A Victory for the Constitution

by ROB HAGER

Judge Richard J. Leon, a Bush appointee to the federal district court of the District of Columbia, is an interesting figure in U.S. history to have changed the ongoing game of Obama v. Snowden.  His biography includes stints working for Congress on other historic game changing events: the flawed investigations into both of the (covertly) related “October Surprise” and “Iran-Contra” scandals.

Judge Leon has published a persuasive 68 page legal opinion averaging more than one explanatory fine-print footnote per page in Klayman v. Obama (12/16/2013) holding that the dragnet data sweep by Obama’s NSA “almost certainly does violate a reasonable expectation of privacy” by the American people.  This satisfies the definition for the kind of “search” that falls within the prohibition of the Fourth Amendment.  Judge Leon answers the second question determining whether such a search could be justified under the Fourth Amendment “reasonable” exception, by  finding the search “unreasonable” when compared to the embarrassing absence of evidence that these searches have played any significant role in serving its purported purpose of detecting terrorists.

Indeed, tacitly invoking the prevailing conservative “originalist” test of constitutional interpretation, Judge Leon cogently surmises that “the author of our Constitution, James Madison… would be aghast” at the scope of the constitutional violation by Obama.  Both these findings permanently legitimize Snowden’s similar responses on these questions of reasonableness, and Snowden’s willingness to risk his future life on his own reading of whether the data sweeps were Fourth Amendment “searches.”  No one can now argue that Snowden’s judgment on these questions was unreasonable as a matter of law.

Former VP Al Gore had earlier said that Snowden “revealed evidence of what appears to be crimes against the Constitution of the United States.”  Judge Leon has now put legal teeth and consequence behind that broadly held judgment.

Whatever an appellate court might eventually do with Judge Leon’s decision it will stand permanently through American history for the proposition that one conservative, undeniably reasonable person could conclude that as a matter of well-considered fact that the people of the United States would neither find dragnet searches of their “meta-data” to be consistent with their “reasonable expectations” nor to be a reasonable way to fight the risk of terrorism.

This decision changes the game because no matter what the ruling of any subsequent judge, Judge Leon’s decision should, depending on the public’s response, make it difficult to remove these two factual questions from a jury when the time comes to present either Snowden’s Fourth Amendment defense to prosecution before a jury in a criminal trial for “espionage” or placing the case against Obama and his snoops for damages to a jury in a civil trial.

The constitutional challenge now facing the country is to insist upon the public’s original constitutional right to have this question decided ultimately by juries and not by judges appointed by and generally loyal to the very same corrupted government that has so blatantly violated the Fourth Amendment.  The framers wrote the Fourth Amendment to assign to the people not the government the resolution of factual question as to what is expected and reasonable in connection with searches.   See ”Obama’s Constitution, Snowden’s Constitution and Criminal Law.”

The potential for such a struggle to defend original fundamental constitutional rights changes the game from solely the criminal prosecution against Snowden on “three felonies,” according to Obama, what could be labeled Obama v Snowden.  The new game is the civil case for damages that puts Obama’s own skin in the game.  It can be filed by virtually anyone and may generically be labeled Snowden v. Obama.   Although Larry Klayman, a conservative legal activist is the named plaintiff in the particular suit Judge Leon decided, the man who actually initiated the strategic political resistance which transcends any particular tactical legal action is the hero of the story, Edward Snowden.

Judge Leon’s decision now shifts Snowden and citizens who support him to the offense rather than strictly defense.  And the target is Obama, the lead defendant in the Klayman suit.  He is lead defendant not just because he sits at the institutional desk where the buck stops for excesses within his administration that went out of control due his incompetent management.  Well beyond just poor management, Obama has been an active participant as propagandist and liar in chief in his public defense of the Fourth Amendment violations.   See “Obama Vs. Snowden: Parsing the Presser.”

Snowden’s success in gaining worldwide popularity for his David and Goliath struggle on behalf of his, and apparently the ACLU’s, and now Judge Leon’s and many American’s version of the Constitution forced Obama, as front man for the national security state, to publicly enter the fray.  Obama understood the high-stakes in the popularity contest between himself and Snowden.  But by embracing the violations with a disingenuous propaganda offensive Obama now personally owns the outrageous Fourth Amendment violations that Judge Leon has described.

Rob Hager is a public-interest litigator who filed a Supreme Court amicus brief in the 2012 Montana sequel to the Citizens United case, American Tradition Partnership, Inc. v. Bullockand has worked as an international consultant on legal development and anti-corruption issues.

Rob Hager is a public interest litigator who filed an amicus brief in the Montana sequel to Citizens United and has worked as an international consultant on anti-corruption policy and legislation.

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