Bruce Fein & Associates, Inc.
722 12th Street, N.W., 4th Floor
Washington, D.C. 20005
July 26, 2013
President Barack Obama
The White House
1600 Pennsylvania Avenue, N.W.
Washington, D.C. 20500
Re: Civil Disobedience, Edward J. Snowden, and the Constitution
Dear Mr. President:
You are acutely aware that the history of liberty is a history of civil disobedience to unjust laws or practices. As Edmund Burke sermonized, “All that is necessary for the triumph of evil is that good men do nothing.”
Civil disobedience is not the first, but the last option. Henry David Thoreau wrote with profound restraint in Civil Disobedience: “If the injustice is part of the necessary friction of the machine of government, let it go, let it go: perchance it will wear smooth certainly the machine will wear out. If the injustice has a spring, or a pulley, or a rope, or a crank, exclusively for itself, then perhaps you may consider whether the remedy will not be worse than the evil; but if it is of such a nature that it requires you to be the agent of injustice to another, then, I say, break the law. Let your life be a counter friction to stop the machine.”
Thoreau’s moral philosophy found expression during the Nuremburg trials in which “following orders” was rejected as a defense. Indeed, military law requires disobedience to clearly illegal orders.
A dark chapter in America’s World War II history would not have been written if the then United States Attorney General had resigned rather than participate in racist concentration camps imprisoning 120,000 Japanese American citizens and resident aliens.
Civil disobedience to the Fugitive Slave Act and Jim Crow laws provoked the end of slavery and the modern civil rights revolution.
We submit that Edward J. Snowden’s disclosures of dragnet surveillance of Americans under § 215 of the Patriot Act, § 702 of the Foreign Intelligence Surveillance Act Amendments, or otherwise were sanctioned by Thoreau’s time-honored moral philosophy and justifications for civil disobedience. Since 2005, Mr. Snowden had been employed by the intelligence community. He found himself complicit in secret, indiscriminate spying on millions of innocent citizens contrary to the spirit if not the letter of the First and Fourth Amendments and the transparency indispensable to self-government. Members of Congress entrusted with oversight remained silent or Delphic. Mr. Snowden confronted a choice between civic duty and passivity. He may have recalled the injunction of Martin Luther King, Jr.: “He who passively accepts evil is as much involved in it as he who helps to perpetrate it.” Mr. Snowden chose duty. Your administration vindictively responded with a criminal complaint alleging violations of the Espionage Act.
From the commencement of your administration, your secrecy of the National Security Agency’s Orwellian surveillance programs had frustrated a national conversation over their legality, necessity, or morality. That secrecy (combined with congressional nonfeasance) provoked Edward’s disclosures, which sparked a national conversation which you have belatedly and cynically embraced. Legislation has been introduced in both the House of Representatives and Senate to curtail or terminate the NSA’s programs, and the American people are being educated to the public policy choices at hand. A commanding majority now voice concerns over the dragnet surveillance of Americans that Edward exposed and you concealed. It seems mystifying to us that you are prosecuting Edward for accomplishing what you have said urgently needed to be done!
The right to be left alone from government snooping–the most cherished right among civilized people—is the cornerstone of liberty. Supreme Court Justice Robert Jackson served as Chief Prosecutor at Nuremburg. He came to learn of the dynamics of the Third Reich that crushed a free society, and which have lessons for the United States today.
Writing in Brinegar v. United States, Justice Jackson elaborated:
The Fourth Amendment states: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing
the place to be searched, and the persons or things to be seized.”
These, I protest, are not mere second-class rights but belong in the catalog of indispensable freedoms. Among deprivations of rights, none is so
effective in cowing a population, crushing the spirit of the individual and putting terror in every heart. Uncontrolled search and seizure is one of the
first and most effective weapons in the arsenal of every arbitrary government. And one need only briefly to have dwelt and worked among a people possessed of many admirable qualities but deprived of these rights to know that the human personality deteriorates and dignity and self-reliance
disappear where homes, persons and possessions are subject at any hour to unheralded search and seizure by the police.
We thus find your administration’s zeal to punish Mr. Snowden’s discharge of civic duty to protect democratic processes and to safeguard liberty to be unconscionable and indefensible.
We are also appalled at your administration’s scorn for due process, the rule of law, fairness, and the presumption of innocence as regards Edward.
On June 27, 2013, Mr. Fein wrote a letter to the Attorney General stating that Edward’s father was substantially convinced that he would return to the United States to confront the charges that have been lodged against him if three cornerstones of due process were guaranteed. The letter was not an ultimatum, but an invitation to discuss fair trial imperatives. The Attorney General has sneered at the overture with studied silence.
We thus suspect your administration wishes to avoid a trial because of constitutional doubts about application of the Espionage Act in these circumstances, and obligations to disclose to the public potentially embarrassing classified information under the Classified Information Procedures Act.
Your decision to force down a civilian airliner carrying Bolivian President Eva Morales in hopes of kidnapping Edward also does not inspire confidence that you are committed to providing him a fair trial. Neither does your refusal to remind the American people and prominent Democrats and Republicans in the House and Senate like House Speaker John Boehner, Congresswoman Nancy Pelosi, Congresswoman Michele Bachmann,and Senator Dianne Feinstein that Edward enjoys a presumption of innocence. He should not be convicted before trial. Yet Speaker Boehner has denounced Edward as a “traitor.”
Ms. Pelosi has pontificated that Edward “did violate the law in terms of releasing those documents.” Ms. Bachmann has pronounced that, “This was not the act of a patriot; this was an act of a traitor.” And Ms. Feinstein has decreed that Edward was guilty of “treason,” which is defined in Article III of the Constitution as “levying war” against the United States, “or in adhering to their enemies, giving them aid and comfort.”
You have let those quadruple affronts to due process pass unrebuked, while you have disparaged Edward as a “hacker” to cast aspersion on his motivations and talents. Have you forgotten the Supreme Court’s gospel in Berger v. United States that the interests of the government “in a criminal prosecution is not that it shall win a case, but that justice shall be done?”
We also find reprehensible your administration’s Espionage Act prosecution of Edward for disclosures indistinguishable from those which routinely find their way into the public domain via your high level appointees for partisan political advantage. Classified details of your predator drone protocols, for instance, were shared with the New York Times with impunity to bolster your national security credentials. Justice Jackson observed in Railway Express Agency, Inc. v. New York: “The framers of the Constitution knew, and we should not forget today, that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally.”
In light of the circumstances amplified above, we urge you to order the Attorney General to move to dismiss the outstanding criminal complaint against Edward, and to support legislation to remedy the NSA surveillance abuses he revealed. Such presidential directives would mark your finest constitutional and moral hour.
Counsel for Lon Snowden
Don’t get me wrong, there are also joys of womb ownership – though, really, apart from the making of the (wanted) babies and the being a conduit for supernatural powers (re: Buffy), the having of a womb is a mostly fraught experience. It can be especially fraught for the younger owners, and even more so for those aged around 11 to 15 – the age when their wombs are ‘activated’ (ie the onset of puberty, and its partner in crime, menstruation). What this activation means is that the (very) young woman is now in possession of a human-making body. As my mother said to me, on the day I first began to menstruate, “You can become a mother, now”. Obviously, I ran screaming from the room, but I knew what she meant. She wasn’t telling me to go out and get pregnant (I must have grandchildren!). She was making sure I understood that my body had transformed into something very powerful, and, as the wisdom of Spiderman teaches, “With great power comes great responsibility”. Which is a whole lotta scary for a nearly 13 year old. (There is similar scary for boy-teenagers – “You can become a father, now” – but, since human-making doesn’t occur inside men’s bodies, I think the level of jeopardy is greater for women than for men).Of course, some parents are loathe to scare the crap out of their children, and some want to protect their children from the realities of the adult world. But their children are on an inexorable trajectory into a precarious and hormonal adulthood. A candid (and caring) conversation/s between parent and child goes a long way towards arming a teenager against the negative external (and internal) forces which they will encounter.
So, what does any of this have to do with the Twilight phenomenon? Well, I’m glad you asked. While there are many criticisms levelled at Twilight – its insipid female lead, its insipid prose, its insipid (conservative) gender politics, the ludicrousness of vampires that sparkle in the sunlight – the books and movies are very popular. And the main demographic for this popularity is young women, especially women teenagers. Why, why, why? Of course, the main character, Bella, is also a teenager (17 years old), but there are other stories with young female protagonists. Why are so many drawn to Twilight? What is the nature of this attractive energy, which seethes between the pages/celluloid of Twilight, and lures the unsuspecting girl/woman into its lair? (Hint: the perils of womb ownership).
Here are my (probably overreaching) theories:
Theory 1: Fear of sexual desire.
[Not that sexual desire is a bad thing, or inherently frightening.]
What I mean is that sexual desire can be a powerful and consuming experience. And, for newly hormonal teenagers, sexual desire is a new (and possibly scary) experience. It can take time to acclimatize to the new sensations, and to acquire some authority over them – to feel in control. For women – who, in many cultures and societies, are indoctrinated to believe that sexual desire in women is evil or that it isn’t real – the onset of lust can be incredibly confusing, if not terrifying. In the Twilight series, vampire Edward won’t have sex with human Bella, lest his passion gets out of control and he accidentally kills her. I wonder if Edward’s fear of uncontrollable, and possibly violent, passion mirrors a fear that women (especially younger women, who are newer to lust) may have about the power of their own sexual desire – what terror may ensue if the beast is unleashed (mwahahaha). Which leads to my next theory…
Theory 2: Vampire Edward as ‘safe’ boyfriend.
Whilst it’s all very thrilling being stalked, with fierce broodiness, by a tall-pale-undead-100-year-old man, such seemingly innocent blood pumping excitement can lead a person (eg Bella) to barely restrained lust. And if the person isn’t completely sure about getting wild with their lust, but still enjoys experiencing lust, having a partner who doesn’t ‘push’ for sexual contact can be a practical and unthreatening solution. Which leads to…masturbation! Masturbation – which is often considered normal for men but an aberration for women (bite me!) – is another way in which a person can experience blood pumping lust (and bonus orgasm) without having to negotiate with a partner. So, really, vampire Edward is a metaphor for (female) masturbation…
Theory 3: SEX can lead to PREGNANCY which can lead to DEATH.
[Twilight Spoiler: In the 4th instalment of the series, titled Breaking Dawn – although it should have been titled Breaking Bella – Bella and Edward do have sex, which leads to Bella’s pregnancy, which leads to Bella’s ‘death’ (she nearly dies giving birth to a human/vampire but Edward saves her by turning her into a vampire). Lordy!]
This theory follows on from the first paragraph of this blog post – the fear of unwanted pregnancy. Sure, people can use contraception, but it’s not always 100% effective, and contraceptive choices can be limited – eg some women will develop (potentially life-threatening) blood clots if they take the contraceptive pill. Contraception isn’t always made readily available (unhelpful!). Or, sometimes, contraception is ignored in the heat of passion. So, a young woman may find herself with an unwanted pregnancy, and suddenly faced with having to make a massive and inescapable decision. None of the choices are easy: termination, adoption, young (possibly single) motherhood, or, in some circumstances, suicide. There is also the possibility of things going wrong (even fatally – for the mother or baby) during pregnancy or childbirth. It can be pretty fucking dire! Once a girl hits puberty, the possibility of pregnancy is ever present (at least until menopause), and in the early years of womanhood this can be a little overwhelming. So, I wonder if the heightened intensity of Bella and Edward’s relationship – enhanced by his vampiric thrall and the looming fear that he may get crazy and cause Bella’s death – provides an oddly comforting emotional catharsis to over-burdened (and a little freaked-out) young shoulders.
In conclusion (to this somewhat unwieldy blog post), if societies and cultures over this blue and green planet could just stop being so anally retentive and judgemental about women’s sexuality, and instead be open and nurturing, then the story of Bella and Edward wouldn’t need to be so damn popular. Or something like that.
POSTED BY NICOLE_EFFULGENT13 AT 10:43 AM
LABELS: BLOOD, LUST, MOVING PICTURES, READING