Jason Hartman welcomes constitutional law specialist, Bruce Fein (pronounced “fine”), to episode #386 of The Creating Wealth Show. Fein has been officially involved in matters of personal freedom and liberty as far back as the early 1970s when he drafted the articles of impeachment that eventually drove “Tricky Dick” Nixon from the White House.

During the Reagan years, Fein served as general counsel to the FCC and was instrumental in getting rid of the Fairness Doctrine. This was a good thing. We’ll tell you more about it later. In addition to writing numerous articles on constitutional issues for The Washington Times, Slate.com, The New York Times, Legal Times, Mr. Fein has written such books as American Empire: Before the Fall, and Constitutional Peril: The Life and Death Struggle for Our constitution and Democracy.

Fein worked for the American Enterprise Institute, and the Heritage Foundation, both conservative think tanks as an analyst and commentator. Additionally, he is a principal in a government affairs and public relations firm, The Lichfield Group, in Washington D.C., and a resident scholar at the Turkish Coalition of America.

Rand Paul Sues President Obama
Jason dives right into Fein’s recent work with a question about the lawsuit filed by Senator Rand Paul (R) of Kentucky over the NSA surveillance program. The program, according to the complaint, which was written by Mr. Fein, alleges that the government commits a violation of the 4th Amendment (right to be let alone) with each telephone number it tosses into a massive database.

Fein is An Expert Impeacher
In addition to drafting Articles of Impeachment for President Nixon, Fein has been tasked to do the same for former Presidents’ Clinton and Bush when they held office (#43), as well as Bush’s former Vice-President Cheney.

Meet the REAL Father of Talk Radio
We told you we’d return to this topic. During President Reagan’s term in office, Bruce was appointed to serve as general counsel to the FCC. At issue was the Fairness Doctrine, which was enacted in 1949 and required a holder of a broadcast license to (1) present controversial issues, and (2) allow for contrasting views. In several cases, The Supreme Court ruled that government-enforced access to the airwaves invariably had a chilling effect on public discourse. In 1987, the doctrine was officially abolished by a 4-0 vote by the FCC.

Jason and Bruce conclude the interview with a spirited discussion of liberty and tyranny in America today. Fein noted a pertinent quote from Thomas Jefferson:

“When the government fears the people, you have liberty; when the people fear government, you have tyranny.”

These days, it seems like we could use a lot more fear of the people from our government.

Check out this episode!

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ANNOUNCER: Welcome to Creating Wealth with Jason Hartman! During this program Jason is going to tell you some really exciting things that you probably haven’t thought of before, and a new slant on investing: fresh new approaches to America’s best investment that will enable you to create more wealth and happiness than you ever thought possible. Jason is a genuine, self-made multi-millionaire who not only talks the talk, but walks the walk. He’s been a successful investor for 20 years and currently owns properties in 11 states and 17 cities. This program will help you follow in Jason’s footsteps on the road to financial freedom. You really can do it! And now, here’s your host, Jason Hartman, with the complete solution for real estate investors.

JASON HARTMAN: 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.

JASON HARTMAN: It’s my pleasure to welcome Bruce Fein 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 surveillance program, involved in, 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 is a great believer in freedom, and stopping government surveillance. So it’s a pleasure to welcome Bruce Fein. Bruce, how are you?

BRUCE FEIN: I’m doing well. Thanks for inviting me.

JASON HARTMAN: Good, good. And, where are you located? I just want to give our listeners a sense of geography.

BRUCE FEIN: 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 moved out to California in Palo Alto during high school, and I returned east coast for law school at Harvard again at Cambridge, then I’ve been in Washington, 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 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 I’ve written two recent books; one’s called American Empire Before the Fall, another called Constitutional Peril: The Life and Death Struggle for a 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.

JASON HARTMAN: Fantastic. And in addition to that, as if your resume isn’t long enough—it’s fantastic—under Reagan, you ran the FCC. Right?

BRUCE FEIN: Well, as general counsel to the FCC, I 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—

JASON HARTMAN: We’ve talked extensively about this.

BRUCE FEIN: I’m sort of the father of talk radio, so to speak, because it made it available without worries of financial setbacks because of fairness complaints. Among other things. I was also there with the breakup of AT&T.

JASON HARTMAN: 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—we’ve talked about that a lot on the shows. But, tell us about the Rand Paul case, if you would.

BRUCE FEIN: Yeah. So, the Rand Paul case, you know, if we want to go back historically, how did it originate? How did the 4th Amendment originate, this right to be let alone? And we need to remind ourselves that the American Revolution was really sparked 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 and 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 if we want to think about the spirit or the mood of the 4th 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 the forces of the crown. He 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 4th 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 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 4th Amendment. And we really turned it on its head with this program that is being challenged in the complaint I drafted on behalf of Rand Paul and Freedom Works, serving as the class plaintiffs for everyone in the United States who has made a phone call since May of 2006.

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

BRUCE FEIN: 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, to get Domino’s pizza, or whether you’re making an international, every single call is picked up and telephony metadata is gathered and put in a database.

JASON HARTMAN: Okay. So the excuse—let’s just take the government’s side for a moment here. the excuse they’re using is number one they have the FISA Court, and they’re saying that even though this is secret, it is heard, you know, the citizens rights are theoretically considered. Which I don’t believe for a moment—

BRUCE FEIN: No, well, the argument is, I think, facile. First of all, the Constitution trumps the FISA Court or statutes. The Constitution is there because there are certain things the founding fathers thought were so important, they shouldn’t be subject to elections and simple legislative majorities. That’s why we have the Constitution. It says there are 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 it’s called the Foreign Intelligence Surveillance Court, the FISC—has approved the program, doesn’t shield them from 4th Amendment attack. The second thing to remember is that in these presentations to the FISC, 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% convictions, if that’s the process.

JASON HARTMAN: Which is what I hear they do. They just basically rubberstamp everything for the government.

BRUCE FEIN: It’s close to that. But putting that aside, I think, if I can, let me just 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. For the next 500 years or more.

JASON HARTMAN: The War on Terror is such an ideal war, because it never has an end, so the government—

BRUCE FEIN: Yeah, perpetual. And moreover, it’s great for the government, because all the world becomes the battlefield where you can use military force. There’s no geographical area that you can enter which says oh, the president can’t kill with a predator drone if he decides to do so.

JASON HARTMAN: Yeah. It’s an ideal situation. It just gives them unlimited rights, virtually. Yeah. Go ahead.

BRUCE FEIN: 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 this surveillance program. I call it the Mass Associational Tracking Program in the complaint. And remember, the Mass Associational Tracking Program that began in May of 2006—it was also intended to be secret forever. The government hoped that there would never be an Ed Snowden, there would never be a whistleblower, and we would never know about it, so we could never have this conversation, and Rand Paul could never file suit, because he’d never have definitive proof that his telephony metadata was being collected and searched by the government.

So we need to remember, absent Ed Snowden, nobody could even file 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 and date, and a little bit of the location. That is by a trunk line, you know probably within a hundred yards where the call was made from. All of that data is collected in a huge database. It’s huge—the largest database in the history of mankind by far. And remember, when you get a telephone number, ordinarily it takes about 5 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 is specious. The government can find out the name associated with a number very quickly. So, all of this—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 is wrongful or harmful. Not criminal activity, not terrorist activity, not foreign intel. They just gather it all. And they stick it there. Now, what they do with it after—they then maintain it in this huge database, which has no more security about it than the security of information that Ed Snowden was able to capture and reveal to the newspapers. When the NSA says they have a reasonable suspicion—a reasonable articulable suspicion—they call it in legal lingo, RAS—they get a telephone number abroad is connected to an international terrorist organization. And 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 end 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 three hundred 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 pop, or the first hit in the database.

So they go out what they call the second hop. Everybody who’s called that first person, who had been called by a number that is thought to be associated with a terrorist organization—they then fall into this 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 in maybe as many as a million telephone numbers. In any event, that’s how the program worked, and since May of 2006—

JASON HARTMAN: And I just gotta 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. I mean, the whole—the whole concept of freedom of association has just been—it’s gone.

BRUCE FEIN: It is! And that’s why I call it the Mass Associational Tracking Program. But since May of 2006, that’s about an 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 presidentially appointed commissions, or study groups: the Presidential Civil Liberties Oversight Board, and another presidential group that Obama appointed to examine the program and make recommendations. So, these—President Obama’s own people concluded that the program has foiled zero terrorist plots over eight years. This is 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 4th 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 4th Amendment, that the citizens enjoyed in 1791 when the 4th 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.

JASON HARTMAN: Yeah, the Pony Express.

BRUCE FEIN: The Pony Express.

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

BRUCE FEIN: No, no. And moreover, it—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’ve 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 and search out 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, drastically exceeds the privacy expectations that would have obtained among the citizenry in 1791.

JASON HARTMAN: It’s just unbelievable. So what is going to happen? 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?

BRUCE FEIN: 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 is still, I think a puzzle, is the fact that—

JASON HARTMAN: So did they answer yet though? 60 days has passed.

BRUCE FEIN: No. We have not had an answer yet.

JASON HARTMAN: So they’ve asked for an extension then?

BRUCE FEIN: No. The 60 days doesn’t run until what’s technically called you serve the defendants, and they have to have a summons, it adds additional days of delay—

JASON HARTMAN: Okay, I understand.

BRUCE FEIN: But—so, we may get an answer—my guess is sometime in April. But, we also believe that we—there’s an element that is—I don’t know if 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 July of 2015. That’s next year. Unless it’s extended. Now, in the past, the Congresses always extend Patriot Act provisions. Section 215 of the Patriot Act, which is the authority that’s used to undertake the program. 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 permitted to lapse, then the lawsuit would be in a position of saying, alright, 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 can imagine, even since May of 2006, you know, the number of phone numbers that they’ve got in the database is just—

JASON HARTMAN: Oh, it’s billions. Right.

BRUCE FEIN: I mean, literally, every single call you make. A phone call to anybody—

JASON HARTMAN: It’s all there—

BRUCE FEIN: However short—your cell phone, your landline, or otherwise

JASON HARTMAN: Every email—

BRUCE FEIN: Is in that database,

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

BRUCE FEIN: Well, we don’t—see, that’s a little bit too broad.

JASON HARTMAN: Okay.

BRUCE FEIN: For this reason. They did have a companion Internet metadata collection program in 2006, but Ron Wyden and Mark Udall, they’re senators, democrats, sort of forced the hand of the NSA, and said, can you show us anything this has accomplished? And 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 if the NSA is telling us the truth. Now, we know that 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 proposition, that—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.

JASON HARTMAN: Okay. And so, you may go—I mean, 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’ll—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, talk to us about some of the possible outcomes.

BRUCE FEIN: Okay. If we—so, let’s say, the best outcome from our point of view is that the court finds the program unconstitutional under the 4th Amendment, it requires all the data to 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 were either implicated in some kind of terrorist act or criminality, or had probable cause to believe that you possessed evidence that was relevant to proving a crime or international terrorism. That’s a standard that isn’t met now, but as regards to any of the data that they’re collecting.

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 in a huge database? And coming up with 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? 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?

JASON HARTMAN: But when you have a virtually unlimited budget, and unlimited resources, as the government does, you don’t have to be logical.

BRUCE FEIN: Right. Since you’re spending other people’s money, you keep spending.

JASON HARTMAN: Or, and you just print money to pay for it. But that’s a different issue.

BRUCE FEIN: Yeah, the Fed decides to do quantitative expansion, you’ve got another trillion dollars that’ll keep you going for a while.

JASON HARTMAN: And all the citizens just got a little poorer. You know?

BRUCE FEIN: 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 judges’ 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 made a few tiny changes in the program whatsoever. So, and 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, argue against probable cause, under a new privacy dispensation. So, that there isn’t this indiscriminate collection. So, 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—

JASON HARTMAN: 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—

BRUCE FEIN: No they don’t. And even in the larger sense, I think they also are quite [unintelligible] counterproductive for the government. And I repeatedly say that 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? And 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 the people’s support—and remember, it’s the people, basically, who have stopped the Richard Reeds, and the Abdulmutallabs from the, you know, 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—

JASON HARTMAN: 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!

BRUCE FEIN: Yeah! And so, you want to keep the citizens loyal, and having faith in their government! And you do not do that! You do the opposite, when you treat them as traitors! 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 we have to spy on you! And what that forgets is the basic maxim of the 4th 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 happened because we’re willing to take those risks. Life is filled with tragedies. We don’t—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 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 gotta 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? It’s 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 force, but in its velocity, that’s where we’re going!

JASON HARTMAN: Yeah. Well, don’t worry, have faith, the Soviet Union seems to be coming back [LAUGHTER] so.

BRUCE FEIN: Maybe that’s what we need. Putin, now we need you to become an empire, so we can understand how we’re different!

JASON HARTMAN: What not to be. Yeah, exactly. Exactly. That’s a great point. Couple more things I want to just touch on before you go, Bruce. And you made some excellent points, so thank you. I remember back in 1999, in 2000, reading and being outraged about the program called Carnivore. Do you—I’m sure you know about that.

BRUCE FEIN: Yep.

JASON HARTMAN: And then 9/11 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. So, just if you had any comments on that, or how the change happened, or just any thoughts on that in general?

BRUCE FEIN: I think that the—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 people that if they wish to be free, and enjoy liberty, they’ve 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 murderers, but we don’t catch all of them. We sentence murderers sometimes to death, sometimes to 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 marshaled. Right? 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 gotta be risk. Risk that enables people to do wrong things. Because nobody is born inherently a saint.

Now, with regard—and it’s important, I think, when 9/11 happened, the leaders should have said this is a terrible—this is an 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 9/11 is that they—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 in Munich, and Stalingrad, and everything else that was utterly absurd as it 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 as hey, if you’re against this authority, there are gonna 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’s gonna be another equivalent to 9/11 and thousands of people are gonna die—that’s the wrong approach to understanding what civilized life is about. You can’t get through life without taking risks and being honorable. Because if you take no risks, you treat everybody as a potential terrorist and kill them all. Imagine that. Walk down the sidewalk—okay, that person could be a secret terrorist, let’s kill him. No risk. That would be savagery that no one would tolerate if they had any kind of heart. And that’s to say—9/11 unfortunately has been exploited by the leaders in order to frighten people into thinking that 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. And in some sense it’s counter productive, because we end up creating more enemies—

JASON HARTMAN: Oh, of course we do. The blowback issue—I mean, Ron Paul’s talked about that extensively, of course. And that’s why we get things like Stop and Frisk in New York City; that’s just unbelievable. It’s like watching old movies about East Berlin! I mean, it’s just—it’s mind-boggling. It really is.

BRUCE FEIN: But trying to look at 50,000 feet here, the underlying philosophy that has to be attacked is, hey, everything should be subordinate to safety. No! There’s things that we take—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 Koran 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’d 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, get everything subordinated to safety, safety, safety. Anything that might add an increment of safety is worth it. No, not everything that might add an increment of safety is worth it. We don’t interrogate detainees and tell them that unless they answer we’re gonna go rape their wives and kill their kids. You know? We don’t do that. Even if it would work. We don’t do that because of who we are as a people.

JASON HARTMAN: Right, right. Very good point. You made a remark earlier, Bruce, that was kind of interesting to me, where you talked about how the wire tapping 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 him under a RICO statute. Or someone’s just talking about robbing the local 7/Eleven. Are they looking for keywords like that in the metadata?

BRUCE FEIN: Well, what we do know is this. Just 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 [unintelligible] program is 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—hey, we actually used 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’re 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 OJ 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 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 regulations and the practices that have been described over the last month that suggest they wouldn’t say, well, we stumbled upon evidence of RICO or drug violations, so, here’s the evidence; use it.

JASON HARTMAN: I can just imagine 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 to find out—I mean, you know, they can certainly subpoena your email box—

BRUCE FEIN: You could even imagine divorce cases.

JASON HARTMAN: It’s unbelievable. It never ends!

BRUCE FEIN: Yeah. And what is very troubling, Jason, is that the oversight is virtually zero! I mean, all of the—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 intelligence committee of hacking into the CIA’s computers in a criminal way [unintelligible]. So, all of this—we’re just hoping that the NSA is complying with this. That’s now how our system of government is supposed to work. Separation of powers, checks and balances, it’s 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 agencies, including the NSA.

But the congressional oversight committee—it’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 is happening. And that point is illustrated by the Ed Snowden revelations. Once the American people were alerted to what the NSA was doing, the overwhelming majority, like 75%, said, we need change! Now, that added to, couldn’t [unintelligible], 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.

JASON HARTMAN: 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.

BRUCE FEIN: 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—that’s 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. And my lifetime, maybe you remember, the Pentagon Papers that was disclosed by Daniel Ellsberg to the New York Times and 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—

JASON HARTMAN: 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.

BRUCE FEIN: 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 we believe it? You have a reputation for dishonesty. For mendacity. 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 gotta 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, in our values, by secrecy, than by 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! 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.

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

BRUCE FEIN: Well one, you can Google me, you can go to 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 Peril: The Life and Death Struggle for our Constitution and 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 the love of integrity and principle.

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

BRUCE FEIN: Yes. Well, what we can do is build the monument to the 4th Amendment there, how’s that?

JASON HARTMAN: Absolutely, that would be fantastic. Well, Bruce Fein, thank you so much for joining us today.

BRUCE FEIN: Alright. Thank you for inviting me. Have a great day.

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Transcribed by David

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

Guest: Bruce Fein

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