by Mike Masnick
Mon, Feb 3rd 2014 8:07pm
by Tim Cushing
Mon, Nov 25th 2013 1:56pm
Editorial Claims Houston Prosecutors Are Pushing Through Nearly 1,000 Sex Trafficking Indictments Every Day
from the do-you-even-math dept
Editorials written in support of legislation are prone to conjuring up hysterical situations/numbers in order to drive the point home. You can't motivate the average reader if there's no hook. But the editorial writer should at least make sure the numbers being used don't immediately prompt incredulous laughter from any reader with a couple of functioning brain cells.
The editorial board for the Dallas Morning News recently issued a regrettable opinion piece supporting the Justice for Victims of Trafficking Act, which was introduced last week. In the writer's hurry to portray human trafficking as a terrible blight on humanity, credibility went right out the window.
Two Texas Republicans, Sen. John Cornyn and Rep. Ted Poe of the Houston area, are co-sponsoring a bill that would impose stiff penalties on these adult victimizers of up to life in prison. The Justice for Victims of Trafficking Act, which has bipartisan support in both houses, would supplement an existing law that focuses primarily on punishing sex-trafficking organizations abroad.That ridiculous figure, which posits that Houston prosecutes nearly 900 sex traffickers a day (if working 365 days a year), has since been removed by the editorial squad at Dallas Morning News. The update line notes that "inaccurate numbers" had been used and have since been deleted. (The original version can be found here towards the middle of the page.)
Poe and Cornyn estimate that one-quarter of U.S. sex-trafficking victims have Texas roots. Poe says our state's proximity to Mexico and high immigrant population give the state a particularly high profile. In Houston alone, about 300,000 sex trafficking cases are prosecuted each year. Tighter border controls and reduced profit margins from the drug trade are pushing organized crime groups to turn increasingly to sex trafficking, law enforcers say.
This amazing claim was completely debunked by Houston criminal defense attorney Mark Bennett, who broke down actual prosecution stats and the possible rationale behind the Dallas News' decision to run with the 300,000/year claim.
Nobody seems to know where that 300,000 number comes from. (Maggie McNeill suggests a plausible genesis here and here.) It’s a couple of orders of magnitude less obviously wrong than the same number attributed to Houston, but still glaringly obviously wrong—if the wrongness of “300,000 sex-trafficking cases in Houston” were equivalent to getting smacked upside the head with a 2X4, “300,000 sex-trafficking cases in the United States” would be getting poked in the arm with a fork.That's the hype. Here are the numbers.
In Harris County, according to Texas Office of Court Administration statistics, 36,862 new felony cases were filed and 68,142 new misdemeanor cases were filed in 2012. So the total of all new cases filed in Harris County is nowhere near the 300,000 sex trafficking cases asserted by the Dallas Morning News.Bennett speculates the DMN may have just misquoted Rep. Ted Poe, one of the sponsors of the bill.
Poe, a Republican from Humble, said sex trafficking rings prey on the large number of immigrant women and girls living in the Houston area and across Texas, accounting for a disproportionate share of the estimated 300,000 sex trafficking cases prosecuted each year.As Bennett points out, there aren't even 300,000 federal prosecutions nationwide per year. 2010's report shows only 91,047 people being prosecuted in federal courts, so even Poe's nationwide claim is demonstrably false. Even more damning are these numbers.
Federally funded human trafficking task forces opened 2,515 suspected incidents of human trafficking for investigation between January 2008 and June 2010.Now, it's bad enough that one of the bill's sponsors would throw out an unresearched "statistic" like this while pushing legislation. But that's somewhat expected from our politicians, especially when they've got a horse in the race. But it's even worse when a journalistic entity not only takes this stat at face value, but makes it comically worse by severely reducing its scope from national to local.
Mistakes will be made occasionally. I understand that. But this one should never have made it past the first round of editing. Certainly Rep. Poe is partially to blame for this, but the paper's editorial team should know that presenting patently untrue claims as fact severely weakens its stance on the issue. Of course, coming out in favor of punishing sex traffickers is hardly a controversial stance, so it's likely the editorial didn't receive a thorough vetting before publication.
But letting this slip through compromises the paper's credibility and accepting Rep. Poe's "statistics" as fact indicates DMN is in possession of a faulty BS-detector, something no serious journalistic entity should ever let fall into disrepair.
by Mike Masnick
Mon, Oct 14th 2013 11:47am
from the locking-up-the-law dept
The issue? Malamud had purchased, formatted and posted Mississippi's Code of Law, Annotated. As with Georgia, the real issue seems to be in the question of whether or not the annotations themselves are covered by copyright, as they're often produced and sold by a private company (usually LexisNexis), but in coordination with the government. That's the case here, as the letter Malamud received from Mississippi's intellectual property counsel, Larry Schemmel, suggests. Schemmel goes to great lengths to point out that the unannotated code is "freely available," but that the "creative work" behind the annotations is covered by copyright, and thus should be taken off of Malamud's site.
However, as Malamud notes in his response letter (complete with a bunch of "exhibits"), the State of Mississippi makes it fairly clear that the annotated code is part of the law, and thus he argues it, too, should be freely accessible:
Exhibit K contains the marketing literature provided by your vendor. As you can see, any citizen and certainly any lawyer would feel totally remiss in not using the the official annotated version of the Code. The marketing literature stresses that:Malamud further challenges (in great detail) the argument that even the unannotated version is freely available, noting that LexisNexis throws up a giant pop-up before you can access it that requires you to agree to terms and conditions that are not at all reasonable for public domain information like official laws.Be sure that the law you read is the law indeedAs you can see, it is very clear that the Code is the official statement of the law as promulgated by the State. This is not some independent commercial endeavor, this is an official process under the direction of the State.
Official isn’t just a word. It’s a process. The Mississippi Joint Legislative Committee on Compilation, Revision and Publication of Legislation maintains careful editorial control over the publication of the official code, from the moment LexisNexis receives the acts to the ﬁnal galley proofs of the ﬁnished product. Their strict supervision ensures that the published code and its supplements contain no errors in content, conform carefully to the numbering scheme, and publish in a timely manner.
Cite the code that’s guaranteed to be right Because it’s official, you can rely on LexisNexis’ Mississippi Code of 1972 Annotated for the correct statement of the law ...
I have attached as Exhibit L the same section earlier attached from Exhibit D, this one being the annotated version. As you can see by comparing the two, the Annotated Code includes important cross references, research references, and Editor’s Notes. The Editor’s notes are not simply creative work, they are important materials. For example, the note to § 1-1-11 is a reference to a statement adopted by the Joint Legislative Committee on Compilation, Revision and Publication of Legislation. Statements such as these are part and parcel of the law, statements of the codiﬁers that add important information to the original statutes.
Those Terms and Conditions, which are attached in Exhibit B, consists of an extensive license agreement spanning 5 pages of exceedingly technical language in ﬁne print.He also notes that LexisNexis has made it impossible to share the information contained in even the unannotated law via a URL:
Some of the highlights of the agreement include fairly draconian prohibitions against efective use, including a prohibitions against the ability to “copy, modify, reproduce, republish, distribute, display, or transmit for commercial, non-proﬁt or public purposes all or any portion of this Web Site.”
The user interface your vendor presents is full of links to various proprietary products, but there is a little print icon, which presents a semi-clean version of the text, as shown in Exhibit E. However, there is a huge ﬂaw in the user interface, in that the URL that is presented does not allow a user to share what they are looking at with other users. If you mail the URL to a friend, you don’t get the section of the Code, you get a screen from your vendor hawking proprietary products as shown in Exhibit F.He further notes that the site LexisNexis put together is "replete with HTML errors" as well as CSS errors, preventing modern browsers from being able to display it properly. Also (and this is potentially a big legal issue), the site does not comply with the accessbility requirements of the US Rehabilitation Act, which requires such information be made available to people with disabilities.
Malamud, in his Kickstarter update also highlights the incredibly detailed and painstaking process by which he sent this particular response to officials in Mississippi. This includes printing it all out and binding it very professionally, sending along a professional grade self-inking rubber stamp with the statement originally stated by Supreme Court Justice Stephen Breyer that "If a law isn't public, it isn't a law," and finally packing the whole thing up in a box with red, blue and white "crinkle-pak" in the design of the Mississippi flag. Here are just a few of the photos (more if you click on any of the images which will take you to the update):
You may wonder why all the hooptedoodle and fancy printing? We want to send a message that we're very serious about this and that posting the Mississippi Code was not a casual hack, but a deliberate and carefully considered decision to make the laws of the states available to citizens. I've been presenting these kinds of issues to governments for over 20 years, and I've learned that you have to show determination, and nothing shows determination like a professional-grade rubber stamp.On that note, I'm heading out to get some professional-grade rubber stamps.
by Mike Masnick
Sat, Oct 5th 2013 9:00am
from the openness-is-good dept
- Public Safety Codes of the World. We've written many times about Carl Malamud and his work with Public.Resource.org to buy up various "standards" that have been incorporated into US laws, and then making them freely available to the public, under the belief that the law should never be locked up and subject to copyright protections. Tragically, many standards are written by industry bodies, who then try to support themselves by selling (at exorbitant prices) copies of the details of those standards. But when politicians then write those standards into the law, it seems quite reasonable that the details of the standards really should be free. This is expensive work, since it involves buying up lots of standards and (all too frequently) fending off legal attacks. Given that, Malamud is seeking at least $100,000 to continue Public.Resource's work. The key goal behind this particular effort is to take many of the standards they've already scanned and turn them into HTML to make them much more accessible and usable.
Next up is a really interesting project from Underground Meats, where they're looking to Open Source their Food Safety Model. I had seen a couple friends back this, but didn't really look into the details until later. Basically, this is a small meat processing facility that is trying to become a USDA-certified meat processor. Apparently, the process is incredibly cumbersome and convoluted (welcome to having to deal with government bureaucracy). There is, of course, good intent behind some of this: the process to make sure that your meat production is safe should require some effort. But, at the same time, as we've seen for years, many companies have used massive bureaucratic regulatory schemes as an effective way to keep out small and innovative competitors, because the barrier to entry is so high. Here, no one is complaining about the need for a detailed food safety and sanitary practice plan, known as a HACCP (Hazard Analysis and Critical Control Points) as part of the process -- but they are annoyed that every company going through this process needs to start from scratch, rather than learning from and building on those who have already gone through the process. Most big companies who have gone through the HACCP process then lock it up, claiming that they're covered by copyright.
That's where this project comes in. The folks at Underground Meats are looking to not just "open source" their HACCP, but public domain it, by putting using a CC0 license to effectively dedicate the work to the public domain so others can make use of it.
by Tim Cushing
Wed, Aug 21st 2013 3:40pm
Rep. Mike Fitzpatrick Introduces Bill To Smack The NSA In The Wallet For Each Data Collection Violation
from the keyed-in-the-wrong-country-code?-that's-a-paddlin' dept
Another day and another legislative attempt to rein in the NSA. NJ Congressman Rush Holt led the way by announcing his plan to introduce a bill to repeal the PATRIOT Act and the FISA Amendments act back on July 11th. This was followed by Michigan Congressman Justin Amash's attempt to attach an NSA-defunding amendment to the Dept. of Defense appropriations bill making its way through the house.
A little later, Amash's amendment suffered a narrow defeat, thanks in part to the Chairman of the House Intelligence Committee withholding key information from other members of Congress. Rush Holt's bill is still a work in progress and Amash is planning legislation of his own that will set out to do what his failed amendment attempted. Meanwhile, a whole bunch of others in Congress have jumped in as well, which the ACLU has been conveniently tracking.
Now, another Congressman, Mike Fitzpatrick of Pennsylvania, is introducing his own legislation.
Rep. Mike Fitzpatrick (R-Pa.) proposed legislation on Monday that would cut National Security Agency (NSA) funding if it violates new surveillance rules aimed at preventing broad data collection on millions of people.Unlike the NSA's surveillance efforts (zing!), Fitzpatrick's bill is specifically targeted to problematic wording in the FISA Act, making a few changes to Section 501 subsection (b)(2)(a). Here's how his proposed changes would alter the current wording. [Additions in bold, strikethru hopefully self-explanatory.]
"This bill tells the NSA that if they unlawfully spy on Americans again, Congress will take away their funding," Fitzpatrick said of his NSA Accountability Act. "The bill also makes it clear that the NSA can only track Americans where strong evidence suggests they are doing wrong."
The three-term Republican said his bill is a reaction to this month's press reports saying that the NSA overstepped its bounds thousands of times as it collected data on Americans from April 2011 to March 2012. An audit published by The Washington Post reported nearly 2,800 incidents of unauthorized data collection and storage.
(A) a statement of specific and articulable facts showing that there are reasonable grounds to believe that the tangible things sought are relevant and material to an authorized investigation (other than a threat assessment) conducted in accordance with subsection (a)(2) to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism orWhat the amendment would do is (hopefully) more narrowly define "relevant." As it stands now, the FISA Act allows for the collection of tangible things presumptively relevant, which as we've seen, tends to allow for a lot of ancillary data harvesting. Fitzpatrick removes that wording and replaces it with even more specifics -- "pertain only to an individual that is the subject of such investigation." In addition, he slices out subsections (i) through (iii), which further narrows down the acceptable data the NSA can pursue.
clandestine intelligence activities, such things being presumptively relevant to an authorized investigation if the applicant shows in the statement of the facts that they pertain toclandestine intelligence activities and pertain only to an individual that is the subject of such investigation; and
(i) a foreign power or an agent of a foreign power;
(ii) the activities of a suspected agent of a foreign power who is the subject of such authorized investigation; or
(iii) an individual in contact with, or known to, a suspected agent of a foreign power who is the subject of such authorized investigation; and
(B) an enumeration of the minimization procedures adopted by the Attorney General under subsection (g) that are applicable to the retention and dissemination by the Federal Bureau of Investigation of any tangible things to be made available to the Federal Bureau of Investigation based on the order requested in such application.
Whether or not these wording changes will prevent extra "hops" or more massive data hauls remains to be seen. But Fitzpatrick is waving a bit of stick in the form of budget cuts should the agency reach surpass its authority.
[T]he legislation holds that any violation of Section 501 would be met with a decision to withhold all unobligated funds to carry out that section of law until the end of the fiscal year.This may also encourage more targeted data collections, if for no other reason than so much of the NSA's work is outsourced to private contractors. Government officials may be able to protect their own paychecks in case of self-inflicted budget cuts, but they're going to have a hard time finding companies to work with them if internal malfeasance starts threatening their paychecks.
It's tough to say whether these legislative attempts have a chance in hell at passing, but the odds have vastly improved over the past few weeks. There's a ton of internal Congressional wrangling still ahead before these bills go up for a vote, but at this point, it's highly doubtful the NSA and the administration protecting it will be able to sufficiently polish their reputations before these bills hit the floor. And no matter what happens, it's refreshing to see the NSA being targeted by irate representatives and citizens, rather than the other way around.
by Mike Masnick
Fri, Aug 2nd 2013 6:45am
from the if-you-can-redefine-the-language dept
- Surveillance: When we actually access full content of your calls and emails, but not when we access all the data about who you talk to, where you are and what you do.
- Collect: When we run a search on data we
collecteder... "stored for safe keeping."
- Relevant: Everything. It might become relevant in the future, thus it's relevant today.
- Targeted: As long as we're collecting the info for an investigation that involves a "target" then any info is "targeted" even if that info has nothing to do with the "target."
- Incidental: Everything that we collect... er... store that may become "relevant" at some point but isn't now even though it's "targeted." In short: everything.
- Inadvertent: Stuff we did on purpose on a massive scale that looks bad when exposed publicly.
- Minimize: A term we use to pretend that we delete information on Americans, but which has many exceptions, including if you encrypted your communications or if we have a sneaking suspicion that you're 51% foreign based on a hunch.
- No: When said to Congress in response to questions about whether we collect data on millions of Americans, this means "fuck you."
by Mike Masnick
Tue, Jul 30th 2013 11:15am
Georgia Claims Its Annotated Laws Are Covered By Copyright, Threatens Carl Malamud For Publishing The Law
from the law-must-be-secret dept
But... some states just can't help themselves. The latest state to demonstrate how stupid this is would be the state of Georgia, which is now threatening to sue Carl Malamud and Public.Resource.org for daring to publish Georgia's annotated legal code. In a very weak attempt to distinguish this from copyrighting "the law" itself, the threat letter makes it clear that it's not claiming a copyright on the law per se, but rather "the copyrightable aspects," of "the Official Code of Georgia Annotated." From this, it would seem that they mean the annotations, which explain the law, are somehow covered by copyright. And they're not happy that someone, such as Carl Malamud, has the temerity to offer up this code so that those impacted by Georgia law might actually understand the laws they are bound to obey.
Therefore, we demand that you immediately: cease and desist your unlawful copying of the Official Code of Georgia Annotated; remove any and all files containing the Official Code of Georgia Annotated from the internet; destroy any and all files containing the Official Code of Georgia Annotated from the internet; and provide us with prompt written assurance within 10 days of receiving this letter that all such steps have been taken and that you will cease and desist from any further infringement of the copyrighted Official Code of Georgia Annotated.Given Malamud's history, and the fact that he himself reached out to the Georgia Code Revision Commission to let them know he was publishing the annotated version, I would imagine that he does not intend to cease and desist, but will fight this in order to show that such things should be publishable.
If you do not comply with this cease and desist demand within this time period, the State of Georgia, through the Georgia Code Revision Commission, is entitled to use your failure to comply as evidence of willful infringement and seek monetary damages and equitable relief for your copyright infringement.
But, really, why is the state of Georgia doing this in the first place? It's not as if the state needed the "incentive" of copyright to publish an annotated version of the law. If anything, this seems like copyright misuse. But, even beyond that, it just seems counterproductive from a public policy standpoint to want to make your own laws harder to understand.
Update: And, as expected, Malamud has responded. The entire letter is worth reading, but a quick snippet:
It is a long-held tenet of American law that there is no copyright in the law. This is because the law belongs to the people and in our system of democracy we have the right to read, know, and speak the laws by which we choose to govern ourselves. Requiring a license before allowing citizens to read or speak the law would be a violation of deeply-held principles in our system that the laws apply equally to all.
This principle was strongly set out by the U.S. Supreme Court under Chief Justice John Marshall when they stated “the Court is unanimously of opinion that no reporter has or can have any copyright in the written opinions delivered by this Court, and that the judges thereof cannot confer on any reporter any such right.” Wheaton v. Peters, 33 U.S. (8 Pet.) 591 (1834). The Supreme Court speciﬁcally extended that principle to state law, such as the Ofcial Code of Georgia Annotated, in Banks v. Manchester (128 U.S. 244, 1888) , where it stated that “the authentic exposition and interpretation of the law, which, binding every citizen, is free for publication to all, whether it is a declaration of unwritten law, or an interpretation of a constitution or a statute.”
by Tim Cushing
Fri, Jul 19th 2013 7:39pm
from the has-its-problems,-but-still-an-improvement dept
"Accountability" is a word often tossed around by government officials in an effort to appear trustworthy and genuine. However, this is seldom followed up by action. Everyone agrees it's a fine principle, but far too idealistic to apply to the realities of governing, apparently. Rep. Lynn Jenkins seems to both 1) believe the government needs more accountability and 2) be willing to do something about it.
On Wednesday, Jenkins introduced legislation that she says would expand the rights of Americans to record their conversations with federal employees. Under current law, people are only able to lawfully record certain in-person conversations with IRS officials.Jenkins' bill would cover conversations with personnel from a large number of agencies that fall under the "executive agency" label, which would include agencies from the Dept. of Justice and Dept. of Defense, among others.
But under Jenkins proposal, that law would be expanded to allow people to record both in-person and phone conversations with most agencies in the executive branch. It would also require these government officials to tell people they have the right to record these conversations.
The specifications of the bill allow individuals to record what could be loosely termed "protective" recordings -- the sort of recording that would prevent "he said/agency said" discrepancies further down the road.
Any employee of an Executive agency who is conducting an in-person or a telephonic interview, audit, investigation, inspection, or other official in-person or telephonic interaction with an individual, relating to a possible or alleged violation of any Federal statute or regulation that could result in the imposition of a fine, forfeiture of property, civil monetary penalty, or criminal penalty against, or the collection of an unpaid tax, fine, or penalty from, such individual or a business owned or operated by such individual, shall allow such individual to make an audio recording of such in-person or telephonic interaction at the individual’s own expense and with the individual’s own equipment.This would seem to cover conversations with such federal agencies as the ATF, DEA and the especially recording-shy FBI, the latter of which still prefers to use its own pen-and-paper accounts of "interviews." Unfortunately, even though these agencies (along with the DHS) fall under the "executive agency" banner, the bill's list of exceptions would seem to make almost every conversation with these agencies off limits.
EXCEPTIONS.—The "endanger public safety" exception is nothing more than an out for any agency remotely concerned with "fighting terrorism." This pretty much allows the DHS to prevent recording of conversations, even if the subject matter would seem to be completely unrelated to terrorist activity. Furthermore, the wording allows ANY agency to decide what will or won't "endanger" the general public, with the likelihood being that most conversations carry that potential.
(1) CLASSIFIED INFORMATION, PUBLIC SAFETY, CRIMINAL INVESTIGATION.—This section shall not apply to any in-person or telephonic interaction—
(A) that is likely to include the discussion of classified material;
(B) that is likely to include the discussion of information that, if released publicly, would endanger public safety; or
(C) that, if released, would endanger an ongoing criminal investigation if such investigation is being conducted by a Federal law enforcement officer (as defined by section 2 of the Law Enforcement Congressional Badge of Bravery Act of 2008) who is employed by a Federal law enforcement agency.
The FBI (along with the ATF, DEA and others) will be able to use exception (C) to prevent recordings, as almost all of these agencies' conversations will pertain to some sort of ongoing investigation.
Jenkin's bill may push accountability on some federal agencies, but the ones with the most worrying track records probably won't feel a thing. It would be extremely tough to sell this bill without the exceptions, but their inclusion severely undercuts the stated aim.
by Mike Masnick
Fri, Jul 19th 2013 7:33am
Overcriminalization: Congressional Research Service Doesn't Have The Manpower To List All Federal Crimes
from the perhaps-we-have-too-many dept
The task force staff asked the Congressional Research Service to update the calculation of criminal offenses in the federal code, which was last undertaken in 2008, said task force chairman Representative John Sensenbrenner (R-Wis.)There's clearly something very, very wrong about a criminal code where the governmental agency charged with doing basic research for Congress finds it too big a task to list out all of the crimes listed under federal law. At that point, you no longer have a "rule of law." You have a system of loopholes and gotchas, with enough tricks and traps that anyone can be made into a criminal if the authorities decide that's what they want to do. This isn't to suggest that law enforcement regularly goes after people with trumped up charges -- I don't think they do. However, it does happen sometimes. But, far more common, and equally worrisome, is how this allows law enforcement to pile on additional charges and potential punishment for people accused of relatively minor crimes.
"CRS's initial response to our request was that they lack the manpower and resources to accomplish this task," Sensenbrenner said Friday. "I think this confirms the point that all of us have been making on this issue and demonstrates the breadth of overcriminalization."
by Rob Hager
Wed, Jul 3rd 2013 11:33am
from the constitutional-analysis dept
Edward Snowden is not a constitutional lawyer. But his public 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 Court ).
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 Fourth Amendment.”
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 Amendment reasonableness.
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 speaks. Polls consistently 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 controlling government.
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 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 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.”
A TIME 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?
A 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 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.
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 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., 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 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, 31(d).
Obama's 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 impeachable wholesale 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 democratic rights.
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 liberty.
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.