Justice, Law, and Politics

Reflections on the Case of Edward Snowden

Happy birthday, America!

For all of you thinking about getting the country a gift, the good news is that you don’t have to worry about giftwrapping, since the government (and Google, and Amazon, and Apple) already knows what you’re going to give, when you got it, and how much you paid!

The Edward Snowden case, following on the Bradley Manning and Julian Assange leaks and others in recent years, has opened a national conversation on the balance between privacy and security, between the government’s need to keep certain information privileged to protect its citizens and a democratic citizenry’s need to have transparent information about what the government is doing in its name.  Even if the recent conversation itself has not always been constructive, I think it is a healthy and necessary debate to have in a democracy.  Republican (small-r) theorists have always known that an informed and active populace is vital to guarding against corruption and tyranny.

How do we judge Edward Snowden?  To some, he is a hero, shining light into the dark recesses of government excess and abuse.  To others—including his own government—he is a traitor guilty of treason, the highest crime against the state.

Perhaps one helpful way to think about Snowden is in historical context, specifically in the context of those Americans who willingly and knowingly broke or acted outside the law because they believed that either the law itself was unjust or because the government was unable or unwilling to enforce the law.

Such extralegal action has a long and venerable history in America.  Indeed, this week we celebrate one of the grand extralegal actions in all of human history – the British colonists’ declaration of independence and rebellion against their mother country.  Those who were architects of the revolution and then risked their lives for it believed that they were breaking the law, and demolishing the known social order, in the service of a higher and more compelling standard of justice.  The revolutionaries believed they were not really acting outside of law so much as reestablishing the proper rule of law in place of a government that had become—in their minds—intolerably abusive and unresponsive to their reasonable requests.  Of course, King George and his advisers rather disagreed.

“The spirit of  ’76” – that the citizens have the right to revolt when government is unjust or unresponsive – has inspired countless other acts of violence since (and during) the Revolution.  Indeed, the practice of lynching, or extralegal killing of citizens by citizens in the name of the people, began in the southern colonies’ backcountry during the Revolution.  The same spirit animated a wave of mob violence in the Jacksonian period, which enshrined the rights and power of the common man, a sentiment captured in the phrase “popular sovereignty.”  All kinds of minorities were swept up in the fury of antebellum vigilante justice, including abolitionists, Indians, Mexicans, horse thieves, newspaper editors, Catholics, Masons, and Mormons.

A young Illinois lawyer named Abraham Lincoln gave a speech in 1838 in which he expressed worry for “The Perpetuation of Our Political Institutions” in the face of this epidemic of popular violence:

I hope I am over wary; but if I am not, there is even now something of an ill omen amongst us.  I mean the increasing disregard for law which pervades the country—the growing disposition to substitute the wild and furious passions in lieu of the sober judgment of the courts, and the worse than savage mobs for the executive ministers of justice. . . .  By the operation of this mobocratic spirit which all must admit is now abroad in the land, the strongest bulwark of any government, and particularly of those constituted like ours, may effectually be broken down and destroyed—I mean the attachment of the people.

Although most vigilantes asserted that they acted outside the law in order to uphold the law, the truth is that Lincoln’s fears were valid, as vigilantes from San Francisco to South Carolina demonstrated utter disregard for law and set themselves up as the instruments of justice.  As recent scholars such as Christopher Waldrep have demonstrated, however, unlike the revolutionaries who deliberately replaced one constitutional order with another (all while maintaining and often serving in the structures of local, colonial, and later state and national governments), nineteenth-century vigilantes were more likely to circumvent the law to serve their own narrow political interests rather than seek to extend the constitutional rule of law.

American history has given us another set of those who have broken the law in the interest of justice.  Henry David Thoreau is perhaps the most famous of those who consciously refused to abide by a law—in his case, governmental support of slavery, and taxes levied to support an expansionist war against Mexico—he believed to go beyond bad policy into the realm of being deeply, inexorably, soul-crushingly immoral, not just for those actively complicit in the crime but for all those citizens of the democracy in whose name and with whose authority the government acted.  Thoreau argued that in such a situation the true patriot, the truly just person, had only one choice—to break the unjust law, to defy the government as a witness against the government’s injustice, but then to accept the consequences of their action:

Under a government which imprisons any unjustly, the true place for a just man is also a prison . . . where the State places those who are not with her, but against her. . . .  If the alternative is to keep all just men in prison, or give up war and slavery, the State will not hesitate which to choose.  If a thousand men were not to pay their tax bills this year, that would not be a violent and bloody measure, as it would be to pay them, and enable the State to commit violence and shed innocent blood.  This is, in fact, the definition of a peaceable revolution, if any such is possible.

This was the logic followed by the civil rights marchers of the 1950s and 1960s, who knowingly and deliberately broke Jim Crow laws and landed themselves, sometimes by the hundreds and thousands, in jail.  It was in one of these wretched southern jails that one of the classics of American letters was written fifty years ago by Martin Luther King, who reflected on the relationship between law and justice:

Since we so diligently urge people to obey the Supreme Court’s decision of 1954 outlawing segregation in the public schools, at first glance it may seem rather paradoxical for us consciously to break laws.  One may well ask:  “How can you advocate breaking some laws and obeying others?”  The answer lies in the fact that there are two types of laws:  just and unjust.  I would be the first to advocate obeying just laws.  One has not only a legal but a moral responsibility to obey just laws.  Conversely, one has a moral responsibility to disobey unjust laws.  I would agree with St. Augustine that “an unjust law is no law at all.”

Fifty years after Birmingham the relationship between law and justice may be clearer when it comes to segregation, but it remains a tangled mess on issues such as affirmative action, marriage law, and national security.  It’s too early for us to know whether history will judge Edward Snowden and his fellow leakers as traitors or as courageous patriots defending their country against encroaching government power.  I for one would have preferred Snowden to remain in America, go to jail, go through a very public trial, and then serve his time if found guilty—not because he is a criminal (that is for a jury to decide), but because running from the law is not in the interest of upholding the law.

In this country we honor those who break the law in the service of a higher pursuit of justice.  We even put their faces on mountains and enshrine them on the National Mall.  But we also enshrine those who are skeptical to claims of popular sovereignty over the rule of law, and who are willing to lead a nation to war to keep others from rending the union in the name of the will of (some of) the people.  In judging Edward Snowden a champion or a traitor, we would do well to keep in mind the complicated relationship of justice, law, and politics inscribed in our nation’s heritage.