Protecting Your Rights
Attorney John Whitehead talks about democracy and our rights.
An Interview with John Whitehead, Founder and current head of the Rutherford Institute (Rutherford. org).
John W. Whitehead is an attorney with extensive experience in constitutional law and human rights. At one time he considered a career in more conventional law practices, but early on realized his concerns for the persecuted and oppressed suggested a very different path. Those concerns were the reason he came to found The Rutherford Institute, a nonprofit civil liberties and human rights organization, where he currently serves as its President and guiding force. The website for the institute is worthwhile reading for all: http://www.rutherford.org.
The Rutherford Institute itself acts as one of the United States’ leading advocates of civil liberties and human rights, litigating in the courts and educating the public on a wide spectrum of issues affecting individual freedom in the United States and around the world.
He has written and spoken on constitutional issues throughout his career. His publications include articles in the Emory Law Journal, Harvard Journal on Legislation, Pepperdine Law Review, Washington and Lee Law Review and the Temple University Civil Rights Law Review. His most recent book is Battlefield America: The War on the American People (2015).
He was born in 1946 in Tennessee, earned a Bachelor of Arts Degree from the University of Arkansas in 1969, and a Juris Doctorate degree from the University of Arkansas School of Law in 1974. He served briefly in the United States Army from 1969 to 1971.
Trillions interviewed Mr. Whitehead at the Rutherford Institute’s headquarters in Charlottesville, Virginia, on June 7, 2016.
Trillions: Although some of our readers may already know your story, can you start by telling us about how you found your way to your mission of protecting Constitutional Rights and founding the Rutherford Institute?
John Whitehead: When I first came out of college, I went straight into the Army. That was in Fort Hood, Texas, from 1969 to 1971. I was an Infantry Officer then. Like many, I saw a lot of things that troubled me in the military at that particular time, especially with returning veterans that I talked to and who had problems – after having been to Vietnam.
I started seeing that I needed to do more in terms of what I could do to help society, and maybe move in a different direction. Less violence, more democracy and more freedom.
I had a good friend who was in law school who I was talking with about that. I asked him, “What would be a good avenue for me?” And he said, “Go to law school. As a lawyer you can change things.”
I’d [already] been a big fan of Martin Luther King and other people out there who had been rabble rousers. And so I went to law school with that idea that I was going to help people, that I was going to make this a better place to live.
After I got out of law school, I [did what others did and] I was recruited by a firm for a while but I ended up not liking that. I then decided I’d just strike out [on my own] and start a group that would help people, because I was having different people coming to me who had all
kinds of issues with the government or whatever, who couldn’t get any help, even from groups like the ACLU. I floated ideas [about what I was thinking] and finally found a few people who said they’d help me do it.
I was incorporated in 1982. It took about 6 to 7 years to raise enough funds to actually start doing more cases like I wanted to do. Cases with mainly people who couldn’t afford a lawyer and who couldn’t get into the courtroom [to defend themselves]. And we’re still doing that today. With people that find themselves on the wrong end of a police action, or surveillance, troubling surveillance, and those kind of things. We help them and we don’t charge them. I find volunteer lawyers who do the work. We provide the finances and legal background and move the case forward.
We also do a lot of policy papers on a lot of issues, from surveillance to legislation Congress is trying to pass which I think would violate our rights. I work with many different groups across the country [including] the ACLU, the Constitution Project, and others. I work with both right and left wing groups also. I have no political ideologies so I work with anyone who’s fighting for what I think is a good social concern issue at the time.
Trillions: That issue about political ideologies is an important one. Because sometimes groups like the ACLU end up defending people that surprise us. But behind those surprises is usually an issue of fundamental human rights.
John Whitehead: Yes. I have summer interns every summer. And I tell them, the between 12 and 20 that come and study with us, that freedom is a human rights issue, it’s not a political issue. You may not agree with the person that you’re defending politically but that doesn’t really matter. The issue is whether or not they have a right to free speech, or have a right to be free from unreasonable search and seizure under the Fourth Amendment. That’s the issue. It’s not their politics.
Trillions: What do you see as some of the bigger rights issues today? One certainly that seems to come to mind has to do with the way our concerns about terrorism’s worldwide activities have somehow metamorphosed into an excuse for changing how we surveil people, how we monitor their actions. All with the idea that it’s okay to give up a little bit of freedom, so that things will be better.
John Whitehead: Well, it isn’t just that. It’s also that the large corporate interests on the internet such as Google and Facebook make money by doing surveillance.
Facebook now is basically building a large repository of facial images for facial recognition software. Google gets million dollar contracts from the NSA to conduct various exercises. And Amazon, most people don’t realize, about a year and a half ago built a $600 million intelligence cloud for all the intelligence agencies of the U.S. government – the NSA, CIA, all down the line.
We live in, essentially, a total surveillance state leading toward a ‘more total’ surveillance state, in my opinion. Take the U.S. Post Office. The Post Office handles 160 billion pieces of mail annually. They record, photograph, and open some packages. So [this surveillance we talk about] is not just done on the internet.
We also have a government that, in my opinion, borders on paranoid in some ways. I mean, otherwise why would you have the Department of Homeland Security purchasing 1.6 billion hollow-point bullets? They actually have a contract to have them made especially for them, which they pass out to groups like the Department of Agriculture, the IRS, and the Social Security Administration.
[We later] found out what the Department of Homeland Security was doing. They’re working with 60 some private corporations and doing ‘threat assessments’ on average Americans which range from ‘red’ to ‘green’. They’re some five different steps you can go through so that, when a policeman arrives at your door, they’ll have an idea if you’re a real threat.
Just to show you how dangerous this can be, we had a case with a marine who was doing anti-obama Facebook posts, citing hip-hop lyrics and stuff against the government. And he was arrested and put in a mental hospital here in Virginia for that. He had no weapon or anything, was no danger to society. We filed a lawsuit and got him out in a week. A judge ruled that he shouldn’t have been there. So I tell people, and I work with my students in the summer to ensure that they understand we’re being watched. If you say the wrong thing, watch out! You can get arrested for it these days.
Trillions: And there seems to be a conditioning that’s happening, to make that more palatable. You mention the issues of Facebook, Google and others. In each case there is a free service we are using which is systematically harvesting everything it knows about you. We thought it was mostly for advertising but you’re also showing us how they also are, far from pushing back from the Government when they ask for data, they are actually partnering with them for
profit to package it up and turn it over. Meanwhile, we are being conditioned to give up a major part of our privacy in return for accessing these so-called free services. When things appear to be free, they really aren’t free. I guess that’s part of the message here.
John Whitehead: Yes. I also get the argument all the time that, “Well, if I’m not doing anything wrong, what’s wrong with it?” What I tell people when they say that is, do you want the Constitution protecting your rights? The Fourth Amendment says very clearly there in the Constitution that, before the Government does any surveillance, they have to have probable cause. In other words, some evidence of wrong-doing, illegality. And if it’s not an emergency, they have to go to a judge and get a warrant. Yet with what the NSA is doing, the FBI, and all these groups and this intelligence cloud, they’ve just bypassed the Constitution. The Constitution means nothing to them.
Again, most Americans don’t know [their rights] either. And that’s one reason, when people ask how do you keep freedom alive, or democracy, or whatever you want to call it, you have to learn your rights, folks, and you have to assert them. You have to say, “I’m not going to go along with this anymore”, and start getting people together to protest when Facebook or whatever hands information over willy-nilly.
Or Google, which does it too. Google is an amazing corporation. They’re moving into robotics and artificial intelligence now. And they claim by 2040 the world’s going to be run by machines. At that point, I wonder, if that’s true, if that’s going to happen, how we’re going to remain free. Because does a machine think about freedom or does a machine just think mechanically? Because machines think mechanically unless somehow they make them human, but I’m not sure they can do that.
Trillions: The counter argument the developers often use is that a computer only does what you tell it to do. Unfortunately, however, that’s only partially true. Especially with Artificial Intelligence (AI) in place, the software and machines learn on their own. So you may think you’ve constrained it but you haven’t. Now mix in all the information the NSA and other agencies are gathered and semi-automatic decisions being made on that data, and there’s a whole new problem emerging there as well.
John Whitehead: Typically everyone has an algorithm now, and everybody’s going to have a threat assessment made.
In Oakland, California, six to seven months ago, ten FBI agents moved into the local police department, with their main job being to look at social media posts using algorithms. And again that goes to your threat assessment, which is green, blue, yellow, orange, or red. And if you’re a red level, you’re going to have the police watching you more intently. And the police with Stingray devices in their cars driving by people’s homes, downloading your cellphone information and your laptop information.
People are also getting more alarmed by the little Cessna airplanes flying over their communities now. That’s the FBI [doing its form of surveillance]. They have ‘dirt boxes’, or whatever they call ‘dirt boxes’ in there that do the same thing. You have license plate readers now. And the license plate readers can also read your face and can get facial recognition images off of it.
The police have actually been caught, tracking people to protest rallies and such, and watching more of the so-called protestors. I go back and tell people, that violates the Fourth Amendment. They shouldn’t be tracking me or doing a threat assessment on me, unless there’s some [evidence] that I was doing something illegal. But if I was [really] doing something illegal, they would arrest me. So obviously, I’m just doing something they disagree with.
Trillions: I remember when the whole issue blew up in Los Angeles about the license plate tracking some years ago. There was talking about the police gathering all this information without there being any
specific reason to gather it. And yet from it they could and did develop a pattern of where you go and what you do. It reminded me of, post 9/11, hearing about things like monitoring what books you bought, what videos you rented, and what you checked out of the library.
John Whitehead: Actually they DO do that. You know, when you buy [or rent] anything online, from Amazon or Netflix. And Netflix supposedly and some others of these corporations have access to [the Government] intelligence files. So some of the corporations are supposedly in cahoots with some of the information that’s being gathered, in clouds about individual citizens.
It is ‘he who has the information’ who can call the shots. [Add all that surveillance and new laws that have been coming about], and we get a proliferation of cases at the Institute. [There are] people who have chickens in their backyards getting arrested, and [charges filed against people for] lemonade stands, potluck dinners at church, and growing vegetables in your front yard. With crimes proliferating [on the statute books], everybody in some way can be found guilty of something today, especially with all this collection of information and the algorithms [we talked about].
I’m also worried too, because of the increase in SWAT team raids. There were several thousand in the mid1980s and over 80,000 annually now.
John Whitehead: 80% of those SWAT team raids are for mere warrant service. Where police used to just show up at people’s doors to serve warrants, if a policeman can see your ‘threat assessment’ on his phone or other devices he has in his car, and you’ve got a “yellow”, well then he is going to be a little more heightened [as he comes to your door]. Plus, he’s already got all that armor on [anyway] and he’s ready to go. That’s why we’re seeing all these SWAT team raids.
But why do we need SWAT team raids in America when the FBI admits that crime is at a 40-year low, and getting shot in the line of duty is at a 50year low. And in 2013, believe it or not, the murder rate in America was the lowest in a century.
So are Americans violent? Obviously not. So why all the armed policemen, why all the armed Federal agencies? And yet every Federal agency now has an army, basically. Grenade launchers, armored vehicles, and SWAT teams. Are these for those terrorists that are invading the country? (Laughs) I don’t see a lot of terrorists invading the country.
Trillions: That kind of police action and increased criminalization creates other associated problems also. Like an increase in unnecessary incarceration, which is already a problem.
John Whitehead: Yes, well, you know there’s a huge private prison industry, which I have written a lot about. Corporations make a lot of money off of private prisons.
We have the largest prison population in the world, but one of the lowest crime rates. That should say something to people. Something’s going on. And this is the key, if we talk about democracy and freedom. If I’m going to be a free citizen, I need to know what the government’s doing, the government needs to be transparent. They need to tell me what they’re doing, they need to tell me they are watching me, and there should be alerts from the guy who’s watching you.
I should know why they are incarcerating people, why the Chicago police had a building they called ‘Homan Square’ where they took people, and while no one knew they were doing this, they were torturing them and beating them up. I mean, those are actual facts. All that’s been revealed.
We should be given the information, and there [were hints of it] but … well… the average American atches 150 hours of television a month, and that’s growing with other screen devices everywhere.
And what I say is, once you’re doing that, you’re not involved.
What democracy takes is an involved citizenry. One that says, “Hey! You’re not going to be doing this much longer. I’m going to get my picket sign and get out there on the street.” I guarantee you, if you do that, your threat assessment’s going to go up.
Trillions: So what IS the recourse for a citizen who wants to do something about this? You’re defending the cases involved, but what would you say to the individuals out there who are concerned about this? Is it a lost cause? You can’t exactly call your Congressman and ask them to help.
John Whitehead: Well, the fact that we’re talking about this means that it’s not a lost cause. The first thing I tell people is, reduce your number of hours watching [television and other things]. I ask people to give us one-third of those hours for freedom.
I’m also urging local communities to start local oversight committees. That’s citizens getting together and watching [over] their local communities.
Suppose they have an egregious SWAT Team rate [in their area]. Now, [these oversight committees can] demand guidelines for those SWAT teams to stop doing this stuff, and go by the Constitution. Some people are [even] demilitarizing and getting rid of all the [policing] equipment.
Recently, there was a big victory out in Los Angeles. The Los Angeles Public Schools withdrew all their military equipment. Why? Because the students started protesting and other groups joined them. It took about two years and they did it.
Some people are doing it with phone calls, because they live too far away, but [good results come when] they go down to their local city council [and get involved]. What I say is act locally, think nationally. The problem with affecting national politics [was illustrated in a] 2014 Princeton Study, [which said] that after two decades studying effects on national politics in Washington, D.C., the professors along with Northwestern University came to the conclusion that we live in an oligarchy. And at the national level, Americans have very little input at all. Voting does not mean hardly anything at all.
But I do know, and I’ve seen this happen, that locally like in the L.A. School District here recently, you can make a difference. You just have to get together in groups.
People like Martin Luther King and others in the past showed us that there’s power in numbers – and determined numbers, acting non-violently, getting out there and getting active. I know government politicians. Listen, I’ve been suing the government for forty years. They don’t like numbers of people getting together. That’s why they’re watching people protesters, following their license plates, reading them, the FBI watching social media posts of people doing First Amendment protests. These are all acts that I outline in my book, Battlefield America. They don’t like it, because – why? – it limits their power. Their power definitely needs to be limited. But it can be.
So what I’m saying is, it’s a lot more fun causing a ruckus in a City Council meeting over a freedom issue than watching a reality TV show. Lots more fun.
Trillions: I very much agree. I do find that especially on the local level there’s a lot more listening than at the state or national levels. Though the local police do get to be a little more challenging.
John Whitehead: But you know, you can affect police. I’ve done it with police. Some have read my books; I’ve had them contact me and visit me and say, “Hey, I’ve done some of the things you’ve talked about in your books and I’m ashamed of them.” Start and [you’ll find] they have a conscience as well. It’s just how they’re trained these days.
But don’t fall in [a common] trap. I mean, a lot of people say, “I’m going to get my gun, I’m going to get armed,” and what I tell them – and this is a fact and you have to realize this – your local police in most communities today, even in small towns, have enough armament to put down a large scale revolt. It will not work.
But non-violence, picketing, stuff like that, social media posts, getting active, challenge your local government, it drives them crazy. They don’t like it. And sometimes they throw people out of City Council meetings, and we sue over that. You start your cases, you file lawsuits, and that way we can change the face of the country. But we need more people to get involved and less people watching something. So stop watching so much and start doing. Because if you’re watching, you’re not doing.
Trillions: It’s funny. It almost reverts back to the old days of Marshall Mcluhan, where he talked about hot media and cold media. And television was one of the ‘cold media’ that – and they’ve demonstrated now scientifically – really does put you to sleep.
John Whitehead: Yes it does. And his books, by the way, should be required reading. I love his Understanding Media, The Media is the Message, those are great books, yes.
Trillions: As we’re talking about that, one of the other dilemmas – you’re approaching from a slightly different side of it – I remember back in the mid-70s I was considering hiring somebody at a company I worked at who was a Soviet citizen. Very bright and the work that I was involved with wasn’t military or secret or anything, and I – foolishly at the time – decided to meet with him. I was in so much trouble. And yet he was not in a secret facility. But I was warned afterwards that just the idea of ‘thinking about it’ and the idea that I might want to talk to him was considered to be a bad thing. So one of the things that I observed in myself after that afterwards that I started to worry about what I subscribed to, who I talked to, and from my standpoint, when they got you censoring yourself by your own mind and your own regulation, you are really in trouble.
John Whitehead: Yes. I say that having to look over your shoulder, to see who’s watching you, that’s not a free country. More and more people are nervous about that.
In fact, a recent poll shows that something like 40-something percent of Americans are nervous now about what they’re posting on Facebook or Twitter and things like that. They know they’re being watched. They’re getting the idea that getting nervous about it and if that’s true, we’re in a sad state of affairs. But I see that. People are also nervous about associating.
Some people say [about me], well, you’re a rebel or a radical, and that’s true – but I go back to the books some of the great writers wrote. Erich Fromm, by the way, wrote some very good books on civil disobedience. He was a psychologist. He says, “If a man can only obey and not disobey, he’s a slave.” And George Orwell says, “Until they become conscious, they will never rebel. And until after they have rebelled, they will not become conscious.” So by rebelling against illegitimate authority and non-violently, thinking about it and speaking out against it, you’ve become conscious. Then once you’ve become conscious, you can actually move others and start movements.
So I think that’s the beginning. Freedom starts with one individual saying, “Enough’s enough”, and starts, like Martin Luther King and Rosa Parks, back in the 1960s. They said, “Enough’s enough.”
Trillions: So that’s one part. And it sounds like another part is critical thinking, that it’s okay to challenge and it’s okay to question, don’t take things automatic and for granted. Complacency is a very dangerous stand.
John Whitehead: As I explain to people, our whole reality is socially constructed from the time we’re born by somebody else, whether it’s our parents or schools or things like that.
We even allow things in schools today – and I’m really worried about the educational system – where you can’t say words, you can’t do things I used to do all the time as a kid.
Let me give you an example. We had a case where a tenyear-old kid in Ohio went to the desk to get a piece of paper, from a teacher. It had his grades on it. On his way back to his seat, they’re fourth graders, his best friend in class made an imaginary weapon with his finger. Our kid made an imaginary bow and arrow and sat down. No noise was made, nothing. The teacher saw him do the bow and arrow. He was pulled outside in class and charged with a weapons violation.
We’re seeing this all of the country now. We had a kid in Louisiana, who drew his uncle who is in Afghanistan, he was a fourth grader. It was a stick figure with a weapon. He took it to class and was showing it to a friend, and then he was taken to the Principal.
They talked to him about having a weapon in school. And I’m thinking, “What kind of mind thinks like that?” A stick figure a kid draws, of his uncle. But they’re talking about the weapon he had.
We had another case where a young grade schooler threatened to shoot a girl across the classroom with a spit wad, and he was joking. The teacher heard it [and reported it]. That night at about ten o’clock, the parents were asleep, they had a knock on the door and the parents open the door. And there’s two policeman standing there, and the parents ask, “What are you doing here?” And the police answer, “We’re investigating the shooting incident.” This is for a spit wad the kid never shot.
What we’re doing is you’re conditioning people, in the schools today. And if that’s happening in your schools, I tell people, you can change that too. You can go down to the school board, say “Let’s stop this insanity. Let’s stop this insanity.” Sure, if someone brings a gun into school or something that can be used as a weapon, take it seriously. But don’t start punishing these kids for thought. Because that’s exactly what you’re doing. Once you punish people for thoughts, they stop thinking, as George Orwell prophesized in his book “1984”.
Trillions: Or they stop talking about things. They won’t question and they won’t say anything.
John Whitehead: No, they clam up. But living in a free society, you shouldn’t be told [not to speak up].
Trillions: That’s a good place to move into another subject, which is about the poor state of education about the Constitution itself in our schools – and our civic forums. The First Amendment and the Fourth Amendment aren’t even that hard to understand. Yet almost no one I talk to ever seems to have studied it, let alone understands it.
John Whitehead: It’s terrible. Let me give an example. I have interns coming in every summer. For twenty years, I’ve asked each one of them, give me the five freedoms of the first amendment. In 20 years I haven’t found one who can.
I also spoke to a group of lawyers a couple of years ago, and in the middle of my speech, I was talking about the cases I handle. There were 150 lawyers, your Harvard, your Berkeley types there. I asked them, “Can any lawyer in this room give me the five freedoms of the First Amendment? And be careful, because if you raise your hand, I’ll call on you.”
One guy started to raise his hand and he put it down really quick. My wife was in the back of the room and she said, these lawyers were looking down and debating, “What’s in the first amendment?” These are lawyers. So what’s happened? They don’t teach it anymore. At all.
Trillions: And we wonder why people give up their rights so easily.
John Whitehead: If you don’t know your rights you can’t exercise them. And you know, the First Amendment guarantees the Right to Assemble and sue the Government for redress of grievances. I’m not sure Government officials want that [anyway].
Trillions: You wrote about, in something you published recently, about the Supreme Court pushing back about that Right of Assembly and Free Speech, by ruling against the right of even standing out there in front of it with a sign. Which sounds like it is in direct violation of the First Amendment.
John Whitehead: It’s the Harold Hodge case. A single protestor on a 20,000 foot square, just to the left of the Supreme Court building, on a snowy day when no one was on that square. It’s against the law to do that in front of the Supreme Court, protest with a message. It makes absolutely no sense, logically, no.
Trillions: So, at the risk of asking other dangerous questions, any thoughts about the current political situation in the United States? It’s an interesting year, as someone once said. It’s one of the most interesting years in a long time. But interesting not necessarily in a good way.
John Whitehead: Well, people have a right to vote. But I would say that the Princeton study, which came out in 2014, is [a good reference here too]. It showed that on a national level you have virtually no impact as an individual citizen. So while you can vote for a President, don’t expect change. That’s the key. Voting is [actually] the least thing you can do. As I say in my book, voting presents the illusion of participation, but it’s not participating. And you’re voting for a billionaire every time you vote, which would be part of that oligarchy that we’ve been talking about.
So if you really want change, it isn’t going to be that, folks. It’s going to be at your local level where you can make your biggest impact. Yes, you can get all excited about [the national elections] and all that, but I have never seen a Presidential election which, well… Remember Obama? Anti-war, he was going to change all that? Well, last year he dropped over 20,000 bombs in the Middle East.
Trillions: When in doubt, “get engaged locally” is a very strong message. You have the opportunity to speak one-on-one, and those that have the blessing of being in a small state. When I lived in Oregon I actually got to know the governor and could meet with the Senators. You could actually talk to people, because it was a small enough state. But that was almost twenty years ago so I’m sure things have changed.
John Whitehead: You can’t do that today. I mean, even our U.S. representatives obscure their email addresses now. They block it. They also don’t hold Town Hall meetings anymore. They’re not accessible. But your local city council persons, they’re very accessible.
Trillions: And while going local the other very important message I know you want to leave with our readership is to read, study, and know the U.S. Constitution.
John Whitehead: And the most important part of that document are those first ten Amendments, the Bill of Rights. It’s actually only 462 words. If you can’t read 462 words, come on folks. It’s available everywhere. It’s online. In fact, if people go to our website at Rutherford.org, we have a Constitution section and you can go in there are read your Bill of Rights.
Chicago cop ready for action - CC Photo by Viewminder / Flikr