By Aaron Tao at the Independent Institute
The notion that a radical is one who hates his country is naïve and usually idiotic. He is, more likely, one who likes his country more than the rest of us, and is thus more disturbed than the rest of us when he sees it debauched. He is not a bad citizen turning to crime; he is a good citizen driven to despair.” —H. L. Mencken
My good colleague Lawrence has already highlighted the hypocrisy behind Secretary of State John Kerry’s recent comments on NSA whistleblower Edward Snowden. In his remarks, Kerry denounced Snowden as a “coward” and “traitor.” Nevermind the fact that Snowden gave up a six-figure salary and a comfortable life in Hawaii with a loving girlfriend in order to act on his conscience. In addition, contrary to Kerry’s pronouncements, Snowden is no traitor, at least according to a plain reading of the Treason Clause in Article III, Section 3, of the Constitution:
“Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.”
Treason is the only federal crime that’s defined in the Constitution along with the procedural and evidentiary standards spelled out. Its placement in Article III serves to deny even a pretext for executive or congressional attempts to redefine that crime. The text and case law sets a very high threshold for conviction, and there’s good historical evidence to suggest the Framers intended it to be that way.
It’s very clear Snowden has not “levied war” or adhered to an enemy of the United States. He did not join or assist an enemy nation-state currently at war with the U.S. The last time I checked, the U.S. still enjoys regular trade and diplomatic relations with Russia. Furthermore, there’s nothing in the Treason Clause that pertains to disclosing classified information to the American people in the public interest.
In his recent NBC interview, Snowden explained his actions after he “saw that the Constitution was being violated on a massive scale” and the threat posed by the NSA’s warrantless surveillance to a free society:
“The Fourth Amendment as it was written — no longer exists. The problem with it — the reason we have that difficulty is one very specific interpretation that the government has made in secret. And that’s that the Fourth Amendment’s prohibition against unreasonable search and seizure can be separated. And the government has decided — again in secret, without any public debate, without anybody in Congress, without the body of our representatives in Congress knowing — is that now all of our data can be collected without any suspicion of wrongdoing on our part, without any underlying justification. All of your private records, all of your private communications, all of your transactions, all of your associations, who you talk to, who you love, what you buy, what you read, all of these things can be seized and held by the government and then searched later for any reason, hardly — without any justification, without any real oversight, without any real accountability for those who do wrong. The result is that the Fourth Amendment that was so strict — that we fought a revolution to put into place –now no longer has the same meaning that it once did. Now we have a system of pervasive pre-criminal surveillance, where the government wants to watch what you’re doing just to see what you’re up to, to see what you’re thinking even behind closed doors.”
As Snowden stated very clearly from the beginning, when his revelations first made headlines, his “sole motive” was “to inform the public as to that which is done in their name and that which is done against them.” He reiterated this point again in his NBC interview:
“My priority is not about myself. It’s about making sure that these programs are reformed and that the family that I left behind, the country that I left behind, can be helped by my actions. And I will do everything I can to continue to work in the most responsible way possible — and to prioritize causing no harm while serving the public good.”
To this day, the U.S. government has been unable to cite a specific example of grave, irreparable harm resulting from Snowden’s disclosures. Instead, intense public debate (which President Obama himself admitted has made us “stronger”) took place as Snowden hoped for. Legal challenges were filed, and all three branches of government have taken steps (or at least a pretense) towards reining in the NSA’s surveillance apparatus.
In a December 2013 ruling against the the NSA’s bulk telephone metadata collection, federal judge Richard Leon described it as “almost Orwellian” and would have made James Madison “aghast.” Around the same time, even a White House–appointed review board concluded the NSA’s collection of metadata was “not essential” and recommended it be dismantled (yet, the Obama’s administration rejected its own review board’s findings). In Congress, many Representatives and Senators condemned the NSA’s warrantless surveillance and backed legislative efforts to curb it. In July 2013, the Amash-Conyers Amendment that would have ended the “NSA’s blanket collection of Americans’ telephone records” lost only by 12 votes. In October 2013, another attempt was made through the USA Freedom Act, with the legislative process still ongoing as of this writing. Unfortunately, the USA Freedom Act was so heavily amended that most of the original Congressional co-sponsors and outside civil liberties organizations dropped their support. In a dark twist, its most current version is now described as the “NSA Freedom Act.”
Such shenanigans are typical of politics, and it remains to be seen whether the NSA’s warrantless surveillance can be stopped. Nevertheless, public scrutiny and all of these efforts at reform would not have been triggered without Snowden’s actions.
Going back to John Kerry’s snide attacks on Snowden, it is rather striking to hear them from a man who once voiced staunch opposition to the Vietnam War (see his 1971 Senate testimony where he famously raised the question, “How do you ask a man to be the last man to die for a mistake?”). He also heaped the highest praise on the famous Pentagon Papers whistleblower Daniel Ellsberg:
“Daniel Ellsberg demonstrated enormous courage during a difficult and turbulent time in America’s history, courage which undoubtedly saved American lives on the battlefield and helped to hold politicians accountable for mistakes they refused to admit. His story reminds us that to fulfill the responsibilities of citizenship is to always ask questions and demand the truth.”
Compare all of this to Kerry’s most recent remarks and it shows the counterculture of the 1960s and 70s has become the Establishment. It is also worth highlighting that Ellsberg himself has courageously defended Snowden throughout his entire ordeal. He described Kerry’s attacks as “despicable” and explained the current reality for whistleblowers under the Espionage Act:
“[T]he current state of whistleblowing prosecutions under the Espionage Act makes a truly fair trial wholly unavailable to an American who has exposed classified wrongdoing... As I know from my own case, even Snowden’s own testimony on the stand would be gagged by government objections and the (arguably unconstitutional) nature of his charges. That was my own experience in court, as the first American to be prosecuted under the Espionage Act – or any other statute – for giving information to the American people... John Kerry’s challenge to Snowden to return and face trial is either disingenuous or simply ignorant that current prosecutions under the Espionage Act allow no distinction whatever between a patriotic whistleblower and a spy. Either way, nothing excuses Kerry’s slanderous and despicable characterizations of a young man who, in my opinion, has done more than anyone in or out of government in this century to demonstrate his patriotism, moral courage and loyalty to the oath of office the three of us swore: to support and defend the Constitution of the United States.”
Like other courageous individuals throughout history who did what’s right when it wasn’t legal, Snowden will suffer dearly for his actions and beliefs. He will have to endure more politically motivated demonization campaigns from the Obama administration and its media lackeys. However, in the long run, I do believe Snowden will be vindicated like his great predecessor Daniel Ellsberg.