Freedom of Information Act

On today's episode: What exactly is the Freedom of Information Act, better known as FOIA? Can anybody use it to get their hands on... any public documents? What kind of government secrets have come to light as a result of FOIA? We talk shop with Jason Leopold, a senior investigative reporter for Buzzfeed News.

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TRANSCRIPT

Nick Capodice: [00:00:08] This  is  Civics  101,  I'm  Nick  Capodice. .

Hannah McCarthy: [00:00:10] And  I'm  Hannah  McCarthy  and  today  we're  talking  FOIA.  .

Nick Capodice: [00:00:13] Now  Hannah,  you  went  to  journalism  school. .

Hannah McCarthy: [00:00:15] I  did  indeed  go  to J-school. .

Nick Capodice: [00:00:17] FOIA  is  something  that  if  you're  not  a  journalist  does  not  probably  feature  into  your  everyday  life.  But  if  you're  a  journalist  it  does? .

Hannah McCarthy: [00:00:24] I  Think  it  does  if  you're  a  certain  kind  of  journalist.  Do  you  know  what  FOIA  stands  for? 

Nick Capodice: [00:00:27] I  Believe  it  stands  for  freedom  of  information  act. .

Hannah McCarthy: [00:00:30] Yes.  Basically  it  allows  you  to  access  federal  documents,  public  documents.

Nick Capodice: [00:00:36] Can  anybody  do  it?

Hannah McCarthy: [00:00:45] Yeah  anybody  can  do  it...  You  want  to  do  it? .

Nick Capodice: [00:00:40] Yeah  let's  do  it...  Okay  government  agency,  let's  do  ATF. .

Hannah McCarthy: [00:00:49] So  this  is  easy  right.  We're  on  FOIA  dot  gov,  F-O-I-A  dot  gov.  So  whose  email  should  we  request? .

Nick Capodice: [00:00:57] Who's  the  head  of  the  ATF...Oh  Here  it  is.  Click  the  button  Hannah...  Success!  "Your  FOIA  request  has  been  created  and  is  being  sent  to  the  Bureau  of  Alcohol  Tobacco  Firearms  and  Explosives."

Hannah McCarthy: [00:01:09] So  we're  going  to  hear  back  in  the  coming  weeks,  all  right.  All  right. .

Nick Capodice: [00:01:14] So  who  we  going  to  talk  to  today  about  FOIA? 

Hannah McCarthy: [00:01:17] Today  Is  Jason  Leopold.  He  is  an  investigative  reporter  for  BuzzFeed,  and  I  hear  he's  like  the  king  of  FOIA.

Nick Capodice: [00:01:25] Oh  I  can't  wait...

Nick Capodice: [00:01:31] Do  you  have  sort  of  a  rough  estimate  of  how  many  FOIA's  you've  done  in  your  time?

Jason Leopold: [00:01:35] Yeah  I'm  at  up  to  a  little  over  3500.  Yeah  it's  a  lot  that's  over  the  course  of  let's  see  about  nine  years.  I've  sued  the  government  about  more  than  50  times. .

Hannah McCarthy: [00:01:50] Can  We  just  start  by  asking  what  the  purpose  of  the  Freedom  of  Information  Act  is? 

Jason Leopold: [00:01:57] Sure.  The  Freedom  of  Information  Act  is  now  a  more  than  half  century  old  law  that  allows  anyone  anywhere  in  the  world  to  petition  the  U.S.  government  various  U.S.  government  agencies  for  documents.  It's  essentially  just  to  keep  a  check  on  the  federal  government  on  what's  going  on  behind  the  scenes.  What's  great  about  the  Freedom  of  Information  Act  is  that  you  can  ask  these  federal  government  agencies  for  any  type  of  record.  They  don't  have  to  give  it  to  you.  But  you  get  to  ask  for  it  and  to  they  have  to  justify  the  withholding  of  some  of  these  records  if  they  decide  not  to  give  it  up  to  the  requester. .

Nick Capodice: [00:02:41] Is  there  one  big  FOIA  office  or  does  every  agency  have  their  own  FOIA  office?

Jason Leopold: [00:02:45] Every  Government  agency  has  its  own  FOIA  office  correct.

Hannah McCarthy: [00:02:49] So  Who  in  the  government  can  be  FOIA'd  and  who  cannot  be  FOIA'd? 

Jason Leopold: [00:02:54] You  Can  pretty  much  FOIA  everyone  who  works  for  the  government.  I  mean  every  agency  will  try  to  get  away  with  you  know  redacting  the  names  of  certain  people.  The  White  House  is  exempt  from  FOIA.  Congress  is  exempt  from  FOIA.  At  The  NSA  and  the  CIA,  there's  something  known  as  the  NSA  Act  and  the  CIA  act  and  that  is  essentially  what  that  means  is  that  those  agencies  are  virtually  exempt  from  FOIA  because  everything  that  they  do  is  classified. .

Hannah McCarthy: [00:03:20] What  is  the  process  on  the  government  side  when  somebody  submits  a  FOIA  request.  What  do  they  do  next?

Jason Leopold: [00:03:27] It's  a  good  question  and  it  was  difficult  to  tell  exactly  what  happens  and  so  it  wasn't  until  I  filed  a  what  I  like  to  refer  to  as  a  meta-FOIA  which  is  filing  for  the  processing  notes.  So  I  wanted  to  know  what  happens  after  you  receive  my  FOIA  request.  And  what  happens  is  is  that  the  you  know  the  analyst  gets  the  FOI  request  they  send  it  out  to  the  appropriate  --  First  they  try  to  interpret  it  right.  They'll  try  to  interpret  and  that  can  be  kind  of  dangerous  if  your  request  is  not  crafted  clearly.  They  will  try  to  figure  out  what  exactly  it  is  you  want  where  those  records  would  be  stored.  Once  they  retrieved  the  records  then  they  have  to  then  review  those  records  to  determine  you  know  if  there's  any  classified  information  or  any  information  that  should  remain  private. .

Nick Capodice: [00:04:17] So  The  burden  of  proof  is  on  the  government  agency  to  prove  that  what  they  would  release  would  endanger  the  nation  as  opposed  to  you  having  to  prove  that? .

Jason Leopold: [00:04:25] It's  essentially  not  the  burden  of  proof  they  can  simply  just  say  it.  The  government  agency  can  say  this  will  interfere  with  law  enforcement  proceedings.  This  will  reveal  sources  and  methods  and  they  don't  have  to  say  anything  else  but  the  requester  can  then  file  an  appeal.  There  is  a  process  by  which  you  know  you  can  go  through  various  steps  you  can  appeal  you  can  you  go  through  the  appeals  you  can  tell  that  the  agency  I  want  you  to  do  another  search  you  know  or  you're  providing  them  with  additional  information  and  essentially  trying  to  get  them  to  ultimately  to  release  those  records. 

[00:04:59] A  real  incident  that  happened  this  week  is  I  got  a  release  of  documents  from  the  Secret  Service  and  in  the  disclosure  letter  the  Secret  Service  said  based  on  your  appeal  we  did  another  search  and  we  found  234  pages  of  additional  documents.  So  it's  a  tedious  process.  I  mean  all  of  these  steps  by  which  a  requester  has  to  take  to  try  and  pry  loose  records  to  keep  a  check  on  the  government  on  actual  government  activity  is  incredibly  difficult  and  painstaking. .

Nick Capodice: [00:05:36] So  Do  you  think  that  the  process  is  sort  of  Byzantine  and  labyrinthine  by  design  as  a  method  to  discourage  people  from  submitting  FOIA?

Jason Leopold: [00:05:45] I  don't  believe  that  you  know  that  any  of  these  agencies  or  any  of  the  people  that  are  involved  in  the  in  the  crafting  of  the  law  were  conscious  of  like  hey  let's  make  it  really  difficult  you  know  to  do  this.  I  do  think  however  one  way  in  which  agencies  on  the  state  level  and  on  the  federal  level  do  make  it  difficult  is  through  fees.  A  real  example  of  that  is  during  the  during  the  protests  in  Ferguson  following  the  shooting  death  of  the  African-American  teenager  Michael  Brown.  I  filed  a  request  with  the  with  police  and  with  local  government  officials  for  e-mails  and  other  records  about  their  discussions  about  Michael  Brown.  And  they  told  me  that  it  would  even  before  they  could  conduct  a  search  I  had  to  give  them  a  deposit  of  about  25  hundred  dollars.  And  we  called  their  bluff  we  said  okay  we'll  give  it  to  you.  We  give  them  twenty  five  hundred  dollars.  They  turned  over  nine,  eight  or  nine  e-mails. 

[00:06:40] You  know  they  didn't  give  me  change  from  that  but  from  that  you  know  from  that  they  justified  why  those  eight  or  nine  e-mails  cause  you  know  cost  that  much  money  so  most  people  just  don't  pay  it.  And  in  some  instances  journalists  you  know  because  this  is  such  a  tedious  process  throw  up  their  hands  and  say  I'm  not  going  to  be  bothered  with  it. .

Hannah McCarthy: [00:06:59] OK  We've  got  to  take  a  quick  break  but  then  we'll  be  back  to  continue  our  conversation  with  Jason  Leopold. .

Nick Capodice: [00:07:13] We're  Back  and  we're  talking  with  Jason  Leopold  investigative  reporter  at  BuzzFeed  News  about  FOIA. .

Hannah McCarthy: [00:07:18] Yeah  so  we  went  onto  FOIA  dot  gov  and  we  submitted  a  FOIA  request  as  we  mentioned.  So  what  we  did  is  we  said  we  want  and  you  can  tell  us  whether  or  not  we  went  about  this  entirely  the  wrong  way  we  wanted  the  deputy  director  of  the  ATF,  Thomas  Branden's,  any  emails  of  his  containing  the  words  New  Hampshire  and  Hennesy. .

Jason Leopold: [00:07:38] Okay  Yeah.  No  that's  great.  Did  you  give  a  timeframe? .

Nick Capodice: [00:07:41] No  We  didn't.  We  didn't  know  what  we're  doing. .

Jason Leopold: [00:07:44] Yeah.  Yeah.  So  normally  putting  or  trying  to  put  in  a  time  frame  is  a  good  way  to  simply  speed  up  the  process  and  that  is  really  key  when  it  comes  to  FOIA  is  that  there  is  a  backlog  and  the  reason  that  there's  a  backlog  obviously  is  that  you  have  a  lot  of  people  filing  requests  not  just  journalists.  And  to  be  clear  journalists  make  up  a  sliver  of  the  hundreds  of  thousands  of  requests  that  are  filed  each  year.  Most  of  those  requests  come  from  commercial  requesters  people  who  take  these  documents  and  resell  them.  You  know  it  could  be  law  firms  corporations  looking  for  info  on  their  competitors.  Journalists  are  truly  just  a  sliver  of  you  know  of  the  requests  that  go  in. 

Nick Capodice: [00:08:30] Could  you  give  me  a  hypothetical  of  one  of  those  corporate  interests--  What  kind  of  thing  would  a  corporation  FOIA  for  profit? 

Jason Leopold: [00:08:39] It  Could  be  information  on  say  S.E.C.  investigations.  The  FCC  actually  gets  a  lot  of  requests  from  people  who  are  looking  for  info  on  other  businesses  investigations  and  reselling  it.  Essentially  it's  it's  become  it's  own  business  in  a  way  for  you  know  for  some  for  some  investigators  researchers  who  will  simply  sell  this  to  you  know  other  corporations  sell  this  information  on  there  you  know  maybe  it's  their  competitors  maybe  it's  on  you  know  the  USDA  the  FDA  often  get  requests  from  commercial  requesters  as  well.  It  really  could  be  about  anything. .

Hannah McCarthy: [00:09:16] Now  I'm  very  curious.  Of  course  these  governmental  entities  are  law  bound  to  provide  information.  Ostensibly  Yes.  Do  you  have  any  sense  as  to  whether  or  not  a  commercial  entity  who  FOIAs  something  may  be  more  likely  to  get  that  in  a  timely  manner  than  somebody  who's  going  to  take  that  information  and  give  it  to  the  public. .

Jason Leopold: [00:09:43] It's  a  good  question.  No  I'm  pretty  confident  that  that  journalists  are  going  to  get  probably  some  precedent.  And  here's  why:  you  can  ask  for  expedited  treatment  of  your  request.  Meaning  that  you  know  dear  agency  I  want  to  get  to  the  top  of  the  pile  and  here's  why  I  have.  There  is  an  urgent  need  to  inform  the  public  about  actual  government  activity.  Commercial  requesters  can't  really  do  that.  They  can't  ask  for  that  because  there's  no  there's  no  one  for  them  to  inform.  No. 

Nick Capodice: [00:10:16] I  pretended  like  I  knew  what  you  were  talking  about--  can  you  explain  to  me  why  you  laughed  when  we  said  that  government  agencies  are  law  bound  to  respond  to  these  requests? .

Jason Leopold: [00:10:24] Because  they  never  ever  adhere  to  the  law  and  the  law  meaning  the  Freedom  of  Information  Act.  Essentially  states  that  you  know  follow  the  law.  Release  these  records.  But  there's  no  deterrent  if  they  don't.  Right.  Nobody's  going  to  be  prosecuted.  Nobody's  going  to  be  fine.  Nobody's  going  to  jail.  So  they  don't  have  to  and  they  don't.  And  you  know  some  of  the  agencies  that  are  so  notorious  for  in  my  personal  opinion  obstructing  the  law  when  it  comes  to  FOIA,  you  know  the  FBI...  The  FBI...  And  the  FBI. .

Nick Capodice: [00:11:01] Why  Is  it  so  important  though  why  is  government  transparency  so  important  to  our  democracy? .

Jason Leopold: [00:11:08] I  can  hold  up  a  number  of  stories  that  I  have  written  as  a  result  of,  thankfully  as  a  result  of  some  of  the  documents  leaked  that  I've  obtained  by  FOIA  you  know  for  example  behind  the  scenes  look  at  how  the  CIA  obtained  the  authority  to  assassinate  a  U.S.  citizen  abroad.  If  you  want  to  see  what  was  happening  behind  the  scenes  at  Guantanamo  which  was  how  detainees  are  treated  how  they're  force  fed  how  their  conditions  of  their  confinement.  It  was  thanks  to  the  Freedom  of  Information  Act.  Prior  to  that  you  know  this  information  was  classified.  How  the  Department  of  Homeland  Security  placed  agents  secretly  into  protests  in  Baltimore  after  the  death  of  Freddie  Gray.  That  was  thanks  to  you  know  the  Freedom  of  Information  Act.  Perhaps  most  notoriously,  it  was  my  Freedom  of  Information  Act  that  forced  the  release  of  Hillary  Clinton's  e-mails--

Hannah McCarthy: [00:12:04] That's  a  big  deal  Jason.

Nick Capodice: [00:12:06] That  was  you?

Jason Leopold: [00:12:07] That  was  me.  Did  you  guys  not  know  that?  Yeah.  Yeah.  That  was  me.  In  2014  November  2014  I  filed  a  Freedom  of  Information  Act  at  the  Department  of  State  requesting  all  of  Hillary  Clinton's  emails  and  other  records  and  I  did  so  because  it  became  clear  that  she  was  going  to  be  the  you  know  the  Democratic  front  runner  for  president.  And  I  felt  that  it  was  important  to  provide  the  public  with  information  about  how  our  nation's  top  diplomat  conducted  foreign  policy.  Unfortunately  the  scandal  over  the  use  of  a  private  e-mail  server  obscured  that.  And  as  such  you  know  never  really  had  that  opportunity  to  show  what  was  in  the  e-mails  and  why  they  were  so  substantive  and  important. .

Nick Capodice: [00:12:56] You're  quite  a  navigator  of  the  FOIA  process.  Do  you  think  that  it  could  be  better.  Do  you  think  that  there's  a  better  way?  Or  do  you  like  this  process?

Jason Leopold: [00:13:05] Oh  there's  always  a  better  way.  You  know  the  better  way  would  be  to  streamline  the  process  right.  It  would  be  to  hire  more  people  you  know  who  could  work  at  these  agencies  processing  these  these  requests.  Another  better  way  is  when  you  want  to  send  a  FOIA  request  to  the  CIA  that  you  don't  have  to  send  it  via  fax.  You  know  the  CIA  you  can  either  mail  it  or  send  it  via  a  fax  now.  Fax  machine!  Sometimes,  by  the  way  their  fax  machine  is  broken  and  you're  stuck  literally  finding  a  stamp  and  mailing  it. 

[00:13:42] So  with  some  of  these  agencies  it's  a  matter  of  just  bringing  them  into  the  21st  century  and  saying  accept  this  request  via  e-mail  process  it  that  way. .

Nick Capodice: [00:13:52] Is  there  anything  that  you  want  the  world  to  know  about  FOIA  that  maybe  we  don't  already?

Jason Leopold: [00:13:57] FOIA  is  an  incredibly  powerful  tool.  It  is  the  way  in  which  we  can  keep  government  agencies  you  know  on  their  toes  and  let  them  know  that  there  is  a  check  on  their  power.  And  I  think  that  more  journalists  more  members  of  the  public  should  utilize  it.  And  it's  critical  to  an  informed  democracy.  That's  my  soapbox  speech  about  it.

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NASA

Space is big - like, insanely, incomprehensibly big - so it's understandable that NASA can seem divorced from the world of cabinet secretaries, White House press briefings, and presidential tweets.

Amy Shira Teitel is the host of the YouTube channel Vintage Space and author of Breaking the Chains of Gravity: The Story of Spaceflight Before NASA. In this episode, she explains how despite its lofty aims, NASA is a lot more political than you might think. 

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TRANSCRIPT

Hannah McCarthy: [00:00:27] I'm Hannah McCarthy.

Nick Capodice: [00:00:28] And I'm Nick Capodice.

Hannah McCarthy: [00:00:29] And this is Civics 101.

Nick Capodice: [00:00:30] Today we're talking about NASA. Can you tell me Taylor how is NASA a civics topic?

Taylor Quimby: [00:00:43] Well NASA is a big government agency.

Nick Capodice: It's so strange. I feel like it's divorced from civics. I feel like NASA is a separate thing right.

Hannah McCarthy: [00:00:51] And I think maybe that's because NASA isn't making decisions that have to do with our daily lives right?

Nick Capodice: [00:00:57] Or our, yeah or our democracy, or the way, but I guess maybe it could maybe it is. So to understand all of this stuff we got in touch with Amy Shira Teitel. She's a space flight historian, a YouTuber, and she posts videos about things like 'why haven't we gone back to the moon' and 'why do people eat peanuts at launches'. Her channel is called Vintage space. Please check it out. And we talked to her via Skype. All right, I guess our first question is can you tell us what exactly NASA is?

Amy Shira Teitel: [00:01:36] NASA stands for the National Aeronautics and Space Administration. And it is a civilian agency that what its name says is, kind of the the main body I guess in the country about dealing with all the science and technology around space exploration.

Hannah McCarthy: [00:01:51] So why exactly was NASA founded to begin with?

Amy Shira Teitel: [00:01:56] NASA was founded as a somewhat in direct response to the Soviet Union launching Sputnik on October 4th of 1957. At the time there were a number of different agencies and military groups in the United States that were starting to deal with things that would eventually become spaceflight the U.S. Air Force was starting to play around with human factors the U.S. Army was developing rockets and missiles that could double as rockets for space flight. And then there was the kind of predecessor organization to NASA called the National Advisory Committee for Aeronautics that was starting to kind of look, it was really the established kind of bureaucracy around all things aeronautics. So like, if the Air Force needed a new plane the NACA would have the wind tunnel to test it. So all these things were sort of working towards the same goal but in disparate places. So it was ultimately Eisenhower, President Eisenhower, who realized in 1958 that if America was going to be able to respond in kind to this new Soviet technology in space it would need to bring together all the existing technologies under one umbrella. So that became NASA.

Nick Capodice: [00:03:02] Who does who does NASA answer to specifically? Well the administrator is appointed by the president. So at the end of the day it is only the president I think can make a decree that NASA has to act on it. The most obvious one is President Kennedy saying we're going to go to the moon and NASA saying I guess we're going to the moon.

[00:03:24] But you know at the same time because it is a civilian agency right, Eisenhower establish it as civilian not military because he really did not want space to become a battlefield for a hot incarnation of the Cold War. So it is in a way beholden to taxpayers as well although of course you end up with senators from different states looking to kind of help feed jobs in their areas, so you end up with NASA centers getting funded for different projects because it's the interest of voters in certain areas, but at the end of the day it all comes down to the president.

Hannah McCarthy: [00:03:56] And does NASA have anybody like an attorney general? Do they have somebody some secretary at the top who they have to answer to when the president isn't saying specifically, you know, time to go to Mars or the moon?

Amy Shira Teitel: [00:04:08] I think that would be the administrator or the administrator is the highest position at NASA. Anything the administrator decrees kind of trickles down to all the centers but then all the NASA centers the individual centers also have a director and then their own kind of leadership. Got it.

Taylor Quimby: [00:04:25] Can I jump in for a second?

Hannah McCarthy: [00:04:26] Oh yes of course!

Taylor Quimby: [00:04:27] What are the centers like? Is there like a moon center, Mars center. As fun as it would be if there was a moon center at NASA I know that the centers are some of them actually predate NASA were old NACA sites that were then folded into NASA, but they are the different sites that are all around the country for different kinds of research. So you have like the Kennedy Space Center is a massive site. It is where things are launched and then you have the Johnson Space Center which is another NASA site, which is where all the human missions are run from a mission control is out there. Then you have JPL, the Jet Propulsion Laboratory in Pasadena, California, which is where all the unmanned missions come from. And it actually works in conjunction with Cal Tech. So it's a little bit messier there but ultimately robotic spaceflight there, and then you have centers like the Glenn Research Center, and the Langley Research Center, and the Goddard Space Flight Center which is all earth science stuff. So each one has a piece of the overall NASA puzzle, if that's sort of a clear way to think about it.

Nick Capodice: [00:05:25] Yeah I'm interested actually in sort of how NASA interacts with all these other agencies in our government, because you know I really think it's fascinating that it's kept so separate from the military. But don't they kind of work together though sometimes?

Amy Shira Teitel: [00:05:40] There there is overlap there is definitely overlap. And actually that's one of the reasons that Eisenhower was the one who also declared that the first have asked not to be chosen for military test pilots. One of the rationales for that decision was that they would have some military clearance are ready and even though NASA was civilian there would probably be some secret aspects in the early days of spaceflight especially given that it was an incarnation of the Cold War that would maybe not be, would need to be kept from the public at least in the immediate future.

[00:06:10] So yeah and you know also not to mention the early rockets like the Atlas that is still launching missions today, that came from a missile that was built with the U.S. Air Force and the redstone launch the Merkur missions came from the army as did the Saturn 5. That was an Army group that was brought into NASA. Honestly I sadly can't answer the question of how the centers interact but I'm sure it's a lot of meetings.

Nick Capodice: [00:06:32] So if legislation goes through the public usually has an opinion. This is a great idea! This is a terrible idea. I'm wondering if back in the 60s was there any public opposition to funding something like NASA?

Amy Shira Teitel: [00:06:46] Oh yeah! Huge. People have this idea that NASA was like the golden child of the 60s and that Apollo was like a happy union of everything like, Apollo had a 50 percent approval rating when Apollo 11 launched. Now people don't remembers that this is right when civil rights was getting, like dominating the national conversation. Also women's liberation, also the Vietnam War. I mean the government wasn't doing anything that anybody liked by the late 1960s and there's always this talk that Apollo 8 which was the first mission to the moon, it just orbited didn't land, that it was sort of like, it saved 1968 in a way because everything was kind of the worst. And then these three guys went to the moon and they took a picture of our planet that shows no borders and no war it's just this beautiful oasis floating in space and suddenly lik,e okay this is bigger than all of us. But it's you know it was not something that people necessarily cared about.

[00:07:44] I mean NASA was living in this bubble of crew cuts and skinny black ties and white dress shirts and people were being killed on the streets in protest. I mean it wasn't exactly a great time.

Nick Capodice: [00:07:55] I'm thinking that Gil Scott Heron's song, "Whitey on the Moon".

Amy Shira Teitel: [00:07:59] That sums it up really well.

Nick Capodice: [00:08:01] So I think my follow up question to that is... It's a big one... Which is why? Why? I'm sorry. Why space?

Hannah McCarthy: [00:08:14] Yeah.

Amy Shira Teitel: [00:08:15] I mean, I know it's it's one of those ones that's like weirdly hard to justify I think. I mean why space in the first place like, because it's there. People have always kind of been fascinated with space and I'm saying like way back when and like the eighteen hundreds and 1900's. It's sort of been kind of feeding that curiosity that the more we learn the more we realize that we don't know. And I think a lot of this stuff ultimately comes back to us wanting to understand our own place in space.

Hannah McCarthy: [00:08:44] So all of that sounds so kind of lovely and pure and a blend of Star Treky. But of course in order to do that we need to get politicians to agree to fund this, to make all this happen. How does NASA factor into politics?

Amy Shira Teitel: [00:09:03] I think everyone especially people who love space specifically people who love space would love to pretend that space is free of politics but space is nothing but politics. I had a little an 8 year old girl asked me at a talk in Australia a couple of years ago why they went to the moon.

[00:09:20] And I just thought God, how do you explain international pissing contests an eight year old in a country that doesn't learn about the Cold War? It's all politics. It always comes down to politics. It's really hard I think for people to look at something like putting a rover on Mars and understanding why their lives immediately benefit. It's hard I think for politicians to then sell their constituents on why they should vote for space things. So it's so wrapped up in politics. But it also means that it is so stuck by politics. And the other thing the other thing that that kind of becomes a bit of a mess with NASA and being kind of governed at the very, very top the president and by an administrator appointed by the president, is that every administration has something different that it wants to do. But space doesn't happen in neat little 4 year packets.

Hannah McCarthy: [00:10:10] So how has the budget for NASA shifted over the years, because things like getting to the moon did happen... But obviously, well at least I would guess that the budget a little bit different?

Amy Shira Teitel: [00:10:23] Significantly smaller. Yeah NASA's budget has changed over the years and that it's much much smaller. So at its peak in about 1966 NASA was getting a little over 4 percent of the federal budget. So 4 percent of all of your tax dollars were going to the space agency. The money NASA got started to dwindle towards the end of the decade and it's kind of gone and ups and downs that never reached that high spending again. Currently it's about somewhere around 1 cent on the dollar so for every tax dollar one penny goes to NASA.

[00:11:00] I mean I can't math but that's just a tiny fraction of what it got in its heyday. Yeah. The problem is that you have to have leaders that come in and say they want to see some big thing happen but they don't want to increase NASA's budget. But you can't do something big like go to Mars with a couple cents on the dollar. You need to kind of get that funding.

Nick Capodice: [00:11:19] But you did, you said to us that it feels like that NASA is stuck. Do you have any idea of how to get unstuck?

Amy Shira Teitel: [00:11:27] Yeah I don't I don't know. I mean I think what it what it ultimately takes is someone with vision beyond his or her term as president or administrator because what we ultimately need I mean we can't go to Mars in five years. We can't get to Mars over somebody's term as president. If someone had the vision to do something that was like for the benefit of humanity that somebody couldn't come along and easily cancel I mean. But it's hard to have that kind of vision.

Taylor Quimby: [00:11:54] Or maybe, this is the cynical viewpoint Amy, is that maybe you need another Cold War.

Amy Shira Teitel: [00:12:00] Yeah I mean, that's the that's the one that I don't like to talk about but like it could be that you know if you know if China says we're going to put people on the moon and do this, America might suddenly be like all right here NASA, take 5 percent of the federal budget again and just do it. Make it happen now.

Nick Capodice: [00:12:15] What's what's NASA up to today? What kind of stuff are they doing?

Amy Shira Teitel: [00:12:19] Yeah people have this idea that NASA ceased to exist when it cancelled the shuttle program. That's not the case at all. The most visible thing that NASA is doing that we see is the International Space Station. There's still people up there all the time. There's also a lot of earth science going on missions that are currently mapping things like water level and rising sea level which is super important for us to understand what's actually happening with climate change. And then out of JPL we still have all the deep space robotic missions. The Voyagers that were launched in the 1970s are still sending back data. We've got the Curiosity rover on Mars and that's NASA mission and that's the stuff that's kind of visible. There's always stuff happening that people don't know about.

Hannah McCarthy: [00:13:01] Is there anything else you wish we knew about NASA before we let you go, Amy?

Amy Shira Teitel: [00:13:06] The one thing I try to get everybody to really think about when it comes to NASA is how much the technology that comes out of NASA ends up back on Earth with us because I think if people understood how much NASA really does for us like medically and everything every day, you might change your tune about NASA being a giant waste of money to put fancy smart people in space. You know I mentioned LASIK coming from line of sight over orbital rendezvous but there's like new mammogram technology that's able to detect much smaller cancers came out of not the technology, the technology that keeps your drink hot or cold in a thermos came from NASA. And people don't think about the connection to NASA. But I think if they did you might kind of have a better appreciation for just just how important the space agency actually is in this country

Nick Capodice: [00:13:56] That was Amy Shira Teitel, she runs the YouTube channel "Vintage Space" and she wrote a book about the origins of NASA titled, Breaking the Chains of gravity. We're going to quick break but we'll be right back

Nick Capodice: [00:14:17] So Taylor we recorded this episode a few weeks ago and Hannah is not here today, she's out sick. But one of the main things that stuck with me is how political space is. This place that I thought politics did not exist, suddenly is everything. Space is nothing but politics and there is something you were talking with me recently, which is there's a, is it a new head of NASA?

Taylor Quimby: [00:14:39] The NASA administrator.

Nick Capodice: [00:14:41] Administrator OK. So what does that have to do with anything?

Taylor Quimby: [00:14:43] Well I think a lot of the stuff that Amy talked about about the intersection of politics and NASA and space sort of come together with this confirmation. Jim Bridenstine is a Republican member of Congress from Oklahoma. It's a former Navy pilot and he's actually the first head of NASA who is a congressman and previous administrators have been basically science professional so people who either came up the ranks through NASA or people who are scientists that sort of thing. So this was pretty much the most hotly contested and controversial confirmation of a NASA head in history.

Nick Capodice: [00:15:21] I have known what's going to be like with somebody who hasn't come up through the ranks being at the head of this very scientific organization?

Taylor Quimby: [00:15:27] Well I think for some people, that is the concern is that they just don't quite know what it means. But there's actually something pretty telling that might give us a hint of what Jim Bridnestine is going to be thinking about as the administrator. And that's because in April 2016 he put forth some legislation called the American Space Renaissance Act which he openly admits is less a piece of legitimate legislation that he hoped to pass, so much as I mean it sounds like a resume for what he thinks NASA policy should be. And there's a real emphasis on exploration and and an emphasis with that exploration on security, and some deemphasis on research especially sort of Earth Sciences Research which is a cause for concern for a lot of folks because he has hedged on climate science.

Nick Capodice: [00:16:15] One thing that Amy brought up that I had never considered is if you shift if you shift gears from say Mars to the moon you kind of got to start from scratch. You've been working on all this stuff for so long to change the mission is a huge thing.

Taylor Quimby: [00:16:27] Well well and this I think there's some interesting room for debate here because one of the things that Jim Bridenstine has talked about and that he's proposed is making the NASA administrator have a five year term to create some sense of continuity.

Nick Capodice: [00:16:40] To sort of help influence the next incoming president.

Taylor Quimby: [00:16:42] Right. And potentially to fund NASA under sort of larger multi-year project based stuff. So I think that would that would also maybe ease some of the problems that that Amy talked about of why NASA sometimes gets stuck.

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Made possible in part by the Corporation for Public Broadcasting.

The White House Press Secretary

Mara Liasson, National Political Correspondent for NPR, has reported on White House press briefings for three administrations. She tells us about the role of the Press Secretary, and how the job has changed from president to president.

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TRANSCRIPT

Nick Capodice: [00:00:35] I'm Nick Capodice

Hannah McCarthy: [00:00:37] And I'm Hannah McCarrthy

Nick Capodice: [00:00:37] and this is Civics 101 the podcast refresher course on the basics of our democracy. Today the White House press secretary.

Hannah McCarthy: [00:00:44] I'm really excited for this one.

Nick Capodice: [00:00:46] Our guest has been through myriad press secretaries. It is Mara Liasson national political correspondent for NPR.

Hannah McCarthy: [00:00:53] This is going to be great. Let's do it. All right. Well Mara thank you so much for joining us. Welcome to Civics 101.

Mara Liasson: [00:00:59] Thanks for having me.

Hannah McCarthy: [00:01:00] So I guess let's start with the very brass tacks. What is the job of the press secretary.

Mara Liasson: [00:01:07] The job of the press secretary is to communicate the president's agenda to answer questions from the press. And beyond that every press secretary has defined the job a little bit differently.

Hannah McCarthy: [00:01:19] Have you reported for several different press secretaries?

Mara Liasson: [00:01:22] I have covered three White Houses; Bill Clinton Barack Obama and now Donald Trump. I was the national political correspondent during George W. Bush. So I wasn't at the White House every day or I wasn't part of the White House rotation.

Mara Liasson: [00:01:39] But for those other three presidents I was and every one of the press secretaries for those presidents had a slightly different approach to the job. Mike McCurry who was Bill Clinton's press secretary was famous for saying his job was to be as truthful as possible and as helpful as possible to the press while also trying to communicate his boss's agenda and put it in the best possible light. Other press secretaries have seen their job as more as a combatant as pushing back against the press, demonizing the press, kind of using the press as a foil. And the communication part, the explaining the administration's agenda has been secondary to those press secretaries. So it just depends on the president and the administration.

Nick Capodice: [00:02:27] One thing I'm curious about is if you could describe sort of the scene when you step into a White House press conference because you've been to a couple of these. What's it like when you're sitting around waiting for a while?

Mara Liasson: [00:02:37] Are you talking about a presidential press conference or or just the regular press briefing?

Nick Capodice: [00:02:42] Both. What's the difference between the two of them?

Mara Liasson: [00:02:45] Well there's a couple there's a couple, there's many different ways that the president and the press secretary communicate with the press. The most famous is a presidential press conference where it's formal. The president stands there and takes questions from reporters. Most presidents did a lot of those. Donald Trump has only done one in February of 2017. One formal stand alone solo press conference. However Donald Trump does interact with the press a lot.

Mara Liasson: [00:03:13] He answers questions at what we call pool sprays we're a small group of reporters is ushered into the Cabinet Room or the Oval Office and he's meeting with someone or he's signing something and he answers a few questions on the fly. Or he's going out to the helicopter or he's coming out of Air Force One. So he interacts with the press that way. Then there's the foreign leader press conference which under Trump has become what's known as Two and Two. Each leader takes two questions from their own press corps. So the president answers two questions from American reporters and then the foreign leader calls on two of the traveling press corps that has come with him from his country. Then there's the press briefing which happens every day. That's Sarah Sanders standing in the briefing room. We've had many different press secretaries use the briefing in different ways in past administrations. They stood there until all the questions were finished sometimes it could be as long as an hour. Sarah Sanders keeps it very brief. Sometimes she eats up a lot of time at the top by reading from prepared remarks, making some announcements. But the biggest I guess the biggest sea change for me was when the daily press briefing was televised. There were many press secretaries who have come to regret that because it does lead to grandstanding by some reporters. And it's less useful and more of a confrontation.

Hannah McCarthy: [00:04:42] And in those daily briefings how does the press secretary choose who they're going to call on?

Mara Liasson: [00:04:48] In the press briefing the press secretary can call on whoever she wants. Same thing in the press in a press conference with the president.

Mara Liasson: [00:04:54] But Sarah Sanders generally, not always but generally, does what passed press secretaries have done which is starts with the front row. The wire services sit in the front row. And so do the representatives of the major television networks and cable outlets. I sit in the second row. So the first row is NBC ABC CNN FOX Reuters AP. In the second row is the Washington Post The New York Times NPR Bloomberg CBS radio etc.. So so generally she starts with the first ro but then she calls on whoever she wants.

Hannah McCarthy: [00:05:33] And in terms of that seating is that something that the press secretary decides on

Mara Liasson: [00:05:36] No the seating is determined by the White House Correspondents Association. We actually have assigned seats. My seat has a metal plaque on it that says NPR. And I am not. Let's see. I'm not exactly sure how those decisions get made but I can tell you that NPR used to have a seat farther back, way over on the left.

Nick Capodice: [00:06:01] Congratulations

Mara Liasson: [00:06:01] Yeah but during Clinton somehow or other they moved me up to the second row right in the middle.

Hannah McCarthy: [00:06:06] Not bad.

Mara Liasson: [00:06:07] Not quite sure how that happened. You know sometimes news, news organizations go out of business they lose their seat in the briefing room things get shuffled around.

Hannah McCarthy: [00:06:16] Does the press secretary play favorites at all in terms of who they're doling information out to or who they're calling on?

Mara Liasson: [00:06:22] Well first of all they're doling out information to everybody we're all sitting there it's carried live on TV. But in terms of who they call on yes there's no doubt that sometimes press secretaries will go to what they consider to be a friendly reporter just for some relief, or a reporter who's marginal or is guaranteed to ask a question totally off topic.

Mara Liasson: [00:06:43] Sure there's a strategy to this but don't forget, the press briefing even though it's the most public way that the press secretary and the and the White House interacts with the press because it's televised, is not the most important way that journalists get information from the White House because we're spending all day trying to ask questions of administration officials on background, off the record, away from the cameras.

Nick Capodice: [00:07:10] In terms of the job what kind of qualifications is good for someone to become a press secretary?

Mara Liasson: [00:07:16] An iron stomach. And a thick skin. Somebody who's unflappable. Generally someone who has a pretty even demeanor. I don't think especially for television which rewards cool over hot a hot headed press secretary would do very well. But Sarah Sanders actually has a very good personality to be the press secretary. She's very even.

Nick Capodice: [00:07:50] It seems sometimes the press secretary has a unique role that's kind of getting it from both sides. You know they have to. They're getting it from the press but also from the president. I just was watching the video of Nixon shoving his press secretary of Air Force One.

Mara Liasson: [00:08:04] Well there's no there's no doubt that the press secretary serves to mask. No well there's no doubt that some press secretaries see themselves as serving two masters. Mike McCurry certainly did. He thought he needed to serve the press and serve the president and try mightily never to lie to the press. During the Trump administration, it's a little bit different. The press secretary more or less has an audience of one. That's true of any Trump administration official who goes on television, they're communicating or performing for the president. And the president likes it when the press is excoriated or when the press secretary pushes back against the press. I think the most famous instance of this of course was Sean Spicer's very first press conference where the president literally sent him out to the briefing room to insist that his inauguration was the most heavily attended inauguration in history. Which turns out not to be true. It's important even in this post truth era that we're in with Donald Trump, it is important for the press secretary to retain their credibility and to try as much as possible to be accurate and tell the truth. That's why you hear press secretaries including Sarah Sanders often say, this to the best of my knowledge. Here's this piece of information. Or I haven't spoken to the president about that or you know I haven't asked him that question. I haven't discussed this with him. So better to be ignorant than inaccurate.

Hannah McCarthy: [00:09:31] Yeah. On that does do members of the White House staff ever lie to you or withhold information from the press secretary so that they can be ignorant and don't have to lie to the press about something?

Mara Liasson: [00:09:43] Sure. That's called plausible deniability. Absolutely. Better to be out of the loop than to be saying something that turns out to be false. Why. You know there's so much discussion now. The truth doesn't matter any more objective facts don't matter. That Trump believes that he can pretty much say whatever he wants and it won't matter. But credibility does matter. What happens when the president is asking Americans to sacrifice because of something that he has decided is important to do, he has to have credibility for that. What happens when the president is asking U.S. allies to follow the U.S. in some kind of endeavor or or military action. You know credibility is important and if you are cavalier with the facts there will come a time when nobody will believe you and you'll need them to.

Nick Capodice: [00:10:30] Are there any particularly memorable moments from those briefings in your in your tenure of reporting on them that you would like to share?

Mara Liasson: [00:10:39] Oh boy oh boy. I mean you could you could you could use the most current examples where you know the press secretary denied that the president knew about the payments to Stormy Daniels because because the president himself had denied them. I mean and then those those turned out not to be operative but I can't think of anything really off the top of my head a lot of times these press briefings are soporific and boring. And sometimes that's the goal. Not to make news.

Nick Capodice: [00:11:07] And when you're in there these are these are people with whom you've worked for a long time are you just chit chatting beforehand?

Nick Capodice: [00:11:12] Oh you mean my colleagues from different news organizations? Yes of course. Yes. And we all get along really well. And sometimes the press doesn't do a good job of following up and reinforcing each other's questions. But we try.

Hannah McCarthy: [00:11:24] And how often is the press contradicting what the press secretary is presenting as fact? Does that happen pretty regularly?

Mara Liasson: [00:11:32] Sure. Yes absolutely. It happens all the time. More and more during the Trump administration than than before. When the president says three million people voted illegally and there's no evidence for that? Sure. We will mention that to the press secretary and then he'll she'll generally say something like "Well this is what he believes". She'll find. She'll find some kind of safe lilypad to alight on where she can say something that's technically accurate, because no press secretary wants to flat out lie to the press.

Hannah McCarthy: [00:12:00] And who is giving the press secretary their information. Who briefs them before they brief you?

Mara Liasson: [00:12:05] Oh they go, they go around and they have they have a pre-briefing meeting they go around to different officials in the administration and in the White House to get the best information they can so they can transmit it. That's why it's often the press briefing is late because they're scrambling to put their talking points together.

Hannah McCarthy: [00:12:22] Yeah I think we sort of touched on, I was very curious as to whether or not being a member of the White House press corps was exciting or tended more toward the boring side of things compared to your .

Mara Liasson: [00:12:32] Well you know I used to say I used to say that the exciting part of the job starts when you walk in the gates off of Pennsylvania Avenue and the and it ends when you walk in the door to the White House because a lot of times the the life of a White House correspondent is like an animal in the zoo. You're in a cage and you can't really go anywhere you want to walk around. Occasionally they open the door and they throw in a piece of red meat, a little bit of news they shut the door and then they run like the zookeeper.

Mara Liasson: [00:13:00] But covering the White House is a peculiar kind of beat because you can't roam the halls like you do in Congress. It's more restricted and especially in this White House where they really do see themselves as at war with the press.

Hannah McCarthy: [00:13:14] How easy would it be for the president to revoke a White House press corps reporter's credentials?

Mara Liasson: [00:13:21] Well they certainly could do that. Well what they can do is they can revoke the hard pass that allows you to come into the compound. You can still cover the White House without having access to the briefings or or access to the physical space in the White House. In other words you can't stop someone from covering the White House. There are many reporters who write stories about Donald Trump and never set foot in the briefing room. What he's talking about it sounds like trying to exert some control over reporters who cover the White House and I think that would be difficult. Physically they could do that. They could definitely they could kick the entire press corps out of the West Wing and they've often talked about that in the past kind of moving us over to the Old Executive Office Building across west across Executive Drive. But getting rid of credentials that doesn't mean that the press won't continue to do its job.

Nick Capodice: [00:14:13] That was Mara Liasson. She's the national political correspondent for NPR and she's got the brass plate on the chair in the second row.

Hannah McCarthy: [00:14:19] This episode was produced by Nick Capdoice and Ben Henry. Executive producer is Erica Janik and our team includes Jimmy Gutierrez Justine Paradis and Taylor Quimby. Our music is by Asura.

Nick Capodice: [00:14:31] And you don't have to be a national political correspondent to know what's what when it comes to how American government works we are casting our net far and wide for civics teachers across the country to be guests on our episodes. So if you know a really great teacher or you or the teacher give us a call and tell us what kind of topic you'd like to do with us the numbers 2 0 2 7 9 8 6 8 6 5. Tell us your name where you teach and what kind of topics you'd like to do. Chances are we'll be right back to you.

Hannah McCarthy: [00:14:57] I'm Hannah McCarthy.

Nick Capodice: [00:14:57] I'm Nick Capodice.

Hannah McCarthy: [00:14:57] Civics 101 is a production of New Hampshire Public Radio. 

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Made possible in part by the Corporation for Public Broadcasting.

ICE: U.S. Immigration and Customs Enforcement

ICE, or U.S. Immigration and Customs Enforcement, is one of the nation's youngest law enforcement agencies. It's also become one of the most controversial. So what does ICE actually do? 

Dara Lind, a senior reporter for Vox, walks us through how ICE got its start, some of its responsibilities today, and what we can expect from the agency moving forward.

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TRANSCRIPT

NOTE: This transcript was generated using an automated transcription service, and may contain typographical errors.

Civics 101

Episode 120: ICE

Hannah McCarthy: [00:00:07] Nick, how much do you know about ice?

Nick Capodice: [00:00:09] My knowledge of ice is in the wake of the attacks of September 11 and felt like immigration laws and treatment of the undocumented changed drastically. But I don't know what their practices are and I don't know what their legal boundaries are.

Hannah McCarthy: [00:00:26] Right. I feel like I often hear about controversy around ice. I don't know what they're allowed to do it. They're not allowed to do why that institution was set up exactly as it is. And Jimmy Gutierrez you know him he's a producer on our show. He reached out to this reporter at Vox Dara Lind. And Dara has actually been reporting on immigration I think most of her career. So she is really the person to get in touch with if you want to understand what ICE is why it's doing what it's doing and what it is doing in this country.

Dara Lind: [00:01:08] So ICE as an agency dates back to about 2003 it was created as part of the Department of Homeland Security after 9/11 but the functions that ICE does were before 9/11 done by the Immigration and Naturalization Service that was under the Department of Justice. And it was the one immigration agency that the government really had. So it was responsible for you know getting legal immigrants into the country it was responsible for border patrol. And it also was responsible for in theory apprehending and deporting people who were either in the U.S. without papers or who had violated the terms of their visas. Most of the people who actually got deported at that point were people who had been legal immigrants who had committed crimes so they would get picked up from prisons if INS agents knew they were there in some cases it wasn't a constant thing. But like there were you know maybe several thousand deportations a year.

Hannah McCarthy: [00:02:05] And so why specifically was ice created with this mission in mind?

Dara Lind: [00:02:12] So when the Department of Homeland Security was created there it was both a response to 9/11 and kind of a thing that people had been thinking about for a while. So in the second category of things there. Because you only had the one immigration agency and it had all of these different duties sometimes you know prioritizing one thing could lead to letting another fall off like it's really very difficult to simultaneously make it as easy as possible for people who have legal status to like come into the U.S. and to process those applications. When you're the exact same people who are stopping people at the border if their papers are not in order. So there was an interest in kind of separating that out and having three single function agencies instead of one multi-function agency so that they could better focus on doing their job. The other part of this though is that this was a reaction to 9/11 and one of the big policy problems that had led to the 9/11 attacks was that several of the 9/11 hijackers were here on visas but had overstayed or were violating the terms of their visas. And in theory a more aggressive immigration enforcement system might have caught those violations.

Hannah McCarthy: [00:03:27] When did immigration policy and detainment really get its teeth in the United States?

Dara Lind: [00:03:33] So under President Clinton in 1996 a bunch of laws got passed that were you know kind of moved the needle to the right in policy domestically generally. You know one of those was the Welfare Reform Act. One of those was the EPA dealing with the death penalty. But the one that's kind of most relevant for immigration stuff was called the Illegal Immigration Reform and Immigrant Responsibility Act. Ira Ira and it was a really broad expansion of immigration enforcement that kind of doesn't get credited a lot today but that at the time was a very big you know we're going to be tough on these immigrants move from the Clinton administration and the Democratic Party to make it clear that they were tough on crime and you know weren't and tough on the rule of law. The IRA IRA act built a lot of the kind of legal infrastructure that gets use today for deportation. In particular it builtin in a couple of places the ability for local law enforcement departments to work with the federal government on immigration enforcement. The thing is that the Clinton administration didn't actually use those tools. The director of INS at the time got a bunch of applications from local law enforcement departments that like wanna to get deputized. But what she told me was that she required every community that wanted to start doing that to hold a community meeting and to see whether it really made sense you know to hear from members of the community and see whether it was really the best idea for their police officers to start thinking of themselves as immigration deputies. And she said that no one really got past that point. So it was kind of building the skeleton. When DHS and ICE got created in 03 Congress started giving them the funding that actually allowed them to do that. So they started putting the muscle on that skeleton.

Hannah McCarthy: [00:05:27] So this actual process of deporting somebody it starts with you know finding them and detaining them right. So who makes the decision of who to go after especially when you don't necessarily prioritize someone who's committed a crime?

Dara Lind: [00:05:41] This is an extremely good question and because ice is a law enforcement agency that doesn't like discussing things about how they may quote unquote law enforcement decisions. You don't get a really clear answer about what kinds of processes they have. We do know that the ice has access to a lot of law enforcement and Homeland Security data bases kind of generally we don't know how often it uses that access. That's a very big question for you know people who are concerned about government surveillance as well as immigrant rights. But the question isn't just how they find people but also is there ever a point where someone is identified as an unauthorized immigrant and the ice agent or somebody above the ice agent in the ice office says no you shouldn't go after that person because we need to be doing other things with them with your time. We need to be doing other things with that money. We need to be doing other things with you know detention space that we have so that is really what the black boxes. And if you listen to the public side of this debate it sure sounds like there is nobody telling an ICE agent. No you can't deport that person that it's entirely up to the individual agent. But there have been some cases where after somebody gets detained and the government is preparing to deport them there's been a big media backlash and the government has said OK fine we won't deport you just yet we'll give you some kind of temporary stay. That's not as common as it used to be under the Obama administration. There definitely have been cases where there has been a big public push and like members of Congress have asked them not to deport someone and they've gone ahead and done it. But there have been some cases where they've stepped back which does indicate that some kind of decision up the chain is getting made.

Hannah McCarthy: [00:07:32] And when somebody is picked up by ICE what happens to them next are they sent to a detention facility?

Dara Lind: [00:07:39] That depends. A lot of this process looks a little bit like the typical process for somebody who gets arrested just like someone who gets arrested for a crime you know they might be put into jail or in this case detention or they might be released on bond. They might have an ankle bracelet. The travel administration has been trying to increase detention. But there are certain circumstances under which you know a judge can just say no this person should be released. The key moment between somebody getting arrested and them getting deported is that most immigrants who are caught in the U.S. have a right to hear appear before an immigration judge which is a separate kind of court. It's under the Department of Justice so it's not under ice. But the prosecution in those cases are ICE attorneys so ice kind of represents the federal government saying this person is deportable and is not eligible for some other form of legal status. And it's the immigration judges job to figure out whether or not that is the case. However immigration courts in general been keeping up with these deportations because they're under the Department of Justice. ICE has gotten a ton more resources from Congress over the last 15 years and the Department of Justice's immigration court office hasn't really as much. There have been efforts to give it resources that are a little bit too little too late. So they're currently super overworked. There's a super long backlog. It takes about 700 days for the average case right now to make it through the court. That's not as long for people who get who are being kept in detention the whole time they really do make an effort to kind of cycle those people through and it's harder for them to get lawyers so there it's probably a matter of weeks in most cases and at the end of that process you know either because you don't have papers and you don't have any way to get papers you're ordered deported anyway or you actually successfully make the case that I should get asylum. I should. You know I my country will torture me. There is like a provision in the Geneva Convention Against Torture that I should be able to access that kind of thing. And you can get the judge to give you some kind of really from deportation that's pretty rare. So usually what happens is that people are just waiting for you know a matter of weeks and then they're in court for 10 minutes and then ice picks them up. And you know schedules a flight and puts them on the plane.

Hannah McCarthy: [00:10:04] And is every single one of these immigrants granted a lawyer?

Dara Lind: [00:10:09] Now this is the other thing about immigration court not being like typical court. There is no right to representation in the immigration court at all. And I don't know the percentage of immigrants who end up quote unquote representing themselves. But it's extremely high especially again in cases where they're coming you know there's a courtroom in the detention center and so they're being marched from their detention cell to the court. Those cases go by very quickly and there's very little chance they'll even be able to talk to a lawyer. A lot of pro bono organizations do some work around immigration but they only have so many resources so they tend to pick the cases that they think are the easiest to win. There are some experiments going on at the local level with you know cities giving them money for lawyers to represent everybody who comes through a detention center in immigration court. And those who have been promising and successful but under the Department of Justice there's also a lot of pressure on immigration judges to go through cases more quickly.

Hannah McCarthy: [00:11:10] You'll hear from some politicians that deportation of undocumented immigrants is equated with lowered crime rates. So. So are communities safer because of ICE's aggressive tactics?

Dara Lind: [00:11:25] Aggressive tactics, absolutely not. As a matter of fact even the ice even the current leadership of ice will tell you that they only that they would rather go into jails and do all their arrests. That that's the safest option for them and for immigrants whereas going into the community is riskier because you know there are other people around. But there's absolutely no evidence linking no immigration to crime generally the evidence about unauthorized immigration and crime is slightly less unambiguous is kind of the that's the most generous way I can put it. It still does for the most part indicate that you're not. There isn't evidence that unauthorized immigrants are at least not reliable evidence that unauthorized immigrants are substantially more criminal in nature than anybody else. And deportation is kind of an independent question of that anyway because yeah you're taking some people out of the community but ICE has never been at a point where it could deport even. You know even a noticeable fraction of the immigrant community if you think about it there are 11 million unauthorized immigrants in the U.S. That number basically hasn't budged since the beginning of the Great Recession. And so any you know even during the time when there were 400000 people a year getting deported. That's at best kind of a cup in the ocean. So it's really hard to argue that going in and arresting and deporting people has an effect on crime rates. Unless you're trying to say that somebody would be tempted to commit a crime but if they see that other people are getting deported they won't do it. And even if that were the case the Trump administration isn't targeting people who have committed crimes there. You know kind of undoing that targeting. So it's it's very hard to understand the current administration's policy as an anticrime effort. What kind of gets tied up in that though is that for people who care a lot about the rule of law quote unquote even though being in the U.S. without papers is not a criminal offense. It's a civil offense. Those people still think of it as well you violated U.S. law by being here. So we are making U.S. law means something by deporting you and so by that measure you can say that immigration enforcement protects the rule of law but it's one of those things where protecting the rule of law and protecting people from crime are actually independent.

Hannah McCarthy: [00:13:54] On the flip side of that these activists going as far as calling ICE a modern Gestapo and you know some immigration advocates have championed this motto abolish ice. How do you expect this debate to move forward from here?

Dara Lind: [00:14:10] I think the abolish ice conversation has you know benefited from being a conversation from the party out of power. It's very easy to point to the most obvious manifestations of ice and go we need to abolish this agency but as even Democratic politicians even progressive Democrats like Kamala Harris who have been asked this question have said ICE also does a lot of things that are not politically controversial. V. You know when we've been talking about ice through this whole thing we've really just been talking about the enforcement and removal operations division which is the most visible and is one of the most prominent. But a lot of ice agents are under homeland security investigations. They do longer investigations of like human trafficking drug trafficking that kind of thing. And don't just go after immigrants so you can definitely expect at least for the near future to see Democrats defending the existence of ice as an agency even if they say some of the things that ICE agents are currently doing are beyond the pale what's going to be interesting though is to see where Democrats end up coming down on the question of whether people should be deported because there isn't the low hanging fruit that I was talking about earlier the kind of people who are already coming into contact or who already have criminal records. There's not a ton of that. And the more of it you pick the less of it there is. So you can't have another round of. Well we're going after hundreds of thousands of immigrants a year but all of them have criminal records. Not that that was ever what Obama was actually doing. But he managed to get away with messaging it for a few years. Now that Trump has kind of pulled the curtain back on that you can't really go back to well we're being very aggressive. Everyone we're being aggressive with deserves it. And so I'm not at all sure whether Democrats unless they manage to you know get both Houses of Congress and the presidency and do something that would actually legalize unauthorized immigrants who have been in the U.S. for years. I don't know where the party ends up on saying well the law says that if you don't have papers you can be deported. Most people who don't have papers have been here for over a decade are integrated into their communities. I don't know how those two things get squared in a post Trump Democratic Party and I think that that conversation is going to be one to watch.

Hannah McCarthy: [00:16:33] Dara Lind is a senior reporter at Vox covering immigration.

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Made possible in part by the Corporation for Public Broadcasting.

The National Guard

Miranda Summers Lowe, Military Curator at the Smithsonian and active National Guard soldier, tells us the history of the Guard, the process for calling them out, and what sets them apart from other branches of the USAF.

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TRANSCRIPT

NOTE: This transcript was generated using an automated transcription service, and may contain typographical errors.

Civics 101

Episode 119: THE NATIONAL GUARD

Hannah McCarthy: [00:00:08] What do you know about the National Guard.

Nick Capodice: [00:00:10] I know the National Guard has offices in our city in Concord and they're all across the country. What do you know about the National Guard.

Hannah McCarthy: [00:00:17] I know why I remember commercials that goes something like at the Army National Guard. You can

Nick Capodice: [00:00:24] You can what though. I don't know what they do.

Hannah McCarthy: [00:00:26] I'm not sure what they do. I'm Hannah McCarthy

Nick Capodice: [00:00:30] And I'm Nick Capodice.

Hannah McCarthy: [00:00:31] And this is Civics 101

Hannah McCarthy: [00:00:32] And today we're talking about the Army National Guard. I'm curious what they do and how they train and how they train on weekends.

Hannah McCarthy: [00:00:39] I'm pretty sure they're called in often for natural disasters like evacuating people for hurricanes or things like that

Nick Capodice: [00:00:45] Do they like have an air siren that's like hollering the National Guard.

Hannah McCarthy: [00:00:47] I think I know that it's the kind of thing that can help you pay for school.

Nick Capodice: [00:00:52] I'm also curious as to who authorizes the use. I know the president usually calls in the National Guard.

Hannah McCarthy: [00:00:57] Yes.

Nick Capodice: A lright let's go

Miranda Summers Lowe: [00:01:03] My name is Miranda Summers Lowe. I'm a military history curator for the Smithsonian's National Museum of American history and I am also a member of the D.C. Army National Guard. National Guard history is my favorite and no one ever asks.

Hannah McCarthy: [00:01:22] Ahh, this is perfect

Miranda Summers Lowe: [00:01:24] I was so excited when this came down the pipeline.

Hannah McCarthy: [00:01:26] Oh good we're so excited too. So I guess we can just let's start there go into brass tacks here what is the National Guard

Miranda Summers Lowe: [00:01:35] The National Guard is this really unique organization. Most countries worldwide have a military and they have some kind of reserve component. But we are the only country that has this military organization that can be called out by the state and kind of has this state character and state control. And I think there's just there's something very American about it. When our country was founded there were a lot of feelings that if you had this large standing army it would be really expensive and it wouldn't be responsive to communities or representative of communities so that decision that a bunch of people made in the 17th and 18th century like it still survives and it's turned into this pretty incredible organization where people from all over the country kind of get together and they volunteer to do this amazing thing with their time usually on top of whatever other job that they're doing as their full time employment.

Nick Capodice: [00:02:41] What's a reservist

Miranda Summers Lowe: [00:02:43] A reservist would be anyone in any of the branches of the service who is not full time. So you call that active duty. So those are people where their job every day is to put the uniform on and show up to their place of duty and do that. And the reservists would be someone who only does that when specifically ordered to.

Hannah McCarthy: [00:03:05] And so these are the weekends that you have to do or they just to keep you fresh.

Miranda Summers Lowe: [00:03:11] Sure. So the weekends that you do are to gain that training and then also to get to know the unit that you're in and build that camaraderie and that teamwork.

Nick Capodice: [00:03:22] Does every state have its own National Guard. Or is it just one large organization.

Miranda Summers Lowe: [00:03:27] Every state has its own National Guard and probably the biggest thing that makes the National Guard different than other reserve components would be the state control under state identity. So there are actually 54 National Guards one for each state and then the District of Columbia Puerto Rico the Virgin Islands

Nick Capodice: [00:03:46] Guam?

Miranda Summers Lowe: [00:03:46] Guam, there we go. Thank you.

Hannah McCarthy: [00:03:48] So can you describe for us a little bit what that whole process is like how you sign up and then once you're in it what you're doing.

Miranda Summers Lowe: [00:03:57] You sign up most regular recruiting stations can do it. You know you decide which branch of the service you want to be. And in my case I knew I wanted to join the army. And there are specific National Guard recruiters. There are also some multi component recruiters so you talked to one recruiter and they can help figure out if the best fit for you is to go active duty or Army Reserve or National Guard. You go to the same military entrance processing station that anyone joining the military would, you go through a physical one they look at your your test scores you took a test called the ASVAB.

Hannah McCarthy: [00:04:34] I like that name, ASFAB.

Miranda Summers Lowe: [00:04:35] It does sound good. I know a lot of people take that in high school. You know I hadn't. So when I went in I had to

Nick Capodice: [00:04:44] Is it a written test or a physical test?

Miranda Summers Lowe: [00:04:46] It's a written test like a physical with a doctor. But other than that you don't get a physical test until you get to basic training

Hannah McCarthy: [00:04:54] So you don't have to prove that you're physically fit enough to actually sign up for the National Guard.

Miranda Summers Lowe: [00:05:00] No I think most recruiters will try to get you to do that on your own

Nick Capodice: [00:05:07] And then. So once you're in it. What does that look like. What do you do. Once in the National Guard.

Miranda Summers Lowe: [00:05:14] So everybody who joins the National Guard starts out by going to the initial entry training for their branch of service and their jobs so for me in the army that was Army basic training and that's the same no matter which component you go to. And then you go into your specialty training. My first job was in supply. So I went to the unit supply school.

Hannah McCarthy: [00:05:37] We definitely want to hear more about what it's like to be in the National Guard. But I am so curious as to why we have. Is it like the army that stays in the U.S? Is that why it was founded?

Miranda Summers Lowe: [00:05:49] If you go back to why the National Guard was founded when our country was you know starting to take root Well you know we were building the colonies. There was only a National Guard or militias if you look through really like the first hundred years or so if you look at the roots of the National Guard you have these militias in places like Virginia and Puerto Rico and Florida, long before you have a federalized government. The National Guard says that our founding date is in 1636 even though you know we had how the regular army their founding date is in 1775. So there's this whole heritage of these kind of locally controlled voluntary armies long before we have this kind of larger standing army that stays on active duty.

Nick Capodice: [00:06:39] So Hannah and I both in the context of what is the National Guard do we both the first thing we said was calling out the National Guard like it's this thing that happens. So can you tell us who does that and what happens when you're called out.

Miranda Summers Lowe: [00:06:56] So there are three basic ways. The National Guard can be used. Two of them are state directed. So Title 10 is federalizing National Guard troops. That happens to send them overseas. When you think of you know hearing about maybe a National Guard unit going to Afghanistan

Nick Capodice: [00:07:14] And that's when that's extra people are needed. Like we we need more people in a certain place. So we're going to go to this branch which is usually reserved for America and take them to other places.

Miranda Summers Lowe: [00:07:26] Correct. OK. The other two statuses so state active duty and Title 32. That's when you're under state control. And that is typically used for things like disaster relief.

Hannah McCarthy: [00:07:39] So that would be like if a town were to be flooded they might send in the National Guard to evacuate people or with the National Guard show up after the you know the evacuation had happened.

Miranda Summers Lowe: [00:07:52] This is where you know it is kind of confusing. There's a lot going on with all these different statuses. But in the case of a flood like you mentioned the governor of that state might decide to call out their National Guard on state active duty which is entirely within his or her control for two or three days to help with evacuations and filling sandbags and setting up medical care facilities and all these other things. Then after that flood hits it may become a like a federal emergency management area. And at that point the federal government may decide to keep those same people on federal duty and so they would use the Title 32 status for that

Nick Capodice: [00:08:37] The president can call in the National Guard. The governor can call in the National Guard. Is that the only two positions that can make use of the like the call out.

Miranda Summers Lowe: [00:08:45] Right.

Nick Capodice: [00:08:46] And when you when the National Guard gets called out you're a reservist. How'd you get contacted like what's what happens when the call is made. Did there used to be pagers or did someone just call everybody?

Miranda Summers Lowe: [00:08:58] I do remember the days of phone trees. You know I remember once being in college. And that's how far from just for this practice to see how fast they could get a hold of me like the department secretary knocking on the door of my classroom pulling me out.

Miranda Summers Lowe: [00:09:15] Whoa that's I mean I guess they really got you on this one. Yeah she's in biology class. There's some pretty great automatic system so like I don't know if you've seen this in other areas but where you get those like emergency alert messages on your cell phone. Oh yeah we're kind of like an auto. Right. So within units they can set that up so you get like a robo call a text message and an e-mail all at the same time.

Nick Capodice: [00:09:41] I'm wondering about when that buzzer goes off. You know is there like a little thrill of like Whoa something's happening and we're going to jump in and go do it. Like is it.

Miranda Summers Lowe: [00:09:50] I think everyone has their own personal experience. My time in the National Guard I've always really enjoyed those kinds of disaster response missions. I think that was one of the things that motivated me to go. On the other hand I know for a lot of people you know especially like a serious disaster the responsibility to go report for your National Guard duty means you are probably leaving your family and friends and your home in a rather precarious state. So you're walking away from you know say the tree that is blocking your driveway to go report in and try to help your community and that's a hard situation to be in.

Nick Capodice: [00:10:29] Once you're called out to do some relief work for example, do you stay there until the sort of mission is done. Like you sleep in tents. Is there barracks set up for you folks?

Miranda Summers Lowe: [00:10:39] Sure it all depends on the situation. I live in Washington D.C. So most of the time we can stay in the D.C. Armory and you'll kind of like set up in kind of like a big gym. In some of these kind of larger scale disaster relief events it becomes kind of routine where people can either get back and forth to their own homes or like I spoke with someone who during Hurricane Katrina they were billeted or like they were living in a fraternity house at Tulane University. That was the arrangement that set up.

Nick Capodice: [00:11:15] So when it comes to the history of the National Guard there's all these moments that are just sort of in my mind the National Guard was called out to do X. And I think the one that's most prevalent for me is Kent State. But I know very little about what actually happened at that time. Is it something you could tell me about?

Miranda Summers Lowe: [00:11:32] Sure. There's a law passed in 1878 called the Posse Comitatus Act and that basically

Hannah McCarthy: [00:11:40] That's a great name.

Miranda Summers Lowe: [00:11:41] It's amazing. So I go I actually just looked that up and yes there is a Latin root to Posse Comitatus it basically means to like bring your strength together.

Nick Capodice: [00:11:52] Like you get a posse.

Miranda Summers Lowe: [00:11:55] Exactly. That's where it comes from. And so within the Posse Comitatus Act it basically says that federal troops cannot be used for law enforcement. However State troops can be used for law enforcement.

Hannah McCarthy: [00:12:10] There it is.

Miranda Summers Lowe: [00:12:12] Right. So during the 1960s the National Guard was used quite a bit for civil unrest. You see a lot of National Guard call ups around 1968 at the death of Dr. Martin Luther King specifically here in D.C. and Vietnam protests so the Kent State event, that is an instance of state National Guard the Ohio National Guard being called out in kind of a law enforcement function supporting local law enforcement during a protest. That protest turned violent and is one of those moments where I think the National Guard as an organization kind of stepped back afterwards and looked at our relationship with the communities that we serve. Now the National Guard is still used in that role. You know as recently as this year we have had National Guard troops at the women's march or at the March for our lives.

Miranda Summers Lowe: [00:13:11] And most of the time people appreciate having the National Guard there we tend to be something a presence there where you know you can kind of feel like there's more security there. But you know these are people from your own community.

Hannah McCarthy: [00:13:26] So aside from the Posse Comitatus Act what, what has happened that has changed the way that the National Guard can operate.

Miranda Summers Lowe: [00:13:36] There's always kind of been this evolution of the National Guard before between how much state control you have and how much federal control you have. Until about 1903 state National Guards were funded either through the state or personally, so specifically officers would come in and they'd pay dues. They would raise the regiment. You might have vastly different uniforms or equipment from the unit one town over or especially across states. So the constitution kind of outlines as far as you know having a militia that the state can train it. However it wants to go and select their own officers but it has to be to a certain standard. And so that all really changes in 1903 with the Dick Act. It was named after Major General Charles Dick who was a congressman and a member of the Ohio National Guard. That's kind of the first time that this tradeoff happens where the federal government comes in and says you know we want more oversight of what is happening in the National Guard and then in exchange they pay for more. It isn't until 1903 that the federal government starts paying for some equipment. And at that point you got five paid training days a year.

Nick Capodice: [00:14:56] How many now.

Miranda Summers Lowe: [00:14:58] So now the typical National Guard commitment is 38 days per year.

Nick Capodice: [00:15:02] We were both talking earlier about Little Rock in after the desegregation laws were passed. Can you tell us about that?

Miranda Summers Lowe: [00:15:09] That's another kind of interesting moment in National Guard history. National Guard troops were used all over the country as part of desegregation efforts. Now in Little Rock it happened to be this rare occasion where the governor of that state had actually called up their national guard to keep the African-American students from going to school. It is very rare to be able to use federal troops for law enforcement. And if you look at the pictures that is the case where then the president called in 100 First Airborne to escort those students in. So if you look at the pictures from Little Rock there's state National Guard troops and federal troops there

Hannah McCarthy: [00:15:51] Oh wow. Title 10 is invoked can a governor say no Mr. President my National Guard will not be doing that?

Miranda Summers Lowe: [00:15:58] In no way am I like any kind of constitutional scholar. But essentially the president does get to call out the National Guard and that does outweigh the governor's objection. But that is a question that is constantly in flux. Probably one of the more recent moments where that came up was during Hurricane Katrina. Know we had hundreds of thousands of National Guard soldiers mobilized in Iraq and Afghanistan. So there was kind of a big shortage of National Guard troops for hurricane relief. At that point some of these governors started stepping up and particularly with things like aviation resources like helicopters which are hugely important to disaster relief saying like you know we want more of a discussion when our helicopters leave the state especially in states that are you know say like in the hurricane belt.

Nick Capodice: [00:16:56] Is there anything that you want America to know about the National Guard.

Miranda Summers Lowe: [00:17:00] I think one of the things I find really interesting about the National Guard is how diverse it is over time particularly since 1970 and you know we became a country that doesn't use a draft or conscription anymore. We tend to have these communities that are very military friendly and everyone joins the military and largely those communities are in the Midwest and the south. But then we have the National Guard and that is an organization that by design is spread out equally across all the states and it brings in all kinds of interesting people and because it's not a full time commitment, you bring in all of these people who have other things going on in their life there are teachers, there are doctors, there are lawyers, there are police officers and they kind of come together to do this thing to serve their communities one weekend a month. But you get this huge array of like life experience.

Nick Capodice: [00:18:01] That was Miranda Summers Lowe, military historian for the Smithsonian at the National Museum of American history and a member of the Army National Guard.

Hannah McCarthy: [00:18:09] This episode of Civics 101 was produced by Ben Henry. Our executive producer is Erika Janik and our staff includes Taylor Quimby Jimmy Gutierrez and Justine Paradis. Music in this episode from Jahzzar.

Nick Capodice: [00:18:21] And if you have any civics questions that you'd like Hannah and I to get to the bottom of just drop us a line at civics101podcast.org.

Hannah McCarthy: [00:18:28] Civics 101 is a production of New Hampshire Public Radio.

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Made possible in part by the Corporation for Public Broadcasting.

Presidential Transitions

On today's episode: what happens when the incumbent president leaves office and the president-elect enters? How is information shared? What laws or guidelines govern the transition of power? We talked with Max Stier, President and CEO of the Partnership for Public Service, on the written and unwritten rules of presidential transitions. We also explore our own transition, as hosting duties for Civics 101 transition from Virginia Prescott to Hannah McCarthy and Nick Capodice.

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TRANSCRIPT

EP 118 - PRESIDENTIAL TRANSITIONS

CPB: [00:00:00] Civics 101 is supported in part by the Corporation for Public Broadcasting. 

OPEN: [00:00:05] Who is the current speaker of the House? Don't even know. Will they rule in the president's favor or take it to the Supreme Court? You can't refer to a senator directly by their name. Congressional redistricting. Separation of church and state. Executive order. And the National Security Council... Civics... Civics... Civics... 101! 

Virginia Prescott: [00:00:23] This is Civics 101. The podcast refresher course on the basics of how our democracy works. I'm Virginia Prescott. Our team here has been working on a transition for the past few weeks as our sitting host namely me prepares to hand the reins over to our newly elected Civics 101 guides, Nick Capodice and Hannah McCarthy. So for this, my last Civics 101 before I take up my new office at Georgia Public Broadcasting, we're going to find out how the mother of all handoffs takes place -- the presidential transition of power. And joining me is Max Stier he's president and CEO of Partnership for Public Service. Max welcome to Civics 101. 

Max Stier: [00:01:03] Thank you very much. 

Virginia Prescott: [00:01:04] OK so say it's election day in the United States a new president gets elected but the old one is still in office. So what's the first thing the incumbent meaning sitting president's team does when the new president is elected. 

Max Stier: [00:01:17] Well you better hope that they've been doing a bunch of things before election day because if you wait until election day to get ready for the transition you've already missed the bus. There are about 70 plus days between the election and a negotiation. And that's not nearly enough to address as you just said a mother of all transitions. 

Virginia Prescott: [00:01:37] So when would that team have started putting together a transition? 

Max Stier: [00:01:41] Well so and you said something really important there which is that there are multiple teams that have to be focused on this so you have the incumbent president that now by law order then focusing on this easily a year pre-election and that includes identifying people in each of the agencies to serve as a transition coordinator and begin the planning process. But for the incoming president they also needed a transition operation and that operation really ought to have begun in earnest at the beginning of that year. So you're looking at you know eight nine months of work really to be ready for Election Day. And it is a huge undertaking you think again we'll all learn about the peaceful transfer of power as being one of the great qualities of our government. But no one tells you that it's peaceful but ugly. And you think about it. It's a 4 trillion dollar organization four million employees when you think about the military and the civilian employees and hundreds of different operating entities. It is just so large and so complicated and so consequential that you need to begin aggressively with a good plan and very early. 

Virginia Prescott: [00:02:53] OK so you said by law -- what are the official laws or rules for the transfer of power? 

Max Stier: [00:03:00] So there are a bunch of new ones which is a good thing because we had a system up until relatively recently that that essentially was Groundhog Day and you would have incoming administrations go through a transition process start from scratch really at best have access to some people who've done it before but really no consequential resource of tools and prior history. 

[00:03:26] And part of what we've done at the Partnership for Public Service is to help get Congress to pass some laws that provide better structure so now it used to be historically that incoming transition teams would only get support for transition planning post the election. And we were able to get a law passed that now provide support immediately after the conventions. And the reason why this is really important is that historically campaigns have understandably viewed job number one as winning. And anything that just distracted from that or might undermine that they would ignore. And they saw transition is that they saw it as a political vulnerability if you started planning for a transition before the election you could be accused of measuring the drapes or celebrating early. And as a result the transition planning was done subscale and generally behind the curtain. And the law that I just described now changes that. So they have political protection. They now have a congressional mandate to begin pre-election. And we saw the results of that for the first time on both sides with the work that then candidate Clinton and then Candidate Trump did in this past election which was quite extensive and public prior to the election. So that is part of the legal framework that has changed that is very important. On the flip side there are now requirements for the incumbent administration to do work prior to the election to prepare for a good handoff to the new president coming in. So there is new law that really does some important things. I don't think we're entirely done yet with what needs to change but there are big improvements. 

Virginia Prescott: [00:05:09] So who comprises this transition team are they people who will go on to be members of the president elect staff or you know campaign staffers that kind of thing? 

Max Stier: [00:05:19] Well it's it's an excellent question. And the answer is you have different responsibilities when you are a campaign person versus doing the transition versus actually governing. And I think one of the real challenges we have in our system today is that there is this huge cohort of political appointments that are made by a new president that is unparalleled by any democracy so a new president typically puts in about 4000 political appointments and of those 1200 plus require Senate confirmation which is a very difficult obstacle course. What that means is that in fact new administrations often do staff government with a lot of people that were serving in the campaign and in the transition in not recognizing that and the skills that you need the capabilities you need are usually very different. 

Virginia Prescott: [00:06:09] So what are those transition team members doing in these days between the election and inauguration their appointments to be made?People starting to prepare for new jobs how do they do it. 

Max Stier: [00:06:20] Yeah the period between the election and inauguration becomes frenetic because you are taking over this phenomenally large organization. You put your finger on the in my view the most important element. You got to have highly qualified people ready to come into these positions and they need to be working well as a team. That's something that is often overlooked. So one big element is getting the right people and having them work effectively together. 

[00:06:45] Another is in preparing to actually implement the promises that the president elect has made on the campaign trail as smart transition operation is really thinking through how they convert those promises to actual action. There's you know usually someone who's coordinating the relationship between Congress and certainly the party that that they come from on the Hill so and that is an area where a lot of transitions under invest they need to really make sure that Congress is on board with the changes that they want to see happening and creating that front and understanding a shared vision and how they're going to work well together is one of the most important investments that a transition team can make. 

Virginia Prescott: [00:07:36] When can the incoming staffers get security clearance? 

Max Stier: [00:07:39] For the very top people it can happen relatively quickly. But if you're thinking about you know general averages there I was just in the meeting today where you know folks were complaining about the fact it could take 700 days to get clearances for some people so I mean that's a very challenging process and a big problem. The law now permits campaigns to actually start the clearance process for key people even pre-election. And so once more smart transitions will have teed up a set of core people that they need cleared and ready for jobs both in the White House and in the agencies. Because if you don't start that early you won't have your team on the ground when the when the game starts. 

Virginia Prescott: [00:08:23] So I'm hearing Max there's a lot of handoff of let's call it soft knowledge you know institutional knowledge about how jobs get done how agencies work projects that are in progress. Have there been examples of you know real antipathy and those kind of handoffs of current people in power in the White House or other agencies. Not necessarily handing off in a graceful way. 

Max Stier: [00:08:48] So you will always find examples where someone didn't do it real well. And there are anecdotes about you know the handoff to you know the Bush team from President Clinton's team where there were allegations that you know W's were removed from keyboards and things like that. I will say that those are truly the exception. Almost everyone who serves in government understands that they are there in order to serve the people and they are remarkably committed to the success of the new team coming in. The challenge is is less antipathy than lack of understanding about how to make that handoff really effective and more often than not it's the team coming in that fails to take advantage of the opportunity to soak up the knowledge from the people leaving. 

Virginia Prescott: [00:09:46] How about the current administration when that's holding power what are they actually required to share with the incoming administration? 

Max Stier: [00:09:55] The incumbent president is required to organize even if they're just in their first term to organize as if a transition might happen. And that means on an annual basis they actually need to bring together representatives the lead transition person for every agency and they need to have somebody who is who has got that responsibility to talk about how they're they will prepare for the transition. And they are by law required to provide information to the incoming potentially incoming successor. So you know at the end of the day the law is important but how it is followed is even more so. 

[00:10:39] And you know I will say that in sort of modern transition planning President Bush did a phenomenal job handing off the responsibility to President Obama and his team. And I think President Obama did a phenomenal job of preparing in and being ready to hand off to President Trump and I hope that that becomes you know the expectation for you know that the President Trumps team and everyone that comes thereafter. And I think you know there is as I say a broad sense even though the you know political appointees that that that they have a responsibility the country that our government is a core asset for the public and not for any party. 

Virginia Prescott: [00:11:24] So nobody glued the doors shut or anything like that. 

Max Stier: [00:11:27] You know and look with enough people you'll find somebody who didn't do it right. But the more important thing is what are the norms and are those norms being followed. And I think we're setting new norms and they are in large measure being followed. We are still at a pretty nascent stage. I would describe around transition planning and making it an effective operation. We're trying to create a learning system and that that's vital because it's such a big job. 

Virginia Prescott: [00:11:56] We're talking about a lot of the practical steps a lot of the operational steps. But we do hear about these meetings between the incumbents and the president elect and about letters. You know George Bush's George H.W. Bush's letter to President Clinton circulated widely I guess was when the transition was going on for the Trump administration. Letters from the sitting president left for the incoming one. What besides the practical does the incumbent president try to share with the president elect. 

Max Stier: [00:12:26] That's a very personal I think question. You know we all see the pictures of the president as they arrive and they leave. And you quite clearly see that it's truly dog years that they've lived and they got the gray hair and the lines. I mean the responsibility is phenomenal. You know no one you know really comes to the job having done it before. And I think that in many ways I think that the most important thing that can be offered is less one time advice than then than a relationship that would enable you know the new person coming in to come back to the incumbent. And I think that's true for the president. It's true for secretaries of agencies. It's true for assistant secretaries of agencies. There ought to be a you know again an understanding that there will be different policy priorities. We have a democratic process to help you know identify what the public wants to see as their vision for us going forward. But in these jobs are so challenging and hard and the opportunity for good and for ill are so large that you really want to make sure there is a community and there is a sense of responsibility for the incumbent to be there for the new person and that the new person knows they can rely on that incumbent for advice. 

[00:13:51] I mean that to me would be the most helpful thing that could be communicated and the new person has to take advantage of it because I think by and large the willingness to be there as a resource is almost inevitably there. 

Virginia Prescott: [00:14:02] There this may be a weird question but I always wondered does the first family sleep at the White House the night before the inauguration or is that night of? 

Max Stier: [00:14:10] Yeah not not. Not the night before. I mean it really is an amazingly you know sort of quick transfer you've got you know 12 o'clock 12 01 the you know the day of the inauguration you've got a new president. And that's true in terms of ownership of the White House and there's a unbelievable operation to move the president out. The new president in to do new paint in the work that's done by the you know career people who are managing this process is really stellar. And it happens in every agency across the entire government as well. You got a new secretary coming in hopefully confirmed. In an ideal world in the world we should live in. You've got more than the secretary but you know a deputy secretary in the key leadership team also ready to walk in on day one. It's actually a flip of a switch. It's not a slow you know you can move in over the next few weeks. You know right away on the White House side the team is unbelievable and the other unusual aspect of the White House is that everyone turns over so and they and the agencies themselves the career workforce will inevitably be way larger and hard to be way larger than the political team. In fact the political team should understand that they can't get their job done without working collaboratively and effectively with the career folks in the White House. It's a different proposition. You don't have pretty much anyone around that can tell you how it was done before how to operate things. 

[00:15:43] It's you're you're starting you're bringing your whole team with you. 

Virginia Prescott: [00:15:46] Max Stier president and CEO of the Partnership for Public Service a nonprofit whose Center for Presidential Transition helps candidates and their transition teams navigate the process of becoming president. Max thank you so much for speaking with us. 

Max Stier: [00:16:01] Hey thank you and congratulations on your contribution to civic education. 

Virginia Prescott: [00:16:05] Thank you so much. 

Hannah McCarthy: [00:16:09] That is it for Civics 101 today. But before we go we're doing a handoff of our own. 

Nick Capodice: [00:16:14] As Virginia mentioned at the top of the show. This is her last episode of Civics 101. She's moving on to Georgia Public Broadcasting where she'll be the host of The Daily News show: On second thought. 

Hannah McCarthy: [00:16:24] I'm Hannah McCarthy. 

Nick Capodice: [00:16:25] And I'm Nick Capodice. 

Hannah McCarthy: [00:16:26] From here on out, Nick and I will be hosting the podcast. 

Virginia Prescott: [00:16:30] Both of you guys are theater. You have theater background you right. 

Hannah McCarthy: [00:16:34] We do indeed. 

Virginia Prescott: [00:16:35] Are you going to do a little song and dance thing. 

Nick Capodice: [00:16:37] We're going to do a civic on one Christmas Carol for sure. 

Hannah McCarthy: [00:16:40] Yes absolutely. 

Nick Capodice: [00:16:41] You did the transitions episode you recorded the transition's interview. What did they say is usually done. I wasn't there you were there. What's usually done when one transitions to the other. 

Hannah McCarthy: [00:16:53] There's a lot of preparation because I think he made a really great point. This is Max Stier. He said nobody's done this before. Nobody has been president before they're president. Unless of course you were elected and then you lost an election and then you won an election. 

Virginia Prescott: [00:17:09] Has that ever happened, by the way? 

Hannah McCarthy: [00:17:09] That's a good question. 

Virginia Prescott: [00:17:13] We should know this. 

Nick Capodice: [00:17:13] It's pretty embarrassing. 

Virginia Prescott: [00:17:14] Well actually we shouldn't know this. That's the wonderful thing about this show that we are not civics scholars. What do you guys want to know anything else. 

Nick Capodice: [00:17:21] Is there any part of the transition that we haven't done yet. 

Virginia Prescott: [00:17:24] I haven't written you a letter on White House stationery letter. 

Nick Capodice: W hat? No letter on White House stationary? 

Virginia Prescott: [00:17:28] I don't have White House stationery. 

Nick Capodice: [00:17:31] On NHPR stationery. 

Hannah McCarthy: [00:17:31] Producers really dropped the ball on that one. 

Virginia Prescott: [00:17:33] Yeah no kidding. 

Nick Capodice: [00:17:35] Well if you can tell us that you would put in that letter you can tell us. 

Virginia Prescott: [00:17:39] I would just say that as a friend of mine Jason Schlender who's a poet who's now passed away said humility will find you. So no matter what you do be humble because you're gonna make mistakes but that's OK. You know that's what makes you sound like a human being. 

Nick Capodice: [00:17:58] Some of the best advice I've ever gotten. 

Hannah McCarthy: [00:18:03] Yeah. 

Hannah McCarthy: [00:18:03] This episode of Civics 101 was produced by me, Hannah McCarthy and Nick Capodice. Our executive producer is Erica Janik and her staff includes Taylor Quimby, Justine Paradis, Jimmy Gutierrez and Ben Henry. Our music is by Broke for Free. 

Nick Capodice: [00:18:16] And if you've got questions about the government and we know you do you know who to call. Hannah and I are on top of it. You can e-mail us at Civic's 101 at NHPR dot org. 

Hannah McCarthy: [00:18:26] Civics 101 is a production of New Hampshire Public Radio.

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Made possible in part by the Corporation for Public Broadcasting.

Hostages

On today's episode: How does the government respond when an American is taken hostage? Is it true that we don't negotiate with terrorists? Who in the government handles these situations? We talked with Chris Mellon, a policy analyst at New America and coauthor of a paper on whether American hostage policies are effective. 

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TRANSCRIPT

NOTE: This transcript was generated using an automated transcription service, and may contain typographical errors.

Civics 101

Episode 117 - HOSTAGES

Virginia Prescott: [00:00:23] I'm Virginia Prescott and this is Civics 101, the podcast refresher course on the basics of how our democracy works. Hollywood has lodged a phrase in the American vocabulary when it comes to hostages. We don't negotiate with terrorists.

Movie clips: [00:00:38] As you are aware. We do not negotiate with terrorists. We do not negotiate with terrorists. Go to town man, go to town! No. In the meantime and as usual, go beep yourself. No. We don't negotiate with terrorists. This is insane. You cannot negotiate with terrorists.

Virginia Prescott: [00:01:01] But is that true? The U.S. does have specific policies for handling hostage situations. And since 9/11 several hundred Americans have been captured and held hostage. Which is a dramatic increase over the past few decades. So what exactly is U.S. policy on hostage negotiation? My guest is Chris Mellon, he's a policy analyst at New America. That's a nonpartisan think tank. Chris welcome to Civics 101.

Chris Mellon: [00:01:27] Virginia thanks for having me.

Virginia Prescott: [00:01:28] So what is the official U.S. government policy; we don't negotiate with terrorists is that it?

Chris Mellon: [00:01:35] Not quite. The difficulty is that we don't make substantive concessions to terrorists. And as you can imagine that that sometimes has been interpreted as we do not negotiate because it's hard to negotiate if you're not willing to concede anything.

Virginia Prescott: [00:01:46] So what would be an example of concessions, is that like paying ransom?

Chris Mellon: [00:01:50] Yeah that's that's the most common concession that would be demanded. Prisoner exchanges would be another.

Virginia Prescott: [00:01:56] Prisoner exchanges have happened in U.S. history though haven't they?

Chris Mellon: [00:01:59] They have. And notably Bowe Bergdahl, the U.S. Army soldier who was kidnapped by the Taliban, was released in exchange for five Taliban prisoners held at Guantanamo Bay. The U.S. government would contend that is not actually an exception to the policy because it has always been the practice to exchange prisoners in sort of wartime conditions with state and nonstate adversaries.

Virginia Prescott: [00:02:21] So if somebody like you know in the past you know, an executive might have been taken hostage in Colombia or something like that or a ship captain by Somali pirates that would be considered differently than somebody who is in the military.

Chris Mellon: [00:02:34] Yes absolutely. And there's another crucial distinction to be made here which is whether or not the group holding the hostage is a designated foreign terrorist organization as determined by the U.S. State Department. So for example if you were kidnapped by a criminal gang in Mexico for ransom while you were on business and they're demanding that your company pay you know a certain amount of money in order to secure the release, the U.S. government still will not pay that money for you or make any sort of concession directly, but they will help to negotiate and they certainly would not interfere if you're say private security company that your that your family or your employer has engaged wants to make that payment.

Chris Mellon: [00:03:14] Where the U.S. government policy starts to creep into private responses and efforts to release hostages is when the hostage is held by a designated foreign terrorist organization. One of the primary motivating factors behind the no concessions policy is the idea that it deters future kidnappings and that's a pretty simple idea to get your head around that if you reward bad behavior it will be repeated. But there's an additional consideration which is the funding of terrorist groups funding future attacks. And this really came to the fore after 9/11.

Virginia Prescott: [00:03:49] Yeah so how many American hostages are taken every year and how much of a jump was there after 9/11?

Chris Mellon: [00:03:55] After 9/11 it wasn't so much that there was a there was a big jump in the numbers, and the numbers vary enormously based on you know typically local conditions. I mean if you have an area with a lot of aid workers and journalists it's undergoing a crisis it becomes destabilized you tend to see an uptick. And you know when situations become more stable it falls.

Virginia Prescott: [00:04:14] So walk us through what happens in a hostage situation. Say it is a terrorist group calls up the government to make their demands. Who picks up the phone?

Chris Mellon: [00:04:23] So that was actually a big problem prior to 2015 is that there was not a single dedicated body within the United States government to coordinate response to hostage taking. After the deaths of the American hostages held in Syria by ISIS in 2014.

Virginia Prescott: [00:04:41] So you're thinking of maybe like James Foley the the independent journalist from New Hampshire by the way who was captured and beheaded.

Chris Mellon: [00:04:48] There was quite a lot of public pressure after the deaths of those American hostages especially because they were held together literally in the same prison with a large group of European hostages who were released for ransom. So the discrepancy between the outcomes for people following the no concessions policy and people who know countries that are willing to either pay ransoms or allow third parties to pay them became really really apparent and put some pressure on the administration. So they conducted a policy review in 2015. They didn't actually review whether or not to stick with the no concessions policy that was that was a given. But they were trying to find ways to improve their response to these hostage taking incidents and also to engage better with the families. Diane Foley. in fact the Foley family were threatened with prosecution. They were told they might be prosecuted for material support of terrorism if they tried to negotiate a settlement with ISIS to get their loved ones home.

Virginia Prescott: [00:05:46] Has anybody ever actually been prosecuted for paying ransom?

Chris Mellon: [00:05:50] No it has never happened. And it's an interesting point. So one of the things that came out of this policy review was that the government committed that it would not threaten families with prosecution in the future but practically speaking the policy still prohibits private parties from making payments to foreign terrorist organizations because you know it's not the case that a family has the requisite amount of cash available to them and outside the United States to hand over to the hostage takers. There are a lot of other third parties private parties that would have to be involved; private security companies, negotiators, the banks, potentially people donating money, right? Because the average American is not going to have a couple million dollars to pay ransom and none of them are covered by this family exemption.

Chris Mellon: [00:06:39] So practically...it was interpreted by some as being a change a real substantive change to the policy making it easier for the families to privately negotiate. But I don't think that's really accurate.

Virginia Prescott: [00:06:58] So there is a, I think I read about this inter agency office called the Hostage Recovery Fusion Cell, was that one of the Obama era reforms?

Chris Mellon: [00:07:07] Yes. So this is an interagency cell that's comprised of elements from Defense Department from the intelligence community the State Department Department of Justice the FBI all sort of working under one shop to have a real coordinated response to hostage taking incidents.

Virginia Prescott: [00:07:24] Well I've read of cases and seen cases where the families are doing you know online gofundme or some other kind of campaign to raise money to get their loved ones released. Would there be interaction with the hostage recovery fusion cell or other aspects of the government in that kind of case?

Chris Mellon: [00:07:41] Potentially. I mean but but that's a case where again that would have to be in essentially a criminal context. If so if your loved one was taken hostage by al Qaeda for example that sort of crowdfunding would not be permitted and certainly there would be no cooperation from the fusion cell.

Virginia Prescott: [00:07:57] Let's get Chris to the question that you have studied. Does the no concessions policy actually deter hostage taking and what kind of evidence do you have to evaluate it?

Chris Mellon: [00:08:10] Yes it is an extremely thorny question a difficult one because it deals inherently with counterfactuals. The idea of you know deterrence if you if you presume that it is functioning then the really pertinent evidence is all of the cases that never occurred.

Chris Mellon: [00:08:26] So I should start with that I think important caveat. The evidence though has been mounting and there's been a renewal of interest again since 2014 in this issue. There really is no evidence that this policy has any substantial deterrent effect. In fact the U.S. and the U.K. which are really the only major Western countries that pursue a strict no concessions policy have their citizens kidnapped really at very high rates in high numbers. In our data set, we based our research on a set of about twelve hundred cases of Westerners who were taken hostage abroad between 2001 and 2017. The Americans actually were the biggest sample I think 225 at the time we published this paper and the number continues to grow. And the British were you know on par with countries of similar populations that do actually pay ransoms directly. Countries like Italy and France.

Virginia Prescott: [00:09:20] But American hostages I'm reading here more than twice as likely to die in captivity or remain captive as hostages from other Western nations.

Chris Mellon: [00:09:29] That's correct. And and when it comes to jihadist terrorist groups you know eight out of 10 European hostages overall are freed. And it's one in four for the United States and one in three for the United Kingdom.

Virginia Prescott: [00:09:41] So we talked a little bit about the formation of this hostage recovery fusion cell, an Obama era invention around 2015. But did the policy actually change at all with the institution of this cell.

Chris Mellon: [00:09:54] No not this element of the policy. The no concessions policy remains in place.

Virginia Prescott: [00:09:59] Is it though at this point even feasible for the U.S. government to suddenly start paying ransom without it looking like capitulation. You know how committed are, is the U.S. to this no concessions policy?

Chris Mellon: [00:10:13] I mean the U.S. is strongly committed and the primary motivating factor for that is a good one which is that they don't want to be funding terrorist activity with U.S. taxpayer dollars. And actually I would not advocate for the United States government paying directly because you know the deepest pockets of any organization in the world. I mean those negotiations are not going to go well if you're trying to minimize the amount of money going to these dangerous groups which obviously is something we ought to do. It's a separate question to me whether the families should be allowed to make their own arrangements or to handle things privately. There is actually quite an efficient industry built around that, with kidnapping and ransom insurance and profession you know response professionals who are doing this all around the world.

Virginia Prescott: [00:11:02] What do you wish the American public knew about our hostage policies when this issue enters and such a often gruesome way into the public view.

Chris Mellon: [00:11:12] I think there are there are a couple of things that they need to know in order for us to have kind of an honest national conversation about this. One of them being that the deterrent effect of the no concessions policy is really not well-established. It's based on a certain amount of anecdotal evidence that the majority of researchers just don't see when you look at these incidents in the aggregate and it's for a variety of reasons.

Chris Mellon: [00:11:34] One being that you know hostage takers can see things like what we discussed earlier with the Bowe Bergdahl swap and very you know and not and failed to understand that that's from our perspective not a violation of the policy. Also because you know we can't control the muddying of the perception of the policy right now. Theo Padnos for example is an American who was held hostage by al Nusra in Syria and was released after what appears have been a ransom payment by the government of Qatar and their intervention. So it's a policy that we don't we can't even really control or enforce very strictly. So I think having a public airing of the evidence would be really important and valuable.

Virginia Prescott: [00:12:16] One of course the efficacy of a policy like this depends upon people knowing that the United States does have a no concessions policy. I think there may be the perception that well if you want to if you want a high value person go to someone from the U.S. They won't, the government will let that happen.

Virginia Prescott: [00:12:33] Yeah, really the deterrent effect does presume that the kidnappers really understand U.S. policy and that they you know they believe policy statements around hostage taking generally, because even the countries that do pay ransoms do not do so officially. They've made public international commitments at forums like the G8 not to do so. And it's very much under the table. So when everyone is dissembling about their real policy and practices I think it's sort of it clouds perceptions about who is really serious.

Virginia Prescott: [00:13:07] Chris Mellon thank you very much for speaking with us.

Virginia Prescott: [00:13:10] Thanks Virginia.

Virginia Prescott: [00:13:11] Chris Mellon he's a policy analyst at New America and he's part of the future of property rights initiative that is it for Civics 101 today. The show was produced by Ben Henry and our executive producer is Erica Janáček.

[00:13:27] Our staff includes Nick Capodice Hannah McCarthy Jimmy Gutierrez Justine Paradis and Taylor Quimby, music from Broke for Free. I'm Virginia Prescott. Civics 101 is a production of New Hampshire Public Radio.

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Made possible in part by the Corporation for Public Broadcasting.

Infrastructure - Roads!

Dams, highways, telephone poles... all of these things fall under the huge umbrella we call INFRASTRUCTURE.  But what does all that concrete and copper have to do with government?  More than you might think. Our infrastructure is what gives Americans access to community, communication, and business – it’s a system so complicated it takes dozens of federal administrations and agencies to oversee and regulate it.

In this episode, the first in a sporadic series on American infrastructure, we look specifically at roads. Who pays for them? How do we benefit from roads, even if we aren't the ones driving on them? What the heck is a public-private partnership?   Our guests are Civics 101 Senior Producer Taylor Quimby and Shailen Bhatt, President and CEO of the Intelligent Transportation Society of America. 

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TRANSCRIPT

Virginia Prescott: [00:00:23] This is Civics 101, the podcast refresher course on the basics of how our democracy works. I'm Virginia Prescott and today we're kicking off an occasional series on infrastructure. Infrastructure may sound like a bit of a snoozer. It's something you don't really think about until a sinkhole appears or a storm drain clogs up and floods your street. But before you start falling asleep. Senior Producer Taylor Quimby is here to assure us that it is deeply fascinating.

Taylor Quimby: [00:00:57] That's right. That's right and let me start off with that in mind with a factoid that got me hooked. Which is the very first federal agency dedicated to studying and building roads was called the Office of Road Inquiry and it was founded in 1893 partly because of the growing popularity of the bicycle.

Virginia Prescott: [00:01:15] Not until 1893 though? That's a little surprising.

Taylor Quimby: [00:01:18] Yeah you know, especially if you think about, you know that wasn't that long ago and today the Department of Transportation has, I'm going to list off, these are all agencies that fall under the Department of Transportation: the Federal Aviation Administration, the Federal Highway Administration, the Federal Motor Carrier Safety Administration, the Federal Railroad Administration, the Federal Transit Administration, the Maritime Administration, the National Highway Traffic Safety...

Virginia Prescott: [00:01:41] Stop the fight...

Taylor Quimby: [00:01:41] It's a firehose.

Virginia Prescott: [00:01:44] So in a minute we're going to bring on our guest. But first let's go through some quick themes for this episode.

Taylor Quimby: [00:01:50] The first one is this idea that geography is obviously a huge part of infrastructure in America. We have geography that poses some funky challenges.

Virginia Prescott: [00:01:59] You mean not just a space, there is so much of it, but up, down, water, mountains, all that. Exactly. Although space has a big role to play. So the Highway Act of 1555 was an English law and it was sort of the model for Colonial's as they came in. So in Virginia for example they passed a law in 1632 that was very similar, and it basically said that parishes would be responsible for maintaining highways inside the borders of that parish. So you'd get a couple of people from the parish they would be elected surveyors, they would sort of look at what roads needed to be built for the area, and then shortly after Easter they would make this announcement and say OK we're going to work on this section this year. And everybody in that parish would have to work like four or six days for the entire year to get all that roadwork done. And and that's basically how it started in terms of like we need roads here's how we're going to build it piece by piece parish by parish.

Virginia Prescott: [00:02:55] But the United States is much bigger than England.

Taylor Quimby: [00:02:58] Exactly. So you think about England, sort of all these connected parishes and why that might actually function. But the U.S. in the very beginning, this is pre declaration of independence, we're talking about massive spaces. And it was really complicated and frankly it just didn't sort of do the trick. So layer after layer of this onion has gotten more complicated as we figured out how to build roads to serve our needs.

Virginia Prescott: [00:03:21] OK then who pays for the roads.

Taylor Quimby: [00:03:23] Right. And this is sort of the other biggest theme that I would say is that determining who pays for roads and infrastructure in general is a debate that goes all the way back to the beginning. So you know there's that question: Does everybody pay a little bit or do the people who use the roads the most, should they pay? So in Virginia early on they actually didn't need roads as much as you might see in a place like England is because they had all these waterways. So they were able to use boats to move goods in and travel and do various things like that. But that does mean that they needed ferries. They knew bridges. They needed a different type of infrastructure. And there was a law that basically was passed so that people would be taxed and that tax would help to go pay for ferries and things like that. And then there was a big protest and people said hey I don't live that close to the ferry I never use the ferry. I shouldn't have to pay for the ferry and so instead they basically instituted a toll system in this one area. And so it goes to show you you know even early on there was this question and people getting angry about like why am I paying for a road I don't drive on.

Virginia Prescott: [00:04:29] Right. Even though they may get some benefits from being close to that road or being even far from that road.

Taylor Quimby: [00:04:36] Exactly. And this is another big point. Another big theme which is that there are big economic benefits that are sort of greater than whether or not you specifically drive on a road or use a ferry. And that's because you know goods and services and lots of different things travel on roads that maybe you don't use but um...the wool that is being sold by the wool guy let's say in colonial Virginia...

Virginia Prescott: [00:05:03] The famous wool guy.

Taylor Quimby: [00:05:05] Yeah the wool guy needs to get his stuff to market and if he doesn't have a road to drive on, or if it takes him longer because the road is really bad then maybe that gets passed to you in the form of the cost of the wool.

Virginia Prescott: [00:05:17] OK. And this is just the warm up?

Taylor Quimby: [00:05:20] Yeah I know this is just the warm up. And since we're not going to talk about this last point I really think that it needs to get brought up which is that road infrastructure is all about access right. All right. Access to goods access to community. It's no surprise that the history of infrastructure has been a platform for both wins and losses in the civil rights movement. You know big projects have been built that gave economic freedom to some communities while cutting off or just paving over other communities...

Virginia Prescott: [00:05:45] Right through many of them especially in inner city, you know urban renewal, in the 1950s, 40s, 50s, 60s.

Taylor Quimby: [00:05:52] Exactly. So you know you see some of the same themes how you know the idea that one community is going to benefit while sometimes other communities have really suffered when they get cut off from those same economic goods and disproportionately it's been communities of color. On the other hand you know transportation is all about efficiency. So there's there's been some historical examples where big civil rights battles were fought on and over access to public transportation.

Virginia Prescott: [00:06:14] The bus boycott.

Taylor Quimby: [00:06:15] The bus boycotts. Yeah, Rosa Parks.... I mean so you think infrastructure is boring? Maybe on its face it sounds that way but it's incredibly important to sooo many aspects of our lives and that is why we are covering it on Civics 101.

Virginia Prescott: [00:06:27] Infrastructure. The new thriller.

Taylor Quimby: [00:06:28] I packed the information about like a traffic jam.

Virginia Prescott: [00:06:34] That's what infrastructure is all about! 

[break]

Virginia Prescott: [00:06:43] So to zoom out and tackle the whole complicated onion that is our transportation infrastructure, today we have Shailen Bhatt, the former executive director of Colorado's Department of Transportation, currently president of the Intelligent Transportation Society or  I TS of America. Shailen, welcome to Civics 101.

Shailen Bhatt: [00:07:01] Thank you. Thank you for having me.

Virginia Prescott: [00:07:03] So every four years the American Society of Civil Engineers gives America an infrastructure report card, the latest grade barely passing D +. But infrastructure is such a big umbrella that it's hard to know exactly what we're talking about when we use it. So what fits under that umbrella for transportation?

Shailen Bhatt: [00:07:26] Yeah that that is a very consistent grade that infrastructure receives in America, and I wish my parents were as forgiving if I had brought home a D plus as the American public seems to be in accepting that D plus year over year. You know infrastructure is a big is a big tent. And when we talk about infrastructure, you know, we generally refer to roads and bridges, and even just within transportation people often don't think about things like culverts, or traffic signals, but then you take that to another level, there are dams as part of infrastructure, the power grid is part of the infrastructure, ports... I was recently at the Port of L.A. and  b etween the Port of L.A. and Port of Long Beach 40 percent of American goods come in and then have to be distributed over a transportation system. And lastly, more and more the technology piece, whether it's cellular towers or broadband technologies are becoming more important with this future of connected autonomous vehicles. So it is a pretty big umbrella.

Virginia Prescott: [00:08:28] How did our highways initially get built? So you know you talk about history. You know President Eisenhower had been a part of a convoy in WWI that had gone across the country and it took them you know a few weeks and he saw the, you know that many roads in America at that time were nothing more than dirt roads. Then when he went to Germany in World War II that he saw how the Autobahn, and the infrastructure investments that had been made were helping drive the German economy so he came back, and when he became president he said "let's do that." But the key thing to remember is, is that taxes at that time were much higher. And I know nobody likes to pay taxes. But I think the marginal tax rate in the 1950s was something like 90 percent.

Virginia Prescott: [00:09:13] You mentioned the Port of Los Angeles and to Taylor's point earlier, people often benefit from infrastructure even if they don't think they use it personally. I mean so back that up again. Why is infrastructure important economically speaking even if I'm a relative homebody living in a rural area?

Shailen Bhatt: [00:09:31] And this is the the very persuasive argument that I think that we should be making which is that, you know not only do you get the jobs that are associated with the you know, whether it's a road or a new bridge or repair a failing infrastructure,you get the economic benefit of those goods flowing more smoothly: people being able to get to work. People being able to make investments and not adding costs get passed on. So if it takes a product that comes into the Port of L.A. an extra 30 percent of time time is money to get to market that 30 percent is being passed on to consumers, and it is just friction and a drag on the economy for everybody.

Virginia Prescott: [00:10:09] But if we look at transportation throughout American history it seems like there are cycles of expansion and then maintenance. Do I have that right?

Shailen Bhatt: [00:10:19] I would say that there have been cycles of expansion. We haven't done a lot of expanding of late. So now it's just a lot of maintenance for the most part.

Virginia Prescott: [00:10:29] So that's where we are now in that cycle as a country as a whole.

Shailen Bhatt: [00:10:33] Yeah and I would say that we're not doing a good job of maintaining what we have so I'll just give you an example in Colorado. People always ask me why is traffic so bad in Colorado and I would say because we have a system that was designed in the 50s, built in the 60s for a population of the 1980s that was 3 million. There are six million people in Colorado today. They are going to eight million people in the next 20 years. But the transportation budget is not at all geared towards expanding the system. We are not even investing enough money to maintain what we currently have.

Virginia Prescott: [00:11:04] Who pays for roads and how?

Taylor Quimby: [00:11:07] Well you know there's there's a number of ways that roads get paid for. I think number one obviously with the federal gas tax. Every state that has a state gas tax, but there's a lot of issues with that. I think that one there is always a political issue with raising the gas tax at the federal level it's not been raised since 1992. Most states have not raised their gas taxes. I would say it's incredibly important that whatever the mechanism that we begin to take responsibility for our transportation system.

Virginia Prescott: [00:11:35] Well you hit on something that has been a big argument as people are saying no we don't want to pay more gas tax. Let's have more private investment in the roads. How does that work?

Shailen Bhatt: [00:11:46] It's just like if you were to say hey we need a grocery store in this area. But the government can't afford to build a grocery store. Let's get the private sector, the private... If the government can't afford to do it the private sector can help only if there are customers for that grocery store. And so what is key here is that public private partnerships or P3s are an important tool in the toolbox. But they are a financing piece, which means that the private sector brings their capital in and then the private sector expects a return on that capital.

Virginia Prescott: [00:12:16] Right. How do they get paid back?

Shailen Bhatt: [00:12:18] So it depends on on the way the deal is structured, so you can do things like availability payment. An availability payment says that the government entity was going to pay 20 million dollars a year to maintain this thing whatever it is. And so in lieu of us paying somebody else we'll give it to the private sector, the private sector then brings their money on the front and builds it. Another typical way is through tolling. You build it you maintain it and then you get to keep the revenue. The challenge for us, in Colorado Governor Hickenlooper would talk often about how we need to make sure that all of Colorado is benefiting, but as a DOT director there, it was hard for me to get a company to say, let's put let's expand a road in rural Colorado where there isn't a lot of traffic.

Virginia Prescott: [00:13:03] During the 2016 election then candidate Trump campaigned hard on infrastructure spending even out matching promises by Hillary Clinton his opponent. Recently the White House did release an outline of Trump's administration plan for infrastructure what does it say?

Virginia Prescott: [00:13:19] I think that this administration has been very clear that they want to change the traditional model of transportation funding and I don't see that in a pejorative sense. I mean I think what they're saying is there isn't enough money in transportation but the federal government isn't likely to come to the rescue here. And so what they'd like to do is to leverage state and local investment to make those federal dollars go further. And so this is where you see the president saying things like for a 200 billion dollar federal outlay. We'd like to see a trillion or a trillion five in actual dollars on the road.

Virginia Prescott: [00:14:00] So you said this is a departure... In the past has been the federal government more paying for the roads?

Shailen Bhatt: [00:14:07] Yes so typically you would expect that on a major interstate project or a major system project with national significance. The federal government would partner with you at 80 percent of that project costs and state locals would come up with 20 percent. And now what they're saying is that we want to drive down that federal number because we want to drive up the state and local piece. And I think part of it is political reality and part of it is also ideology around who should be responsible.

Virginia Prescott: [00:14:39] Trump is proposing that the federal government pay about 20 percent of the costs and then local and state governments pay about 80 percent.

Shailen Bhatt: [00:14:46] I don't know if it's I don't think it's flipping from 80 20 to 20 80 but it is certainly driving that number much closer to that.

Virginia Prescott: [00:14:54] Well the Department of Transportation's Office of Road inquiry really in historical terms has not been around that long. Now there are a number of agencies regulating transportation. Do you think that added complexity has helped. Can we feel more safe on the road and feeling that they are being watched in a careful way?

Shailen Bhatt: [00:15:14] Yeah I think it's it's important that we we again have a we always have the appropriate perspective. Nobody likes regulation. Everybody. You know I tell you in my in my time as a leader in transportation areas you just got to cut regulation, cut regulation and unleash the private sector to to do all the great things they do, and then you see some of the tragedies that we've had recently whether it's the bridge in Florida, or the you know issue in in Arizona, and then there's as rush to the other side well why wasn't this being regulated. And so I think what we need to be is thoughtful around the idea that overregulation can stifle innovation and is inefficient. But we also need to appreciate that many of the hardworking public servants that are regulators, We do want them making sure that safety is the number one priority because while a profit is a great thing for folks who want to achieve, public safety can never take a backseat to that. And that's why I believe that it's a healthy balance that's needed not an extreme one way or the other.

Virginia Prescott: [00:16:24] Well there was one time Shailen, where roads were necessary to get you know telephone poles and electricity out to customers in rural areas or just to connect them to the grid. Now we have some alternatives. For example we have cell phones. You don't really need telephone poles. We have drones that could possibly deliver goods to people in far flung areas. So could the argument me made that our road infrastructure like a lot of things that we used to depend upon, may not be as necessary as it once was?

Shailen Bhatt: [00:16:56] I would say that in some parts of the country we are absolutely at Peak Road meaning that you know to get more throughput on our roadways you're not going to be Widing them because technology is going to let us move more vehicles so for example right now we use 2000 vehicles per lane, per hour, is what an interstate will likely move... Well, with connected vehicles that are coming along we can shorten the distance between vehicles and we can maybe get 4000 vehicles per lane, per hour, through those same lanes. So I agree that you know when we say we need to invest in infrastructure. I don't know that we need mass widening of roadways out there but we do need to make an investment.

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Made possible in part by the Corporation for Public Broadcasting.

Foreign Aid

On today's episode: What is foreign aid, and how much money does the U.S. spend on it? Is it purely humanitarian, or is it strategic? And how do we know if foreign aid actually works? Addressing these issues with us is Brian Atwood, senior fellow at Brown University’s Watson Institute and former Administrator of USAID. 

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TRANSCRIPT

Virginia Prescott: [00:00:00] I'm Virginia Prescott and this is Civics 101, the podcast refresher course on the basics of how democracy works. Before we begin today's episode, a quick reminder for teachers and students. The deadline is fast approaching for our student contest. The winning student or students will coproduce a Civics 101 episode on a topic of their choosing. You can go to Civics 101 podcast dot org slash contest for details. OK, onto the show. Today: Foreign aid.

[00:00:51] The United States spends something to the tune of 40 billion dollars a year to aid other countries. That's more than any other nation spends and while only about 1 percent of the federal budget that's not pocket change. So what exactly are we spending all this money on and why are we doing it. Joining me is Brian Atwood senior fellow at Brown University's Watson Institute. He's a former administrator of the U.S. Agency for International Development commonly called USAID. Brian welcome to Civics 101.

Brian Atwood: [00:01:21] Thank you very much Virginia.

Virginia Prescott: [00:01:22] So what exactly is foreign aid?

Brian Atwood: [00:01:25] Well there are two aspects of it. Perhaps the most important is the long range aspect which is to help others help themselves. It's called development assistance or development cooperation.

[00:01:36] And the other aspect of it is humanitarian relief. Humanitarian relief basically saves lives after earthquakes are natural disasters and or conflict. And so a lot of people sort of conflate the two and say it's all humanitarian and in one sense it is but the development aspect is has a mutual benefit not only for the country we're helping but also for us because it brings stability that brings some degree of prosperity hopefully it solves transnational problems. It contributes to our national security. So there's no question that you can argue that the American taxpayer benefits from our foreign aid program just as the recipients do.

Virginia Prescott: [00:02:23] So there are national security or strategic goals and also humanitarian strategic goals. Have I got that right?

Brian Atwood: [00:02:30] That's right. The humanitarian aspect of course has become much larger in recent years because of the increase in population the increase in natural disasters some of it related to climate change some of it related to human conflict in these poor countries which is one of the aspects of poverty that cannot be denied there. When you are living on the edge the tendency is to to associate with your ethnic group or your religious group and to manifest your concerns by taking it out on someone else. So the preventive aspect of foreign aid by investing in helping these people see a better life where they live also contributes to the prevention of crises that would later involve our military possibly.

Virginia Prescott: [00:03:27] How roughly does that breakdown monetarily, economic development aid and versus security aid?

Brian Atwood: [00:03:34] Well I think the economic development aid is security if you look at it from the longer perspective President Bush was the first to basically announce that we had a 3-D national security policy which means defense diplomacy and development.

[00:03:53] And so to the extent that you're preventing crises in the long term contributing to stability and prosperity you're basically contributing to our national security. So all of it is really can be argued in that sense is national security. The humanitarian side these situations will get much worse if people are in conflict as we now see in Syria. They're bound to want to leave and go to other countries they cross the Mediterranean they come into Europe they destabilize European political systems they create a reaction which is the populist nationalist reaction and the anti immigrant feelings in Europe which don't help anyone.

[00:04:41] And so trying to keep these people happy at home is a very important aspect of national security.

Virginia Prescott: [00:04:48] Which Countries Get foreign aid?

Brian Atwood: [00:04:52] Well mostly the poorest countries. It's the it is true that some of the middle income countries that are now doing well economically still have huge pockets of poverty but they are increasingly able to contribute to development themselves. And this is I think an important aspect for your listeners which is what I would call burden sharing that over the years the United States which took the lead in the Marshall Plan and with the Point Four program that President Truman announced we were the only ones providing foreign aid in the early days mostly in Europe. But nowadays there are some 27 countries 28 countries that are called donors that are contributing to the approximately 150 to 160 billion dollars of official development assistance that's being provided. So these are obligations that the global community feels that it has not only to a more stable and peaceful world but also to the interests of the individual countries.

Virginia Prescott: [00:05:59] Which countries do you get the most aid from the U.S?

Brian Atwood: [00:06:02] Unfortunately it's countries like Afghanistan and Iraq. Israel gets resources as well not as much anymore because their economy is doing very well. These are countries that are not necessarily the poorest but they're the most conflict ridden. And there is a need to move in not only with humanitarian assistance but also to try to stabilize areas after they have after the war is over. And that's not over yet in Afghanistan but to the extent that we can help the Afghan government strengthen itself then maybe we can bring our troops home at some point in time.

Virginia Prescott: [00:06:49] You mentioned the Marshall Plan this was the plan to rebuild Europe and really designed to blunt the rising in France of communism that time. How is the purpose of foreign aid shifted since then?

Brian Atwood: [00:07:02] Well in those days we were basically helping countries that had been democracies that had been successful economies but had been sort of operating within their own borders. And the purpose of the Marshall Plan was to encourage the integration of Europe so that we wouldn't have any more wars. We had two world wars basically started in Europe. And so the idea was to not only provide the resources they needed to get back on their feet but also to insist that they create industries that were broad enough to go across borders and the trade rules and and the rest that would strengthen Europe as a whole and the European Union was one result. NATO is another result.

[00:07:47] But the purpose of foreign aid today is really to look at the poorest countries in the world and this was the idea that President Truman had which came about at the same time as the Marshall Plan. It was the fourth point in his inaugural address which is that Americans have an obligation as a rich country to help poor people. And that was sort of a reflection of American values very much a reflection of the values of small town American by the name of Harry Truman. But it's certainly something that we can be proud of it's part of our so-called soft power. It is. It is. It uses people maybe like yourself Virginia. I know we're involved in some USAID programs but also universities and non-governmental organizations even American corporations and others that that can contribute and have done over the years. It certainly helped the standing of the United States in the world to a very large extent.

Virginia Prescott: [00:08:50] Foreign aid has been a political football tossed back and forth for some time. Now some economists would argue that foreign aid does not actually spur economic development in countries. Others argue that it does. So do we have evidence that the money being spent is really making a difference?

Brian Atwood: [00:09:09] You have to be thinking about the transnational problems that impact on your town for example infectious diseases in the recent weeks here and I'm sure in New Hampshire as well you've had some really bad weather a lot of that is attributable to climate change.

[00:09:24] These are transnational problems and the only way to solve them is to help for example countries that don't have a health care system developed so that they don't have diseases like HIV AIDS and ebola or malaria or dengue disease that actually comes into the United States the largest budget within the U.S. government is the military and increasingly we're using the military. Just think of where we've been using it recently. I mean in Iraq and Afghanistan very poor countries where the situation becomes so dire that there's no other solution. And that cost a lot more money than the less than 1 percent that we spend on foreign aid.

Virginia Prescott: [00:10:07] So what I'm hearing from you Brian is that the effects are not necessarily easy to measure.

Brian Atwood: [00:10:12] They're easy to measure in some fields. We know the number of people that receive at least a primary education we can count the number of people that have been inoculated. It is a lot more difficult to understand what the impact of contributions of foreign aid are to the development of an economy. But if you are basically working on the micro economic systems such as a customs system the tax system the banking system the export import laws of a country you're helping that country develop the systems that it needs to sustain economic growth. And it's more difficult to know whether or not it's because they discovered oil or because they have microeconomic systems that are working and functioning. But clearly there is a benefit to these countries derived from the knowledge and the resources they receive in foreign aid.

Virginia Prescott: [00:11:09] But how do you Brian would think that U.S. aid could be improved in order to make that more effective. Well I'd like to see USAID working in the poorest countries. I do think that it's time now for the middle income countries to carry their own load.

[00:11:27] I I think that we should be working in fragile states that are likely to break apart and go into civil war or to send refugee flows into the Western world that will be terribly would be bad for everyone. So I think the focus should be changed. I I do think that we're working in too many middle income countries that could basically fund their own programs where their tax dollars. And there's a real movement for what they call domestic resource mobilization to help countries develop tax systems that are efficient and non corrupt so that they can use these resources for their own development.

Virginia Prescott: [00:12:13] The Trump administration has suggested cutting foreign aid funding based on support for the U.S. that measured largely by votes in the U.N.. Is there any precedent for this linking U.S. aid to pro quote unquote pro U.S. votes in the U.N?

Brian Atwood: [00:12:33] Oh it's been done. People who really don't understand the purpose of foreign aid or the benefits over time have been tempted to be angry because someone voted the wrong way on a particular issue at the United Nations and this certainly seems to be the case today. President Trump is not known for his knowledge of foreign policy or or development policy. And so it's too tempting to send a tweet out saying well if they're going to vote against us it's. But foreign aid isn't a gift it isn't a gift to another country it's has mutual benefits and we've got to think about it in those terms. It doesn't do any good to get angry and say you know we're going to tie this to your vote so your posture on a particular issue.

Virginia Prescott: [00:13:23] What would slashing aid mean for the U.S. and the countries to which we provide aid?

Brian Atwood: [00:13:30] The one thing one thing it means is that other countries are going to say OK if the United States isn't going to be a leader then we're not going to increase our foreign aid programs. I mean you mentioned before that the United States provides more aid than any other country but we provide less as a percentage of our gross domestic product than any other country by far. If you look at that list of donors that I mentioned earlier we're at zero point one percent whereas the U.N. standard for foreign aid is zero point seven percent of your GDP per capita. So the United States hasn't really been the number one donor given our large economy. And there are so many benefits that I'm not suggesting that we go to zero point seven percent because that would be a 10 fold increase in our foreign aid program. I'm just suggesting that what we do now is adequate and it is adequate to encourage others to share the burden.

[00:14:30] And if the overall amount of money that is being put into official development assistance falls from its current 150 billion dollars to under a hundred or whatever it's going to have a major impact on the seven point five billion people that live on this earth.

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Made possible in part by the Corporation for Public Broadcasting.

The CIA

The Central Intelligence Agency (CIA) is a U.S. foreign intelligence service. It was created in the wake of World War II and Pearl Harbor, at the dawn of the Cold War. But the agency's record and methods are controversial. What is the purpose of the CIA and what is the role of espionage within a democracy? 

Journalist Tim Weiner joins us to trace the inner workings and history of the CIA.  He is the author of Legacy of Ashes: The History of the CIA..

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TRANSCRIPT

NOTE: This transcript was generated using an automated transcription service, and may contain typographical errors.

Virginia Prescott: [00:00:00] Civics 101 is supported in part by the Corporation for Public Broadcasting.

INTRO: [00:00:04] Who is the current speaker of the house? Don't even know. Will they rule in the president's favor  or will they send it to the Supreme Court? You can't refer to a senator directly by their name. Congressional redistricting. Separation of powers. Executive orders. The national security Council. Civics, civics, civics 101.

Virginia Prescott: [00:00:24] This is Civics 101, the podcast refresher course on how democracy works. I'm Virginia Prescott. The CIA, the Central Intelligence Agency, calls itself the nation's eyes, ears, and sometimes its hidden hand. In movies and on TV, the CIA often runs with maximum efficiency with elite operatives trailing terrorists or conducting espionage in foreign cities. The agency's real world legacy is more complicated. With a laundry list of controversial and botched operations from the Bay of Pigs to the agency's use of torture and post 9/11 black site prisons.

Virginia Prescott: [00:01:01] So what is the CIA and what is its role in American democracy? Journalist Tim Weiner schooled us on the FBI. Now he's here as author of Legacy of Ashes: The History of the CIA, to fill us in. In his research for the book Weiner examined more than 50,000 documents and conducted hundreds of interviews with CIA veterans including 10 directors. Tim great to have you back.

Tim Weiner: [00:01:25] My pleasure.

Virginia Prescott: [00:01:27] What is the Central Intelligence Agency for? What's it do?

Tim Weiner: [00:01:31] The CIA is without question the most powerful intelligence service in the world. The CIA was created in 1947 at the dawn of the Cold War. The idea was not so much to fight the Cold War. No one knew how that could be done. But to prevent another Pearl Harbor. To allow the president the information he needed to see over the horizon. At that time America bestrode the world like a Colossus and yet we were afraid because the Soviet Union had pushed westward and taken half of Europe, consolidating its power after the defeat of the Nazis. And there were two schools of thought. One was to contain the Soviets and the other was to push them back to the borders of Russia. In these warring schools of thought was the crucible in which the C.I.A was formed.

Virginia Prescott: [00:02:41] What is central intelligence? I mean what does that actually mean?

Tim Weiner: [00:02:47] The United States had never had a peacetime intelligence service. Now we were new  a t this. The Russians had been at it since Peter the Great. The British, since Queen Elizabeth the first. And the Chinese since Sun Tzu wrote The Art of War 26 centuries ago. But we were new at the game of espionage. And the warring schools of thought within the CIA were: are we going to simply gather intelligence, which means stealing secrets, or are we going to try not just to understand the world but to change the world through covert action, which means secret action essentially designed to change the course of history. The more aggressive "change the world" faction won out.

Virginia Prescott: [00:03:45] Who sets the budget for the CIA?

Tim Weiner: [00:03:47] The president requests and the Congress approves. It has rubber stamped increases in the intelligence budget, what's called the black budget. Which has doubled and tripled and quadrupled since 9/11 to the point where, and this budget is secret by the way, but it currently is an estimated 60 billion dollars a year. Now that's half the size of the entire military and espionage budget of Russia.

Virginia Prescott: [00:04:18] So 1947. Harry Truman is president. This is post-war America. The Soviet Union gaining power and moving westward. There is an argument for needing peacetime intelligence in order to either contain or to push back the Soviet Union. Were there arguments against having what is in effect a secret police agency in the United States?

Tim Weiner: [00:04:45] Well the CIA has no police powers within the United States. It is a foreign intelligence service. That's in its charter. Latterly, it would be discovered that the CIA had been spying on Americans and violating its charter. But the great fear about the CIA was best expressed by the Secretary of State Dean Acheson who said these guys will be up to things that the president will never know about and there will be no way of controlling what they do. They'll be a loose cannon rolling around on the ship of state.

Virginia Prescott: [00:05:19] So double-dealing right from the beginning. Spies, counterspies, double agents, paramilitary launches. What gives the CIA the authority to take this kind of covert action?

Tim Weiner: [00:05:34] The CIA's charter is very short at six pages long. And there's a phrase in its charter that says the CIA could conduct quote "other operations from time to time". OK. And those other operations turned out to be the tail that wagged the dog in the late 1940s and throughout the 1950s President Eisenhower who knew a thing or two about secret military operations - he had after all organized the D Day invasion - tried mightily to get a hold of the CIA. And over the rest of American intelligence operations.

[00:06:12] But the head of the Director of Central Intelligence Allen Dulles did things that he never told the president about. And at the end of Eisenhower's eight years in office he sat down with Dulles and other military and intelligence chiefs and said, I've been trying for eight years to get this operation, American intelligence, under my command and control and I will leave to my successor, who is John Kennedy the president-elect,. I will leave my successor a Legacy of Ashes. Three months later came the Bay of Pigs.

Virginia Prescott: [00:06:48] The Bay of Pigs was far from the only controversial operation. There are cases of American spies disappearing in the Soviet Union, of the Iran Contra affair, for example... The hostages taken in Iran unbeknownst to intelligence services. Why so many missteps?

Tim Weiner: [00:07:06] This tug of war within the CIA--are we going to try and know the world or are we going to try and change the world? - never resolved itself until the Cold War was over. What you have is a series of... For example coups. We overthrew the government of Guatemala and its freely elected leader. We overthrew the government of Iran and its freely elected leader under Eisenhower in the 50s. And these were deemed great successes. And the CIA thought it could successfully change the world. Well those two early successes were not matched as the years went by. The failure of the Bay of Pigs invasion led to attempts to assassinate Fidel Castro, which were wild schemes. An exploding conch shell that would kill him when he was scuba diving. A poisoned cigar. A poisoned ice cream. This led to, you know, well it was just a series of failures.

[00:08:13] Now at the same time the CIA had developed the  U 2 spyplane which looked down on Cuba in 1962 and saw that there was a Soviet military installation with nuclear missiles 90 miles from the American mainland being constructed. And that intelligence derived from technology more than spies basically prevented the threat of World War III. So you have to measure the successes of intelligence versus failures of covert action. And it is a decidedly mixed record. But the point is a superpower with a standing army has to have intelligence. Otherwise you are flying blind.

[00:09:01] On the intelligence gathering front which I would argue is much more important than the covert action front. The great failure during the Cold War was we never really had great spies American spies inside the Soviet Union. So you know in the 1980s as the spy networks fell apart we had to rely on our spy satellites who looked down at the Soviet Union and counted how many missiles they had. But that is not the true measure of strength of a country. Had they looked at the right things, potatoes rotting in the field because there was no gasoline for the trucks to take them to market, they would have seen the Soviet Union was very weak and that is why the collapse took America by surprise. Now in this day and age the CIA doesn't have one big target. One main enemy. It has endless enemies and the agency is spread mightily thin. Trying to know what's going on in the world. You need intelligence.

Virginia Prescott: [00:10:13] The CIA missed the terrorist attacks of September 11th. How did that happen?

Tim Weiner: [00:10:19] Going back to the beginning when the rationale for the CIA was to prevent a second Pearl Harbor. Now came the second Pearl Harbor. An attack on the United States directed by terrorists. The proximate cause of the success of the 9/11 attacks was a failure of the FBI and the CIA to work together. Al Qaeda had people in this country to hijack the planes. Once they were in this country, it largely fell to the FBI to detect their presence and to track them. The impetus behind Al-Qaeda overseas was the responsibility of the CIA. And these two agencies famously in competition since 1947 would not and could not share intelligence and work together. Like Pearl Harbor, the bits and pieces of the puzzle were all there but nobody put them together.

Virginia Prescott: [00:11:21] So what does Gina Haspel being nominated to replace Mike Pompeo as director of the CIA, what does that show you or eveal to you about where you think the CIA is now focusing its operations?

Tim Weiner: [00:11:35] It's important to understand that the CIA has to report to the president. It's the president's secret army. It's the president's intelligence service. And Donald Trump has explicitly endorsed torture. The CIA carried it out on the secret but explicit orders of President George W. Bush. Now in the nomination of Gina Haspel to become head of the Central Intelligence Agency who in the course of a distinguished 30 year career also ran one of the black sites in Thailand where suspected terrorists were tortured and latterly in 2005 presided with her boss over the destruction of videotapes of torture. So presumably she has an open confirmation hearing.

Tim Weiner: [00:12:33] We will for the first time in public seriously address the moral aberration of the CIA on orders from President Bush torturing terror suspects.

Virginia Prescott: [00:12:48] This idea of covert operations, the use of torture, paramilitary forces used to fight on foreign soil in wars not declared by Congress. It's difficult to understand the place of the CIA with in a democracy, within a constitutional framework.

Tim Weiner: [00:13:08] This is the constant tug of war that has been going on since the CIA was created more than 70 years ago. If you're a superpower you need intelligence. If you are a democracy you presumably operate on certain principles. Now what the CIA does overseas is illegal. Espionage is illegal everywhere. OK. It is punishable by imprisonment and sometimes death. You're recruiting people to commit treason. OK. The CIA officer overseas is a species of legal criminal in that what he or she does is authorized by presidential authority. But what is done overseas is a crime and a serious crime. Walking this tightrope has been very difficult for Americans. It goes to who we are. Do we need secrecy and deception to survive in this world? I think that's a settled issue. We do. When intelligence succeeds it can save lives. When intelligence fails people die. We want it to succeed. And we want for example to avoid a third Pearl Harbor. Dwight Eisenhower once called intelligence a distasteful but necessary function of American government. And you know I have studied the CIA for more than 30 years. When I was young I came into it thinking, well the secrecy and democracy are irreconcilable. The problem is we have to reconcile them.

Virginia Prescott: [00:15:08] Tim Weiner. Thank you so much for speaking with us.

Tim Weiner: [00:15:10] My pleasure.

Virginia Prescott: [00:15:19] That is it for Civics 101. This episode was produced by Justin Paradis. Our executive producer is Erica Janik. Music from Broke for Free. If you've got a Civics 101 question top secret or otherwise, give us a call at 202-798-6865. You can find us online at civics101podcast.org and on Twitter @civics101pod. I'm Virginia Prescott. Civics 101 is a production of  N ew Hampshire Public Radio.

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Made possible in part by the Corporation for Public Broadcasting.

The Americans with Disabilities Act

On today's episode: How does the government look out for people who use a wheelchair, are deaf or blind, or have other disabilities? What forms of discrimination do people with disabilities face, and what did it take to get protections passed into law? How well are businesses complying with those protections? We spoke with Lennard Davis, professor of English at the University of Illinois at Chicago and author of Enabling Acts: The Hidden Story of How the Americans with Disabilities Act Gave the Largest US Minority Its Rights.

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TRANSCRIPT

NOTE: This transcript was generated using an automated transcription service, and may contain typographical errors.

Civics 101

EP 113: The Americans With Disabilities Act

Virginia Prescott: [00:00:23] This is Civics 101. I'm Virginia Prescott. Nearly three decades ago the Americans With Disabilities Act became law. It was a huge piece of legislation affording protections and accommodations for millions of people. But how did the change life for the disabled in the United States and has it done what advocates hoped it would do. And what are the challenges to the FDA. Joining us today is Lennard Davis. He's a Disability Studies specialist and author of a book on the history of the ADA. Lennard, thank you so much for joining us.

Lennard Davis: [00:00:56] Thank you for having me.

Virginia Prescott: [00:00:58] Broadly, what was the intention of the Americans With Disabilities Act?

Lennard Davis: [00:01:01] Well the intention was to provide the same civil rights that other groups had had attained at that point. People of color, people national origin, ethnicity, and women were already, had were written into the law to have their civil rights laid out and clearly stated. But people with disabilities felt while the now their time had come for such a legislation the feeling was that there was an act was needed to bring to the general public's attention the discrimination that people with disabilities faced.

Virginia Prescott: [00:01:36] As a Civil Rights Act, how does it compare to the 1964 Civil Rights Act?

Lennard Davis: [00:01:42] Yeah that's an interesting question because the '64 act was dramatic and is well-known by everybody because it crossed an important threshold especially for African-Americans in the United States but also for other minorities. And it basically said hey you can't discriminate against people based on their race, national origin, skin color. The interesting thing about that act is it actually was at the time a much less inclusive act, much less broad act than the Americans With Disabilities Act of 1990. So it covered certain areas but certainly not as much and wasn't as grand and sweeping and I think people don't quite realize that the Americans With Disabilities Act was actually the broadest most sweeping civil rights legislation ever passed that covered the most number of people.

Virginia Prescott: [00:02:35] So how does it protect or provide for people with disabilities?

Lennard Davis: [00:02:40] There are several different areas that the Act covers. One is employment. In the area of employment, you can't be discriminated against for being a person with a disability if you're otherwise qualified for the job. In the areas of housing, education and public accommodations you can't be discriminated against. Barriers need to be removed and the world needs to be accessible. That's also true for public transportation as well as private transportation and railroads buses paratransit vehicles even taxis to some degree nowadays. So and then it also covers the area of telecommunications so that that people who are have hearing disability or visual disabilities can have equal access to a means of telecommunication. Those are the main areas that it covers.

Virginia Prescott: [00:03:34] Does the ADA specifically protect against abuses as well as upholding or enforcing protections?

Lennard Davis: [00:03:42] OK. This is an interesting question in terms of the way the law works.So unlike other laws there is no central bureau of disability protection where someone could go and complain about something that happened or didn't happen. And the only way that this law gets activated is by a lawsuit. But it has a cautionary effect. In other words if you're a business if you're a public accommodation owner of a movie theater you know that the building needs to be accessible and not just the building but whatever you, like in the case of a movie theater it needs to be accessible for hearing people, deaf people, or blind people. And if you don't do it you know that you run the risk of being sued. So even though not every single case involves a lawsuit the cautionary effect of the law in general is one that makes people understand that they need to provide accessibility and accommodation.

Virginia Prescott: [00:04:38] Can you give us more examples of that. What was life like for a person with a disability before the act.

Lennard Davis: [00:04:44] Well it depends on the disability but let's say you know for example imagine a world, and that world really existed say in the 1950s and 60s, if you were a wheelchair user for example. You know there were no curb cuts so you would if you were living at home you would have to go around the block maybe five or ten times without being able to cross the street

Virginia Prescott: [00:05:07] Because your chair couldn't. You couldn't go over the curb

Lennard Davis: [00:05:10] You couldn't go over the curb. But let's say you wanted to go to work you couldn't go to work because transportation was not accessible. So you basically couldn't work if you were a deaf person and my parents were both deaf so I remember this very well. There was no telephone service. You there was no way you could communicate with the world or with you. You know I remember as a kid that you know and people wanted to come and visit my parents they had to write a postcard and say when they were coming my parents had to write a postcard back and say okay that time is good. And then you had to wait for the person to show up because you know deaf people couldn't hear the bells. And so life was very limited and very prescribed for many many people with disabilities.

Virginia Prescott: [00:05:56] So tell us a little bit about the origins and who specifically was working to get this passed.

Lennard Davis: [00:06:02] One very important thing is that people who have disabilities in the past didn't necessarily see themselves as allied with other people who had disabilities. So if you were blind you had no natural inclination to team up with people who are a deaf. Or if you were a wheelchair user you didn't necessarily see yourself as linked up with someone who had depression. So what one of the first things that had to happen were the various disability groups had to come together into a meshed political entity that had some power. And that happened gradually over time and I detail it in the book. But probably the most important event were the demonstrations around Section 504 of the rehab Act. And Section 5 0 4 what you just need to know is that it was 44 words that somebody stuck into the bill and nobody knows who it was who stuck it in.

Lennard Davis: [00:06:52] That basically said that no otherwise qualified handicapped person should be discriminated against if they're otherwise qualified. So in doing that there were regulations written up and it took like seven years from Section 504 for the regulations to be passed. People with disabilities became very impatient. They began to protest. They occupied a federal building in San Francisco and other buildings around the country. And at the end of that point the regulations were passed. But it's a kind of watershed moment for disability activism. There was also other activism around transportation and there's a group called ADAPT which were sort of like the Hells Angels of the disability movement. They were you know guys and women would show up and they had you know they were dressed like Hell's Angels they were dressed like hippies they would chained themselves together to block buses that were inaccessible from going forward. And that group had a very big impact because transportation as I said before is a key issue especially if you have a mobility impairment. So there's a lot of political activity around, preceding the idea.

Virginia Prescott: [00:08:08] So there are a lot of movement for it. What were the arguments against the ADA?

Lennard Davis: [00:08:13] It's interesting who opposed it. Unlikely sources. Universities, churches and synagogues, and businesses.

Virginia Prescott: [00:08:22] On what grounds?

Lennard Davis: [00:08:24] Yeah they all had a big stake in keeping buildings the way they were.

Lennard Davis: [00:08:28] You know lots of money are spent with all of those organizations in terms of buildings that the churches wanted to keep the state out of it want to keep the separation between church and state and businesses were really you know annoyed about the fact that they would have to make structural changes and they and then possibly be sued if they didn't. And that was a big issue.

Virginia Prescott: [00:08:52] So structural changes like ramps for wheelchair accessibility bathrooms that accommodated in some cases I'm guessing signs in Braille that kind of thing?

Lennard Davis: [00:09:00] Yeah. And by the way even though the law exists there are still many places in the United States that are inaccessible in universities for example because the law carved out made carved out a remedy for if places had historical value. So I was just on a campus recently and a disabled student was saying she wanted to study chemistry there but couldn't get into the labs.

Virginia Prescott: [00:09:27] Were any special dispensations then made for those groups that oppose like churches synagogues universities?

Lennard Davis: [00:09:34] Yes, churches are carved out from the ADA, it does not apply to them.

Virginia Prescott: [00:09:37] So that's in terms of structure. What does that mean in terms of employment for example?

Lennard Davis: [00:09:42] Everything. They're completely carved out from the idea.

Virginia Prescott: [00:09:46] How did lawmakers at that time define disability, anything you know excluded from the disabilities covered under the act?

Lennard Davis: [00:09:54] Yeah. Those are two questions that are interesting. The definition in the original law turned out to be a big problem in court. So the original definition was what they called the three prong definition and it said that you had to be a person who had an impairment in one or more of life activities. That's how they defined disability, an impairment in one or more life activities. If you were, had a history of that but you no longer have that. And then the third prong is that if you are regarded as as having it.

Lennard Davis: [00:10:24] So let's say you didn't have a disability like if you let's say you were gay and you didn't have disability but you were assumed to have AIDS at the time. That would protect you under the Act. So there's those issues about how that are defined. What was carved out were any disabilities that were morally reprehensible particularly to certain senators like Jesse Helms. So anything to do with drug use, pedophilia, alcoholism any of the things that might be considered disability were not allowed in.

Virginia Prescott: [00:10:57] So the ADA covers both mental and physical disabilities, correct?

Lennard Davis: [00:11:01] That's correct.

Virginia Prescott: [00:11:03] And they don't have to be permanent is what I'm hearing from you.

Lennard Davis: [00:11:06] That's correct.

Virginia Prescott: [00:11:07] So did people with disability experience a change in their daily lives after the ADA passed?

Lennard Davis: [00:11:14] Yes I think so. I mean you know a number of the areas in order to get the bill passed there were lots of compromises made and some of them extended out five years 10 years when things would come into play. But basically the world has changed. I mean you know if you look around most buses and public transportation are accessible now, that was, and that was really fought by Greyhound for example who said that they would go out of business if they had to have lifts on their buses or kneeling buses. So yeah the world definitely has changed. I mean I think people now with disabilities feel confident in referring to referring to the law to provide them with access and accessibility. But you know there's an attitudinal issue that laws can't deal with and that has to do with shunning you know unconscious bias, a conscious bias that's not you know sort of detectable. Those are areas that are, a law can't really touch.

Virginia Prescott: [00:12:15] Well it's funny that you talked about previous legislation being for the handicapped and now we don't use that term anymore. We've changed the way that we talk about people with disabilities mental or physical disabilities. And you you wrote a book called Enforcing Normalcy. So how do you think the ADA has actually changed the way that disabled people are regarded in American culture?

Lennard Davis: [00:12:42] It's hard to say. You know I mean the more that laws are made that subsuste on accessibility the better that is. I mean but there's a backlash. You know I hear all the time people complaining particularly contractors about how they have all these regulations they have to do when they build new housing. Some see it as a good thing other people don't. So there can be resentment. There might be resentment for people who bring their dogs onto airplanes. There is, so some things have changed. I think we're, you know I think that a lot of that work can't be done by the law that it has to be done in the sociocultural context. We need to see more disabled people in important roles in TVs and movies that don't spotlight their disability particularly, they're just there they just happened to be there. You know people on their own need to be more open in terms of the friends that they have and the people that they feel comfortable or not comfortable with. And as I said that's something that a law can't touch.

Virginia Prescott: [00:13:42] All right so contractors having to deal with red tape in their words is one thing but how about for people with disabilities. Any complaints that there are downsides. I mean I've read things about their, say it's harder to get employed because employers think it costs more for example.

Lennard Davis: [00:14:01] That might be the case and then you know then then you would have to go to the EEOC or some agency and say that you believe that that happened, very hard to prove that. I think most people that I know who have disabilities are happy that the ADA is there. They don't see it as a magic bullet. They see it as you know the way some people have put it is look it doesn't change the vast structure of America. It just allows people with disabilities to be exploited in the same way that everybody else is.

Virginia Prescott: [00:14:32] The current administration has been focused on rolling back regulations on a lot of different fronts. Has that conversation touched the ADA and any indication it could be less stringent?

Lennard Davis: [00:14:42] Not only is it a hint a month ago Congress the House passed a bill H.R. 620 I believe which would roll back, what essentially would eviscerate the ADA. And this goes back to the issue about businesses. Businesses have always resented the fact that they could be sued and they've been trying to create a buffer. So that the law says essentially that a person who has been discriminated by a business like a hotel for example that doesn't have ramp would have to wait 120 days for the hotel to fix the problem and then if they didn't fix it they could bring a lawsuit. And this is friendly to the businesses but devastation to the law.

Lennard Davis: [00:15:25] Because remember when I was talking about the cautionary nature of the law which says you can be sued. This essentially is a get out of jail card. You know you now can you can remedy the situation so why bother fixing it. Luckily the Senate isn't going to support that law, but it's a matter of time because businesses do have this gripe about the ADA.

Virginia Prescott: [00:15:46] Lennard Davis pleasure speaking with you thank you very much.

Lennard Davis: [00:15:49] You're welcome.

Virginia Prescott: [00:15:50] Lennard Davis he's a Disability Studies specialist and author of several books including enabling acts the hidden story of how the Americans With Disabilities Act gave the largest U.S. minority rights. You can learn more about the way that the country defines and defends disability by subscribing to extra credit. That's our newsletter at Civics 101 podcast dot org and you can send us an e-mail or a voice memo asking your questions about the way that our democracy works or doesn't. That address again Civics 101 podcast. Org. This episode was produced by Hannah McCarthy. Our staff includes Ben Henry, Nick Capodice, Justine Paradise, Jimmy Gutierrez and Taylor Quimby. Erika Janick is executive producer. Music from Brooke for free. I'm Virginia Prescott. Civics 101 is a production of new Hampshire Public Radio.

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Made possible in part by the Corporation for Public Broadcasting.

The Eighth Amendment

On today's episode, the Eighth Amendment grants us the right for protection against excessive bail, fines, or cruel and unusual punishment. But how do we define cruel and unusual? And how has that definition changed over the course of history? Is it still "an eye for an eye" out there? Walking us through everything from unreasonable bail to capital punishment is John Bessler, Associate Professor of Law at the University of Baltimore and Visiting Scholar at Minnesota Law School.

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TRANSCRIPT

Civics 101
Episode 112: The Eighth Amendment

CPB: [00:00:00] Civics 101 is supported in part by the Corporation for Public Broadcasting. 

Introduction: [00:00:05] Who is the current speaker of the house? Don't even know. Will they rule in the president's favor or take it to the Supreme Court? You can't refer to a senator directly by their name. Congressional redistricting Separation of powers. Executive order. National security council. Civics -- Civics -- Civics 101. 

Virginia Prescott: [00:00:24] I'm Virginia Prescott and this is Civics 101, the podcast refresher course on the basics of our democracy. The Eighth Amendment of the Constitution's Bill of Rights forbids excessive bail, fines, or cruel and unusual punishment. But how much is too much? And how has the meaning of those words changed since the days of the stockade, chain gangs and eye-for-an-eye codes of justice. Joining us for a lesson in crime and punishment is John Bessler who teaches at the University of Baltimore and at Georgetown Law. He's a visiting scholar at Minnesota Law School. John thanks so much for joining us. 

John Bessler: [00:00:57] Thank you for having me. 

Virginia Prescott: [00:00:58] What does the Eighth Amendment say? 

John Bessler: [00:01:00] Well the Eighth Amendment is just 16 words, very short but it's generated enormous controversy over the years and it says that excessive bail should not be required nor excessive fines imposed nor cruel and unusual punishments inflicted. So that's the the basic text of the Eighth Amendment. 

Virginia Prescott: [00:01:16] So I think the sticking point here is often defining what cruel and unusual means. But let's start with why both. 

John Bessler: [00:01:24] Well there's a lot of controversy actually about that. Some people view it as a kind of a unitary concept cruel and unusual meaning something sort of inhuman or inhumane. 

[00:01:35] But some scholars say well we should really read them separately and cruel implies kind of a moral concept of cruelty. How do you treat somebody and unusual is defined as it has been long defined in English law as sort of uncommon or rare. And so that has a more of a gaging what's happening right now with particular punishment to see whether or not it's unusual. And actually there's a lot of different variations on this so the U.S. Constitution's Eighth Amendment says that cruel and unusual punishments are prohibited. But some states and actually the Northwest Ordinance refer to cruel or unusual punishment. So it's kind of a conundrum for scholars to decide how to actually read that clause. And jurists and scholars have both made a lot of arguments about what it actually means and there's been a lot of litigation over it. 

Virginia Prescott: [00:02:26] What are some examples are hypotheticals of what is considered a cruel punishment? 

John Bessler: [00:02:31] The cruel unusual punishments prohibition actually comes from the English Bill of Rights which comes from the late 17th century. And at that time -- William Blackstone later refers to this, he's writing in the 18th century he's writing about the English prohibition on cruel and unusual punishments. And he talks about how there is limits to the arbitrariness of the law and that the cruel unusual punishments clause sort of prohibits these wholly arbitrary kinds of punishments. One of the earliest cases in English law was of a person named Titus Oates. Titus Oates was a religious figure and he had provided false testimony perjured testimony that resulted in a number of people being executed. 

[00:03:12] But because he was a member of the clergy at that time he was not subjected to the death penalty and he was ordered to be whipped and to be put in the pillory and to be in prison for life in England. And there was a big controversy in the English Parliament then after his sentence and after the English Bill of Rights went into effect in 1689. That his punishment, that is, Oates' punishment, was unchristian and was cruel and unusual. And so that was the debate at that time about whether somebody who had been put in the pillory, been subjected to whipping for his entire life, should that sentence be set aside essentially. 

Virginia Prescott: [00:03:53] So obviously the standards change over time. You know somebody's being drawn and quartered at the time of the writing of the Constitution or in a stockade or hanging or dragging around chained. Who makes that decision of what is cruel and unusual? 

John Bessler: [00:04:08] Well the in the American legal system the U.S. Supreme Court is the final arbiter of what the U.S. Constitution means and following the adoption and ratification of the 14th Amendment in 1868 that applied the Eighth Amendment against the states. So if the U.S. Supreme Court declares that a punishment is unconstitutional it applies not just against the federal government but also against the states. 

Virginia Prescott: [00:04:30] Why was this amendment put into the Bill of Rights? 

John Bessler: [00:04:34] Well the amendment was put in the Bill of Rights because it was seen as an important constitutional protection for people. So there was a big debate about whether or not the should U.S. even have a bill of rights because people thought well we have all these natural rights do we really need a Bill of Rights? 

[00:04:49] And Jefferson convinced Madison that we needed to have a bill of rights and this was seen as one of the most important protections for people in the United States is to have this protection against excessive bail, excessive fines and against cruel and unusual punishments. 

Virginia Prescott: [00:05:01] We have focused on cruel and unusual punishment so far, but that first part: excessive bail shall not be required nor excessive fines imposed. So bail the purpose of it is to keep you in the system, so you come back for trial. 

John Bessler: [00:05:17] That's right. But not everybody is eligible for bail so it's been ruled by the U.S. Supreme Court that if you're a danger and would pose a danger you may not be eligible for bail so you do see people who are charged with murder for example who are not released on bail. And the Supreme Court says that that's OK because we need to protect the community. Not everybody's eligible for bail. But if you are eligible for bail, the law and the Constitution states it should not be excessive bail. 

Virginia Prescott: [00:05:44] There has been a movement and legislation either proposed or passed just recently in Atlanta to reform the way bail and fines are paid. So what is at issue there? 

John Bessler: [00:05:56] Well I think what's at issue and what we are seeing is really a debate around the country on this issue is that if somebody is charged with a crime and they don't have the financial means to pay bail or to pay a fine then the consequences of that may be that the person remains in the system, remains incarcerated and obviously being incarcerated has a lot of consequences. So, you are unable to keep a job. 

[00:06:20] And so this is a know important debate that's going on right now about bail reform and people I think are paying attention to it and it's been an issue that really hasn't been in the news until very recently. 

Virginia Prescott: [00:06:30] How about for fines, is excessive or unusual based on the price or the actual amount or excessive based on money paid for a crime? 

John Bessler: [00:06:39] The courts are the ones that decide what is excessive and you can imagine it's a very subjective concept to decide what is excessive bail, what is excessive fines, and those are the kinds of decisions that judges have discretion to to set bail to set the level of fine and then ultimately some cases get appealed all the way up the U.S. Supreme Court and the Supreme Court would ultimately determine whether or not there was an excessive amount that was for example charge for up for a fine. 

Virginia Prescott: [00:07:14] Well I'm thinking of things that I've read about you know grossly overcrowded prisons really bad conditions inside of prisons or how prisoners were treated by Sheriff Joe Arpaio and his deputies. The question is do convicted criminals have all constitutional rights? 

John Bessler: [00:07:30] They don't have all constitutional rights obviously you're deprived of your liberty when you're convicted of a crime and you're sent to prison. You can't go out of the prison. You're stuck there. But Justice Kennedy for example has written that there are certain rights that prisoners are not deprived of one of those that he talks about is the right to human dignity. And so human dignity has been described as the touchstone of the Eighth Amendment by the Supreme Court itself. 

[00:07:53] And so when you have you know horrendous prison conditions the Supreme Court does step in sometimes and so for example in a case called Brown versus Plata in California the Supreme Court said that you know California prisons are incredibly overcrowded there's inadequate medical care for people, inadequate psychiatric care for people and for that reason declared that the current state of the prison conditions in California actually violates the the cruel unusual punishments clause. 

Virginia Prescott: [00:08:22] There is in American prisons a disproportionate percentage based on the population of minorities incarcerated. Is this considered an Eighth Amendment issue? 

John Bessler: [00:08:33] Well it is. I mean I think for me it is certainly the U.S. Supreme Court in a death penalty case called McCleskey versus Kemp actually rejected reliance on use of statistics to prove that there was an Eighth Amendment violation and -- or equal protection violation of the Constitution based upon those statistics which showed that those who kill whites are much more likely to be executed than those who kill blacks for example. But the equal protection clause which I should mention is part of the Fourth Amendment -- the 14th Amendment guarantees equal protection of the laws. And from my research I discovered that the 14th Amendment was actually intended to constitutionalize the Civil Rights Act of 1866 and that act required like punishments between blacks and whites and we just simply haven't seen that in the administration of the death penalty certainly we see that there's study after study shows that those who kill whites are much more likely to get the death penalty than those who kill blacks. 

Virginia Prescott: [00:09:30] And the Eighth Amendment is primarily discussed in context of the death penalty. So when we talk about it, and how it affects us and our culture in society today is it really about capital punishment? 

John Bessler: [00:09:42] It's not entirely by capital punishment but that's where I think the public attention has been with respect to the battle over the meaning of the Eighth Amendment but it doesn't say in the Eighth Amendment that it only applied with certain punishment, it applies any kind of punishment. So a legislature can enact a punishment but the punishment cannot be itself cruel and unusual and so we have seen though a lot of litigation over capital punishment and that's really the modern era of capital punishment really begins at least before the U.S. Supreme Court in the 1970s. So in a case called Furman versus Georgia in 1972 the Supreme Court declared in a six sentence per curium opinion by the court that the the use of the death penalty violates the Eighth and 14th Amendment of the Constitution. And what happened then was over 30 states reenacted death penalty statutes and in 1976 the Supreme Court declared that the death penalty was not unconstitutional in Gregg versus Georgia. And so you have a situation now where the Supreme Court has been taking up issues relating to capital punishment but not really getting at the core of whether the penalty itself is unconstitutional so the Supreme Court has declared the death penalty unconstitutional for the insane, for juveniles, for those with intellectual disabilities, for those who played maybe a minor role in a particular crime. And so the Supreme Court is kind of tinkering around the edges with respect to the death penalty but hasn't addressed, again, like it did in the 1970s the core issue of whether the death penalty itself is actually a cruel unusual punishment. 

Virginia Prescott: [00:11:18] When does the Eighth Amendment apply and when doesn't it? 

John Bessler: [00:11:22] The Eighth Amendment Applies in a time that there is a punishment imposed. If it's imposed by the federal government, Eighth Amendment is potentially applicable to judge whether that punishment's unconstitutional. Same thing is true at the state level because of the 14th Amendment applying the eighth Amendment against the states. There are some areas where the Eighth Amendment does not reach. And so there was a case actually the Ingraham case which said that corporal punishment in schools is something that the Eighth Amendment was not designed to deal with. Now that's interesting because the like in South Africa the Constitutional Court there has actually outlawed corporal punishment within schools. So there's a difference in how different courts around the world treat that particular issue. But there's also of course other laws that deal with that issue. And so you know if somebody a school were to use corporal punishment that could be something that they could be sued for. And in court using other kinds of tools other than the Eighth Amendment but the Eighth Amendment applies to review decisions and finds those willing to bail and those relating to punishments in general. 

Virginia Prescott: [00:12:26] John Bessler, Are there any issues that we haven't talked about that you think are going to be litigated in the future perhaps based on Eighth Amendment? 

John Bessler: [00:12:34] Well I think one of the issues that you'll see is the Supreme Court's already declared that the execution of the intellectually disabled to be unconstitutional. I would expect that you might see the court take up a case at some point about those with severe mental illness. Might also be an issue that you might see. 

[00:12:52] I also think that there's going to be a continual sort of evolution on this issue because the standard that the Supreme Court itself has used since 1958 to interpret the Eighth Amendment is what's called the evolving standards of decency of a maturing society. And so as the as the world changes as American culture changes the standard that the court has used for decades actually invites the court to reassess whether or not particular punishments are appropriate. And right now you see Europe is already a death penalty free zone. There's actually two protocols in Europe that bar the use of the death penalty in peacetime and in wartime actually. South Africa's Constitutional Court declared the death penalty unconstitutional back in the mid 90s. And you have countries like Rwanda, Mongolia that have gotten rid of the death penalty. And so the U.S. is really in terms of a highly industrialized Western countries really alone in this. Japan still uses death penalty occasionally but it comes from a different cultural perspective than we do. So the place where we got the cruel unusual punishments clause from England no longer uses the death penalty and as long abandoned the death penalty. And so I think there will be a discussion at some point about whether or not the death penalty is appropriate before the U.S. Supreme Court again. Justice Breyer and Justice Ginsburg have actually asked for a full briefing on that issue. There is simply not enough votes yet to grant cert on that issue. You need four votes on the Supreme Court to grant cert, to grant review of the case. But once those four votes are there I think the court will eventually take up this issue and we'll have another discussion before the U.S. Supreme Court about this. 

[00:14:23] And it will be informed I think by the increasing arbitrariness of the death penalty along with the -- the racial discriminations. Those issues I think are still appropriate and ripe for the Supreme Court to take up again. 

Virginia Prescott: [00:14:37] John Bessler he's associate professor of the University of Baltimore, adjunct professor at Georgetown Law School and visiting scholar at the Minnesota Law School. A lot of credits there and thank you so much for joining us. 

John Bessler: [00:14:49] Thank you. 

Virginia Prescott: [00:14:50] This episode of Civics 101 was produced by Ben Henry and Hannah McCarthy. Executive producer is Erika Janik. Our music is from Broke for Free. If you'd like to know more about unusual punishments from the pillory the ducking stool, check out our Extra Credit newsletter. You can sign up at civics101podcast.org. And that's the place to submit your questions about how our democracy works either by e-mail or send us a voice memo. Again that civics101podcast.org. Civics 101 is a production of New Hampshire Public Radio. 

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Made possible in part by the Corporation for Public Broadcasting.

The Department of Justice

The Justice Department seems to always be in the news - from the White House's public criticism of Attorney General Jeff Sessions, to the President's firing of James Comey - but what's behind the headlines? What exactly does the DOJ do from day-to-day? And what's the agency's relationship between other branches of government? NPR Justice Correspondent Carrie Johnson joins us to help us learn more.

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TRANSCRIPT

NOTE: This transcript was generated using an automated transcription service, and may contain typographical errors.

Civics 101

Episode 111: The DOJ

Virginia Prescott: [00:00:00] I'm Virginia Prescott and this is Civics 101. The podcast refresher course on the basics of how our democracy works. The Department of Justice has been all over the news recently from investigating use of force by police departments, to the president's public criticism of his own attorney general, to the firing of FBI Director James Comey. So we weren't surprised by the multitude of questions we've received about the Department of Justice. Listeners asked, What does the DOJ do from day to day? What falls under the DOJ? And what is its relationship between the DOJ and other branches of government? Well we have just the person to help parse out these questions. CARRIE JOHNSON is Justice correspondent for NPR. So great to have you on civics 101.

Carrie Johnson: [00:01:08] My pleasure. Happy to be here.

Virginia Prescott: [00:01:10] So listener question what does the Justice Department do?

Carrie Johnson: [00:01:14] Actually a lot of things. The Justice Department includes prosecutors it includes a host of agents agents that the FBI, agents at the Drug Enforcement Administration., U.S. marshals, agents at the Bureau of Alcohol Tobacco Firearms and Explosives, and then immigration judges as well. So the DOJ spans a huge huge portfolio about 170000 people total and an annual budget 28 billion billion that's billion with a B.

Virginia Prescott: [00:01:44] Well so all of those agencies under the DOJ purview, what is it, if you were to say its mission? What is it?

Carrie Johnson: [00:01:52] You know since the attacks of September 11 2001 the department's primary priority has been protecting national security. But it also seeks to keep people safe from crime. It seeks to preside over a system of crime and punishment in the U.S. and it also plays a big role in incarceration because the Federal Bureau of Prisons is also part of the Justice Department.

Virginia Prescott: [00:02:18] When and why did the Department of Justice get its start?

Carrie Johnson: [00:02:22] Well, the Justice Department actually got its start properly under the presidency of Ulysses Grant in 1870 and under an act of Congress. But even before that time there was a legislation and there was an attorney general dating back to the 1700s. The attorney general mostly worked on his own but he employed a lot of private lawyers to help do litigation and as the responsibilities of this Justice Department grew bigger and bigger and that roster of private lawyers grew larger and larger. President Grant's administration decided there needed to be some kind of entity inside the auspices of the government to do more of the work. And in those early years that Justice Department did a lot of prosecutions of the KKK and other people after after emancipation who were attacking former slaves.

Virginia Prescott: [00:03:21] Civics 101 did do an episode on the attorney general, the most visible face of the department, but can you remind us of what the A.G. does?

Carrie Johnson: [00:03:30] Sure. We have had 84 attorneys general so far in in the country and at its base the attorney general at least in the modern era after Watergate has been a sort of a public face of the justice system has been in fact a cheerleader for his or her agents around the country and prosecutors and has a big external role in both explaining the justice system and reassuring the public that when federal crimes are committed that his or her Justice Department is going to get to the bottom of them find out who's responsible and punish those people appropriately. Today the attorney general is nominated by the president confirmed by the Senate member of the cabinet.

Virginia Prescott: [00:04:15] What is that relationship between the executive and the attorney general?

Carrie Johnson: [00:04:20] You know this is kind of a complicated thing because we talk about some kind of independence of the Justice Department and the FBI but they really do report to a president. And so the way it's been understood since Watergate which was a very traumatic time for the Justice Department and the FBI as well as the rest of the country since Watergate the norm has been that when it comes to policy issues the Justice Department reports too and consults with the White House and the president. So in this administration in the Trump administration that means a lot of emphasis on violent crime gangs like M.S. 13 and prioritizing immigration enforcement. Those kinds of consultations are not only necessary but considered appropriate. Where people tend to draw the line post-Watergate is when a president or anyone in the White House aside from the top lawyer in the White House the White House counsel wants to be kept abreast of specifics involving ongoing federal law enforcement investigations that has been a no no because of the potential for interference. The potential for political interference with the ongoing operations and investigations of the FBI, the ATF, the DEA, and the like. And that has been deeply frowned upon for generations now and in fact previous White Houses and previous attorneys general have instituted memos limiting the number of people in the White House who can call up anybody inside the Justice Department and ask really nosy questions about investigations.

Virginia Prescott: [00:05:55] Well last fall President Trump ratcheted up calls for the DOJ and FBI to investigate the activities of some of his political rivals Hillary Clinton namely former President Obama. So can he do that? I mean are there established checks and balances between the president and the DOJ?

Carrie Johnson: [00:06:13] While the president has a lot of power and uses it in terms of his bully pulpit on Twitter and in public statements that he makes. But even Republican veterans of the Justice Department have found some of the calls to investigate political opponents like Hillary Clinton and some of her top aides to be un-befitting of the U.S. justice system and un-befitting the system of norms that's cropped up after Watergate. There's also evidence that other people inside the White House aside from the president have been asking the Justice Department and the FBI about specifics of ongoing investigations. That is really not done in the last 40 or 50 years and every time it's happened somehow those kinds of conversations have leaked out into the press. In part I think as our release valve for folks in law enforcement and folks with concerns about this issue and the independence of the department and the FBI to let folks know that something is happening and it may not be quite appropriate.

Virginia Prescott: [00:07:17] Well I want to pick up on that because you're talking about you know the president leaning on the Justice Department to do their bidding on some level but beginning early last year and since the president and his administration have publicly and privately scolded attorney general sessions for recusing himself from the Department of Justice probe on Russian election meddling. I'm wondering since you mentioned Watergate are there any historical precedents for this kind of beef between the executive and the A.G.?

Carrie Johnson: [00:07:47] You know President Bill Clinton was never very happy with his FBI director Louis French. And he really wasn't very happy with his attorney general Janet Reno either in part because Janet Reno repeatedly exercised her authority at the Justice Department to approve the naming of independent counsels to investigate parts of Bill Clinton's White House and cabinet secretaries among other things. So there has been friction. There's been pretty intense friction between White house's and FBI in the past. I'd also point out that during the George W. Bush years folks in the White House particularly then Vice President Dick Cheney were really unhappy with the deputy attorney general. A name you all recognize, Jim Comey who went on to become the FBI director and be fired by President Trump last year. Jim Comey is deputy attorney general approved the appointment of a special prosecutor to investigate the leak of a CIA operative's identity in the George W. Bush administration. Then president President Bush and Vice President Cheney were both interviewed by that special counsel. That investigation really rocked the White House and there was a lot of friction then too. That said the level of animosity coming from the White House directed at the Justice Department and the FBI in the Trump era is something I have never seen and something most people in Washington who have been here 40 or 50 years and followed law enforcement have never seen. This is an unprecedented sustained attack on these two institutions which generally are embraced by Republicans and conservatives in Washington. Instead the figureheads at the Justice Department and the FBI have been repeatedly beaten up by the president and some of his allies. And that attack continues to this day.

Virginia Prescott: [00:09:44] Well how about changes in an administration? How does that affect the DOJ? I'm thinking about the investigations into Chicago, Baltimore other police departments during the Obama administration. Also during that administration cold cases from the civil rights era were picked up again. Did these kind of priorities carry over from one administration to the next?

Carrie Johnson: [00:10:07] Well elections have consequences and oftentimes the Justice Department swings like a pendulum. At least parts of it do when an administration changes. So for instance when he came on board Attorney General Jeff Sessions in the Trump era announced that he and President Trump viewed local law enforcement as allies and they didn't want to be meddling in the business of local law enforcement. While the Attorney General Sessions has gone on to prosecute individual police officers for breaking the law particularly for say abusing people in custody he's announced far fewer investigations of police forces as a whole systemic patterns of abuse. The Civil Rights Division is one of those areas that really swings depending on whether a Republican or a Democrat is in power. Another area like that is the environmental division at the Justice Department and to some extent the antitrust division. What doesn't tend to change that much is the bread and butter criminal law enforcement at DOJ, so too prosecutions of accused terrorists people who are accused of hate crimes and other people who break the law including run of the mill offenses those folks are generally prosecuted by U.S. attorneys around the country and those priorities don't change that much. I would add one complicating factor during the Obama years than Attorney General Eric Holder launched a big initiative to reconsider how drug criminals are punished and charged. And Holder directed his prosecutors to use more discretion in charging people with drug crimes. That memo that guidance was wiped away by Attorney General Jeff Sessions who wants to take a much tougher approach to drug criminals. It's just one year in the Jeff Sessions era a little too soon to say whether prosecutors in the field around the country are adopting those changes. But in a year and a half two years we'll be able to see whether people are going more people are going to prison and for longer terms because of drug crimes.

Virginia Prescott: [00:12:10] Carrie, you detailed some of the last you that unprecedented in decades shifts over at the Department of Justice both in its conduct and I guess priorities. Has that shift changed the role of the DOJ and the attention given to some of the other offices that it oversees because there are many?

Carrie Johnson: [00:12:29] Yeah. The responsibilities of the Justice Department are enormous. Over the last nine months or so and the focus of most media and public attention has been on Jeff Sessions the attorney general and this ongoing investigation of Russian interference in the 2016 election and as a result there's a lot less attention being paid to what's happening in the federal prisons what's happening in the in the civil rights area what's happening in U.S. attorneys offices around the country. Folks aren't spending a lot of time on those issues which is frustrating for people like new FBI director Chris Rea on the Hill this week who said everybody focuses on the two investigations they know we're doing and nobody pays attention to everything else that we're doing to keep the country safe.

Virginia Prescott: [00:13:19] You've been reporting on legal issues, the FBI, high profile trials and now the DOJ for more than a decade. What Carrie do you see here some of the biggest challenges for the DOJ moving forward?

Carrie Johnson: [00:13:33] The Justice Department and the FBI are undergoing the biggest stress tests that I've ever seen. And perhaps the biggest stress test since Watergate. The White House seems poised to continue an attack on at least some figures at the Justice Department and the FBI is basing decisions on political considerations rather than law enforcement considerations. That's something that we haven't seen at this level in decades and decades. So far the institutions have held up. I'm going to be watching to see if we get more of an outflow of people at the Justice Department and the FBI for more lucrative opportunities outside of the government trying to avoid some of these attacks by the Justice Department the Bureau the Federal Bureau of Investigation are sort of top of mind every day and no one knows. Day in and day out what might happen by the end of the day. It's just it's just a very uncertain time over at the Justice Department right now. You go into the building. It's quiet. There aren't a lot of people in the hallways and it seems to be an agency kind of crouched in a defensive position. And what's so remarkable is that they're defending themselves from an attack by their own president.

Virginia Prescott: [00:14:53] CARRIE JOHNSON thorough inside look at the Justice Department. Thank you so much for speaking with us

Carrie Johnson: [00:14:59] My pleasure.

Virginia Prescott: [00:15:00] Carrie Johnson is justice correspondent for NPR at the Washington Desk.

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The Hatch Act

Every now and again, reports come out that a public official has violated The Hatch Act - a 1939 law that prevents federal employees from engaging in certain types of political activity and speech.  Today, we'll find out what exactly is and is not allowed under the Hatch Act; who decides when the line has been crossed; and what the penalties are for violations. Our guest is Liz Hempowicz, Director of Public Policy for the Project On Government Oversight.

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TRANSCRIPT

NOTE: This transcript was generated using an automated transcription service, and may contain typographical errors.

Civics 101

Episode 110: The Hatch Act

Virginia Prescott: [00:00:24] I'm Virginia Prescott and this is Civics 101, the podcast refresher course on the basics of how our democracy works. American law makes a distinction inside the government between elected officials and federal employees. The Hatch Act was created to keep employees charged with keeping the government functioning from engaging in the kinds of political calculations and preferences that elected and appointed officials make their careers on. You may have heard of it in the news recently, since presidential adviser Kellyanne Conway was accused of violating it. One of our listeners did:.

Stacy: [00:00:58] Hi this is Stacy calling from Laguna Beach, California. I would be interested in more information on the Hatch Act. For example, is it a criminal or civil offense? And who prosecutes any wrongdoers? What is the potential punishment? Thanks. I really enjoy listening to your show.

Virginia Prescott: [00:01:18] Liz Hempowicz is Director of Public Policy for the Project on Government Oversight, or POGO. And she's back with us. Liz, great to have you.

Liz Hempowicz: [00:01:25] Thanks for having me back.

Virginia Prescott: [00:01:26] What is the Hatch Act?

Liz Hempowicz: [00:01:28] It's a law that restricts certain speech and actions by federal employees and then some state and local employees as well. And and the purpose of it and by the type of activity and speech I'm talking about is political speech.

[00:01:43] And the reason why is because you know the government is meant to work for all the people, the American people, all the taxpayers, not the people of a particular party. And so the optics of having federal employees, especially career employees, who you know are at the government for a long time not depending on who's whose party is in the White House or in Congress. You know, you don't want to have the appearance that those employees are pushing one party over the other.

Virginia Prescott: [00:02:09] It was originally called An Act to Prevent Pernicious Political Activities, which I guess kind of belies its 1939 origins. But what does it specifically forbid?

Virginia Prescott: [00:02:20] So there are two types of restrictions under the Hatch Act, and so that most federal employees fall under the like less restricted category. And then there are some that fall under the more restricted category, so less restricted employees can't run for a for a in a partisan political election. And so my question was when I first read that a while ago was, what is a nonpartisan political action? And that basically is when you're running as a representative of a party. And so there are elections where you're running as an individual and not as a Republican a Democrat or an independent. But it also restricts the use of resources like federal resources to solicit or discourage political activity or contributions and it allows for less less restricted employs a lot of it depends on where you are and what time it is when you're when you're engaging in some of these activities. So so there's a real distinction between when you're at work or using your government computer versus when you're off the clock.

[00:03:24] Now, more restricted employees are further restricted employees can't campaign for candidates regardless of whether they're out work or not at work. Whereas less restricted employees can campaign for for partisan political candidates outside of the office and off off government time.

Virginia Prescott: [00:03:41] How are those not violations of free speech? That you cannot as a citizen, even though you are and you're employed by the federal government, can't say who you want to vote for or can or put a yard sign up or put something up on your Facebook page for example?

Liz Hempowicz: [00:03:56] Yes, so there actually have been two challenges that may be against the constitutionality of the Hatch Act that made their way to the Supreme Court. And in both instances the Supreme Court ruled that there is a significant enough interest in maintaining that impartiality of the federal government and that interest overrides the small limit on on the types of speech and activity that this seeks to regulate. They did look at kind of the rules and regulations, and said that they're not overbroad or vague and that they're easy to understand, that they you know go towards the actual purpose of this and so it was ruled constitutional in both cases.

Virginia Prescott: [00:04:35] It was originally designed to block federal employees in the executive branch. Is it all federal employees now that are under this Hatch Act either in the first or second category?

Liz Hempowicz: [00:04:47] Yeah it is most federal employees that actually also covers some state and local employees. If they're if their salaries are are are paid by by federal funds.

Virginia Prescott: [00:04:57] Then who's exempt from the Hatch Act?

Liz Hempowicz: [00:05:00] The President and the vice president.

Virginia Prescott: [00:05:01] That's it?

Liz Hempowicz: [00:05:02] That's about it.

Virginia Prescott: [00:05:03] So, how about when there is a campaign event for example, you could not have your secretary of state or somebody else who was in your cabinet with you on stage supporting you?

Liz Hempowicz: [00:05:15] So there are certain, there are certain exemptions. But but overall yes, Cabinet officials are subject to the Hatch Act. There are some exemptions there, like very specific instances, but for the most part it's really you know you don't want these people in their official capacities, you know so the secretary of state going out there and saying, you know, "You need to vote for this president again in this upcoming presidential election." And I think we've seen over the last few decades we have seen some cabinet level secretaries, you know findings that they have violated the Hatch Act.

Virginia Prescott: [00:05:47] Well that, that's kind of a thing. I mean, help me understand how big of a deal this is when someone violates it. Is it the kind of thing that happens in every administration, or is it rare? So it's actually not that rare, but but one way of understanding kind of the seriousness of the Hatch Act is, and kind of the variation in seriousness of it, is looking at the penalties. And so a penalty for a Hatch Act violation can be anything from a fine, from a reprimand, to suspension, removal. A downgrade in your grade level as a federal employee. And that actually was updated in 2012. And so this is relatively new. Previously the only two options for penalties were a 30 day suspension, or removal from your position.

[00:06:33] And so I think that update to the law kind of shows that there are that there are really, there's a huge variation in violations of the Hatch Act, and so it could be something like you know, accidentally leaving on a political pin. And when you come into work and it's on your coat. That's technically a violation of the Hatch Act. It's also a violation of the Hatch Act to go on national TV as a representative of the administration and push one political candidate over another. And so if you look at those two instances it wouldn't make sense for the penalties to be exactly the same. And so it's largely up to the Office of Special Counsel who investigates these complaints against individuals and issues findings, and also maybe recommends what penalty they think would make sense.

Virginia Prescott: [00:07:18] You are pointing to what sounds like a recent case of Kellyanne Conway, senior adviser to President Trump. She did work on his campaign. She was on television a great deal. Here's the clip that pushed her over the boundaries of the Hatch Act, according to the Office of Special Counsel:

Kellyanne Conway: [00:07:33] "Doug Jones in Alabama. Folks don't be fooled. He'll be a vote against tax cuts. He's weak on crime, weak on borders, strong on raising your taxes, he's terrible for property owners. So it's doctrinaire liberal which is, why he's not saying anything, and why the media are trying to boost him."

TV Host: [00:07:51] "So vote for Roy Moore?"

Kellyanne Conway: [00:07:52] "I'm telling you that we want the votes in the Senate to get this tax bill..."

Virginia Prescott: [00:07:58] So Liz, where did Kellyanne Conway go over the line there?

Liz Hempowicz: [00:08:02] So the Office of Special Counsel found that there were two two instances in which Kellyanne Conway violated the Hatch Act, in this complaint. One was an implied endorsement of then Senate candidate Roy Moore and then the other was the other violation, was her explicitly advocating for a Senate candidate again, Senate candidate Roy Moore.

Virginia Prescott: [00:08:23] Are there officials that are charged with monitoring for Hatch Act violations, or would this charges more likely come from you know say an opposition party, or maybe an outside watchdog group like yours, Pogo?

Liz Hempowicz: [00:08:34] Yes, so many of them much of the work of the Office of Special Counsel in terms of enforcing the Hatch Act is done based on outside complaints and that could come from you know other federal employees who are witnessing things in their office or not out outside watchdog like the Project on Government Oversight. They are, the Office of Special Counsel, they are allowed to issue their own investigations and launch them on their own. But if you think about the size of the federal workforce versus the size of the Office of Special Counsel, it doesn't really make sense to have them, to hold them to be the sole arbiters of policing this bill.

Virginia Prescott: [00:09:13] It was however the Office of Special Counsel that wrote up the report saying that Kellyanne Conway did violate the Hatch Act, correct?

Liz Hempowicz: [00:09:21] Absolutely, and that was I believe based on an outside complaint.

Virginia Prescott: [00:09:30] So what does the President do now? Can he choose not to act on the OSC report?

Liz Hempowicz: [00:09:37] In one word answer, yes. It is, for employees at the White House, it is up to the president's discretion what form of punishment, if there is any punishment, they would like to see. I think, you know, earlier we saw a Hatch Act violation from Kellyanne Conway where she just received a reprimand, and that is one of the legal penalties under the law for a violation. And so that's that's well in line with it I think. I think it is, there's a growing discontent with civil society groups, and I think individual citizens as well, that that's, you know who view that as not being good enough. I think our organization is one of them. We think this is really this a serious law and it deserves serious enforcement.

Virginia Prescott: [00:10:23] Well you talk a little bit about punishment. I want to get to the other part of Stacey's question is this a criminal or civil offense?

Virginia Prescott: [00:10:30] It's a civil offense.

Virginia Prescott: [00:10:31] And who would prosecute it?

Liz Hempowicz: [00:10:33] So the Office of Special Counsel, for individuals who are outside of the White House right, because we've discussed how the president is in charge of how that is enforced, for most employees when the Office of Special Counsel issues a report and findings of a violation of the Hatch Act, they can file, they file with the Merit Systems Protection Board and then the individual has a right to respond there. And so there is a due process component to this as well.

Virginia Prescott: [00:10:58] I just want to go back to that point that we meant you mentioned about the cases challenging free speech. You know we living in the age where everybody, virtually everybody, spouts off their political opinions on social media. But for federal employees social media posts can be discovered and then suddenly maybe private action feels like a public statement. Do you think the Hatch Act has adequately addressed social media?

Liz Hempowicz: [00:11:27] Well the original law I think was written in like 1939 is when it was passed so, so social media was not was not a thing then. I do think the Office of Special Counsel has done a really good job of issuing guidance for all federal employees that interprets the law in the case of different social media activities. And they've put out you know, a short primer, a longer a deep dive, into you know what is restricted activity and what isn't. And so while the law maybe didn't didn't foresee social media I think the Office of Special Counsel is doing a really good job of making sure that federal employees aren't stuck in this gray area of what is or isn't allowed. And I just want to kind of highlight one thing about the Hatch Act. It's not meant to restrict political activity as, for private citizens. And I understand that federal employees are also private citizens and so a lot of it hinges on whether or not they're in their office using federal resources, in their federal uniforms. It's not a blanket restriction for most employees. So it is pretty narrowly tailored I think to the, to the government's interest in making sure that that it presents itself to the American people as a non partial arbiter of the laws. And of the federal resources.

Virginia Prescott: [00:12:45] I will say we've got a number of questions about the Hatch Act. While government employees may be well aware of these kinds of restrictions and they're given guidelines, about the rest of the American public? Do you think this is something they knew about?

Liz Hempowicz: [00:12:59] Probably not but I'm I'm sure they're probably learning more about it as it's in the news more and more you know. As I mentioned the Office of Special Counsel is put out put out social media guidance, but they also issue advisory opinions when individual federal employees reach out and ask, "is this is this activity restricted under the Hatch Act?" And then they post those proactively on their Web site. And so and that's open to you know everyday citizens, who aren't federal employees, to go in and I recommend that they do if they're interested in learning more about the Hatch Act. There are you know a lot lot of gray areas if you just look at the the bare bones language of the law itself, and the Office of Special Counsel has done a really good job of kind of breaking down and explaining it in a way that's very easily understandable.

Made possible in part by the Corporation for Public Broadcasting.

The Fourth Amendment

When an ordinary citizen interacts with law enforcement, it can be unnerving to realize the amount of power an officer wields: they've got the guns, the handcuffs, and the authority. But the Fourth Amendment places limits on governmental and police power. What exactly are those limits, and have they changed in the 21st century?

Cynthia Lee is a professor at George Washington University Law School and author of Searches and Seizures: The Fourth Amendment.

Correction: Cynthia Lee has written one book on the topic of the Fourth Amendment, not several, as stated in the episode's introduction. 

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TRANSCRIPT

NOTE: This transcript was generated using an automated transcription service, and may contain typographical errors.

Civics 101

Episode 109: The Fourth Amendment

[00:00:00] Civics 101 is supported in part by the Corporation for Public Broadcasting.

[00:00:05] Who is the current speaker of the House? Don't even know. Will they rule in the president's favor or will they send to the Supreme Court? You can't be referred to a senator directly by their name. Congressional redistricting. Separation of powers. Executive orders. The national security council. Civics, civics, civics, 101!

Virginia Prescott: [00:00:21] I'm Virginia Prescott and this is Civics 101. The Constitution protects us against unreasonable search and seizure. but what do those words actually mean, and how did they affect us? Bringing us through it today is Cynthia Lee. She's professor at George Washington University Law School and author of several books on the Fourth Amendment including Searches and Seizures: The Fourth Amendment. Cynthia, welcome.

Cynthia Lee: [00:00:48] Thank you Virginia. Thank you so much for having me.

Virginia Prescott: [00:00:50] So what does the Fourth Amendment say?

Cynthia Lee: [00:00:52] The fourth amendment basically protects people against having the government search their homes and private property without a search warrant issued in advance from a court.

Virginia Prescott: [00:01:02] So why do we have it? Why was this put into the Bill of Rights?

Cynthia Lee: [00:01:06] Well the colonists felt that it was really important to include a specific provision in the Bill of Rights protecting people against having their homes easily searched by government officials because back in the 1700s, the king of England would issue what were called Writs of Assistance which gave government agents really broad discretion to go into people's homes and rummage around searching for evidence of criminal activity and they didn't have to get permission in advance from a neutral party. They didn't have to show any kind of justification in advance.

[00:01:42] So the framers of the Constitution wanted to make sure that the newly formed Federal Government wouldn't be able to just come into people's homes and rummage around through people's papers and effects without having to jump through some hoops in advance. Like getting a warrant, a search warrant, from a judge or a magistrate.

Virginia Prescott: [00:02:03] So search and seizure. Let's focus on those and I know that there are broader definitions that have changed in many ways throughout the years. But could you quickly define each of those and give us an example of what a search or seizure might be.

Cynthia Lee: [00:02:16] Certainly. So let's take searches for starters. The Supreme Court has held that aiming a thermal imager, a device that can sense relative amounts of heat, aiming a thermal imager at a house constitutes a search. It has held that placing a GPS tracking device under someone's vehicle and monitoring that vehicle for 28 days, that constitutes a search within the meaning of the Fourth Amendment. The court has held that bringing a drug detection dog to the front porch of a home, to see if the drug detection dog can smell marijuana, odors of marijuana, emanating from the home. The court has said that constitutes a search within the meaning of the Fourth Amendment. A frisk of a person. That is when the police officers stop someone and does a frisk of the outer clothing to search for weapons. That's an example of a search of a person.

Virginia Prescott: [00:03:15] How about seizure, through the ages and up to now?

Cynthia Lee: [00:03:18] So the court recognizes two kinds of seizures: seizures of property and seizures of persons. A seizure of property, the court says, occurs when the government has meaningfully interfered with one's possessory interests in the property. So for example if the government impounds your car and takes it away from you they've seized your car. A seizure of the person for fourth amendment purposes is a little more complicated than that and the court has said that a seizure of the person occurs when an officer accosts an individual and by means of physical force or show of authority restrains his liberty. So basically the officer has to apply physical force to the person like touch the person or tackle the person or the individual has to submit to the officers show of authority. And the test for a seizure of the person, the court has stated, is whether in view of all the circumstances a reasonable person would have believed he was not free to leave or terminate the encounter with the officer. But on the other hand the court has said that an officer can walk up to anybody on the street, ask him questions, and if a reasonable person in that person's shoes would have felt free to leave, that is not a seizure and the Fourth Amendment is not implicated.

Virginia Prescott: [00:04:48] Those of us who have watched cop shows have seen that moment when the judge throws out all the evidence because the police gathered it improperly. This actually comes from the exclusionary rule of the Fourth Amendment. What is that?

Cynthia Lee: [00:05:01] So the exclusionary rule is a rule of, sort of like a rule of evidence and it basically says if the police violate the Fourth Amendment then any evidence that they find through that violation must be excluded at trial. That's why it's called the exclusionary rule. It's the remedy for a Fourth Amendment violation.

Virginia Prescott: [00:05:22] There have been through history a number of cases that redefined or or were groundbreaking and helping us understand the Fourth Amendment. One of those was called Katz versus the United States, I think 1967, if I have that right. What happened? This reinterpreted the very concept of a search.

Cynthia Lee: [00:05:44] So Charles Katz was a fellow who lived in Los Angeles in the 1960s and he made money by placing bets for interstate gamblers and keeping a share of their winnings. Since interstate gambling was a federal crime Mr. Katz used the public telephone booths to try to avoid detection while he was conducting his business. Nonetheless the FBI became aware of his illegal activities and they somehow were able to identify the three public telephone booths that Mr. Katz tended to use to conduct his business. So the FBI worked with the telephone company to put one of the phone booths out of commission and they put wiretaps or listening devices, electronic listening devices, on the outside of the other two phone booths and listened in to Mr. Katz's conversations and based on incriminating statements that Mr. Katz made during conversations he had while in a public telephone booth that was bugged by the federal government, the government was able to arrest Katz and charge him with transmitting wagering information by the telephone.

Virginia Prescott: [00:06:56] What happened with that case and how did it change the way we think of the Fourth Amendment?

Cynthia Lee: [00:07:01] Mr. Katz complained about his conviction. He appealed his conviction and he appealed it all the way to the Supreme Court. And the Supreme Court not only took his case but ruled in his favor and replaced the trespass doctrine that had been in effect prior to 1967 with something, with a totally different test that relied, that looked to expectations of privacy. And under the trespass doctrine a search would occur only if the government physically intruded upon a constitutionally protected area: a person, house, paper, or affect. The things that are listed in the fourth amendment. So for example if government agents listened in on a telephone conversation by bugging a person's phones but they didn't have to physically intrude upon the person's home or property to do this that would not constitute a search under the trespass doctrine. But in Katz, the court adopted a test that focused on privacy rather than on whether or not there was a trespass.

Cynthia Lee: [00:08:16] And under what's called the reasonable expectation of privacy test, a search within the meaning of the fourth amendment takes place if the defendant manifests an actual or subjective expectation of privacy and that expectation of privacy is one that society is prepared to recognize as reasonable.

Virginia Prescott: [00:08:40] Reasonable I guess is the key word here isn't it?

Cynthia Lee: [00:08:43] Yeah it is.

Virginia Prescott: [00:08:45] So once the Supreme Court decided to protect this reasonable expectation of privacy, what kinds of things now count as searches that would not have before that case?

Cynthia Lee: [00:08:57] So in the example that I used before when discussing the trespass doctrine: if the government wiretaps your phones, your phone lines, and listens into your conversations without physically intruding into your property, your home or your property, that under the trespass doctrine would not constitute a search. But under the Katz expectation, reasonable expectation of privacy test, that would constitute a search and indeed the whole issue in Katz was whether the wiretapping of the public telephone booth that Katz went into and made his phone calls in, whether that constituted a search.

Cynthia Lee: [00:09:37] And the court in Katz said yes. That Mr. Katz when he went into that phone booth and closed the door behind him, had manifested not only an actual expectation of privacy in his phone conversations but that expectation of privacy was one that was legitimate justifiable and reasonable and therefore the government wiretapping of the phonebooth constituted a search.

Virginia Prescott: [00:10:12] What about stop and frisk? This is the tactic used by some police departments, most notably the NYPD, where officers stop someone on the street who they suspect may have or are about to commit a crime and can pat them down to see if they're armed. This is also called a Terry Stop. Why is that allowed under the Fourth Amendment?

Cynthia Lee: [00:10:33] So the Terry stop and frisk doctrine is allowed basically for two reasons. One is officer safety and that's the frisk part of it. The officer under Terry is allowed to do a limited pat-down search of the outer clothing of the person he stopped and it's a search for weapons and that's to protect officer safety. The officer under Terry Stop-and-Frisk is also allowed to briefly detain individuals based on reasonable suspicion that criminal activity is afoot. And that's, the rationale behind that is crime prevention. Giving officers the ability to nip crime in the bud before crime comes to fruition.

Virginia Prescott: [00:11:20] The criticism here of stop-and-frisk is it was used primarily in minority communities or on black and brown men as a tool for racial profiling by police officers. Of course the officers would say for preventing crimes. The case did go to federal court. So in this case how do you parse out: was this a Fourth Amendment case or was this an equal protection clause case?

Cynthia Lee: [00:11:43] You're talking about the Floyd versus City of New York case. And in 2008 there was a class action lawsuit filed against the New York City Police Department claiming that its stop-and-frisk policy violated the rights of black and brown individuals under both the Fourth Amendment and the Equal Protection Clause of the 14th Amendment. And in the course of this lawsuit the interesting thing was that the plaintiffs presented findings from an empirical study by a Columbia law professor Jeffrey Fagan showing that between January 2004 and June 2012 the New York City Police Department conducted over 4.4 million Terry stops and over 80% of these 4.4 Million stops were of blacks or Hispanics. And despite this massive effort contraband was seized in only 1.06% of the stops of black individuals and in only 1.25% percent of the stops of Hispanic individuals.

Virginia Prescott: [00:12:57] How did the attacks of 9/11 change the role of the Fourth Amendment?

Cynthia Lee: [00:13:04] So the attacks on the World Trade Center and the Pentagon on 9/11, September 11, 2001, didn't necessarily change the doctrine surrounding the Fourth Amendment that the Supreme Court had developed prior to 9/11 but it did have an impact on people's willingness to give up privacy for increased national security and likely spurred both legislative and executive actions that curtailed privacy protections in the name of national security. Shortly after 9/11 Congress passed the what is known as the Patriot Act.

[00:13:44] One of its provisions allowed what are called sneak and peek warrants whereby the government can search homes and seize property without giving the person notice of the search until long after the search has taken place, as long as a court finds reasonable cause to believe that providing immediate notification of the search or immediate notification of the execution of the warrant would have an adverse effect.

Virginia Prescott: [00:14:13] Where do protections of the Fourth Amendment not apply? Say, in prisons. Any prisoner can be searched, correct?

Cynthia Lee: [00:14:20] That's correct. The Fourth Amendment only applies if there's been a government search or seizure. So it doesn't apply if there's no government action. It also doesn't apply if what the government did is not considered a search or a seizure. And you're absolutely right that a search of a prison cell is not considered a violation of the Fourth Amendment because the Supreme Court has ruled that prisoners have no reasonable expectation of privacy in their prison cells. So prison guards can search their cells without a warrant, without probable cause, without any reasonable suspicion.

Virginia Prescott: [00:15:01] Professor Lee, we are no longer ducking into phone booths like Charles Katz. Instead we are now heaping massive amounts of personal information and communication records onto our phones. So what are the current rules about searching cell phones? Do police need some kind of warrant as they would say for searching a home?

Cynthia Lee: [00:15:22] So, in 2014, the Supreme Court actually dealt with a case involving the search of a cell phone that was found on the person of a man who had been pulled over for driving with expired license tags and then arrested for being in possession of concealed and loaded firearms. And the government argued that the police officer had the right to search the person of the arrestee and any items found on his person under what's known as the search incident to arrest doctrine.

Cynthia Lee: [00:15:56] So the search incident to arrest doctrine, Or exception to the warrant requirement, says that if an officer makes a lawful custodial arrest he has the right to contemporaneously search the person of the arrestee and the wingspan, or the grabbing area, the area from which the arrestee can grab a weapon or destroy evidence. So in 2014 the court had to decide whether this rule that it had previously established when an officer makes a lawful custodial arrest of a person that he has the right to search, do a full search of the person, including any containers found on the, on the arrestee's person. The Supreme Court had to decide well does this rule apply when the officer finds a cell phone on the person of the arrestee. And in Riley vs. California the Supreme Court, to many court observers' surprise, held that when an officer finds a cell phone they need a warrant. They cannot search that cell phone without getting a warrant first.

Virginia Prescott: [00:17:07] Cynthia Lee, thank you so much for speaking with us.

Cynthia Lee: [00:17:10] Great thank you, Virginia.

Virginia Prescott: [00:17:15] This episode of civics 101 was produced by Ben Henry and Justine Paradis. Executive producer is Erica Janik. Music from Broke for Free. If you'd like to know more about your constitutional rights check out our newsletter. It's called Extra Credit. At civics101podcast.org. Civics 101 is a production of New Hampshire Public Radio.

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Made possible in part by the Corporation for Public Broadcasting.

The FBI

The FBI is our federal law enforcement agency. And, to enforce the law, it plays the role of secret intelligence agency as well. So how does the FBI protect us against domestic threats? And how far has it been willing to go to uphold the law? Journalist and author Tim Weiner joins us to reveal the inner workings of an agency shrouded in secret.

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TRANSCRIPT

NOTE: This transcript was generated using an automated transcription service, and may contain typographical errors.

Civics 101

Episode 108: The FBI

CPB : [00:00:00] Civics 101 is supported in part by the Corporation for Public Broadcasting.

Open: [00:00:04] Who is the current speaker of the house? Don't even now. Will they rule in the president's favor or take it to the Supreme Court? You can't refer to a senator directly by their name. Congressional redistricting. Separation of powers. Executive order. National security council.

Tim Weiner: [00:00:24] I've met Bob Mueller. I've talked to Bob Mueller and if there were ever a person in United States government I would feel comfortable with him handling that amount of power, it's Mueller.

Virginia Prescott: [00:00:36] This is Civics 101. The podcast refresher course on how democracy works. I'm Virginia Prescott the Federal Bureau of Investigation is popularly known as the nation's law enforcement agency. It's a force long associated with tracking down threats and fugitives and with operating under the radar. But in the past year there have been some highly visible changes in leadership in the agency including the firing of FBI Director James Comey and Deputy Director Andrew McCabe who was let go last week. And then of course there's former director Robert Mueller a special counsel investigation into Russian meddling. To get a better read on this agency long shrouded in secrecy, we're talking with Tim Weiner journalist and author of Enemies A History of the FBI. Tim welcome.

Tim Weiner: [00:01:23] Thank you.

Virginia Prescott: [00:01:23] What does the Federal Bureau of Investigations investigate?

Tim Weiner: [00:01:27] From the beginning in 1908 the bureau has been a two headed beast. The first as known to one at all is the federal law enforcement agency.

Tim Weiner: [00:01:38] But the second known to all too few is the FBI as a secret intelligence service. Going after spies terrorists and other people who threaten the well-being of the United States.

Virginia Prescott: [00:01:53] Now people do often call it the nation's police force. Is it?

Tim Weiner: [00:01:58] Yes it is. And by design.

Virginia Prescott: [00:02:01] How did the law enforcement duties of the FBI then differ from those of other federal law enforcement agencies?

Tim Weiner: [00:02:08] The bureau can prosecute anyone for any violation of the Federal Criminal Code a very voluminous document. It also conducts counterespionage counterintelligence and counterterrorist investigations that can span not only the nation but the whole wide world.

Virginia Prescott: [00:02:26] You mentioned 1908. Why was it founded.

Tim Weiner: [00:02:30] President Teddy Roosevelt founded the bureau mostly in secret and by stealth over the opposition of Congress for two reasons. One was to go up against what TR called the malefactors of great wealth, the trusts all oil coal steel whose mega millionaire owners also owned and operated an astonishingly large number of congressmen and senators. And the second was to go after anarchists. An anarchist had murdered President McKinley and made TR president in 1901. And they'd been killing kings and queens and dukes and earls all over Europe from the 1880s onward. He saw the anarchists as a threat that could crush the United States unless they were crushed first.

Virginia Prescott: [00:03:31] Now you said by stealth. Why was it done secretly? Why would creating a domestic investigative agency have to be done under cloak and dagger?

Tim Weiner: [00:03:41] Because the FBI would go up against members of Congress who were corrupt. So Congress wasn't going to pass it in an open bill. TR and his attorney general named Charles Bonaparte, and yes he was the great nephew of the Emperor Napoleon, snuck it into a line item appropriation and created the bureau out of nothing with a paragraph in a spending bill.

Virginia Prescott: [00:04:07] Now this was when Congress had adjourned for the summer. Did I get that right?

Tim Weiner: [00:04:10] Yeah. Summer Recess. Very nice sleight of hand TR.

Virginia Prescott: [00:04:14] So at that point it was called the Bureau of Investigation. When did it become the FBI?

Tim Weiner: [00:04:19] In 1935 after J Edgar Hoover had been running it for 11 years.

Virginia Prescott: [00:04:25] He wielded significant power as head of the agency and a lot of evidence has surfaced since pointing to abusive tactics, intimidation, illegal spying by Hoover and the FBI. Was that how the agency exercised power?

Tim Weiner: [00:04:41] Hoover was the law and he had the power to defy the Supreme Court and defy presidents when he chose. The FBI's power is a secret intelligence service was built on warrantless break-ins warrantless bugging and wiretaps warrantless burglaries, black bag jobs they were called, and in nineteen thirty nine The Supreme Court outlawed illegal wiretaps. Hoover went to President Franklin D Roosevelt and said Mr. President how am I going to do my job if the Supreme Court has unanimously banned warrantless wiretapping and FDR, no slouch at stealth himself, wrote out a one page order and signed it saying essentially, screw the Supreme Court. Hoover kept that in his desk all his life and went on to bug and burglarize at will.

Virginia Prescott: [00:05:41] What were some of his famous targets?

Tim Weiner: [00:05:44] Generally communists and particularly when the Cold War began to eclipse everything else in American public life and American foreign policy after World War II, Hoover became the global face of anti communism in America.

Virginia Prescott: [00:06:01] You said Hoover was the law. But when he died 1972 he remained director until his death. How about now. How powerful is the FBI today?

Tim Weiner: [00:06:15] Hoover's Long Shadow extended throughout the 20th century and it really wasn't until after 9/11 when Robert Mueller, you may have heard of him, ran the FBI. That the FBI began to actually function as an intelligence service under law. And it took a confrontation between Mueller and the acting attorney general Jim Comey face to face with the president of the United States George W. Bush over an illegal program of warrantless eavesdropping conducted by the National Security Agency.

Virginia Prescott: [00:06:55] How does the FBI work with other agencies like the NSA for example or the CIA? Leading up to 9/11 there were a lot of accusations that they did not play well together and therefore missed a lot.

Tim Weiner: [00:07:09] It is safe to say that one of the proximate causes of the success of the 9/11 attacks was the failure of the FBI and the CIA to cooperate on anything. From the beginning Hoover bitterly opposed the CIA only because he wanted to run it. He wanted the international global powers of espionage to be under his control and so they fought from the beginning and continue to fight bitterly until the towers came down.

Virginia Prescott: [00:07:40] You mentioned that the original Bureau of Investigation was founded in stealth. How about now? How has Congress responded to abuses of power or extending power for the FBI?

Tim Weiner: [00:07:56] Back in the 1970s in the wake of Watergate, the Senate held extremely powerful hearings really the first of their kind in the history of the United States looking into what the FBI and the CIA and the NSA had done over the past 25 30 years going back to after World War II.

Tim Weiner: [00:08:17] And they found a long train of abuses in specific the warrantless bugging break ins wiretaps that the FBI had conducted including its round the clock surveillance of Martin Luther King. Now remember in general these operations were authorized by presidents. And the difference was that with Hoover gone, the bureau lay open to a season of investigation by the Senate. Out of that investigation came a chastened FBI, came indictments of senior FBI personnel, and came the Foreign Intelligence Surveillance Court which authorized and continues to authorize national security wiretaps.

Virginia Prescott: [00:09:05] Right, people listeners may have heard of it as the FISA court.

Tim Weiner: [00:09:08] Correct.

Virginia Prescott: [00:09:10] The police forces that we know and have more transparency in our local constituencies, they are constrained by the law and the Constitution. Sounds like the FBI for a long time went pretty far rogue of that. How is it constrained by those laws now?

Tim Weiner: [00:09:28] The FBI is there to protect and defend the Constitution of the United States. And it is true that for decades under Hoover and thereafter the bureau broke the law in the name of the law

Virginia Prescott: [00:09:44] So it protected the constitution by violating the Constitution.

Tim Weiner: [00:09:48] Well this was the great dilemma in the era of the Cold War. And again in the age of terrorism. Civil liberties and national security are often in conflict. We want to be safe and we want to be free but these are opposing forces and there is a tug of war continuous between civil liberties and national security.

Tim Weiner: [00:10:13] The FBI is charged with upholding the both but it finds itself often trapped between these opposing forces which pull in different directions. I think you have to credit Robert Muller and the 12 years he served as FBI director with trying and often succeeding in reconciling these forces and bringing the FBI into the 21st century as a secret intelligence service under law.

Virginia Prescott: [00:10:45] Alright, since you're bringing up Robert Muller I want to clarify something. We do often hear of Robert Mueller's investigation into possible Russian meddling in the 2016 election as an FBI investigation. Is it an FBI investigation?

Tim Weiner: [00:10:59] Mueller has the full force of the bureau at his disposal. He has 16 other very skilled prosecutors working in his office. He also has the full investigative powers of the rest of the federal government notably the Treasury Department. He can read Trump's taxes which is an exciting prospect for some people. He can use treasury's money laundering enforcement unit, which has global reach. And he can use the intelligence powers of the CIA, the eavesdropping NSA, and he can tap into the work of foreign intelligence services as well. He is probably the most powerful special prosecutor in the history going back to the Watergate era.

Virginia Prescott: [00:11:50] Who does he report to?

Tim Weiner: [00:11:52] The Justice Department in the form of the deputy attorney general, the attorney general Jeff Sessions having with good reason recused himself from this case.

Virginia Prescott: [00:12:10] Can an FBI agent arrest you?

Tim Weiner: [00:12:13] Yes.

Virginia Prescott: [00:12:13] What can and can't the FBI do in its investigations?

Tim Weiner: [00:12:17] They can't break the law to uphold the law anymore, and that is in great part due to the reforms instituted in the wake of the Nixon administration. They are not the law anymore as they were in Hoover's day. And they have been told time and time again that they can't break the law in the name of the law. Famously, James Comey when he headed the FBI kept on his desk a copy of the order that Hoover had to institute 24/7 365 surveillance of Martin Luther King as an example of how not to use power. And every graduate of the FBI Academy is schooled in this.

Virginia Prescott: [00:13:03] James Comey by the way who was fired, relieved of his duties in May of 2017 we see new shots and sometimes footage of FBI sweeping in in their blue slickers. You know FBI emblazoned on their back. They all look like white guys. Is it a diverse organization?

Tim Weiner: [00:13:23] No. The bureau is overwhelmingly white and male 95 percent roughly last time I checked.

Virginia Prescott: [00:13:30] How does this composition of the FBI affect the kind of cases it follows and how it follows them.

Tim Weiner: [00:13:38] In principle it should not. In practice it surely does. I would like to say that it's not as racist as J Edgar Hoover himself was. Hoover was a hater. I hope it is the case, with the recent kerfuffle within the bureau over misapprehending what Black Lives Matter is, suggests they've got a long way to go.

Virginia Prescott: [00:14:03] How does the FBI tips process work?

Tim Weiner: [00:14:06] Not well, sometimes. Look at the case of the Parkland School shooting where a bureau a field office in Florida was tipped off that this kid was a threat to show up to school. Often for the bureau to give them their due, it's like trying to get a drink of water from a fire hose. Tips pour in and sometimes the bureau gets lost in the volume of tips they're offered.

Virginia Prescott: [00:14:35] What are some of the greatest hits and greatest misses of the FBI.

Tim Weiner: [00:14:40] Well I think that the bureau would cite the Adam Aspis case as a crucial turning point. I think in more recent days, you can credit the bureau with the and at least one case stopping a potentially catastrophic terrorist attack here in my hometown New York. The bureau has a hard time rooting out wrongdoing in its own ranks and for nearly two decades there was a spy for the Kremlin for Moscow inside the FBI named Robert Hanssen who essentially destroyed the counterintelligence and counterespionage operations of the Bureau for the last two decades of the 20th century before he was identified and arrested.

Virginia Prescott: [00:15:31] So obviously huge job. We're talking about a crime fighting force that has to operate on a global network. And things have changed a lot in how the crimes are conducted and investigated. But would you consider the FBI an efficient organization?

Tim Weiner: [00:15:47] It has become more efficient in the 21st century. It went kicking and screaming into the age of information technology. It took the 9/11 attacks for the FBI to fess up to the fact that it was a 64 kilobyte agency in a gigabyte age. Agents couldn't share JPEG pictures with one another over the Internet. They could barely e-mail one another. It was a pyramid of paper and again several billion dollars had been poured down a rat hole trying to resolve this and it took Bob Mueller to drag the FBI into a modern technological age.

Virginia Prescott: [00:16:36] The FBI has made the case that it has to operate underground remaining pretty obscure to other agencies and people outside of the agency certainly. What do you think, Tim Weiner, is the greatest misconception we in the public have about the FBI.

Tim Weiner: [00:16:53] That it is a police force of cops. It is first and foremost an intelligence agency and never more so than in the post 9/11 era that is charged with rooting out unseen invisible threats to the United States knowing that it has to be right 100 times a day and the bad guys only have to be right once. The refocusing of the bureau's energies into intelligence counterintelligence counterterrorism under Bob Mueller was by and large success at the outset 15 years ago. Mueller said that he wouldn't be the guy who went down in history of whom it was said, Well congratulations you won the war on terror but we lost our civil liberties.

Virginia Prescott: [00:17:50] Tim Weiner thank you so much for speaking with us.

Tim Weiner: [00:17:52] My pleasure.

Virginia Prescott: [00:17:57] Tim Weiner he's a Pulitzer Prize winning journalist and author of Enemies A History of the FBI. His latest book is called One Man Against The World the tragedy of Richard Nixon. You can find more at our Web site civics101podcast.org. This episode was produced by Hannah McCarthy our executive producer is Erica Janik, music from broke for free.

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Made possible in part by the Corporation for Public Broadcasting.

Torture

On today's episode: What does the United States do when it captures prisoners of war? What are the Geneva Conventions? How did 9/11 change our commitment to treating prisoners humanely, and what mark has it left on public opinion about torture?

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TRANSCRIPT

NOTE: This transcript was generated using an automated transcription service, and may contain typographical errors.

Virginia Prescott: [00:00:23] I'm Virginia Prescott and this is Civics 101, the podcast refresher course on the basics of how our democracy works. Earlier this week President Donald Trump proposed longtime CIA officer Gina Haspel as the new head of the CIA. Haspel's history at the agency has already drawn scrutiny. In 2002 she ran a secret prison in Thailand where the CIA detained and tortured two suspected al-Qaeda operatives. She was later involved with destroying videotapes of those interrogations.

[00:00:55] The CIA's interrogation strategy following the terrorist attacks of September 11th marked a break from our country's official position on handling prisoners of war. We spoke with Elizabeth Grimm Arsenault, a professor at Georgetown University and author of How the gloves came off, before Haspel's nomination to better understand U.S. policy on torture, a critical aspects of how the U.S. treats prisoners of war.

[00:01:21] I asked her about the roots of that policy dating back to the Revolutionary War.

Elizabeth Arsenault: [00:01:27] The early treatment of prisoners of war is quite a grim scenario. Prisoners were routinely starved they were treated with no regard for their their human life.

[00:01:39] And one of the things that sets the United States apart from its beginning was that right at the outset George Washington said to his troops he instructed his troops as they were crossing the frozen river to surprise the Hessians that he wanted them to treat the captured Hessians with humanity. So right from the beginning Washington tries to set out that the United States is different that that we were not going to copy the sort of horrible example of prisoner treatment that the British and quite frankly most other powers embraced at this time. I would make the argument that this idea about treating prisoners humanely. It's a uniquely American idea. It's a uniquely American norm.

Virginia Prescott: [00:02:19] Why do you think right from the beginning you know declaring that we're going to do it differently, why did that matter? Why so important?

Elizabeth Arsenault: [00:02:27] It shows that the United States right from its birth the United States was not willing to make what I think is even a debate we have today, the sort of tradeoff between security and its values. And I think right from the beginning Washington says ideas that are actually then reflected in what Barack Obama said that this is a false tradeoff. We don't have to make a decision between our values and our security that in fact living our values treating people humanely is a way of making us stronger is a way of both setting ourselves apart. But actually it allows us to do our operational missions better.

Virginia Prescott: [00:03:04] Did establishing those boundaries last up until let's say you know contemporary warfare World War II era?

Elizabeth Arsenault: [00:03:11] Even from the beginning even ideas that are aspirational are not necessarily perfectly complied with. So Washington sets this charge out to the troops and prisoner treatment still, I mean it varied quite widely.

[00:03:24] I would say the next big step that you see in advancement in prisoner treatment came during the Civil War. So in the middle of the Civil War in 1863 the North would issue what was called the Lieber code and it was literally a set of instructions that said here's how we should treat those that we capture here's that we treat those in our captivity and the idea behind the Lieber Code was that those that are captured during the war, these men aren't criminals. These men are entitled to protections deserving to them simply by nature of their humanity.

[00:03:58] I would say though that the actual impact of the Lieber Code had on the conflict was quite minimal. There were still horrible abuses at the hands of both the north and the south. But what the Lieber Code actually did was that it became the basis for subsequent manuals embraced by France embraced by Britain and embraced by Prussia and Russia for how they would then treat prisoners of war in their own conflicts.

Virginia Prescott: [00:04:25] When we say treatment are we talking about food, clothing, medical treatment?

Elizabeth Arsenault: [00:04:30] Exactly, Virginia, all of that so food, clothing, what types of work they're are allowed to do, the respect for religious expressions, prohibitions against torture,, prohibitions against inhumane treatment.

Virginia Prescott: [00:04:46] So today, U.S. policies towards prisoners of war are greatly influenced by the Geneva Conventions. So first of all what are the Geneva Conventions and what did they say?

Elizabeth Arsenault: [00:04:56] That's right so the Geneva Conventions are a series of instructions essentially so they're a set of four conventions that were issued in 1949. And the Geneva Conventions, they don't seek to eliminate war. That's not their purpose. But they they seek to minimize suffering.

[00:05:16] The one that we're the most concerned about for the sake of prisoner treatment is the third Geneva Convention. It essentially tells military forces what you can do in conflict to those that you capture in your captivity, and what you cannot do. It also lays out who is entitled to receive these protections. Again relating to just as you mentioned to things like food rations. How long they can work what they are allowed to do.

[00:05:40] In the Third Geneva Convention, there is a third article that is shared among all of the Geneva Conventions and it has ideas that are so important, it's almost considered to be a mini convention in all the conventions. And so this Common Article 3 as it's called sets out ideas that are so essential that that no derogation from them can be considered. And Common Article 3 says that no matter what, no matter who you are you cannot have outrages upon your dignity. You cannot have cruel inhumane degrading treatment.

Virginia Prescott: [00:06:16] How about in Vietnam, the United States was challenged there because they were fighting an insurgency in the form of the Viet Cong. This is not a uniformed army behaving like uniformed armies do.

Elizabeth Arsenault: [00:06:30] The Vietnam War presented a number of international legal questions. And Virginia you're right. First and foremost among them was how do we treat armed insurgents who are fighting under the communist banner. But they themselves are not actually members of the North Vietnamese Army. The United States was under no legal obligation to provide Geneva Convention protections.

[00:06:55] But early in the conflict as early as 1964 the United States actually made the policy decision that it would ascribe it would provide full Geneva Convention protections to the Viet Cong even though legally it was not entitled to. And it made this decision for a number of reasons. But first and foremost among them was that it wanted to demonstrate essentially the goodness of what the United States was attempting to do in the Vietnam conflict. The sort of goodness of the American experience the benefits of the sort of Western liberal order and I would say it's a very similar challenge a very similar legal problematic area that the United States faced with members of al-Qaeda and members of the Taliban at the beginning of the conflicts in 2001 and 2003

Virginia Prescott: [00:07:44] Well after Vietnam, the Department of Defense or DOD made compliance with the Geneva Conventions a central part of training for all branches of the military. So what did they change?

Elizabeth Arsenault: [00:07:54] After the Vietnam War, whereas treatment of prisoners of war had actually been fairly consistent with international law. It was that fourth Geneva Convention the one that relates to the treatment of noncombatants in which the United States had been less compliant and I'm sure your listeners will be familiar with the names of places like the My Lai massacre. The cases in which the United States engaged in strategic bombing engaged in the use of Agent Orange against noncombatants against civilians in Vietnam and it caused the DOD to say we need to improve our training we need to make it clear that compliance with international law is not just something that we should do. It's something that we must do as a part of being a member of the U.S. military.

[00:08:42] So the United States in 1977 instituted what was called the Law of War Program in the duty. And again as you say it made training on the Geneva Conventions training on compliance with international law mandatory both as it was pre deployment but also included in the curriculum of the various academies various training institutions and the DOD.

Virginia Prescott: [00:09:11] I'm going to speed forward to another defining moment this is the terrorist attacks of September 11th in the United States. The ways of waging war and a new era of foreign policy emerged and also changed our treatment of prisoners of war. How did that change?

Elizabeth Arsenault: [00:09:31] It's good to think back about where the United States was on September 10th 2001 to think back about this was a case in which on September 10 2001 norms of prisoner treatment were deeply embedded. Again they were they were contained in domestic law. They were contained in language of domestic institutions. But there was a great deal of questioning in the 1990s about the role and placement of international law in the U.S. context compelled by decisions with regards to the NATO intervention in Kosovo compelled by questions about the purpose and value of international law broadly but also I think it's important to remember on the eve of 9/11 that this was a case of an intelligence community that had been gutted throughout the 1990s cases in which there had been years of slow hiring or or no hiring in some cases. And this was an intelligence community that had never held terrorist detainees so with the attacks of 9/11 it compelled a set of questioning the United States about what was the type of intelligence that we needed to collect.

[00:10:40] What was the type of intelligence that we needed to collect to prevent against an attack in the future to keep Americans safe. And I think that U.S. policymakers immediately after the attacks of 9/11 believed that they faced a binary choice of whether or not to do anything that they could to collect intelligence or to not and then suffer another attack.

Virginia Prescott: [00:11:05] Yes you're underscoring the absolute fear and vulnerability of that moment.

Elizabeth Arsenault: [00:11:10] That's right and I think it is important to think back about that shattering sense of vulnerability. And I think you know almost 17 years later it's good to reflect about how much this challenge to the United States. The sense of hopelessness the sense that never again could the United States be the victims of an armed attack on our homeland. The United States believes that it was faced with this impossible choice. And so it opened the door to consider what was allowed under domestic law what was allowed under international law.

[00:11:45] And I would also say to get back to the point that you mentioned about the Viet Cong because al Qaeda was a nonstate actor because the United States believed that al Qaeda and the Taliban were not entitled to Geneva Convention protections. That seemed to in the words of my book title it seemed to allow to let the gloves off because these were not state actors. The Taliban again could reasonably considered to be a state actor but because it failed to adhere by the laws of war it was the decision that was made by the Bush administration in those early years was that it also was not allowed. It was also not guaranteed a Geneva Convention protections.

Virginia Prescott: [00:12:24] We know from photographs of Abu Ghraib and other stories we've learned since about extraordinary rendition that the CIA treatment of detainees did violate the Geneva Conventions and was initially kept secret. How did the American public react when it came to light these violations of a principle that as you said were sort of baked in the cake of how the nation conducted itself?

Elizabeth Arsenault: [00:12:48] So in the DOD you have essentially a toxic stew of conflicting guidance ambiguous guidance, guidance that was met only for high value detainees at Guantanamo. Migrating its way to Abu Ghraib for use on a population prisoners that it was never intended to. So Abu Ghraib was a case of the the DOD program. In the case of the CIA, you have around 100 people that were authorized for rendition detention and interrogation program. Of these around 100 people three of them received as we now know the waterboard.

[00:13:26] The reaction that I would say in the United States at that time, so when when this story broke in 60 minutes when Seymour Hersh published his famous piece, my sense is that the reaction was horror and I think it prompted a lot of investigation in the United States about who we were. I would argue that in a time of peace it's somewhat easy to follow the law. It's when you're truly tested at a time of war that it's hard it's hard to extend these protections to your enemies. But but that's the sign of who you are as a state. That's a sign of who you are as a country.

Virginia Prescott: [00:14:02] But how about now. You know many Americans cannot unsee videos that they may have seen of ISIS beheading American detainees journalists. So how do you think the conflict has changed Americans views on torture.

Elizabeth Arsenault: [00:14:21] One of my deep concerns is that public opinion on this question has shifted. There have been Pew surveys there have been Washington Post surveys that say that right now in fact a majority of Americans believe that torture could be can be used to compel confessions to compel extractions. And I think you're right one of the factors playing into this are the violence perpetrated by ISIS the very astute propaganda masters that they have been I think asks Americans the question of why should we continue to be led by the laws of war if our enemies are not abiding by the laws of war.

Elizabeth Arsenault: [00:15:00] I think there's been a robust research in the ways in which Americans exposure to pop culture has in many ways changed our expectations of what torture does compel in interrogations. So there's been a number of studies that look at the ways in which exposure to interrogation scenes in Homeland and 24 have given Americans this idea that torture is an easy and clearcut way to extract investigations. But in reality in intelligence gathering interrogations, it's confusing it's complex it's messy and ambiguous and the torture does not work. Torture compels people to talk but people will say anything when their fingernails are being pulled out when their family members are being threatened. As a source of reliable intelligence, it does not work. And in the U.S. context we need to talk loudly and longly about the ways in which complying with international laws that restrict that prevent that proscribe torture, we don't follow just because it's the right thing to do, we follow because it's who we are as Americans.

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Made possible in part by the Corporation for Public Broadcasting.

Democratic Norms

On today's episode: What are the norms of democratic government, and where do they come from? Which norms are essential to U.S. democracy, and how are they changing today? We put these questions to the authors of How Democracies Die, Steven Levitsky and Daniel Ziblatt, and get some concerning answers.

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TRANSCRIPT

Virginia Prescott: [00:00:23] This is Civics 101, the podcast refresher course on how democracy works. I'm Virginia Prescott. Today, democratic norms. [News montage]

[00:00:30] How did they become norms, and what is their role in a healthy democracy?

[00:00:50] Steven Levitsky and Daniel Ziblatt are both Harvard professors and they spent two decades studying authoritarian regimes. They've identified the behavioral codes leaders observe and the invisible lines that should not be crossed to maintain a healthy democracy. They are coauthors of the book How Democracies Die. Hello Steven Levitsky

Steven Levitsky: [00:01:11] Hi. Thanks for having us.

Virginia Prescott: [00:01:12] Thanks so much for being here and Daniel Ziblatt welcome.

Daniel Ziblatt: [00:01:15] Yes thank you.

Virginia Prescott: [00:01:16] Well what are democratic norms to start?

Steven Levitsky: [00:01:19] What we mean by norms is simply an unwritten rule. So it's a rule that all the relevant players are aware of and adhere to and know that there is some cost to violating them. But it's something that's not written down. So it is not a formal rule or law. By democratic norms we mean norms that are central to the functioning of a democracy.

Virginia Prescott: [00:01:47] You identify two guiding norms. First is mutual tolerance. So what does that mean?

Steven Levitsky: [00:01:54] That is a really basic norm in which each party each major party accepts its rival as a legitimate rival. We may disagree with the other party and we should and usually do disagree. We may really dislike the other party. We may shed a lot of tears on election night when the other side wins but it's essential that each party accept both publicly and privately that the other party is equally patriotic loves the country as we do and has an equal and legitimate right to exist to compete for power and to govern. Which means that we do not treat our political rivals as enemies.

Virginia Prescott: [00:02:39] The opposition is just the opposition.

Steven Levitsky: [00:02:41] It's just the opposition. That may seem like a pretty obvious distinction but going back to the period of our founding the 1780s and 1790s one of the key problems, one of the reasons why the two parties really virtually went to war with one another politically is the notion of mutual toleration really didn't exist it didn't exist anywhere in the West. It was just being born, the idea that there could be a legitimate opposition party that was not engaging by definition is sedition or treason was very very new in the late 18th century and even our founding leaders as enlightened as liberal as they were had not fully come to grips with that norm. It was it evolved over the course of the late 18th and early 19th century.

Daniel Ziblatt: [00:03:25] And can I just add to that it sometimes seems hard to grasp why that would be such a difficult norm to embrace. But if you stop and think you know if the vision of the way that politics ought to operate is that people in politics should figure out what's for the public good, then people who are critics of them or people who disagree with them are acting in ways that are sabotaging the public good. And so they should be kept out of power. But if you don't begin with the idea that there is one single public good that you know we're just trying to discern and sort of identify what is the way that politics ought to operate and you recognize that actually there's competing visions and there's competing value systems.

[00:04:04] Then you have to treat the other side as maybe what I think is true is not actually true. Maybe what the other side thinks is true there may be some credibility to it and so this idea that out of the competition of these competing visions we actually get a better outcome than just having a single person or a single party try to decide what is good. So that's really the shift that took place is that there was a growing recognition that nobody has a monopoly on truth and both sides are offering different visions and it's actually in the competition for power that you get the best kind of outcome.

Virginia Prescott: [00:04:35] How about the second principal, forbearance. What what does that mean?

Steven Levitsky: [00:04:42] Forbearance is the act of not exercising a legal right that is open to us. It is an act of deliberate self-restraint or under utilization of power which we don't normally think about much in politics but it's absolutely crucial to making really not only democracy but any political system work.

[00:05:06] Just think for a minute about our Constitution and what the president can do. The president as you know can pardon anybody he or she wants at any time, the president as long as he or she has a majority in the Congress pack the Supreme Court. If you don't like the composition of the Supreme Court and you have a majority in Congress you pass a law expanding the size of the court to 11 or 13 and fill it with your allies. Perfectly legal. The president can if the president is not getting her agenda through Congress can circumvent the Congress through presidential proclamations executive orders a whole series of unilateral measures that are not explicitly prohibited by the Constitution. All of those things are completely legal. On Congress's side the right of advice and consent in the Senate that can be used to deny the president every single cabinet appointment every judicial appointment every Supreme Court seat. Congress as we know can refuse to fund the government it can effectively shut down the government and Congress can impeach the president on virtually any grounds that it decides.

[00:06:19] So the point is that if misused if presidents really push the letter of the law at the expense of the spirit of the law even our Constitution can be run into the ground can be thrown into dysfunction chaos deadlock and potentially even authoritarianism. There are either gaps or interpretations of rules in the in our own constitution that open it up to abuse and to really the chaos. So it requires that our politicians engage in restraint in forbearance that they deliberately adhere to the spirit of the law rather than the letter of the law.

Daniel Ziblatt: [00:06:59] You know I mean one of the things that's sometimes misunderstood when we talk about forbearance is you know we're not suggesting that in a democracy people shouldn't fight hard and have passionate debates. In fact it's very important to fight hard for your principles and your policy priorities. But the idea is that if both sides pushed the letter of the law because things are not so clear as Steve says there can be these kind of clashes that end up being very destructive and so powerful politicians people with incredible constitutional power have to pull back from the edge and not pushed to the limits.

Virginia Prescott: [00:07:32] Don't all politicians however push the limits, at least rhetorically?

Daniel Ziblatt: [00:07:35] Well no I think actually they don't. I mean that's what's kind of remarkable in some ways is that I mean there's certainly lots of instances of people pushing to the limits but it turns out I think that politicians can in certain instances step back from the brink and not accuse their opponents for example of being treasonous. I mean that's very rare in American politics in the 20th century for presidents. Let's just take the president to publicly state that their political rival is treasonous. I mean that's that's really never happened until actually recently in the United States I mean you know the last several years you know not to say that there's not people in the press writing books called treason and there's people you know in society academics journalists accusing each other of treason and so on. But with important positions of political power as one climbs the apex of political power once one reaches the presidency, it's actually very rare.

[00:08:30] And so you know the one instance we might think of the more distant past is Richard Nixon you know who who literally despised the media and in private it was recorded is actually intending to go after the media. And you know his entire kind of criminal effort in the early 70s was exactly you know you know terrible illegal behavior. But even he even Richard Nixon in public sort of knew that he shouldn't be engaging in this kind of rhetoric. And so in that sense it's actually quite rare in the American context for people with the high levels of power to behave this way.

Virginia Prescott: [00:09:04] Well politicians however in the case of a couple of years ago the Democratic controlled House shifted the Senate rules and deploying what became known in Washington as the nuclear option. Now that the other side is in charge, as predicted, they might be regretting it. Is that a democratic norm in some way being kind of shortsighted?

Steven Levitsky: [00:09:28] I think that when you get into this spiral of norm erosion in which one side engages in what we call constitutional hardball and then the other side feels compelled to respond, yes politicians and parties begin to think in very short sighted terms. They think about well we need to defend our position. Now we need to we need to respond to this. Now maybe they're getting a lot of pressure from their constituents. And I think we're right in the middle of that right now there's a debate among Democrats for example and among progressives looking ahead to the 2018 election if the Democrats win control of the Senate in 2018 which is a possibility will they respond by denying President Trump if if if this occurs the opportunity to fill another Supreme Court seat. Will they do exactly what the Republicans did to Barack Obama. In our view that's pretty shortsighted behavior that's going to sort of continue and even accelerate this spiraling normal regime which could have you know very very negative consequences. But when when norms begin to erode when we're in the middle of the spiral it's very very difficult for individual politicians to step back and say you know this is not in the long term good.

Daniel Ziblatt: [00:10:43] You know it's very hard to break out of this spiral because you know in any of your listeners are going to sit here listening and think think to themselves well but these principles matter that what people are fighting for so why shouldn't we push to the hilt. You know why should we restrain ourselves and there's really a compelling logic there. But the point is simply that there's a cost to abandoning these norms because it does lead to this spiraling politics that doesn't it doesn't land us in a good place in the long run.

Virginia Prescott: [00:11:18] You're talking about erosion of norms but the government has changed. You know there have been several different swings back and forth between the way that the United States government operates or depending on who's in power. So is there a difference between a sort of real shift and just erosion wearing away of the way that things used to be?

Steven Levitsky: [00:11:39] One can identify hundreds and hundreds of different norms in politics. Many of these norms are challenged and change all the time. Society changes societal expectations change. It's perfectly natural and correct and healthy for democracy that all kinds of norms get get questioned challenged changed.

[00:12:03] Donald Trump violated the norm that presidents always have a pet. I don't think that's consequential. In fact there are many many norms of decorum that Donald Trump violates every day that are not consequential. But the two that we focus on, mutual toleration and forbearance, we think are essential and you lose those and your democracy is at risk, it's imperiled.

Virginia Prescott: [00:12:26] You mentioned the president Trump calling his opponents treasonous questioning election results. This is one of the democratic norms that we saw. You know Al Gore stepped aside after Bush v. Gore for the good of the system respecting the judiciary and decisions made by courts all norms that the current president has let's say subverted. So how do we safeguard these political norms?

Steven Levitsky: [00:12:52] That's first and foremost what we have political opposition for. Why that is so important is that we when our government does wrong that we have as much space and freedom as possible to speak out and organize and mobilize and protest against it. And actually we've seen a pretty healthy response on the part of key sectors of American society over the last year. There are things that worry us. There are other things that give us cause for hope. And one of them has been the response of both civil society and the media which we think has been overall pretty effective in responding to some of the president's most serious nor violations.

Daniel Ziblatt: [00:13:34] I would just add to that that that almost a precondition even for what Steve just said is that we need to be aware of what our norms are and so that's I mean the benefit of a show like yours in fact and so one of the purposes of having discussions like this is at least even be aware of what the norms are to figure out what we should be fighting over. And then once we've done that then the kind of fights and the political mobilization that Steve's described can take place.

Virginia Prescott: [00:13:59] Democracy has endured in the United States when it's been knocked off kilter in let's say Venezuela, Hungary, recently the Philippines, Russia. Why has that endured? Why do you think that it's robust?

Daniel Ziblatt: [00:14:11] I mean people disagree and fight with each other but there's two big things or three I guess big conclusions that people focus on and that help explain the U.S. one the older a democracy is the more likely it is to endure. And that applies to countries all around the world and the U.S. is one of the oldest democracies you know imperfect throughout much of its history. But one of the oldest democracies in the world you know people begin to value democracy as a result of that citizens value democracy or institutions develop traditions and ways of doing things. And so that's that's very helpful.

[00:14:42] The second point is the wealthier a country is the more robust democracy is and there's many poor countries in the world that are democratic but not all. You know there's more wealthy countries that are democratic and so being a wealthy country having a large middle class having educated population. All of these things matter.

[00:14:59] And then the final thing that the political science literature focuses on is the role of civil society. I mean the more robust a civil society is the more democratic more likely a democracy is to survive for exactly the reasons Steve just laid out that when you have a well-organized opposition it can serve as a buffer and a constraint on people who want to abuse power.

Steven Levitsky: [00:15:19] Yeah and if I can jump in and sort of present the dark side. At the end of the day we are relatively optimistic about the fate of American democracy. I think odds are our democratic institutions will muddle through the Trump presidency. That said a lot of the cases that we studied. Turkey is a good example of this. Peru's another, Venezuela another. If you took a snapshot one year in you wouldn't find much damage done. It was only down the line, 3, 5, 7, 10 years later that you really see the damage.

Virginia Prescott: [00:15:53] So what is the important takeaway for our listeners and those who support a fair healthy democracy about democratic norms?

Daniel Ziblatt: [00:16:01] So yeah on the last page of our book we have this wonderful quote where E.B. White was asked by the federal government during the war, you know what is democracy. He doesn't describe the institutions. It turns out it's very much more of the kinds of things that he describes and he says it's the feeling of privacy in the voting booth, the feeling of communion in the libraries, the feeling of vitality everywhere. Democracy is a letter to the editor. It's a score at the beginning of the ninth inning.

[00:16:28] I mean so this is he's describing features of our of our political culture at the end of the day. And so there needs to be a revitalization of that. I mean I think that that at the end of the day is the thing that drives the health of our democracy.

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Made possible in part by the Corporation for Public Broadcasting.

IRL2: The Flag and the Pledge

This is our second installment of Civics 101 IRL, where we dive into the historic moments related to our episode topics. Today, we look at Old Glory and the Pledge of Allegiance. Who created them? Why? And how have they changed over the years? Also, we look at four supreme court cases that altered what we can and can't do or say when it comes to the flag and the pledge. 

Activities

Your Rights: Adaptable for Flipgrid, this activity gathers student responses to these decisions

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TRANSCRIPT

Nick Capodice: [00:00:32] Aw it's that time again. Time for another Civics 101 I R L where we dive into the historic moments related to our regular episode topics. I'm Nick Capodice. And with me as always is Hannah McCarthy.

Hannah McCarthy: [00:00:48] Hey there folks.

Nick Capodice: [00:00:49] Virginia will be back for the next one. This is a supplement to our Episode 79 which is about the U.S. flag code. There was so much to talk about that we had to cut the flag in half.

Hannah McCarthy: [00:00:58] For my half. I'm and do history of the flag history of the Pledge of Allegiance.

Nick Capodice: [00:01:02] Yes. And I'm going to do Supreme Court cases that involve the flag and the pledge.

Hannah McCarthy: [00:01:06] Do you want to start with history?

Nick Capodice: [00:01:06] Yes please.

Hannah McCarthy: [00:01:20] So Nick do you know where the American flag comes from, who designed the American flag?

Nick Capodice: [00:01:27] I was always taught Betsy Ross sewed and designed the first American flag.

[00:01:33] That is the prevailing history. But as it turns out there is no written documentation that this is the case. The story actually comes from Betsy Ross's grandson. He goes to the Historical Society of Philadelphia and he says my grandmother designed the American flag what and all that he has is testimony from Ross family members. You know the thing is that Betsy Ross was a flag maker in Philadelphia through the late 1770s. So she was probably sewing American flags. But this idea that she came up with the design the 13 stars in a circle, there's no real evidence aside from the Rosses insisting that this was the case

Nick Capodice: [00:02:19] And they don't have that, they had no evidence to like back it up?

Hannah McCarthy: [00:02:22] No written documentation you know,.

Nick Capodice: [00:02:23] Is that true?

Hannah McCarthy: [00:02:24] That she didn't design the flag?

Nick Capodice: [00:02:26] Yeah.

Hannah McCarthy: [00:02:27] I am not going to say for sure because it's possible right? But all that you've got are affidavits from her family members. So if Betsy Ross didn't design the American flag

Nick Capodice: [00:02:38] Who did?

Hannah McCarthy: [00:02:39] That's a good question. Some historians not all believe that it was a man named Francis Hopkinson. And there's good reason to believe him but that idea that he designed the American flag is based entirely on the fact that he claimed to have designed the American flag. So once again you're running up against this. There's no written proof that this person designed it.

Hannah McCarthy: [00:02:59] The reason it's more likely to have been Francis Hopkinson is that he definitely helped to create the design of the seal for the University of Pennsylvania the seal of the state of New Jersey and the Great Seal of the United States

Nick Capodice: [00:03:14] So he's a seal man.

Hannah McCarthy: [00:03:15] He's a seal man

Nick Capodice: [00:03:16] Seal guy. He designed the U.S. SEAL and that's enough of kind of like will this guy's got some background in design and probably did this too.

Hannah McCarthy: [00:03:24] In patriotic design.

Hannah McCarthy: [00:03:25] He was a known patriot. So it seems a little more likely.

Nick Capodice: [00:03:29] And real quick you know when this was? Is this around like the...

Hannah McCarthy: [00:03:32] Oh yeah of course. This was in the late 1770ss so 1776 1777. We've got this flag that the Continental Congress is flying

Archival audio: [00:03:49] The alternate stripes indicated a dissention from the king's rule. But the Union Jack indicated a loyalty to the mother country.

Hannah McCarthy: [00:03:50] And now this flag very closely resembles our flag except for the fact that the canton which is that in inner upper left hand corner square

Nick Capodice: [00:04:00] That's called the Canton! The blue square.

Hannah McCarthy: [00:04:02] That's right.

Nick Capodice: [00:04:03] I learned something new today.

Hannah McCarthy: [00:04:04] We already had the 13 stripes and that was actually a very popular design that would be displayed on coats of arms across Europe so that there was precedent for that. The Canton that we had was actually just the British Union Jack. So we had that plus our 13 stripes representing our 13 colonies.

Nick Capodice: [00:04:24] So the many stripes was a trope

Hannah McCarthy: [00:04:27] Exactly.

Nick Capodice: [00:04:27] Yet the number 13 was because of our 13 colonies.

Hannah McCarthy: [00:04:30] It was because of our 13 colonies. We were not strictly flying that British flag we were flying or 13 British colonies flag and we were working toward independence from the British. Now although we cannot say definitively who designed our new flag that new flag on June 14th 1777 was the result of the Continental Congress passing an act that established this official flag of the new nation. So the phrasing of that resolution it is resolved that the flag of the United States be 13 stripes alternate red and white and the union be thirteen stars white in a blue field representing a new constellation. OK I like the constellation. Very nice. So initially we had this flag which had our 13 five pointed stars in a circle in the blue Canton

Hannah McCarthy: [00:05:21] Gotcha.

Hannah McCarthy: [00:05:22] And then as states joined the union we would add both stars and stripes.

Nick Capodice: [00:05:30] What?

Hannah McCarthy: [00:05:30] That's right.

Archival audio: [00:05:30] On January 13th 1794 Congress enacted the law. Giving with us the flag with 15 stars and 15 stripes.

Nick Capodice: [00:05:40] When did we stop?

Hannah McCarthy: [00:05:41] So we actually stopped just after Vermont and Kentucky were introduced we only got to 15 I think.

Hannah McCarthy: [00:05:46] And then they say they realized

Hannah McCarthy: [00:05:49] Thank god then they realized that it was going to be visual chaos on the American flag. If you know they knew that the nation was going to continue to grow they might not have known it was going to get to 50.

Hannah McCarthy: [00:05:58] But just imagine that 50 stars next to 50 tiny little stripes. So in 1818 in their great wisdom Congress passes a law stipulating that the original 13 stripes be restored and only new stars be added Of course

Nick Capodice: [00:06:14] So are there like a couple of 15 striped flags out there?

Hannah McCarthy: [00:06:17] There are. You can actually order one. They still make them. So somebody can say you know this is the flag that we had for this period of time in history.

Nick Capodice: [00:06:25] That's really cool.

Hannah McCarthy: [00:06:26] Yeah. So the flag we know today because the flag has changed so many times. It's actually the twenty seventh iteration of the U.S..

Nick Capodice: [00:06:34] OK so they didn't add a star every time we added a state they like a wait for a couple.

Hannah McCarthy: [00:06:38] Correct. OK. Because we were adding at such a rapid rate. So you have only these 27 different versions of the flag.

Archival audio: [00:06:45] Every star state every state star.

Nick Capodice: [00:06:49] Cool. That's the flag.

Hannah McCarthy: [00:06:50] That's the flag.

Nick Capodice: [00:06:51] Now the pledge is tied to the flag right.

Hannah McCarthy: [00:06:53] So the pledge is tied to the flag but it's also really closely tied to patriotism and the union. And I would say the Americanization of people in this country.

Nick Capodice: [00:07:07] Wow. Can I ask you did you say the pledge when you were in school.

Hannah McCarthy: [00:07:10] I said the pledge every single morning I believe through middle school

Nick Capodice: [00:07:16] Stopped for me in middle school too. I said it in elementary school. So what's up with the pledge.

Hannah McCarthy: [00:07:20] Yeah I'm actually going to start us before the Pledge of Allegiance because we had a flag salute before we ever had a pledge of allegiance. So the original flag salute is by Rear Admiral George Balch. He'd been at West Point he served in the civil war and then later on in his career he finds himself working for the New York City Board of Education and he starts noticing that there are suddenly a ton of immigrant children in classrooms across the city and they don't necessarily sound like native born Americans. They might not think like native born Americans. Because he's encountering these foreign born students, he wants to teach American principles and help them to develop this ritual that could foster an American identity. So what he does is he develops this pledge salute combo where children would salute the flag and speak the following. I give my heart and my hand to my country, one country one language, one flag.

Nick Capodice: [00:08:21] Wow, one language too?

Hannah McCarthy: [00:08:23] One language.

Nick Capodice: [00:08:23] So this was a straight up. This is a guy who wanted America to look and sound a certain way.

Hannah McCarthy: [00:08:30] Yes.

Nick Capodice: [00:08:30] What years are we talking about here.

Hannah McCarthy: [00:08:31] So this is in 1887.

Nick Capodice: [00:08:34] OK yes. So it actually is the height. This is like just near the height of both German and Russian Jewish immigration. The Italians are just starting to come in.

Hannah McCarthy: [00:08:45] Exactly.

Nick Capodice: [00:08:45] So this is when the face the sound of America is changing again in a big way

Hannah McCarthy: [00:08:49] In a big way.

Nick Capodice: [00:08:50] And he's like we've got to put a stop to that. We have to change that. It sounds like.

Hannah McCarthy: [00:08:54] I think there was perhaps a fear of the influence of immigrants if not the immigrants themselves; let them in but make sure they become us. I think it was kind of the idea. So not that long after this fact. We are going to come up on the pledge and this is in 1892 which I believe was the same year that Ellis Island was officially opened for business

Nick Capodice: [00:09:17] Certainly was.

Hannah McCarthy: [00:09:17] And you've got millions of people coming in through Ellis Island. It's a very visible immigration from elsewhere into the United States. Not only that but the country is only 30 years into post Civil War recovery. So this idea of national union is still kind of fragile because we almost broke up you know. So there are some who think that patriotism is kind of sinking in the country too many people who are foreign born are moving in are changing the ways that we think and we speak. And we also are totally certain that we can keep this country together if only because we came so close to losing it.

Nick Capodice: [00:09:58] Right.

Hannah McCarthy: [00:09:59] So there's this man named Daniel Sharp Ford he's the owner of a magazine called Youth's Companion and he was particularly concerned with what he saw as this you know sinking morale in this country the sinking patriotism and he wants to boost it. So one of his employees one of the people who writes for him is named Francis Bellamy. He's a minister and an author for Youth's Companion. And so he asks Bellamy to compose a pledge of allegiance to the flag in hopes that it's going to boost patriotism.

Hannah McCarthy: [00:10:34] And here's the original language of the pledge allegiance.

Hannah McCarthy: [00:10:38] I pledge allegiance to my flag and the republic for which it stands

Archival audio: [00:10:46] One nation, with liberty, and justice for all.

Nick Capodice: [00:10:48] Wow. There's a lot that's changed since then.

Hannah McCarthy: [00:10:50] There's quite a bit that's changed.

Nick Capodice: [00:10:52] I think my flag sounds a bit more inclusive. It's like sort of implying that all these new comers these new Americans you know who are coming here are part of us. That's my flag because I'm here

Hannah McCarthy: [00:11:04] Something that we probably take for granted is that there is an American flag an every classroom. A big part of the reason let's just say that they're in so many classrooms in the United States is that at the same time that Youth's Companion publishes this pledge of allegiance and these instructions for this pledge they start selling flags at cost to about 26000 schools across the country. So then the pledge became really popular and that salute became known as The Bellamy salute. I think they simplified it to just this arm straight outward. You know at a slight angle right level with the forehead which looks just like a Nazi salute. During World War II of course we are seeing photographs and film of Nazis with their arms straight out and we decide maybe this isn't what we should be doing. Hand on the .

Nick Capodice: [00:11:58] Hand of the heart.

Hannah McCarthy: [00:11:58] So that's when that transition happens then revisions start to happen to the pledge itself. So in 1923 my flag is changed to the flag of the United States. So that in 1954 we add the words under God.

Nick Capodice: [00:12:13] Fifty four?

Hannah McCarthy: [00:12:14] Nineteen fifty four. So I think a lot of people grow up thinking that this pledge is kind of as old as the country itself.

Nick Capodice: [00:12:20] I thought it had under God from the 1800's.

Hannah McCarthy: [00:12:23] It sounds like something that would have been concocted in the 1800s. You don't really think that in 1954 that they're going to add the words under God.

Nick Capodice: [00:12:33] Yeah. Like just before the 60s?

Hannah McCarthy: [00:12:36] Things were about to blow up in this country. The reason that happened was because we see communism as this huge threat to this country. Communists are considered godless. Eisenhower signs a congressional resolution to pass under God into the Pledge of Allegiance. But it wasn't just Eisenhower. It's also because of a three year campaign by the Knights of Columbus

Nick Capodice: [00:13:04] The Knights of Columbus.

Hannah McCarthy: [00:13:06] That is the initial history of the Pledge of Allegiance. That's how he got up to the language that we use today.

Nick Capodice: [00:13:12] OK. Wow. So Betsy Ross didn't make the flag

Hannah McCarthy: [00:13:15] we don't even really know who designed it, or rather we can't say for sure.

Nick Capodice: [00:13:22] You ready for this?

Hannah McCarthy: [00:13:23] I'm ready.

Nick Capodice: [00:13:24] Are you. Aren't you excited to hear about some court cases.

Hannah McCarthy: [00:13:26] I'm so excited.

Nick Capodice: [00:13:27] After all of this boring history...so here are two Supreme Court cases about saluting the flag and two about burning it. Number one Minersville v Gobitis, 1940.

Nick Capodice: [00:13:39] William and Lillian Gobitis, they're Jehovah's Witnesses. And this is really important for this story.

Hannah McCarthy: [00:13:44] OK

Nick Capodice: [00:13:45] So this is what I didn't know about the Jehovah's Witness faith. Jehovah's Witnesses view God's kingdom as a government.

Hannah McCarthy: [00:13:53] Oh

Nick Capodice: [00:13:54] Yes. And therefore they refrain from pledging allegiance to any other government.

Hannah McCarthy: [00:13:59] Oh!

Nick Capodice: [00:13:59] And like nationalist songs and dances and parties and anything that's like pro a country is anathema to them because in their faith the country of God is the only country to which they should swear allegiance.

Hannah McCarthy: [00:14:11] That's really interesting.

Nick Capodice: [00:14:13] Yeah. And we see Jehovah's Witnesses pop up again and again because of this

Hannah McCarthy: [00:14:17] Because they can't be patriotic.

Nick Capodice: [00:14:19] Right.

Hannah McCarthy: [00:14:20] It must make it hard to live anywhere.

Nick Capodice: [00:14:22] It's only fitting that these two kids the Gobitis family in Pennsylvania. They refused to say the Pledge of Allegiance and they were summarily expelled from school in 1940. Now it goes up to the U.S. Supreme Court. And it is an 8 to 1 vote for Minersville school district.

Hannah McCarthy: [00:14:38] OK

Nick Capodice: [00:14:39] So the kids were not in their constitutional rights to not say the pledge.

Hannah McCarthy: [00:14:44] On what grounds exactly?

Nick Capodice: [00:14:44] Well it was, it was almost unanimous.

Hannah McCarthy: [00:14:48] Yeah.

Nick Capodice: [00:14:49] The justice who wrote the opinion was named Justice Felix Frankfurter. He's a famed Justice who was on the bench a long time. He said that national unity is the basis of national security. So if we're going to succeed as a nation we have to say that some things are respected. And he went on to say that a pledge for the flag is secular it's not religious it's for your nation. So you shouldn't consider it like that you do of God. Harlan Stone said in his dissent of the case that quote "There are other ways to teach loyalty and patriotism which are the sources of national unity then by compelling the people to affirm that which he does not believe." So we have a Supreme Court who almost unanimously says, hey everybody should go and support the flag. .

Hannah McCarthy: [00:15:34] OK.

Nick Capodice: [00:15:35] Everybody should say the Pledge of Allegiance. What happens after me almost immediately after this decision comes out, a mob of 2500 people burned down the Jehovah's Witnesses Kingdom Hall in Kennebunkport Maine. All the Jehovah's Witnesses in an Illinois town are jailed to protect them from citizens who are rioting. Jehovah's Witnesses are lynched, publicly hanged. And one sheriff said quote They are traitors. The Supreme Court said so. Ain't you heard?

Hannah McCarthy: [00:16:07] Wow.

Nick Capodice: [00:16:07] Three Supreme Court Justices, Black Douglas and Murphy, they stated in another opinion that they'd made the wrong decision.

Hannah McCarthy: [00:16:17] Wow.

Nick Capodice: [00:16:17] So in the wake of Minersville v Gobitis, not only is there a huge surge against Jehovah's Witnesses in the U.S. but there is a surge of flag laws in the U.S. saying you have to say the pledge. West Virginia is one of them. They make it compulsory. They say that if you don't say the Pledge of Allegiance in the morning you are insubordinate. And that law is what brings us to our next case, West Virginia v. Barnett 1943. Maria and Gathie Barnett, Jehovah's witnesses refused to say the pledge, goes up to the Supreme Court but something is different. Something is different in the air of America this time. By 1943 Americans had seen a lot of footage and read a lot of stories of Jehovah's Witnesses being persecuted in Nazi Germany and sent to concentration camps for refusing to salute the Nazi flag. So that, the justices who said that they had made a mistake, all comes together to make a new decision which is a 6 to 3 decision to overrule Minersville v Gobitis. So West Virginia Barnett is a case that makes it within your constitutional rights to not say the Pledge of Allegiance.

Nick Capodice: [00:17:21] Justice Jackson wrote the decision and the famous quote from this one as he said "if there is any fixed star in our constitutional constellation it is that no official high or petty can prescribe what shall be orthodox in politics, nationalism religion, or other matters of opinion or force citizens to confess by word or act their faith therein.".

Hannah McCarthy: [00:17:42] I love that.

Nick Capodice: [00:17:44] And there's no big ones. For a while and then we go to New York City. In the 1960s.

Archival audio: [00:17:50] This is about the first case in the history of our country, where this statue was even used. When Patrolman Copeland made his arrest he did not know that he had made the first arrest in the history of the state of New York for the public burning of a flag.

Nick Capodice: [00:18:06] We're talking about street v. New York 1969.

Hannah McCarthy: [00:18:09] Street.

Nick Capodice: [00:18:10] Street is the guy's name. Do you know about this case.

Hannah McCarthy: [00:18:13] No.

Nick Capodice: [00:18:13] Oh it's such a cool case. Oh my God. I mean the coolest people get involved in Supreme court cases, the coolest stories. So cast your mind back to 1966. The case is 1969 but this happens in 1966.

Hannah McCarthy: [00:18:26] I happen to be rereading Just Kids so I'm there.

Nick Capodice: [00:18:29] Oh you're right there right there. So we're in the 60s and we're in our old friend the Warren Court from Tinker v Des Moines

Hannah McCarthy: [00:18:39] I remember Warren, oh year.

Nick Capodice: [00:18:39] So I wish I had a constitutional scholar to walk me through this and it's radio so we should have someone should say hey did somebody call my name, no but we don't have that but hey we do what we can.

Nick Capodice: [00:18:47] So in 1966 there a civil rights activist named James Meredith. James Meredith is part of a protest, he is walking from Memphis Tennessee to Jackson Mississippi and he's promoting voter registration after the, the Voting Rights Act of 1965. And he's talking about and he's exposing racism across the south and he's trying to encourage African-Americans to vote , you know? And he's shot.

Hannah McCarthy: [00:19:15] Is he killed?

Nick Capodice: [00:19:16] He is not killed. It's comes over the radio across the country, James Meredith has been shot by an unidentified sniper. That comes across the radio and a guy's apartment in Brooklyn. And there's a guy named Sidney street Sidney street is a decorated Bronze Star veteran. He himself is African-American.

Archival audio: [00:19:34] He went out on an American flag with got him to his apartment two way street corner. Put a piece of paper on the street holding the flag in one hand, folded put a match to it and set it on fire.

Nick Capodice: [00:19:50] Then it starts to burn so much he can't hold it in his hand he puts it on the piece of paper he never lets the flag touch the ground.

Hannah McCarthy: [00:19:57] That is.. Anyway go on. So interesting.

Nick Capodice: [00:20:01] and this is really important. A police officer later later testified that he heard Sidney Street say if they did that to Meredith we don't need an American flag. The reason this matters is that New York State had a law had a statute at the time that you couldn't desecrate the flag by words or deed. You couldn't say bad stuff about the flag and you couldn't desecrate it physically. Sidney street is charged with malicious mischief for unlawfully burning the American flag and for saying bad words about the American flag. So this is an absolute squeaker. So what's the decision. It's a 5 4 decision. It's kind of confusing to me.

Hannah McCarthy: [00:20:45] OK.

Nick Capodice: [00:20:45] It's called, it's reverse and remand. It's kind of like

Hannah McCarthy: [00:20:50] What does remand mean.

Nick Capodice: [00:20:51] Remand means you send it back to the lower case for a retrial. Like it's the state's business or it's your business that other courts business.

Hannah McCarthy: [00:21:00] Because it was a state's law.

Nick Capodice: [00:21:01] It was but it's kind of like you guys take care of this. So they the court decides by a 5 4 vote that the law about the words about speaking bad about the flag that is unconstitutional. But when it comes to burning the flag let's just we don't. They totally kick the can on this one. It's a famous can kicking. The court does not decide whether or not it was constitutional for him to burn the flag.

Hannah McCarthy: [00:21:29] Wow.

Nick Capodice: [00:21:29] Yeah. It's kicked down 1970s, kicked down in the 1980s, and then we get to 1984 the Republican National Convention in Dallas Texas.

Archival audio: [00:21:43] It is my great privilege. To proclaim the thirty third Republican National Convention in Session and call it to order.

Archival audio: [00:21:58] We represent people who are patriotic. Who believe in our American system and love our country.

Nick Capodice: [00:22:03] Number four. Texas v. Johnson. Reagan and George H.W. Bush have been nominated for the second term and everybody at the RNC is banging gavels and getting all excited outside this convention on the steps of City Hall.

Nick Capodice: [00:22:16] There's a guy named Gregory Lee Johnson who goes by the name Joey. Gregory Johnson. And he takes an American flag and he burns it.

Hannah McCarthy: [00:22:24] I've seen

Nick Capodice: [00:22:24] And he spits on it. Yeah. Texas has a law. Texas legislature may prohibit overt physical acts that it deems offensive slash harmful to society. Texas loses the case and it keeps getting,.and Texas keeps appealing it and it goes up to the top, so Texas's name being first they lost the previous case. What is most interesting to me about this case I kinda, I found like a personal hero when I was researching this case and it's the guy who's the advocate for Johnson the lawyer named William Kunstler

Archival audio: [00:22:57] By the way talking about flags in front of the Supreme Court when I came by today. The flags were up in the rain. And under 36 US Code the leading provision there is flags shall not be displayed in inclement weather.

Archival audio: [00:23:12] Are you gonna get back to.

Archival audio: [00:23:12] Section one applies to all weather flags.

Archival audio: [00:23:17] That's an all weather flag. That could be physical mistreatment under the Texas statute.

Archival audio: [00:23:22] Mister Kunstler. Are you going to get back to the case?

Archival audio: [00:23:24] I'm going back to the case, seems we had this three weeks ago.

Nick Capodice: [00:23:28] He is very funny. And as you hear when he's arguing the case everybody's laughing, Thurgood Marshall is like can we get back to the case. He defended the Chicago Seven. He defended the Black Panthers the Weather Underground.

Archival audio: [00:23:43] Real pariahs people that could be totally hated by most of the population of this country. Well what makes Kunstler pariah bound? Well I have found that it is the pariahs when the law changes

Nick Capodice: [00:23:56] And what bigger pariah than a flag burner? In his argument he cites Street. He cites Barnett and the court makes its decision and it's another 5 4 vote. Another squeaker and the court holds that Johnson's burning of the flag is protected speech under the First Amendment. Justice William Brennan, famed advocate of the First Amendment. He's the one who writes the decision and he has the sort of money quote which is. If there is a bedrock principle underlying the First Amendment it is that government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. And then Kunstler on the steps after the decision is read says this.

Archival audio: [00:24:41] And it tests the First Amendment whether you can see a thing like that which for war veterans who complain about, which touches a lot of people who do have certain reverence for the flag. To have that burned, desecrated in their eyes and yet protected by the First Amendment. I think it's a hard nut to swallow but it's a kind of nut that the founding fathers wanted us to swallow because they said that it's the hard words not the soft words that need protection.

Nick Capodice: [00:25:08] That decision invalidates laws in 48 states right off the bat.

Hannah McCarthy: [00:25:14] Wow.

Nick Capodice: [00:25:14] Suddenly overnight, whoosh.

Hannah McCarthy: [00:25:17] Yeah

Nick Capodice: [00:25:18] But there's one last one last bit to this.

Hannah McCarthy: [00:25:22] OK.

Nick Capodice: [00:25:23] Hannah which is Congress since Texas v. Johnson and starting in the mid 90s really 1990s has on many occasions tried to pass a new amendment to our Constitution. So we've talked before about how an amendment gets ratified into the Constitution and has to pass a two thirds majority in the house and in the Senate and then two thirds of the states have to agree as well. The actual amendment has been written. It's just waiting to be ratified. The amendment says the Congress shall have power to prohibit the physical desecration of the flag of the United States. That's it.

Hannah McCarthy: [00:25:58] Even though it is opposed to a Supreme Court decision

Nick Capodice: [00:26:02] Yeah, Because of its amendment would change that because it be in our constitution

Hannah McCarthy: [00:26:07] That's very interesting.

Nick Capodice: [00:26:08] So from the years 1995 to 2005 this amendment passed in the House six times. And each time it lost in the Senate by a handful or two of votes. In 2006 it got to the Senate and it lost by one vote. But even though it lost by just one vote Senate all 50 states have pledged that they are for this flag desecration amendment. So if it gets to the Senate it's pretty much a guarantee.

Hannah McCarthy: [00:26:40] Is it currently for..

Nick Capodice: [00:26:43] Yeah, so the amendment right now. It was proposed in June of 2017 and it's kicked to the Senate Judiciary Committee. So it's in committee as they say, it's in committee.

Hannah McCarthy: [00:26:54] All right.

Nick Capodice: [00:26:54] Who knows where it's going to go from there.

Hannah McCarthy: [00:26:56] Seems pretty likely to happen maybe next this year. Right?

Nick Capodice: [00:27:00] Who knows.

Nick Capodice: [00:27:02] One for the ages I guess.

Nick Capodice: [00:27:05] Thank you Hannah.

Hannah McCarthy: [00:27:08] Thank you Nick.

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