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
US Army Private Bradley Manning is being persecuted for exposing war crimes committed by the Bush and Obama administrations. Like any criminal, the US government wants its wrongful acts to remain secret; it wishes to make the truth illegal.
On June 3rd, the trial of Manning began. He previously pled guilty to 10 offenses that could collectively bring 20 years in custody, but the military prosecutors were not satisfied. They pursued the capital offense of “aiding the enemy” which can be punished by execution or life imprisonment. This is Obama’s warning to anyone else who is tempted to speak truth to power.
WHAT YOU ARE TOLD IS ON TRIAL
Bradley Manning was arrested in May 2010 for passing restricted material to the WikiLeaks site, which is dedicated to the free flow of information. The material included videos of American airstrikes on Baghdad and Afghanistan, as well as hundreds of thousands of diplomatic cables that became known as the Iraq and Afghan War logs.
The American government and military were acutely embarrassed. For example, one video consisted of cockpit gunsight footage from a US helicopter that was involved in the series of July 12, 2007 airstrikes on Baghdad in which an estimated 18 people were killed, including two Reuters war correspondents. The military claimed the dead were armed insurgents, and at least two of them had weapons which is common practice in Iraq. The Pentagon buried the footage by refusing a Freedom of Information request from Reuters. When the video was leaked, it showed an indiscriminate slaughter. Its audio captured the unalloyed joy of the Americans as they killed and an absolute lack of remorse when they realized young children were among the dead.
This video was a turning point for Manning who was shocked by the soldier’s remarks. At his pre-trial hearing, he stated of the leaked material, “I felt I had accomplished something that allowed me to have a clear conscience based upon what I had seen and read about and knew were happening in both Iraq and Afghanistan every day.”
The 1971 leak of the Pentagon Papers by Daniel Ellsberg was a turning point in the Vietnam War because it revealed the depth of lies being told by the American government to the American people. Manning’s act was a turning point in the Iraq and Afghan wars but it had far wider impact. For one thing, it was instrumental in sparking the Arab Spring; one diplomatic cable discredited the Tunisian government by verifying the raw corruption of the President and his family.
MANNING’S UNFORGIVABLE SIN
Indiscriminate slaughter and the torture of detainees do not disturb the Obama administration; talking about them does. Manning not only talked but he backed everything up with data. For exposing and embarrassing them, government wishes not merely to punish Manning but to crush him utterly so that his example does not inspire others. To do so, it must make transparency into treason.
The accusation of aiding and abetting the enemy is a drastic and dangerous expansion of the Espionage Act. The exact wording of the charge: “Knowingly giving intelligence to the enemy through indirect means.” Traditionally, direct means have been required; that is, a person directly and intentionally provided intelligence to “the enemy.” The prosecutors now contend that the transfer can be indirect and unintentional. They argue Manning should have known Al Qaeda could access the information; his intention of revealing a war crime to the world becomes irrelevant. The New York Times observed, “This would turn all government whistle-blowing into treason: a grave threat to both potential sources and American journalism.”
The civil libertarian Glenn Greenwald explained further, “[The new legal theory] would basically mean that any kind of leak now of classified information to newspapers, where your intent is not to aid the Taliban or help them but to expose wrongdoing, is now considered a capital offense and considered aiding and abetting the enemy….And that’s an amazingly broad and expansive definition…” The expanded theory becomes a de facto gag order, especially in the hands of Obama who has prosecuted more whistleblowers than all previous Presidents combined.
There is no question that Manning broke the law. The fault lies not in Manning but in the military. No person nor organization has the right to force a man to surrender his conscience and mutely watch the slaughter of children. He has an inalienable right to speak the truth. To claim otherwise is to argue that a soldier is literally property, a slave of the military and no longer a man.
In Civil Disobedience, Henry David Thoreau declared, “Must the citizen ever for a moment, or in the least degree, resign his conscience to the legislator? Why has every man a conscience then? I think that we should be men first, and subjects afterward. It is not desirable to cultivate a respect for the law, so much as for the right….Law never made men a whit more just; and, by means of their respect for it, even the well-disposed are daily made the agents of injustice.” Speaking specifically of soldiers who surrender their conscience, Thoreau continued, “They have no doubt that it is a damnable business in which they are concerned; they are all peaceably inclined. Now, what are they? Men at all? or small movable forts and magazines, at the service of some unscrupulous man in power? [B]ehold a marine, such a man as an American government can make…a mere shadow and reminiscence of humanity…”
Manning has already spent 1110 days in prison, much of it in solitary confinement and other conditions that human rights organizations call torture. Even for the most military of men, 1110 days and the prospect of 20 years more should be enough punishment for the ‘crime’ of retaining a conscience.
WHAT THE TRIAL MEANS ABOUT AMERICA
Roger Williams, the Puritan founder of Rhode Island, was America’s first revolutionary. He created the American soul by inextricably linking individual liberty with freedom of belief. In the 1640s, Williams argued passionately for “soul liberty” – that is, an individual’s conscience should be free from outside interference and control. “[T]o force the Consciences of the Unwilling is a Soul-rape,” he declared bluntly. Drawing upon Williams, the contemporary American philosopher Martha Nussbaum further defined “soul-rape” as forcing people “to affirm convictions that they may not hold, or to give assent to orthodoxies they don’t support.”
Williams won the argument, and the First Amendment was the ultimate result. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press…” The amendment was first in the Bill of Rights because freedom of conscience and speech is the most fundamental of human rights. Around the world, Americans became renowned as a people who bowed their heads and beliefs to no one; they spoke and believed freely. And, so, the world gravitated toward America because of the hunger within human beings to think and decide for themselves. It is a hunger for human dignity.
The persecution of Manning is an attempt to destroy the core of what it means to be American by destroying freedom of conscience and speech. The police and surveillance state of America wants to control information down to the level of reaching inside people’s minds to instill a fear of speaking or deciding for themselves.
Obama is raping the soul of America.
Wendy McElroy is a frequent Dollar Vigilante contributor and renowned individualist anarchist and individualist feminist. She was a co-founder along with Carl Watner and George H. Smith of The Voluntaryist in 1982, and is the author/editor of twelve books, the latest of which is “The Art of Being Free”. Follow her work at http://www.wendymcelroy.com.
New Film Explores Obama’s War on Whistleblowers and the Free Press
Four cases reveal the administration’s extraordinary crackdown on national-security whistleblowers.
—By Dana Liebelson
Americans love the idea of the whistleblower: one brave person willing to stick their neck out for the greater good, even in the face of severe blowback. Many American high school students read On Civil Disobedience, Henry David Thoreau‘s classic treatise that urges Americans to take a stand against government’s ills. But more than 160 years later, legal protections for whistleblowers haven’t caught up with Thoreau’s ideals. Americans who disclose government misconduct risk losing their jobs and their homes—and some are prosecuted under the Espionage Act, a 1917 law originally intended for dealing with foreign spies. That’s life for national-security whistleblowers under the Obama Administration, according to a new documentary premiering next week titled War on Whistleblowers: Free Press and the National Security State.
The film, a project of the Brave New Foundation, focuses on four whistleblowers: Michael DeKort, a former project manager for Lockheed Martin; Thomas Drake, a former senior executive at the National Security Agency; Franz Gayl, an adviser for the Marine Corps; and Thomas Tamm, a former attorney to the Department of Justice. Each exposed grave misconduct, and each faced severe reprisals from their employers and the government. The film also includes commentary from one of the most famous whistleblowers of all time: Daniel Ellsberg, a Vietnam War analyist for the military who released the “Pentagon Papers,” which detailed US mistakes in Vietnam.
“It’s extremely dangerous in America right now to be right as a whistleblower when the government is so wrong,” says Drake, who was charged under the Espionage Act for disclosing secret warrantless surveillance of Americans by the National Security Agency (the major felony charges were eventually dropped after an outpouring of public support for Drake.) “Speaking truth to power is now a criminal act.” Jane Mayer, a staff writer for The New Yorker who won the George Polk Award for her coverage of the Drake case, explains the unusual measures she had to take during the course of reporting the story. She and Drake couldn’t talk on the phone because he was being charged with leaking and there was concern of eavesdropping, so she had to meet sources in unmarked hotel rooms. “It does not feel like America, land of the free press,” she says in the film.
Michael DeKort was a lead systems engineer at Lockheed Martin, in charge of the Deepwater program for the Coast Guard. He became aware of serious problems with Lockheed’s execution of the contract. “The waterproof radios weren’t waterproof, the communications equipment could compromise national security, the electronics equipment installed outside of the boats wouldn’t survive harsh weather, and the camera surveillance system had major blind spots,” he tells Mother Jones. After his supervisors refused to listen to his complaints, he made a YouTube video exposing the problems and was dismissed by Lockheed, a move that led to a congressional hearing, the boats being taken out of service, and quite possibly, a life-saving deterrent against disaster. DeKort says he is still assisting the Department of Justice with its case against the subcontractor that performed the hull design services, but the US government “has no apparent intention to compensate me for bringing the problem to attention.”
The filmmakers take great care to emphasize the difference between leakers and whistleblowers, framing their subjects as the latter. As Jesselyn Radack, national security and human rights director at the Government Accountability Project, explains, whistleblowers are employees that disclose information they “reasonably believe evidences fraud, waste, abuse or a danger to public health or safety” while leakers simply make secret information public (in many cases, whistleblowers take extreme care not to divulge classified information).
It’s a distinction the Obama Administration hasn’t always made, mounting an aggressive campaign against Drake and spearheading a multiyear investigation against Thomas Tamm, who went to the New York Times with information about George W. Bush’s warrantless wiretapping program.
In November 2012, Obama signed the Whistleblower Protection Enhancement Act (WPEA), a law that improves protections for federal employees and makes it easier for the government to discipline employees who retaliate against whistleblowers—a crucial provision, given that many whistleblowers lose their jobs. The National Defense Authorization Act of 2013 also includes a section that strengthens protections for government contractors—a law that would have greatly helped DeKort’s case.
“We’ve never had a president more supportive of federal workers who blow the whistle—except when it comes to national security,” Angela Canterbury, director of public policy at the Project On Government Oversight, where I used to work, tells Mother Jones. National security and intelligence employees were left out of the WPEA, and even though the president issued a policy directive extending protections to these employees, Canterbury says that the directive has inherent problems. For one thing, it protects only whistleblowers who report wrongdoing internally—which can be self-defeating when your employer is behind the wrongdoing. Tom Devine, legal director at the Government Accountability Project, also notes that Obama is seeking new rules that would allow the government to fire thousands of employees without appeal if they work in the national-security arena. “We’ve warned the White House many times, if you put whistleblowers in jail your legacy will be defined for prosecuting them for exercising free speech rights,” says Devine.
DeKort, who blew the whistle on Lockheed, adds that the government needs to understand that “if people did the right thing, whistleblowers wouldn’t exist. When was the last time a whistleblower raised an issue that wasn’t correct? Do you know how insane you’d have to be to go through all this crap if you were wrong?”