A synopsis of the legal rationale of this article is this: when the USA joined the International Covenant on Civil and Political Rights (a multi-lateral treaty with force of international law) but held out the treaty would be “non-self-executing”, the USA essentially claimed its own constitutional principles would enforce the treaty’s provisions. This places the USA in a unique circumstance of substituting its own provisions of law for the provisions enumerated in the International Covenant. In this case, Snowden should argue the Obama administration’s demonstrable violation of foundational American principles of law are subject to interpretation relevant to his rights under the treaty, in any nation he should apply for asylum in. Restated, Snowden can put the USA’s record, in relation to its own civil liberties provisions, on trial in any suit he might bring in jurisdiction where the treaty may be enforced, examples given, Germany and subsequently the European Court of Human Rights.
Use of ‘The Espionage Act’ to prosecute whistle-blowers by the Obama administration is unfortunate reality. It is unprecedented persecution by a sublime neo-liberal political liar & cohorts, but it is presently matter of fact circumstance and what people like Snowden must contend with when considering any act of willful transparency in defiance of secrecy law.
Because it is unlikely use of the Espionage Act to prosecute whistle-blowing will be struck down by the courts, particularly with a Supreme Court majority aligned with the ‘Federalist Society’ whose neo-conservative agenda will sometimes converge with neo-liberal objectives, particularly in philosophy of supremacy concerning the executive in matters of security, one must develop a robust constitutional foundation for defense of whistle-blowing.
In the case of Snowden, he also should show a valid rationale of why the United States Constitution’s Article Six ‘supremacy clause’ .. “and any treaty made shall be the supreme law of the land” applied in the offensive sense versus the United States, as opposed defending himself, in regards to claims the multi-lateral treaty “International Covenant on Civil and Political Rights” should protect him.
How this is a legal necessity in Snowden’s case arises from the USA being party to the treaty and how the treaty might or might not be applied in American courts. Legitimacy of claim for political asylum must be established in relation to not only the treaty’s general provisions, but it must be shown the USA’s relationship to the treaty is presently a relationship of bad faith.
Other issues that play in any defense of Snowden, to show he is not in violation of the Espionage Act, is Private Manning’s conviction & what constitutes a legitimate whistle-blow as opposed to malicious leaking of secrets, what is a valid press vehicle (Manning and WikiLeaks? Snowden and the Guardian? Yes or no in individual and separate circumstance) and how Snowden’s case would likely sort out in American courts in the present climate of law and politics. And it must be shown the decision to pursue Snowden is a political persecution at odds with law.
This defense of Snowden begins with disposing of Manning as a comparable case.
The neo-liberal New York Times has on several occasions resorted to torture lawyer John Yoo for legal opinions and recently Yoo had suggested WikiLeaks does not qualify as legitimate journalism under the American philosophy of law governed by the American constitution’s First Amendment. In other words. WikiLeaks cannot be claimed as a valid outlet for whistle-blowers under American law, particularly in relation to the case of Private Manning.
Manning’s case is significantly different than that of Snowden, and in any case Yoo’s suggestion would not apply to Snowden who leaked to The Guardian. But let’s look at the at-large & uncharged criminal Yoo’s idea, to compare the two cases a bit, particularly in regards to the Espionage Act and what constitutes legitimate journalism or a free press in American law.
Firstly, American military law, the “Uniform Code of Military Justice”, should not be conflated with the American federal criminal code and associated case law, they are separate animals. When you enter the military, you surrender your politics in relation to performing your duty and the only natural avenue of dissent is to refuse illegal orders. In effect, as a soldier, the only possibly justifiable leaks would be having to do with war crimes, orders to commit crimes or concealment of crimes by the military per se, or crimes against the constitution by your superiors. Politics do not play as a defensible action for whistle-blowing in the American military. To quote an Admiral addressing a West Point graduating class, in relation to the United States military having always been under civilian control, if you don’t like the policies “vote with your feet” (leave the military.) Manning could have taken that advice to heart, his defense of moral conscience had no chance in the military justice structure. This is old news in American military experience, quoting Robert E Lee’s observation on his artillery slaughter of advancing Union soldiers: “It is good war is so terrible, or we should become too fond of it.” Manning could not expect to act on a social conscience in relation to military experience, having joined voluntarily an organization whose nature is apolitical violence, however that violence might be at the direction of politics, politics is not the soldiers job.
The hard truth is, the American constitution’s First Amendment protects several things and political lies are protected speech. In this respect, until there were to be a change to the foundational law, American law is amoral. In the case of the ‘cables’ leak, example given, there Manning made no defense of any crime against the American constitution and in fact the greater or overall thrust of the cables, as despicable as this is, concerns revealing perfectly legal political lies in geo-politics. Insofar as Yoo’s assertion of WikiLeaks as a whistle-blowing platform having no press freedom protection under American law, he may have it ½ right. When considering charges brought under the Espionage Act in an American court, one would need a trump card and crimes against the American constitution should constitute such. But Manning did not present any defense related to this and WikiLeaks has never made a case the USA’s purported violations of press freedoms meet this test per American law in relation to any failure to conform to its international law obligations. To conform to journalism standards protected by the American First Amendment, when faced with charges brought under the Espionage Act, one would have to convincingly show a political nature of the prosecution attending crimes against the constitutional order. Massive dumps of unrelated and unorganized or functionally incoherent information do not meet the necessary legal test to qualify as journalism in this regard. In metaphor, Manning & WikiLeaks fail the law on account of behaving as a harvested organs black market as opposed to acting as a legitimate medical professional’s prescribed transfusion in a proper setting of surgery. They didn’t conform to presenting cohesive facts in telling a story that highly restricted the leaked documents to a context of making points in a socially responsible and news worthy presentation, serving society in a positive sense.
The military judge’s niggardly acknowledgement Manning was patently and illegally treated (tortured) in his detention is an altogether unrelated issue in law with no bearing on the present subject.
The case of Snowden is fundamentally different.
In the case of the USA signatory to the International Covenant on Civil and Political Rights, in relation to American basic or foundational law, The American constitution’s Article Six is straightforward on its face “any treaty made shall be the supreme law of the land.” But it is, of course, not this simple. The treaty in question has been ratified by the Americans in large part as “non-self-executing” which is a legal fiction indicating American law already covers the most fundamental rights promised by the treaty. In other words, the USA claim in relation to the treaty is one of ‘our laws are already in compliance and we have all of the treaty’s demands covered.’ And so it is, in any USA court, although a judge may consider the treaty in her/his ‘finding of facts and conclusions of law’, the laws applied will in fact be American laws and interpretations in relation to any question of rights promised by the International Covenant.
This preceding would place Snowden’s rights squarely in the case law of the USA were he to be tried in any American federal court, in actuality the rights promised in the treaty itself are already become in a sense moot in relation any American prosecution, where there is no political will to enforce the treaty’s provisions, demonstrated in the decision to prosecute to begin with.
To show pursuing Snowden is a political decision trumping the rule of law, one must examine the facts of how American laws are applied in a negative political light.
In the USA, federal judges are political appointments, pure and simple. The executive provides lists of desired appointments to fill court positions to the senate for confirmation and that is it. That the senate often fights among themselves over the appointments, that the appointments are often long delayed, cannot conceal the fact every sitting United States federal judge is the result of raw politics. That merit does not presently play in this process is amply demonstrated by the fact Bush administration torture lawyer Jay Bybee became a sitting federal appellate judge and there is no movement whatsoever to impeach and remove Bybee from the bench since it had become public knowledge Bybee authored memos justifying torture.
That American judges are not bound to the rights promised in the International Covenant is ably demonstrated by the fact a sitting supreme court justice had, as a federal judge, let an innocent man rot eight additional years in prison on a rules technicality, when exculpatory evidence showing the man’s innocence had been produced for the court, prior to the justice’s appointment by Obama and confirmation to the Supreme Court of the United States.
In the United States theory of law there is a known and in the past applied concept called ‘color of law.’ Color of law is when the apparatus of state puts up a pretense of legitimate authority to pursue what are in fact illegal acts. In the case of the FISA court authorizing PRISM and one must presume XkeyScore revealed by Snowden, there is ZERO constitutional foundation for any secret jurisprudence violating citizens’ rights laid out in the first through eighth amendments or American Bill of Rights, which the FISA court in fact sets out to do. When the constitutional language authorizing congress to create courts is construed in a way to cancel out other clauses of the constitution, there cannot be legitimacy where a constitutional oxymoron has been created. It is precisely the American Bill of Rights the USA holds is binding it to conformity to the International Covenant.
Congressional leaders Diane Feinstein and John Boehner have used the terms ‘treason’ and ‘traitor’ in relation to Snowden, poisoning the jury pool on a national basis, HOWEVER; any actual criminal acts defined as treason in the American sense under any authentic American ‘de jure’ rule of law are those persons putting forth a pretense the secret court authorizing civil liberties violations are legitimate. This points first to the Congress authoring patently unconstitutional legislation, then second, to any president signing and implementing such unlawful authority and subsequently, any Chief Justice appointing members of said secret court, and finally those persons accepting and serving FISA, these are the ‘traitors’ if the USA constitution were to mean anything in the present day, when in fact it would appear it does not. Obama must have been a terrible law professor or he has simply thrown out any principled view of American foundational law when ensconced in the halls of power. Diane Feinstein claiming “PRISM is legal” (one must presume she holds the same view of XkeyScore) because it had been approved by the FISA court, is patent ‘color of law’ and should be held as precisely such in any un-politicized judicial determination.
Obama’s disregard for the American foundational law is perhaps best demonstrated by his vote as Senator giving immunity to the telecoms, when the telecoms had played ball with criminals in the Bush administration (we now know likely had been authorized by the FISA court, on account of Snowden’s revelations), participating in what amounted to warrant-less searches and eves-dropping without a warrant, stealing and handing over peoples personal information in criminal acts Americans had been historically protected from by the USA constitution and pertinent laws, the 4th Amendment of the USA Bill of Rights particularly.
These violations should have opened the telecom corporations to both criminal penalties and civil liabilities. There were crimes committed which should have been prosecuted and people have a right to sue. The potential liability looked pretty big and the telecoms lobbied for immunity. The following constitutional violations were endorsed by Obama’s Senate vote:
1) ex post facto. The USA constitution specifically prohibits Congress making any “ex post facto” law, as typically or historically applied that means a behavior cannot be criminalized after the fact and applied retroactively, or more broadly, new laws cannot be made governing an event that is in the past. In this 2nd case we have a valid constitutional claim prohibiting making a law excusing past criminal civil liberties violations against our citizens, violations which had created liabilities. What is required for the criminal aspect solely, is a PARDON
2) legislative pardon: Congress cannot give pardons to the individuals within the telecoms who’d signed off on and perpetrated the crimes, that is reserved by the USA constitution to the president and neither can the congress or the president pardon corporations in any manner excusing civil liability, the corporations must be held accountable and seek any leniency based on possible mitigation factors from the courts, because [3 & 4 combine to make a constitutional principle]
3) the” right to petition for redress” is promised to every citizen who has been wronged and
4) “suit at equity”, that is, the courts existing to do what is right by the citizen, is the avenue provided by the USA’s constitution to fulfill the promise of every wronged citizen’s ‘right to petition for redress’ or it should be said there is no right of corporate or government impunity. Citizen’s petitions for remedies and compensation may not be preemptively denied fair hearing, in the USA’s courts of law by the Congress
The oath to uphold the USA’s constitution had been meant to prevent such patently wrong laws in the first instance. When this oath is become patently meaningless, as in the case of the majority of congress, points squarely to the core of corrupt process usurping the USA foundational law.
Obama’s proposal to create a court to oversee the USA’s drone strikes are an admission the targeted killings of Anwar al-Awaliki and his son, both American citizens, were extra-judicial assassinations, that, and congressmen proposing to amend the FISA law to create an advocate for the American public in presentations before the secret court, which to now has only heard the executive side arguments, are an admission there is no compulsory (constitutionally required) due process for citizens in the secret venue. Both of these proposals underscore overwhelming fact the USA institutions of governance have become removed practically altogether from its foundational rule of law. The very fact nearly the entirety of any ‘legal rationales’ related to the preceding phenomena are classified ‘state secrets’ reinforces the argument of a regime denying the people and the peoples advocates any avenue to right the ship of state per the constitutional order.
This degenerate state of American law, beginning at the top, with Obama, should be Snowden’s first line of defense, where he can correctly testify he was trapped by law requiring secrecy surrounding crimes against the constitutional order, and it had to be the American oath to “uphold the constitution against all enemies, foreign and domestic”, as a personal conviction, prevailed.
That Snowden cannot get a fair trial in the USA would be his follow-on argument in presenting the persona or legal track record of Obama’s Attorney General; Eric Holder.
Point one in fact, Snowden should not have been charged by Holder’s Department of Justice in the 1st instance, we can already see the prosecution is political punishment for revealing crimes against the American constitutional order.
To give additional legitimate legal cover to any State that would provide Snowden asylum under the International Covenant, having already shown the American political establishment holds its own citizens’ rights in contempt, we look at top American law enforcement officer Eric Holder, a political appointment who serves at the pleasure of Obama, and his track record in relation to a person’s rights.
REPEATEDLY, Holder’s Department of Justice has denied discovery in evidence in suits brought by victims of both; torture and warrant-less surveillance, citing “national security” and “state secrets” arguments, which have been routinely rubber stamped by American federal courts, denying the fundamental “Right to petition for redress” per the American foundational law. This, despite a past Supreme Court decision finding federal common law prohibits executive privilege or state secrets denying the right to petition for redress in the case of six unknown (to the plaintiff) federal agents in an illegal invasion of a private home, pointing to the present regime of American law patently ignoring its own principles. Holder’s Department of Justice should have settled rather than shut down the cases of the plantiffs.
Holder’s Department of Justice has assiduously protected the Bush criminal regime by refusing to bring warranted prosecutions. Directly relevant to this, because of Snowden’s revelations, we now know both the Bush and Obama administrations had engaged in egregious crimes against the American constitutional order, all with the approval of the secret FISA court
It should be noted as well, Holder having been at the nexus of a ‘color of law’ arrangement (legalized bribe) where Chiquita Corporation paid a fine, and in return the identities of those Chiquita executives responsible for giving cash and machine guns to the AUC terrorist group which went on to murder approximately 4,000 people, had their identities concealed under seal in lieu of prosecution. Obama’s Attorney General altogether fails on Ethics, he should be prosecuted for frustrating the course of justice but instead has been elevated to Attorney General of the United States and you don’t get much stronger evidence of a state in violation of its own rule of law.
Another note would be judicial forum shopping, where Holder’s Department of Justice would almost certainly choose to prosecute Snowden in the federal district most likely sympathetic to the government’s stance in this case. With a judge willing to deny any line of argument to Snowden based on his obligation as a patriotic American compelled to act on crimes against the constitutional order, his fate would be sealed, as any jury would not be allowed to consider such argument in Snowden’s defense.
How the preceding arguments can be tied to the American obligations to the International Covenant is quite simple; “no nation may go against its own acts” is an international common law principle as old as Rome, and when the USA asserts its own constitutional principles are the glue that binds its obligation to uphold the International Covenant with its ‘non-self-executing’ ratifying rationale, the USA cannot undermine its own constitutional principles in regards to individual rights and be construed to be in good standing with the treaty. It is not only going against the act of its own foundational law, it is doing this violation having bound its foundational law to the International Covenant and is therefore going against the treaty it has committed itself to, when by act of non-self-executing rationale, it entered Snowden’s American constitutional rights per se into force of international law, subject to adjudication under the general principles of the International Covenant in diverse jurisdiction.
With this preceding outline fleshed out with the copious evidence available in the public record, Snowden could retain excellent German lawyers, walk this legal argument into the German embassy in Moscow, file it with a petition for political asylum and sue in the European Court of Human Rights when or if asylum were turned down by Germany and subsequently the German courts.
Insofar as associating with WikiLeaks, Snowden cannot help Manning’s case except to provide fodder for pro-Manning political cannons, but association with and any legal comparisons to Manning’s case certainly could eventually bring Snowden’s case down in abject failure. A personal note to Snowden: you are being used by WikiLeaks, and this could be to your absolute disadvantage.
© Ronald Thomas West. This article may be reproduced in full with attribution to the author