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Next guest up is Alexander Abdo, staff attorney at the National Security Program of the ACLU.
Welcome to the show.
Welcome back to it.
We've spoken before, right?
I think we have, yeah.
Abdo, sounds familiar.
Anyway, I love the ACLU, man.
I'm not a lawyer, but I sure am glad that there are lawyers whose job it is to sue the government all day and try to make them stop doing things.
And I know you can't win them all, but I like it when you do.
I'm almost always on your side or I perceive you to almost always be on mine anyway.
I appreciate that.
So yeah, there's an almost in there, but still, it's all right.
Okay, so let's talk about this, the National Security Agency and I guess whoever else, FBI and whatever other agencies, wiretapping Americans without warrants.
When the story broke back in 2005, it was a really big deal.
It seemed like in the media, that kind of thing.
And yet since then, it's sort of the Democrats legalized it back in 2008.
And there's been some challenges here and there, but it's a democratic government in power.
So a lot of the critics have kind of drifted away somewhere.
And so we don't hear too much about this anymore.
And yet it did make the news, thankfully at least, that last week or two weeks ago, the Supreme Court refused to hear a case about the warrantless wiretapping of American citizens by this government, which my junior college understanding means that's it.
It stands.
They might as well have ruled in favor of it unless they choose the next time on a different case to go ahead and hear it.
This basically for the whole country means in all circuits, this is legal now for them to go ahead and tap our phones without warrants, right?
Well, that's right.
Last week, the Supreme Court ruled that the most sweeping surveillance statute that Congress has ever passed, essentially cannot be challenged in court, or at least not in a public court.
And that type of ruling, I think, is actually a bit more pernicious than one even upholding the constitutionality of the statute.
It'd be one thing for a court or the Supreme Court to exercise its obligation to say what the law is to analyze the statute and tell us whether it's constitutional, but it's quite another for the court to say, this is none of our business and that the courts will not be asked or required to analyze the constitutionality of this extremely sweeping surveillance statute.
That's the type of ruling that's troubling from the perspective of a constitutional democracy.
And it's one, I think, that should trouble all Americans that our system of checks and balances has broken when it comes to surveillance in the years now, more than a decade since 9-11.
Yeah.
So they're basically just saying, hey, this is a matter of foreign policy.
And now I'm sorry, technically speaking here, it was the vice amendments act, which is the Democrats legalization of Bush's illegal warrantless wiretapping that was passed in 08.
That was an issue before the court.
Is that correct?
Right.
It was a 2008 statute, the FISA Amendments Act of 2008, which essentially codified and in a number of ways expanded President Bush's warrantless wiretapping program.
You'll remember that program started shortly after 9-11 when the White House authorized the National Security Agency essentially to ignore the existing laws, the laws that put a judge in between the NSA and Americans international communications.
And that program was exposed by the New York Times in 2005.
And shortly after the program was modified, and then it was ended, but Congress in a series of enactments starting in 2007, and finally in 08, essentially codified that program that made it even broader.
It authorized the NSA to engage in dragnet surveillance of our international communications.
Immediately after 9-11, the NSA was ignoring the surveillance laws, but they were doing it in a more targeted way.
They were still focusing their collection of communications on basically Al Qaeda agents.
Whenever an Al Qaeda agent was talking to someone in the United States or from the United States to someone abroad.
But now with the 2008 statute, the government, and the NSA in particular, can acquire our international communications whenever they think they're relevant to foreign intelligence, which is a very broadly defined category, including things like foreign affairs.
The things that have no connection to terrorism, to Al Qaeda, or even to crime.
They can be seen simply relevant to the foreign affairs.
Okay, now on this show, obviously, I basically just talk to activists like yourself, journalists from all over the world, etc., like that, and I basically just take it for granted, I guess.
I try not to concern myself with it, but I just sort of take it for granted.
If I call anybody, even just in Mexico or Canada, but if I'm calling anybody in another country, I just assume that the NSA is recording the thing and keeping it for later, no?
Well, I hope not.
You know, we have a fourth amendment in this country that protects our right to privacy.
And our constitutional rights don't end at the border, they travel with us, and they, they operate as constraints on the government.
And so the NSA, and any other branch of government is limited by the Constitution and what they can collect about US persons.
So, you know, this notion that once you call someone abroad, you forfeit that right, I think is, is one that the government has successfully used to keep judges from inquiring as to the legality of their act.
But ultimately, there's a question that needs to be decided by court.
What exactly are the contour?
What are the standards that limit the NSA when it tries to engage in this type of surveillance?
Right, but I mean, isn't the court saying that, as I think you put it, it's none of their business that if it's all national security, it's all national security has nothing to do with the Constitution or the Bill of Rights at all?
Well, that wasn't quite the reasoning.
The reason I agree with it, I'm just saying, isn't that what they're saying?
No, no, the reason was slightly different.
They weren't saying this is some political question.
And it's something for the political branches to decide.
They were saying that before you can challenge the system of secret surveillance, you need to be able to prove that you were actually monitored under the program.
And once you can prove that will then will adjudicate the constitutionality of the surveillance that was directed against you.
Of course, that is effectively a ruling, given that they're asking you to prove something that you can't possibly prove.
They're asking you to prove the existence of secret surveillance against you, something that you can't possibly prove because the government refuses to disclose that information.
So given that ruling, it's effectively immunity from suit for the government when it comes to the NSA surveillance program.
I see.
It was just they weaseled out of it based on standing, in other words.
That's exactly right.
I'm sorry.
I guess I had just assumed for some reason and thought that I'd read that this was the case where the NSA had accidentally turned over the transcript of their illegal tap.
And so they were busted and standing had been proven.
But that was a different case, I guess.
That was a different case.
There was a case in California where lawyers argued that the NSA, that the government had turned over to them accidentally, proof that their communications, I believe, with their clients had been picked up.
And the government said that information is classified as a state secret.
You can't rely on it.
And the courts agreed and so prevented those lawyers from relying on that document.
And they didn't otherwise have any proof that their communications were monitored.
I see.
And then, you know, I think I read something not too long ago that said that, really, this is a pretty new practice where maybe just in the last few decades compared to all of American history where the courts just decide that nobody ever has standing to sue over anything that comes down to their Bill of Rights or almost never.
And in a way where they basically make the Bill of Rights moot.
It's a dead letter because it's it's way over there where this court case can't get to it kind of thing.
Yeah, that's right.
At least for the past four decades, standing the standing doctrine, which is, you know, this admittedly arcane legal concept is essentially about a test of what you think the role of the judiciary should be, what you think the role of courts is.
And there are some justices and judges who think that courts should have a far more limited role when it comes to policing the excesses of the political branches.
And then there and there are others who believe that the Constitution actually requires judges to be a neutral, a neutral party in between the political branches and our individual rights.
In other words, that the judiciary is the ultimate safeguard of our individual rights.
And that tension has existed at least for the last four years.
And the ruling last Tuesday from the Supreme Court, and it was a five to four decision, five justices essentially embraced this very narrow view of judicial authority, at least in the area of national security.
And it's troubling because the founders of our country understood the importance of dividing power, of having a system of checks and balances, where you have three branches of government, each operating as a check on the other.
Since 9-11, we've seen a distortion, you know, one of the legs of the stool has been cut out from under the stool.
And we're operating now with just two legs.
And the result is an imbalance in government power and intrusions on individual liberties of the citizens of this country.
Yeah.
All right.
Now, I think it was Senator, well, never mind, because I don't know for sure.
But one of these senators, a Democrat, I think, came out, maybe even sued about it or did a little something about it.
I don't know.
Anyway, point is, he was complaining that there's a secret interpretation of the Patriot Act that he said would blow everybody's socks off if you realize just how far they've gone with the letter of the law in there.
And I wonder if that's more or less the same thing with all this stuff where all these new laws really are just a brand new floor.
And the FISA Court now, I mean, what they're doing is they're legalizing under the FISA Amendments Act, the so-called FISA Court, which is within the executive branch, if I understand it right, and is not really a court.
They now authorize entire categories of information to be sweeped up, basically a general warrant.
Right.
They don't call it that, but that's basically what it is.
Right.
Go ahead and search all the emails of, and I don't know exactly how it breaks down.
I don't know if you do.
Is it based on this neighborhood?
We want to get all the emails in this neighborhood or tap all the telephones on that side of this city or everybody named Jenkins east of the Mississippi River or, you know, however they do it.
But basically, there's a vast amount of information that always would have just been an off-limits fishing expedition that is no longer under the FISA Amendments, correct?
That's right.
You know, the FISA Amendments Act allows what we've called dragnet and what the government in its papers has called programmatic surveillance of our international communications.
So it authorizes the government to ask for and the FISA Court to authorize.
And it is, in fact, a traditional, you know, it's not a traditional, it's a secret court, but it is, in fact, you know, what they call an Article III court as opposed to you know, an executive court.
But it authorizes the FISA Court to allow the government to collect broad swathes of our communications.
There's nothing in the statute, for example, to prevent the government from asking the FISA Court to allow it for an entire year to collect all communications between Afghanistan and the United States or all communications between the UK and the United States so long as it's trying to acquire foreign intelligence, which, as I said before, is very broadly defined.
But you know, the difficulty, though, in discussing this issue and in trying to litigate about it is that so little is actually known about how the government uses this authority and so many of its other surveillance authorities since 9-11.
The senators, you know, you were talking about earlier are Senators Wyden and Udall who have been warning us for about two years now that there's a provision in the Patriot Act, Section 215, that is the subject of a secret interpretation that, as you said, would shock Americans.
And we still, to this day, don't know what it is.
There are rumors and suspicions about what it might be.
But to this day, two years later, the government refuses to say what its legal understanding is of this authority that Congress gave it in the Patriot Act, which is somewhat shocking.
I was going to say Wyden.
Yeah, that's the one.
Yeah.
Now, I'm sorry.
Did I hear you right that I had it wrong?
It's not an Article Two court within the executive branch.
It is an Article Three court, the FISA court.
It's just at the Justice Department building.
Is that right?
Yeah.
My understanding, actually, I think actually as of a year or two ago, they've moved it outside of the Justice Department building.
I think it now has its own building.
But it is under the it is under the judiciary and not like a parking ticket court where it's just part of the police.
That's right.
And, you know, it was founded in 1978 when Congress first passed the Foreign Intelligence Surveillance Act.
And for about 30 years, it was sitting in the Justice Department building.
And I believe it was about two years ago.
They they finally built its own building to avoid this.
I think this appearance that it was sitting in the Justice Department building, which, you know, is not a it's not a great place for a court to sit if it's trying to appear to be neutral.
Right.
And of course, they never were neutral.
Right.
Like the only warrant they ever turned down was for John Wong, who should have been tapped.
Well, you know, it's really difficult to to assess the job that the FISA court is doing in the entire course of their 35 year history.
They've issued about twenty eight thousand warrants and they've turned down, I think, fewer than you could count on two hands.
So but, you know, it's hard to know exactly what's going on, whether they're serving as a rubber stamp or whether their existence is causing the government to be more careful in its applications.
We just don't know because there's so much secrecy surrounding the operations of the court and even the law that the court is applying.
So, for example, we know that over the last 10 years, there have been a number of significant constitutional decisions issued by the FISA court relating to post 9-11 surveillance authority.
So the warrantless wiretapping program and a few of the other section 215, which I mentioned, and a few of the other surveillance programs that have taken place in 9-11.
But they are all entirely secret.
We know their existence because they've been mentioned in hearings before the Congress and by executive officials.
But we just don't know what they say, which deprives us of the information we need as Americans to make sure our government is doing the job we elected it to do and to make sure that the programs are lawful, consistent with our values and effective.
And without that very basic information, it's hard to do our job.
Well, and as time goes on, these things just get normalized and we just move on.
I mean, the FISA Amendments Act, you mentioned how, or the original FISA Act, you mentioned how it was passed back in 78.
And that was a big backlash from Watergate and the church committee hearings that revealed, you know, all these CIA dirty tricks and illegal spying on activists and all these things.
And that thing's actually a criminal statute, right?
Like when Bush came out the day after the New York Times story broke in December of 2005 and gave that press conference the next day and said, yeah, I did it.
And what are you going to do about it?
He was actually confessing to millions of felony counts of warrantless illegal wiretapping.
Well, it's true that, you know, the original statute when it was passed and as it existed in 2001, criminalized illegal wiretapping.
And unfortunately, the reaction of Congress when this unlawful program was revealed was instead of investigating how this could have come to happen, how our intelligence agency could come to engage in wide-scale illegal wiretapping of Americans communications, the reaction was to codify it, to put it into law and to immunize those who cooperated with the government as part of the program.
That's what happened in 2008.
And that's what's so troubling.
And I think, you know, at the beginning of our show, you kind of alluded to the politics of this decision.
You know, in 2005, when the program was exposed, many Americans were rightly concerned about the excessive authority that President Bush was claiming, whether to interrogate suspected terrorists using harsh interrogation techniques and torture, or whether to monitor Americans communications without going to a court.
Now, a few years later, we have a different president, one who is a constitutional law scholar, who has effectively kept in place many, if not most of President Bush's national security policies, and people are less concerned.
And, you know, what troubles me about the shift in attitude is that the constraints on government power are not about any one president.
It doesn't matter whether it's President Obama, President Bush, if it had been President Romney or another president.
What matters is the institutional restraints, the restraints on the presidency, not any one president.
And without those types of meaningful restraints that last beyond any one administration, there's always a chance that a future administration will abuse the trust of the American public.
And that's a very real danger.
And I think that people should ask themselves, how would I react?
This is how, you know, how we do our work day to day.
How would we react if any number of politicians exercise the authority that the government claims today?
Would we be comfortable with anyone exercising that authority?
Or would we be suspicious?
And if it's the latter, I think it speaks to the need for more effective restraints that are currently in place.
Yeah.
Well, and, you know, geez, I hate to appeal to fear and all that, but I imagine just, you know, 10 years out from now, it'll have been 20 years of this, right?
15 years of knowing about it and allowing it to continue on.
And by then, it'll just be the way things are now, just like all the cameras on our street corner, just like our cops dressing up like right wing paramilitary death squads all day and doing their dynamic entry SWAT raids on law abiding citizens.
And a hundred a day, I think it is now.
And on and on and on, right?
It already pretty much, I hate to admit, seems like it has become a fixture.
It is part of the American system now.
And it seems like the Supreme Court has really just poured a lot of water.
It's going to take another major case to break, to start the whole process over again, to even try to get this reviewed.
Right.
And then even then, I fear what they're going to say.
You know, you know, I, I at times share your cynicism, but I try to take an optimistic view.
And it's historically been the case in this country for understandable reasons that in times of crisis, we overreact.
And it has historically always, always been the case that in the years or decades after those overreactions, we've come to recognize our mistakes, to regret the overreaction and to try to put in place protections that will stop it from happening the next time.
And I still have hope that we have yet to see that recalibration of our politics to be more in line with our values.
And I think I think we'll get there.
We're quite obviously not there yet, but I have hope we'll get there.
All right.
Thanks very much for your time, Alex.
I really appreciate it.
Thanks so much for having me.
All right.
But that is Alexander Abdo, staff attorney, National Security Program of the ACLU.
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