In Defense of Edward Snowden

Edward Snowden is the NSA contractor who has informed us that the National Security Agency has been . . .

• collecting all our cell phone records
• recording and storing all our cell phone conversations
• collecting all our credit card transactions and bank records
• collecting all our emails and social media posts

Snowden better have very good legal representation, or he’s in big trouble.

No doubt, Snowden signed a contract pledging to keep all that he was working on a secret. No doubt, he was repeatedly informed that taking and releasing classified information is a crime, a serious one.

But the question is: Does such an obligation extend to protecting conduct that is in violation of the law.

For example, let’s say an NSA or CIA employee had stumbled on the secret operation Oliver North was running out of the White House that became known as the Iran-Contra scandal. Let’s say he discovered that North was selling TOW Missiles to Iran and then funneling the proceeds to the anti-communist guerrillas in Nicaragua in clear violation of the Boland Amendment, which prohibited exactly this.

Would that NSA or CIA employee still have an obligation to keep that secret?

Or, let’s take a more extreme example.

Let’s say Edward Snowden discovered a secret CIA operation that involved the extermination of Jews in concentration camps. Would he have an obligation to keep that secret?

Clearly, one’s obligation to keep secrets cannot extend to protecting violations of law, or one becomes an accessory to the law breaking.

If you know about a murder and know who the murderer is, you have an obligation under the law to step forward, or you become an accessory to the murder.

So the question is: Was the NSA breaking the law by collecting all this information?

Collecting all this information does appear to be a clear violation the Patriot Act, which expressly prohibits the domestic targeting of American citizens who are not suspected of engaging in terrorism.

The Obama Administration will argue that this data collection by the NSA was approved by the so-called Foreign Intelligence Surveillance Court (FISA court), a special court set up under the Patriot Act to make sure innocent Americans are not being targeted.

The fact that the FISA court was derelict in its duty and approved the NSA’s tapping of recording and storing the phone conversations of every American doesn’t make it legal. It makes the FISA court part of the criminal conduct.

Even the name of this special court (“Foreign”) tells us what NSA was supposed to be doing — and that’s monitoring the phone and email traffic of foreigners — potential foreign terrorist threats to America.

The Patriot Act permits the inadvertent collection of data on Americans, but only if by accident, only if the American is part of the foreign phone or email traffic.

So if you are an American citizen who is taking phone calls from Yemen or Afghanistan, you would likely pop-up on the NSA’s radar screen. That’s how the Patriot Act was supposed to work.

Clearly, the NSA’s so-called PRISM operation that targets every American citizen is doing exactly what the Fourth Amendment to the Constitution is supposed to prevent — and that’s “unreasonable searches and seizures.” The Fourth Amendment also tells us there can be no warrants for searches “without probable cause.”

So the government cannot search through our things without a warrant, which cannot be issued “without probable cause.”

But that’s exactly what this NSA Prism program does. It’s clearly illegal. It’s clearly unconstitutional, no matter what the FISA court says. Edward Snowden has no obligation to protect illegal conduct by our government. In fact, we all have a legal and moral duty to expose illegal conduct when we find it.

In our system, there can be no “general warrant” — called a “writ of assistance” in English common law.

That is, the government cannot get a search warrant for a general search — a kind of “I’m not sure what I’m looking for, but I’ll know when I find it” proposition. This was exactly the kind of warrant the Fourth Amendment was designed to stop.

Under America’s Constitution, the government has to know what it’s looking for and have “probable cause” to search through your things. The government must be able to show a judge that it has evidence that you’ve committed a specific crime before it can get a warrant to search your home, your car, your phone records, tap your phone, or read your emails.

Keep in mind what the NSA’s PRISM program actually does.

It records all of your phone calls, then stores your phone conversations permanently in a database. Your phone conversations are permanently retrieveable.

So if you ever become a target of the government (whether for good reason or by mistake) the government can then listen to all of your phone conversations going back, well, forever. Same with your emails and all your credit card transactions.

And if during the course of looking through all of this, the government discovers that, well, you might not have paid all of your taxes, you’ll get nailed for that violation of law.

If the government looks at you hard enough and long enough, they will find you’ve violated some law somewhere, even if inadvertantly. This is exactly what the Fourth Amendment is designed to prevent. It’s what the Statute of Limitations is designed to prevent.

Senator Rand Paul says he will be challenging this law all the way up to the Supreme Court.

In his great book 1984, George Orwell wrote this:

There was of course no way of knowing whether you were being watched at any given moment. How often, or on what system, the Thought Police plugged in on any individual wire was guesswork. It was even conceivable that they watched everybody all the time. But at any rate they could plug in your wire whenever they wanted to. You had to live — did live, from habit that became instinct — in the assumption that every sound you made was overheard, and, except in darkness, every movement scrutinized.”

This is the society in which we now live.

As Edward Snowden tells us, we’re no longer a free people. Yes, we can live a comfortable life. We can go to work everyday and collect our paychecks. We can watch our TV shows at night and attend sporting events.

The government will even allow a certain amount of criticism of the government.

But everyone knows that information is power. Now the government knows everything about you. Now that government has all the information it needs to wipe you out — erase you — at the slightest provocation. All it has to do is decide you’re a threat. Then it just has to sift through all the data its collected on you to find a crime, any crime, any violation of law, and you’re finished.

Look at what happened to that guy who made that silly anti-Islam video that Obama falsely told us triggered the Benghazi attack. A year later that hapless Coptic Christian still sits in jail . . . for a parole violation.

This is what happens to you when you become the convenient fall-guy for people in power — or when you cross the party line.

If the government looks at you closely enough, it will find a way to put you in jail and keep you there.

A prosecutor could put together a criminal case against Mother Teresa if you let him listen to all her phone calls, read all her emails, rummage through all her bank accounts, and credit card transactions.

Perhaps she did not fill out her 990 form for the IRS exactly correctly.  The government can always find something on you.

That’s what Orwell was talking about. That’s what we are living now.  That’s what the Fourth Amendment and our entire Constitution was trying to prevent.

Here’s what Edward Snowden has to say on why he did it. I find what he says very compelling.