June 8, 2006
Glenn Greenwald Wants To Save the United States Constitution - Now, That's a Patriot Act!
A BUZZFLASH INTERVIEW
Glenn Greenwald is a constitutional lawyer and author of How Would a Patriot Act? Defending American Values from a President Run Amok. He recently wrote in his blog, Unclaimed Territory: "I genuinely believe that once Americans are truly aware of how radical this administration is, and how contrary to the most core American values its views and actions are, that will have a meaningful effect on public opinion." His new book details the Bush administration's usurpation of power and mounts a defense of our shredded Constitution. To us, that in itself is an act worthy of an American patriot. Read on for his views on how the power grab has occurred, and how it can be stopped.
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BuzzFlash: In How Would a Patriot Act? Defending American Values from a President Run Amok, you do an excellent job of stating the case that the executive branch is flaunting our Constitution, and dismantling it in many ways. You state that this extremism is neither conservative nor liberal by nature. What do you mean by that?
Glenn Greenwald: There is room within the American political system for both conservative and liberal political ideology, for differences on issues like tax policy or social spending, or the extent to which the government should regulate private business. Those differences have always existed within the principles of this system of American government that we have. The issues that I’m writing about in my book are issues that go to what system of government we have, what the basic principles are of how we have a government, and how that government operates.
We’ve always been a country that has guaranteed to American citizens the right not to be arrested without a jury trial. We’ve always been a country that requires the President to submit to checks and balances by other branches, and to abide by the rule of law. Those principles are not conservative or liberal, and those are the ones that are under assault by the Administration.
BuzzFlash: You make a point to say that you really weren’t that political of a person per se. You thought our system worked. What specifically caused you to ask and answer the question of your own book, How Would a Patriot Act? You’ve become a patriot to uphold the Constitution.
Glenn Greenwald: I’ve always been comfortable with different political ideologies, because I’ve always believed in the supremacy of the principles of the Founders, and how our government works, and the Constitutional limits that they imposed on what the government can do. What I began to see from the Bush Administration was not just isolated acts of unconstitutional behavior, which most administrations have been guilty of from time to time, but instead an extremist view of Presidential power that simply vested absolute and unconstitutional power in the President.
The first incident that I talk about in my book, that for me really began to be a cause for alarm, was when the Administration arrested Jose Padilla. He was a US citizen on US soil, and they put him in a military prison and refused to charge him with any crime. They refused to allow him to speak to a lawyer or to anyone at all. They insisted upon the right to keep him in a military prison without ever charging him with a crime, and without ever allowing him to contest the accuracy of those accusations. That, to me, is an attack on one of the most basic rights that American citizens have always had - the right not to be imprisoned without charges being brought out by the jury trial. When I saw the Administration doing that, and also claiming the right to do that based on extremist theories of power, I really began to be alarmed.
BuzzFlash: You describe in your book a whole series of attacks on the Constitution. One of the problems which we point out on BuzzFlash is that, in the age of the six-hour news cycle, people forget all but the latest transgression, unless they read a book like yours. That poses a problem in terms of the American public understanding how seriously the Constitution is under attack.
Glenn Greenwald: I think you’re exactly right, and that is why I wrote the book. There’s been reasonably substantial attention paid to each one of these scandals in isolation. The media has talked about the warrantless wire-tapping program, the use of torture as an interrogation tool, the case of Jose Padilla. But they talked about it, as you say, in very short and isolated news cycles.
The reality is is that none of those things is happening in isolation. They all have a common root, and that root is that we have a government in place that literally believes the President has the power to act without restraints of any kind. That is an unprecedented theory of presidential power, and it is extraordinarily significant for what kind of country we’re going to be and the kind of government we’re going to have. Yet you virtually never hear the issues discussed in the context of the views of Presidential power that this government has adopted. More than anything else, that was why I wrote the book – to make as many people as possible become aware of just how extreme this government is in terms of the views it has adopted of its own power.
BuzzFlash: We used to have the term "separation of powers" to mean there’s an Executive branch, a Judicial branch, and a Congressional branch. The Congress was supposed to legislate, the Executive was supposed to implement, and the Judiciary was supposed to interpret and decide disputes between the two. But as the Boston Globe reported, Bush has issued "signing statements" on some 750 pieces of legislation where he basically has said I’m not going to abide by the laws as Congress passed them. I’m going to abide by them as we see fit. This practice actually goes back to the Reagan Administration, with Samuel Alito working in the Justice Department, claiming that the Executive branch could, through a signing statement, for the record, interpret a law differently than how it was passed by Congress. Bush is not implementing the laws enacted by Congress – he is legislating through the signing statement.
Glenn Greenwald: The Boston Globe articles by Charlie Savage, which really detailed the extent of the Administration’s law-breaking through the use of these signing statements, were the only time that I had seen any discussion in the mainstream media of the fact that this administration is using these tactics to evade the obligations of law that the American people enact through their Congress. It's amazing that it wasn’t until February of this year that it was even discussed. As you say, the discussion began and ended with the Boston Globe.
BuzzFlash: Why do you think that is? We have a President who, prima facie, is admitting to violating the law and flaunting it, and there are no repercussions. It’s right there in the signing statements.
Glenn Greenwald: The signing statement has always been controversial, but the way that it began was simply as a tool for the Executive branch to go on record saying this is how we understand this law. Then, if there was a dispute about what a law meant, and it went to the Supreme Court, the Executive branch had a way, like Congress does, of saying this is what we understand the law to mean. It has been completely distorted by this Administration. It isn’t used to say, this is what we understand the law to mean. It’s used to say, we do not have to abide by these parts of the law because we have the power to break these parts of the law.
Why hasn’t the press informed American citizens of the fact that the government is doing that? I actually believe the real reason is that what the Bush Administration is doing is so extreme, so radical, that people in the media don’t really believe they’re seriously claiming the right to break the law. That’s the only thing I can think of as to why this story isn’t getting more attention.
They’ve made the same argument in Supreme Court cases and other court cases, claiming the right of the President to act in violation of the law. This ought to be the first and most significant controversy discussed by the media, and yet it’s barely discussed at all. I think the reporters simply don’t realize how serious of a crisis it is. They just don’t believe that it’s really happening.
BuzzFlash: This happens again and again. If we look at the NSA scandal, Bush admitted to breaking the law - he didn’t go to the FISA court to get approval for NSA eavesdropping - and then misled the public because he keeps implying this is just overseas calls, but apparently it’s also domestic calls. You point out that, when the Patriot Act was passed, Bush said, well, I have everything I need, basically. We’re all set. I have the powers I need. But then he went on to break the law. And not only did he break the law, but to this day, no one in Congress is telling him to stop breaking the law. We don’t see much in the press on the fact that they vowed to continue breaking the law.
Glenn Greenwald: They’re breaking the law as we speak. The law has said for 28 years that it’s a criminal offense to eavesdrop on Americans without a warrant. Not only are they doing that, but they’re overtly vowing to continue to do it in the future. Some legislation finally was introduced a couple weeks ago by Arlen Specter and Dianne Feinstein proposing to cut off funding for any eavesdropping program in violation of FISA, and reiterating that all eavesdropping has to be in compliance with the law. But that’s not going to go anywhere. The President’s allies control both houses of Congress. And just as the media has failed to provide any check or balance whatsoever on the Administration by not even informing people about what it is they’re doing, the Congress has simply relinquished what was supposed to be its institutional objective of preserving its own power. It’s relinquished that power to the President, and has all but said that we don’t care if the laws we pass are ignored by the President. It is amazing.
In October of 2001, when FISA was amended at the President’s request, he could have had any amendments he wanted made to that law, because it was a month after September 11th. Democrats and Republicans were ready to give the President anything he wanted. He did make requests that Congress change FISA, and they did change the law the way that he wanted. Yet, he still ordered eavesdropping to be conducted without complying with the law. The reason for that, clearly, is because he wanted to establish the principle that he didn’t need to comply with any law or get anyone’s permission to eavesdrop on whomever he wanted. He wanted to act outside the law. He wanted to establish the legitimacy of that principle.
For the next four years, he lied about it repeatedly, telling Americans that the government only eavesdropped with warrants, and with court approval – which we now know is not true. Despite the overt law-breaking, neither Congress nor the media, and therefore the public, has reacted very much to some extraordinary revelations.
BuzzFlash: Over the years, as these reports have come up, we’ve covered them on BuzzFlash. Basically the Executive branch is breaking the law with impunity at this point. It is openly violating the law and probing incrementally to see what they can get away with. Now, with the NSA revelations, they've simply said, yeah, we’re going to continue to break the law. What are you going to do about it?
You mentioned the Feinstein and Specter bill, which is a feeble attempt to cut off the funding. They didn’t say, what’s a guy who’s breaking the law doing in the White House? They said, since we can’t stop him, we’ll cut off the funding. Usually someone who's breaking the law is brought to court, or in this case, impeached, which no one seems to think likely with a Republican Congress. What do you do with a President who openly breaks the laws, and basically says, try and stop me?
Glenn Greenwald: The Founders were aware of that problem, because neither Congress nor the courts have at their disposal an army or any law enforcement mechanism. Impeachment is the tool that they gave to the Congress. The problem is, the Congress hasn’t even been willing to investigate what has happened. The Democrats tried, in the Intelligence Committee, to get an investigation into what the President has done, and the Republicans voted by party line against that investigation. Senator Feingold proposed a censure resolution, to at least have the Senate debate what the President is doing, and members of his own party refused to go anywhere near it. That’s why I end the book with this discussion, which I think is the real point. When you have a Congress that’s controlled by the President’s own party, impeachment is not a realistic option. But the true check on abuses of power by the president always will be the American people. When enough Americans realize that the President is acting outside of our system of government in a radical and illegal way - which he is - then there will be checks automatically placed on what this government can do.
That’s why a public discussion of these issues is so critical. I think Americans have instilled within them a certain set of political values. And the reason they aren’t reacting more isn’t because they think the behavior is okay. It’s because they don’t realize yet what this behavior really is about, and what the Administration is really doing.
BuzzFlash: You point out that the Administration uses fear of terrorism to chip away at the Constitution. In fact, Senator Pat Roberts, who is constantly working to make sure that whatever law-breaking is going on by the Bush Administration stays covered up and doesn’t in any way get condemned by the Senate Intelligence Committee – essentially said that sometimes you have to sacrifice your liberty to prevent your death and ensure your security. Ben Franklin is quoted as saying the opposite - that he who would sacrifice a little liberty for security deserves neither.
Whenever they want to break a law or push a little further, they use fear. They say we have to protect you. They’re very paternalistic. What they’re really doing is chipping away at the Constitution. Why do you think they are doing this? Is it merely to become all-powerful, to vest all powers in the unitary executive and become almost a de facto dictatorship? Is it arrogance? What is it that’s driving them to undermine the basic Constitutional structure of America?
Glenn Greenwald: That's an interesting and complicated question. I think, first, that it’s a natural human tendency to try and increase one’s own power. Ultimately that really is the foundation of our government. Three coequal branches of government would fight over what power divisions ought to apply, so there would be a balance by each of the branches trying to gain more power. The problem is that we have two branches of government that have refused to engage in that effort.The Executive branch is the only one trying to consolidate more and more power, and they've encountered none of the impediments that the Founders envisioned.
I also think that there are a lot of ideologues in the Executive Branch who have long resented the conflicts that go back to the Nixon Administration and the fallout from it. Rumsfeld and Cheney were all part of the Ford Administration that really came to believe that there were too many limitations placed on the Executive, after the Church Committee findings and the Watergate abuses. I think the ideologues who are in the Administration believe they know what’s best for the government, and they want to be able to act without restraint. Everything that places any limits on what they can do, whether that be Congress or the press or the law or whistle-blowers, becomes the enemy in a way that I think is unprecedented.
So it’s a combination of a natural personal desire for more power and an ideological belief that the country will run best when all power is consolidated in one strong executive ruler.
BuzzFlash: Now we have a Supreme Court decision, with Justice Alito playing his role for the Bush Administration in being the deciding vote, that whistle-blowers cannot sue the government. It’s basically going to make anyone in the government think twice before they blow the whistle, because if they suffer repercussions, if they’re demoted or their pension’s cut off, they won’t have any recourse. It’s interesting to see that, on the first key decision concerning the powers of the Executive branch, Alito upheld the Executive branch.
I’m not a constitutional lawyer, but it’s always struck me that the Constitution is the document that holds this country together. It’s a country of people of diverse origins, religions, backgrounds, but the Constitution is the great leveling system. It’s what protects our freedom and equality. The law is the glue that holds society together. If the Constitution is the most significant and sacred document of democracy, what happens when you have an Executive branch that basically says that document doesn’t really matter to me?
That’s what Bush says. You need to trust in me as an individual. I know what I’m doing. He doesn’t say trust the Constitution. So there’s a transference. Bush is saying, transfer our faith in the Constitution to protect us, to him, the great father figure, and he will protect us. Suddenly we’re investing our faith in an individual rather than in this document which has guided the country since its inception.
Glenn Greenwald: The reason I referred to patriotism in the title of my book is because, to me, that lies at the heart of all of these issues. I consider myself a patriot. I love the values and principles that have defined our country and distinguished our country from other countries. I believe in the supremacy of our system of government.
That’s not to say that we’ve been perfect, but I believe our system of government really is a unique achievement in modern political history. That’s because of the values created by the Constitution that the Founders, after a lot of debate, came to embrace. The Founders talk about this in the Federalist Papers - and part of their debates were in the Constitutional Convention. They knew that no system of government would be invulnerable to some future tyranny. Their principle challenge when creating a system of government was to figure out how all these rights would really be protected in the future. It’s one thing to say you have the right to free speech and to freedom of religion, and the right not to be punished without due process. But the question then becomes, how do you really protect against tyrannical leaders in the future?
The government that they created was designed, first and foremost, to prevent any one individual or political group from consolidating unchecked power, and from insisting that the country’s prosperity and its freedom lay in putting the trust in a single individual, rather than distrusting our political leaders and insisting on their compliance under the law in a transparent way. That is really the centerpiece of what our government is – insistence that political leaders always remain limited in their power and subject to the law – precisely because we don’t trust government officials to exercise power properly. That really is how the Founders wanted our liberties to be protected.
What we have now is the very opposite of that. We have a President who is claiming the right to exercise power without any limitations. To me, what a patriot does is take a stand in defense of the principles that have made our country great.
Those principles are all under assault by this Administration. The powers they’re insisting on are exactly the powers that the Founders waged the Revolutionary War to get away from. They’re the powers of a king.
Anyone who loves the United States and believes in the principles and values that it embodies will be opposed to the kinds of theories of power and abuses of power that this Administration is embracing, regardless of political ideology or partisan allegiance. Those are the values that have always defined what America is.
BuzzFlash: Something completely overlooked as a major issue in the press, is that Attorney General Gonzales and the former head of the NSA, now head of the CIA, General Hayden, have been asked if the NSA wire-tapping, eavesdropping or data mining is being used for political purposes? Gonzales in the Senate hearing said I can’t speak to that at this time. I’m paraphrasing him. And Hayden just didn’t answer the question. He ignored it, and said, “Next question.” The fact that these two members of the Executive branch both would not flatly deny that was extremely disturbing to us because it implies that it is being used for political purposes. Otherwise, why wouldn’t they flatly deny it? It was extremely disturbing because, if that is the case, then we basically have a totalitarian government at this point. It would mean they are using illegal activity for political purposes, spying on people for political purposes. This was in essence what Nixon did in Watergate, but now it is being done on a massive scale, if that’s the case. Does that concern you?
Glenn Greenwald: That concerns me greatly. I don’t know how the Administration has been using the wire-tapping powers, because they’ve been doing it without the oversight of a court, in total secrecy, and the Congress has refused to investigate how long they’ve been eavesdropping and in what ways.
But this is what I do know. From the time the government first gained the power to eavesdrop in the 1930s, through the Nixon Administration, for the next forty years, every Administration, Democrat and Republican, has abused the eavesdropping power in some way, meaning to spy on political opponents or political groups, or to gain harmful information on people who were not suspected of engaging in any criminal activities. The Johnson and Kennedy Administration spied on civil rights leaders and anti-war groups. The Nixon Administration spied on essentially everybody. That is what the Church Committee investigation and the Senate in 1976 revealed - that the government has been able to eavesdrop in secret and without oversight, and has abused that power continuously.
That is exactly why the country in 1978 said, with the enactment of FISA, we want our government to be able to eavesdrop, because eavesdropping is an important tool to investigate criminals and engage in surveillance on enemies of the country. But we only trust our government to eavesdrop on Americans if they do it with the oversight of a federal judge on the FISA court and with the approval of that court. That’s the only way we can be sure that this eavesdropping power won’t be abused.
Every administration since then – Carter, Reagan, Bush, and Clinton – eavesdropped only in compliance with the law. It’s precisely that law that the Bush Administration has broken. The only thing that breaking that law has achieved is not to increase their eavesdropping power, because you can eavesdrop on pretty much every terrorist and every suspected criminal by going to the FISA court. The only thing it’s enabled them to do is eavesdrop in secret, so nobody knows on whom they’re eavesdropping. Other than the desire to eavesdrop for political purposes, it’s hard to think of a reason why they would be so eager to be able to eavesdrop without any oversight.
BuzzFlash: What you would advise saying to people who don’t think there’s a big issue? We were listening to the radio the other day, and a Business Week reporter called in about AT&T giving data-mining information over to the NSA and so forth. Business Week has had a few articles on this. The commentator on the radio said, well, this is really an invasion of everyone’s privacy in the United States – how do you feel about that personally? And the reporter for Business Week said, I’ve talked to many of my friends about this, college-educated people with very professional jobs, and most of them say, if it helps catch terrorists, it’s okay with me. I have nothing to hide. I don’t really care. What do you say to someone who has those sort of thoughts – "I've got nothing to hide."
Glenn Greenwald: There’s a political difficulty in trying to convince people to care about rights that they don’t actually have a desire to exercise. For a long time I have debated First Amendment rights and defended people whose First Amendment rights were being assaulted. Those are usually people who express pretty extreme views and very unpopular views. So it’s hard to get people who have very mainstream views, who can’t really envision their own First Amendment rights being abridged, to care about attacks on those people who are on the extremes. They think, well, the government is never going to really attack me for my political views. Either I don’t have political views, or I don't express views that are very controversial, and therefore I don’t care.
That’s the same problem with privacy. A lot of people do think, erroneously, that there’s no harm in allowing the government to know what it is they’re doing because they don’t really do much that the government would be interested in.
I think there’s a couple things to say about that. One is, like a lot of rights, I think privacy is a minority right. It is something that is going to be abridged with a minority of people in the country. There’s only going to be a certain group of people who the government cares enough about to want to abridge their privacy, and to then use it against those people. But still, to be a free country, that zone of privacy has to exist. There is just value in showing that the government can’t collect information about citizens whom the government suspect of being a crime.
But I think there’s also a failure to appreciate just how invasive this information is. I know from litigating – from obtaining phone bills and other documents like that against people in litigation – that if you have a record of every person who someone is calling, and every person who is calling that individual, you’re going to know an enormous amount about them. You’ll know what doctors they talk to, what drug counselors they talk to, if they have girlfriends or boyfriends, or anything else. You will know everything about their professional life, their personal life, and intimate details that compose their life. To allow the government to maintain a database of that information against the public gives the government enormous power against its population and against its citizens. If that case is made to people, enough people will become convinced of the danger to be opposed to it.
BuzzFlash: That collection of information is not very different from what the East German Stasi did. It was about knowing everything about what citizens were doing, what they were up to. And that was a power that the Soviet bloc countries used over their citizens – knowing everything they could about them. Information is power, because you can leverage it if someone is having an affair, if someone is gay and doesn’t want other people to know. You can leverage that in having them turn as an informant for you, for instance. Now, we haven’t reached that point yet, but the government is slowly gathering information. It wouldn’t take much – maybe another terrorist attack – where it might become that.
Glenn Greenwald: When the National Security Agency was created, the first and last principle was that it would never be used to spy on the American public, because we don’t have a country where the government spies on its citizens. That was ingrained into every employee of the National Security Agency.
When the Church Committee investigated intelligence abuses, the Senators on that committee were amazed at the capabilities of the NSA - and that was back in 1976. They basically have the power to listen in on every single private conversation that occurs by telephone, even in homes at this point, by e-mail and in every other way. And Frank Church, after the investigation, said that if these powers were ever turned on the American public, we would essentially have a dictatorship, because there would be no zone to hide from your own government. Although, I think you’re right – these analogies are somewhat inflammatory, and it’s not to suggest that we’ve reached a point or anywhere near a point in our country where we can say that we have a stasi or a KGB spying internally on citizens - these programs provide a foundation for that. You have the NSA now collecting that kind of information on citizens, listening in and doing who-else-knows-what that has not been revealed yet. You have created the foundation for that degree of domestic spying. The danger of that power being abused in very extreme and frightening ways is obvious. And not just for this Administration, but for subsequent presidents as well. We ought not to wait until that happens to take a stand against it.
BuzzFlash: Thank you very much. Great book.
Glenn Greenwald: Thank you.
A BUZZFLASH INTERVIEW
Interview conducted by Mark Karlin.
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How Would a Patriot Act? Defending American Values from a President Run Amok (Paperback), by Glenn Greenwald, a BuzzFlash premium.
Unclaimed Territory, a blog by Glenn Greenwald.