Targeted Killing, Indefinite Detention, Military Commissions: What Happened to Checks and Balances?


Jack: … policies is pretty good. I’ve got
some quibbles, probably in both directions, but I think that we’re in a pretty good place.
I think it’s hard for any of us to really know whether we’re in a good place, because
we don’t have access to adequate information about the threat, and we don’t know … really
know … which techniques are really necessary to address which kinds of threats, and what
kind of risks there are, either in being too aggressive or not aggressive enough.
There are morally and legally contested issues that go into the assessment … the normative
assessment is kind of [inaudible 0:00:28:9] in policies. My claim, though, is that as
a result of extraordinary judicial intervention, congressional intervention, extraordinary
actions by the press to get inside the president’s secrecy system, extraordinary actions by people
like Jameel at the ACLU, and people at the Center for Constitutional Rights, extraordinary
actions by … especially by inspectors general inside the government, but also lawyers and
other accountability actors inside the government … as a result of all of these actors coming
to bear on the presidency, many of which are new … relatively new in wartime … I think
the degree to which they’ve acted is new in wartime.
I think they’ve all been enhanced in their power by technology in ways I’m happy to talk
about later. As a result of those, we’ve seen the presidency held accountable. By accountable,
what I mean is a very simple idea; the president’s actions became known, either inside the government
or outside the government. He was forced to account for them, or his agents were forced
to account for them, and the various actors involved at various stages were able to decide
whether it agreed or disagreed with what the president was doing, and to impose the punishments
it had within its power if it didn’t agree with them.
I went to interview Jameel for the book, 18 or so months ago, and had a wonderful interview.
The reason I wanted to interview him was because I thought that his FOIA litigation was hugely
consequential and perfectly emblematic of the accountability system I’m talking about.
This is a litigation in the southern district of New York that resulted in over 100,000
documents being disclosed, many of them classified. These disclosures were one part of what I
call an ecology of transparency that led to the pushback on the Bush administration’s
interrogation program, and ultimately to its … after the Detainee Treatment Act of 2005,
and then Hamdan in 2006, to its effective elimination and then to its final death by
President Obama in 2009. We had this great interview, and I think Jameel
can speak for himself. I suspect I thought I sensed from the interview that he expected
that I was going to come in, and I wanted to interview him so I could document how evil
and bad the ACLU had been, and how pernicious they’d been in harming our national security.
In fact my story, and the story I wanted to talk to him about, was how wonderful they’d
been, and how important they are to our national security system, and to keeping the presidency
in check, and indeed, to legitimating the president’s powers.
Jameel, I wasn’t fully aware of this thesis until kind of the end of our conversation.
It was a very important interview for me, at the end of which he said jokingly, and
I paraphrase; “So I see, your thesis is that I’m the person responsible for the imperial
presidency.” There’s actually something to that. One of my several claims in the book
is that human rights NGOs have been extraordinarily successful in bringing transparency and judicial
review, among other things, to the powers of the presidency.
Sometimes, this has resulted in complete pushback against the president, as in interrogation.
Other times, it’s led to modest pushback, but then supports what the president is doing.
In interrogation, basically that program ended with a rugged military. The three topics we’re
talking about today … commissions, detention, and targeted killing … with regard to military
commissions, the basic story is, is that commissions are much more legally sound, much more defended
and protective today, than they were when the accountability system started to operate
in early, what … eight or nine years ago. Many of the things … I would say most … it’s
hard, depending on how you count … almost all, in my opinion, but Jameel might contest
this … of the things that the ACLU wanted back in 2002, have actually been given. Military
commissions are remarkably reformed today, and they have the approval of congress at
least two or three times, depending on how you count, and the approval of two presidents.
As the report in Hamdan implied … it didn’t hold, but it implied that military commissions
were legitimate to some scope, as long as they were authorized by congress, which they
have been. Same story on detention. Today, we have approximately
175 detainees in Gitmo, all of which have been given habeas corpus review as a result
of the efforts of primarily the Center for Constitutional Rights. As a result of this
litigation, and responses to the litigation, presidents have both … the last two presidents
… have released hundreds and hundreds of prisoners from Guantanamo Bay, which is a
huge achievement. Michael Ratner, who I interviewed for my book, views this as a huge achievement,
and it is, from the … for the goals he set out on.
The result of bringing judicial review, getting congress more involved, has been to raise
the detention standards at Gitmo quite significantly, and the judicial treatment, but also to legitimate
the system. Now, the courts across the political and legal spectrum in the D.C. circuit have
approved of that detention. We’re in a position today, as a result of the CCR litigation,
where detention is much more legitimate within our system … much more legally secure … than
it ever would have been otherwise, and that it ever has been before.
Finally, on targeted killing … and this is the last thing I’ll talk about, and then
I’ll turn it over to Jameel. As a result of the accountability campaigns brought by the
ACLU and CCR, and primarily as a result of the law suit that Jameel brought and lost
in the district of … the D.C. district ward, the district court in the District of Columbia
… as a result of that litigation, we know much, much more about the targeted killing
program than we did before, and than I think we would have.
The administration, both through leaks … and there have been significant leaks about both
the factual and procedural details of the targeted killing, and the legal details … both
through leaks, which is part of this culture of transparency and accountability, and through
overt statements by … and speeches including yesterday’s speech by the general counsel
of the CIA here at Harvard … we know much, much more about the legal basis and factual
basis, and what the administration is thinking about targeted killings.
We also have at least … and I’m sure this is an unintended consequence, and I’m sure
Jameel will attest to this, but to my mind, the president is in a much stronger position,
politically and legally, as a result of the ACLU lawsuit. We now have at least one federal
district court … and it’s only one district court, but it’s a lot better than no district
courts … saying, in the context of al-Aulaqi, that, and I quote, “The executive’s unilateral
decision to kill a citizen overseas is constitutionally committed to the political branches, and judicially
unreviewable.” We now have a court that has looked at this case and said, “It’s not the
court’s business. It’s the political branch’s business.”
Finally, I think that … and again, I can’t prove this, but I do believe it’s related
… as a result of the accountability and transparency campaign and the lawsuit, we
know a lot more about the targeted killing program than we did. I think that that information
is what underlies the extraordinary consensus in this country in support of targeted killing,
even targeted killing of American citizens under the circumstances that have been offered
by the government. According to a “Washington Post”/ABC news
poll, 83 percent of respondents, including 77 percent of local democrats, say they approve
of President Obama’s targeted killing program, and those numbers drop to 65 percent in favor,
and 26 percent, when the respondents are told that the targets are American citizens. As
the “Washington Post’s” Greg Sargent noted, 65 percent is still a very big number. He
added … Sargent added that democrats approve of the drone strikes on American citizens
by 58 to 53, and even liberals approve of them by 55 to 35.
Bottom line for me is that we’re at a point in this country, and we can argue about the
content of the policies, and whether they’re the perfect ideal policies, and that’s really
not what I’m saying right now … where the president’s primary counterterrorism tools
have a remarkable legal and political consensus and legitimacy. That’s basically what I’m
saying. Thank you. Jameel: Thank you, Jack. First, let me say
thanks for the invitation to speak today, and thanks to Professor Meltzer for moderating.
Jack, first “The Daily Show”, and now this; you’ve really arrived.
Jack: Have you been on “The Daily Show”? Jameel: No, no.
Jack: All right, good. Carry on. Jameel: I actually agree with a lot of what
Jack said, especially the stuff about the importance of the ACLU’s work. I also agree
that President Obama has, for better or worse, continued many of the Bush administration’s
national security policies. I agree that some of those policies are on stronger legal footing
now than they were three years ago, or five years ago. I agree that courts and congress
are not the only checks and balances that matter, and I agree that civil society … the
inspectors general and the media … have played a significant role in exposing abuses
of power. I think it’s fair to describe all of those
things … the media, civil society, inspectors general … as Jack does, as an ecosystem
of transparency. That’s the common ground. I have a few reservations. First, to say that
there are some checks on executive power is not the same thing as saying that there are
sufficient checks on executive power. I think that Jack overstates the significance of some
of the checks that he celebrates. I’ll come back to that.
Second, executive power isn’t the only power worth checking. Anyone who cares about individual
liberty, I think, has to care not just about executive power, but about government power
more generally. Whatever you think about the merits of our national security policies,
there’s no question that the power balance between Americans and their government has
shifted quite dramatically over the last decade. We now have a government that can listen to
your international phone calls without getting a warrant. It can detail you indefinitely
without charging you with a crime. It can even kill you summarily without presenting
evidence to a court. If you believe in limited government, I think these are things that
ought to give you pause. Third, while I share Jack’s enthusiasm for
transparency, I don’t think that transparency and accountability are the same thing, and
I don’t think it’s necessary true, as Jack says it is, that a transparency president
… a transparent presidency … is an accountable presidency. I’ll come back to that point,
too. I thought I should start by describing the
national security landscape, at least on these three issues; military commissions, indefinite
detention and targeted killing. The landscape that I see is different from the one that
Jack sees. First, indefinite detention; over the last decade, we created a system of indefinite
detention for people who would otherwise have been charged in the criminal justice system,
convicted of crimes, and sentenced to terms of years. We held hundreds of men in a prison
that was designed to be beyond the reach of the law, and almost 200 men are still held
there today. Six years after those men were first detained,
they were finally afforded, by the supreme court, the right to challenge their detention.
Since that right was extended to them, a federal appeals court in D.C. has issued a series
of procedural rulings that turned that right into an empty shell, and I’m sure we will
come back to that. To the extent that Jack’s argument is that
the policies we have now aren’t a reflection of executive fiat, but are instead the result
of this complicated network of checks and balances that he describes in the book … and
I recommend that you buy his book and read it … I’m sure that Jack is right. I don’t
think it makes sense to celebrate that network of checks and balances without evaluating
the substantive policies that it’s produced. Second, military commissions; a handful of
the Guantanamo prisoners really did commit terrible crimes, but ten years after 9-11,
they have yet to be tried. That’s because rather than charge those suspected terrorists
in article three courts, we charge them in a military tribunal system that was designed
to accommodate torture. Our political leaders authorized the CIA to
build secret prisons overseas, and to interrogate prisoners using methods that we had earlier
prosecuted as war crimes, and they authorized those methods not just in CIA facilities,
but in military facilities, too, including Guantanamo. There’s this ongoing debate, and
I think it’s probably an irresolvable one, about whether that torture program was effective
in some sense. One indisputable consequence of that program
was that a great deal of the evidence that was derived from it was unusable in criminal
proceedings; at least in ordinary courts. The military commissions, in its first iteration,
was meant to embrace that evidence. It was meant to allow us to sentence men to death
on the basis of evidence that was quite literally beaten out of them.
Jack says, and I think he’s right, that today’s military commissions aren’t yesterday’s military
commissions. But the commissions we have today still have extraordinarily permissive hearsay
rules. Defense counsels’ communications are routinely monitored. The commissions assert
jurisdiction over crimes that aren’t war crimes, like conspiracy and material support. I think
most troublingly, the commissions are still designed to conceal torture.
Reporters are permitted into the courtroom, but they sit behind a soundproof barrier,
a Plexiglas barrier. There’s a 40-second delay … and audio delay … and that delay is
to give the sensor time to silence the audio feed if a prisoner talks about his experience
in CIA custody. One prisoner filed a motion recently, asking
the court to allow him to meet with his lawyers without shackles on his ankles. The court’s
going to hear that testimony from the prisoner, but the courtroom may be closed to the public,
and closed to the press, to ensure that the prisoner doesn’t have an opportunity to disclose
details about his torture. Jack’s argument is that this military commission
system is better than the last one, and that this one has been endorsed not just by the
executive, but by congress as well, and he’s right. My complaint is with what they have
endorsed. Let me address, finally, targeted killings.
For the last decade, we’ve been carrying out this campaign of so-called targeted killing
in countries around the world, not just in Afghanistan and Iraq, but also in Pakistan,
in Yemen, in Somalia. This is not a rhetorical question; do you know who we are killing,
or for what reasons, or how many people we’ve killed? I don’t think you do.
The CIA doesn’t even acknowledge that there’s a drone program. In FOIA litigation, it refuses
to confirm or deny that the program even exists, and in constitutional litigation, it maintains
that the program is a state secret. When we went to war in the past, the president would
first make a case that war was unavoidable, and that it was just, and he would explain
how we’d come to that determination, and he’d explain what we were trying to achieve with
military force. He’d explain how we’d know whether we’d achieved it.
Now, we’re fighting a different kind of war. It’s a war that’s unacknowledged, and for
that reason it’s a war that’s unexplained. I said at the beginning, that transparency
and accountability are not the same thing. We actually have a kind of transparency about
the targeted killing program, and Jack referred to that. Mr. Panetta talks about it on “60
Minutes”. The president talks about it in Google+ town halls, and the CIA’s lawyer,
Stephen Preston, was here I think this week talking about it, here at Harvard Law School.
In those speeches, the administration tells us the program is legal and effective, and
closely supervised, and has caused very few civilian casualties. The program is discussed
in the newspapers, and it’s discussed in the law reviews, and it’s discussed in forums
like this. In court, the program is still a secret, because the government says it’s
a secret. There’s this growing gap between transparency, on the one hand, and accountability
on the other. To a significant extent, we have the facts;
we have a kind of transparency. Our institutions of accountability, though, don’t acknowledge
the facts that we all know to be true. I said in the beginning that I think Jack overstates
the significance of some of the checks that he celebrates. I think that’s true of the
courts, in particular. The courts have actually played a very modest
role in shaping our national security policy. Obviously, the supreme court has weighed in
several times about Guantanamo, but as I said, the D.C. circuit has taken away a lot of what
the supreme court gave. Outside the habeas context, the courts have played almost no
role. Ten years after 9-11, no court has weighed
on in the lawfulness of torture, of rendition, of targeted killing or warrantless wire-tapping.
Every single case, without exception, has been dismissed at the threshold on some combination
of the state secrets doctrine, the political question doctrine, the special factors doctrine,
or qualified immunity. In the surveillance cases there’s standing, too, which is an additional
law suit. The courts entertain civil suits only long enough to throw them out.
Jack said last year … that last year, the CIA carried out the targeted killing of an
American citizen in Yemen. Actually, the CIA killed three Americans last year. There was
Anwar al-Aulaqi, who was killed on September 30th, Samir Khan, who was killed with him,
and two weeks later, the CIA killed another American, the 16-year-old son of Anwar al-Aulaqi.
He was killed 400 miles away from the first strike.
Those strikes were carried out by the CIA on the basis of secret legal standards and
secret evidence. There was no judicial review before the strikes, and there was no judicial
review after. As Jack said, the ACLU and CCR did attempt to get a court to review the lawfulness
of the targeted killing program, but the court entertained that suit just long enough to
dismiss is on political question grounds. Again, I don’t doubt that Jack is right when
he says there are checks on executive power, and that these checks include the media, the
inspectors general and civil society. Jack says that the existence of these checks should
make you feel more comfortable about our substantive policies. My argument is that the substantive
policies should make you less confident about the effectiveness of the checks.
The last thing I’ll say is that if you want to evaluate the substantive policies, which
I think ultimately is what you have to do, your legal education is only so helpful. No
supreme court case can tell you whether torture is effective, or moral, or ethical. No supreme
court case can tell you how many civilian casualties are too many, or when it’s justifiable
to assassinate somebody, or what kinds of evidence are sufficient to justify imprisoning
somebody for the rest of his life. As Jack acknowledges in his book, many of
the most important questions are not legal questions but moral ones, and moral intuitions.
Again, this is something that Jack himself says, are more diverse than we like to acknowledge.
I think I’ll leave it there. Meltzer: I mostly want to throw it open to
you, but I just want to say … I want to make one … I want to discuss one issue on
… I guess as a former Obama administration official … because I would just highlight
for you the fact that the current administration finds itself getting criticized from both
sides. There is a common theme, which I think Jameel and Jack both have voiced, which is
that there is great continuity between what the Obama administration did, and what the
Bush administration did. I think there is some truth to that, but I
also think that it tends to get exaggerated, and so I’ll just highlight a few points in
which I think there are significant differences. On detention policy, first of all, the prior
administration resisted habeas corpus. Indeed, they picked Guantanamo because they thought,
quite plausibly when they chose it, that it was outside the reach of American courts.
The Obama administration believes that habeas review is an important check and balance in
ensuring the lawfulness of detention. Second, the Obama administration, when it
entered office, engaged in a review that had not been done by the prior administration,
assembling all the evidence for each detainee in a single place. It turned out there were
dozens of computer systems and files and different agencies with information about particular
individuals, which had never been assembled to really evaluate the case and say, “Is this
person detainable? Is he dangerous or not?” Third, the administration went through this
review process and decided to release a number of people, and here I think the Bush administration
did some of the same, particularly in the later years, who they thought were legally
detainable under the laws of war, but who they thought were sufficiently low risk that
they could lawfully be released. Fourth, they issued an executive order that
calls for periodic review of the appropriateness of detention, which it’s not clear is required
by the laws of war, but which again, it thought was important.
I think those are significant differences in the way that detention was carried out.
With respect to military commissions, I think that Jameel perhaps overstates a little bit
when he says that they’re meant to accommodate torture. There’s a prohibition in the military
commission’s law on the use of information that came by cruel, inhumane or … let’s
see, I believe degrading is it? Male: Degrading.
Meltzer: Degrading treatment; and there’s also a broader exclusion of evidence that
was obtained involuntarily; a familiar de-process standard, with a carve-out of the voluntariness
standard for people who are captured … for statements obtained at point of capture. If
someone’s captured by the military, with a gun pointing at them, we might think that’s
involuntary, but that is not excluded. With that exception, there is an exclusion for
voluntariness. There is, in the end, article 3 review. There
are, as Jameel says, some very hard and important issues about the scope of the military commissions’
jurisdiction; conspiracy and material support are the primary ones. That … the lawfulness
of that … will eventually get resolved by an article 3 court.
I’ll tell you what someone said to me waggishly about the earlier military commissions under
the 2006 act, which lacked a lot of these protections. He said, “I’d much rather be
tried by a military commission than by a state court in east Texas.” One response is, “Well,
we ought to improve our state courts in east Texas,” but I think in fact, if you look at
the quality and diligence of the defense counsel, and the resources available for these defenses,
there are many ways in which these stack up quite well with regard to ordinary criminal
prosecutions in this country. Lastly, on drones, I think there is continuity
there. Indeed, there are newspaper reports that President Obama has expanded the use
of drones as compared to prior administrations. My own sympathies are somewhat along the lines
of what Jameel says. I think there is an opportunity for the administration to expand on rather
general explanations that it’s already given about what the standards are, what the procedures
are. I think some of that could be expanded upon without jeopardizing classified information.
I do think with regard to judicial review, that one may want to be a little bit wary
of what one wishes for. I think there are lots of ways in which judicial review might
be offered in these circumstances, but if congress, for example, set up a judicial review
system which called for a judge to approve putting somebody on a target for a later drone
attack, I suspect the courts would be extremely accommodating to administration petitions,
and indeed the legal standards might be so broad and capacious as to reduce the sort
of sense within the administration that it is responsible itself for exercising considerable
restraint. We don’t know how much restraint is being
exercised, because it’s a secret program, as Jameel says. It’s not clear to me in the
end that courts will always be more protective than executive officials.
Anyway, I will stop there. I think it’s time to take questions.
Male: Thank you, Mr. Jaffer, for coming. I wanted to ask whether … I wanted to ask
what your ideal substantive system is. Is it an issue of limited government, which is
to say that the government simply cannot do certain things; it cannot surveil, it cannot
do targeted killing … or is it that of a highly constrained government, which is a
government that can do all these things, but very rarely and after a lot of procedure,
but when … it sounds like the procedure can bear … can bring unbelievable force
to bear, because it has the abilities. Just to sort of complicate that in two ways,
at some point, too much constraint becomes limitation, as we see with, for instance,
the transfer restrictions out of Guantanamo right now, where the government can transfer,
but in effect cannot. Also, it may not be the case that you have to choose one or the
other; maybe some things you want to be limited, and some things you want to constrain. I was
wondering if you could just speak to that. Professor Goldsmith’s position seems to be
more of a constraint position, rather than limitation.
Jameel: I wasn’t actually thinking of those words in that way. I wasn’t thinking of constraint
and limitation as the two options. Limit wasn’t a categorical bar in the way I was using the
word, but it depends on the policy. With torture, for example, I don’t think there is any process
that you could put in place, that would make me personally comfortable with the state using
torture. With the use of lethal force, it’s actually
a little different. I … we have always conceded at the ACLU that the government has the authority
in some narrow circumstances to use lethal force without prior judicial review. For example,
that’s true even within the United States, right? If somebody’s running down the street
waving a gun around, we don’t say the police officer has to go to a judge to get a warrant
before neutralizing the threat. The hard question isn’t, “Does the government
have the power to use lethal force?” The hard question is, “When and under what circumstances,
and what kind of review will be available?” The position we took in the al-Alauqi case
… I mean, I don’t want to go into it at too much length, because we have only 15 minutes.
Basically, we said that the government can use lethal force without prior judicial review
in very narrow circumstances, where the threat is concrete and imminent and specific, and
where the government … the executive branch … determines that the use of lethal force
is the last resort. That was an argument about prior judicial
review. I don’t think that the imminence of a threat forecloses the possibility of ex
ante … sorry, ex post judicial review. There’s no reason why a judge couldn’t look at the
evidence after the fact and say, “You know what? You used lethal force in circumstances
when you shouldn’t have.” That’s how it works here inside the United States when the police
use lethal force wrongfully; for example, in a car chase, or something like that. There’s
a wrongful death action after the fact, and a judge weighs in.
The problem, in my view, with Judge Bates’ ruling is that it … some of this is dicta,
but in his view, the courts have no role to play at all, before the fact or after the
fact, in evaluating the standards that the government is using to carry out these kinds
of targeted killings, or the evidence on which the government based its decision to kill
any particular person. I don’t know whether you want to call that
a limitation or a constraint, but I think that there is an importance to judicial review,
and that judicial review ought to be available, even if it’s available only after the fact.
Jack: I’d just add a couple things about lethal force. I think, as a result of the ACLU’s
litigation, that there’s every reason to think, and we have good information, that the legal
standard you wanted the court to embrace, is actually the one that the Obama administration
has embraced. They’ve made pretty clear, through leaks and speeches, that there’s an imminence
requirement. They’ve also made pretty clear that at least against an American citizen,
that force can only be used as effectively a last resort.
I’m sure they’d be details which you could quibble over, but we now know, as a result
of your litigation, that those basically are the standards. I think it’s also important
… and this is a bit of a response to the claim that courts have not been involved … when
the government targets someone, one of the sources that they look to about the legality
of the targeting, are the habeas corpus decisions, which interpret the scope of the AUMF. Those
decisions have been very important, not just on habeas corpus, but also for targeting policies,
and other policies beyond habeas corpus. Jameel: Jack reminded me that I wanted to
respond to something that Professor Meltzer said, too. I actually agree with Professor
Meltzer that … I didn’t mean to suggest that an equation between the Obama administration
and the Bush administration. I think that there are important differences, and it’s
more of an equation when you look at the last year of the Bush administration and the first
year of the Obama administration, although even there, there are differences.
On that one point about accommodating torture, that phrase I meant to use with respect to
the first iteration of the military commission but not this iteration. This iteration conceals
torture; that’s my complaint about this one. You still have this courtroom that has this
Plexiglas frame. The frame is meant to prevent people from learning what happened to these
detainees in custody. This is a very crude experiment. It’s the
kind of thing that’s frowned on in sophisticated law schools, but I think when the government
proposes things like a Plexiglas barrier to prevent the public from learning about how
prisoners were treated in government custody, just ask yourself, “How would I feel if this
were being proposed by Iran or China or some other country?” I think it’s a useful exercise,
because I don’t think we would accept it from anyone else.
Meltzer: Let me just say that it’s an exaggeration to say that the Obama administration has concealed
torture. They … at your request … disclosed extraordinary amounts of information that
went into great detail about what happened to the detainees. The truth is, we know a
ton about what happened to the detainees, as a result of your litigation. I don’t know
exactly what would be concealed by … if anything … by the 40-second gap.
Jameel: That’s an argument for getting rid of the barrier then, right? If there’s nothing
that’s being concealed. Meltzer: I should just explain to people,
the other side of what the national security people would say about the barrier. I’m not
trying to take sides here, but I’m just trying to point out, is that some of these people
were tortured in locations where they … there were agreements with other intelligence services,
to whom confidentiality had been promised. In order to protect the classified nature
of our cooperation with other intelligence services, and their willingness to provide
such cooperation in the future, under such assurances of cooperation, that there’s the
need for this barrier, and it’s not to conceal that bad things happened, but rather to protect
expert classified information. That is the claim. You do realize that’s the claim, right?
Jameel: I think that’s part of their claim. I think it’s a very weak claim, because we’ve
actually asked for the testimony that these prisoners gave to the CSRTs, to the combatant
status review tribunals. That’s written testimony; there’s a transcript of it. If the only thing
that the administration wanted to protect were the names of the countries that were
involved in the rendition program, or in the … or in hosting blocked sites … it would
be very easy for the administration just to redact the names of those countries, or surrounding
language that could lead people to those names, and give us the rest of those transcripts.
Even those transcripts are being withheld. If I can, I just wanted to respond to this
question about judicial review on … of targeted killing. I think it’s true, we should be careful
what we ask for in this area. It may well be true that courts will be very accommodating
of the executive branch’s desire to carry out targeted killings. I don’t see why the
argument here would be any different than it is with, for example, criminal trials.
You could make the same argument with serious crimes. You could say, “Leave it to the executive
branch to decide who should be in prison for committing serious crimes.” Keep the courts
out of it, because the courts might actually be very accommodating. It may well be true
that the courts are very accommodating of these arguments, but I think that in general,
we think that having some independent check is a good thing.
With FISA, people say that FISA … that the FISA court has been a rubber stamp for the
administration, and I don’t know whether that’s true or not. The arguments on the other side
… and this is the argument that many administration lawyers make … is that the very existence
of the FISA court leads administration lawyers to be more careful about the kinds of surveillance
they engage in. They know that one day they have to show up before this court, and say
with a straight face, that the target of this is actually a foreign agent.
Even if the court, 99 percent of the time, signs off on the surveillance, that … the
possibility that the court is going to resist, is something that disciplines the administration’s
decisions. I don’t know if that’s true or not, but that’s just a layout of the arguments.
Male: This is a question for Professor Goldsmith, picking up on something that Jameel said about
the right of habeas corpus for Guantanamo detainees. Aren’t you dramatically overstating
some of the meaningfulness of that right? I ask that as … you could say that there
have been some sort of marginal effects, but no single detainee has prevailed in the D.C.
circuit. Perhaps even worse than that, the D.C. circuit
has been issuing these highly redacted opinions, where they sort of tell us what the doctrine
is, but they don’t really tell us what the facts are. It’s quite unclear sort of what
standards the courts are using, and how sort of guilty these people are.
In one particular case, the D.C. circuit issued its opinion. That opinion was withdrawn the
same day, and then it was put up the next day, highly, highly redacted … much more
than it was earlier, to the point where some people think that all the government was concealing
… they were not sensitive facts, like Jameel was saying, but just facts that make the government
look bad. Aren’t we dramatically overstating the meaningfulness
of that particular right? Jack: I don’t think so, but … and let me
just throw out a few more facts. It’s true that … I think it’s true that no detainee
has prevailed in the D.C. circuit. It’s also true that many detainees prevailed in the
district courts, and the government did not appeal those losses, so there was an example
where habeas had a concrete impact. Second is, is that the habeas corpus has led
… also led the government to release people for a variety of reasons that we don’t know,
simply because they didn’t think they could meet the standard.
Third, it’s impossible for us to sort out, but to even have a discussion about whether
habeas is meaningful or not … habeas was not … it’s not designed to release people.
Habeas is simply designed to assess the legality of detention, and the supreme court didn’t
demand anything more from it again. The courts of appeals have been trying to work out what
those things are. I disagree with you; there have been some
redactions about … mostly about some facts, but I disagree with you that we don’t know
what the legal standard is. We have lots of information about the legal standard. I think
it’s basically sound. I think the president … this is true of what the supreme court
said in Hamdi in 2004 … the president of the United States is authorized to detain
members of … this has been going … a rule that goes back to the beginning of the country
… members of the enemy during war time, and Hamdi reaffirmed that.
That is basically the rule, with lots of fine-grained procedural details, that the courts of appeals
have been working out. Unless we have a vision about how many detainees are supposed to be
released or why, I don’t think we can say that habeas has been ineffective. All habeas
is designed to do, is to assess the legality of detention. There’s nothing unlawful about
military detention during conflict; it’s the rule, not the exception.
Meltzer: Other questions? Yes. Female: I had a question for Mr. Goldsmith.
I’m just curious, you say that we have sufficient accountability now under the system, but I’m
not aware … and I haven’t had the opportunity yet to read your book, so I hope you can enlighten
us … how many high-level administration officials have actually been held accountable
for torture? How many victims of torture have actually been able to have their day in court?
Jack: I didn’t say, actually, that we had sufficient accountability. I said we had a
robust accountability, and that we had reached consensus in this country about counter-terrorism
policies. There has, however, been extraordinary accountability brought to bear on the Bush
administration for its counter-terrorism program. You’re right that the most senior officials
have not been subject to criminal investigation, but there have been widespread accountability
mechanisms brought to bear, including inside the CIA, inside the department of justice,
inside the senate, criminal investigations that are still going on.
Criminal … accountability is not just criminal accountability. There’s been … as I detail
in the book, there’s been massive accountability brought to bear, and with a massive impact
on the program. I would also say, with regard to senior officials, the Bush … the Obama
administration made a call, correct in my view, that senior officials should not be
investigated for the aggressive interrogation techniques. Here is a perfect example …
Meltzer: If they complied with advice given by the [inaudible 38:55:8].
Jack: Correct; that’s right, thank you. Here’s a really great example where you should be
careful what you ask for. I’m quite confident, and a lot of people in the human rights community
agree with me about this, kind of on the quiet, that if actually there were prosecutions brought
against senior officials, it’s almost certain that they would fail.
Then, the kind of disapprobation that we’d have towards that whole period would be even
more muddled than it is now. I think that there’s a point where there’s general consensus
by most people, not everyone, that there were some excesses committed. I don’t think that
more accountability is necessarily going to increase that approbation, and I also … disapprobation
… and I also don’t think it’s fair to say there hasn’t been accountability.
Female: How many victims of torture have managed to bring a case in the United States?
Jack: I don’t know. I don’t think any have successfully been able to.
Jameel: Just one; one … Jack: I don’t think anyone involved in the
interrogation program has been able to. Jameel: Just one observation …
Jack: I just want to say that courts are not the only method of accountability. I think
it’s a big mistake to think that they are. I think that the ACLU tends to think that.
Jameel: Just one observation here, and this is neither an agreement nor a disagreement
with Jack. It’s …other countries have a check that the United States doesn’t, because
they have the international community, right? When Milosevic commits war crimes, it’s conceivable
that someday, somebody’s going to haul him before some international tribunal, and try
him for those war crimes. When Bashar al-Assad commits war crimes, or crimes against humanity,
it’s conceivable that someday, some tribunal will haul him before that … will haul him
before an international tribunal, and he’ll be tried.
The U.S. doesn’t really have that check. It’s not … I don’t think it’s plausible to think
that the architects of the torture program … the American torture program … are going
to be hauled before some international tribunal anytime soon. That’s an argument for, I think,
stronger checks and balances inside the United States. Again, I think that Jack actually
makes a very good case, that we have in some ways a very vibrant system of checks and balances,
and the ACLU uses some of the mechanisms of accountability all the time, like FOIA. Again,
I think that Jack overstates the case, and I think that there’s no way to actually evaluate
our system of checks and balances without asking yourself what you think of the policies
that came out of that system. If you look back over the last 100 years,
the last 200 years, you can see many instances in which all three branches of government
were united in policies that we now look back on as huge mistakes, right? They were united
about slavery. They were united about the detention of Japanese Americans. They were
united about the espionage act. It’s an interesting thing, that multiple branches have endorsed
the policies we’ve got now, but it doesn’t actually answer the important question.
Just one last point about public opinion; I think that I’ve seen this poll that Jack
referred to on targeted killing, and it’s something that I found somewhat dispiriting.
I think that if you had proposed to Americans in 1942 that Japanese Americans ought to be
subject to a targeted killing policy, that might have been something that many people
approved of, too. Ultimately, an organization like the ACLU at least exists, because sometimes
the majority gets it wrong. I think we should take only so much comfort in the fact that
your fellow Americans, or many of them, approve of the policies.
Meltzer: Let’s take a quick time out. Some of you have classes at 1 o’clock. [Ming 42:36:2]
tells me the room is available, so we can stay for a few minutes longer, if people would
like to. Let’s just pause for those that need to leave for class.
Jack: I don’t buy the embracing habeas. You embrace it to the extent that you’re required
to. Jameel: Yes …
Jack: You didn’t embrace it beyond that. Jameel: The Bush administration embraced it
in the summer of 2008. This is what the argument is; President Bush didn’t want it, and Obama
really did. I agree, the president has [inaudible 43:18:3].
Jack: There are a lot of respects in which they did not embrace [inaudible 43:26:7].
The result is actually the same with the Bush administration, in which it said, “Yes, there’s
habeas corpus.” Jameel: I agree. With that said, maybe if
the president [inaudible 43:38:4]. Jack: Think about all those cases where conservative
judges [inaudible 43:45:0]. I totally agree. That’s a different … that’s a point about
what the [inaudible 43:54:89] argument is around habeas. I agree, you have an [inaudible
43:59:6]. Meltzer: OK, all right. Others who have questions,
comments? Female: My question is for Jack Goldsmith
as well. You mentioned that enormous transparency is being brought to bear on the executive
branch. [Inaudible 44:18:6] allegation on [inaudible 44:23:2]. My question though is,
what if it weren’t for the leaks and the ACLU? My follow up question to that is …
Jack: What if it weren’t for the leaks in the ACLU?
Female: Yes, and my follow up question to that is, what do you have to say about Obama
prosecuting leakers under the espionage act, to the degree that investigative journalists
are now saying their sources have dried up? That’s not transparency; that’s not a culture
of transparency. Jack: Right. The first question was … the
second question was about leaks. The first question was, what if we didn’t have the ACLU,
and what if we didn’t have leaks? I think we’d be in a much, much worse position than
we are now today, both in terms of the content of our policies, and the legitimacy of our
policies. It wasn’t just the ACLU view, and it wasn’t just leaks. It was a whole … I
can describe it following someone else’s characterization … as an ecology of transparency. There was
a whole sort of network system of revealing information that has been hugely important
after 9-11, in bringing the accountability mechanisms to the president.
Female: WikiLeaks. Jack: WikiLeaks is part of that. All this
is addressed in the book, for what it’s worth. Again, the inspectors general’s report inside
the CIA was able to collect information that was later the basis for lots of things that
happened as a result, including leaks, but also accountability for things inside the
government. There was a whole, giant, complicated network
or ecology … whatever metaphor you want to choose. What I think is hugely important
… and I make it clear, by the way, at the end of the book, that nothing about what I
say in this book, about how well the accountability checks worked … is the slightest reason
not for all of the people in the accountability regime … nothing I’m suggesting, suggests
that they should accept this, or should in any way be dissuaded from continuing very
aggressively what they do. In fact, quite the opposite; it’s hugely important.
From someone that has my perspective about national security and the presidency, is quite
different, obviously, from Jameel’s. I think what Jameel and the ACLU does is vitally important
for the legitimacy of what the president does, including the current FOIA suits.
As for the leak prosecutions … again, I talk about this also in the book. I am not
in favor of … two or three things. I’m not in favor of prosecuting the press for it.
I think they’re doing their job, and I think it’s a very important job that they do, in
trying to disclose secrets. They exercise judgment in what they publish. Sometimes they
get it wrong, but on balance, I think that their ability to publish that information
is an important check on what happens inside the presidency, for reasons I give.
I think it’s a large exaggeration to say that the Obama … the reason the Obama administration
is trying to prosecute a few members of the government, is because they think they have
a crisis, that there’s such a gigantic number of leaks going on inside the government. I
think it’s a large exaggeration for the journalists to claim that their sources have dried up.
I just … any day you read the “New York Times”, you read tons of classified information.
The … Female: Most of it’s leaked by the government
on purpose. Jack: Some of them are, some of them aren’t.
Yes, I agree, and I talk about that in the book as well, and I don’t …
Female: [Inaudible 47:25:1] Jack: I don’t … I agree. I completely agree.
Female: And you don’t prosecute those leakers. Jack: I completely agree. I’ve been as loud
as anyone, maybe outside of Jameel’s organization, in criticizing that. I completely agree. I
do also think that, to my mind, with what the result of the government’s attempted aggressive
prosecutions of these leakers is going to be, is to prove how hard it is to prosecute
leakers. They’ve been very unsuccessful so far.
Female: I agree. Jack: Anyway, I’m actually a big proponent
of the press. That was as a result of the research for my book, because I think that
they’ve been … including reporting classified information, which I think can harm national
security sometimes, but which I think on balance is justified because the government determines
what’s secret. The government classifies way too much. He government manipulates the secrecy
system; we saw that in the Bush and the Obama administration. I think it’s an absolute,
vital check. Female: You think that it’s justified, when
they prosecute this leakers? Jack: I think that the government certainly
has a right, and indeed a duty, in some sense, to try to prosecute the leakers. Otherwise,
it just has to give up the game of keeping secrets, which it needs to do. There are legitimate
secrets. It’s not doing anything; it sends a signal that there’s no cost to doing it.
On the other hand, I think its attempts to prosecute is going … is proving to be ineffectual.
I think it’s going to end up having the opposite impact. I also think it would be a big mistake,
and I’ve argued against trying to prosecute Julian Assange. I don’t think Assange is in
any functional way distinguishable from the “New York Times”.
Male: I have a question for Mr. Jaffer. Given that … if you sort of buy this argument
that courts might wind up approving a lot of these things, and if you’re concerned given
these poll results, do you think that sort of the way people in your position should
sort of try to … if you’ll excuse the metaphor … fight this larger campaign, is sort of
not so much through legal challenges, and more through sort of a broader movement to
change people’s minds about substantive policy decisions?
Jameel: I think we’re having this particular conversation in part because President Obama
is the president. I think a lot of people … not just the democrats, but republicans
as well, at some level trust this president to exercise these powers wisely. I don’t want
to address the question of whether this president should be trusted with these powers or not.
Whatever you think about that particular question, it’s important to remember that the power
we’re talking about is going to be available to the next president, President Santorum
or Romney … I guess it’s not going to be Santorum now, but Romney, or whoever it’s
going to be, or President Clinton after that. You have to build institutions that don’t
depend on trust in any particular individual. That’s … people say that that’s sort of
the genius of our system, is that it’s a government of laws and not of men and women, right? It’s
a system of rules that is meant to address the possibility that one day, somebody in
that position is not going to have the best motives, or is not going to be competent,
or is not going to make the best decisions, or is going to be misled, or is going to have
the wrong information. You have to have rules that address that possibility, because we
all know from history that that is going to happen.
It’s not actually that hard a question for me, whether we should be asking the courts
to get involved. I actually think it’s a pretty clear … it’s a pretty easy question for
us. We don’t want this power to be used without some form of supervision outside the executive
branch. I don’t want it to be used without supervision now, even though I actually have
a lot of faith in some of the people in the Obama administration. I certainly don’t want
it to be used by some imaginary president 20 years from now, or 40 years from now, without
supervision outside the executive branch. I do think that there’s the possibility that
courts will be accommodating of executive branch arguments in this area, but I don’t
think courts are going to be more … the executive branch can still exercise discretion
in deciding which arguments to take to the courts. To the extent our argument is, “Better
to trust the executive branch, because it will construe these powers narrowly,” executive
branches can still construe these powers narrowly in the future. When they don’t construe them
narrowly, they’ll have to go to a court, and the court will have the opportunity to say,
“You’re going too far.” I don’t think it’s a hard question. I think
judicial involvement, even at the margins, is better than no judicial involvement.
Jack: Can I say a couple things? I think that … I think Dan’s point was, is that executives
are much less likely to construe their powers narrowly, if they know they can go to a court,
and that the court will be, in effect, taking the burden of having to draw the lion off
of their backs. My question is, has the ACLU thought about
the legislative route, trying to draft …? I think you’re going to have … for what it’s
worth, some free advice. You’ve thought about this a lot more than I have. I think you’re
going to have difficulties getting a court involved in this, in the absence of congress
doing something. There in fact is some interest in congress,
on both sides of the aisle it turns out, for some kind of oversight regime, either a FISA
model or an enhanced congressional model or something like that. I’m just wondering if
you’re pursuing that parallel track. Jameel: Two things; first of all, on Dan’s
point, or at least your articulation of Dan’s point, the way these things work is, courts
aren’t going to be asked to draw a line. Courts are going to be asked to say “yes” or “no”
to any particular … to a particular instance, in which the government wants to use lethal
force to get rid of a particular person. I don’t think that that looks very different
from the habeas litigation in D.C. I don’t think the courts are going to … the fact
that judges are involved, means that they will have to draw lines. It just means that
they’ll have to say “yes” or “no” in particular instances. I guess I’m not entirely persuaded
that that’s a big deal. As to the point about congress … and I’m
not speaking for the ACLU on this one … but I have not been that impressed by congress’
involvement in the national security debates over the last few years, and would not have
a lot of confidence that that debate would come out where we’d want it to.
Jack: Are you kidding? You’ve had your biggest victory in the Detainee Treatment Act, in
congress. A bipartisan congress stood up to the Bush administration.
Jameel: Yes, but that was an exception. Jack: Then you’ve had more success in courts.
Jameel: It depends. I’d refer you to your book. It depends on what you mean by success.
Jack: I know what I think. Jameel: I think that we’ve had success in
… I think of the habeas cases, which were not ACLU cases, as significant successes.
You’re right, that they have legitimated the government’s detention of certain people,
but the legitimacy extends to a much narrower set of people than what the Bush administration
was asserting initially, right? It’s legitimacy, but it’s legitimacy for a narrower program.
I … obviously, I agree with you that FOIA litigation, not just ours, but of other organizations
on these issues, has been really important. I think our Patriot Act litigation was a success.
We don’t have the same national security level powers that we once had. We’re planning on
playing a long game, and all of these things that you think of as defeats, we think of
as interim effects. Jack: I don’t think of them as defeats. I
think I think of them as … Mr. Ratner said that you’d view them as defeats, in the larger
war. Meltzer: I’ll just mention one thing about
the detention cases that Jameel used as an analogy to the possibility of judicial review
of drone strikes. It is true, each case you’re asking the court to define whether this particular
person is legally detainable. I can tell you that the D.C. circuit, in the course of doing
that, has announced propositions of law … sometimes as holdings, sometimes as dicta or invitations
for further litigation … that I don’t think some administrations would ever have put forward.
Once they’re out there, though, it becomes tempting for a current administration or a
future administration, to avail themselves of it. Indeed, it can become a source of political
criticism on the right flank if they refuse to avail themselves of that authority.
It’s a little different in the drone topics, because that would all be presumably in a
secret setting, unlike the habeas cases where it’s more public. I think nonetheless the
phenomenon shows that there is at least a danger there.
Jameel: Yes, I take your point. There’s two quick responses. One is, we don’t concede
that it would be a secret setting. Our vision of judicial review, at least after the fact,
is very similar to what the D.C. district court is doing in the habeas cases. I understand
the government has this argument that there’s sensitive intelligence information, but those
arguments are exactly the same arguments that the Bush administration made in resisting
habeas eight years ago. I don’t find those arguments persuasive.
I think you’re right, that courts could articulate rules in this context in the same way that
they have in the habeas context, and those rules could provide precedents that have a
kind of gravitational pull for any future administration. That’s also true of OLC opinions,
and just practice, right? The next administration, if there is some new American boogeyman in
Yemen or Somalia or North Korea or wherever it is, the next administration is going to
be asked, “Well, why don’t you do what the Obama administration did?” You don’t need
a judicial opinion to have that problem. I think we have that problem … if you think
of it as a problem … we have that problem now.
Meltzer: One last question, and then we’re adjourned; yes?
Male: Do you think that we have reached a point of no return, where our civil rights
as, let’s say, from the founding of the republic, have been compromised so much by these security
laws? In my mind, I’m thinking like, Britain has like a draconian security system of laws.
I think they apply even to people within England, because of terrorism from the IRA campaigns
and the like. Do you see us going down that road domestically, where our own citizens
are subjected to these … what in my mind look … I look upon as going way beyond what
the Bill of Rights … Jack: You want me to answer that?
Jameel: I think I know your answer. I want to hear you first; your thoughts.
Jack: I think … here’s what I think, and I’m not sure it’s entirely responsive. The
current resting place of civil liberties is a very difficult question. We are living in
an era … this is essentially what my book is about. We are living in an era of what’s
going to be a kind of indefinite war. The framers of the constitution did not assume
that circumstance. They assumed that war would be the exception and not the rule.
The problem is that in wartime, the president is, for good reasons … and I think there
are good reasons why the president has been given these enhanced authorities, because
I think it’s necessary to address the threat that we face. I don’t think the threat is
going away any time soon. I think the threat is going to be morphing and getting, in many
senses greater. The challenge is, how do we maintain constitutionalism?
How do we maintain robust civil liberties protections for our citizens? How do we constrain
the president? I think that the system I’ve described is working that out; we’re working
that out, and it’s not the case that American civil liberties have been hugely compromised.

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