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Bar News - August 23, 2013

Representations: Snowden Affair Raises Questions for Lawyers and Leaders


Editor’s note: Mr. Davidow takes a break from books and movies this month to examine the case of Edward Snowden and the recent revelations about NSA surveillance programs.

The common law sustained itself as an organic enterprise for several American centuries. It grew in fits and starts. It adapted, slowly and haphazardly, to many new conditions. It occasionally benefited from legislative compulsion, so that in areas like civil rights, it could take advantage of new thinking in one fell swoop, rather than relying on patchwork fixes. And by and large, it prospered for a very long time. People were able to solve many if not most of their problems in time-honored ways and with time-honored means.

The natural sciences advanced that way too, for most of our history. Widely scattered individuals working in many different areas moved ahead on personal paths, leading to new ways of seeing the universe, of treating diseases, of understanding humanity. And just like law, science succeeded in meeting the needs of many people over many fruitful decades.

There seemed to be a promise of continued progress in both of these fields, too; a promise that with enough people in each generation willing to work hard enough, law and science would each contribute mightily to the health of our land.

But the legal and scientific worlds have changed in recent decades.

Law has become a bulk commodity, bought and sold in our major cities as little more than a necessary gloss on the bigger business of making money. Where lawyers were once seen as worldly counselors, masters of a body of knowledge both needed and respected by those around them, they are now just seen as one more ingredient in the tangled brew of international finance.

And science has become a new sort of business altogether. The federal funding that began during the Second World War, continued throughout the Cold War, and continues today in our so-called War on Terror has made technology into the property of our defense establishment, with knowledge itself transformed into a weapon. We as citizens might benefit from the trickle-down, with faster computers, keener robots, and 10,000 television stations; but science itself is more arcane than ever, more divorced from the fabric of our lives, and less responsive to individual hearts.

What happens when these two trends collide, when law as an adjunct to business meets science as adjunct to power, can be seen in the acts of Edward Snowden; or, more particularly, in the jumbled reaction to them by politicians, the press, and the military.

I have little sympathy for what Snowden did. He acted alone, without legitimacy. Yet, I also lack sympathy for those he worked for; for the security apparatus of our country, the legitimacy of which seems to hang by a thread. And those who are prosecuting him seem similarly bereft of integrity. All is done in shadows; a push-button court that meets in secrecy and is known by its acronym more than by its name is apparently all that stands between the cold hands of our espionage services and the most intimate secrets of you and all your neighbors.

This disconnect between power and public has been a long time coming, too. I recall when teenagers were being prosecuted in federal courts for having downloaded songs on the Internet; those tone-deaf proceedings happened all of several years ago. Back then, of course, we were worried that our nation’s easy-listening industry might not survive the advent of new technology; we were not yet worried about Wikileaks and Prism. Yet the distance between Napster and Snowden is not that great, and crushing one will be much like crushing the other.

The first question we must answer, then, is for whose benefit – if anyone’s – Snowden must be punished. If for our society as a whole, then we need to know how our society was hurt; if that hurt was inevitable; if that hurt can be healed. If for the military-scientific complex alone, then we must decide how representative of our country that complex is or should be. If for commercial principles of contract breach, then we must decide whether such commercial principles should have any role in the conduct of our national affairs.

I have no answers to these questions. I only urge that they be asked and considered, with public debate and private consideration.

In his famous farewell speech, Dwight Eisenhower warned as follows: “In the councils of government, we must guard against the acquisition of unwarranted influence, whether sought or unsought, by the military-industrial complex. The potential for the disastrous rise of misplaced power exists and will persist. We must never let the weight of this combination endanger our liberties or democratic processes. We should take nothing for granted. Only an alert and knowledgeable citizenry can compel the proper meshing of the huge industrial and military machinery of defense with our peaceful methods and goals, so that security and liberty may prosper together.”

There is no better to call to action than that; those words have stood the test of time. The case of Edward Snowden proves that we have not yet struck the balance Eisenhower called for, though. And unless we as lawyers reassert ourselves soon, as guardians of democracy who are worthy of trust, we may lose our place at the table in the negotiations to follow.

Supreme Court Rule 42(9) requires all NH admitted attorneys to notify the Bar Association of any address change, home or office.

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