"They who would give up essential Liberty, to purchase a little temporary Safety
deserve neither Liberty nor Safety" - Benjamin Franklin
Some people are saying that President Obama should grant amnesty to Edward Snowden for his alleged crimes in releasing classified records that document the NSA’s warrantless, dragnet spying on the communications of average Americans, and I wholeheartedly agree. An equally interesting question, however, is whether Snowden would be able to raise, and perhaps prevail upon the necessity defense should he be captured and tried in open federal court.
It is discretionary with the court whether to permit a criminal defendant to raise the defense of necessity, i.e. that his actions were necessary and reasonably calculated to prevent a greater harm than would result from his violation of the law. That is something which, according to recent polls, a majority of Americans might well find to be the case with Edward Snowden's whistle blowing..
The elements of the necessity defense vary among the several federal circuits. It has never been definitively ruled on by the Supreme Court, but it always turns on some variant of the same or similar four elements: (1) was the course of action chosen the lesser of two evils; (2) was the action taken to prevent an imminent harm; (3) was it reasonably anticipated that the action would
avert the harm; and (4) was there no legal alternative to violating the law. A case for Snowden can rationally be pleaded on each of these elements.
As to the comparison of evils, Snowden reasonably believed that the NSA’s dragnet violation of our Fourth Amendment right to be secure in our persons, papers, houses and effects far outweighs any marginal security advantage the NSA might hope to gain by its dragnet approach to warrantless search and seizure of our personal data and communications. Again, recent polls
indicate that a majority of Americans, including those on both the right and left of the political spectrum agree with that assessment.
The harm at issue, the NSA’s violation of our basic right to be secure in our persons, papers, houses and effects, our privacy, was not only “imminent,” it was manifest, ongoing and increasing. The NSA was conducting massive, warrantless dragnet searches into our private communications, and has been doing so for several years.
The third factor, did Snowden reasonably anticipate that his action would avert the harm, is often referred to as “efficacy.” In this case, it has in fact proven to be effective, where it has caused the President to publicly state that the NSA’s predations on our constitutional right to privacy will be addressed and at least reduced if not totally eliminated.
Finally, where Snowden could be charged with “treason” in addition to statutory charges for disclosing classified material, the fourth question answers itself. There clearly was no legal alternative for him to bring the issue of the NSA’s unconstitutional spying on us except by violating the law prohibiting the release of classified documents.
All four elements of the necessity defense can rationally be articulated in Snowden’s case, but the issue remains whether he would likely be acquitted if he were allowed to present the necessity defense to a jury. The public opinion polls on this point are encouraging, but all the government would need would be twelve jurors who are more susceptible to arguments based on flag-waving “patriotism,” and terrorist scaremongering.
If I were defending Snowden in court against such government excess, I would simply ask that the jurors hearken to the wisdom of Benjamin Franklin who said:
They who would give up essential Liberty, to purchase a little temporary Safety deserve neither Liberty nor Safety.
B. Franklin, Pennsylvania Assembly, Reply to the Governor, 11 Nov. 1755; quoted in An Historical Review of the Constitution and Government of Pennsylvania (1759).
That wisdom, by the way, is something President Obama should take to heart, and then grant amnesty to Edward Snowden, concurrently with issuing a firm, explicit and unqualified executive order to prohibit the NSA from conducting any more searches of our private electronic records and communications, under any circumstances, without first obtaining a search warrant based on a showing of probable cause, as the Fourth Amendment commands.
Before any governmental intrusion into our private communications, a factual showing is required, to the satisfaction of an impartial court, that we are probably engaging in some illegal activity. The NSA’s dragnet searches of everyone’s personal communications, in the name of some imaginary or at best marginal enhancement of our security, falls far short of complying with our essential constitutional liberty to be secure in our persons, papers, houses and effects. ..