FacebookTwitterGoogle+RedditEmail

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.

December 11, 2018
Eric Draitser
AFRICOM: A Neocolonial Occupation Force?
Sheldon Richman
War Over Ukraine?
Louis Proyect
Why World War II, Not the New Deal, Ended the Great Depression
Howard Lisnoff
Police Violence and Mass Policing in the U.S.
Mark Ashwill
A “Patriotic” Education Study Abroad Program in Viet Nam: God Bless America, Right or Wrong!
Laura Flanders
HUD Official to Move into Public Housing?
Nino Pagliccia
Resistance is Not Terrorism
Matthew Johnson
See No Evil, See No Good: The Truth Is Not Black and White
Maria Paez Victor
How Reuters Slandered Venezuela’s Social Benefits Card
December 10, 2018
Jacques R. Pauwels
Foreign Interventions in Revolutionary Russia
Richard Klin
The Disasters of War
Katie Fite
Rebranding Bundy
Gary Olson
A Few Thoughts on Politics and Personal Identity
Patrick Cockburn
Brexit Britain’s Crisis of Self-Confidence Will Only End in Tears and Rising Nationalism
Andrew Moss
Undocumented Citizen
Dean Baker
Trump and China: Going With Patent Holders Against Workers
Lawrence Wittner
Reviving the Nuclear Disarmament Movement: a Practical Proposal
Dan Siegel
Thoughts on the 2018 Elections and Beyond
Thomas Knapp
Election 2020: I Can Smell the Dumpster Fires Already
Weekend Edition
December 07, 2018
Friday - Sunday
Steve Hendricks
What If We Just Buy Off Big Fossil Fuel? A Novel Plan to Mitigate the Climate Calamity
Jeffrey St. Clair
Cancer as Weapon: Poppy Bush’s Radioactive War on Iraq
Paul Street
The McCain and Bush Death Tours: Establishment Rituals in How to be a Proper Ruler
Jason Hirthler
Laws of the Jungle: The Free Market and the Continuity of Change
Ajamu Baraka
The Universal Declaration of Human Rights at 70: Time to De-Colonize Human Rights!
Andrew Levine
Thoughts on Strategy for a Left Opposition
Jennifer Matsui
Dead of Night Redux: A Zombie Rises, A Spook Falls
Rob Urie
Degrowth: Toward a Green Revolution
Binoy Kampmark
The Bomb that Did Not Detonate: Julian Assange, Manafort and The Guardian
Robert Hunziker
The Deathly Insect Dilemma
Robert Fisk
Spare Me the American Tears for the Murder of Jamal Khashoggi
Joseph Natoli
Tribal Justice
Ron Jacobs
Getting Pushed Off the Capitalist Cliff
Macdonald Stainsby
Unist’ot’en Camp is Under Threat in Northern Canada
Senator Tom Harkin
Questions for Vice-President Bush on Posada Carriles
W. T. Whitney
Two Years and Colombia’s Peace Agreement is in Shreds
Ron Jacobs
Getting Pushed Off the Capitalist Cliff
Ramzy Baroud
The Conspiracy Against Refugees
David Rosen
The Swamp Stinks: Trump & Washington’s Rot
Raouf Halaby
Wall-to-Wall Whitewashing
Daniel Falcone
Noam Chomsky Turns 90
Dean Baker
An Inverted Bond Yield Curve: Is a Recession Coming?
Nick Pemberton
The Case For Chuck Mertz (Not Noam Chomsky) as America’s Leading Intellectual
Ralph Nader
New Book about Ethics and Whistleblowing for Engineers Affects Us All!
Dan Kovalik
The Return of the Nicaraguan Contras, and the Rise of the Pro-Contra Left
Jeremy Kuzmarov
Exposing the Crimes of the CIAs Fair-Haired Boy, Paul Kagame, and the Rwandan Patriotic Front
FacebookTwitterGoogle+RedditEmail