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What would George Washington do to NSA leaker Edward Snowden?

 

Our founding fathers faced men like Edward Snowden. They sentenced them to death.

After we won the Revolutionary War, many people continued to break the law, claiming they were merely perpetuating American ideals. Our first president and commander-in-chief, George Washington, condemned them.

In exposing the FSA’s surveillance program, Snowden claims to be a good American doing his part to expose government intrusion. 

Our Founders likely would have prosecuted Edward Snowden to the fullest extent of the law.

The fact is that he intentionally broke U.S. law by leaking classified information and knowingly harmed our national security. 

For doing so, our Founders likely would have prosecuted him to the fullest extent of the law.

While they had encouraged defiance against the British government during the war, after they won, they had little tolerance for disobedience against the new republic. This was because it was just to rebel against laws imposed without adequate representation, but once the American people gained representation, they were required to follow their own laws.

For example, when Daniel Shays and other farmers rose up against their unjust treatment at the hands of the Massachusetts legislature, they were crushed. 

Despite Shays’ men’s honorable intentions and revolutionary rallying cry, “True Liberty and Justice may require resistance to law,” Washington had little sympathy. 

“What gracious God, is man! that there should be such inconsistency and perfidiousness in his conduct?” he lamented, “It is but the other day, that we were shedding our blood to obtain the Constitutions under which we now live; Constitutions of our own choice and making; and now we are unsheathing the sword to overturn them.”

Following this rationale, Washington would vigorously pursue Snowden for breaking his nation’s laws and jeopardizing its national security. 

Snowden had the option to contact his elected representatives in Congress, reach out to the courts, or pursue a variety of lawful channels. 

He had the ability to protest what may very well be a deeply troubling program, without breaking the law and revealing sensitive information to our enemies. Instead of acting as a true patriot, Snowden leaked intelligence to a British newspaper and fled to China.

This is not to say the Founders would necessarily approve of the NSA programs, however. They would likely applaud efforts to keep a close watch on foreign nationals using all tools at our disposal; at the same time, they would take issue with the fact that untold thousands – or even millions -- of innocent American citizens are swept into the dragnet as well.

We fought a revolution to escape government intrusion. While we will surely learn more details about the NSA methods over the coming weeks, initial evidence of the programs’ indiscriminate techniques coupled with inadequate oversight, paints a picture analogous to the hated “writs of assistance” that led to the Revolutionary War.

America’s fierce aversion to these general warrants was a galvanizing force behind the creation of our constitutional republic. 

The king had authorized agents to conduct wide ranging searches of anyone, anywhere, anytime. 

If the agent was looking for weapons, for example, he could scour a town, searching every innocent man, woman, and child and their homes without any need to identify particular people for which he had legitimate reason to suspect. 

Without court oversight or probable cause, these writs left it to the officials’ discretion, thereby placing “the liberty of every man in the hands of every petty officer.”

As Revolutionary commander-in-chief, George Washington was not shy about collecting intelligence, explaining that “It is by comparing a variety of information, we are frequently enabled to investigate facts, which were so intricate or hidden, that no single clue could have led to the knowledge of them.” 

He ferociously hunted America’s enemies, using varied and ingenious methods to do so.

Analogously to the NSA programs, the Founders even intercepted the mail of Americans loyal to the crown. However, they were wary of abuses and sought to ensure transparent democratic oversight over the process rather than secretive national government agencies.

We should likewise be wary of creeping government intrusion and strive to ensure proper oversight. 

While we may decide as a nation that the current NSA activities are far less intrusive than the general searches of yesteryear, these programs are worth our scrutiny due to the new precedents they set. 

Times and technology will continue to change, but our values should not. We might look to Washington and our founding fathers for guidance on how to respond to security challenges while remaining faithful to our nation’s core constitutional principles.

Logan Beirne is an Olin Scholar at Yale Law School and author of "Blood of Tyrants: George Washington & the Forging of the Presidency" (Encounter Books 2013) This op-ed is based on his work with Julie Silverbrook and the Constitutional Sources Project.