Via
Freedom Outpost
Bruce Fein & Associates, Inc.
722 12th Street, N.W., 4th Floor
Washington, D.C. 20005
(Editor’s Note: Phone and Email Omitted)
July 26, 2013
President Barack Obama
The White House
1600 Pennsylvania Avenue, N.W.
Washington, D.C. 20500
Re: Civil Disobedience, Edward J. Snowden, and the Constitution
Dear Mr. President:
You are acutely
aware that the history of liberty is a history of civil disobedience
to unjust laws or practices. As Edmund Burke sermonized, “All that is
necessary for the triumph of evil is that good men do nothing.”
Civil
disobedience is not the first, but the last option. Henry David Thoreau
wrote with profound restraint in Civil Disobedience: “If the injustice
is part of the necessary friction of the machine of government, let it
go, let it go: perchance it will wear smooth certainly the machine will
wear out. If the injustice has a spring, or a pulley, or a rope, or a
crank, exclusively for itself, then perhaps you may consider whether the
remedy will not be worse than the evil; but if it is of such a nature
that it requires you to be the agent of injustice to another, then, I
say, break the law. Let your life be a counter friction to stop the
machine.”
Thoreau’s moral
philosophy found expression during the Nuremburg trials in which
“following orders” was rejected as a defense. Indeed, military law
requires disobedience to clearly illegal orders.
A dark chapter
in America’s World War II history would not have been written if the
then United States Attorney General had resigned rather than participate
in racist concentration camps imprisoning 120,000 Japanese American
citizens and resident aliens.
Civil
disobedience to the Fugitive Slave Act and Jim Crow laws provoked the
end of slavery and the modern civil rights revolution.
We submit that
Edward J. Snowden’s disclosures of dragnet surveillance of Americans
under § 215 of the Patriot Act, § 702 of the Foreign Intelligence
Surveillance Act Amendments, or otherwise were sanctioned by Thoreau’s
time-honored moral philosophy and justifications for civil disobedience.
Since 2005, Mr. Snowden had been employed by the intelligence
community. He found himself complicit in secret, indiscriminate spying
on millions of innocent citizens contrary to the spirit if not the
letter of the First and Fourth Amendments and the transparency
indispensable to self-government. Members of Congress entrusted with
oversight remained silent or Delphic. Mr. Snowden confronted a choice
between civic duty and passivity. He may have recalled the injunction of
Martin Luther King, Jr.: “He who passively accepts evil is as much
involved in it as he who helps to perpetrate it.” Mr. Snowden chose
duty. Your administration vindictively responded with a criminal
complaint alleging violations of the Espionage Act.
From the
commencement of your administration, your secrecy of the National
Security Agency’s Orwellian surveillance programs had frustrated a
national conversation over their legality, necessity, or morality. That
secrecy (combined with congressional nonfeasance) provoked Edward’s
disclosures, which sparked a national conversation which you have
belatedly and cynically embraced. Legislation has been introduced in
both the House of Representatives and Senate to curtail or terminate the
NSA’s programs, and the American people are being educated to the
public policy choices at hand. A commanding majority now voice concerns
over the dragnet surveillance of Americans that Edward exposed and you
concealed. It seems mystifying to us that you are prosecuting Edward
for accomplishing what you have said urgently needed to be done!
The right to be
left alone from government snooping–the most cherished right among
civilized people—is the cornerstone of liberty. Supreme Court Justice
Robert Jackson served as Chief Prosecutor at Nuremburg. He came to learn
of the dynamics of the Third Reich that crushed a free society, and
which have lessons for the United States today.
Writing in Brinegar v. United States, Justice Jackson elaborated:
The Fourth
Amendment states: “The right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated, and no Warrants shall issue, but
upon probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to be
seized.”
These, I
protest, are not mere second-class rights but belong in the catalog of
indispensable freedoms. Among deprivations of rights, none is
so effective in cowing a population, crushing the spirit of the
individual and putting terror in every heart. Uncontrolled search and
seizure is one of the first and most effective weapons in the arsenal of
every arbitrary government. And one need only briefly to have dwelt and
worked among a people possessed of many admirable qualities but
deprived of these rights to know that the human personality deteriorates
and dignity and self-reliance disappear where homes, persons and
possessions are subject at any hour to unheralded search and seizure by
the police.
We thus find your administration’s zeal to
punish Mr. Snowden’s discharge of civic duty to protect democratic
processes and to safeguard liberty to be unconscionable and
indefensible.
We are also
appalled at your administration’s scorn for due process, the rule of
law, fairness, and the presumption of innocence as regards Edward.
On June 27,
2013, Mr. Fein wrote a letter to the Attorney General stating that
Edward’s father was substantially convinced that he would return to the
United States to confront the charges that have been lodged against him
if three cornerstones of due process were guaranteed. The letter was not
an ultimatum, but an invitation to discuss fair trial imperatives. The
Attorney General has sneered at the overture with studied silence.
We thus suspect
your administration wishes to avoid a trial because of constitutional
doubts about application of the Espionage Act in these circumstances,
and obligations to disclose to the public potentially embarrassing
classified information under the Classified Information Procedures Act.
Your decision
to force down a civilian airliner carrying Bolivian President Eva
Morales in hopes of kidnapping Edward also does not inspire confidence
that you are committed to providing him a fair trial. Neither does your
refusal to remind the American people and prominent Democrats and
Republicans in the House and Senate like House Speaker John Boehner,
Congresswoman Nancy Pelosi, Congresswoman Michele Bachmann,and Senator
Dianne Feinstein that Edward enjoys a presumption of innocence. He
should not be convicted before trial. Yet Speaker Boehner has denounced
Edward as a “traitor.”
Ms. Pelosi has
pontificated that Edward “did violate the law in terms of releasing
those documents.” Ms. Bachmann has pronounced that, “This was not the
act of a patriot; this was an act of a traitor.”
And Ms. Feinstein has
decreed that Edward was guilty of “treason,” which is defined in Article
III of the Constitution as “levying war” against the United States, “or
in adhering to their enemies, giving them aid and comfort.”
You have let
those quadruple affronts to due process pass unrebuked, while you have
disparaged Edward as a “hacker” to cast aspersion on his motivations and
talents. Have you forgotten the Supreme Court’s gospel in Berger v.
United States that the interests of the government “in a criminal
prosecution is not that it shall win a case, but that justice shall be
done?”
We also find
reprehensible your administration’s Espionage Act prosecution of Edward
for disclosures indistinguishable from those which routinely find their
way into the public domain via your high level appointees for partisan
political advantage. Classified details of your predator drone
protocols, for instance, were shared with the New York Times with
impunity to bolster your national security credentials. Justice Jackson
observed in Railway Express Agency, Inc. v. New York: “The framers of
the Constitution knew, and we should not forget today, that there is no
more effective practical guaranty against arbitrary and unreasonable
government than to require that the principles of law which
officials would impose upon a minority must be imposed generally.”
In light of the
circumstances amplified above, we urge you to order the Attorney
General to move to dismiss the outstanding criminal complaint against
Edward, and to support legislation to remedy the NSA surveillance abuses
he revealed. Such presidential directives would mark your finest
constitutional and moral hour.
Sincerely,
Bruce Fein
Counsel for Lon Snowden
Lon Snowden
