Anthony Romero, the executive director of the American Civil Liberties Union, joins us to discuss the U.S. killing of civilians in Iraq, psychologists involvement in interrogations, the Bush administration’s warrantless spying program, the case of John Walker Lindh and his new book, "In Defense of Our America: The Fight for Civil Liberties in the Age of Terror." [includes rush transcript]
The American Civil Liberties Union is making public nearly ten thousand pages of documents chronicling civilian casualties in Iraq and Afghanistan. The files include courts martial proceedings and military investigations regarding the possible wrongful death of civilians. The ACLU obtained the records from the Department of the Army after filing a Freedom of Information Act request over a year ago. But the Department of Defense has so far refused to comply with the FOIA request. The ACLU is now filing a lawsuit demanding the Pentagon release the documents.
Anthony Romero is the Executive Director of the ACLU. He has just come out with a new book — * "In Defense of Our America: The Fight for Civil Liberties in the Age of Terror."* The book chronicles scores of individual cases that Romero says mark the front lines of the fight for civil liberties in the post-9/11 United States. Anthony Romero joins us in the firehouse studio for the rest of the hour.
- Anthony Romero, executive director of the American Civil Liberties Union and author of the book, "In Defense of Our America: The Fight for Civil Liberties in the Age of Terror."
This is a rush transcript. Copy may not be in its final form.
AMY GOODMAN: We’re joined by American Civil Liberties Union Executive Director Anthony Romero to talk about a number of issues. But for just a minute — it’s great to have you with us — what about the Jena Six? The ACLU is involved.
ANTHONY ROMERO: Well, it clearly points to the continued discrimination and the whole climate of racism in post-Katrina, as we celebrate the anniversary of the Katrina events. And you see now also the difficulty of the persistence of race, especially in local communities. The idea that these young men, these boys in high school, are being treated also as adults, where they’re being sentenced for potential sentences in prisons, that goes so much further than anyone had ever contemplated. It also raises questions around crime and punishment, especially when you’re a poor minority. And so, those are still the most vexing questions that we contend with as a society.
AMY GOODMAN: We’re going to break, and then we’ll come back and talk about these questions here in this country and around the world, America’s effect on the world. Anthony Romero, our guest for the hour, Executive Director of the American Civil Liberties Union. We’ll be back in a minute.
AMY GOODMAN: Today, we are talking to the head of the American Civil Liberties Union, which is making public nearly 10,000 pages of documents chronicling civilian casualties in Iraq and Afghanistan. The files include courts-martial proceedings and military investigations regarding the possible wrongful death of civilians. The ACLU obtained the records from the Department of the Army after filing a Freedom of Information Act request over a year ago. But the Pentagon has so far refused to comply with the request. The ACLU is now filing a lawsuit demanding the Pentagon release the documents.
Anthony Romero is Executive Director of the ACLU, and he’s just written a new book. It’s called In Defense of Our America: The Fight for Civil Liberties in the Age of Terror. The book chronicles scores of individual cases that Romero says mark the frontlines of the fight for civil liberties in the post-9/11 United States. Anthony Romero is with us here for the hour. Welcome to Democracy Now!, again.
ANTHONY ROMERO: Good morning. Thank you. Thank you.
AMY GOODMAN: So let’s talk about these documents you just got and didn’t get.
ANTHONY ROMERO: Well, FOIA, for us, has been the only way to really pull out information from the government about the war in Iraq, about the war on terror, about their surveillance program. And we’ve used FOIA, the Freedom of Information Act, as democracy’s x-ray, as a way to cast a light into that black box that especially the Bush administration has tried to keep so closed and to wrangle loose some documents that help us understand better what’s going on behind the curtain, behind the scenes in the government.
These most recent documents are around civilian deaths in Iraq. We know the difficulty of covering the war in Iraq, especially the journalists who have had difficulty covering it because both of the potential for violence and also the potential for getting clearance from the government. We know that journalists have been blocked from taking photographs of the returning coffins coming back — of the soldiers coming back to the United States. And so, for us, when we read about especially the Haditha civilian — the massacre, we wanted to make sure that we can get as many documents that are within the government’s possession that show civilian deaths in Iraq. It would be a way to paint a fuller picture.
This is also in light of the fact that Mr. Cheney would make some statements that were really truly galling. When the press would ask him questions around civilian deaths, he said, "We don’t count the deaths of Iraqis." We were only obviously counting deaths of American soldiers is what he was meant to say.
And so, for us, the idea of wrangling loose some of these documents paint a very different picture of what’s going on. It shows soldiers are often very confused about how to conduct the war in Iraq, that are fearful for their lives, that there are poor policies put in place, especially around some of the checkpoints.
There is a series of stories, of vignettes, of how the civilians actually were killed, in their interface with soldiers. There’s one story, Amy, that is harrowing. There’s a story of a young man whose entire family — his mother, father, brother — were gunned down as they slept in their house. And then, behind the house an entire flock of sheep, fifteen sheep, were also all killed. So you think about the level of force that had to have been used in order to kill his family in the house, an entire flock of sheep behind them. It really raises questions around the use of excessive force, as they slept.
There’s another story about this — and the stories are what perhaps are most poignant about some of these documents, and government documents tend to be rather dry. And yet, in the investigative reports they go into some of the details. There was a young boy who was shot down because they thought his school satchel was a bomb. I believe he was about nine years old. I think his uncle got $500 of compensatory payment as a result of the young boy’s death.
There’s a story about two fishermen in the Tikrit River, who are there fishing, and they realize that there’s a helicopter overhead, and they realize that they perhaps are being seen as a potential threat. And so, the fisherman picks up a fish and starts waving, "Fish, fish, fish," and turns over to turn off the engine of the boat, and that’s when they shoot him down.
And all of these vignettes point to the fact that this is really a war in chaos, that the soldiers often don’t understand how to interact with the civilian population, and the civilian population doesn’t know how to — understand how to interact with the soldiers.
AMY GOODMAN: And you have Haditha 2005 — what was it, twenty-four people killed. Some young men in a car who had gotten out who were — I think they were college students.
ANTHONY ROMERO: Right.
AMY GOODMAN: And then you have the families, who are in their houses —
ANTHONY ROMERO: Right.
AMY GOODMAN: — and they’re gunned down, the men, the women, the children.
ANTHONY ROMERO: And we just read about some of the prosecutions on the Haditha massacre in fact falling apart in this last week or so. There were some press reports in the New York Times and elsewhere. And what it shows is that there is difficulty. There are obviously mistakes will be made in a war, and especially on the frontlines, but there’s also policy decisions that have not been made or have been made poorly. The fact that there’s so much confusion and so much violence at checkpoints, I think, should indicate to us that there’s got to be better training and better understanding about when military forces interact with civilians at checkpoints, that we need to be clear about what that interface should be like.
AMY GOODMAN: And deaths during interrogations?
ANTHONY ROMERO: Well, that’s the big FOIA litigation, Freedom of Information Act litigation, that we brought early on. We brought this lawsuit in October of 2003. This is even before any of the photographs came out to light about Abu Ghraib. And we just had a hunch. I mean, it was just your typical ACLU lawyer hunch that whenever you lock away prisoners in places that lawyers and family members and the press can’t get to, that bad things are likely to happen.
And so, we filed this very broad FOIA request asking the government to turn over any and all documents related to torture and abuse in any of the places where they have individuals detained. That would cover obviously Guantanamo. It would cover Bagram. It would cover questions later on in Iraq, facilities in Iraq.
And what we didn’t — initially there was great debate within the organization, Amy. Most — some of the most senior lawyers didn’t think they would get any information out of this lawsuit. It was a young lawyer who actually brought this suit, and a very senior lawyer was going to — teasing him and saying, "I’ll give you a dollar for every page that you get out of the government that’s worthwhile." Well, it turns out that the young lawyer was absolutely right. We got 100,000 pages of documents from the US government itself on the issue of torture and abuse of individuals in their custody.
There, you see that the argument, especially coming out of Rumsfeld and Cheney and Bush, that these are a couple of isolated incidents or that these are a couple of rogue soldiers or bad-apple soldiers just doesn’t really hold up. The idea that you have 100,000 pages of government documents in the government’s custody shows that this is a much more widespread, much more systemic than anyone had ever imagined.
And what it showed, in fact, was that there was great debate, there was a roiling debate between the Department of Defense, the CIA and the FBI on whether or not — the appropriateness of the interrogation techniques, on whether or not they were going too far. And some of the first documents we got were actually from the FBI itself, when they were showing — when they were providing guidance to their FBI personnel in Guantanamo, specifically in this one case, to stand down from any of the interrogations where they felt that the Department of Defense or the military was going too far. In fact, one FBI agent called the use of torture techniques — didn’t even put it in quotation marks — he literally in his email, he said, "The use of these torture techniques raise serious concerns" about the efficacy or the veracity of the information that they will ultimately glean.
And so, now, 100,000 pages later, we have a much fuller picture of the torture and abuse that has happened, especially at Abu Ghraib, Guantanamo, and in Bagram.
AMY GOODMAN: Let me ask you about this big debate in the American Psychological Association. Democracy Now! went to San Francisco for the four-day convention, their annual convention, and broadcast from there. And in the midst of that, you wrote that letter to Sharon Brehm, the president of the APA.
ANTHONY ROMERO: Right.
AMY GOODMAN: Explain what your letter said.
ANTHONY ROMERO: Well, we wanted to be very clear. We want to exhort them to encourage their membership in the American Psychological Association to take a stand that would say that their members are not to participate in any of the interrogations that may use torture or abusive techniques, what are these advanced coercive techniques. And we wanted to be very clear on two fronts, frankly, Amy.
One was we were calling to the morality, that the healers shouldn’t be part of the tormenters, as we talk about at the end of the letter, that the American Psychological Association has always thought of itself as helping people grapple with difficulty, mental illness or mental issues or psychological problems, and that they should not be a part of the tormenting forces of government. And so, we wanted to appeal to their ethical side.
We also wanted to be clear that they have a legal liability. And frankly, as a legal organization and as an organization that takes very seriously the need to hold people accountable, that if there are individuals, psychologists, doctors, who are involved in such techniques, they face potential civil, criminal liability.
AMY GOODMAN: We invited a spokesperson from the American Psychological Association on the program, but they did not respond to our repeated requests. At the center of the firestorm is Dr. Stephen Behnke, who is Director of Ethics at the APA. At the end of the group’s annual conference, Dr. Behnke addressed a few hundred APA members gathered at a town hall meeting. The meeting was held after the APA’s policymaking council voted to approve a resolution that prohibited involvement in interrogations that use at least fourteen specified methods, including sleep deprivation, sexual humiliation and mock executions. Dr. Behnke got on the stage to defend the resolution.
DR. STEPHEN BEHNKE: The passage I’d like to read says that, "Be it resolved the American Psychological Association affirms that there are no exceptional circumstances whatsoever, whether induced by a state of war or threat of war, internal political instability or any other public emergency that may be invoked as a justification for torture or cruel, inhuman or degrading treatment or punishment, including the invocation of laws, regulations and orders."
But I also want to be very clear that if you look at the language of the resolution — and again, I hope that everyone reads it — what it says is that, that this unequivocal condemnation includes all techniques defined as — and then is says, "This unequivocal condemnation includes, but is by no means limited to," so that there are specific techniques identified, but that is not a closed set — very explicitly not a closed set.
One final point about the resolution. Again, I just encourage people to read it. But the Ethics Committee has been directed by counsel. It says: "Be it resolved that the APA Ethics Committee shall proceed forthwith in writing its casebook and commentary that shall set forth guidelines for psychology that are consistent with international human rights instruments." And then it actually specifies what those instruments are. The first is Common Article 3 of the Geneva Conventions.
AMY GOODMAN: That was Stephen Behnke. Stephen Behnke, ethics spokesperson for the American Psychological Association. Your response, ACLU Executive Director Anthony Romero?
ANTHONY ROMERO: Well, you know, I think one of the things that’s quite disconcerting about the debate — and I’d want to understand the study better, the resolution that he just read — is that part of what’s going on both within the government and it seems also within the American Psychological Association is this effort to redefine what is torture and to provide some wiggle room at the grey areas. To be very clear, there are certain techniques that were completely off the books before 9/11, that there were techniques that were not ever to be authorized. Rumsfeld and others within the military expanded the list of interrogation techniques, ultimately had to retract some of them because they had gone too far. And yet, you find an effort right now to redefine what does in fact constitute torture, what constitutes abuse, what is cruel and humiliating treatment. And I think part of what we’ve got to be very clear about and I think the American Psychological Association needs to grapple with is what is its role.
AMY GOODMAN: The American Medical Association, the American Psychiatric Association have said that their members cannot participate at all.
ANTHONY ROMERO: Categorically, yes, yes.
AMY GOODMAN: They rejected that possibility of a moratorium on psychologist involvement.
ANTHONY ROMERO: Correct.
AMY GOODMAN: And earlier in the day, before that town hall meeting, which was mainly just many angry psychologists from around the country decrying the decision of the APA policymaking council —
ANTHONY ROMERO: Right.
AMY GOODMAN: — but during the debate of the policymaking council, some of the top military brass was in attendance, perhaps none more so than Colonel Larry James. He was flown in from Cuba, from Guantanamo, where he served as the chief psychologist for the joint intelligence group at Guantanamo Bay. He was also the first psychologist at the Abu Ghraib prison in Iraq. An APA council representative himself, Colonel James addressed the council members on Sunday as they were preparing to vote on a proposed resolution that would have prohibited psychologists from participating in interrogations at Guantanamo and other US detention centers.
COL. LARRY JAMES: This is I my second tour at Gitmo, Cuba. I was also the first psychologist at Abu Ghraib. I’m going to repeat what I said earlier. If we remove psychologists from these facilities, people are going to die. If we remove psychologists from these facilities, people are going to get hurt.
One other thing I want to add. We’ve got young twenty-seven-, twenty-eight-, twenty-nine-year-old psychologists on the battlefield right now. If you support this amendment, those young psychologists are going to feel as though we’ve abandoned them. And they need our support right now. Thank you very much.
AMY GOODMAN: Soon after Colonel Larry James spoke, he was confronted by an APA member in the audience. Laurie Wagner is a psychologist and a member of the APA’s Psychoanalysis Division. She took Colonel James to task.
LAURIE WAGNER: I heard Colonel James say that if psychologists are not present in Guantanamo and other settings similar to it, that innocent lives will be lost, and I asked him what he meant by that, and he said, "The lives of detainees." And I would submit that if psychologists have to be there in order to keep detainees from being killed, that those conditions are so horrendous that the only moral and ethical thing to do is to protest it by leaving it.
AMY GOODMAN: Anthony Romero?
ANTHONY ROMERO: We have to go back to a categorical rejection of the torture and abuse and the use of techniques that humiliate detainees. There is no need to argue about the niceties of these definitions. There is no need to talk about whether waterboarding is or is not torture, whether mock executions are or are not torture. We need to go back to a point, Amy, where we as a nation ascribe to some core values, that we do not allow people to be poorly treated in our custody.
And I think the questions about — if individuals are dying in Guantanamo, for the gentleman who spoke from the Guantanamo base, it’s because many of them are trying to commit suicide, because they have no hope, because we’ve eliminated the right of habeas corpus. They have no access to the judicial system, no access to their family members, where they’re kind of detained — I’ve been to Guantanamo, and I’ve been for the first round of military commission proceedings. It is not what the government describes it to be. No matter how good a face they try to put on the detention center at Guantanamo in the military commission proceedings, it is a travesty. It does not uphold to the best of American values.
And we have to go back to a point where we look at ourselves in the mirror as Americans and say, "Who are we as a people? What do we stand for?" We stand for some core values, the right to habeas corpus, the right to be treated well, the right to be treated humanely, to equal protection under the law, to right to due process. And that’s often what our government officials forget to remind themselves of in their jobs.
AMY GOODMAN: We’re talking to Anthony Romero, Executive Director of the American Civil Liberties Union. His book is In Defense of Our America: The Fight for Civil Liberties in the Age of Terror. He wrote it with Dina Temple-Raston. We’ll be back with him in a minute.
AMY GOODMAN: Our guest Anthony Romero, Executive Director of the American Civil Liberties Union, has just written a book, In Defense of Our America. You talk about John Walker Lindh in this book. Some people may have already forgotten who he is, a young man who’s now in jail.
ANTHONY ROMERO: Right, known as "the American Taliban." That’s how we got to know him in the early part of 2001. And I thought it was important, as we wrote this book about stories — these are stories of ordinary people — to bring to life some of the major principles around civil liberties. And the idea is to root it in a personal narrative that’s like a novel. And what better character or what better personage to focus on than John Walker Lindh?
He was apprehended on the battlefield in December of 2001. America was still reeling from the effects of the World Trade Center attack and the attacks on the Pentagon. It’s just been three months earlier. We were just beginning the war in Afghanistan. And here you have a young twenty-some-odd-year-old American who is picked up on the battlefield in Afghanistan. And most Americans just scratched their heads initially and said, "What was an American from Northern California, brought up in a Roman Catholic family, what was he doing fighting for the Taliban?"
And in the book, what I tried to do with my colleague Dina Temple-Raston from NPR to write the book was to provide kind of the answers to those basic questions, the questions my mom wanted to know. What was he doing there? How did he end up there? What was he trying to accomplish? Why did his parents let him go? I mean, that’s the question I think that most parents would ask.
And so we told the story from the perspective of his mom and dad. His mom and dad actually were enormously generous, Marilyn and Frank, spent a great deal of time with me and with my co-author, giving us access to the family narrative in a way they hadn’t before. They had been very reticent to speak publicly in the press. I think much of it had to do with the shock of the media attention that happened after John was apprehended.
And the story about why he was there is still one that — the book does not provide an apology or excuses or rationalization. It was a colossal mistake for John Walker Lindh to be fighting on the battlefield for the Taliban. He was a young man who found Islam as a way to find purpose in life. He was struggling as a young adolescent with a stomach ailment. He was home-schooled. He was very reclusive. He was struggling to be a young man growing into a young man’s body. And he found — he went to — it’s ironic. He went to go see the movie Malcolm X, Spike Lee’s movie, and something sparked in him. He began to develop an interest in Islam. And his teachers began to assign him papers on Islam. And his parents were a little bit perplexed — they were Roman Catholic — but they were glad that their son had found some purpose in life.
And later on, as he developed an interest in Islam and he wanted to study Arabic, and he had fully converted by the age of eighteen, he went and talked with his mom and said, "I’d like to study Arabic at a place where I can chant the Koran and be much more of a devout Muslim." And his mom and he did the research to figure out what was the best language center, and they decided on a place in Yemen, and off he went.
And that’s where he made a series of wrong turns. I mean, one of the language centers, he moved from one school to another. He got involved with a much more, let’s say, ideological group of students, who you can imagine — they have this white American blond kid in the middle of their midst, and they keep testing his mettle, saying, "Well, if you really want to be a Muslim brother, you’ve got to go fight the jihad." And so this young man decided, in a way that I think is still an enormous mistake, to go fight in the war in Afghanistan and to fight the jihad. We have to remember also the Taliban has this also ambivalent relationship with the American government throughout its years. At the same time that John Walker Lindh was debating whether or not to go fight for the Taliban, we, the American people, were providing $43 million of subsidy, of direct taxpayer money for opium eradication to the Taliban government.
AMY GOODMAN: In fact, Taliban leaders came to the United States and to Texas.
ANTHONY ROMERO: Texas, and visited with Mr. Bush. We have great pictures of Mr. Bush. And later on, we made a decision, as a foreign policy decision, that they were not allies that we wanted, and we went to war. And so, John Walker Lindh got picked up in all this. And so, the story of telling that story is not to excuse it by any way, but it’s to provide a context.
The civil liberties issues happened after John Walker Lindh is picked up by the Americans. And here’s where, Amy, where I think it’s most relevant from a civil liberties perspective is, some of the key questions — in December of 2001, his parents, when they find out through an MSNBC website that their son is on the frontlines in Afghanistan and picked up by the Americans, they hired the best lawyer money can buy. They hired Jim Brosnahan. He’s a great criminal defense lawyer. If I ever got arrested walking out of your studio because of all the heresy and the anti-government statements I’ve been making on the show, I would call Jim. He’s an amazing criminal defense lawyer. But from day one, they hired him. And Jim would not have access to his client, even after repeated requests both in writing and verbally to the Defense Department, to the FBI and elsewhere, to have access to his client. It would be too little, too late. John would have already had — would have made statements that would later come back and haunt him in a court of law. And, in fact, at one point there is an exchange that we were able to unearth and show in the book of an FBI ethics lawyer that was cautioning people in Afghanistan not to interrogate John Walker Lindh without presence of his counsel, and yet they went ahead and did it anyway. So that was one: the access to counsel.
Two, John Walker Lindh was tortured, and we should be very clear about it. He’s not able to say so, because that was part of the agreement in his plea agreement with the government. He had to be able — he had to say that he would not assert around torture or abuse in his detention center while in US custody. But they retained a bullet in his right thigh for almost two weeks while they interrogated him, even though he had access to an Army field surgeon who could readily have removed the bullet. You remember the pictures — some of the pictures are in the book in the center of the book. Remember the pictures of him being strapped to a gurney completely naked with the duct tape across his body? He was kept in a metal container outside for two days.
You have questions raised about also humiliating photographs. There’s one of the things that we were able to unearth in the ACLU litigation using FOIA again — it’s democracy’s x-ray, as I was saying before — is that there was a series of more than a hundred pages of government investigation reports on a series of photographs and videos taken of John Walker Lindh, because there was a photograph where they had him again blindfolded, and they had an expletive written on his blindfold, and all the soldiers posing behind him with their thumbs up like it’s some military souvenir. And the photograph, when the higher-ups found out about it, destroyed it and destroyed their video. And then someone in Washington got very concerned about the humiliating photographs and then required a series of investigations of the photographs around John Walker Lindh. And we at the ACLU were able to get those investigative reports.
Now, think about those three points: lack of access to counsel would later be in the questions that would be raised at Guantanamo; the torture and abuse of John Walker Lindh, with the bullet in his side and the environmental manipulation, sleep deprivation, would come back again to raise its head in Abu Ghraib and Guantanamo; the humiliating photographs. Those were harbingers of things to come. Those would remind us later on of the questions around Lynndie England. You know, the same pose, soldiers posing with detainees as a way to humiliate them. And had we stopped and asked the questions in December of 2001 about the access of counsel, about the torture and abuse, about the humiliating photographs, had we, the American people and the American leadership, been willing to ask the tough questions at that time, maybe we wouldn’t have been so quick to make the mistakes we later on made in 2003, 2004 and still make today.
AMY GOODMAN: John Walker Lindh, now, twenty years in jail. Others have been freed that have raised questions, his parents very afraid that this was such a charged climate — in fact, wasn’t his first — one of his first hearings was on September 11th, the anniversary.
ANTHONY ROMERO: Yeah. Well, they were planning to start the trial, actually the full trial of John Walker Lindh, on September 11. John Ashcroft was leading the charge of using John Walker Lindh as a poster boy for the war on terror.
And ultimately, what’s ironic, that most people don’t realize and we point out in the book, is the fact that John Walker Lindh is now serving twenty years in a super-max prison in Colorado, I believe. He ultimately has only been — he only pled guilty to charges that have nothing to do with terrorism at all. One is because he traveled to a country that was on an embargoed list. There was a law that was amended and signed into law by President Clinton, the same law that would ban me from going right now to Iraq or to Cuba or to elsewhere. And one is for being a soldier of a foreign army. But all the other charges that had to do with terrorism, about providing material support to a terrorist group or the death of Mr. Spann, which was the first CIA agent to have been killed in the war in Afghanistan, all of those other charges were dropped.
And then you compare that sentence of John Walker Lindh, serving twenty years, and you compare that to the Australian Taliban, the fellow, Mr. Hicks, who has just been — who was held in Guantanamo, and they tried to prosecute him through the military commission proceedings and have failed miserably. Mr. Hicks will now serve nine months in Australia. And perhaps the most galling of them is Mr. Hamdi, the Saudi Arabian —- American citizen of Saudi descent, the case that went all the way up to the Supreme Court. And Mr. Hamdi is scot-free in Saudi Arabia. Ultimately the government just stripped him of his citizenship. I tried to interview Mr. Hamdi on the phone. He’s very busy with his family and his personal life. He asked me for money for the interview. I declined, of course. And so, you have these three very mixed sentences of John Walker Lindh, on the one hand, Mr. Hamdi, who’s living his life -—
AMY GOODMAN: They were afraid he would get the death penalty.
ANTHONY ROMERO: They were afraid he was going to get the death penalty.
AMY GOODMAN: I wanted to switch gears, to spying, something the ACLU has been challenging now for years. Talk about the ACLU’s involvement, the challenging, why you sued, even on behalf of your own attorneys.
ANTHONY ROMERO: I think one of the things we’re most concerned about is we don’t know the full extent of the domestic surveillance that’s being conducted on people who have done or are doing nothing wrong. And so, when we first heard about the NSA, the National Security Agency’s spying program and the effort to track the communications of Americans, where the President completely bypassed Congress — here we are debating the niceties of the PATRIOT Act and whether or not there ought to be changes to the law, and the men and women in Congress are debating what changes to the laws were necessary, and the President basically said to the men and women in Congress, "Boys and girls, go play with your marbles. I’m going to authorize this program in secret without your authorization." He completely bypasses the federal court system, the Foreign Intelligence Surveillance Court, set up as of 1978 as a way to provide intelligence.
AMY GOODMAN: Often seen as a rubber stamp on almost every request.
ANTHONY ROMERO: But it’s some form of a check and balance. It was ironic, because, Amy, for so many years we were arguing that it was an insufficient check, and here we are arguing for the need to retain even that anemic check in place. And so we brought a suit, when we first found out about the NSA program.
We brought the suit on behalf of the ACLU and a number of the lawyers at the ACLU, also on behalf of Josh Dratel, who represents Mr. Hicks at Guantanamo, also on behalf of some of the academics and journalists. We have Christopher Hitchens, who’s one of our clients in the lawsuit; Barney Rubin, who is the foremost expert on the Taliban, someone who is a professor at NYU, has been to Afghanistan thirty-five, forty some-odd times, talks regularly with the leadership of the Taliban, has known them for decades; the types of individuals that are likely to be the subject of surveillance by the US government.
In each of these cases we have identified individuals who have a well-founded fear and whose work and whose circumstances would bring them into contact with the types of people the government would want be listening to. And so, we brought the suit.
Most of your viewers and your listeners would know that we won at the initial level, at the federal district court level, and then we lost at the court of appeals level on these questions around standing, which is a legal nicety, where — it’s almost Orwellian in this case, because you have to be able to prove that you are the subject of surveillance to be able to demonstrate that you have the standing to challenge its constitutionality. Now, of course, only the government knows who is the subject of the surveillance, and we can only assert what we believe is a well-founded fear and some concrete harm that’s been done in terms of a chilling effect, in terms of effecting the inability for, for instance, our lawyers to confer openly with their clients or their family members. So we are very reluctant to now have conversations that we are not sure can be maintained in terms of attorney-client privilege.
AMY GOODMAN: And the latest legislation, just before Congress went out on session, that the Democrats joined with the Republicans in affirming and passing around spying?
ANTHONY ROMERO: It’s outrageous. One word, it’s outrageous. And I rarely use that word, because it’s such hyperbola. And the Democrats didn’t join, the Democrats led, because — let’s be very clear. The House leader and the Senate leader, Ms. Pelosi and Mr. Reid, could have stopped that legislation from happening. They were the ones who handled the calendar of Congress. As the party in power, they could have stopped it from being enacted. And let’s be very clear that it’s not just joining or being complicit. It’s leading, of sorts, I guess. And further, this FISA fix and this change further even more greatly guts the Foreign Intelligence Surveillance Court and the Foreign Intelligence Surveillance Act.
AMY GOODMAN: And the telecommunications companies? Exonerates them? What about these companies working with the government in providing access to the phones?
ANTHONY ROMERO: That’s one of the major battles, because right now there’s a strong effort to provide immunity to the companies and to hold them completely harm-free, because of the lawsuits that we and others have filed against AT&T and Verizon, against some of the international internet providers, because clearly they have violated some of their own consumer privacy policies. And they can be opened up to consumer litigation. There can be civil damages. There are certainly questions around some of the criminal prosecutions that are underway. And for us, the whole question around the Foreign Intelligence Surveillance Act and the fact that this recent law was pushed through again with very little debate, very little understanding about what in fact was necessary — one of the things we did recently in the last week or so, we went to — one of the arguments that was posited by the government as necessary for this change in the law was a ruling from the Foreign Intelligence Surveillance Court that they said impeded their ability to conduct good international surveillance. So we went to the court and actually filed a brief that we first filed, and the government just responded just last Friday. We have another two weeks to reply to the government. But we say if this court ruling was so critical to the need to amend the law, at least the American people ought to at least see parts of that ruling.
AMY GOODMAN: We only have thirty seconds. Put today’s time, what we’re going through now, in context. How serious is it?
ANTHONY ROMERO: I think it’s as serious as what we saw in the 1940s. I think it’s even greater than in the '50s. It's a war without end. The difficulty we have is that we will never know the full extent to which our civil liberties have been abridged. And in a war that won’t come to a public decisive end, I worry that this can change the whole character of how we live and experience our civil rights and civil liberties for generations to come.
AMY GOODMAN: Anthony Romero, I want to thank you very much for being with us, Executive Director of the American Civil Liberties Union and co-author of the book, In Defense of our America: The Fight for Civil Liberties in an Age of Terror.