Salon Radio: NPR's Tom Gjelten and ACLU's Harvey Grossman

What accounted for NPR's inaccurate reporting on the John Brennan controversy? And: will a federal court invalidate telecom immunity as unconstitutional?


Glenn Greenwald
December 6, 2008 1:03AM (UTC)

(updated below w/ transcript)

Two interviews are featured today on Salon Radio:

(1) NPR correspondent Tom Gjelten, who covers intelligence and national security matters, wrote an article on Wednesday reporting that John Brennan, who purported last week to withdraw his name from consideration for a top intelligence post, was, in fact, "pressured by the Obama transition team to pull his name from consideration."  I discuss that episode with Gjelten, but the majority of my interview focused on this paragraph Gjelten wrote:

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Brennan's withdrawal, offered in a Nov. 25 letter to Obama, came after liberal bloggers mounted an opposition campaign against his possible appointment. They said he was tainted by his service in the CIA at a time when the agency was employing coercive interrogation methods, including "waterboarding," on detainees.

As I wrote previously -- and as this excellent post from NPR Check detailed -- this claim is false.  The objection to Brennan was not that he just so happened to be at the CIA when these policies were implemented.  The objection was much more substantive than that; it was that Brennan has a history of explicitly supporting and defending policies such as "rendition" and "enhanced interrogation techniques."

Last week, Gjelten appeared on NPR in a radio segment with NPR host Steve Inskeep to discuss the Brenann controversy, and both he and Inskeep repeatedly made the same false claim:  that objections to Brennan were oh-so-unfairly grounded in the happenstance that he was at the CIA during the time these programs were instituted.  That claim -- used to depict objections to Brennan as irrational and based on unfair guilt-by-association hysteria -- has also been repeated by The New York Times.

I had a very "spirited" discussion with Gjelten over how he could possibly have mischaracterized so patently the case made against Brennan, and specifically how he could have done so in his piece this week even after multiple complaints were made to NPR last week in the wake of his radio report.  The discussion was roughly 25 minutes long, and finally -- after 20 minutes -- Gjelten acknowledged that he should have reported this differently. 

Unfortunately, due to technical problems, the sound quality of the recorded podcast is poor (though still intelligible).  But a full and accurate transcript is here.  Given the sound problems, I'd recommend the transcript, but because the "lively" tone of the discussion adds to the flavor, we've posted the podcast so that those who want to do so can listen to it -- by clicking PLAY on the recorder below.

 

(2) As Wired's David Kravets reported, a contentious hearing was held this week in Judge Vaughn Walker's federal district court in San Francisco, to hear arguments on the Government's motion to dismiss the lawsuits brought against telecoms, which accuse the telecoms of violating the statutory and constitutional rights of their customers by participating in the Bush administration's illegal surveillance programs.  The Bush administration is seeking dismissal of those suits based on the retroactive amnesty provisions Congress granted last August. 

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The plaintiffs in the case have argued that telecom immunity is, for several reasons, unconstitutional and should therefore be invalidated and disregarded by the court (I previously summarized those constitutional arguments for the ACLU's site, here).  Judge Walker has previously issued several rulings that have been rather adverse to the telecoms (which is why the Bush administration and the telecoms were so desperate to obtain amnesty from Congress), and as Marcy Wheeler notes, prior to this week's hearing, he submitted numerous questions to the parties  (.pdf) suggesting that he takes quite seriously the constitutional challenges to telecom immunity that have been raised.

I spoke today to Harvey Grossman, Director of the ACLU of Illinois and one of the co-lead counsels in the telecom lawsuits.  We discussed the hearing held this week in front of Judge Walker, the reasons why telecom amnesty is unconstitutional, and most interestingly, what the incoming Obama administration can and should do to ensure that these suits can continue (Obama has always maintained that he's opposed to telecom amnesty and said he voted for the FISA law in August despite, not because of, those provisions).

The discussion is roughly 25 minutes and can be heard by clicking PLAY on the recorder below (the sound quality is normal and quite good).  A transcript will be posted shortly.

 

UPDATE:  The transcript of the Grossman interview is here.

Glenn Greenwald : My guest today is Tom Gjelten of National Public Radio. He covers intelligence and other national security issues for NPR News. Thanks very much for joining me today.

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Tom Gjelten : Good to be with you, Glenn.

GG : I wanted to discuss with you a story that you have today that I think you can call a "scoop," regarding the withdrawal -- or what was called the withdrawal -- last week by John Brennan from consideration for the Obama administration to name him to one of the top intelligence spots. You have an article today on NPR's website in which you report:

Former CIA official John Brennan once considered a top choice to serve as CIA director in President-Elect Obama's administration, was pressured by the Obama transition team to pull his name from consideration, according to friends and former intelligence associates.

How reliable do you consider those sources to be in terms of their knowledge of what actually transpired and what reasons were you able to ascertain as far as why he was forced out?

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TG : Well, Glenn, I cover intelligence, it could be an intelligence officer who doesn't want to talk about sources and methods - I'm in that situation. But I can tell you I have absolute certainty that this is, in what I report. I can't go into the details on it, but there's no question in my mind that that's what happened.

GG: Okay. Were you able to ascertain any reason? This was, and continues to be, Barack Obama's top intelligence advisor, and he has been with the transition for the last several weeks. Why suddenly did they decide that they wanted him to withdraw his name for consideration? 

TG: I can answer that question. I was told that there were a couple things. And I think you're probably a lot more in touch this, Glenn, than I am. There was opposition to his possible appointment emerging on some of the blogs, and then there was a letter that was sent to the Obama campaign by 200 psychologists. 

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Now, I was told that that letter from the psychologists actually was not a precipitating factor. Those psychologists directed that letter to Barack Obama specifically asking to withdraw his name. Brennan's letter to Obama then followed the emergence of that letter, but I told that it was actually in the works before that letter appeared. The only thing that I can assume, is that the opposition that his appointment or possible appointment was generating was part of the reason. 

Now, in this world, when the Obama transition team is considered to be one of the best if not the best ever, and I'm presuming that they do extraordinary vetting, and one can not rule out the possibility that something turned up - who knows? - that may have caused them to change their mind or to send a signal to Brennan that that job was not to be his. But that's pure speculation. 

GG: One of the things, and that will be the last question about this part of the story, one of the things that struck me as odd about the whole spectacle, that is, whether Brennan decided voluntarily to withdraw or he was actually compelled to do so as you suggest today was the case: why not just refrain from appointing him to a position? Why go through this whole sort of melodrama of having him write his very flamboyant, newsworthy letter, very dramatically announcing that he was withdrawing from consideration. Do you have any speculation on that, or...? 

TG : I can speculate. That's all I can do. Here's what I think is possible, and I have no reason to think this is true, but if they may have indicated to him privately that he was not any longer their choice to take the CIA job or any key intelligence job, and that he was then angered by that and decided to write this letter and make it a little more flamboyant and dramatic. I mean, that letter is very important, Glenn, and I'm sure you've seen it. It's a very angry letter. He really strikes out at the people that had opposed his possible appointment. The letter is directed at them as much as it is against the Obama people. So, that part of it may very well have been his own initiative. No one has said to me that the Obama people demanded that he write this letter. So, both things could be true. On the one hand, that the Obama people pulled the plug on his possible appointment, but also, too, that in response and in some anger, that Brennan then writes this letter. 

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I can tell you one thing, that that letter was leaked and I don't think it was leaked by the Obama people. Now, I was on another story at the time that came out, and I didn't get it right away, so I have no idea who leaked it. But I don't think it was leaked by the Obama people. 

GG : Right. That makes sense. Now, I want to ask you about another part of your reporting on this issue, and I'm going to quote from the paragraph in your piece today, where you write:

Brennan's withdrawal, offered in a November 25th letter to Obama, came after liberal bloggers mounted an opposition campaign against his possible appointment. They said he was tainted by his service in the CIA at a time when the agency was employing coercive interrogation methods.

And you also did a radio segment on NPR last week, with Steven Inskeep, in which you essentially said the same thing, quote: "His association with Tenet at that critical time was apparently enough to provoke loud complaints from bloggers, and critics of the agency." 

Now, in your piece and on your radio programs, you don't make reference to any of these liberal bloggers who apparently made that argument, and I'm actually not aware of any who made that argument. Were you referring to anyone specifically, when you said liberal bloggers were advancing that argument? 

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TG : I'm sort of lumping two things together, which we sometimes do in this business. That quote was actually from the letter that was written to the Obama campaign in opposition to his candidate; that was a direct quote from that letter. You're a blogger yourself, Glenn, right? 

GG : I am, and that's part of why I'm asking. In fact, I think I wrote the very first piece... 

TG : There you go. 

GG : ...about John Brennan protesting... 

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TG : I guess you're one of those liberal bloggers. 

GG : I guess if you want to include me in that, I'll be happy to, but I guess part of what was interesting was in reporting on this issue, on this episode, NPR and The New York Times and a couple of other media outlets said that the reason that critics and bloggers objected to Brennan was because he happened to be at the agency at the time that these programs were implemented -- as though the mere fact that he was there is what provoked the objections. 

And I'm wondering just who it was or where that came from, because I had never seen that particular objection, even by the psychologists, being made. My understanding of the objection, and the objection that I voiced, was that Brennan had come out, both while he was at the agency and especially afterwards, and defended and advocated rendition and enhanced interrogation techniques. It wasn't merely the fact that he was at the agency; that wouldn't be enough to disqualify. It was that he was an advocate of the very programs that are so much in controversy. And I'm just wondering where this reporting came from that suggested that it was merely based on the fact that he was at the agency. 

TG : Well, the quotes, just take your own blog, which I think probably you're most familiar with, it sounds like almost the absence of objection, or absence of criticism of those policies when he was in a position to object to them, if something should be held against him. 

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GG : No, this is what has been frustrating for a lot of people who worked on the Brennan nomination, and the way the objections have been grotesquely distorted is, it isn't that he failed to object to these policies. Instead, it is something much different, which is what he just said, that he explicitly advocated them once he left the agency. He was on--

TG : Hold on, Glenn, because saying, for example, that useful information came from enhanced interrogation is the not the same as advocating those policies, because I've spoken to a lot of intelligence professionals who say, look, you can get useful information from these interrogation techniques; however, there's a cost and a benefit associated with this. The benefit is the information you get from it; the cost is the damage it does to America's reputation. So simply saying that these programs produced useful information does not make you a supporter of those programs. 

And I know he's been quoted as saying that useful information came from them. I have never seen a quote where he comes out and says, I believe that we need to do water boarding, or I believe we need to do a coercive interrogation. The quotes that I've seen from him say, useful information came from this, but then there are other quotes where he says, some of the information was not useful. In fact, I even saw that in your own piece. 

GG : Well, how about, he was on The News Hour with Jim Lehrer in December of 2005 and Margaret Warner asked him, so was Secretary Rice--

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TG : That was about rendition.

GG : Right. Exactly, that was a major part --

TG : Rendition is not interrogation. 

GG : No, no, no; what I'm asking you is about the case that was made by critics and bloggers against Brennan. And the way that you reported it was that the case was he was at the agency at the time these programs were implemented, when in fact the case was, that he was an advocate of rendition and enhanced interrogation techniques. And so, it just boggles the mind to see a certain argument and a certain cause being characterized in a way that's so vastly different from how it was actually occurred. I'm just wondering if you--

TG : I'll read from the letter from the psychologists.

GG : But I'm asking you about the bloggers; you did the radio report before that [psychologist] letter came out, and in your piece today you wrote liberal bloggers objected because he was at the agency during the time the programs were implemented. So, what I really want to ask you: did you actually read anything from the liberal bloggers about whom you were reporting before you went on the air and before your piece was published on the NPR site? 

TG : I saw your blog, and I got this from people around Brennan, that this was what he was reacting against. I don't cover the full, I covered his decision to withdraw; I didn't cover this debate prior to that about whether he would a good candidate or not. 

GG : Last question about this, which is, the report that you did with Steve Inskeep on NPR actually generated some critical commentary in these blogs, I wrote some about it, other did as well, and I know that numerous readers wrote to the ombudsman about the reporting that the NPR was doing on this issue. 

Were those complaints, essentially saying that the reporting was inaccurate and detailing the reasons why, once you did that radio segment last week, were those forwarded to you, or did the ombudsman speak to you about that in any way about the numerous complaints that were made about that reporting. 

TG : And what were the complaints? 

GG : That you were going on the radio saying that the complaints that were being made against Brennan by bloggers and others was that he was simply associated with the CIA at the time that these programs were implemented, that it was unfair guilt by association, when in fact it was not based on that, it was based on his advocacy of rendition and the comments he made about enhanced interrogation techniques. Were those complaints discussed with you by the ombudsman? 

TG : I have not seen a single comment by him where he unequivocally endorses coercive interrogation. I've seen where he explains that, why it was - I haven't seen a single quote, so I don't know what it is that I'm, missing. 

GG : Again, the quote that he made that was cited most frequently was on CBS News with Perry Smith, where he said that, with regards to enhanced interrogation techniques:

There's been a lot of information that has come out in these procedures, that the agency has in fact used against the real hard-core terrorist. It has saved lives. And let's not forget there are hardened terrorists who have been responsible for 9/11 who have shown no remorse at all for the death of 3000 innocents.

That that--

TG : As I say, Glenn, I cover this community, and I know there are many intelligence professionals who would say that, and in the next breath, say, nevertheless, I don't think we should do it.

GG : But there was no next breath. Let's set aside whether you think the criticism against Brennan is fair or not. The complaint that were voiced with the ombudsman was that you were mis-describing, you were inaccurately describing, what the criticism were. Even if you don't agree with the criticisms, you should still go on the air and describe what they are accurately.

TG : How can I describe a criticism that I am not aware has been made? As I say, I have not seen any direct quote cited by any of his critics where they show that he was an ardent support of coercive interrogation. I have seen...

GG : Part of the piece was that he defended rendition. 

TG : That's a separate, an entirely separate issue. There are many... 

GG : But that's part... The point here is nobody has ever said, as you reported, that the problem with Brennan was that he was at the CIA at this time. You even went on to say, there's a great problem now, because where's Obama going to find a CIA director, a DNI, who wasn't in some way at the CIA during this time? 

That was never the case that was being made. The case that was being made was that he was a supporter of rendition, which I think you agree with, and he was a supporter of enhanced interrogation techniques, which you're saying you don't find persuasive, but that wasn't what you reported about what the case was against Brennan. 

TG : Glenn, maybe I mischaracterized the criticism that was made of him, but I don't know that to be the case unless you can point to me a criticism that has been made of him that cite direct statements he has made supporting coercive interrogation. Unless somebody can point to me those statements, then how can I say, how can I acknowledge I've mischaracterized the criticism. I don't understand. 

GG : The criticism is what the criticism is. Whether the criticism is persuasive to you is a separate question. You have the right to go on the air and say criticisms of Brennan are inaccurate--

TG : No, but that's unfair - is there any--

GG : I wrote, Andrew Sullivan wrote, many other bloggers wrote that the reason we objected to Brennan was because he was an advocate of rendition and enhanced interrogation. That was the case that we made, that was the reasons we cited for objecting to Brennan.

TG : But my interpretation of what you wrote was that your basis for saying he was a supporter of interrogation was the fact that he had been at the agency when those decisions were made and had explained them.

GG : My whole post has nothing but his quotes -- 

TG : You can say that that amounts to him being a support of them, but that's not, to me, that does mean he's a supporter of those policies. 

GG : That's fine, but since you're characterizing the case that I and others are making, you should describe what case we were making. The fact that you find it unpersuasive is independent. But, did the ombudsman pass on those complaints to you or speak to you about them in any way? The NPR ombudsman? 

TG : No. 

GG : Okay. 

TG : But you know how many complaints the ombudsman receives. 

GG : Well, I know at least between 12 and 15 left in my comment section and sent to my e-mail, and I guarantee you a larger number than that complained to the ombudsman, because that was part of what was being posted for people who objected to the reporting. So I know that the ombudsman received at least some well-documented complaints. 

TG : There are many ways that you can send complaints to. The NPR commons set up, when our store, we now have a revamped website where listeners are able to comment on our stories, and I know there were objections to my story raised on the website. And I see those. That does not necessarily mean the ombudsman... 

GG : No, the e-mail to the ombudsman was posted, and people emailed the ombudsman directly at the address NPR provides for complaints about inaccurate reporting. That's where those complaints were sent. I mean, I was surprised - that's why I'm asking because the initial report was last week, the complaints were voluminous between now and then... 

TG : Twelve complaints is not voluminous. 

GG : Well, like I said, there were I guarantee you many more people who sent complaints to the ombudsman didn't cc: me on the complaint, I know that from history, but even 12 or 15 well-documented complaints from the ombudsman about why this reporting is inaccurate should have I think got the attention of the ombudsman to at least speak with you, so that your reporting wasn't repeated. 

TG : Look, Glenn, I don't accept what you're saying, because I don't, I am not going to say that people opposed John Brennan because he was an advocate of interrogation. 

GG : What about rendition? Why do you keep leaving that out? How about going on the radio and saying: "the critics objected because rendition is one of the most controversial Bush policies, it has been used to send people to countries, including innocent people, who have been tortured for months. Brennan went on the network news and defended it as a vital tool, agreeing with Condoleezza Rice, and the critics of Brennan pointed to those statements, and objected to him getting a high position in the intelligence community, because of those statements." How about that? 

TG : Well, I guess that would be a fair thing. But I do, I would insist that rendition and interrogation are two separate issues. 

GG : Of course they are. And I would just request - it's not unique to you, so I don't mean to single you out and I appreciate your coming on this interview to talk to me about it. It was in The New York Times even again today about what the case was against Brennan that was inaccurate, but I think a lot of times people feel comfortable characterizing what is said on quote-unquote "blogs" without actually going and reading what it is that's being said. 

TG : I understand. And that's a fair point, Glenn. But just so, to seal this off, tell me how I should have phrased that. 

GG : "Bloggers and critics have objected to Brennan because of statements that he made, that they point to, defending enhanced" -- 

TG : I can't say that. 

GG : "...statements defending rendition, and statements that they pointed to that they say constituted a defense of enhanced interrogation." 

TG : Okay. That would be fair. That's how I should have said it. You're absolutely right. I should have said it that way. That's a little bit - and I'm sure you recognize this - I short-handed it and sometimes it's necessary to short-hand things and sometimes when you do that, you over-simplify what is a more complicated issue. I acknowledge that. 

 

GG : Okay. Fair enough. Okay, last question. With regard to the reporting that you're doing on this issue, do you have any news about potential candidates who are likely now to be the CIA director, or Obama's DNI? Have you heard scuttlebutt you can pass on, or other pertinent information about who might be named to these positions? 

TG : No. I mean I can say this, which is not something I reported, that I think that they would have a much easier time finding somebody to be DNI than to be DCIA, because the DNI, the Director of National Intelligence, has a more strategic overall perspective, more of a policy perspective. That they could bring in somebody like a Jane Harmon or a Tim Roemer, you know, the name that's floated around, more than floated around, that's really way out front, that Admiral Dennis Blair.

Now, the problem with CIA is, and I am just giving you here a sort of inside the Beltway perspective, which is, that running the CIA is not the same as being Director of National Intelligence because it an agency, because it's really useful to have some idea of how the CIA works, to more of an operator's perspective than a policy or philosophical or political perspective. I think they're not going to have any trouble at DNI and it probably will be Denny Blair, but the people who in the running for the DNI position will not necessarily be in the running for a position at the CIA. 

Now, there are a number of people who are strong candidates for the CIA position; however, and this sort of goes back to what we've been talking about, their views and positions on such issues as rendition, as coercive interrogation, as warranties surveillance, are not all that distinguishable from John Brennan's view. So, if you, hypothetically, believe or conclude that someone with John Brennan's views is not qualified to come to CIA, then that does exclude a lot of the most likely candidates. 

GG : Okay. Fair enough. I just think that what's going to happen if there is another candidate who emerges as the leading candidate is, it won't merely be enough for most people to object, and I'm certainly speaking for myself, and I think a lot of other people, the mere fact that they were in the intelligence community or at the CIA, because many people at the CIA did object, push back, many of these things. I think their statements would be examined very carefully to see whether they've expressed support for or advocacy for, or sympathy with, programs that a lot of people believe were not just clearly illegal, but quite destructive to the moral standing of our country and if there aren't those statements, I don't think they'll have the same problems they had with Brennan. 

TG: No, I wouldn't disagree with anything you just said. I would say that, knowing the intelligence community as I do, I would put Brennan in the mainstream of those people, or even slightly to the left, rather than some guy who's sort of out on the right extreme fringe, you know what I mean? 

GG : Yeah, except that there's many, many very well accomplished intelligence and military professionals, including people who have long been at the CIA, who have vehemently objected to things like rendition and enhanced interrogation and in fact many of them--

TG : People have served at the CIA in the last eight years?

GG : Not the last eight years.

 TG : Yeah, that's, the thing is, the CIA and the world has changed so much in the last eight years that that's an important point to be underscored, that you - and I'm not saying it's a good or bad thing - I'm saying if you reach back before 2001, you're taking somebody who does not have recent experience in the intelligence business, and maybe that's alright. But it is something that you have to consider. 

GG : Right. My guess is you that could find people at the CIA in the last eight years who don't have a record, a history, of making positive statements about some of the programs. They might have been inside the CIA while these programs were implemented, but not serving as an advocate for them once they left. That's for... 

TG : Let's not go there, Glenn, because I would still question whether he was actually serving as an advocate for those programs. But let's not start--

GG : Yeah, I think we've covered that pretty thoroughly. 

TG: I'd say.

GG: Alright, Tom, well, I really appreciate your taking the time to answer questions and talk to me today. Thanks very much.

TG : Well, keep it up Glenn.

 

 [Transcript courtesy of Thames Valley Transcribe]

Glenn Greenwald My guest is Harvey Grossman, who is the legal director of the ACLU of Illinois, and also one of the coordinating lead counsel in the various telecom lawsuits that are still pending in California that were brought on behalf of customers of AT&T, Verizon and other telecoms, arising out of those telecoms' participation in the Bush administration's various surveillance programs. Harvey, thanks very much for joining me today.

Harvey Grossman Thank you, Glenn.

GG So, it was last July, really last August, when the Congress approved and voted for, and the president signed into law, the FISA amendments act of 2008, which contained the telecom immunity provisions. And yet here we are almost six months later, and these lawsuits are not yet dismissed. To the contrary, there's active proceedings going on in court, and it looks like -- it's certainly not 100% certain -- these lawsuits will be dismissed as a result of those provisions. It's certainly possible, but it is also possible that they won't be. So, could you give us a sense of what has happened in the court proceedings since those telecom immunity provisions were enacted, where we are and what the recent episodes have been in court?

HG Sure. As you could predict, the administration took advantage of the immunity provisions, which it lobbied so hard for, and under the immunity provisions Attorney General Mukasey filed a quote, "certification," under seal -- something we have not been able to read or see the substance of -- to kick in the immunity provision itself. The immunity provision of the FISA amendment stated that if the Attorney General filed a certification that indicated that the alleged surveillance was conducted under certain circumstances, then in fact the court would not have the discretion or the ability to make an independent review of the facts and the law, but instead would simply be required to dismiss the lawsuits.

Attorney General Mukasey did file that certification, against all of the cases, and we have been in a process of briefing that motion to dismiss under the immunity provisions for the last several months. In addition to briefs exchanged between the government and the plaintiffs in the lawsuits, the telecoms also filed their own papers, and this past Tuesday, in federal district court in San Francisco, Judge Vaughn Walker heard arguments on the immunity motion itself.

We have challenged the immunity provisions of FISA as being unconstitutional. And we have four separate grounds. I think that the primary areas of interest are that the immunity provision itself would eliminate and overrule constitutional claims. It would be in effect a statute overruling the Constitution; we, of course, don't believe that Congress has the power to overrule...

GG Let me interrupt you there, because I want to go one by one through the three or four arguments have been most emphasized. But before we do that, just to be clear, the argument that you're making, in essence, is that as clear as these telecom immunity provisions might be, that what Congress did in purporting to give this immunity violated the Constitution in various ways. And if the court agrees with you and finds that that's the case, then it will be in essence as though these immunity provisions that Congress enacted are null and void, and the lawsuits will proceed as though they never happened. Is that fairly accurate?

HG That is correct. The process that's set up under the statute is to file a motion to dismiss, for the government to file a motion to dismiss the cases, and the consequence of the normal court process if the motion is denied is the cases go forward.

GG Right. Now, ordinarily, in the federal court, if this judge, this federal judge, Judge Walker, who has actually issued some rulings favorable to the plaintiffs and adverse to the defendants, and by all appearances seems to be asking some good questions about these immunity provisions -- if he decides in your favor, that these telecom immunity provisions are unconstitutional and that the case should proceed, ordinarily that decision is not appealable until the end of the case, and the case would go forward. Obviously, the appeals court could rule if it wanted to preliminarily and the judge could even certify it for appeal, but as a matter of course, if you win this motion what ought to happen is the lawsuits ought to proceed as though Congress never intervened at all. Is that right?

HG Well, in the normal course of events that would be correct, but the immunity statute itself provides for an interlocutory appeal, as of right.

GG Oh, it does.

HG It does.

GG I didn't know that. Okay, so then, it would be automatic, the government would have an automatic right to appeal to the Ninth Circuit, in the event that you win your motion. Okay.

So, the first ground that you have, that you just mentioned, which always has struck me as fairly impenetrable, is that some of your claims that you brought against the telecoms are based on statutes, statutory rights that have been enacted over the years that make it illegal for the telecoms to allow spying on their customers without warrants. But some of the claims that you've brought against the telecoms are constitutional in nature, and your argument is that the Congress doesn't have the power to bar citizens from going to federal court and suing over violations of their constitutional rights. What is the nature of your constitutional claims, and what does the government say about that objection that you've raised to these telecom immunity provisions?

HG The claims that we have brought are under the First Amendment and the Fourth Amendment. The Supreme Court in 1972 decided -- in that case that's referred to as Keith -- that domestic surveillance cannot be conducted without a warrant, that it violates both the Fourth and the First Amendments. And that is precisely what is at issue in this case.

What the government says in response to that, is simply that the law doesn't preclude us from suing the government for these claims, so we're not really denying [the plaintiffs] remedy at all. All we are told is that there is an alternative that remains viable and as a consequence, Congress does have the power to enact a statute which bars the claims against private parties for the same wrong the government committed. They are on, I would say, not very substantial ground in making that argument, but I think they are most vulnerable and clearly wrong on the question of the power of a court to enjoin a constitutional wrong.

There are two different kinds of claims, there are two different forms of relief that we've requested, under our theory of constitutional wrong-doing. One is a money claim for damages, and the other is an injunction against the telecom companies to prohibit them from engaging in this conduct in the future. The law that controls the issue of whether persons can be sued for damages, under the Constitution, is one in which the Supreme Court has, on occasion, looked at the viability of alternative structures to determine whether, in fact, such a claim can lie. We could debate at length who's right or who's wrong about that proposition, but there is no case law whatsoever supporting the government's theory that somehow that's a substitute for an injunction.

At the oral arguments, in front of Judge Walker, the telecoms most strenuously argued that an injunction against the government would suffice, and we don't need an injunction against the phone companies. But when you think about it historically, not only is there no case law to support that proposition -- that we can't pick a wrong-doer who is culpable under the law and get an injunction to ensure that that person cease and desist in their conduct -- but in addition to that, an injunction against the government is meaningless.

There's already a law against the government. FISA already dictates the exclusive vehicle by which the government could engage in obtaining electronic information of this nature, and the government violated it under either the theory of the Authorization for the Use of Military Force to engage in foreign conflict, or Article II of the Constitution, as they suggested in a well-publicized, 40-page white paper, trying to justify their terror screening program. The government, at least the Bush administration, believed that it could do this.

So an injunction is meaningless; they've already told us that neither the Congress through law-making nor a court in response to an assertion of Article II, can prevent the government from doing what it did in the past: violate FISA, violate the Stored Communications Act, violate the Constitution itself. So, we need an injunction against the telephone companies; a corporate general counsel doing due diligence certainly has to abide by injunctions that run directly against the phone company itself or the telecom itself. An injunction that would run against government requires general counsels to be aware of injunctions in other case running against third parties -- I really don't think that's a reasoned position that anybody would really accept in imposing corporate liability under our judicial form of government.

GG Is it true that if you were able to convince the court that even if you're not entitled to pursue your claim for monetary damages against the phone companies, that you are entitled to pursue your claim for injunctive relief. Meaning, the court orders the phone companies to cease and desist in this conduct in the future, that that would entail an adjudication from the court about whether laws were broken by the telecoms with regards to this activity?

HG Yes. I mean, there's little doubt. The judge has already ruled earlier in the case in the Hepton litigation, that Keith case that I described clearly established the law, and so I think that there's really little doubt. The phone companies would not have spent the money they did on the lobbying effort here, and in defense of this case, nor would the government head us off as the Bush administration started this absolutely extraordinary intervention by the Congress and President into the adjudication of constitutional claims, unless there was clear wrong-doing here.

We're really not in uncharted waters. The telecoms have been complicit in conspiracies with government to conduct electronic surveillance wrongfully in the past. That was the purpose of passing FISA. That is the wrong-doing that was reviewed in the Keith decision in 1972 as well as subsequent and related decisions.

And so, we need to have a judicial adjudication, a determination of the boundaries of this conduct. We need, as a society going forward, to ensure that there is a social compact, that citizens can be assured, that residents in America can be assured that only with judicial review under a stringent standard can the government seek to obtain the contents or the records of our communications.

GG Yeah, absolutely. Now, and of course, for your clients and the people that you're representing, the monetary damages for having their rights violated is important, but I think for citizens generally, at least as important, if not more so, is to be able to obtain an actual ruling from the court as to whether or not these activities were in fact illegal and even unconstitutional. And as you suggest, Judge Walker previously indicated not only that if what you're claiming was done was actually done, then not only was that illegal, that there's probably not even a good faith basis for having thought that it was legal.

And that leads me to my next question. Another argument that has been raised regards the propriety of having Congress intervene and purport to resolve, along with the executive, what is clearly in every sense of the word, a judicial dispute, a judicial controversy, which the Constitution in Article III assigns to the courts to resolve, not to Congress or the executive. And if you read through, for instance, the Senate Intelligence Committee report that recommended that telecom immunity be added to this law, it basically reads as though it were a court or even a jury making all kinds of findings in favor of the telecoms that would have had to have been made by either the judge or the jury as part of your telecom lawsuits. Findings about whether they did this in good faith, about whether they had a reasonable grounds for relying on what the president told them, and what the Justice Department told them -- all things that courts would have resolved in your case.

And so the argument is being made that there's something improper about having the Congress or the executive basically butt into this lawsuit, and basically just declare that there's a winner in this lawsuit, and the winner is the telecoms, and that's actually a role constitutionally assigned to the courts. Talk about that issue, that objection, as far as the proper separation of powers is concerned and what Congress did here.

HG Well, that is a primary argument, that is, Article I, Section 7 of the Constitution, which prohibits giving Congress, or Congress delegating to the executive the power to change the law. What's happened here is a mass violation of separation of powers.

You know, the Congress did not change the underlying statutory claims. So there are still prohibitions in FISA, there are still prohibitions in the Stored Communications Act, and Title III of the Omnibus Crime Act. All of those causes of action exist, but what they purported to do, is to create an affirmative defense, which allows the court, or compels the court, to dismiss all of those claims. And they've given that authority solely to the executive to decide when and how to invoke it.

I spoke earlier about the immunity provision power being invoked by the Attorney General by the filing of a certification in court. That certification is totally discretionary; the filling of the certification is totally discretionary. So, the laws exists on the books, unmodified, until that certification is filed, and the grounds on which that certification are filed have no guidance, have no principled basis in the law. It's simply up to the AG whether to do it or not. And I would add on that point, that the new Attorney General will have an opportunity to withdraw that certification and we hope that he does that.

In reference to your point, more specifically, about separation of powers violations, it also is a violation of separation of powers to direct the judiciary as to how to decide a case, without allowing an independent determination of the facts and the law. And that's what happened here. There is nothing in the certification as it's described - there are four different exceptions, which I want to get to in a moment, but there are four different bases, five different bases actually, under which the Attorney General can request certification. But the legitimacy of those assertions are unreviewable by the court.

For example, one of those certifications is that the telephone companies didn't do it. Now that's the crux of the lawsuit -- did you do this, or didn't you do this? Suddenly, instead of us allowing the court to do independent fact-finding and find by a preponderance of the evidence one way or the other whether the telephone companies engaged in omnibus spying, now, simply, the certification from the Attorney General, which would normally, as you know, simply engage the issue. Someone would file an answer in a lawsuit and say, no, we didn't do it, and then the lawsuit begins. You've joined the issue....

GG Then it would be up to the court to decide, then it's the court that would go about resolving the dispute.

HG Correct. Now, it is a, I would say, less than independent third party, who in fact was a conspiratorial force in the spying, who simply stands up and says: "I swear it didn't happen." And the standard of review by the court is whether or not there is substantial evidence, which is a highly deferential standard. If there's a mere scintilla of evidence then you are simply supposed to credit the certification and dismiss the case. So the entire case has been turned upside down. We are truly in Wonderland here, in trying to understand what has happened to the judicial process in America, when an involved, an interested party can simply say it didn't happen, and there's no independent review by the judiciary.

GG And not only that, but what they submit in order to fulfill the requirement, to certify that, and the evidence on which they're relying, can remain completely secret, not just from the public, but even from you and your client, so that your claims can be extinguished without your even having an opportunity to review the basis on which that has occurred. Is that basically true?

HG That's absolutely true. The certification is sealed and any supporting evidence is also allowed to be filed under seal. We are not allowed to see it, expressly. I mentioned the A5 exemptions, which is no, they didn't do it, because in fact, of all things, in this point in the litigation, the Attorney General had asserted A5 publicly. In the papers that the government had filed, they have basically said: "And by the way, as to the record seizure, that the information, the call signal information about what was sent to whom, when and where, that in addition to the record information, the content, that is the seizure of the actual content of communication, the contents seizure never happened in the way that you allege, and that it was an omnibus process that, as a practical matter, got everybody's communications." So they have made that public.

They always put the position in litigation that we can never tell you whether we did it or whether...

GG Right.

HG We didn't do it; that's why it's a state secret. But now they've said, they've chosen -- and it is the situational political ethics of the Bush administration, and the Attorney General that has allowed them to do this, to carry on before the judiciary for years -- that whether or not they did it is a secret. And then when it suited their political needs, to take this position affirmatively that the omnibus process did not in fact occur.

So, this is almost impossible for a lawyer, and I would suggest, beyond the grasp of the everyday citizen who took in a course in civics and learned the Constitution to understand how we could be operating under this guise of judicial process in America.

GG Yes, it's really unrecognizable, and of course it's worth underscoring here that it's not the Bush administration...

HG When you think about what happened with the Congress, it was the worst crucible in which this law and these important issues, including the substantive FISA amendment, could have been decided. It was an election year; the issue of national security has been the Achilles' heal of the Democratic Party. There were incredible machinations that occurred for months, going back and forth.

I appeared before a briefing of the Senate Judiciary subcommittee that was dealing with this issue, and it was an environment in which reason could not possibly prevail. I'm sure you're aware that the leadership in the Senate was opposed to this bill, and voted against the FISA amendment, primarily on the issue of immunity, but on some of the substantive issues as well. Leahy voted against it; Reed voted against it; Durbin voted against it; Feingold voted against it; Clinton voted against it. This is a bill that should have - Obama, President-elect Obama, then Senator Obama, voted first to strip the bill of the immunity provisions before he voted yes for the whole bill, which I believe was, he was politically, at least in his mind, politically required to do in view of his presidential run. So this was a terrible, terrible environment to decide these very critical issues and to give a pass to the telecoms...

GG And that was by design, of course. They picked August, knowing that the Democrats would respond to exactly those pressures that you just described.

HG Oh, unquestionably. And it is just the most -- I don't want to use the word corrupt -- but it was the most unfair process. After 30 years of creating an air of privacy, that the FISA fight was originally about, that the Stored Communications Act was about. That's what we learned in the 70s from the Church Commission. And all of that knowledge and collective judgment of our society and of our government was reflected in the social compact of three decades guaranteeing us privacy in electronic communication.

We have relied, we have depended on that, and the notion that it would not be through a metered and a reasoned process, that those laws would be modified or addressed. It's just unconscionable. And I believe it is incumbent -- I know that there is a heavy agenda on the congressional plate today, and on the president's plate -- but it is incumbent upon the next administration and the new Congress to look at what they did...

GG Let me interrupt there and let's talk about that for a minute, because, as you pointed out, correctly, now President-elect Obama repeatedly said that he vehemently opposed the telecom immunity provisions; in fact, opposed them to such a degree that he vowed in December of 2007, when the Senate was first considering it, that he would filibuster any bill, as he put it, that contained those provisions. And of course, come August he ended up reversing himself on that vow, and he didn't end up filibustering that bill that contained telecom immunity. He actually voted for cloture on the bill, even though, as you say, he voted for the amendments at first to strip immunity from the bill, and once that failed, he nonetheless voted for cloture of the bill -- the opposite of a filibuster -- and then voted for the bill itself.

But even after he did that he said that he continued to oppose the telecom immunity provisions, but just felt that, on balance, given the alternatives, that enacting this bill -- even with the bad telecom immunity provisions -- was the best possible course of action for national security and civil liberties, and a bunch of other buzz phrases that he threw around to justify what he had done. Yet, fast forward now, six months later, he no longer is facing an electorate and a Republican Party that can demagogue him in order to defeat him in an election; he already won the election. The Democrats have even further solidified their control over the Congress, and can essentially, are in a much stronger position.

So, given all the authority and the discretion that you alluded to earlier, that this bill vests in the Justice Department and the Attorney General to decide when to invoke these provisions; given that the Attorney General designate, Eric Holder, has actually been quite emphatic in condemning warrantless eavesdropping and the like in the past; and given that the Obama administration will be able to determine what its position is with regard to your arguments that these provisions were unconstitutional, talk about some of the things that the Obama administration could do, in order to reverse what a lot of people consider to be Obama's worst error of the year, which was supporting this bill, and to reverse what the Democratic Party did in vesting the telecom industry with this immunity.

HG Well, obviously the very first thing that the executive has within his authority to do, through his Attorney General, is to withdraw the certifications that have been filed in the lawsuit. It's not unheard of, of course, it's common to see, even in controversial and important social policy lawsuits, a new administration reverse course. We have seen that repeatedly. It would be appropriate. It would be I think more than fitting for the president to make good -- he knows in his mind that this is not a law that serves the public interest -- to have the Attorney General withdraw the certifications.

And in fact, Judge Walker himself, at the oral arguments on Tuesday, posed that question directly to the government's lawyer, and asked whether it wouldn't be prudent for the court to simply wait until there's a change in administration to ensure that in fact the new government, the new administration, wishes its Attorney General to stand by this certification that was made by Attorney General Mukasey. We hope that Attorney General Holder will do that, and that President-elect Obama will mandate that. That is the responsible and quite frankly the purging act that the administration can do, and we're hopeful that they look at the litigation, look at the position that they've been put in in this litigation, of attesting to the bona fides -- of representations of a prior administration that the telephone companies that blatantly unconstitutional acts were in fact lawful. That's just an unconscionable act to stand by that declaration. Whatever disparities and deviations from an acceptable consensus of law might be, I don't think that the Obama administration and the Holder Justice Department ought to taint itself with the prior interpretations by the Bush Justice Department in this lawsuit.

GG That's a really interesting point, and especially if Judge Walker goes out of his way to request from the new Justice Department for them to state their position with regard to whether they want to maintain these certifications or withdraw or submit new ones. It would actually be a really interesting test, an important test early for what direction they're going to take.

HG I think you're absolutely right, and not only that, I think that the answer from the government before Judge Walker is very telling. The government's lawyer counsels the court not to wait, because the law itself says that [the court] is supposed to, quote, "promptly" dismiss the action. He said that the reason that the court can find some comfort in doing that is it would be a very rare instance in which the government, any government, would not defend the constitutionality of congressional acts passed and signed by the president. And while that's true, as an abstract proposition, what's involved here is not simply the defense of the statute, as written. It is also reliance on the certifications that were filed, and that is not something that is commonly done by the Justice Department, depending on prior representations of fact by anybody.

I mean, these lawyers, the new Justice Department lawyers that come in and are responsible for this, must examine that proposition: why in the world would someone rely on the prior administration's representations made in the secret certifications without substantial review. I certainly, as a lawyer, would be very hesitant to rely on the prior lawyers' representations of fact.

GG Especially if it were the case that the prior lawyer is somebody whom you've repeatedly accused of flouting the law, of making all sorts of misrepresentations that are completely unreliable, and generally embracing a legal regime that's contrary to the Constitution, as is the case here with regard to the Obama administration and Eric Holder. That would make reliance, blind reliance, unreviewed reliance on those previous representations particularly strange, particularly indefensible, I think, than even the normal case.

Well, this is actually I think very interesting and I think encouraging that here we are six months later. There doesn't seem to be a resolution, a favorable resolution immediately around the corner, if there's one at all, which by itself is an achievement. And it sounds like there really will be an opportunity for people who have been so opposed to this legislation from the start to start engaging in some activism again, and raising the awareness around this issue, and putting some pressure on the Obama administration to do the right thing with regard to these lawsuits, given that he himself has repeatedly said, and continues to say that he opposes those telecom immunity provisions and we'll definitely continue to follow this, and hope to talk to again. I really appreciate your taking the time today. It's been very enlightening.

HG Thank you, Glenn.

[Transcript courtesy of Thames Valley Transcribe]


Glenn Greenwald

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