Some law-breaking benefits society enough that it shouldn’t be punished.
Last week, when some of the eight anti-war activists who in 1971 broke into an FBI office in Media, Pa., and released a bonanza of sensitive files to the public revealed their names for the first time, most commentators praised them. Their break-in and burglary revealed serious FBI misconduct, so they seemed like heroes, not to mention clever and daring.
I’ve represented the Media burglars in secret for over 40 years. One of them, Keith Forsyth, a taxi driver at the time of the burglary, said last week he was finally erasing my home phone number, which he wrote on his arm just before he entered the FBI office. Betty Medsger, the former Washington Post reporter who covered the burglary and has written a new book about it, jokes that I may have the longest retainer without a fee in history. The statute of limitations for prosecuting the burglary long ago ran out, which makes my job as their lawyer much easier.
But the Media FBI office burglary—like Edward Snowden’s release of a trove of National Security Agency documents so many years later— still raises an important question: Whether and under what circumstances is breaking the law justified?
The Media burglars acted illegally to reveal, challenge, and draw attention to serious government misconduct. There is no constitutional or other right to break into an FBI office and steal FBI documents. The illegality is part of the point of civil disobedience, or at least helps communicate the depth of belief, since it carries the risk of going to prison.
In our history, nonviolent civil disobedience has sometimes proved to be prophetic. The 18th-century tea partiers at the nation’s founding also violated basic property and theft laws to protest oppressive and undemocratic taxation. The Underground Railroad’s assistance to escaped slaves was illegal. So were many protest actions of the civil rights movement and of Martin Luther King Jr.
Where do the Media burglars belong in this historical arc? The FBI files they publicly released documented what many then knew or suspected but couldn’t prove: Hoover’s FBI was secretly intervening in the political process and undermining free speech, privacy, and democracy. The agency used threats, intimidation, infiltrators and informers, phony letters, violence, break-ins, and widespread wiretaps, bugs and surveillance—aimed at law-abiding Americans who were simply exercising their free speech rights. The goal, in the words of the FBI, was to “disrupt,” “neutralize,” and “enhance paranoia” in the mostly left-leaning movements Hoover detested—civil rights, anti-war, and women’s liberation.
Without the civil disobedience of the Media burglars, we might never have found out what Hoover’s FBI was doing. Congress and a long line of presidents succumbed to Hoover’s threats and secret dossiers, and the courts refused to protect basic constitutional rights. The press was generally mute. The usual mechanisms for reform or change were failing the country, and it took a group of courageous citizens and a burglary to expose the treachery of the national police and start the process of reform.
While we don’t usually sanction illegal conduct, we are also usually hesitant to embrace unquestioned obedience to government officials or laws. When government or any powerful institution goes seriously wrong, and the institutional mechanisms for correction don’t work, we need nonviolent civil disobedience. The Media burglars were whistle-blowers, in the best sense of the word.
The details of their actions, and others who claim the same mantle, are what matter. Which laws did they violate, for what higher ideal? What dangers did they avoid or create? What were their tactics, and the consequences of their actions? Whistleblowing that performs a vital social function, and embraces illegality as a last resort, should be an occasion for limiting prosecutions and penalties.
I’m not talking about establishing a new legal defense for illegal acts of conscience, which could take the disobedience out of civil disobedience and render it less effective as well as less risky. That would be too hard to define and limit, or to distinguish from excusing illegal acts because of good intentions. But the law offers another seldom-discussed safeguard: jury nullification. Juries are empowered to render “not guilty” verdicts even though the person charged in fact violated the law. Juries don’t have to explain their verdicts, and not-guilty verdicts cannot be appealed. The best example of use of this defense for political civil disobedience is the Camden 28 case, in which I was lead counsel. Hoover’s FBI used an informer to set up a 1971 raid on the Camden, N.J., draft board under the mistaken belief they would capture the Media burglars. All of the defendants were acquitted, including two who last week revealed they were among the Media burglars, even though they had in fact broken the law by breaking into a draft board and destroying its records.
Another available avenue is prosecutorial guidelines—about when to prosecute, what to charge, and what length of sentence to ask for. Legislatures or prosecutors’ offices can recognize factors like the benefit to the public of a particular act of civil disobedience. Such guidelines could also take into account whether or not the act yielded personal gain, and how much care was taken to avoid harm to others. Hoover and the Justice Department sought 47 years for the Camden 28. There is talk now of a life sentence for Snowden. But in this secretive information age, at the heart of both the Media burglary and the NSA revelations was the need to give the public information of enormous importance that it should have, but otherwise lacked. Without the Media burglars (and a subsequent freedom of information battle), we might never have learned of COINTELPRO. Without Edward Snowden, who can believe President Obama would be giving a speech Friday calling for reining in the surveillance tactics of the NSA? The Media burglars, and Snowden, took enormous personal risks so the rest of us could find out about serious abuses by our government. Their actions were in the best American tradition of nonviolent civil disobedience.
David Kairys, a law professor at Temple University, is the author of Philadelphia Freedom, Memoir of a Civil Rights Lawyer.