Surveillance and The Fourth Amendment, part 1

Whitehead serves as a member of the Constitution Project, which seeks to formulate bipartisan solutions to contemporary constitutional and legal issues by combining high-level scholarship and public education. He also serves as a member of the advisory board for the Innocence Commission for Virginia, a nonprofit, nongovernmental, nonpartisan project dedicated to supplementing the ongoing work in Virginia through recommendations to strengthen the reliability of its criminal justice system and to reduce the likelihood of future wrongful convictions.

He has been the subject of numerous newspaper, magazine and television profiles, ranging from Gentleman’s Quarterly to CBS’ 60 Minutes. Articles by Whitehead have been printed in the New York Times, Los Angeles Times, the Washington Post and USA Today. He has also been interviewed by the following national and international media among others: Crossfire, O’Reilly Factor, CNN Headline News, the Wall Street Journal, USA Today, National Public Radio, BBC Newsnight, BBC Radio, British Sky “Tonight” and “Sunday,” TF1 (French TV) and Greek national television.

The author of numerous books on a variety of legal and social issues, as well as pamphlets and brochures providing legal information to the general public, Whitehead has also written numerous magazine and journal articles. In addition, he wrote and directed the documentary video series Grasping for the Wind, as well as its companion book, which focus on key cultural events of the 20th Century.

Whitehead has filed numerous amicus briefs before the U.S. Supreme Court. He has also been co-counsel in several landmark Supreme Court cases as well. His law reviews have been published in Emory Law Journal, Pepperdine Law Review, Harvard Journal on Legislation, Washington and Lee Law Review, Cumberland Law Review, Tulsa Law Journal and the Temple University Civil Rights Law Review.

Born in 1946 in Tennessee, John W. Whitehead earned a Bachelor of Arts degree from the University of Arkansas in 1969 and a Juris Doctorate degree from the University of Arkansas School of Law in 1974. He served as an officer in the United States Army from 1969 to 1971.

John served as an officer in the U.S. Army from 1969 to 1971. In 1982 he founded the Rutherford Institute which is located in Charlottesville, Virginia, where he serves as its president. He is an outspoken, diligent and consistent defender of the rights of others transcending partisanship and he has written extensively in print media while also speaking out frequently on radio and in interviews. John also writes a weekly column for The Huffington Post. He has authored numerous articles and some 20 books inclusive of his most recent, A Government of Wolves: The Emerging Police State, which we will be discussing today as well as The Freedom Wars, 2010, The Change Manifesto, 2008, and Grasping the Wind in 2001. In 1991 John Whitehead won the Hungarian Medal of Freedom. He also received the 2010 Milner S. Ball Lifetime Achievement Award for his defense of civil liberties. He is a participating member of the Constitution Project which works to forge bipartisan agreement for solutions to legal and constitutional issues. He is also on the advisory board of the Innocence Project which challenges wrongful convictions in the criminal justice system. John and his wife Nisha reside in Charlottesville. Welcome again, John.

John Whitehead: Thank you.

Jan Paynter: John, let’s start by discussing the genesis of your work on this most recent book A Government of Wolves, specifically what prompted you to write it?

John Whitehead: Well, what prompted me to write it was I’ve been again about 40 years in the area of civil liberties and especially since 9/11 things have accelerated in terms of government encroachment. Actually under President Obama they’ve accelerated further. A lot of it, by the way, is technology driven. The recent scandals over the National Security Agency, people were shocked but I wasn’t. I began researching the NSA back in the 1980s when they were caught doing domestic snooping on American citizens. The big difference now is that the government has at its disposal several things that are very, very powerful, one computer technology, that we don’t have. The NSA has their Utah facility that can actually download—the computer system could actually download the entire Library of Congress, its contents, in six hours and I was recently told by a Secret Service agent that actually the NSA is downloading one trillion bits of information from the internet every month, which is text messages, emails, phone calls.

Jan Paynter: Wow.

John Whitehead: We’ve actually had cases where government agents show up at a door of a veteran or someone and say, ‘We read your Facebook post. We’re concerned’. So they’re reading everything and the key is that they have all these computer systems that parcels the information and hands it to the agent so technology is really the scary thing. Plus the armament of local police, that’s scaring me. When I first started seeing SWAT team raids, I went, ‘Whoa! This is America’. That frightened me.

Jan Paynter: John, discuss if you would the effect of the Patriot Act on the evolution of our concepts of privacy and security.

John Whitehead: Well, the Patriot Act was October right after 9/11. It was a 400 and some page bill, which some people raised concerns how quickly it was written, if it was written quickly, but it allowed the FBI to come into your home, put equipment on your computer without you ever knowing it and totally bypassing the 4th Amendment but reading your emails, doing all the things we’re seeing today so the Patriot Act opened the door for all this. I even talk to people in government who thinks the Patriot Act is unconstitutional. The key here is we have the 4th Amendment. The 4th Amendment says before the government does surveillance on you in any way or touch you, they’re supposed to have probable cause, this means that you are up to something illegal and they have some evidence and if it’s not an emergency, they have to get a search warrant. With all the things we’re seeing since Patriot Act, going into your home, reading your emails, they’re bypassing the 4th Amendment so rule of law, that’s one thing that’s scaring me is—and frightening me a bit—is that what we’re seeing now is the government’s just bypassing the 4th Amendment, which to me is the center of the Bill of Rights because I’ve had people say, ‘Well, isn’t the 1st Amendment most important, your right to speak?’ I say, ‘Well, your speech is not too effective in the back of a police car’. So the 4th Amendment keeps you out there on the streets if you want to protest, keeps people like you doing your good programs on the air. But if the 4th Amendment goes down, they can just shut you up, they can take you away and so that’s what we’ve seen across the country and that frightened me. As you know, my book’s well footnoted.

Jan Paynter: I was discussing before the program with Nisha how impressed I was coming from an academic background seeing how well footnoted it was, how fair it was, how much you draw from all sides of the political spectrum with books that really I’m very inspired to read now. So I spent almost as much time with footnotes as I did with your book. How do you view the significance and ramifications of the National Defense Authorization Act of 2012?

John Whitehead: Well, in answer, Defense Authorization, NDAA allows the government agents—and again, you’re talking about NSA agents, FBI, Department of Homeland Security, they work as a team now on many of the arrests we see. It allows the government basically—it was signed into law again by President Obama—if you’re designated a terrorist and that term is used loosely by the way, the military can arrive and take you away like it must have did to Bradley Manning, the fellow who did the WikiLeaks information that we received and got him in a lot of trouble. In fact, he spent one year in solitary confinement. The problem is, is that, just to give you an example, in 2009 Janet Napolitano issued two memos, left wing extremism, right wing extremism. Actually, in the left wing extremism, that’s basically people that need to be watched and controlled was one of my favorite groups, PETA, the animal rights group. Over in the right wing extremism, the number of folks but basically anybody anti-government was in those and veterans were targeted and all those things. So, for a long time there’s been some mind—there’s a mind behind everything. The idea was, there are certain people we have to watch, certain people we have to consider maybe being terrorists but to make my point, in the two memos, the word dissenters, terrorism, outspoken were all in one sentence and I kept—I wrote a commentary on it and said, ‘Wait a second here. They’re using terrorist interchangeably with outspoken’. A little scary.

Jan Paynter: Yeah, dissent and terrorism, last time I looked were not the same thing.

John Whitehead: No, not the same thing.

Jan Paynter: John, what are the salient characteristics of the police state as you thoroughly outline in your book? Do you see us rapidly approaching our way toward it and I know we can discuss what has recently occurred in Charlottesville with plain clothed ABC agents. So maybe you’d speak to all of those things.

John Whitehead: Well, the ingredients of a police state, one is as Orwell—I talk a lot about Orwell in the book. He’s more relevant today than I think he—and that’s why his book sales are up for Orwell’s book 1984—is the government will be listening and watching you all the time. That’s already happening. I mean, I talk to people in the government that say, ‘Yeah, yeah, yeah, you’re being watched and you don’t have to be doing anything wrong. If you do—your banking records, by the way, if they’re electronically done, they go into a file so they’re now watching your bank account, things like that. That’s one that you’re being watched. The other is militarization of the police and there was a great lady, survivor of the Holocaust, Hannah Arendt, who wrote a book, The Origins of Totalitarianism back in the early ‘50s and I reread that book and I went, ‘Whoa! Everything she’s talking about is happening’. So a police state is armed—standing army—which towns in the United States, by the way, right now that have 30,000 people have SWAT teams with black helicopters, assault vehicles, the helmets and all those things so we’ve seen a militarization of society, what Jefferson would have called or Madison and George Washington both outspoken about standing armies. How that’s developed is, to give you a case that we were involved in, last August 2012, August 16th by the way, a two time Marine over in Iraq and Afghanistan had just gotten through jogging, he had his jogging shorts on. He was at home, he hears something outside. It’s about noontime and he hears—he looks out the window and all these cars drive up on his lawn. It’s black vans and guys jump out in black outfits and then the plain clothes guys. So they call come up to the door and he opens the door and says, ‘What’s this about?’ and they said, ‘We need to talk to you’. And they identified themselves as Department of Homeland Security, Secret Service, FBI, local police, they work as a team. They asked this man, Brandon Robb, to step out on the porch. So he steps out on the porch and he says, ‘What’s up?’ And they say, ‘It’s your Facebook posts. We’ve been reading them, we’re very concerned’. They grab him quickly, handcuff him behind his back, take him to the police station. We called the police station and we asked the police, ‘What’s he done?’ And they said, ‘Oh, he’s committed no crime. We’re just concerned about his Facebook posts’. He had a two minute examination with a psychiatrist in the jail cell who pronounced him mentally unstable, he had a short hearing and he was put in a mental hospital. We got him out in a week and now we’ve sued the Secret Service and everybody over it. But what I’m saying here is they’re working in tandem now with the local police. I have former NSA employees that tell me that especially with drones coming—and the drones will be awesome—is that they can actually close down the United States they think within 48 hours.

Jan Paynter: You spearheaded the effort, which was successful, to make sure that drones do not fly over Charlottesville. Is that a complete ban?

John Whitehead: No, actually the bill that I wrote, the one that was passed here, basically says they shouldn’t be equipped with anti-personnel weapons and there’s a reason for that. And the second thing is, because they’re going to be everywhere, people are going to have their own drones. I know students that already have drones and they fly them, under FAA airspace. I’ve had students that work with me. Your neighbor’s going to be watching you, the government’s going to be watching you so one of the provisions was, is that none of that information can be used against you in a criminal court of law. And the reason I put that in there is because when I researched history, I saw, like Martin Luther King—who’s targeted in a police state, by the way, it’s not just normal people walking around, it’s the troublemaker—Martin Luther King. 17,000 pages of information the FBI collected on Martin Luther King to discredit him. They sent him a letter actually, one agent saying, ‘You should commit suicide or we’re going to disclose the private details of your life’. Now, it’s none of my business what Martin Luther King did or the government’s but they use it against troublemakers. John Lennon, the Beatle, huge file on John Lennon in the FBI. ‘Cause why? He was anti-war and did protests. So that’s what you’re going to see is the troublemakers are targeted in a police state and we’ve already seen that. We’ve seen it since the 1950s. My good friend Nat Hentoff who wrote the introduction to my book, he wrote during those days. He wrote for The Village Voice, Washington Post. He said—he called me not too long ago and says, ‘It’s worse than the McCarthy era, what’s coming, it’s worse. Joseph McCarthy. The FBI is stronger now, the NSA’s—our government, CIA.

Jan Paynter: Yeah, the more it changes, the more it remains the same.

John Whitehead: Well, too but what people have to understand—and I talk a lot about fiction in my book. The movie Minority Report, I tell people to go watch that movie and what is it, 10 or 12 years old. The actually movie is set in 2054 but all the technology as I show in my book is already available to the government and in use. It’s 40 years ahead of its time so things are moving very rapidly and that’s one reason I wrote the book because you’ve got to put—I had to warn people, that’s my job. But see, here’s the thing, when I talk about SWAT team rates, people go, ‘Oh, gee, yeah, do those really happen a lot?’ There’s 80,000 annually in the United States now, up 30,000 from 10 years ago but you never see it on CNN, MSNBC, Fox, they just don’t cover it but they’re going through people’s doors in military equipment for misdemeanors mainly, mainly pot. And the reason they do that, SWAT teams get actually federal grants for doing pot raids so they make money.

Jan Paynter: John, I wanted to look at New York City just for a minute. Michael—Mayor Michael Bloomberg said something which really got my attention, which is, he noted that he had the seventh largest standing—his standing army, in the world. Why should we–

John Whitehead: Well, he’s actually said he can take aircraft out too.

Jan Paynter: Ah.

John Whitehead: Which is interesting.

Jan Paynter: It is interesting. Why should we particularly be paying attention to police tactics in such places as New York right now?

John Whitehead: Yeah, it’s not just New York. New York is I think the prototype for the police state. They have the complete fusion centers, even in the—if you see the movie Minority Report, they go into a room and they have all this scanning watching everything. New York has already joined with the corporations to produce that. Totally armored—it’s what you would call a military outfit. Los Angeles is very similar and other cities across the country so what you’re seeing is—and some of the things we’ve seen in Charlottesville, Virginia, my own home town recently, I kept saying, ‘If it happens—if they shut down Boston in marshal law, if New York’s like it is, if LA’s like it is with 10,000 policemen in LA alone, just local policemen, and going through people’s doors, it was going to happen to small towns sooner or later and now it’s happening.

Jan Paynter: Speaking of small towns, let’s—I wanted to just cycle back and have you discuss, because I know you’ve been involved in this, the recent incident that has been widely reported in Charlottesville about the ABC situation with the 20 year old—three 20 year old girls from UVA. Wondered if you’d discuss that.

John Whitehead: Yeah, there was what, three 20 year old girls in April where they actually bought Lacroix sparkling water, I think they were taking it to a sorority house. It was late at night, it was dark. Six or seven agents rushed their car. They didn’t know they were agents at the time, they were plain clothes people, and one of them at least whipped out a gun, one jumped on the hood. The girls panicked, tried to drive off and one of the—when she drove off, they were calling 911, they brushed against an agent. Well, they were accused of three felonies, one accosting an agent and all that. They got off the charges but come to find out they didn’t have alcohol, it was ABC agents, it was water and—but what it shows is someone’s going to get killed when these agents—they’re fearless now almost and they take—I mean, they’re doing a sting for beer, you’ve got to be kidding me. I thought cocaine was a bigger problem, heroine, so that’s what you’re seeing but it’s frightening. Those things have been happening across the country with federal agents, SWAT team raids and all that stuff. Sooner or later it was going to come home. It’s going to be in small cities because the prototype’s there, we just talked about New York, the prototype. LA, New York are the prototypes and the black uniforms are a problem too.

Jan Paynter: Well, this poor girl who’s 20 years old, she spent the night in jail, they were going to Harris Teeter.

John Whitehead: I heard—I listened to the calls, yeah.

Jan Paynter: Cookies and cream and they were doing this for Alzheimer’s benefit so rather a startling situation.

John Whitehead: But that happens to a lot of people across the country but it’s not well reported. The thing is, minorities, Blacks and African-Americans, 90% of pot arrests in New York City are for Blacks and Hispanics, although Whites smoke marijuana at a much higher rate. So there is some targeting and you don’t hear much about that.

Jan Paynter: I’m sure.

John Whitehead: But if it happens to upper class people, it’s a big story. But it’s happening to a lot of people at what we call the lower classes. I don’t like calling them that but it’s happening… I just wrote a recent column, I said, ‘Racial discrimination is still alive in America’.

Jan Paynter: Oh, sure. Just look at the reports of kidnappings. It’s always a White girl, lots of kidnappings of African-American kids.

John Whitehead: And that’s one thing we have to face in this country, we’ve not cured that disease, racism.

Jan Paynter: We have not, which is why it was surprising with the Section 5 of the Voting Rights Bill recently. You note in Bertram Gross’s book in 1980 entitled Friendly Fascism, that he refers to Fascism with a smile. What does he mean by that?

John Whitehead: Bertram Gross, by the way, was a presidential advisor to Franklin Roosevelt and Harry S. Truman so he was well connected. What happened to him was when Ronald Reagan came into office, he was seeing some things he didn’t like and remember Cheney and Rumsfeld came out of the Reagan administration and actually under Reagan is when the first time the police started—I mean the Department of Defense started handing out equipment to police stations across the country, military equipment, helicopters and stuff like that, free. So they were creating sort of a wide band militarized unit. But what Bertram Gross saw frightened him. His book is excellent by the way. It was written in 1980 and still very relevant—was that the corporate entities in the country were fusing with the government and they were going to sell you these things under different things. One would be fear, terrorism. People say, ‘Well, we’ve got to fight terrorism’. This relates to what Bertram Gross was talking about. Well, I agree but I studied the mathematical probabilities between terrorism and getting hit by lightning. They’re the same. So the chances of getting killed by a terrorist is the same chance of getting killed by lightning in the United States. You’re more likely to get killed by a policeman than by a terrorist, according to the statistics. But what Gross said—he saw all this and he wrote about this—and he said, ‘But it’s going to be sold to us Madison Avenue style, it’s going to be very corporate, it’s going to be—you’re going to see smiling faces, you’re going to see products, you’re going to see—drones are going to be—drones are—the way that the corporate entities are selling drones now, they’re going to be wonderful, they’re going to do all these things. But like I said, it’s Fascism with a smile, that’s what he said. If you’re a protestor on the street with your signs, you look down the street and here come three drones at you with weapons, what are you going to do? You’re going to run and hide. It’s going to do away with free speech protests but that’s going to be sold to us as only benefiting us.

Jan Paynter: Security is supposed to mean just that. It’s not supposed to mean that we’re the suspects. Another thing that you bring out in the book that I thought was very interesting, John, is again and again the idea that one of our greatest enemy is the way fear, the concept of fear is being marketed just to speak to the consumerism idea and that this is something that really is used to control populaces throughout the world and throughout history.

John Whitehead: Well, as you know in the book, I quote some of Hitler’s top henchmen. They all said the same thing, produce fear in a culture and people will want security and they’ll give up their freedom. I think we’re seeing that today but the reason we’re seeing that is Americans are uninformed.

Jan Paynter: What do you see as the single greatest threat to our freedom?

John Whitehead: Yeah, people ask me that. They say, ‘Who’s the biggest problem?’ I say, ‘Look in the mirror. You’re the problem’. Know your rights, get active, quit falling in—again, we go back to Gross’s book Friendly Fascism, Orwell, Aldous Huxley talked about that. ‘We’ll be entertained to death,’ that’s what he said basically. Get off the entertainment mode, get out there, get active, get in the streets. My model in history was Martin Luther King. He finally said, ‘The government’s not listening to us’. Right after he was shot an article appeared that he had written and for the first time he used the phrase, ‘militant, non-violent resistance’. He was planning on shutting Washington down. I’m not saying do that. He was going to do it but there are a lot of things you can do. The city council, we passed a drone ordinance in Charlottesville limiting drones, first political body in the world. Why? We lobbied, I wrote the bill and I had three people that listened.

Jan Paynter: Taking action.

John Whitehead: Exactly. And I had people from France, Germany in my office going, ‘This is great stuff. We don’t want drones in our country’. Now a number of cities have passed the same law. So local citizen action. My friend Pete Seeger’s slogan, I stole it from him and modified it. He says, ‘Act nationally, think globally’. I say, ‘Act locally, think nationally’.

Jan Paynter: Yeah, that’s one of the things when we started this program we wanted people to think about the connection between local, state and national. They are–

John Whitehead: They are connected.

Jan Paynter: –all connected, absolutely.

John Whitehead: It’s federalism, we forget it, it’s not taught anymore.

Jan Paynter: John, a little before the program we were talking about the book and the way in which consumerism and how consumerism and of course over-the-counter medication is essentially drugging us all into distraction and the fact that we also have devices that we are on constantly and it is—there’s a very sharp observer that I’m quite fond of, Fran Lebowitz, and she said basically, ‘If you’re here, that’s where you are and nowhere else’. And this kind of behavior pattern I think really leads us all in the direction of obliviousness to what’s going on and they’re wonderful technologies but I think perhaps we need to talk more about that.

John Whitehead: Yeah. There’s an author who wrote a book and I don’t have his name in my head, I think Nicholas Von Hoffman, it’s almost a near quote but he said, ‘Americans have become bobbleheads in bubbleland’. He says, ‘They’re running around in closed vehicles, in closed malls, distracted by technology’. Yeah, I think one reason we’re seeing what we’re having today is we are distracted. Part of that may be intentional, I don’t know. I have people argue that the way that the economy works, who’s in control—and basically I would say a lot of corporate influence, we’re always distracted but we’re being sold products continuously. So one reason we don’t really get involved is we’re distracted. But I actually had some people who visited me long ago, about a year ago, and they were from Australia and they said, ‘What’s the biggest enemy in America do you think for freedom. Philosophically’, they said. I said, ‘Materialism’. I said—and they went, ‘Well, we thought you would say bombs, nuclear war’. I said, ‘No, materialism’, because if you can keep people—bread and circuses which the Romans did well—if you can keep people dancing, laughing while horrible things are happening, keep them distracted, they don’t see what’s going on. So what I’m not saying is throw away the phones and stuff like that, I’m saying become educated in every sphere of life. Sometimes you’re going to have to put the phone down and grab a picket sign or do something if you’re really, really concerned or get down to your local city hall. What materialism does however is it keeps you so entertained you never do those things.

Jan Paynter: Well, you become somewhat obsessed. I know all of us have to think about—I had one friend who said, ‘Don’t get up in the morning and immediately go to your email. Wait half an hour, have your cup of tea, your coffee, think about it’. That’s hard to do.

John Whitehead: Yeah, we’re all watching, we’re not doing. That’s the key. I go into restaurants, like I’ve talked to you about, I’ll see whole families, three kids and two parents, they’re not talking, they all have their heads down and like I say, if we were to get wiped out by a nuclear war and somebody said, ‘What would be the appropriate statue for this time in history?’ I’d say, ‘Someone standing looking at a phone’.

Jan Paynter: What was the last thing you saw before you went away?

John Whitehead: Went away, yeah.

Jan Paynter: Yeah, yeah, yeah. John, thank you very much for coming on the program to discuss this vital, vital book today and we look forward to you coming back with us for part two.

John Whitehead: Thank you.

Jan Paynter: Thank you at home for joining our conversation. If you would like more information concerning the issues under discussion today, we invite you to take a look at our website at politicsmatters.org. We will be posting a number of books, articles and relevant links on many of the issues under discussion today there for you. You will also find a complete archive of all prior Politics Matters programs which you may watch in their entirety at any time. We will also be posting extended versions of the interviews online as well on our new site and we will continue to be adding more content. As always, we are very interested in hearing from you with any questions, ideas and concerns for future programs. We encourage you to email us at jan@politicsmatters.org. We air on PBS WVPT on the last Sunday of every month at 11:30 am. Thank you again and until next we meet, I’m Jan Paynter and this is Politics Matters.