MEDIA ROOTS — Jonathan Turley, a professor of law at George Washington University Law School, discussed on C-SPAN his Washington Post article, “Are You Being Watched? It’s Your Fault,” “looking at the issues of surveillance and privacy and U.S. citizens’ loss of privacy protections,” as well as their own complicity in this crisis and related implications, such as the intergenerational erosion of privacy expectations.
One may be reminded of the U.S. public’s similar enculturation to a two-party system, for which they perpetually vote, but doesn’t represent their interests; instead, Democrats and Republicans collude to further corporate consolidation of power. But because of the intergenerational downward spiral of eroding public expectations, as in the loss of privacy protections, the public perpetually give up their rights.
Jonathan Turley on C-SPAN (19 December 2011)
WASHINGTON JOURNAL — “Jonathan Turley is law professor at George Washington University Law School. Thank you for being here.”
Jonathan Turley: “Thank you.”
“Also has the blog JonathanTurley.org, a legal blog, that goes over lots of issues, that are in the public eye, what’s going on in the legal world and their implications.
“You had a piece in the Washington Post recently called, ‘Are You Being Watched? It’s Your Fault.’ What does that mean?”
Jonathan Turley: “Well, what is often neglected in today’s, particularly presidential debate, but in all the overall debate in the country is that we have something of a crisis with regard to privacy. This country used to be distinguished, used to be defined by privacy. We have an innate sense of privacy, that you haven’t seen expressed in other countries to the same extent. Even close allies, like England, really don’t have the historic commitment to individual privacy the United States has had.
“But what has happened in a very short time is the erosion of privacy in this country, to the point of a crisis. I mean we’re fast becoming a fish-bowl society. I mean when you came here this morning, when you left your home, you were filmed on the roads, driving to the highways, on the highway, itself. If you stopped for coffee, you were filmed in the parking lot and in the 7-11. And then you got back in and you were surveilled inside your building. Most people’s businesses now have a hundred, video cameras, that run continuously. And you work in that environment. And then you turn around and you repeat that trip.
“And Americans are now used to being under surveillance all the time. I teach privacy at George Washington Law School. There’s a big sign in all of the classes, that says you are under surveillance.’ And I teach privacy with that sign right above my head.
“So, the question is: What’s happening to our society? What type of citizens are we producing when they grow up learning to expect, even be comforted by, continual surveillance?”
Libby Casey: “I wanted to read the last paragraph of this piece you wrote. It says:
“‘…the problem is not with the government, but with us. We are evolving into the perfect cellophane citizens for a new transparent society. We have grown accustomed to living under observation, even reassured by it. So much so that few are likely to notice, let alone mourn privacy’s passing.”
Jonathan Turley (c. 2:23): “That’s right. My students have a fraction of the privacy expectations that I had. And their children are likely to have even less. What we are not really discussing is what happens to a society where we expect, even want, to be under surveillance. That’s a completely different paradigm from what the framers [of the Constitution] believed was essential. What I think people miss is that the Constitution does protect privacy to a small extent, but not very much. What really protected privacy in the United States was the inability of the government to actually engage in surveillance for a lot of times. It would be a technological limitation. Those technological limitations are now gone. Government actually can engage in surveillance that the framers would never have imagined. And it’s coming at a time when people are no longer focusing on the loss of privacy because they are not used to having much privacy in this society.”
Libby Casey (c. 3:23): “You dig into the case Jones vs. the United States for the Supreme Court, which involves GPS tracking and putting a GPS tracking device in the vehicle of a suspect. Take us through your concerns about this case and what you think the implications are.”
Jonathan Turley (c. 3:37): “That’s perfectly Orwellian. In fact, that’s what Justice Kennedy said during oral arguments. He basically said, ‘Let me get this straight, you’re saying’—and this is the Obama administration is saying—‘that we should be able to put GPS devices on any citizen without a warrant, so, that we could follow them 100% of the time, know exactly where they’re going?’ And Justice Kennedy said, ‘Isn’t that pretty Orwellian that you would be able to do that?’ And the Obama administration’s argument is, basically, citizens have no expectations in terms of their travelling in public, even with a device, that shows every turn, every second, that they make. And that’s the reality.
“See? It’s strange, but we a cycle, like a 40-year cycle, where our privacy doctrines break down and we need a correction. The best example of that was in 1928, in a case called Olmstead. The Court created a truly ridiculous doctrine called the Trespass Doctrine. And that doctrine said that the government only needed a warrant if they physically trespassed on your property. Well, that, of course, is bloody ridiculous ‘cos what it did—it was actually one of the few cases where the Supreme Court actually forced technological changes. And, so, the market of surveillance immediately went to non-trespassory surveillance devices. And, so, the Supreme Court actually pushed the industry into developing ways to engage in surveillance, that didn’t involve trespassing, things like laser window pickups and parabolic mics.
“Well, the Trespass Doctrine was a huge failure. The government engaged in massive amounts of surveillance. Then, in 1967, the Supreme Court handed down Katz, which is a very elegant decision. And Katz was the decision, that said famously that the Fourth Amendment protects people not places. And that’s really great. I mean it really captured the moment. The test they created—”
Libby Casey: “Now, why is that important? Break that down for us.”
Jonathan Turley (c. 5:29): “Because the Trespass Doctrine treated your home, the physical outline of your home as what’s being protected. Well, that was ridiculous. What was really being protected is what the home represents, what’s within it, privacy.
“And, so, the Katz court handed down a test, that was really a major step forward for privacy. But it had within its seeds for its own destruction because what the Katz test said is that the government would now require a warrant to engage in surveillance whenever you have a reasonable expectation of privacy. Well, here’s the problem. It is that means that as your reasonable expectations of privacy fall, the government’s ability to engage in surveillance increases. And, as it increases, your expectations fall. And you have this downward spiral, which we’re in today.
“Most of my students today have very little expectation of privacy outside their immediate home or apartment. And that means the government have much more ability.”
Libby Casey (c. 6:27): “Do you think that the case, that’s now before the Supreme Court, Jones vs. The United States could be as significant in these privacy issues, as Katz was, as the earlier law was?”
Jonathan Turley: “It could. It’s coming around at the right time. We’re on the 40-year mark again. And the Court could correct its past problems. The problem, that we have, is that this is not the Court to do it. This is a very conservative court. There’s not a lot of privacy advocates on this court. It is the problem, that many Libertarians have with the conservative movement, that is many of the justices are conservative; they are not libertarian, in the sense that they tend to vote for the government on police and surveillance programmes. And they tend not to vote on individual rights and things like privacy.”
Libby Casey (c. 7:09): “Jonathan Turley is a law professor at George Washington University Law School.
“Here’s how you can join the conversation: Republicans can call 202.737-0002. Democrats: 202.737-0001. And independent callers: 202.628-0205.
“Let’s go to Nashua, New Hampshire. Hula is on our Independent line. Good morning.”
Hula from Nashua, New Hampshire: “Good morning, Mr. Turley. Actually, I have, both, sort of a question and a comment. I’ve heard a news that said now that we are no longer fighting a war, the drones, which were used in the war will be used to just fly over and see what’s happening. And, basically, then if they see any crime, they can go and get the warrant and, basically—speaking of Orwellian—this is really scary because this is an additional layer of erosion. And I would like your comments on that.”
Jonathan Turley (c. 8:05): “Well, it’s a very good question. And I’m afraid you’re absolutely right. We’re running out of wars abroad. And we’re bringing all that back to have a war in this country. And that war is going to be on privacy. And Congress, as usual, is not very protective. Congress has more often been the threat to privacy than its champion.
“And you are seeing drones being used now. We just saw a drone used in a minor case in Texas, where it was used involving what would have been a low felony. But they used a drone over this guy’s ranch. You’re gonna see a lot more of that.
“And I have to say I’m very critical of both sides. You know I wrote a column in the L.A. Times not long ago talking about how Barack Obama may have killed the civil liberties movement in the United States ‘cos he divided the movement. Some people just cannot break from Obama. But civil libertarians tend to be very angry with Obama.
“And the question you raised goes to that issue. It’s not just the drones. For example, President Obama is going to be signing this new law, that allows for citizens to be held indefinitely without trial, without access to courts. Civil libertarians oppose that. And then President Obama said he would veto it and then broke that promise.
“But we’re now seeing this shift, where many of the things, that were being done abroad—and citizens were always told, ‘Look, we do this to other people. We do this outside our country. Many citizens thought that was comforting.
“Well, now it’s coming home. And they’re bringing the technology and the practices back to the United States. And it’s a little bit late to get that cat to walk backwards when it comes to civil liberties.”
Libby Casey (c. 9:40): “Here’s that L.A. Times op-ed piece: Obama: A disaster for civil liberties, written by our guest, Jonathan Turley. And you write:
“‘Perhaps, the biggest threat to civil liberties is what President Obama has done to the movement itself. It has quieted to a whisper, muted by the power of Obama’s personality and his symbolic importance as the first Black president, as well as the liberal who replaced Bush. Indeed, only a few days after he took office, the Nobel Committee awarded him the Nobel Peace Prize without having a single accomplishment to his credit beyond being elected. Many times, Democrats were, and remain, enraptured.’
“Do you think there’s a feeling among liberals and privacy advocates and others that—as you mentioned the pendulum has swung from President George W. Bush and this is sort of the best, that can be done in this moment?”
Jonathan Turley (c. 10:27): “Well, that’s a big debate. That’s a debate we have on our blog almost every day. I mean at the blog, it’s a big civil liberties blog, and there are many people, that have said I can’t support President Obama. For one thing, many civil libertarians said that when Obama, basic-, well, he went to the CIA and said, ‘I will not allow you to be investigated or prosecuted for torture.’ He told that to the CIA employees, which had violated treaty obligations, that we had.
“And, so, for civil libertarians, many of them, simply cannot vote for Obama. In fact, the irony is the only guy talking about civil liberties today is Ron Paul. I mean it’s bizarre because Obama has taken most of the Bush policies and actually expanded them, didn’t even just maintain them.
“And, so, the result is that you have this division in the civil liberties community. Some civil libertarians say, ‘I just can’t ethically support Obama after what he’s done. Then others, I have to say, are caught up in this cult of personality. They can’t get themselves to vote against him. The Democrats are playing the same argument that, ‘Oh, yeah, he’s really bad, but those guys are worse.’ And that’s the type of bargain. It’s a Faustian bargain, that guarantees that you’re going to get someone bad. And many people are just saying, ‘I don’t want to do it anymore.’
Libby Casey (c. 11:42): “But the interesting thing about the Democrats is you have this Stockholm Syndrome for civil libertarians where they’re embracing Obama, even though he’s pretty much destroyed the civil liberties movement in the United States.
“A comment on Twitter: James writes, ‘I believe we have desensitized ourselves thru smartphone picture taking; youtube-facebook posts; and traffic/online security cams.’
“Well, that’s exactly right. And that’s the problem with Katz. That is—”
Libby Casey: “The case.”
Jonathan Turley: “—yes, the case—it’s that when you say that you’re desensitised, it means you don’t have as much of a reasonable expectation of privacy. And that become a self-fulfilling, you know, fact for Katz test.
“But the amazing thing is when you look at these children—I remember many years ago I was called by the head of a school district, of one of the largest school districts in the country, and he said, ‘I just wanted to ask your opinion about us putting videocameras on school buses.’ And I said, ‘Really!? Because that would mean you’d have thousands of tapes!’ This is back in the age of tapes, before digital. And he says, ‘Oh, no, no, no. We’re only gonna put a tape in one of the cameras. But the kids won’t know, which one.’ And I sort of fell back in my chair and thought, ‘That’s the chilling effect.’ That is the framers and Supreme Court have talked about the chilling effect, that what the Constitution is trying to prevent is not as much their surveillance of you, directly, but the chilling effect if you fear you may be under surveillance. And it’s the chilling effect, which changes who we are.
(c. 13:08) “Every year, I ask my students to do an exercise at George Washington around this time when they go home for the holidays. And I tell them to put a tape recorder on a table when they’re having breakfast with their relatives or out with their friends. And they have to say, ‘Look, this is for Turley. It’s an assignment from his class. No one’s gonna listen to this, but me. Can I just put this on? Pretend to put it on. It doesn’t even have tape in it. And watch what happens.
“Suddenly, your friends will start talking in complete sentences. They’ll be incredibly coherent and erudite. They’ll no longer talk about who’s fat or who’s sleeping with who. They’re gonna be talking about, you know, the future of the euro. There’s an immediate change.”
Libby Casey: “Is that so wrong?”
Jonathan Turley: “It is wrong, in the sense that the point is that even the fact that this person that you’re gonna talk to is the only person that’s gonna listen to it, it changes the way that we relate. That’s the chilling effect.
“And we’re becoming, not just a cellophane people, we’re becoming an inhibited people because we are cellophane citizens.”
“Let’s hear from Dom, a Democratic caller from South Carolina.”
Dom from South Carolina: “Hi, Libby.”
Libby Casey: “Hi.”
Dom from South Carolina: “Mr. Turley.”
Jonathan Turley: “Yes.”
Dom from South Carolina: “Uh, the chilling effect. I would tell you that the new generation, even some people in my—I’m a 55-year old guy—is kinda goin’ away because people display their lives on the social networks like it’s nothing. They tell all their dirty laundry. I’m amazed at the things they post on Facebook. And it seems that the only way to deal with the privacy is to specifically state what expectation of privacy means.
“Otherwise, the technology and the attitude of, especially, like, my kids and everything is doing away with, like you said, the goal post keeps slipping.
“Also, one question about the president’s expanded powers. I mean what, can’t the Supreme Court, can’t they enter in? I can’t believe that the president can come, pull me out of my house in the dark of the night, and whisk me away, and I have no action that I can take. I mean, what is that? Why isn’t the Supreme Court, uh, weighing in on this?! This is really, I’m a strong Democrat who backs Obama. But I’m thinking about not backing him because of this. And I’d really like to hear your opinion. I’ve enjoyed you over the many, many years, that I’ve seen you on TV.”
Jonathan Turley: “Thank you very much.
“First of all, let’s start with your second point. It’s actually worse than their coming in to your house. I hate to ruin your day, but President Obama just stated that he is going to maintain a policy that he can have any American citizen killed without any charge, without any review, except his own. If he is satisfied that you are a terrorist, he says that he can kill you anywhere in the world, including in the United States. Two of his aides were just at a panel a couple of weeks ago and they reaffirmed they believe U.S. citizens can be killed on the order of the president anywhere in the United States.
“That has left civil libertarians’, you know, head exploding because what’s amazing is that you’ve got a president who now says that he can kill you on his own discretion, he can jail you indefinitely on his own discretion, and the response of the American people is one big collective shrug and yawn. And I don’t think the framers would have ever anticipated that. They truly believed that citizens would hold their liberties close. And that they wouldn’t relax those fingers. But they are.
“And, now, the point that you had made about the question about privacy and the new generation, we’re not gonna get any help from Congress. Congress has never had a good record on privacy or Constitutional issues. But the only positive thing—and I wanna give you something positive, as you head to work this morning—that is the polls, we’ve had three polls in the last year and they all show the same thing. The American people say that they are more afraid of the government than they are of outside forces, like terrorists.
“So, there’s this disconnect. The majority of Americans are actually very concerned about the loss of rights, but Congress—both Democrats and Republicans—can’t move harder against privacy. They—and this is part of the cynical calculation—I think that President Obama made this calculation early on decided that no one would be to the right of him on terrorism and national security. And he has taken the Democratic Party with him on that.
“So, you have this remarkable disconnect where the majority of citizens are going, ‘We’re really concerned about this. We are fearful of our own government.’ And, yet, it’s just not translating on the Hill.”
Libby Casey: “Jon Turley writes in a recent op-ed piece called Are You Being Watched? It’s Your Fault. He talks about Congress. And you write:
“‘Congress has historically been indifferent, if not hostile, to individual rights. Few members are willing to pass laws to protect privacy over security demands, [leaving many arguing for small government while ignoring Big Brother that dwells within it].’
“And then you also talk about—jumping earlier in the piece—how privacy is under assault from private companies.”
Jonathan Turley: “Right. That’s something that a lot of people often don’t think about, is that the Fourth Amendment protects you against the government. And that creates this huge gap.
“The surveillance industry today is a multibillion dollar a year industry. Most of that is going to private companies. And they have become, really, exponential in terms of their growth, in terms of the surveillance they have of their employees with the support of Congress.
“So, most surveillance, that people are under is not by the United States government. Now, that’s dangerous because what happens is that the U.S. government, usually can get that surveillance. But the standard is non-existent. See, where the government needs a warrant, these private companies do not, in terms of much of the surveillance that they do.
“And you see that in England. England has become a true fish-bowl society, truly Orwellian. They’ve got ten of thousands of CCTV cameras, many of those are private. The government takes from those private feeds as well.
“Chicago—my hometown—just has about 10,000 cameras now, which is ironic. I wrote another column recently about citizens filming police officers in public. And one of the things I mention in that column is that the Chicago District Attorney, or the State’s Attorney, has actually gone to court to fight the right of citizens to film officers in public while the city, itself, has 10,000 cameras filming citizens every minute they’re on the street. So, the government loves to do surveillance, but they really don’t like citizens filming them.”
Mike from Mojave, Arizona: “Good morning, Mr. Turley. And good morning to you.”
Jonathan Turley: “Good morning.”
Mike from Mojave, Arizona: “Yes, I’d like to focus the attack away from the President and Congress for a second and just talk about whether the Supreme Court, itself, has made some rulings on what I call topically flawed warrants. For instance, a warrant, that is misaddressed, though the entry is made and some contraband is found, that being a mistake can, under certain circumstances, be a valid warrant where otherwise if the police fake a probable cause to gain entry into an establishment and it’s determined that it’s illegal. That’s found to be not good.
“Now, to me contradictory here is that the good warrant, that is done by mistake is allowed to be a good warrant, though that’s only statistically effective, where the illegal warrant, that’s made by police, ‘I’m going to enter an establishment,’ unless they think there’s something there. But [if] they don’t have enough probable cause, they’ll just make it. All those entries, more, are gonna be successful if they get away with it.”
Libby Casey: “Mike, let’s get a response from our guest.”
Jonathan Turley: “Well, you’re right. The Fourth Amendment area is a mess. When I’ve taught Constitutional Criminal Procedure, I feel like I’ve had to apologise to my students because they constantly are trying to say, ‘How are these consistent?’ You have to say, ‘They’re not.’
“The Supreme Court has, actually, done some pretty lousy work when it comes to Fourth Amendment. And even some of the justices have indicated that this is a field, that is inherently in conflict.
“Part of the problem for civil libertarians is that the Fourth Amendment is a beautifully written thing. It’s very, very clear. It’s to protect your person, your things, your homes. And it requires warrants. But what the Supreme Court did years ago is they decoupled two clauses. There’s the reference to warrants. And then there’s the reference to the term reasonable or unreasonable searches and seizures. They decoupled it. And that means that you can do reasonable searches and seizures without a warrant. And they started to create exceptions to the warrant clause. And those exceptions have now swallowed the rule. Vastly more surveillance today is conducted without a warrant than with a warrant. So, most surveillance today by the government is done without a warrant, without anybody looking at it. And the thing to remember with probable cause: The standard is incredibly low. The vast majority of warrants are granted. If a warrant is not granted, I gotta tell you, there is a serious problem. And the problem is probable cause does not require a lot to get a warrant. But most surveillance today is done without a warrant because of the slew of exceptions the Supreme Court has created.”
Libby Casey (c. 23:01): “Let’s got to our independent line, where Tom joins us from New Milford, Connecticut. Good morning.”
Tom in New Milford: “Good morning. Thanks for the discussion. I wanted to make a couple of points.
“Number one: The president [Obama] was a fairly low level law lecturer at the University of Chicago. So, I’m not sure he’s really even qualified on legal issues.
“Number two: I’m a part-time certified coin dealer. There have been a lot of coin dealers robbed this year. The surveillance equipment was substandard. And the police have nothing to go on. I think the police do need the tools do their job. And there’s a lot of tax evasion with the IRS needs better tools to do their job.
“How would you respond to those concerns?”
Jonathan Turley: “Well, they’re legitimate concerns, but I have to tell you the police have a lot of tools today. I stopped teaching the constitutional criminal law just because it went down where I could teach it from a pamphlet because every right seemed to be created with an exception or reduced.
“And, right now, we have a fraction of the protections in terms of citizens, that we had a decade ago. And they have a lot of these types of protections.
“The problem, that privacy advocates have, is we’re trying to sell an abstraction. One, that people hear the word privacy and they like it, but it’s still an abstraction where a politician will come forward and say, ‘Do you wanna nail the guy, that stole your coins?’ or ‘Do you wanna stop terrorists from a terrorist attack?’ That’s a very concrete thing. People can think of themselves in that circumstance.
“So, it’s always a false trade off. Privacy always loses. And that’s why we’re seeing a radical diminishment of privacy in our society, that’s changing who we are. And the question is: Can we really get that back?
“And what I’m trying to say is that it’s very easy to lose privacy; it’s much, much harder to get it back, that it’s one of those things in your life, that, once it’s gone, you have a hard time finding where you left it and an even harder time finding someone willing to give it back to you.”
Libby Casey (c. 25:16): “Jonathan Turley, a law professor at George Washington University Law School.
“Jody writes to us on Twitter: ‘Today’s youth want the opposite of privacy. In time, they will learn.”
Jonathan Turley: “Unfortunately, they will learn. That’s very insightful. And that’s the tragedy, that once you’ve lost it to such a degree that you’re left with, ‘who am I?’ Or who are we as citizens?
“There has become this detachment, this passivity. That’s why a talk about a collective yawn, that privacy is one of the most important rights to you, that you really enjoy. But you don’t associate those things with privacy. But once it’s gone and you find yourself living in a fishbowl society, as we increasingly do, then you realise—a bit too late—that it’s gone. And that requires us to educate people and to really prevail upon Congress. These people in Congress will do anything to keep their jobs. That, I think, we all agree on. If the public makes clear that they can mess around with a lot of things—they can ruin the economy; they can do anything they darn want—but they have to leave privacy alone, they’ll respond. But it’s gonna take us to save it.
Libby Casey (c. 26:31): “Tying in to this, one of our viewers writes an email and asks this question:
“‘In law, what’s the difference between ‘privacy’ and ‘anonymity’? As a young person, I can concede I don’t have the same privacy concerns as some of the older generations. It seems to me that when I get into discussions about this topic, many want to have the ability to do things anonymously versus privately. When I pick up a prescription, I have an expectation that my transaction remains private, but by no means anonymous. However, many people seem to squawk online that they can’t maintain their privacy when what they’re really trying to protect is their anonymity.’
Our viewer writes: ‘Anonymity can be dangerous, but privacy is essential.’”
Jonathan Turley (c. 27:09): “Well, first of all, it’s an incredibly insightful question. I’ve actually written on this, the difference between privacy and anonymity, and I take a rather dim view of this distinction because, first of all, it’s absolutely correct that people now more often talk about anonymity, rather than privacy. And the reason is really sad. As privacy has diminished in our society, people are grabbing on to anonymity, as the only way of retaining a small aspect or privacy.
“That’s why I take a rather dim view of it, because this is another Faustian bargain. That is: A society in a fishbowl, the only way to retain privacy is to pretend you’re a different fish. And that’s what people are doing. And, so, on the internet—like on my blog we have a complete anonymity rule. And some of my guest editors really question whether we should really have that because people abuse it. People become vicious when they are allowed to have anonymity.
“But anonymity has become the last recourse for people, that have no privacy, that are transparent to society. That is really sad. That’s basically saying, ‘When I go into society I’m going to wear a disguise because otherwise everyone will know what I’m doing what I’m saying and who I am.’ Think how that changes you.
“Think about schools, by the way, who now go through metal detectors, have cameras filming them all the time. What type of citizens are we creating? Where we’re actually raised in that fish bowl? They don’t even have an inkling to feel what it was like to feel like you could walk in the street or say something and not have it recorded or played back to you.”
Libby Casey (c. 28:59): “Jonathan Turley is a law professor at George Washington University. His legal blog is JonathanTurley.org. You can find guest commentators there and discussions about legal issues and their implications on society.
“Candidate [for U.S. President] Newt Gingrich has come out in the last couple of days talking a lot about the role of the judiciary. And this is a story from National Review. His comments over the weekend suggested that he would abolish whole courts to get rid of judges, whose decisions, he feels, are out of step with the country, that Congress has the power to dispatch the Capitol police or U.S. Marshalls to apprehend a federal judge who renders a decision broadly opposed.
“This topic came up yesterday when Michele Bachmann was doing a Sunday talk show circuit on NBC’s Meet the Press. Let’s hear how Michele Bachmann, a candidate for President, weighed in on judges.”
Michele Bachmann Clip: “The Constitution is set up how it should be. The problem is the Supreme Court, or other members of the court, have passed decisions, that aren’t in conformity with our constitution. That’s what we take issue with. That’s why it’s important that the people have representatives be able to pass laws, as the president would sign in conformity with their will. What’s wrong is when judges make laws in conformity with their own opinion. They can’t make laws. It’s the congress and the president, that make laws.”
Libby Casey (c. 30:24): “Michele Bachmann on Meet the Press. What do you make of this discussion right now about the power of the judiciary and whether or not it should be pulled back a little bit.”
Jonathan Turley: “Well, it’s the perfect storm, isn’t it? I mean we just talked about how the president’s acquiring unilateral authority to kill citizens without trial. We have a presidential campaign where people seem to have a race to the bottom of who can really devour more parts of our constitution. They seem to be running against the Constitution.
“You know, I’m a Madisonian scholar, so I’ll admit James Madison is like Elvis to me. But none of these people are James Madison. He was one of the most brilliant human beings this country has ever produced. And the necessity of an independent judiciary for a country like ours has proven itself over and over again.
“And, so, what I would encourage people to think about is where we would be if we didn’t have an independent judiciary. Everyone disagrees with opinions. I’ve had courts rule against me, that I thought were insane. But we all, as citizens, share a certain covenant of faith. That’s what the Madisonian system is. It’s a covenant of faith. And we make a commitment to each other. We may disagree with each other. We may even hate each other. But it’s a leap of faith. You have to trust the system. And what Gingrich and Bachmann are talking about is the height of demagoguery. And I don’t want to challenge them, personally. But they need to look at what they’re saying about this country and what we would be left with if an independent judiciary was replaced by the whim and will of Congress.
Libby Casey (c. 32:02): “Let’s hear from Fort Wayne, Indiana. Chris, Democrat’s line, welcome.”
Chris in Fort Wayne: “Yeah. He’s on the right track. But I wish he would put the blame for this where it belongs. And that’s with the conservatives on the Supreme Court. They’re the activist judges. For 30 years, they’ve eroded rights and given ‘em to the government and given ‘em to private business.
“Now, I just went through this stupid drug testing stuff. And I just cannot believe that private companies are allowed to get into my private business of what I do off the hours of work! In order to bring forward—in the Supreme Court, the Republicans on the Supreme Court have eroded the rights. Now, just because they’ve tied it to something else, kind of forced the [Democrat] President [Obama] to sign it, now you put all the blame on the president.
“Now, what scares me is the conservatives, if one gets in there, will actually use this power.”
Jonathan Turley (c. 32:59): “Well, first of all, I certainly agree with the Supreme Court’s fault in this. But I have to say that, if people are going to deal with the crisis we’re in, we have to be even-handed. And we can’t make excuses. There is no excuse for President Obama. If he signs a law, that says they can indefinitely imprison citizens, then he’s made an incredibly bad decision. There is no law. It doesn’t matter what it’s attached to. His decision to tell CIA employees that they would never be investigated or prosecuted for torture, that was an incredibly bad decision. It violated treaties. We can’t make excuses. The Democrats are equally at fault. You know we found out a few years ago that the Democratic leaders knew about the torture programme. They knew about the unlawful surveillance programme; the [Democrat] leadership knew about it.
“There is no red or blue issue here. It’s something of a chimera. We’ve gotten into this blue state/red state paradigm. We’ve bought it. And we’ve become a nation of chumps. They’re all lying to us. And, yet, when elections come around we put on our blue or our red scarves and go running off to support them. And what’s being lost is not just good government. We’re beginning to see our rights being lost.
“And, unfortunately, the system, the system, that Madison created—this is what, really, Benjamin Franklin said. You know, when a woman came up to him and said what have you created, in Philadelphia? And he said, ‘A republic, madam, if you can keep it.’ It’s pretty chilling words because if you’re a nation of chumps, you’ll lose the republic they created. And that’s what’s happening.
Cal in Ogden (c. 34:48): “Yeah, good morning, guys. Hey, Mr. Turley, I just wanna thank you for being one of the few law professors out there, I think, that actually believes in individual rights and freedoms and the privacy thing.
“And one of the things, that’s really disturbing to me is this latest National Defense Authorization Act allows for the detention of U.S. citizens on U.S. soil without due process. I, personally, called all of my representatives from Utah found out what their voting record was on it and congratulated the ones, that voted against it, and told the ones, that voted for it that I was going to personally campaign against them. And, you know, this thing about the president being able to decide who gets eliminated or not eliminated—and this coming from a guy, that would probably fight against the death penalty of people who have been tried and who have been found guilty of heinous crimes.
“But the thing you hit on about the collective shrug from the populace, I think the problem there is the American people are never ever told the truth. The mainstream media is so biased towards one side that they are not telling the truth. I wish with all my heart that—remember the movie with Jim Carrey, Liar Liar, about how he couldn’t lie for a period of time? If, for the next year, the mainstream media and all of our politicians could not lie and had to tell the truth, you would see a dramatic shift in this country like nothing that no one’s ever experienced before because the people, if they’re told the truth—and our ‘Founding Fathers’ knew this, too, that they could rely on the people, if the people had the truth. But they’re not getting the truth. Thanks, Mr. Turley.”
Jonathan Turley (c. 36:44): “Well, if that happened the silence would be deafening on The Hill if they had that condition. I would love to see that.
“You know, I just got back from Utah a couple of days ago. And one of the interesting things, that I found in speaking to groups from Utah to Massachusetts, is that there is this shared view. The citizens are out there. There is not a big difference between folks in Utah and folks in Massachusetts about their fear of the government, their resistance to all of the powers, that have been accumulated by the government. And you have this disconnect where the two [monopolistic] parties are advancing an interest, that is starkly opposed to them.
“And I think part of the [collective] shrug and part of that [collective] yawn is a sense of detachment, of helplessness, that people don’t feel that they count anymore, that they really have the ability to influence anyone. And, so, we have this blue state/red state, you know, thing, that people are buying, on one hand. But the majority of citizens look at that and say, ‘I don’t matter anymore.’ That’s the scariest thing of all because the framers really did believe that citizens mattered. And they believed that citizens could change the outcome in a representative democracy. I think that, perhaps, is the greatest crisis of all.”
Libby Casey (c. 38:03): “Tying in to that, Stella writes on Twitter, in her opinion, ‘we are a nation of suckers, as we’ve allowed this invasion of privacy. Now, what can we do to stop this?’
Jonathan Turley: “It’s gonna take a lot. I mean it may take a third party, quite frankly. I mean we have a political system, that is brain dead. I mean the EKG on this thing is flat. And everyone seems to agree on it. Congress is now about as popular as ebola. And, yet, most of those people are going to be returned and they know it. And these are people, that, by the way, it doesn’t bother them. It doesn’t really bother them that everyone thinks they’re clowns, as long as they get back.
“And, so, we have to do fundamental reforms. One would be, possibly, a third party. I wrote a piece about a year ago about how we could change our system. And part of it is to break the control of the [electoral] monopoly.
“I’ll give you an example. Many areas—let’s say Utah—are not likely, outside Salt Lake City, to elect a Democrat. But they sure would like to find someone other than their incumbent. But the way that these states run primaries is the incumbent always wins first party. And then the citizens feel they don’t have a choice. One approach, sometime’s called the Minnesota rule, is they have the top two vote getters from the primary, regardless of party, to run in the general. So, if this is a heavily red district, then two Republicans will run against each other. It could break the hold of the incumbents.
“So, there are a lot of things we could do like that. What we have to do is rally the American people and say this is not what it’s supposed to be. That is, you’re not supposed to have the majority of citizens feel that they are detached and powerless in a representative democracy. And they have to get mad enough to demand serious [electoral] reforms. And they’ve gotta come up with it for themselves because we are not going to get them from the people in the building over to my left.”
Libby Casey (c. 39:55): “One last call from Valencia, California. Gary, independent line: Can you keep it brief, Gary?”
Gary in Valencia: “Well, I had a lot.”
Libby Casey: “Sorry.”
Gary in Valencia: “We don’t have a representative republic. In fact, in 1911 they capped the [lower] House of Representatives at 435. We now have more federal judges than we do representatives. And when people speak out against this they get punished. Professor Turley spoke about [this] in an article in an article about the Unites States v. Elena Ruth Sassower, who runs the Center for Judicial Accountability. She tried to hold the judges accountable. More important than an impartial/independent judiciary is an accountable judiciary. And we don’t have one because they are never impeached. Misconduct complaints against federal judges are dismissed to the tune of 100%. And there’s the doctrine of absolute judicial immunity, that judges have, that covers them for corrupt and malicious acts.”
Libby Casey (c. 40:55): “Let’s get a response from our guest.”
Jonathan Turley: “Well, I do think that judges—I have written, as you’ve noted—that judges can be imperial. And there should be more review of their conduct. I’ve been very disturbed by judges, who have been holding people in contempt for statements made in public about them, where lawyers have criticised judges and found themselves charged through the bar or through the court. And that’s a worrisome trend.
“But what I think we can agree on is that there’s something fundamentally wrong in our system now. And if you really believe in a patriotic purpose as a citizen, you have to stop listening to these people, these politicians, and organise, as a citizenry, to save the country, to return it. And I know that sounds pretty stark. But the crisis we’re in is a crisis of faith. People have lost faith in this country. And when people lose faith, it’s an invitation for strongmen, for authoritarian power. And that’s what’s happening. As citizens pull back, power is filling the void. And it’s very dangerous.”
Libby Casey: “Jonathan Turley, law professor at George Washington University. He also is the founder and executive director of the project for older prisoners. And he has a legal blog, JonathanTurley.org. Thank you.
Transcript by Felipe Messina for Media Roots and Jonathan Turley
Photo by flickr user monkey man forever