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Rob Hager
NationofChange / Op-Ed
Published: Friday 20 December 2013
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 other Americans’ version of the Constitution forced Obama to publicly enter the fray.

Snowden v. Obama: The Game-Changing Decision

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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 in Klayman v. Obama (12/16/2013) a persuasive (and occasionally exclamatory) 68 page legal opinion averaging more than one fine-print footnote per page 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's “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 their 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.   Snowden willingly risked his future life on his  reading that the data sweeps were unreasonable 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” of privacy 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 to this confirmation that their rights have been flagrantly violated, make it difficult to remove these two factual questions from a jury.  The public now must demand that the Constitution be enforced when the time comes to either present Snowden's Fourth Amendment defense before a jury in a criminal trial for “espionage” or place the case against Obama and his snoops for damages to a jury in a civil trial for violating the Fourth Amendment.

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 the factual questions as to what is expected and reasonable in connection with searches.  The Supreme Court's most “originalist” Justice, Scalia, believes the Constitution should be interpreted the same way it was in 1787 when a Fourth Amendment violator would “be liable for trespass, including exemplary damages. …  [T]he Framers endeavored to preserve the jury's role in regulating searches and seizures.”  See ”Obama's Constitution, Snowden's Constitution and Criminal Law.”

Only if the NSA's surveillance were clearly not a violation of the Fourth Amendment should the judges take these questions away from the jury.  After Judge Leon's  rhetoric about “Orwellian technology” used for “dragnet” searches indicated he does not even think the question a remotely close one, such an argument can no longer pass the laugh test.  The only question is whether the American people will allow five politicized justices on the Supreme Court to continue to dismantle their Constitution -- as they have done in election cases like Citizens United and Shelby Countythis time by denying the people themselves, through the power of juries, to “regulat[e[ searches and seizures” as the Constitution intended.

 The potential for a public struggle to defend original fundamental constitutional rights would change the game from the criminal prosecution against Snowden on “three felonies," according to Obama, in what can be labeled Obama v. Snowden.  The prospect of civil litigation for damages puts Obama's own skin in the game.  It can be filed by virtually anyone and may be viewed as Snowden v. Obama.   Though Larry Klayman, a conservative legal activist, is the named plaintiff in the particular suit Judge Leon decided, the hero of the story is Edward Snowden who initiated the strategic political resistance in support of the Constitution which transcends any particular tactical legal action in what remains Snowden's campaign.

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 that went out of control due to incompetent management.  Well beyond just bad management by a superior, 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 other Americans' 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 waging a disingenuous propaganda offensive against Snowden Obama now personally owns the outrageous Fourth Amendment violations that Judge Leon has described.  Snowden's re-education of the former University of Chicago Senior Lecturer on the Constitution may have only begun.

An earlier version of this article was published in Counterpunch.

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