07/30/09 – Antiwar Radio, Glenn Greenwald – The Scott Horton Show

Alright, I've never been to Brazil, but I hear that traffic there is a nightmare, like they have lines everywhere, but nobody goes by them.
Sometimes people get stuck in traffic.
Is that true, Glenn?
It is true.
It's Glenn Greenwald, everybody, author of How to Patriot Act and Great American Hypocrites, blogger at Salon.com slash opinion slash Greenwald.
My parents went to Brazil, I guess, a long time ago to visit a friend down there, and they said that it's an absolute nightmare, that there's stop signs and lines everywhere, lanes and so forth, but it's an absolute free-for-all, but not in a natural order good way, but more of a complete traffic jam kind of way.
Well, actually, I lived in New York for a lot of years before here, and I think the traffic there, and in fact in Washington, is worse.
It's just to the untrained eye, what looks to them like an orderly system looks like a bunch of maniacs on the road, and there's a storm here, that's why there's so much traffic.
But here I am.
Alright, well, I'm glad you could join us today.
I've got a lot of questions for you.
Let's talk about the Constitution.
Is the Constitution the law?
And I don't mean to just be facetious or whatever, but I mean, really, they've had this doctrine for so long now, that it's a living Constitution, and the Tenth Amendment isn't really there, never really has been, and the Commerce Clause means they can do pretty much whatever they want, and clearly they can have a war against Somalia and not even tell anybody, much less ask anybody if they can, and don't we just have a Constitution that creates a government, but no longer binds it in any fashion whatsoever?
I think it's pretty clear that people who are in political power don't consider the Constitution to be genuinely binding in any way that matters, and I don't think that the people who are supposed to be the watchdogs over the people in power, namely principally the media, even have any idea what the Constitution says or what it is intended to do, and therefore there's no sense at all that they ought to run by it either.
In fact, I actually just wrote something today about this topic because, as you know, I write a lot about constitutional transgressions and about the core constitutional guarantees that the founders had intended would be abided by no matter what, and there was an article in the New York Review of Books by Michael Massing, who looked at various blogs and online journalism, and what he said was that, although my blog is, the things that I write are interesting and informative, well, research, and often very persuasive, that I'm quote-unquote oblivious to the practical considerations that policymakers face, and I think that's very much the sentiment that it's nice to abide by constitutional guarantees, what they would consider suggestions, when it's convenient to do so, when it's easy to do so in sort of standard cases, but that those things need to be waived whenever practicalities require it, and I think that's very much at the prevailing attitude.
Well, it's really an amazing one.
I mean, obviously, I'm a libertarian ideologue, and I refuse to, you know, allow government to get away with anything, and so, you know, I'm not necessarily the best one to make the case, but I remember as a little kid learning that this was just the basic definition of what it meant to live in America, as opposed to, say, for example, the USSR.
You know, that there was a law that the president was merely a citizen, just like the rest of us.
He's not the lord over us.
He's just the guy in charge of enforcing the law.
That's it.
Well, of course, if you look at what the Constitution says about the presidency, it's extremely limited, and in fact, the one really strong provision regarding the president's powers is that he shall take care to faithfully execute the laws, and Article I says that all legislative power, meaning the ability to make the laws, resides in the Congress, which was the idea that only the American people could make laws through their Congress, and the president was essentially there to execute the laws and enforce them, and we, of course, completely turned that around on its head, but now everybody talks about the president like he's essentially the centralized dictator, the tyrant, the person who, in whom we place all of our faith and wields all the power, and that's accurate.
That is what he has become, and that couldn't be more contrary to the most...
I mean, you don't even need to be...
Not only do you need to be a constitutional expert to know that, you don't even need a really working knowledge about the Constitution, you just need a passing familiarity with American history to know, it's natural, that what the Founders feared most was a single centralized figure or two who would wield unlimited power and reside above the law.
That was what they had waged a revolution in order to get away from.
So the last thing they wanted to do was recreate that, and they didn't.
They did everything possible to safeguard it against its re-emergence, and yet, obviously, that wasn't enough.
Well, now you often mock, I think it's Joe Klein at Time Magazine, for characterizing you and people who see the Bill of Rights the way you do, as somehow really enforceable law, or ought to be anyway, as a civil liberties extremist, and yet, that really is kind of true, isn't it?
That regardless of where you fall on regular issues, and best I can tell, even though you usually keep your subject matter pretty tight, you're a pretty moderate middle-of-the-road kind of guy on a lot of policy issues.
It's just this Bill of Rights thing where you have this carved-in-stone thing going on.
But it makes you an extremist, doesn't it?
Because a lot of people, I guess, seem to think we need a homeland security and we need to let our politicians torture people if necessary, and certainly we shouldn't prosecute them for it.
You are an extremist on these issues, aren't you?
Yeah, I don't think you can believe in the Constitution without being an extremist, because the Constitution is an extremist document.
It's extremist both in terms of how it's written.
I mean, if you look at the language, you know, a lot of the provisions tend to be very absolute.
It says things like, Congress shall make no law abridging free speech or freedom of the press, and no person shall be deprived of life, liberty, or property without due process of law and treaties, and acts under the authority of the United States shall be the supreme law of the land.
So the language itself is very absolutist and extremist.
But beyond that, the whole concept of what the Constitution is, is itself an absolutist idea, because the concept is that most political debates will be subject to political compromise, sort of competing factions trading with one another in order to reach a majoritarian agreement, sort of the vicissitudes of day-to-day political conflicts.
Most issues, most policies will be determined by those kinds of processes.
And then there were certain processes, certain issues that were placed beyond the political calculus of the day or majoritarian desires or pragmatic considerations.
And those are the things that were enshrined in the Constitution as guarantees that no law, no act of government could ever violate, no matter how many people were in favor of doing it, no matter how practical the violations might be.
And so really what the Constitution says is these are things that you cannot do, no matter how convenient it might be, no matter how many people want to do it.
Anything that betrays or breaches these commitments are anomalies, are invalid.
And so it isn't that these are just aspirations or values that it would be nice to try and fulfill if the conditions are right.
That would make it subject to practical considerations.
It was an absolutist document that said these are things that can never be done unless you want to amend the Constitution.
And so to believe in it would necessarily make you a civil liberties extremist or a constitutional extremist because there is no way to believe in that document without being extremist.
So really, no matter how far it is in people's imaginations, the idea that you would really have criminal trials for the cabinet of the last administration and their lawyers for instituting a regime of war crimes, that's the way it's supposed to be.
And anything short of that is a failure to live up to the, not just the spirit, but clearly the language of the Constitution that the president must enforce the law.
And if the previous president is a criminal, there's no exception for that.
Right.
Well, I would say that in general, all prosecutions are subject to prosecutorial discretion.
So there are criminals that commit crimes who nonetheless aren't prosecuted by the Justice Department for any number of reasons.
Maybe they're just too old and precepts of justice call for some leniency.
Maybe in a society where there's finite resources, prosecutors have to make decisions about what crimes are worth pursuing and which ones aren't worth pursuing.
So prostitution crimes or drug crimes, whether they should be or shouldn't be crimes, I think you and I agree that they shouldn't be, and they nonetheless are.
Nonetheless, prosecutors all the time make decisions about not prosecuting those.
If there's problems with the evidence and prosecutors think they may not win, even though they're convinced that somebody committed a crime, they may decide not to prosecute.
Those are all completely legitimate instances of prosecutorial discretion.
What is illegitimate is for there to be this policy announced by the president of us, not even the attorney general, that certain people simply won't be prosecuted, not as a matter of prosecutorial discretion, but as a matter of political convenience, because they're too powerful, because they'll undermine his political agenda.
And then beyond that, beyond the violation of the spirit of equality under the law that that kind of act engenders, there is a specific law that one can argue is being violated when there's no prosecution, which is, as I said earlier, the Constitution in Article VI says that all treaties effectuated by the authority of the United States are, quote, the supreme law of the land.
Whether you like treaties or not, that's what the Constitution says.
And in 1988, Ronald Reagan signed the Convention Against Torture, and the Senate in 1994 ratified it.
And what that says is that any signatory country who has within its borders torturers, people who torture detainees, shall either prosecute those torturers or extradite them to other countries for prosecution.
And it makes it non-optional.
And in fact, when Ronald Reagan signed that treaty and then transmitted it to the Senate, he emphasized that very provision.
He said all states no longer have the option to give amnesty to torturers.
This is how serious we are about creating a worldwide regime free of torture.
Torturers shall be prosecuted.
And so I think when Obama stands up and says, you know, we should look forward and not backwards, it's just inherently improper for the President to be telling the Attorney General who should and should not be prosecuted.
But beyond that, I think it is a violation of the strict letter of the law that the Constitution enshrines as the supreme law of the land.
Well, and it's been announced, at least in trial balloon format, I guess, that the Attorney General is considering a prosecutor for the explicit purpose of going after people who, I guess by definition, are lower on the chain of command than the lawyers and the cabinet officials who conspired with them to create this torture regime.
That's right.
That's what the reports strongly suggest.
And they seem to be close allies of Eric Holder.
So I think they're fairly reliable, though they're all anonymous sources.
But essentially, the true controversy that arose over the torture regime that the United States implemented under the Bush administration came about because Dick Cheney and David Addington and others in the executive branch wanted to authorize tactics, techniques that have been for decades, not only deemed to be criminal or criminal war crimes and torture, but prosecuted as such, including by the United States.
And so essentially, what he did was found a low-level ideologue in the Justice Department, John Yoo, who basically had a view of the presidency, that especially during times of threats to national security, the president is literally unconstrained by anything, acts of Congress, even the Bill of Rights, he said, and is free to do anything.
So that, of course, when they said to him, can we do this and can we waterboard and can we deprive people of sleep and put them in freezing cells and pour cold water on them and put them into coffins and the like?
Of course, since he's someone who thought that everything is permissible, he said that those things were permissible and he signed a memo saying that that was the case.
Now, the law is not what John Yoo says in a memo, he thinks it is.
The law is what the Constitution provides and what Congress enacts and what treaties provide.
And those things leave no doubt that those tactics are criminal, notwithstanding how many memos John Yoo writes.
But the argument is being made and it seems Eric Holder is ready to accept that once someone in the Justice Department says that X is illegal, it's then unfair to prosecute the president or his aides for doing X, even if, as was the case here, there are laws that say that X is a felony or X is a war crime.
All you need, apparently, is a permission slip from a low-level functionary in the Justice Department saying that X is something you're permitted to do and you have immunity from doing it, which, of course, would eviscerate the rule of law since presidents can always find someone in the low-level bowels of the Justice Department to authorize whatever it is they want to do.
So now Eric Holder, in order to placate people like you and people like me who are saying, wait a minute, how can we have this systematic criminal regime and no prosecutions when we're the biggest, most aggressive jailer state in the world when it comes to ordinary Americans?
Now he's trying to say, well, I am going to actually prosecute because my conscience is so bothered and I read these torture reports and I get sickened and I am going to commence a criminal investigation because nobody's above the law.
But what he's really only going to do is he's going to treat those John Yoo memos as the baseline for what is illegal, which means that anybody who acted pursuant to those memos, the Justice Department lawyers who authorized torture, the high-level White House officials who implemented a torture regime, will be considered immunized because they obeyed the laws.
And the only people who he's really considering investigating are sort of individual interrogators who were extra sadistic and went even beyond what the torture memos that John Yoo wrote allowed.
Maybe they used more water in the waterboarding technique than those memos authorized or put the thermostat lower than what the hypothermia permission set from John Yoo said you could do.
It's really basically just a repeat of what happened in Abu Ghraib where the President's and Don Rumsfeld's torture regime led to those extreme abuses and to show the world that we were serious about condemning this, we prosecuted some low-level grunts who were doing what they were told.
That's essentially what Eric Holder is intending to repeat when he commences investigations of the CIA interrogation program.
Well, and Obama has really done nothing.
Has he to repeal the doctrine in the Military Commissions Act that it's up to anybody but him to outlaw torture?
I mean, I believe even in the language he used when he made his big announcement that he had banned it for interrogation purposes, he said, I have decided to ban this just by executive order as within the Military Commissions Act, right?
But that Military Commissions Act still stands and it still gives him the authority to decide what's torture, what's not, and whether to use it or not.
Well, the big lie of the Democratic Party is finally being exposed because forever their excuses during the Bush regime when they did things like when the things like the Military Commissions passed and the AIRMAC war authorization and the continuous funding of these things and the Protect America Act, their excuse always was, well, we don't have majorities in the Congress and we don't control the White House, so what can we do?
And then after 2006, they got control of the Congress and then their excuse was, well, there's nothing we can do because anything we do, George Bush is going to veto and we can't just bring the country to a standstill and we don't control the White House.
And then once they controlled the White House, the excuse was, well, there's nothing we can do because the Republicans can filibuster any bill they want because we don't have 60 votes in the Senate.
And so the goalposts kept moving and moving and moving for their excuse.
Well, now they have control of the White House.
They have almost a 40 seat margin in the House and they have 60 votes in the Senate.
60 Democratic senators are now seated in the United States Senate and they're out of excuses and yet none of the things that they always said they wished they could do but couldn't do for all those reasons are being done or will be done.
You just look at what happened with the health care debate.
Just leave aside for the moment what you think about health care.
If there's been any Democratic consensus, domestic policy wise, for the last 20 years it's been that there needs to be, probably most Democrats would say, single payer health care.
But at the very least, a public option so that there's competition with the insurance companies and they can't please the public.
And the excuse always was, well, we don't have control over the government and finally they have it and they're still not going to get it because the reality is that for public Democrats it's just like Republicans are controlled by the same narrow special interests and it doesn't much matter which party is in power.
And you see that obviously in the national security front too.
The Military Commissions Act is never going to be repealed.
The Protect America Act is not going to be repealed.
The Five Amendments Act that Obama claimed to oppose is not going to be repealed.
The Patriot Act is going to be renewed with virtually unchanged provisions.
And so all these excuses that they were feeding their voters for the longest time have just proven to be a lie.
Well, and you make reference on your blog to what Robert Higgs in his book Crisis and Leviathan calls the ratchet effect where after each crisis, just like James Madison explained, the principal author of the Constitution, explained with each crisis the government will grow in power and the warfare state will entrench itself further and further.
And then after the crisis has abated, some of the power might be repealed.
Some of the war powers might go back.
Andrew Johnson wasn't as powerful as Abraham Lincoln, right?
And Truman had I guess a bit less authority than FDR.
But at the end of each giant increase in power, it never goes back to the way it was before.
And so Ike Eisenhower, as you point out on your blog, I think quoting someone else, basically just ratified all of the revolutionary changes that FDR and Truman had brought to the federal government constitution of the United States notwithstanding.
And now that's exactly what's happening with Barack Obama is he is just putting the bipartisan seal of approval on all of what we all considered for years to be a revolution within the forum going on up there with Dick Cheney's lawyers having their way with what was supposed to be the law.
Yeah, absolutely.
I mean, that historical argument that you're referencing was from Jack Balkin, who's a Yale law professor.
And he also talked about how during the 60s, the conservative movement was so aghast at the wild expansion of federal domestic powers under John Kennedy, and especially Lyndon Johnson, the Great Society and all of that.
And they thought, you know, that was part, a big part of what Barry Goldwater and the conservative movement were a reaction against.
And when they finally elected a Republican president in 1968, and Richard Nixon, they thought they were going to get rid of all of that.
And of course, Nixon didn't get rid of virtually anything.
Well, he expanded it.
He expanded it, exactly.
And so what happens is it becomes a bipartisan consensus that these, it takes away any plausible partisan controversy over these matters.
And as you say, that's exactly what's happening now with the national security state expansions that the Bush-Cheney regime ushered in is that Obama has, you know, reversed a couple of them on the margins, very symbolic actions.
As you say, he sort of unilaterally banned a couple of the torture tactics, but reserves the right, obviously, by executive order to reverse at any time.
And then Leon Panetti even said, if we think it's necessary, we of course will do that.
And most of the other doctrines, keeping people in cages with no habeas corpus rights and invoking radical state secrecy theories in order to shield government actions from judicial review are, and then now with the new preventive detention scheme that Obama wants to institutionalize on the law, where the president can literally order people in prison forever with no charges, what you see is just a continuation of that mindset.
And keep in mind that it's been eight years since there's been a terrorist attack on U.S. soil.
That's a pretty long time.
And yet, even from that time eight years ago, we're still seeing this expansive, and all stems from, you know, terrorist fear-mongering from 9-11.
If there's another terrorist attack on U.S. soil, you know, there's a reasonable chance that there will be.
Our policies over the last eight years have certainly inflamed the desire for people to attack us.
I think you're going to see a far more intense acceleration of that than we've seen yet and that we're seeing now.
Well, and it just goes to show you how far that screw's been turned, too.
When Woodrow Wilson locked people up for being dissenters and things like that, there was a return to normalcy, they called it after that, where the bolt was turned back at least a little ways, and you haven't had those kinds of policies.
I don't think FDR used those kinds of policies.
Nixon sure didn't, even when the country was coming apart in 1968.
But now we're talking about, you know, this ratchet effect is to the point now where we're talking about the very existence of the Bill of Rights.
The very idea that, for example, the U.S. Army should never be deployed on American soil for use against American citizens.
The idea that you always have the right to somehow go before a civilian judge in a black robe and say they got the wrong guy and have a chance to face your accusers and get out of prison.
We're talking about giving up the last vestiges of the tradition of liberty here.
Well, Thomas Jefferson described the right to trial by jury as the only anchor ever known to man to avoid tyranny.
That essentially the defining power of an executive tyrant is the ability to order people into prison and not have to justify the imprisonment in a court of law with due process.
And, you know, there's no attempt at the moment to expand that power to U.S. citizens, because the U.S. Supreme Court has said that U.S. citizens are entitled to at least some due process.
Although in the Hilda Padilla case, of course, George Bush did imprison him for several years with no charges or no trial of any kind.
He was arrested right on U.S. soil at Chicago International Airport.
And although it never made it to the Supreme Court, because right as the Supreme Court was about to rule at the last minute, they indicted him on very sketchy material support for terrorism charges, the lower court, the Fourth Circuit, one of the most conservative courts in the country, the most right-wing court in the country, actually upheld that power.
And so the president does have the right to even hold American citizens as enemy combatants, even ones who are arrested on U.S. soil.
And as you say, there have been several instances of the U.S. military being deployed in some way on U.S. soil.
The New York Times reported a couple of weeks ago that Dick Cheney was vehemently advocating that the military be used to detain anybody and arrest anybody on U.S. soil who was suspected of or accused of in any way being in concert with al-Qaeda.
So, you know, I think you're absolutely right.
One of the things that you see is that, you know, there's not really any backlash.
I mean, after the Nixon Watergate abuses, which was fueled by the media, and then a lot of the national security state and intelligence community abuses uncovered by the Church Committee in the mid-'70s, there were some attempts to pull back on government power.
You even saw some rare things happening, like a president, Jimmy Carter, voluntarily agreeing by signing FISA into law to relinquish some power.
He agreed that he wouldn't be able to surveil American citizens without first getting permission of a FISA court, you know, the law that presidents proceeded to abide by until George Bush violated it.
So what we're missing, what we don't have, are any of the vibrant institutions, like the media or Congress, that are designed to uncover wrongdoing, to expose it, to shed light on it, so that those sort of backlash issues take place.
Instead, we have this very kind of compliant and inept Congress, and a media that does nothing but enable government power.
And that's why, no matter how extreme it gets, it seems as though it never really matters.
All right, I wanted to ask you about Abu Ali.
Now, this is a guy who, according to my memory of the decent reporting in the Christian Science Monitor and other places at the time, Abu Ali was tortured in Saudi Arabia into so-called confessing to being part of a plot to assassinate George W. Bush.
And then he was tried in Virginia, and the court allowed his tortured confession, but disallowed any evidence that it was obtained by torture.
And then, yet the judge, I think, only sentenced him to 30 years only.
And then, from what I read at CBS News, Operation Mockingbird notwithstanding, they said that his sentence was appealed by the federal government, and the higher court gave him life.
And I don't think I've ever heard of that happening before.
Is that legal?
Appealing a sentence as being too low, and having a higher court impose a stiffer one?
I think that the way that that happened was that there are sentencing guidelines that Congress has enacted that are mandatory.
And federal judges frequently complain about those, because they see it as a usurpation of their judicial power.
And it is.
I mean, essentially, it's taking away the ability of the judge to judge.
And as we talked about before, the Constitution says all legislative power is vested in the Congress, but it also says all judicial power is vested in the judiciary.
That's Article III.
And yet, Congress is continuously, in the name of toughness on crime, imposed mandatory sentencing guidelines on federal judges.
And in that case, essentially, the prosecution wanted life in prison.
And the district judge said that he would give a relatively light sentence, 30 years in prison, because there was not any victim.
No one was harmed in any way.
And so, to put them in live prison for life would be horrific.
And yet, the circuit court said that, essentially, they upheld the sentence, but they said that the lower court had violated the sentencing guidelines, which compel there to be life in prison.
And they then sent it back to the district court, and he was forced to then impose a life sentence.
So, it wasn't that they overrode the discretion of the judge.
They said the judge was violating the law by failing to impose the life sentence required by Congress.
Well, that whole episode just underlines to me the fact that the government, as you say on your blog, can get a prosecution against anybody for terrorism.
They can stretch the definition of material support or what have you to whatever they want.
It's like mail fraud.
If they want to nail you for receiving junk mail, they'll get you, if that's what they want to do.
And there are so many cases.
I mean, the Lackawanna guys, as everybody knows, were basically threatened that they would be called enemy combatants and turned over to Don Rumsfeld and the CIA for the Padilla treatment if they didn't just go ahead and plead guilty.
That was their plea bargain.
And then you had the Detroit Five, and the kid in Lodi, California, and the Miami Seven, and the bogus plot at the subway in New York where it was just the stupid kid at the bookstore being trapped there, and on and on and on.
You have innocent people.
Almost every orange alert we've suffered through has been a complete bogus shaman, yet that hasn't stopped the juries from sentencing any of these people to decades in prison.
So why should we believe that we need to have any sort of military system if there's actual terrorists to be tried?
That ought to be a slam dunk.
Come on.
Well, this is why I find Obama's proposal of indefinite detention, preventative detention, prolonged detention, whatever you want to call it, to be so offensive.
Because the argument that he's making is that there are these dangerous terrorists who are too dangerous to release but cannot be tried in a court.
And the argument implicitly that he's making is that the evidence that we have against them that enables us to know that they're dangerous can't be used in a court because it was coerced out of someone.
It was basically tortured out of somebody.
Now, as far as I know and understand, the debate over torture has always been that Democrats and progressives argue that torture is wrong because it produces unreliable evidence, which it does.
I mean, obviously, if you're torturing someone, they'll say whatever you want them to say, not necessarily the truth.
And that's why all civilized countries have always refused to use coerced evidence or torture-obtained evidence as a grounds for conviction.
So if the only evidence that we have against somebody is evidence that was obtained by torture, we shouldn't think that that evidence is very reliable.
And so we certainly shouldn't use it to put somebody into a cage for life without any charges.
If, on the other hand, we have evidence against them other than evidence that was obtained by torture, meaning we have some reliable evidence, then it's completely ludicrous to say that these people are people that we cannot try because the material support against terrorism laws in this country are breathtakingly and outrageously broad.
In fact, they're so broad that if you're Muslim and you give money to a charity that you think is a real charity but is in any way peripherally connected to a group that the United States has declared to be a terrorist organization, you'll be brought up on material support charges, and it's almost impossible for you to win, and that's why there's so many guilty pleas.
We have people in federal prison for decades who have done things like they run a cable system, and on the cable system they include programming from Hezbollah, which for some reason the United States government deems to be a terrorist organization even though they have nothing to do with the United States.
Nonetheless, simply for broadcasting on your cable system, a channel that is from a group deemed to be a terrorist organization, you are guilty of material support for terrorism.
Simply going to an al-Qaeda camp or expressing loyalty to al-Qaeda is a crime.
Material support for terrorism, people have been convicted for that and even for less.
It is unbelievably easy to convict people who have anything remotely to do or even think about having anything to do with a terrorist organization.
So the idea that there are these super dangerous terrorists who we cannot convict in our criminal justice system, which is so unbelievably pro-prosecutor, under laws that have been expanded continuously through fear-mongering in the name of terrorism, is absolutely ludicrous.
That is the least convincing reason to create a system of preventative detention.
Alright, now I want to ask you one more thing.
I know this isn't your specialty necessarily, all the war crimes law, although you've certainly become obviously very fluent in all the torture statutes and all that stuff.
But I hate to just mention the war in Somalia in just such an off-handed way.
I was just reading an article about how 18,000 people have been killed.
Of course a million and a half people are on the brink of starvation.
Last time I checked, which was months ago, hundreds of thousands of refugees.
A society that was just getting its act together destroyed again.
And I wonder, is that illegal for Dick Cheney to hire the Ethiopian army as his mercenary proxy and destroy somebody's society and kill 18,000 people, shoot missiles at them from submarines and so forth?
Shouldn't he be on trial for that?
You know, we're so far away from what the Constitution permits in terms of military action.
We're constantly fighting wars that not only doesn't Congress issue a declaration for, as the Constitution requires, but that Congress doesn't authorize in any way and that the overwhelming majority of Americans don't even know it's happening.
We've fought several covert wars in East Africa during the last decade, where we constantly side against whatever government team is connected to Muslims and we fuel and fund Christian rebel groups who are brutal and violent and lawless.
And they're just covert wars that are run purely by the executive branch without any public debate or discussion.
If you look at what the founder said about war, that was supposed to be the most momentous decision a society could ever make.
And it was only supposed to happen if the entire country was convinced that it was urgent for self-defense and for preservation of our existence in order to wage it, which is why there were supposed to be public debates over it and representatives in Congress declaring war in order to approve it, because they would know that they would be punished if they ever authorized a war that turned out to be unnecessary and citizens bore the burden.
But, of course, we can fight wars and a tiny, tiny percentage of the population are the only ones who bear the cost.
Nobody else even knows or cares.
And so, of course, these things are illegal.
Of course, we have a wild, out-of-control war state, but we're so far away from reversing that that to even try and figure out which are the most extreme examples is almost impossible.
All right, now, I know this is a bridge too far, but have you ever read Lysander Spooner?
No, I haven't.
Well, he was an abolitionist before it was cool back in the 19th century, and he opposed the Civil War because war is even worse than slavery kind of thing, and he wrote a thing called No Treason, the Constitution of No Authority.
And in there he said something roughly paraphrased as, the Constitution has either created this mess or it's been unable to prevent it, and in either case it is unfit to exist.
And I wonder, you know, why not just adopt anarchism?
Isn't this whole thing illegitimate if the Constitution of 1789 has done nothing but wage war since then and violate its own structure and its own statutes this entire time with virtually no limit?
I mean, as egregious as these violations are on paper, they're nothing compared to some of the massive casualties that have been caused by wars of earlier generations and so forth.
Maybe we should just call it quits on this thing.
Well, you know, I mean, obviously the founders talked about the right of the people to do exactly that if things got too out of control.
I guess every person has to decide for themselves what they think that things have gone to that extent.
You know, you can look, I mean, I think one of the reasons why I have so much respect for the system that was created and for the founders was because they not only created a system that was about as perfectly calibrated as human beings could possibly create and thought through all the implications, they also created within that system lots of different weapons in order to change it from within.
And, you know, we have a pretty impressive history of some pretty substantial changes taking place without there being violent revolution, whether we're at the point where that no longer is possible or not.
I suppose it's something everyone has to decide for themselves.
Well, and what about you?
Well, I mean, you know, I tend to be optimistic about the ability of citizens once properly inspired and awakened and given the impetus to act to be able to do that.
I tend to think that, you know, some of that violent revolution tends to create lots more problems than often it solves.
So, no, I don't think we are at that point myself.
But if people want to say that they think that we've gone so far fundamentally off track that the system is no longer worth saving, I wouldn't say that opinion is unreasonable, though I don't share it.
Yeah.
Well, I think it's interesting, too, that the idea that everybody just giving up on the Constitution would necessarily imply violence, you know, it's kind of, you know, subtly in there somewhere is the idea that the government would not stand for that and they would wage war against anybody who tried to deny their legitimacy.
Well, that's right.
I mean, but I think that once you start dis-anchoring yourself from the sort of fundamental constitutional principles, then it's almost certain that there'll be consequences that one can anticipate.
I think it's worth doing only if one is certain that it's necessary.
Yeah.
Well, and now I got to admit, I'm just like you, of course, I'm trying to rouse the rabble a bit in you, I guess.
But, no, I also agree that, you know, there's the whole Jeffersonian free market of ideas and the truth is supposed to win out and reasonable people are supposed to be able to live in a free republic.
And that's how it works.
We have a law.
And I like to think that this civilization could last for 500 years if we just give up the empire and just go with our limited republic kind of thing, that our civilization can last for the long haul.
But it seems like we're giving everything up, just no matter how much you type and no matter how good a quality, no matter how much I yell about it on this radio.
Yeah, absolutely.
But I think, you know, these sorts of things are never quick or painless.
They tend to be a long, slow, small again.
And I think that's what one has to keep in mind.
Yeah.
All right.
Well, I sure appreciate your time as always, Glenn.
Always a pleasure, Scott.
All right, everybody, that's Glenn Greenwald.
He's the author of How Would a Patriot Act?and Great American Hypocrites, he writes at salon.com slash opinion slash Greenwald.