Letter of Father of Edward Snowden to Obama
President Barack Obama
The White House
1600 Pennsylvania Avenue, N.W.Washington, D.C. 20500
Bruce Fein & Associates, Inc.722 12th Street, N.W., 4th FloorWashington, D.C. 20005Phone: firstname.lastname@example.org
Re: Civil Disobedience, Edward J. Snowden, and the ConstitutionDear Mr. President:
You are acutely aware that the history of liberty is a history of civil disobedience tounjust laws or practices. As Edmund Burke sermonized, “All that is necessary for thetriumph of evil is that good men do nothing.”
Civil disobedience is not the first, but the last option. Henry David Thoreau wrotewith profound restraint in Civil Disobedience: “If the injustice is part of the necessaryfriction 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 acrank, exclusively for itself, then perhaps you may consider whether the remedy will not beworse than the evil; but if it is of such a nature that it requires you to be the agent ofinjustice to another, then, I say, break the law. Let your life be a counter-friction to stop themachine.”
Thoreau’s moral philosophy found expression during the Nuremburg trials in which“following orders” was rejected as a defense. Indeed, military law requires disobedience toclearly illegal orders.
A dark chapter in America’s World War II history would not have been written if thethen United States Attorney General had resigned rather than participate in racistconcentration camps imprisoning 120,000 Japanese American citizens and resident aliens.
Civil disobedience to the Fugitive Slave Act and Jim Crow laws provoked the end ofslavery and the modern civil rights revolution.
We submit that Edward J. Snowden’s disclosures of dragnet surveillance ofAmericans under § 215 of the Patriot Act, § 702 of the Foreign Intelligence Surveillance ActAmendments, or otherwise were sanctioned by Thoreau’s time-honored moral philosophyand justifications for civil disobedience. Since 2005, Mr. Snowden had been employed bythe intelligence community. He found himself complicit in secret, indiscriminate spying onmillions of innocent citizens contrary to the spirit if not the letter of the First and FourthAmendments and the transparency indispensable to self-government. Members ofCongress entrusted with oversight remained silent or Delphic. Mr. Snowden confronted achoice between civic duty and passivity. He may have recalled the injunction of MartinLuther King, Jr.: “He who passively accepts evil is as much involved in it as he who helpsto perpetrate it." Mr. Snowden chose duty. Your administration vindictively respondedwith a criminal complaint alleging violations of the Espionage Act.
From the commencement of your administration, your secrecy of the NationalSecurity Agency’s Orwellian surveillance programs had frustrated a national conversationover their legality, necessity, or morality. That secrecy (combined with congressional
nonfeasance) provoked Edward’s disclosures, which sparked a national conversation whichyou have belatedly and cynically embraced. Legislation has been introduced in both theHouse of Representatives and Senate to curtail or terminate the NSA’s programs, and theAmerican people are being educated to the public policy choices at hand. A commandingmajority now voice concerns over the dragnet surveillance of Americans that Edwardexposed and you concealed. It seems mystifying to us that you are prosecuting Edward foraccomplishing what you have said urgently needed to be done!
The right to be left alone from government snooping--the most cherished rightamong civilized people—is the cornerstone of liberty. Supreme Court Justice RobertJackson served as Chief Prosecutor at Nuremburg. He came to learn of the dynamics of theThird 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 intheir persons, houses, papers, and effects, against unreasonable searches andseizures, shall not be violated, and no Warrants shall issue, but uponprobable cause, supported by Oath or affirmation, and particularly describingthe place to be searched, and the persons or things to be seized.”
These, I protest, are not mere second-class rights but belong in thecatalog of indispensable freedoms. Among deprivations of rights, none is soeffective in cowing a population, crushing the spirit of the individual andputting terror in every heart. Uncontrolled search and seizure is one of thefirst and most effective weapons in the arsenal of every arbitrarygovernment. And one need only briefly to have dwelt and worked among apeople possessed of many admirable qualities but deprived of these rights toknow that the human personality deteriorates and dignity and self-reliancedisappear where homes, persons and possessions are subject at any hour tounheralded search and seizure by the police.
We thus find your administration’s zeal to punish Mr. Snowden’s discharge of civicduty to protect democratic processes and to safeguard liberty to be unconscionable andindefensible
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 thatEdward’s father was substantially convinced that he would return to the United States toconfront the charges that have been lodged against him if three cornerstones of due processwere guaranteed. The letter was not an ultimatum, but an invitation to discuss fair trialimperatives. The Attorney General has sneered at the overture with studied silence.
We thus suspect your administration wishes to avoid a trial because ofconstitutional doubts about application of the Espionage Act in these circumstances, andobligations to disclose to the public potentially embarrassing classified information underthe Classified Information Procedures Act.
Your decision to force down a civilian airliner carrying Bolivian President EvaMorales in hopes of kidnapping Edward also does not inspire confidence that you arecommitted 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 HouseSpeaker John Boehner, Congresswoman Nancy Pelosi, Congresswoman Michele Bachmann,and Senator Dianne Feinstein that Edward enjoys a presumption of innocence. He shouldnot 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 thosedocuments.” Ms. Bachmann has pronounced that, “This was not the act of a patriot; thiswas 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 UnitedStates, “or in adhering to their enemies, giving them aid and comfort.”
You have let those quadruple affronts to due process pass unrebuked, while youhave 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 interestsof the government “in a criminal prosecution is not that it shall win a case, but that justiceshall be done?”
We also find reprehensible your administration’s Espionage Act prosecution ofEdward for disclosures indistinguishable from those which routinely find their way into thepublic domain via your high level appointees for partisan political advantage. Classifieddetails of your predator drone protocols, for instance, were shared with the New York Timeswith impunity to bolster your national security credentials. Justice Jackson observed inRailway Express Agency, Inc. v. New York: “The framers of the Constitution knew, and weshould not forget today, that there is no more effective practical guaranty against arbitraryand unreasonable government than to require that the principles of law which officialswould impose upon a minority must be imposed generally.”
In light of the circumstances amplified above, we urge you to order the AttorneyGeneral to move to dismiss the outstanding criminal complaint against Edward, and tosupport legislation to remedy the NSA surveillance abuses he revealed. Such presidentialdirectives would mark your finest constitutional and moral hour.
Counsel for Lon Snowden