All right, y'all, it's Antiwar Radio on KAOS 959, 92.7 in Austin, Texas, streaming worldwide on the Internet, KAOS959.com, Antiwar Radio, and very happy to welcome to the show Melissa Goodman.
She's a staff attorney with the ACLU's National Security Project.
Hi, Melissa.
Hi.
How are you doing today?
I'm doing great.
Good.
Good to have you on here.
Quite impressed when I went Googling your name and seeing the kinds of projects that you're working on.
Well, that's very kind, thank you.
And listen, we can spend a good, just almost 40 minutes here talking all about these national security letters and all these other things, but can I ask you something?
Sure.
Because I like to be a fan of the ACLU.
You guys do so much good work.
When Sebelle Edmonds needs a lawyer, there's nowhere else for her to go.
And you guys are great.
And yet, I wonder why you are not the nation's biggest champions of the Second Amendment.
After all, it's part of the Bill of Rights, and it forbids the national government from outlawing guns.
And it seems like if the ACLU would go ahead and be champions of all of the Bill of Rights, that you'd probably have a lot more support from wide and varied segments of society that sort of see you as the kind of people who will protect all of their rights except their right to protect their own rights.
Well, that's a fair point, Scott.
I have to be honest with you that I'm not an ACLU lawyer who does any work on the Second Amendment, and it's probably a question best posed by someone more knowledgeable than I am.
To be frank, I focus here on national security work, and I'm actually, frankly, not entirely familiar with kind of the ACLU's history on the Second Amendment.
I apologize for that, but I'd be happy to learn more and come back to you so I could more properly answer that question.
I apologize for putting you on the spot about it.
It's the one little thing in the back of my head like, well, you know, there's 10 of them, so let's protect all 10 of them there in the...
Yeah.
No, I hear that.
No, and there's plenty of people here at the ACLU who are probably much more articulate than me on that, and then I would encourage you to try to find one of them and see if they'd be willing to answer the question.
I just don't want to say something wrong, but I think it's a fair question and be happy to try to find out more.
Okay, great.
Okay, now let's get to what you are, in fact, an expert at.
There's the article I saw.
We ran a link from antiwar.com.
New documents reveal expanded military role in domestic surveillance.
Tsk, tsk, tsk.
As here, hundreds of national security letters have been issued by the military in investigations of people inside the United States.
Is that right?
That's what the documents, you know, turned over to us reveal.
The documents reveal that the military is using national security letters to gain access to personal financial and consumer records, and they're doing it in secret, and they're doing it without meaningful oversight.
Now it's hard to tell exactly what they're trying to learn about from the NSLs.
They're heavily, you know, blacked out.
We don't know precisely how they're using them and why, but it certainly provides some more evidence that the military may well be, you know, expanding its role into domestic intelligence gathering.
Let's define national security letter.
That's a warrant without a judge?
National security letters are something that we've been worried about for a long time.
A number of government agencies are able to issue these letters, and they're just letters.
They're not warrants.
They're not approved by a judge beforehand, so the FBI or DOD, you know, typing up a letter and turning it over to and sending it to an Internet service provider, a financial institution, a consumer reporting company like Equifax and saying, we need these records about person X or something like that in order to conduct intelligence gathering activities or because they are relevant to a terrorism investigation.
There are demands that the FBI or others can use to get at your personal information without a court approving it beforehand.
And now I spoke on the show with Brandon Mayfield yesterday, and if I understand correctly, this power was granted to the FBI in a limited way to the DOD in the Patriot Act, and those portions were recently struck down in his case.
Is that right?
Well, actually, the power existed before the Patriot Act, but the Patriot Act very, very widely expanded the power.
It allowed the FBI and in some limited circumstances, as you say, the DOD, to issue national security letters to get at more types of information and to get at people who may not themselves be suspected of being terrorists or spies.
They merely needed to be relevant to a terrorism investigation.
And part of the issue that was involved in the Brandon Mayfield case, a very important one, is slightly different, but sort of related to this whole expansion of the ability to get at your information without real court oversight.
It struck down a different power than the one described in your article then?
The power that was struck down in the Mayfield case was actually this really important change in the law that was made through the Patriot Act that said, it used to be that when the FBI wanted to get what's called a FISA warrant.
The FISA court is actually the secret court that sits almost entirely in secret and issues warrants to the FBI to spy on suspected terrorists and spies, essentially.
And before the Patriot Act, the government could only get one of those warrants if it said that its primary purpose in needing the information was to gather foreign intelligence, not criminal evidence.
Because the Fourth Amendment requires probable cause to think you've committed a crime and all sorts of other things before they can listen to the content of your calls.
So the Patriot Act, what they changed was no longer true that the government has to say their primary purpose or their only purpose is foreign intelligence gathering.
It merely needs to be a significant purpose.
And what that essentially did was it gives the government the power to go to the secret court where it's easier to get warrants, where they don't have to show criminal probable cause and spy on people, but possibly use it in criminal cases.
So it's sort of an end run around the Fourth Amendment's criminal probable cause requirements.
And now, I'm sorry, this is just a parenthesis, but is it right that the FISA court is actually located inside the Justice Department building?
Is that relevant?
Does that mean anything?
It's a very good question.
In fact, the FISA court is a really interesting kind of beast.
It is true that the FISA court is located, for now, in the Department of Justice.
Interestingly enough, the ACLU has actually tried to litigate certain times in the FISA court, and we've had some interesting experiences doing that.
But recently, it was reported that the FISA court may well be moving out of the Department of Justice and into the regular federal courthouse nearby.
But definitely, I think there was some interesting symbolism, and is some interesting symbolism involved in a court being located literally in the government building.
Yeah.
I guess I probably should have worked harder and gone to law school or something so I could understand these things.
But I hear people talk about an Article II court versus an Article III court, and I'm thinking, well, wait a minute.
I don't remember any courts in Article II.
I'm confused.
It's an interesting thing.
No.
I mean, it's really, you know, having a separate independent judicial branch, which is what Article III of the Constitution sets up, is a really important thing.
And yes, there are sort of different kinds of courts that are created sometimes by Congress, sometimes by the executive.
It's a strange concept, but most courts are pure Article III courts that are independent and are supposed to have the job of checking the other branches of government.
Well now, if I remember right, the only time the FISA court had ever even turned down FBI's request, FBI agents' request for a warrant before 9-11, was when they wanted to tap the phone of John Wong, Bill Clinton's money connection guy.
You're talking about FISA warrants?
Yeah.
I mean, wasn't it the case that the FISA was always just a rubber stamp and it was retroactive?
You can start spying on whoever you want and tell the court about it later.
Well, I don't know about that particular case, but I do know having kind of studied the statistics from when the FISA court was created since 1978, it is true that while the government has at this point probably filed something like 20,000 FISA warrant applications, the court has only rejected probably five, that's approximate.
But I think you could probably count on one hand the number of applications they've actually denied.
And that's an extraordinarily low number.
And it's important, I think, for people to understand that when you're kind of considering this debate you're hearing in the papers and in the halls of Congress these days about FISA and whether it's not a good enough tool and whether the government needs more power.
The truth is before recently, they never seemed to have a problem going to the FISA court and getting warrants.
So people should just keep that in mind.
Right, right.
How do you see them expanding this power when they all had the power that they needed in the first place?
They just didn't do their job.
Right.
While there might be sort of legitimate kind of quirks and problems, the government has really not come forward and proved that they need all of these new powers.
And as we've seen through a lot of our different cases and through these documents, they haven't proved to us that they're using their power wisely.
All of this new spying power we've given them, or all of this new expanded power, we don't know if they're using it well.
We don't know if they're using it to track down actual terrorists.
We don't know if they're using it merely in a way that kind of wastes resources.
And we don't know if they're doing it in a way that violates our rights.
And we really haven't called the government to task on that.
We haven't said, prove to us that you need more power.
If they make the case, maybe they should have more power, but they just haven't made the case.
And instead, they've chosen to operate in secrecy in a way that really harms public debate.
And I just think we need more informed debate on the subject.
Well, as you say, there's so much secrecy about it and so many things that are simply questions left unanswered.
And yet, the few things that we do know seems like they're abusing and taking the Patriot Act not as a ceiling, but as not even a floor, a springboard or something.
In your article here on the ACLU's web page about these new documents that you guys have, you make the case that the DOD has a power to issue national security suggestions to people and try to persuade them to turn stuff over to the military, but really they're banned from doing that.
And so they're taking an end run and they're hooking up with the FBI.
And every time the DOD wants to do one of these national security letters, they just have the FBI do it, which I believe you make the case is contrary to the spirit and the letter of even the Patriot Act.
Well, just to be clear first, DOD does have some power to issue national security letters, but it's incredibly limited and it's much more limited than the power the FBI has.
If DOD sends someone or some corporation a national security letter, the corporation is free to throw it in the trash.
It's a request.
It's not a demand.
They can't demand that you turn over the information.
And there are certain kinds of information they can't get.
For example, records from your internet service providers, only the FBI can get those.
So there's questions about whether they're writing their national security letters in such a way that suggests to someone who gets one that they have to comply with it.
And we know from documents that were released to us that at least to some portion of the DOD requests, almost no one has thrown them in the trash.
Everyone turns over the information.
The question of whether they're going to the FBI is a really interesting one and an important one because both agencies have clear limits on their power.
And if the DOD is asking the FBI to issue national security letters in purely military investigations, it does seem like they're trying to create some kind of end run around their own limitations, and that should be looked into.
And also you say in here that they've been providing quote misleading information to Congress.
Is that a nice way of saying perjury?
Well, one kind of contradiction we saw in the documents is that one document was answers to questions that the Defense Department had provided to Congress sometime, I want to say in March 2007, I might be wrong about that.
No, I'm sorry, it was in January.
And in that document they say, in response to this question of whether they were turning to the FBI, they said, we only turn to the FBI in joint DOD FBI investigations.
We do not ask the FBI to issue national security letters in purely military investigations.
But in another document, which was an internal program review that DOD conducted about national security letter use, there's a statement in there that suggests that DOD does in fact have the power to request from the FBI, NSLs in purely military investigations.
So those two statements seem very contradictory, also should be examined if they're not giving Congress the full picture.
And of course, another part of this is the gag orders, the secrecy imposed on the people who received these things.
And that's, I guess, the famous case of the librarians up there, it was in Connecticut or something.
Yeah, no, we were proud to represent the librarians as well.
And so how about that?
You own an ISP and the government comes to you and says, here's this pseudo warrant thing, turn over all this guy's search terms or whatever it is, and then that ISP provider, even though he hasn't done anything wrong, he is now having his right to speak violated and is not even allowed to tell.
I think I read somewhere these people aren't even allowed to tell their lawyers or something.
Well, very interestingly, one of the biggest problems about national security letters is that they come with a gag.
And we have actually filed cases about this specific gag and secrecy issue in two cases.
We have one case that's still ongoing on behalf of an anonymous internet service provider.
I'm still not allowed to disclose the plaintiffs in that case.
And that case is ongoing.
And we challenged the statute that allows the FBI to demand these records and gag everyone in kind of an unconstitutional way.
There was another case where we represented, yes, this group of librarians who received a national security letter and were told that they couldn't speak to anyone about it.
And when they got the letter, the law at the time did not make clear at all that you could even talk to a lawyer when you got one of these letters.
The law now has been amended and it's clear that you can, but the people who have gotten national security letters, who are the people who have the only, besides the government, the only first-hand knowledge of how the government is really using this intrusive surveillance power are precisely the people who aren't allowed to speak about it.
So it's why we really have a problem and kind of a skewed debate about the Patriot F power because the people who know how the government is using it can't talk.
Did you watch Cheney's Law last night on Frontline?
No, I T-voted, but I haven't watched it yet.
Oh, okay.
I was going to ask you whether there was one thing that kind of stood out about the decision making process in the Vice President's office there.
Oh, unfortunately I haven't watched it, but I can say more generally based on my study of Cheney's views of executive power that I think the thing that is really hard to comprehend, and it's hard to comprehend even if you spend every day working on this stuff like I do, the extent to which their claims are truly radical, their views of executive power as kind of the strongest, most powerful branch that gets to ignore the restraints put on it by other branches or the checks put on it by other branches is truly radical and is not at all in line with what the framers of the Constitution intended.
And what we've seen over the past few years across surveillance, across torture, across detention, is this attempt to kind of make this very radical view of executive power into the law and into policy.
And unfortunately, they've been tremendously successful in doing it.
And I'm sure once I watch the program, I'll have a bit that surprises even me, but everything we're seeing is really in service of this goal of creating an extremely powerful executive that looks much more like a king than the president that the framers intended to have.
Well, and it's really not so much establishing that in law.
It's just establishing that there is no law except that he's the commander in chief, that basically no law binds his power.
That's the ultimate premise that they're operating from.
Yeah.
I mean, there's lots of dangerous things that are going on in the world and a lot of horrible things.
But fewer is dangerous as the notion, yes, that the people in power do not have to abide by the rules.
And when they're called to account for violating the rules, that they can try to hide their behavior or avoid accountability or hide it under the rug, it's what we've seen in many of our cases.
Some of the most egregious cases, cases that challenge the kidnapping and torture of people at the hands of the U.S. government based on these views of executive power and swept under the rug when you go to court to challenge them.
What's the significance of the Supreme Court refusing to hear the case of the guy that was renditioned from Germany last week?
We were deeply, deeply disappointed by that decision.
And what it means practically, to be very blunt about it, is that the U.S. government can kidnap people off the street, hold them for months, torture them and not allow them to speak to their families and simply release them.
And when the world learns about it and they go to court to seek relief from what happened, the horrible things that happened to them, the government can invoke secrecy and tell the court whatever they did was too secret for even the court to hear about or decide.
And the court going along with that kind of expanded view of secrecy is really quite dangerous.
And it really means that it's extremely difficult to hold the government to account for even the most shameful and egregious violations of people's rights.
So that was the excuse.
It wasn't that there was some narrow technicality where maybe they'll hear another case like this some other time it was filed in the wrong court.
Their excuse was, no, it's too secret for us to know about the nigh on the court.
What the lower court, what the appeals court said was we have to dismiss the case because we can't litigate it without the state secret, you know, important state secret coming out.
We can't redress this guy's harm because it's too secret.
And the Supreme Court let that stand.
So, yes, it's about the government successfully claiming that they're kidnapping and torture of someone with too secret to be held to account for it.
There's always trials of people where there's classified information at stake, right?
Here and there.
I mean, isn't there a process for, hey, you're a federal judge, you're sworn and you're allowed to have a security clearance and know these things.
We're talking about federal judges here.
They're not, they don't have the security clearance?
It's a wonderful, wonderful point.
All judges inherently have the authority to look at classified information and have a security clearance.
And you're right, in the criminal process, there's a statute.
There's a whole law that governs how you deal with classified information in a criminal case.
One of the interesting things we've been seeing in the last couple of years is that, unfortunately, or fortunately, I don't know, it depends, there's no statute that controls what happens in a civil case like Mr. Al-Masri's case or the other cases that we bring, you know, civil constitutional cases you bring in a regular federal court.
There's no statute that controls it and what the government has successfully done in many cases is just come in and at the very outset of a case, they claim something that's called a state secret privilege and they say, we're going to stop this case right at the outset because the information we need to litigate this case is too secret and there's no statute that controls it.
And it's up to the courts to decide whether they want to accept the government state secrets claim or not.
Some courts have rejected it in the last couple of years, but many more courts have also accepted it, unfortunately, and it's a much larger problem.
That's funny.
State secret sounds like something out of the United Kingdom that America declared its independence from a couple of hundred years back.
All of this really goes to the heart of the democratic system that was designed hundreds of years ago and the idea that the executive branch could operate with this level of secrecy was really never what was intended.
For sure, there are certain things that legitimately need to be kept secret, but more and more we've seen these blanket claims of secrecy over matters that not only it's difficult to believe that talking about them would cause harm to national security, they're often matters that are already quite public.
The truth with the Al-Masri case, the example we've been talking about, the entire world already knows that he was kidnapped and held and tortured by the CIA.
European governments have investigated it.
Germany has indicted CIA agents for their role in kidnapping and torturing him.
European international bodies have investigated it.
It's information the whole world knows and basically everyone in the world can talk about what happened to Mr. Al-Masri, but he can't go to court to talk about it and there's something quite perverse in that.
I just read something the other day that said that the case, I guess it was in the 50s or something at the beginning of the Cold War where they made this state secret's privilege up.
The court invented it.
In the case, the Air Force was just lying.
They invoked it in order to cover up mechanical failure.
There was no state secret about it at all.
You're very right.
In that case, it's the Supreme Court case that kind of is recognized as establishing this whole privilege.
Yes, years later- Was it your article where I read that?
What's that?
Was it your article that I read that?
It might have been.
It might have been, but certainly when everyone was quite surprised to learn, yes, it was about the government had come in and claimed this accident report that had caused a military accident with the state secret.
Many years later, family members of the victims of that accident through the FOIA, I believe, got the full accident report.
When they read it, they realized there was no dangerous or secret information in it at all.
Instead, it proved that the government was probably negligent and caused the accident.
There was no state secret.
It's pretty clear that the government lied and lied to the Supreme Court.
Yes, that's a pretty shaky ground to create a privilege on, I think.
Okay.
Now, when we're talking about all these new surveillance powers under the Patriot Act, internet service providers, banks, and other financial institutions, and so forth, having to turn over these records and sneak and peek warrants and all these kinds of things, can you tell me, Melissa Goodman from the ACLU, who are they spying on?
Are they actually going after the terrorists like they say, or are they investigating the bureaucrats in the house they don't like, or what's going on?
Well, that's one of the biggest open questions and reasons we're just trying to learn more and we're concerned.
In the DOD's case, I don't know who these national security letters they released to us were investigating, but I do know that there's been other revelations and other stories in the last few years about the Defense Department using its counterintelligence power to investigate anti-war protesters and people engaged in peaceful protests and labeling them credible terrorist threats.
If that's how they're using their national security letter power, that's the problem.
If they're using it in a more limited way, as they have suggested they are, then fine.
But we should know about that, and the public should have a better understanding about whether these powers can be used to investigate normal folks like you and me who aren't suspected of any real wrongdoing, or whether they're actually being used to investigate real suspected terrorists.
And I think any government power, when you give any government the power to spy on people in secret and without meaningful court review, you will always run the risk that that power will be abused, and we're just trying to make sure that that's not what's happening.
And I guess the loophole that they're using is they're saying, well, for example, in the phone records they say, and not just the records but the taps, I guess, as well, that it's all about foreigners and foreign terrorists, but they play the Kevin Bacon game or whatever with degrees of separation, and it turns out that they figured that they can tap anybody's phone anytime they want, basically, right?
To talk about the phone and email tapping.
Their line all along is, you know, we just need to listen to foreigners or two people talking to one another in foreign countries.
Nobody disagrees.
I mean, first of all, nobody thinks you need a warrant to listen to two people talking in another country.
But the truth is, when you get to international calls and emails that we send or receive here in the U.S., the truth is we have a privacy interest in those communications, even those we send abroad to our friends in London or what have you.
And the truth is, no matter what they say, you can't erase the fact that on one end of those international calls is a U.S. citizen or resident who has a privacy interest.
So that part of it can't be ignored.
And I think the government is trying to erase that part of it from the debate.
Do you see any movement in Congress, certain committee chairmen or anything, who are genuinely taking up the case against this expansion of power?
Well, it's a better question for our legislative folks.
The ACLU has a whole separate legislative office, but I will say one thing on the national security letters.
There are two good bills pending in Congress introduced by Representative Nadler and one introduced by Senator Feingold, both of which would bring a lot more accountability to this NFL situation and really rein in some power.
I think in light of these DOD documents, those are bills that Congress should take up and consider.
Now, can I ask you about the Military Commissions Act and that angle?
Are you familiar with that?
No, I'm not.
I'm probably not the best person to talk about that.
Okay.
Unfortunately.
I know something that you can answer for me.
What's the difference between a national security letter and an administrative warrant or an administrative subpoena?
I guess, first of all, are those last two the same thing?
And then what's the difference between those and a national security letter?
It's a good question.
Technically, they're not legally the same thing, but in practice, they kind of are.
Administrative subpoenas, they're kind of just the same thing by different names.
For the government to issue an administrative subpoena, they have to have the statutory power to do it.
They can't just demand records all over the place.
They're really sort of, in practice, similar.
But it's hard to answer that question in a non-legal, boring way.
They're basically both powers that the government agency can exercise before going to a court.
It's all about how meaningful the judicial review after that is or whether you have a right to challenge them.
They're sort of similar, but technically, national security letters are not administrative subpoenas.
Administrative subpoenas should not be confused with actual court subpoenas that mean a court has approved them and there's a real court behind it.
Administrative subpoenas or national security letters have no such court involvement at the outset.
They're just the FBI or DOD typing up a letter and saying, I certify that we need this information and it's important.
There's no court involved whatsoever.
Okay.
Now, what is an administrative warrant?
Is there such a thing or that just means administrative subpoena?
There are certain things called that.
I have to be honest.
I'm not really prepared to answer that question in a way I think might not make it wrong.
So there's just all sorts of different kind of powers that have different names like that.
I think there might be something that is separately called an administrative warrant, but frankly, I couldn't talk about it knowledgeably right now.
But you do say in your article that the Inspector General of the Department of Justice in March had found 143,000 administrative subpoenas, but the national security letters.
Yes.
Back in March, there's evidence of abuse of national security letters kind of all over the place.
And one thing we learned back in March is the DOJ, Department of Justice Inspector General actually investigated the FBI's use of national security letters and found tremendous problems.
And one of the most disturbing things it found was that the FBI had actually issued thousands and thousands more NSLs than it told Congress it issued.
And the numbers that the DOJ came up with were pretty scary.
There was over a two-year period from 2003 to 2005, they issued over 140,000 national security letters.
That means they've investigated that number of people as being relevant to terrorism or counterintelligence.
It seems like a very high number.
That many people within these borders?
Yes.
Those are demands to get at, well, records at least, that are within our borders.
Yes.
Wow.
It's a high number.
I'm trying to imagine 143,000 Al Qaeda guys running around the United States.
It doesn't quite seem plausible.
If that is the true number of terrorists, yes.
The problem is extremely large and very scary.
And it is very difficult to believe there are that many active terrorists in the United States.
If there are, that's a problem.
They should be investigated.
But again, I don't think there are that many.
Well, it is seven degrees of Kevin Bacon, right?
I once interviewed a guy who knew a guy who lived in the same neighborhood as a guy who had an uncle who joined the Mujahideen in the 1980s or something.
He tapped my phone, recorded my interviews, and actually, I kind of like it.
It makes me think if the computer crashes and I lose my recording, then I can just call the National Security Agency and have them provide the backup.
Have the backup.
Yes.
No, I mean, this whole six degrees of separation thing is really a problem.
The Fourth Amendment is based on the idea that before the government gets to investigate you and find out personal things about you, they have to suspect you of something.
And if you accept the idea that we need to go 20 degrees of separation away from a suspected person, then you're really just engaging in a fishing expedition.
And that's one of the major problems that caused us to fight the Revolutionary War and create a constitution that wouldn't allow that anymore.
All right.
Melissa Goodman, ACLU staff attorney on the National Security Project, thank you very much for your time today.
Thanks very much.
Bye bye.
