For Antiwar.com and Chaos Radio 95.9 in Austin, Texas, I'm Scott Horton.
This is Antiwar Radio.
And I'm happy to welcome back to the show Jonathan Haffetz.
And I hope I'm saying that right.
I'm sorry if I'm not.
He is from the Brennan Center for Justice at the New York University School of Law.
And is the Director of Litigation, Liberty, and National Security.
The project there, sorry, I should have said THE Litigation, Liberty, and National Security Project.
Works with the ACLU.
Alright, so welcome back to the show, Jonathan.
How are you?
I'm very well, thanks.
Just one correction, I'm with the American Civil Liberties Union.
Oh yeah, I kind of mumbled that under my breath.
Sorry for fumbling the hell out of that introduction there.
No problem.
Yeah, ACLU, that's the whole point.
Jonathan Haffetz from the ACLU.
And am I saying your last name right?
Yeah, Haffetz.
Close enough.
Haffetz, okay.
Sorry, here, I will draw a line over the little A here.
Okay, now, the McCain-Lieberman bill on indefinite detention.
Worst bill since the Fugitive Slave Act?
Well, you know, I don't, I mean there have been some bad bills since then.
And certainly the Fugitive Slave Act is a horrendous bill.
But it's among the worst, it's a very pernicious bill.
And it's one that is a front to the Constitution.
And would set us back a long way in terms of trying to regain human rights and constitutional liberties in this country.
By authorizing indefinite detention and militarization of the justice system.
Now, so could you please give us the detailed treatment?
What exactly is this law?
This is the reaction to the Christmas Day attempt, right?
Yeah, I mean this law is part of a long campaign that Lieberman, McCain are waging now and others have waged.
It's really an assault on the basic institutions, on the civilian courts.
And what the bill, it does a number of different things.
But basically it authorizes explicitly what we've never had before.
A system of indefinite preventive detention where the government simply can hold people permanently without charge.
It creates a legal basis for what's been going on, or a basis in statute for what's been going on at Guantanamo and other places for the last eight years.
And it also authorizes military commission, or well, the military commission is already authorized.
But it enables further military detentions and interrogations.
And actually goes actively, tries to prevent the government from doing what it should do in all cases of suspected terrorism.
Which is to bring charges in a regular court.
Okay, so basically what this is doing is sort of, is it legalizing or is it mandating?
What happened to Jose Padilla, right?
I mean this was an American citizen arrested by civilian police on American soil at the O'Hare airport in Chicago, I think it was.
And then he was turned over to the Navy and the CIA and held for a long time.
And I don't know if it was you guys' lawsuit or somebody's lawsuit about this.
Right when it was about to be heard by the Supreme Court, the Bush administration backed down and went ahead and indicted him.
And prosecuted him in regular federal court because they knew they didn't have a leg to stand on, right?
Well that's exactly right, what happened.
And it happened, you know, we were amicus, or we filed a brief in the Padilla case.
But we also represented the other person held as an enemy combatant in the U.S.
All the way to the Supreme Court where we basically, by going to the Supreme Court, forced the government to transfer him to civilian custody and end his military detention.
And what that means is you lose your standing to sue then, right?
When he's no longer in military detention, that means the Supreme Court is no longer in a position to hear the case.
Yeah, I mean the general rule is that if there's no active controversy, the courts can't decide a case.
They don't decide things that are academic, they only decide when there's a real controversy.
And in the case of the real controversy in Padilla and Al-Mahri was over their continued military detention and the relief that we sought in the courts through habeas corpus.
You know, the way to challenge your detention.
So once they were transferred, we basically, you know, in both cases the relief that was sought had been obtained.
But, you know, I think the courts still should have heard the case because of the way, you know, the courts were kind of gamed.
And the executive was sort of, you know, went on.
In this case it was really the Bush administration for eight years, you know, claiming the authority and holding people indefinitely in the United States, citizens and legal residents, legal immigrants as enemy combatants and avoiding the civilian courts.
And then, yeah, in both occasions, once its policy gets challenged, the detainee is transferred out of civilian, you know, out of military custody.
But, you know, what you said before was, I think, put it very well, which is that it actually, it tries to legalize what was the illegal practice that occurred in Padilla and Al-Mahri's case.
And actually, right, exactly.
I mean, it makes the, it almost requires that the president look to the possibility of military detention.
It's a very, very dangerous piece of legislation.
All right.
Now, Barack Obama said he wanted a bill like this, an indefinite detention bill.
Are they working together with the president on this?
And does this look, you know, politically speaking?
Have you kept track of how many co-sponsors and whether, you know, Pelosi and Reid are behind this or what?
Well, I don't believe that there's a lot of support in Congress for this bill.
And I don't know, you know, I mean, I think the Obama administration, they've indicated that they are supporting a continuation, at least with respect to Guantanamo detainees and other detainees, a system of continued detention without charge under the law of war.
But I don't, I'm not, you know, I know there have been some reports, but I'm not certain that the Obama administration has actively sought any kind of legislation and certainly not a bill that looks like this.
And I certainly would hope not.
Now, when you say that he's operating under the law of war or whatever, you mean he's operating under the Dick Cheney theory that the authorization to use military force from what, September 15th, 2001, allows the president as commander in chief to do anything in the whole world that he can possibly imagine with no limit, right?
Well, I think that, yeah, I mean, they're continuing in some respects, exactly what you say, which is the idea that you can detain people in a global armed conflict against a terrorist organization like al-Qaeda or associated organizations indefinitely, even if they're not picked up on a battlefield or if they never were on a battlefield or they never actually took up arms against the United States.
And we don't agree with that position.
We don't think that that was ever authorized by Congress in the AUMF.
And I think that if, even if it were, or if you read the statute that broadly, the idea that you can pick up anyone anywhere in the world because you think they're affiliated with al-Qaeda or another terrorist group, that would violate the constitution.
Well, should Tea Partiers be worried when TV all day long says that all Tea Party members are Timothy McVeigh's accomplices and when Robert Mueller, the head of the FBI, says that domestic terrorism is as much of a danger to America as al-Qaeda?
Is this the battlefield that we're working toward here, where whoever doesn't happen to like the government on any given day is in danger of being turned over to the military?
Well, I mean, I think there's certainly a danger in the way we've been treating terrorism in the al-Qaeda or the context of foreign nationals, non-citizens abroad, and how, you know, and the – well, both there's a contradiction in the way we treat domestic terrorism in places like Timothy McVeigh.
As you say, there's a danger that these ideas of this militarization of counterterrorism policy and this effort to avoid, you know, constitutional protections could come back and be applied at home to groups like, you know, people like Timothy McVeigh or others.
I mean, what happened in Timothy McVeigh's case, you know, that he was charged and tried as a criminal, not as some kind of combatant on some ludicrous theory, is what should happen in all these cases.
It should happen with – that's what should happen with Khalid Sheikh Mohammed, the alleged mastermind of 9-11, who Eric Holder rightly said announced we're going to try to prosecute in federal court.
And it should happen with any other person at Guantanamo that we want to continue to hold or any suspected terrorists we pick up tomorrow, here or anywhere else, you know, that suspected terrorists should be treated as criminals and they should be brought to trial in our federal courts.
All right.
Now, if I understand these issues correctly, I could kind of parse what you just said as half of it is just fact that you're recognizing.
The Fifth and the Sixth Amendment mandate that any U.S. person – it doesn't say citizen – any person under the power of the U.S. government in this country, they get their Fifth and Sixth Amendment, period.
Forget about it, unless, I guess, in cases of invasion or rebellion.
But even then, the amendments trump any implied power in Article I, Section 9, so I don't see how they have the power to suspend habeas corpus, ever.
But then, it's your opinion that this same process should apply to anyone arrested for terrorism by the United States anywhere in the world, or you think that the Fifth and the Sixth Amendment mandate that, too?
Well, excellent question.
I mean, I think your theory is exactly right, that the Fifth and Sixth Amendments of the Constitution require individuals who are picked up at least away from any kind of battlefield or are entitled to be charged and tried in court.
And that's not an option.
And that's the problem about this bill and about the Bush policy, the Lieberman-McCain bill, is that it creates this option.
There should be no other option.
It's mandatory.
If you're going to hold someone, you need to bring charges against that person, and you can't do an end-run around the Bill of Rights by simply saying, this is a war and that person's a combatant or an unprivileged belligerent, to use the current administration's term.
As to people picked up elsewhere, yes, I think that's what the law requires, and the Constitution should require, too.
At least if they're not picked up on a battlefield or engaged in military activity, but they're picked up somewhere on suspected involvement with terrorism, they should be charged and tried.
If they're in another country, they might well be charged and tried under the laws of that country.
Or if they can be brought to the United States, they should be charged and tried here.
But they shouldn't be detained indefinitely for alleged terrorism-related activity, whether it's at Guantanamo or at Bagram or any other overseas U.S. prison.
Well, first of all, everybody, I'm talking with Jonathan Haifetz from the American Civil Liberties Union and the Brennan Center.
Now, I have a kind of, and this may go, I'm sorry, this isn't a particular legal question, this is more a point of view thing.
I have in my imagination a counterfactual about, say, of Harry Brown, who is more dedicated to the Bill of Rights than anyone in the whole country.
If he had won the election of 2000 and he had been the president on September 11th, and how he would have handled it would have been, I think, exactly what you're saying.
He would have, well, first of all, he would have told the American people, don't be afraid.
It's going to be okay.
And then secondly, he would have had the most limited mission against al-Qaeda possible, like a sheriff is supposed to do, right?
The minimum amount of force necessary to protect the rights of the suspect.
And then bring their asses back here, put them on trial under the Bill of Rights, and show the world, see, this is what it's like to have a limited constitutional republic.
You all know we could nuke the whole world, we could invade any country we want, we got the American people and the bloodlust and thirst for revenge here.
We could do anything we want.
We could topple Saddam Hussein, we could threaten to nuke Iran, but we're not going to do that.
We're going to give them trials and we're going to prove to you what it's like to have a Bill of Rights.
Don't you want one, too?
Don't you think that Paul Wolfowitz and his whole strategy of spreading democracy and liberty throughout the Middle East would have got a lot better push if they'd followed a policy like that?
No doubt about it.
As Obama has said, Guantanamo has created more terrorists than it ever imprisoned.
And I think that David Petraeus as well, General Petraeus, talked about the way that Guantanamo and Abu Ghraib served as recruiting tools.
This idea of rounding up people, many or most of whom had no connection to terrorism at all, holding them outside the law, outside the court system, without charge, without trial, and as a way to apply abusive interrogation techniques that we know about, we've read about, they're documented in the torture memos.
This has done us a tremendous harm.
It's been disastrous for American foreign policy and it's made this country much more unsafe.
So I couldn't agree more.
Oh, right on.
It's too bad nobody voted for Harry that year.
I did.
Hey, let me ask you about this.
The President's power to assassinate American citizens if they go overseas.
Is that legal?
Could it be made legal?
Or is that beyond any power in Article I, II, or III, or what?
I mean, this is a very recent issue that's come up around in the Predator drones, and it's one that we at the ACLU have begun to work on, first through a Freedom of Information Act suit to try to find out more about what's going on, and also to question critically this policy.
And I think it raises serious problems.
I mean, it's one thing for us to be able to use lethal force against someone who's taking up arms on a battlefield or who's imminently engaged in, about to engage in some kind of terrorist act, and there's no other means available through, for example, arrest or other ways to prevent the harm.
But I think outside of those limited circumstances, we cannot have, and it's not legal to have, the U.S. targeting U.S. American citizens abroad.
Well, it sounds like that concedes a lot to the executive's judgment there, right?
I mean, for example, this guy, Al-Awlaki, I'm sure I'm not saying that correctly, but the worst that's ever been made clear to the American people about him is anonymous leaks to the Post and the Times saying, we believe that this guy is involved with terrorism.
And, of course, it's really hard to put ground troops in Yemen.
I don't think anybody wants to do that.
And so what are we going to do?
We've got to shoot a missile at this guy.
Now, they killed a guy, an American, one of the Lackawanna 7, it used to be, then it became 6, in Yemen back in, what, 2003 or 2004 with a Predator drone.
But he wasn't the target.
He was collateral damage in that, which seems legally questionable enough.
But I guess my concern really is that I'm afraid that what you're saying is more or less right, that the law is not specific on this, really, is it?
No, but I think we have problems with the way this is, the idea that we can simply take out someone who's not fighting the military on a battlefield, it's not an enemy soldier shooting at our troops.
Or that's not, you know, it doesn't have his finger on the trigger at the moment without any other way to go about incapacitating that person.
But basically someone who we suspect.
I think that's very troubling, problematic constitutionally.
And also it's dangerous given how often we get it wrong.
I mean, look at places like Guantanamo.
And then the recent information that's come out about Guantanamo from Lawrence Wilkerson, who was Colin Powell's chief of staff, who said, you know, basically we got it wrong most of the time with the people at Guantanamo.
I mean, can you imagine if we had a policy in place where instead of detaining these people, bad as that is, we were actually out, you know, targeting them.
Oh, yeah.
Well, you know, I was just reading something the other day.
I forget if it was the boys in the chat room during the show or where it was, where they were saying that, just look at the local drug war in your neighborhood.
They can't even get the right address in the neighborhood here.
And they're supposed to have good information in Iraq, Afghanistan or Yemen or somewhere else.
Please.
Absolutely.
I mean, it's very troubling.
And you have to question, again, you know, and our focus here at the ACLU is on protecting constitutional rights and liberties.
But you've got to question as a matter of common sense if this is really helping us.
You know, that if you, you know, by taking, you know, launching a predator missile at someone and it summons the person may actually be someone engaged in terrorism.
Or, but is this the right way to go about it?
You know, in terms of a sound counterterrorism strategy.
You know, and I think a number of people will tell you that they're just, you're going to end up creating more terrorists that way.
So we really, you know, should not, you know, need to be much more judicious about how we're going about these things.
Now, if I remember right, and it's very possible that I missed this because there was always so much who could even keep track.
I don't know.
Maybe not even Glenn Greenwald.
Did George Bush ever claim the power to assassinate American citizens in foreign countries?
Or this is just a new development.
Barack Obama taking this commander in chief clause to its next logical step.
I'm not completely certain.
But we know that Bush signed secret executive, you know, orders, which authorize, you know, I think authorize in place that, you know, the US or the CIA to be able to assassinate at least certain individuals or use legal force against certain members of Al Qaeda and also to establish, you know, secret prisons.
I think, you know, one thing you're seeing with President Obama, though, is a effort to, I mean, there's, you know, a effort to try to justify the policies.
Now, it doesn't make the policies better.
But I think, you know, there is an effort by the administration to try to square what they're doing in terms of fighting terrorism with international law and with the Constitution.
Now, in the end, you know, I mean, it may not change the policy, but I think they, this administration at least recognizes that they need to grapple with international law and rules and not just simply, you know, thumb their nose at them as the Bush administration did.
Well, and it's American federal laws that enforce those international agreements.
And I guess that's really the problem.
I don't mean to sound like I'm such on the side of enforcement, but it seems like as far as regular Americans are concerned, they're subject to the law everywhere they turn.
And yet, somehow, I guess the more it's like that, the less the law really applies to the government and how they act.
And it goes down even just to the local cops, right?
They don't just get to run red lights and we don't.
If they run a red light and kill two innocent people, they get probation.
There's a whole other special set of laws that apply to prosecutors who deliberately frame people in suborn perjury, FBI agents who shoot women in the head while they hold babies in their arms, etc.
They have every kind of sovereign immunity and broadest interpretation of their powers to protect them from any crime that they commit while they do nothing but beat the rest of us over the head with the law all day long.
It doesn't seem right to me.
Well, you see, it doesn't.
And you see some of this being repeated in really troubling ways in the national security context in terms of some of the suits that are seeking compensation or damages for victims of torture and extraordinary rendition and illegal detention and policies like that, where the U.S. government under both the past and current administration have tried to block these suits from going forward, not claiming on the ground that the defendants are innocent or actually didn't do what they're accused of doing, but that the government actors are basically immune from suit.
I mean, this immunity gets expressed in a number of different legal ways or different doctrines are invoked.
One is state secrets.
The subject of the lawsuit involves secret information that would, if disclosed, harm national security, which has mainly been a bogus allegation since most of what's gone on is quite public, but as a way to kind of block the suits and other suits that give immunity to federal officials when they're sued for damages in certain circumstances.
And you've got all of these suits seeking compensation for what's happened, and these suits are being basically thrown out of court at the get-go.
Well, the real danger here is, it seems like what the old writer, Gerrit Garett, called, he called it the revolution within the form.
He said that rather than having a bunch of revolutionaries outside the gates in a certain colored shirt or something, the revolutionaries are in the White House, and all the people who were trying to stop the revolution were the ones on the outside of the gates.
And the real problem, it seems like, is the permanence, where George Bush, with no wisdom whatsoever, can be told by David Addington to exercise whatever insane power and not have the idea in his head that, wow, this really counts for the future of America and the grandkids and mankind, and I have a lot of responsibility here.
He didn't even have that much in his head.
And yet, any crazy thing that Addington told him to do, as long as Obama continues it, it becomes absolutely permanent and part of the official landscape forever and ever.
Like the Patriot Act, it's never going away.
The Department of Homeland Security, it's never going away, not until America falls.
That's right.
There has been an institutionalization and a continuation of a lot of these policies.
Some of the most egregious aspects have been toned down or reformed under the new administration, but there's a lot that's stuck.
And part of it is, I think, Obama not being aggressive enough in terms of trying to push back against what happened.
Certainly, that's true with respect to things like accountability and not looking at the past torture and saying, well, we're going to look forward.
But part of it is just what you say, when the wheels of the train get off the track as badly as they did, it's hard to get them back on again.
And David Addington and Cheney and Bush and others in the prior administration, they basically moved the goalposts so far in one direction in terms of executive power, militarization of the justice system.
Secrecy.
Even if they're moved back, it's really hard to get back to where we were.
And I think some of this stuff is going to be permanent, some of the changes.
All right.
Now, I guess it's not really fair to pick this fight with you at the very end here, but we've got a couple of minutes.
I'm just kind of interested in your philosophy about the way the Bill of Rights works and what the Constitution means and all that.
Because it seems like, well, you know, George Bush, a lot of times he would just, he would tell an outright lie, but then his excuse would be, well, I shorthanded it.
And I think what it's sort of, you know, that was a pitiful excuse for him.
But I think that really does happen honestly a lot of times as people talk about, you know, broad and deep subjects in narrow terms because it's just the nature of the debate, the nature of doing radio, for example.
You can't just go into every little thing all the time.
But it seems like the Bill of Rights, from my perspective, it says right there in its preamble that this is a list of declaratory and restrictive clauses to prevent misconstruction or abuse of its powers by the new national government.
It was put there by the people, against them, and it was one of the conditions of the ratification of the Constitution from some of the major states at the time.
It couldn't have passed except James Madison promised that the first thing we'll do is add this list of declaratory and restrictive clauses.
And it seems like the Bill of Rights has evolved into a mandate to the national government and to hear them tell it, they give us our rights.
And see, it says here in the Constitution you're allowed to go to church if you want to and you're allowed to be secure in your house except for the exceptions that we come up with, et cetera, when in fact this is supposed to be our line in the sand against them.
So under the Constitution you've got to basically kind of use the Bill of Rights under their terms in order to try to protect individuals in particular circumstances.
But I just kind of wonder what you think about the whole theory of natural rights and enumerated powers and the future of this thing, whether we're going to have it at all, I guess, makes the whole question moot.
But I just wonder what you think of that.
Jonathan?
I'm going to sort of take a piece of it and I'll try to get the whole thing.
But I mean, at the ACLU we have, I think, some issues or some concerns about ideas of originalism that have been or associated with certain political parties or justices in terms of what they mean for certain constitutional rights and on certain issues involving a range of affairs gender, sexual orientation, and the like.
But I think when we get down to some of the issues of national security and issues of executive power and detention and military trials, I think the position of groups like the ACLU is actually really and others who are fighting against some of these policies is exactly true of what the Constitution meant in the time of the framers.
I mean, there's a historic suspicion of executive power and of the importance of the constitutional safeguards that are basically embodied by the criminal trial and the requirement that if the government thinks you did something wrong or thinks you're dangerous, they've got to file a charge against you and bring you to trial that Bush and to some extent Obama have turned their back on.
So it's not just liberals but also conservatives should be very concerned and some are about the direction U.S. national security policy is taking.
Yeah, it's interesting to watch the course especially because I'm a libertarian so I never have a dog in the fight whenever it's the left versus right there.
And it's funny to me to see in certain occasions you'll even have Scalia say, oh no way, the Bill of Rights is clear about gotta have trials for this or that.
It doesn't say over who the next Supreme Court Associate Justice is going to be.
It's sort of taken as a given that if they think the Bill of Rights means anything at all, that means they gotta be a progressive and that somebody who's more of a centrist is someone who sees it more like Dick Cheney.
I mean we've really come a long way in just a very short time here.
Yeah, I mean that's for certain.
It is very important I think as you mentioned that hey, conservatives supposedly support the Bill of Rights too, right?
I mean this ought to not be just an ACLU issue.
This ought to be an everybody issue.
This is our Bill of Rights.
This is the best part of our heritage here.
That's right, that's right.
And we've really lost something.
And as we were talking about before I think there's a permanence to this in a way that it's not going to change back.
In fact there's a permanence that was intended.
The idea of the global war on terror was not like any other war that was going to end at some point and then things would resume to normal that there would be some temporary abridgement of civil liberties and civil rights but that this was going to be something that would go on for generations.
And there's a fundamental alteration in the way we conceive of the power of the state and the right of the individual.
All right everybody, that is Jonathan Haifetz from the Brennan Center for Justice at the New York University School of Law and the American Civil Liberties Union.
Thank you very much for your time on the show today.
I really appreciate it.
My pleasure, nice to talk to you.
