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Obama Vs. Snowden: Parsing the Presser

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From http://www.flickr.com/photos/11415654@N05/9383945168/
by mw238

" I believe that liberty is the only genuinely valuable thing that men have invented, at least in the field of government, in a thousand years. I believe that it is better to be free than to be not free, even when the former is dangerous and the latter safe" HL Mencken (1927)

EDITOR'S NOTE: This article offers a highly critical, but thoroughly documented, analysis of President Obama's defense of the NSA surveillance program, as laid out in his August 9, 2013 press conference. It is being released in three parts on consecutive days: August 20-August 22.

Part 1: Obama Uses August 9 "Presser" To Put Points on the Board Against Snowden. His Real Purpose Should Be To Protect the Constitution. 

Obama's recent media counteroffensive against Edward Snowden is unquestionably a tribute to Edward Snowden's ability to poke the empire's all-seeing eye while managing to secure an offshore sanctuary where he might continue his premeditated acts of citizenship. Snowden's success and worldwide popularity for his David and Goliath struggle on behalf of his, and apparently the ACLU's, version of the Constitution has required the propagandist in chief to publicly enter the fray. Obama knows if Snowden ever does face a criminal jury, the trial will be very much a popularity contest between Obama and Snowden, with high-stakes for both.

Since Snowden's revelations Obama's approval ratings have receded back to the sub-50% range where they lingered after Obama activated his inner Republican early in his first term, to the surprise of former supporters . The Romney bump around election time last year did not last. It succumbed to the ongoing surveillance state scandal, temporizing on the Trayvon Martin and Voting Rights cases, and such nagging Republican questions as those about Benghazi. The week of his press conference, Gallup posted 44% approval for Obama which was the same as Bush II, and the lowest of more than a half century of presidents, except Nixon, at comparable points in their presidencies.

So, on Friday, August 9, 2013, Obama emerged from his scripted safety zone to defend his legacy at one of his rare solo press conference s, the first since Snowden went to Hong Kong. The presser was Obama's turn to put some points on the board which Snowden has mostly dominated. It was Obama's opening statement, preceded by shutting down Snowden's email server the day before and fluffing a practice performance on Jay Leno a couple days before that. The previous week, a seemingly concocted embassy terrorism alert for what Obama could bill as "recent " threats to our nation," punctuated by a cold-war evoking snub of Putin , set the right fearful crisis undertone for national security gravitas to cushion his appearance before the press, without actually having to mention Obama's only real war. Remember? The one defending a corrupt government in Afghanistan that 2/3 of Americans now think was not worth fighting .

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Taking the offensive, Obama scored his intended goal by impugning  Snowden's motives, in effect pre-judging Snowden's legal defense by saying "I don't think Mr. Snowden was a patriot." "Quite a statement," responded Amy Davidson for the New Yorker, "about a man [Obama] has never spoken to, and who has not yet been convicted of anything." 

In his personal war on whistle-blowers Obama has previously taken this executive-action "convict first in public, try later in private" approach. Obama was criticized for doing the same to Bradley Manning , though the Commander in Chief did get his message through to his troops to deliver the constitutionally illegitimate court-martial Espionage Act conviction and recantation that he wanted. Obama's "unlawful command influence" of this same sort has been criticized in other contexts.

Borrowing this page from his Manning victory manual to attack Snowden personally, Obama joined other politicians who, as Snowden's father has said , "poisoned the well, so to speak, in terms of a potential jury pool." That was Obama's broader purpose. An acquittal of Snowden, whether in court or by its equivalent jury of public opinion, would be tantamount to an indictment of Obama. As Jonathan Turley explains: "After all, the fear seems to be that Snowden has to be a traitor or Obama would look like a tyrant." This is a zero sum game: either the Constitution is still operative under Obama, or it is not.

Snowden's core legal defense is the truth of his patriotic intent: placing his loyalty to the Constitution he loves above extremely strong personal considerations. Only a jury can decide if his patriotic motive is constitutionally well-founded in privacy values they find to be objectively reasonable and whether his prosecution itself is a violation of the Constitution.

Obama's political career depends upon his own fans judging him by his words, not his deeds. Those fans should be prepared to symmetrically grant Snowden the same indulgence. Snowden's only expressed motives are patriotic. He says: "I will be satisfied if the federation of secret law, unequal pardon and irresistible executive powers that rule the world that I love are revealed even for an instant." I don't want public attention because I don't want the story to be about me. I want it to be about what the US government is doing." I really want the focus to be on these documents and the debate which I hope this will trigger among citizens around the globe about what kind of world we want to live in. My sole motive is to inform the public as to that which is done in their name and that which is done against them." 

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These words seem to match Snowden's deeds, even if we do not know this former CIA and NSA contract employee well.

Is the problem that Obama does not know patriotism when he sees it? It isn't Snowden that is accused of violating the oath to support the Constitution that he swore when joining the military and the CIA. Obama is the one wrapping his arms around acts that many Americans justifiably consider to be fundamental violations of the Constitution and to advance the essential practice of a totalitarian police state that the Constitution is designed to prevent.

Obama may have some other private definition of what makes a patriot. But you cannot love the country if you do not above all love and support the Constitution that created it and defines it. Without the Constitution the USA is just a failed experiment. If Obama wants to apply another test, then Obama needs to amend the Constitution to change the oaths that apply to him, as well as to the military and all other state and federal executive, legislative and judicial officers. The oath has not changed since Nixon was impeached for "violation of his constitutional oath faithfully to execute the office of President of the United States, and to the best of his ability preserve, protect and defend the Constitution of the United States, and " [being] repeatedly engaged in conduct violating the constitutional rights of citizens."

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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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