ARI SHAPIRO, HOST:
Drones, surveillance, torture, rendition, Guantanamo Bay, Cuba - those are just some of the subjects over which Jameel Jaffer has fought the U.S. government. He's head of the ACLU's Center for Democracy, and now he's leaving. So we've invited him to talk about his time fighting some of these national security battles.
Jameel, after interviewing you probably dozens of times about individual cases over the years, it's nice to have you here to talk about the big picture. Welcome to the show.
JAMEEL JAFFER: Thank you. It's good to talk to you, too.
SHAPIRO: I've heard people describe you as a check on the worst excesses of the federal government. I've heard people describe you as a gadfly. I've heard people describe you as an impediment to keeping the American people safe. How would you describe what your role at the ACLU has been?
JAFFER: Well, probably the first two of those three things I think are probably accurate. The last one...
SHAPIRO: Not the impediment to keeping America safe.
JAFFER: ...I hope isn't - yeah.
JAFFER: A lot of these questions are very hard, and there's obviously room for reasonable disagreement about what the government's response to the very real threat of terrorism ought to be. But I think that there's probably widespread agreement now that at various points over the last 15 years, the U.S. government has crossed lines that it shouldn't have crossed. And the ACLU's role or one of the ACLU's roles has been to draw attention to those transgressions and to try to right them.
SHAPIRO: You know, you say these are difficult questions and people are going to disagree on what the appropriate position is. Have there been times that you've thought, well, you know, maybe what the government's doing is OK, but there needs to be someone pushing back, so I'm going to litigate this case even though I might not actually disagree with what's going on here?
JAFFER: No, never. You know, this is a luxury that I had in my role. I never had to make an argument that I didn't agree with wholeheartedly. And that's something that most lawyers can't say. But I was able to argue the things that I believed in, and I think that we were more effective because when we stood up in court, we always believed that we were right.
SHAPIRO: You've had lots of wins and lots of losses over the years, as any lawyer does. When you take a step back and look at the full tally, which direction do you think the needle has moved over the last decade-plus that you've been litigating this? Is America becoming more or less of the country that you would like it to be?
JAFFER: That is obviously, you know, the crucial question, and it's one for which I don't have an answer. You know, there are respects in which the needle has moved in the right direction. When President Obama came to office, he, you know, famously disavowed torture and closed the CIA's black sites, promised to close Guantanamo Bay and has made some progress in that direction. And I think that those were all the right decisions, and I'm glad that this administration has put energy into fulfilling those promises.
But at the same time, I mean if you step back and you look at some of the other decisions that this administration has made on national security and civil liberties issues, I think that the record is at best mixed. There was a dramatic expansion of the use of drones to carry out targeted killings, including in places far removed from actual battlefields. And there was a more or less wholehearted - well, a wholehearted defense of the National Security Agency's dragnet surveillance practices. There was a series of prosecutions of government whistleblowers, more prosecutions of whistleblowers than any other previous administration had been responsible for.
So you know, those are all very troubling things, and I think that a lot of Americans were willing to put these kinds of powers in the hands of the presidency because it was President Obama who is in charge. And you know, whatever you think of President Obama, these powers are now going to be in the hands of some new president and another president after that.
And I wonder whether the Obama administration's lawyers - I wonder how they will look back on some of the arguments they made, some of the arguments that allowed them to claim broad powers on the part of President Obama. Now those arguments will be used by another president, and I wonder whether they will regret some of the - some of their successes.
SHAPIRO: You know, it strikes me that in the years after 9/11, early on, there were a lot of high-profile Supreme Court cases where you could say that agree or disagree with the Bush administration, here's what the High Court has said about whether it's constitutional or not.
And the things that you take issue with in the Obama administration - for the most part, the Supreme Court has not weighed in on it. So you are objecting to positions the president has taken, but it's hard to say whether or not those positions will be viewed as legal or overstepping a decade or more from now.
JAFFER: No, I guess that's right. You know, one of the frustrating things as a litigator in this particular sphere has been the use of procedural arguments to derail litigation that might have resulted in rulings on the merits. So you know, if you think of issues like torture and rendition and surveillance and targeted killing, you know, there are very few cases in which the courts have weighed in on the merits of those issues.
I mean you can count the number of times on one hand - and you're talking with district court cases, not appellate cases, let alone Supreme Court cases, and that's because the Bush administration and then the Obama administration were very successful at persuading the courts to throw the cases out on threshold procedural grounds.
SHAPIRO: So you're saying you've wanted to have these fights in court, but the Obama administration has been able to use what you're calling procedural kind of technicalities to avoid a judge hearing the case at all.
JAFFER: That's right. I mean the Obama administration invoked the state secrets privilege to derail litigation about government surveillance policy, about...
SHAPIRO: The state secrets privilege is the government saying there is no way to try this case without compromising secrets that would harm national security, so a judge can't hear the case (unintelligible).
SHAPIRO: That's right. And that was the argument that the Obama administration used in some of the surveillance cases, in some of the drone cases. There are many other sort of procedural arguments that both the Bush administration and then the Obama administration were able to use to keep the merits questions, the substantive questions out of court.
And the result is that there are very few decisions in which the courts have weighed in on the lawfulness of government surveillance practices, on the lawfulness of the targeted killing campaign. And that's actually a pretty remarkable thing 15 years after 9/11. There are so few decisions that relate to the lawfulness of these very controversial policies.
SHAPIRO: So as a lawyer who enjoys actually fighting it out in court, is it almost more frustrating to you that so many of these cases have not actually been tried than it would have been to try and lose a case?
JAFFER: We file these cases knowing that we are going to have this fight at the threshold. We...
SHAPIRO: Fight at a threshold meaning, will a judge throw it out before they ever get to hear the arguments?
JAFFER: That's right. I mean we know that that's a possibility, and in some cases it - you know, it seems like a very significant possibility that that's the way the case is going to get resolved. We nonetheless bring the cases because it's a way of drawing attention to the stories connected to the cases. It's a way of drawing attention to the abuses that the cases represent. It's a way of influencing the public conversation or at least ensuring that there is a public conversation around these issues. You know, we wouldn't bring a case if we didn't think we had a shot at winning. But the shot at winning isn't the only reason to bring a case.
SHAPIRO: Well, Jameel Jaffer, thanks for taking the time to look back with us on your tenure at the ACLU.
JAFFER: Thanks for inviting me, Ari.
SHAPIRO: Jameel Jaffer is stepping down as head of the ACLU Center for Democracy to run the new Knight First Amendment Institute at Columbia University.
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