Sand in Trump's Gears: Lessons from America

00:07.77
Gus
Welcome to The Tech Pill, a podcast that looks at how technology is reshaping our lives every day and exploring the different ways that governments and companies use tech to increase their power. My name is Gus Hosein and I'm the Executive Director of Privacy International.

Caitlin
And I'm Caitlin and I'm PI's Campaigns Coordinator.

00:22.87
Caitlin
Hi.

00:25.09
Gus
I'm really excited about this edition because we get to invite our very old dear friend, Ben Wizner from the American Civil Liberties Union to come and talk to us because not only is he an interesting individual, for instance, he used to be a PI trustee, but more importantly, he's worked at the ACLU for ages. He was Ed Snowden's lawyer. He's been involved in some of the most important pieces of litigation in modern American history. He's just a nice guy to chat with too. And it helps that last week, the American Civil Liberties Union released a report about one year of the Trump presidency and what they have done and what they've had to take on as a result of that. And so we thought this could be a good opportunity just to get a view from the outside, talking to somebody on the inside about what it's really like

01:16.57
Gus
to be in the US right now working on the issues that everybody cares about and what this might mean for everybody else around the world. So without further ado, let's bring in Ben.

01:27.98
Caitlin
Nice.

01:41.22
Caitlin
Well, let's start with the first question. Who are you? Why are you here?

Ben
This is the, when Ross Perot ran for president, I guess this was in 1992, his running mate was someone named Admiral Stockdale, James Stockdale, who had been a prisoner of war in Vietnam.

01:57.21
Ben
And in the first vice presidential debate, he stood up under the lights and said, who am I? Why am i here? And I always like like to relive that Admiral Stockdale moment. Who am I? Why am I here? right I'm a longtime lawyer at the American Civil Liberties Union, almost 25 years.

02:19.58
Ben
My current role is a deputy legal director and also the director of what we call the Center for Democracy, which comprises the ACLU's work on free speech and privacy, on immigrants' rights, on voting rights,

02:33.72
Ben
on human rights and national security. So essentially the Trump briefcase for the ACLU.

Gus
It's really nice to meet and chat with somebody who is old, 25 years. So let's let's let's do the math on that.

Ben
Almost. so I started in August of 2001, just a month before the 9-11 attacks.

Caitlin
Wow, a month before. Wow. Right.

02:56.34
Gus
Okay. i Also, i'm more nerdy than that. I'm thinking that was a month and a half after the Kyllo decision from the Supreme Court.

Caitlin
What's the Kyllo decision?

Gus
It was about the use of heat recognition to detect whether somebody was growing drugs in their mother's home.

03:11.80
Gus
And Justice Scalia was the one that came down with the decision and that dominated the ACLU biannual that year. Like that was the the cool thing to talk about.

Ben
That decision really is the roadmap for the Fourth Amendment in the digital age, because what Justice Scalia says in that opinion is that in the face of new surveillance technologies, the role of the court is to try to preserve the degree of privacy that existed before this technology came into being. Now, that's obviously impossible. We're in a world with much more tracking and surveillance. We can't have the degree of privacy that people had in the 18th century. But that's why we've been able to win in conservative courts cases like United States v. Carpenter, which holds that if you want to track the location of this, you don't get to just call the phone company directly and ask for the records. You need to get a warrant from a judge before you track the location of somebody's digital device.

04:04.38
Ben
That's a case that the ACLU won in 2017, but Kyllo, privacy nerd, is the seed from which that tree sprouted.

Gus
And the reason it came to mind recently, because i was I was listening to a podcast interview with Supreme Court Justice Amy Conan Barrett, who clerked for Scalia. And I think like she talks about that case, and I think that she might have actually been around for that case. And so, yeah, it it is interesting.

Ben
That's interesting. Yeah.

04:31.61
Ben
Okay. Yeah. I mean, I haven't thought about what her vote would be on those kinds of cases yet. She wasn't around for Carpenter. So we'll see. Maybe that's a bit of good news. Yeah. Yeah.

04:42.17
Gus
Okay. So you've been around for donkey's years.

Caitlin
I like how Gus's response to that as well was like, so have I. Let let me drop some obscure law.

Ben
Gus and I are just a couple of New Haven boys who made a big.

04:56.92
Gus
Yeah, like I think we might have mentioned this in previous editions of the podcast when we've had Ben, but we actually grew up like probably 200 meters away from each other at the time, like of me being a a brand new baby boy. So yeah, it's we have history. But the reason we're talking to you today, Ben, is because... You work for, like as we've referred to as the 600,000 pound gorilla in the civil liberties world, which is the ACLU. And you're also fighting the fight of the ages right now. And last week, the ACLU published a ah really short report, actually, a 25-page report assessing the first year of the Trump presidency.

05:41.43
Gus
And for people on the outside of the U.S., We look into the US and just think, oh my God, things are so horrible. All we hear is these horrible things. and But also we're seeing the effects of the Trump presidency. like As we record this, Davos is occurring right now and the big topic of conversation is Greenland. Well, there's many big topics of conversation. Whatever things came out of the Trump administration or Trump's tweets or whatever it is he does. But we really wanted to get a sense from you.

06:12.28
Gus
what the fight has been for you guys and how you, if if you're able, how how you're feeling about that fight and what's to come.

Ben
Well, so I don't want to be Pollyannish and I don't want to tell you that the things that you see with your own eyes aren't accurate.

06:27.39
Ben
Trump is a monumentally consequential president. We have a strong presidency in this country. So um even with the institutional checks and balances that we're going to talk about in a moment, the president can be a wrecking ball, particularly globally. And, you know, for the rest of the world...

06:44.60
Ben
You look at the United States and you see in three consecutive presidential elections, we either elected Donald Trump or we very nearly elected Donald Trump.

06:55.32
Ben
So we could change the Constitution to make Greta Thunberg president in 2028, and you still won't trust what might happen in 2032.

Gus
Oh, jeez.

Ben
Because the US has become politically unstable in that way.

07:06.28
Ben
And so, you know, I think that we were already moving towards a more multipolar world and Trump accelerated that um in ways that won't be reversible by the next president. so So let's put that down, right? That Trump has done things, you know, to NATO, for example, that won't be easily reversed. You know, USAID is never going to exist again. Maybe there will be politics for a new kind of global aid, but it's not going to be that.

07:30.58
Ben
you know Having said that, I think there's a tendency in the US s and also around the world to judge Trump and Trumpism by the playbook that Trump is using, and sometimes to not give enough weight to the context in which he's failing to execute that playbook. The United States, for better and for worse, is a really inefficient democracy.

07:56.86
Ben
So it makes it very hard to push through progressive change, but it also makes it pretty hard to do a one-person takeover. Power is very distributed, even with our strong presidency. Among the states, our Congress is not a parliamentary system, so every one of those members runs individually and not collectively, and that means that they're already starting to look out for themselves and harder to discipline. Trump's talk about a third term is aimed at his own party to try to keep them in line and and portray himself as something other than a lame duck so that he can try to maintain that kind of discipline, which our system doesn't guarantee. And look, you know we have lost some heartbreaking cases in the courts, but we've won a lot more than we've lost. And I think that's the story that's not getting through, that in more than two thirds of the cases that we've brought in, we've brought over 130 lawsuits against Trump policies in the first year alone, which is an unreal number. In more than two thirds of the cases where we've asked courts to enjoin or block Trump policies, we've won.

08:56.02
Ben
And the Trump administration is following court orders. I just want to say that again.

Gus
Oh.

Ben
The Trump administration is following court orders. Now we're seeing a lot of stories about their misbehavior in courts and their misconduct. And there's a very famous case where a judge said, if the planes took off going to El Salvador, turn them around and they didn't. But since then, so this was in the context of Trump's invocation of an 18th century law called the Alien Enemies Act on the theory that the country was being invaded by some combination of Nicolas Maduro and a gang called Tren de Aragua that none of us had ever heard of before.

09:32.86
Speaker
And that allowed him to bypass due process protections and just do mass deportations. Well, since that day, not a single person has been deported under the Alien Enemies Act. The courts have blocked it.

09:44.09
Ben
And the Trump administration has followed those court orders. And everyone who was sent to El Salvador is now out of El Salvador, even though they said that they had no control over El Salvador and couldn't tell them what to do.

09:54.62
Ben
Those people, the Venezuelans, were transferred to Venezuela. And the most famous case, Mr. Kilmar Abrego-Garcia, was brought back to the United States, where he is now. So, you know, this isn't to say that they might never do it. But so far, they have backed down in the face of judicial decisions that have curtailed them in key areas, particularly in the context of immigration and free speech.

10:17.21
Ben
And the courts have let them get away with a lot, like, you know, essentially wrecking... the executive branch firing tens of thousands of employees for no good reason, yeah removing career people and replacing them with ideological stooges. But look, this next year, and I'm sure we'll have another report a year from now, we can talk about it then,

10:37.69
Ben
is really the year that the Supreme Court has to take on some of the key questions. Can Trump essentially raise taxes on Americans unilaterally by imposing tariffs on the theory that we're in a national emergency, but actually to bully other countries into line? I don't think the Supreme Court is going to rubber stamp Trump's tariff policy. Can Trump...

11:00.46
Ben
rewrite the 14th Amendment's citizenship guarantee by executive order and say people who are born this country are not U.S. citizens. I don't think the Supreme Court is going to endorse that theory. I think we're going to win that case, and the ACLU will be presenting that case in the Supreme Court in March.

11:16.25
Gus
In March, okay.

Ben
Yeah. Will the Supreme Court rubber stamp Trump's infocation of the Alien Enemies Act and allow him to engage in mass deportation without due process? I don't think so. I really don't. I think we're going to win some of these you know very big, important cases. Now, we're going to lose other cases.

11:32.86
Ben
This is a very conservative Supreme Court, but I think that you know there's some divide among progressives about whether the court is corrupt or whether it's predominantly ideological. I think it's predominantly ideological. I don't think Clarence Thomas votes the way he does because he flew in a billionaire's jet.

11:48.63
Ben
I think he votes the way he does because he came up through the Federalist Society and this is the project that they had for what they were going to do once they had this kind of power. But the flip side of this, the flip side of the right having control of the Supreme Court, is that no Republican in Washington other than Donald Trump wants to see the Supreme Court weakened.

Gus
Oh, good point.

12:09.02
Ben
Because they have it for the next 25 years. Yes. And so if Trump is going to be gone in 2028, right, he will be. I say that absolutely, unequivocally. And he's probably going to be replaced. We have pendulums, right?

12:22.90
Ben
For the right, having the Supreme Court is their bulwark against a progressive change that might happen. So again, the last thing they want to see is Trump to leave office having weakened the court that they finally captured fully.

Gus
Absolutely. And all the executive power that they're using, they wouldn't want in the hands of the next president unless, well, I know.

12:45.85
Ben
Yeah. You know, I think they will just have to play the hypocrite's game and say, oh no, we didn't mean it and you criticized it then, so you shouldn't do it.

Gus
And we are a nation of checks and balances.

Ben
That's right.

12:57.82
Ben
And look, I mean, you know, everyone plays that game.

Gus
Everybody plays that game.

Ben
But I don't want to engage in false equivalencies here. um This is a presidency like no other in my lifetime. Not even close. Right.

13:09.59
Caitlin
When it comes to progressive versus right wing, do you think people forget how sometimes there's a much bigger crossover, particularly on issues like you know the 14th Amendment in the Constitution or like protecting some aspects of the Constitution, things like the right to privacy. People forget that because they don't like the right wing doesn't necessarily mean the right wing is opposed to every single thing. you know like There's a bigger crossover than people think.

13:36.66
Caitlin
And the court being ideological rather than corrupt, maybe because it isn't totally straightforwardly, you know, one thing versus the other? It's a wildly incoherent question.

Ben
No, I understand what you're getting at and have a few answers to I mean, first of all, in the US, it's absolutely true, as it is there, that on privacy in particular, there's a strong tradition and parts of the right, the libertarian right, of wanting stronger safeguards against particularly government intrusions onto privacy. and so some of the and you know because we have a federalist system we have a lot of innovation and privacy law from our states, we have very little from the federal government but you know the first states that started to protect like location privacy were not Massachusetts and California which are liberal states it was you know Montana and Utah and these states that really kind of come from this don't tread on me more right-wing tradition and i think when we're talking about things like you know putting the right protections for digital ID,

14:32.86
Ben
which I know is a big issue in both countries. you know Utah was the place where we got the first really good state law. and New Jersey was second with a lot of work, and that's more of a purple state in our in our system. But I think that's absolutely right. I think it's become a little bit more difficult as our politics have become much, much more polarized to assemble those coalitions across party lines because people's party identities now have become more tribal than ideological.

15:03.29
Ben
So it's just it just makes it a bigger challenge. It's why I think it's so important for groups like the ACLU to really safeguard their nonpartisan yeah bona fides. And again, it's hard to do because we work on so many issues and so many of them in the US context are progressive coded that when we want to you know get together and talk about you know free speech and privacy, which are not necessarily progressive coded, you know finding the partners to to kind of push that across is harder to do. But let's give ah an you know example from the Trump administration. right There's deep suspicion in Trump world of the intelligence community, you know in part because Trump believes that he was persecuted by the intelligence community in the Russia investigation. And so there are important national security surveillance authorities that are coming up again for review.

15:49.88
Ben
Some of the Patriot Act authorities that have to be essentially renewed every few years. And it'll be interesting to see if we can put together left-right coalition in Congress that includes you know some of these deep state skeptical right-wingers to finally you know curtail some of the intelligence surveillance authorities that Congress handed to the executive branch after 9-11. I think it's possible. um The last time one of these authorities came up for a vote in the House for reauthorization, the vote was 212 to 212.

Gus
Oh my God.

Ben
And it didn't break down on party lines. You had Republicans and Democrats voting for it and Republicans and Democrats voting against it.

16:31.16
Ben
So it shows that you know what you're talking about, you know kind of building a politics on some of these issues that are not just left-right is at least possible.

Caitlin
We've certainly, unsurprisingly, talked on the podcast before on technical capability notices, which the UK power. And yeah, opposition coming out for the US has included, i think, Ed Markey and Jim Jordan and these two very different vigors on very different sides of American politics.

Ben
We see the same thing with free speech a little bit, where actually for a period of time, free speech became a little bit right-coded in progressive circles, at least in the U.S., I don't know if for the same is true you know over there, because you know it was the right argument against campus snowflakes who were trying to shut down speakers and all of that. And Trump...

17:19.00
Ben
Ran on free speech as a free speech candidate on his first day in office. One of his executive orders was an anti-censorship executive order, which is so darkly comic because there really has not been a presidential administration in my lifetime that has...

17:35.03
Ben
um used every lever of government to suppress dissent like the Trump administration has, um you know, arresting students for their political speech, cutting off funding to universities to bring them ideologically in line, cutting off funding for scientific research because it uses words that they don't like, attacking law firms for representing clients that they don't like. It is absolutely unbelievable. And then, you know, people like Elon Musk,

17:59.99
Ben
who styled themselves as free speech champions. He bought Twitter because he wanted to make it more open for free speech. And now if you look at him, he is openly calling for people to be tried for treason if they are insufficiently patriotic towards the United States. Now, at the same time, it is true that on the left, there was a real critique of free speech liberalism.

18:22.68
Ben
And you've seen a real flip over where given the crackdowns on campuses and elsewhere, now you're seeing a lot more enthusiasm for the First Amendment. I hope that's enduring. I always say that I don't really believe what people say about their commitment to free speech, right? Most people believe two things about it and they're wrong about both.

18:44.85
Ben
They believe they know what it is and they believe they support it.

*laughter*

Ben
But look, the only measure of support that I trust is when someone stands up to defend the speech rights of someone whose views they hate. um Until that day, I just don't believe that they are real free speech champions. Most people aren't. No shame.

*music break*

19:12.98
Ben
Because you've been around for so long, as we covered earlier. You were around for the first Trump presidency. Yeah. You were around for the Bush administration.

Caitlin
Is this a burn or is this a question?

Ben
No, no. I mean, we're talking about the various Democratic stress tests that I've ah survived, right?

Gus
Yeah. Well, I'm curious, like when in the last year did you realize this was a different fight? Like you said, this is the toughest presidency you've had to deal with. What was that moment? Was it day one with all the executive orders or was there a singular act that you had to be involved in, in defending or responding to or something that happened when you realized, oh, shoot, we have to show up a little bit differently this time?

Ben
Yeah, and I want to be clear. I mean, I think, you know, look, so far in terms of impact on the world, neither Trump administration comes close yet to the Bush-Cheney administration. ah You know, invading Iraq for no reason, killing hundreds of thousands of people, unleashing a global refugee crisis that really transformed Western politics. I mean, having a torture conspiracy, you know, these things are, to me, still stand on their own.

Gus
Yeah.

20:15.74
Ben
you know Trump is is very, very destabilizing. And i guess I would say even before he took office this time, we all knew it was going to be really different. And it was going to be different because his first presidency was a failure.

Gus
Yeah

Ben
And it was it was so chaotic. It was, again, it it it caused a lot of harm.

20:33.98
Ben
But... The fact that they spent the interregnum period writing very long, detailed plans about what they were going to do was the signal that this was going to be different. Now, I thought it was going to be a little bit more organized.

20:47.38
Ben
I thought that they were going to kind of stick to the script of putting their own people. And I didn't realize that it was just going to be vandalism. And that, you know, you'd have a bunch of 20-year-olds working with Elon Musk who would just run through offices, you know, turning over file cabinets. Like, that I didn't think that that just appetite for destruction was going to be so high. I thought they were going to be a little bit more precise. At the same time, I also was worried that they'd be a little bit more popular. And I think if they had pursued some of their agenda more modestly, they might have been able to hold the public. But you know in some sense, lucky for us that they haven't. I will tell you one moment, Gus, where I almost threw up.

21:25.01
Ben
It's not the worst thing that Trump did. it was just one moment where...just everything was laid bare about what was happening to our country right now. And so Trump basically ended the refugee program when he came into office. We're not really admitting refugees anymore.

21:43.22
Ben
And then one day he announced that there was going to be one exception, and that was going to be for white Afrikaners. Oh, yeah. And that was an absolute gut punch. It was just like, we're taking off the mask here. This is it, right? yeah And it's not the most evil. It's not the most harmful. It's not the most destructive thing that they've done. But you know for me, it was the one that got around my heart and cynical defenses, and I just had to catch my breath.

22:11.80
Ben
and take a moment and reorient and say, okay, you know back at it. But yeah, that was when i just didn't have the resources to deal with that at that moment. It just knocked me completely off balance.

Caitlin
So from your perspective, Trump's first term was a failure and his second term is kind of a chaotic bum rush, but like term to term, I mean, the report says the ACLU were on track to double your total legal cases. So 434 legal actions in the first term, you've already done 239

Ben
Right. I just want to be clear here that legal action is not the same as lawsuits. So the lawsuits, I think, are somewhere like around 130. Legal action could include like a Freedom of Information Act request.

22:57.62
Ben
And so I think it's a little bit of a weaselly term. It's not the one that I use, but let's focus on the lawsuits.

Caitlin
yeah Okay, so you've done 139 lawsuits in this first year, which is still an absolutely obscene, crazy number.

Ben
yeah

Caitlin
Like Do you think the speed is the main difference between this time and last time, or do you think the speed and the planning, or do you think that there are other things as well?

23:18.07
Ben
Yeah, mean, but the planning is really key here, right? So they really studied what had gone wrong. And a big part of it for them was that, first of all, they were manifestly not ready. And so they didn't really have a program for what they were going to do in the executive branch. This time, you know, they thought, what are all the things that we can do without Congress at all.

23:37.88
Ben
And again, you can look at their reliance on executive orders from two sides. It's a projection of strength and it's a sign of weakness. If they can't even get their congressional party to endorse their program, then that's not a huge mandate. That's not Roosevelt. That's not Reagan.

23:53.27
Ben
But again, as I said, we have a fairly strong presidency, so you can actually accomplish a fair amount just through these executive orders. I think the main thing that they've done is a purge of essentially anyone in the executive branch who is not willing to toe the line. And it's not an ideological line, it's a loyalty line to Trump. And one way they enforce that is by essentially saying, who do you think won the 2020 election? And if the answer is Joe Biden, you can't work on the federal government under Donald Trump, right?

24:21.50
Ben
Now look what they've done to the Department of Justice, where you know thousands of lawyers have left. They're completely understaffed. And the lawyers who show up in court know that if they say anything that is not what the Trump administration wants them to say, they're going to lose their jobs and they're going to be fired, similarly in the FBI.

24:38.46
Ben
So I think maybe success or failure is not the right metric that I want to use for the Trump administration. I would just say that that they have been way more effective this time at pushing through the policies that they want to, at least for now. While at the same time, we have been much more effective this time because we were also more prepared in getting the courts to block or mitigate some of the worst harms. Now, you know, we can't solve these problems. Law isn't a substitute for politics.

25:08.98
Ben
You know, I think our report is called something like Dilute Delay or something like that, right?

Gus
Defeat, Delay, Dilute

Ben
I mean, it should just be called- It should be called sand in the gears, right? Because that's really what we're trying to do. We realize that there's no divided government right now. So, you know, Trump has a pretty clear runway for what he wants to do. All we can do is use the lower courts to slow down as much as possible.

25:31.86
Ben
the worst harms of Trumpism and give the rest of society you know some time to heal and to express that through elections. So far, the signs are pretty positive there. I know there's a lot of anxiety about whether we'll even have elections. I have no patience for that kind of whining.

25:47.00
Ben
Of course, we're going to have f***ing elections. mean like even Even Orban is worried about his next election. You don't cancel elections here. Now, they can do things like redistricting, although that's been a double-edged sword for them. But the kind of vote suppression that they get away with is around the edges.

26:01.37
Ben
in the kind of wave election that we're going to see in 2026, there's nothing they can do to stop it. And, you know, I think that's coming.

Caitlin
I read something that was quite cheerful about elections, which is to say that the states organize elections in America. They're not organized by the federal government. And there's not a huge amount the federal government can do to stop the states from organizing elections. And that cheered me up.

Ben
I mean, and that's why you saw Trump in 2020 putting all this pressure on state election officials and why they tried to run for office some of the state election officials who would be more sympathetic to Trump. But look, I don't think this Supreme Court is going to allow flat out election stealing Now, look, we saw Bush v. Gore in 2000 very, very contested. But anyway, you look at it, one of the candidates won or lost by a few hundred votes.

26:47.54
Ben
And it's not even clear that on the full recount, Gore would have won had the Supreme Court not blocked that recount. We don't know. But I don't think, I mean, if the 2020 election had gone to the Supreme Court, they would not have handed it to Trump. and it and they didn't even accept those cases. So look, Some of my optimism about this, about things, is strategic. I think it's very important for people not to get into the mindset that they can do things like block elections.

27:11.48
Ben
And i think you know people need to understand that they always have another move in a democracy. And you know we'll know when the time is right, if it's needed, for the whole society to go out into the streets. I mean, one of the questions that I think we get ah most most from Europe is, you know why isn't the whole country out in the streets?

27:30.36
Ben
Well, look, first of all, we have had incredibly large street protests. They haven't all been in one place. But under the banner of no kings, we had 5 million and then 7 million people in the streets, in small towns, in big cities around the country. That's massive by our standards. but The other reason is that, again, we still have elections. as a way to express our will. It's at a time when that tool is you know threatened or taken away that you need the whole society to come out and do a colour revolution in the streets. But I don't think we need that yet. you know We still have courts that are blocking some things and we still have an opportunity to replace these people in office with other people in office.

28:09.21
Gus
I was worried speaking to, even though you're a dear old friend, speaking to, what's your title now? Deputy legal director, is that what it is?

Ben
Yeah.

Gus
And speaking to the ACLU that on their front page of the website and in their report counts how many legal actions, which, yeah, agree, that's a vague term. I worried there would be like, oh, the law is essential to fight back. and But then like when I was reading the report, there were some really nice one-liners about They still use developing the national infrastructure for protest or a firewall for freedom. these are These are nice words.

Ben
Let's talk about the firewall for freedom for a second, just so people understand what that is. So we're a federalist system.

28:49.91
Ben
We have federal laws and we have state laws. you know There's 20 states that are effectively under opposition control, opposition to the Trump administration. The question is, can we work with those states and with cities and red states to pass legislation that will help protect citizens from the worst abuses of the Trump administration? Often in the area of immigration and cooperation, right? And so this is why it helps to have 53 ACLU affiliate offices around the country, each one that has lobbyists, lawyers, and you know and organizers to do that kind of work.

Gus
2,200 members of staff across the ACLU. And that's what makes it possible. And so that's again, that's why I'm so much more, it's not that it's hopeful, it's just I'm always worried when advocates say we're going to use the law, we're going to litigate our way through something. And when when I feel like more is needed than that just that. But I love that imagery you give, a sand in the gears. Right.

Ben
But also, yes, that's what was going to say. Litigation has been the most important tool in the first year, as long as we understand what it is that we're doing. Right. And we're not solving anything.

29:53.82
Ben
Right. like Courts can't order us to have different politics or better politics in the same way that we weren't able to prosecute ourselves out of the Trump problem. I think too many people were hoping that, you know, Robert Mueller and his Brooks Brothers suits would, you know, bring the indictment and, you know, Trump would, you know, either sit in a prison cell or live out his older years in Moscow. Right.

Ben
But, you know, I think we have to get a grip on how. The same people voted for Barack Obama and then voted for Donald Trump. Well, and guess what? Some of those people then voted for Zohran Mamdani in New York. So we need to kind of understand, and this is a global problem, not a U.S. problem.

30:36.76
Ben
What are the material causes of right-wing populism? And I mean, we've discussed this before. I think that there is a real temptation among progressives to think that the real problem is information hygiene. And if we could only control what people see on social media, we would solve this problem. And look, I can even show you a chart. um the Right-wing populism took off at the same time that that social media took off. And I said, well, let me add something to your chart. The global financial crisis. um you know In this country, millions of people losing their homes. And around the world, people having their prospects really wrecked by you know globalization and financialization and now automation on top of that. So again, all of this is outside of my remit. I'm not a pundit and I'm not like you know building a progressive politics. you know Our job, again, is to try to hold back the waters long enough for other people you know to do that really vital work.

Caitlin
Do you ever find that a difficult position to be in? Because you're there to defend civil liberties, and the name is that's the point of the ACLU. In a society, particularly in a given the economic forces involved, which is making that harder politically, do you ever find it a difficult position to be in to be like, well, you know the context is shaping the challenges we're facing, but we're here for the challenges, not the context?

Ben
Well, I think that's probably true for any NGO that has focus and has strategy.

32:08.09
Ben
I think I could ask exactly the same question of the two of you.

Caitlin
I know, I'm trying to get you to solve it so we don't have to.

Be
There's no solution for it. I mean, I have a colleague who once said, you know, I wake up a progressive, i go to work a civil libertarian, and I come home a progressive. And it's a little bit flip, but what she was saying was, this organization does not represent my whole political self, all my political commitments. It doesn't represent my concerns about the climate. It doesn't necessarily represent my concerns about income inequality and dealing with poverty and hunger.

32:37.02
Ben
Nonetheless, it's doing really, really vital work in keeping open democratic spaces so that other people can pursue those avenues. I'm sure that's how you think about the like vital role of the anti-surveillance and the privacy work that you're doing is that it's a key part of an open society, but you don't have to then you know sort of supply the plan for how you're going to fix everything else.

32:59.42
Ben
You are kind of holding up scaffolding so that other people have that room to do that. and so I think that's the best way of explaining why I don't feel conflicted um just because my work doesn't represent everything that I think is important or even necessarily the most important.

33:28.44
Gus
The role that surveillance has played, I think, in what has happened in the US wasn't clear at first in that the kind of targeting that was done, like, I don't think anybody expect DOGE to be DOGE the way it was when it came to the data question. And the covering of the Department of Government Efficiency was mostly about what they were destroying And that wasn't ah an immediate appreciation of the data aspects, for instance. And in your own, in the ACLU report, I didn't see much mention of that. Or in the targeting and detention of people, it was based on lists and names they already had or people showing up at court because they were due to show up anyways.

34:10.20
Gus
Has that changed? Like, is there any concern about the types of technologies that are being deployed, types of uses of data being deployed that will become part of the infrastructure of policing going forward, for instance?

Ben
You know the tech community likes to see itself in the center of every development that's happening in this country. But that in my view, Trumpism was mostly low tech.

34:34.14
Ben
And then I remember having this debate with techies in 2017, and they said, they're going to use the NSA to do deportation. And I said, No one's hiding. They don't actually need to do this. People have social security numbers. People go to work. People go to school. They go to hospitals. The reason why we haven't had mass deportation is not because the government can't find the people. It's because no political leaders really wanted it.

34:58.27
Ben
Republicans didn't want it because their business patrons don't want it. They need low wage employment and Democrats don't want it mostly for more principled reasons than that. But that's why we haven't had it.

35:10.33
Ben
And that, you know you know, there'd be important legal battles, but I just didn't see technology as being such a big piece. And then, and then you see the vendors like Palantir who, love to be portrayed as the major player because it's their business model.

Gus
They don't they?

Ben
Yeah, so that they can peddle their wares to everyone and say that, you know, tech is what's so important. I was probably overcorrecting, you know, because obviously technology will be part of a lot of this

35:36.78
Ben
cruelty, but you know the technology that we're seeing in the streets of America right now is just paramilitary gear. Probably better if all those people were wearing body cameras so that we could capture more of what's going on. This is probably a problem of too little technology in there, not too much, trying to turn Minnesota into Fallujah.

35:58.30
Ben
It doesn't require a Palantir to do that. So I think even Doge I think the reason why you don't see it so much in our report is that you know for the first few months of this Trump administration, Elon Musk became the bogeyman.

36:13.66
Ben
And so it was doge, doge, doge, because you know this evil weirdo billionaire is running our government. And a lot of our donors and supporters are saying, what are you doing about doge? What are you doing? and I said, you know, we're an organization of limited resources. And I promise you the most important problem is not that Elon Musk has your social security number.

36:33.72
Ben
I promise.

Gus
Wow. Right. that

Ben
It isn't. It isn't.

Gus
But you said that to your supporters. That's gutsy.

Ben
And on staff. Yeah. We don't need a bunch of shiny Doge lawsuits. We succumbed to the pressure and did a FOIA request for Doge. One your legal actions. A legal action, right? And maybe we sued on that FOIA request. I don't even remember. So that might've been a lawsuit too.

36:53.85
Ben
But we didn't chase that shiny ball. I think we were proven right. there There's nothing really left of it. All those people have left with their tails between their legs. And we focused on the things that matter to us. which is that you know people are being pushed into vans and rendered to Louisiana for writing op-eds critical of administration policy. right i mean If you look at the things that we are litigating, they are our core priorities. And so I think one of the the real challenges here is to not always chase that shiny ball. and I like that. And I really think that's what it was. I saw like people had a real emotional need for us to hurt Elon Musk somehow. And yeah, I mean, look, some of that pressure was internal too, but I just, I don't think Doge is a huge part of the story. Now, that doesn't mean that I think that privacy, you know, is a luxury issue. I just think that most of the things that we care about on how new technologies are affecting privacy are not really specific to Trump.

37:48.28
Ben
And so the big challenge for us is how do we leave space for doing that long-term work while we're also responding to the emergencies of Trumpism and And we do. ah you know Many people on our speech privacy and technology team that I used to lead are not working on Trump issues. They are working on, I gave the example before, you know how do we prevent digital IDs from becoming a privacy nightmare? How might we actually use advances in cryptography to make digital IDs a privacy gain over traditional driver's licenses? Not likely, but not impossible, right?

38:21.27
Gus
This is so goddamn refreshing because like most of the conversations I'm in professionally, not personally, thank God, but unfortunately still too many are about this rising authoritarian threat. And how we all must respond to that rising authoritarian threat. And Trump is just but the first and every other country shall fall. The world's being divided, blah, blah, blah. And it's not that none of that is true, but it isn't the thing that we necessarily have to respond to. We have to play our own game. Like we've been fighting against the building of this infrastructure of surveillance since day zero. And it doesn't matter who is where and what White House or not.

39:00.15
Gus
This is what we're fighting against. And so I love this, except but they this is the only caveat. If none of those tools are used by a Trump because a bludgeon in the door is more effective. Are we not the right ones to be investing in? Should we be investing in the side of the ACLU that can throw the sand in the gears and the traditional civil liberties fight versus the the building of of a future infrastructure that actually might not be used because authoritarians are much more basic.

39:32.18
Ben
Well, except where they aren't. I mean, in China, they're basic and they're not basic, right? So look, obviously, the work is vital. It has to continue. I'm not going to say or. I'm going to say and. I think the stuff that we're doing on preventing mass deportation is emergency work.

39:49.02
Ben
And if we had to choose between doing that and doing our long-term work, we would, of course, choose to do the emergency work. That's what an emergency means. or You have to do it. And you know i think we're fortunate that we don't have to make that choice.

40:01.30
Ben
And one of the silver linings of unconscionable income inequality is that our wealthy supporters are wealthier. And so we raised a lot of money this year. And so we are keeping our staff levels. We're hiring. If you look at our website right now, we're hiring another dozen lawyers so that we can you know sort of maintain this pace and not have it overwhelm us and so that we can continue doing the things that we need to do.

Gus
You can walk and chew gum.

Ben
Yeah.

Caitlin
There's one place in the report where pretty clear privacy is who does pop up and that's discrimination through government IDs and transgender, intersex and non-binary people's gender markers on their passports, which the ACLU kind of you know went in on and secured initially nationwide relief that allowed people to access proper, appropriate and accurate passports, which was later stayed by the Supreme Court and that cases continue, which is proper old school like

40:54.65
Caitlin
I mean, speaking to what you were saying, Gus, about tech, it's not really digital and tech and all this stuff, but it is old school privacy. And one of the things PI looked at a few years ago was, is it worth trying to start the argument to say that why is a gender marker on your passport anyway?

Ben
Well, there wasn't one until relatively recently in the US. s This is not something that has always been there before, right? So it reminds me of this big debate that we had in the the US, i don't know, maybe 20 years ago when someone challenged that it says Under God on our currency. And it said the framers of our constitution... But of course, like under God was put on our currency in the 1950s during the Cold War. It wasn't there before, right? You don't need gender markers on passports. There's no reason for it whatsoever. And that would be an easy solution that ought to be able to satisfy everybody. it doesn't seem like the direction it's going here.

41:42.74
Ben
And this is one where I think candidly we don't expect a friendly Supreme Court, even when they have the full case on the merits and not just on the emergency docket where they had it already.

Gus
Yeah, under God was a Cold War policy because of the ungodly Soviets.

41:57.17
Ben
Right.

Gus
It's It's extraordinary.

Ben
Yeah, it was not put on the currency by Benjamin Franklin.

Gus
No, no. Nor was it religious zealotry. It was just, let's... yeah yeah

Caitlin
But speaking to the tech aspects of the Trump administration, i think one thing that we have probably been underutilized is as Trump disrupts America's standing in the world, he's quite a useful bludgeon for things like the encryption conversation.

Ben
yes

Caitlin
Why wouldn't you have encryption if you don't trust the Trump administration and the American tech giants in it?

42:26.62
Caitlin
fosters and collaborates with.

Ben
Well, I think Signal is one of the most popular apps in the Trump administration as well.

Caitlin
Right?

Ben
They don't want records of their communication. I don't think that they're good enough at the settings though. So if someone could...*laughter*

42:41.05
Ben
enough But yes, I agree. And I do think as much as possible, every civil society organization in the world should be using Trump to the best of their ability to advance liberal priorities and goals.

42:55.13
Ben
So the other thing we haven't talked about is what comes after Trump. I always give the example here that the 2001 Patriot Act was largely written before 9-11, not after.

Gus
Oh yeah. Yeah.

Ben
The Department of Justice and the FBI, they knew what surveillance authorities they wanted, and they chose the perfect time to get everything that they wanted. you know So the post-Watergate era is the more progressive example of that. and all the ethics and good government reforms that were you know instituted in the 1970s after the fall of Nixon.

43:28.92
Ben
And so I think one of the things that we need to be doing too is thinking about how do we use that window to constrain executive power and executive abuses in the United States going forward? I don't think you can really Trump-proof the US presidency because it is a strong presidency, but that has to be the goal, which is, will there be even a bipartisan moment where you know after an electoral wipeout, which we might see, people in both parties realize that you know we don't want Trump 2 2032 beyond,

44:00.38
Caitlin
Have you started your wish list?

Ben
Yeah, we have. That work is happening. I mean, the hope is to distill it down to a number of things that could be embraced across civil society and put forward collectively. So, I mean, I think lots of groups will have longer lists and we will have that too.

44:17.24
Ben
But are there, you know, five wonderful sound bites that could actually be put into someone's campaign and presented as a mandate if that person wins?

Ben
on doing this. So it's it's not as easy as it sounds just because most people don't want to run for president on the platform of weakening the presidency. But I think we might have that possibility in 2028.

Gus
I don't know if you've read Henry Farrell's book, Underground Empire.

44:42.71
Gus
wrote it with somebody whose name is escaping me. But It essentially looks at that 2000 to 2005 era and looks at how the American government was able to use its power to embed itself in systems like the Swift case, which PI worked with the ACLU on the fact that the Bush administration was getting direct access or access to the the world's financial infrastructure because of cozy relationships and secret access. And that allowed America to assert its power around the world. And so there are a number of those types of tools that America's built in the last, say, 40 years. And this Trump moment is actually, it's that power being used extraordinary. But Biden did it too with cutting Russia off or dealing with Iran through these types of underground uses of power that America holds uniquely in the world.

45:39.29
Gus
I do wonder if that's going to start fracturing because of the way that the world is dividing.

Ben
It probably already has started fracturing. I don't know if it has at that layer. But I mean, I think there are meetings happening this week to contemplate life after NATO.

45:55.67
Gus
right Yes, exactly.

Ben
And I'm sure that with the tariffs, there are attempts to try to weaken the dollar's centrality. and you know I mean, I think these, I said, accelerated the shift to a more multipolar world. I'm sure that's correct. And this is one where I always say for better and for worse. Yes. I mean, U.S. hegemony has not been all negative, but it certainly hasn't been all positive, right? you know There's hardly a decade where it didn't lead to death and destruction in some part of the world.

46:25.50
Ben
So I think you know Trump doesn't actually have a coherent ideology about this, this America first, and his texts to the Norwegian prime minister are incredible. He says, I tried peace, but since you didn't give me the Nobel,

46:42.65
Ben
I got to move on to war. I might as well. Right.

Caitlin
It's the only benefit of peace is the Nobel Peace Prize.

Ben
Yeah, I guess. I guess. No, I mean, but, but I mean, Trump, you know, there were times when he had positioned himself as falsely as the person who had opposed the Iraq invasion before it happened.

46:58.80
Ben
That's made up. But as someone who didn't believe in, you know, adventurism and nation building and, you know, There definitely are people in his coalition who believe that very strongly. you know Again, Trump doesn't have politics. But yes, there are ways in which a weaker United States, hastened by Trumpism, you know could have some positive benefits for the world, right? Yeah.

47:22.23
Gus
And so my final off-topic question is, yeah one of the last time we were drinking whiskey together in a London bar, you were telling me about this fascinating corridor you're going down around national security law and how there's no such thing as national security law, but it it exists and it's interesting.

Ben
This is on topic, by the way. And I'll tell you why in a minute.

Gus
Good, because I was worried that in this conversation where you're talking about There's the emergency we're responding to versus the long term advocacy that we're all trying to do to create change in the world that you weren't able to develop that further because national security isn't what what it was even a year ago, let alone five years ago 50 years ago

Ben
What I was talking about in that conversation and in some lectures I gave a couple of years ago was how this doctrine of national security law is really window dressing for impunity, for executive abuses under the banner of national security. And that the dominant kind of judicial response to challenges to executive overreach in the national security context has been deference, has been judges saying, look,

48:32.89
Ben
We're not experts in this, and so we have to defer to the people in the arena, at the and NSA, and the CIA, and the military, the ones on the front lines. With the stakes this high, we're not going to intrude.

48:44.25
Ben
So if we're talking about potential silver linings, right one of them is it's getting harder and harder for judges to defer to anything that the Trump administration says in court.

48:56.95
Ben
And so these doctrines of deference, I mean, look at something like tariffs. They're going to the Supreme Court to say that this is all about national security.

Gus
That's right, they are.

Ben
Meanwhile, Trump is tweeting, if Lula doesn't let Bolsonaro out of prison, I'm going to do 50% tariffs. maybe...

49:11.38
Ben
and so maybe we start chipping away at these ironclad deference doctrines because it just becomes impossible to defer to these people and the courts do what they're supposed to do, which is literally to second guess the assertions of national security officials. And instead of saying, they and we won't, they'll say, like we actually have to.

Gus
Wonderful

Ben
Now, whether that can survive a Trump regime and whether that will be a real gain, we'll see. but you know I can count on one hand before the Trump administration the number of times that you know courts have overridden these kinds of national security claims, but that number is growing and it's going to keep growing the more that they invoke contrived emergencies. I mean, the Supreme Court ruled against them on the deployment of the National Guard in Illinois. yeah This isn't a context where you'd expect the Supreme Court to rule against a president on when the National Guard should be deployed. But it was so obviously made up. The Alien Enemies Act, the court has already ruled against the administration twice on their claims in this case, and will do so again.

50:12.82
Ben
So maybe, maybe what I've been complaining about all these years, which is courts not doing the work that they need to do, will change a little bit because of just how not credible the assertions are from Trump. Now, I would say they weren't credible from Bush and Cheney who were making those assertions to cover up their own crimes. But the system circled the wagons for them back then.

50:35.29
Ben
And again, I think that's becoming harder and harder to do in the Trump administration.

Gus
So dare we say that this is an exciting moment, like that all this period and in history, most people are saying like, oh my God, this is a horrible time to be alive. There's no future prospects. AI is going to replace everything and authoritarians are on the rise. I'm incredibly excited about the future. And some of the things that you're teasing out is like finally some deep systemic corrections can take place.

Ben
This could tilt in terrible ways and in positive ways, but at least everyone understands we're not going back to the Obama presidency, right? I think in the first Trump administration, everyone thought like, oh, if we could just get this Russian stooge out of the White House, Obama can be president again. We'll have Michelle Obama this time, right? Michelle, of course. Everything else was great. Everything else was great. No, I mean, there's real tectonic disruptions taking place that can't be ignored. anymore. And, you know, it's my job to be optimistic about what might be built in their place. I am in my own lane, but it's certainly not going to be a return to the calm neoliberalism that wasn't calm for most of the world, but that liberal elites seem to enjoy here.

Gus
That's a beautiful spot to end on.

Caitlin
Thank you very much for coming on and talking to us. It was really fun.

Ben
Sure. Great to see you both.

52:03.60
Gus
Thanks for listening to this podcast. It was great to be able to catch up with Ben. We are going to accumulate a list of links to materials that he referenced or or we talked about. And as ever, we'll be uploading them to the description for this edition. And you'll be able to access it from wherever you access this podcast, but also at pvcy.org/techpill.

52:26.81
Gus
And you can sign up to be the first to learn more about this podcast and the future editions we have for 2026 by going to pvcy.org/podsignup. Don't forget to rate and subscribe to the podcast on whichever platform you use.

52:42.04
Gus
Music is courtesy of Sepia. This podcast was produced by Max Burnell for Privacy International.