St. Augustine reports the following conversation between Alexander the Great, who struggled to drive pirates from the Mediterranean Sea, and a hapless pirate who had fallen into the emperor’s custody.
“How dare you molest the sea,” Alexander said.
“How dare you molest the whole world,” the pirate said to a stunned Alexander. “Because I do it with a little ship only, I am called a thief; you, doing it with a great navy, are called an emperor.”
Thus the riddle of legitimacy: How is it that the same behavior can take on radically different meanings? Why is it when the emperor’s crew boards a vessel with swords drawn we call it an assertion of the sovereign’s authority, but when a pirate behaves in the same manner, we call it thievery? What makes the same behavior right for the sovereign, but wrong for the pirate?
I couldn’t help but think of St. Augustine’s report of the verbal standoff between pirate and emperor as I watched “We Steal Secrets: The Story of Wikileaks,” Alex Gibney’s recently released documentary. Julian Assange plays the role of plucky pirate; the United States government is the new emperor. Why do we permit the government to board every electronic portal it can and call it just, while at the same time condemning Assange?
From where I sit, neither a pirate nor a government functionary, the recent disclosures about the scope and sweep of the National Security Agency’s spying on virtually every byte it can grab looks like piracy — it is all the same sense of violation, prying eyes intruding into areas I regard as private.
I am not at all reassured by the patronizing chatter of Gen. Keith Alexander, the NSA chief who, if the law were truly just and applied equally to all, would be facing federal perjury charges for the lies he routinely tells to Congress. The general assured lawmakers that his spies aren’t prying into our electronic lives. But for Edward Snowden, we’d never know the extent to which our government routinely lies to us. For telling these truths, Snowden himself will face prosecution, if the feds can ever get their hands on him. We get the government we deserve, and, I suppose, if we the people are content to be governed by deceit while prosecuting those who dare to tell the truth, then we may as well call hypocrisy a virtue.
And why not? The Supreme Court permits police officers to lie to suspects as part of a routine investigation — a little strategic deceit helps get at the truth, the court reasons. But turn the tables on a federal investigator, and learn what Martha Stewart learned — while the government may lie to you, you lie to the government at your peril. We are a nation of bended knees.
We’ve perverted the grand jury process, too. This venerable institution was once to serve as a check on over-reaching prosecutors; it is now their secret tool, rummaging around in your affairs, calling neighbors to tell tales about you to strangers, all the while barring you or your lawyer from the proceedings.
And would we know as much about drone warfare, the collateral murder that takes place in our name overseas, were it not for Bradley Manning, now sentenced to decades behind bars for sharing inconvenient truths?
I am always amazed in court to hear a prosecutor stand before a jury and claim to speak for the people. Am I not one of those people? Is my client not one of those people? Are not all of those lied to, manipulated, spied upon, deceived, left unemployed, uninsured, locked out of what passes for prosperity, are not these the people, too? What fairy tale requires that we blindly believe lies and half-truths? It is a sorry day when folks are prosecuted for telling the truth, especially when that truth proves that the government lies, and its agents then seek to justify those lies as good for us. How are we ordinary folks to distinguish emperors from pirates?
A crisis in a sense of legitimacy is what happens when people lose faith in their government, when assertions of authority look like naked force. When we regard politicians as thieves, what we are really saying is that the strangers who rule us are little more than pirates.
At the time of the founding, ordinary folks had the chance to rebuke those who administered the law by a process known as jury nullification. If a prosecutor used the law for ends that did not seem just, a jury could refuse to follow the law. In colonial times, the principle worked well enough to secure the acquittal of John Peter Zenger, a printer who published incendiary truths about the colonial governor of New York in violation of a law that made it a crime to do so. He was guilty as sin in terms of the letter of the law, but the jurors thought the law unjust, and acquitted, in the face of the law.
Most states, including Connecticut, forbid open and honest jury nullification. Jurors are required to swear an oath to follow the law as instructed by the judge, whether they like it or not. The same is true in the federal courts. We require jurors to sit still and tolerate lies, half-truths and double-standards, all in the name of justice.
In recent weeks, there have been calls to create a public-interest defense to criminal charges lodged against those who tell us the truth in violation of the laws governing our new, and behemoth, national security state. If permitted, Edward Snowden could defend against charges he disclosed the government’s secrets by claiming he did so in the public interest, in order to let us know what its government was doing. Such a defense would be helpful, of course, but it is not enough.
Jurors ought to be free to nullify the law when they believe it has been misapplied, and lawyers ought to be free to argue nullification, taking their case directly to the people in the jury box. Sure, nullification has its risks. But far riskier is being governed by those who believe it is all right for them to lie to us, and then to prosecute those who tell us the truth. It’s all the same thievery to most of us when a stranger steals our secrets — calling the thief an emperor, or calling him a pirate, changes nothing.