Correctly Breaking the Law

—by Robert Arvay
for The Bold Pursuit

(Written October 17, 2014, edited 9/26/15) 

When Edward Snowden leaked secrets from the National Security Agency, he exposed high level government wrongdoing, about which highly placed administration officials had knowingly lied to Congress, or at least, as Director of National Intelligence James Clapper claimed, made the “least untruthful” statement he could under the circumstances.  Snowden is accused of treachery, even of treason.  He is defended by his supporters on the grounds that he had no other way to protect the American people from a rogue agency.  Based on the facts available to me, I remain undecided, but I will presume Snowden innocent until proof beyond a reasonable doubt causes me to consider him guilty.

Lois Lerner, the now retired, former director of the Exempt Organizations Unit of the U.S. Internal Revenue Service (IRS), was accused of violating the rights of American people to dissent from their government.  She has been charged by some TEA Party groups of illegally sharing their private information with their left wing political opponents, and using other nefarious means, to prevent conservatives from enjoying equal protection of the tax laws to participate in the political process.  In other words, her detractors say, Lois Lerner illegally abused her official position.

I have little doubt that, in their minds, both Snowden and Lerner were doing the right thing.  Snowden believes he was protecting me from the government.  Lerner believes she was protecting the government from me.  Each of them can make at least a tenuous defense of their actions based on the time honored concept of civil disobedience.

Or can they?

Civil disobedience was famously practiced by both Mahatma Gandhi and Martin Luther King Jr.  In both cases, the lawbreakers were opposing laws that many people considered unjust, deplorable, and devastatingly harmful.  The harm being done was not only damaging people, but indeed, even arguably undermining the government itself.

One of the central features of justifiable civil disobedience is that the person committing the crime does not seek to avoid the penalty for doing so.  Indeed, facing the penalties is a further way of publicizing the alleged official injustice, and of garnering support to overturn the unjust law.  Both Gandhi and King willingly submitted to imprisonment for their violations.

Lerner certainly does not fit into that category.  Her efforts were not to overturn an unjust law, but rather, to apply just laws unjustly.  Don’t get me wrong.  I am sure that Lerner regards me as an evil, bigoted, danger to the republic.  She felt that she had to do something to protect Barack Obama’s reelection campaign from people like me, people she regards as villainous.  Believing that as she did, Lerner was obliged to do all she could to stop me.

She was also obliged to face the legal consequences, instead of hiding behind the exact Constitution which she violated.  She was courageous in the battle for liberalism until courage meant something.

Much the same has been said about Snowden.  If he wished to expose government wrongdoing, he could have done so through legal channels, or else gone public, and subjected himself to trial.

The difference between him and Lerner is that the government was sympathetic to Lerner.  She even collaborated with the Justice Department to both protect herself and to promote administration interests.

Snowden’s only hope of a fair trial under the Constitution, lay with the very government administration he was exposing as violating the Constitution.  Not only was the government not the least bit sympathetic to Snowden’s actions, it is very possible, and in my mind very probable, that had Snowden gone to any government official with his complaint, neither he nor his complaint would ever have seen the light of day again.  If Snowden feared for his very life, can we blame him?

I do not have enough facts concerning the Snowden case, and probably never will.   However, he has in a sort of way been held to account.  He has very likely been exiled for the remainder of his life.  He will never again sleep securely, knowing that at any instant, the Russian government might use him in a “trade” for a captured Russian spy, in which case, Snowden will meet a dark fate.

Lerner needs fear only a relatively comfortable jail cell, if even that.