Dear Mr.
President:
You are
acutely aware that the history of liberty is a history of civil disobedience to
unjust laws or practices. As Edmund Burke sermonized, "All that is necessary
for the triumph of evil is that good men do nothing."
Civil
disobedience is not the first, but the last option. Henry David Thoreau wrote
with profound restraint in Civil Disobedience: "If the injustice is part of the
necessary friction of the machine of government, let it go, let it go:
perchance it will wear smooth certainly the machine will wear out. If the
injustice has a spring, or a pulley, or a rope, or a crank, exclusively for
itself, then perhaps you may consider whether the remedy will not be worse than
the evil; but if it is of such a nature that it requires you to be the agent of
injustice to another, then, I say, break the law. Let your life be a counter
friction to stop the machine."
Thoreau's
moral philosophy found expression during the Nuremburg trials in which
"following orders" was rejected as a defense. Indeed, military law requires
disobedience to clearly illegal orders.
A dark
chapter in America's World War II history would not have been written if the then
United States Attorney General had resigned rather than participate in racist
concentration camps imprisoning 120,000 Japanese American citizens and resident
aliens.
Civil
disobedience to the Fugitive Slave Act and Jim Crow laws provoked the end of slavery
and the modern civil rights revolution.
We submit
that Edward J. Snowden's disclosures of dragnet surveillance of Americans under article 215 of the Patriot Act, article 702 of the Foreign Intelligence Surveillance Act
Amendments, or otherwise were sanctioned by Thoreau's time-honored moral
philosophy and justifications for civil disobedience. Since 2005, Mr. Snowden
had been employed by the intelligence community. He found himself complicit in
secret, indiscriminate spying on millions of innocent citizens contrary to the
spirit if not the letter of the First and Fourth Amendments and the
transparency indispensable to self-government. Members of Congress entrusted
with oversight remained silent or Delphic. Mr. Snowden confronted a choice
between civic duty and passivity. He may have recalled the injunction of Martin
Luther King, Jr.: "He who passively accepts evil is as much involved in it as
he who helps to perpetrate it." Mr. Snowden chose duty. Your administration
vindictively responded with a criminal complaint alleging violations of the
Espionage Act.
From the
commencement of your administration, your secrecy of the National Security
Agency's Orwellian surveillance programs had frustrated a national conversation
over their legality, necessity, or morality. That secrecy (combined with
congressional nonfeasance) provoked Edward's disclosures, which sparked a
national conversation which you have belatedly and cynically embraced.
Legislation has been introduced in both the House of Representatives and Senate
to curtail or terminate the NSA's programs, and the American people are being
educated to the public policy choices at hand. A commanding majority now voice
concerns over the dragnet surveillance of Americans that Edward exposed and you
concealed. It seems mystifying to us that you are prosecuting Edward for
accomplishing what you have said urgently needed to be done!
The right to
be left alone from government snooping--the most cherished right among civilized
people--is the cornerstone of liberty. Supreme Court Justice Robert Jackson
served as Chief Prosecutor at Nuremburg. He came to learn of the dynamics of
the Third Reich that crushed a free society, and which have lessons for the
United States today.
Writing in
Brinegar v. United States, Justice Jackson elaborated: The Fourth Amendment
states: "The right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures, shall not be violated,
and no Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and the
persons or things to be seized."
These, I
protest, are not mere second-class rights but belong in the catalog of
indispensable freedoms. Among deprivations of rights, none is so effective in
cowing a population, crushing the spirit of the individual and putting terror
in every heart. Uncontrolled search and seizure is one of the first and most
effective weapons in the arsenal of every arbitrary government. And one need
only briefly to have dwelt and worked among a people possessed of many
admirable qualities but deprived of these rights to know that the human
personality deteriorates and dignity and self-reliance disappear where homes,
persons and possessions are subject at any hour to unheralded search and
seizure by the police.
We thus find
your administration's zeal to punish Mr. Snowden's discharge of civic duty to
protect democratic processes and to safeguard liberty to be unconscionable and
indefensible.
We are also
appalled at your administration's scorn for due process, the rule of law,
fairness, and the presumption of innocence as regards Edward.
The entirety of
the letter:
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