ORSI: No greater act of loyalty to the Constitution

Edward Snowden should declare his patriotism in court

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On Monday, U.S. District Court Judge Richard Leon declared that the bulk of the National Security Agency’s collection of Americans’ telephone records is likely to violate the Fourth Amendment of the Constitution’s ban on unreasonable search.

Some legal experts contend that this may be the first step in a march to the Supreme Court. It may also be the beginning of the rehabilitation of Edward Snowden, the former NSA contractor who disclosed almost 200,000 classified documents to the press. Mr. Snowden has obtained limited asylum in Russia to avoid prosecution in the United States for espionage. In a recent statement, Mr. Snowden praised the ruling saying, “I acted on my belief that the NSA’s mass-surveillance programs would not stand a constitutional challenge.”

If this statement is true, the question must be asked: Should he have fled the United States?

If he is truly a whistleblowing patriot, there would be no greater act of loyalty to the Constitution than to return and face a trial. Mr. Snowden would be granted every protection afforded by the law. The high-profile attention that this story has already garnered in the media would also guarantee an open discussion on the rights of citizens and the extent that the government can go to protect national security. By fleeing the United States in May, Mr. Snowden, the current face of the controversy, has deprived Americans of the opportunity for a much-needed national debate on these topics.

In a possible move to pre-empt this discussion, a White House advisory panel on Wednesday recommended to President Obama that the NSA no longer store the massive phone database. This may well indicate awareness of the public’s distrust of the government’s intrusion into their private lives. Tellingly, public opinion is now swinging in Mr. Snowden’s favor. The panel’s recommendation may be designed to prevent further restrictions on the intelligence community.

Some government officials have taken cover in the 1979 Supreme Court decision Smith v. Maryland, which held that there is no reasonable expectation of privacy in non-content information held by a third party. Yet others contend that current technology can use phone data to reveal everything about a person’s life — from religious activities to personal health information. This being so, is it possible that the Supreme Court could overturn precedent?

In 1954, heightened public sensitivity to racial injustice caused the court to overturn Plessy v. Ferguson (1896) in Brown v. Board of Education, which recognized state-sponsored segregation as a violation of the 14th Amendment’s Equal Protection Clause. In 2012, five justices in U.S. v. Jones, dealing with a GPS device used to track a suspected drug dealer, seemed open to this possibility. Justice Sonia Sotomayor wrote, “It may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to a third party.” Accordingly, a possible Snowden v. NSA case may well lead to overturning Smith. It is doubtful that the affected government agencies would want to take this risk.

If indeed our privacy rights are being violated, as many contend they are, then action must be taken to stop the abuse.

Throughout history, those who have wished to protect civil rights have risked being punished for their violation of the law. They rightly believed that in the cause of justice, they were answerable to a higher authority or the natural law. They have also been willing to suffer the consequences of their actions to make things right.

The example of the recently deceased Nelson Mandela serves as a case in point. Although he could have easily escaped the clutches of the South African regime, he chose to spend 27 years in prison. His willingness to suffer for his belief that apartheid offended human dignity solidified national and international opinion against the government. Because of him, South Africans now enjoy full rights.

The same can be said of Martin Luther King. He never fled the police or tried to avoid jail. King’s willingness to suffer for the cause of justice helped to galvanize both black and white Americans to demand constitutionally guaranteed equal protection to all citizens.

While in jail, King wrote his now-famous “Letter from a Birmingham Jail.” In it, he acknowledged that some might see his “nonviolent efforts as those of an extremist.” He then weighed different arguments against his course of action and found them wanting.

Many may argue “mutatis mutandis,” or with the respective differences having been considered, Mr. Snowden’s leaking of classified information has risked national security and may perhaps have endangered American lives. Yet there is no convincing evidence that this collection of data prevented a single attack.

Mandela and King have become international heroes in the cause of civil rights. Similarly, Mr. Snowden may still have the possibility of becoming a hero in the cause of freedom. However, he cannot do so by hiding behind the president of Russia, Vladimir Putin, who himself limits the free flow of information and freedom of speech in his own country.

If, as he says, he reveres the Constitution, Mr. Snowden should return to the United States and stand trial. His witness is vital to the preservation of those rights for which our forefathers shed their blood.

The Rev. Michael P. Orsi is research fellow in law and religion at Ave Maria School of Law in Naples, Fla.

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