Scholar says both NSA and Snowden in violation of Founding Fathers' ideas

George Washington would not have been an Edward Snowden fan, a legal historian speculated at the School of Law on Monday.

Logan Beirne, the Olin Searle Smith Scholar at Yale Law School, lectured on whether Edward Snowden is a patriot or a traitor and whether the eavesdropping activities of the National Security Agency are constitutional at an event hosted by the Duke Law Federalist Society. Beirne concluded that George Washington and other Founding Fathers would not have approved of the way Snowden chose to express his concern.

“The founders would see the NSA and Edward Snowden with mixed feelings,” Beirne said. “They would be skeptical of the NSA but would not appreciate the way Snowden revealed it.”

When the framers of the Constitution vested the president with the role of commander in chief, they were thinking of the mold George Washington filled during the American Revolution, Beirne said.

The Continental Congress granted Washington dictatorial powers after they relocated to Baltimore in order to avoid British forces, but these powers only pertained to military matters, he said.

Beirne added that constitutionally, the framers gave the commander in chief broad authority over foreign and military matters—which Washington enjoyed during the Revolution—but limited authority over civilian affairs. He noted that the founders would have an “interesting” view of the NSA’s spying.

“The founders would have no problem with phonetapping German Chancellor Angela Merkel or Brazil because the president is doing what he sees fit to defend the American people,” Beirne said. “But they would see wiretapping and spying as dangerous or possibly unconstitutional when we turn it on the people at home.”

Beirne refrained from labeling Snowden as either a traitor or a patriot, but he said Washington and the other founders would not have appreciated the way Snowden revealed his information. Beirne compared Snowden's actions to Benedict Arnold, the Revoluationary-era general who attempted to surrender the American fort at West Point to the British Army. Rather than work with the U.S. system and reform it, which Arnold had the ability to do, he lobbied for a strategic military location with the intention of giving it up to British forces before retiring in wealth, Beirne said.

“Washington saw it as one thing to rebel against an unjust government where you have no representation,” Beirne said. “But to rebel against your government was wrong.”

The appropriate action in the founders' eyes would have been for Snowden to speak up and expose government shortcomings, instead of exposing information and leaving the country, Beirne said. Snowden could have taken his information to elected officials at the state or federal level rather than going directly to journalists.

Beirne said that following Snowden’s revelations, al Qaeda operatives have changed their modes of communications and the number of U.S. informants has plummeted because they fear the United States cannot control the outflow of information. Additionally, agencies are growing averse to inter-agency sharing of information, which had increased following the 9/11 attacks in 2001.

Third-year law student Autumn Hamit, co-president of the Duke Law Federalist Society, said that the group invited Beirne to speak about the topic because they believed that his legal background and expertise on the American Revolution would provide an interesting prospective with a historical background. The fact that the event was the same day as another event discussing the NSA leaks was coincidental.

“We did not intentionally plan to host our event on the same day as the Sanford school event,” she said. “We originally reached out to Beirne in July and solidified the date in early August.”

Lauren Vickers, a first-year law student, said Beirne provided an interesting perspective on the case by comparing Snowden and Arnold.

“We need to think about the constitutionality of the actions of the NSA and whether what they are doing is right, but I do not believe that to correct these problems is to broadcast [intelligence] to the world," Vickers said.


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