Podcast can be heard here.

Glenn Greenwald: My guest today is Morton Halperin, Senior Fellow at the Center for American Progress, who has held various positions in numerous administrations over the years, and for several years was the director of the Washington office of the ACLU. Thanks for joining me this afternoon.

Morton Halperin: My pleasure.

GG: I want to begin by asking you about an Op-Ed that you wrote for The New York Times on July 9th that was somewhat controversial. It was about the FISA bill that the Senate recently passed, and the Op-Ed appeared on the day that the Senate was going to vote. And you wrote in that Op-Ed that the bill - quote - "has your personal support," and "that it represents our best chance to protect both our national security and our civil liberties."

Now, numerous groups including the ACLU with which you were previously affiliated, have expressed rather vehement opposition to that bill. The ACLU has sued, and has said that the bill and the surveillance provisions in it constitute an evisceration of core Fourth Amendment protections. Do you agree with the ACLU and other civil liberties groups, that the bill undermines Fourth Amendment protections?

MH: It's not the bill I would have written; it's not an ideal bill from a civil liberties perspective, but I do not understand the basis from which they reach that conclusion.

GG: Right. Well, one of the interesting aspects of the bill, and I've been on numerous shows talking about it, and I always talk about the fact that civil libertarians across the board find the bill highly objectionable and typically their response is, well, Mort Halperin actually supports the bill.

Do you know of any civil liberties groups or other civil libertarians beside yourself who ended up supporting the bill?

MH: There are a number of people who work in the Congress who I consider to be civil libertarians who support the bill. I have not done a survey, to try to come down with what other people think about the bill. I have read the analysis that other people have presented; as I say, there are ways in which I would strengthen the bill from a civil liberties protection perspective if that was possible. But I think the basic analysis is simply wrong.

GG: One of the reasons why I think ended up surprising a lot of people - your ultimate support for the bill, aside from your background - is that there was a letter that was sent on June 9, 2008 -- just a month before you ended up writing that op-ed in the New York Times -- that was signed by a whole variety of organizations - the ACLU, the Electronic Frontier Foundation, the Open Society Policy Center, with which you were at the time affiliated - that essentially said that the current version of the bill that was being circulated -

MH: Yes, (cross talking)

GG: Let me just ask you - which was the Bond compromise at the time - was a bill that was very, very abusive of core civil liberties protections, and I believe you signed on to that letter. Did you support the Bond compromise, back, that was --

MH: No, I did not. I think the bill was evolving over time, and the question was, what was the best bill you could get, that would give as much protection as possible to civil liberties, and, what the alternative was. Everybody understood what the alternative was, and the majority leader of the House explained it very carefully on the House floor. A majority of the members of the House were ready to vote for the original Senate bill, which was far worse than the Bond compromise. They were ready to vote for that, they would have signed a discharge petition to bring that bill to the House floor if they were told the negotiations had failed.

So the alternative was not a perfect bill; the alternative was the Senate-passed bill which was far worse, and the question was what to do in that situation, and also to understand the basic principles behind the bill and objections to them. The Bond compromised those core -- first of all, you never had the text of that. And second of all, it was in many ways deficient as compared to the bill that ultimately was passed.

GG: Well, the reason I'm asking is because I've read the Bond compromise -- that you said you opposed on June 9th-- and compared it to the final bill that passed on July 9th that you said you supported, and I don't see any differences, substantial or otherwise, in the surveillance provisions between those two bills, which is why I'm sort of confounded, as I think a lot of people are, as to why you opposed the Bond proposal, but supported the ultimate bill. What changed in the interim?

MH: A number of things - first of all there's the provisions requiring the inspector general's audit. First of all, I don't know where you say you saw a copy; we never were given an actual copy of the Bond bill. There were reports of what it said, and I think he did a press release, but I was not aware that there was an actual text. And I hadn't gone back and looked at that and compared them in detail, but there was not the audit provision, there was still the provision that said --

GG: Let me just stop you for a minute, because actually there was an audit provision, and in fact the letter that you signed on June 9th said that -- quote:

The Bond proposal does incorporate a few improvements, including an audit of illegal warrantless surveillance, and a provision reaffirming that FISA is the exclusive means by which foreign intelligence surveillance can be lawfully conducted. But these modest concessions do not offset the vast new unchecked surveillance powers that this bill confers on the government.

MH: I'm not, that letter was signed on to by an organization that I was then working for. I am not prepared to defend the text of that letter - I did not understand that that was the purpose of this interview. The letter speaks for itself, and my op-ed speaks for itself. And I am not prepared to get into the specifics...

GG: One of the things - and I won't ask you about the specifics of the letter on the Bond proposal, but one of the things that did change - the only thing that I can see that changed, between June 9th -- when all civil liberties groups in this coalition opposed the bill in its iteration at the time, and all those organizations and signatories to the letter continued to the end to oppose the bill, except for you. But what changed was that, between June 9th and July 9th, was that Barack Obama on June 20th came out and said he was going to support the ultimate FISA compromise.

Did you have any conversations in the interim with the Obama campaign about whether or not that was a good idea, or whether you would end up helping them by defending the bill and lending your name to the ultimate compromise?

MH: I had conversations with Obama's Senate staff about the bill before he made his decision, and gave them my view on what the situation was.

GG: Obama's staff, were you advising them that the bill was a good bill to the Senate's --

MH: I mean, a good bill is I think the wrong word. I advised them that in my view this was the best bill that could be gotten from a civil liberties perspective, and the consequence of defeating the bill would be far worse than passing it. And that, on balance, I thought from both a civil liberties and national security perspectives it was worth supporting.

GG: Now, two days after Obama came out with his statement supporting the bill, you had sent around a Memo that was addressed to “interested parties,” and as I understand it, it was sent to various senators, in which you were rather vigorously defended the bill in its current form, based on the --

MH: No, I sent that memo before Obama took his position. His staff sent it out after he took his position.

GG: I see. So, that was really my question, had they spoken to you about whether you would be willing, once they came out and supported the bill, to publicly defend the bill by writing a memo like this, by writing an op-ed in the Times...

MH: No, they already had the memo.

GG: But the memo was dated June 22nd, and his statement supporting the bill was June 20th, and, so, you say you gave that memo to them before the statement he...?

MH: Again, I haven't checked the dates, but they had an earlier version of the memo before he took his position.

GG: My question is, were you essentially indicating to them, that if he came out and supported the bill, you would essentially lend support for him?

MH: I was indicating to them what my view was as to whether or not the bill was one that people should vote for. And I provided that advice to anybody who was interested in my personal view on the subject.

GG: Just a couple last questions. One of the so-called benefits of the ultimate compromise bill that you referenced earlier was the fact that there would be an inspector general's report that would investigate the spying program here. Now that there's been a bill passed by the Senate that immunizes the private companies that participated, and now that there's no movement under way to eliminate any of the barriers against suing the government - like standing problems, or state secrets problems - even if the IG report ends up revealing that there is abuse here, what conceivable consequences could there be now that there's been immunity given to the telecom industry?

MH: As you point out, even before this attempt to grant immunity - and it's not clear to me that it's constitutional, and I think it should and will be challenged in the courts as to the constitutionality of that grant of immunity - but, as you point out, there were many other barriers to a successful lawsuit including the state secret privilege.

And so I think there will always be real doubts as to whether there was any realistic possibility that the lawsuits would give us the basic facts. And indeed many of the proponents of the lawsuits justified the lawsuits as the only way to get at the facts. So to now turn it around to say what's the good of getting the facts because we can't have the lawsuits, is I think reversing the argument that was always made that the main purpose of the lawsuits was in fact to get access to the information, (unintelligible) caps and damages and so on.

But I think there are other things that can be done, and there may well have been criminal violations, and nothing in the statute makes...

GG: But the President could just pardon anyone involved in the program on his way out the door and that would foreclose any criminal prosecution.

MH: He could have done that even if there wasn't immunity.

GG: Right, but that wouldn't have foreclosed at least the lawsuits, resulting in discovery of what happened here, of an adjudication of whether it was illegal.

MH: It depends on the state secrets privilege, which as you point out is a major barrier to discovery. Nothing that the Congress did affects the discovery process because it did not change the potential liability of government officials, it only did it for the companies. And by the way, I thought there was no justification for the very strong memo opposing the immunity.

GG: But you still endorsed the final bill that contains it.

MH: But the immunity provision only dealt with one of the many barriers to a successful lawsuit. And I think there was always a grave question as to whether the lawsuits would produce anything. One of the main things they're supposed to produce are the facts, and I think we're now much more likely to get the facts from this inspector general's report than we will in the chance we had of getting those fact from the lawsuits.

GG: Now, last question here, and that is, I had heard before we began our conversation that either you were about to depart from, or already departed from, the Open Society Policy Institute where you had been employed for quite some time as the president. Did the Open Society Institute end up opposing final passage of the bill, and did that have anything to do with your ultimate separation or departure from that organization?

MH: No, I have not departed from them. I have by mutual agreement become a consultant, to leave myself free to speak out more freely on the substance of these issues - which is what I thought you wanted to talk about, which is the only reason I agreed to this conversation.

GG: What do you mean by that? You thought I wanted to talk about what?

MH: The substance of the issues. Not these kinds of questions about process. But - I think I'll leave it at that.

GG: Okay, well, I thank you very much for taking the time, I appreciate it.

MH: Okay.

[Transcript courtesy of Thames Valley Transcribe]