07/10/14 – Elizabeth Goitein – The Scott Horton Show

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All right, you guys, welcome back to the show.
I'm Scott Horton.
This is my show, Scott Horton Show.
And our next guest is Liza Goitein.
She is the co-director of the Liberty and National Security Program at the Brennan Center.
And you might remember, I think we talked to her just last week about Gell-Mann's story in the Washington Post, and she was great.
So I thought, who better to talk about all of the complicated issues in the giant new Glenn Greenwald story at The Intercept.
Welcome back to the show.
How are you doing, Liza?
I'm doing well, thanks.
Good, good.
Very happy to have you here.
And very disappointed in myself that I did not go ahead and just take notes the first time as I was reading this thing.
So now I'm kind of scrambling to remember all of the different controversies at play here.
But I guess the most important might be that it is not the case that Glenn Greenwald has discovered and reported on the Snowden documents that only five people were spied on, apparently illegally by the NSA.
What he is reporting is that these five people were spied on.
Is that correct?
Well, what he's reporting on, he has a document that Snowden turned over, which is a list between 7,000 and 8,000 people who were spied on under the Foreign Intelligence Surveillance Act before 2008, which was back when, if you were going to spy on a U.S. person, you needed to go get an individualized court order.
And so there are five people who are on this list.
There's a lot of people on the list, but there are five that he wanted to highlight in this story.
And it's because these five people appear on their face to be absolutely exemplary American citizens who are Muslims and who engage in some form of political activism, fully legal, First Amendment-protected political activism.
And so this story certainly raises the specter that Muslims in this country may be being spied on because of their legitimate political activities and because they're Muslim.
And I guess maybe I'm thinking of an answer that Greenwald or his co-author, Murtaza Hussein, may have made on Reddit when they did a little Q&A on Reddit the other day.
But I think the way they tried to clarify it was, these are the ones who we could get to go on the record and give us a comment about it.
There were at least a few more who they could identify.
But these were the ones who would come forward.
Maybe I'll have that.
Right.
And I think this wasn't intended to be a comprehensive listing of everyone who's been spied on inappropriately by the NSA.
And frankly, it's very difficult anyway to parse out.
I mean, there's so much secrecy.
So the NSA is going to say, well, we can't confirm or deny that we ever spied on these people and we can't confirm or deny.
If we did spy on them, we had reasons and we wouldn't be able to tell you what they are.
So it's not easy, I think, to find examples that are as clear cut as these ones seem to be on their face.
But here we are talking about people who were in the Navy, who were honored at the White House, who had top-level, top-secret security clearances at the Department of Homeland Security.
People who it's very hard to justify why these people were under surveillance under a law that at the time required some sort of finding of basically criminal activity in order to put them under surveillance.
Or some kind of reason to believe, at least, I don't know exactly what threshold, probable cause even, that they're agents of a foreign power, a foreign terrorist group, right?
Right.
That they need to be agents of a foreign power.
And the reason I mentioned criminal activity is because at the time, under the statute agent of a foreign power, and it is still true, when it applies to a U.S. person, which is an American citizen or a legal permanent resident, it actually has a stricter definition than when it applies to a foreign person.
And when it applies to an American person, there actually is some element of criminality to it.
I see.
And so...
And you look at these people and you think, well, okay, maybe there's something that none of us know.
But if that were the case, I mean, these are people who were under surveillance for years.
And if somebody, if the government actually had any serious evidence that someone with a top-secret security clearance at DHS had, you know, was a criminal or was a spy, you know, presumably they at least would have fired that person or, you know, brought charges.
Yeah.
You think then again, you know, the government employee unions are pretty powerful.
No.
Well, so, yeah, this one guy, he was a Republican Party operative, had an appointee position in the Department of Homeland Security.
I guess I'll have to assume sub-confirmation level where he didn't have to go before the Senate for the job.
And then he also ran, even, in the Republican primary.
Right.
Right.
This is the same guy who, you know, served in the Navy and, you know, really had an exemplary record of public service by this individual.
You know, it appears that the only plausible explanation that one can see for why he was under surveillance was, first of all, that at one point he was a consultant.
In his work as a consultant, one of his clients was the American Muslim Council, which was founded by an activist who was later arrested on charges.
He was, the government at some point, when someone put together that he had actually served as a consultant to this organization, investigated him and cleared him of having anything to do with any of the wrongdoing of this person.
And then also that he represented the Sudanese government in U.S. court, which, you know, frankly, so did a lot of people, a lot of non-Muslims and some, you know, top flight law firms, some white shoe law firms, as they're called.
And, you know, those people don't show up on the list.
So it's very hard looking at the story to escape the conclusion that people on the list were targeted because they were politically active Muslims.
And it just makes you, it raises the possibility of the likelihood that the FISA court, which issued presumably the warrants for these, for this surveillance, is not being 100% faithful to the criteria it's supposed to be applying.
Right.
Well, now, I guess this is an absurd way to put it.
I don't know if you can answer it or not, but is there any way that you could estimate kind of ballpark estimate of just how influential these five men are?
Do they rank in the top 20 most influential political activist Muslims in America or the top hundred or anything like that?
Could you estimate?
I don't know that I could put it that way exactly, but what I can say is that, you know, if you look at sort of the groups that they represent, and there's the head of CARE, which is the Council on American Islamic Relations, that is the nation's largest Muslim civil rights organization.
Right.
And then there are people who worked with, or alleged to have worked with, the Holy Land Foundation, which is the largest Muslim charity in the U.S. So, I mean, we are talking about people who are quite prominent.
They are community leaders.
There's no question about it.
Right.
So it sort of sounds like that's the operation, right, is it's an intelligence operation, you know, aimed domestically at these kind of, you know, weather vanes of Muslim opinion, maybe, these leaders of Muslim opinion in America.
And that's the operation, is spy on these political activists, because we've decided getting what we can find out about them is more important than obeying the law.
Well, I mean, I'd like to be able to say that this is limited to sort of top tier thought leaders or something like that, but I, we just don't know.
I mean, it could be any, it could be any American Muslim who's unlucky enough to have been, to be suspected of, or to have been sort of caught, you know, in some way, being involved in political activity that for some reason our government feels is a little bit suspicious.
And, you know, the idea in this country is that your political views, whatever they are, I mean, even if those views are outside the mainstream, even if those views are disturbing to some people, those are protected under the First Amendment, and they are not supposed to be under the law.
They are not a legitimate basis for surveillance.
Yeah, and I think they cite that in the article as saying that's, you know, right down to the FBI guidelines implementing the law and how it is to be carried out is that they are forbidden from initiating an investigation based simply on political speech.
Right, based solely on political speech.
So then the question is, can they find something that's, you know, 1% of the picture that they, and then say, it's only 99% on political speech.
That's when they call the NSA.
Wait, what have you incidentally collected on this guy?
All right.
Sorry, we're interrupted by the break here.
We got to take it, but we'll be right back, everybody, with Liza Goytin, and she is at the Brennan Center for Justice at the New York University School of Law.
Hang tight.
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Thank you.
All right, y'all, welcome back.
I'm Scott Horton.
This is my show, The Scott Horton Show, talking with Liza Goytin from the Brennan Center about Greenwald's new piece, At the Intercept, based on the Snowden documents.
Of course, firstlook.org slash The Intercept.
It's called Meet the Muslim American Leaders the FBI and NSA have been spying on.
And as you talked about, Liza, there's the question of what is the FISA court doing here?
Are they being lied to?
Are they going along with what they must know is wrong?
I saw one of these five or two of the five were interviewed by Tapper, Jake Tapper yesterday on CNN.
And the one said, listen, you're reading my personal email account where I don't even handle my business from that account.
This is me and my wife talking.
And you're going back to the judge back to the court every 90 days and saying, yeah, we need to keep doing this when you don't.
I you know, and then he kind of jokes that, well, you must have just been bored.
And I feel sorry for the guys.
And Tapper's happy to leave it at that, unfortunately.
Anyway, it seemed like, you know, this is an American citizen and a leader, a pillar of his community, that kind of thing.
Yeah.
So I think there's a couple of points.
I mean, one is that we actually don't know for sure that the FISA court signed off on these.
It should have.
These people were surveilled during a time period where U.S. citizens were not supposed to be under surveillance unless the FISA court signed off on it.
There was an exception if a U.S. if an American citizen was overseas and the attorney general could sign off on it.
That may have been the case with at least one person on this list.
Doesn't appear that it would have been the case for all of them.
So I think that there's a presumption that these are cases in which the FISA court signed off on it.
So that's what we're guessing.
The other thing I'd say that's really interesting about this is that we've heard a lot in the last few years about, and certainly in the last year since the Snowden disclosures, about the problems of warrantless surveillance.
Because what we've had since 2008 is effectively a regime of warrantless surveillance when the government collects phone calls and emails between Americans and foreigners overseas.
Because that's what that law did in 2008, is it removed the requirement that you go to the FISA court and get an individualized warrant when you did that kind of surveillance.
But here we're talking about surveillance that happened during a time period where you did have to have an individualized FISA court order, and it doesn't seem to have helped very much.
Oh yeah, because you're talking about a time where it was after the New York Times had finally exposed the Bush program, but before the FISA Amendments Act.
I guess there was the Protect America Act for a little while there, but that didn't cover this time period either?
Well that kicked in in 2007, so maybe at some point in this time period.
But that would have been on a different sort of chart basically, because this chart was talking about under FISA, under regular FISA.
So that's before the Protect America Act.
I see.
Yeah, I didn't know the particulars, but I thought that was sort of the fill-in before they got to the FISA Amendments Act.
Right, right.
So the thing that's interesting about it is that people have been very worried about warrantless surveillance that's happening.
It looks like we need to be worried about the surveillance that happens with warrants as well, at least if those warrants are coming from the FISA court.
It just doesn't seem like the FISA court in these cases was doing its job.
Now again, I have to caveat all of this by saying maybe there's some secret evidence that nobody has found that these sort of seemingly upstanding people are in league with terrorists or FISA for foreign countries or something like that.
But it doesn't seem likely when it's been years and no charges have been brought against them.
These are such dangerous people that it just doesn't make any sense.
Well now, there's probably a pretty good chance you're aware of the different studies that have been done.
The Center for American Progress led by Eli Clifton and some others did a report on this and there have been a few others about the Islamophobia industry in America and it includes some of the much lower neocons like Frank Gaffney who has made himself kind of famous again sort of accusing Grover Norquist of all people of being infiltrated by the Muslim Brotherhood by way of the fact that he's married to an Arab lady.
And this is sort of the very lowest scum of the fearmongering against Muslims in America.
I think that's an objective statement, a scientific one rather than a matter of opinion.
And it seems from this reporting that this kind of base conspiracy theorizing about Muslims is part of the basis of what the FBI has been interested in here and what they're going after.
All these kind of mythical links where everybody is tied to somebody from Hamas somehow by the Kevin Bacon game or something, right?
Right, well I mean one of the things that struck me about the story is that there was one FBI official in particular, a former at this point, who believed and believed that John Brennan was a secret Muslim.
The highest-ranking counter-terrorism officer in the White House was a secret Muslim.
And it's so this kind of paranoia, I guess, is actually inside the government, not just outside the government.
Paranoia and also racism, or I'm not quite sure of what you call racism when it's religiously based or ethnically based, but you know there is one document that showed, that was a tutorial for intelligence officials, and it was showing them how they were supposed to fill out some forms.
And under the name of the, you know, suspect that they were supposed to fill in, the sample name that was given was Mohamed Raghead.
Which, I mean, it's turned my stomach when I saw that, that that's in a government document.
Well, yeah, and it's really important that you mention that.
This is training material for cops who, you know, they don't really have a background in any of this kind of thing.
They have specialists brought in to say, okay, here's what you need to know about the Muslim terrorist threat in your town.
They have no reason to doubt what they're being told, but this market is cornered by these Gaffney-ite kooks, basically.
Yeah, and it's, I mean, these are intelligence officials, and their job is to try to find terrorists, and they're being fed this notion not only that all terrorists are Muslim, which is crazy, but that all Muslims are terrorists, which is even more potential terrorists, which is even more pernicious.
So it's just, you know, it's not only unfair and discriminatory, and contrary to civil rights, but it's also really not a very smart way to go about our security.
There are real terrorist threats out there, and we're not going to find them by spying on people who are serving in the Navy and, you know, serving their country.
I mean, I would feel better about it if they honestly knew they were lying when they were drumming up all this fear.
If the people in the FBI running these investigations believe this nonsense, then we're in real trouble.
Yeah, I think you put it very well, and I think they do.
I mean, I think it's on a scale of the nonsense.
I think there's the, you know, outright, you know, calling Muslims ragheads and thinking that John Brennan is a secret Muslim, and then there's a version of it that is much more sanitized and much more acceptable, which is that, well, if we are trying to find Muslim terrorists, then we need to look at Muslims, and that kind of mainlines it and makes it seem acceptable, but at its root, it's an irrational bias against a group of people.
Well, and they've explained in court before when they were arguing for the premise that the whole world is a battlefield, every last bit of it, and I think it was a judge asked, well, if it's a little old lady in Switzerland who donates to a charity that turns out is run by Hamas, you're saying that America then has the right to abduct her from Switzerland, give her a military trial or do what they want, rendition her off to move barracks to be tortured to death or what have you, and the answer was, yes, that's right, if we say so.
Or a lawyer standing there thinking, oh, my gosh, I have to answer this question, yes, don't I?
Right.
But so that's the whole thing is, you know, it's sort of like there was the tiniest grain of truth to what amounted to a ridiculous joke about Al-Qaeda and Hezbollah and, you know, Ray McGovern and a bunch of peace activists all working together on the Mavi Mamara, because what it came down to was somebody on there, you know, was once part of a thing that once had an association with somebody else who had an association with somebody else that amounted to a tie to Al-Qaeda or however it is that they want to do it, they don't care how many steps they have to go to tie somebody to something.
Once you adopt that frame of thinking, then it all just, you know, it proves itself as you make it up, you know?
Yeah, it's a kind of hubris.
If we know everything about everybody, we will be able to, you know, predict, you know, who's a terrorist even before they're a terrorist.
I mean, this is scientifically not a good way to go about preventing terrorism.
Well, and, you know, cops ought to know better, because if it was true that the millions of American Muslims were at war with America, we'd see a lot of stuff on fire when we look out the window, you know?
And we just don't see that.
We see a failed Times Square bombing every once in a while and a Boston here, and that's about it, you know?
And our government officials do pay lip service from time to time to this notion that, you know, the vast majority of Muslims in this country are law-abiding, they're patriotic, you know?
They admit that, but then that goes very much against what they're actually doing in practice, which is basically treating American Muslims in this country as suspects, simply by virtue of the fact that they are Muslims in this country.
And that's just not how we're supposed to operate.
Collectively guilty until proven innocent, if they ever get a chance, right?
Yeah.
If someone leaks to Greenwald what's been happening to them and it gets written about it, which is that one in a million chance, right?
All right.
Listen, I've kept you over time.
Thank you so much for your time, Liza.
I really do appreciate it.
Oh, you're welcome.
Thanks very much.
Great work there.
All right.
So that is Liza Goytin.
She is the co-director of the Liberty and National Security Program at the New York University School of Law.
And we're over time.
We'll be right back with Phil Giraldi in just a sec.
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