10/23/09 – Nat Hentoff – The Scott Horton Show

For Antiwar.com, I'm Scott Horton.
This is Antiwar Radio.
And I'm happy to welcome Matt Hentoff to the show.
He is an authority on the First Amendment and the Bill of Rights.
And I'm sorry, Matt, that I don't have an entire bio pulled up here in front of me.
Did you say Duke Ellington, too?
Oh, yeah, there you go.
World famous jazz critic, right?
Well, jazz critic, yeah.
Or jazz enthusiast, it's better.
Yeah, there you go.
Okay, good.
Well, welcome to the show.
I really appreciate you joining me today.
Oh, sure.
Okay, everybody, so the article is from October 15th.
It's a column distributed by, I'm not sure who, Matt Hentoff.
Is this right?
Obama's unrestrained FBI.
Is this America?
A couple of nice sort of rhetorical questions there.
Is this right and is this America?
Matt, what are you talking about?
I'm talking about what happened in December, the last month of the Bush-Cheney administration, when the then Attorney General Michael Mukasey, whose idea of the Constitution was pretty much like Jake Cheney's, and he and Robert Mueller, the head of the FBI, and Mr. Obama, who has not been very good on civil liberties, to say the least, he has retained Robert Mueller.
So anyway, the two of them, the head of the FBI and the then Attorney General, put in new domestic guidelines for the FBI.
That means how they can go about surveilling us in America.
Now, John Ashcroft had put in guidelines before which were pretty bad, and of course the worst until now was during the reign of J. Edgar Hoover.
I mean, the FBI under J. Edgar Hoover was called COINTELPRO, counterintelligence operation, and they could do whatever they wanted without going to a court or anything, and they infiltrated peace groups, black groups, they went into churches, and pretended to be worshippers to get information.
So I thought, I didn't think, but a lot of people thought that was all over, because there was a great committee called the Church Committee for Frank Church of Idaho, and he exposed all of this, and he said, I pledge to the American people, you're never going to have to deal with this again.
But of course, we are dealing with it.
But what happened now, and it's important to remember that that could have gone out after the Bush-Cheney administration.
These new Mukasey-Muller FBI guidelines, they're still there.
And as a matter of fact, the new Attorney General, Eric Holder, when he was up for confirmation in the Senate, he was asked about them.
And he said, oh, that seems perfectly good to me.
And the President, Obama, has not said a word about them.
What they do is allow the FBI conducting a, quote, threat assessment, unquote, which means anything to do with how they define national security.
They're looking for suspects they can link to terrorist activity of some kind or other.
Now, to do this surveillance, they don't go to a court.
They decide for themselves whom they're going to look at, whom they're going to infiltrate.
So if they choose to do that, let's say not only in a mosque, but let's say there's a peace church that probably is more than one or two.
And so they become a parishioner, and they listen to what people are saying and all that sort of thing.
And along with everything else, they can go on the Internet and tap phones and email and that sort of thing, all without any judicial supervision.
And that's why I asked this rhetorical question, is this America?
This means that the Fourth Amendment, which is already on life support under Bush, Cheney, and now Obama, the Fourth Amendment, forget it.
And that means the First Amendment, too, because it's been clear for years, if people know, not just ordinary people who have no links to terrorism at all, if they know that all kinds of secret surveillance is going on, which could affect them, even though they didn't do anything, if they know that, they're going to be careful what they say.
So the Fourth Amendment intersects with the First Amendment.
Right, absolutely.
It's the whole Panopticon thing, right?
When we know we're all under surveillance, or we all know we could be under surveillance at any given time, so we might as well be under surveillance all the time.
It's going to affect people's decision, maybe whether they would even dare to click on an article called Nat Hentoff something something, because that goes on their permanent file.
That's right.
You know, as somebody said early on in the Bush administration, and it's still the same, when you think about it, we are all suspects.
Because if they can do all of this without any, there's no evidence, there's not even what they call in law an articulable suspicion.
And the interesting thing is, this goes back to what was one of the precipitating causes of the American Revolution.
The British officials, especially the customs officials, they had a rule by which they could go into the colonists' homes and their offices, turn everything upside down.
They didn't go to the king's court in the colonies, they wrote these themselves.
Writs of assistance.
Writs of assistance.
That's where the Fourth Amendment comes from, is rebellion from that.
Well, that's what happened.
Samuel Adams and the Sons of Liberties, they didn't have the internet then, so they started committees of correspondence, and they let people know all around the colonies what was going on here.
And I was talking once to Justice William Brennan, who was quite a civil libertarian, he said, you know, those writs of assistance, and as people knew about them, as you just said, that led directly to why we have a Fourth Amendment.
Well, now, let me slow you down here for a second, because I want to make sure we're very clear here for the audience's sake about what exactly we're talking about with these assessments, these so-called assessments.
And I'm no lawyer, that's the other Scott Horton, heroic human rights lawyer, but I think I understand this correctly, Nat, and you help me out.
But basically, the deal is in the American system ever since the Revolution, that crimes are investigated.
And where the proof leads to an individual who's considered a suspect or worthy of bringing together a grand jury to try to indict him, or whatever, if the evidence leads to a person who committed the crime, then that person is pursued.
And what you're talking about here is not just a change in language and, oh, some guidelines and some assessment, this, that.
This is a complete change, so that now it's a fishing expedition.
People, as in all of us Americans, are under investigation basically around the clock, and whenever they think they can find something to nail us to the wall for, then they'll go ahead and do that.
You've got it.
You see, what finally happened when we got a Fourth Amendment, because of these writs of assistance which are now official under the Obama administration, what happened was the Fourth Amendment is very precise because of what they'd suffered under the British.
Before any law enforcement agency guy, whether it's FBI or anybody else, goes searching or even coming into your place or office to look for something, under the suspicion that you might be linked, in this case, to terrorism, they have to have probable cause to go in.
That's a very high standard.
They have to have real possible evidence that they can show to a judge, and the judge then, under the Fourth Amendment, will give them a right to go in.
This time, forget all that.
They don't have to show reason for surveilling, for infiltrating, for anything like this, without doing anything, but it's like back in the colonies, like the British.
They write their own permission to do whatever they want.
That's why I said they're unrestrained.
And what drives me crazy is, this is so clear, so really awful in terms of the Constitution.
I haven't seen much coverage of this.
There's been some or a little, but you think people, the citizenry and the legal aliens here, and even the illegal aliens have a right to know about this, but I've seen very little in the press or on television or radio or that sort of thing.
I mean, you think the cable people, the ones who are always criticizing government, I haven't heard much about this on them.
Has Glenn Beck said anything about this?
I don't think so.
No, this is more like a Glenn Beck type policy, the kind of thing he would share, at least when Republicans are in power.
Well, you know, this is, I really don't know the answer to your question.
I think it's an important one, and we're kind of exploring more.
It sort of seems to me like maybe the people are just buried under avalanche of police state news.
They know their phones are tapped, that their e-mails are saved forever on some NSA flash drive for the rest of their life.
They know that their local police departments are being armed by the Department of Defense with the most sophisticated military weaponry for use against us.
They see all this happening around them.
They don't know what they can do about it.
And when you have, you know, all of the crimes legalized by the Patriot Act, by the Detainee Treatment Act, which pretended to ban torture but in fact legalized it, and the rest of this stuff, the Military Commissions Act, man, geez, it's hard for an assessment to catch your eye unless, you know, maybe if Nat Hentoff explains to you exactly what this assessment means, it just seems like, how could this be as important as the ten people the local cops murdered in my town last week?
I'll tell you something even more serious than that.
How many people, how many Americans know their rights, know that there are, according to the Constitution, obstacles to, let's say, the FBI doing all of this stuff without any kind of going to a judge?
How many people know anything about the Fourth Amendment?
You ask the first 10,000 Americans you meet, ask them.
I mean, have somebody ask them.
It used to be, I remember when I was a kid, they'd go out on the streets to find out what should be taught in the schools, and they'd ask the passers-by, the way Jay Leno used to, of college students, they'd ask them these questions.
What's the First Amendment about?
What's this Eighth Amendment?
What is this right not to testify?
Most people don't know that.
And because of the No Child Left Behind Act, where they test kids again and test them again for reading and math, civics classes are hardly existing anymore.
And so a government like Bush and Cheney and now Obama can do pretty much what they want.
There's very little indignation except you and me and some others, because most people don't know that their rights are being totally destroyed.
That's true.
You know, it's really ironic, too.
I remember reading, well, of course, Thomas Jefferson got better and better as he got older and older.
And in some of his letters back and forth with John Adams, he's arguing for kind of a natural aristocracy, which I think he wasn't saying there ought to be elitism and rule from the top down, but he was really emphasizing that two nobodies can have a child that is brilliant and has the good kind of leadership qualities and things like that and ought to have a chance, anybody ought to have a decent chance at a real education.
And the way Jefferson defined it was, first and foremost, they must learn about their own liberties.
They must learn what freedom really is and how to protect it.
That's the school's mission number one.
And then, you know, the rest of it follows from there, supposedly.
That was the dream back then.
And also what Jefferson emphasized more than once, he said the whole basis of this government is that people are in charge of their own liberties.
But, as Madison and Jefferson also kept saying, that they have to know what those liberties are to be in charge of them.
And you're right about the schools.
I mean, there are a few people trying very hard to get the Constitution into the schools.
I'll tell you something.
I was once doing a profile of Justice William Brennan, who was very good on this stuff, and he said to me, how do we get the words of the Bill of Rights off the pages and into students' lives?
As you say, that ought to be the number one goal, aside from knowing how to read, let's say.
But that is forgotten in practically all schools.
Well, you know, it's funny.
It seems like people would just rebel just from that fact.
They're like, hey, wait a minute.
I know that there is a Bill of Rights.
I know it's important to me.
How come they don't tell me what's in it?
Maybe I should go and spend, I don't know, 11 minutes in a row studying the thing, and then I'll understand it, you know?
It's so hard about that.
Well, if people even knew what a Bill of Rights was, it's very easy these days.
You Google it.
Right, I mean, the excuse...
And you'd find out a lot about American history that you'd never been taught in school.
Yeah, that's true.
And, you know, that's the whole thing, too, is I don't want to be too hard on people.
But ultimately, you know, we're talking about adults, as George Carlin would say.
Many of them partially educated.
You know, there's no...
The responsibility belongs to the population of this country to be jealous of our own liberty.
If we're not, I mean, it's unfortunate that your and my liberty ends up being given away by our neighbors, and we don't have much of a say in it.
But, you know, I guess that just means we have even more of a responsibility to try to educate our neighbors into what's so important about being free in the first place.
Well, look what's going on now under Obama.
There's a new secretary of education, Arne Duncan.
He has almost $5 billion.
It's called the race to the top.
And he can take that money and put it into schools and school systems to get people better off in reading and math and competing with other school systems around the world.
I haven't seen one word about learning, teaching, and learning who we are as Americans and why we are there and what it takes to protect what the president always talks about and what Bush always talked about.
We have to protect our values.
Our values is based on self-government.
Right.
Well, and, you know, the whole idea of the system has turned upside down at this point.
If you go back to the founding generation, at least, you know, the way it's described in the Declaration of Independence and all that, it's really pretty simple to understand.
People exist.
They're born free.
They own their own lives.
They own their own destinies.
They allow governments to exist for the express purpose of protecting those natural rights.
And when they don't like their government anymore, it belongs to them.
It's a temporary contract, and the people can repeal that contract at any time and create a new government to suit their wishes and better protect their security and what have you like that.
All liberty has got to be protected from the bottom up rather than from the top down.
If we leave everything up to Eric Holder to protect our rights from, say, even the local cops or the state police, then what ends up happening is he's the master of all of our rights.
Not only he, but the guy in the White House, too, whoever that is.
It always bothers me when I see, like, a cop will kill somebody, which happens all the time in a local jurisdiction, and the people, sometimes at least, will get angry about this.
Hey, you can't just break into the house, wrong address, no warrant, kill an innocent man in his bed, and then everybody protests to the Justice Department.
And they say, oh, Janet Reno or Alberto Gonzalez, come and protect us from our local police, when if they spent that same amount of energy taking on the local district attorney and trying to replace him with someone who will put a cop in prison for doing, for violating people's rights, then they could probably win, even, you know?
Well, that's the whole business now about who's going to be accountable for all, and I use this term literally, all the war crimes we've committed in terms of the torture policy of the last administration, which is continuing in part under the Obama administration.
You know, one of his first acts in office was, no more torture.
Then how come the CIA is still engaged in renditions?
Renditions are when you have a suspect who might have been involved in terrorism, you send them to another country to be interrogated.
Why would they do that?
Except in the other country that's known for torture, they do the dirty work.
And, of course, this is something that the Cheney people used to say, and the Obama administration says the same thing now, oh, if we send somebody to another country, we get guarantees that they won't be tortured.
Is somebody from the State Department going to be in the cell while it's going on?
Right, and I mean, come on, why is Hosni Mubarak the dictator of Egypt in the first place?
It's so that he can torture people for us.
I mean, come on, we all know that.
Also on the torture thing is you have this investigation, sort of a preliminary investigation into torture, and I thought this was so humorous, Nat, just the other day on Hardball, Chris Matthews was just giving this guy the hardest time in the world for coming up with this group Oath Keepers, which is trying to get cops and military people to be more aware about their oath to the Constitution and what it means and that kind of thing.
And Chris Matthews just kept trying to turn it into you're forming a militia to overthrow the government and all this, which had nothing to do with it.
He was simply saying, you know, look, we just want to educate the government's armed agents as to what the real law really is.
I'd like to know more about that Oath Keepers thing.
That makes some sense.
It shows that Chris Matthews is educationally disadvantaged.
I'm really surprised.
That's pretty dumb of him.
Yeah, well, yeah, and he just completely took them on.
He had a guy from the Southern Poverty Law Center there to try to imply that they're all a bunch of Klansmen and all this kind of stuff.
Yeah, yeah.
But on the torture thing, I thought it was interesting that Chris Matthews, one of the things that he was beating this guy over the head with was that, oh, come on, you know, just following orders, everyone in our society knows that that's not a good enough excuse.
Every cop and every soldier knows that he's not supposed to follow an unconstitutional or illegal order.
We all know that ever since the Nuremberg trials at the end of World War II.
So you don't need to teach them that.
You're trying to form a militia, blah, blah, blah, like that.
And I just, you know, the poor guy didn't have all his ammunition together, but he could have pointed out that right now this preliminary investigation into the Cheney-Bush torture regime has already been narrowed to people who went beyond the Office of Legal Counsel memos describing how much torture you can do.
As long as you were just following orders, you are immune is the basic premise of the current torture war crimes investigation.
And that's because, and I got this on good authority, Eric Holder, when he finally decided to release the CIA Inspector General's 2004 report, which made very clear what tortures were being inflicted, Holder read it one night, and he got sick.
He was really upset.
I think he wanted to go much farther than this non-criminal, very mild, lower-case investigation, but obviously the boss upstairs decided, if you're going to do this, and you know Obama keeps saying, we want to look forward and not back, this, as you say, this is a nothing investigation.
Well, and it goes right back to our original topic here about it's not supposed to be about people, it's supposed to be about crimes.
And if there's a crime, a prosecutor is supposed to solve it and punish the responsible person if he sincerely believes he can get a conviction at trial.
He's supposed to take it to trial.
It's not his discretion.
By the way, I've got to split pretty soon because I've got a deadline.
I know, I've got to split too, I was going to say.
But I really appreciate your time on the show today.
I'm so glad you're there.
At least some people will learn something about their rights.
Yeah, well, we'll keep chugging along and I hope we can have you back as further developments about this kind of thing come forward there.
Anytime.
All right, everybody.
Thank you very much, Nat.
Everybody, that's Nat Hentoff, renowned civil libertarian and jazz aficionado, as the title goes.
Man, there just ain't enough time in the day, is there?