Salon Radio: Anthony Romero

What are the priorities for the restoration of civil liberties under an Obama administration, and how can they most effectively be achieved?

By Glenn Greenwald

Published November 10, 2008 5:17PM (EST)

(updated below w/transcript)

My guest on Salon Radio today is Anthony Romero, the Executive Director of the ACLU, which recently released a detailed plan for the restoration of core liberties in America under an Obama administration.  We discuss the most important priorities for civil libertarians in reversing the anti-constitutional abuses of the past, as well as strategies for holding Obama to his campaign pledges for doing so.

Along those lines, the ACLU has a full-page ad in this morning's New York Times (.pdf) urging Obama to close Guantanamo on Day One.  And the website of ACLU and Brave New Films for urging the closing of Guantanamo is here.  I discuss with Romero the following issues:

  • whether, in light of how executive power has so wildly expanded, it is counter-productive to urge Obama to use unilaterally issued Executive Orders, rather than Congressional acts, as the instrument to achieve these changes (a topic I'll return to in the next couple of days as signs emerge that Executive Orders will be used by the Obama administration to effectuate numerous policy changes that seem to be within the province of Congress);
  • various objections to closing Guantanamo and the legal and logistical difficulties in doing so;
  • the ACLU's view of media consolidation, free debate and the Fairness Doctrine;
  • the investigation and prosecution of crimes committed by Bush officials, including policy and legal issues relating to potentially forthcoming pardons; and,
  • public campaigns, including those sponsored by the ACLU, to elevate civil liberties issues on the Obama agenda and maintain pressure on him to act in these areas.

The discussion was roughly 30 minutes and can be heard by clicking PLAY on the recorder below. A transcript will be posted shortly.

UPDATE:  The transcript is here.

To listen to this interview, click PLAY on the recorder below:


Glenn Greenwald: My guest today is Anthony Romero, the executive director of the American Civil Liberties Union. Anthony, great to talk to you, and thanks for joining me.

Anthony Romero: It's great to be with you, Glenn, great to hear from you again.

GG: You too. What we're here to discuss is a document that the ACLU released a week before the election, entitled Actions for Restoring America: How to Begin Repairing the Damage to Freedom in America after Bush. And, the document is in essence a fairly lengthy and detailed wish list, I think you could call it, on the part of civil libertarians of what you would like to see the new Obama administration do in the first, on day one, the first hundred days, and then over the course of a longer period of time, in order to restore civil liberties. I just want to read the summary, part of the summary, from the press release that was issued and then ask you about some of the specific points within the report.

"On day one, the next president should, by executive order, direct all agencies to prohibit the use of torture and abuse; direct a new Attorney General to appoint an outside special counsel to investigate and, if warranted, prosecute any violations of federal criminal laws; close down Guantanamo, and either charge and try detainees in criminal or traditional military courts, or transfer them to countries where they won't be tortured; and end the practice of extraordinary rendition.

"In the first one hundred days, the president should take actions -- as detailed in the ACLU document -- to end illegal spying and surveillance, to protect Americans from privacy violations and discrimination, to end the federal death penalty and to increase government transparency."

Now, I just want to ask you a general question about this document which is this. Much of the criticism from civil libertarians and Bush critics has been that over the last eight years there has been a massive expansion in executive power, at the expense of the congressional branch, in particular unchecked executive power. Many of these recommendations focus on things the president unilaterally should do, such as issue an executive order compelling the adherence to the Army Field Manual through all agencies of government. If these problems are corrected in the short term by unilateral actions on the part of the president, as opposed to congressional action, isn't that just going to continue or exacerbate the problem that it's the executive making all the decisions without the involvement of Congress?

AR: It's a really good question, and we had a long internal debate about how to strike that tone within the document -- and there's even a longer wish list in a longer document that does very much take into account the role of Congress as an essential check and balance on the power of the executive. That's a document we're going to put out after next week, because we just figured if we put out too many things at one time, people won't really be able to focus on it. The congressional work is definitely going to take much longer given the horse trading that's always involved with congressional legislation.

But let's start with the basics. We are, we share the enormous optimism and hope and relief that there's change, finally. I would have been relieved with almost any candidate replacing George Bush, and I'm certainly much more relieved that we have someone like president-elect Obama, who has spoken out clearly and forcefully on a lot of issues that we care about during the campaign trail. And now the whole thing is to take that momentum when people have suspended that cynicism that it's going to be politics as usual or Beltway pundit as usual, and really make a firm step that can be accomplished right away.

And, clearly the president has a whole, an even longer list than the civil libertarian list of things in front of him. Things I care about as a person: the environment, health care, these two wars in Iraq and Afghanistan, the economy which is tumbling Americans and bringing greater poverty to the world. All of those are long-term, systemic entrenched issues that he's not going to be able to fix in the first day, or hundred days, or even the first year, possibly, even, because they've acquired such long-term systemic approaches. And what we sat down to do was to think about, okay, the executive order genie is out of the bottle, whether we like it or not, unless we cap it, or find a way to do away with executive orders.

Clinton passed an executive order making sure that global programs that dealt with reproductive health were comprehensive and could ensure education on abortion and reproductive health services. First day in office, George Bush passed an executive order repealing the Clinton executive order and imposes a global gag rule. So we got it; while the tool is there, I think we ought not to mistake the power of the president being able to exert that power.

President Bush opened up Guantanamo with a stroke of his pen. Do we really want to have to get into a morass of partisan politics and horse trading to close Guantanamo when one president with impunity and with bad motivations opened a prison camp with no legal rights, and now we're going to be squabbling over the procedural details to do the right thing?

And certainly, I'm not saying that Congress should just turn the other way and let this president usurp even greater powers. I think one of the things I was saying yesterday when someone from the classy newspapers was that the change focusing on Washington is not just the president is well-motivated; but a Congress that has resurrected itself, can stand up straight, stop mumbling, that stops sniveling. We run the same risk now, which is that Democratic House and Senate with a Democratic White House that we had with the Republican House and Senate and Republican president. And this, in Congress, remember you may be of the same party as the president, but you're a different branch, and your role is to be that check and balance. We are certainly not espousing an aggrandizement of executive branch power, but we are looking at day one, issues that can be done readily with existing executive power that everyone agrees ought to get done, including the president-elect himself.

GG: I think one way to look at that is that there are some serious abuses of civil liberties, which in the short term can be rectified through unilateral presidential action, likely nothing more than holding the new president to his commitments and promises, and then work, in a longer term way, on having Congress reassert its proper role in our system of government. A danger, which as you suggested I think is even more pronounced, is that that won't happen given that we're back to one party control over all branches of government.

Now, let me ask you specifically about closing Guantanamo, because that I do think is probably most conducive to being done through unilateral presidential action, since it was done in the first place...

AR: Shut it down, and shut down the military commissions, because it won't be good enough if you shut down Guantanamo, and then transfer the detainees and charge them under these trials, and use the same screwed-up rules of the military commission at Fort Bragg or Fort Myers or anywhere else. You've got to shut down the existing military commissions as well.

GG: Let me ask you about a couple criticisms that are going to be raised quite loudly in the event that he doesn't come to do that. One of which I think is easily dispensed with that I'm interested in your response, which is, that we simply transfer several hundred highly complex cases to the federal judiciary, that it's going to overwhelm administratively the courts which are already overburdened and crowd out the ability of other defendants and certainly civil litigants to be heard in the federal court. What's your response to that?

AR: Well, I think we have very smart administrators in the federal system who can find a way to deal with them and divide them up among the different circuits, making sure that those who have comparable facts and arguments can be dispensed with as a group. And look, the legal system shouldn't be quick or easy. We're talking about people's most fundamental liberties, and the fact is court and judges and trials take time. And that's because the stakes are so high. I don't want a quick dirty system that dispenses with people's rights in a too expedient and a too quick a manner.

The fact is, the government is going to have to bear the burden of proof. Can you try these individuals in a criminal court, or a military commission under the Uniform Code of Military Justice, and come forward with the proof that will stand up in courts of law that are governed by the Constitution, and if it can't, you've got to release them. That's our system. The burden of proof is on the government if you're going to take away someone's most fundamental right of freedom and liberty, to show the proof and to demonstrate it to a neutral and an objective judge, and possibly a jury, if it's a criminal case, a jury of one's peers, beyond a reasonable doubt. That is the law.

What the Military Commissions Act did was to rewrite the rules of that law. And so, I think frankly the burden is on the government, and it's had eight years to collect the information on these guys, and if they don't have it now, they probably ain't going to have it in the next two or three years. So you've got to bite the bullet and if you don't have the evidence to prosecute them in good American courts of law governed by the Constitution, then the solution is to let them go.

GG: Another argument that is made in opposition to transferring the prisoners to civilian court and subjecting them to the standard rules is that the rules have to be different for people engaged in acts of war, that if you detain someone on the battlefield, collecting the sort of forensic evidence as you would in a crime scene is exceedingly difficult; you rely upon classified information and sources whose identity you can't disclose without harming national security, that the burden of proof isn't appropriately applied to people engaged in acts of war entering your country to detonate bombs and do things like that, that would normally be applied to the garden variety criminal defendant.

Does the ACLU recognize the need for any types of distinctions in the processes and protections when you're trying an alleged enemy combatant?

AR: Sure, and I think in a lot of ways. We understand that these cases may represent different legal theories than the thug on the street who picked up my wallet, right? We have procedures in place to deal with them. We have the Classified Information Procedures Act, which allows us to put evidence before judges and make sure that if they're classified or if they represent issues on national security they're not broadcast to the public, therefore jeopardizing national security further. We have ways of making sure that witnesses are protected in coming forward, so that they're not open to further attacks by other terrorists who might be still out there.

And I think it was a great report, that wasn't put out by us - I would have loved to have put it out - it was put out by a group of former prosecutors and former military officials, Human Rights First, that said that our existing criminal justice system, and our existing UCMJ system, the Uniform Code of Military Justice system, is perfectly equipped to deal with these types of cases. We've done it before. In fact, we've done it even in the Bush administration; we have Zacarias Moussaoui and Padilla prosecuted under federal criminal courts. And what we need is to make sure we have a neutral set of rules.

Now, the rules that we should defend, are rules like the right to due process. The right to be free from coercive sessions of torture. And I don't believe that anyone would argue anywhere in America of good mind and good heart, that the rules ought to change so we can torture and waterboard people, and then after we do that we can expect a confession from them. That's what has happened in Guantanamo; that's what's happened in these military commissions. Those are the types of "accommodations," Glenn, if you will, "accommodations" in quotation marks, that we cannot stomach. We also we can't do it for 20, 30, 40, 80 people they want to prosecute these cases. Guess what? Once you make those exceptions for a handful or a couple dozen of those types of defendants, I bet you you're going to find those exceptions cropping in all sorts of criminal cases, whether it's organized crime, whether it's drug cases, and white-collar crime, you're going to find it crop up.

The Fourth and Fifth Amendments are brilliant in the fact that they are absolute. You have those kind of core rights regardless of what the crime is that's brought against you. And I understand it represents some conundrum because the Bush administration has wholly screwed it up by torturing these individuals first, and then getting confessions from them afterwards. And established the Supreme Court precedent -- what was it -- in 2004 a case I think that came out of Arkansas, where police officers were going in and getting confessions from people without reading their Miranda rights, and they were going in afterwards and then reading them their Miranda rights, and still getting the confessions afterwards. This conservative Supreme Court said, you can't do that. 'Cause once you violate the person's rights, you can't clean up that confession by doing it after the fact, and trying to use the second confession and disregarding the first one.

GG: You know, it is interesting that a lot of these terrorism cases have actually been tried in the civilian courts. You mention the Moussaoui case, there's Jose Padilla and others, even before the 9/11 attacks have gone much more smoothly and resulted in convictions almost across the board, as compared to the Guantanamo cases, where the abuses have really jeopardized the ability to prosecute people who may actually be guilty.

I want to shift gears a little bit and just ask you about a couple of other topics, in the ACLU report, one of which is media consolidation, and the report talks about the fact that our media outlets are becoming controlled by an increasingly concentrated group of corporations, and proposes several solutions to that, including having the FCC reverse the loosening of rules on cross ownership of media outlets. I want to ask you about that in a second, but one of the right-wing concerns - you can call it paranoia or fear or whatever - is that the Democrats, in order to address that concern, namely the homogenized range of political views in our media, are considering reintroducing the Fairness Doctrine.

Does the ACLU have a position on the Fairness Doctrine?

AR: Well, we supported the Fairness Doctrine when it was first instituted, and then obviously when it was struck down, it became kind of a dead letter of law. I think all options should be back on the table -- old policies or programs that allow for a full and vigorous exchange in the marketplace of ideas to be robust as possible should be on the table. And, I think this is a time where, we've been there in the past, doesn't mean we don't revisit them. I think we could have a very clear and thorough debate about whether or not the Fairness Doctrine can be adopted again -- whether we can have Fairness Doctrine 2.0.

Clearly the Fairness Doctrine was that time when they were focusing primarily on TV stations; now we've got this whole emergence of new media. And I'm a bit schizophrenic myself frankly; I think we need government to pay much more attention to the possibility of media consolidation, especially with these big multinational corporations, but at the same time I see consolidation of the media at a private and corporate level. You also see this explosion of new media outlets that are much more decentralized and grassroots oriented, like your blog, for instance.

I get so much more of my information from the Drudge Report and your blog, and following a couple of the other key bloggers, and watching from the websites. Certainly much more cutting edge information that I do often putting on the TV or Fox News or some of the other radio stations or Murdoch News Corporation. So, I think it requires us to really have the government have a really close look at the commercial media and look at the emergence of new media, guerrilla media, that perhaps can also be bolstered and strengthened to make sure we have a full marketplace of ideas.

One of the things that, they sound like a very good fit, and you're right, the ACLU, the biggest problem we've got is when your job is to defend the rights of everybody, all across America -- and you're a multi-issue, multi-institutional organization -- it's really hard to pick issues and pick priorities. We did our best. In day one, we picked the things we knew didn't require anyone else but president-elect Obama picking his five digits up and grabbing his presidential pen, and signing an executive order. It might be hard because it presents conundrums, but they're very easy because they're moral wins for America, it not going to cost America the time or the energy or the bipartisanship bickering that you're going to have to get into when you try to implement health care reform. Or when you try to cap greenhouse gases.

So then we did the 10 days, then the first 10 things that can happen the first 100 days, that is more within the executive branch; changes to regulations, like we were saying here with the FCC, and then the first year, is looking again looking primary at the executive branch to promulgate greater rules, and greater oversights, greater bodies. And then we have a longer document we're going to put on the website next week which is about a legislative issues agenda, where you're going to have to get Republicans and Democrats, the minority and majority chairs in different committees are going to have to compromise, are going to have to do some horse trading.

It's a huge amount of work we've got ahead of us. And that's why we start out with day one, let's do the stuff we know we want to do, we want to close Guantanamo, we want to end torture, we want to stop rendition -- the president can do that by himself. All he's got to have is the political will to say I want you to do this, and get it done in as effective a way as possible. And if he waits for people to tell him how to do that, the nay-sayers will certainly creep into this little of circle of advisors. And more importantly, the cynicism will creep into the American people that the change we were hoping for, and the change that's probably most easy, and there's more resounding contention about closing Guantanamo than anything else, and there are not the lobbyists that you'll find in health care reform. You're not going to have Pfizer up on the Washington hill, lobbying against the closure of Guantanamo; you have Colin Powell saying close it yesterday.

And if you don't take those first easy, but highly important and symbolic steps, I think you're going to find this cynicism, especially among young people whose election this was the first election decided by, and just creep back into, oh, that's Washington, oh this will be the disillusionment of our lifetimes. That's what people will say. I'm not willing to be disillusioned yet, but I'm willing to put the pressure on him to make sure he does the right thing.

GG: Last area I want to ask you about is the prospect of criminal investigations, and if warranted Justice Department prosecutions of the Bush administration for crimes that were likely committed in the area of things like surveillance and interrogation. There's widespread speculation that the president is likely to issue numerous pardons on the way out the door, including pardons of his own officials, and top aides, and perhaps even himself.

What is the ability of the president to protect himself in a blanket way, and his administration in a blanket way from widespread crimes, and is there any way around that if that happens in terms of the ability of a new president to investigate what has happened in the past eight years?

AR: We've been looking, actually, we have a couple legal memos we've had to work up this summer, 'cause we've been anticipating this issue, and look, the news is not good here from a legal perspective. The president has sweeping powers to grant pardons. Even possibly to himself, pardons to people who have not yet been charged with crimes, that happen under their watch in government. There's not even a explicit mandate that the pardons be made public. They can be held in secret. They can have blanket secret pardons that are sweeping and there's very little legal ground to take that apart. That's a power that's very much vested and established with the president and in the Constitution.

However, the fact is that we should not let this president with his fountain pen that is quickly running out, let him completely off the hook on the use or abuse of president pardons. First off, we've got to make sure that they're public. And even if the outgoing president between Christmas and New Year's signed up a bunch of private and secret pardons, I certainly think president-elect Obama and the new administration owe it to the American people not to let the Bush presidency shroud their actions in further secrecy, and we would be making that appeal for sure to the new administration to make sure that all pardons are made public.

I think the second piece, this will be the final nail in the Bush coffin. That's the only good side to it. Who remembers Gerald Ford for anything other than the Nixon pardon? And we got to kick up a pound of dirt in people's faces and remind them that this was the last straw. The back was broken many years ago, but this truly is presidential impunity. And let's have a much fuller debate about the use and abuse of presidential pardons. They seem to come and go pretty quickly. But they won't ever have been on the scale and magnitude that the pardons might represent for letting people violate the law, by-pass Congress, by-pass the courts, and torture and water board people, hold them indefinitely, and then we're going let them off the hook. We have a kind of public education campaign we're putting together in place right now on Pardon Watch, connected back to Guantanamo and all those violations of the rule of law. And I think it's a way for getting people to really become mobilized.

Now, the good side of the pardon issue, if there is one, the one silver lining - if he pardons Rumsfeld, Rumsfeld cannot invoke his Fifth protection rights against self-incrimination when Rumsfeld get subpoenaed to appear before the Senate Judiciary Committee about Abu Ghraib and what he knew when. I'm sure that there'll be a legal fight over it, but that, usually what you get to invoke is the right against self-incrimination, the Fifth Amendment right. And that will be waived because he can't be prosecuted for it. So, maybe, then the use and abuse of presidential pardons will get some of the Democrats in these committees both stronger spines and a great willingness to subpoena people and demand their appearance, and litigate that -- because you know they're not going to come willingly -- litigate that to get down to the bottom of this.

The last thing I'll tell you, Glenn, is that, I believe in America, that even if he gets pardoned for a crime he definitely committed, getting to the bottom of it, whether they end up serving in jail or not, I personally think that's the appropriate thing to do. But more importantly for the American people and American policy process, we have to know what they did, and we have to know what it is, how they violated the law, and who stepped aside, and how the system broke down that allowed them to break the law, so that we can put the impediments in place from allowing any other appointed or elected official from ever doing that again.

GG: Yeah, in so many ways the linchpin of what has happened has been the extreme secrecy measures that have kept...

AR: Exactly right. That's exactly right. That's the box you've got to break open. We've seen the tip of the iceberg. We don't know how many people they've conducted surveillance on, we don't know how many people have died in government custody, who've been traumatized as a result of the war on terror. We don't know how much evidence they've garnered against individuals they're holding in Guantanamo. What we don't know is so much more than what we know, and what we know gives us enormous pause. Hopefully we can get to the bottom of that. And it's not about revenge, and it's not about retribution, and it's not about getting back -- it's about moving forward. And the only way to move forward is knowing where we've been, and how we make sure we never go back to these eight dark years again.

GG: Absolutely. Well, I'm glad that there's going to be a lot of pressure points on a President Obama to adhere at the very least to the commitments he made to restore civil liberties, and to do so in a fast and decisive way, because there's going to be a lot of pressure on him not to do that. So I think campaigns like this are important.

AR: Wonderful presidents need these pressure points. People who want to do the right thing, who have the right moral compass, who have their consigliore and their grand vizier whispering in their ear about how if you do this, they jeopardize this. And people with a good moral compass, once you remind them of what's right or wrong, no matter how hard or tough it is, they usually end up making the right decision.

And that -- our job -- is to surely take President Obama at his goodness and his word, give him the momentum and the tools by which to accomplish that. Remind him that political expediency is not good over the long term for a democracy. If you let the military commissions stay open, or if you don't make sure the rule of law returns in closing down Guantanamo, what happens is your Fourth and Fifth Amendment are so eviscerated, that you've done great damage by allowing that part of our great democratic house to begin to crumble. And, that's just something we can't allow.

GG: Yeah. You know, it's interesting - there was a piece I linked to from a blogger, Digby, who yesterday recounted an important and really illustrative incident in FDR's administration, I don't recall exactly what the issue was, but there was something we wanted to do, that he wasn't doing, and was he was dragging his feet and people who supported that policy came to him and said, you know, why are you dragging your feet, why aren't you doing this? And he essentially said, well, you are the ones who need to make me do it, meaning, you need to be out there criticizing me and attacking me and demanding it. That's what presidents need; it's not about criticizing the president or trying to push him too far in the early days, it's about creating a constituency in the citizenry, so that he needs to address it.

AR: And Martin Luther King was a great leader who worked with great presidents, but he put the screws to the great presidents. And the great presidents' legacies are the better for it.

We don't want to be loved, and we don't want to be popular, and that's the duty of the ACLU. We're not running for political office; we've got the American people who keep us going. And the way we make people face the hard decisions, the decisions that are perhaps not politically expedient, but are the right decisions, is by reminding them about what's right and what's wrong.

GG: Absolutely. This report is a really important step.

So just let me ask you this final question, in light of these issues having been missing almost entirely from the presidential campaign, there are huge numbers of people -- and this has been established in a variety of ways -- that are heavily vested in these civil liberties issues and especially now that the election is over, want to do everything they can to work to keep pressure on our political leaders and on President Obama to adhere to his commitments and begin restoring civil liberties.

What does ACLU have planned to bring attention to these issues, to generate publicity for this project, and what could people do who want to support it?

AR: And I think it's a great question, Glenn. I mean, frankly, if we rely upon the advisors, especially from the centrists, the Blue Dog Democrats around president-elect Obama, we're not going to see progress on Guantanamo. So they've got to hear from us, and from the people and from the folks who are going to hold their feet to the fire and make sure he keeps his promises. To that end, we're having the New York Times ad today, on Monday, where we're also launching a viral campaign that we're working with Robert Greenwald, from Brave New Films - he's the one who did McCain's Mansions, and Outfoxed, and the Wal-Mart movie. He's great guy, great colleague - and we're pushing out a video through our lists that talks about Guantanamo, just generally, just framing as an issue that talks about some of the key spokespersons that have come out saying Guantanamo has to be closed. Everyone from Colin Powell to Jimmy Carter, Julie Christie, all sorts of folks, even Regis, recently said he wants to close Guantanamo. And there are ways to make sure we create a buzz on these issues, to remind people not to let them fall off the chart.

The other thing we're going to do is we're clearly going to have a kind of advocacy component to this, where people are going to be able to sign up for e-mails to send to the Obama transition team, to the White House, to let them know that we expect him to make good on that promise soon. That as he plans his transition, he's got to plan that as soon as he takes office, on January 20th, how he's going to close Guantanamo and shut down the military commissions.

Greenwald is also doing a series of videos that are testimonials of former detainees who are held at Guantanamo who were tortured and abused by the Americans. Guantanamo is still a black box for us, and we don't really know a lot about the guys who are held there and what happens to them. And, by painting a human face in a narrative, and pushing out that narrative to real people, we hope that real people will push on the Obama transition team, and make sure that they follow up on those promises.

We have all sorts of things. As the clock begins to tick on the Obama presidency, when Guantanamo is open under his watch, we're going to be keeping time. And tracking how much money and how much time under his watch Gitmo is open. So, this is meant to create the political will to do the right thing. We believe that President Obama wants to close Guantanamo, but he's being told, I'm sure, by some of the advisors that it's not as easy, it's not politically expedient.

And he's got the health care issues, he's got the environmental issues, he's got the economy, he's got these two wars in Iraq, and all those issues are important, but they're going to take a lot longer. And they're going to take congressional horse trading and bipartisan efforts. Closing Gitmo is something he could and should do from day one, and our job is to make sure that he hears that from the American people and it reinforces his own commitment to the issue to do it right away. There's going to be a lot for people to do.

GG: I appreciate your taking the time to be here.

AR: You bet, boss, I hope to see you soon.

GG: Me too.

[Transcript courtesy of Thames Valley Transcribe]

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