David French: MAGA Is Making America Less Free

The Bulwark Daily

David French discusses the erosion of constitutional liberties in America, focusing on how non-citizens' rights are being undermined under current

Key takeaways

• The U.S. Constitution protects free speech and due process rights for non-citizens, not just citizens.
• The Founders intended American liberties to extend beyond citizenship, including to foreign-born individuals.

Main topics

• Constitutional rights of non-citizens
• Deportation policies targeting political speech

Notable quotes

"The Constitution is a suicide pact" – a reaction to the idea that non-citizens have free speech rights.

Conclusion

David French warns that efforts by figures like Marco Rubio to restrict rights based on

Transcript preview

Speaker 1 (0:13) Hello and welcome to the Bulwark Daily. I'm your host, Tim Miller. Delighted to welcome back to the show, opinion columnist for the New York Times, co-host of the legal podcast, Advisory Opinions, former JAG officer. It is David French. Welcome back, David. Tim, great to see you. Good to see you too, man. We'll have much to discuss, including ending with your class conversation about just war theory and LSU football. So we'll get to that. I have minor good news for listeners and an appreciation for people. Speaker 1 (0:40) that were calling Katie Britt and others' office. The Venezuelan family I'd mentioned a couple of weeks ago now, Edgariani and Freddys, did finally get out of the Dilley Detention Center and they are back in Venezuela. I mean, probably the best news would have been if they were able to stay in America, but that's neither here nor there. At least they're no longer in a detention center. Appreciate the audience that engaged on that. Less good news on some of the other stuff related to the detentions. I wanted to start there. You wrote a Times... Speaker 1 (1:07) column this week talking about now, you know, about a year old, the Remesa Osterk story. There's a legal ruling about that that reflected back to that story and talked about just kind of the perniciousness of this policy by the administration. So why don't you just cook on that? Sure, sure, sure. So let's go back to March 2025, March of last year. And there was this footage that was really. When you knew it in context, it was really shocking. It's this young Muslim woman. She's bundled up for the winter and it's cold weather. And some plainclothes officers come up to her. One of them puts his hands on her. She screams. Next thing you know, there are several other plainclothes officers. They kind of gather around her, lead her away, shackle her, lead her away. And if that was a video of an arrest for, say, a violent crime, you know, murderer, armed robber. Speaker 1 (1:57) Something like that. It would not be a shocking video. It'd actually be kind of a benign arrest. I mean, she wasn't thrown to the ground or anything like that. But then you heard why she was arrested. She was arrested and detained for deportation because she was a co-author of Tim, what is really a pretty milquetoast op-ed? Yeah. I mean, it was anti-Israel, no question about it. You know, it was calling for a Tufts University where she was a graduate student to... you know, boycott Israel, you know, wanted the school to call what was happening in Gaza genocide, like very standard rhetoric, like very standard rhetoric. She was one of four authors. And immediately the news comes out that she was being deported under this relatively obscure legal provisions that give the Secretary of State essentially total discretion. Speaker 1 (2:49) to deport a visa holder when the Secretary of State, in total discretion, decides that they're a serious threat to the foreign policy of the United States. And when I first heard this, I thought, That can't be right. Like even in the Trump administration, like even in the Trump administration. She's got to be texting ISIS or something. Yeah, she's texting ISIS, she's shoplifted, like something else is going on. But no, as the court proceedings unfolded and there was a bail hearing after she'd been detained for weeks, Tim, for weeks, there was a bail hearing. And the judge in the hearing was like, no, this is she was detained for co-authoring again. Speaker 1 (3:28) This was not an op-ed calling for the violent overthrow of the United States of America. It was an op-ed engaging in bog standard pro-Palestinian rhetoric, like the most standard pro-Palestinian rhetoric. It wasn't even written in an inflammatory way. It's pretty dry, to be honest. And no, in fact, she had been detained for weeks for writing an op-ed. And the reason I wrote about this, this incident that occurred in 2025, is because just Last week, there was a federal judge in California who struck down or issued a declaratory judgment declaring that the statutes that Rubio had used were unconstitutional, at least as applied to protected speech. In other words, the government was relying on unconstitutional statutes to deport non-citizens for their speech. And so I wrote about that for a couple of reasons. One is I'm just getting all of this sort of. Speaker 1 (4:28) You know, normie Republicans who are desperate for a normie Republican to kind of unite behind in around 2028. And a lot of them have fixed their eyes on Marco Rubio. Well, Rubio, in his little sphere of influence, has been a bit of a ten-pot dictator. The worst. I ranked him the worst last week in the cabinet. I mean, this is... Inexcusable. Like these people and what we found out is and what the courts found out is that there were factual findings and investigation of all this is that the administration worked with a pro-Israel activist organization called Canary Mission, got a list of about 5000 people to further scrutinize who had engaged in pro-Palestinian rhetoric or anti-Israel rhetoric, whittled that down to between 100 and 200 people. Speaker 1 (5:15) to target them for further investigation, again, around their political speech. So if you're thinking about this as, wait a minute, could this happen in America? Like, what is happening? You're on the right track. But when the judge struck down these statutes, the reaction in parts of the right was just really volcanic at the very idea that non-citizens would enjoy free speech rights. Just volcanic. Some people are even calling it Speaker 1 (5:43) The Constitution is a suicide pact. Suicide pact because it lets graduate students write op-eds? I mean, what are we even doing here? I mean, this is – Ben Shapiro, even like in the more mainstream of the right wing media, like he wrote this. You put this. Like we should deport people who hate America and aren't citizens. The administration was making precisely the correct moves on this front. What the heck? And what was making this particularly pernicious is that – Speaker 1 (6:09) If you actually read the text of the Constitution, if you read the Declaration of Independence, if you read the founders, sort of the idea that American liberty is for American citizens only was totally alien to them. I mean, that's just not the way that the United States was envisioned. Well, all of them were born in a foreign country, for starters. Well, I mean, and, you know, it's so funny, Tim. One of the things, I feel like this is my nerd moment. Speaker 1 (6:34) Like this is the nerd moment. Like I've been waiting for my whole life. I love to read about the debates around the founding. I've loved to read about the founders my whole life. I've read the Federalist Papers, the Anti-Federalist Papers, and was just waiting in a corner, Tim, to like pounce on the right moment in American history to be like, this is all so relevant because it is. You know, what's so interesting is we're refighting a lot of the fights around the founding. It's the Trumpist right that is essentially trying to reinvent the founding of the United States to pull, you know, for all their talk and Trump won the 1776 project and all of their tattoos about patriotism and all of this stuff. A lot of these guys are essentially trying to unwind big parts of the founding to make America less free. Speaker 1 (7:23) And more chauvinistic and nationalistic. And more white. But we have, you know, going back to the Alien and Sedition Acts in 1798, you have men like Thomas Jefferson, principal author of Declaration of Independence, James Madison, principal author of the Bill of Rights, saying, no, the blessings of American liberty extend to non-citizens who are in our midst. And this is very, very clear. And Jefferson even goes so far as to say, if you are attacking the, quote, friendless alien. Speaker 1 (7:52) The citizen is next. And we have seen this. We have seen this. And we can go into the law of it all. But the text of the Constitution backs this up as well. The ban on Congress abridging free speech is a blanket ban. It's not for citizens. The Fifth Amendment, which was also another constitutional amendment the court used to overturn these statutes, protects the due process rights of persons, not just citizens, persons. And so. The text of the Constitution, the clear intent of the founders, the Declaration of Principles and the Declaration of Independence, which does not limit unalienable rights to Americans. You know, all men are created equal. All of this is said that from the founding, this idea that non-citizens in our midst have no rights at all is just alien. And here we come with Marco Rubio coming in and exercising this. Speaker 1 (8:47) really stupid grant of discretion that Congress gave presidents and secretaries of state years ago, exercising it in the most brutally authoritarian way, and creating literally, Tim, like a class of political prisoners in the U.S. Well, I want to bring this up for three reasons. One, I want to let you nerd out. Two, when I did a big rant about Marco Rubio not being the normie in the administration last week on the show, I was focusing on... Speaker 1 (9:13) You know, his failures in diplomacy, which I think is, you know, the main job of Secretary of State, as far as I can tell. But he's got a lot of hats. Yeah. But I left this kind of aside, the immigration part of it, which is maybe where he's shown his most authoritarian impulses. But the other reason I wanted to bring it up is I mentioned on the show the story of Mariam Tamasebi and her husband and son a couple of weeks ago now. There was an article in The Nation she had written from inside of Dilley Prison, an article from The Nation. Speaker 1 (9:41) And I've now been emailing her a little bit. And so I just want to say up front, this story is so insane. It's similar to the Remesa Ostrich thing. It's like my source for this is what she is telling me. Right. And so is it possible there's some other thing happening? I guess. But the administration hasn't shown us anything. And now we've seen the administration's track record of doing things exactly like this. So I don't have any reason not to believe her. But I do just want to say that. So the story for people who missed it the last time I mentioned it. Speaker 1 (10:07) There was an online smear campaign. This is kind of really similar to the OzTrek story, but instead of being about anti-Israel, it was about, it was kind of the pro-Shah Iranian crowd. Maryam Tamasebi's mother-in-law, so her husband's mother, was a translator for the Iranian hostage takers in 1979, before any of the people that are detained were even born. kind of petition went up online that they were targeted. They've been detained. They're from California. They were sent to, well, Mariam and her son are in Dilley. The husband's in a different detention center somewhere else. So they've been separated. The email she sent to me, she says, again, this is her testimony. Our case is the first of any green card holders in the history of the country. The government's taking their legal status away, not because of anything that they have done, but. Speaker 1 (10:56) Because of family relationship, the government's presented zero evidence except for this Rubio letter that you have been talking about, David. That Rubio letter resulted in the detention of her child, a 10th grader, saying that he's a potential threat to U.S. foreign policy. She says he's an average American teenager that's been harmed beyond belief by this. The family doesn't even have a speeding ticket to its name, no other crimes. The government hasn't offered them a single pathway out of detention or even out of the country for 150 days. Talked about weeks in the Osdorff case. They've been in detention for 150 days. Unbelievable. Speaker 1 (11:32) Unbelievable. I mean, now, again, I will do the caveats. But, you know, at some point, this is what happened with the Oster case is the government has to put up or shut up. In other words, when you go into court, there's got to be evidence there. And and what the what the administration is very good at doing is making sort of sweeping condemnatory statements and then not backing them up with any evidence at all. Like this op ed, you know, one of the things you're talking about. Speaker 1 (12:01) Ben Shapiro's statement and others about people who hate America, you know, Stephen Miller, people who hate America. If you read the op-ed, you would see that she doesn't have a lot for Israel. No question about that. And as I said in my piece, I disagree with this op-ed. I'm not sitting here defending somebody who's like on my side of an argument. This is somebody who I disagree strongly with the op-ed, but you know, this is the United States of freaking America. Speaker 1 (12:26) And if you can't debate a Tufts PhD student on this matter, who's the snowflake here? Right. I mean, like, come on. And so and so here you have a situation where once again, you know, you had this sort of hate America and then you hate America is not a grounds for what does that even mean? Who's defining that? Right. Yeah. But that's not even Trump hates America in some ways. He's attacked our country and our history in some pretty. Speaker 1 (12:53) incredible ways. Yeah. I mean, he's compared us to Putin's Russia. I mean, this is the kind of thing that he does, but this sort of idea that you're going to make these big sweeping declarations and time and time again, not always, sometimes, you know, we hear one story and then when the evidence comes out, we find out that the person who's being deported did some serious things. You know, sometimes the facts actually align for the administration, but we've seen this movie before, Tim. Speaker 1 (13:18) Big sweeping declarations when it comes to put up or shut up in court, they have nothing to put up. And this is something that's very important, I think, to emphasize. We're seeing this, people being detained in tough conditions, detained, imprisoned, when they're not actually accused of a crime. Indefinitely. Indefinitely. That's what she said to me in the email. She's like, I've been in for 150 days. Even if Rubio's detention order was somehow constitutionally valid. Why is a non-criminal spending weeks in difficult conditions in detention when they're not even being accused of a crime? This is something that I think keeps getting glossed over in a lot of our debates. Again and again, you see the administration bragging about the brutal way that it treats immigrants. You see immigrants being led in humiliating fashion up airplane steps, bound hand and feet, shackled hand and feet. Speaker 1 (14:15) Like criminal defendants coming into a courtroom of people who, you know, armed robbers, suspected murderers, et cetera, bound hand and feet. And the people who are bound