Snowden v. Obama: The Game-Changing Decision
A Victory for the Constitution
Judge Richard J. Leon, a Bush appointee to the federal district court of the District of Columbia, is an interesting figure in U.S. history to have changed the ongoing game of Obama v. Snowden. His biography includes stints working for Congress on other historic game changing events: the flawed investigations into both of the (covertly) related “October Surprise” and “Iran-Contra” scandals.
Judge Leon has published a persuasive 68 page legal opinion averaging more than one explanatory fine-print footnote per page in Klayman v. Obama (12/16/2013) holding that the dragnet data sweep by Obama’s NSA “almost certainly does violate a reasonable expectation of privacy” by the American people. This satisfies the definition for the kind of “search” that falls within the prohibition of the Fourth Amendment. Judge Leon answers the second question determining whether such a search could be justified under the Fourth Amendment “reasonable” exception, by finding the search “unreasonable” when compared to the embarrassing absence of evidence that these searches have played any significant role in serving its purported purpose of detecting terrorists.
Indeed, tacitly invoking the prevailing conservative “originalist” test of constitutional interpretation, Judge Leon cogently surmises that “the author of our Constitution, James Madison… would be aghast” at the scope of the constitutional violation by Obama. Both these findings permanently legitimize Snowden’s similar responses on these questions of reasonableness, and Snowden’s willingness to risk his future life on his own reading of whether the data sweeps were Fourth Amendment “searches.” No one can now argue that Snowden’s judgment on these questions was unreasonable as a matter of law.
Former VP Al Gore had earlier said that Snowden “revealed evidence of what appears to be crimes against the Constitution of the United States.” Judge Leon has now put legal teeth and consequence behind that broadly held judgment.
Whatever an appellate court might eventually do with Judge Leon’s decision it will stand permanently through American history for the proposition that one conservative, undeniably reasonable person could conclude that as a matter of well-considered fact that the people of the United States would neither find dragnet searches of their “meta-data” to be consistent with their “reasonable expectations” nor to be a reasonable way to fight the risk of terrorism.
This decision changes the game because no matter what the ruling of any subsequent judge, Judge Leon’s decision should, depending on the public’s response, make it difficult to remove these two factual questions from a jury when the time comes to present either Snowden’s Fourth Amendment defense to prosecution before a jury in a criminal trial for “espionage” or placing the case against Obama and his snoops for damages to a jury in a civil trial.
The constitutional challenge now facing...
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