TAKING LIBERTIES: Civil Liberties and National Security

Thursday, April 18, 2002

Following the September 11 terrorist attacks, Congress passed and President Bush signed the USA Patriot Act—legislation intended to thwart the threat of domestic terrorism. Critics were quick to denounce USA Patriot as a dangerous expansion of government power at the expense of our civil liberties. Are the critics right? Or can we win the war on terrorism without sacrificing our civil liberties here at home? And what has the American experience in earlier crises, such as the Civil War and the two world wars, taught us about balancing national security and personal freedom?

Recorded on Thursday, April 18, 2002

Peter Robinson: Welcome to Uncommon Knowledge, I'm Peter Robinson: Our show today: national security and civil liberties. Can we win the war on terrorism without sacrificing our rights?

Last fall after the September 11th terrorist attacks, Congress enacted and President Bush signed, the so-called USA PATRIOT Act, legislation intended to thwart the threat of domestic terrorism. Critics denounced the legislation as a dangerous expansion of government power at the expense of our civil liberties. Are they correct?

Joining us today two guests who believe they are. Robert Higgs is a Senior Fellow at the Independent Institute and the author of Crisis and Leviathan. Gore Vidal has been an author, playwright, essayist, and commentator on the political scene for more than fifty years. His latest book: Perpetual War For Perpetual Peace, How We Got To Be So Hated.

Title: Freedom's Just Another Word

Peter Robinson: In your new book, Perpetual War For Perpetual Peace, Gore Vidal, you write, I quote, "The physical damage Osama and friends can do to us terrible as it has been thus far, is as nothing to what he is doing to our civil liberties." Now, in surveys after September 11th, Americans by a large margin expressed a willingness to curtail certain civil liberties in order to fight terrorism. You're chiefly concerned about civil liberties; the American people appear to be chiefly concerned about their safety. Are they mistaken?

Gore Vidal: Yes, of course. It was Benjamin Franklin, I think, who said that those who prefer security to liberty deserve neither, which is my view.

Peter Robinson: Robert, who's right, the American people or Gore Vidal?

Robert Higgs: In circumstances such as these, people always express a willingness to sacrifice liberties. But when they express that willingness, they really don't know exactly what they're buying into. So it's not surprising that they would say they're willing to give up their freedoms, they'll only discover later exactly what that means.

Peter Robinson: Okay, now from quoting Gore Vidal to quoting you, Robert Higgs. Besides the Normal Constitution, you've written, "protective of individual rights, we now have a Crisis Constitution hostile to individual rights and friendly to the unchecked power of government officials. The great danger is that in an age of permanent emergency, this age, the Crisis Constitution will simply swallow up the Normal Constitution." By which you mean to say?

Robert Higgs: I mean to say that the protections that people believe they have from the constitution, particularly from the Bill of Rights, will be disregarded during crisis periods and if the crisis is permanent, then those protections will be permanently disregarded.

Peter Robinson: But you have a trade off right? You've got the aim of the war and the surrender of--or the willingness to surrender civil liberties. So you have the American Revolution, which produces a consolidation of state power and a new federal government, but you'd say it was worth it, right?

Robert Higgs: I'm not sure I would say it was worth it. I think the Constitution in many ways was not exactly what many people wanted and they feared that their liberties would suffer as a result of adopting the Constitution--the anti-federalists certainly opposed the Constitution and on very strong grounds.

Peter Robinson: Can I get you on record as favoring the American Revolution?

Gore Vidal: Yes.

Peter Robinson: All right thank you.

Gore Vidal: Secession I think is a better word--we seceded from England.

Peter Robinson: All right. My point is simply that in the American Revolution you produce a consolidation of government power--you talk about the ratchet effect and it does seem clear through American history the Civil War again, a greater consolidation of federal power, the elimination of a right to secede which many Southern states thought they had. Nevertheless, we would say the Civil War was worth it--preserves the Union, ends slavery?

Gore Vidal: That is a complex subject, which I don't think I would get into right now. I am half Confederate and half Yankee and a hundred percent Bill of Rights. I would say that the Civil War caused a good deal of harm to our institutions, it reshaped them. Lincoln found one sort of country and, as I ended a book called Lincoln, that he had in a sense willed his own death because he had done such a terrible thing by remolding the Republic in his own iron image. And that was a mixed blessing, but to get back to what we're really talking about, what's happening today. There is no war--I hope you're listening out there--this is an invention of an ambitious little politician called George W. Bush. There is no war. You can only have a war with another country, and according to our system, which is always disregarded, Congress must declare the war. This is not an act of war. This is an act of criminals--violent Muslim zealots, if indeed we know who they were--we don't really know who's behind it. Osama gets credit for it; he obviously financed some of it, but who knows. Bush seizes this--he's at a very low moment in popularity in every direction. We're beginning yet another recession and suddenly he seizes this. It's going to be a long war he said. He started to smile and he did a little war dance in front of Congress. Axis of evildoers, Iran. What, Iraq, Korea, this is--he doesn't even know what an axis is. Well it isn't an axis of evil, this is a bunch of--as far as we know--irritated, Saudi Arabians, they're not even Afghans. So we blow up Afghanistan when actually our enemy, if it could be called a country, would be in Saudi Arabia and may well involve the royal family, which we are zealously protecting. He is then, with Ashcroft beside him, they have leapt in and grabbed at our liberties and they are working to get rid of the Bill of Rights. Emergency war, war, war to which the only answer is it is not a war until Congress declares it and it is not a war by executive fiat. There's no such thing.

Peter Robinson: Technically Gore Vidal may be right, but how should President Bush have responded?

Title: The Truman Show

Peter Robinson: What we face now is a dire threat to the American people and indeed to the Republic, but it's one not envisioned by the constitution because it's not sponsored by a specific state. There's money coming from the Saudi's, we should deal with them. There's money coming from a number of sources, what should he do?

Gore Vidal: Well, not what he's doing, it is a power grab. Perpetual war for perpetual peace has been American policy since--certainly since 1950, thank you Harry Truman.

Peter Robinson: Can I ask you, because you do write--I want to quote you again, "Fifty years ago, Harry Truman replaced the old Republic with a national security state whose sole purpose is to wage perpetual wars, hot, cold, and tepid." All right, we've heard reservations about the Revolution and from you about the Civil War and yet you date the moment things went wrong, we lost the Republic, from Harry Truman, how come? What was distinctive about the Cold War?

Gore Vidal: Well, we went back on the agreements that we had made with the Soviet Union as it was called in those days at Yalta--that Roosevelt had made with Stalin. Harry Truman then inherits the Presidency, Roosevelt is dead and Harry Truman goes to Potsdam. While there, he receives a message that the atom bomb works. Right. This means he doesn't need Russia in the war against Japan, winding up that war. So, he goes back on every agreement that had been made at Yalta between F.D.R. and Stalin. He also--this is not generally known out there, here's a history lesson--we divided Germany, not Stalin. We pretend that Stalin did it because he was evil and you know what evildoers are, they just--they never--they're relentless, they never sleep. So the division and the Cold War begins with the division of Germany. Stalin is scared to death of it. From that moment on we've had perpetual war for perpetual peace. Now we keep moving off the subject, do you mind if I move back onto the subject?

Peter Robinson: You can move in any direction you'd like.

Gore Vidal: All right, I'm going to move back to it, what should Bush have done? What should Congress do? Well I'll tell you exactly what they should do. This was the greatest blow that we have ever suffered, what happened on 9-11 as it's called. Nothing like that has ever happened since the British burned down the White House at the beginning of the Nineteenth Century. Where is Congress? Where was the FBI? Where was the CIA? When Pearl Harbor happened, the first thing they did was investigate F.D.R. and why he allowed Pearl Harbor to happen and they felt he had a hand in it and he did have a hand in it. But it took years.

Peter Robinson: About two weeks after the attack, F.D.R. established a commission to investigate the intelligence failure--you're talking about something else?

Gore Vidal: I'm coming to that. But that was his commission, not Congress.

Peter Robinson: All right.

Gore Vidal: Congress should have done it.

Peter Robinson: Right.

Gore Vidal: The executive, which allowed this to happen, is the last person you want to have studying it.

Peter Robinson: But we have committees, there's one in the Senate and in the House now investigating the intelligence failure that led to September 11th.

Gore Vidal: Oh sure, yeah, Senator Danforth's wonderful committee to find out what happened at Waco for God's sake. Twelve million dollars Senator Danforth spent of public monies to find out whether Janet Reno had given the order to the FBI to murder civilians. The biggest slaughter of American civilians since Wounded Knee--well that was a total whitewash. Where was Congress? Where is Congress now? Bush asked Senator Daschle not to investigate what went wrong with the FBI and the CIA that we had no warning that these crazies from Saudi Arabia, not from Afghanistan, were going to attack us. Silence. And nobody seems curious.

Peter Robinson: Your point is not merely that Bush is being aggressive, grabbing power, but that Congress is supine.

Gore Vidal: Well, supine, who knows? I mean you have to examine something, for all I know they're being very active by being supine.

Peter Robinson: This is why I wanted to probe you a little bit on the Cold War because essentially you view the Cold War as a series of mistakes by the United States. You don't view Stalin as an enemy.

Gore Vidal: No, he was sort of hopeless and helpless. He had…

Peter Robinson: East Germany, 1953, Hungary 1956…

Gore Vidal: Oh, come on, these are border states that he quite rightly feared. You see Americans are not taught any history of any kind and what we do get is generally propaganda. Look at the high school history books, I mean they make no sense at all. He had been invaded; Russia had been invaded about--in a hundred and fifty years, three or four times. They have a deserved nervousness about invasion, particularly from the West. He grabbed every border state that he could. He was not on the march, we pretended. I mean NATO was our invention to control Western Europe.

Peter Robinson: I want to get off the Cold War and come to this war, but would that be your view as well that the Cold War was all a great error on our part because Stalin really wasn't an enemy.

Robert Higgs: That's not my view. I think Stalin was a very menacing character…

Gore Vidal: To his own people.

Robert Higgs: …so I don't view the Cold War as the invention of the United States. At the same time, I would say that the United States certainly made decisions during the Cold War that were not in the interest of the American people.

Peter Robinson: But you'd expect that of an engagement that lasted half a century through--people blunder and make mistakes, right?

Robert Higgs: I don't view all of these decisions as blunders. I view many of these decisions as simply decisions that promoted the interests of the government at the expense of the people of the United States.

Peter Robinson: Let's get back to this issue of the lasting impact of national crises upon our civil liberties.

Title: Life During Wartime

Peter Robinson: You write, "Once alienated an unalienable right is apt to be forever lost." However I put it to you both gentlemen that there's a lot of evidence that it simply isn't so. Last couple years of the Eighteenth Century when Americans fear, perhaps unjustly, perhaps they--well, I think they were mistaken then, they fear a French invasion, Adams passes the Alien and Sedition Acts, Jefferson comes in, they're repealed and forgotten about. Civil War--Lincoln suspends the writ of habeas corpus, he imprisons over thirteen thousand citizens without charging them, without bringing evidence against them. Civil war ends, habeas corpus is reinstated. First World War…

Robert Higgs: But the old regime is never reinstated.

Peter Robinson: No. Well, things change.

Robert Higgs: And from that time forward, because there's no real threat of secession, the federal government is entrained to become the leviathan that it eventually becomes in the Twentieth Century.

Peter Robinson: Here my point is this, that as regards civil liberties, the pattern is clear through our history. That is to say, under threat, when the nation perceives itself as under threat, I would say that in 1798, Adams is mistaken, the French aren't about to invade, but he thought they might. First World War that wasn't a joke--the Civil War wasn't a joke. Second World War…

Gore Vidal: First World War was a joke.

Peter Robinson: It was a joke?

Gore Vidal: We ought not to have been in it. No. We had no interest. We went against not only George Washington, and I'm perfectly willing to go against Mr. Washington's advice, we went against John Quincy Adams, one of our greatest figures and our greatest diplomat. And he said the United States--we were asked to help the Greeks free themselves from the Turks, this is the 1820's, and I paraphrase, but Adams says the United States is not a paladin that goes forth to slay dragons. If we were, we could become mistress of the world and in the process we would lose our own soul. That to me is the American expression of our--if we were ever exceptional, it was in that.

Peter Robinson: "We are the friends of liberty everywhere but the guardians only of our own"--I believe that was also John Quincy Adams, but I'm not sure, is that right?

Robert Higgs: That's correct.

Peter Robinson: Quite why I'm helping you make your argument, I'm not altogether certain, but the pattern I assert…

Gore Vidal: You're a good American.

Peter Robinson: Thank you. The pattern I assert is one of threat, retraction of civil liberties because of the threat, and once the threat disappears; the civil liberties are once again extended.

Robert Higgs: That's not the pattern of the Twentieth Century.

Gore Vidal: No. And it's invented threats.

Robert Higgs: From World War I forward, it's--there have been legacies of every one of these episodes that reduce civil liberties from that time forward.

Peter Robinson: You talk about the federal government as a leviathan, there's no doubt the budget is bigger, regulation is greater and so forth, but that's different from civil liberties.

Robert Higgs: It's not different. The federal government has undertaken, for example, conscription. The conscription that was undertaken during World War I was unique because it was not the conscription of soldiers to defend the United States. It was conscription of soldiers to be sent to a foreign war in which as Gore Vidal said, the United States had no genuine national interest.

Peter Robinson: But nobody on the scene is talking about conscription today.

Robert Higgs: People are talking actively today about conscription.

Peter Robinson: Who? There's not a general--Rumsfeld has said that he doesn't want it, they want the volunteer force.

Robert Higgs: The press has had a number of people urging conscription. These people are stirring up propaganda for it. It's about--it's always brought up at times such as this.

Peter Robinson: But Bush, that aggressor, that power grabber, he's not saying a word about it--Rumsfeld isn't saying…

Gore Vidal: Well he is a known draft dodger for God's sake as is Cheney. Imagine a president…

Peter Robinson: Let me continue with a little more historical perspective on government power and civil liberties.

Title: There She Blows!

Peter Robinson: You're talking about, when you worry about the leviathan, the growth of the federal government, this encroachment on civil liberties, you're talking about--you're extrapolating from the Second World War and the Cold War. And the United States yesterday ain't the United States today. So far as I'm aware, nobody's making serious mention of conscription. We'll set that aside, you may disagree with that--during the Second World War defense spending rose to thirty-six percent of GDP. Even during the 1960's it was eleven percent of GDP. Today it's three percent. Bush has announced his budget for defense spending. If he gets everything he wants, it will rise to four percent of GDP. Military spending is simply smaller as a proportion of all the activities going on in the Republic. We've got--during the Second World War, Cold War, government censorship, eavesdropping. Today you have the Internet--flowering of freedom of speech.

Gore Vidal: May I interrupt you on that?

Peter Robinson: Yes of course, go ahead. My point is that…

Gore Vidal: It's much more than four percent of GDP

Peter Robinson: How's that?

Gore Vidal: Well that's how they juggle it. I used to do, once a year in the nation, I would analyze the budget. And I would not count the income from social security as part of the federal budget, it isn't. It's a separate trust fund--it's always counted in. So, it looks like military is very little. Military is generally half to two-thirds of the budget in any given peace time year because you've got to count the interest on the debt, which is incurred by wars. You've got to count veterans affairs, all those hospitals across the country. They don't count that in. They don't count in all of the ancillary things which war has brought about--the cost to the nation.

Peter Robinson: Well suppose…

Gore Vidal: So it is an enormous amount. It's something like two-thirds of the budget goes for war or things related to past wars.

Peter Robinson: Suppose I put it to you this way then, Bush, this man engaged in a huge power grab, has proposed an increase in military spending that amounts, at the very most, to one percent of GDP.

Robert Higgs: I think it's a mistake to judge this military budget in terms of proportions of GDP. That means that every time the private economy grows, even though military affairs that consume as many resources as before, they appear to be shrinking because they're shrinking relative to the private economy.

Peter Robinson: But that's the point I'm trying to make, but you're talking about federal government as leviathan, this huge object that's approaching and as a matter of fact, the private sphere is growing even more quickly. Americans are freer today than they were at the time of the Civil War and the Cold War.

Robert Higgs: Americans are less free--if you look at their Fourth Amendment rights today, they have none. The USA PATRIOT Act has, in effect, completely gutted any pretense of Fourth Amendment protection from search and seizure without warrant. The government is now at complete liberty to search virtually anything they want by waving the wand of terrorism over their efforts. And if this is not a devastating aspect of destruction of civil liberties, I'd like to know what constitutes such destruction. When the government is free to come in and search your home, search your information, tap your phone, tap your e-mails, at will without even going to a judge and getting his blessing, then you are no longer living in a free country.

Peter Robinson: Well, that's not nice…

Robert Higgs: That's worse than not nice.

Peter Robinson: But it is as nothing compared to the curtailment of liberties that took place in past wars and they all got rolled back.

Robert Higgs: We've just got started on this thing. It's going to be perpetual war.

Gore Vidal: And this isn't a war. Let's put it that way. So if they're doing this in relative peace time with a bunch of zealous Muslims as the official enemy, I think there were about twenty of them, involved in that strike, this is a power grab and you're quite correct and I'm glad you brought that up about the Fourth Amendment has been suspended. And due process doesn't seem to make much sense at all when you read Ashcroft's latest ukases to the American people.

Peter Robinson: Last topic, what would make Gore Vidal happy?

Title: The Best of All Possible Worlds

Peter Robinson: The World Trade towers are dust. How should we conduct this conflict?

Gore Vidal: Well I'd restore the Constitution, but I am radical.

Peter Robinson: But what would you do?

Gore Vidal: I would not have a dictatorship and that's what we've got. We have arbitrary powers, the suspension of the Fourth Amendment and the Eighth as well, bode ill.

Peter Robinson: All be subject to judicial review?

Gore Vidal: Oh sure, the same people who gave us George Bush as President when Albert Gore was elected…

Peter Robinson: Okay now may I just point this out to you and let you have a chance to comment on it. You have said the President of the United States is engaged in a mad power grab. You have said that Congress…

Gore Vidal: You said mad power grab.

Peter Robinson: Well, how would you like to describe it?

Gore Vidal: Power grab.

Peter Robinson: Power grab, excuse me. It's a sane power grab. The Congress of the United States is supine, and the Supreme Court of the United States is useless. Now what is there left of the United…

Gore Vidal: Harmful.

Peter Robinson: Harmful. What is there left of the United States?

Gore Vidal: Not much.

Peter Robinson: But that's not a useful thing to say.

Gore Vidal: Well, it's not a useful thing to be. I don't say this with pleasure.

Peter Robinson: What would you like us to do about that?

Gore Vidal: I think that we should have a peace party in the country.

Peter Robinson: Form a new political party.

Gore Vidal: Or transform one of the old ones, who cares.

Peter Robinson: Okay, start a new political movement.

Gore Vidal: We have got to convert finally from war to peace and we didn't do that back in 1950.

Peter Robinson: You're a libertarian? Are you a member of the Libertarian Party?

Robert Higgs: No.

Peter Robinson: Why not?

Gore Vidal: True libertarians aren't members.

Peter Robinson: Oh, is that so?

Gore Vidal: Yes.

Peter Robinson: I'm just trying now as we come to the final moments to get some sense of the political flavoring, Ralph Nader would that have been the kind of thing you'd have supported?

Gore Vidal: He's ridiculous. However…

Peter Robinson: Ridiculous. I assume Pat--now let me try Pat Buchanan. His last book was--his last but one was entitled A Republic Not an Empire.

Gore Vidal: Yes, which is a direct steal from me, which I'm happy, it's for everyone.

Peter Robinson: So you and Pat Buchanan are allies?

Gore Vidal: No, we agreed on that. That empire is not in our future and ought not to be because we lose the Republic. Now maybe you don't like the Republic, many people don't. No one teaches it. It's unknown to high school students for instance, the Bill of Rights is unknown. Purdue used to do a regular thing asking high school students about various items of the Bill of Rights and they voted them down every time.

Peter Robinson: Robert, let me ask you, if you could make one reform, this being television, you have time for one reform, what would it be?

Robert Higgs: That's very tough, I'm not very optimistic about making reforms until the population of the United States recovers a belief in limited government. So, I think any reforms that could be made would be hopeless until people decide that they want to live in a free country again.

Peter Robinson: Let me ask the final question and I'll go first in answering it. Five years from now, what will the state of civil liberties be in the United States? And my answer is, they'll be just fine. They will be reasonably calibrated against whatever threat we face at the time, due process, legal--judicial review will still be in place, the President and his Cabinet will still get raked over the coals by members of Congress, it will be okay. Your prediction for five years from now.

Robert Higgs: I believe five years from now we will be much closer to living in a police state in which everybody is under constant surveillance by government agents and our liberties will have been diminished significantly.

Peter Robinson: Gore Vidal?

Gore Vidal: I agree. And I disagree with you, Dr. Pangloss.

Peter Robinson: Robert and Gore Vidal, thank you very much. I'm Peter Robinson, for Uncommon Knowledge, thanks for joining us.