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08 July 2013

Edward Snowden: A Jeffersonian Hero. But Tories Wouldn't Know Anything About That

By ME Synon, Irish Daily Mail

This is why those of us who can be described, and not always by our friends, as anarcho-capitalist-libertarian-Tridentine-Rite-Jeffersonian-republicans so much resent being lumped under the title ‘conservatives.’

That is the word used in this part of the world for British Tories. And the fundamental thing a Jeffersonian republican knows about Tories is: we used to shoot them.

If you want to understand the difference between the two kinds of ‘conservatives,’ take a look at the debate over Edward Snowden, a contract employee at the US National Security Agency.

Mr Snowden is the tech expert who disclosed a vast secret programme of telephone and internet surveillanceof Americans by the US government. Mr Snowden is thought to be still in Moscow airport, trying to negotiate asylum somewhere, anywhere, outside the reach of the Obama administration, who want to skin and butcher his high-tech carcass.

Of course they do. Mr Snowden has exposed the kind of secret surveillance on American citizens which the US Constitution forbids. The man is a hero. The ones who ought to be facing prosecution in all this are the members of the administration who are running the illegal surveillance. The one who ought to be facing impeachment is President Obama for sanctioning the snooping, which is in contravention of the fourth amendment to the Constitution which he swore to uphold. Details on that in a moment.

Meanwhile, what do the British Conservatives, and their soul-mates in Ireland, make of Edward Snowden? Charles Moore, former editor of the Daily Telegraph, a Tory-supporting paper, wrote a piece for the Telegraph at the weekend which was run as well by the Irish Sunday Independent. Mr Moore claims that Mr Snowden has ‘betrayed his own state.’ He says he was ‘acting in the name of a morality which disdains allegiance to the rule of national law.’

That is so Tory. It reminds me exactly why Jeffersonian republicans used to shoot them.

Mr Moore and his Conservatives operate in a British state dominated by an over-mighty executive. The ability of a Government-whipped Commons to stretch the unwritten British constitution as they like and call it ‘law’ is exactly what drove the original Jeffersonian republicans to secede from the British empire.

It is precisely why the framers of the US Constitution made sure they limited with precision the powers of the new federal executive and legislature. Having been governed by men with ideas such as Mr Moore’s, the representatives of the 13 young states knew exactly what they did not want again. 


So things are different under the US Constitution. The fourth amendment of the ten first amendments known as the Bill of Rights says: ‘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 probably cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.’

What this means is that there is a requirement for search warrants when any public authority wants to search individuals or their houses, or to seize any property in connection with an investigation. No law-makers have the right to over-ride this constitutional protection: the US Senate and House of Representatives are not the House of Commons.

It is not Edward Snowden who, in Charles Moore’s phrase, ‘disdains allegiance to the rule of national law.’ It is President Obama and his top security officials.

The only circumstances in which a warrant is not necessary is when a search is incidental to a lawful arrest. To get a warrant, a police officer must appear before a magistrate and declare under oath that he has good cause to believe a search should be made. The warrant must specify the place to be searched and the property to be seized.

This is important: the framers of the Constitution knew the dangers of the so-called general warrants used in England up until the mid-18th century. These allowed British government agents to search without specifics or probable cause, in short, to coerce and frighten political opponents by doing repeated total sweeps through their property and correspondence looking for whatever might turn up.

In other words, exactly what the NSA has been doing to millions of American citizens.

Mr Moore seems to think that the US government agents should act as though they have the power of general warrants. Yet the American states decided in 1791 they weren’t allowing it, and put the fourth amendment into the Constitution to make sure.

This prohibition is not something caught back in the time of the American revolution. Even in modern times, the protections of the fourth amendment have been extended to require warrants for the search and seizure of intangible property, such as conversations taken from recorded telephone calls. Warrants can be given in secret; but there must be warrants.

Yet now we find out, thanks to the courage of Mr Snowden, that the Obama administration has been ignoring this constitutional protection against what lawyers know as ‘unreasonable search and seizure.’

Top members of the administration have been under no illusion that what they were doing was legal. If they thought it was legal, they wouldn’t have been lying to Congress about it. Last March, James Clapper, the director of National Intelligence, testified to a Senate committee that the National Security Agency does not collect any type of data at all on millions or hundreds of millions of Americans.

I suspect Mr Snowden was watching that televised testimony. He knew different. Not long after, he packed his laptops – four of them, apparently—and fled to Hong Kong.

He set up a clandestine meeting with a Guardian journalist who broke the story about the NSA programme of spying without warrants on law-abiding American citizens. NSA was spying on others abroad, too, but because of the fourth amendment the crime in all this is the unreasonable search and seizure by government agents of information legally held by Americans.

What Tories can’t understand is that even if such surveillance could be argued to be a good thing, no government agent – from a contract worker at the NSA to the president himself -- has the right to pursue surveillance outside the law. The Constitution would have to be changed first. And if neither the representatives gathered in the US Congress, nor the people of the states themselves, want to change the Constitution, then the spying on citizens has to end. Otherwise the government itself becomes the enemy.

Enough of that. To end on something else: next Saturday is the 220th anniversary of the day Charlotte Corday went alone to the house of Jean-Paul Marat, one of the leaders of the French Revolutionary Terror, and plunged a six-inch blade into his heart. She then sat quietly and waited for the police, or the mob, to take her.

Standing before the Revolutionary Tribunal four days later, she explained: ‘I have killed one man to save 100,000.’ The tribunal sent her to the guillotine, as she knew they would.

This week I salute her courage.

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