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LISTEN: Snowden — a whistleblower or a traitor?

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, Rare Contributor

Kurt Wallace for Rare |

Chris Wallace: Is he a whistleblower or a traitor?

Rep. Justin Amash: As far as Congress is concerned, sure, he is a whistleblower. He told us what we needed to know.

Bob Schieffer: Well, do you think he’s a traitor?

Diane Feinstein: I want to get him caught and brought back for trial.

Chuck Todd: Is he a patriot?

President Obama: No, I don’t think Mr. Snowden was a patriot.

Lon Snowden: My son has spoken the truth. He has sacrificed more than either the President of the United States or Peter King have ever.

Kurt Wallace for Rare: Edward Snowden told the world that the NSA has a massive spy program spying on the American people. Russia has given him political asylum. Is he a patriot; is he a traitor? Last week, he was presented with the Sam Adams award. Here to help us is Bruce Fein. He’s a constitutional lawyer who worked under the Reagan administration, and Bruce, it’s good to have you with us.

Bruce Fein: Well, thank you for inviting me.

Kurt Wallace for Rare: The U.S. government calls Edward Snowden’s actions espionage. Justin Amash calls him a whistleblower. Diane Feinstein wants him caught and put on trial. What’s going on, here?

Bruce Fein: I think this is a very complex case, and let me try to sort out the different perspectives here. Number one, Diane Feinstein, as well as other members of Congress, have not basically called to put him on trial; they have convicted him of treason before there’s even been a trial, betraying a lack of knowledge that for eight centuries since Magna Carta 1215 and Great Britain, there’s a presumption of innocence and angle American jurisprudence: no one is guilty until there’s been a due process trial. But putting that aside, let’s go back and revisit the problem that Edward Snowden encountered and how he handled it. The problem, number 1, was that the NSA was running a secret program concealed from the American people based upon a very extravagant interpretation of operation of the Patriot Act, section 215, in which the NSA was asserting that every single American citizens was relevant to a terrorist investigation and therefore metadata could be collected against everyone – all of the phone calls, even though there wasn’t any particular or suspicion that any of the targets was implicated in crime or terrorism or otherwise. And it’s really quite absurd to think in a democracy that you would have secret law — this secret interpretation of the Patriot Act when we the people are sovereign and have a right to change the law if we know what it is and are dissatisfied with its current implementation. Moreover, we had this situation where a few members of Congress were alert to this extravagant interpretation, but they did not disclose their anxieties and the details to the American people. Now, this was quite dereliction of duty because in the Constitution, there’s what’s called the “Speech or Debate Clause”; it’s in Article 1 Section 6 that endows each member with immunity for disclosing state secrets or anything in the course of their legislative functions, including oversight. The precedent was set during the tenure of Senator Mike Gravel when he read 47 classified volumes of the Pentagon Papers into the Congressional Record, and the U.S. Supreme Court held he was shielded from any Espionage Act investigation from then-President Richard Nixon. And say, the American people have a right to know what their government is doing. It’s inherent in being a citizen. So that’s the first dereliction. And indeed, I believe that it was that default of Congress that caused Edward Snowden to feel compelled to do something to disclose knowledge of a program that he, himself, was privy to. And as a citizen he didn’t feel in good conscience he could remain silent. And I do believe that his disclosure, when there were no other outlets, there are no so called whistleblower protection statutes for someone in Mr. Snowden’s position who was employed by a private contractor, Booz Allen, he wasn’t a government employee, who enjoyed some small whistleblower protections. And when he made the disclosures, I think in large measure, he was vindicated in the aftermath, because when the American people became aware of this massive dragnet surveillance of all of their phone calls – the metadata collection on who they called or what time they called and the duration of the call, and you put that together with a lot of other Internet data, and you can get profiles of people that in numbers like three to one, over 70 percent were insisting the law be changed and modified. Indeed, there’s legislation introduced in moving forward that would accomplish precisely that. So in that sense, it seems to me, the months postdating what Mr. Snowden revealed have vindicated what he said. The American people, in a democracy, have a right to know what their government is doing, and in light of the disclosures, the government is now being forced to change. Another element here that shows you who really was traitorous to the American people and the Constitution is that last March, when the Director of National Intelligence, James Clapper, was asked under oath by Senator Ron Widen whether the NSA was collecting metadata — data of any sort on millions of Americans — he said no. An answer that was clearly perjurious. It was a lie. He knew it was a lie.  Senator Widen had alerted him to the question 24 hours in advance, so it wasn’t an ambuscade. And the director has never apologized for it. Indeed, he has unapologetically stated and defended himself on the ground that it was the least untruth — the least lie he could state under oath — a ridiculous response. More alarming is that President Obama not only did not rebuke or fire Mr. Clapper but promoted him and passed him with determining whether there should be internal measures in the executive act taken to curtail abuses of the NSA. Say, this is like asking Satan to identify the next saints to be canonized or beatified. In any event, it seems to me those first disclosures of Edward Snowden show him as a person of great courage. I do think, on the other hand, that this prolonged period of staying in Russia really is distracting from the conversation that we need to be having here, which should be focusing solely on protecting the Fourth Amendment rights of American citizens, bringing our own government under control, instead of what it now is, is while Russia clearly is deficient in its protection of human rights, its wards are greater than those in the United States, and so is that really a proper place for Edward Snowden to be dwelling? Especially since President Putin himself has really derided what Edward has done, said that if he did that in Russia he would probably be in Siberia. President Putin said he understands why the United States should want to send Mr. Snowden to prison for life, and he derided Ed Snowden as believing their NGOS – nongovernment organizations in Russia – that’s not true. Mr. Putin has said in an interview they’re just national interests involved, and he is defending or giving Edward an asylum only because of bilateral relations in the absence of an extradition treaty with the United States. All that being said, it does seem to me a more difficult question as to whether Russia is the appropriate place to be dwelling, even when it’s giving him some kind of asylum in light of their total disparagement of everything that he’s done. Putting that aside, overall I think the United States is better off because of what Ed Snowden did, and he wouldn’t have had to do what he did if the members of Congress were doing their job, because they had an obligation to expose what he did to the American people with the protection of the Speech or Debate Clause, and it ill behooves them, like Senator Feinstein, to be berating a 29-year-old for doing the job that she and her cohorts should have been doing for over seven years.

Kurt Wallace for Rare: Well, he’s gotten this award last week, and it’s called the Sam Adams Award – a Whistleblower Award. Tom Mullen wrote an article in the Washington Times, and it was titled, “Obama says Snowden not a Patriot. How would Ben Franklin’s leak be treated today?” Now, we revere Ben Franklin as one of the great Founding Fathers. Well, he was under scrutiny during his time for leaking information. How would he be treated today under our present circumstances in our government?

Bruce Fein: Well, the question is an excellent one, and it goes actually beyond the narrower area of entreating because of leaking. The unfortunate thing is Ben Franklin and virtually all of the Founding Fathers, including George Washington, would have lost out in a popularity poll with the leaders we have, including President Obama today, who clearly based upon their philosophy and philosophy of big reliance on government would have cited for King George III against Ben Franklin against George Washington against Thomas Jefferson and all the others who risked that last full measure of devotion in signing the Declaration of Independence. And of course the British would have treated them as traitors if we had lost the American Revolutionary War. And it was the Founding Fathers who insisted — John Adams — that the citizen had a right to know everything of what their government was doing: that indeed is what is the pivot of government by the consent of the governed. How can you give consent as a citizen to what your government is doing if you don’t even know what it’s doing, because it’s being concealed from you? And President Obama really deserves reprimand for really trying to suggest that absent Ed Snowden’s statements that Mr. Obama would have unilaterally had this kind of disclosure that they were already undertaking consideration of revealing things that had been secreted for seven years. Indeed, General Counsel of the National Security Agency in a Congressional Hearing basically said that they would have kept the programs secret forever if they could have and Ed Snowden forced their hand. We also noticed that after the Snowden revelations many documents that had been classified for seven or eight years suddenly became declassified and what formally was said to likely to inflict damage on staggering proportions on the security of the United States suddenly became declassified without any noticeable adverse happenings against the United States. I want to make one further observation that seems to me critical. And that is even if it could be said that there’s some things that the al Qaeda or opponents may have learned from Snowden’s revelations because the Internet is global, and they may take some evasive actions, that doesn’t mean necessarily that the United States is worse off, because the idea of the United States and the Fourth Amendment’s protection of the right to be left alone, is that we take risks that other people don’t take, because we cherish liberty more than absolute safety, and Keith Alexander, who is the Director of the National Security Agency now said, “Well, this is really quite terrible what Ed Snowden has done; they’ve detected perhaps some different methods of communication to evade the NSA’s interceptions.” That may be true, but that doesn’t answer the Fourth Amendment — the constitutional and philosophical question. We take risks all the time, because we don’t want to injure and invade the rights and the privacy of innocent people. That’s why we have a Fourth Amendment that says you can’t get a warrant to search someone’s home or their conversations, seize their metadata, without particularized suspicion that the target is somehow implicated in crime or terrorism. That means some may escape our detection, but it also means our liberty is preserved. Just think how monstrous it would be if we empowered law enforcement to seek a warrant to search every single home in the United States in the idea that, well, there may be a terrorist somewhere in one home, and therefore we need to search everybody’s home. We know that would be the end of freedom and liberty, and the likelihood is very very high that the information gleaned from those searches would be used at least against some political opponents of the incumbent administration adversely. And we need to remember, too, from our history, prior to our entry in World War II, the administration of Franklin Roosevelt was taking the names of those who rode in protesting the idea of entering World War II, including Charles Lindbergh, sent the names to the FBI to have their conversations wiretapped, and then a wiretapped conversations were given to British spies in the U.S. who used them to try to disrupt their own opposition of voices to Roosevelt’s efforts to get us into World War II prior to Pearl Harbor. It is the nature of government to use information for political purposes. Leaders are politically tinged and the idea that all this vast amount of information is totally sanitized and not used politically is farfetched, based upon our history.

Kurt Wallace for Rare: What do we do, now? What can American people do now to protect themselves? We all have technological devices. We use them for communication, and here we have someone who apparently has helped the American people, but yet our government is trying to go after him for espionage.

Bruce Fein: Well, the remedy, I think, and the one that Ed Snowden said he wants is we need new laws that clearly curtail these metadata and other dragnet collections against the American people. One of the most important things the American people need to communicate with their members of Congress right — just as the American people stopped our military intervention in Syria by their voices — and I do think that Congress is moving forward with clipping the wings of the NSA in light of the 70-80% of American people say they don’t like the current collection programs. They need to continue that voice at a high decibel level. And moreover, to argue to their members, they do not want the government of the United States to be collecting evidence against them for foreign intelligence purposes. The real justification for government collection of data and information is to enforce the criminal law. That is the threshold of danger that justifies encroaching on our right to be left alone. If we are not implicated in any way with crime, then the government needs to stay away, unless any citizen wants to volunteer further information, which they are entitled to do. And once we get that standard enshrined, we never have to risk another kind of problem of the type that Ed Snowden encountered and ultimately had to respond in a way that created great danger to himself and ought not ever to have happened if we had the Constitution faithfully followed in the first instant.

Kurt Wallace for Rare: Bruce Fein, thank you for spending some time with us today on Rare.

Bruce Fein: Thank you.

Kurt Wallace lives in Atlanta and has been active in new media since 2007 specializing in strategic content. As a podcast host he has interviewed hundreds of guests in politics, business, economics and entertainment. Wallace has served over 20 national political campaigns as a fundraising consultant and producer for online fundraising broadcasts including Rand Paul 2010 and Ron Paul 2012 campaigns. His most important role in life is being a father to an incredible son. He’s a football fan and an amateur poker player.

Bruce Fein is a lawyer in the United States who specializes in constitutional and international law.

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