Edward Snowden is not a constitutional lawyer. But his
statement 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 expresses 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.
Some 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 – is what the government has
now been forced to admit in its decision to prosecute Snowden for telling the
truth about their secret seizures. 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, 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 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 public deems
reasonable is what the Constitution means by reasonable. Though public
opinion is always relevant to interpretations of the Constitution, this is the
only context where the Constitution directly assigns to the people the power to
determine what the Constitution means.
By definition, the people cannot deem
to be "reasonable" what they do not 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 of their private electronic communications any more
reasonable than he did, and like him, as citizens, they might choose to act
upon that knowledge.
A strong case can be made that Snowden is right. Hence
there is no need for him, or his supporters,
to concede that he has broken any law. According to the Supreme
Court, "it remains a cardinal principle that searches
conducted outside the judicial process, without prior approval by judge or
magistrate, are per se unreasonable 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 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.
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 authoritarian intrusion
by central government on autonomous self-governing citizens that the Bush and Obama
administrations' power-grabbing, privacy-invading nationwide snooping on
innocent citizens represents. At least three constitutional protections
against tyranny in addition to the Fourth Amendment reasonableness requirement
should also invalidate such encroachments.
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,131 S. Ct. 2355, 2365 (2011) (Kennedy, J., for unanimous
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 search and seizure 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.
Allowing the executive branch to decide the reasonableness of its own
actions would defeat the purpose of the Fourth Amendment. Hence the views
of Obama, his prosecutors, military, and spies are all irrelevant to this
determination. They stand accused of violating the rule of reasonableness
which, not them, but the people must decide.
The judicial power under Article III of the Constitution
extends only to the application of law in 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 even against
the subset of all the customers of Verizon. Only a police state with
its secret tribunals takes such an adversarial posture against its own people.
Where the government diffusely suspects and secretly snoops on the whole
people, in a democracy, it is the government itself that proves itself
illegitimate, unrepresentative, unreasonable, and in violation of its oath to
support the Constitution.
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. Having a judge authorize an act
does not turn that authorization into a “judicial process” as required by Katz.
No judge or magistrate, let alone one judge of a multi-judge tribunal,
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 cases. As stated in Acevedo and Katz
quoted above, it is therefore presumed “per se unreasonable under the
A legislature authentically representative of the people
might determine that such a generalized search 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). That has
obviously not been done. Few in Congress were even aware of the scope of
the snooping being conducted by the Obama administration and its strained
interpretations of law. Nor were they aware of the advisory opinions from
a nominal court in fact acting as a secret unelected legislature acting in
secret complicity with the executive branch to circumvent constitutional norms
and usurp its legislative power.
Legislators were in any event proscribed from sharing with
their constituents any knowledge they did acquire. Hence they could not
represent any views of their constituents about the reasonability of secret
spying which their constituents did not even know about.
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 the local common law crimes traditionally
described as “riot” or “mayhem.” The federal government has no
generalized power to enforce state criminal law or make its own. 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. 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 indictments and prosecutions to prove it?
Since the “war” against terrorism is not a war in
any traditional meaning of the term, but rather 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 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 framer's original concept of war did not include overseas imperial
adventures. The Third Amendment bespeaks war within the United States.
Electronic communications capacity 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 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
Aside from these constitutional restrictions on Congress
from authorizing a universal spying program, and Congress's actual failure to
assess and represent general public views about the reasonableness of mass
spying, there is another factor that precludes Congress as it functions in the
era of money in politics from representing the objective public view of Fourth
What makes a modern Paul Revere like Edward Snowden
necessary is that even Congress itself cannot be trusted to represent the will
of the people, in these corrupt times, on virtually any subject on which money
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 (95%) that
big money invests in politics for the large financial returns it earns by
Such polls indicate a widespread understanding that Congress
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 a lot of such money. Thus enactment of a law by
Congress purporting to determine what the people think is reasonable is not
necessarily a valid constitutional 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 enough politicians to dictate
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 dependent upon that “consent of the governed” engraved on its
foundation stone when laid in 1776. Without civil liberty, money can
continue to rule by purchasing influence from its elected peddlers. 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 who pays them. 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.
What do the American people consider reasonable concerning
mass surveillance? 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
“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 far enough: 41%
Will go too far: 48%
Neither (vol.): 5%
No opinion: 4%
A Pew poll taken
after the Snowden revelations confirmed that a similar majority finds mass
surveillance unreasonable. They answered “no” by 52-45% to the
straightforward question: “Should the gov't be able
to monitor everyone's email to prevent possible terrorism?” On the question
of whether Snowden's NSA leak “serves the public interest” a majority
with an opinion thinks it did, by 49-44%. If they “knew government had
collected their data,” 63% said 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.”
poll has 54% thinking Snowden did a “good thing,” in response to a
neutrally phrased question:
“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?
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 dismisses the claimed need for
secrecy as being more important than their own privacy interests.
When such a majority, or even a substantial minority,
opposes government snooping in 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 person would accept.
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 reasonableness of dragnet
surveillance. 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.
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 case that
swallows any such firm rule based primarily on word-play. The five-judge
majority 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, which has
essentially just happened, for all private digital communications purposes.
In other words, 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 not dependent upon their 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.”
Three Smith dissenters, Marshall and Brennan,
expressly, and Stewart, implicitly, thought the “normative” exception should
have governed the Smith case itself. Smith was a case where
the pen register targeted the phone of a specific suspect of a specific crime
against a known victim involving use of the telephone, the evidence of which
crime was strong enough that the suspect was ultimately convicted. The
Court's rationale was that Smith reasonably expected the telephone company to
know the number he called, which knowledge – once shared with the police -
provided evidence of his guilt.
Smith provides no support for the idea that the
public would either expect or consider “normatively” reasonable the
indiscriminate maintenance of pen registers for all the electronic
communications of persons, the overwhelming portion of whom were not remotely
suspected, let alone probably guilty, of any specific crime either involving or
not involving such communications.
Justice Marshall also cogently attacked the word-play
foundations of Smith 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 the false dichotomy of expectations used
by the majority is a logical fallacy and propaganda technique, the public would
likely find far more reasonable the relativist 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 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
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.,
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 a fairly small 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 if other jurors refuse to negotiate.
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 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
chicken-coop, and to the judges who invent defenses subversive of the
Constitution in order to exempt those officials from their constitutional
responsibility. Even aside from judge-made official immunities, 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 immunity doctrines, in catch-22 fashion, block
plaintiffs from 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 toward achieving legitimate
law enforcement goals. As observed by one of the last great Supreme Court
Justices, appointed just prior to the institutionalization
of Nixonian corruption, in Fourth Amendment cases
the “Court has become a loyal foot soldier in the Executive's fight against
crime.” (Stevens, J.). 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 terrorism offered to justify its new erosion of liberties.
If any 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 done in secret. The remaining public 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 because of the paradoxical notion that the US Military, which is
uniformly sworn “to support this Constitution” as required by Article VI (cl.
3) thereof, can operate as a Constitution-free zone in its treatment of
soldiers like Manning under the false pretense that their actual sworn duty is
to do anything the military determines necessary or proper 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 supposedly justifies
the betrayal, but in fact excuses only skipping the Fifth Amendment indictment
of a soldier who is “in actual service in time of War or public danger”
not a Sixth Amendment trial.
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 refugee status– will present a difficult
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.
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 show generally favor 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,
aspiring police-state's whole project of classifying 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 be a profoundly illegal abuse of power.
Snowden has a different argument that his revelation to
countries who are not enemies of the United States about US hacking is also not
punishable. State-sponsored hacking is increasingly seen as an act of
aggression inconsistent with international law, a principle accepted by the
U.S. which 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 U.S. Constitution. In any Snowden trial the
preservation of the original constitutional protection against creation of a
police state will require that a fairly impaneled and informed jury decide this
question of reasonableness without interference from the state apparatus of
secret courts and secret laws that belie any notion of due process.
Since the US justice system cannot be trusted, as a matter of course, to provide constitutional due process, Snowden would need to negotiate the
rules of the game before consenting to face a U.S. trial. He has some strong
cards to play in such negotiations, if he can stay alive. If he plays those
cards 1) to draw a judge not blackmailed by or otherwise secretly dependent
upon the national security state, 2) to get a fair jury impaneled, and then 3)
to fairly place before that jury the question whether the government's snooping
was unreasonable, he need not remain a fugitive from US injustice.
Such a trial would constitute a fair test, and a useful one,
of whether Snowden was guilty of anything other than defending the Constitution
in the noble spirit of '76, whether Obama and his military is guilty of
violation of the Constitution, and whether the US has retained sufficient
liberty that it can still be counted among the world's democracies, a status
that Europe is beginning to doubt. Although if ignorant politicians and
propagandists in and outside of government continue to charge Snowden with
espionage, 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
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 axe of its own
to grind in the Snowden affair.
By international standards, the US and its judiciary rank
below Hong Kong on a 2012-13
rule of law index. While American 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 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 sanctuary in Hong Kong, though he is aware
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 his security could not guaranteed as effectively in Hong Kong
as in Moscow, for the time being.
The paradox to be resolved is that the US justice system
cannot be trusted to rein in a secrecy-obsessed and vengeful government exposed
in illegal conduct as necessary to permit a fair trial to go forward under
constitutional protections; but at the same time a legal process is the only
means to resolve 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 making an
offer to voluntarily participate in his trial, prior to any extradition, from
outside the country by telecommunication with the courtroom. 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 conclusion without Snowden having to trust a defective U.S. justice
process to preserve his rights.
Such a digital age trial would no doubt attract a large
audience, serving the ultimate purpose of educating, along with the jury, the
American people – and even the world – about one of the most fundamental
Such an offer by Snowden could only strengthen the hand of
any country who takes what his experience in China has apparently shown to be
the costly act of resisting an extradition request by the U.S. The asylum
country could insist that before it will entertain any extradition request, the
U.S, must obtain a conviction of Snowden through such a fair “in absentia”
proceeding following constitutional procedures as might be agreed by Snowden –
rather than make a mere allegation that can as easily be characterized as
political repression. Until then an asylum country would be justified in
claiming that what Snowden did was no crime as indicated by the supportive
polls indicating that it is the U.S, government, not Snowden, who has 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. If Snowden is who
he appears to be, his trial could be comparable to the celebrated John Peter
Zenger Trial in colonial times. Though, 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
Rob Hager writes on public corruption issues and is a public interest litigator who wrote and filed briefs in the Supreme Court's 2012 Montana states rights sequel to Citizens United, American Tradition Partnership, Inc. v. Bullock.