Sen. Dianne Feinstein recently said Edward Snowden, the NSA defector, was a traitor. Strong words. Are they justified?
Let’s take a dispassionate look at the evidence. Along the way we may actually see how we got here.
Edward Snowden broke an oath he took to maintain the secrecy of his spy work with the National Security Agency. This spying was directed against American citizens located within America’s borders. The documents he released to the public, Ms. Feinstein and some other government officials claim, have diminished the effectiveness of that spying program, by alerting our enemies of its existence. The administration and those running the spying program allege this will make Americans less safe from terrorist attack.
The most recent domestic terrorist attack was the Boston Marathon bombing. Did NSA’s domestic spying prevent it? No. Would run-of-the-mill police and FBI work have prevented it? We had warnings about the perpetrators from the Soviets and the Saudis beforehand, but no followup was ever done. The subjects of those intelligence tips were never interviewed. The bombing happened.
How about the original 9/11 bombing of the twin towers in New York? We know from previous government admissions that NSA claimed the right to spy on foreigners living in America, especially if they called overseas. Flight instructors training the budding Saudi airline pilots begged the FBI, on several occasions, to investigate these particular students. The instructors found it unnerving that the students didn’t care about learning how to land an airliner. They just wanted to fly one. The FBI did not interview the Saudi students, some of whom had expired visas. If NSA was listening, it did no one any good, least of all the airline passengers and people working in the towers.
Let’s return to Ms. Feinstein’s charges of treason. If a declaration of war were in force, and if the documents Mr. Snowden released targeted the enemy, I would tend to agree with Ms. Feinstein: His act could provide “aid and comfort” to the enemy, the definition of treason.
But we have no declaration of war. World War II was the last declared war. Our enemies were Germany and Japan. (We have since apologized to and compensated Japanese-American citizens for internment during that war.) If this had been World War II, and the information released had benefited Germany or Japan, Ms. Feinstein would be correct. But without a declaration of war, we have no enemy, so there can be no treason involved.
Our congressional leadership tells us that NSA’s domestic spying is authorized by the Patriot Act, recently renewed by Congress. But there are problems with this, as Rep. Jim Sensenbrenner, one of the original post-9/11 authors of the act, has pointed out in saying NSA has gone too far.
The real problem, however, is that the Patriot Act itself violates the Constitution. In particular, it violates the right to privacy, the Fourth Amendment. This prohibits the government from molesting the citizen, by guaranteeing the citizen a right to be secure in his or her papers and person against searches and seizures carried out by government agents. No probable cause, no warrant. No warrant, no search or seizure. The right to be left alone.
It is a well-accepted principle that any law which violates the Constitution is null and void. It is as if that law never existed. Here is what the legal encyclopedia of American Jurisprudence says in regard to constitutionality:
“The general rule is that an unconstitutional statute, though having the form and the name of law, is in reality no law, but is wholly void and ineffective for any purpose since unconstitutionality dates from the time of its enactment and not merely from the date of the decision so branding it; an unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed. … An unconstitutional law is void.” (16 Am. Jur. 2d, Sec. 178)
Sen. Feinstein, like her colleagues, took an oath of office. If she didn’t, she is not a seated U.S. senator. Her oath requires that she uphold the Constitution. Chief among that would be voting for no illegal laws that violate the Constitution.
If Mr. Snowden is guilty of treason in Ms. Feinstein’s mind, then there must be an enemy, and that enemy must be the American people. Any law authorizing domestic spying violates the Constitution and is therefore an illegal law. There is no provision in the Constitution for secret courts and secret decisions. An illegal law cannot authorize legal activity against American citizens.
Those who violate their oath of office abrogate their right to hold that office. All of their actions subsequent to that violation are illegal; certainly all of their votes as a senator. U.S. Code actually provides fines and imprisonment for elected officials who violate their oath of office. The fact that senators and representatives who vote for illegal laws are not removed from office and imprisoned shows that we are no longer a nation of laws, but a lawless nation governed by force and fear.
Those who would amend the Constitution must follow the procedures the Constitution provides for such changes. This was made difficult for a reason. But it has been successfully done before. Nearly a dozen years have passed since 9/11; the federal government has had plenty of time to amend the Constitution and make their domestic spying legal. They chose not to do so. Why?
Perhaps there is a real enemy against whom Ms. Feinstein and others in Congress have authorized this illegal spying. Perhaps it is us, the American people. Perhaps it is members of the tea party, those Americans who dare to challenge the dynasty of Ms. Feinstein and her like-minded colleagues in the D.C. establishment, who have profited so handsomely from their service to America. Perhaps our representatives have already drawn up a secret declaration of war. Perhaps that declaration of war is against America.
Early in this column I used the word “defector,” a traditional espionage term to describe Mr. Snowden. I did so deliberately. When we look at the facts, it certainly appears that Mr. Snowden has defected to the American people.
Note: For a good, quick comparison between the Patriot Act and what the Constitution permits, see this link.