06/23/08 – Glenn Greenwald – The Scott Horton Show

All right, my friends, welcome back to Anti-War Radio Chaos 92.7 FM in Austin, Texas.
And now joining me on the line is the great blogger Glenn Greenwald.
You can read what he writes at salon.com slash opinion slash Greenwald.
And he's the author of the books How Would a Patriot Act, A Tragic Legacy, and the new one is Great American Hypocrites.
Welcome back to the show, Glenn.
Great to be back, Scott.
Thanks.
Yeah, it's good to have you here.
And I got to congratulate you on just the incredible work that you've been doing on the blog lately here going after these Democrats in the Congress for selling us out on immunity for the telecoms.
Well, and beyond that, let's get to the specifics of the bill beyond the immunity for the telecoms, which I think we can address in a minute specifically.
What does this bill do in terms of revising the FISA statute?
Well, one of the key limitations on the government's ability to eavesdrop under the old FISA, meaning the FISA that has been in place since 1978, is that the government could not tap into the telephone network or other communication devices inside of the United States without going in and getting a FISA warrant.
So it couldn't tap into the AT&T room or into servers, computer servers that carry our emails or things like that.
What this bill does is it completely eliminates that restriction.
So the government is now able not only to tap into telecommunication equipment inside the United States in order to look for specific individuals' communications, it's actually able to tap into the physical infrastructure, the fiber optic cables and servers and the like, doing a vacuum cleaner search, looking for any sort of communication at all, provided that the person who's being targeted is reasonably believed to be outside the United States and that the purpose of the surveillance is foreign intelligence.
So the sum and substance is that there's no judicial oversight for that process.
It's the executive branch on its own that makes those decisions.
They don't have to prove or even allege that the person that they're surveilling outside the United States that they're targeting has any connection to terrorism at all.
There's actually no requirement at all other than that it be for the purposes of foreign intelligence, which is very broad.
And so it really enables this massive expansion of warrantless eavesdropping for the international telephone calls and email exchanges of Americans inside the United States when communicating internationally.
Now, you linked actually in your entry today to this analysis at Balkanization, Jack Balkan's blog, and he talks about that reasonably believed to be outside the U.S.
And that sounds familiar to me.
That's officially a notch or two notches below probable cause, right?
Right.
I mean, you're already talking about eliminating an important part of the probable cause standard, which is you don't need to even think that the person has done anything wrong.
You don't need to think that they're an agent of a foreign government or a foreign power or a terrorist organization.
All you need to think about that person is that they're outside of the United States and you don't even need probable cause that they're outside the United States.
Like you said, all you need is reasonable suspicion that they're outside of the United States or reasonable grounds to believe they're outside the United States.
And then you can target them and tap into the American phone network or email server network and monitor all of their communications.
Yeah.
And, you know, Balkan says in there, whoever was writing there at Balkanization wrote that, you know, the focus on the removal from the courts, the ability to review these things is actually no big deal because the statute is written so broadly that any court reviewing any of this would have to just give it a rubber stamp anyway.
Well, that's right.
I mean, the key under FISA is that in order to be able to target someone, you needed to have probable cause to believe that they were an agent of a foreign power that they were actually working for or in connection with, working in connection with a foreign government or a terrorist organization.
That requirement has been completely eliminated.
So all you need to think about them is that they're outside the United States and then prove that you're doing it for purposes of foreign intelligence.
But because that is such a broad standard, I mean, anything that you say you're doing in order to protect the country, you can say is for purposes of foreign intelligence, as you just suggested, then it would be easy to go to a court under any circumstance, anyone you wanted to target, and say that it fits within the parameters of the statute.
So it's almost true that whether there's judicial review is secondary to just how broad these standards are for when it's now permissible to eavesdrop.
And now you point...
But let me just add to that, which is, you know, the FISA court, of course, it was extremely easy to get warrants into the FISA court.
They were successful in almost every single instance, and all 28,000 times when they asked, in every case except a small handful, three or four, they were told that they could, that their warrant was approved.
So it was very easy under the FISA court, too.
There's still a benefit to judicial review, though, even when it's a rubber stamp, which is that you're forcing the executive in advance to tell another body outside of the purview of the executive branch on whom they intend to spy.
And the theory, anyway, is that that will reduce the capacity for abuse when you have to disclose ahead of time who you're targeting.
And that form of check and limitation is abolished by this bill.
All right.
Now, and then there's the immunity for the telecoms.
And this says that the telecoms who conspired with the Bush administration to break the law have retroactive immunity, which I guess the real meat of this means that somebody like James Bamford or somebody who would have, you know, a very credible reason to believe that they would be one of the people spied on have no standing to sue anymore, which means no discovery, which means no accountability for what they've done in the past.
Right.
Nobody has standing to sue.
The telecoms get full and absolute immunity at the end of this bill for the spying that they enable.
And keep in mind that, you know, what's so important here is that it isn't just that the government is prohibited from spying on Americans without warrants under FISA.
There are specific statutes that have been enacted by the Congress specifically to prohibit telecommunications companies from sharing customer data and enabling access to the communication with customers with the government without warrants as well.
I mean, those are specifically directed to the telecoms.
And those are the laws that the telecoms broke for years by allowing access to their customers' communications without warrants required by law.
So it's the telecoms themselves that directly broke these laws.
They're being sued by their customers, people who have an expectation that they will comply with those laws when you sign up for them and you talk on over the wires controlled by Verizon or Sprint or AT&T.
And what this bill does is say that as long as they, as long as the attorney general goes into court and certifies to a few different facts that we already know in advance he's going to certify to, the court doesn't examine whether those claims are true.
The court doesn't ask for evidence proving that they're true.
The mere fact that the attorney general makes these statements in court in secret compels the court to dismiss all of the lawsuits against the telecoms permanently.
And as you say, that means we'll never find out what the telecoms did, we'll never find out what the Bush administration did, and we won't get a judicial ruling as to whether any of this was illegal.
So even the judge is not allowed to see the evidence?
Right.
The judge, the judge is allowed to see a little bit of evidence.
For example, the attorney general has to say in a statement, the president gave written requests to the telecoms in order to do this spying and the president told the telecoms that doing this was illegal.
So the judge is allowed, we're not allowed to see it, but the judge is allowed to see the underlying written directives from the president to the telecoms that said these things.
But the judge isn't allowed to know whether the spying was really done to stop terrorism or to spy on political opponents.
The judge isn't allowed to know the extent of the spying, on whom the spying took place, the way in which they were selected, what was done with the information.
The judge is required blindly to rely on the certification of the attorney general and the president's statement that they did this in order to deter terrorist attacks.
And now something else, I forget if this was brought up on your blog or over at Balkanization was the turning over of intelligence information to domestic police agencies as a way for the FBI to, for example it seems like, get around the Fourth Amendment and still be able to prosecute you.
Well, I mean, just in general, there has been a separation between foreign intelligence gathering and turning over information to the FBI for exactly that reason, that because information gathered by the NSA was so much more easily obtained than what the FBI was allowed to do, because the formula was for foreign intelligence and the FBI is for law enforcement.
There had been this separation between what the NSA could find and what they could tell the FBI.
That separation has been almost eroded completely in the aftermath of 9-11, so that now the NSA is more or less free to pass on to the CIA or to the FBI or domestic intelligence law enforcement agencies information that they obtained.
So the more information that you allow the NSA to obtain without warrants, the more the FBI will learn of it, and just standard federal prosecutors will learn about it, and the more that evidence can be used in the prosecution of just standard crimes.
And so it goes far beyond just an invasion of privacy of Americans to have privacy in our communications.
It also goes to the core of the Fourth Amendment, which is prohibiting the government from gathering information without probable cause to then use against citizens for prosecution.
You know, a big part of this, too, is establishing the precedent, really, that the president can do whatever he wants in the Congress, no matter who's the president or who's the Congress, they'll simply rubber stamp this, because as I know you've explained repeatedly, FISA already breaks the Fourth Amendment to little bitty pieces.
I mean, they can tap phones for three days and then tell the judge, hey, by the way.
And even, as you pointed out in your speech at the Future Freedom Foundation, the FISA court is hardly a court at all.
It's a Article II court inside the Justice Department building.
It's like a grand jury setup where there's no defense lawyers present, anything like that.
So if there were any real revisions that needed to be made for technology, such as a guy in Pakistan calls Afghanistan, but the call is somehow rooted through the United States or something like that, we're talking about cosmetic adjustments that anyone could even argue needed to be made to FISA.
It was already so broad.
Right.
The most disturbing aspect of what the Democrats have done here is that they basically embraced all of the fundamental premises of the Bush lawlessness and radicalism of the last seven years.
I mean, there was a scandal that arose because Bush got caught breaking the law by engaging in warrantless surveillance.
And the Democrats' response to that was to legalize what he did and then cut off all avenues for investigation.
And there was this underlying premise, still further underlying, that because of the unique threats posed by Islamic radicals, that all of the protections and safeguards and constitutional liberties that we as Americans enjoy need to be dismantled and diminished and in large cases abolished.
And so the Democrats embraced that premise by taking what you say correctly was already an exceptionally pro-executive, pro-government instrument in the FISA court and basically destroying the entire framework in the name of keeping safe from terrorism and now allowing the kind of vast warrantless eavesdropping that the Fourth Amendment was designed to prohibit.
And so, you know, really what it did was it embraced this idea that Bush had the right to break the law because the Democrats are saying, we're not going to impose any consequences, we're going to protect you from consequences, we're going to legalize what you did.
And it's further saying that Islamic terrorism is so vast and such a scary and unprecedented threat that the only way that we can keep ourselves safe is if we give up our core constitutional liberties.
And those premises have, you know, traveled very quickly from being secret Bush administration policies to the bipartisan consensus of our political class.
That's really more than anything what this bill represents.
All right.
Now, please let me give you just one or two more minutes, Glenn.
Sure, sure.
I want to ask you about, it was really a major theme of your speech at the Future Freedom Foundation conference a few weeks back.
And it's something that you've just been kicking ass in practice on your blog here.
And that is the political realignment.
That is, as the conservative Democrats and the liberal Republicans, the extremists in the so-called moderate center come together to destroy our Bill of Rights, the libertarian center on the other side, between the best of the left and the best of the right and the real libertarians are coming together in order to stop this thing.
And you're at the forefront of this.
So if you can just address, maybe in the ideological sense, the realignment a little bit, and then the nuts and bolts of this campaign that you've put together with these broad and disparate forces to oppose this measure in the United States Congress.
Yeah, you know, I think it's, you know, really interesting.
One of the things that prompted me to really pursue this as vigorously as I have, and this has been a theme of mine for quite some time, but, you know, there's an interesting political uproar taking place in Great Britain, where the government, the labor government, the left-wing labor government, is demanding the power to detain people for 42 days, for essentially six weeks, rather than for four weeks, which is already an amazing amount of time, without even bothering to charge them with any crime.
You know, in Britain, the government can show up at your house, arrest you, doesn't have to give you a single reason why they're arresting you, doesn't have to charge you with a crime, and can stick you in a cage for four weeks, and the left-wing labor government wants to increase that to six weeks.
And this is, you know, the four-week detention power was something that was inactive in the wake of the July 7th subway attack there, and the government then exploited the fear, the labor government exploited that fear, and got these powers.
Now they want to ratchet it up to six weeks.
And there's a lot of opposition to this effort that's coming from the left-wing of the Labor Party, opposed to increasing detention power, government power, and to the right-wing of the Tory party, the libertarian-leading faction within the right-wing Conservative Party, Margaret Thatcher's party, John Mader's party.
And there's a leading member of Parliament who's a member of the right-wing Tory party that has resigned his seat in protest, and said that he's going to run for re-election exclusively on the grounds of opposing excesses of the surveillance state, the cameras on every corner, the ability of the government to spy on people with no oversight.
And while the party establishment, both the left and right party establishment, support these government power increases, people who are opposed to the establishment of both the left and the right have banded together behind his campaign, and is really causing a major public debate over there for the first time over the government's sprawling surveillance powers.
And I think that that alliance, that coalition, is exactly the coalition that has sort of been emerging in the United States as well, where you have factions within the Democratic Party that have been most vocal about opposing the Bush excesses, and factions within the libertarian element, the Republican Party and without, who have been vigorously opposing these as well, who ought to come together, and I think are now coming together, in order to oppose this sort of Democratic-Republican joint effort to destroy civil liberties and constitutional rights and the rule of law, and create this sprawling, lawless surveillance state.
And the campaign that we're doing, we're working with the people who are behind the Ron Paul money bombs, and other libertarians, and liberals as well, to target the people who are responsible for this FISA bill, and remove them from power, with this sort of goal of a longer-term coalition to protect civil liberties from this bipartisan onslaught.
Well, and you know, you have an entry there on your blog at Salon.com, again, it's Salon.com slash opinion slash Greenwald, and this is sort of lamenting some of your friends on the left all of a sudden have decided that the FISA bill ain't so bad, since Barack Obama's decided he's for it.
And I just wanted to let you know, Glenn, it's going to be rough watching your allies in favor of the Bill of Rights defect in favor of power.
It happened to me, I had allies on the right in the 1990s who turned out to be a bunch of red-state fascists, or if they stayed anti-government, they became a bunch of Jew-hating 9-11 goofballs.
And you're going to have the same problem here on the left, as your allies defect in favor of their candidate.
Well, you know, ultimately at the end of the day, my allies are people who believe in the Constitution and core civil liberties, and I think that remains to be seen.
And I think there were a lot of liberal bloggers, for example, who have been extremely supportive of Obama, who became very critical of him when he announced that he was going to support this FISA bill.
And even MoveOn.org, which has probably been the leading pro-Obama instrument throughout the primary, is reasonably angry at Obama for having done this and leading a campaign to demand that he lead a filibuster and the like.
At the same time, there's a large segment of the left who have been railing against the Bush shredding of the Constitution and attacking even Democrats, conservative Democrats like Jay Rockefeller and Steny Hoyer, for enabling the Bush administration and being complicit.
And you're right.
The minute that Obama came out and announced that he was going to support this bill, suddenly they found all kinds of excuses why this bill isn't so bad after all, why it might actually be a good thing.
And most disturbingly, how I saw a lot of the sentiment that, well, if Obama's president, we don't need to worry about abuses of power because he's a good person and doesn't intend to abuse his power.
And it's that kind of blind faith and blind trust being vested in the leader that I think has led to all the excesses and authoritarian abuses of the Bush era that you see now popping up around Obama as well.
But I really think that large parts of the left have become quite cynical and skeptical, helpfully so, of trusting government leaders as a result of the last seven years.
And I think and I hope that that will endure no matter who the president is and my allies are the people in whom that skepticism will endure, regardless of the political party that controls the White House.
Right.
And that's how it always is as the parties switch back and forth, who has the power.
The people who really care about liberty, we all get shaken out and we're becoming this new realignment.
Yeah.
You know, we'll see how it plays out.
I mean, I think that, you know, Barack Obama has some instincts that are good instincts.
I mean, he has a background in constitutional law.
He seems very conversant in the underlying values of it, seems, you know, authentic and passionate when he talks about them at times.
You know, at the same time, he's been showing lots of attributes that are those of the conventional politician.
And the hallmark of a conventional politician is that they crave political power and never believe that they can have too much of it because they believe that they're good and there's no danger in increasing their own power.
And so I think those instincts are going to conflict in him.
And, you know, it remains to be seen how how they play out at the end of the day.
You know, the one theme that is common to all of the founders is that we don't trust in any man, any one man or any group of men with with unchecked power, that the assumption ought to be that they're going to abuse it.
And the only real viable option is to make sure that there are real checks and limits on their power, not checks and limits by trusting in the promises they make, but in enforcing the constitutional limitations that as a country we've all agreed to.
And that's just as important, no matter who the president is or what party he belongs to.
Here, here.
All right, everybody, you can read stuff just like that at Salon dot com slash opinions slash Greenwald.
The title of your book is Great American Hypocrites.
It's obviously about the conservative movement.
Right.
All right.
Thank you very much for coming on the show and for all the work that you do on the blog there, Glenn.
It's incredible stuff.
And I really appreciate it.
Thanks.