Let's shift gears here and talk about the Bush Administration. How much damage did the Bush-Cheney Administration do to the American Constitution?
Well, I think they did enormous damage. But one reason that they were able to do enormous damage was, as I said earlier, that there had been a prior history under prior presidents.
How much of this sort of aggressive prosecutorial behavior is found in the so-called War on Drugs?
It certainly grows out of the environment fostered by the war on drugs. The war on drugs was really one of the great excuses for weakening the Fourth Amendment. That's the freedom to be free from unreasonable searches and seizures. As a result of the war on drugs, courts allowed the government to search people without warrants, when they're in their cars, when they're carrying suitcases, when they check in at airports and train depots, when they're walking on the street ? in a whole variety of situations. What that did is it began to give courts and the government this mindset that, when you consider the law-enforcement need to be sufficiently serious, it's okay to water down constitutional rights.
That mindset, I am convinced, was partly responsible for allowing prosecutors to believe that, if you're going after people whom you don't like, or who somehow seem to you not to be good people, you can begin to stretch things — first a little bit, then a lot.
That said, I don't fully understand how this came about in all of these other areas. When I had submitted my proposal to my editor at Encounter Books, he said to me, "Well, shouldn't you have a chapter explaining why this happened and what we can do to cure it?" And I thought to myself, the truth is, if I want to be honest, on a deep level, I don't understand why it happened. I only can show that it has happened. And as for a cure, I have a few tentative suggestions in the book for where we might go, but I don't know the cure for this problem. I certainly plan to work on it. I'm not a fatalist. But I'm not sure what caused it to start, and I'm not sure what's going to cause it to end. I will tell you, though, there is no question in my mind that I am absolutely right in spotting this as a major threat to liberty.
A cynic might say, "Jeez, this attorney Silverglate sounds like he doesn't think there are any bad guys in the world."
That is absolutely not true. I have written about a very specific phenomenon. The phenomenon is the pursuit of innocent people in all fields, in all walks of life, under statutes that nobody understands because they're meaningless. That's what I've written about.
I think there are many criminals. I have represented many criminals who were guilty. I haven't written about them. I have written about the people who were innocent, and who were nonetheless indicted, and often convicted and often imprisoned, even though they had done nothing wrong. Because I am a criminal lawyer and I know a lot about crime, I can tell you that there are quite a few criminals out there. But that's not what I've written about.
Harvey Silverglate will be at the Harvard Book Store, 1256 Mass Ave, in Cambridge, on September 24 at 7 pm. Call 617.661.1515 or go to harvard.com for more information.