For Antiwar.com and Chaos Radio 95.9 in Austin, Texas, I'm Scott Horton.
This is Antiwar Radio.
So let's move on to our guest today on the show.
It's Nate Cardozo.
He is from the Electronic Frontier Foundation.
And he is their open government legal fellow, focused on FOIA legislation, Freedom of Information Act litigation, for accountable government and their flag project.
A refugee from big law, he spent all of five months practicing corporate law before coming to his senses.
Ah, my kind of lawyer.
Welcome to the show.
Thank you very much.
Yeah, so that's what I always thought, was that if you're a lawyer, what you ought to do is sue the government all day.
And that's what you guys do at the Electronic Frontier Foundation, right?
Yeah, Electronic Frontier Foundation.
But that's basically what you guys do, huh?
Yeah, that's exactly what we do.
We defend users' rights online, so civil rights and civil liberties, as regards technology and the Internet.
So suing the government's a big part of it.
Yeah, right on.
Well, if law's good for anything, it's that.
Well, and how much success do you have?
I guess you get lots of documents released.
But do you ever really get accountability for government officials who break the law?
Not directly, no.
I mean, we can't criminally prosecute government officials, and we don't do much civil litigation against them on the FOIA side.
On some of EFF's other work, for instance, fighting the Bush administration's warrantless wiretapping scandal, we do have the government actors as individual defendants in those suits.
Nothing has ever come of those suits, unfortunately.
But we try.
Right on.
I wanted to ask you, first of all, about this, I guess, a recent cache of documents you got about internal military investigations into their violations of our rights.
And the big headline from a couple of weeks ago was, the military was spying on peace groups, Nazis, and Planned Parenthood.
What?
So there's a law that says that the military is not allowed to conduct intelligence activities against Americans and American organizations.
As long as there's no foreign connection, the military isn't allowed to do it.
That's reserved to civilian law enforcement agencies.
So we filed a Freedom of Information Act lawsuit against all sorts of intelligence agencies, including the Department of Defense and the Defense Intelligence Agency, to uncover what's called intelligence oversight reports.
As a matter of law, the inspector general of every intelligence agency is required to file a report every time that he or she uncovers something that that agency has done that might break the law.
And these reports are secret, and we wanted to see them.
So we sued in order to get them.
The Department of Defense responded last month, and there are literally hundreds and hundreds of these sorts of violations.
The NORAD spying on Alaskans for peace and justice, or the Joint Forces Command spying on Planned Parenthood.
And maybe these were just honest mistakes.
Maybe these were people in the military who thought that they could collect such intelligence.
But the fact that there was such a systematic problem obeying the law was troubling to us, and was troubling to the inspectors general of the various intelligence agencies.
So we got these reports, these intelligence oversight reports, and we post them to our website so that the American public can see them.
Well, and what do they say?
Can you give us details about, say, for example, the spying on the Alaskan peace group there?
So these reports are skeletal at best.
They don't actually say much.
All they say is that intelligence was collected.
The inspector general realized that this was a violation of the law, and some action was taken.
And what action was taken, we don't know, because that portion of the report is redacted.
It's blacked out in the copy that we got.
And do you know which laws exactly ban this kind of thing?
Posse Comitatus and the Insurrection Act, or there's newer laws?
So Posse Comitatus bans law enforcement activity, but this particular stuff that we're talking about is intelligence-gathering activity rather than law enforcement, and that's banned by DOD regulations and has always been improper.
And the regulations, I think, were most recently updated in 2007, but I could be wrong about that.
Well, what about the FISA statute?
Is that part of this?
Not directly.
FISA authorizes foreign intelligence, and this is intelligence on U.N. persons, which is why it's improper.
The military is allowed to conduct foreign intelligence activities.
That's not a problem.
The problem is when it conducts intelligence activities on Americans.
And when it conducts, I guess, activities spying on foreigners in the country, that's when they have to go to the FISA court.
Exactly.
But there is no process for them.
There is no special court whatsoever for them to be able to legally do this kind of thing.
This is just black and white, plain old illegal.
That's correct.
The FBI, of course, can do this sort of thing.
Local law enforcement can do this sort of thing, but not the military.
So are you trying to get more documents with more details about this stuff, or do you have no hope for that?
Yeah, we are trying to get more documents.
So the lawsuit that we filed is entitled EFF versus CIA.
CIA was the lead defendant, and we just last week got a big box of these intelligence oversight reports from the CIA.
And we're going through them, and hopefully we'll have them posted to our website for people to go over real soon now.
Right on.
Now can I ask you about the NSA spying cases and stuff?
Sure.
Now my best understanding is that everybody's case got dismissed for standing, except there was one case where the feds had accidentally sent, during discovery, paperwork to the defense lawyers that proved that they had illegally spied on him with the NSA.
And so he could prove to the judge, or his lawyers could prove to the judge, that he did have standing to sue.
And so that one thing was going forward.
Is that you guys' lawsuit?
No.
Can you tell us if there's progress on that, or has that already been dismissed?
Yeah, that's the al-Haramain lawsuit, and that's still live in front of the Ninth Circuit here in San Francisco.
Al-Haramain was an Islamic charity that was in fact spied on, and they have seen some documents that purportedly prove that.
Those documents are now sealed, unfortunately, so we don't know exactly what they say.
That case is still going.
We have a couple of cases which are in front of the Ninth Circuit as well.
One is the Hefton case, and the other is the Jewell case.
Both of those were dismissed at the trial court level, but are now up in front of the Ninth Circuit.
Well now, how does all this immunity work?
Can you set us straight on the timeline, I guess?
Eric Lichtblau and Risen broke the story in the New York Times in what, December 2005?
They came out and said, you know, Bush has been illegally spying on everybody.
He came out at a press conference the next day and said, yeah, I have been.
What?
And then there's been all these different laws passed about giving immunity to different people, I guess, whether they're in the government or the telecoms or whatever.
Can you explain?
Yeah.
So the telecoms got an immunity law passed in Congress, and President Bush signed it.
The immunity there doesn't – it's not actually – it didn't make the activities retroactively illegal.
All it does is allow the attorney general at his option to dismiss cases against the telecoms.
So we here at EFF sued AT&T as well as the other telecoms in a case called Hefting v.
AT&T.
The attorney general certified that AT&T – the case against AT&T had to be dismissed, and now we are challenging the constitutionality of that law.
The case had to be dismissed under that law, and so now we're challenging the constitutionality of it.
The case against the government is Jewell v.
NSA.
That's our case, and it was dismissed for other reasons.
State secrets?
I'm not sure the – no, it was a standing issue.
Judge Walker here in San Francisco said it was a generalized grievance so that our client, even though she was an AT&T subscriber, didn't have a specific grievance against AT&T anymore or against the NSA anymore than any other American.
So just because it's illegal for – or just because every American has a case against the NSA, that means that ours doesn't, our client doesn't, according to Judge Walker, and we're going to appeal that ruling.
Well, jeez, they talk about criminal defendants getting off on a technicality or something, but here we have the Bush administration admitted that, yeah, however many hundreds of thousands or millions of counts of spying without warrants, yeah, we did it, but apparently so few people, one guy, one organization in the entire society can prove that they have standing to sue anybody for any of this?
That's – talk about getting off on a technicality.
That doesn't seem right.
There's got to be somebody who has standing to say that they have reason to sue the government or the telecoms or somebody here and get some sort of remedy for this.
Yeah, and the irony, of course, is that the one plaintiff who actually has proof that they were spied on in the al-Haramain case, they have been – the government has moved to dismiss the case against them under the state secrets doctrine.
So, yeah, they have proof, but the proof is a state secret, and therefore it can't be litigated.
That's the government's claim.
And that, too, is up in the Ninth Circuit.
So we still have a lot of litigation to go before the merits of any of these cases will ever be heard.
And the government, the Obama administration, is doing its best to make sure that the merits of these cases are never heard.
So we're fighting a good fight, I guess.
Yeah, well, and that is one of the things – you know, he promised everybody he was going to escalate into Pakistan.
No surprise there.
But if people believed him, they might be surprised, right?
Because didn't he run in his campaign against illegal spying and against telecom immunity and all the rest of this?
He did, and he said he wasn't going to vote for telecom immunity.
And then when the bill hit the floor, he voted for it.
He said that he didn't support the warrantless wiretapping, but for all we know, it's still going on.
Well, and the Democrats legalized it, in a sense, right?
They told the FISA court that they can rule these general warrants, basically, for certain kinds of information that can be intercepted without any further permission from there.
Exactly.
And the FBI has something – a process that it uses called the National Security Letter, and Obama has continued that process as well.
Again, a way of spying on Americans without any judicial process.
Well, now, I'm also under the understanding that this state secrets doctrine was just made up by the court in a case that it turned out was not about national security, but just about hiding criminal responsibility for a plane crash back in the days.
So I wonder whether you guys can sue over that and say, hey, there's no state secrets in America.
That's in England, and we declared independence from them.
That would be a novel legal theory.
I don't think that anyone is pursuing that at the time, and it could be possible.
I mean, because there never was a state secrets doctrine in America before the Cold War, right?
I'm not actually sure when the state secrets doctrine was accepted, but at this point it's pretty much settled law, and I don't think we're challenging the existence of the state secrets doctrine, only its application to things that really aren't secret.
I mean, it's no secret that the NSA warrantlessly wiretapped millions of Americans.
The government has admitted it.
So the fact that they're using the state secrets doctrine to protect something that isn't a secret is ridiculous.
Okay, so if there's a criminal trial, they have this thing called gray mail, right, where, say, somebody is being prosecuted for espionage, and they try to demand in discovery and through other process in the preliminary hearings that all this classified information has to be released, and it's the only way they can prove their innocence kind of thing, and that way to, in a way, I guess blackmail the prosecution into just dropping the case, right?
And then the courts have a way around that, which is saying, no, this document and this document and this bit of evidence, that is too secret to be included in court, which I kind of have my own, you know, Bill of Rights issues with this, but this seems to be, I believe, this is a separate thing than the state secrets doctrine, where you can just, or maybe this is how the state secrets doctrine was originally applied, where the judge could decide to exclude certain pieces of evidence, but what's new in the 21st century is throwing out entire cases based on the idea that if these cases exist, then our national security will be compromised, and especially, as you said, when we already know it's not about national security, it's about they broke the law, and they're protecting themselves from something that we all know happened.
That's not a secret.
It's just who did it is what's secret, basically.
That's exactly right.
And secrecy used as a shield to protect them from any responsibility.
That's exactly right, and sometimes judges are brave enough to order what's called in-camera inspection of the documents at issue, in that the judge will look at the document that the government claims is a state secret without showing it to the plaintiff and then make an independent assessment of whether it is, but those cases are rare.
In the al-Haramain case, challenging the warrantless wiretapping, the judge, I believe, has seen the documents at issue, but doesn't want to formally rule based on it because he's uncomfortable with using secret documents as the basis for his ruling.
So he wants to actually either make those documents public or not have to rely on them for his ruling, which is quite nice, actually, and quite refreshing.
But yeah, judges can occasionally look at secret documents, what's called in-camera, without showing them to the other side.
Well, and even, is that the same process for excluding them from admission as evidence in a trial, even separate from the state secrets privilege?
No, they're different processes, but they're related.
Okay, I see.
What I'm trying to get at is, can a judge exclude evidence that he doesn't, or that he does think is classified national security information that can't be admissible in court outside of using the state secrets privilege to do so?
Oh, absolutely.
Right, they already have other process for doing that without this.
Absolutely.
Right.
And I should have been a lawyer, then I could sue the government all day, and then I'd already know the answers to all these questions, like you do.
Yeah.
Well, so I've got more questions for you.
James Bamford says that the NSA virtually downloads the entire Internet every day, everything that happens, all our financial transactions, all our Google searches, all our instant messages, all our emails, everyone we call, if not the actual audio files, and that they just save all these petaflops worth of information that they're, I guess, have built or are building a massive new center the size of the Alamo Dome in San Antonio that's just going to be one big Alamo Dome-sized flash drive to keep every bit of published data and the history of all humanity from here on forever.
Is that legal?
Is that true?
Is that legal?
So we don't know if it's true.
We assume it is.
They certainly have the capability to do so.
We know, for instance, some of the hardware that they have installed here at AT&T's site on Folsom Street in San Francisco, it's capable of tapping every phone call in the Bay Area at the same time.
We assume that they're actually storing that data somewhere.
And that activity would be illegal.
Using it in court is another thing altogether, and that's where the suppression remedy that you were talking about earlier, where the judge could exclude that evidence, that's where that would come into play.
So we assume that it's possible for the NSA to do it.
Of course, it's impossible for a human being to read through all of our e-mails and listen to all of our phone conversations, but the NSA has some extraordinarily powerful supercomputers which can do exactly that, which can do data mining and sort through documents and phone calls and e-mails and text messages to look for whatever they want to look for and store all of that data forever.
And essentially there's no accountability there.
Well, and that's the whole thing about it, right, is that it doesn't have to be one big paper FBI file that every cop carries around or anything.
The point is if they type in your name, then main core will assemble the table of contents for them or whatever, and they'll have an instant file, instant access to all of your different records and all of the different databases and all of everything instantaneously, and so it might as well be all on one thumb drive or whatever, but it doesn't need to be.
Exactly.
If they ever become interested in you, they type in Cardozo and then it's on.
They got everything from kindergarten onward.
That's the nightmare scenario, and it's looking more and more like it's true.
Yeah, it's the Shadow Factory by James Bamford.
That thing will give you nightmares, man, assuming you care about being free or not.
Let me ask you about this, the Sprint website where any cop can go and look up any cell phone's location anywhere.
Yeah.
So one of the cases that we here at EFF are fighting is a case in the Third Circuit in Pennsylvania where we're trying to make it so that cops would need warrants to be able to get your cell phone location data.
Right now, the police don't believe that a warrant is necessary to get that sort of data, and we're fighting hard to make it clear that an actual judicial warrant is required before they can do it.
Sprint admits to, in just, I believe, the last 13 months, responding to 8 million requests for cell phone location data from police across the country.
That's a staggering number, 8 million requests for location data in just 13 months.
Do you know how many criminal investigations there are in the country in a year or something?
No, we don't know, and we don't know exactly what that is.
I'm wondering what other numbers to compare that to, because that sure sounds like a lot to me.
It's a huge number.
We assume that not all of those requests are for separate people.
I mean, if they're tracking you, they probably request your data, I don't know, once a day, something like that.
I mean, the 8 million number is ridiculously large, but it probably doesn't mean 8 million different people.
It's still a huge number of people, and Sprint is only one of several cell phone carriers.
Yeah, well, and you can't boycott them because we're going to go.
AT&T, who built their entire network with the National Security Agency from the ground up for the last 60 years, what are you going to do?
Who to boycott, and what other options do you have?
Right, well, and boycotting is kind of pointless because there's a law that says that the telecoms have to cooperate now.
So that's where we stand.
Well, yeah, and we saw what happened to the guy from Quest who tried to refuse for a short time.
Right.
Which was they prosecuted him for, what, mail fraud or some grab bag excuse.
Yep, and now he's in jail.
Wow, really?
Yeah, see, I should have kept up on that story more.
Well, geez, you know, I'm kind of kicking myself for not interviewing you guys at the Electronic Frontier Foundation all the time.
So let's say from now on I interview you all the time about stuff.
That sounds good.
That'd be great, Scott.
All right, really appreciate it.
All right, thanks, Scott.
Everybody, that is Nate Cardozo.
He is from the Electronic Frontier Foundation, where he sits around suing the government all day long.
