Alright y'all, welcome back to the show, it's Anti-War Radio.
I'm Scott Horton and our first guest on the show today is Alexander Abdo.
He is a fellow in the ACLU's National Security Project, he's been involved in the litigation of cases concerning the Patriot Act, the International Emergency Economic Powers Act, and the treatment of detainees in Guantanamo Bay, Afghanistan, Iraq, and the Navy brig in South Carolina.
Wow, I'm going to have to interview this guy over and over again from now on I think.
Graduate of Yale and Harvard Law School, welcome to the show, how are you doing Alex?
I'm doing great, thanks for having me on Scott.
Well I really appreciate you joining us here.
I'm sorry I can't ask you about every one of these things in the half hour we got, but let's start with this new ACLU report, Establishing a New Normal.
First of all, maybe it's obvious, but maybe not, tell us about this title.
That's an interesting question.
The title tries to convey that the real danger that the new administration is seeing in its handling of national security policy is enshrining the principles that we thought we had repudiated when the Bush administration left office, and in so doing is establishing the so-called new normal, putting into the law and institutionalizing in other respects some of the worst aspects of the Bush administration.
Well now, I think on this show over the years we came to consensus with many reasonable lawyers.
The David Addington, John Yoo, Dick Cheney, therefore George Bush view of the Constitution and the law and their role in history and whatever was that they wanted to wage a war against the law.
They wanted to prove, they wanted to set precedents even when it was policies that they weren't really going to necessarily do anything about.
They wanted to just draw a line just to cross it and just to prove that they could, that the commander-in-chief is the commander-in-chief, he has all this plenary authority, and that really what we saw was a revolution within the form of the presidency in the U.S. government.
That's exactly right, and one of the, you know, I should also point out that our report goes to great lengths to document some of the very significant and important things that the new president has done with respect to national security, and one of those was abandoning the commander-in-chief rationale that you and Cheney and others had used to justify not only the harsh treatment of detainees captured and held abroad, but also the legal structure that applied at Guantanamo generally.
Although the President Obama has abandoned that, those most extreme of the legal arguments made by the Bush administration, he sought to create a place within the law to hold detainees in a similar way.
The proposal for handling Guantanamo, although we applaud him for seeking to close it, is to create a similar facility in Thompson, Illinois, where individuals can be militarily detained without charge or trial based on the executive's say-so and the minimum of due process.
That's the danger, is that although the President has abandoned the efforts of the Bush administration to navigate around the law, he runs the risk of enshrining into law those principles.
Well, and based on an extremely overbroad reading of the authorization to use military force, right?
That's right, and that's something that's been consistent between the Bush and the Obama administrations is a very broad understanding of the authorization for use of military force and understanding that would allow the United States essentially to wage war anywhere in the world against anyone that the government determines is an alleged enemy combatant.
And we already know the risks associated with executive determinations of enemy combatancy.
The Bush administration detained, I think at the height of its detention, around 750 or 800 people at Guantanamo, but voluntarily released approximately 500 of those because vast majority of the individuals detained there were picked up not on the battlefield holding guns, but on the basis of bounties offered to Afghans to turn in individuals.
And a large number of those were released as they properly should have been.
But the bottom line is that mistakes were made.
And so now that President Obama seeks to hold people, you know, pursuant to a similarly broad understanding of his war authority, we run the risk of having those same mistakes being made by a president who, at least on the surface, has a marginally better understanding of due process.
But that creates a risk of, like I said, enshrining that principle under the guise of better conduct.
Yeah, establishing the new normal, bringing Guantanamo Bay inside the borders of the United States.
I mean, the Bush crew, they put it there in the first place to try to get away from the courts.
But now the court said, no, you can't do that.
We can go where we want to.
And then, but so now if they want to bring the thing here inside the United States, then I mean, that really is the war comes home in practice.
And how long would it be before you have people arrested inside the United States who are just turned right over to that system now?
That's a good question.
And it brings up another point, which is another way in which the Obama administration has carried on a policy of the Bush administration is through its use of so-called targeted killing through drones.
And we now know that the Obama administration, or at least we are told by anonymous leaks to the media, that a US citizen is on the target to kill list.
This is a US citizen who's living now in Yemen, and he's been put on a list, despite the fact that he's far from any battle zone, and at least not publicly alleged to be part of any armed conflict.
And so you have this military authority leaking into what would traditionally have been a law enforcement paradigm.
And that's the transition that the Obama administration has been making in a number of key areas is essentially militarizing areas of the law that have traditionally been left to criminal law enforcement.
Well, and I wonder how quickly that can come back the other way, because my understanding, and I'm no lawyer, but I thought that a US person, as defined by the courts anyway, was an American citizen anywhere in the world or any person inside the United States.
And so if they can murder al-Awlaki in Yemen, and he's a US person, then they can murder anyone they want inside this country, too.
The precedent is already laid out, right?
And by the way, just for the record, Dennis Blair and John Brennan, both on the record, said that they had a plot to kill this guy.
Well, that's right.
And we recently have initiated litigation around this topic.
And so it's becoming an increasingly interesting area, unfortunately.
But that's right.
He is a US citizen.
And the power that the government appears to be claiming is that based on their global war understanding, anywhere where an alleged any combatant is, is properly targeted through the use of lethal force.
And we can't very well claim that authority and not expect other countries to do similarly, which would potentially create some very interesting situations where you had other countries engaging in extrajudicial killing of individuals outside of their borders, far from any war zone.
Well, now, I actually talked with a lady from the Center for Constitutional Rights about y'all's joint lawsuit about this Al-Waki case.
And I guess y'all got past the hurdle about getting permission from the Treasury to represent the father of Al-Waki, who is, I guess, the only person in America who has standing, perhaps, to sue the government preemptively to put an injunction on Obama or something, ordering him to not murder this guy's son, right?
That's right.
So, we're proceeding toward litigation, representing Nasser Al-Waki, the father.
And in the midst of our preparations, the government designated Anwar Al-Waki a specially designated global terrorist, which is, there's a whole regulatory scheme around this label especially designated global terrorist, which is a scheme that we're also challenging in other areas based on a lack of due process and a failure to require a warrant and probable cause.
So, that scheme has its own troubles, but it came into play in the Al-Waki case as well.
All right, everybody.
It's Alex Abdo.
He is a lawyer at the American Civil Liberties Union, and we're talking about Obama's establishment of a new normal, George Bush's revolution.
We'll be back right after this.
All right, y'all.
Welcome back to the show.
It's Anti-War Radio.
Scott Horton, and I'm talking with Alex Abdo.
He's from the American Civil Liberties Union.
I need to get one of those cards to carry, and I can be a card-carrying member like Alex.
All right.
So, here's the thing.
I got this terrible cognitive dissonance.
My pitiful little brain, Alex, it doesn't want to accept the thing that you're telling me, or it's refusing to understand in a way that would be considered having my head wrapped entirely around this idea.
Are you really telling me that it's the case, that Obama's asserted power to murder American citizen Anwar al-Waki in Yemen is no different in a legal sense than him claiming the power to murder me here in America, a born American citizen here inside the United States?
Well, no.
There's a difference, and the difference is one that the administration has not been forthcoming about.
It has yet to discuss publicly at all the legal authority that it's using to claim this power, and that's an extremely important question, which is, what are the factors that allow the government to do what it's trying to do, and who are the people, not specific individuals, but who are the class of people, as defined by law, who the government can kill without first getting a conviction in a criminal court?
Remember, that's traditionally the way that the government goes about imposing the death penalty, is pursuant to a criminal conviction, which has...
Or kicking in your door in the middle of the night.
Oh, sorry.
Go ahead.
Well, or if there's a case of imminence or self-defense or something like that, but the traditional way that the government goes about, in a premeditated fashion, imposing the death penalty is after a lengthy criminal process, and it has yet to articulate the legal basis for the targeting of the US citizen, Anwar al-Awlaki.
Well, so what about David Addington and John Yoo's memos?
Did they ever go this far and say it was okay to murder American citizens?
I mean, I know that they did a drone strike in Yemen where an American citizen died, the guy that they tried to connect to the Lackawanna 6 there, but he was not the target.
He was collateral damage.
It was his fault for riding in the truck with the guy they were trying to kill, and I don't know if they ever wrote up a memo legalizing that either, but I really wonder about the Office of Legal Counsel and the White House Counsel's Office right now, and who do they have doing such a powerful Addington impression up there in the Obama team?
Well, the original Yoo memo actually had a portion where, if you remember, the memo kind of went through a several-step process discussing what might be the legal limit on the president's authority in conducting war and in protecting the national security, but in the very last section, he says, none of these limits might apply depending on the extent of the commander-in-chief authority, and that's what you talked about earlier, and when asked about that section later on, Yoo was asked whether it would be okay to crush the testicles of a man to get answers to a question, and his response was, it depends on the president's supposed need.
So it certainly seems that at that time, the Bush administration thought that there were very few, if any, limits on the president's authority to conduct national security operations.
But they eventually repudiated those memos themselves, right?
That's exactly right.
So Obama and his guys must have had to write up, I wonder if they let Hillary Clinton write them.
Oh, wait, sorry, that's kind of outside her job description, isn't it?
Sounds like the kind of things she would write, though, doesn't it?
Well, we have now hopefully a former dean co of the Yale Law School who is now a counsel to the State Department working on these issues, and he's someone who has a keen understanding of international law, although he's having the same problem that the president is having, namely articulating the legal rationale that applies in this situation and why the president and the executive claim this authority.
It's a very important question, and it's one that we still don't have an answer to.
Yeah, well, never mind international law.
What about American law, where the president can just go around murdering people?
You know, the difficulty here...
Sorry, but I was raised to believe that the phrase, this is America, excluded things like that from being remotely possible.
That is, of course, the background rule is that murder doesn't happen.
The difficulty in this situation is that the government is claiming that there is an armed conflict that extends throughout the world.
In the traditional law of armed conflict, it's, of course, fine for people to kill each other so long as they are lawful participants to that armed conflict.
Here, though, the government has taken a new understanding of what it means to be in an armed conflict and extended it across the world to a global war paradigm.
That creates a very significant risk that we'll see other states act in a similar fashion.
It essentially obliterates the distinction between civilian and military jurisdiction, which has been a very important distinction historically in this country.
Are you guys suing to get these memos released?
We have sued for information relating to the targeted killing program, although so far the government has stonewalled the request.
The CIA, in particular, has refused to either confirm or deny that it has documents relating to a supposed targeted killing program.
Well, John Brennan, the head of counterterrorism, told Eli Lake at the Washington Times that there were dozens, which I suppose, if we're lucky, means less than 100 American citizens worldwide on a list of people to be killed or to have whatever done with them by the CIA or the Joint Special Operations Command.
We also have heard from CIA Director Leon Panetta several times in the media about this program.
It is somewhat strange that the CIA is, in litigation, taking the position that it can't confirm or deny the existence of the program, but seems free to talk about it, at least in general terms, to the public.
All right, now, relative to this, the next issue sounds maybe minor, but then again, no, it couldn't possibly be minor.
This is one of the most important values of our entire society, and that is freedom of speech.
Something that I have just, I don't think, ever covered on this show in any detail or asked a lawyer like you about are the free speech zones, and how is it possible that these people, I mean, jeez, they already have their motorcades of all these helicopters and suburbans and everything that will take up your whole city, like they're the emperors of the world traveling around, but they can pin people in cages and say your protest is legal as long as it's inside a fenced-in area far away from where any American politician might have to witness your dissent.
I mean, how in the world is that able to continue on?
And people go to jail for protesting outside the zones and things.
This is crazy.
Well, I'll confess that I don't do a terrible amount of work on free speech law and protest zones, although that is, of course, a very significant concern of the ACLU.
But with respect to the overlap between free speech and national security, there is certainly a lot to be concerned about, particularly if you're an American who travels with electronic devices, for example.
This administration, like the last administration, has claimed the authority to search, seize, and copy electronic devices carried into and out of the border by American citizens.
That means that you could be coming back from a business trip in London or Paris carrying a laptop full of your sensitive business information, and someone with Customs and Border Patrol could seize it, make a copy of it, return the original to you, and keep the copy free to search whenever Customs and Border Patrol wants to.
It's without a warrant, without probable cause, not based on reasonable suspicion.
So it's quite a broad assertion of authority and quite a troubling one from a privacy and speech perspective.
I read this thing.
It was a dissent in, I think it was an appeals court case, upholding a lower court decision that said that as long as a car is parked outside, then cops can put a GPS tracker on the thing.
And the dissent said, what are you talking about?
So if somebody can afford a two-car garage, then it's not okay for the cops to break in and put a tracking device on their car, but if they can't afford a two-car garage, only a carport maybe, or they have to park on the street, now it's okay for the cops to put GPS tracking device on their car?
That's right.
That decision is part of a troubling series of cases now, upholding the government's authority to place GPS tracking devices on cars without a warrant, without probable cause, without even reasonable suspicion.
All right.
Well, I'm sorry we're all out of time, but thank goodness for the ACLU.
I sure appreciate your time on the show today.
God bless.
And all the work you guys do.
Thank you.
Yeah, without those guys, you would have a GPS tracking device on your car right now.
You might already anyway.
