JAMES TRAUB: Good evening. I'm James Traub. Welcome to Ethics Matter.
Our guest tonight is Anthony Romero, the director of the American Civil Liberties Union. Anthony became director of the ACLU seven days before 9/11, which turned out to be an incredibly propitious time to take a job like that. 9/11, I think, has shown Americans threats to their civil liberties, which I think many people haven't thought about for half a century or more. That will be our topic tonight, which is the conflict between liberty and security.
Anthony, thank you for being here this evening.
ANTHONY ROMERO: My pleasure. Thank you for having me.
JAMES TRAUB: First, am I right in thinking that 9/11 was kind of a great moment for the ACLU, if you can put it that way?
ANTHONY ROMERO: We're like undertakers—we do well in times of plague. We have lots of work to do.
The events of 9/11 fundamentally transformed our country and, of course, my organization.
We are now celebrating our 95th year this year. We were founded at a time very similar to the time I inherited in my first week on the job, the earliest moments of the ACLU. We were founded right after the Palmer raids, when a series of bombs went off across this country, one even on the doorstep of the attorney general at the time, Mitchell Palmer. He, concerned with the enemy within, with this violence that was erupting on our doorstep—on his doorstep, literally—unleashed the full fury of the Justice Department to find those who would rip apart our fabric of society. In that time, they targeted the labor movement, the so-called anarchists, socialists, communists, many immigrants, and summarily deported close to 5,000 individuals without due process.
It was precisely at that time a young group of well-intentioned, wonderfully aspirational, young (in their twenties) individuals, mostly from well-heeled families, said, "We need to found an organization that will defend the rights of all people, everyone in America."
Our founder, Roger Baldwin, was joined by some of the great suffragists of the time—Margaret Sanger, who went on to found Planned Parenthood; Crystal Eastman; Jane Addams. Helen Keller was one of our founders. We were founded with the premise that we needed to be able to, as a people, have bodies that would stand up to government abuse and excessive authority. So out of the Palmer raids we were born.
Over the years there were many iconic moments for us—the Japanese-American internment being one, also times of war, when fear and scapegoating got the better of our civil liberties. We challenged the internment of 120,000 Japanese-Americans, two-thirds of whom were American citizens. We brought that case all the way up to the Supreme Court. In 1941 we filed it. In 1944 we lost it.
Three of the great liberals of American democracy in the 20th century—FDR, who signed the order; Hugo Black, who was on the Supreme Court; Earl Warren, in California. It was a moment when, again, in times of fear and insecurity, we sometimes make decisions we come to regret.
JAMES TRAUB: It's a very vivid way—I hadn't realized that until you said it—of illustrating the politics of the moment when national security and civil liberties are seen in tension. One of the things I take from your having said that is that defending civil liberties is an intrinsically minoritarian pursuit.
ANTHONY ROMERO: And it does not matter the party that is in power. Well-intentioned, well-meaning leaders will sometimes make the wrong decisions for the wrong reasons.
History is quickly forgotten. In our organization we understand the history and we think the history informs what we do going forward. In fact, it was those lessons of the earlier years of the ACLU that helped me understand just how vigorous we had to be in being vigilant and being skeptical of some of the arguments and policies that were put in place in the immediate aftermath of 9/11.
JAMES TRAUB: I'm curious. You had just become director then. Here you are, you have an organization in New York, you were all New Yorkers, you had lived through this.
ANTHONY ROMERO: We were all the way down near the World Trade Center. Our office was closed for several weeks.
JAMES TRAUB: Oh, is that true?
ANTHONY ROMERO: Oh, yes.
JAMES TRAUB: So this was a really intensely personal thing.
ANTHONY ROMERO: One of our board members died in the World Trade Center.
JAMES TRAUB: I hadn't realized that.
ANTHONY ROMERO: Yes. So we felt it personally, directly, as New Yorkers, as individuals in this city, as Americans. And then, as civil libertarians, we also understood that we needed to not pull our punches.
JAMES TRAUB: Anthony, that's what I want to get at. I'm curious. How much internal debate was there in the aftermath of 9/11, because things like the Patriot Act happened quite quickly? How much internal debate was there amongst you on the question of, "Is our job to try to make the right balance between those two things, or is our job to stand up for this thing because nobody else is?"
ANTHONY ROMERO: It's funny, because there really was very little dissent about the need for our being strong enough to stand up to some of the government arguments. It was more a question of tactics initially and timing. I remember my first week on the job, right after when 9/11 hit, on 9/12 I issued my very first press statement to the public. It was one where we grieved the loss of life. We talked about the importance of American values. I think I remarked upon the metaphor of the Statue of Liberty. I see the Statue of Liberty from my office. It is somewhat poetically appropriate. I talked about the need for being mindful of defending freedom and liberty in times of fear and insecurity.
There were some who thought I was being a little bit shy in the beginning. There were some strident members of the organization who were perhaps a bit critical, who wanted me to jump right ahead and say, "Talk about the civil liberties violations that we know will come."
I was of a mind—and I like to think I was right in retrospect—that you needed to meet the American public where they were, and that on September 12 we all needed to grieve the loss of life and remind ourselves what made us proud to be Americans, and that as soon as things began to change in policies and laws, in government practices, then we would come out full.
JAMES TRAUB: That's an interesting expression, "to meet the American people where they were." After all, when people are polled about, for example, torturing alleged terrorists, people say, "Yeah, Jack Bauer does that and it works."
ANTHONY ROMERO: Yes.
JAMES TRAUB: I guess that raises a couple of questions. One is: How long do you think it took?
ANTHONY ROMERO: It took a month.
JAMES TRAUB: A month before people began having the reaction, "We have to think about our liberties as well as our security"? That's what I mean. How long before that reaction set in?
ANTHONY ROMERO: It happened within a month in fact. We had the Patriot Act. That was the first legislative response to the events of 9/11. That was enacted 30-some-odd days after the event.
JAMES TRAUB: And that went through instantly. There was no opposition.
ANTHONY ROMERO: There was very little debate. Many of the proposals that we had been fighting off for years were pulled off the shelf, dusted off with a fine veneer of anti-terrorism patina, and then forced through Congress with very little discussion or debate. There was one member of the Senate who voted against it.
JAMES TRAUB: Who was that?
ANTHONY ROMERO: Russ Feingold.
Even well-intentioned, wonderful defenders of civil liberties and civil rights would tell me privately, "Anthony, this is not the time when we can raise these questions."
I remember having this conversation with Senator Paul Wellstone, right before his plane went down, where I said, "Paul, how could you have possibly voted for the Patriot Act? What were you thinking? You know what's in there. It's a ticking time bomb. You've given the executive branch such extensive powers. We will come to regret this."
He said to me, a month before he died, "I understand. But this was not a time where I felt I could raise those questions at the beginning. I'm in a tight race. Let me get through my race. We'll get you on the Hill and we'll start repealing aspects of this law."
JAMES TRAUB: Then he died.
ANTHONY ROMERO: Then he died, yes. And, of course, this law has never been repealed.
JAMES TRAUB: But wait. Certainly on torture issues, the moment Abu Ghraib happened, suddenly this became an inescapable public issue. But on the Patriot Act issues, was there really much of a groundswell prior to Edward Snowden's revelations?
ANTHONY ROMERO: There were moments. It has now been almost 14 years I have been doing this work. There have been moments when there have been enormous reactions to the Patriot Act, and they had been full-out.
There were a series of 280, if I remember correctly, local efforts that passed resolutions at the city level, very few, but some at the state level, that would try to resist the powers of the Patriot Act and say they had gone too far. There were these wonderful moments when Bill of Rights defense committees had sprung up in all sorts of different places and passed local, non-binding resolutions—because these are local laws, and ultimately you are talking about federal power. But there was this moment when there was this great reaction to the Patriot Act.
The Patriot Act quickly became radioactive among some members of the public. It was the very marketing/PR naming of the act, I think, that turned a lot of people off. Really smart people began to really curl their nose at the idea that we would name something the Patriot Act like this.
And then, in it were all sorts of law enforcement powers which weren't really fully debated by Congress—in fact, not debated at all, no hearings, no testimony.
So there were moments that were crescendos. And then, over time, the American people would get accustomed to a new normal. It wasn't only until the revelations of Edward Snowden that, in the last two years, began to reignite again these questions around surveillance—surveillance done in secret with very little checks and balances put in place, with questions that affect the ordinary life of everyone in America. So we find this growing crescendo once again.
JAMES TRAUB: Anthony, you mentioned in a piece yesterday something I certainly didn't know, which is that the Patriot Act is scheduled to legislatively expire unless it is re-upped in June. Now, I take it as a practical, realistic, political matter—I know the ACLU has called to allow it to die. That's not going to happen, right?
ANTHONY ROMERO: Well, we'll see. I'm actually hopeful.
JAMES TRAUB: How come?
ANTHONY ROMERO: I have to be. It's in my job description.
JAMES TRAUB: Okay. Any reason why the rest of us should be hopeful?
ANTHONY ROMERO: Yes. Part of what I find is that there's only a certain section of the Patriot Act, Section 215, which expires. There are different parts of it that expire at different moments.
JAMES TRAUB: Yes, it's 215 that expires, right.
ANTHONY ROMERO: That's the part that authorizes the government to do dragnet surveillance both of your telephone records and of your email records. It's the one that's directly on point with the Snowden programs that he revealed through the documents that he released to journalists.
So it's the first moment that we are going to come back to this question of the surveillance powers of the government in the aftermath of the Snowden revelations. So I actually think—it has been renewed before, usually very routinely, very rote. We passed it for a number of years. It sunsets in four, six years, and we come back to it, and we routinely reauthorize it.
I think this time around, with the Snowden revelations, and this time around also because you have the beginnings of this alignment between the liberal left and the libertarian right—and so you have this unique moment when we can coincide with members of the Republican Party in ways that we've never been able to before. So you have individuals like Senator Wyden and Senator Rand Paul who are both saying, "It's time to let this provision of the Patriot Act expire."
I think there is enough grist in the mill to really have a moment when we can stop our legislators and force them to answer the questions we have as a public, and not have just this routine rubber-stamp reauthorization.
JAMES TRAUB: Let's go through the process of what's happened a little bit. After the Snowden revelations, President Obama empaneled a commission to look at, first, the claims of whether it was actually the case that this NSA [National Security Agency] metadata bulk collection system had done any good, had prevented acts of terrorism, as the government claimed, and then what should be done.
A lot of people in your community were really disappointed that while the commission concluded that it hadn't done any good, they could not point to a specific case, neither did they call for an end to bulk collection. They said it shouldn't be held by the NSA, it should be held by a third party. I take it that already took some of the wind out of the sails.
ANTHONY ROMERO: It took some. It would be a vast improvement to have it in the private third-party hands rather than the government's hands. But it's also true that these very same bodies—there are actually two review panels, one the presidential review group and then also a report done by the Civilian Oversight Board on Civil Liberties and Civil Rights by the government. One is a legislatively created body and one a presidential appointed body.
Both came to the same conclusion, that this bulk data collection was not keeping us any safer. In fact, the Section 215, which is the one that is up for reauthorization—neither one could point to an instance of terrorism where Section 215 had prevented a violent attack against American interests.
It should be a no-brainer, in other words.
JAMES TRAUB: I went back to look at Obama's speech he gave when he received the report. Something I hadn't remembered, he said, in effect, actually there is an instance where it could have prevented 9/11 because Khalid al-Mihdhar, who was one of the hijackers living in San Diego, made a call to a known al-Qaeda phone number in Yemen. So Obama cited this fact to say, "Of course we need to have this ability to collect calls from the United States to places abroad because that can lead us to uncover terrorist plots."
ANTHONY ROMERO: We find that our president often contradicts himself and he mumbles a defense of civil liberties and a defense of the series of checks and balances that we think are essential.
I think, if we go back and look at the most thorough review of the breakdown of intelligence gathering, it was The 9/11 Commission Report. That was probably the most thorough and the most thoughtful. That was a report that we helped staff through members of the commission. They were bipartisan. They spent years, millions of dollars of taxpayer money.
What is also clear is that one of their primary conclusions was that the greatest challenge America had was not that it wasn't collecting all the data it needed; it was that, even with the data we collected, we failed to connect the dots. It makes the point that when you are looking for the needle in the haystack, which is essentially what you are doing in national security matters, when you are trying to do this type of intelligence gathering, and you are looking for that one needle in the haystack, it is very hard to find the one needle when you keep adding more hay onto the haystack.
These bulk data-collection programs did not help us get any more strategic or surgical and helping find and connect the dots between intelligence that would help us prevent attacks. It just piled everything onto it, making it all the harder then to decipher those leads that would have in fact prevented the 9/11 attacks.
JAMES TRAUB: You put it diplomatically by saying that our president mumbles about civil liberties. But I assume that for you and for the ACLU this is an unbelievable disappointment.
ANTHONY ROMERO: Sure.
ANTHONY ROMERO: Me too.
JAMES TRAUB: He talked about we're going to put an end to the color-coded politics of fear—all that stuff.
ANTHONY ROMERO: Believes in transparency, believes in accountability.
JAMES TRAUB: Okay. So the question that I think this leads to is—unless you think the guy's just a hypocrite and a liar, I think the more interesting question is: What does that tell you, that when you get the president—you would almost have to design artificially to create such a likely person—that person gets in office and pursues those policies?
ANTHONY ROMERO: I have an opinion, of course, but I think I leave that to good historians like you.
JAMES TRAUB: Wait a minute. No, no. Why? Come on.
ANTHONY ROMERO: But I will give you my opinion. I'm going to give you my opinion. But I will be very interested to see how presidential scholars do write the history books.
It is a conundrum. One has to scratch one's head about how is it possible that a president who ran on a very clear agenda on this set of national security matters could be so off. In other areas he has been terrific, in other areas like voting rights issues or lesbian and gay rights issues or questions around poverty or health-care reform. All of those I think are enormous wins, from my perspective, that the president has championed.
But in the context of national security, whether it's surveillance or Guantanamo or the prosecution of those who committed torture or the use of drones, which we heard about today, this is a president who looks a lot like his predecessor, that there is not substantive difference in many of the major policies and priorities when you compare him to George Bush.
JAMES TRAUB: So why?
ANTHONY ROMERO: There isn't a voting constituency attached to these issues. He would be good on LGBT [lesbian, gay, bisexual, transgender] rights because he's a con-law [constitutional law] professor and he believes in civil rights issues and he believes it in his blood. He also has a constituency of people who will hold his feet to the fire on LGBT issues. The same on abortion and choice. The same on questions around poverty and health care.
There is not an easily identifiable voting bloc that will vote or not vote a certain way when it comes to NSA surveillance, Guantanamo, and drones.
JAMES TRAUB: I want to ask you an alternative hypothesis. That would be the—
ANTHONY ROMERO: The political, the politician, the bean counter.
JAMES TRAUB: —the cost for doing the right thing is very, very high, and the cost for doing the wrong thing is nonexistent.
There is an interesting book that Stephen Carter, who is a law professor at Yale, wrote, The Violence of Peace. Carter says exactly what Anthony just said. He said there is amazingly little—and he was a friend of Obama's—difference between Obama and Bush. Why?
This is what he writes. He said: "It might be that Obama the insider [meaning as president] has realized what Obama the outsider did not. Whatever the mistakes of his predecessor, President Bush acted out of a belief in the urgency of the threat facing the nation. The threat was neither invented nor imagined, but is instead out there in the world."
And so Obama every day gets one of these terrifying intelligence briefings, and suddenly thinks, "Oh, it's worse than I realized."
ANTHONY ROMERO: And that's what I also hear is true. I hear it from friends who are very close to the administration, the president, the White House, that he was very much captured by the intelligence community, that they put the fear of god, quite literally, in him, with these daily terrorist briefings and national security briefings.
I think there we have to be mindful of the fact that we would want our executive branch and our president to be very skeptical—not because he doesn't want the intelligence communities to do their job and do it well, but you want someone who is going to be very probing and ensure that they go back and do their homework twice or thrice if necessary.
I will also go a step further. I have met the president twice only, once in a private meeting that was rather extended and once just very casual.
JAMES TRAUB: Did you tax him with this stuff?
ANTHONY ROMERO: We clashed. I was summoned to the White House. I can tell the story because, if anyone broke protocol, it was the White House that broke protocol by telling some of these stories in two books, in Jodi Kantor's book The Obamas and in Daniel Klaidman's book. It was billed as "he wants to hear from outside the bubble."
JAMES TRAUB: This was when? What year was this?
ANTHONY ROMERO: About two years after he was first in office.
We were told we were brought in to give him an outside perspective. We were brought in to be put in line, and it was pretty clear that it was less about him hearing us and more about us hearing him. He was really quite piqued. Some of the criticisms we had made, even at that early point, he thought were unfair and would be best left unsaid or muted.
I think in the end there's a certain arrogance—and I say that with all due respect to the office and the president and to a man I voted for—that he thinks himself to be best to make these hard decisions. Certainly the burden of the responsibility falls on his shoulders, and certainly the buck stops with him in every quintessential way.
But the idea that, therefore, he is then best situated to make these hard calls—I find it astonishing, for instance—this is where I can only get to the arrogance factor—that The New York Times ran this great big exposé about the drone program, the very first article that came out, where unnamed White House sources talked about the kill list, what we call the kill list, how they identify whom to target with unmanned drones for execution, either near the battlefield or off the battlefield, like in Yemen. In The New York Times you hear the story about how the president himself would agonize over the dossiers of who would be on these kill lists, said a high unnamed White House source. I found that chilling.
In most of my studies of American history, we worked very hard to make sure that the president's fingerprints are never on dossiers, that our covert agencies assign who should be executed.
JAMES TRAUB: Wait. I'm sorry. Is it better or worse that his view is "if we're going to kill somebody, I as the president have to take responsibility for that"?
ANTHONY ROMERO: I think it's a level of—you have to let the processes of government, with a robust series of checks and balances, the cabinet of rivals who will fight each other, who will give you the best decisions and recommendations, rather than you making the decisions yourself.
ANTHONY ROMERO: Exactly. It's astonishing to me. And it's astonishing especially in the context of some of these very difficult cases that we have been deeply involved with—the case of Anwar al-Awlaki, an American citizen, who was targeted for drone assassination by the American government, leaked out to the press months and months before they actually succeeded in killing him; and he was in Yemen, not in a declared battlefield, but the battlefield in the war on terror is anyone everywhere.
When his father, Nasser al-Awlaki, came to us—Nasser is an American permanent resident, studied in the United States, had read the reports that his son was being hunted by his own government—came to us and said, "How can America be trying to execute my son in Yemen? He has not been convicted of a crime. He has had no due process. Now we're throwing all the power of the U.S. Defense Department and the CIA [Central Intelligence Agency] against him. Isn't there something you can do, Anthony?"
So we endeavored to bring a case asking that there be some adjudicating balancing of equities—there's got to be someone other than one person or a group of individuals given the carte blanche to decide.
JAMES TRAUB: Let me stop you right there. I myself don't totally understand why there should be such a hard-and-fast legal and moral distinction between the targeted killing of an American and the targeted killing of a non-American.
ANTHONY ROMERO: I think ethically and morally—and we are at the Carnegie Council for Ethics in International Affairs—I think that line is nonexistent.
JAMES TRAUB: Then you should say one shouldn't use drones; one shouldn't have targeted killings.
ANTHONY ROMERO: No. I think in certain instances you can. There is a question whether you should do it in a place like Yemen, where there is not a declared battlefield. Places like Pakistan or Afghanistan, on the border, where there has been the authorization of use of military force, where Congress has at least sanctioned the use of military force, is quite another matter. It's just another matter when you go to a theater where there is no declared war in place.
But the reason why we focused—again, Mr. al-Awlaki's father came to us—and we brought that case is because we have certain protections for U.S. citizens that you don't have for Pakistani citizens in American courts. It's not because any one life is worth more than another; it's just under the legal context an American citizen can claim certain rights in the courts under the Fourth and Fifth Amendments that a Pakistani would not be able to.
JAMES TRAUB: But if this American citizen, Anwar al-Awlaki, turns out to have been somebody who was both rhetorically, inspirationally, and also perhaps far more directly causing the death of many people, including many Americans, and there was no easy way of seizing him—it was possible, but extremely difficult—then why is it so obviously wrong to engage in targeted killing?
ANTHONY ROMERO: Because you have to unpack the legal standard first. We are able to take that type of extreme action, unilateral execution if you will, if the target poses an imminent threat to the nation, and it's got to be credible and "imminent" being the operative word.
The facts of this particular case are very hard to allege that the threat was imminent. When you have the ability to put him on a list for eight or nine months, the ACLU can be contacted by the man's father, we bring a lawsuit, we're in federal court, and then they still succeed at killing him, the imminence of that threat seems a bit attenuated in my mind. We don't know because we don't know the circumstances behind it.
I think it's also true from an ethical perspective—and I have had this debate with members of the government, those who will see me—
JAMES TRAUB: That's not so many of them, I gather, after the president chewed you out.
ANTHONY ROMERO: It's shrinking every year.
We don't allow for the fact that people change. I grew up Catholic. I grew up learning both the Old Testament and what we call the New Testament. I remember one of my favorite stories was Saul on the road to Damascus. I was entranced by this story—"Saul, Saul, why do you persecute me?"—the idea that you could be stopped on a road and something could inspire you to change your mind and then you change your life.
How are we ever to know that Anwar al-Awlaki was never struck with that Saul-on-the-road-to-Damascus moment? And even if he had been an operative or someone who had been a spokesperson for the al-Qaeda, how do we know that at the moment of his death he hadn't changed his point of view?
JAMES TRAUB: I'm very interested in this, because you are describing it as if this is a matter of capital punishment and the man's soul was being judged.
ANTHONY ROMERO: I think that's why—
JAMES TRAUB: Wait. But the issue, I think, is it is true of this man or any man that his or her life is never unraveled until the very end, it's always a mystery. But if a person has made himself an enemy and a combatant, doesn't the question of his soul become an unaffordable luxury?
ANTHONY ROMERO: But I think in a legal system that often tries to find mitigating circumstances, when we do use capital punishment as an extreme case—and you have to understand my organization doesn't believe in capital punishment in any circumstance, we don't believe in it for anyone.
JAMES TRAUB: Me neither. But I see the distinction between these things.
ANTHONY ROMERO: But part of what you allow in a legal system, even the one which we don't fully agree with, is that you allow for the weighing of certain equities. When you decide to put someone on a target list and you hunt them for over a year and you don't allow for anyone to adjudicate the equities—the balances, the character, the temperament, the change of circumstances—you don't allow for the type of guarantees. What if you got it wrong? What if they actually got it wrong?
And they did absolutely get it wrong—in what context?—when they killed Mr. al-Awlaki's son, a 16-year-old boy, an American citizen, who said, "I want to find Dad. Where did Dad go? I want to go to Yemen. I want to see where Dad went." The little boy went hunting his father because he wanted to have a connection with Dad. This little American citizen—you have to watch him on video—was out there trying to connect with his father. Another one of these drone strikes that had gone awry killed the son of Anwar al-Awlaki. No one says that he was an al-Qaeda operative or a high-level al-Qaeda individual. He just happened to be wondering, "What happened to Dad? Let me go find him in our home country."
I think that's why you want to have mechanisms that put constraints around the most awesome use of executive power, the ability to be judge, jury, and executioner in the context of individual life of American citizens—not on a battlefield.
JAMES TRAUB: Let me stop you. The ACLU has focused a lot on not just the substantive question, but the transparency issues. You sued in order to have some of the—
ANTHONY ROMERO: Legal standards of review.
JAMES TRAUB: —the essays written by the Office of Legal Counsel, the president's directives. So Obama tried to deal with some of these issues in a 2013 speech.
ANTHONY ROMERO: Yes.
JAMES TRAUB: Has there been any important opening from your point of view in terms of transparency and accountability on this stuff?
ANTHONY ROMERO: There has been a beginning. It is certainly not enough. And it's hard to fully understand the legal standards unless you know how they are applied in particular circumstances. Certainly in the case of Anwar al-Awlaki, where they succeeded—he is dead—we should be able to understand the intelligence analysis that went into making a determination about whether or not he was properly placed on this drone hit list. What evidence did we have that he was an imminent threat to our nation's security? You can redact all you need to make sure that the other sources, other conspirators with Mr. Al-Awlaki, are not revealed in that. We're not looking to reveal national security. We just want to make sure that the government's thinking and rationale, both legally and as it's applied contextually, holds up. There is no independent body right now making those judgment calls.
So the president today, in response to the tragic death of these two hostages, the American and the Italian, Warren Weinstein and Giovanni Lo Porto, says that he insists on releasing or declassifying all the documents that went into the targeting of this particular drone strike. That would help a great deal if we released that level of documents and information, even after the fact, so that we could actually check the homework, so we could actually make sure that they are doing this right.
Part of our skepticism is that when you assume such great power in that context, you want to make sure that someone is serving as a check and balance on it.
JAMES TRAUB: One of the things I think Obama said he would do but hasn't been able to do is to transfer the program from the CIA to the Defense Department.
ANTHONY ROMERO: There is a lot of internal turf [battles] in the government over these matters. Certainly we prefer it to be within the Department of Defense. The Department of Defense still falls within civilian oversight. There are members of the Armed Services Committee that could subpoena the government, that could get documents, even if we don't get them publicly. There is a great deal more oversight over the Department of Defense than the CIA. It is very hard to take away some of the CIA's powers and toys and put them back in a box where they would prefer not to be consigned.
JAMES TRAUB: There are also countries that want deniability, i.e., Pakistan. They don't want this to be transferred to the Defense Department because they can only live with it as long as they can lie to their people and say, "We have nothing to do with this program."
ANTHONY ROMERO: It's a pox on many governments' houses.
I think the question for us has to be: When the drone programs begin to exist among Russians and the Chinese and they begin to use unmanned drones to hunt Chechen insurgents or rebels in Crimea, will we consider that a human rights problem?
JAMES TRAUB: No, because it's bad when they do it.
ANTHONY ROMERO: It's bad when they do it. We only will be able to do it until they catch up, which is just a matter of time.
We talk often about places where we cannot apprehend individuals. Let's talk about Mexico. Let's talk about northern parts of Mexico, that are completely lawless territories. Neither the Mexican authorities nor the U.S. authorities can really penetrate where some of the drug cartels and the crime cartels are. Are we going to feel as comfortable using unmanned armed drones to hunt drug cartels and organized crime individuals on our southern border? I think we find it a little harder.
JAMES TRAUB: Well, I assume that the intelligence and defense officials would say, "That's not the same level of threat. It's a thing that we only do because we have no other way of getting at a very grave threat."
ANTHONY ROMERO: It's only a matter of time before the threats begin to get reinterpreted that way.
JAMES TRAUB: Perhaps.
Let me ask you one last thing and then I want to turn it over to all of you for questions.
Should we say in the case of Guantanamo, "Obama genuinely tried; turned out he couldn't, not for reasons of his own"; or should we say, "Actually if he had really wanted to close Guantanamo, he could have closed Guantanamo"?
ANTHONY ROMERO: I will sound like such a critic.
I think he began with the best of intentions. I believe that the executive orders he first issued, within days of assuming the presidency, were remarkable. They took a great deal of courage. We were thrilled.
ANTHONY ROMERO: Make no torture, adhere to the Geneva Conventions on cruel and unusual punishment; and close Guantanamo.
When we read the close-Guantanamo executive order, there was enough wiggle room in the language that we began to think, "We hope this is more than just a hope and a dream." Sure enough, we soon found that things bled and the turf battles within a new government played out.
It is also true that Obama allowed his hands to be tied by Congress.
JAMES TRAUB: Allowed his hands to be tied?
ANTHONY ROMERO: Oh, right behind his back, and he said, "The twine is over there."
JAMES TRAUB: Yeah, really.
ANTHONY ROMERO: If we go back and we think about who has the authority to decide whom we prosecute, where, and where we incarcerate them, those are exclusively executive branch powers. This president, which we briefed them in a private memo, and the White House—we laid out that had he had the gumption to fight a separation-of-powers argument with Congress, who he allowed to tie his hands, there is a very good chance he would have won.
JAMES TRAUB: He could have said, "It's not your decision, it's my decision, as to whether I repatriate these people and put them in civilian prisons."
ANTHONY ROMERO: When do we ever delegate the decision that sits exclusively with the Justice Department and the attorney general about who do we incarcerate, where, and where to prosecute them, and where to hold them as criminals? If Robert F. Kennedy had asked permission of the Chicago City Council and members of Congress out of Illinois to decide when and where to prosecute Jimmy Hoffa, he would never have prosecuted Jimmy Hoffa.
I mean that is exclusively an executive branch function. Fight for your prerogative. This president chose not to.
JAMES TRAUB: It's interesting, given that he has obviously fought for his prerogatives in a lot of cases.
ANTHONY ROMERO: A little too little, too late. In some cases, where there are votes to be counted, like immigration, he fought for his prerogative to provide the deferred action for undocumented immigrants. And it's great, I applaud it, but there is a big voting bloc of the Hispanic community behind it. There is no voting bloc behind deciding to run the same gauntlet on executive branch power about where and when to prosecute individuals held at Guantanamo. So we have a very different outcome.
QUESTION: My name is Jason Abrams.
I want to talk about the Snowden revelations for a moment. My instinct is that I don't care that the government is gathering this information; I care about what they do with it. In other words, I don't care that they know that I'm having dinner with my mother next Tuesday; I care about if they use it to prevent me from having dinner with my mother for some reason. Why is my instinct wrong?
ANTHONY ROMERO: I don't think your instinct is wrong. But I think we have to unpack it a little bit more.
First off, the idea that the government has all this data on each of us in a warehouse in Utah, where a high-school dropout employee of a government contractor [i.e. Edward Snowden] can walk away with all this data, should make us feel a little worried about anyone else walking away with this data. It may not just be about the date with your mother. It may be your bank statements; it may be your personal communications. The ability for someone else to have that data, which they shouldn't have to begin with, and possibly use it in ways that you would find challenging or problematic—it's like a loaded gun sitting on the table. You just can't pretend that it won't ever go off and hit an innocent person.
But let me give you another example. We all believe in the right of freedom of speech. We think that's a universal right. If we were to use the same analogy that you are using in the freedom-of-speech context, you say, "I don't need freedom of speech because I have nothing to say." We would think that to be illogical. Just because we have nothing to say, we don't have anything we want to say right now, doesn't mean the government can take away your free speech rights. Those are rights that no one can take away without a real showing of a "compelling government interest," as the lawyers say.
So even though we have nothing to hide, we ought not be asked to sacrifice our privacy rights. Even if we have nothing to say, we want to hold on to that free speech right, just like we want to hold on to that privacy right even if we have nothing to hide.
When you need those rights it is often too late to get them back. Part of what we are finding in some of the contexts—and it may come out over time—is that some of the prosecutions of the government in other contexts—in white-collar crime, in some of the insider trading—some of those initial leads are coming from this mass data collection and dragnet surveillance.
That's why we have jumped into some of these cases where they begin to figure out probable cause and then get warrants after the fact that they have been able to troll through people's private data to get the probable cause. That's part of the challenge and the problem.
QUESTION: Don Simmons.
When an American citizen not employed by our government receives information ranging up to secret, and even military, information from a government whistleblower, what obligations does the receiver of that data have about culling or withholding bits and pieces of it before dumping the rest?
ANTHONY ROMERO: I think it's interesting. I know a little bit about the case of Julian Assange. I think that that case is very different than the one of Edward Snowden, although I think they play similar roles in society.
Whistleblowers play an essential role. They are not always the most sympathetic of individuals and they're not often heroes in their time. But I think they play an essential role in making sure when government wrongdoing is kept secret—getting the information out there is helpful.
I think there is a vast difference between the way that Snowden approached it and Assange approached it. Assange received a bunch of government documents from Chelsea Manning and others and then decided through his organization to publish it directly on Wikileaks' website.
Ed Snowden made a different calculation. He decided to turn over all of his documents to journalists. He self-published nothing. He said, "Here's all the documents. I will let you as journalists and your editors and your publishers"—because remember there are publishers that also get involved in this—"and I will let you decide what to publish, to what degree, and what you think is in the national interest." He also said, "I would encourage you to engage the government in that back and forth before you decide what it is you publish, so give the government the chance to say, 'No. If you produce that document on The New York Times webpage, all holy hell is going to break loose.' You should hear that." I think that is a process with a lot more integrity.
JAMES TRAUB: In your mind is that not just a bald distinction but a legal distinction, in the sense that Assange may actually have done—
ANTHONY ROMERO: They are legally the same. They both received information or took information and then revealed it to the public. So there is very little legal distinction between Julian Assange and Ed Snowden, the way we read the Espionage Act.
How they chose to get that into the public domain I think is quite different. I think at the end of the day we might disagree with how The Guardian or The Washington Post or The New York Times published many of these articles. But at the same time I feel comfortable that there was a process in place, especially with venerable news agencies that had often struggled between what you reveal that might jeopardize national security and what you reveal that's in the public interest. I think that is an essential part of it.
I think for me the question also comes: Why were we led to a point where a whistleblower will knowingly break the law and publish data that they are given or that they are in control of?
I know only in the case of Edward Snowden. The straw that broke the camel's back for Ed, when he was a young employee—he had been an employee of the CIA, he had been an employee of the NSA; right before he left the country he was an employee of a government contractor still working on a government contract—what he tells me and tells other audiences, so it's not telling secrets, is that what broke the camel's back is when he heard James Clapper perjure himself under oath.
James Clapper, when he was under oath, when asked whether the NSA collected, wittingly or unwittingly, any documents on millions or hundreds of millions of Americans, replied under oath, "No, sir, we do not, not wittingly." You could see the expression on Senator Wyden's face, where he wanted to give him a chance to fix it. Senator Wyden wrote a letter to James Clapper saying, "Do you want to clarify?"
What does it mean when the head of the NSA can lie under oath in front of members of the Senate Judiciary Committee? They don't initiate perjury processes. The whole system looks like it's a kabuki theater.
If I am an increasingly politicized, increasingly angry NSA operative who feels like this system of checks and balances is a charade. The public is kept in the dark, and the senator knows they're in the dark, and the head of the NSA knows that the public is in the dark, and they're lying publicly under oath—and he actually took an oath of office to defend the country against enemies and foes foreign and domestic, took his oath seriously and took the documents and said, "Let me give them to the journalists who will show that this man perjured himself."
And so I think there are moments like that when the Rubicon gets crossed in very different ways. I'm not sure—I don't think I would have that courage. I don't think I'm that brave.
JAMES TRAUB: He has paid a high price.
ANTHONY ROMERO: But I think it's one I understand and it's one I personally value.
QUESTION: Aaron Glasserman.
I have two questions actually. What, if anything, is your organization doing in response to the Obama administration's Countering Violent Extremism initiative? There was that summit back in February. I'm unclear what is an "extremist." It sounds like it's criminalizing belief, at the very least. Also, from a religion/state relations perspective, it seems to me like when Obama and Kerry and others are speaking on what is and isn't a valid interpretation of Islam, that has serious First Amendment establishment implications.
Second, stepping back in big picture: five to ten years from now, or even sooner, how do you see an organization like ACLU adapting to meet the needs of an environment where now it's not just government, but also private prison corporation managers, private military corporations, Google, big tech companies, that are the violators of civil liberties?
ANTHONY ROMERO: It's a big job. We need a lot more work. We need folks like you to help us with it.
First, I think you raised exactly the right point. I testified in one House committee hearing—I forget the exact title—on questions of the clash between the First Amendment and violent extremism, on the web in particular. I actually put myself to watch a number of these extremist websites. I thought I shouldn't testify unless I watched the videos and myself listened to what people were saying. When it was in English I could understand it. When it was in Arabic or in Farsi there were translations.
I think the blurring of those lines was very troubling to me. There is a lot of rhetoric I detest, a lot of hateful, anti-American rhetoric that I just find galling as an American citizen. But there was very little in there that I felt was crossing a line from speech to conduct.
ANTHONY ROMERO: Exactly.
JAMES TRAUB: It's hateful speech, but that is what the ACLU is there for.
ANTHONY ROMERO: That's what we do.
So I think we have to be very careful. That's why this whole question around an "imminent threat to national security"—the imminence of the threat has to be really adjudicated. Someone giving a fiery anti-American speech at a local mosque should not find himself in the crosshairs of government law enforcement or surveillance.
We have had a number of lawsuits especially looking at the New York City Police Department targeting of Muslim communities, and mosques in particular, and Muslim groups, Sunni groups.
I think it is a place where the more data that comes out we'll need it.
On the second point about the private sector, it is incredibly important for us to be cognizant of the threats that come, not just from government excess, but also from the private sector. They are different.
Personally, I am more concerned when the government conducts dragnet surveillance on me, because only the government can imprison me and take away my assets. Google can know everything they want to know about me, but Google can't put me in jail and can't seize my bank accounts.
QUESTIONER: What if you're already in jail and it's a private one? [Laughter]
ANTHONY ROMERO: Then there is the need for us to look at the collusion between the private sector and the government. We have hired at the ACLU, for instance—we have lots of litigators, we have lots of lobbyists, we have lots of individuals who know communications. We realized that we needed to hire technologists who would help us understand how the codes are written, how the processes and policies of technology corporations actually get structured in such a way that they are either pro-privacy or anti-privacy. I think we need to develop the disciplines and the backgrounds in certain areas that will allow us to be more impactful.
The broader set of private prisons and the privatization of some government services we can talk further about. We are very much troubled with the privatization of our criminal justice system. It is an incredible problem. You have two major corporations, Corrections Corporation of America and the GEO Group, which are publicly traded corporations that make profits over incarcerating individuals.
We have had this incredible devil's bargain in some of these government contracts where a state legislature will turn over their prison system to a private prison corporation and they agree often to fill the beds to a certain quota. It's a perverse kind of incentive to lock people up.
So "We'll give you this contract, the State of Arizona, we'll give this corporation this contract, and the State of Arizona will guarantee that 80 percent of the beds will be filled so that you can make your profit." Then the police officers are under pressure to fill those beds.
It's crazy. It's unjust. It is immoral. It is impenetrable. But we are endeavoring to put our arms around this issue.
It is also notable that the directors of some of these private corporations should be put under scrutiny. You have some very notable individuals. If you Google the board lists of the Corrections Corporation of America, you will have some names there that will surprise you. They ought to be asked why are they being given and why do they serve on these paid corporate boards that make their profit over a new Jim Crow.
I think there is a lot of grist for the mill on this issue.
JAMES TRAUB: Anthony, that was fabulous. Thank you so much.