Scott Horton Show - Just the Interviews - 9/30/22 Judge Andrew P. Napolitano on Snowden and Assange

Episode Date: October 1, 2022

Scott talks with Andrew Napolitano about the government crimes Edward Snowden and Julian Assange exposed. First, the judge gives some legal history and context to help us understand specifically what Snowden revealed back in 2013. That leads to a discussion of the sheer scale of illegal surveillance in which the intelligence agencies are engaged. They then turn to Julian Assange. Judge Napolitano goes over some history that highlights how absurd the legal arguments against Assange are.  Discussed on the show: “Edward Snowden: An American in Moscow” (Antiwar.com) The Shadow Factory: The NSA from 9/11 to the Eavesdropping on America by James Bamford Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written seven books on the US Constitution. The most recent is Suicide Pact: The Radical Expansion of Presidential Powers and the Lethal Threat to American Liberty. This episode of the Scott Horton Show is sponsored by: The War State and Why The Vietnam War?, by Mike Swanson; Tom Woods’ Liberty Classroom; ExpandDesigns.com/Scott; and Thc Hemp Spot. Shop Libertarian Institute merch or donate to the show through Patreon, PayPal or Bitcoin: 1DZBZNJrxUhQhEzgDh7k8JXHXRjYu5tZiG. Learn more about your ad choices. Visit megaphone.fm/adchoices

All right, y'all, welcome to the Scott Horton Show. I'm the director of the Libertarian Institute, editorial director of anti-war.com, author of the book, Fool's Aaron, Time to End the War in Afghanistan, and The Brand New, Enough Already, Time to End the War on Terrorism. And I've recorded more than 5,500 interviews since 2004. almost all on foreign policy and all available for you at scothorton dot for you can sign up the podcast feed there and the full interview archive is also available at youtube.com slash scott horton's show check it out you guys on the line i've got judge andrew napolitano and of course you know him from his long career at fox news he's the author of theodore and woodrow lies the government told you constitutional chaos, a nation of sheep, the Constitution in Exile, and more like that. Welcome to the show. How are you doing, Judge?

Oh, I'm fine. It's a pleasure to be with you, my dear friend. How are you? I'm doing great. Good to talk to you again. And I am so happy to see you again sticking up for Edward Snowden, the great American hero, who has been so unfairly maligned to some kind of Russian spy and all of these things. And so I was wondering if you could do us a favor and speak in your authoritative way, such as you do, about the real truth of who Edward Snowden is and what he did and what's not so true about what they say about him, as I know you like to do. Well, thank you, Scott.

One of the reasons we're talking about Edward Snowden is because four days ago, he became a Russian citizen retaining his American citizenship. Of course, it was in 2013 during the Obama administration when he revealed the most massive assailants, undifferentiated and not based on any kind of a search warrant in the history of the country. So a little bit of background. When Richard Nixon used the FBI and the CIA

to spy on anti-war activists, domestic anti-war activists. Congress enacted the Foreign Intelligence Surveillance Act, which set up the Foreign Intelligence Surveillance Court, a blatantly and profoundly unconstitutional secret court. It meets in secret. Only the government's lawyers are there. Its records and files and opinions are kept secret, even from other federal judges.

And it basically authorized, is surveillance when the FBI and the NSA seeks it based on a standard far lesser than what the Fourth Amendment requires. The Fourth Amendment requires for all searches and seizures. You have to have probable cause of crime. You have to go before an Article III judge. That's a life-tenured judge appointed by the President confirmed by the Senate or the comparable judicial officer in the state system and the warrant must specifically describe the place to be searched or the person or thing to be seized. I'm not quoting from the Fourth Amendment. The FISA Act permits judges of the FISA court to issue surveillance warrants and surveillance is a search under our system for far lesser

evidence than probable cause of crime. It's probable cause of speaking to a foreign person. So if you talk to your cousin or your friend in Toronto or your bookseller in London, the FBI and the CIA and the NSA can get a FISA warrant to surveil your conversations, not just with your cousin and your bookseller, but all your conversations and all of their conversations and the conversations of everybody they speak to out to the sixth degree, which of course multiplies this and increases the number radically. Okay, we know that's... Sir, you're talking about under the actual FISA law

that was this structure. Correct. Before they went further, gotcha. Correct. Under the FISA law, that's what they did. We know what the law is. The statute is public. So we know about this crazy cockamamie standard that Congress made up and that the courts follow. What the court did on its own was extended to the sixth degree. The original statute said talking to a foreign agent, the court extended that to

talking to a foreign person, which of course radically expanded the scope of these FISA court warrants. We all knew about that. What we didn't know about and what Snowden, in an act of monumental courage and patriotism, told us was that the FBI and the N.S. say going to the FISA court is a cover for them, that in reality, they already, I'm holding up my mobile phone, they already download every keystroke on every mobile phone and every desktop. They capture every piece of fiber optic data transmitted into the United States out of the United States or within the United States. And they do that undifferentiated, meaning they don't target anybody. They just do it to everybody.

They already have that. So why did they go to the FISA court? They pretend that that's all they do. They pretend they're following the FISA court. So this surveillance, which began in the Bush administration right after 9-11, was uncovered on a small scale by the New York Times, which resulted in the Bush administration pushing through Congress legislation that immunized the Internet's.

service providers and the telecoms from any liability for cooperating with the government in return for that immunity, which, of course, they all accepted. They were compelled to allow the government to plug into their mainframes. So, Scott, if you found yourself in the AT&T building in San Francisco and you managed to get through security and you manage to get up the elevator and you managed to get on the right floor and then through another two levels of security, and you open the right door, you would be in the NSA room. The NSA is physically located there and physically, literally,

plugs into AT&T mainframe. I'm just picking on AT&T. This is the same for Verizon and Apple and Google and every internet, every major, there are smaller ones that don't do this, every major internet and telecom service provider. The information that the government gathers, if printed on paper, would consume 27 times the storage capacity of the Library of Congress

every year. So when Snowden revealed this, he revealed it in Hong Kong. He left the United States. He brought a lot of materials with him to demonstrate his bona fides to Glenn Greenwald and Laura Poitris and two or three other reporters from The Guardian. As soon as they arrived at his hotel room in Hong Kong, And he said, let me have your mobile phones. What are you going to do with them? I'm going to put them in the refrigerator of his hotel room. Because as an NSA agent, he knew that's the only place where the NSA surveillance won't work. It can't get through the wall so a standard refrigerator.

Otherwise, the NSA would have known it, would have seen five or six mobile phones within two or three feet of each other, one of which was his. would have known who he was talking to and that he was talking to them. They were on his trail in Hong Kong. He fled to Moscow. He attempted to leave the Moscow airport to fly to Latin America when the American State Department to an American citizen who hadn't been charged with any crime who was innocent and so proven guilty had his passport revoked.

Whereupon he said to the press, who he was at that point, I would rather be stateless than voiceless. Now, 11 years later, he is a dual citizen of the United States and of Russia. In 2017, the Trump DOJ secured an indictment for espionage, interestingly, the same espionage statutes that the Biden DOJ is contemplating charging Trump with for obviously different behavior. Trump called for Everett Snowden's execution.

Same time he called for the execution of Julian Assange. Julian Assange, of course, is another hero. Hold that thought because I'm going to ask you all about him in a minute, too. But go ahead. Okay. Let me just finish the story about Trump and Snowden.

Trump, after four years of the White House, changed his mind and contemplated hardening Snowden. I know this personally because he asked me if I thought he should pardon him. I made about a 15-minute pitch on the phone for the president, he was obviously still the president then,

to pardon Assange and Snowden. Of course, his conversations from the White House are listened to by about 15 people, at least four or five of whom are in the intelligence community. They rushed to the Oval Office and disagreed with me, and he eventually listened to them, and of course, Snowden was never pardoned.

So this is, the greatest act of unconstitutional and criminal behavior perpetrated in secret by the American government on the American people in post-Civil War America. It's probably the greatest act ever. It's unconstitutional because it is a blatant violation of the Fourth Amendment. It's criminal because it's computer hacking. Computer hacking is breaking it to somebody else's computer without a search warrant. It doesn't matter that you work for the NSA and the president told you, go ahead. It's okay. Do it. And by the way, this went on even under Trump.

I don't think Trump fully understood the nature and extent of the intelligence community at which he was always at, with which he was always at odds. Right. Because he could have stopped this with a phone call and didn't, but he obviously had a different feeling about this after he was personally victimized by this and then decided rather than asking his DOJ to get the indictment dismissed, he would consider a pardon which he never issued. Yeah. Such a hell of a story. And now, so a few things to review there. I want to go back and talk about some of the, you know, some more details about what was revealed in the FISA statute and things

like this. But really importantly there, you know, you mentioned Hong Kong, which is pretty much a Chinese city. It's under the Communist Party's control and all of that. It's got its special status, but not that special. And of course, it has a big red flag. And is, you know, held in a very suspicious context by pretty much the entire American right. That's for sure. And then he ends up, as you say, in Russia. So I just wanted to home in on a couple of details there about that, which was, first of all, what he had said about Hong Kong was he went there because they had celebrated protections of freedom of speech. He thought he'd be hosted there.

And then he ended up finding out that, yeah, he wasn't so welcome and he better get out. And that was where he had meant. He learned that there was a CIA station literally up the block from the five-star hotel where he was staying. Oh, I see. Yeah. And so, yeah, he should have figured that out in the first place. But then there's no evidence. And I've, you know, really studied this from the Hawks point of view, too, and everything as much as I can.

Edward J. Epstein in the Wall Street Journal is, I believe, the leading offender on this story of claiming that Edward Snowden as a traitor. And he just has nothing that actually indicates that Snowden had given this intelligence to the Chinese government in any way. He was simply in Hong Kong, period. That's it. No different than I'm in Texas right now. It doesn't mean I'm a conspirator with Greg Abbott on anything, you know. And so then the next thing was the point that you made that is, I think, just absolutely essential that people understand that it was Barack Obama and Joe Biden and John Kerry. wait, 2013, yeah, John Kerry, who stripped

Edward Snowden of his passport while he was on a layover in Russia. So you've got to think about the decision that they made to do that, that on one hand, geez, this guy could brief the Russians on everything he knows if we leave him stuck there, right? And then they decided, Judge, to do it anyway, obviously just for public relations purposes. Because they figured, well, the damage is done with the law. leak would just make him look bad by smearing him with Russianness.

I suppose they also did it to inconvenience him, but their thinking was stupid, as you point out, and absolutely incorrect and unjustified. You know, the passport, you enjoy a passport. Even if you're indicted, you enjoy your passport. He hadn't been charged with anything. So in my article, an American in Moscow, I point out that everyone- Which we ran at Antibor.com. Oh, thank you, my dear friend.

He took two oaths, one of which was to keep secret, whatever his bosses and the spies above him on the totem pole told him to keep him to keep secret. The other was to preserve, protect, and defend the Constitution of the United States. That's the same oath I took when I became a judge. That oath is not only to the text of the Constitution, it's to the values underlying it. It's to the values of the Fourth Amendment. What do you do when you've taken two oaths and they conflict? It's impossible to obey both. You obey the higher oath, which is higher, an oath to your bosses and to fellow spies and politicians,

or an oath to the ideals of the Constitution. The answer is obvious. That will be his defense if he comes back, if he's tried, if he's not pardoned, And if a judge lets him make that defense. Aha, because isn't that the rub that they've already decided that in espionage cases, I felt it was the right thing to do is not allowed to even be presented as a defense at all, right? I'm sorry to say that you're right, which is why his statement he'd come back if he can get a fair trial. He cannot.

I know you want to talk about Assange in a few minutes, but neither of them can get a fair trial unless you have a a judge like the one speaking to you now, and I'm not an active judge any longer, who believes that the Constitution means what it says, who believes that our rights are natural and come from our humanity, you're going to get a judge who will not allow that kind of defense. The only defense would be it wasn't me, it was somebody else.

Well, that's not a defense in this case because he's admitted that he did this. You should always be allowed to make a constitutional defense because the Constitution itself says it's the supreme law of the land. Therefore, it trumps, lower case T, therefore it trumps all statutory law. So when there's a conflict between a statute and the Constitution and you obey the Constitution and they charge you with violating the statute, of course you should be able to explain that to a jury. He should even be able to hire an expert on the Constitution, somebody like me who will explain to the jury how this works,

how something can be legal and unconstitutional. at the same time. Legal is whatever Congress says it is. And Congress thinks it can write any law and regulate any behavior, attacks any event at once. Constitutional is only what James Madison intended for the Constitution to authorize. Well, so let me ask you about a somewhat tricky one then, because I know, and I agree with you what you already said,

the FISA statute of 1978 is completely unconstitutional, the way it lowers the bar on probable cause. But one thing it does is it says, but if you violate the lowered bar, you go to jail. Government employees, that is, not the citizens. Government employees who violate the limit, even the lower limit, that that's a felony. And so then doesn't that mean that with the stellar win program

that you kind of referred to earlier with the New York Times broke the story about Bush and all the spying back then, But then with all the rest of this that Edward Snowden has revealed, doesn't that mean that all the politicians and bureaucrats who authorized this all belong in prison for, in many cases, millions of counts of violation of this law? I don't know of anybody in the intelligence community. There are members of the intelligence community. You know, Snowden's not the only one that revealed this.

After he did, others confirmed it. And some of them were prosecuted. But I don't know anybody in the intelligence community who's been prosecuted for mass undifferentiated spying. All of this started with Bush. Bush took the view, George W. Bush took the view that because the NSA is in the military and because he's the commander and chief of the military, the Constitution didn't apply that he could order and direct the military to do anything he wanted. This is, of course, absurd. There's no Supreme Court opinion that's.

says this. On the contrary, the Constitution governs the entire government, but this was Bush's attitude. The attitude of the NSA leadership, I actually debated General Michael Hayden on this in front of 10,000 people. He chose the venue. He didn't realize that of those 10,000 people, about 9,000 of them were card-carrying Ron Paul supporters, serious libertarians. I mean, they were really rough with General Hayden. But we debated this. And the view of the intelligence community is that the Fourth Amendment only restrains the government for law enforcement purposes. It does not restrain it for non-law enforcement purposes. So the intelligence community believes you don't have a right to privacy. They can get on your back and in your bedroom and in your bank account

and in your doctor's office and in your lawyer's files all they want, as long as they don't use whatever they get against you for prosecutorial purposes. Well, just read the plain language of the Fourth Amendment. There is no such limitation on the government there. The Fourth Amendment is about as expansive as can be. It doesn't say the government shall be restrained when it wants to prosecute. It says all persons shall be secure in their papers, houses, persons, and effect from unreasonable searches and seizures, and the court have defined all warrantless searches and seizures to be per se, unreasonable. Now, of course, I made those arguments in front of this crowd. They were cheering me on. In fairness to General Hayden, who challenged me, and we eventually

became friends, even though we agree on so little. He's not a lawyer. He didn't study the Constitution. He just knows what is the one-liners, his boss has told him to use, and he passed that on to his agents. Here's an interesting question. How many NSA agents and employers, employees are there in the United States? How many people working directly or indirectly for the NSA are spying on the rest of us? 60,000. Thank you, George W. Bush.

60,000 Americans spying on the rest of us. So this 27 times storage capacity of the Library of Congress is so much, data. It's data overload. They're not capturing what I'm saying in real time. They don't have the person power, the manpower. It's all in the algorithm, right? It's so much, it's so much data overload. They can't access it. It doesn't keep us safe. It just destroys our freedom. Right. Yeah, that makes sense. By the way, I don't know if you know this anecdote. If you've read this book, I'm sure it would have been a long time ago, but it's just a fantastic book. The Shadow Factory by James Bamford, his third book on the NSA.

And it begins... Well, I love James Bamper. He's terrific. Yeah, he's the best, the best. So he's the guy that wrote The Puzzle Palace and Body of Secrets. So this is the third one, in the Shadow Factory. And it begins with Hayden, who was the director of the NSA on September 11th. telling Bamford completely

incorrectly, ridiculously that if Osama bin Laden himself walked across the bridge from Canada into New York State, I wouldn't be able to surveil him anymore. And so, geez, you know, when you have all these

actual agents of a foreign power or foreign terrorist group as specified in this statute, traipsing around the country, that's somebody else's fault, not mine, says General. Hayden. Meanwhile, he's the same guy that he's going to tap every last one of

us who never did go hang around with bin Laden and Zawahari in Afghanistan, unlike the people he refuses to surveil. What the hell's going on with that? Well, this is, you know, George W. Bush,

who may be the worst president in the modern era, who borrowed $2 trillion for useless, meaningless, horrific wars, and in Afghanistan and Iraq, who ratcheted up the surveillance community on the rest of us, who probably, though we don't know this, issued pardons to his torturers all around the world because none of them was ever prosecuted.

They prosecuted one CIA agent because he was so repulsed by what he saw. I blew a whistle on it. He's the one, John Kiriakaku, who went to jail. None of the other torturers were prosecuted. And this is the Bush, oh, we were asleep at the switch and looking the wrong way on 9-11, so we will take away the liberty of everybody else just to show the government that we're doing something. This is the tradeoff of liberty for security, except it results in neither. It doesn't give us security, and it takes away our liberty. This is what Edward Snowden revealed.

and he was so courageous, he revealed so much, and it was so well documented what he revealed. I mean, he had to say people were actually scratching their heads about how he got all of this, that it provoked other former American spies to do a 180 and realize that they were part of this, and they came forward, and they revealed it as well. Now, that's all the good news that this courageous patriotic behavior occurred. The bad news is it's still going on. It still happens. Congress looks the other way because the intelligence community has dirt on so many members of Congress.

Even Trump, who personally was victimized by this, the GCHQ, the British version of the NSA, spied on Trump when he was a candidate. He understood that. He got it. They continued to spy on him while he was in the White House. Even he permitted this nonsense to go on. Yep. Hey, y'all, Scott here.

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Call Tim Fry and the guys at 800-874-9760. That's 800-874-9760, or check them out at r-rbi.co. That's rrbi.co. You'll be glad you did. At the Libertarian Institute, we published books, real good ones. So far we've got Will Griggs's No Quarter, Sheldon Richmond's coming to Palestine, and what social animals owe to each other, and four of mine, fools Aaron, enough already, the great Ron Paul, and my brand new one, hotter than the sun, time to abolish nuclear weapons.

And I'm happy to announce that we've just published our managing editor Keith Knight's first one, The Voluntarius Handbook, an excellent collection of essays by the world's greatest libertarian thinkers and writers, including me. Check them all out at Libertarian Institute.org slash books, and for a limited time, signed copies of enough already and hotter than the sun are available at Scott Horton.org slash books. Searchlight Pictures presents The Roses, only in theaters August 29th. From the director of Meet the Parents and the writer of Poor Things comes The Roses, starring Academy Award winner Olivia Coleman, Academy Award nominee Benedict Cumberbatch, Andy Sandberg,

Kate McKinnon, and Allison Janney, a hilarious new comedy filled with drama, excitement, and a little bit of hatred, proving that marriage isn't always a bed of roses. See The Roses, only in theaters, August 29th. Get tickets now. And, of course, as you say, they got dirt on everybody. It's Jake or Hoover beyond his wildest imagination of what he could come up with. And I want to focus on what you said there about he revealed so much right because it wasn't just the phone records it's x key score this and prism that and all of these programs including everywhere your cell phone has been for at least the last five years so every living room you've been in every restaurant booth you sat at every car you've ridden in or any of this all can be reconstructed at any time they want to approach a

button and and you know build a profile on your entire life they've got everything on you Everything. Can I tell you, and I know you know this, and I hope that your viewers and listeners do, when the feds do this type, engage in this type of behavior and get away with it, it doesn't stop there. State and local law enforcement do the same. So in New Jersey, where I am now in my home, where I live, the local police departments have purchased. stingrays. Now, a stingray is an innocuous looking piece of metal at the side of the road,

but it latches onto your mobile phone as you drive by, and it'll stay latched on until you get out of its range and you're in the range of the next stingray. Why do they do it? Well, if the feds can do it, then the state can do it. Here in New Jersey, we have a civil liberties oriented state Supreme Court who will not allow any evidence obtained from stingrays to be used in any prosecutions. Good. It still hasn't stopped the police from following us. They still operate these damn things because they know if the feds get away with it, they'll get away with it.

And then they can just make up an excuse. I would imagine this is the case, Scott, in most other states as well. Yeah. In the case of the stingray, it was not done by a legislative act after proper debate. It was done by a police. slush fund, a decision by police, not by their civilian bosses. The civilian bosses look the other way.

They're probably afraid of the police, just like the members of Congress are looked the other way because they're afraid of the intelligence community. Yeah, it's amazing. By the way, and I really don't know very much about this guy, Representative Matt Gates. I know he's been good on a couple things and bad on a couple things, and I know that I don't know hardly anything about him at all. That's the 1% about him that I do know. But I read a thing today that after all of these accusations that he had been trafficking an underage girl for sexual purposes and all this, the Washington Post is reporting that now they're dropping all that. They have no credible witnesses to that whatsoever. That's all they ever had. It was claims of two people and those two

people completely lack credibility. So oops. But the FBI got to say that for what, two years about this congressman about something he may or may not have done but presumption of innocence here and they have nothing to make a case out of they admit now and they just do that to whoever they want that's if they don't burn you alive in your church

you know yes they can do that to whoever you want this football player the best punter in the business a rookie I forget what team he was he was drafted on to played one game

and then some high school girl said he got aggressive one night when they were drunken at a party gone no charges filed no proof nothing i mean in america today uh you're guilty until proven innocent uh the government or almost anybody in this case it was the nfl which is richer than most governments um can destroy you just by uh just by doing this it can happen anybody yeah all right now So I don't want to keep you too long. It's Friday afternoon and everything. But I got to hear a word about Julian Assange because, and I don't know if you remember this, but you interviewed me when the Iraq and I'm not sure.

There was, first it was the Afghan war logs and the Iraq war logs and then the State Department cables. I think it was, oh, it was after the State Department cables came out. And me and my wife had dug up, had dug up. The first story we found in there was the head of Israeli intelligence, threatening the Americans. You better bomb Iran or we're going to drag you into it, which was a pretty good one. But anyway, we talked then about on your show, a Freedom Watch, about how the American people have a right to know this stuff. They don't have a right to keep it secret. And they just have it all upside down. And they have villainized this guy, James Bond. And I guess I can see it.

If you're open to it that he looks weird, he's like young and with his wife. white hair and his kind of freaky Euro trash sort of disposition. They could make a, which he's Australian, but anyway, they could make a James Bond villain out of him, that he's like this weird guy on this power trip. They accuse him of some sexual crimes and things. And they just turned this guy from the world's greatest journalist into a demon from the depths of hell. And apparently that has really stuck.

And people, they don't know about WikiLeaks, Judge. They don't know about the Iraq and Afghan war logs and State Department cables. They don't even really know about the Hillary Clinton emails and what's in them. All they know is Julian Assange is a very, very bad guy because the TV has said that over and over again. And to me, that's just a travesty. Like, if they're going to lock him up and he's going to die in prison, hell, that's as horrible as that is, he knew what he was doing, right? But for the American people to not even have any idea who he is or what he did or what the hell is going on here, That's not right.

Well, he, of course, has been a journalist as the founder and head of WikiLeaks, which specified in leaking confidential classified and secret information about governments when he received a treasure trove of information showing war crimes and American perpetrators of war crimes were rejoicing in it during the. Bush administration in Iraq and Afghanistan and leaked it. It eventually developed that the leaker to him was Bradley Manning. Now, Bradley Manning was prosecuted, convicted, sentenced to 45 years in jail, underwent a gender transformation while he's in jail, and then his sentence was commuted

by President Obama. I wish President Obama had pardoned Assange as well, but he didn't. So this is almost exactly like the Pentagon Papers case, where Daniel Ellsberg, the civilian employee of the Department of Defense, removes documents from the Pentagon showing that LBJ's generals were lying to him and LBJ was lying to the country. Now, at this point, LBJ was dead. Nixon was president, but Nixon was furious. They got a federal judge in New York City that Nixon had put on the bench. Murray Garfine and Judge Garfine and joined the New York Times to whom and the Washington Post to whom Daniel Ellsberg had given the Pilford materials from publishing it. Supreme Court did what it never does.

It's only done this a handful of times in history. Reached right down into the district court, bypassed the appellate court, and took the case. There were two cases. One in New York against the New York Times, brought up in the DOJ. One in Washington against the Washington Post, brought up in the DOJ. And the Supreme Court ruled six to three that a media entity can publish whatever it acquires, no matter how it received it, as long as it is a matter of material public interest. And generals lying to the president, the president lying to generals during a war,

obviously is of material interest to the public. Then Daniel Ellsberg gets indicted. Then the FBI breaks into his psychiatrist's office, looking for his psychiatric records. Then a very courageous federal judge named Timothy Sullivan dismisses the indictment because of unconscionable behavior on the part of the government. So in both cases, Assange and Ellsberg, the thief, Manning and Ellsberg, walks free. the New York Times and the Washington Post, of course, eventually published all this as soon as the Supreme Court said they could. They walk free. This is an absolute defense, the Pentagon Papers case, for Assange. And for a while, the DOJ accepted that argument and decided not to indict him until the Trump, DOJ came along and indicted Assange and persuade, and then he fled to the basement of the Ecuadorian embassy, and then the Brits invaded the embassy, the Ecuadorians looked the other way, and he's been held in a horrific, horrific environment in the worst prison that Britain has. It's their version of our Florence,

Colorado, except he's not 250 feet below the surface of the earth until they decide whether or not to extradite. And he has, he won the first round, that is the extradition was rejected. He lost his first appeal. He lost his second appeal. He has one more. appeal left. And if Liz Truss gets booted out of office and Sir Keith Starrmer, the leader of the Labor Party becomes prime minister, I think he's going to deny the extradition because Keith Starrmer has a civil liberty streak in him, which the Tories in Great Britain once had, but no longer do. Yeah, at least there's a little bit of a reason to hope that he could be saved by a British court there but you know so i want on the new york times parallel there did the nixon government i know

that you mentioned they were trying to stop uh they're trying to order the newspapers to cease publication and the supreme court said no prior restraint but did they ever say that we will put the washington post and new york times reporters in jail for publishing it or for for that matter the publisher and the editor of the newspaper in jail for putting this stuff I think there was an implicit threat there. So if you read the Pentagon Papers case, it's a great opinion, a great opinion. And I'll tell you a funny anecdote about the opinion in a minute. It immunizes the publisher from civil and criminal liability.

It's very, very clear. So Julian Assange can't be sued and can't be prosecuted. The New York Times couldn't be sued by any general that was embarrassed by what was revealed, for example. During the oral argument on the Pentagon Papers case, Justice William O. Douglas, who's the great liberal, but also the great defender of civil liberties on the Warren court, says to the Solicitor General, who's arguing for the Nixon administration, would you read the First Amendment for me? So the guy reads it. It's no, read it aloud. Read it aloud, Your Honor? Read it aloud.

Congress shall make no law abridging the freedom of speech of the press. Thank you. Mr. Solicitor General, doesn't no law mean no law? You'd think, maybe. He couldn't answer it. He couldn't answer it. And for one of the first times in American history, one of the few times in American history, again, if you read the Pentagon Papers case, you'll see the transcript of this Q&A between Justice Douglas and the Solicitor General.

printed in the opinion. They don't print that normally, but they did in this case because it was so profound. Unfortunately, the court didn't answer it either. People like you and I who are absolutists when it comes to free speech means believe that no law, literally means no law. However, though, the Espionage Act of 1917 does go this far, right? It is essentially, essentially as broad as the Official Secrets Act in England. It's just the government never prosecute. that half of it. They always prosecute the leaker, but not the leak E. But this time they are, and I believe the law says they can. It's just the Constitution says they can't. Is that correct? You're exactly right. Okay. The Espionage Act, and I'm going to have to go shortly,

the espionage act of 1917 was the love child of Woodrow Wilson, who, of course, wanted to stifle all dissent. Of him and the devil or who? Usually they send a pair there. So, Wilson, before he was president, was the governor of New Jersey, before he was the governor of New Jersey, was the president of Princeton University, of which I'm an alumnus. Wilson arrested Princeton students for reading the Declaration of Independence allowed in public streets outside of draft registration offices. Awesome. And lock them up, his own former students. for the duration of World War I and claimed he had that didn't charge them and claimed he had the authority to do that under the Espionage Act of 1917.

Senator Rand Paul has introduced legislation to repeal the Espionage Act of 1917. It will never see the light of day because the Intelligence Committee has too much dirt, not on Rand Paul, but on the vast majority of other members of that. Congress. Yep. Blackmailers and your representative since 1952. Probably doing a better job than Jagger Hoover was at the time, too, with, you know, their ability to reach out and touch somebody through the telephone wires, far beyond what the FBI ever was able to do, you know. They actually used to have to put the work in and put a tap on your phone and silly stuff like that. NSA built the entire telecommunications network from the bottom up.

They just have to tune in. Yes, yes. Well, there's a lot of culprits in this. If I had to point my finger at the culprit who is most responsible and did the most damage, the single human being, it would be George W. Bush, who visited upon us this mass undifferentiated surveillance. Look, the CIA and the FBI and the NSA always broke the law. But prior to 9-11, it was not this massive. It wasn't on everybody.

It was on people they hated, people they feared, people they want them to drive crazy, just as wrong. But you're talking about thousands versus hundreds of millions, which is where Bush brought it to, which is where it is today. Yeah. Even Trump, even Trump, did not dial this back. Yeah. No, I mean, I don't think there's any way to overstate it. Just the fact, it's the supreme irony of the universe. The first month of the first year of the new millennium,

this jackass takes the emperor's chair and has this total power to make these calls surrounded by courtiers, the likes of Dick Cheney and Paul Wolfowitz and Donald Rumsfeld, to just tell him, sign this, sign this, sign this. And, hey, he, General Powell, go go and lie to the United Nations and be really credible about it. It's going to be a historic speech. I don't know if he ever acknowledged it was a lie. Oh, he said it was a stain on his record, but he didn't say he was sorry or that he didn't admit that he knew he was lying when we know he knew he was lying. So, yeah, no, and look, it's funny, Judge.

The best you and I and the good people watching and listening to us now can know. about this and the American public know about it. But boy, it would take a Congress full of Thomas Massey's and Rand Pauls to, or a Ron Paul like person in the White House to stop this. The NSA can be stopped at the stroke of the pen because they work for the president. It's hard to believe that any president, even one, I keep saying Trump, victimized by this behavior and this culture, didn't put a stop to it. I don't know who will.

Right. Yeah, that's exactly right. You know, I remember one of my first articles I wrote for anti-war.com was about this, and I had a line in there. Even the judge from Fox News is concerned, and I had a link to something that you had done. And that might have been my first real introduction to you. That like, wow, there's a guy in Fox News who's saying, whoa, whoa, whoa, this, everybody pulled a break on this Patriot Act. This is against the Constitution. It's been a long and happy friendship and collaboration, Scott, and it will only continue.

Yeah, well, listen, I'm so grateful for you. you are coming on the show today, Judge. It's been great. It's so funny that you called my producer because just this week, I said, you know, let's get Horton on judging freedom. So we'll do the reverse of this in a week or so. Great. I'll look forward to that. It's good to talk to again. Thank you, my friend. All the best to you. Thank you. You too. The Scott Horton show, Anti-War Radio, can be heard on KPFK, 90.7 FM in L.A. APSRadio.com, anti-war.com,

Scotthorton.org, and libertarian institute.org.