                                                                                                                                                                       compiled by Congress, the same five judges in Holder held that the First Amendment nevertheless "permits the Government to prosecute … [otherwise innocent Americans'] coordinated teaching and advocacy furthering ... lawful political objectives." (See Breyer, J. dissenting) All it requires for the government to deny such ordinary free speech rights based solely on the government's unsupported, let alone unproven, assertions concerning the alleged ill effects of such speech is that it designate the related coordinating organization as "terrorist." 

By definition, terrorists using the tactic of terror alone could never overthrow a government since by definition the tactic is aimed at defenseless civilians, not governmental power. There is no rational relationship between these two contrary views of the First Amendment other than the magical pole-reversing legal effect the courts have given to the two syllables that do not appear together in the Constitution: "terror." The Roberts 5 treatment of the Fourth Amendment would likely be subjected to the same magical constitutional disappearing act as occurred in Holder upon any incantation of the word "terror," if the decision were left to them.

If any separate branch of the state were conceded the formal power to decide Fourth Amendment reasonableness in the current environment of the independence from the will of the people by all three separate branches of the state, and their corrupt dependence on the will of money, it would inevitably use that power to cancel the people's civil liberties, as it has already started to do in secret as well as in public. The remaining forum where the public may yet formulate and express its judgment about the reasonableness of mass surveillance purporting to target terror is a criminal jury trial.

Bradley Manning was denied his constitutional right to such a trial. The US Military, which is uniformly sworn under oath "to support this Constitution" as required by Article VI (cl. 3) thereof, maintains the paradoxical notion that it can operate as a Constitution-free zone in its treatment of soldiers like Manning. The false pretense used by the military, just as it is used by Obama, is that their actual sworn duty is to do anything they determine necessary or proper, even scuttling the Constitution, for promoting "security" against shadowy "enemies."

The Supreme Court has held that "the constitutional grant of power to Congress to regulate the armed forces … itself does not empower Congress to deprive people of trials under Bill of Rights safeguards, and we are not willing to hold that power to circumvent those safeguards should be inferred through the Necessary and Proper Clause." So far, this broad principle has been applied only to honorably discharged soldiers, Toth v Quarles, 350 U.S. 11, 21-22 (1955), as well as, fortunately for Snowden, any civilian, even if tried abroad, Kinsella v. U.S. ex rel. Singleton, 361 U.S. 234 (1960), including the military's own civilian employees, like Snowden.Grisham v. Hagan, 361 U.S. 278 (1960); McElroy v. Guagliardo, 361 U.S. 281 (1960).

It remains for a soldier like Manning to expose the military's betrayal of its universal oath to support the Constitution by winning application of the Bill of Rights to at least those cases, like his, involving other than uniquely military crimes like desertion, see Dynes v. Hoover, 61 U.S. 20 How. 65 (1857), or cases not driven by the exigencies of the actual battlefield. The battlefield exception that supposedly justifies the betrayal of Constitution, in fact excuses skipping only the Fifth Amendment indictment of a soldier who is "in actual service in time of War or public danger," not a Sixth Amendment trial for that soldier.

Snowden, if he chooses to return to the United States to face trial or is forced to do so – notwithstanding that he has a compelling claim to political asylum status – will present adifficult target for the money-stream media to demonize, although they are trying. Unlike the case of Manning, the government must provide Snowden a public trial fully compliant with the Bill of Rights. On the evidence of his well-articulated public statements, Snowden would seem to have the makings of a good witness and, on a level playing field, a capable match for tyrants, both in and outside the courtroom. 

3. Criminal Law

In any Sixth Amendment criminal trial of Snowden, a profoundly important – even defining - issue will be weighed in the balance. If Snowden did catch the state massively violating its Fourth Amendment obligations in the view of even a significant minority of the public, then the interests in maintaining the secrecy of those police-state surveillance methods cannot constitutionally receive any legal support whatsoever from a justice system operating under the Constitution.

A number even smaller than the majority that polls generally show favoring Snowden would be sufficient to predictably prevent a representative jury of 12 peers from unanimously finding the state's search to be reasonable. F.R.Crim.P., R. 23, 31(d).

Obama's aspiring police-state's whole project of classifying as secret evidence of its violations of the Constitution should then fall. Keeping his violations of the Constitution secret might be constitutionally "necessary" to carry out Obama's goals, but it is not "proper" if the surveillance state goals themselves are unreasonable. If the underlying snooping is unreasonable, the secrecy of the snooping, and the effort to punish one blowing the whistle on this secret unconstitutional project would all constitute a profoundly illegal abuse of power.

Snowden has a different argument that his revelation about US hacking of countries who are not enemies of the United States is also not punishable. State-sponsored hacking is increasingly seen as an act of aggression inconsistent with international law, a principle accepted by the US for the same reason that has also made domestic hacking a serious crime. The same rule that the state cannot enforce any law solely to keep secret and abet its own illegal conduct would apply to these revelations as well. The state must obey the law, not operate like organized crime enforcers eliminating witnesses to their crimes.

A criminal jury's independence in handling this question of reasonableness in Snowden's case would seem definitive of whether the US is a police state or still possesses sufficient civil liberties to peacefully reclaim its democracy. Surely every citizen who has information about a crime is obliged to provide that information in accordance with legal processes that comply with the Constitution. But neither pervasive government secrecy nor enduring mass surveillance is consistent with the democracy established by the US Constitution.

If an existential threat to the Constitution and the republic it established – which is not remotely involved in any terrorism prosecution – were sufficient reason to waive the Constitution, then the Supreme Court's "money is speech" misinterpretation of the First Amendment that has permitted the overthrow of democracy by corruption should be suspended, not the Fourth Amendment.

In any Snowden criminal trial, the preservation of the original constitutional protection against creation of a police state will require that a fairly impaneled and informed jury decide the question of reasonableness without interference from the state apparatus of secret courts and secret laws and torture prisons that belie any notion of due process. The government that stands accused of violating the Constitution has already been seen to be overreaching for purposes of silencing its accuser by inducing the violation of sovereign immunity in grounding the plane of the Bolivian president, and by applying other ex parte coercion of foreign governments.

Attorney General Eric Holder has already started the negotiation process over the defects of US justice. He is trying not to legally extradite Snowden, but to have him "returned" from Moscow like a wayward piece of imperial baggage, as a "subject" of the state rather than a citizen of a republic. Holder has not only made the embarrassingly necessary promise not to kill or torture Snowden, but has also stated the basic ground rules that Snowden would be tried in an Article III "civilian court … supervised by a United States District Judge" with "all the protections that United States law provides." He concedes that "the United States would have to prove [Snowden's] guilt beyond a reasonable doubt to a unanimous jury."

Since the US justice system under the leadership of the Roberts 5 cannot be trusted, as a matter of course, to provide constitutional due process, Snowden would need to fully negotiate the detailed rules before consenting to face a US trial. He has some strong cards to play in such negotiations, if he can stay alive. Snowden need not remain a fugitive from US injustice if he plays those cards,

  1. to determine the actual charges he will need to defend, and have all other charges like treason foresworn and formally dismissed;
  2. to draw a judge not blackmailed by or otherwise secretly dependent upon the national security state;
  3. to have an independent prosecutor appointed who is not subject to the conflicts of interest of the Obama administration who stand guilty, of violating their oath of office, if Snowden is not;
  4. to obtain fair pretrial rulings on evidentiary, procedural matters and instructions;
  5. to get a fair jury impaneled, and then
  6. to fairly place before that jury through sufficient evidence and instructions the question whether the proven extent of the government's snooping was unreasonable in the view of the public.

Much of this could be determined in pre-trial proceedings before Snowden returns to participate in a trial. The Trayvon Martin trial shows the distorting effect of inappropriate charges, biased prosecution, defective judicial evidentiary rulings and instructions, and possibly poor jury selection on an outcome.

By guarding against such distorting effects at the outset, such a trial could constitute a fair test, and a highly useful one, of whether Snowden was guilty of anything other than defending the Constitution in the noble spirit of '76, whether Obama, other complicit persons, and his military is guilty of criminal and impeachable wholesale violationof the Constitution, and whether the US has retained sufficient liberty that it can still be counted among the world's democracies. However, if ignorant politicians and propagandists in and outside of government continue to accuse Snowden of treason, under the bizarre notion that his revelations to the US public of its government's secret violations of the Constitution amounts to intentional "adhering to [the US's] Enemies, giving them Aid and Comfort," he may eventually not be able to obtain a fair trial in the US at all, due to jury panel bias.

Given the highly politicized US judiciary, Snowden is wisely playing for time and a stronger hand by first seeking justice in a political asylum process or extradition hearing.Whether it would have taken place in Hong Kong or now possibly elsewhere, Hong Kong was a good initial choice. British standards of justice there have not been entirely eradicated under its current Chinese rulers and, unlike the US, the Chinese government had no apparent ax of its own to grind in the Snowden affair, though its commercial and financial interests may have compromised its political independence.

By international standards, the US and its judiciary rank below Hong Kong on a 2012-13 rule of law index. While "American exceptionalism" propagandists routinely imply that the US system is a paragon against which all others must be measured, in fact, objectively, Hong Kong ranks #8 and #9 respectively on absence of corruption and general quality of its criminal justice system, well ahead of the US's #18 and #26 rankings.

The World Economic Forum – which certainly suffers no anti-US or general anti-plutocrat biases - ranks Hong Kong #12 in its 2012-13 index on judicial independence. That is substantially higher than the appallingly low US ranking of #38 on the same index, which is proportionately not that far ahead of China's #66 ranking. If due process was his priority, Snowden was clearly no fool in choosing to seek sanctuary in Hong Kong, though heaware of the coercive and corrupting power that the US can and does bring to bear on virtually any country. Though China is better situated than most to resist such pressure, it appears that even China preferred not to pay the cost. Or perhaps Snowden's physical security could not be guaranteed as effectively in Hong Kong as at some secret location in Sheremetyevo International Airport in Moscow.

The paradox to be resolved is that the US justice system cannot be trusted, as would be necessary to permit a fair trial to go forward under constitutional protections, to rein in a secrecy-obsessed and vengeful government determined to crush a patriot who has exposed the government's illegal conduct. But at the same time, a legal process is the only means left to determine the question about the constitutionality of the government's conduct and Snowden's innocence.

As Snowden forum-shops and otherwise jousts with the US government within an international legal context, he might consider negotiating his voluntary participation in his trial, prior to any extradition. He could first participate from outside the country through lawyers in pretrial proceedings as discussed above. He would have better capacity to communicate with his lawyers if he were not in a US jail due to denial of bond. Second, he could negotiate to retain an option to participate in the trial by telecommunication with the courtroom in case the pretrial proceedings or other factors do not instill enough confidence for him to attend the trial. Such practices for taking evidence are allowed by law and are not uncommon. Rule 43 of The Federal Rules of Civil Procedure provides: "For good cause in compelling circumstances and with appropriate safeguards, the court may permit testimony in open court by contemporaneous transmission from a different location." Cf. F.R.Crim.P 26. Snowden's legitimate fear of returning to the US would seem good cause and his now widely followed case a compelling circumstance to use electronic means for cutting through the dilemma and allowing legal proceedings in his case to move toward some resolution without Snowden having to trust a defective US justice process to preserve his rights.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      

Such a digital age public trial would no doubt attract a large audience, serving Snowden's ultimate purpose of educating, along with the jury, the American people – and even the world – about one of the most fundamental of democratic rights.

Such an offer of negotiations by Snowden could only strengthen the hand of any country who takes what his experience in China has apparently shown to be the costly step of resisting an extradition request or extra-legal "request for return" of its citizen by the US. The asylum country could insist that before it will entertain or decide any extradition request, the US must either conduct pre-trial proceedings satisfactory to Snowden or obtain a conviction of Snowden through such a fair "quasi in absentia" proceeding that follows constitutional procedures under guarantees as might be agreed by Snowden.

The allegation of criminal charges against Snowden by the same executive branch which stands at least as plausibly charged with the even more serious violation of the Constitution can as easily be characterized as self-interested political repression. Both sets of charges cannot coexist. Obama, Holder and the DoJ are implicated in constitutional violations, are hence conflicted, and should be removed from the case in favor of an independent prosecutor to continue the negotiations. Promises of due process from officials of a country that ranks with banana republics on indices of judicial independence (#38), bribes (#42), trust in politicians (#54), government transparency (#56), political favoritism (#59) and organized crime (#87) cannot be relied upon without additional negotiated safeguards for fair trial and personal safety.

Until due process sorts out who is guilty and who is not, since the mass surveillance cabal and Snowden cannot be both guilty, an asylum country would be justified in claiming that what Snowden is charged with has not been proven to constitute a crime. Supportive polls indicate that it is the U.S, government, not Snowden, who has more likely acted unreasonably and therefore illegally.

Any trial of Edward Snowden will determine how much of the 1791 Constitution remains in force in one of the great civil liberties contests in American history. The jury – and the American people – would then choose between Obama's Constitution, which insulates the state – and those who buy influence peddled by its politicians – from the consent of the governed by manipulating reality, or Snowden's Constitution which empowers an informed people to protect themselves against tyrannical state intrusions upon their liberty by "uncovering" reality. Edward Snowden's trial could be comparable to the celebrated John Peter Zenger Trial in colonial times. Although, as then, the judiciary presides over what amounts to a taxed-without-representation colony of an illegitimate ruling class which it serves, a fairly selected and instructed jury, supported by the people, watched by the world, could nonetheless – by standing in solidarity against that class – win a resounding victory for liberty which could be an essential stepping stone toward regaining democracy in America from a tyrannical and corrupt state.

This piece was reprinted by Truthout with permission or license. It may not be reproduced in any form without permission or license from the source.

Rob Hager

Rob Hager and James Marc Leas are lawyers active with Occupy Wall Street in their respective towns. Hager is an experienced public interest litigator while Leas specializes in patent law.

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