A letter to President Obama

A letter from Edward Snowden’s father and his lawyer, Bruce Fein,
to President Obama:

Bruce Fein & Associates, Inc.

722 12th Street, N.W., 4th Floor

Washington, D.C. 20005

Phone: 703-963-4968

July 26, 2013

President Barack Obama
The White House
1600 Pennsylvania Avenue, N.W.
Washington, D.C. 20500

Re: Civil Disobedience, Edward J. Snowden, and the Constitution

Dear Mr. President:
You are acutely aware that the history of liberty is a history of civil
disobedience to unjust laws or practices. As Edmund Burke sermonized,
All that is necessary for the triumph of evil is that good men do
nothing

Civil disobedience is not the first, but the last option. Henry David
Thoreau wrote with profound restraint in Civil Disobedience:If
the injustice is part of the necessary friction of the machine of
government, let it go, let it go: perchance it will wear smooth certainly the
machine will wear out. If the injustice has a spring, or a pulley, or a rope, or
a crank, exclusively for itself, then perhaps you may consider whether
the remedy will not be worse than the evil; but if it is of such a nature
that it requires you to be the agent of injustice to another, then, I say,
break the law. Let your life be a counter friction to stop the
machine.
Thoreau moral philosophy found expression during the Nuremburg
trials in which following orders was rejected as a defense. Indeed,
military law requires disobedience to clearly illegal orders.

A dark chapter in America’s World War II history would not have been
written if the then United States Attorney General had resigned rather than
participate in racist concentration camps imprisoning 120,000 Japanese
American citizens and resident aliens.
Civil disobedience to the Fugitive Slave Act and Jim Crow laws provoked
the end of slavery and the modern civil rights revolution.
We submit that Edward J. Snowden’s disclosures of dragnet
surveillance of

Americans under ? 215 of the Patriot Act, ? 702 of the Foreign
IntelligenceSurveillance Act Amendments, or otherwise were sanctioned by
Thoreau’s time-honored moral philosophy and justifications for civil
disobedience.

Since 2005, Mr. Snowden had been employed by the intelligence community.
He found himself complicit in secret, indiscriminate spying on millions of
innocent citizens contrary to the spirit if not the letter of the First
and Fourth Amendments and the transparency indispensable to
self-government.

Members of Congress entrusted with oversight remained silent or Delphic.
Mr.Snowden confronted a choice between civic duty and passivity. He may
have recalled the injunction of Martin Luther King, Jr.He who
passively accepts evil is as much involved in it as he who helps to perpetrate
it.

Mr. Snowden chose duty. Your administration vindictively responded with
a criminal complaint alleging violations of the Espionage Act.

From the commencement of your administration, your secrecy of the
National Security Agency’s Orwellian surveillance programs had frustrated a
national conversation over their legality, necessity, or morality. That secrecy

(combined with congressional nonfeasance) provoked Edward’s
disclosures, which sparked a national conversation which you have belatedly and
cynically embraced. Legislation has been introduced in both the House of

Representatives and Senate to curtail or terminate the NSA’s
programs, and the American people are being educated to the public policy choices at
hand.

A commanding majority now voice concerns over the dragnet surveillance
of Americans that Edward exposed and you concealed. It seems mystifying to
us that you are prosecuting Edward for accomplishing what you have said

urgently needed to be done!

The right to be left alone from government snooping–the most
cherished right among civilized people is the cornerstone of liberty. Supreme Court
Justice

Robert Jackson served as Chief Prosecutor at Nuremburg. He came to learn
of the dynamics of the Third Reich that crushed a free society, and which
have lessons for the United States today.

Writing in Brinegar v. United States, Justice Jackson elaborated:

The Fourth Amendment states: “The right of the people to be secure
in theirpersons, houses, papers, and effects, against unreasonable searches and

seizures, shall not be violated, and no Warrants shall issue, but upon

probable cause, supported by Oath or affirmation, and particularly

describing the place to be searched, and the persons or things to be
seized.

These, I protest, are not mere second-class rights but belong in the
catalog of indispensable freedoms. Among deprivations of rights, none is so

effective in cowing a population, crushing the spirit of the individual
and putting terror in every heart. Uncontrolled search and seizure is one of
the first and most effective weapons in the arsenal of every arbitrary

government. And one need only briefly to have dwelt and worked among a

people possessed of many admirable qualities but deprived of these rights
to know that the human personality deteriorates and dignity and
self-reliance disappear where homes, persons and possessions are subject at any hour
to unheralded search and seizure by the police.

We thus find your administration’s zeal to punish Mr.
Snowden’s discharge of civic duty to protect democratic processes and to safeguard liberty to
be unconscionable and indefensible.

We are also appalled at your administration’s scorn for due process,
the rule of law, fairness, and the presumption of innocence as regards
Edward.

On June 27, 2013, Mr. Fein wrote a letter to the Attorney General
stating that Edward’s father was substantially convinced that he would
return to the United States to confront the charges that have been lodged against him
if three cornerstones of due process were guaranteed. The letter was not
an ultimatum, but an invitation to discuss fair trial imperatives. The
Attorney General has sneered at the overture with studied silence.

We thus suspect your administration wishes to avoid a trial because of

constitutional doubts about application of the Espionage Act in these

circumstances, and obligations to disclose to the public potentially

embarrassing classified information under the Classified Information

Procedures Act.

Your decision to force down a civilian airliner carrying Bolivian
President

Evo Morales in hopes of kidnapping Edward also does not inspire
confidence

that you are committed to providing him a fair trial. Neither does your

refusal to remind the American people and prominent Democrats and

Republicans in the House and Senate like House Speaker John Boehner,

Congresswoman Nancy Pelosi, Congresswoman Michele Bachmann,and Senator

Dianne Feinstein that Edward enjoys a presumption of innocence. He
should

not be convicted before trial. Yet Speaker Boehner has denounced Edward as
a

“traitor.”

Ms. Pelosi has pontificated that Edward “did violate the law in
terms of

releasing those documents.” Ms. Bachmann has pronounced that,
“This was not

the act of a patriot; this was an act of a traitor.” And Ms.
Feinstein has

decreed that Edward was guilty of “treason,” which is defined
in Article III

of the Constitution as “levying war” against the United
States, “or in

adhering to their enemies, giving them aid and comfort.”

You have let those quadruple affronts to due process pass unrebuked,
while

you have disparaged Edward as a “hacker” to cast aspersion on
his

motivations and talents. Have you forgotten the Supreme Court’s
gospel in

Berger v. United States that the interests of the government “in a
criminal

prosecution is not that it shall win a case, but that justice shall be

done?”

We also find reprehensible your administration’s Espionage Act
prosecution

of Edward for disclosures indistinguishable from those which routinely
find

their way into the public domain via your high level appointees for
partisan

political advantage. Classified details of your predator drone
protocols,

for instance, were shared with the New York Times with impunity to
bolster

your national security credentials. Justice Jackson observed in Railway

Express Agency, Inc. v. New York: “The framers of the Constitution
knew, and

we should not forget today, that there is no more effective practical

guaranty against arbitrary and unreasonable government than to require
that

the principles of law which officials would impose upon a minority must
be

imposed generally.
In light of the circumstances amplified above, we urge you to order the

Attorney General to move to dismiss the outstanding criminal complaint

against Edward, and to support legislation to remedy the NSA
surveillance

abuses he revealed. Such presidential directives would mark your finest

constitutional and moral hour.

Sincerely,

Bruce Fein

Counsel for Lon Snowden