Mandeville, LA – Exclusive Transcript – Apparently we can also deduce that our fellow citizens don’t much care if a member of the other political party is being tyrannized against, is being targeted for retribution or for harassment by the government. As long as when we’re in power, meaning we the red state or we the red party, if we get to tyrannize the people of the blue party and the blue states, it all works out in the end. That is quite, well, number one it’s dubious, and number two, that is quite a shocking state of affairs that civil liberties has now become a partisan issue, isn’t it? Check out today’s transcript for the rest…
Begin Mike Church Show Transcript
Mike: Let’s go to the Dude Maker Hotline and say hi to Professor Dr. Kevin Gutzman and get his constitutional take on all this, if there is one. Kevin, good morning, how are you?
Kevin Gutzman: Hello, Mike, how are you?
Mike: I am well. Do you buy, are you purchasing cloth sewn by the president when it comes to what he knows about the NSA surveillance program and its harmless nature?
Gutzman: Well, of course, Mike, there are two issues here. Number one is whether the program as he’s described it is objectionable; and number two is whether we trust him. I guess I’ll start with number two. No, I don’t trust him. I don’t trust people in government generally. I don’t think we can assume they’re only going to use the information they say they’re trying to get. That is, once they have the capacity for monitoring our emails, voicemails, phone messages, text messages and so on, in terms of who’s sending them and who’s receiving them, I don’t think we can be sanguine in the expectation that they’re not actually going to look at the content. That does worry me, it’s been worrying me.
You and I have previously discussed the fact that Congress, at the very end of the Bush administration, adopted legislation exemption the telecommunications corporations like Verizon from civil responsibility from having divulged secret information to the government while Bush was president. Similar things have been going on for years. You and I have both objected to the fact that tens of millions of Americans apparently were affected by the Bush-era behavior of the federal government. Congress said those people are never going to know who they were or which communications the government was privy to. To me, that’s problematic ever since I learned about it then.
Mike: In 2006.
Gutzman: Right. The other thing is whether we want the federal government to be somehow monitoring telecommunications because we’re worried that people in Pakistan or Afghanistan, Iraq, Saudi Arabia, Egypt, Syria and so on are conspiring to blow up more skyscrapers and more airplanes. My answer is yes, I do want the federal government to be keeping tabs on those communications in some way. I think that’s always going to be problematic because we’re always going to be suspicious of people in the executive branch. I think the current administration, like the previous one, has given use every reason to think we can’t trust them, that they don’t respect our historic rights, that they think nothing of the idea of unlimited government. This is, after all, the president who appointed a justice to the Supreme Court who found it literally laughable that there was any limit of the power of Congress to tell us to eat three helpings of broccoli every day. I think these people have no idea of limited government, so of course I’m worried that they are going to be mining everything I say or every image I send or every text I write and so on…
For the rest of today’s transcript please sign up for a Founders Pass or if you’re already a member, make sure you are logged in!
What are we going to do about that? We have to hope at some point our fellow citizens are going to decide they don’t want such people to hold these sensitive posts. I don’t see any indication that our fellow citizens do care about that. So we have 85 to 90 percent of the electorate that would vote for either W or Obama. They’re the people who have been behaving this way. What are you going to do? I don’t know what to say. I think it would be constitutional if the NSA were doing what the president described. I don’t think we can be persuaded that they’re going to be held to the limits of the program he described. I expect there are people in the federal government who are keeping tabs on our email and reading our text messages and so on. I do think they’re being mined. I think if I sent a Facebook message, a supposedly private one, or a text message or an email saying I love Al-Qaeda, somebody at the NSA would read that.
Mike: Then they would say: Hey, wait a minute, this guy is communicating with these lunatics at Lew Rockwell and with radio hosts that talk about secession, this Church character. He is an anti-government crusader. This Gutzman character, we need to keep tabs on him.
Gutzman: Secretary Napolitano says that people like you are the problem.
Mike: I am.
Gutzman: — not crazy, self-immolating Muslims who want to send their children out with bombs strapped to their chest, they’re not the issue. The issue is Mike Church or Lew Rockwell, or your local Rand Paul supporters and other people who want limited government. That’s what the IRS Is targeting, of course, people like CompactForAmerica.org. They want to limit government. That’s the issue, says Secretary Napolitano. Again, that’s why I have to make this distinction between the program as the president describes it, which I think would be constitutional. After all, the Fourth Amendment says that the federal government cannot conduct unreasonable searches and seizures. If it’s doing something reasonable like identifying a phone number in Pakistan that is the phone number of some guy that’s linked to Al-Qaeda and then seeing whether there’s any phone number in America from which messages to that phone number are originating, and then keeping track of the American phone number that’s calling that Pakistani phone number, I don’t think there’s anything wrong with that.
Mike: That’s identifiable. You can identify that. You can make a specific warrant or a specific case that we have intelligence. Today we think of intelligence in terms of computers, in terms of satellites being able to eavesdrop and spy and all sorts of modern technology that we have at our fingertips. At the time the Constitution was drafted, of course none of that could have existed. They didn’t even have a telegraph then or any means of electrical or electronic communication. When they were putting these safeguards in place or when they were discussing these safeguards — of course, the Fourth Amendment is a reaction from the states that ratified the Constitution that were still not sold on James Madison and his buddies being angels in the office. They said: Wait a minute, we’re going to have to live under this monstrosity and then you’re going to have to agree that you can’t do this. That’s why you have a Fourth Amendment, Fifth Amendment, and Sixth Amendment, which most people think those are general rights and they apply to every living soul on Earth, certainly every living soul in the United States. Of course, you and I hold the contrary view that those are specifically for the Feds.
Keeping in mind, intelligence gathering is part of common defense. I don’t have a problem with intelligence gathering, especially of the human variety. Like back in the Cold War, we had spy versus spy. We’d have a Baryshnikov or whoever who was a ruskie and some guy named Smith and they had swapped identities. In Russia, Smith was Baryshnikov and in the United States the Baryshnikov was a Smith. You had the battle for intelligence. No one has an issue with that. We don’t have any problem with that. What we have a problem with — President Obama even used the term “abstract”: Well, in the abstract… No, the abstract is the problem. You’re not being detailed about it. Professor Gutzman is on the line and we’ll get into this a little bit more about the Fourth and Fifth and Sixth Amendments.
In the first two hours, I have been sorting through this sordid, massive history of the CIA / NSA / FISA / FISC / DOJ / IRS, name your alphabet soup federal agency, and the powers they have accrued to themselves and the abuse of same, which we are now über possessed of. In the first hour I talked about a 2010 Washington Post story called “Top-Secret America,” where the Post concluded, after a two-year investigation, that they couldn’t conclude anything. The spy operation is so large that they did their best to try to catalog it using public information and the best they could come up with was: Aw, shucks, this is how big we think it is. This was, of course, three years before it was revealed by Glenn Greenwald at Guardian UK and by the same Washington Post that there was a clandestine data mining operation of phone records by the NSA for all of the phones records between April 25th and July 17th, it’s still in effect, for every phone call going in and out of the United States placed over a Verizon carrier. We have every reason to believe that Verizon is not the only carrier, and we will ultimately learn that this involves AT&T and Sprint and I would suspect any other carrier like T-Mobile. I hate to put T-Mobile in a class where they are not on the equal with AT&T and Sprint, but they are not quite as large. The discussion has been going on.
Shockingly, when the American sheeple have learned of this abuse, they’ve shrugged their shoulders, thrown their hands up in the air and gone: Eh, whatever. A Washington Post Pew Research Center poll shows that a majority of you people out there don’t really care much what the government is doing as long as you’re safe from Achmed the terrorist. I imagine this is how the abuse and final usurpation of civil liberties is allowed to transpire in once-free societies. It’s all a very sordid history and certainly nothing to be proud of. The fact that we know about it now and now seem, as my friend Professor Dr. Kevin Gutzman who’s on the Dude Maker Hotline is fond of saying — we now know all about this, Kevin, yet as you once brilliantly told me, and I don’t know if you coined this phrase or picked it up from someone else. There are two great forces in American politics, aren’t there?
Gutzman: You mean boredom and inertia?
Mike: Or apathy and inertia, right. We have too much of one and not enough of the other.
Gutzman: I think it’s amazing that people are so little concerned with these things. It seems that the mounting debt and the burgeoning of the federal government just don’t register for people. I don’t understand it. The idea that this is some new development that we only found out about last year runs smack up against what you and I mentioned earlier, that is Congress passed legislation during the Bush administration, and the president signed it, exempting the major telecommunications companies from civil liability for having turned over information about people’s emails or phone calls, texting, and so on through the federal government. We knew and we were told at the time that tens of millions of Americans had been involved in this but we were never going to find out exactly which tens of millions those were because now the telecommunications companies had been exempted from any liability for having participated in this behavior. It wasn’t new in 2012. You said 2006 is when that was passed?
Gutzman: So they’ve been mining our phone calls and voicemails and so on for years and years. Your listeners should realize that it’s just run-of-the-mill conservative groups, besides terrorists, being targeted nowadays. Again, Napolitano said the real danger are conservatives and libertarians, people who think we ought to have limited government. I mentioned in the earlier segment, CompactForAmerica.org, which you and I have talked about repeatedly, a group I’m involved in whose goal is to have an Article V Amendment Convention to adopt a balanced budget amendment, we applied for tax-exempt status. It’s 15 months later and we still haven’t gotten an answer. That’s one of the groups the IRS targeted. You and I have spent quite a bit of time on your show discussing CompactForAmerica.org. As far as I’m concerned, that is a perfectly innocent effort. There’s no reason why it should be lumped in my Napolitano and these other brain-dead people with Achmed the terrorist.
As soon as you give them an opportunity to target their political opponents, that’s what they do. It’s not like they’re going to go after some guy in a mountain in Yemen. They’re also going to be sure that anybody that supports Rand Paul or amending the Constitution to limit the government is kept tabs on, too. I expect that there are probably people in this audience whose communications are being monitored. This is not paranoia. This is what the federal government has been telling us they’re doing. As I said, it’s 15 months since CompactforAmerica.org applied for its tax-exempt status. Other liberal groups have been getting their tax-exempt status granted within six months of application.
Mike: There’s another part of this when you bring up that they are targeting conservative groups. If you read the Washington Compost Pew Research Center Poll, they conducted a similar poll in 2006 right after the event that you described where the Bush administration granted blanket immunity to any telecom that would, in a spirit of good corporate citizenship, pass the phone records of their customers onto the NSA, the CIA, the FBI or whatever other alphabet soup agency you can name, so that they could go through them and see if there’s anything untoward. Bear in mind, you’ll never know, as Kevin said, no one will ever know thanks to the actions of a Republican Congress.
If you read the poll, back in 2006, Democrats were diametrically opposed to the actions of the Bush administration. There’s now been a 31-point swing from Democrats saying this was an abuse of civil liberties to today saying not so much. At the same time, there has been a 19-point swing between Republicans who said back in 2006: Nothing to see here; move along; we don’t have a problem with it. Today when the Obama administration is doing it, now it’s a huge deal. Apparently we can also deduce that our fellow citizens don’t much care if a member of the other political party is being tyrannized against, is being targeted for retribution or for harassment by the government. As long as when we’re in power, meaning we the red state or we the red party, if we get to tyrannize the people of the blue party and the blue states, it all works out in the end. That is quite, well, number one it’s dubious, and number two, that is quite a shocking state of affairs that civil liberties has now become a partisan issue, isn’t it?
Gutzman: Again, you and I have talked about the fact that there doesn’t seem to be that much difference between the two parties. Insofar as there was a difference you might have thought it would be that the Democrats would be the ones who are more concerned with these things. After all, that’s the group that’s full of ‘60s left people who were saying they didn’t like this kind of behavior and ultimately drove Nixon out of office and so on. There doesn’t seem to be any concern about it at all. There’s something about Obama that makes them say: That guy is trustworthy. That W, boy he was dangerous, but this fellow can have unlimited authority and it wouldn’t be a problem at all.
We’ve come a long way from the American revolutionaries who sniffed out incipient danger in a very slight initiative by the British Parliament and decided: We’re going to make a war for independence because we think although this is not offensive in itself, it could be the progenitor of later problems. They made revolution not on the grounds of there being really oppressed, but if the principle of unlimited government were established, oppression was possible in the distant future. Right now, it seems both parties are perfectly willing to have unlimited government as long as it’s being inflicted on the other guy. What this means in the end is you can expect when the other party comes in they’re going to do it to you. It means you can’t be very hopeful. You can’t think that an electoral victory is going to solve the problem because neither party stands for freedom essentially.
Mike: That should be of grave concern. Kevin, a lot of people have raised the protections that we’re supposed to inure to all American citizens via the Fourth, Fifth, and Sixth Amendments. Short of Senator Rand Paul bringing it up over and over and over, questioning whether or not what the NSA has done, what the Bush administration did back in 2006, whether or not these constitute general warrants or not. It seems to me that this most certainly was a general warrant issued, and would then contravene the Fourth Amendment. Rand Paul has said that there ought to be a class action lawsuit of some sort to try — Charles Lane writes, “Who would win Paul and 10 Million Citizens v. NSA?” Lane brings up there’s been some prior cases like Clapper v. Amnesty International, Smith v. Maryland in 1979. He doesn’t think that Paul or any of the American sheeple would be able to have any standing to have any redress of grievances against this. Would you agree with that?
Gutzman: That’s what I told people who asked me this yesterday. I don’t think anybody has standing. Standing is a particularized injury, that is an injury that’s suffered by a particular individual or small group. If you go to court and say Americans generally are being harmed by this, the court is going to say you don’t have a particular injury. What you need to do is resort to the political process. If you want to say everybody is hurt by a policy, you should go get the politicians to change the policy. It happens that, of course, Congress has remedies for these things. Not only could they defund them, but they could remove from office the people who are enforcing them. That’s what the impeachment power is for. If you want to say there’s a general trend in the executive branch or a habit in the executive branch of violating people’s, for example Fourth Amendment rights, start throwing these guys out of office. They can do that but they don’t.
Congress essentially is inert. It’s somewhat pathetic that we see a senator saying: I’m going to court. That’s not what Congress is supposed to do. Senator Paul could try to defund particular NSA programs. They could amend appropriation bills to say this money is not to be spent for these programs. Or they could throw the head of the NSA or director of national intelligence out of office. I don’t expect they will. I think most Americans don’t care. That’s the bottom line. Most people don’t really care.
Mike: That is a sad and sorry state of affairs. Professor Gutzman’s latest book is James Madison and the Making of America. You can get it in the Founders Tradin’ Post, an autographed paperback copy. I think we have one hardback left. Of course, find it at booksellers and at Amazon.com. Of particular interest, and he may not think this is of great importance but I think it is. Virginia’s American Revolution is a great book that you wrote. If people really want the history of the United States, a lot of it passed through the Old Dominion. Of course, five of the first six presidents were Virginian. If you brush up on your Virginia history, I think you have a pretty good grasp of the early history of the United States. Note I didn’t say American history because there were 150 years before the Stamp Act. Virginia’s American Revolution is another great book. The book that you authored with Tom Woods, Who Killed the Constitution? In this instance, you guys might have to do a Who Killed the Constitution: Part 2—Why the People Bailed on Their Founding Document.
Gutzman: I have thought about writing a book called The Obamanoid Constitution, about the travails of the Constitution in the Obama administrations. One problem with that, of course, would be that people would get the impression that I think there’s something new and distinct about the Obama years. Tom and I tried to make the point in Who Killed the Constitution? that this is a bipartisan phenomenon. The fact that Senator Paul thinks we need to go to court shows you that he thinks in general Congress is perfectly happy with this behavior of the executive branch. It’s a sad situation. People can agitate to reclaim our actual rights if they want to, and I hope they do. Again, you and I have talked about this over and over again. I find it offensive to think that there are people in the executive branch who are probably reading my emails and text messages, listening to my phone calls from time to time. The fact that we haven’t been told it yet, now we’re getting pretty close to being told.
Mike: And it is going on. Professor, I appreciate your time as always. I look forward to having you on the program again real soon. Godspeed to you, my friend.
Gutzman: Thank you much, Mike, and to you.
Mike: That’s Professor Kevin Gutzman on the Dude Maker Hotline.
End Mike Church Show Transcript