CW 386: Reforming Government Surveillance with Bruce Fein Former FCC General Counsel & Heritage Foundation Attorney

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Welcome to the Creating wealth show. This is your host, Jason Hartman. And thank you so much for joining me today. We'll be back with today's guest or segment in just a moment. It's my pleasure to welcome Bruce Fine to the show. He is a very interesting man with a fantastic background. In January of 2014, you may have heard that Rand Paul announced that he was filing a class action lawsuit against the Obama administration over the warrantless surveying program involved in, you know, you've heard of it, as called prism. And he is the person who drafted that complaint. And he was also hired by the family of Edward Snowden to defend against some criminal espionage charges. And he's a great believer in freedom and stopping government surveillance. So it's a pleasure to welcome Bruce Fine. Bruce, how are you?

I'm doing well. Thanks for inviting me.

Good, good. And where are you located? I just want to give our listeners.

A sense of My offices are in Washington, D.C. i was born in Cambridge, Massachusetts. I had my early childhood there. My father had some work at Stanford University. So I'd moved out to California and Palo Alto during high school. Then I returned east coast for law school at Harvard, again at Cambridge. Then have been in Washington and either in Washington or in the outskirts in Maryland or Virginia for the following 45 years. I came in 1969. I've been involved in all the crises since then, including the impeachments of Richard Nixon, Bill Clinton. I drafted articles of impeachment against Bush, Cheney and President Obama for usurping the war power and failing to faithfully execute the laws. I served as counsel on the Joint Congressional Committee on covert arms sales to Iran. I regularly testify before Congress on constitutional and foreign policy issues and have written two recent books. One's called American Empire before the Fall, another called Constitutional the Life and Death Struggle for Our Constitution and Democracy. That Elaborates on what I consider our political decadence that is leading us to ruination and a destruction of our values that celebrated liberty over a risk free existence.

Fantastic. And in addition to that is if your resume isn't long enough, it's fantastic. Under Reagan, you ran the fcc, right?

Well, as general counsel, the FCCI was the architect of the elimination of the Fairness Doctrine that prevented viewpoints from particular philosophical angles from being voiced without triggering a whole host of fairness complaints that clogged the docket of the FCC and made people reluctant to speak out.

So we've talked rather extensively.

I'm sort of the father of talk radio, so to speak, because it made it available without worrying of financial setbacks because of fairness complaints, among other things. I was also there with the breakup of AT&T.

Yeah, fantastic. Well, I'm so glad we don't have a Fairness doctrine. Let the free market decide what's fair and what they want to listen to. Why should the government rule? We've, we've talked a lot about that on the shows. But tell us about the Rand Paul case, if you would.

The Rand Paul case. You know, if we want to go back historically, how did it originate? How did the fourth Amendment originate? This right be let alone. And we need to remind ourselves that the American Revolution was really sparkling by the British practice of employing what was called then general writs of assistance, general search warrants that enabled every petty officer to rummage through businesses in the homes of the colonists searching for contraband, possible evasions of tariffs or otherwise. And these were without any particularized identified suspicion that there was anything amiss. And that invasion, if you will, of the right to be let alone was what John Adams said was the spark of the American Revolution carried forth by a very famous patriot, James Otis. And want to think about the spirit or the mood of the fourth Amendment, it was really captured by William Pitt the Elder when he was addressing the British Parliament in 1763 opposing an excise tax precisely because it crowned every petty official with the right to enter homes and businesses without warrants in search of some kind of wrongdoing. And he said as follows. The poorest man in his cottage may bid defiance to all forces of the crown may be frail, the roof may shake, the storms may enter, the winds may blow through it, the rain may enter, but the King of England cannot enter. All his forces dare not cross the threshold of the ruined tenement. That's the spirit of the fourth Amendment. And the Amendment basically says that you have a right to be let alone just because you're born, you don't have to give an explanation of why you want the government to keep away from you. Just the fact that you breathe is enough that the government, government must come up with a very compelling or strong reason before it can disturb your right to be let alone. That's the basic theory and philosophy of the Fourth Amendment, and we've really turned it on its head with this program that is being challenged in the complaint I drafted on behalf of Rand Paul and FreedomWorks, serving as the class plaintiffs for everyone in the United States who's made a phone call since May of 2006.

In fact, it really should be everyone in the world. I mean, it's not just the US that's being bugged.

No, no, it's not. It's every. But it is not everyone in the world in this sense. If you are in China and making another call in China, we're probably not picking that up. If you make a call outside of China, probably, yes. But in the United States, whether you're making a domestic call, you know, to your wife, to your kids, to your lover, to your friend, you know, to get a Domino's pizza, or whether you're making an international call, every single call is picked up and telephony metadata is gathered and put in database.

Okay, so the excuse. Let's just take the government' for a moment here. The excuse they're using is, number one, they have the FISA court and they're saying that, you know, even though this is secret, they, it, it is heard. You know, the citizens rights are theoretically considered, which I don't believe.

Well, but it mean the argument is, I think, facile. First of all, the Constitution trumps the FISA court or statute. The Constitution is there because there are certain things the founding fathers thought were so important they shouldn't be subject to elections and simply simple legislative majorities. That's why we have a Constitution. It says there's certain things even if everybody in the United States wanted to accomplish, they can't do it unless they amend the Constitution. So the fact that a FISA court actually is called the Foreign Intelligence Surveillance Court, or the FISC has approved the program, doesn't shield it from Fourth Amendment attack. The second thing to remember is that in these presentations to the fisk, only the government side is heard. The targets of the collection program, you, me, all your audience, we aren't heard. There's no. Not either directly or indirectly through some kind of surrogate. So it's like having a trial, say a prosecution, a criminal case and you only hear the prosecution. The defense isn't permitted to say anything. You're probably going to get 100% conviction.

Which is what I hear they do. They just basically rubber stamp everything for the government.

It's close to that. But putting that aside, I think. Let me if I can elaborate on what the program is that we are attacking in the lawsuit. And this has continued since May of 2006, eight years and is expected to continue forever. I want to repeat that the collection program is expected to continue forever the next 500 years or more.

The war on terror is such an ideal war because it never has to end. So the government.

And moreover it's great for the government because all the world becomes a battlefield where you can use military force. There's no geographical area that you can enter which says, oh, the president can't kill me with a Predator drone if he decides to do something.

It's an ideal situation. It gives them just unlimited rights virtually. But go ahead, yeah.

Limitless rights. Even more. It sort of turns Nietzsche on his head. You know, he said God is dead. No God is in the White House. Only God and the President can kill anybody they want at any time for any reason. Anyway, putting that aside, let's go back to the. This surveillance program, I call it the MASS Associational tracking program in the complaint. So the mass. And remember the Mass Associational tracking program that began of May of 2006. It was also intended to be secret forever. The government hoped that there would never be an it's node and there would never be a whistleblower and we would never know about it. So we couldn't even have this conversation. And Rand Paul could never file suit because he'd never have definitive proof of that. His telephony metadata was being collected and searched by the government. So we need to remember abstinence note. And no one could even be filing suits challenging the constitutionality of what is being gathered and searched. But in any event, the program works as follows. Every day, every the telephony metadata, which is the numbers of the participating calls on every domestic or international call concerning the United States. The participating phone numbers plus the duration of the phone call and the time of the phone call, time, date and a little bit the location that is by a trunk line, you know, probably within 100 yards where the call was made from. All of that data is collected in a huge database. It's the huge. The largest database in the history of mankind by far. And then you remember when you get a telephone number, ordinarily it takes about five seconds to identify the number with a person by going on Google. So the idea that the identity of the callers is not known is fallacious or specious. The government can find out the name associated with the number very quickly. So all of this collection happens every day. That is, the phone companies give this information to the National Security Agency. Now, at the time that these phone numbers are collected, there is no suspicion. The government doesn't have any suspicion that any of the numbers is connected to anything that's wrongful or harmful. Not criminal activity, not terrorist activity, not foreign intelligence. They just gather it all and they stick it there. Now, what they do with it as they, they, they then maintain it in this huge database which had no more security about it than the security of information that Ed Snowden was able to capture and, and revealed to the newspapers. When the NSA says they have a reasonable suspicion, a reasonable, articulated, articulable suspicion, they call it in legal lango lingo ras, that a telephone number abroad is connected to an international terrorist organization. Remember, reasonable suspicion is lower than probable cause. It's lower than preponderance of the evidence. And how they decide what reasonable suspicion is is largely in their own minds, because it's the NSA that decides whether this threshold of suspicion has been satisfied. When they do, they take the number, the foreign telephone number which they have some suspicion is connected for the foreign and terrorist organization, and then they search to see whether that number has communicated with any number in the database. They typically make anywhere from two to 300 inquiries of the database per year. But they don't stop there. If there's any hit in the database, then they try to find out all the numbers that called the first hop or the first hit in the database. So they got what they called the second hop. Everybody who's called that first person who had been called by a number that is associated, thought to be associated with a terrorist organization, they then fall into the suspicious category and then their information is examined, and then they had a third hop. So they went, if you were three steps removed from the international terrorist organization suspected phone number, then they gather and search your phone number as well to see whether there's any suspicious activity. So a single query could end up having the NSA look and maybe as many as a million telephone numbers. In any event, that's how the program worked. And since May of 2006.

And I just got a comment, Bruce, that's insane. I mean, this is just insanity. Like if our founding fathers were listening to this, they would be rolling over in their Graves, the whole, whole concept of freedom of association has just been. It's gone.

No, it is. And that's why I call it the Mass Associational Tracking Program. But since May of 2006, that's about. For eight year trial run, the number of terrorist attacks that have been foiled by the program is zero. And this conclusion is not just mine or Rand Paul. This is the conclusion of two presidential appointed commissions or groups, study groups, the Presidential Civil Liberties Oversight Board and another presidential group that Obama appointed to examine the program and make recommendations. So these of the own, President Obama's own people concluded that the program has foiled zero terrorism plots over eight years. It's just a long period of time to test it. So that's. And we're arguing that this mass collection, suspicionless, warrantless collection of our telephony metadata violates the Fourth Amendment. And one of the things we're trying to do, the Supreme Court has stated in some opinions that we should enjoy the same level of privacy from government snooping today under the Fourth Amendment that the citizens enjoyed in 1791 when the Fourth Amendment was ratified. So one of the approaches we're taking is try to analogize our telephony metadata to, say, letters that might or might not be sent through the post office in 1791.

The pony express.

Yeah, the Pony Express.

They couldn't intercept the pony, open all the mail and look at the letters, and then seal them back up and let them be delivered, right?

No, no. And moreover, and one of the elements that's at work here is the fact that there were very, very few investigative agents at the time of 1791, as opposed to today, where you got an $80 billion intelligence community. The NSA has 35,000 employees. I mean, the whole government of the United states didn't have 35,000 employees probably till 100 years after the Constitution was ratified. So the level of privacy that was expected in 1791 was very, very high, in part simply because the resource limitations on government. And they didn't even have. We didn't have an idea of collecting information for foreign intelligence purposes. Our idea was defense was to guard against an attack. Defense wasn't to preemptively police the world for anything that could be dangerous, as though we had some kind of moral obligation to go abroad in search of monsters to destroy anyway. That's one of the approaches that we're taking. And I think it's relatively obvious to anyone that this kind of NSA dragnet surveillance vastly exceeds the privacy expectations that would have obtained among the citizenry in 1791.

It's just unbelievable. So what is going to happen? I mean, what's the prognosis for this? The complaint was only filed several months ago. Do they have to respond in 30 days like a typical case?

No, because when you sue the government, there's a 60 day response period rather than 30 days. And I expect that the government will file a motion to dismiss that we'll have to litigate. We may at some point try to go directly to the US Supreme Court rather than through a court of appeals. One element that's still, I think, a puzzle.

So did they answer yet, though? 60 days has passed?

No, we have not had an answer yet.

So they've asked for an extension then?

No, no, in time. The 60 days doesn't run until technically, what's called you serve the defendants and they have to have a summons. It adds additional days of delay.

Okay, all right, Yeah, I understand, but.

So we may get an answer. My guess is sometime in April. But we also believe that there's an element that is. I don't know, it's puzzling. It's one that could work against us or in our favor. And that is the statutory authority for running this metadata collection program expires in. In July of 2015. That's next year, unless it's extended now. In the past, the Congress has always extended Patriot act provisions. Section 215 of the Patriot act, which is what the authority that is used in order to undertake the program, say it expires in July of 2015. In the past, Congress has extended all Patriot act provisions, but it may not. And if this Patriot act provision is. Is permitted to lapse, then the lawsuit would be in a position of saying, all right, there we wouldn't be an injunction against the program continuing because there's no authority, but we would want all the existing databases, which they keep for a minimum of five years, to be expunged. So they can't. Because you could imagine even since May of 2006, the, you know, the number of phone numbers that they've got in the database is just literally staggering billions.

Yeah, right.

I mean, literally every single call you make, a phone call to anybody from however exists, however short, you know, your cell phone, your landline or otherwise is in that database.

Every email, every text, everything. Every posting on an Internet forum.

Well, we don't see. And the. That's a little bit unclear, too broad. For this reason, they did have a companion Internet metadata collection program in 2006. But Ron Wyden and Mark Udall, their Senators, Democrats sort of forced the hand of the NSA and said they can you show us anything this has accomplished? This is in 2011. And they couldn't. And so that program shut down. So the Internet part of the collection is ended. At least in the NSA is telling us the truth. Now we know when James Clapper, the Director of National Intelligence, was asked last March under oath whether he was having the NSA collect any data on millions of Americans, he said no, which was a flat out lie. And so we're going on the trust of the nsa, which is probably a pretty hazardous problem. Opposition that in, in, in, in concluding the Internet metadata collection program has terminated, but that's what they represent at present. So now it's just every single telephone call that you've ever made is now under surveillance by the nsa.

Okay. And so you may go. I mean, what, what will happen? I mean, what are the various shades of gray, if you will, of winning and losing this case, like you might win a part of it? Maybe they won't be able to keep the data, maybe they won't be able to collect as much data. They'll get some, but not all. Or there will have to be some determination of what is suspicious, what is not, what they can collect, what they can't collect. I mean, you know, talk to us about some of the possible outcomes.

Well, okay, let's, if we, so let's say the best outcome from our point of view is that the court finds the program unconstitutional under the Fourth Amendment. It requires all the data be purged and prevents them from collecting warrantless, you know, without a warrant, metadata in the future. That would mean that if they did want to collect your metadata, they'd have to establish probable cause to believe that you, you know, were either implicated in some kind of terrorist act or criminality or had or a probable cause to believe that you possessed evidence that was relevant to proving a crime or international terrorism. That's a standard that can't, that isn't met now as regards to any of the data that they're collect. So we need to underscore to shut down the program. Doesn't mean we're disarming it just means we do what we've been doing for 200 years. The government has to establish some probable cause before it goes forward and tries to disturb your right to be let alone. And in some sense, it may make the government more efficient. I mean, you could imagine all the staggering hours wasted sticking all this metadata, you know, in a huge database and coming up for nothing for eight years just Think if you had a job and you spent eight years on the job and someone asked you, well, what is your output? You know, what is your deliverables? And you say, still working on it, nothing. They'd say, well, maybe we ought to terminate the job. You know, why are we doing this? And the.

But when you, when you have a virtually unlimited budget and unlimited resources, as the government does, you don't have to be logical. You can just collect.

Right. And right. Since you're spending other people's money, you keep spending or.

And you just print money to pay for it. But that's a different.

Well, yeah, the Fed. Yeah, the Fed decides to do a quantitative expansion, you got another trillion dollars that'll keep you going for a while.

And all the citizens just got a little poorer, you know.

Yeah, yeah, yeah, exactly. But there are other things that could happen too. I mean, the fact is that Obama himself could change the program to require warrants, you know, and to require that the, that the judge's decisions be declassified. I don't think that's going to happen. He's had a long time to deliberate on what he'd like to do, and he's, he's made a little, a few tiny changes in the program whatso. So I think also that what's likely to happen is that you and I and others will have a public interest advocate that will be able to argue before the Foreign Intelligence Surveillance Court against issuing warrants, arguing against probable cause under a new privacy dispensation, so that there isn't this indiscriminate collection. So I say, in some sense, its greatest menace is that its philosophical pivot is the presumption that all of us should be viewed as traitors, and therefore we need to be surveilled and watched. We aren't presumed patriots. And so when the government starts treating all of its citizens as traitors, you've got a problem. Because in a republic, the people censure the government. The government doesn't censure the people. And as Thomas Jefferson said, when the government fears the people, you have liberty. When the people fear the government, you have tyranny. And we're moving to the tyranny side of the equation, much to our disadvantage and alarm, in my view.

And really in the long run, I say much to the government's disadvantage, because those governments don't last. They never do. Those tyrannical governments, I mean, they always get overthrown. People always leave. There's always a brain drain. They always become smaller economies and empires don't work. And dictatorships don't work either, so.

No, they don't. And even in a larger sense, I think they also are quite untoward, counterproductive for the government. And I repeatedly say the greatest military asset any country has is the love that citizens have for their country. The love that causes them to be willing to risk their lives, their fortunes and their sacred honor for their country. Now, when the country views them as traitors, they're not likely to have that love. You know, they say, what the hell, I'm a patriot. And you're viewing me as a traitor, you're spying on me. And that's what makes this whole exercise so disturbing. Because without this people support, and remember, it's the people basically, who have stopped the Richard Reeds and the Abdulmutallab from lighting their shoes and exploding devices on airplanes. It wasn't the nsa, it was loyal citizens who said, hey, don't do that.

And once, yeah, the people catch most everybody. I mean, the people caught the Boston bombers, the people caught the rogue cop in la. It wasn't the government that did this. I mean, it was a citizen.

Yeah, and you want. So you want to keep the citizens loyal and faith and having faith in their government. And you do not do that. You do the opposite when you treat them as traitors. You know, the people who support the government, their taxes go to support the government, they obey the law. And the government has the audacity to think this total information program, we have to assume anybody could be a traitor and therefore have to spy on you. And what that forgets is the basic maximum of the Fourth Amendment, which is we knowingly take risks that unfree people don't take because we cherish liberty and we don't want to inflict harm on an innocent. So we will take risks that Saudi Arabia or China or Russia won't take. Fine. Because we don't want to be like them. And there may well be some tragedies that happen because we are willing to take those risks. Life is filled with tragedies. We don't relish them. But in some sense, you have to take that risk in order to be a moral people. The most important principle that separates civilized people from savages is that the civilized people recognize it's better to be the victim of injustice than to be complicit in committing an injustice. That's the difference between a civilized society and a savage one. And we are unfortunately moving, you know, from being in the civilized side of the line to the savage side. Not only on the surveillance, but we use Predator drones. We kill 68 year old grandmothers picking vegetables and say, well, we got to be safe. So that doesn't matter to us. And that's just wrong. And we're destroying our values as a country. And in some sense, I think the disintegration of the Soviet Union in 1991 has induced us to forget what caused us to be different. Why did we win the Cold War is because we didn't stoop to any kind of conceivable tactic in order to prevail. That's what enabled us to win hearts and minds since 1991. Now we've turned into the flip side of the Soviet Union. Not quite in all of its horrors, but in philosophy, that's where we're going.

Yeah, well, don't worry, have faith. The Soviet Union seems to be coming back.

Yeah, yeah, right. Maybe that, maybe that's what we need. Putin now. We need you to be an empire so we can understand how we're not to be.

Yeah, exactly, exactly. That's a great point. A couple more things I want to just touch on before you go, Bruce, and you've made some excellent points, so thank you. I remember back in 1999, in 2000, reading and being outraged about the program called Carnivore. I'm sure you know about that. Yeah, and, and then 911 came along and there was just no hope. I mean, I just never heard any more arguments about that after. And now we've got something much bigger and much more invasive than Carnivore. And, you know, so just if you had any comments on that or how the change happened or just any thoughts.

On that in general, I think that we have suffered from a deficit in leadership. People can be easily frightened. Danger can be easily exaggerated. And the goal of leadership is not to ignore danger, but to put it in proper perspective and to remind the people that if they wish to be free and enjoy liberty, they got to take some risks. Let's think about murder. We have 17,000 murders annually, and this is a number that's persisted for over a decade. We prosecute murders, we don't catch all of them. We sentence murderers sometimes to death, life in prison, there's still murders. It doesn't go away. We don't say murder laws don't work. Let's suspend habeas corpus, let's have courts martials. Right. We recognize now nobody relishes anybody being killed, you know, which is sad, it's a tragedy. But we understand that if you're going to have any kind of Liberty, there's got to be risk, risks that enable people to do wrong things because nobody is born inherently a saint. Now with regard, and it's important, I think when 911 happened the leaders should have said this is a terrible, this is abomination. We need to catch if we have to, we need to kill those who are complicit in it. But Al Qaeda is not the Red army, it is not the Luftwaffe and Hitler and the Storm Troopers. You know, they don't have scientists, they don't have conscription, they don't even have an airplane. So we have to be hyper alert. But let's not go crazy and stoop to their level. Just because they don't do habeas corpus, it doesn't mean we don't do habeas corpus because of who we are as a people. And so what happened after 911 is that the politicians, the so called leaders, which I say are the acephalous political institutions, they made the danger seem like we are beleaguered by people that are more threatening than all the armies we confronted in World War II. And you remember the references to the Sudetenland and Munich and Stalingrad and I mean everything else that was utterly absurd as applied to Al Qaeda and the terrorists who are indeed dangerous, but they are not threats of our sovereignty. They aren't. And that's what I think caused not only Carnivore but any other restriction on government surveillance and authority to go out the window because it was painted it as a. If you're against this authority, there are going to be 10,000 people dying on the sidewalks the next day. An absurd claim. And you continue. I continue to confront it today in my debates on surveillance. I can guarantee you if this authority is shut down there, that there's going to be another equivalent to 911 and thousands of people are going to die. And that's the wrong approach to understanding, you know, what civilized life is about. You can't get through life without taking risks and be honorable. Because if you take no risk, you treat everybody as a potential terrorist and kill them all. Well, you imagine that. Walk down the sidewalk, okay, that person could be a secret terrorist, let's kill him, you know, no risks. And that would be savagery that no one would tolerate if they have any kind of heart. And that is a 911 unfortunately has been exploited by the leaders in order to frighten people into thinking that we're, you know, our sovereignty is at risk and the only way that we can be secure is, you know, with the Dick Cheney so called 1% doctrine. If there's a 1% chance somebody's gonna do something bad, let's kill it, bomb it, throw a predator drone at it. Yeah. And in some sense it's counterproductive because we end up creating more enemies.

Of course we do. The blowback issue, I mean, you know, Ron Paul's talked about that extensively, of course. And that's why we get things like stop and frisk in New York City. I mean, that's just unbelievable that it's like watching old movies about East Berlin. I mean, it's just, it's mind boggling. It really is.

But I say, but that is. But trying to look at, you know, 50,000ft here, the underlying philosophy that has to be attacked is, hey, everything should be subordinate to safety. No, there's things that we take, say we take risks because we understand we can't have liberty unless we take some reasonable risks. Because nobody can swear on a Bible or a Quran or something else that they are a saint and can never do anything wrong. Neither you nor me nor anybody could say there's zero risk we ever do anything wrong. And if you want a zero risk life, then all of us are in penitentiaries or in a grave, which obviously is absurd. But we have to get away from this instinct. Everything subordinated to safety, safety, safety, safety, and anything that might add an increment of safety is worth it. No, not everything that it might add an increment of safety is worth it. We don't interrogate detainees and tell them unless they answer, we're going to go rape their wives and kill or kids. We don't do that. Even if it would work, we don't do that because of who we are as a people.

Right, right. Yeah. Now very good point. You made a remark in earlier, Bruce, that was kind of interesting to me where you talked about how the, the wiretapping program is something that you didn't just mention terrorism, but you mentioned criminal activity. Are they actually using it for other suspected criminal activity? I mean, so say, for example, there's a mobster out there and they want to bust them under a RICO statute, or someone's just talking about robbing the local 7 11. I mean, are they looking for keywords like that in the metadata?

Well, what we do know is this. Recently the Solicitor General said that although in the past the practice was when this metadata collection program had been used indirectly to provide evidence that led to criminal cases, they would not inform the defendant that that had been done. So the defendant wouldn't have a chance to challenge the constitutionality of the metadata collection program. It comes from a program. It's unconstitutional, then the fruits of the metadata program can't be used in criminal cases. So we're now just getting a glimpse when the government is, I think, alerted, maybe as many as a half a dozen defendants. We actually use some of this metadata in your criminal case, from my understanding, the ones that have been identified so far have been accused of terrorism type of crimes, but they are civilian crimes. I mean, they're not tried before the military commission. These are cases tried in criminal courts every bit as much as the O.J. simpson case was tried in criminal courts. So the fact is they clearly are using the metadata collection program to prosecute criminal cases. Now, my belief is that if they did use, even, even if they started out trying to, or suspecting that some of the metadata would lead to a terrorist crime, if it led to a RICO crime, I'm sure they'd use it and prosecute it for that. There's nothing in the. The regulations and the practices that have been described over the last months that suggests they wouldn't say, well, we stumbled upon evidence of RICO or drug violation. So here's the evidence.

I can just imagine. And this now being expanded to business, like civil disputes, where, you know, if someone feels that they got ripped off in a business deal, they go to the NSA and subpoena data, find out. I mean, you know, they can. They can, you know, certainly subpoenaed.

Yeah, you could, you could imagine divorce cases as well.

Yeah.

And what is very troubling, Jason, is that the. The oversight is virtually zero. I mean, all of what the NSA says they're doing is based upon trust because Congress doesn't see any of that. We see now that the CIA is accusing the Senate Intelligence Committee of hacking into the CIA's computers in a criminal. So all of this, we're just hoping that the NSA is complying with this. That's not how our system of government is supposed to work. A separation of powers, checks and balances. Supposed to work, as Madison said in Federalist 47, to make ambition counteract ambition. So you have institutional checks, people with different motivations doing the oversight, like the Church committee overseeing the years of misconduct, malfeasance, if you will, by the CIA and other intelligence agents, including the nsa, but the congressional oversight committees, that's laughable. So all of this is just hoping that the NSA is accurate in describing the generally narrower scope of the use of the metadata than we think. But who knows what they're doing Sunshine has been said to be the best of disinfectants. And the heart of a Republican form of government is transparency. Because how can you have government by the consent of the governed unless the governed know what the government is doing? You can't consent to something you don't know that's happening. And that point is illustrated by the Ed Snowden revelations. Once the American people were alerted to what the NSA was doing, you know, the overwhelming majority, like 75% said we need change now. That that attitude couldn't crystallize until they knew what the NSA was doing. The NSA was bent on keeping it secret forever. So I revert to that because it shows the deformation of the Republican democratic processes that come from government secrecy.

Very, very good point. Last question for you and I appreciate you staying longer. Bruce, this has been fascinating. What do you think the fate of Edward Snowden will be? Will people get behind him? Will the government back down? So far I do not know of any truly damaging information damaging to national defense, which is always the excuse that has ever been released. However, I may not know of it, but I certainly have not read it or heard it anywhere.

No, I. No, I have not either. You get these general statements. Well, there's more evasive action by the enemy after Ed Snowden's revelations than before. If the Bradley Manning, Chelsea Manning sentencing for the WikiLeaks disclosures, the government was unable to show any concrete harm that came from a vastly greater release of classified information. And with regard to the Snowden revelations, that's all we have is the government saying, well, there's evasive action. But who knows? Why would we believe the government on that score? And if we can draw from past experiences, the government regularly lies, misrepresents, what they say will be calamitous consequences for disclosures of classified information in my lifetime. Maybe you remember the Pentagon Papers that was disclosed by Daniel Ellsberg to the New York Times, Washington Post Senator Mike Revell. 47 volumes classified of the history of the Vietnam War. And the government went to court, tried to enjoin publication, said the sky would fall if these revelations were made public. The Supreme Court said no, the publications went forward and the post mortem found no impact on our national security, safety or otherwise.

So it seems to me like the government should have the burden of proof to prove some kind of actual damages, because they can. The problem is they have the power to just say everything is classified. So you can't talk about any. You can't do anything.

Yeah, you're exactly right. You're exactly right. And I would certainly subscribe. After all, the government says they have the information. Well then prove it. Just don't say it. Because when you just say it, why would be believe it? You have a reputation for dishonesty, for mendacity. Say most recently James Clapper saying, no, the NSA is not collecting data on millions of Americans. A flat lie. So the burden ought to be on the government to show danger. And it's got to be concrete, not just, well, who knows what evasive action might have been undertaken. Because that's a negative that you can't ever prove one way or the other. Free speech is sufficiently important in my judgment. We have always lost more as a republic and our values by secrecy than anything that we've surrendered with regard to national security. With openness, transparency will prevent vastly more harms, follies, stupidities, adventurism that have people killed for no reason than disclosures will ever harm the United States. And it goes back again to the idea that, yeah, it may well be that if we had all of our laws that were secret, all of our prosecutions were secret, nobody knew anything, maybe the enemy might not get any advantage at all, but we wouldn't be a free people. The fact is that we have, our laws are public. You know, Al Qaeda knows what our authorities are under the FISA statutes. But the American people need to know because we get to decide our own destiny. We get to decide what level of risk we're wishing to encounter, consistent with our honoring liberty and freedom and avoiding being complicit in injustice.

Excellent points, excellent points. Bruce. Fine, this has been a fascinating discussion. Please give out your websites and tell people where they can find out more about your work.

Well, one, you can google me, you can go to either the Future of Freedom Foundation Campaign for Liberty website. I have one in construction right now. And please buy my books that expand on this philosophy. American Empire before the Fall Constitutional the Life and Death Struggle for Our Constitution, Democracy. You can get both of those books off of Amazon or Barnes and Noble and I think you will be convinced of the need for all of us citizens to stand up and say no. We need to return to the values of our republic. And remembering always, the only love that never grows old is a love of integrity and principle.

Fantastic, fantastic points. And I hope to see that after you win the case that that big giant data center in Europe, Utah will be converted to the offices of the Future Freedom Foundation.

Yes, or what we can do is we can build a monument to the fourth Amendment there.

How's that that would be fantastic. Well, Bruce, vine, thank you so much for joining us today.

All right, thank you for inviting me. Have a great day.

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