Transcript: ACLU’s Anthony Romero

Discussion with the Executive Director of the civil liberties group

Topics: Washington, D.C.,

To listen to this discussion, click PLAY on the recorder at the bottom of this post:

Glenn Greenwald: My guest today on Salon Radio is the executive director of the ACLU, Anthony Romero, and we are here to discuss a new report, issued by the ACLU, analyzing Obama’s civil liberties record after the first year in office. Anthony, it’s great to talk to you again; thanks so much for joining me.

Anthony Romero: It’s great to be with you, Glenn, thanks for having me.

GG: My pleasure. Now, last year, at the end of 2008, the ACLU issued a report entitled Actions for Restoring America, which was a set of detailed recommendations to the new president for concrete steps that he should take to restore civil liberties in America, and it was given to both McCain and Obama before the election.

AR: Right.

GG: This report is entitled America Unrestored, and it analyzes which of those recommendations have been followed by Obama, which ones have been ignored, which ones were violated. And I want to ask you about the conclusions in that, in this new report in just a minute, but since it’s based on this 2008 report, that made these series of recommendations, can you talk about what that report was intended to be.

Was this the ACLU’s wish list of everything that it would like in order to bring about a civil liberties Nirvana in the United States, or was it really just the minimum steps that were needed to reverse the abuses of the Bush Era? How do you describes that report, and those recommendations?

AR: That report, we were obviously ambitious in what we wanted to accomplish, but we were also very practical. We wanted to take a close look at what could the president do, on his own, on day, within the first hundred days, and in the first year. And even if you look at all of the recommendations, which are rather extensive in that report, we didn’t even take into account the possibility of new legislation or working with Congress; we were looking specifically at questions that were within the purview of the Executive Branch to restore some of the major challenges we confronted in America.

GG: Right.



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AR: We spent really spent a great deal of time looking at which ones could he accomplish on day one. And we prioritized them: we thought, what could you get done, how could you get them done?  We talked about closure of Guantanamo, the banning of rendition, and the abandonment of the use of torture. And we — remember that the president on the first day took an important series of first steps which three executive orders, they were a civil liberties trifecta for us in the first day, but a year later frankly we haven’t gone as far as we wanted to.

He said he would ban the use of torture, which was great, that was a necessary first step. He did not agree to stop the program of extraordinary rendition, which were actually implemented under the Clinton years, with render people to third party countries where they are often tortured as part of their interrogation. The Obama administration said they wished to still rely on diplomatic assurance that will help assuage any concerns about torture; we know those don’t work. We have countries like Egypt and others that will provide diplomatic assurance, but we know individuals get tortured there.

And the closure of Guantanamo is a promise that he made in the first year and it is a promise that he has not kept. Lamentably, it’s a pox on both houses, both the Executive Branch and Congress. Congress, because of the fear-mongering that you saw among both Democrats and Republicans, to say, not in my back yard you don’t put these detainees here. And it’s also been a pox on the Executive Branch because frankly part of what is become such an impasse to the Obama administration, especially trying to get foreign countries to accept detainees at Guantanamo, is that we ourselves won’t accept individuals released in America. So it’s very hard to ask our allies to do what we ourselves won’t do.

GG: Let me zero in on that if I could, on the closing of Guantanamo. As you say, there was an executive order issued to much fanfare, ordering that it be closed in a year; it’s obviously not done.  Two questions about that: one is, how much blame do you assign to Obama vs. the Congress, as it was the Congress that banned the transfer into the United States, which as you said caused so many problems in trying to persuade other countries to accept it, they refused to fund the closing of Guantanamo until they knew the plan.  How much of the impediment is attributable to Congress rather than Obama as far as that not being done?

And then the second aspect of that is, when we talk about closing Guantanamo, I know a lot of defenders of Obama often say, well, he’s going to close it – will there be any real significance to closing Guantanamo if the same system of indefinite detention and military commissions is retained and simply transferred to Illinois or somewhere else?

AR: Well, that’s exactly the right question. First off, clearly Congress got in the president’s way, and not in my backyard, the NIMBY sentiment, the fact that they got off the farm from where the administration, his first promise, a very symbolic promise with enormous due process implications. But frankly when the party in power under the president doesn’t happen readily or easily, or should of, the fact is people got off the farm they were allowed to get off the farm. There were many who speculated within the administration and outside, including some of us, said, why did the president feel like he had to go to Congress for these powers?  There were resources in the Department of Justice budget, you don’t pick a fight if you don’t know you can win. You play mother may I, then mother might say no, and then you can’t go out and play, and then Congress gets its back up and the president gets himself backed into a wall.

And frankly, whether it was a poor game that they played, and not understanding the dynamics in Congress, or whether it was poor communications with members of Congress, which I heard from some members of Congress, that that was the case, it’s that the responsibility lies with both sides of Pennsylvania Avenue.

And yes, you’re absolutely right, that what they’re now proposing in terms of buying the prison in Thompson, Illinois, and then basically moving the some legal regime they have at Guantanamo onshore, doesn’t fix all the issues with Guantanamo. Guantanamo is not just a physical location or a symbolic gesture. It’s also about a set of rules and policies that have been attached at Guantanamo. The holding of individuals without charges or trial, the lack of access to counsel, the conditions of their confinement, the conditions of their transfer, have not been worked out in the Thompson proposal. And in the end, if we move individuals who are being held indefinitely without charges or trial from Guantanamo to Thompson, Illinois, and we still hold them indefinitely without charges or trial, we’ve not fixed the Guantanamo problem, we’ve just shifted it to Guantanamo North. And that’s part of the reason we’ve been so concerned about the Thompson proposal.

GG: One of the most disappointing, and I would even go so far as to say infuriating aspects of the first year is the complete lack of accountability for the crimes that were committed during the Bush years…

AR: You bet.

GG: …by which I mean not only that there don’t seem to be any prosecutions in works other than at most a few low-level scapegoats of the kind that got blamed for Abu Ghraib, but even worse, affirmatively using every means in the presidential arsenal, from state secrets to threats to foreign countries, to ensure that there’s no accountability or even disclosure of many of these crimes, and particularly no review by any court of what was done over the last eight years, and therefore no declaration, judicially, as to whether it was legal.

Obviously there’s an aspect of that as to why it’s disappointing, that it’s just a matter of justice, that it’s outrageous to let these kinds of crimes be committed with victims that have been produced, and not have any justice. But beyond that, talk about the risks of having the Obama administration shield these actions and these policies from judicial review or accountability.

AR: Well, I think you’re exactly right. And here, you can look at the cup half full or half empty. If you look at it half empty, it’s been very troubling to hear the president say, we don’t want to look backwards, we only want to look forward. And you never now which way you want to go unless you look back and you realize that there are mistakes that have been made, and you prosecute people who willfully broke the law, and you hold them accountable for that. The president and the White House and Rahm Emanuel have zero appetite for ensuring, not just that crimes are not broken on their watch, but that crimes that were broken in their predecessor’s watch are fully and firmly prosecuted. And that’s highly troubling coming from the president.

Where I’m seeing the cup half, rather, is with the Justice Department. I was, like you, I though Attorney General Eric Holder would just carry the water for the president, and I’ve been encouraged by some of the signs:  still a little too anemic, still not far fast enough, but the fact is that he has demanded that Frank Durham expand the investigations to see about whether or not laws were broken.  That investigation, although a preliminary investigation, hasn’t come back. I’m hopeful that once charged with that, that we’ll more clarity about the possibility of prosecutions, and really holding individuals accountable to crimes that happened on their watch.

There’s also the report that coming out of the Office of Professional Ethics, of Professional Responsibility in the Department of Justice; they’re going to look at whether Justice Department lawyers that authored these torture memos that the ACLU obtained, whether or not they violated their code of ethics as attorneys. And if they come back with that report, which is long overdue, everyone is wondering where it is, and why it’s not been released yet, if it comes back with any of the things that it’s likely to, that it will again pick up momentum on the accountability train.

So I’m still hopeful that Attorney General Eric Holder, who is the country’s highest-ranking law enforcement official, who doesn’t have to deal with the political football game that Obama and Rahm Emanuel have to play, will understand that his legacy as a law enforcement official will be forever tarnished unless he does everything in his power to prosecute crimes that he knows have occurred. Until I see for a fact that he’s not willing to go down that road, I guess I’m willing to still have faith and hope that that might come, that that might on the horizon.

Where I’m troubled, from Holder’s Justice Department and with the Obama administration, is precisely what you say, it’s still the invocation of what were some of the very same arguments that the Bush administration used to shield any investigation around torture or abuse. And here, the one that you mentioned, which is exactly the right one, is the state secrets doctrine. The idea that we, just last month, were in the Ninth Circuit arguing before the full Ninth Circuit, the fact that they should not use the state secrets privilege, which should be a very narrow evidentiary privilege, but has been grown, has been supersized into dealing with a form of blanket immunity on any case that’s brought, that should not be heard if it has implications for national security, is highly, highly troubling. The idea that the Obama administration Justice Department lawyers are mouthing the same legal arguments that the Bush department lawyers in the state secrets area is highly problematic.

Add to that the one question, Glenn, around the huge hole that they carved out in the Freedom of Information Act, these photographs that we had been able to secure in the Second Circuit, that they should be turned over because they are an essential part of the historical record around torture and abuse that happened, and initially the Justice Department concurred with the Second Circuit, Obama reversed them, there was an appeal to the Supreme Court that was vacated down to the Second Circuit because Congress enacted this gaping hole in FOIA, saying that the Defense Department, the Secretary of Defense, Secretary of Defense Gates, only himself could determine whether or not these photographs would jeopardize national security; if he did so, he didn’t have to release them. That is a huge exception under FOIA. And again, it’s an effort to obfuscate what we know were the facts that occurred under the Bush years, and ultimately will come back to their detriment.

GG: I interviewed Congresswoman Louise Slaughter, who recalls the fight that was undertaken by the Democrats in the 1960s to get the Freedom of Information Act passed; it was a major, huge battle that they had to wage, she said that FOIA is every bit as important to the Democratic Party’s history as Social Security and Medicare, and to see it essentially tossed aside, all in order to suppress evidence of war crimes, was really quite disturbing.

Let me just ask you, you alluded to the first day executive order, which I remember being extremely enthusiastic about when it was issued, along with the closing of the CIA black sites and some transparency expansions as well on that first day, and yet it is true that the Obama administration has prohibited the use of interrogation techniques outside the Army Field Manual.

But if there is no adjudication, judicially, of the legality of the torture regime that was implemented, of the theories that enabled them, that were promulgated by John Yoo and others – if the Obama administration continues to shield those matters from judicial review and blocks any adjudication, what’s to prevent this administration or more likely some future administration from simply reimplementing those programs based on the same theories?

AR: You’re absolutely right. Part of the reason why you have to prosecute the crimes that happened under the Bush years is to ensure that future government officials who are in positions of power don’t think they can get away with it. And frankly, Bush was the architect of a regime of torture, and the Obama policies if they continue, he will be the architect of regime of impunity. And frankly it is insufficient to say that one’s predecessors, no matter how motivated, now matter how they endeavored to do their jobs to the best of their abilities, if they broke the law, they need to be held accountable.

And that’s why, what is most troubling about this, is that ultimately, all these issues are going to come out. All these facts are going to come out. And unless we’ve taken the actions that current politics requires of us to restore ourselves to a place of legal commitments, of constitutional and international commitments, this will be a period of impunity, where people walk away scot-free even though they knew they broke the law. That’s what’s so much at stake under Obama.

GG: A couple of quick, last questions here. One of the most different issues, in my view, in terms of knowing what to think about it, was the decision that the Obama administration has made, at least preliminarily, not to go to Congress to seek a law that would govern the power of the president to detain accused terror suspects indefinitely. The president announced that he intended to do that in his National Archives speech back in June, but then the administration leaked out that instead their intention was simply to use the Bush theory that they already have the authority to do this implicitly under the AUMF, and that they intend to simply continue to detain people indefinitely without any congressional authorization or guidance.

One the one hand, it seems like it would be better for there to be a congressional statute governing this power, if we’re going to do it, rather than just letting the president decide how it gets done. On the other hand, given what we’ve talked about in Congress, it’s likely that Congress would pass a hideous new law that would institutionalize the power of indefinite detention, probably in an even broader and worse way than is taking place now.

Did you consider that decision by the Obama administration, not to seek a new law, but instead use the Bush theory of implicit authorization to be a victory or did you consider that to be something that was wrong of the administration to do?

AR: The funny thing about this work is it all depends on how define victory. When we keep someone off of death row because they’ve been adjudicated as mentally ill, you get to define victory, life incarceration ends up being victory. Sometimes we have a little bit of a warped sense of humor when it comes to defining victory in civil liberties issues.

Here’s what I would think. First off, I think that any effort to codify a preventative detention regime, with any president or any Congress, to hold any individual without charges or trial, under a law enacted by a Democratically majority Congress signed by a Democratic president would have been a disaster, a debacle. It would have completely gutted the Fourth and Fifth Amendments. The whole idea that you’re innocent until proven guilty, or that you have the right to rebut the evidence used against you in a court of law, or you have the right to confront your accuser, was literally on the chopping block. 

When we heard the speech, we really had shivers down our spine, because we, like you, thought, God, if we have enacted under Obama’s watch, with a Democratic House and Senate, this is going to be the exception that’s going to swallow up the rule. We’re going to find preventative detention on gangs, we’re going to find preventative detention on organized crime, you’re going to find preventative detention for the drug cartels, this is not just the raising of a civil libertarian lunatic, we’ve seen how the PATRIOT ACT has morphed into much more than just fighting terrorism. So we were really gearing up for the battle of our lives, if they were going to enact a preventative detention regime that would give the government the ability for the first time to hold people on American soil without charges or trial.

And we were gratified that they backed off from that abyss, because we thought that the powers would not just be retrospective, they would be prospective, they would creep into other areas that don’t deal just with terrorism. Preliminarily we liked the idea that the president was using these same powers under the same statutory framework that the Bush administration did, we are very much looking at a series of clients and cases, that will challenge the president and challenge the administration on whether or not he had the powers to hold people indefinitely, whether it’s in Thompson or in Guantanamo, without charges or trial. I think, to the extent to which we could stop bad law from being put in place, and then argue on a smaller subset of cases as they come up, I think that is a better position to be in. It’s still not a great position longterm, because the president has not forsaken those powers.

And ultimately I think it will be adjudicated by the highest courts in our land because it has such a significant impact on how the workings of our democracy will work going forward. But I think it was certainly the lesser of two evils, and they backed away from the abyss because they understood how much there was going to be a pushback from both the right and left, and what a serious mark it would be on their legacy.

GG: Now, last question, and this is outside of the scope of the report, and I don’t know if you’ve had a chance to see it yet, I know you’ve been busy all day, but the Supreme Court, in a 5-4 ruling today, issued a very significant decisions essentially invalidating prohibitions on various regulations that restrict the ability of corporations and unions to spend money to influence elections. This, too, is a difficult issue for a lot of people since, on the one hand, the influence of corporations in our political system is quite nefarious, and this will increase it.  On the other hand, restrictions of this type clearly implicate serious core First Amendment freedoms to speak out without the government limiting how you can do that, and the means you can use.

I don’t know if you’ve even had a chance to look at the opinion, if you have any thoughts on it, but what is the ACLU’s general rationale and position on issues like this?

AR: This is one that has the organization often very conflicted with itself.  There are individuals on the ACLU staff and board who feel very strongly that the Supreme Court wrongly decided today to allow the corporate expenditures on elections. It’s been a long-held position of the ACLU that in fact we are very concerned about such strictures and the impact on the First Amendment, and often they bleed into the types of corporations that you want to have involved in elections, like the ACLU for instance.

We’re a not-for-profit corporation, but we are incorporated under the laws of New York and Washington. And some of the initial restrictions put place on us through the campaign finance laws, the BCRA, they were incredibly onerous, and they limited our ability for weighing in on issues during the general or primary elections, and even though we never take a position on any candidate for office, but what we were often concerned about in this context is that the efforts to regulate speech in campaign finance end up being overbroad and ineffective.

And at the end of the day, Glenn, here you find there’s been so many ways to get around efforts to regulate money in politics, the 527s provided a loophole, now this new opinion will provide greater latitude for corporations. And we have to grapple with the idea that our political system is fundamentally broken, and we need to find a way to fund campaigns in such a way that equalizes the playing field. Where I always come out is to deal with questions around public financing of elections, and rather than taking the first tact of trying to limit money, which always finds a way to pour itself into politics, let’s find a way to put a base under what are viable candidates and give them a run that is publicly supported by the taxpayers.

And unfortunately that has not been a area of much focus in Congress, it’s been the focus in some states, and I hadn’t had a chance to really study the opinion and understand its full implications, 5-4 with a number of different concurring and dissenting opinions with different line-ups on different issues, but it is a very, very complex one. For us, we have to be ever vigilant that even the best intentions or efforts to regulate money in politics can sometimes have a difficult position on speech, can have an adverse impact on speech of groups you want to have speak out in elections, whether its labor unions, or non-profit corporations; that’s part of what we’re trying to parse through as we go forward.

GG: I think one of the lessons of the Bush era was that you don’t want to endorse law-breaking, and certainly not violations of the Constitution, simply because doing so may produce some good results in specific cases, and it’s often the case that upholding people’s First Amendment rights produces bad speech and bad effects, and it’s just the price you pay for having a First Amendment.  But it is a difficult issue, and I’m glad you were able to provide some insight into the ACLU’s position.

AR: Any efforts to regulate free speech is a bit like poison gas – you shoot it in one directions because you think you’re shooting it at the right target, and then the winds can change direction and blow it back into your face, and that’s why we defended the rights of the Nazis and the Klan to march, we defend the rights of abortion protesters to march, and the right of choice protesters to march, and so we end up taking a more absolutist position on these issues because we think, once you go down that path, it’s ends up becoming very difficult to weigh what are the good sides versus the bad sides of these issues.

GG: Absolutely. Again, the ACLU report is online at the aclu.org, and I will provide a link to it, it’s really probably the most thorough examination yet of the Obama civil liberties record for the first year, and I really appreciate your taking the time to talk to me about it today.

AR: And throughout the report, actually, we point to areas where there has been enormous progress, especially in the area of civil rights and racial justice. There’s been a lot of good progress made there, so the report is much more balanced that just focusing on the unfinished agenda. There are pieces of it, in terms of dealing with crack powder cocaine issue, in terms of dealing with medical marijuana, that the administration’s is to be lauded, and I recommended it to your listeners to kind of get the full picture of what’s been done and what hasn’t.

GG: Absolutely. I tend to focus on national security and terrorism issues, but as you say there are a whole host of civil liberties issues where the administration has made good progress; I’ve written about some of those before, and I will be certain to point to those in the report as well. I think the ACLU gives it, the administration, sort of a mixed assessment on civil liberties issues – we’ve heard some of the shortcomings but there have definitely been some areas of progress as well.  So it’s worth pointing that out.

[Transcript courtesy of Thames Valley Transcribe]

Glenn Greenwald

Follow Glenn Greenwald on Twitter: @ggreenwald.

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