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Daniel Ellsberg, the man who released the Pentagon papers, says the FISA court is a sham and warrantless wiretapping, which has being going on for years before 9/11, is a violation of the US Constitution no matter what law Congress passes

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JESSICA DESVARIEUX, TRNN PRODUCER: Welcome to The Real News Network. I’m Jessica Desvarieux in Baltimore.

It’s been more than a week since Edward Snowden blew the whistle on the National Security Agency program that has been spying on Americans’ phone and internet usage.

Now joining us to discuss all this is Daniel Ellsberg. Daniel Ellsberg is a former U.S. military analyst, and in 1971 he leaked the Pentagon Papers, which revealed how the U.S. public had been misled about the Vietnam War. And on this day, June 13, The New York Times actually started publishing the Pentagon Papers. It’s been now 42 years since then.

Thank you for being with us, Daniel.


DESVARIEUX: So I wanted to start off with your piece in The Guardian recently where you talked about how Snowden’s actions are tantamount to an executive coup against the U.S. Constitution. Could you elaborate on that point?

DESVARIEUX: Yes. George W. Bush himself, but particularly the people that he appointed, chose to be with him, like Richard Cheney, David Addington, who was Richard Cheney’s legal advisor, and then under him John Yoo, a number of others, I think are fairly described as domestic enemies of the United States Constitution, in the sense that the oath that we all took, which was not to the president, the oath of office, or to a secrecy system–it was to defend and protect and support the Constitution of the United States against all enemies, foreign and domestic. I repeat, I think Richard Cheney was a domestic enemy of the Constitution as it’s written and intended.

And by that I don’t mean that he was a traitor. I don’t mean that he didn’t intend the best for the United States as he saw it. But he and his boss, George W. Bush, didn’t see the existing Constitution as being for the best for this country. And that’s their right, as citizens, to disagree, but it’s not really their right to violate that Constitution in favor of a different one which puts all power, essentially unrestrained power, in the hands of the executive branch and of the president, which was their idea of a proper Constitution with respect to national security and homeland security in a war, an indefinite war, which the president declares, basically, and against security threats that he sees and he defines.

I don’t think there’s any action that the president might choose to take or his subordinates might choose to take in what they saw was the best interest of the United States that these people would have foregone or felt was forbidden to them, any restraint of the Constitution or treaties or domestic law or Congress or the courts. They didn’t see any restraint at all, and they acted on that. For example, years of warrantless wiretapping in violation, clear-cut violation of the Fourth Amendment and of domestic laws, they just went ahead and did it secretly from most members of Congress, as well as public; torture, which couldn’t have been more illegal domestically or internationally, something they just felt qualified, obligated, even, to do. And in other words, they had a different concept, not of a democratic republic, but of something very close to an elected monarchy, an absolute monarchy, tension which President Obama has continued along with that, as it basically deprives us of rights that go back, under the British system, back to John I, 800 years ago, the Magna Carta. So it was an extremely radical coup, essentially, against our form of government, at first in secret.

And then, with the help of a lot of lies about what was necessary and how we were being protected, it became increasingly public and Congress was persuaded to go along with it. Now we have one more–now we have documentary evidence that had been denied to the Congress, most of Congress, certainly during the Bush administration and for a long time, of just how far they were interpreting the law that had been passed in terms of their right to spy on all American citizens or all who have any kind of electronic device, which goes down to seven-year-olds by this time. That’s clearly a violation of the Fourth Amendment, which they can make–they can pretend to make legal by passing a law, but they can’t make it constitutional. Congress can’t simply rescind, repeal an amendment by their own majority vote. That’s not the way to Constitution works. And the president can’t do it either.

DESVARIEUX: So let’s talk specifically about the leak. You mentioned that now we actually have documents that can support something that some argue that they’ve known for a while or at least had really strong suspicions that the U.S. government was spying on Americans’ internet usage and phone tapping and things of that nature. Considering the NSA existed before 9/11 and many of these policies or our understanding of these policies started coming to the forefront post-9/11, what do you make of that? Do you have a sense that these programs existed before 9/11?

ELLSBERG: Well, we know what they were doing long before. For example, in intercepting all telegrams, international telegrams, that goes back well before the Second World War. It might go back as long as just after the First World War the forerunners to the NSA have been doing that.

But in terms of telephone–and of course the other digital data didn’t even exist 40 years ago at the time of the Pentagon Papers–but they were listening to telephone calls during the Vietnam War, for example, clearly illegally. And when that was discovered, in part because of my trial–I was overheard on warrantless wiretaps, and at that time that was a factor in President Nixon’s impeachment proceedings that led to his resignation. So, clearly illegal.

It was a result of my trial, but also Watergate and of the Church Committee, Senator Church committee investigation of 1975. Church and others really worked for some reforms that would put a restraint on that process, and one of those was the Foreign Intelligence Surveillance Court, surveillance act, and calling for a surveillance court that would provide a secret process for warrants for overhearing American citizens.

At this moment I would say that reform has been proven to be a failure. On the one hand, for years now we know that the FISA court has been turning down almost no requests that they got for warrants, even when those warrants were much more narrow and specific. There have been tens of thousands of requests–I think over 1,000 in the last year, of which none was refused in the last year. I think over the years, of tens of thousands, they have modified or refused about six such requests. And we’re talking about a secret court, secret criteria, secret proceedings in which only the government is represented. It’s what Russell Tice, who used to work for the NSA at a high analyst level, called a kangaroo court with a rubber stamp. So as an effort, then, to restrain or bring under the rule of law this process of surveillance, that one failed.

Another effect of the Church Committee investigations was the creation of the intelligence communities, supposedly to do oversight. Well, oversight is what they do in an ironic sense here. They clearly have been totally co-opted. Dissenters from this process can’t speak even to their staffs or to other members of Congress because of secrecy and their fear that they would be excluded from this secret knowledge which makes them feel so self-important. So even people like Senators Ron Wyden and Mark Udall, who clearly felt that the administration was overstepping here, first the Bush and then the Obama administration, they couldn’t tell us why or what they believe, because they said it was a secret, not a secret that could be upheld in court, because it was clearly a secret about criminal activity, or at least unconstitutional activity. But they would have lost their access, lost their clearances, and they chose not to tell us. So there’s been a total breakdown in the idea of checks and balances of independent branches of government providing oversight. That has–unless that changes, we’ll be a democracy in the way of the German Democratic Republic, East Germany.

DESVARIEUX: Speaking of change, there are some–we had Phyllis Bennis on our program yesterday, and we spoke to her specifically about U.S. foreign policy and whether or not if the U.S. government were to change its foreign policy, would need to hold such a surveillance state, create such a surveillance state, essentially. What do you make of this argument? How would you respond to people who feel that–.

ELLSBERG: There are real dangers to Americans at home now, as we saw in 9/11 (those are real), and abroad. And even 9/11 itself has been very obviously a response to our foreign policy to a very large extent, a foreign policy that I and others have criticized on many grounds for a long time, expecting, by the way, a retaliation of this sort eventually. It took a long time to arrive, really. It took suicide bombers in the case of 9/11.

And as a matter of fact, studies of suicide bombers, objective studies by Robert Pape and others, have shown that that’s a very specific response, relatively new, relatively modern, to occupation of their own country. Without the occupation and the oppression that goes with it, you don’t get people blowing themselves up in order to retaliate, in order to change this policy.

I would say, for example, the drone bombing that killed so many civilians and some, quote, terrorists, actual terrorists in Pakistan creates so many more enemies of us, has made us the most hated country in the world in Pakistan. But I would say that’s extremely dangerous. This is an unstable country with a large faction of Islamic fanatics in it, and with nuclear weapons. And for us to be making ourselves hated–very understandably–by killing mothers and children and fathers along with our chosen targets in Pakistan is, I would say, a very reckless policy.

In short, what we’ve been protecting overseas since World War II is not really so much our homeland. We’ve been putting that at risk, as it became clear eventually in 9/11. It’s decreasing our security. What we’re trying to secure is basically our empire, our influence, our role, our ability to intervene in other countries, in many cases in a hopeless cause, and in any case in a cause we don’t have any real right to be killing people in. So, basically, as I say, it’s our foreign policy of empire, of demanding to determine the ruling regime and who runs the police and who gets tortured and who gets killed in those countries that’s put at risk by our own policies. That’s what we’re doing. And that puts us at risk. It reduces our security at home.

And at the same time, it involves, as all imperial policies in history by everybody have always involved, whether it’s Britain or Rome or Germany or whoever, it involves torture, it involves detention, you know, endless detention, it involves putting–a ruthless putting down of any resistance, including many civilian deaths. And these are things that evoke uneasiness at home and criticism at home that in turn needs to be put down to continue the policy or to continue the hopeless imperial wars like Vietnam or Iraq. And that means that our freedoms go. The methods we use to run the empire come home and are turned on us. And that’s exactly what we’re seeing with NSA today, as Edward Snowden has revealed to us.

DESVARIEUX: So the latest news about Edward Snowden is that he spoke to a Chinese paper specifically claiming that the U.S. government has been spying on Chinese institutions for years. There are some Americans who clearly have a problem with the U.S. government spying on them, but when it comes to the U.S. government spying on spying on China, they deem that legitimate. What do you make of that argument?

ELLSBERG: Well, I would turn that around. Every country and certainly every empire has intelligence apparatus against others, and that’s always going to be the case. To the extent that it’s legitimate, it’s going–or illegitimate, it has to be secret, and most people in most imperial countries in most countries do regard it as legitimate for their government to spy on other people. For Snowden to mention that about China is, I’m sure, giving no surprise to the people, the rulers in China, who of course do run a police state, and no surprise to their people, I would assume.

What gives me some hope about what Snowden is revealing is the real news to a lot of people who have naively been believing, trusting that their government is different as an empire, that it’s not even an empire and that it doesn’t interfere in other people’s countries–what’s news to them is that those imperial methods are being used at home as well against them. And I think that whereas Bradley Manning’s revelations that we were breaking the law by torturing–by turning people over to be tortured to the Iraqis–earlier, of course, Bush’s people had been torturing them directly by Americans, all illegal. The trouble is, with getting a movement against that, illegal as it is, is dangerous it is in causing desires for revenge and retaliation, is that it’s happening to other people, foreigners, enemies, people over there. And sorry to say, Americans are like other humans. They don’t care as much about what their government does to people over there as they care about what happens over here.

But what Snowden has revealed, of course, is that [is] something that is happening to people over here. And a lot of them will say, well, I don’t care, it won’t happen to me, I’m not a dissenter, I don’t make any waves, I don’t make any trouble, they aren’t going to be interested in me. And I think those people are not asking themselves: should they really feel comfortable with the government having the full knowledge of the private lives, whatever there is to know, of all congresspeople, of all judges, of all sources to newspapers and all congresspeople altogether? That’s where we are right now. The government has that blackmail capability against, well, dare I say just about all of them, you know, in fact. And what that means is that the idea of really having branches of government or a fourth estate, the press, that’s truly independent of the executive branch is a mockery. It comes to be kind of a fraud. We’ve lost the democracy.

And, again, I’m sorry to say, a lot of Americans are comfortable enough with that with or without a terrorist threat. There has always been a minority, I think, like the ones who fought for the Revolution and fought for these rights 200 years ago or more. They were a minority then, according to John Adams. John Adams, our early president, founder, one of the founders, said, at the time of the Revolution about one-third supported the Revolution against the Empire, one-third was for the Empire–and that was higher in some areas, he said, like New York, interestingly–and about a third were indifferent. That means two-thirds were really alright with the Empire.

I think it’s always been that way. Two-thirds of the people, roughly, don’t mind having an elected monarch. They’re very mistaken, I think, in what that will mean for them. One result of that was Vietnam. Another one is Iraq. And nuclear war could be the ultimate outcome of that.

But in any case, there is a minority who have believed in the Bill of Rights and believed in the Constitution and don’t want their representatives or the press or themselves fully subject to blackmail by the government.

DESVARIEUX: Okay. Well, thank you so much for joining us, Daniel.

ELLSBERG: Thank you for the chance.

DESVARIEUX: And thank you for joining us on The Real News Network.


DISCLAIMER: Please note that transcripts for The Real News Network are typed from a recording of the program. TRNN cannot guarantee their complete accuracy.

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Daniel Ellsberg is a former US military analyst employed by the RAND Corporation who precipitated a national political controversy in 1971 when he released the Pentagon Papers, a top-secret Pentagon study of US government decision-making about the Vietnam War, to The New York Times and other newspapers. His recent book is entitled, The Doomsday Machine: Confessions of a Nuclear War Planner.