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Obama vs. Snowden: "Parsing the Presser" Series, Part 3

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Giving Snowden additional negligent--had it been solicited--legal advice Obama counsels: "If, in fact, he believes that what he did was right, then "[Snowden] can come here, appear before the court with a lawyer and make his case." As a patriot, Snowden has better legal alternatives for the time being than trusting Obama and the lowly ranked independence of his courts. Obama's challenge is intended to give credence to the concept that Snowden's decision to take refuge abroad while negotiating his legal status, rather than subject himself to the pre-judgment, possible torture, silencing and denial of constitutional rights inflicted upon Bradley Manning, somehow impeaches Snowden's patriotism.

Obama concluded his presentation by dangling a lead-in for the predictable, if not set-up, question by MSNBC's Chuck Todd--a follow-up about Snowden's patriotism and the only NSA-related question posed by the supine press corps. Obama said: "I believe that those who have lawfully raised their voices on behalf of privacy and civil liberties are also patriots who love our country." Using this classic divide and conquer strategy for isolating effective citizenship like Snowden's from efforts by others who are routinely ineffective, Obama thus praises as patriots those who--perhaps as professional activists providing Obama support and cover--have "lawfully" (and impotently) merely "raised their voices," and been ignored, or who more courageously--as muffled whistle-blowers--have buried their more credible voices within "lawful" bureaucratic processes, and risked reprisals for that.

A whistle-blower who puts his oath of loyalty to the Constitution above considerations of technical legalities applied to perpetuate and hide those violations, and who actually exposes criminally unconstitutional conduct that should trump such lesser legalities in a court fairly applying the Constitution, and who thereby also stimulates an essential national debate on the subject is, to Obama, not a patriot because of "the fact...that Mr. Snowden has been charged with three felonies." Charged and pressed by the constitutional offenders themselves. Is a more technical principle-twisting rationalization even possible?

Being rusty at the unscripted performance format had an ironic consequence for Obama when he allegedly himself violated the law and judicial secrecy rules during the press conference question period. He did so in the interest of scoring an off-the-cuff political point by implying he is close on the trail of the Benghazi attackers. Revealing a sealed indictment would be acting "unlawfully," even if in pursuit of such a higher political purpose. Elsewhere Obama has said : "If I was to release stuff, information that I'm not authorized to release, I'm breaking the law." He is presumably not authorized to release information about a sealed indictment. Yet that seems to be what he did by revealing "there's a sealed indictment." Thus Obama apparently broke the law himself at a press conference which was conducted for the very purpose of hanging a hyper-technical "broke the law" sign around Snowden's neck.

We already know about Obama's asymmetric enforcement of such obligations, a practice that falls within a general category that Snowden labeled "unequal pardon." Obama, independent of public opinion, can pardon his own law-breaking, James Clapper's lies , and the massive bankster fraud that helps fund him. But no similar leniency about technical legal violations, whether in pursuit of higher goals like the Constitution or otherwise, can be expected to be shown by a hypocritical Obama to a mere patriotic citizen like Snowden.

Obama has stopped talking about his war in Afghanistan after what amounts to an official whistle-blower was appointed under a law authorizing the investigation of the waste, fraud and abuse involved in the enormous expense of that war. John F. Sopko is the "special inspector general" partly responsible for the growing public opinion that the Afghanistan war is a useless and " expensive boondoggle. " Like Snowden, Special IG Sopko knows "If you want to make a change, you need to get to the American people".putting people in jail also works--it gets their attention." Congress should appoint a similarly aggressive IG to investigate commander-in-chief Obama's other war, the similarly prolonged "war on terror." Special focus of such a Special IG on the expensive and illegal surveillance programs the war on terror has spawned would likely also change public opinion on the war against whistle-blowers.

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Congress could at the same time strengthen the constitutional oath of office with supportive legislation making it clear that it constitutes the crime of "misprision" for public officials not to inform the American people of known high crimes and constitutional violations. Sunlight is still the best natural disinfectant.

CounterPunch published an earlier version of this article.

1 An updated application of the Third Amendment could perceive permanent NSA spying on one's private electronic communications from home as a modern form of quartering. A living Constitution requires re-conceptualizations for modern application to new technologies of such deeper principles as that embodied in the Third Amendment, which bans military imposition upon civilian life without consent, except in case of a war within the United States.

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Rob Hager is a public-interest litigator who filed a Supreme Court amicus brief n the 2012 Montana sequel to the Citizens United case, American Tradition Partnership, Inc. v. Bullock, and has worked as an international consultant on legal (more...)

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