Bruce Fein on “Snowden the Patriot” and Fourth Amendment Erosion

While at UCLA Law School recently, former Reagan administrator and part of the muscle behind a class-action lawsuit to declare National Security Agency (NSA) surveillance programs unconstitutional, Bruce Fein, was asked to comment on one of the hottest questions of the day–Is Edward Snowden a patriot or a traitor?  As the Atlantic reports, Fein’s response was couched in the Fourth Amendment and what Fein believes to be the true spirit of patriotism.

His response to the question began with Thomas Paine, according to the Atlantic,

Patriotism was defined by Thomas Paine at the founding as a citizen who protects his country from his government . . .

and continued,

The spirit of the Fourth Amendment, the spirit of the country, was captured in William Pitt the Elder’s address to British Parliament in 1763[] . . . ‘The poorest man in his cottage may bid defiance to all the forces of the crown.  He may be frail.  The roof may shake.  The winds may blow through it.  Storms may enter.  Rain may enter.  But the King of England cannot enter.  All his forces dare not cross the threshold of the ruined tenement.’

Of course, Fein’s argument is that government surveillance programs are violative of the Fourth Amendment, which protects against unreasonable searches and seizures.  This violation, Fein says, is not remedied no matter how many terrorist plots are foiled.  As he says and the Atlantic reports:

Well, that’s an odd argument.  Maybe we should have the NSA or FBI go search the closets of every home in the United States, hoping that maybe Osama bin Laden’s cousin will be there.  And if they discover nothing it will be fully justified.

But, is the surveillance of telephony metadata by the NSA truly the same as searching a closet in one’s home, as Fein argues?  Or, as Professor Orin Kerr recently argued, is telephony metadata simply the telephone company’s “record of what it did” and not an individual’s property at all?

I also bring to your attention the Atlantic’s additional contention that the Fourth Amendment was eroded by the War on Drugs long before the NSA debacle.

 

The full article is linked here for your convenience.

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Authors

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Professor William Snyder

Professor William C. Snyderis a member of the faculty of the Institute for National Security and Counter-terrorism at Syracuse University after fifteen years with the United States Department of Justice.

Ryan D. White

Ryan D. WhiteRyan is currently a third year law student at Syracuse University College of Law, and is also pursuing a Master of Public Administration degree from Syracuse’s Maxwell School of Citizenship and Public Affairs. Ryan spent time with Homeland Security Investigations while pursuing his undergraduate degree at Wesleyan University, and spent his first summer of law school as clerk for the U.S. Attorney’s Office in the Western District of New York. He is a member of Syracuse Law Review, the Journal on Terrorism and Security Analysis, and participates in the Veteran’s Legal Clinic. Full biography

Shelby E. Mann

Ryan D. WhiteShelby is a second year law student at the Syracuse University College of Law. She is the 2018-9 Editor in Chief of the Syracuse Law Review, as well as a member of the Journal on Terrorism and Security Analysis, and the senior editor for the Syrian Accountability Project. During her final year at the University of Missouri, she served as a full-time news producer for ABC 17 News. Shelby spent her first summer of law school at the Shelby County District Attorney General's Office in Memphis, Tenn., in the Public Corruption and Economic Crimes Unit. Full biography

Christopher w. FolkChristopher W. Folk

is a 2017 graduate of SU College of Law. A non-traditional student, Christopher returned to academia after spending nearly twenty years in the high tech industry. Christopher served in the Marine Corps, graduated from Cornell University with a B.S. In Applied Economics and Business Management, attended Northeastern University’s High-Tech MBA Program and received a M.S. In Computer Information Systems. Christopher previously worked in Software Engineering. Christopher is currently serving his second term as Town Justice for the Town of Waterloo. Christopher externed with a Cybersecurity firm in the Washington, D.C. area between his first and second year at SU College of Law. Full biography

Anna Maria Castillo

Anna Maria Castillois 2016 graduate of Syracuse College of Law. She also holds a Master of Arts in International Relations from Syracuse University's Maxwell School of Citizenship and Public Affairs. She has interned at a London-based think-tank that specializes in transnational terrorism and global security and at the legal department of a defense contractor. She served as an executive editor in the Syracuse Law Review. Full biography

Jennifer A. CamilloJennifer A. Camillo

is a 2015 graduate of Syracuse College of Law and is a prosecutor. She has served as a law clerk in the United States Attorney’s Office for the Northern District of New York and the Cayuga County District Attorney’s Office and as an extern in the Oneida County District Attorney’s Office. She was a member of the Syracuse National Trial Team and was awarded the Tiffany Cup by the New York Bar Association for her trial advocacy achievements.

Tara J. PistoreseTara J. Pistorese

holds Juris Doctor and Masters of Public Administration degrees from Syracuse University's Maxwell School of Citizenship and Public Affairs and its College of Law. She wrote for this blog when a student. She is now a member of the U.S. Army Judge Advocate General's Corps.

Benjamin Zaiser

is both a scholar and a Federal Agent of the Federal Criminal Police Office of Germany. (Opinions expressed here are his own and not any part of official duty.) Full biography

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