Snowden's Constitution, Obama's Constitution, & Criminal Law

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 his belief that, 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 snooping exposed by Snowden on the grounds that the government is just storing the information, 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.  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.  By definition, the people cannot deem 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.  According to the Supreme Court, “[i]t 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. US,).  The scope and duration of the seizures  make them inherently non-judicial, as discussed below.  Any exception to the Fourth Amendment “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 committed places it outside the judicial process and imposes a heavy burden on the state to prove that its search was otherwise “reasonable.”

This burden 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 represented by the Obama administration’s power-grabbing, privacy-invading snooping on innocent citizens.  Constitutional provisions in addition to the Fourth Amendment should also restrain such encroachments.

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 modern application to this extreme case of state intrusion.  This is a time of peace because Congress has not declared war in any traditional notion of the term.  Electronic communications capacity is an inherent feature of any modern dwelling house. Yet every electronic communication originated and sent from private houses 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 state that the founders detested.

In Federalist #47, 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 local concern.

With respect to federalism, the general police power to enforce criminal law resides in the states, not in the federal government.  Most of what the federal government targets as part of its domestic “war on terrorism” 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.  It 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 carry out some specific federal power 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 eyes is the most expensive security state in the history of the world incompetent to prevent several atrocious crimes having varying degrees of international provenance, other than those attempts resulting primarily from its own entrapments.

The question as to separation of powers is: which branch of the state, if any, can be trusted to make the judgment as to the 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 its powers cannot be left to the state itself to determine subjectively.  Allowing the executive branch to decide the issue of “reasonableness” of its own actions would defeat the clear purpose of the Fourth Amendment to restrain state power.

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; they are not permanent.  The state does not have the power to initiate and courts do not have the power to hear an ongoing case without end against the whole population of the United States, or even against the subset of all the customers of Verizon.  Only a police state 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 illegitimately unrepresentative and in violation of its oath to support the Constitution.

The power to make rules that affect everyone into the indefinite future is a legislative power.  A court that violates the separation of powers by exercising legislative powers in order to make rules empowering the executive defines tyranny, in Madison’s terms.  No judge or magistrate or secret FISA court exercising judicial power has authority to authorize such a universal and unending search or seizure of private communications.  Any such “search and seizure” takes place inherently “outside the judicial process,” 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 at 361.  That has obviously not been done when few in Congress were even aware of the scope of the snooping being conducted by the Obama administration under the authority of advisory opinions from a nominal court in fact acting as a secret unelected legislature.

What makes a Paul Revere like Snowden necessary is that even Congress itself cannot be trusted to represent the will of the people in these corrupt times.  Polls consistently show confidence in Congress declining to around 10%, while about 80% of voters consider the government to be illegitimate, lacking the “consent of the governed.”  Of likely voters, 69% think Congress will “break the rules” for their contributors.  Other polls express the country’s universal understanding 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 instead beholden to money.  No politician wins office without that money, certainly not a governing majority.  Even aside from the lucrative government surveillance contracts that money secures from Congress in “America’s last growth industry,” the plutocrats who buy politicians and 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, as essential for any government’s legitimacy.  Without civil liberty, money can continue to rule, and profit from policy.  What the overwhelming majority of people may consider reasonable is now irrelevant to Congress, whether the subject is weapon background checks or anything else opposed by the plutocrat class.  See Martin Gilens, Affluence & Influence: Economic Inequality and Political Power in America (2012).

A Washington Post  poll (question #8) taken after the Boston Marathon bombing suggests that most Americans with an opinion would worry that mass 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)?

continue article at Counterpunch.com:

http://www.counterpunch.org/2013/06/17/snowdens-constitution-obamas-constitution-and-criminal-law/