The Cost of Freedom -- Civil Liberties, Security and the USA PATRIOT ACT
Subject: Damon Moglen
Interviewer: Alison Rostankowski/Chip Duncan
Transcripts: Troy Avdek
The segments included in this interview* excerpt were recorded in October 2003, as part of The Cost of Freedom - Civil Liberties, Security and the USA PATRIOT ACT, a look at the history of civil liberties in America and the controversy surrounding the USA PATRIOT ACT. The documentary is a co-production of The Duncan Entertainment Group with Iowa Public Television. Damon Moglen is the national field coordinator for the American Civil Liberties Union, National Legislative Office in Washington D.C.
(* This transcript has been edited due to length.)
How would you define civil liberties and how do you interpret the founding fathers’ intent?
Well I think civil liberties is the space in which we are free to be who we are, how we are and when we are. It’s really an idea of creating a society that protects personal freedoms; while also taking into account that as a society we live together and that we have interlinking and sometimes conflicting interests. And I think one of the extraordinary experiments of American democracy was that the founding fathers and mothers were people who were completely beyond their time in recognizing that the Constitution needed to be a document that would allow for extraordinary levels of flexibility. It’s not just as simple as the fact that statements about men being free and equal or able to become people being free and equal. It’s not just the statements about who could vote, appearing to be, at first very open but that became much larger. Their language was very flexible. And very open and the experiment of American democracy I think has very much been to increasingly inhabit that wonderful open space that are civil liberties in our country.
When we enter times of crisis, in your opinion and in the ACLU’s opinion, do the ends ever justify the means, when you look at actions like the Patriot Act?
I think that there are repeated events in US history where there have been times of crisis that we have looked back with true horror at what we did. That at moments of great crisis we acted in ways, which we now recognize to have been hysterical or wrong, headed or racist or we became clenched. We lost assurance of the very things that we most hold dear, and rather than exercising those, reflecting those, we began to hide them, we began to deny them, we began to think that somehow those very things that we hold so dear led somehow to the crisis that we found ourselves in. And I like to think that after the fact, that after time, after the dust had settled that the country has been able to turn around and say, “Wait a minute, we did something very wrong.” And I think that is what happened with the internment of Japanese Americans for example, during the Second World War. I think that it happened after the Palmer Raids and what happened in the late teens and early twenties. So, I think that it goes back as far as the Alien Sedition Act at the end of the eighteenth century. Which is to say we have repeatedly had these moments and I like to think and the ACLU likes to think that one of the remarkable things about our country is that we were able to turn around, undo errors that were made, try to apologize for errors that were made, and continue to forge ahead in inhabiting the liberties that the Constitution and the Bill of Rights give us.
What about avoiding them in the first place?
Well a nation and a government are made of people and I think that for anybody living in Washington D.C. at the time of September the 11th, the ACLU’s offices were wedged at the time directly between the US Supreme Court and the Hart Senate office building, we liked to call it Anthrax Alley at that time, as you may remember not only did the Congress have a sense that it had been under direct attack by these terrorists, who after all had been flying a plane towards them as far as they were concerned. But also, of course, that with the Anthrax attack and suggestions from the government that somehow these things might be connected, there was a true hysteria in Washington. That does not excuse anything and the Patriot Act as far as the ACLU is concerned is inexcusable. It was dumb at the time and it’s dumb now. But the fact is that what you saw there was a time of true hysteria and fear. I mean remember that you have US Senators who are voting for a piece of legislation that not only have they not read they can’t even get into their offices. The disruption of the US government at that time is a very significant thing. And again, it doesn’t excuse it, but I think it’s important to recognize that these people were also under a tremendous level of stress and strain and what they did was really dumb and really wrong and now we’ve got to change it, we’ve got to make it, we’ve got to take back the civil liberties that have been so much put to risk.
Can you identify with some specific examples where the Patriot Act is problematic, if not unconstitutional?
Well, I think that first of all, what’s important to recognize is that the Patriot Act is only one of many problems that have been launched in the aftermath of September the 11th. The ACLU is very concerned about a series of federal actions, not just the Patriot Act. There’s the Patriot Act, there are the rewritten FBI guidelines, there are programs like the total information awareness program of data mining and data collection. There was the TIPS program in which citizens were asked to snitch on other citizens. In particular, what the Patriot Act does is that you have a series of problems. For example, Section 215 of the Patriot Act which is allowing the seizure of private records. These records can be seized without any indication of criminal wrongdoing on the part of the subject. So what that means is this is basically a green light for fishing trips to be conducted, in which peoples’ most private information, their library records, their electronic monetary records, their medical records, they can be seized without a true indication of any criminal wrongdoing on their part. And through a process, which amounts to a rubber stamp from the judiciary. Behind that for example, is even more what we’re worried about which is that you have in this case an example in which there is a change in the environment. We’re under the impression for example, that what happens is Federal Bureau of Investigation agents go into a library and they say to a person there, “We’re here under a federal investigation and we really need this record.” They’re not following the rules of the Patriot Act, they’re actually playing on the sense that what they’re doing is appropriate now. That these are unusual times. We are at war. So, you have a situation in which a problem like that one is even deeper than at face value. It’s not just that the Patriot Act is allowing this to happen, it’s that in a sense it authorizes a form of intrusive federal behavior that is very similar to what we had in the 1950s for example. Other issues of concern to us are for example the new definition of domestic terrorism. Under this new definition, it is very clear that organizations that participate in actions of civil disobedience in this country on the left, on the right, are now potentially going to be identified as domestic terrorist organizations. Now that means an organization like Greenpeace on one side or these organizations like Operation Rescue on the other side could well be deemed by a right wing attorney general or a left wing attorney general as organizations which should now be identified that way. And there’s a myriad of other problems. Sneak and Peek warrants, the ability to tap phones, all kinds of things in which in many ways the need for there to be a criminal predicate, an indication of criminal wrongdoing, those have been removed. And that is a tremendous danger. A tremendous danger.
How does Ashcroft, or other people in the justice department, sit down, construct this document and see this document? How is it that they reach very different conclusions than you, the ACLU, that they do believe that this is Constitutional? How can two groups look at this and have such different opinions?
I think first of all you really have to look at how the Patriot Act was created. I think that a metaphor really can be used in filmmaking that the way that the Patriot Act was created was that in a time of crisis the attorney general and the Department of Justice turned around and said, “We need to know, what are the things that you have always wanted, that you’ve always needed to deal with these kind of problems?” And people collected all of those scraps, all of these aspects of various laws that had been rejected in the past as being too intrusive, too draconian and it was cobbled together. The Patriot Act is not a well thought out bill. It is not something that was given the kind of time and consideration. It was pulled together and it reflects what certain kinds of law enforcement officials always wanted. What was their wish list of opportunities? So, it was cobbled together in this way without a real reading in the Congress, without the kind of hearings that should have taken place. And it was then rammed home. And as you’ve probably heard the story that the ultimate bill that we call the Patriot Act was for example delivered to the Congress the night before it was voted on. So it is fair to say that truly, a very small number of US Congress people, have actually read the Patriot Act before they’ve passed it. Why I think there can be such a disagreement about what the Patriot Act means, is that there are law enforcement officers who feel that they need these powers. They are very aware of the tremendous burden that rests on them to protect the public. And that they feel that these powers are clearly appropriate and necessary. I also have to say, and I think the ACLU feels that one of the shocking aspects of September 11th is that our government had a tremendous amount of information, indications of a problem, of various problems that in turn became the terrorist attacks of September the 11th. They did not connect the dots. And people are responsible for not connecting the dots, for not using the powers they had, and one of the things that government does is, rather than accepting responsibility for not having connected the dots, having done something that they could have done, they tend to ask for new powers. Suggesting that somehow the problem was not one of doing the right thing in the first place but somehow they need something new so. And that’s very much what we feel has happened. That rather than really assessing why it is that they didn’t use pre-existing powers, and they didn’t connect the dots, they’ve now instead asked for whole series of additional powers. And that’s inappropriate and it’s bad policymaking.
In the context of the Bill of Rights and the Constitution, when you look at issues of national security, what is the proper balance and how do we achieve that?
I think that really the ACLU feels that the Constitution does not say that we’re supposed to change at times of threat. The Constitution does not say that because the President thinks someone is quote “an enemy combatant,” the President has the power to say, “You are no longer an American citizen.” This is an essential error. As American citizens we have these rights, they are inalienable rights. And yet we now are at a time where by decision by the President to say, “You are a bad American, you are an enemy combatant. I am going to remove your most essential rights.” That’s not in the Constitution. That is not in the Constitution. That is a critically mistaken grab of power. And the ACLU certainly believes that in time it will become clear that there have been a series of grabs for power that will have to be renounced. And that this will be another unfortunate chapter in U.S. history of at a moment of crisis, government overstepped and took away civil liberties it did not have the right to take away.
Can you give us some examples now? If you are listening to your average radio commentator, for example, the big question is, “Give me an example.” John Ashcroft says, “Yeah, we can look at your library records, but we don’t. We can arrest somebody, but we haven’t.” So how do you respond with examples of abuse?
Well, first of all, in the immediate aftermath, of course, of September the 11th, you have hundreds and hundreds of people who are basically racially profiled. Illegally racially profiled. They’re collected because their names end with a certain kind of name. Their skin is a certain color. They are seen wearing the wrong kind of clothing. Or they are seen worshiping in a house of worship that is now questionable. That is not a question. This has happened. Hundreds of people in this country were taken off the streets, they were incarcerated, they were held without judicial processes. The most basic of our Constitutional rights were denied people. There is no question of this. And subsequently, what has happened in many of these cases is that people have been deported, not because they were terrorists, not because they had done something wrong, but because there were minor visa violations, and that in a sense, rather than leaving those people in this country, who then would raise questions about what had been done to them, those people have been effectively and summarily deported from this country. And that will be one of the chapters of the very ugly book that will be written about this period. With regard to Section 215 for example, this is an extraordinary thing that has happened from Ashcroft and his recent statements on Section 215, the one that allows you to take privacy records.
For example, he goes before the Congress and he says, “We urgently need these powers, this is a national, a national security emergency.” The ACLU goes into court saying, “This is wrong. This is unconstitutional.” And the representatives of the Department of Justice say, “To reveal this information, to give you knowledge about how many times we’ve used this, would disrupt our national security.” And a matter of weeks later, in a public statement, they suddenly announce, “We haven’t used this power.” These arguments seem to be worn by Mr. Ashcroft like different clothes on different days of the week depending on the weather. The fact of the matter is, if they don’t need these powers, then why did they demand them? We have to ask another kind of question. What does it mean when they say, “We haven’t used that exact power”?
It’s a little bit, like when Bill Clinton said, “What does no mean?” You know, I think you have to begin to say, “Alright, now wait a minute here. Does that mean that you have not used the power as it’s formally construed?” Because I could tell you, I have spoken with librarians who say that what they believe is happening, for example, is FBI agents show up at libraries at 11 o’clock on a Saturday night, a university library where there is a student who is standing at the front desk, who has no power and no authority, and an FBI agent walks in and says he’s there on a matter of national security and he really needs a record and he really needs it now. And the question is, does that eighteen-year-old person stand up to a FBI agent? Now that’s not done in accordance with the Patriot Act. The Patriot Act requires a rubber-stamped document from the judge. And our concern is it’s even worse than we think. That there are ways in which by tearing up the Constitution, that we now are in a situation in which there are ways that the government is operating outside even those perimeters which feel very much like the 1950s.
There’s an example, you may have read, that there’s this extraordinary case in Fresno in which a peace group has been infiltrated by an agent. For two months a young man sat in their meetings, this is a Unitarian, Universalistic, anti-war, peace group. A young man sits, takes copious notes. He maintains that he has all this time to be at all their meetings because he’s independently wealthy and he’s very committed to the cause. After about two months, he disappears. And one day, one of the members of the group reads in the newspaper that he’s tragically died in a motorcycle accident. Except the surname’s another surname, but the photograph is exactly this person. And under the obituary it’s mentioned that he happens to be a member of the joint-terrorism task force and he’s a deputy of the local sheriff’s office. This person has been secretly spying on people participating in first amendment-protected activities. They are not terrorists. They are Americans. They are participating in what makes American democracy, American democracy. And yet, they’ve been spied on, they have been labeled, they have been taken down as what? Risk to the state, I don’t know. But, and I think this is our fear that more and more of this is happening and that’s really scary.
Several people at this conference [Grassroots America: Defense the Bill of Rights] have expressed an opinion that the conference itself is probably being watched, probably bugged, probably has surveillance in the room. Do you come from that perspective? Or do you feel is there too much paranoia around this issue?
I think the situation breeds paranoia, the problem is, is there paranoia or is there completely a correct fear? I think that this is a government that has made it very clear that it is mindful of security in ways that we would find shocking. For example, it is now clear that this government has a policy in what they call “free speech zones.” If you support the President and you support his policy you are welcome to stand near to him when he gives a public speech. You are welcome to wave an American flag. You are welcome to hold up a sign saying, “We’re with you Mr. President.” But if that sign says that you are of a different mind, that you believe something different, that you criticize his policy, people are being told, “You cannot stand here, you have to stand a mile away – a mile away where no one else will see you. Where the media will not see you.” That’s in the “free speech zone.” That is about saying certain kinds of speech are acceptable to this government and this President and others aren’t. And you know what? That’s un-American. And it’s unconstitutional. And it’s wrong.
You mention the 1950s a number of times. What parallels do you see between then and now? Do you think what we’re seeing now is better or worse than what occurred during the Cold War?
Well, I think that there really are some parallels that we have to draw between the current era and what happened in the 1950s. I think that there is a sense that there are dangers amongst us, that there are people who mean to do us great evil. And who are themselves evil. Our government has talked about very evil people. And there is a sense that we are supposed to be watching, neighbor to neighbor, watching, noting, noticing. The government introduced, or wanted to introduce this program called TIPS which was all about, you better be looking through the window of your neighbor. So there’s a kind of paranoia that is being encouraged, that is being driven, and that is also being used to justify these new actions. Within that, I think that the kind of racial profiling that’s going on, deciding that certain people from certain countries, of certain religions, certain skin colors are necessarily suspect has to remind us of some of the things that were happening in the 50s, certainly behavior that was happening in the 1960s, and the response that certain officials had towards the civil rights movement or the anti-war movement. And in addition, it’s increasingly clear, for example, that when Mr. Ashcroft re-wrote the FBI guidelines, one of the things that’s in the new FBI guidelines, it specifically says that an FBI agent, on his or her own initiative, at the local level with no oversight from headquarters, can follow you into your house of worship, can follow you into your political meeting, without any indication that you are involved in criminal wrongdoing. What this is, is a complete rollback of decades in which in the 1950s, 60s and early 70s, the FBI was spying on people who didn’t agree with the government or who maybe didn’t agree with the local sheriff. And this is a rollback to that. Why is it that anybody should be spied on in their church, in their synagogue, in their mosque, in their political meeting if what they are doing is exercising their Constitutional rights and liberties? That’s wrong and it is a throw back to a much uglier and more dangerous period of time.
Abuses that occurred in the 50s, 60s and 70s were revealed during the Church Committee meetings. Can you tell me how the government decided to redress those abuses and then how the Patriot Act has rolled those corrections back?
Well for example, you talk about the Church Committee; part of what happened was that COINTELPRO became known about in the United States. These dirty trick programs of the 1950s and 60s, the process of spying on the civil rights community. The process of lying about them, of sexual innuendo about them, of demeaning them, of spying on them. As this became revealed, in the Church Committee and elsewhere, COINTELPRO became the thing that led, for example to the rewriting of the FBI guidelines in the 1970s. Those are the guidelines that on his own initiative, John Ashcroft has now rewritten, without Congressional oversight, without Congressional approval, those guidelines are an internal agency matter. And yet, as radical a change as open field for spying on first amendment protected activities without a criminal indication. So the answer is that they’re very bald faced in some cases about these changes. They don’t deny the changes, the question is, what’s actually happening and part of the society we now live in is so much of this is secret, you only learn about it anecdotally, you only learn about it after the fact or you only learn about it in a strange circumstance like a guy is killed in a motorcycle accident and suddenly it becomes clear that the guy you thought was just another political activist in your anti-war group, turns out to have been a spy, and was spying on you.
How do you define the war on terrorism, and who gets to decide when it’s over? And is it even a legal, constitutional war?
Well I think that first of all the ACLU took a very spirited position that the War Power Act that launched in part the war was not Constitutional - that the Congress was not supposed to actually give a go ahead to the War Power Act. In addition I think that the ACLU has been very clear in saying for example that we are deeply concerned that the war on terrorism has become a war on immigrants. This is a country of immigrants and yet now we are supposed to believe that just because people are a certain color, just because they come from certain nations that they are immediately and integrally suspect. That is un-American. That is un-American. I think we are very concerned that the war on terrorism is being waged in ways that do not appear clear to us - that are not constitutional. And that in turn, to say that these actions are justified with a war with no apparent end, with very unclear goals. And yet, that is supposed to be used as a justification for major and dangerous modifications in our Constitution and Bill of Rights that’s unacceptable. That is unacceptable.
What has happened then, in your opinion, to the system of checks and balances? What have you seen in the course of the last couple of years in relation to that issue that gives you particular cause for concern? Please also address issues related to the 1996 anti-terrorism legislation.
One thing I’ll say about the ‘96 Act, I mean my colleague Tim Edgar, who is our legal expert and also the lobbyist on this is actually here this afternoon and I’d encourage you to talk to him about ’96 because you’re absolutely right. Grover [Norquist] said it like it is, the fact of the matter is that certain powers that this government is using, were Clinton-era powers. The ’96 law was a very bad and dangerous law as well. It has become more fully inhabited in this time frame. There have been major, major, major threats now posed by this government to our whole system of checks and balances. You have a situation now in which powers the judges had to evaluate situations have been removed. What you now have is summary deportations without hearings. You have situations in which the President or the Attorney General decides that someone is an enemy combatant and therefore his rights are removed as an American citizen. There’s no judicial oversight for that abridgement. This is an extraordinary removal of the checks and balances of our system. You have situations in which, for example, the granting of these warrants under Section 215 for the seizure of records, the language of the Patriot Act says, “You will do this.” It is totally unclear by what process a judge even has the right to ask questions, to demand information. It is an instruction to the judge to grant this. And this raises tremendous questions about the independence and the power of the judiciary to act as a counter balance in these cases. And you have numerous examples where the government is walking in and saying that because of national security, you must hold into obeisance these beliefs in checks and balances. But that is an integral aspect of our system. We must not allow the checks and balances to be erased.
What do you think the appropriate response should have been to the security issues surrounding 9/11?
I think, personally, that Carter made a remarkable speech in his Nobel Prize speech a year ago in which Carter said, and many others have said it, it’s not just Carter, that the United States in the immediate aftermath of September 11th had an extraordinary moment. They had a moment to basically join with the world. The world was prepared to mourn the loss of a lot of people. And, the United States did exactly the wrong thing. Rather than seeing that this was a moment to affirm humanity, to affirm problems that plague us all, and to search our soul for why was it that this could happen, and to consider that maybe, at least in part, our government and our policy might be partially responsible for making people feel that this was the only solution, that this is what they wanted to do. We instead turned around and turned this into a question of the evil done to us alone. And I think that it was a terrible, terrible loss of what could have been made of a terrible moment. And that’s a very personal comment. I think that what should have been done, that what we needed to, and I think what the ACLU believes should have been done, is that at a moment like that we needed to look back in our history and recognize that at moments of crisis we had done very bad things. And that while we needed to by safe, and while the government needed to make people feel that we were safe, we needed to also remember what made America a country worth living in. And that at that moment, we needed to speak of those things, to speak of the fact that we would not allow freedom to be hidden. That we would continue to be the society that we believed was best about us. And instead I think we slid into a historical pattern. I think that the Patriot Act doesn’t come out of nowhere. It is in fact a law that collected pre-existing powers, pre-existing notions and in that moment, in that moment of crisis these extreme reactions seemed appropriate. They weren’t appropriate, but for some, they seemed appropriate at the moment.
Can you talk to how the protests against the Patriot Act have created strange bedfellows? Additionally, can you address the implications for organizations like yours coming together with groups you’re typically not aligned with?
Well I think that is one of the most powerful aspects of this rebellion. And this is a grassroots rebellion; these resolutions being passed around the country are truly a grassroots rebellion against the Patriot Act and other federal actions. And there is a connection of left and right, Republican and Democrat, libertarian and green - very strange bedfellows. You have in a place like Idaho. You have green, environmental activists working with pro-gun, very pro-gun activists who see their common interest. Otherwise, these have been people completely separated. Or for, example, you have pro-immigration organizations representing the groups of people who most recently have immigrated into this country, Latino people or Asian people, who are now working with right wing groups whose policy is in part very anti-immigration. And yet, these organizations recognize the tremendous implications of these intrusive federal actions. Another fascinating example of this is in Alaska, for example, where you now have a key Senate race taking place with Senator Murkowski in which the New York Times recently wrote that if you are going to be elected to the Senator in Alaska, you have to be pro-loyal, pro-gun, and anti-Patriot Act. But that speaks to the fact that here’s a very Republican state, a predominantly Republican state in which not only have all the major cities passed these very aggressive anti-Patriot Act resolutions, but the state legislature with only one vote against, has voted the most radical anti-Patriot, pro-Constitution resolution anywhere in the United States. I think that it speaks to the depth and the breadth of the opposition that’s growing in the United States as more and more people recognize how intrusive these federal actions like the Patriot Act are.
I was talking to a store clerk. He felt that hippies and rednecks make up the membership of the grassroots organizations protesting the Patriot Act. Therefore, we don’t need to be worried about their concerns. The store clerk felt this way and he actually knew a lot about the Patriot Act. He believed that the Patriot Act “is just a bunch of legislation that was already in place, they just pulled it into one file.” How do you get beyond the perception that those protesting the Patriot Act are just a bunch of nuts and don’t need to be taken seriously?
I think that the public perception is, in fact, very broadly that the Patriot Act is a mistake. We have seen that the Patriot Act is increasingly perceived as the touchstone for the growing anxiety in the United States about the intrusive nature of these actions. Whether or not it’s the Patriot Act or not, because after all there are a lot of different things going on, many of which have nothing to do with the Patriot Act. I mean the way that many of these deportations have taken place, the removal of the rights from American citizens, spying on the discussions between lawyers and their defendants, that’s not happening under the Patriot Act. FBI agents going into your church meeting, into your political meeting, that’s not happening under the Patriot Act, that’s happening under the new FBI guidelines. So there are an array of actions and yet I think that the Patriot Act has gone from being the thing that no one could speak badly about to a thing that an extraordinary array of people are speaking very badly about. And the fact that the communities that have passed these resolutions, nearly 200 communities so far, they represent over twenty-five and a half million people. When New York City passes its resolution, and it’s about to pass one of the most strong resolutions in the country against the Patriot Act and other federal actions, that is immediately going to jump up in the realm of thirty-five million people. This is not a fly-by-night phenomenon. This is a major grassroots rebellion.
What do you expect the outcome to be? Wouldn’t it be a little tough for President Bush and Ashcroft to change their minds at this point?
The array of legislation that has been launched this year and that will be launched next year is extraordinary. Eight months ago, as this movement was in its infancy, no one would have believed that you could have Republican Senators like Lisa Murkowski, like Mr. Craig from Idaho, standing up with liberal Democrats, and introducing legislation repealing or changing major sections of the Patriot Act. And that is accountable to the grassroots pressure, to the community pressure that is growing around the country. So we believe, the ACLU believes that in 2004 we are going to see much more legislation that is going to be looking to change, fix aspects. And then remember, part of the trade-off that was made to support the Patriot Act interestingly enough, very much because of conservative concern about the Patriot Act, was that Sections would sunset in 2005. Federal legislators love to side-step difficult questions. They cannot side step that one. They will have to make a decision in 2005 whether or not provisions of the Patriot Act will sunset. And what’s happening already is that many bills are being introduced saying more and more and more of the Patriot Act should be included for sunset and that this will be the decision in 2005. And a lot of this public pressure that is now being forced onto federal legislators is absolutely looking to see that in 2005 we are going to sunset, we are going to make this ride off into the sunset. That we are going to grab back our Constitutional rights and that the Patriot Act is going to be something that we’re going to dismantle. And I think there is a growing sense that that is going to happen.
What is your opinion of Wisconsin Senator Russ Feingold’s stand against the Patriot Act?
I think that it’s very easy to be deeply critical about members of the United States Congress. And that there was a true lack of leadership. But I think that when you look at someone like Senator Feingold - when you look at someone like Dick Armey, a very conservative member who basically stood up in the Congress and said, “You know what, in your homeland security bill, you are not gonna to have a TIPS program. That is not the country I believe in, neighbor snitching on neighbor.” And when you have someone like Senator Feingold standing up and saying, “I will not vote for this diminishing of civil liberties,” those men are acting - those people - those leaders are acting in the finest tradition. Or Senator Burr standing up and saying, “It is not right to vote the War Powers Act, it is not what the Constitution says we’re here to do.” I think that there have been voices in the wilderness, but it’s been voices in the wilderness. But thank goodness for those leaders.
How do you view the Constitution and the Bill of Rights?
Well, you know, it’s funny; I spent a lot of time in college studying Colonial American history and particularly the Constitutional period. The Constitution and the drafters are a remarkable phenomena. There was a foresight in the founding fathers and mothers that was extraordinary. That they could write a document which has been so capable of growing with time, of embracing understandings of liberties and rights, which I don’t believe they - they did not know what those rights and liberties might be, but they knew that they needed to create a text that would allow those things to grow. And not only have they grown, they’ve flourished. We’ve had bad moments, clearly, and yet that’s what that document does. I would really encourage you to read a very odd document and I’m not a big reader of Supreme Court decisions, but read the Texas sodomy decision. Because of all the strange places that you would not expect to find an incredibly beautiful statement about liberty, the Texas sodomy case, which was decided a few months ago, ends with this incredible statement about the way, and this is written by a conservative judge and he writes that one of the remarkable things about the Constitution was that they knew that they had to create this flexibility. And they were not thinking about whether or not the right to sodomy between consensual adults was good or not. I mean that was not where they were, and yet they created a document that in the ruling they say this is what this is about. It’s a fascinating ruling. It’s really, truly fascinating.