Shredding the Constitution

by Glenn Greenwald
This talk, which was broadcast on Alternative Radio
(Alternative Radio)
was delivered on March 9, 2011, at Lone Star College in Kingwood, Texas

Glenn Greenwald is an attorney and the author of How Would a Patriot Act? and Great American Hypocrites. In 2009, he received an Izzy Award by the Park Center for Independent Media for his “pathbreaking journalistic courage and persistence in confronting conventional wisdom, official deception, and controversial issues.” He also received an Online Journalism Award in 2010 for Best Commentary for his coverage of U.S. Army Private Bradley Manning. Greenwald is a columnist and blogger at and his articles appear in various newspapers and magazines.

The title of the talk, although quite dramatic in its own right, is actually a really good starting point for having the discussion that is worth having. The title is “Shredding the Constitution: Civil Liberties and the War on Terror.” The reason I think that is a good title, and a good title to start off by examining, is because it raises several questions that are worth talking about. The first of which is, what is it that we even mean when we talk about civil liberties and constitutional rights? These are terms that get bandied about constantly in political discourse. Everybody in this room has probably heard those terms many, many times, has probably used them. People are familiar with the ACLU, the American Civil Liberties Union.

It’s typical in his political controversies, when there is a Republican president, for Democrats to accuse the Republican president of shredding the Constitution, infringing civil liberties. That was constantly said about George Bush. When there is a Democratic president, Republicans love to accuse the Democratic president of violating the Constitution. That’s what conservatives frequently say about President Obama’s health care bill, among other things. And even on an individual level, we often raise the issue of civil liberties and constitutional rights. When we have a run-in with police officers or if somebody tells to us do something we don’t want to do, it’s typical for us to exclaim, “My civil liberties are being violated” or “You’re abridging my constitutional rights.” And yet, as often as these terms are invoked, I think there is very little effort paid to understanding exactly what it is that we mean by these terms, what it is that they signify, what we’re talking about when we make reference to these concepts. So I think it’s really worth asking in the first instance, what is it that these terms even mean?

Then, once we have that understanding, I think that a next question is, why do we care about these things? So if we believe or if somebody says that constitutional rights are being eroded or civil liberties are being systematically infringed, why is it that any of us should care about that? There are lots of political disputes, lots of political controversies where the reasons for caring are self- evident. If there is high unemployment or increasing poverty or increasing financial instability, the reasons we care about that are obvious—we understand the impact that it has on our immediate lives and the lives of our family and people we care about. But with civil liberties and constitutional rights, it takes a little more of an effort to understand why these things matter to us, why they’re something much more than just abstractions, and why, when they’re under assault, they’re something that everybody should be interested in stopping.

Then the third and the final question, that I think is worth examining that is raised by the title is, what is the state of civil liberties and constitutional rights in the U.S. right now? We all as Americans like to think of our country as being one that is one of the free countries. We’re all taught that we are the leaders of the free world, that we have all kinds of rights that other countries don’t have, that what distinguishes us from tyrannies and other authoritarian governments is the list of liberties that we all enjoy. But is that actually true? What is the state of constitutional liberties, civil rights, and civil liberties in the U.S., especially in the context of the war on terror?

Those are the major topics that are worth examining. Let me go to the first one, which is, what are civil liberties? What do we mean by civil rights and constitutional rights? In one instance this is a fairly complex topic, but in another it’s actually a pretty straightforward and simple question. When we talk about civil liberties, we don’t mean anything other than the list of things that the government is prohibited from doing to us. They are lines that have been drawn where we have told the government, no matter what circumstances prevail, no matter what your reasons are, no matter how much support you have for doing it, there are certain things that you cannot do to us, there are certain lines that you cannot cross. We don’t have to, fortunately, guess at what those lists are, what that line is. We have a list that has been provided to us in the document that we call the Constitution. The Bill of Rights, which was the first 10 amendments to the Constitution when it was enacted, shortly thereafter, essentially is nothing more than a list of things that the government is barred from doing to us. They are things that we are protected from, not from our fellow citizens, but in terms of government power.

And there’s a good reason why they chose to define the government based on not positive or affirmative obligations that we have as citizens but as limitations on what government can do to us, the kinds of power that it’s barred from exercising. The reason is because the country was founded based upon a very risky and difficult war that was waged to remove themselves from the authority of a king who basically was exerting power without any limits at all. So when the founders decided that they wanted to create their own government, this federal government, the principle preoccupation was, how can we be certain that we’re not essentially recreating the very monster that we just slew which was this out-of-control government that essentially operates without limitations. The solution to that fear was that there would be this document that would endure and that would be above all other laws, all other principles, all other political controversies. And in this document would be enshrined the limitations that under no circumstances would the government be allowed to transgress. That was how the Founders decided that they would safeguard against the tyranny from which they had just liberated themselves through this war, the Revolutionary War.

Even beyond that, what had happened during the discussion about enacting the Constitution was that most Americans at the time who were living in colonies were petrified of the idea of creating a federal government. They didn’t understand why it was that this massive institution needed to be erected. Why couldn’t they just simply govern themselves based on their local rule within the colonies. They were petrified that by forming a federal government they would essentially be recreating a king; that there would be this massive political power that ruled over them and which they couldn’t control. So the Bill of Rights, these civil liberties, was the way that the people who remain the proponents of the Constitution, who wanted the Constitution enacted, convinced American colonists to agree to form this federal union, which was, Don’t worry, there’s this great list that we have that says that no matter what, the federal government can never exercise these powers. These are things that you are going to be protected from in all situations.

That list is the Bill of Rights. It’s subsequently been added to by a whole bunch of amendments that the Founders neglected to include and that subsequent events revealed needed inclusion. But that is the list that defines what we mean by civil liberties and civil rights. They are limitations, prohibitions on what powers the government can exercise. There are a few really critical attributes about this list, these civil liberties, that distinguish it from virtually every other important political dispute that we end up talking about that I think need to be understood.

The first one is, typically when we have political controversies in the U.S., it always ends up being subject to compromise. So if we have a dispute over what tax policy should be, how much the rich should be taxed, there will be one side that says they should be taxed at 38%, another side that says they should be taxed at 32%. And eventually the two sides come together, they compromise, principles are dispensed with, and some kind of accord is reached by each side giving in and then
going to the middle. In virtually every single political dispute, that’s what ends up happening. There are political forces that get together and compromise.

But the nature of civil liberties, of these rights that are enshrined in the Constitution, is such that they are not meant to be subject to political compromise. They are, in fact, supposed to be removed from the process of political debate. These are absolute guarantees that don’t depend upon majorities agreeing that they should continue to endure. These are things that, no matter what majorities think, will continue. And beyond that, they’re absolute in their expression. So they’re not things that say in some circumstances the government can do this and in other circumstances the government can do that, and at some point there is going to be ambiguity and we get together and we reach agreement the way we do with tax policy or environmental debates. It’s exactly the opposite. The nature of civil liberties is that they are absolute in their expression.

So if you look at the First Amendment, you will see things like, “Congress shall make no law…abridging the freedom of speech, or of the press; or the right of the people to peaceably to assemble.” Or, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Or, “…no warrants shall issue but upon probable cause.” Or, “The right of the people to be secure…against unreasonable searches and seizures” also of their houses or persons or effects. Or, “No person shall be…deprived of life, liberty, or property, without due process of law.” These are not ambiguous or mediated principles. They are absolute in their expression. They are intended to be removed from the process of political compromise. They are not subject to all of the same political forces that virtually every other issue is subjected to.

The other aspect of this list of civil liberties that distinguishes it from all the others is that they are completely nonideological. It’s impossible to look at any of the rights that are guaranteed in the Constitution and try and put them in a box and define them as being either conservative or liberal or Democrat versus Republican or left versus right. They are not susceptible to those kinds of descriptions. So, if you look, for example, at the First Amendment, that “Congress shall make no law…abridging freedom of speech,” that applies 100 percent equally to people who are expressing the most right-wing ideas, to people who are expressing the most left-wing ideas. The same with the right to peaceably assemble, or not to have your property or your liberty deprived without due process of law. They apply equally to every person by virtue of shared citizenship. They are impervious to ideological categories. They can’t be subjected to the kinds of labels that virtually every other political debate ends up being shaped by. That, too, distinguishes this list of rights that we have that we call civil liberties.

The final aspect of these rights that distinguishes on them from all others is that they are undemocratic, they’re antidemocratic, in fact. What do I mean by that? Usually the way that laws pass in the U.S. is through majority rule. So members of Congress who represent American citizens gather in Washington in Congress and they vote on various bills, and if a certain bill ends up getting a majority of the votes in Congress, and then in the Senate, and then it’s signed by the President, it ends up being enacted into law. So the majority rules. If the majority wants a certain bill passed, that bill passes. For constitutional rights, majorities are irrelevant. Even if 95% of Americans, 99% of Americans tomorrow decided to get together and criminalize a certain political idea that they just found so dangerous and repugnant that they thought it could not and should not be expressed any longer, it wouldn’t make the slightest difference. The Constitution does not allow majorities to authorize the federal government to cross these lines no matter how badly majorities want to them cross these lines. If tomorrow 95% of the people decided that they wanted to get together and establish Judaism or Islam or Christianity as the national religion, it would make no difference, because the First Amendment prohibits the establishment of a national religion. It’s irrelevant what majorities want when it comes to civil liberties.

In fact, the whole point of why civil liberties exist, of why this list of powers that the government is not allowed to exercise was so important was because the founders feared what they called majority tyranny—that majorities could get together and, using democracy, so oppress minorities that essentially we would have the very tyranny that we were trying to avoid but in the form of majoritarian rule. So what these rights were designed to do more than anything else was to protect minorities. So the founders knew, for example, that if free speech was going to be abridged, that it wasn’t going to be people who were expressing mainstream ideas who would be targeted, because if you’re expressing an idea that the mainstream accepts, that the government likes, that most people consider to be decent, then you’re not going to be in danger of being censored or being punished for your speech. It’s the people who express minority ideas, ideas that are hated and despised who are the ones who need the protection. Or if you practice a religion that the majority approves of and likes and itself practices, you’re not going to be at risk of having your freedom of religion abridged. It’s people who exercise religions practiced by a small number of people who are going to be the ones targeted. So the idea of the Bill of Rights, of these civil liberties, was not to further democracy; it was to put the brakes on democracy and to say that not only the government but even majorities are not allowed to cross these lines, as a way of protecting the minorities in the U.S.

Just a couple of comments about what the purpose of these civil liberties is. I just talked about what they are. But what is the essence of them? What is it that they really are intended to accomplish? One thing that they are intended to accomplish is fairly obvious, which is to prevent the government from being tyrannical. So you look in the Fifth Amendment, it says the government can’t take your life or your liberty or your property without due process of law, meaning the government can’t put you in prison and deprive you of your liberty, it can’t seize your property, it can’t kill you unless it first gives you a trial, a full due process of law where you have all the liberties and the safeguards, before the government can do those things. Because if the government could simply put you in prison without due process of law the way the British king would, we would by definition have tyranny. So one obvious purpose is to prevent tyranny, prevent the government from ruling in a way that deprives us of what we ought to have as our basic civic freedoms.

The second aspect, the purpose of these civil liberties, is to make clear that there are things far more important than security, than physical security. If you look at what happened in terms of the American Revolution, you see how clear it was that the Founders viewed all sorts of values as taking precedence over physical security, because most of the Founders, the leaders of the political class at the time of the American founding, were very secure and very wealthy people. Had they simply continued on the course they were on, they would have enjoyed a very secure, safe, and prosperous life, because they were the elite in the colonies. Had they stayed loyal to the British crown, there would have been a fairly good outcome for them in terms of security and material prosperity. But they obviously decided that there were things more important than security and material prosperity.

How do you know that? You know that because they declared war against the king, who at the time was clearly the most powerful political figure on Earth. The British Empire was easily the most powerful superpower at the time. And the war that the American colonists waged was incredibly risky. It was certain that a large number of them would die, would lose their property, and would lose their security. And, in fact, many of them did. Yet the decision that they made was that there were things far more important than mere physical security, namely, the liberties that they were being deprived of yet which they insisted upon preserving. So the essence of the Constitution is that in America we are not people who live in fear. We don’t think that security is the overarching priority. There are other values that compete with and sometimes are more important than mere physical security.

There are all kinds of examples to prove that. But the best one is one of the rights that I just referenced, which is the idea that the police, the state, is barred from entering your home unless it has probable cause to believe that you’ve committed a crime. This we all take for granted, but this is an incredibly severe restriction on the ability of police officers to solve crimes. If there is a murder down the street tomorrow, and the police are simply free to enter everybody’s home, search everybody’s home at random, the chances are quite high that they’re ultimately going to find the killer just by sweeping searches of every single citizen, regardless of whether there is reason to believe that they were actually guilty. Or what will probably happen is, if they start doing those searches, they will find evidence of other crimes that they weren’t even aware of simply by stumbling into people’s houses. Despite that, despite how helpful those kinds of searches would be in solving crimes, including some of the most serious crimes, stopping murderers and rapists and child molesters and some of the worst criminals, the founders said in the Constitution, and then the American people ratified it, that we don’t want the police being able to enter hour homes without probable cause, even though we know that that will mean that sometimes murderers will go free and won’t be caught quickly enough.

The same thing with all of the safeguards of criminal defendants, the right to counsel, the right to an jury of your peers, the right not to be subject to unreasonable bail restrictions, to confront witnesses. All of these things make it more difficult for the state to convict criminal defendants, and yet the judgment was made at the time of the founding, we want those restrictions, even though it will make it more difficult no convict criminals, because there are more important things than mere security—namely, these liberties.

And then the final value of civil liberties, the final reason why it is so important, the essence of it, is that all of these liberties are absolutely essential to having a robust and free society. By robust what I mean is the ability of citizens to have control over their own destiny and to change their government if they decide that the form of government they have is no longer adequate.

To see how true that is, just look at what’s happening in the Middle East, where people across the ideological spectrum say that they’re very inspired by this uprising, this spontaneous uprising of ordinary citizens against extremely powerful dictatorships that have oppressed them for many years. It’s really remarkable that citizens banding together are able to provide such a threat, to pose such a threat to these oppressive regimes that are armed to the teeth with all sorts of weapons and money, most of which was provided by the U.S. government. The population is basically without any weapons, oftentimes they’re without education and any resources, and yet they’re able to band together and be enough of a formidable force to overthrow these incredibly powerful governments. Look at how it is that they’re accomplishing that. First, there are people who are speaking out against the government, articulating why the government is corrupt. That’s freedom of speech. Then you have people
investigating what the government is doing and publishing the extent of their corruption. That’s freedom of the press. Then you have people gathering together with one another in public squares in order to make their voices heard collectively and to demand reform, which is freedom of assembly.

These are the rights that are protected in the Constitution exactly to ensure that that kind of political change can be possible, that that level of vibrancy will be able to be protected. If those rights are eroded, if they don’t exist, then the kind of change that you see in the Middle East, the kind of protests that brought about the civil rights for African Americans in the 1960s, the protest that is taking place in Wisconsin over the war that’s being waged on working people, these kinds of political reforms become impossible if these civil rights become endangered. So that is the essence of what the civil liberties are, the reasons why they exist, the values that they provide.

That leads to what I said was the second question. I just sort of answered it a little bit, but I want to answer it a little bit more. Why is it that we should care about civil liberties? We care about the economy because that helps our economic prosperity. But why do we care about civil liberties? A lot of people will say things like, “When I wake up in the morning, I have a list of things that I want to do, and I don’t really feel like the government is preventing me from doing the things I want to do, so I don’t really feel like these erosions of civil liberties are affecting me.” Or they say, “The people whose civil liberties are being eroded are people way over there who are much different than I am, and maybe even people who on some level deserve to be targeted in that way. So as long as they’re doing it to those people over there, I’m not really bothered by it; in fact, I support it.” So the question becomes, why is that method of thinking, why is that reasoning corrupted, why is it misguided?

One of the things, if you look at American history, and really the history of all countries, that you will find is that people in political power are often quite stupid, but there are some things that they’re smart about. One of the things that they’re really smart about is that they know that if they want to seize a new power and start eroding civil liberties and eroding constitutional rights, the best way to do it is to begin by targeting the people who are the most hated in the society, whom people fear the most, whom people despise the most. The reason for that is obvious, because as long as you start off targeting only those people who are the most despised, it’s easy to get everybody else not to care or even to support it. “Well, that person is so horrendous and has done such awful things that I actually think the government should be doing these kinds of things to those people, just not to me.”

You see this all the time. There was just a very significant Supreme Court case regarding free-speech rights where a state government had passed a law that was designed to prohibit the family of Fred Phelps from protesting at funerals. Fred Phelps is probably one of the most universally despised individuals in our society, and justifiably so. There is nobody who doesn’t hate Fred Phelps. So what they thought was, if we can pass a law prohibiting Fred Phelps from protesting, since his protests are so repugnant. He goes outside the funerals of gay people who die or of military members who die and protests against them for all sorts of pernicious reasons, says all kinds of foul things to grieving members of their families. Just the most despicable kinds of speech that you can possibly imagine is what the Fred Phelps family engages in. So the idea was, if we can restrict their free speech, no one is going to care. Even judges are going to understand that in this case the speech is so extreme, so disturbing, so hurtful that it will have to be justified, notwithstanding what the Constitution says.

Or a little bit less extremely, but still similarly, after the 9/11 attacks the American people became convinced that one of our enemies was Islam and Muslims. There was lots of talk about how not all Muslims are a threat, but nonetheless the fear of Islam and Muslims arose and pervaded the country because of the blame that was cast on that group for the 9/11 attacks. So when it came time for the government to start trying to get the power to do things like put people in prisons without any shred of due process, without the opportunity to be heard in court or to be charged with a crime, the people they targeted were Muslims almost exclusively because of the expectation, which turned out basically to be true, that the fear levels that Americans had of Muslims would make most Americans indifferent to that targeting and would make a lot of other Americans actively supportive of what was being done.

This is how things happened throughout American history. There was a time when civil rights leaders were just as feared as Muslims were, and they were the targets. Before that, the Communists were. You can go back decade after decade to the founding, and there is always a set of people who are despised by the majority, and they are always the ones who are targeted for civil liberties erosion. This question has been plaguing civil liberties advocates for a long time, which is, how do you convince the majority to care about what is being done to these minorities, whom they fear, whom they perceive as being different from them and who they actually think have done things that are wrong. There are a couple of answers that I think are really important.

For one thing, if you endorse the seizure of certain powers or the erosion of certain liberties when applied to a small group of people, it is impossible to confine those abuses of power simply to that small group. It has never happened in history. So if you look, for example, at that Supreme Court case that I just talked about, had the government won in that case and won the right to ban the demonstrations by the family of Fred Phelps, what would have happened is not merely they would have won the right to ban demonstrations of that particular family. But the principle would have been established that if certain speech is repugnant enough to the majority, then the government has the power to ban it or to severely restrict it in a way that it can’t be heard. Which means that if tomorrow, instead of deciding that the speech of Fred Phelps is uniquely odious, they decide that your ideas are the ones that are uniquely odious, this principle has now been established. Thanks to your indifference or your active support, that the government has the right to ban those demonstrations. The war on terror has produced all kind of principles—that the government has power to put people into prison without charges, that they have the power to identify certain Americans to be killed without any due process—that easily could spread to another group. That’s one critical reason why it’s important to defend civil liberties even when the erosions are being targeted at groups that you don’t care about or think have nothing to do with you or that you even actively dislike.

The second reason why civil liberties are so important to care about, even if you think it’s not directly affecting you, is because it actually does affect you, just in ways that are difficult to ascertain. What happens when the government starts winning the right to take away civil liberties and constitutional rights in a small number of cases is there is a fear level that starts to increase, that starts to be created that citizens have of the government. So if you see the government doing really oppressive things to a small group of people that has become, for whatever reasons, disliked by the government, if you have the idea that you might want to do something that the government dislikes and you want to protest against something the government is doing, or if you want to step out and say that the government is doing something that ought to be opposed, you will think twice about that, because you will look at what is done to people who fall into disfavor with the government and you will be worried about, what if those same things are done to you. So you will then relinquish your right without anyone even forcing you to do so, out of this fear.

I’ll give you a really good example of what I mean by that. Everybody is probably familiar with the controversy over WikiLeaks, the group that discloses government secrets. I actually began writing about WikiLeaks over a year ago, before many people had heard of them, because at the time the Pentagon had secretly written a report in 2008 declaring WikiLeaks to be an enemy of the state. This report talked about ways to destroy WikiLeaks: by creating fabricated documents and submitting them to WikiLeaks in the hopes that they would publish it and then have their credibility destroyed, by finding out who their sources are so that people no longer felt safe leaking to them. This report was done in secret, but, ironically, and not really surprisingly, it ended up being leaked to WikiLeaks, and they ended up publishing it. What this report showed to me was that WikiLeaks is one of the very few groups that the U.S. military and the U.S. government actually was afraid of, actually considered a real threat to their ability to act in secret. I didn’t know much about WikiLeaks at the time. Not many people did. This was before the really newsworthy disclosures.

But that fact, that the Pentagon was so afraid of them and wanted to destroy them, was enough to make me consider WikiLeaks to be something worth protecting and defending. So I interviewed Julian Assange at the time, the head of WikiLeaks. I wrote about the reasons why I thought WikiLeaks had such great potential to bring about important reform, to shine light on what the government is doing in the world that is deceitful and illegal and corrupt that people don’t know about but should know about. And I encouraged people, my readers and others, to donate money to this group, because they were struggling with their finances. It was very expensive to try and authenticate these documents and to publish them, to keep a staff. So I encouraged people to donate money.

After I encouraged people to donate money and I wrote this article praising them and suggesting that people support them, I received a whole slew of responses—by e- mail, in person, comments to my article—from American citizens who are perfectly sober and rational who said that although they agreed with me that WikiLeaks was an organization worth supporting and was engaged in commendable acts, they were concerned and actually frightened that if they were to give money to WikiLeaks through the Internet, through PayPal, using their credit card, that they would end up on a list that the government had, and that they would possibly even end up being subjected to criminal liability, material support to a terrorist organization, aiding and abetting a criminal organization. This wasn’t one or two people. This was a large number, dozens of people if not more than 100, who had expressed this fear to me.

That to me was really remarkable, that really struck me. Because in the U.S. we actually have the right to donate money to political groups whose mission is one that we support. It’s a critical part of what political liberty is about. And WikiLeaks is an organization that had never been and still has never been charged with any crime, let alone convicted of any crime. Yet here you had scores of American citizens expressing fear of exercising their constitutional right for fear that they would end up being on a government list somewhere or end up being prosecuted. This climate of fear that has been created as a result of erosions of civil liberties to a small number of people and the way in which it causes people to give up their rights—nobody is forcing them to do it. They’re saying, I’m afraid to do it because I now fear my government, and I’ve seen my government attack people in ways that the Constitution prohibits, so I’m concerned that they’re going to do that to me.

That is the climate of fear. That the government doesn’t even need to force you any longer to give up your rights or deny them. It gets you to give up those rights yourself. So you think that you’re waking up every day and doing all the things that you want to do, but in reality a wall has been built around you, a wall of fear. You no longer believe in your heart of hearts that you can do all the things that the Constitution says you can do, because you’ve seen over and over people be punished in all kinds of ways for doing exactly that which that document guarantees them the right to do. It is this climate of fear that I think, more than anything else, is so consequential and a reason why we ought to care a lot when it’s small groups of people, even groups of people whom we dislike, who are being targeted in that way.

One more point about that climate of fear. In the course of writing about WikiLeaks—and I’ve done television debates defending WikiLeaks and have written a lot more articles since that one that I just talked about—I’ve gotten to know a lot of people who work for WikiLeaks or who have been involved with WikiLeaks or who at one point were very active in that organization. Most of them are European or from Australia or Asia, and there are some Americans as well. One of the things that they will tell you if you talk to them, especially the people who once worked for WikiLeaks but have now stopped, is that the thing that they fear the most, the reason why they stopped working for WikiLeaks or, in the case of the ones who still are, are considering stopping working for WikiLeaks is not because they fear that their own government will prosecute them. They think that’s possibility, but they’re perfectly willing to confront that and are confident that they can win.

The thing that they fear the most is that they will one day end up having the government knock on their door not to charge them with a crime but to say, “The United States has requested your extradition, and we are going to extradite you to the United States.” The greatest fear that people have outside of the U.S. is ending up in the hands of the American justice system, ending up in American custody. Because they’ve seen how foreign nationals, and even American citizens, are treated who are accused of jeopardizing the national security of the U.S. They’re thrown into holes, they’re disappeared, they’re denied even basic due process. What’s amazing is that this country has held itself out for so long and has been perceived as being the model of justice and freedom. We tell the rest of the world still, we lecture them on what they need to do to preserve liberty. Yet so many people that you will talk to have as their greatest fear, the greatest threat to their liberties, ending up in the hands of the American government. It has caused very committed activists in WikiLeaks, who believe in transparency and the disclosures that it has brought, to stop engaging in what is legitimate political activity out of fear that the U.S. will punish them. It is that climate of fear that I think is most significant and most difficult to recognize.

The last question that I think is raised by the topic that’s worth asking is, what is the state of civil liberties in the U.S.? Is this perception that we like to have of ourselves as being the leaders of the free world and a free country truly accurate, or is this just a delusion that we feed ourselves to feel good about the place in which we were born, for some of us, and the place in which we live?

If you look at how civil liberties have been eroded in the U.S., what you find in almost every case—there were civil liberties abridgements that began at the founding, obviously, huge, systematic ones: the denial of the rights of women, of African Americans, of people who didn’t own property. But if you look at what has happened over the last century in terms of civil liberties, in almost every case the most serious abridgements of constitutional rights have been ones that were justified by appealing to war. So during World War I, war critics of the American government’s role in that war were arrested, statutes were passed to basically criminalize journalism that was critical of the war. In World War II, Japanese Americans were rounded up without any due process or suspicion of wrongdoing and interned in American concentration camps. The Cold War essentially gave rise to the McCarthyite witch hunt. It’s always war that puts Americans in fear and that gets them to acquiesce to giving up their basic freedoms.

We have now been a country that is “at war” for longer than any other period in our nation’s history by far. Basically, we are a country that has been at war since September 11, 2001, which is almost 10 full years. And there is no end in sight to this war. Virtually every civil- liberties abridgement and every constitutional-right violation has been justified by appealing to the idea that we are at war, and that war justifies the government crossing these limits that the Constitution says that they can never cross. What makes this war more threatening to basic freedoms than any other war that has ever happened before is that it’s a completely ill-defined war. It’s not like any other war that we ever fought. Every other war that we’ve ever fought has been a war where we’ve identified a country or a set of countries with whom we were engaged in armed conflict, we were fighting not the people of those countries but the military forces of those countries, and there were finite goals. So in World War II the idea was to defeat Japan and Nazi Germany. In World War I it was to defeat the powers that had emerged against Britain and France. In the Cold War it was to bring down communism.

But in the war on terror, by definition it’s a war that really can never have any end, because terrorism is something that is always going to exist. Even government officials will say that this is a war that will go on not for years but for decades, and even generations. Beyond that, because there is no army that we’re fighting, there is no
country that we’re fighting, what our government has said is that this is a war that means that the “battlefield” is not any isolated physical place but is the entire world. And the enemy are not people who wear uniforms and engage in armed combat, whom we then capture and round up and hold as prisoners of war. They don’t wear uniforms. They can be anywhere in the world at any time. Usually when we capture them, they’re at home with their families and driving in a car. They’re not engaged in any wrongdoing. So the government’s ability to declare people enemies is much broader and much greater than it has ever been before. Until this framework is subverted, until we finally say that we cannot be a nation at endless war and a war that has no limitations and a war that has no definable end, it’s almost impossible to imagine how these civil-liberties erosions are going to be curbed, because war always gets the citizenry to, out of fear, agree that their constitutional rights need to be severely diminished.

If you look at the history of the U.S. over last 10 years, first under the Bush administration and now under the Obama administration, that’s exactly what you see, is a continuation of policies based on the idea that was supposed to be anathema to what the U.S. was all about. That the most important goal, the most important value is security, staying safe. That very little else matters. Every one of these rights that we were supposed to have protected can be relinquished in the name of security. That the president decides how it is that we stay safe, without any checks or accountability or balance from the other branches of government or from the media. This is the framework that we’ve created, is one where the president literally has exactly the powers that the Constitution was designed to prevent any American president from ever having. That’s why the state of civil liberties in the U.S. is extremely poor, probably poorer than it’s ever been, for the population as a whole. As long as this war dynamic continues, it’s hard to see how anything will happen other than it will get worse.

Those rights that are in the Constitution, when exercised, always provide the citizenry with the ability to change what the government is doing. That’s what the Middle East shows. But as long as those rights are ignored, as long as we don’t talk much about them, as long as there is very little understanding of them, then it’s very difficult to see how that will happen. That’s why to me the critical questions are the ones that I said were suggested by this topic: What are these rights? What do we mean by them? Why is it that they matter to me even when I don’t perceive that they’re affecting my life? And what is the state of these rights now, and how is it that we can better safeguard them? I thank you for listening.


The question is how do I feel about Bush’s unilateral decision to invade Iraq. Iraq is actually a really good example of what I just talked about at the end, which is the idea that when you inject the population with sufficient levels of fear, you can essentially get them to agree to anything. One of the unfortunate aspects of our attack on Iraq was that it wasn’t actually a unilateral decision by George Bush. He went to the Congress of the United States and convinced the Congress, not just Republicans in his own party but 50%, roughly, of the Democratic Party as well, including virtually every leading political figure in the party, from Hillary Clinton and John Kerry to a whole slew of others, Joe Biden, that attacking Iraq was the right thing to do. If you look back at the debates that took place during that time, if you just go and randomly Google from 2002 and 2003 things like CNN shows or newspaper debates, you will be shocked by just how moronic and childish and detached from reality the discussions were that led up to that war. That’s because that was a nation that was drowning in fear.

So when the president stood up and said, You are in severe danger from this scary dictator and all of his evil weapons, it became very easy for people to relinquish their rational understanding of the world—that we had supported that same dictator for decades with all kinds of arms, the idea that a country like Iraq, with its rickety economy and pathetic military could be a threat to the U.S., the greatest superpower the world has known militarily, that there was no evidence of all of the threats that were posed by these weapons that we were constantly being told was a guarantee. All the rational faculties got flooded by the fear levels that had been expertly manipulated. It goes to show you that in that framework of war—we were only a year and a half away from the 9/11 attacks—the government can get the citizenry to agree to virtually anything unless the citizenry is on guard against that kind of manipulation. I think all American institutions, including the citizenry, failed pretty profoundly in that period of time.

The question is, what about the treatment of Bradley Manning, who is the 23-year-old Army private who is accused, although he hasn’t been convicted, of being the source for many of the leaks that were made to WikiLeaks, including the documents that were released about the Iraq and Afghanistan wars and various diplomatic cables.

What’s happening to Bradley Manning is really quite remarkable, which is, he’s a member of the U.S. military, he’s an American citizen. He’s been charged with crimes as the leaker, but he’s not been convicted of any crime ever. And he is being held in conditions that most civilized countries, including at times the U.S., when it suits us, call torture. And yet you hear very little discussion about it in the press, very little outrage about it. Why? Because Bradley Manning is someone who the American media and the government have convinced most people is a bad person, he did something bad. So you shouldn’t care that government is doing this to him.

Yet not only does it create this climate of fear that I talked about earlier, to see that the government can do that to an American citizen. What it really is doing, is designed to do, is to say—what Bradley Manning did was, he discovered documents that he believed showed that the American government around the world was engaged in very heinous acts that people in the U.S. and the rest of the world had a right to see, and so he wanted to expose it. What this treatment is designed to do is to say to future whistleblowers, people who discover that the U.S. government, that people in political and corporate power are engaged in corrupt and illegal acts in secret, it’s saying to them, If you have any ideas about blowing the whistle on what you find or exposing what it is that we’re doing, look over there at what we’ve done to Bradley Manning. Look how we’re getting away with it. Look how nobody cares. Look how no one is defending him. That is what will happen to you. We can do that or anything else to you as well. And it will obviously have a very powerful effect on future would-be whistleblowers, on people who want to undermine the regime of secrecy behind which the nation’s most powerful factions operate. That is what these kinds of attacks on basic liberties accomplish.

One of the misconceptions about the Constitution is that it only applies to U.S. citizens. In fact, you hear politicians all the time, when people have debates over whether an accused terrorist should be given a right to have a trial before they’re thrown into a cage for the rest of their life, say things like, “Why should terrorists”—by which they mean people accused of being terrorists—“why should terrorists have the same rights as American citizens?” If you look at the Constitution, all you have to do to see what a lie that is is to read the Constitution. Because it doesn’t say, for example, in the Fifth Amendment, “No American shall be deprived of life, liberty, or property without due process of law.” It says, “No person…shall be…deprived of life, liberty, or property, without due process of law.”

The reason for that is because the Constitution is not a document, as I discussed at the beginning, that gives rights to specific people. That’s not its purpose. Its purpose is to place limits on what the government is allowed to do. It says, these are powers that the government cannot exercise. So it doesn’t matter to whom they are attempting to apply these tyrannical powers. The Constitution doesn’t make those distinctions. So the Supreme Court has said many, many times that the Constitution applies to two groups of people. One is U.S. citizens, no matter where they’re found in the world. So if you’re in Texas or you’re in Alaska or you’re in Ghana or you’re in Kenya or you’re in Australia, you have the same rights vis-à-vis the government. And then the second group of people, to whom the Constitution applies equally, are people who are on American soil or under the control of the American government, meaning people who are in Guantánamo, as the Supreme Court ruled; meaning people who are in the U.S. legally on tourist visas or work visas and under the authority of the U.S.; and meaning people who are in the U.S. without legal authority. So anybody who is on American soil at any time, regardless of status, enjoys full constitutional protections. That is the key. The Constitution is a document that limits what the federal government can do in all circumstances.

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