In Syracuse, New York, four people were arrested outside the Hancock Air National Guard Base Friday at a nonviolent protest against the U.S. drone assassination program. Demonstrators marked the Christmas holiday by dressing as biblical figures and erecting a 20-foot-long nativity scene at the gates of the air base, which is home to the 174th Attack Wing of the National Guard’s Reaper drone program.
Jameel Jaffer talking:
when President Obama started escalating the use of armed drones in—early in his first term, you know, he had to build a legal and bureaucratic infrastructure for the use of targeted killing, for the practice of targeted killing. And that infrastructure now exists for the next president, for President Trump, to use. And the real concern is that the lines that the Obama administration drew are lines that can be swept aside by the next administration. These are rules that the Obama administration adopted for itself, and it fought very hard to keep the courts from enforcing those rules or even asking whether the rules were the right ones, whether they reflected international law or reflected constitutional law. And so, in some ways, the Obama administration, I think, was very successful in carving out this authority, this really unchecked authority to use lethal force against suspected enemies. And that power will now be available to President Trump.
I think that at this point, most Americans don’t even notice the drone campaign. You know, this is something that has faded into the background. But in a period of just a few weeks earlier this year, the Obama administration authorized drone strikes in seven different countries and expanded its authority to use drones or its ability to use drones, armed drones, in Libya. So, this is a—this is a campaign now that extends beyond conventional battlefields. It extends to—not just to Afghanistan and Pakistan and Iraq and Syria, but also Yemen and Somalia and Libya.
And, you know, there’s no—there’s no legal reason. I mean, there’s no—there’s no line that the Obama administration has drawn that the Trump administration will have to honor. I think that, you know, for the last eight years, Americans have invested very broad powers in the presidency because they trusted the president. But the problem with doing that is that the powers that you invest in the presidency will be available to every president after this one, even if you think President Obama has used these powers wisely—you know, and I have real complaints about some of the ways that the administration has used the powers. But even if you think that the Obama administration has used the powers wisely, those powers may be used very differently by President Trump or by whoever comes after him.
the memos that are collected in the book include memos that were released only because of litigation. The litigation was brought by the ACLU, in some cases by The New York Times, in some cases by other journalists. And the administration, the Obama administration, fought very hard to keep some of that information secret. And ultimately—you know, in fact, at the beginning, the position that the Obama administration took was that even acknowledging the existence of the drone campaign, exists—acknowledging the CIA’s role in the drone campaign would cause harm to national security. That was a proposition that the courts ultimately rejected. And as a result, some of these memos were released.
to me, the most remarkable document is the memo that the Justice Department wrote in 2010, in July of 2010, to justify the targeting of an American citizen, Anwar al-Awlaki, who was in Yemen. You know, this really crossed a kind of legal Rubicon, because we’re now talking about targeting a citizen who has never been adjudicated by a court to be guilty of a crime or a threat to the nation. So it’s all dependent on the administration’s determination that this person constitutes a sufficient threat to justify the use of legal force. And that memo—the thing that’s really remarkable in that memo is that the administration concludes—the Justice Department concludes that not only does the government not have to go to a court beforehand to justify the use of legal force, but there’s no requirement that the administration go to a court after the fact to justify the use of legal force. And later on, in litigation, the administration defended that position, defended the idea that the identification of a target, the determination that a particular person constituted a legitimate target, was a determination that the executive branch should be allowed to make alone, without oversight, before or after the fact, by any court. And I think that that is a power that the administration, that the Obama administration, may come to regret, or people who are in the Obama administration may come to regret having claimed, because that power, again, will now be available to the next administration.
there was a strike in September of 2011 that killed Anwar al-Awlaki and another American citizen, Samir Khan. And then, two weeks later, a strike 400 miles away killed Anwar al-Awlaki’s 16-year-old son. Once again, the Obama administration argued that it shouldn’t be required to explain, to account for its actions to any court. And I think that that is probably the most remarkable claim, I think, that the Obama administration made in this context.
I think that President Obama has been a great president in many, many different ways. But in this particular context, I think that he has claimed powers that will be abused. And it was entirely predictable that they would be abused, because the lines that the Obama administration drew were elastic. The terms they used were very malleable, terms like “imminent threat” or “continuing and imminent threat.” These are terms that the Obama administration invented, and they are, by design, vague and manipulable. And when the Obama administration fought to keep the courts from evaluating the lawfulness of its policies, it was fighting not just for power that it would exercise, but for power that the next administration and the administration after that would exercise, as well.
I hope that’s not reflective of the way that General Flynn will approach this job. You know, that, that is not true. You know, obviously, it’s not true that 1.7 billion Muslims are Islamists. And even of Islamists, it’s ridiculous to say that Islamism is a cancer in that way. You know, I think that one of the things that the Obama administration did that I think was good was abandon the rhetoric of the global war against terrorists, abandon the easy equation of terrorism and Islam. You know, I think that that was not just inaccurate, that equation, but also counterproductive. And it is worrying to see somebody who’s going to have such a high position, such an important position in the national security sphere, articulating views like that.
a kind of broader hostility towards the freedom of the press and the freedom of speech. You know, President Trump—or, you know, during the campaign, Donald Trump ejected reporters from his campaign rallies because of his perceived—you know, his perceptions of their reporting. He ejected protesters from the rallies. You know, he has made the mainstream media into a kind of bogeyman. You know, I—and I see this sort of hostility towards whistleblowers in that—as part of that same pattern. You know, I think that’s all very worrying. I hope that some of the rhetoric that we’ve seen during the campaign and over the last few weeks won’t turn out to reflect the policies of the administration.
I am directing this new institute at Columbia called the Knight First Amendment Institute. And, you know, many of the issues I think we’ll address pre-existed the Trump administration and will likely exist long after Trump is gone, and they have to do with the fact that most of the Supreme Court’s precedents, First Amendment precedents, were set in the 1960s and ’70s, and we—that was long before the emergence of social media, long before the rise of technology giants like Apple and Google, you know, long before the emergence of transnational transparency activists like Julian Assange. So there are all sorts of questions now that emerge because we have analog-era precedents but digital-era problems. So, all of that, I think, pre-exists—pre-existed the election of Donald Trump and will exist long after.
he has shown a kind of hostility to journalism and to—and, you know, I think to free speech, as well, reflected by the statement that Mike Pompeo made with respect to Edward Snowden. There will be a set of issues that arise now, because of the Trump administration, that relate to the freedom of speech and the freedom of the press. And, you know, it turns out that the creation of this new institute at Columbia was probably well timed.
I’m not the first to have noticed that the tweets don’t seem to reflect, you know, a lot of legal reasoning, right? So, again, there is a question of how that’s going to translate into policy. And to be honest, I’m less worried about flag burning, because, as you say, the Supreme Court has already addressed this question, than I am about questions like secrecy and surveillance. Trump has said that he wants to expand surveillance of Muslim communities. He’s already made clear that he wants to—you already played a clip that reflects this—he wants to be more secretive about national security policy. I also worry about what he will do with respect to the encryption debate.
so, there was an effort, under the Obama administration, led by the FBI, I think, to require tech companies to build backdoors into their encryption technology so that the government could get access to communications when it wanted access to those communications. One problem with providing—with requiring those kinds of backdoors is that it creates insecurity for everybody. You can’t create a backdoor that’s available only to the government and only when the government has a legitimate reason to access communications. Once you create the backdoor, you’ve created an entry point that’s available to a lot of other actors, as well, not just the U.S. government, but other governments, and not just governments, but nonstate actors, as well.
there are a whole slew of technology-related questions that President Trump and his administration will have to weigh in on. And, you know, again, I’m hoping that the tone of the tweets over the last few months will not translate into policy. If it does, then I think there will be some very serious constitutional fights over those issues.
Section 702 of FISA, of the Foreign Intelligence Surveillance Act. so this is one of the—one of the issues that I think the Trump administration will end up weighing in on very quickly, because this statute, which is the statute that was enacted by Congress in 2008 to ratify the Bush administration’s warrantless wiretapping program—this statute is set to expire in December of 2017. So, over the next 12 months, there will be this public debate and a congressional debate. And there are several cases, as well, in the courts challenging the constitutionality of this statute. But over the next 12 months, there will be this debate about whether that statute should be reauthorized. And, you know, this is an area where surveillance comes up very quickly against the First Amendment. The surveillance is so broad that it will inevitably have a chilling effect on the willingness of individuals to engage in speech that’s protected by the First Amendment, to engage in association that’s protected by the First Amendment. So, there is a complicated set of constitutional questions about the proper limits on government surveillance power. And that set of questions is presented in these court cases and will also be presented in this congressional debate over the next 12 months.
Earlier this month, President Obama used a 1953 law to indefinitely block offshore oil drilling in the Arctic and the Atlantic.
at this point, I think it’s unrealistic to think that we will have legislation—that President Obama could support legislation that would end up cabining some of these powers. It’s too—it’s probably too late for that. But there are things that President Obama can do on his own. I think transparency is the most obvious of those possibilities. So, on the drone campaign specifically, the administration has released some information about strikes that took place outside conventional battlefields, but the information it’s released was aggregate information at a high level of abstraction. It could release more granular information about individual strikes, the time those strikes took place, the number of civilian casualties. And many human rights groups have called on the administration to do that.
The other thing that the administration could do, and I think it could do this not just in the context of the drone campaign, but on surveillance issues, as well, is initiate a serious study of the effectiveness of these programs, because there is a lot of—there are a lot of claims being made about the effectiveness of these kinds of programs, that aren’t backed up by any evidence. And the administration has never—the U.S. government has never conducted a serious study of the effectiveness of the drone campaign or the strategic effectiveness of the drone campaign. And the same is true of Section 702, the surveillance statute you brought up earlier. I think that the public debate would benefit from a more serious study of the effectiveness of that policy, that took into account the possibility of new safeguards. So, if you impose new procedural safeguards on this kind of surveillance, what effect, if any, would that have on the effectiveness of the government’s policies? That question is one that hasn’t really been addressed.
it’s a core part of the First Amendment. You know, there is no public debate that is worth having that isn’t based on information. So you need information in the public sphere in order to allow people to make decisions about the effectiveness and wisdom and lawfulness of government policy. And the Supreme Court has already recognized that, at least in some circumstances, the First Amendment provides a right of access, to the public and to the press, a right of access to judicial proceedings, a right of access to certain judicial documents. So there are questions at the margin about how far that right of access extends. And then there are also questions, which you and I have spoken about many times, relating to the Freedom of Information Act and the application of that act to the government’s policies, especially in the national security sphere. But I think that a core concern of the First Amendment, and certainly a core concern of the Knight Institute, that I now run, will be government transparency and providing more teeth to the Freedom of Information Act and to the First Amendment in that context.
with respect to targeted killing, surveillance, interrogation policy, rendition, the Bush administration had created, you know, a pattern of invoking state secrets to derail civil litigation, right? So when victims of these policies, or even people who just wanted to challenge the lawfulness of the policies, came to court, the answer that the Bush administration provided was these cases are too sensitive to be litigated. And the Obama administration took up those same arguments, made the same arguments in exactly the same way in the surveillance cases, in the drone cases. Now, there is one case that’s in the courts now involving the two psychologists who oversaw the CIA torture program. This is a case that the ACLU brought on behalf of several people who were held in CIA black sites. They are suing the people who oversaw their torture. And the Obama administration has not invoked the state secrets privilege in that context. Now, this is a case against private parties, the psychologists, so the administration, the government, is not a party, but the government could have tried to derail the case, and it hasn’t. So I take that as a promising sign. I think that the administration was right not to invoke the privilege in that context. And now, for the first time, we will have a court address the lawfulness of these policies.
there is now a very comprehensive report written by the Senate Intelligence Committee about the purported effectiveness of these policies. The record is clear that the policies were not effective in the sense that Donald Trump says that they were. You know, the vast majority of people with interrogation experience will say and have said that torture doesn’t work. Beyond that, torture is—torture is illegal, under both domestic law and international law. I think when it comes to—when it comes to actually crafting policy, Trump is going to have a hard time finding interrogators who will implement the policy that he describes.
I don’t think there’s any way to make a serious argument that the policies that were adopted by the Bush administration relating to interrogation were consistent with the Constitution or consistent with the Convention Against Torture. You know, the memos that justified those policies have been withdrawn. Bush administration officials have characterized those memos as sloppily drafted and indefensible. I don’t think it will be easy for a Trump administration to find lawyers who will put those kinds of memos in place again. And even if it can find lawyers who can put those kinds of memos in place again, it will have a hard time finding interrogators who are willing to implement the policy. So, I think that that is especially true because in the courts now you have these cases in which the people who authorized torture—at least some of the people who authorized torture are for the first time having to defend those actions before a judge and for the first time having to face the prospect of civil liability.
one really disturbing thing about the landscape right now is the extent to which these policies—the use of these policies turns on the decisions of a small number of individuals who don’t account for and don’t have to account for their decisions to any independent actors, right? So, really, we are reliant on the good faith of the people in charge. And I do think that President Obama took these decisions seriously. I don’t agree with all the decisions he made, but I think he took these decisions seriously, and he tried to put people in positions of power who also took the decisions seriously. But they then built a system that—a system of rules, a bureaucratic system, that required good faith on the part of those officials and relied entirely on the good faith of the people in charge. And, you know, we are not supposed to have a government of men and women. We’re supposed to have a government of laws. We’re supposed to have a government that is subject to checks and balances, where we don’t—you know, we’re not reliant on the good faith of any specific individual. That’s not the system we have right now. You know, the decisions that President Obama made may be very different from the decisions that President Trump makes. And the authority that President Obama claimed is broad enough that President Trump will be able to make very different decisions relying on exactly the same authority that President Obama articulated.
I don’t think it precludes President Trump from resurrecting it, if he decides that he wants to. I think that if he does resurrect it, he will face serious resistance, you know, in the courts. I think that a registry that is directed at members of one religion, whether it’s directed at that religion expressly or just implicitly, will face constitutional scrutiny. And I think that I would be surprised if organizations like the ACLU and the Center for Constitutional Rights didn’t walk into court on day one and challenge that kind of thing.
It’s very difficult for me to understand this program. You know, it’s voluntary, and so people who are actually tweeting solicitation of terrorism or glorification of terrorism are not going to provide their Twitter handles to Customs and Border Patrol or to the DHS, right? And on the other hand, you know, people who—foreigners outside the country who want to visit the United States may now think twice about even approaching lines that they think might get them more scrutiny at the border. So, somebody who thinks about criticizing American foreign policy in a tweet may now hesitate before doing it. Or somebody who is sympathetic to a group that the United States disfavors may hesitate before expressing that sympathy. And I think that, you know, that chilling effect is very difficult to measure. This is true of surveillance policies more generally. It’s difficult to measure the effect that surveillance has on the freedom of speech and the freedom of association. But the fact that it’s difficult to measure doesn’t mean that it doesn’t exist. It doesn’t mean that there isn’t an effect. And, you know, I think that the accumulation of policies like this—and there are many policies like this—will have an effect on the robustness of public debate, and, you know, not just outside the United States, but in the United States, as well.
I think that every other check on government power ultimately depends on public opinion and on the free press. You know, I think that the courts respond to public opinion. I think Congress responds to public opinion. And all of these things that look like checks on paper, like judicial review or congressional hearings or other forms of congressional oversight, they all turn on a free press, a vibrant press, the freedom to discuss government policy openly, without fear that criticism of the government will be mistaken for illegal or unprotected activity. I mean, you need to have that kind of vibrant public discussion in order for any other check to make sense. So, I—you know, I took this job long before anyone thought that a Trump administration was a possibility, but, you know, again, I do think that the timing is in some ways—is in some ways good. I think that the threats to the First Amendment are more sharply presented now than they have been in a very long time. And I don’t think anyone questions now the need for more—you know, more fighters for First Amendment freedoms.
we need to give President Obama credit for having reduced the population as significantly as he has. But in the long run, I think—I worry that more consequential than the reduction of the population there will be the Obama administration’s seeming endorsement of the principle of indefinite detention. And that, as a principle that the next administration will, I fear, use aggressively, if not at Guantánamo, then elsewhere, and the claim that the government has the authority to hold people without charge and trial until the end of a war that, you know, because of the way it’s been defined, will never end, I think that that is a very problematic claim that is inconsistent with the Fifth Amendment and inconsistent with any conception of due process understood by international law. I just don’t think that indefinite detention of that sort, untethered to a specific, discrete conflict—I don’t think that that can be defended under domestic law or international law.
the idea of setting the prison up at Guantánamo was to avoid the jurisdiction of the United States courts. Now, that turned out not to—you know, not to work. But it took several years for the courts to ultimately rule that Guantánamo—that prisoners held at Guantánamo had the right to file habeas petitions in federal court. Now, the Trump administration could pick a different island and, you know, start all over again. I would hope that the courts would be at least as skeptical of that claim as they were of the claim that Guantánamo was beyond the reach of the courts.
founding director of the Knight First Amendment Institute at Columbia University. He was previously the deputy legal director at the ACLU. His new book is titled The Drone Memos: Targeted Killing, Secrecy, and the Law.
— source democracynow.org