December 20, 2013
Law students have the opportunity to take a stand on the issue and argue your position – perhaps in not so colorful of language – through the American Bar Association’s Rona Mears Student Writing Competition & Scholarship.
Mr. Snowden is the topic of this year’s competition, and participants are asked to address one of the following issues:
- Present legal arguments on why Mr. Snowden is guilty or alternatively not guilty of violating U.S., foreign, or international laws.
- Present legal arguments on why the U.S. government has violated or alternatively has not violated U.S., foreign, or international law through its actions disclosed by Mr. Snowden.
These issues are not abstract debates unlikely to ever materialize in the real world: both are contentious questions currently being debated outside the confines of the competition – and both are likely to be answered in court sometime in the near future (if not already).
Furthermore, both issues offer opportunities for law students to demonstrate their exceptional advocacy skills, although just how these opportunities present themselves as such may not be clear at the outset. But here’s what I mean:
Although each issue presents two opposing arguments for law students to advocate, legal authority weighs much more in favor of one over the alternate.
For example, in regards to the first issue, the existing body of law on the subject strongly favors the position that Mr. Snowden has violated U.S. laws – especially if you ask the Justice Department, which has charged Snowden with criminal violations such as the willful communication of classified communications intelligence information to an unauthorized person and theft of government property. Furthermore, if Snowden himself didn’t believe that criminal prosecution for his public disclosure of classified government documents was a strong possibility (if not a certainty), he wouldn’t have fled the country.
As to the second issue, many legal commentators, myself included, have argued that the U.S. government is in violation of the Constitution by conducting the surveillance programs disclosed by Mr. Snowden. For further evidence, look to a federal judge’s decision to grant a preliminary injunction against the National Security Agency’s (NSA) surveillance programs, stating that such programs “likely violate the Fourth Amendment” (the judge also specifically addressed the NSA’s bulk telephony metadata collection and analysis as “almost certainly” violating an individual’s “reasonable expectation of privacy”).
Clearly, there is more than sufficient legal authority to take the position that Snowden violated U.S. laws in his disclosures or the position that the government has violated U.S. laws through its actions disclosed by Snowden. However, a great number of competition participants have also realized this, and will likely take one of these two positions simply because they are more strongly supported by the law.
This is how you can differentiate yourself from the competition: argue the legally weaker position.
As to the first issue, imagine approaching the question from the perspective of Snowden’s defense counsel, should he be apprehended by U.S. authorities and criminally prosecuted. There can be virtually no denying that Snowden stole government property (the confidential information) and disclosed the information to an unauthorized person. Nevertheless, there may be other strong legal or policy reasons why Snowden shouldn’t be prosecuted – not least among them if that the government’s actions disclosed by Snowden grossly violate the Constitution.
Likewise, a similar approach could be taken with the second issue: that the government’s surveillance activities likely violate the Constitution, but that a new legal standard should be applied in a post 9/11 world to allow the government greater leeway under the Constitution to deal with potential terrorist threats.
Alternatively, you could also take the position that the Constitution does allow surveillance on such a grand scale, perhaps citing to Foreign Intelligence Surveillance Court (FISC) orders allowing such surveillance and making arguments on how the bulk data collection and analysis is within the scope of the Fourth Amendment.
Of course, this is all discussing U.S. law only, but the competition invites law students to discuss not only U.S. law, but foreign and international law as well. Being able to make effective legal arguments based on foreign and/or international law – especially in addition to U.S. law – will surely differentiate you from the competition.
Whichever route you opt, your time is well-spent.
Your efforts in the competition will only hone your legal research and advocacy skills. Moreover, you will be researching into topics that are very relevant to current events, and will likely continue to be in the future.