FacebookTwitterGoogle+RedditEmail

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.

More articles by:

CounterPunch Magazine

minimag-edit

bernie-the-sandernistas-cover-344x550

zen economics

February 20, 2017
Bruce E. Levine
Humiliation Porn: Trump’s Gift to His Faithful…and Now the Blowback
Melvin Goodman
“Wag the Dog,” Revisited
Robert Hunziker
Fukushima: a Lurking Global Catastrophe?
David Smith-Ferri
Resistance and Resolve in Russia: Memorial HRC
Kenneth Surin
Global India?
Norman Pollack
Fascistization Crashing Down: Driving the Cleaver into Social Welfare
Patrick Cockburn
Trump v. the Media: a Fight to the Death
Susan Babbitt
Shooting Arrows at Heaven: Why is There Debate About Battle Imagery in Health?
Matt Peppe
New York Times Openly Promotes Formal Apartheid Regime By Israel
David Swanson
Understanding Robert E. Lee Supporters
Michael Brenner
The Narcissism of Donald Trump
Martin Billheimer
Capital of Pain
Thomas Knapp
Florida’s Shenanigans Make a Great Case for (Re-)Separation of Ballot and State
Jordan Flaherty
Best Films of 2016: Black Excellence Versus White Mediocrity
Weekend Edition
February 17, 2017
Friday - Sunday
David Price
Rogue Elephant Rising: The CIA as Kingslayer
Matthew Stevenson
Is Trump the Worst President Ever?
Jeffrey St. Clair
Roaming Charges: Tinker, Tailor, Soldier, Flynn?
John Wight
Brexit and Trump: Why Right is Not the New Left
Diana Johnstone
France: Another Ghastly Presidential Election Campaign; the Deep State Rises to the Surface
Neve Gordon
Trump’s One-State Option
Roger Harris
Emperor Trump Has No Clothes: Time to Organize!
Joan Roelofs
What Else is Wrong with Globalization
Andrew Levine
Why Trump’s Muslim Travel Ban?
Mike Whitney
Blood in the Water: the Trump Revolution Ends in a Whimper
Vijay Prashad
Trump, Turmoil and Resistance
Ron Jacobs
U.S. Imperial War Personified
David Swanson
Can the Climate Survive Adherence to War and Partisanship?
Andre Vltchek
Governor of Jakarta: Get Re-elected or Die!
Patrick Cockburn
The Coming Destruction of Mosul
Norman Pollack
Self-Devouring Reaction: Governmental Impasse
Steve Horn
What Do a Louisiana Pipeline Explosion and Dakota Access Pipeline Have in Common? Phillips 66
Brian Saady
Why Corporations are Too Big to Jail in the Drug War
Graham Peebles
Ethiopia: Peaceful Protest to Armed Uprising
Luke Meyer
The Case of Tony: Inside a Lifer Hearing
Binoy Kampmark
Adolf, The Donald and History
Robert Koehler
The Great American Awakening
Murray Dobbin
Canadians at Odds With Their Government on Israel
Fariborz Saremi
A Whole New World?
Joyce Nelson
Japan’s Abe, Trump & Illegal Leaks
Christopher Brauchli
Trump 1, Tillerson 0
Yves Engler
Is This Hate Speech?
Dan Bacher
Trump Administration Exempts Three CA Oil Fields From Water Protection Rule at Jerry Brown’s Request
Richard Klin
Solid Gold
Melissa Garriga
Anti-Abortion and Anti-Fascist Movements: More in Common Than Meets the Eye
Thomas Knapp
The Absurd Consequences of a “Right to Privacy”
FacebookTwitterGoogle+RedditEmail