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
When you leak explosive government secrets to the news media, it’s safe to say that you open yourself up to, among other things, harsh criticism.
So it’s hardly a surprise that former vice president Dick Cheney, the hardest of the hardliners, has unloaded on National Security Agency leaker Edward Snowden, denouncing him as a “traitor” who might be working for China.
But Cheney, who made his remarks over the weekend on Fox News Sunday, was hardly the first to use the epithet. Last week, in an interview on ABC’s Good Morning America, House Speaker John Boehner said flatly of Snowden: “He’s a traitor.”
And when it comes to the name-calling and the demonizing, former and current public officials such as Cheney and Boehner hardly have a monopoly. Journalists can play that game, too.
Politico columnist Roger Simon wrote a sneering piece headlined “The slacker who came in from the cold” in which he dismissed Snowden as “29 and possessing all the qualifications to become a grocery bagger.”
(An aside: Is it just me or are these constant references to Snowden being 29, as if that somehow discredits him, out of line as well as annoying? Is the idea that someone so young is incapable of doing anything worthwhile? Really?)
To former NBC anchor Tom Brokaw, Snowden is merely “a high school dropout who is a military washout.” And rather than go down in history as a significant whistle-blower, Washington Post columnist Richard Cohen wrote in a sublimely baffling outburst that he thought Snowden will “go down as a cross-dressing Little Red Riding Hood.”
All of that outrage is perfectly understandable. Acts like Snowden’s arouse powerful passions. To some he is a hero, a principled man whose alarm at the security state’s secret surveillance compelled him to act, despite the consequences to his own life. To others he is, well, a traitor, an irresponsible, self-righteous egomaniac who placed himself above the law and put his country in great peril.
But it’s important that we — the news media and society as a whole — don’t get too caught up in it. While pinning labels on Edward Snowden may be a fine parlor game, it’s not nearly as significant as dealing with the information he revealed.
Even White House Press Secretary Jay Carney says it’s “appropriate” to have a national debate on government information gathering. But we wouldn’t be having one absent Snowden’s disclosures.
Maybe the government is right. Maybe the heightened security the surveillance of all those phone calls and e-mails makes possible is worth the erosion of privacy. But that’s something we as a country need to decide, not the president, whichever president, acting without our knowledge. Remember, even if you trust this particular president and/or his predecessor, there’s no guarantee that someday the White House won’t be occupied by someone you don’t want having access to all that “telephony metadata” and the like. (See Nixon, Richard.)
Even now, it’s not an easy debate to have. The proceedings of the Foreign Intelligence Surveillance Court are secret. Members of Congress who are briefed on the programs are constrained about what they can say. So are the Silicon Valley powerhouses that have cooperated with the PRISM initiative. On Tuesday, Google asked the surveillance court for permission to be more forthcoming about its role.
But despite the difficulties, a conversation has begun. The federal government has mounted an aggressive defense of the programs and has begun to release information to show that they are working. Some members of Congress seem committed to trying to rein in the excesses, no matter how uphill the struggle. And we’ve only just begun.
That’s where the primary focus should remain, not on whether or not Snowden is a duplicitous spoiled brat.
“Shoot the messenger” has been part of the lexicon for a long time, certainly since Sophocles’ prime, which was way pre-Twitter. It doesn’t just apply to actual old-school messengers and, as is frequently the case in this era, the news media. Ad hominem (and ad feminam) attacks are a time-dishonored way of avoiding uncomfortable subjects by beating up political opponents. And belaboring the appallingly 29-year-old slacker/traitor is a great way to change the subject.
Conservative scholar, talk radio host, and former Reagan administration official Mark Levin said conservatives need to first overthrow the Republican establishment to more successfully take on President Barack Obama and the institutional left.
“We cannot get through Obama and the left until we get through the Republican Establishment,” Levin said, railing against establishment consultants who attack the base and politicians who know nothing of “Burkean reform” because they have spent their whole careers “clawing their way to the top.”
In a talk at the Heritage Foundation on Wednesday with his mentor, former Reagan Attorney General Ed Meese, for whom Levin served as Chief of Staff, Levin said the Republican Party is, “devouring the conservative movement,” and the old bulls need to step aside in favor of a new generation of conservatives who are fluent in conservatism.
“It’s time for the old bulls to get out of the way and for the fresh faces who believe in conservatism and liberty and originalist principles to step up,” Levin said, criticizing those like House Speaker John Boehner for “yielding territory” to the left in negotiations.
Levin said the Tea Party consists of constitutionalists, libertarians, Evangelicals, and those who are against the rigged establishment, beltway culture that for too long has not embraced conservatism and, as a consequence, lost national elections (George H.W. Bush, Bob Dole, John McCain, Mitt Romney).
“The Tea Party is the only thing that stands between liberty and tyranny,” Levin said. “We have to defeat the Republican establishment mush in Washington, D.C.”
Levin also named the establishment media organizations and institutions on the right that he said were not helping advance the conservative cause.
He said, “in a lot of our media outlets,” there are “a lot of old, dreary people who are just around all the time” who “reject” Reaganism.
Levin named Bill Kristol at the Weekly Standard, who recently called for more tax increases; and the National Review, the Washington establishment publication that vigorously supported Mitt Romney in the primaries, Levin said, in many ways, has “become a mouthpiece for the Republican party.”
Levin said the Republican Party will go the way of the Whig Party if they do not put out more “cutting-edge intellectuals and artistic” spokespeople for the conservative cause that transcends race or class.
Shortly after President Barack Obama was elected in 2008, Levin wrote Liberty and Tyranny, which sold over a million copies despite not being reviewed and being completely ignored by mainstream media outlets and programs.
The prescient book not only clearly articulated what would eventually turn out to be the Tea Party’s opposition to Obama’s statism (Levin knew what Obama was going to do before even Obama) but was also symbolic of how, in the new media age, books and ideas could commercially succeed without the legacy media institutions of yesterday that no longer act as gatekeepers.
To appeal to young people and minorities with conservatism, Levin said Republicans needed to call on parents and grandparents to have an impact on young people and appeal to their sense of liberty and anti-authoritarianism.
He said this “bottom up federalism” can appeal not only to young people but to minorities.
Levin noted that capitalism is the plan and the strategy is the constitution, and that was the foundation of Reaganism.
He said after Reagan, George H.W. Bush lurched to the left rather than “build up Reaganism” and the party and the conservative movement has not been the same since.
Levin also said ethnic front groups who want more balkanization instead of assimilation are also threats and need to be called out.
In talking about Republican institutions, Levin said the Republican National Committee needs to be managed better because, simply put, “when you lose, you gotta bring some other people here.”
“Backbenchers need to go to the front,” Levin said, noting that the frontbencher establishment class has been trying to “clean out” conservatives who do not toe the moderate, establishment line.
Levin said Obama would inevitably overreach on many fronts during his second term. For instance, Levin predicted Obama would try to break down America’s sovereignty by working with the United Nations on a global tax and committing America to more international military arrangements.
“The people are going to rise up,” Levin said.
When discussing the future of conservatism, Levin highlighted in particular Texas Senator-elect Ted Cruz and former Alaska Governor Sarah Palin, among others.
“I love Sarah Palin,” Levin said.
“You see how intelligent she is?,” Levin asked, noting that Palin is nothing like the caricature of her on the left and in the mainstream media.
Levin said Palin should be given credit for effectively and enthusiastically articulating the conservative cause, even though she has been attacked by the mainstream media and the Republican establishment.
“Yet, she still rallies the base a hundred times more than these people telling us what we are supposed to do,” Levin said.
Yeah, we’re pointing and laughing at you.
This happened on Wednesday:
Speaker John Boehner is officially neutral but privately supporting McMorris Rodgers. Paul Ryan, the returning chairman of the Budget Committee whose profile rose enormously during his vice presidential run, is asking colleagues to back Price.
Maybe Ryan is not so much the presumed leader of the GOP and the great 2016 hope for the party. Or maybe he still just has the stench of 2012 on him. Either way, Ryan loses again, and Boehner still has a split in his caucus to deal with. All in all, a pretty good day.
And he’ll always be the guy who sought (and failed) to take Medicare apart. Four years from now people in their early 50’s who would have been most affected will be in their late 50’s and quite grateful about Romney/Ryan’s defeat.
And he’ll always be the guy who said that rape was a just an alternative means of conception.
Congressman is as far as this loser gets, and hopefully we’ll be able to get his seat next time around.
by elwior on Wed Nov 14, 2012 at 03:33:23 PM PST
Conservatives weigh in on immigration reform — Sean Hannity, John Boehner & Charles Krauthammer express their views
“The fact that leading movement conservative voices are joining Republican leaders in calling for immigration reform that includes relief for the 11 million undocumented immigrants in America is a major development that will open up space for the GOP to do the right thing and help pass sensible reform legislation,” Sharry wrote in an American Voice blog.
America’s Voice points to the latest comments regarding the topic from various influential Republicans and conservatives as a sure sign that reform will happen sooner, rather than later.
Sean Hannity, the influential Fox News television and radio host said on his show last Thursday that he has “evolved” on the issue. He said the US needs to “get rid of the immigration issue altogether” and that he supports a “pathway to citizenship.”
Speaker of the House John Boehner told ABC News that the issue has been around far too long.
“A comprehensive approach is long overdue, and I’m confident that the president, myself and others can find the common ground to take care of this issue once and for all,” he said.
Conservative columnist and pundit Charles Krauthammer wrote in the Washington Post, that amnesty may be likely.
“In securing the Republican nomination, Mitt Romney made the strategic error of (unnecessarily) going to the right of Rick Perry. Romney could never successfully tack back. For the party in general, however, the problem is hardly structural. It requires but a single policy change: Border fence plus amnesty. Yes, amnesty.”
Krauthammer added: “promise amnesty right up front. Secure the border with guaranteed legalization to follow on the day the four border-state governors affirm that illegal immigration has slowed to a trickle.”
via Conservatives weigh in on immigration reform — Sean Hannity, John Boehner & Charles Krauthammer express their views | Irish News and Politics spanning the US, Ireland and the World | IrishCentral.
via Conservatives weigh in on immigration reform — Sean Hannity, John Boehner & Charles Krauthammer express their views | Irish News and Politics spanning the US, Ireland and the World | IrishCentral.