Snowden didn't take an "oath of secrecy"

[jberryhill]

116. That's enough for a semester course

I hope you aren't crushed if I don't address everything in that extremely thoughtful and well-written post.

My comment was directed to the general viability of "justification" as an affirmative defense to a criminal charge. The short answer is that it is a narrow defense, and can be ruled out as a matter of law before a case gets to a jury, depending on the circumstances. If it is ruled out, that can be appealed. My comment was not intended as an analysis applied to the specific question of Edward Snowden. That analysis would look something like "he did a lot more than a justification defense would allow". If he were to be tried in the US, whatever happens at the trial level is likely to be uninteresting anyway, since his best course would be to engineer a mistrial. I only meant to say that, yes, "justification" is a form of affirmative defense, but it is narrower than many would like to believe.

What I would suggest generally is that you think in terms of "remedies" along with "rights".

For example, you are walking down the sidewalk and I say, "Oh, there's that a-hole Priestly from DU. I hate that guy. I'm going to sneak up behind him and run him over with my car." About 100 feet behind you, I drive onto the sidewalk and am careening toward you, certain to kill you. But at 25 feet behind you, I change my mind, drift back onto the road, and drive past you. You never saw me driving on the sidewalk, you had no perception that I "could have" run you over. Nothing at all happened to you.

Now, had you seen me, you might have been alarmed to the point of being in fear of your mortal existence, and I could be found liable for putting you in fear of your life or serious bodily injury. Had I hit you, of course, I would be liable civilly and criminally for all kinds of things. But neither of those two things happened. We can certainly agree that I was doing something wrong. We can certainly agree I committed a crime, or at least had intent and behavior directed toward committing one before I changed my mind. But nothing happened to you.

What result?

"By the way, I think that the exclusionary rule is a wet noodle. I think the Fourth Amendment deserves to be taken more seriously than that."

I agree with you on the second sentence. But that doesn't change the situation, which is that the "Fourth Amendment" doesn't have a "penalty" section. It says "the government shall not do this". Okay, fine. But what is to happen if the government does that? Quite obviously, we generally don't have rules against things that people aren't going to do. We have rules against things which people actually DO. The Fourth Amendment was written with the idea of, "yep, the government is going to break this from time to time". Otherwise, there's no point in having a rule against something which doesn't actually ever happen.

But to say "the exclusionary rule is a wet noodle" indicates you don't spend much time in pre-trial proceedings at your local courthouse. Criminal charges are dismissed or reduced pleas entered on the basis of it - Every. Single. Day. Each time it is a victory for the Fourth Amendment. Don't piss on what we already have. Make it better.

Do we say, "Okay, the government broke the Fourth Amendment, so let's grab the guns and overthrow it?" Is that what it says? Does it say, "we execute the government official who broke the Fourth Amendment"? Lock them up for how many years? What, specifically, do you have in mind by "taken more seriously"? With a blank sheet, and available penalties including death, where do you want to peg "taken more seriously"?

Again I agree that it should be taken more seriously. But that doesn't provide anyone who has an opinion that the "government did something it is not supposed to do" with some sort of legal immunity to then, in turn, do whatever they see fit as an appropriate course of action.

Give me the list of things which becomes permissible to do in these circumstances. Among other things the Constitution provides is the right to seek redress for violations of rights. The Constitution provides an entire Article, Article III, as a mechanism for doing that.

How about assassination? Is that off the table?

Let's say I am standing on my own porch on the route of a parade, holding a sign protesting a foreign miltary adventure, as I was one fine day some years ago, and a police officer does not like my sign. The police officer came up to me and took my sign away. My First Amendment right was violated. What then? Can I kill him now? Can I take a baseball bat to him? Give me the list of crimes I am now free to commit because, hey, the government violated the First Amendment.

That's what I'm driving at here.

The principal mechanism we have for Fourth Amendment violations is the exclusionary rule. John Adams and friends were primarily concerned about being locked up on the basis of information obtained as a consequence of illegal searches. The "penalty" for violating the Fourth Amendment, in the form of the exclusionary rule, addressses the animating concern of the Fourth Amendment - that people were going to be locked up as a consequence of the government conducting unwarranted searches.

And so, the theory goes, the exclusionary rule does two things. First, it reduces the incentive for conducting them, since the evidence can't be used (more on that below). Second, it takes the teeth out of illegal searches by rendering them inconsequential (and, as noted above, if they come into your house and smash up your stuff, the incident destruction of your property is another claim apart from the Fourth Amendment claim (specifically a Fifth Amendment claim)).

But in some sense, we are back on the sidewalk with me wanting to run you over with my car. The relevant laws kick in if (a) I scare the shit out of you, or (b) injure you. Some harm had to come to you in order for my aiming my car at you without your knowledge to have any consequences. It's a "tree falls in the forest" proposition. The penalty we have for this species of government misbehavior - the exclusionary rule - only applies when the fruit of the illegal search is used to try to put you in jail.

Now, I keep a printing press in my basement which runs off counterfeit $100 bills. If the police come in and find it in my basement, I am going to thank my lucky stars if they had a defective warrant, because their violation of the Fourth Amendment is going to keep my ass out of jail.

HOWEVER, and I think this is the troubling part, let's say they break into my house when I'm not home, see the printing press in the basement and say, "Well, okay, we can't use this search, but let's keep an eye on the guy when he is out in public and be ready to bust him when he passes a counterfeit bill." Can they watch me when I am out in public going shopping? Sure. Can they assign an officer to my grocery store, who doesn't even know about the illegal search of my house, to "keep an eye out to see if anyone passes a fake $100 bill?" Yes, they can do that too. So using the "independent source" route, they construct a parallel "legal" investigation, prompted by the illegal one, in order to nail me when I pass a counterfeit bill. The illegal search of my basement doesn't come into play, and they say "we got an anonymous tip that someone was passing counterfeit bills at the XYZ grocery store, and we caught this guy. We then got a warrant and found a counterfeiting operation in his basement."

Is that fair or not? I don't know that you'd get a broad consensus either way. In the real world, that kind of thing happens every day, along with the use of "informants" who can do things the police can't do, but can tell the police about it. But we put up with it because there are enough voting people in our society who would look at it and say, "Okay, but at the end of the day, the guy was counterfeiting $100 bills."

Everybody - including here at DU - has their favorite injustice that resulted from a criminal defendant who "got off on some technicality". Because by the time you are contesting an unlawful search on appeal, it's pretty much established that the underlying offense was, in fact, committed. Those are the only cases that get to the Supreme Court, for reasons that should be apparent if you think about it. So, just looking at the inputs, if you are the Supreme Court, it is pretty much a constant parade of people who really did some awful insanely illegal stuff, but they got caught because there was a Constitutional violation of some kind. That doesn't change the fact that Ernesto Miranda actually committed armed robbery, kidnapping and rape.

Start a thread on DU about how some guy admitted raping a mentally handicapped woman, but didn't get his Miranda warning, so he should be let go, and see how many "defenders of the Constitution" will join the celebration over that triumph of our rights. It's a tough sell. But pointing the finger at "the government" as having eroded our rights, instead of at ourselves for having allowed it to happen by a chain of incremental compromises is, IMHO, misplacing the blame.

We, The People, do not intelligently use the system of government we already have. For example, you bring up the Church Commission. The Church Commission did good work. Among the results of it was the establishment of the FISA court, which is a cherished institution here, right? Well, no.

The problem is that the work of perfecting our system doesn't reach some "end point" where we wipe the sweat off of our brows and say, "Well, we got that one nailed down. Good work. Let's go party." It's an ongoing process, and our system only works by continued intelligent engagement with it. That yet another generation has discovered our system of government is a process, not a result, and thinks they are the first generation to do so, is sort of like the way each generation thinks it alone discovered sex. These problems are not new, nor does their existence spell apocalyptic doom for our principles.

One of the reforms resulting from the Church Commission, of course, was an increased compartmentalization of information sharing among government agencies doing foreign intelligence, and government agencies doing domestic law enforcement. Hence, while Snowden can say, in relation to 9/11, that the government had all of the information it needed to know something was up, that view of "what the government knows" as one big pot of stuff that "the government knows" is a little simplistic - precisely because of the principles we put together in the wake of.... the Church Commission. That's a broad brush characterization, but you aren't going to find someone to hold a coherent conversation about it with someone who doesn't think the events of 9/11 included a terrorist attack in the first place. And there's no shortage of that here.

Do we need a Church Commission II? Hell yeah we do. It's not that the reforms instituted in its wake were bad, it's that they've become outdated. There are a lot of open questions which, unfortunately, are not going to get answers in our current political environment. Whose fault, ultimately, is that?

But look at the history of how we deal with these things. In response to perceived foreign threats, your vaunted John Adams signed the Alien and Sedition Acts, and none other than Thomas Jefferson his very own self locked people up under it. And that was when the Constitution was fresh out of the box with the ink still wet. In response to an armed rebellion, Lincoln suspended the basic right of Habeus Corpus. FDR locked up Japanese Americans and nationalized the steel mills. We, as a country, regularly do the most insane shit in overreaction to threats.

In response to 9/11 did we go nuts with our intelligence apparatus? Abso-fucking-lutely. Will we survive? All historical indications are that we will address that problem and be ready for the next "big fucking stupid thing the government did". I just can't join the pitchfork and torch crew wanting to burn down the government over any of this, because we have dealt with these kinds of things time and time again without the pitchforks and the torches.

But, let's take one strand of the Snowden thing in light of the justification defense. Where in the Constitution does the US government commit some violation of anything by trying to listen to Angela Merkel's cell phone calls, and how does disclosing that information translate into "defending the Constitution"? The last time I checked, the US Constitution doesn't apply to Angela Merkel's cell phone conversations, and I really don't think the Chancellor of Germany was talking about your cholesterol test results.

Do we completely lose our privacy when we keep our records in an internet cloud?

Personally, I think using "cloud" storage for anything you care about, should be grounds for certifiable insanity. I don't do criminal law (and some of what I know about it is pretty rusty, in the event you find my hypo on the counterfeiting to be flawed in some way), but I do deal with sensitive information of commercial clients. If there is something important they want to talk about, I don't use email or even the telephone, I get on a plane, meet in a room that's not rented from someone else, and put pen to paper, and that's not even because I'm concerned about whether the government is listening, but because of all of the possible ways that data can be compromised by the many PRIVATE parties who can listen in.

And again, those guys who were concerned about government invasion of their privacy that wrote the Fourth Amendment? They had a good supply of these things:



Short answer: no, I have no expectation that communications conducted over the internet have the same legal protections as communications transmitted through, say, the US Postal Service. There are a lot of specific laws that deal with things that become US mail, and I've never seen any addressing my gmail account. The American Revolution was organized, in part, by written correspondence that passed through a lot of private hands before getting to its destination, and in some ways our communications are more like they were in colonial America in that regard. That's why the "Founding Fathers" and Mothers generally treated their own privacy as something for which they were responsible in the first instance once it left their doorstep.

Thomas Jefferson didn't go running around with his hair on fire bemoaning his lack of privacy. He got himself a cipher wheel. I urge anyone with his concerns to do the same thing.