Civil Liberties and Security in an Age of Terrorism

David Theroux

Good evening, ladies and gentleman. My name is David Theroux, and I am the President of The Independent Institute. I’m delighted to welcome you this evening to our special event here at our conference center in Oakland, California. Our program today, as you may remember, is entitled “Civil Liberties and Security in an Age of Terrorism,” and we’re holding this in conjunction with our Challenge of Liberty Summer Seminars for students, and we have a contingent of the students here this evening. Incidentally, those of you who are interested in our student programs should go to our website at independent.org/students and you’ll get more information. We’re also delighted to welcome our viewers on C-SPAN2’s Book TV, as well as those online who are joining with us on our live webcast.

To provide some background, The Independent Institute is a non-profit scholarly, public policy research organization. Our mission is to boldly advance peaceful, prosperous and free societies grounded in a commitment to human worth and dignity, and tonight’s topic is certainly no exception. The results of the work that we do are published as books and other publications. We’re sponsoring and actually featuring four of them this evening, and the results of this work are used for the basis of different conference programs and media programs like this evening.

The Institute neither seeks nor accepts government funding or contract funding of any sort, but we welcome a diversity of support from foundations, businesses, civic groups and individuals. We encourage everyone to become a member.

For tonight’s program, there have been a lot of news accounts of new revelations. And in fact, Americans and people worldwide have been shocked by the recent revelations of a systematic secret, government spying on the American citizenry, plus people worldwide, including the NSA or National Security Agency’s accessing all phone, Internet and other electronic communications, the U.S. Postal Services photocopying the exterior of all mail, and the dangerous pose to liberty and security by these and other unchecked and unconstitutional powers.

To address these and related issues, we’re quite delighted to have with us three stellar people from The Independent Institute. But before I introduce them I wanted to thank the generous sponsors of our Summer Seminar Program, our Challenge of Liberty Summer Seminar Program this year, including the Daniels Fund, the Anschutz Foundation, the El Pomar Foundation, and the Rodney Fund, and we have sponsors for tonight’s evening program including John Inks, Dieter Tede, and Renie and Richard Reidmann. We’re very grateful to all of them for their great help.

Our program moderator tonight is Mary Theroux. Mary is Senior Vice President at The Independent Institute and a columnist for The Huffington Post. Having received her degree in economics from Stanford University, Mary has been Managing Director of Lightning Ventures and Vice President of the C.S. Lewis Society of California. She is Chairman of the Advisory Board of the Alameda County Salvation Army. She has been Chairman of the San Francisco Salvation Army Advisory Board, and she has been a member of the National Advisory Board of the Salvation Army across the country.

Mary will be interviewing our distinguished panel that, first of all, includes Robert Higgs. Bob is Senior Fellow in Political Economy at The Independent Institute and the founding editor and editor-at-large of our quarterly journal, The Independent Review. Bob received his Ph.D. in economics from Johns Hopkins University, and of his fifteen books we’re featuring three tonight, including the new 25th Anniversary Edition of his classic book, Crisis and Leviathan. He is also the author of over one hundred articles and scholarly journals, as well as over 600 popular articles in newspapers, magazines and blogs.

Our second panelist is Anthony Gregory. Anthony is Research Fellow and Director of Student Programs at The Independent Institute and also a columnist at The Huffington Post. Anthony received his degree in history from the University of California at Berkeley and his many articles have appeared in the Atlantic, Christian Science Monitor, American Conservative and scores of other publications. He is the author of the new Independent Institute book from Cambridge University Press entitled, The Power of Habeas Corpus: From the King’s Prerogative to the War on Terror.

So, before I turn the program over to Mary, who will be in charge, I’d like to ask you to join with me in welcoming our speakers.

Mary Theroux

Thank you, David. Good evening, everybody and welcome. It’s a tremendous honor to share this stage this evening with Bob and Anthony, who are two of my favorite people and I admire their work enormously. This is a huge topic we have to cover tonight. There are a lot of aspects of it, and it’s going to be a real challenge to be able to cover even some of those. I’ve warned both Bob and Anthony that I’ll be holding them to tight schedules so that we can get through it and also have plenty of time for your questions, and we want to have a good discussion following.

Hi, Bob.

Robert Higgs, Ph.D.

Hello.

Mary Theroux

Bob, you and David’s association goes back many, many years, and it has been very long and fruitful starting with the production of this book, Crisis and Leviathan: Critical Episodes in the Growth of American Government. It was first published by Oxford University Press in 1987 and remained in print ever since. We were very honored to be able to issue the 25th Anniversary Edition last year. Your work has certainly informed a lot of The Independent Institute’s program, not least of which was your sixteen years as founding editor of The Independent Review.

One of the examples of the way your work has really influenced us was I suppose, we were probably the only website that on the afternoon of September 11th, 2001, posted a statement condemning the terrorist attacks of that morning, but also issuing a warning that the attacks not be allowed to form the basis for unprecedented new government powers, which we learned, of course, direct your book, Crisis and Leviathan.

In a few minutes, could you briefly outline the thesis of Crisis and Leviathan and help us understand the events of the last eleven years in light of the history that you lay out here?

Robert Higgs

The topic of Crisis and Leviathan is the growth of government in the United States, from the late nineteenth century to the late twentieth century. That growth has many causes and I start off the book by making clear that I’m not offering a new favorite cause explanation for that complex development. It can be related and traced back to a great many changes in the nature of social and economic change during that period and changes in ideology and political changes of various sorts and so forth. But my own development of that theme in that book focused on the fact that the growth of government over that century was not slow and steady. It was instead episodically interrupted by big lurches in the size, scope and power of the government.

At the time I began my work on the book in the late 1970s, most of the economists who were working were basically ignoring that profile. They were attempting to explain the long-term growth of government without worrying about the exact path it followed in the course of its growth. It seemed to me after some years of reading and studying and teaching economic history in connection with this experience that ignoring the profile of the way government had grown was missing a great deal of understanding about why it had grown. And it seemed to be increasingly as I continue my research that these episodes of abrupt growth, which were all focused on national emergencies, such as the World Wars and the Great Depression, those three more than any others, those episodes didn’t behave the way many people at the time thought they ought to behave or how historians later imagined they had behaved. That is to say very often when the government expanded its power in one of these emergencies there was a kind of promise, sometimes explicit, that the government would exercise extraordinary powers in order to deal with the crisis at hand, but that once the crisis had passed, once it had been dealt with adequately, then the government would relinquish those powers and revert to something like the status quo antebellum. That however, had never happened and it led me to formulate a new version of an old idea, which I call the ratchet phenomenon or the ratchet effect, which is the idea that in the national emergencies the government would grow abruptly in size, scope and power. After the emergency had clearly passed, it would indeed relinquish some of the new powers but not all. Never would it relinquish all.

So, instead of growing along a steady upward tilting path like that for various reasons, it would grow along a smooth path, abruptly increase, partially retrench and then resume growth along a higher trajectory, so that each one of these crisis periods in effect shifted the size, scope, and power of government to a higher level and created a higher baseline from which it would grow abruptly on the occasion of the next crisis. So, as I attempted to sort of research the facts of history and find out how they related to this pattern, I became more and more convinced that there was a logic behind the ratchet effect and that it involved not simply the kinds of changes that other economists had identified, such as fiscal changes, changes in say government spending or tax revenues or borrowing, which all increase abruptly during these national emergencies, but perhaps more important involve changes in institutions which were enduring. Government would create new bureaus. It would pass new laws. It would change the conditions that allowed it to exercise coercion over this society; and then it would retain some of those powers after the crisis had passed.

Another dimension of the crisis was that in the course of passing through these episodes people’s thinking would be changed. People have a habit of getting used to things that they must endure for some time, particularly for years on end. And having got used to them, even if they objected to these conditions before, they may therefore accept it more readily henceforth. Each crisis softens them up, as it were, to tolerate a larger government, a more powerful government, a government with wider reach, and that was the logic I found borne out. And when the attacks of 9/11 happened and I began to receive calls from reporters who had some familiarity with that historical work asking me what I thought the effect of 9/11 would be, I said that it would probably be the same as it had been before, that in the wake of these attacks, people being more fearful, people being uncertain about what was going on or how they should deal with it would turn to the state, the state would take advantage of this concession as it were in the citizens’ normal resistance to the growth of government, and the upshot would be another upward ratchet in the size, scope and power of government. I’m absolutely convinced that that is exactly what has happened during the twelve years since 9/11 attacks.

So, I believe current history, recent history fits the pattern of the preceding century very well in terms of its logic. Each such episode has unique specifics, of course, unique personalities and many differences. But the inner logic, what is driving this growth in episodic manner through a ratchet process remains the same.

Mary Theroux

We have certainly observed it on steroids, as you cited. Anthony, your hot off the press new book from Cambridge University Press, The Power of Habeas Corpus in America: From the King’s Prerogative to the War on Terror, you spent the past couple of years becoming expert in habeas corpus and your book reflects that. It has been endorsed by scholars and Civil Liberties leaders across the board and is earning very, very high praise, and rightfully so. But what about habeas corpus made you think that it was an important thing for you to spend the last few years of your life on and what about it can help us in our fight for our liberties in the midst of War on Terror?

Anthony Gregory

Well, during the Bush years, the first years of the War on Terror, I was, like many other Americans, horrified by a number of practices that the Administration—, in Guantanamo and otherwise with detention policy, and I had long taken the traditional civil libertarian view that the most fundamental of our liberties in the Anglo-American tradition is the right of habeas corpus, because if the government can jail somebody without even saying why, then all of these other freedoms seem moot. Like many other civil libertarians, I believed that the legal history of habeas corpus was very simply on our side, that what the Bush Administration was doing was clearly outside the bounds of the tradition, and that if I just looked into it a bit I could come up with that air tight, silver bullet argument for what they were doing and why it was so wrong.

As I researched more and the paper became a book, I discovered that the history of habeas corpus is unfortunately, a lot rockier and less clear cut than that, starting in England, which is actually more important than it might seem to a lot of people in the United States, because even the Supreme Court decisions often discuss English legal history to try to determine how habeas corpus should apply here in the United States because the common law was carried over via the Constitution. I noticed in this English history, the history of habeas corpus was kind of elusive in terms of its silver bullet potential to vindicate liberty. It was first established by royal courts to exercise control over other courts and to bring detainees to their jurisdiction. It was abused and did not have this very unambiguous, pro-freedom connotation that we attach to it today. When the Parliamentarians were arguing for habeas corpus, they would say, habeas corpus is always guaranteed that no man should spend two days in jail without cause, but that was wishful thinking actually. That’s not what it always did or what it always guaranteed.

I soon found out also that when Parliament took over after the English Civil War, they were just as bad as the king, if not worse in violating the rights of the detained. And I’d say this might be kind of a downer, but I soon came to the conclusion that the golden age, if there was one, might have been in the colonial era, in the British colonies in North America where habeas corpus seemed to have more of an idealistic application and where the colonists instead of establishing it as this authoritarian measure, established it purely for the good reasons. But then once the constitution was ratified and it had the power to suspend habeas corpus, which we look at the suspension clause which restricts how Congress can suspend habeas corpus. But Thomas Jefferson said why should they ever be allowed to suspend it and was in some ways a centralization of authority. And Jefferson turned out himself to try to suspend it when he was president. Like the Parliamentarians, he was something of a hypocrite on this. He was not the first and he was not the last. And you see in the antebellum era habeas corpus being used to retrieve slaves in some cases. It has a rockier history than you might think.

In the mid-nineteenth century, the Supreme Court undid one of the most revolutionary aspects of American habeas corpus, because in America the states would be able to issue habeas corpus writs to question federal imprisonment, which is a really radical kind of state’s right. But a number of Supreme Court decisions overturned that and soon enough it was the central government using habeas corpus to question state governments, which was more like how it developed in England. We saw how well the federal government protected the rights of the detained in the Civil War and World Wars, especially World War II, where the Supreme Court did eventually get around to determining that a loyal citizen that the U.S. government declared loyal in Japanese interment shouldn’t be detained. But by then the war was basically over and the program was basically over.

Now, in the twentieth century, most of the discussion of habeas corpus has concerned criminal law and the scope of federal review of state convictions. So, whereas, back in the day it was usually brought to bear before someone went to trial, it got changed in this other way where now it was used mostly after trial. But it continued to be relevant in these classical cases of executive detention power. And we see this erupt ever since 9/11 with some incredible claims of executive authority under Bush, despite what the courts have done, and certainly under Obama, despite what the courts have done. We’ve seen these glorious—many of us thought of them as glorious—court decisions that seemed to vindicate the rights of the detained. But the Executive Branch has found a way to circumvent the spirit of that and Obama is no exception. At Guantanamo, there are quite a few prisoners that the government admits it has no evidence against, that inmates are not a threat, but it can’t release for one reason or another, and they’ve been there for over eleven years, and the treatment there is outrageous. We’ve gone a long way from this idea of two days to eleven years.

So, now, just this week, a Circuit Court has sided with the Obama Administration, in this case with the NDAA, and the indefinite detention power of the Executive to detain people without due process. I know a lot of people are outraged and they think well, this is entirely unprecedented. And unfortunately, it’s not unprecedented. But where I do see hope is throughout this entire history there were people, there were idealists who saw beyond all of the legal jargon and all of the technicalities of law that what was important was the principles of liberty and the principle that it’s wrong. It’s a wrong thing to do to put someone in detention without giving reasons to put the innocent behind bars, to be shoddy with your procedures in doing so. So, I think that whatever the courts are doing, whatever Congress does, whatever the presidents do—and I have no reason to believe the next president will be much better in this respect—what I think I’ve come away with is the belief that we really need a revolution in thinking, and the American people need to become more focused on the ideals that underlie, because these are not just legal decisions. These are not just statutes or court decisions. They’re flesh and blood people that are being mistreated and stripped of their human rights, and it’s an outrage and it has to stop.

Mary Theroux

Thank you. Well, the country was founded by people who held those ideals, such ideals as you’re talking about, very deeply. They fought the revolution and established a Republic that they hoped would ensure that those ideals were carried on. The principles drew from the natural law tenets of all men are created equal and we are endowed inalienably with rights to life, liberty and property. Obviously, as you say, it has been upheld imperfectly throughout our history, but I think many of us have been utterly blown away with how completely they’ve been abandoned in the aftermath of 9/11, and just shocked to see how readily so many have abandoned these principles and have replaced them with the utilitarian view that for some reason it’s okay. But those unfortunate to be living in the wrong place at the wrong time should be subjected to retribution for events for which they had no culpability, they have no responsibility, they’re being ruled by people they don’t want to be ruled with and don’t have anything to do with any terrorist attacks, et cetera.

Since then of course, as we talked about earlier with people, we’ve seen the growth of government power and loss of liberties and you’ve detailed it further in your most recent book from The Institute, Delusions of Power: New Explorations of the State War on the Economy. And yet many people argue that the ideals of the founders are irrelevant. Those were fine, non-intervention and peace with all. It was fine when we had these great oceans that formed our borders and we could be idealistic. But in the new modern age we have to be realistic about it.

So, both of you—all of us can jump in on this—but what would a U.S. foreign policy look like that was both consistent with those ideals, expounding principle as natural law tenets and deal well with modern reality?

Robert Higgs

That’s a big question, Mary. I hope we’ve got a few years. I’m quite sure that U.S. foreign policy would have to be a change root and branch from what it has become to some extent over the past century or more, ever since the Spanish-American War and particularly, since World War II. Even as late as the eve of World War II, many Americans still took seriously the idea that the United States ought properly to conduct its affairs with other nations as a neutral power. It should not make alliances with any other country. It should not entangle itself in the conflicts within or between other countries, that the proper role of the government was to protect the rights of the American people, period, and that should it become involved in other people’s quarrels and attempts to rectify the ills and evils of the whole world, it would only result in making Americans themselves worse off, less free, less prosperous and more at risk of the reactions from abroad to the actions it might initiate toward the world outside our borders.

And yet through a series of occasions that the government has again and again and again abandoned that classical stance toward foreign policy, the one that was the most memorably annunciated by George Washington and George Jefferson and launched into the precisely the kinds of foreign involvements and alliances and entanglements in other people’s quarrels that have marked its whole history since the late nineteenth century. Although one can’t say that this has been one-hundred percent failure, it has verged on that. And one certainly can say, and that’s a part of the message I tried to get across in Crisis and Leviathan, that the effect on liberties of the American people has been adverse. It’s been highly negative. Every time the United States set out to involve itself unnecessarily, and it was almost always unnecessarily, in these foreign affairs that it could have refrained from involving itself in, the ultimate result for the American people was a loss of liberties of some kind, because a government that attempts to affect the world must power to make those changes. And in order to exert more power, the government must get the resources for that exertion, and we are the reservoirs of those resources.

The ordinary people, the working people, the creative people, the entrepreneurs who create the real wealth make this country as affluent as it is; we are the ones who must provide the wherewithal for the government to add as a crusader, as a savior, as a power of first resort whenever any quarrel breaks out anywhere in the world, no matter how manifestly unrelated to the interests of the American people in general. I would think very few Americans can tell me a reason why the United States should involve itself in the Civil War in Syria, for example, and I could just go to one case after another and make the same commentary about it. And yet this has become not an extraordinary activity, but basic operating procedure for the U.S. government, and it involves not simply the State Department, but to an ever increasing degree, the Pentagon, which is very much a foreign policymaker now, and all of the Pentagon’s foreign installations, its hundreds and hundreds of bases, major bases located all over the world from which it attempts to intimidate foreigners and to create fear, to prop up the strong men that it chooses to support today, although it may turn on them tomorrow of course. All of this meddling, all of this chronic interventionism has not made the American people better off. I didn’t say, never. There may be instances in which one could make a positive case for it. But it’s the exception to the general rule.

So, the main thing that would have to happen would be an alteration of what you might call the present default stance of American foreign policy, which is the idea that America ought to be involved in everybody’s troubles all over the world. That is a basic mistake. It mistakes a desire to act for a capacity to act. It mistakes the idea that one knows enough to act intelligently with the reality of the vast ignorance even the people in the State Department and the Pentagon have about what is going on in other parts of the world and why. And it gets us involved in quicksand again, again and again from which it’s difficult to extract ourselves and we sometimes end up with as representatives a surgical action of some kind in which there we are decades or even more time later. Somebody might want to tell, say, the State Department or the Pentagon that World War II ended in 1945. There is not a real good reason to still have U.S. troops occupying Japanese and German territory. It’s over. They’re not our enemies now. We can worry about other things, and yet there they are. And I can explain to you, if I have enough time, why they’re still there, but those explanations usually boil down to things that have nothing to do with our well-being, nothing to do with the preservation of our liberties whatsoever. They have everything to do with the ordinary politics of predation, of special interests, of rent seeking, of all the things that make real politics so different from idealistic politics.

Anthony Gregory

I see two basic sets of rationales that we get for going to war or for intervening. One is the safety, the security, the well-being and the freedom of the American people; and the other is the freedom and well-being of foreigners. And you’ll often see this calculus come to play, where they’ll say well, we’ll make these sacrifices for the sake of these foreigners, or in some cases U.S. wars might hurt a lot of foreigners but we’re doing it because we have to for us. And in every case these calculations are made by government and by politicians who in this area, no less than in any other area are acting out of self -interests and who prevaricate and who are not always acting out of the motives that they say, as Bob suggested.

I think that it’s clear if you look at most of these wars that the rationales given for American security don’t pass the smell test. This was true with the Iraq war, which was one reason that they liked to shift to the other rationale. It was to liberate the Iraqi people. And some people were better off after Saddam, but not all of them, perhaps, maybe likely, not most of them, not the Christian groups or the Sunni groups or the women or many others who have been displaced, the millions who have lost their homes and had to move, to say nothing of the hundreds of thousands who’ve died as a result of the war.

On a smaller scale, we see the Libya War that President Obama participated in, that was sold almost entirely on the basis of liberating the Libyan people from Gaddafi, who was indeed an awful dictator, and the U.S. should have never supported him either. Yet what happens is there is this lack of attention span, where Americans are very excited about the war and what it has supposedly done for these people, and then they stop paying attention. So, they don’t realize that it has unleashed this horror against Black Libyans and immigrants who are being put in detention camps. They don’t really look into the circumstantial allies of the U.S. and Libya, which were Al-Qaeda affiliates, and this happens over and over. So, Americans seem to toggle between these two rationales and it’s a very convenient and very useful recipe for constant intervention, because a lot of Americans don’t so much believe in the national security threats as they’re presented, but they really do want to help foreigners; and a lot of other Americans are less concerned about that. They have part of that America first mentality, but if they feel threatened, even if the threat is as small or miniscule as the terrorists’ threat, they’re willing to sacrifice unbelievable amounts of their liberty and they’re willing to go along with major wars.

I think that the solution is an ideological one and a philosophical one. I think one problem is the American people have come to live in the seat of what is currently the world empire, and Americans in many ways don’t make particularly good imperialists because they’ve notoriously failed geography, for one thing. They know nothing about these cultures and they think they know everything. They’re interested in a war a year, but most people think the fighting in Iraq ended before it did or that the fighting in Afghanistan is more muted than it is and they don’t have any idea the extent to which Obama has continued or in some cases built upon the Bush policies. And just as important, war and intervention, which have been the main impetuses behind government growth and really the biggest issues in terms of all of the effects abroad and at home and on our security and our freedom. These issues as collected together should be regarded the number one issue or at least up there. And I fear that except in the moments of hysteria or the moments of great patriotic pride, the American people kind of tune out and they no longer think the war is even important, whether or not they support it. It’s a minor issue.

So, you have people voting on the basis of everything else imaginable. You have a lot of people who dislike the foreign policy intellectually, but they just don’t regard it as a high priority. They regard the talking points of the week. They regard whatever the Obama or Romney campaigns are hurling at each other as important. And some of this stuff is very important, but much of it, frankly, is rather trivial compared to the life or death matters wrapped up in intervention war; and by life or death I mean life or death of thousands of flesh and blood people, as well as the life or death of American liberty.

Mary Theroux

Thank you. Well, let’s shift focus back home now. The recent revelations by Edward Snowden have underscored the warnings that many others have been trying to issue for many years, and it’s now very well documented that the federal government is capturing and scoring every American’s phone call, email, the outside of all of the mail going through the USPS, all of our Internet activity, our library usage, every commercial transaction. Our cars are reporting on us. And most of us are carrying around a portable spying device that the federal government can turn on if you have it turned off in your pocket and eavesdrop and record any conversation going on in the vicinity. In short, every activity of every aspect of every one of our lives every day is being captured and it’s being stored in gigantic databases where it can be mined any time they like to build a dossier against anybody.

Yet despite this extraordinary violation of our privacy, as the recent Boston bombings showed, it’s not securing us any safety. Bob, as your book, Neither Liberty Nor Safety: Fear, Ideology and the Growth of Government, also illustrates this is a false tradeoff between freedom and security, and you show how the U.S. government’s increasing economic and military interventions reduce our civil and economic liberties, as well as you mentioned our prosperity and our genuine security. One of our friends and directors tonight, Dieter Tede, who grew up in Germany during World War II was remarking that today is the 69th anniversary of the attempt to kill Hitler in his bunker; and despite the near total police state that occurred in Germany at the time, they did not know of the plot in advance, so it was pointless. Yet polls unfortunately, still show that a majority of Americans, I think it’s still a majority of Americans, think it’s okay for the U.S. government to be spying on Americans. The general attitude seems to be, well, I don’t have anything to hide, so it’s okay.

So, what’s wrong with the government having all of this information? And if they don’t need it, how would we stay safe in the absence of such spying when there are all of these threats about us? How do we safeguard against domestic threats while also retaining our essential freedoms? And Anthony, why don’t I start with you on this one?

Anthony Gregory

Well, I think it’s a mistake to look at this as a balancing issue, because we know how the state always wants to tip the scale toward itself. Every state has its own institutional tendency toward totalitarianism, because it’s a monopoly on legal force. And every state in the world is constrained mostly by just lack of resources and by what the people will put up with. So, looking at it as a balance is dangerous. I think it’s also important to have some perspective about the threat. The Boston bombing was horrific. It was an act of mass murder; a serial murder and mass maiming and all civilized people condemn it. But if there were ten such bombings every day in the United States, you’d still be more likely to die or be injured in a car crash. So, it’s important to keep in mind what liberties you think are negotiable to try to deal with this threat. Even the year of 9/11 you were far more likely to be killed in a normal street murder or a normal pedestrian homicide, and there were at least a degree of things that Americans wouldn’t have put up with to deal even with murderers. So, I think we need to assess the threat a lot more responsibly.

During the Cold War, the Soviet Union had tens of thousands of nuclear weapons. It had a dangerous ideology that in Europe and in Asia and elsewhere began to just take over the globe, and still there were limits. Still Americans look back at the things the FBI did at the height of the Cold War and found them intolerable and that led to some of the reforms in the late ’70s that were completely thrown out by the last two administrations, and still there was a line. We all grew up in an era. I grew up, I was very young at the end of the Cold War, but I remember torture, indefinite detention, mass surveillance. These were the things the Soviets did. Now, it’s true the U.S. didn’t always adhere to the ideals that it claims to, but these were seen anyway as aberrations, they were embarrassments. They were not the policy that was just simply embraced. And the surveillance we’re talking about truly is unprecedented. And I am very careful about that word because very few things in politics are, but this is. This goes far beyond Stasi.

I don’t think the people in charge are as evil as the totalitarian rulers of the past. But in terms of the technological, material capacity of this infrastructure, it is something that Hitler or Stalin or any of those people could have only dreamt of; and they probably didn’t dream of it because it just goes way beyond them. And whether someone trusts this president to keep you safe or the next president, you have to keep in mind, as Bob has eloquently and persuasively shown, the state rarely cuts back, and when it does it does it all the way. And this conflict with terrorism, unlike with the Germans and the Japanese or with the Communists doesn’t seem to have any endpoint. There is no point where they will say enough is enough, we won, bin Laden is dead. There will always be terrorists, especially if the U.S. is meddling all over the world and making people angry. So, whatever you might think of this particular Administration, you should be horrified. And the mere fact that this Administration is overseeing this policy, regardless of whatever you think of any of the other policies, should probably change your mind about this Administration if you do look upon it favorably.

Mary Theroux

Well, do you have anything to add about our wonderful NSA state and how we should—?

Robert Higgs

I want to second Anthony’s judgment that I believe what’s been revealed recently truly is unprecedented. The power of the government with current technology to know where we are and to a very high degree what we are doing every single minute of the day and night is the stuff of which dystopian novels might have been made, but it would have been too ridiculous for any novelist to embrace. That would require too great a suspension of disbelief by the reader. And yet here it is evidently a reality, and not simply a reality, but one that grows steadily worse. There is now a huge industry valued at something in the neighborhood of $80 to 100 billion dollars annually. We don’t really know because it’s black budget. And the people in this industry which involves hundreds of thousands and perhaps even millions of employees of IT companies are working full-time to strengthen, to widen, to intensify all of the techniques already developed to know even more about every one of us and indeed everyone else on the earth that they can know about. And with modern technology most people are in line to be watched with a degree of scrutiny that no one dreamed of until quite recently.

Now, so what, you might say. And indeed, many Americans I’m sure are saying, so what, I don’t care. That I would say is an extraordinarily stupid attitude to take toward it. The fact that you don’t think you’ve done anything wrong is quite irrelevant. Any time it serves the purposes of the people who control that power to use it against you, whether you’ve done anything wrong or not, count on them to use it. The fact that we can’t point to anyone in positions of political power to say, that individual is worse than Stalin or that individual is worse than Pol Pot is irrelevant. The people we have in those positions today are plenty bad enough to put this capacity to extremely evil use. And I don’t think they’ll stop. When it serves their purposes, they will use it and they will accompany it with their usual excuses, explanations, disinformation and attempts to discredit anyone who opposes them, which they’re doing full-time now with Edward Snowden.

Snowden immediately was made the issue to divert us from the fact that the issue is what these government officials are doing to all of us. Edward Snowden is not the issue. The messenger is not the issue here. The message is the issue. And yet because of the way the media operate closely with the highest powers in this country, they did not by accident turn the news on this matter into news about Edward Snowden. That’s simply a typical way that the government attempts to distract us, to divert us from what is important onto what is unimportant and to keep us from thinking deeply and seriously about what they are doing to us. There was a time, I am quite sure—not that this country ever had a golden age of freedom, it’s always had severe deviations from its great ideals of liberty—but there never was a time in the past when Americans would have tolerated this kind of treatment. And the fact that we’re doing it today does not speak well of us at all.

Mary Theroux

Well, it is hopeful, I think for some us, that there is beginning to be growing protests and backlash against this. Today there are new revelations. There are new revelations almost daily. It came out a couple of days ago about the cars being captured. Today, in testimony before Congress it was revealed that they are in fact capturing everybody’s information. It’s not just terrorists. It’s essentially anybody in any network whatsoever. So, the revelations are unfolding. Hopefully, they’re building to a critical mass that will feed the kind of backlash that will do something about this. Two weeks ago on Independence Day, a group that organized itself using Reddit organized protests in eighty cities across the country, including in front of the new Bluffdale facility in Utah, which is the facility the NSA is about to bring online that will hold five zettabytes of data and just as context. The entire worldwide web is half of a zettabyte. So, five zettabytes is an incredible amount of data and one has to shudder at that. And there were even protests organized in front of the U.S. Consulate in Munich. They were rallying under the banner called Restore the Fourth, and they called for the abolition of the NSA, not reform, not scaling back, and a complete restoration of the Fourth Amendment.

Bob, last year in our 25th anniversary, you were one of the recipients of Alexis de Tocqueville Award, together with Lech Walesa. Do you see parallels and reasons for hope, as some of us do, between the protests that he built that led to the eventual fall of the Berlin Wall, the end of the Stasi, the breakup of the Soviet Union that we can draw on and hopefully use the playbook today?

Robert Higgs

Well, we can certainly hope to move in that direction. One of the advantages that the East Germans and the Soviets had by the 1980s was the fact that the ideological support for their system had almost totally evaporated in the course of time. There were very few true believers left. And of course, there were many people who just went along to get along, as there are everywhere at all times. But they could build a movement to oppose the system, which had plenty of evils to justify opposition because people weren’t easily taken in by official excuses for what was being done to the people.

The greatest difficulty we face today, in my judgment, in this country is that a great many Americans are easily taken in. I can imagine, for example, that many more protests might be mounted against this, and I hope they will be very much, and they’re held not in 800 cities, but in every city in America, that people would come out and say, no, we won’t tolerate this or anybody who supports it in office. We will oppose you with every ounce of our strength if you support this totalitarian measure. They would take that seriously. And what they would do would be say, oh yes, you’re right, we need reforms. And then they would have committees hold hearings and they would drag their feet for a few years. And they would introduce bills which would be amended out of recognition along the way. And in the course of time, if the sun hadn’t burned out by that time, they would come forth with their reforms.

That’s the nature of our system. That’s how it responds to great popular pressure. I really hope that people understand that what we need in this case is not reform. We need to tear these damn things apart brick by brick and let everybody who put those bricks in place know that they are on our list and we’ll never trust them again in positions of power. If we tolerate people who would treat us that way, we will get treated that way. And we’ve tolerated it this long. We’ve tolerated it with faulty excuses about scares blown out of proportion, with lies, with lies and with lies coming forth from our rulers, and we forgive them somehow, because in some other dimension they’re doing something we like. That’s very dangerous.

I don’t think this is an issue that’s negotiable, because this one portends utter totalitarianism. If they know everything about you, they can blackmail you. There are very people so saintly that they can’t be blackmailed. And even if you are not blackmailable by virtue of your own conduct, they will threaten family members. They will threaten friends. The Communists made a science out of working this way. They know how to get you to fall in line. And when they know so much about everybody, they will have power in their hands to make everybody fall in line, and the only way to stop it is to tear the damn power apart to say, we won’t tolerate you and maintain this Utah facility. Bulldoze it. Don’t put it there, won’t tolerate any congressional hearings. We want this thing stopped and we want it stopped now. We want the president to issue some kind of Executive Order terminating all work on it tonight.

Not until we make that kind of demand are they going to do a damn thing. They’re going to shuck and jive us the way they always shuck and jive us, and we’ll tolerate it. We’ve tolerated it for decades and decades, which brought us to this point. We didn’t get here by accident. We made it possible. It’s true that maybe not many of us are as evil as the people that kept pushing the lever. But we made it possible because we never said, no, no more, no phooeyness again. And I think this time if we don’t do it, we are lost.

Mary Theroux

Anthony, we go to a lot of conferences and gatherings of both scholars and activists and one of the most exciting things to me is going to these and seeing the great numbers of young people, because X years ago when I was that age group and I’d go to things, there weren’t that many of us. And now there are a lot of young people involved and they’re very principled and they’re very active, and they are organizing in unique ways using the power of social media and other things and very interested in pursuing these ideas and seeing them put into action on a principled way. So, that to me gives me tremendous hope and optimism. What are you seeing?

Anthony Gregory

Well, I see that too. Even when I was a student the movement that was interested in these ideas, was considerably smaller than it is now and that’s very encouraging. I think one reason the youth are often attracted to ideals is because they have a long-term outlook. They see that in many cases, no, the short term is not really where the greatest hope is. They don’t buy as much into the fleeting political controversies of the day, and they’re thinking in the long term for the rest of their lifetimes, and they’re hopeful in that sense, and that’s the way that I’m hopeful. I’m hopeful in the long run.

I think eventually something has to give. I think that there are just too many internal contradictions in the American political system to maintain the support that it has maintained for so long. And I think that just the human nature, the laws of economics that are something that the state hates to deal with but always has to will show that many of the promises they’ve made to young Americans about what is possible in the future are a tissue of lies or distortions. And in the long term also, I’m enthusiastic about what the youth see in terms of freedom being an international idea. I am an American and I certainly want freedom to be, we could say, restored. I would like to see it flourish in America as it never has, but I’d like that for the entire world. And to be honest, I think that the fixation with liberty as this American ideal, that there is a lot of truth to that fixation. Historically it’s kind of jumped the shark. I think that in the long term I have more hope that there will be people elsewhere in the world that will take up the banner. It’s the U.S. that is doing this to its own people and the rest of the world, and there are people all over the world outraged about it.

Now, I have no doubt that most of these people if they were living under the most powerful, extensive state on earth, if their government was the one that had bases everywhere and claimed the authority to capture and kill anybody on earth on the say so of the president alone, which is what our president claims the authority to do, I think that would be possible, but the circumstances are that’s not the way. And we saw with the collapse of Communism, we’ve seen in China, though it certainly has a far way to go, a move toward liberty, away from the depths of Maoism that is inspiring in the long term. Now, this might sound pessimistic in the short term, and I think that it’s important in the short term that we have a sense of urgency where it most matters. And I agree with Bob that this is an issue, if there ever was one that we should approach with the utmost urgency.

There is no time to squabble about whatever the last political gaffe was. I keep up with and am interested in whatever the most controversial court cases are, criminal court cases. Like anyone else, I’m interested in the news. I’m interested in pop culture, and I have a lot of interests of that nature, just like all people and all Americans. But when it comes to our political priorities Americans need to wake up because this isn’t a matter of whether we’re going to live in a totally free country or not. As Bob says, it was never a totally free country. That’s what I want, but I don’t think we’re going to get that any time soon. But what we have some shot of doing is averting this accelerating stampede toward the total state, and it has accelerated since 9/11. I’m hoping eventually, Americans will understand that even if we had a 9/11 every year it wouldn’t justify what’s going on abroad or at home. But I also can hope at least that eventually the lack of attention span that many Americans seem to have regarding these things might work in our favor, and they’ll stop believing in everything they’ve been told about how the U.S. government is keeping them safe by waging wars or by spying on everyone or claiming despotic authority in detention policy and elsewhere.

I’d like to see the whole National Security State as we know it abolished. I’d like to see people saying things like Bob said and like I’m saying. And it sounds to many people to be a little out there, but what’s out there is what we have now. And what’s even more out there is the direction that we’re going and this is unambiguous, because the trajectory couldn’t be more clear, and that’s what’s really outrageous. And just like the abolitionists during slavery made a point that you have to be urgent about this—William Lloyd Garrison, the great abolitionist, said that gradualism in theory is perpetuity in practice. If you talk about reform, if you hope the next candidate will tweak things a little bit, if you’re hoping that maybe our congressional leaders will somehow become enlightened and make things just a little bit more protected in terms of civil liberties, then if that’s your stand and the state is going the direction it wants, which is total control, then that’s not a compromise. That’s just a guarantee we’re going to keep going the same direction.

It’s time for people to be as urgent about this, as emphatic about this, as outraged about this as they are about anything imaginable, because honestly, I have a big imagination and I’ve thought of all of this stuff for years. Even I was a little shocked not so much by the revelations, but by the American response, which could be worse, but it could be a hell of a lot better.

Mary Theroux

Well, obviously, we here at The Independent Institute agree that it’s an ideological battle that has to be won and that’s what we work on producing daily, and are honored to work with people like Bob and Anthony in fueling the ideas and the information that’s rooted in principles that then go out and feed the activists that effect change. So, we’re working on creating the virtuous circle between the ideas and the actions that will lead to a change in the Zeitgeist, shift the culture to no longer accepting this, to again standing on principles saying, no, it’s not okay, it’s not okay a little bit and it’s certainly not okay a lot. And we must live in these principles regardless of if it seems like we might be in a little bit danger, because we’re far safer with them as we know, and we’re far under great danger with this going on.

So, I very much appreciate your informing this. We now want to open this up and involve the audience who is here, as well as the audience who is participating by live stream. We’ll take questions now. If you could wait till the microphone comes to you so we can capture it. And it’s very helpful if you hold the microphone horizontally to avoid feedback. And those who are live streaming, if you put forth a question, it will get conveyed to us and we will answer it to the extent we have time available.

Participant

I’m just going to elaborate a little on the point that Bob made about the media. It seems to me that the media is private and yet it’s constantly doing the bidding of the government in terms of scaring us and manipulating our opinions to be more supportive of these kinds of interventions. I watch CNN a lot and before it became the twenty-four hour Jodi Arias/George Zimmerman network, every night they would have a piece on Syria and how horrible it was and how terrible we were for not intervening. Why is that and what can we do about it?

Robert Higgs

All crises attract viewers. They attract readers. Dangers attract interest, whatever the form of the media. So, the media are constantly hyping potential dangers, I should say, not dangers, but potential dangers. At least ninety-nine percent of the great threats that CNN brings up on a day-to-day basis are scarcely even real, much less things are going to turn into major threats to humanity. So, they’re just, in a sense, the modus operandi of news and entertainment disseminators. Just as horror movies attract viewers, visions of future real horror attract viewers too. So, the media are entertaining us as a horror movie producer entertains us, and at the same time they’re maintaining their liaison with the state and they need that very much. Because if you ever notice the great bulk of the material they use and report on comes to them from some kind of government official, some kind of government statement. In many ways, the mainstream media are simply amplifiers. They’re megaphones to make a big noise of the same kind the government has begun by making. So, everybody will know about it, especially know and be frightened about it, because they know very well that under the current ideological conditions most Americans when frightened will turn to the state to protect them, to save them from this imagined danger.

It’s obvious that people can grow tired of this, a constant wolf crying after a while so they can begin to tune out to some extent, but all one has to do is change the nature of the threat or raise the level of the volume a little bit and they come running again, as if they never learned before. That it’s almost always a trick. It’s almost always a way to purchase their subservience, to purchase their willingness to part with their own resources and particularly, to part with their own liberty. “Fear” is the title of an article I wrote a few years ago and it’s the lead article in this book. I may not be a good judge of my own work, but I think it’s one of the best articles I ever wrote in my life, because it seems to me that fear is at the very foundation of how all states operate and it can be involved in a variety of ways. But the fact of the matter is if you want people to take leave of their senses, to not use good judgment, all you have to do is scare them and it will work, particularly if they’re predisposed to look to the state for their salvation.

Mary Theroux

Regarding the media though, I’m very cognizant in the instance of the Nixon Administration, there was a couple of reporters who nobody believed but doggedly pursued the Watergate story. The vast majority of Americans were completely apathetic about it, could care less, Watergate what. But they kept pushing it. They kept digging it. And again, they were entrepreneurial media types and they eventually brought down the most powerful man in the country. And we had kind of a reverse ratchet effect where Americans in general said, well, we don’t want to trust government anymore and we want to roll it back.

And today, of course, we have many more opportunities. We don’t have just three networks anymore that control all of the news. There are a lot of entrepreneurs in the media. There is a lot of new media. There are a lot of entrepreneurial newsmen all over the world and I think it’s a different picture. We can get that sort of phenomenon again and I’m very hopeful that we can have an even better outcome if we get a few, even just one, really great person digging and making a career out of making sure that we’re not apathetic, that we pay attention to it, that we get the story and we understand why it’s important. And as a result of this, and hopefully fed by principled arguments, really shift the culture and seek change.

Do you want to say anything about the media, Anthony, before we move on?

Anthony Gregory

Briefly, yes. I think there are specific reasons that the mainstream media are so in bed with the state. A lot of conservatives talk about the liberal media, and there is a little truth to that. And a lot of liberals talk about the corporate medium, and there is truth to that. But really it’s the state media. And it is true that it’s nominally private, but it’s kind of private in a Fascist sense. It has this relationship and it’s a very tight relationship. If you want access to the White House, if you want access to the war, you’d better play nice, and that alone goes a long way in explaining all of this. And furthermore, it’s true that there are all of these independent media erupting. And one thing that gives me some hope is it’s breaking down this nonsensical left/right spectrum that I think the state just loves, because divide and conquer has been the resort, has been the strategy of imperialist rulers and other villains throughout history.

And people need to stop getting in this whole red team/blue team mentality and stop lining up behind the talking points of the week and realize that fundamentally, although other people have different views about all sorts of issues and people are very different culturally, and in any given political issue you might see them as your adversary, if people keep thinking that their enemies are the next door neighbor and Obama is their savior, or their enemies are somewhere in a different country or coming from Mexico and their savior is a Republican politician, instead of seeing the near identical nature of all of these politicians, I think that we’re going to have a lot of trouble. People need to snap out of it and stop spending all of their time arguing over relative trivialities, at least for now, because this really is an urgent matter.

Mary Theroux

Question?

Participant

You may have briefly alluded to it, but one of the things that I’ve been reading that is another unprecedented change has been that as the government, particularly the federal law system becomes more and more complex and intricate and intervening into more and more areas of activity there, that the government could find, if they dig there, they can find—they can make any of us a criminal in the sense that they can find some violation of some law. Not only can they do that, they have been starting to do that. They’re combining that with their surveillance ability to know what everybody is up to. It seems to me that there is an impending ability to be able to—you used the term blackmail, but it’s along that line. I mean they’re blackmailing by just taking them out of the way there, and we’ve seen that it looks like interfering with intellectual politics there where besides the question of disadvantage in certain groups who are participating, we also have this issue of releasing information about unfavored candidates that—information or otherwise tying them up and things. That’s part of the symptom here, but how would you put that into your equation in terms of the security today, in terms of if you tilt the playing field so that the institutional correctives of the people being able to vote becomes incapacitated by disqualifying candidates—

Robert Higgs

Well, there has been a tendency for over a century for the government to multiply the details of its statutory restrictions and requirements, and at the same time to build an immense regulatory state. And we now have a legal system in which laws are made without real consideration by legislators at all. They’re simply regulations that are made by the members of regulatory commissions and boards and what have you; and there is a due process procedure for their doing so, and there is always supposed to be some underlying statutory basis for them. But they’re very inventive and they’re very persistent. They work on this every day of the week. Every bureau wants to have more regulations to enforce. It gives it more power. It gives it more ability to bring about the state of the world it wants to bring about for whatever reason. And it also puts every person increasingly in the position you describe, where they can find that we’re in violation in most cases of some felony restriction. And it doesn’t take much at all. It can be done quite by accident.

I noticed yesterday standing in the Los Angeles Airport a big sign standing there informing me of something I already knew, but I was struck by it once again, and that is that the U.S. law forbids anyone to enter or leave the United States with more than $10,000 in currency or the equivalent in foreign currency without reporting. It’s not one form to be filled out, but three. And that failure to make those reports and to make them accurately may result in the forfeiture of all of your currency and your imprisonment. Now, think about that. How easy might it be to be off by a dollar when you report the amount of money you’re carrying? There are just any number of ways in which people could totally innocently—and this is not just conjecture on my part. This has actually happened in regard to this rule in the past. People have had all of their money stolen by the government because they didn’t correctly report the amount they had or they didn’t fill out the forms properly.

Now, that’s just one instance. Multiply that by about 400,000 and you have the world we live in, a world where all criminals any time prosecutors want to show that we’re criminals. Historically, there was a natural law that defined crimes. They were obvious things like murder, robbery, burglary. You could count them on your fingers the number of real crimes that could be committed. Well, that hasn’t changed. That’s still the case. But what we have now is this jumble of criminal requirements and prohibitions created by the state precisely so it can put the fear of God in everybody, bring them into full compliance with whatever it tells them to do, no matter how ridiculous it is, and no matter what real reason it has. What is it to the state how much money I carry across the border? It’s none of their damn business. What is their care in somebody bringing into the country $12,000 in some currency? It’s none of their damn business. Why are they worrying about this? They’re worrying about this because they want to enforce absurd rules on people who have harmed no one, but who give them the opportunity to push their weight around and steal money from people who often innocently put themselves in violation of these ridiculous laws. But as you say, here we are now. And the only way we can get out of this is by beginning to hack away at these laws and repeal them one after another. Repeal, not amend, not reform, repeal, make them go away, disappear.

Mary Theroux

Or maybe just repeal them all and start all over with the natural law. And then of course, the really neat thing about them having these databases with all of your phone calls and correspondence and everything else, as Armand Jean du Plessis, who was the famous Cardinal de Richeleu of The Three Musketeers said, “if you give me six lines written by the hand of the most honest of men, I will find something in them which will hang him.”

Anthony Gregory

If I could just real quick make a point about this regulatory state, a very short point. It seems to me that as I was talking about dividing and conquering, there are a lot of Americans who have at least some skepticism of the criminal justice system, but they love regulation. They think any new regulation has to overall be good, or if they don’t think that they think that at least they’re well intentioned. They think that generally regulations are the path toward more stability, fairness and so forth. There are other Americans who are skeptical of the regulatory state, but they’re kind of blind to the horrors of the criminal justice system, its brutality, the inequity, the inhumanity that we see in it. And this is just one of those many cases of pure cognitive dissidence where these people don’t just all get together and realize that the regulatory state and the criminal justice system are the same people, and that the regulatory state is enforced through the criminal justice system. That’s all.

Mary Theroux

Good point. In the back, Paul?

Paul

Thank you. I want to thank the panel for a really excellent discussion. It was reported in tonight’s New York Times that earlier in the day, Deputy Secretary of State Ashton Carter announced at the Aspen Institute that now the Pentagon is ready to deploy advanced cyber defense and offense troops, 4,000 of them under the command of General Alexander, who also runs the National Security Agency, and the U.S. Cyber Command. So, I was interested in either of the panelists, your comments of what the implications of that could be, particularly how the whole cyber defense thing is punitively being constructed to defend us against threats from China, et cetera, but what the implications would be for everything you’re talking about. Thank you.

Anthony Gregory

Well, I think in terms of any businesses, any businesses that depend heavily on the Internet, which practically all of them do, I think that they should pay for their own defense against cyber attacks or any of this. This is just one more pretext for more power. And even if it has the best of intentions behind it, there is just simply no reason to think that they’re going to do a good job on this any more than any others. The Boston bombing happened despite the surveillance state. And even if they multiplied the power of the surveillance state or reformed it or tweaked it or did anything, such attacks could still happen. There will always be people who can outsmart the system to do bad, specifically with terrorism, which of course, is simply an act of violence that is available to any able bodied human being and always has been. There is no way to stop this stuff altogether. People need to get some perspective. I don’t know all of the details about that, but I have no reason to believe that it would be the one exception to the rule.

Robert Higgs

I myself would wonder whether it’s really cyber defense they’re working on or whether it’s more cyber offense that they’re developing to aim at other countries. In general, all of the defense programs have that kind of symmetry built into them, and we do know that it’s a long-term part of the national defense posture that the armed forces acquire total spectrum dominance, it’s called, so that they control the land, they control the air, they control the seas and they control space. And this fits into that vision of universal domination. It’s almost the stuff of bad movies at this point. But nonetheless, it doesn’t mean they’re not spending scores of billions of dollars every year paying IT companies to dream up and deploy this kind of stuff.

Mary Theroux

Over here?

Participant

Though I embrace your cosmopolitanism and generally feel that liberty isn’t just exclusively an American ideal, that it’s something that’s global, and I think the International Student Movement for Liberty and organizations like Students for Liberty feel the same, I feel compelled to play devil’s advocate. So, as an American citizen, what threats do you think face this country and the government legitimate threats—or what legitimate threats do you think face this country and how might the government go about addressing those threats in a just way?

Anthony Gregory

Well, terrorism is a threat. It’s a miniscule threat. It’s almost statistically negligible, but it does exist. And it exists, I believe for the most part, because the U.S. goes around thinking it owns the world and propping up dictators, then overthrowing them, torturing people, drone bombing, like it’s doing in Western Pakistan. It’s terrorizing, has made life a hell on earth for those people. This kind of behavior makes people mad. And as long as the U.S. continues to do this, then the threat of terrorism, I’m confident, will be higher than it otherwise will be. I really don’t see any way that the government can stop terrorism, other than pulling out of these countries, declaring peace and perhaps, although it would be disingenuous, going on a real apology tour.

I don’t think that there is any way to stop people from sneaking things on planes. I mean, this is absurd, people can make Molotov cocktails if they get the liquor. There are all kinds of—anyone who has any imagination at all could think of how to unleash a horror that would take many lives. People have access. The government has been profiling, and we see with the Boston bombing, with these white Muslims that didn’t quite fit the profile. So you could try to widen the profile, but you’re just going to widen it till it captures everybody. And the state might have everyone’s information, but it’s not going to be able to comb it in any way to actually stop these threats. Maybe on the margin it’s possible they’ll stop something, but the majority of all of these failed terror plots since 9/11 have involved FBI informants, where the FBI sends somebody to convince a bunch of people to make this plan and then they stop them before the plan is carried out. There are one or two exceptions.

But the National Security State is not protecting us. I don’t think it can protect us. I think the only hope against the, again, rather trivial threat of terrorism—it’s not trivial if it impacts you or if you lose someone in it, but the same with car accidents or people drowning in pools or any other horrible thing would happen. I know it’s criminal, it’s murderous, but there is threat of crime. There is no guarantee to pure safety. People need to get over that. There is no guarantee of pure security. But we do know that the state is attempting to move toward pure control. And there is no possibility of pure control either, especially directed towards any good purpose. They can make life unbearable and they can make life much less free for all of us, but I think the time is past beyond which Americans should be even humoring this idea of what do we do to get the government to protect us better.

The time for that discussion was September, October, November 2001, that was twelve years ago. The state blew its chance. It unleashed great horrors. It has destroyed more American life than the terrorists ever had, and if it’s true that terrorists do hate us for our freedom, the state is conspiring with the terrorists, however inadvertently. There is no way that terrorists can take away our freedom. They can destroy life, they can kill people, they can destroy property, but nearly on the scale of the state. And when it comes to our liberties, they are no match for government. This is Osama bin Laden’s wildest dream that the American people would do this to themselves.

Mary Theroux

I know Dianne Feinstein has claimed that the NSA has prevented attacks. There has been no evidence that that’s the case. And TSA claims it has stopped plots, but there has been no evidence. And the one thing we do know historically is that the few would be bombers and hijackers that have been stopped were stopped by their fellow passengers.—who can protect ourselves and we need to remember that we have more power than we ever give ourselves credit for and utilize it, and we’ll be far safer under that basis.

There was one over there and then let’s come over—okay, we’ll do it the other way.

Participant

I’m particularly conflicted on this matter, because I usually like to evaluate both sides of an issue. And when I attend events like this, I only usually hear one side of it, and I would really like to hear you poke holes in the other side. I’d like to use this opportunity to ask you a very specific question. What you just mentioned about we don’t know how many acts of terrorism have been avoided, therefore, we conclude that none of them have been avoided, part of the security methodology is you find evidence and then you stop an act of terrorism is totally counterproductive to reveal how you did that. So, there is a catch twenty-two situation here. And I don’t think we’ll ever know until fifty, sixty years go by and the Freedom of Information Act tells us how many acts of terrorism were actually stopped and how it was done. So, I’m going to pose a hypothetical to you.

Mary Theroux

I don’t think the state could resist.

Participant

It would not be good security if they did, because if you tip off the bad guys, you’re not going to find them that same way again. The hypothetical is—

Mary Theroux

I think you can reveal that you have stopped a plot without revealing how it was done, and they do it with murderers in the newspaper every day. They will talk about certain things, but they won’t reveal all of the details.

Participants

We have a difference of opinion on that issue. But the specific question I have is, if hypothetically—and I’m not naive by the way to think that all government workers are men and women of good faith as a primary goal. There are a lot of them who just want to make their job pay off. But I’m assuming there are some good people there. If they were able to find out and have stopped 9/11 incidents that we don’t know about, how many of those incidents would have to occur before you would be willing to give up any of the individual freedoms that we’re championing?

Robert Higgs

I myself am not willing to give up any freedoms at all, period, for their claims that they have protected me in the past or for their promise to protect me in the future. And the reason for that is that I simply don’t consider them credible sources. We know that they and we can document the ways in which they have lied again and again and again. So, the default position I take is that the government may be telling the truth, but I’m just going to assume it’s lying whenever it tells me something I can’t confirm independently like that. And I think I’d be damn fool without independent confirmation to believe anything I’m told, because it clearly serves the purpose of the government to represent itself as having succeeded in these kinds of protections.

But when I think about what it takes, as Anthony was saying, to commit an act of terrorism it’s so simple. It’s so accessible to virtually to any adult with an IQ over seventy-five, that the fact that there have been no serious terrorist incidents in this country since 9/11 tells me that damn few people must be trying to carry out terrorism. I could carry out some terrorism in the next few days if I set my mind to it, anybody can. It’s not that hard to do some kind of terrorism. It’s just a tactic. It can take a thousand different forms. And if we don’t see acts of terrorism, why in the world do we believe these boogey men are under our beds in great numbers. It does not make sense. It’s incoherent as an argument.

Participant

Do you take into account at all the historical operations against the Japanese code or the Enigma machine, which we didn’t find out about for 40-50 years after the fact? And I agree with you wholeheartedly a single individual can do an act of terrorism anytime. Most the restrictions are against good people and they’re totally inconvenient. But if there is a conspiracy, monitoring develops patterns. I’m wondering if we have enough information to determine whether conspiracies of many phone calls and this and that and the other thing have come out to prevent terrorist attacks.

Robert Higgs

Well, I agree with you that it’s conceivable what things are happening that we can’t know about certainly. You and I don’t have access to the kinds of information. That’s why we we’re complaining here tonight. We don’t have it and they shouldn’t have it. But the point is we don’t have all of the information they have. So, we can never say for certain, they’ve never prevented a terrorist plot. But even if they’ve prevented one, even if they’ve prevented fifty of them, I still don’t want them to take any of my liberties away, because it’s a relatively trivial threat to me in the broad spectrum of threats to me, my life, land, liberty and well-being.

At the same time that I think terrorism has been utterly blown out of all proportion by these scare tactics the government has carried out, there have been genuine threats that continue to exist. The greatest threat this country ever faced was during the Cold War when we were on hair trigger opposition with the USSR, both sides with tens of thousands of nuclear weapons, thousands of them on long range and intermediate range missiles and deliverable in an hour. If even a small proportion of those had ever been engaged in an exchange of nuclear weapons, it would have well—destroyed the entire world.

That was a real threat, because even if we were all as sweet as angels and as competent as God there were accidents, okay, accidents on several occasions, that very nearly triggered all out nuclear war between the USSR and the United States. Now, we say, oh, but the Cold War is now over but not really. Russia still has thousands of ICVMs with nuclear weapons operational, re-targetable in just few minutes to any site in this country. If somehow things should deteriorate or the technology should develop a glitch, we could have a devastating exchange of nuclear weapons. It’s not at all out of the realm of possibility. About ten years ago, there were actually a number of generals and admirals, about half and half split between the former USSR and United States, and they formed a group and they attempted to bring to the public’s attention the continuing danger of maintaining these weapons. And it was in the news for a short while and it disappeared, and I assumed these guys gave up in exasperation because no one paid any attention to them. But the fact is these weapons still exist. They pose the greatest threat we can imagine to people all over the world, and especially to us in this country. And so I would say people need to get their priorities straightened out, as some terrorist with a bomb on an airplane is not even in the same universe with an exchange of big H-bombs.

Mary Theroux

We have one more question in audience we’ll take. I would just say my answer to them is if they can’t keep me safe without securing my liberties, then I’m going to fire them and hire somebody who can.

Participant

Fourth Amendment rights analysis starts with defining the zone of privacy or the expectation of privacy. It seems that our digital communications all start with checking the box that says read and accept; and that read and accept check of that box indicates that we have an agreement with the conduit or entity who is providing the conduit of our digital communication. Inevitably, that agreement contains a very porous privacy policy. And my question is given that we have checked the box, read and agreed, are our digital communications protected by the Fourth Amendment? If the answer is yes, what’s the argument indicating that those digital communications are in fact protected by our Fourth Amendment rights?

Robert Higgs

My response would be that the way you’ve posed that question really requires a lawyer who is expert in that area of law, and I’m not a lawyer with that kind of expertise. But I would respond to the question differently. I would say I don’t care how an expert lawyer would answer your question. I don’t want these people and the government reading my email, period. And if the people who serve me, with the capability of sending email messages are handing it over to the government, I want them to stop, and I want them to make clear that they’re not going to hand it over to the government. And I want all carriers to make it clear they won’t hand it over to the government, and I want all of us to make clear to the government officials that we want them to stop reading our damn emails. It’s simply not something that has to be done, and it’s not something that serves a legitimate defense or security purpose.

If they have a good reason to read somebody’s email, if they have some evidence, if they can show cause, then they can easily go to a court and get a warrant to read our emails or look at any other form of evidence that we consider private by virtue of having a court authorize them to do so. They do this now. The court rubber stamps tens of thousands of requests for this kind of search every year. It’s not hard. They can get it in just a matter of a few hours. So, the fact that doesn’t satisfy them and they’ve got instead to scoop up every single human being’s electronic communications tells me that they’re thinking along different lines. They’re not really concerned about going after somebody who, for some plausible reason, might be engaged in acts of terrorism or other criminal acts. They’re just fishing, and they’re fishing in every pool, and to me I just can’t believe that they’re doing this for a good purpose.

Anthony Gregory

One thing I note, in the years between it was created, the Foreign Intelligence Surveillance Act that created this Court within the Justice Department—it’s not really a court, it’s an Executive Branch court. In the years between then and 2001, they were asked for about 13,000 or 14,000 warrants and they rejected zero. And this was the restriction that Bush and Obama couldn’t put up with. I’ll agree with everything Bob said. I will note that I think it’s a mistake—and this isn’t my primary interest—but if I am going to play the legal game, I think it’s a mistake to look at it just in terms of privacy as some kind of thing that we have. The Fourth Amendment, like most of the Bill of Rights, is a prohibition on government conduct.

So, it doesn’t matter what you do. It doesn’t matter how open you are about it. There are things that the state doesn’t have the authority to do, first of all because it wasn’t given that authority, and second of all, because in many cases it specifically prohibited from engaging in it. So, yeah, people open themselves up and they relinquish their privacy in a sense, but that still doesn’t mean the state has a right to even look it.

Mary Theroux

And I’ll take one that came in through the remote viewers, Edward Snowden, hero or traitor. Well, I’ll quote his former associates in the NSA that came out, three senior NSA officers who among them have almost one-hundred years’ experience working for the NSA. They’ve all been whistle blowers for the past seven years. They’ve been trying to go through the official whistle blower channels. They could not get any traction on it, and they call Edward Snowden a hero. So, I’d say that’s good enough for me.

I want to thank everybody for being here, Bob and Anthony so much for being with us and especially, all of you who were here this evening. This is an incredibly important issue; probably nothing more important now and we hope that you have learned things. You can share them with them. Bob and Anthony’s books are available for sale out on the book table, and they’re here to sign them if you’d like. And for further information we have a lot of content on our website, independent.org, including this program will be available there. Many, many, many articles that they have written, analysis and I think a lot of information that you can take and use and share with your friends and hopefully, empower us to really shift the culture in the immediate term, abolish this current state of affairs and have a much brighter future. We hope to see you again soon at another Independent Institute event, and thank you and good-bye.