A Victory for the Constitution

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.

More articles by:

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.

Weekend Edition
March 23, 2018
Friday - Sunday
Roberto J. González
The Mind-Benders: How to Harvest Facebook Data, Brainwash Voters, and Swing Elections
Paul Street
Deplorables II: The Dismal Dems in Stormy Times
Nick Pemberton
The Ghost of Hillary
Andrew Levine
Light at the End of the Tunnel?
Paul de Rooij
Amnesty International: Trumpeting for War… Again
Jeffrey St. Clair
Roaming Charges: Coming in Hot
Chuck Gerhart
Sessions Exploits a Flaw to Pursue Execution of Meth Addicts
Robert Fantina
Distractions, Thought Control and Palestine
Hiroyuki Hamada
The Eyes of “Others” for Us All
Robert Hunziker
Is the EPA Hazardous to Your Health?
Stephanie Savell
15 Years After the Iraq Invasion, What Are the Costs?
Aidan O'Brien
Europe is Pregnant 
John Eskow
How Can We Live With All of This Rage?
Matthew Stevenson
Why Vietnam Still Matters: Was Khe Sanh a Win or a Loss?
Dan Corjescu
The Man Who Should Be Dead
Howard Lisnoff
The Bone Spur in Chief
Brian Cloughley
Hitler and the Poisoning of the British Public
Brett Wilkins
Trump Touts $12.5B Saudi Arms Sale as US Support for Yemen War Literally Fuels Atrocities
Barbara Nimri Aziz
Iraqi Landscapes: the Path of Martyrs
Brian Saady
The War On Drugs Is Far Deadlier Than Most People Realize
Stephen Cooper
Battling the Death Penalty With James Baldwin
CJ Hopkins
Then They Came for the Globalists
Philip Doe
In Colorado, See How They Run After the Fracking Dollars
Wilfred Burchett
Vietnam Will Win: Armed Propaganda
Binoy Kampmark
John Brennan’s Trump Problem
Nate Terani
Donald Trump’s America: Already Hell Enough for This Muslim-American
Steve Early
From Jackson to Richmond: Radical Mayors Leave Their Mark
Jill Richardson
To Believe in Science, You Have to Know How It’s Done
Ralph Nader
Ten Million Americans Could Bring H.R. 676 into Reality Land—Relief for Anxiety, Dread and Fear
Sam Pizzigati
Billionaires Won’t Save the World, Just Look at Elon Musk
Sergio Avila
Don’t Make the Border a Wasteland
Daryan Rezazad
Denial of Climate Change is Not the Problem
Ron Jacobs
Flashing for the Refugees on the Unarmed Road of Flight
Missy Comley Beattie
The Age of Absurdities and Atrocities
George Wuerthner
Isle Royale: Manage for Wilderness Not Wolves
George Payne
Pompeo Should Call the Dogs Off of WikiLeaks
Russell Mokhiber
Study Finds Single Payer Viable in 2018 Elections
Franklin Lamb
Despite Claims, Israel-Hezbollah War is Unlikely
Montana Wilderness Association Dishonors Its Past
Elizabeth “Liz” Hawkins, RN
Nurses Are Calling #TimesUp on Domestic Abuse
Paul Buhle
A Caribbean Giant Passes: Wilson Harris, RIP
Mel Gurtov
A Blank Check for Repression? A Saudi Leader Visits Washington
Seth Sandronsky
Hoop schemes: Sacramento’s corporate bid for an NBA All-Star Game
Louis Proyect
The French Malaise, Now and Then
David Yearsley
Bach and the Erotics of Spring