Part 2 of our conversation with Jameel Jaffer, director of the Knight First Amendment Institute at Columbia University. He was previously the deputy legal director at the ACLU.
AMY GOODMAN: This is Democracy Now!, democracynow.org, The War and Peace Report. I’m Amy Goodman. Our guest is Jameel Jaffer, founding director of the Knight First Amendment Institute at Columbia University. He was previously the deputy legal director at the ACLU and has just published a new book that’s titled The Drone Memos: Targeted Killing, Secrecy, and the Law.
I’d like to talk about the First Amendment and Donald Trump. In Part 1 of our conversation, you were wrapping up by talking about the banning of journalists at his news conferences when he was running for president. Someone asked him, “Is this what it would look like under a Trump presidency?” And he said yes.
JAMEEL JAFFER: Mm-hmm, mm-hmm. I mean, I hope that turns out not to be true. You know, I—as you say, now I have a new job. I am directing this new institute at Columbia called the Knight First Amendment Institute. And, you know, many of the issues I think we’ll address pre-existed the Trump administration and will likely exist long after Trump is gone, and they have to do with the fact that most of the Supreme Court’s precedents, First Amendment precedents, were set in the 1960s and ’70s, and we—that was long before the emergence of social media, long before the rise of technology giants like Apple and Google, you know, long before the emergence of transnational transparency activists like Julian Assange. So there are all sorts of questions now that emerge because we have analog-era precedents but digital-era problems. So, all of that, I think, pre-exists—pre-existed the election of Donald Trump and will exist long after.
AMY GOODMAN: It will be interesting to see what Donald Trump’s attitude to Julian Assange is right now—
JAMEEL JAFFER: Yeah.
AMY GOODMAN: —given the WikiLeaks dump of Hillary Clinton emails—
JAMEEL JAFFER: I think—yeah, I think that’s right.
AMY GOODMAN: —which many attributed to helping defeat her.
JAMEEL JAFFER: I think that’s right. I think that’s right. But then, there are also these questions that have arisen because of the statements that Trump has made during the campaign, and then over the last couple weeks, as well. You know, he has shown a kind of hostility to journalism and to—and, you know, I think to free speech, as well, reflected by the statement that Mike Pompeo made with respect to Julian Assange [sic]. So, I think there will be a set of—a set of issues—
AMY GOODMAN: That was Edward Snowden.
JAMEEL JAFFER: Sorry, Edward Snowden, right. There will be a set of issues that arise now, because of the Trump administration, that relate to the freedom of speech and the freedom of the press. And, you know, it turns out that the creation of this new institute at Columbia was probably well timed.
AMY GOODMAN: Speaking of controversies around the First Amendment, Donald Trump sparked controversy when he made two unconstitutional proposals in a single tweet—this was in November—writing, “Nobody should be allowed to burn the American flag. If they do, there must be consequences–perhaps loss of citizenship or year in jail!” he said. The Supreme Court has ruled twice that flag burning is protected under the First Amendment.
JAMEEL JAFFER: Right.
AMY GOODMAN: It ruled also that it’s unconstitutional to strip people of citizenship for most crimes, including desertion.
JAMEEL JAFFER: Yeah. I mean, you know, I’m not the first to have noticed that the tweets don’t seem to reflect, you know, a lot of legal reasoning, right? So, again, there is a question of how that’s going to translate into policy. And to be honest, I’m less worried about flag burning, because, as you say, the Supreme Court has already addressed this question, than I am about questions like secrecy and surveillance. Trump has said that he wants to expand surveillance of Muslim communities. He’s already made clear that he wants to—you already played a clip that reflects this—he wants to be more secretive about national security policy. I also worry about what he will do with respect to the encryption debate. So there are a lot of—
AMY GOODMAN: Explain that.
JAMEEL JAFFER: Well, so, there was an effort, under the Obama administration, led by the FBI, I think, to require tech companies to build backdoors into their encryption technology so that the government could get access to communications when it wanted access to those communications. One problem with providing—with requiring those kinds of backdoors is that it creates insecurity for everybody. You can’t create a backdoor that’s available only to the government and only when the government has a legitimate reason to access communications. Once you create the backdoor, you’ve created an entry point that’s available to a lot of other actors, as well, not just the U.S. government, but other governments, and not just governments, but nonstate actors, as well. So—
AMY GOODMAN: I mean, it looks like other governments have—it may be, if the allegations about Russia are true—have an easier time getting access to people’s information than the U.S. government does.
JAMEEL JAFFER: Well, maybe that’s true. I don’t know. But I do think, though, that there are a whole slew of technology-related questions that President Trump and his administration will have to weigh in on. And, you know, again, I’m hoping that the tone of the tweets over the last few months will not translate into policy. If it does, then I think there will be some very serious constitutional fights over those issues.
AMY GOODMAN: Talk about Section 702 of FISA, of the Foreign Intelligence Surveillance Act.
JAMEEL JAFFER: Yeah, so this is one of the—one of the issues that I think the Trump administration will end up weighing in on very quickly, because this statute, which is the statute that was enacted by Congress in 2008 to ratify the Bush administration’s warrantless wiretapping program—this statute is set to expire in December of 2017. So, over the next 12 months, there will be this public debate and a congressional debate. And there are several cases, as well, in the courts challenging the constitutionality of this statute. But over the next 12 months, there will be this debate about whether that statute should be reauthorized. And, you know, this is an area where surveillance comes up very quickly against the First Amendment. The surveillance is so broad that it will inevitably have a chilling effect on the willingness of individuals to engage in speech that’s protected by the First Amendment, to engage in association that’s protected by the First Amendment. So, there is a complicated set of constitutional questions about the proper limits on government surveillance power. And that set of questions is presented in these court cases and will also be presented in this congressional debate over the next 12 months.
AMY GOODMAN: Donald Trump is not president yet. Earlier this month, President Obama used a 1953 law to indefinitely block offshore oil drilling in the Arctic and the Atlantic. Are there similar steps that President Obama could take when it comes to national security or safeguarding abuses of people’s First Amendment?
JAMEEL JAFFER: Yeah, I mean, I do think there are some. You know, at this point, I think it’s unrealistic to think that we will have legislation—that President Obama could support legislation that would end up cabining some of these powers. It’s too—it’s probably too late for that. But there are things that President Obama can do on his own. I think transparency is the most obvious of those possibilities. So, on the drone campaign specifically, the administration has released some information about strikes that took place outside conventional battlefields, but the information it’s released was aggregate information at a high level of abstraction. It could release more granular information about individual strikes, the time those strikes took place, the number of civilian casualties. And many human rights groups have called on the administration to do that.
The other thing that the administration could do, and I think it could do this not just in the context of the drone campaign, but on surveillance issues, as well, is initiate a serious study of the effectiveness of these programs, because there is a lot of—there are a lot of claims being made about the effectiveness of these kinds of programs, that aren’t backed up by any evidence. And the administration has never—the U.S. government has never conducted a serious study of the effectiveness of the drone campaign or the strategic effectiveness of the drone campaign. And the same is true of Section 702, the surveillance statute you brought up earlier. I think that the public debate would benefit from a more serious study of the effectiveness of that policy, that took into account the possibility of new safeguards. So, if you impose new procedural safeguards on this kind of surveillance, what effect, if any, would that have on the effectiveness of the government’s policies? That question is one that hasn’t really been addressed.
AMY GOODMAN: This issue of transparency and the importance of public access to government records, how does that link to the First Amendment? Does it?
JAMEEL JAFFER: I think it’s a core part of the First Amendment. You know, there is no public debate that is worth having that isn’t based on information. So you need information in the public sphere in order to allow people to make decisions about the effectiveness and wisdom and lawfulness of government policy. And the Supreme Court has already recognized that, at least in some circumstances, the First Amendment provides a right of access, to the public and to the press, a right of access to judicial proceedings, a right of access to certain judicial documents. So there are questions at the margin about how far that right of access extends. And then there are also questions, which you and I have spoken about many times, relating to the Freedom of Information Act and the application of that act to the government’s policies, especially in the national security sphere. But I think that a core concern of the First Amendment, and certainly a core concern of the Knight Institute, that I now run, will be government transparency and providing more teeth to the Freedom of Information Act and to the First Amendment in that context.
AMY GOODMAN: How did the Obama administration use state secrets to derail challenges to current policies, particularly around, for example, what your book is about, drones?
JAMEEL JAFFER: Yeah, so, in—with respect to targeted killing, surveillance, interrogation policy, rendition, the Bush administration had created, you know, a pattern of invoking state secrets to derail civil litigation, right? So when victims of these policies, or even people who just wanted to challenge the lawfulness of the policies, came to court, the answer that the Bush administration provided was these cases are too sensitive to be litigated. And the Obama administration took up those same arguments, made the same arguments in exactly the same way in the surveillance cases, in the drone cases. Now, there is one case that’s in the courts now involving the two psychologists who oversaw the CIA torture program. This is a case that the ACLU brought on behalf of several people who were held in CIA black sites. They are suing the people who oversaw their torture. And the Obama administration has not invoked the state secrets privilege in that context. Now, this is a case against private parties, the psychologists, so the administration, the government, is not a party, but the government could have tried to derail the case, and it hasn’t. So I take that as a promising sign. I think that the administration was right not to invoke the privilege in that context. And now, for the first time, we will have a court address the lawfulness of these policies.
AMY GOODMAN: On that issue of the use of torture, Donald Trump said, “Torture works. OK, folks? Believe me, it works. OK? And waterboarding is your minor form, but we should go much stronger than waterboarding.”
JAMEEL JAFFER: Mm-hmm.
AMY GOODMAN: Trump said.
JAMEEL JAFFER: Yeah, I mean, I think this shows a kind of indifference—maybe that’s too generous, but an indifference to the facts. You know, there is now—there is now a very comprehensive report written by the Senate Intelligence Committee about the purported effectiveness of these policies. The record is clear that the policies were not effective in the sense that Donald Trump says that they were. You know, the vast majority of people with interrogation experience will say and have said that torture doesn’t work. Beyond that, torture is—torture is illegal, under both domestic law and international law. I think when it comes to—when it comes to actually crafting policy, Trump is going to have a hard time finding interrogators who will implement the policy that he describes.
AMY GOODMAN: And then you have Mike Pompeo, again, who Donald Trump has chosen to head the CIA, if he’s approved. He objected to the 2014 Senate torture report, saying, “These men and women are not torturers, they are patriots. The programs being used were within the law, within the Constitution.”
JAMEEL JAFFER: Mm-hmm. Yeah, I mean, I think that that is—that’s fantastical. I mean, I don’t think there’s any way to make a serious argument that the policies that were adopted by the Bush administration relating to interrogation were consistent with the Constitution or consistent with the Convention Against Torture. You know, the memos that justified those policies have been withdrawn. Bush administration officials have characterized those memos as sloppily drafted and indefensible. I don’t think it will be easy for a Trump administration to find lawyers who will put those kinds of memos in place again. And even if it can find lawyers who can put those kinds of memos in place again, it will have a hard time finding interrogators who are willing to implement the policy. So, I think that that is especially true because in the courts now you have these cases in which the people who authorized torture—at least some of the people who authorized torture are for the first time having to defend those actions before a judge and for the first time having to face the prospect of civil liability.
AMY GOODMAN: I wanted to go to an interview that Ta-Nehisi Coates did with President Obama for The Atlantic. He asked him about his drone policy. President Obama said, quote, “I think right now we probably have the balance about right. Now, you wouldn’t know that if you talked to Human Rights Watch or Amnesty International or some of the international activist organizations. Certainly you wouldn’t know that if you were talking to some of the writers who criticize our drone policy. But I’ve actually told my staff it’s probably good that they stay critical of this policy, even though I think right now we’re doing the best that we can in a dangerous world with terrorists who would gladly blow up a school bus full of American kids if they could. We probably have got it about right. But if suddenly all those organizations said, 'Okay, the Obama administration's got it right, and we don’t have a problem here,’ the instinct towards starting to use it more, and then some of those checks and balances that we’ve built up starting to decay—that’s probably what would happen. So there’s an example of where I think, even if the criticism is not always perfectly informed and in some cases I would deem unfair, just the noise, attention, fuss probably keeps powerful officials or agencies on their toes. And they should be on their toes when it comes to the use of deadly force.” Those are the words of President Obama.
JAMEEL JAFFER: Right, right, right. You know, I think one—one really disturbing thing about the landscape right now is the extent to which these policies—the use of these policies turns on the decisions of a small number of individuals who don’t account for and don’t have to account for their decisions to any independent actors, right? So, really, we are reliant on the good faith of the people in charge. And I do think that President Obama took these decisions seriously. I don’t agree with all the decisions he made, but I think he took these decisions seriously, and he tried to put people in positions of power who also took the decisions seriously. But they then built a system that—a system of rules, a bureaucratic system, that required good faith on the part of those officials and relied entirely on the good faith of the people in charge. And, you know, we are not supposed to have a government of men and women. We’re supposed to have a government of laws. We’re supposed to have a government that is subject to checks and balances, where we don’t—you know, we’re not reliant on the good faith of any specific individual. That’s not the system we have right now. You know, the decisions that President Obama made may be very different from the decisions that President Trump makes. And the authority that President Obama claimed is broad enough that President Trump will be able to make very different decisions relying on exactly the same authority that President Obama articulated.
AMY GOODMAN: Can you talk about the Muslim registry, when it comes to surveillance, and President Obama saying he’s dismantling the NSEERS program, which would be the information that it would start to build off of?
JAMEEL JAFFER: Yeah, yeah. I mean, I think that that’s a good decision that President Obama made. I don’t think it precludes President Trump from resurrecting it, if he decides that he wants to. I think that if he does resurrect it, he will face serious resistance, you know, in the courts. I think that a registry that is directed at members of one religion, whether it’s directed at that religion expressly or just implicitly, will face constitutional scrutiny. And I think that I would be surprised if organizations like the ACLU and the Center for Constitutional Rights didn’t walk into court on day one and challenge that kind of thing.
AMY GOODMAN: And let me ask you about a more recent headline. U.S. officials have quietly begun a new program asking noncitizen travelers to reveal their social media presence when entering the country. U.S. Customs and Border Protection started providing foreigners on the visa waiver program with a computerized drop-down menu asking for their account names on platforms like Facebook, Twitter and YouTube. Although the program is billed as voluntary, civil liberties groups fear most travelers will feel pressured to complete the forms, and many fear the program threatens free expression and poses new privacy and security risks.
JAMEEL JAFFER: Yeah, I mean, I think—I think that that’s—that’s right. It’s very difficult for me to understand this program. You know, it’s voluntary, and so people who are actually tweeting solicitation of terrorism or glorification of terrorism are not going to provide their Twitter handles to Customs and Border Patrol or to the DHS, right? And on the other hand, you know, people who—foreigners outside the country who want to visit the United States may now think twice about even approaching lines that they think might get them more scrutiny at the border. So, somebody who thinks about criticizing American foreign policy in a tweet may now hesitate before doing it. Or somebody who is sympathetic to a group that the United States disfavors may hesitate before expressing that sympathy. And I think that, you know, that chilling effect is very difficult to measure. This is true of surveillance policies more generally. It’s difficult to measure the effect that surveillance has on the freedom of speech and the freedom of association. But the fact that it’s difficult to measure doesn’t mean that it doesn’t exist. It doesn’t mean that there isn’t an effect. And, you know, I think that the accumulation of policies like this—and there are many policies like this—will have an effect on the robustness of public debate, and, you know, not just outside the United States, but in the United States, as well.
AMY GOODMAN: As we move into this new year, this new era, and this year comes to a close, and you take on a new position at Columbia, the Knight First Amendment [Institute], why is the First Amendment so important?
JAMEEL JAFFER: You know, I think that every other check on government power ultimately depends on public opinion and on the free press. You know, I think that the courts respond to public opinion. I think Congress responds to public opinion. And all of these things that look like checks on paper, like judicial review or congressional hearings or other forms of congressional oversight, they all turn on a free press, a vibrant press, the freedom to discuss government policy openly, without fear that criticism of the government will be mistaken for illegal or unprotected activity. I mean, you need to have that kind of vibrant public discussion in order for any other check to make sense. So, I—you know, I took this job long before anyone thought that a Trump administration was a possibility, but, you know, again, I do think that the timing is in some ways—is in some ways good. I think that the threats to the First Amendment are more sharply presented now than they have been in a very long time. And I don’t think anyone questions now the need for more—you know, more fighters for First Amendment freedoms.
AMY GOODMAN: Last question, and this has to do with Guantánamo. New York Times wrote last week, “The administration had agreed to tell Congress that it intended to transfer 17 or 18 of the 59 remaining [prisoners at Guantánamo]; they would go to Italy, Oman, Saudi Arabia and the United Arab Emirates. If all goes as planned, that will leave 41 or 42 prisoners in Guantánamo for [a Trump] administration. ” And we all know that Trump said, quote, “We’re going to load it up with some bad dudes, believe me. We’re going to load it up.”
JAMEEL JAFFER: Mm-hmm, mm-hmm.
AMY GOODMAN: So, the fact that President Obama, though he promised in the first year to close Guantánamo, hasn’t—
JAMEEL JAFFER: Yeah, yeah.
AMY GOODMAN: —is this going to be a massive new facility?
JAMEEL JAFFER: Yeah, I mean, I—you know, I don’t know. I hope not. I think that, you know, we need to give President Obama credit for having reduced the population as significantly as he has. But in the long run, I think—I worry that more consequential than the reduction of the population there will be the Obama administration’s seeming endorsement of the principle of indefinite detention. And that, as a principle that the next administration will, I fear, use aggressively, if not at Guantánamo, then elsewhere, and the claim that the government has the authority to hold people without charge and trial until the end of a war that, you know, because of the way it’s been defined, will never end, I think that that is a very problematic claim that is inconsistent with the Fifth Amendment and inconsistent with any conception of due process understood by international law. I just don’t think that indefinite detention of that sort, untethered to a specific, discrete conflict—I don’t think that that can be defended under domestic law or international law.
AMY GOODMAN: And the reason the prison is in Guantánamo? Why this is so significant, outside U.S. soil?
JAMEEL JAFFER: Yeah, well, the idea of setting the prison up at Guantánamo was to avoid the jurisdiction of the United States courts. Now, that turned out not to—you know, not to work. But it took several years for the courts to ultimately rule that Guantánamo—that prisoners held at Guantánamo had the right to file habeas petitions in federal court. Now, the Trump administration could pick a different island and, you know, start all over again. I would hope that the courts would be at least as skeptical of that claim as they were of the claim that Guantánamo was beyond the reach of the courts.
AMY GOODMAN: Jameel Jaffer, founding director of the Knight First Amendment Institute at Columbia University, previously deputy legal director at the ACLU. His new book is called The Drone Memos: Targeted Killing, Secrecy, and the Law. This is Democracy Now! I’m Amy Goodman. Thanks for joining us.