Deputy Legal Director of the ACLU.
As White House Press Secretary Robert Gibbs attacks progressives for comparing President Obama’s polices to George W. Bush’s, we look at a new ACLU report on how the Obama administration is permanently enshrining into law many of President Bush’s most controversial policies. The report, "Establishing a New Normal," warns: "There is a very real danger that the Obama administration will enshrine permanently within the law policies and practices that were widely considered extreme and unlawful during the Bush administration." [includes rush transcript]
JUAN GONZALEZ: White House Press Secretary Robert Gibbs is coming under increasing pressure for his attack on progressive critics of President Obama. In a recent interview with the newspaper The Hill, Gibbs blasted what he called, quote, "the professional left" that has likened some of Obama’s policies to those of former President George W. Bush. Gibbs said, quote, "These people ought to be drug tested. They will be satisfied when we have Canadian healthcare and when we’ve eliminated the Pentagon. That’s not reality. They wouldn’t be satisfied if Dennis Kucinich was president."
On Wednesday, Robert Gibbs was repeatedly questioned about the statement during the White House press briefing.
REPORTER: Your esteemed substitute yesterday, that you answered —- said that you answered honestly. Was this an honest, correct answer that you gave to those questions, when you -—
PRESS SECRETARY ROBERT GIBBS: I would not contradict my able substitute.
REPORTER: So this was an honest answer? You’re not backing away from it?
PRESS SECRETARY ROBERT GIBBS: I don’t think that — I think many of you all have heard frustration voiced in here and around, sure. I don’t — I doubt I said anything that you haven’t already heard.
REPORTER: This wasn’t a mistake? It was not something you said in error?
PRESS SECRETARY ROBERT GIBBS: It was borne out of frustration, but I don’t think it was — again, I think it was borne out of frustration.
REPORTER: But you stand by it? It’s private frustration that you expressed publicly and accurately?
PRESS SECRETARY ROBERT GIBBS: Well, public frustration that was written down publicly.
REPORTER: Do you want to name any names?
PRESS SECRETARY ROBERT GIBBS: I left my membership list back in the office.
REPORTER: Of the professional left?
REPORTER: Well, who wants to eliminate the Pentagon?
PRESS SECRETARY ROBERT GIBBS: I think that was — wasn’t that a proposal during the presidential campaign? Didn’t Dennis Kucinich — or maybe it was adding the Department of Peace.
REPORTER: Department of Peace.
REPORTER: But do you feel like there’s still substance to what you said, not necessarily — maybe not in the way you said it, but that there is too much of a demand or too much pressure perhaps from the left of the party and that —-
PRESS SECRETARY ROBERT GIBBS: I didn’t say there’s too much of a demand. I think -— or too much pressure. I think that a lot of what — a lot of the issues that Democrats throughout the party have worked — have worked to see happen have come to fruition as part of what this President has accomplished in the first seventeen months. Healthcare was an issue that was worked on for a hundred years. President after president after president discussed the importance of passing something comprehensive and historic that cut how much we were paying for healthcare, that extended the life, as we saw last week, of the Medicare trust fund. I think those are accomplishments that we all should be proud of, regardless of whether it encompasses a hundred percent of what we had wanted in the beginning.
REPORTER: And what about the rest that is outstanding? Gay rights, Guantánamo?
PRESS SECRETARY ROBERT GIBBS: I will say this: all things that the President made commitments on and is focused on doing.
AMY GOODMAN: White House Press Secretary Robert Gibbs defending the Obama administration’s record and his comments on the so-called professional left.
One organization that’s been particularly critical of some of President Obama’s policies has been the American Civil Liberties Union. In a new report called "Establishing a New Normal," the ACLU writes, quote, "On a range of issues including accountability for torture, detention of terrorism suspects, and use of lethal force against civilians, there is a very real danger that the Obama administration will enshrine permanently within the law policies and practices that were widely considered extreme and unlawful during the Bush administration."
Well, Jameel Jaffer joins us here in New York. He is the deputy legal director at the ACLU and one of the authors of the report.
Welcome to Democracy Now!
JAMEEL JAFFER: Thank you. Thanks for having me.
AMY GOODMAN: Your response to Robert Gibbs?
JAMEEL JAFFER: Well, you know, I think it’s disappointing when the Press Secretary responds to the thoughtful criticism in that way. I also think it — I think it debases political debate to respond in that way. And I think that the Press Secretary, as part of his job, is supposed to set a tone, and I don’t think that’s the right tone.
But our report is really — you know, it’s about the policies. We stand by the content of the report. And the same report that criticizes the President for — President Obama for adopting some of the Bush administration’s policies gives President Obama all kinds of credit for the things he’s done right. We tried to be fair in the report. We think the report is fair. And we think it’s important to give the administration credit when they get things right, and we did. And we think it’s important to hold the administration accountable when they get things wrong, and that’s what we’re trying to do.
JUAN GONZALEZ: What were some of those things that they did right that you’ve praised him for?
JAMEEL JAFFER: You know, in the very first days of the administration, the President announced that they would shut down the CIA’s black sites, that they would disavow torture. They committed to close Guantánamo. That hasn’t gone as everybody had hoped, but they committed to close Guantánamo, and I think everybody recognizes that they intended to do it. A few months into the administration, they released some of the torture memos that the Bush adminstration had kept secret on the basis of a national security pretext. And all of those decisions were the right decisions by the administration, and the administration deserves credit for having put the power and the prestige of the presidency behind those kinds of decisions.
Unfortunately, if you take a step back and you look more broadly at what the administration is doing on national security, in particular, what you see far too often is the administration endorsing policies that most of us recognize were extreme under the last administration. And, in fact, in some cases, you see this administration going even further than the last administration did. I don’t think it’s helpful to engage in this conversation of, is President Obama better or worse than President Bush? I think that you have to look at these things on a policy-by-policy basis, and that’s what we tried to do.
AMY GOODMAN: So, why don’t you list those areas where you are deeply concerned?
JAMEEL JAFFER: Sure, sure. So, some of the places we point to in the report include the endorsement of indefinite detention for some of the people who are now held at Guantánamo, the failure to hold accountable the people who endorsed torture. The last administration built a framework for torture, but this administration, we say in the report, is building a framework for impunity. Allowing those senior officials who endorsed torture to get away with it leaves torture on the table as a permissible policy option, if not for this president, then for the next president.
AMY GOODMAN: And who do you think should be held accountable?
JAMEEL JAFFER: Well, you know, these are decisions — the decision to endorse torture was a decision that was made at the highest levels of the Bush administration. We know that, for example, Secretary Rumsfeld signed interrogation orders for use at Guantánamo that included interrogation methods that violated the War Crimes Act. We know that lawyers in the Office of Legal Counsel wrote legal memos that were meant to authorize torture. So the problem we have now is that there is — you know, as you know, the Obama administration has initiated a criminal investigation, but the criminal investigation is very narrow. It examines only a handful of incidents in which contractors or CIA interrogators went beyond the authority that was invested in them. And nobody, as far as we know, is looking into the responsibility and the criminal liability of the people who endorsed torture and authorized it. And that seems indefensible to us.
JUAN GONZALEZ: And the administration’s repeated invoking of national security to maintain secrecy in terms of what happened with some of these torture cases?
JAMEEL JAFFER: Right, that’s — I mean, that’s happening in two different contexts. One is the Freedom of Information Act context. There are still a half a dozen lawsuits out there, including some that the ACLU has brought, that are an effort to create a complete public record of what took place under the last administration. Rather than cooperate with that effort, the administration, the Obama administration, is invoking national security to withhold, for example, allegations from prisoners who were held in CIA black sites about the treatment that they suffered in those black sites. And at this point, there is no legitimate national security justification for withholding that kind of material. So that’s one context.
And the other context is in the context of civil suits brought by survivors of the torture program. What you see is the administration invoking the same state secrets privilege that the last administration invoked to get those cases kicked out of court. So, on every front, you see the Obama administration, rather than providing the kind of accountability that it committed to provide, instead obstructing accountability.
JUAN GONZALEZ: What about the whole issue of the continued rise of the surveillance state and the government’s involvement in surveillance of civilians?
JAMEEL JAFFER: Yeah, I mean, I think that that’s another front where we had hoped to see this administration depart from the policies of the last administration. And it hasn’t happened, or at least hasn’t happened to the extent we had hoped. Some of what was going on under the last administration was going on in spite of federal law that prohibited it. That was true, for example, with the warrantless wiretapping program. And then Congress authorized the warrantless wiretapping that President Bush had authorized in violation of statute. So now you have a statute that authorizes precisely what President Bush was doing illegally between 2001 and 2006. But what we had hoped was that that statute would be tested, the constitutionality of that statute would be tested in the courts.
Rather than defend the statute on the merits or, even better, concede the unconstitutionality of the statute, the Obama administration has invoked the state secrets privilege and the standing doctrine to try to protect that statue from judicial review. And the standing argument they’re making is that the only people who can challenge this kind of surveillance are people who can prove that their own communications were acquired. And nobody can prove that their own communications were acquired, because the administration doesn’t — often for good reason, doesn’t disclose the names of its surveillance targets. So, to say that the only people who can challenge the statute are people who can show their communications were acquired under it is to say that the statute is immune from judicial review. And that’s the problem with the argument that the administration is making right now.
AMY GOODMAN: Jameel Jaffer, the issue of US policy of assassination? ACLU, Center for Constitutional Rights filed suit last week against the government around the government’s authorization of assassinating US citizens, al-Awlaki in Yemen.
JAMEEL JAFFER: That’s right. That’s right. So this is — you know, this targeted killing program, as it’s been called, is something that was introduced by the last administration, but expanded by this administration. And our concern is principally with the use of — with the carrying out of targeted killings outside the battlefield context. So it’s one thing to use drones, for example, in Afghanistan or Iraq, where the United States is actually at war. That’s subject to the laws of war, and there are limits, but that’s a different context than the use of drones to kill people who are located far from any battlefield. And a lot of us agree that the last administration’s argument for worldwide detention authority, the authority to detain people without charge or trial, was extreme and unlawful. This administration is claiming worldwide execution authority. Suspected terrorists are targeted for execution wherever they are in the world. And that’s — you know, there are many problems with that policy, but one of them is that inevitably we will get it wrong sometimes. And you only need to look to Guantánamo, for example, to see dozens and dozens of situations where we initially labeled somebody a terrorist and then, many years later, looked at the evidence and found that the evidence was nonexistent or just wrong. And it’s one thing to get it wrong in the context of detention. With detention, there’s always the possibility of appeal and the possibility eventually of release. But there is no appeal from a drone. And if you get it wrong with a drone, there is no recourse. So we have to be sure to get it right, and that’s part of the reason we’re so concerned about the use of these drones outside the battlefield context.
JUAN GONZALEZ: And you’re also critical of the Obama administration’s willingness to rely on military commissions, in terms of dealing with some of the suspected or alleged terrorists.
JAMEEL JAFFER: That’s right. I mean, with the military commissions, I mean, I’ll be honest with you, it’s not just a civil liberties objection. It’s also a very practical effectiveness objection. And it’s bewildering to us that the administration is going down this road. You have military commissions that have been totally unsuccessful in carrying out the tasks that they were told to carry out. Over the last few years, we’ve had four convictions. And in the same time period, you have had hundreds of convictions in the criminal courts here inside the United States. The courts here, the federal courts, are completely capable of handling complex terrorism cases. They’ve done it many, many times in the past. The prosecutors know the law. There is law. The judges know the law. Everybody knows the rules. And those rules have been tested over many, many years. In the military commissions, you have a system that’s been built essentially from scratch. And it’s no surprise that that system has, you know, to understate it, many, many kinks in it. And the result is that this system that the Obama administration is using has all kinds of human rights and civil liberties problems, but it also has a very basic effectiveness problem. And so, our objection to it is not just a civil liberties objection, but a kind of security objection, as well.
AMY GOODMAN: We only have twenty seconds, but opening arguments begin in Omar Khadr’s case today in Guantánamo. Picked up at fifteen?
JAMEEL JAFFER: Yeah, this is, in some ways, the most troubling of all of the cases that have been brought before the military commission. He was, as you say, picked up as a juvenile. He’s been held for a third of his life at Guantánamo. He’s being held on the basis of, among other things, evidence that was tortured out of him when he was fifteen years old. It’s a surprise that the Obama administration is starting with this case.
AMY GOODMAN: Gibbs is concerned about you comparing Obama with Bush. What about Bush Senior? Do you think the comment about the professional left is equivalent to President George H.W. Bush talking about card-carrying members of the ACLU?
JAMEEL JAFFER: Oh, I don’t know. I mean, I’m not even sure that we consider ourselves part of the left at the ACLU. You know, we consider ourselves having the Bill of Rights as our —
AMY GOODMAN: I think it’s what they consider you.
JAMEEL JAFFER: Right, right. You know, again, I just think it’s disappointing that the administration uses this kind of language to respond to thoughtful and considered criticism. I think it debases political discourse in this country. And part of the Press Secretary’s job is to make sure that political discourse is civil and informed.
AMY GOODMAN: Jameel Jaffer, I want to thank you very much for being with us.
JAMEEL JAFFER: Thank you.
AMY GOODMAN: His report on the new normal, "Establishing a New Normal: National Security, Civil Liberties, and Human Rights Under the Obama Administration," we’ll link to it at democracynow.org.