Tuesday, June 11, 2013

Process that Preserves

I've written about the problems of the NSA surveillance of Americans in Presumed Guilty, and will switch from that to the man who actually revealed the NSA PRISM program and fled to Hong Kong: Edward Snowden.

I am not going to pre-judge his actions, but note that they are in violation of the law with presumable harm to National Security involved.  Like any other person accused of a crime he deserves his day in court and I recommend that he do come to a US Embassy and publicly relinquish himself for a public trial.  It will take time for the enormity of his actions to hit Mr. Snowden and when that happens it is my dearest wish that he does come in from the cold.

Really that is the best course of action as the one he is on now leaves him open to accusations and no closure that a trial provides.  If he truly believes he did the right thing then, while he does have much to fear from the legal system, it is a system and it has a process to it.  It is a process that preserves rights and liberty of our citizens.

As I outlined in Presumed Guilty, Amendments IV, V and VI put together the legal system to be followed with in the US and it is one of presumed innocence at the start with the onus of proof of wrongdoing falling to the accuser.  It is a process where the accuser must gather evidence, seek warrants for more information from a judge, and present that evidence in a public court so that the accused has an opportunity for a public trial by jury.  There have been numerous prior proceedings involving secrecy laws and the information within them and the procedure of reading on a judge, attorneys and jury is well understood and well known.

Truly the government need only show that the program was compromised.

I presume that Mr. Snowden's defense was that in his view the program was unconstitutional either in its basis or execution, and that his Oath required him to reveal the program to the American people as a whole.  Most of the attention is being put to Amendment IV:

Amendment IV

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 probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

As Mr. Snowden is pointing out that the NSA collection of information on American citizens in a wholesale manner is not only not allowable without a warrant, but that the whole of the people cannot be suspected for crimes of particulars done by individuals.  Thus even if the FISA court gave a Warrant for such activities, that Warrant is in violation of the Constitution: Warrants are for cases of individuals or small groups, not the entire population of the US.  If the NSA sought such a broad Warrant then it is in violation of the Constitution by seeking such and not narrowing its scope down to particulars and individuals.  If there is a Constitutional breach at that point it can have one of three sources, it it has happened:

1 – Judicial lack of oversight and not putting a narrow scope to data collection to protect the liberty and freedom of Americans.  You are presumed innocent of a crime and when the Executive asks for data on you via a warrant you are then suspected of a crime.  The entirety of the American people cannot be suspected of a crime and it is incumbent on the Executive to narrow the procedure down to likely individuals and their associates, not the whole of the People.  By not recognizing this basic piece of logic, the Judicial branch in authorizing such a Warrant can be found in breach of the Constitution.  At that point the Warrant is rescinded and all individuals not associated with suspected terrorists are removed from the data stores in their entirety, including all back-ups.

2 – Executive branch problems can fall into the area of not interpreting the law correctly and creating an unconstitutional execution of it via programs.  In this instance a law would be Constitutional but the PRISM concept would be violating basic protections and freedoms of the People as a whole and in their individual particulars.  Any program so ill-crafted as to need all of the data on all of the people to find the very few who may be supporting terrorists is so ill-conceived that it points to a basic and systemic problem in not just the program but in those who created and authorized it.

3 – Legislative works are not always found to be Constitutional and Congress may have given a law that contravenes the basic protections of the American people as a whole and as individuals.  The entire scope of the law may be so ill-created and ill-conceived that no one doing the process of approving it in Congress realized just how wrong-headed it was.  However if Congress did craft the law properly, but was not informed of the scope of the resulting program and what it entailed, then that is a failure of the Executive branch to properly inform the Legislative branch about the implementation of the program.  If the law, itself, is the fault then it lies with Congress at the very passage of it and all programs and functions created by it go away, and the data stores are destroyed.  A lack of Executive accountability, however, puts the Executive at jeopardy for not performing a duty to Congress as required by Congress so that Congress can exercise oversight.  In this instance a program and law can be Constitutional but both Mr. Snowden and all who are in the Executive reporting chain can be held accountable for not properly accounting the program to Congress.

These are the possible problems that Mr. Snowden may have seen and the remedy for his defense is not in Amendment IV, the basis for his revealing the program which he sees as problematical, but in Amendment VI:

Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

This procedure in which the prosecution hands over all its collected evidence to the accused and opens those items up to further scrutiny by the accused is known as 'discovery'.  When getting a Warrant the Executive seeks to discover more information about someone and when it accuses them that information is then handed over.  That scrutiny is critical because the defense must be allowed access to exculpatory information in the way of witnesses and documents.

In this case the discovery would presumably happen on the PRISM program within the NSA.

The scope of it would be limited to those documents and procedures that detail the entire history of the program from its original emplacement in a Bill and authorized by Congress, to the implementation and creation of it, to how it functioned so that the Executive demonstrates that it is doing a responsible job in executing the program and properly informing Congress of it on a basis set by Congress.

The defense would not actually want much in the way of things like hardware, software, and who is running which piece of equipment as those would be a distraction and not relevant to the defense.  What is wanted is the high level Legislative enabling Bills and then how the Executive processed those to programs, with given scope and necessary high level overview of the program, and then how it proceeded over time.

The defense has multiple ways to demonstrate that Mr. Snowden operated under his Oath and duties to the Constitution and need but show how the scope of PRISM contravenes the power granted to the federal government in any single particular: with just one Constitutional problem he is vindicated.

An accuser has the power of the State behind them, but in this case it would be relatively open and shut if there is a strong belief that PRISM did all of the following:

1 – Is a Constitutional power granted to Congress.

2 – The Executive properly carried out the power that Congress enacted.

3 – The Executive properly ran the program within the scope of the power grant from Congress for the program.

4 – That no Warrants exceeded the Constitutional limits placed upon the NSA.

5 – That the Judicial branch did not improperly authorize any Warrant for the PRISM program.

6 – That the Executive branch kept Congress properly informed about the program so that Congress could give scrutiny to it so that the program was being run to their satisfaction.

Even though 6 is not a killer to getting a guilty verdict, it then opens the entirety of the reporting chain to prosecution.  And that opens up whole bunches of cans of worms because when the NSA goes rogue and lies to Congress, there is a huge problem in the National Security establishment, all the way up to the DNI who said that such programs didn't even exist nor collect data on American citizens.

So it is my dearest and most sincere wish that Mr. Snowden turn himself in because his worries of Triad contacts inside the US political establishment are valid, and drones are not the only thing in the clandestine arsenal that can take out an individual overseas.  And even Russia isn't safe, either, come to that.

If you are a supporter of the PRISM program then you want Mr. Snowden brought in for trial because you believe it will withstand Constitutional scrutiny.  Really, there is little to worry about in that instance if you believe that.

If you are not a supporter of the PRISM program then you want Mr. Snowden to come in on his own and then support him to get the best crack team of lawyers who know the security laws and how to dance them.  People used to chasing down bureaucratic paper trails, using documents to build a defense and showing just what the scope of the PRISM program actually is.  You don't get that with finger-pointing and argument, but with a court case.

And if you simply want Justice to be served, you want Mr. Snowden to come in or be brought in to trial.  If he acted properly in his assessment of the PRISM program, then he will be vindicated and the program shattered in public disclosure after he is found innocent.  And if he is guilty and the program is Constitutional and legally constructed and run, then the security apparatus will ensure that the information in the trial doesn't see the light of day.

If the entire process, including the Judiciary, has been corrupted thoroughly, then a trial will also show that, quite well.

Being on the run is only a temporary phenomena and you either find a safe haven, get brought in to trial or wind up dead because you know far too much and a trial would reveal that and possibly more.  If Mr. Snowden winds up dead, you will know that is exactly the case.  And then we have a real problem on our hands because someone no longer wants the process to preserve the system.

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