In
recent weeks, there were two developments that point to the ripping up
of accepted legal “norms” in this country and the setting up of new
fascistic norms. On March 8, George Bush vetoed a Congressional
intelligence bill that contained a ban on some torture, including
waterboarding. And on March 14, the House passed its version of a bill,
officially known as the FISA Amendments Act, that legalizes and expands
the warrantless wiretapping program of the National Security Agency
(NSA). Congress passed a temporary version of the law last year, and
the current bill extends the NSA program for six years. Bush is
threatening to veto that bill because it does not include immunity for
telecommunication companies who are facing various lawsuits because of
their participation in the illegal NSA spying program. The Senate had
earlier passed its version of the bill that includes immunity.
Revolution
talked to Shayana Kadidal, senior managing attorney at the Center for
Constitutional Rights (CCR), about these developments, focusing on the
question of NSA wiretapping. The CCR website notes, “In addition to
supervising the Guantánamo litigation, [Kadidal] also supervises the
Cuba Travel project and works on the Center’s case against the NSA’s
warrantless surveillance program, CCR v. Bush, and its challenge to the
“material support” statute, HLP v. Gonzales. He also works with the
Vulcan Society of Black firefighters challenging discriminatory hiring
policies of the New York City Fire Department; and with the Sikh
Coalition against religious discrimination by New York’s Transit
Authority, among other cases.”
Lawyer Shayana Kadidal of Center for Constitutional Rights:
REVOLUTION: First,
can you step back a bit and put these developments around torture and
government spying in the context of the very profound changes that have
been happening in the law over the last seven years or so-the gutting
of habeas corpus and so on?
Shayana Kadidal: All
the changes in the law have one common theme, which is that the
executive should have certain powers that cannot be checked by
Congress. That anything that Congress says, regardless of how clear it
is, under certain circumstances these sorts of regulation of executive
powers are going to be beyond the powers the Congress was intended to
have. And, you know, some of this has been on Vice President Cheney’s
agenda since the 1970s. If you”ll remember, he was one of the people in
the Watergate era that felt that a lot of the post-Watergate reforms
that the Democrats pushed through with their huge majority were things
that in fact weakened the country because they left us with an overly
weakened executive. Among these are the FISA (Foreign Intelligence
Surveillance Act) statutes limiting the President’s ability to gather
intelligence information without judicial approval for the purposes of
furthering “national security,” spying on foreign powers, foreign
governments, foreign terrorist organizations, whatever. That’s one
category.
Then another category, which is more
relevant now since 9/11, is this notion that we”re a nation that is in
something akin to a war with Al Qaeda, and that traditionally Congress
should have no role in telling the President how to interrogate
captured soldiers in a war, that the lack of Congressional power to
regulate these things extends to specific techniques of interrogation.
Whereas previously one might have thought that under Congress’s power
to define war crimes, which is very clearly spelled out in the
Constitution, power to regulate the armed forces, these things,
expressly Congress is given power to pass rules about interrogation,
even in a military context, even if you accept that there’s a “war”
against Al Qaeda-that military rules should apply instead of ordinary
investigative rules. Even if you accept all that, there’s an argument
that Congress ought to have power to regulate these things as spelled
out in the Constitution. The administration and its crop of lawyers say
no, that’s not the case-that the President has total control over
things that happen on the battlefield, he’s the commander in chief, and
that’s the most “efficient” way to do things. And that you”ll be
endangering the country by telling the President what kind of
interrogation techniques he can use.
So it all falls into this context of executive power. And in particular whether Congress can set limits to presidential power.
If
Congress had passed this bill banning waterboarding with a veto-proof
vote, what would have happened is that the President would have issued
a “signing statement” saying: notwithstanding the veto-proof vote, I
don’t think I have to enforce it, because I think it exceeds Congress’s
powers. And if CIA or various officials would have been called to
account for having disobeyed the statute, the President would have
said: Look, I issued this legal opinion that the statute itself is
unconstitutional. The attorney general signed off on it. And government
officials ought to be allowed to rely on the legal advice from the
executive branch.
REVOLUTION: There
is the issue of habeas corpus-under Bush’s Military Commissions Act
passed by Congress in 2006, the President can declare somebody “enemy
combatant” on his say-so and detain them and deprive them of all rights.
Kadidal: Right,
it’s basically a way of saying that the judicial branch doesn’t have
any role in telling the President when he can detain “enemy combatants”
in the battlefield. And they”re defining the battlefield as virtually
the entire world-defined only by the nebulous organization that we”re
supposed to be engaged in war against, Al Qaeda.
REVOLUTION: Let’s
turn to the bill, officially named FISA Amendments Act (FAA), that
expands the NSA warrantless wiretapping program. I”ll ask you about the
version the House just passed, without the immunity for
telecommunication companies that participated in this illegal
wiretapping. But first, can you describe the key elements and dangers
in this bill?
Kadidal: It’s
essentially on the model of the bill that got rammed down the
Democrats” throats by the President in the summer of 2007. That bill
was most notable for departing from the content of individualized
warrants-namely, when the government decides to surveil a single
target, a single person, and they produce some level of evidence to the
FISA court that the person is working for a foreign power or foreign
terrorist organization or foreign power, defined very broadly by the
FISA statute. Then the court can issue an individual order saying you
can surveil that one person.
Well the departure
from that-it’s a tremendous departure, in terms of the history of
wiretapping regulations-in the FISA Amendments Act, the government is
now allowed to go to the court and ask for approval of an entire
program of surveillance. So they”ll come to the court saying: We want
to surveil every person who calls from Afghanistan to the United States
in the middle of the night, when the person they call calls five other
people within 15 minutes. Some sort of criteria like that, very
generalized, that could apply to hundreds and hundreds of cases every
day, where the government may not even have any idea of who the person
is who is being surveilled. And the FAA says as long as those programs
do not “target” people inside the U.S., it’s OK. The court can go ahead
and approve the program.
Now that statute only
lasted for six months, and the Democrats were willing to offer some
short-term extensions to it. The President refused to accept that, and
so it collapsed. But any orders for approving whole programs under that
statute can continue for a whole year. So if they went to the secret
FISA court the day before the statute expired and said we want to do
six or seven different wholesale programs, well those programs could
get going for another year. So this is the kind of regime that the
government is working under right now.
One of the
interesting things about it is that under the Act the government can
target, pretty much wholesale, U.S. citizens who are not located in the
U.S. And if those intercepts happen to catch calls between those U.S.
citizens living overseas and people living within the U.S. who are
citizens also, well it makes no difference-it would still be legal
under the FAA.
To give you an example: We work
all the time on our Guantánamo cases with U.S. citizen lawyers located
in London working with an organization called Reprieve. So let’s say
I’m calling one of those lawyers up to discuss something sensitive on
one of the Guantánamo cases. Under the FAA, the government could target
one of those lawyers over there without ever going to a FISA court for
a warrant. And they could listen in to any conversation that those
lawyers have with anyone else, including a U.S. citizen lawyer in the
United States talking about a case against the government, like myself.
So it’s pretty much open season on lawyers.
REVOLUTION: The principle of lawyer-client privilege is being thrown out the window.
Kadidal: Right.
Ordinarily, even with standard wiretap where they go before a judge to
prove probable cause of criminal activity-let’s say they”ve got a
wiretap on the home phone of a high-level drug dealer-if that dealer
calls up his attorney, the second they figure out or have reason to
believe that the conversation is a privileged conversation, under the
ordinary rules for wiretapping, either under domestic wiretapping law
or FISA, they”re supposed to turn off their recorders. There are
supposed to be these procedures in place called “minimization”
procedures that protect privileged communications like conversations
with a lawyer. The government is just not allowed to monitor or record
them. And there’s supposed to be a process in place so that if they
accidentally do things like spying on a non-lawyer’s line and they call
up their lawyer, well the process is supposed to protect those
communications. Again, under the FAA, that scenario I outlined for you,
they can in fact target U.S. citizen lawyers” communications.
Under
the new bill that was passed by the Senate, the “Cheney-Rockefeller
bill” as it were, some of those problems have been ameliorated a little
bit. But the same general concept of approving whole programs of
surveillance is still there. And that’s just a very far departure from
anything that traditional Fourth Amendment warrant requirements have
been in this country. The whole idea was that the Fourth Amendment was
in part a reaction to these writs of assistance whereby the British
Crown had authorized police officers to look anywhere they wanted in
order to find people who had been not obeying the Crown’s tax
regulations. It was extremely unpopular-the police basically going
hog-wild. That’s the kind of thing that led the Founders to word the
Fourth Amendment in the way they did, requiring probable cause where
the criminal activity of the plaintiff would be detailed to the judge
with some specificity, and where warrants are issued that put narrow
constraints on law enforcement officials in terms of how they can
interpret it and execute it. It’s supposed to be the opposite of giving
law enforcement carte blanche. That’s basically the problem with the
FAA, with the new version that’s on the table, that it would allow the
government rather than the judge to decide on the details of who’s
going to be listened to.
REVOLUTION: What
about this question of immunity for telecommunication companies under
this bill? There are various lawsuits against those companies for
participating in Bush’s illegal wiretapping program. The House has now
passed a version that Bush has threatened to veto because it doesn’t
have the immunity provision. Can you talk about what’s behind this?
Kadidal: The
way the Bush administration spins this is that we shouldn’t be out
there penalizing these companies for just trying to help us out when we
asked them to help after 9/11. Basically, it seems what happened was
that a lot of these big companies allowed the NSA to come in and tap
right into the backbone of their communications to be able to sweep up
every last thing that goes through their communications networks and
ship off one copy of it-every phone call, every email-to Fort Meade,
where the NSA has the biggest accumulation of computer power on the
planet, to analyze this sort of thing. It’s not a case necessarily of
them wanting the ability to execute specific wiretaps and pick out
certain phone communications with a little more speed. It seems like
the kind of access that we know has taken place, from the accounts of
two whistle-blowers inside these companies, is basically wholesale
access. It’s more akin to John Poindexter’s Total Information Awareness
(TIA) than it is to being able to execute specific warrants more
speedily.
But even leaving that aside, the idea
that these companies were doing these voluntarily to be “patriotic” is
a little ridiculous and shows a lack of perspective. The reality is
that these telephone companies are operating in a kind of monopolistic
environment. They depend on government licensing at some level in order
to make their profits. So they are very dependent on regulations being
favorable for them, in order to make healthy profits. That tells you
that these companies have a huge financial incentive to do whatever the
government happens to do, regardless of whether they think it’s legal,
or a good idea from the policy standpoint, or whether it serves the
best interests of their customers. They”re thinking about their bottom
line in one of the most heavily regulated industries in this country.
Of course they”re going to do what the government tells them to do. And
in some cases there might have been financial quid pro quo, sort of a
“gentlemen’s agreement,” that favors are going to come back their way
in exchange for doing what the intelligence agencies want. The whole
idea that these companies ought to be protected from getting penalized
for violating their own customers” privacy is sort of absurd. The
customers are the ones, you know, pumping in $500 or $1000 a year in
their phone usage fees. It’s absurd for the companies to be claiming
the government has a stronger claim to their loyalty than the customers.
Now
there have been all sorts of compromise proposals out there around this
bill. It does seem like a big stumbling block. The administration is
pushing very hard on it. Because I think they know that if there’s any
kind of liability, it means that in the future the lawyers at these
companies are going to be calling the shots. And the lawyers are going
to be cautious when the statute says you can be fined $1000 a day for
participating in unlawful wiretapping on one of your customers. That’s
what the game is about. Any kind of liability is going to diminish the
companies” willingness to break the law willy-nilly in the future. So
some of these compromise proposals have said, well, let’s put a cap on
the amount of damages-2% of the company’s market capitalization max, or
x amount of dollars per person max-so they would be accountable, they
would be hurt, but it wouldn’t drive them out of business. For the Bush
administration, even something like 2% of market capitalization is too
much because they know that any penalty that hurts at all is going to
diminish the companies” willingness to go along with executive
lawbreaking in the future.
REVOLUTION: It shows the determination of the present government to sweep away any roadblocks to their spying powers.
Kadidal: Sure,
if the Congress is a check on the President’s powers in some
circumstances, and the courts” warrant requirements are a check on that
power, the willingness of the telephone companies or private companies,
which all accumulate huge bodies of data nowadays-everything from
Google to phone companies to Amazon to credit companies-if those
private companies are also then a check to the President’s power by
insisting on following the law, well then that’s a problem for this
theory of unlimited executive power.
REVOLUTION: You mentioned the Total Information Awareness program, which had been banned by Congress back in 2003. A recent Wall Street Journal
article, on March 10, said that in fact the NSA has been building
essentially the same program. So the current NSA wiretapping bill is
clearly just one part of vast and growing government surveillance. Can
you comment on that?
Kadidal: I think you”re right. They initially came out in defense of the [NSA warrantless wiretapping] program in 2005 after the New York Times
broke the story. And they said it targeted only a couple of thousand Al
Qaeda terrorists, was really focused-when, in fact, with all the
whistle-blower information that we”ve seen and so forth, it’s known in
fact that it may be very broad. That they have tapped into a number of
those backbone circuits at a number of these phone companies. And they
have the technology now to be able to basically scan through every
single email that goes through the system, and possibly do
voice-recognition on huge amounts of calls. Now this is precisely what
the TIA program looked like. And when TIA went into existence in early
2003, there was a backlash. Americans thought that it was really too
much in terms of intrusion into privacy, in part because of this whole
notion that they will gather every bit of information about you and
then do “pattern analysis” to decide whether you”re suspicious. Well, I
mean, an ordinary American hears that “the NSA is spying on Al Qaeda
terrorists” in a focused manner, well they think, you know, my name is
not “al-something” in Arabic so they”re not going to suspect me. But
when they hear about “pattern analysis” and hear about “every
communication” being in the hands of the government, then they start to
get nervous. They could become a target for something completely
unwitting that “fits a pattern.” So it created a backlash, and Congress
de-funded the TIA program. But the bill that did it really cut off only
certain aspects of it and allowed others to go forward without
realizing it. I think that’s the nature of the press coverage of it.
The TIA was allowed to go forward in some respect. It’s not surprising
because it is simply too important for the intelligence agencies for
something like this to go forward. You heard after 9/11 the fact that
“human intelligence,” especially in the Arab world, was in really bad
shape, and that intelligence gathering generally had become very
oriented to military targeting needs, and thus very dependent on
technology, and human resources really weren’t there. Well, the
intelligence agencies” response to that hasn’t been to try to cultivate
Arabic-speaking agents to go out to the Arab world and do that hard
work of planting sources on the ground. Instead they felt, well, maybe
we can rely on technology to replace that human capacity. In some
respects it was a dream of intelligence agencies in the “40s-the
problem with human spies is they can be traitors, they can be working
for both sides at the same time, they can be flaky and unreliable and
everything else human. The dream has always been to create sort of a
robotized person to carry out your intelligence gathering-sort of like
the Manchurian Candidate. That was supplanted with the notion that
instead of having intelligence agents try to infiltrate suspicious
organizations, we can scan through every phone call and use some
“pattern recognition” criteria that will let us find the suspects
without ever having human intelligence in the first place. The problem,
of course, is that just doesn’t work very well. In some respects the
fact that you would use this strategy indicated that the government’s
reputation in the relevant communities worldwide and in the minority
communities in the U.S. was so bad that people wouldn’t cooperate with
you anymore. And that makes it impossible to fill that human
intelligence void.