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Wendy Patten:I want to welcome everyone here to the Open Society Foundations and to this session, which is entitled Debating the War on Terror to appraisals of the Obama Administration, Human Rights and Counter Terrorism Policy. We are delighted to have with us here today this terrific panel and we expect a great discussion from both Jameel and David on the Obama Administrations Counter Terrorism Policies viewed through a human rights lens. This session is going to be expertly moderated by Charlie Savage, but before I turn it over to him, I just want to make a couple of announcements. First of all, this session is being live webcast on FORA.tv and its also being recorded and you can follow the discussion on about this panel on Twitter and if anyone who is doing so would like to tweet a question, they can also do that at #debateterror. Before I turn it over to Charlie, I also want to mention that if any of you needs to take a phone call, we would invite you to use either of the rooms on the side of the conference room which have little private spaces where you can do that. Now Id like to introduce Charlie Savage who will be moderating this discussion today. I think many of you know Charlie, he is a Washington correspondent for the New York Times and has been covering issues around counter terrorism and the US response to the terrorist attacks of 9/11 for many, many years. In addition to his work at the time, he was previously covering the national legal affairs for the Boston Globe and before that, he was covering issues of the Miami Harold in the early days for example covering the detention camp of Guantanamo. So were very lucky to have Charlie with us not only for his in-depth knowledge from his reporting and covering his issues and he also has written a fantastic book on the grant of executive power which is one of the main themes of this area which is called Takeover, the Return of the Imperial Presidency and the Subversion of American Democracy. That book won many awards as has Charlie from his reporting including a poetry prize for national reporting in 2007 for his coverage of presidential signing statements while he was at the Boston Globe and that has been an important issue within this area around counter terrorism issues. So were delighted to have Charlie with us and I turn it over to you to introduce our speakers and kick of the panel today, thanks very much. Charlie Savage:Thank you Wendy. Well you know, a lot of these debates on national security issues tend to have a formulated nature. You have someone on team republican and someone on team democrat and they come and they each say they're a guy had it better and the other guy is endangering national security or compromising American values or both. And that debate though has become a bit stale in the last few years as the Obama administration has come in and as counter terrorism policies have evolved and matured into a degree that was initially surprising represented a great deal of continuity with the bush administrations counter terrorism policies as least as they existed by the end of 2008 since those policies of course evolved over the course of that year administration as well. And so having someone come in from a right wing and someone from the left wing then take to argue about these sorts of things isnt really a debate anymore and what's very interesting about what were going to have today is that its a debate from the civil libertarian perspective, maybe the left of the ledger within that spectrum as well in which people are maybe view themselves as more sympathetic to the Obama administration and maybe even on a personal level know more figures than that government than the [Coughing] nevertheless find themselves torn a certain ambivalence in a debate amongst themselves about what to makehow Obama has been in some ways continuing Bush style policies. What that means, maybe what that applies retroactively about some of the rhetoric about president Bush and the previous administration as well. So it applies to administration it was hard on the right side of the civil libertarian ledger, people of Kato institute, I think were never quite sure whether they should be out throwing bombs or working behind the scenes to try to advance their point of view with their side and since 2009 that they are once being reversed. So its just not a question of confusion or being pulled in opposite directions but even if trying to figure out whether to see the glass as half empty of half full, first in-depth administration and now in this one, and the question is been raised in terms of political tactics that you engage again. But establishing certain critical distance and strongly criticizing or do you work behind the scenes and defend in hopes of persuading colleagues. So there are a lot of issues here that are very interesting and dont fall on the usual left to right access to think about. And today for the next hour and half or so, we have two extremely distinguished people who are basically on the same team and yet find themselves disagreeing from time to time and were going to try to work out where there's moments of agreement and disagreement and figure things out together. So the first is David Cole, he's a Georgetown University law professor where he teaches constitutional law and national security and criminal adjutants. He's a graduate of Yale undergrad in Law and also a volunteer attorney at the Center of Constitutional Right, legal affairs correspondent at the nation, regular contributor to the New York review of books, commentator of NPRs all things considered. He's written seven books including: Enemy Aliens, Double Standards, and Constitutional Freedoms and The War on Terrorism, which won an American book award. His also been involved in a number of important civil liberties cases over the years ranging from Texas v. Johnson and United States v. Eichman which extended first amendment protection to flag burning and to the case of [???][0:06:31.2] the Canadian citizen who had been rendered to Syria and tortured in the last administration. The other speaker today is Jameel Jaffer. He's the director of the American Civil Liberties Unions Center for Democracy, which houses the ACLUs work on national security, human rights speech privacy and technology since joining the staff of the ACLU a little over a decade ago, he's litigated challenges to the Patriot Acts National Security Letter Provisions, the NSAs Warrantless Wire-Tapping Program and the CIAs Targeted Killing Program. He was also one of the architects of ACLU versus the Department of Defense, which was the massive view of information act litigation that results in the release of Bush Administration of all tortured memos and hundreds of other documents related to the prisoners in military prisons and CIA black sites. He's a graduate of Williams College Cambridge University and Harvard Law. He's testified before congress, about issues related to government surveillance and since 2004, he's also served as a human rights monitor for military commissions in Gitmo. And as a fellow at the Open Societies Foundations here, he's working on a book about government secrecy and individual privacy since 9/11. So at the onset I would like to point out that even though this is styled as a debate, there's going to be much on which these two speakers agree. They're obviously coming from the same team ideologically. So I expect that today will be one part debate but also one part conversation given the extension common terrain between them. And yet they have their differences and these differences are interesting. So I want to ask you as the audience to give them a little space not to caricaturize them as the apologist and the complainer because I'm also going to ask them to take on a certain degree of maybe ironic distance from their own ambivalence and try to articulate it, flush out the opposing views that can be argued whether or not they are fully on that personally that point of view and as exponents of positions about they might have personal ambivalence. So were going to want to talk for the next hour and a half or so. Well wind up no late than 2 or things are flagging we might wrap up a little earlier than that, and I'm going to sit down here in a second but let me get things started by starting at the 10,000 foot level, the glass half full and the glass half empty. Could each of you talk a little bit about how you see this administrations record from the prism of continuation from the Bush Administration in continuity versus significant difference and what to make of that record and its totality? Why dont you start David? David Cole:Thanks Charlie. First of all, let me thank OSF for sponsoring this event and for sponsoring Jameel and I as OSF fellows this year to work on related work and more broadly thank OSF for supporting so many of the civil society organizations that I think including the ACLU, including CCR, that I think have done tremendous work over the last decade plus fighting for basic American values in the face of the threat of terror. So my view on how we ought to assess the Obama Administration is critical but resists the claim that one often hears, very often hears in the public at large, in the left in particular and on the right, that Obama and Bush are essentially the same or you know, some Obama is worst because while Bush authorized the water boarding of individualsthree individuals, Obama has authorized the targeted killing of some 4,000 individuals. So really what we see is continuity, not change, despite president Obamas campaign promises and this is a legitimation or institutionalization of the wrongful policies of the Bush Administration. While I'm hardly a defender of the Obama Administration, I think that critique is greatly overstated and fails to acknowledge some really important shifts that the Obama Administration brought to this subject. So on any of these shifts took place on day one of the administration when president Obama signed executive orders that prohibited enhanced interrogation tactics, ended the use of torture, closed the CIAs secret prison system of black sites into which we have disappearing suspects for years without acknowledging their detention without providing international Red Cross access. We have seen in the Obama administration no reports of rendition to torture contra many such reports corroborated during the Bush Administration. Subsequently, the Obama Administration disclosed the previously secret torture memos and did so as he stated at the time in part to ensure that this practice could not be repeated and he vowed infamously I suppose at this point to close Guantanamo day. Those I think are significant differences, he also has not relied on in what I think president Bush is most aggressive assertion of executive power that is the notion that under Article II, the president as commander in chief has the power to ignore congressional and indeed judicial constraints on his actions. That argument was made with respect to the warrantless wire-tapping program that president Bush had put in place and it was also made in the first torture memo. It was also made in the Supreme Court in the Guantanamo cases that went up before the court, but the Obama Administration has declined to assert that sort of ultimate power to ignore other laws, and instead what the Obama Administration has said is we will continue to fight terrorism with all the tools that are appropriate at our disposal which include law enforcement but also include military measures particularly in response to Al Qaeda and the Taliban, which attacked us on 9/11. But we will do so within the frame of international law, the constitution and US statutes, not in disregard of those. So whereas I think the Bush approach was characterized as an effort to avoid legal constraints to thrust legal constraints aside, whatever they might be, statutory, constitutional or international law. President Obama said, No, well fight but well fight within the frame that the law of work give us. And I think one of the mostto me, one of the most profound examples of this, you know, this is what he said in his May speech in 2009 at the National Archives about the importance of fighting for national security within the frame of the rule of law, a speech that president Bush never wouldve given and a speech that caused former vice president Cheney to do a response immediately condemning the president. So I think there's a clear difference there, but its just not words, and I think the best example of that is that in one of the Guantanamo habeas cases that had started under president Bush, continued under president Obama, a panel of the DC circuit ruled that the laws of war are irrelevant, do not constrain the presidents power to detain people at Guantanamo and president Obamas response to that which was essentially a gift to the president to say, Look, you dont need to worry about the laws of war. We dont think they're relevant to your detention authority with respect to Guantanamo. You have this power and you need not worry about this constraint. Now I think you would be hard pressed to find any party in any litigation told by a court you have power that says, no we dont. But youd especially hard pressed to find a president who has been told by a court you have this power unconstrained by these laws who did what president Obamas Administration which was to return to the court and file a brief with the on bound court saying the panel got it wrong, we are and must be bound by the laws of war. And the on bound court then essentially relegated that aspect of the panel opinion having no legal effect. So here's the president saying, You gave me too much power because my power must be in lined with the laws of war. I dont think there's another example of a president in American history taking that kind of step and I think we on the left undermine our cause if we disregard those significant differences for two reasons. One, because I think we are then perceived as having some completely unrealistic standard that were imposing on the president, one that no one would ever satisfy and that undermines yourand two, because I think you then play into the right argument which is, see, Obamas doing what Bush was doing therefore what Bush was doing was okay, and the left and democrats critique of Bush was partisan, it wasnt principles, you know, because we now see a democratic administration doing exactly the same thing. I think thatsthe premise of that argument is wrong and I think it leads to bad consequences. The last thing Ill say is that I do think that some of this turns on what your baseline is. If your baseline was September 10th and you think that its appropriate to use military force at all in response to September 11 attacks, then yes its continuity because president Obama is continuing to use military force to respond to Al Qaeda and the Taliban and as all congress authorized after September 11s attacks. So if thats your baseline that we shouldnt be in war at all, then yes, it seemed outrageous that the presidents killing people, the presidents continuing to detain people without charge. But if the baseline is war, is September 11th happened and we went to war in response to it and the UN and they dont recognize that as a legitimate option under the laws of war because we were attacked, then the question is not whether the president is detaining in killing because of course the president will be detaining in killing if you're in a war. The question is whether he's doing it consistent with the laws of war or whether he's doing it outside of the laws of war and trying to push that to one side. Bush tried to push to one side, I think Obama has tried to do it within the laws of war although at the end of the day I have plenty of disagreements about whether he's right on many of those questions. Charlie Savage:So thats the glass half full overview. Jameel, articulate the other side. Jameel Jaffer:Sure. Well, let me just first thank OSF for sponsoring the event and for sponsoring David and me as fellows. Actually, one of the great things about OSF is that they tolerate and even explore these kinds of disagreements. So I'm glad that were doing this, and before I launch into my glass half empty spill, I do want to just say that David is one of the people that I call for advice on all these issues. So its a little bit difficult in this position. And I agree with some of what he just said. I agree that Obama is not Bush and that there are some significant differences between the two administrations and I think that most people on the left see that. There are things that David mentioned that I would give president Obama credit for. There are also other things that David didnt mention I would give president Obama credit for. One of them is, during the Bush Administration, it was this whole set of people who were excluded from the United States because of their political views, and one of the first things that the Obama Administration was reverse that set of exclusions and grant visas to those foreign scholars. So you know, I'm not a person who doesnt give the administration credit for having made the changes that its made. Having said that, let me now defend the view that David integrated. I think that you know, if were at 10,000 feet, what we should see from there is that 12 years after 9/11. The government is engaged in warrantless wire-tapping under a federal statute that gives a very broad authority to that. It has endorsed indefinite detention at Guantanamo and dozen of men in Guantanamo. The government says their going to hold indefinitely without a charge or trial. In part because of that policy, there are a hundred people in Guantanamo now on a hunger strike. Seven people at Guantanamo have committed suicide out of despair the conditions there. There are military commissions at Guantanamo still. Its a different set of military commissions and they're better in many respects, but there are still military commissions and they still share some of the character of the original military commissions. As probably all of you know, if you go down to Guantanamo to watch the military commissions, you're seated behind a Plexiglas screen and you listen to the audio feed on a 40-second delay and you're listening to it on a delay because the government wants to prevent the detainees, to prevent the accused from testifying publicly about their torture in CIA custody. You wouldnt find that in any ordinary courtroom. You dont find it in here in the United States. Its a very different system. As David mentioned that the Obama administration has dramatically expanded the targeted killing program, and this is a program, I mean that David and II certainly agree with David that if you're at war, you have to accept that there's going to be a certain amount of killing that there's a lot of distance between that proposition and the targeted killing program thats actually taking place. This is a program in which we dont know who precisely it is that the government is killingin which countries the government is killing them. We dont know how many people the government has killed. There have been these public speeches about the program, but those speeches have focused almost entirely or entirely on high level Al Qaeda leaders and we know from dozen of new stories some of which Charlie is responsible for. We know from dozens of new stories that this is a program that is responsible for the deaths of many, many people who cannot fairly be characterized as senior Al Qaeda leaders. You know, thats the program itself and then this is a program we know almostwe know very little about because the administration has said so little about it. So you know, from 10,000 feet, that's what I see. I also see that nobody is held responsible, held accountable for the torture of prisoners in the CIA black sites or in the Defense Department except for low-level soldiers. No senior official has been charged criminally or even held civilly responsible for authorizing torture, for writing the memos and maybe that would be less objectionable to me if the administration were not at the same time so aggressively prosecuting people who expose abuse. Some of them, you know, on torture but many of them on other issues. I see you got this situation where the administration is protecting the perpetrators while at the same time persecuting the people who expose abuse. So you know, its a complicated question how much of that the Obama Administration is responsible for and I know that this is an event of the Obama Administration in human rights and I will stick to that after I say what I'm about to say. But to me, the more, you know, the more troubling thing here and the more interesting thing than you know, how much of this was the Bush Administration, how much of it is the Obama Administration, how much of it is the congress, the more interesting and important question or fact is that its, you know, these are the policies that are in place. Whoevers responsible for them, these are the policies that are in place. And for anybody who thought in 2002 or 2003 that these were going to be emergency policies that were here for a short period of time and that the liberties we were surrendering were going to be surrendered for a short period of time. Its got to be alarming. It should be alarming that these policies are still in place and not just still in place but in many ways have been normalized and institutionalized. So thats to say that I do not think that Obama and Bush are the same. There are many important differences. But from 10,000 feet what I see is that many of the most objectionable practices of the Bush Administration have been normalized by this administration and in some cases expanded. Charlie Savage:So thats a great sort of starting point and my plan is to march through about a dozen or specific topics and dive into the weeds a little bit more. So I'm going to start with surveillance. So Jameel, you mentioned the very beginning where you know, you're still warrantless wire-tapping under a broad statute that gives these powers. One of the puzzles in thinking about the question, is Obama acting like Bush and what does it mean to act like Bush is that we can see in retrospect now that during the Bush years, there were two different strands of critique that were sort of bound up together. It was a civil libertarian critique the government should not have the power to do this sort of thing to individuals and there was rule of law critique, right, which is the president has to obey statutes, the president doesnt get to say, I'm going to disregard this law, he has to go to congress and get it changed if he thinks the law doesnt make sense in the current context and they are bound up together. By the end of the Bush Administration, congress had, to use your word, normalized on a rule of law perspective, certain issues and among them was, it enacted defies the FISA Amendments Act in 2008 for which senator Obama, somewhat famously voted and this brought into alignment federal statutes with the practice of surveillance without individualized warrants as part of the war on terrorism. So Obama has continued that program and the question is from a rule of law perspective, I guess things are better now because the president is not violating a statute. From a civil libertarian perspective, thats almost irrelevant because to protect individual rights, a judge should look at the individual and make sure that there's a reason to be listening to that persons conversations and these two things have come into conflict now. I was wondering if you guys could start with that, what do you make of Obamas record on surveillance without individualized warrants? Jameel Jaffer:Well, I mean I think that its an important thing that president Obama is not violating a federal statute. Is not violating a federal statute because congress has given him all of the authority that president Bush was claiming and more that the statute thats in place now, the Amendments Act gives the president the authority to engage in exactly the same kind of what wire-tapping substantively the same kind of wire-tapping that the Bush Administration was engaged in, but also gives the president the authority to engage in dragnet wire-tapping of Americans international communication. So its a broader statute. You know, when we complained about the Bush Administrations program and I think I speak for David here too, we complain not only that the president was violating its statute but that the wire-tapping was unconstitutional under the fourth amendment that it was unreasonable that it wasnt based on probable cause, wasnt based on individualized warrants. So we had two complaints during the Bush Administration, and one of those complaints has been addressed and one hasnt. You know, I guess I would push back on the idea that the statute was sort of exogenously generated by congress because the Obama Administration did have role, a very important role in pushing for reauthorization. So this is a statute, this is authority of the Obama Administration really wanted. They are exercising authority that they wanted to have, and in some ways, you know, and in equally troubling aspect of all this is that in the core, the Obama Administration has been very aggressive at trying to ensure that the statute isnt subjected to judicial review on the merits. So it argued from the beginning that the plaintiffs who were challenged in a case that we brought, the plaintiffs who were challenged that didnt have standing to challenge the law. They lost that argument in the second circuit. They asked the Supreme Court to intervene, to overturn that decision so that the statute wouldnt be heard on the merits. So you know, when we say that the rule of law complaint has been addressed, I think thats true to an extent but, you know, one of our complaints back then was that the authority that the government was asserting hadnt been reviewed by any court and hadnt been sanctioned by any court and thats still true in part because the Obamalargely because the Obama Administration has been so aggressive at keeping it out of court. David Cole:And I fully support Jameel and the ACLUs efforts to challenge the validity of the FISA Amendments Act, which the Supreme Court blocked this term by concluding that no one essentially has standing to challenge the statute unless they can identify instances in which they were surveilled, but thats a catch 22 because the surveillances are all conducted in secret and no one is informed that they were surveilled even years after the fact. And so that seems to be deeply disturbing, but I do think that the principal objection to warrantless wire-tapping under the Bush Administration was that there was a statute on the books called FISA that said that it is a crime to engage in warrantless wire-tapping and also provided a kind of avenue during war time for the president to undertake emergency measures and seek congressional expansion of the law if you needed it and president Bush simply, you know, ran rough shot over that and authorize independently and in secret authorized a program that was directly contrary to a criminal statute. That was the principal criticism and that is no longer true because what we now have is a statute that provides for a certain amount of overseas wire-tapping, subject 2 court review. So its no longer in violation of a criminal prohibition. Its no longer secretthat is the existence of this is no longer secret and the president is acting pursuant of statutory authority and pursuant to judicial review. But, you know, its not the kind of review that we tend to think of as necessary under the fourth amendment, which is individualized warrants based upon probable cause, which is an inherently individualized concept. We have a reason to believe this person is engaged with criminal activity. Therefore we can conduct a wiretap on this persons phone. Thats not the case with this. This is about gathering foreign intelligence information and the statute authorizes the government to do it on a kind of categorical basis. We dont really know what the categorical basis is because Jameels soon to try to find that out was blocked. But here's what I think the administration would say in the defense of this program, they would say, Look, before the sort of Internet, it was long accepted that the United States could engage in unlimited surveillance of foreigners. They did it through satellite interception of conversations and it was not regulated by FISA at all. What FISA regulated was attempts to target people in the United States or US persons. If you're trying to listen to Al Qaeda in Afghanistan talking to Al Qaeda in the border areas of Pakistan, there wasnt any law, there wasnt a statute that governs that and the fourth amendment doesnt govern that because the fourth amendment doesnt apply to foreigners abroad. So for years, the president had broad authority, unlimited statute to engage in this kind of categorical surveillance. Well, now in the modern era, people dont use those kinds of phones anymore. The allphone traffics go over these Internet aligns and in order it to get into them, you go in through an Internet service provider as opposed to via a satellite in the sky. That Internet service provider isnt often in the United States because were the home of the corporations that created those hubs. And so technically its covered by FISA even though its stillyou only listen to Afghanistan to Pakistan, Al Qaeda communications. And so the government said, Well, you know, we should still be able to do this even though technically were doing it through a US hub. If our target is foreign, if were not targeting any US persons, if were seeking foreign intelligence information, not information about an actual specific crime, in that circumstance, its justified to say and reasonable to say, You can listen in on all communications between, you know, this part of Afghanistan, this part of Pakistan or however else its categorically defined. So what congress didn't knew in the Foreign Intelligence Surveillance Act Amendments was to say, with respect to that kind of targeting, directed at foreigners overseas, not targeting Americans, not targeting LPRs, Lawful Permanent Residents, not targeting anyone in the United States even if they are a foreigner, design to gather foreign intelligence information. If you go to a court and make all that showing and you showed to the court that you have minimization requirements in place that ensure that no American will be targeted or no one in the United States will be targeted, and the court finds that the program is consistent with the fourth amendment, then the court can grant the authority to engage in that kind of wire-tapping. To me, I'm troubled by the vagueness of the categorical authority. I'm troubled by the fact that we dont have an opportunity in through any kind of public judicial system to know what the scope of that is, but I dont think thats a, you know, on its face an outrageous grant of authority to a president essentially updates the satellite surveillance, which we didnt challenge as unconstitutional to the modern day, through the Internet. And it is true that sometimes when you're doing this, you might hear a conversation with an American because there are plenty of over the border conversations and because its hard actually today to detect where a phone call is coming from because of cellphones, because they go through these Internet lines, its just difficult. So there is certainly a risk that Americans are going to be overheard, but the statutes design to try to limit that risk but maintain our authority and ability to conduct Foreign Intelligence Surveillance a broad of foreigners. Charlie Savage:Very quickly before we move on, Jameel, do you have any rebuttal? Jameel Jaffer:Yeah. So I think Davids description of the statute is quick inaccurate. I think the whole point of the statute was to allow the government to pick up Americans international communications, and thats not speculation of my part. Thats what Bush Administration officials told congress when they were asking for this authority. They said, The conversations were most interested at are the ones that have one end inside the United States and one end outside the United Stated. And they did, you know, occasionally uses a smokescreen about foreign to foreign communications and say we shouldnt have to go get a warrant in order to wiretap somebody in Afghanistan calling somebody else in Afghanistan. But what it actually came down to and when others proposed, well why dont we just carve those communications out of the scope of the statute, why dont we just say that foreign to foreign communications are subject to a warrant requirement, then the Bush Administration, forthright we said, you know what? We really need access to Americans international communications, and when senator Wyden for example and several people propose this, but when senator Wyden proposed, an individualized suspicion required of it. So you can get Americans communications but you have to have some reason to believe that somebody on the phone has done something wrong. The administration said, you know, we couldnt agree to that kind of requirement because part of the point of this surveillance is to find out whom it is that we should be focusing on individually. So I think that your defense of this merits is misguided, David. But beyond that and I think that this is the more important point that you have just made exactly the kind of defense that the Obama Administration could have made in court. They could have walked in to court and said, This statute is constitutional for these reasons. But they didnt, and instead what they did is they said, This case has no business being in court in the first place. These people dont have the right to be here, this statute should not be challenging this context. There is a secret court in which AT&T if it wants to can bring a challenge but ordinary citizens cant challenge the governments claimed authority to wiretap their phone calls in this way. And I think that is a really troubling thing and its an especially troubling thing when you see it in the context of the Obama Administration many other arguments of the same nature. The torture cases, the rendition cases, the targeted killing cases, in each of these cases, the administration is walking into court and saying, This is a program that should not be subjected to judicial review. Its standing in the surveillance context. They're relying on the standing doctrine. In targeted killing, its a political question doctrine. In the rendition context, its immunity doctrines or special factors. They always haveor state secrets...they always have something available to them but you know, the pattern is, somebody goes into court to challenge national security policy, the administration response in exactly the way the Bush Administration responded, which is this is not an issue that the court should consider. You know, as its probably clear, I feel especially strongly about this one because I'm the one who lost this case a few months ago and perhaps I think its more outrageous than it really is because I'm the one whos involved in it. But I do see thats across the border and David you were involved in the Aurora Case in the second circuit where the same thing happened. Where the courts basically said this is not an issue for the courts to decide. And you know, even if you dont care about the civil liberties and you care only about the rule of law issues, the fact that the administration is successfully keeping the courts out is something that ought to bother you. David Cole: I would just say, I largely agree with the concern about standing and I think you shouldve won the case as you know, but I also say that in 30 years of litigating these types of cases, I've never seen the federal government not come in and argue that there's a standing problem, a political question problem, whatever jurisdictional defense that they canthats just what government lawyers do under whatever the administration is and it would be remarkable for government lawyers to change that radically. They didnt change when Clinton came to power after Reagan and the first Bush. Sowhich is not to say to defend them but I dont think its a particular critique that is of the Obama Administration and I'm notI'm whether the principal concern of the statute is getting American communications. I think if the principal concern was getting American communications, you wouldnt write a statute that says you can do this only if you dont target anyone whos an American or LPR, Lawful Permanent Resident, you dont target anyone in the United States, you create minimization requirements that ensure that you do not, you know, inappropriately pull up those kinds of cause and it can only be authorized if its consistent with the fourth amendment. So you know, I just thinkI'm sure that I wouldve been happier with a narrower statute that you suggested Wyden had proposed. But I thinkI would take them and face value that they're concerned about afghan to Pakistan communications, of course they're alsoif Al Qaeda is talking in the United States, they're going to be concerned about that or it would be crazy not to be concerned about that. But the focus of the authority is a non-targeted communications abroad. Jameel Jaffer:Can I have 5 seconds on that? Charlie Savage:5 seconds. Jameel Jaffer:So justI dont want anyone to walk away with, you know, a mistaken understanding of the statute. So the statute, I mean, your example, what if somebody from Al Qaeda is calling somebody in the United States, absolutely. I think everybody agrees that that kind of conversation, the government has the right to listen to but this is not a statute that requires the government to have as its target some Al Qaeda person, it can target anyone. And you're right that it forecloses a governmentanyone overseas. You're right, if forecloses them from targeting Americans inside the United States or anyone inside the United States. If they are specifically identifiedbut the government can target a block of communications between New York City and London if it wants to. I dont know if they're doing that or not, you know, but they have the authority to do it on the statute. Charlie Savage:We could obviously fill the whole time with surveillance but lets shift to wartime detention a bit. I like to get your contrasting views if they are contrasting about indefinite detention at Guantanamo and elsewhere. One of you brought up Obamas National Archives Speech from May of 2009 and the media framing as a member of the media, I can self-criticize of that was all about Obama on the left because Dick Cheney on the same day was out and it was easy to say, you know, here's A and here's B and they're different. I think in hindsight we can see that that was actually a really interesting speech of Obama moving towards the center and among the other reasons for that is that he embraced indefinite detention and in that speech even as he continued to call from Guantanamo to be closed and so forth and it became clear at that point that closing Guantanamo and that there will be some category of prisoners who are too difficult to prosecute and too dangerous to release, who would be continued to be held without trials. So he made that move very fast. From the larger perspective, that was Obama saying terrorism is no just a criminal justice problem. The war, it exists, its a real war even though its not a nations state adversary and it continues. And I think a decade ago on the left, a lot of the debate and criticism was, this isnt a real war, Al Qaeda are criminals. There can only be an armed conflict between two countries and all these language of war and policies of war are misguided. At this point, it seems to me that that debate is fairly well settled and this may be an example of Obama normalizing what was once extraordinary because closing Guantanamo would mean just moving indefinite detention to somewhere else as supposed to getting rid of a indefinite detention. What do you, David, think of the record on indefinite detention, putting aside why he hasnt closed getting those specifically since he, in his own standpoint wants to keep holding people without trial? David Cole:Well, I think you could characterize what Obama has done is to normalize the extraordinary but that would be to sayI think you have to be specific about what was extraordinary about what Bush was doing and detaining people who were fighting against us for Al Qaeda or the Taliban in an armed conflict authorized by congressed and justified by the UN and NATO was not extraordinary, that was not extraordinary. What was extraordinary was doing so entirely in secret refusing even to disclose the names of the people who were being detained there treating them without the dignities and respect that the Geneva conventions require subjecting them to torture, providing no kind of process to determine whether in fact they were fighters or not, asserting that no law protected them, that was what was extraordinary. So yes, Obama has normalized the extraordinary because he has now said, Yes, were going to continue to detain during war. Thats normal, thats not extraordinary. There's no country that has fought a war and not detained the enemy during that war. No country in history, so that was notwhat was extraordinary was this other stuff that Bush was doing that was extraordinary, all that is gone. Right now we have hearings, we have review, we have decent treatment. So I think it really depends on, you know, what youragain, this sort of goes back your baseline, you know, one of the kind of mantras in the American community was try or releasethey should be try or release. There is no room for detention. Thats just not right under the laws of war. Thats not rightno country again fighting a war, has taken the position that the only circumstance in which can hold someone whos fighting for the other side is if they can try them for a war crime. We held hundreds of thousands of people during World War II when were fighting for the other side. Maybe it was hundreds of thousandswithout trying them for any kind of crime. So this try or release mantra I think was just unrealistic to begin with. I dont think observes well thought through position. Its not one that Obama ever articulated before he came in to office. Obviously it is problematic in this case because youve got a conflict that seems to have no clear ending. We are now very far away from those attacks of 9/11. We havent been attacked since them. At some point, the authority I think the armed conflict ends and then the authority detained should end with it. But this is not a metaphorical war on terror like the war on drugs, there is an armed conflict still going on in Afghanistan and many of the people at Guantanamo were people whothe administration believes were fighting for Al Qaeda or the Taliban against us in that conflict. Now there are also many people who the administration is determined dont need to be detained anymore, should be released and those people I think, you know, should be released and the only reason they're not being released is because we cant find a country to send them to. It seems to me that, you know, if youve locked them up, if you no longer believe they need to be detained and if you cant find a country that to send them to, then we should be obliged to release them within the United States. Now if there are people who dont pose a threat, what's the possible justification for continuing to detain them? So I think thats problematic, but the notion that someone who is properly determined to be a fighter for Al Qaeda or the Taliban whoif we were released might well return to the fight against this. I think that person can be detained as long as the conflict goes on. Charlie Savage:Jameel, do you think this a real war at this point? Is that debate over? Jameel Jaffer:Well, if thats what you mean by it, you know, I think there is a real war going on. I agree with a lot of what David just said, but all of the action is in something that David put in a footnote, which is that this is a different kind of war, you know, and thats why we took the positionits a unique war and its a unique detention center with a unique history. And so with respect with Guantanamo, we at the ACLU, you took the position that the two options were charged or released. That wasnt meant to and we never took the position that the government doesnt have detentionthe kind of detention that you already described and it has always had whenever it fights a war. If the Obama Administration were saying our detention is already linked to the armed conflict in Afghanistan, then I there would be not that much space between the Obama Administration and many in the human rights committee, but to my knowledge, the Obama Administration has not linked the detention to the war in Afghanistan. They have linked the detention authority to this much more abstract war against Al Qaeda and affiliated forces and as you know, affiliated forces is a category that takes on a new meaning every week. So you know, they're not really proposing, holding people and until the end of something that we could understand as a traditional conflict, they're proposing holding people forever and that is something that I think is, you know, thats something we criticize under the Bush Administration, we criticize it for the same reasons now. You know, I pointed it to the human facts of the beginning that there are these prisoners who are really desperate because of the conditions that they're being held on because of the indefinite detention they're being held on and you know, I think that the legal dispute is important, but we shouldnt forget that there are human consequences to the uncertainty that these prisoners are facing. Prisoners dont know when if ever theyll be released and because of that, they are literally killing themselves. So you know, I think there's a big difference between holding people in connection with the traditional armed conflict and holding people the way that the administration is right now. David Cole:And I guess I think that the justification for holding people. I mean there are 80 some people who they dont claim to need to detain. They just cant find a place to send them and I think, you know, I've already said what I think about that but the other 40 are people who they believe are part of Al Qaeda and of the Taliban or associated forcesbut I dont know in any of the habeas litigation that has come up yet but there's actually been a reliance on associated forces as independent of fighting with Al Qaeda or the Taliban as a concept. I agree that thats a troubling concept and its really troubling in the targeted killing area as well and it could create the possibility of essentially resurrecting the kind of global war on terror kind of approach if you define associated force very loosely, its a very troubling concept, but I dont see that in the habeas litigation, any evidence of that. I see them making defenses that these people are, you know, were with Al Qaeda or the Taliban in a pretty close in a way, you know. I do think that over time, I think for example that the Israeli Supreme Court got it right in saying that over time in a military detention setting like this, the burden should have to increase on the government in terms of the strength of the case it has against individual to continue his detention as the length of the detention grows, the certainty that this person is in fact a danger should have to grow and so some people who were originally justifiably detained should be, would at some point be released because the evidence is not strong enough and I also think that there's awe ought to have a notion that we may have not have ended the conflict of Al Qaeda but we ended the conflict with this detainee. This detainee no longer poses a threat and that person should then lawfullyshould legally be entitled to be released. So I'm not in favor of a kind of an open-ended indefinite detention forever position and I do think there's a need for some serious constraints to be put in at the back end here. But as I said, I think, you know, much of the claim at the outset was, that its just wrong at the front end to be detaining someone without trying them in a criminal or military tribunal and I think that justice is not supported by the law. Charlie Savage:Both of you seem to agree there really is a war, was a war, and continues to be war in Afghanistan. But the war in Afghanistan will end at some point probably sooner than later and I suspect will be pulling out. Of course that seems to be on a stable partner and we turned over most of our prisoners there. David, if US doesnt have troops on the ground in Afghanistan anymore and so were only talking about the more in co with no hot battlefield war on terror, do you think detention authority continues to exist? David Cole: My guess is the administration will certainly argue the detention authority continues to exist because they don't want to release those 47 people and have them, you know, constitute a legion of Al Qaeda attacking us but I'm not sure that that is the right position and I do think that as we withdraw from Afghanistan, it is a very appropriate time to raise anew the question of whether this is appropriatelythis problem is appropriately viewed as a military problem, as a war problem as suppose to as a law enforcement problem, you know, I think there were people from the outside who said that and much of Europe will say that, that the United States mistake was to go to war after 9/11. We in Britain or France or Germany dealt with terrorism as a law enforcing matter not a war matter and thats a better way to do so and thats a perfectly legitimate argument, but in the United States, that was kind of a hard argument to make that this is not a war, its a law enforcement problem when we had troops on the ground in Afghanistan being shot at on a daily basis. There is a sort of undeniable factual reality there that makes it hard to raise those questions. Once that factual reality no longer exists, then I think its certainly appropriate to ask the question of whether we are still in a situation where its appropriate to use lethal force to respond to a problem that, you know, all nations face in some measurebut maybe nations have faced the problems of groups of individuals who armed themselves to attack the state and its interest in the hope of spreading terror and most of them, with the vast majority of not going to war in response and I don't think its necessary to go to war in response unless, you know, the attack and the threat rises to us, you know, a level of gravity that is, you know, came to 9/11. Charlie Savage:Let me jump in here and start with Jameel. The questions raised by the use of military force away from the hot battlefield are the most interesting to some extent. The question of that legitimacy, what do you make of targeted killings in Yemen for example and whether thats, you know, thats sort of a preview of what the world will look like after the troops aren't on the ground anymore in Afghanistan, if the war on terror continues, is that legitimate? Jameel Jaffer:Well, you know, the government doesnt lack authority to use legal force simply because its not engaged inthere are circumstances in which the government can use legal force, you know, even here inside the United States or in an ordinary law enforcement context. So to say that, you know, there's no armed conflict in Yemen is not to say to the government is without power to address grants even in that extreme way. Its a question of what the standards are, how broad their authority is and we have taken the position and I'm very confortable with this. Weve taken the position that the governments authority outside active warzones is very narrow and is limited to the use of the force against people who present imminent threats and in where the use of legal force is a last resort. And so whether any particular strike in Yemen is lawful or not, well turn on whether those, you know, that very stringent standard is met. Charlie Savage:Of course the rubber on this is the administration is adopted a very elastic notion of eminence Jameel Jaffer:Right, which I thinkyeah, I've been on share theI mean thats not a view of eminence at all, you know, thats doingthey have escaped the restriction by redefining the war. Charlie Savage:Do you quarrel with their claim that an elastic definition of eminence is necessary given the nature of these things? David Cole:Yeah, absolutely. I mean, I think Jameel and I are in agreement on this that youyes, there's a right to use force in self-defense to an immanent armed attack if it is in fact a last resort as Daniel Webster said when he sort of first articulated this concept if there is no time for deliberation. There was time for deliberation on all of his cases, he was on the [???][0:59:33.8] for a year and three months before he was killed. There was time to dismissthe CCRs lawsuit seeking to save his life. Jameel Jaffer:Actually it didn't take long. David Cole:Well, thats true, thats true. So I agree that the sort of apparently or well an expansion of the eminence criteria is very problematic. I also think the feasibilityI think the technology of drones affects the feasibility criteria. So the government says, we can do it if the person poses him in threat but weve defined any person whos an operational leader of an organization that has the capability and intent to attack us as supposing an imminent threat forevermore. Charlie Savage:But both the feasibility and the eminence criteria only come in if you rejected the war model, right, and you're only in a self-defense world. So you reject the war model David Cole:Do I reject the war model in Yemen? Charlie Savage:Yes. The war doesnt have to be in feasible to capture. David Cole:No, thats absolutely right. So I dont think anyone would object to the use of drones and targeted killing in Afghanistan as long as were targeting people who we have a reason to believe are the enemy and I think, you know, in the Pakistan border regions that Al Qaeda and Taliban have made their part of the battlefield, it also may well be justified as an armed conflict, not a self-defense justification. I think when you get to a place like Yemen where there is no battlefield where were not at war, where the group that were concerned about is not even the group that attacked us on 9/11, it didn't exist on 9/11, then I think you should be limited to a self defense justification. Charlie Savage:So agreement, no armed conflict targeting and the administrations wrong? Are you allowed to agree? David Cole:I dont knowcertainly were allowed to agree when the administration is so clearly long. But the other thing that I would say though is that we actually dont know what the administrations position on this is. What we know, we haveI often say, try and figure out what the administrations policy on drone strikes is a little bit like the challenge that sovietologists faced during the soviet union where they try to figure out what the policy of the soviet union was by where people were seated at various pictures ofmore like, the whole thing is secret, the whole thing is unacknowledged and therefore what we have are these abstract discussions by various government officials and various speeches. We have this leaked white paper that addresses one very specific instance of an American citizen and doesnt address what they criteria are for non-Americans, etc. we have nothing about what the criteria are for signature strikes. I mean, there's just so much that we dont know on this, you know, here's another idea where I'm sure we agreeso the president should not have that kind of power with Jameel Jaffer:There is this similarity. Davids not going to like this, but there is thisyou remember the [???][1:02:43.7] memo from 2002. So this is the memo that the OLC wrote, John you wrote it, justifying the torture of [???][1:02:51.0] and the memo is written in a way that makes it seemed like there's all this thought that has gone into the use of these methods against this specific guy in these specific circumstances because this specific guy presents a unique threat and I was reminded that when I read the white paper, the white paper has the same, you know, there are many differences, but one similarity within these two things is that they are legal analysis relating to specific people who were thought to pose unique threats. But meanwhile when John Yu wrote that memo, meanwhile there were hundreds of prisoners being tortured in defense department facilities in the CIAeventually in the CIA live plates. And meanwhile theyve got this massive program, this massive targeted killing program where there are hundreds or thousands people who have been killed and the documents thats out there, you know, its so distant from the program, there's just so much space between the program they described in these public speeches and in the white paper and what's actually taking place on the ground. I mean, there's no mention in the public speeches of signature strikes. There's no mention of targeting anyone except for Al Qaeda or Taliban leaders. So its not just that they havent said very much about the program but what theyve said, by saying what theyve said, I think that they have left a pretty misleading impression of what the program really is. Anyone who just focuses on those statements wouldnt have any idea what was actually going on. Charlie Savage:Lets just pivot to something I keep looking for areas of disagreement to stress out. I'm not sure if I found one here, but if you're a critic of kill operations away from the hot battlefield of Afghanistan and maybe, you know, the far side region of Pakistan, what do you make of the Bin Laden kill raid both in terms of sovereignty and international law and also whether that waswas he an imminent threat sitting there or is it okay even though he wasnt? David Cole:Yeah. I dont thinkI think we dont knowto me, the thing we dont know sort of what he do when we came in there and you know, if he tried to surrender, was there ever any intention to capture if he tried to surrender. If the person surrenders, you are obligated to capture rather than kill. There's certainly some reason to doubt whether they ever had any intention to capture him alive because that wouldve caused more problems than having him dead. But we dont knowbut I think if he didn't surrender, I dont find it problematic to take out the leader of the organization with which you are engaged in an armed conflict. When he is in a place where there really is no other option than you going in and getting him or killing him. He was in Pakistan, there were very legitimate concerns that if we told the Pakistanis that, you know, we thought he was there that people in Pakistani government and security services would, who are loyal to him would let him know and he would be gone. So it was an extraordinary circumstance. I think if we have reason to believe that he was living in some, you know, fortified mansion Belgravia, London, it would not be appropriate to send the navy seals in there to attack him because we could talk to the Brits about him and we could presumably use law enforcement tools to capture him. But here he was, not far from the battlefield, the leader of the organization we were fighting against, and I think in that situation, its not inappropriate to kill him even if he's not on the battlefield and even if he doesnt pose a threat, its the same way that during World War II, if we found a leader of the Japanese or the German military flying somewhere nowhere near a battlefield or in Africa or something, there's no bar on us capturing or killing Charlie Savage:Does that mean you accept the administrations view that its not a violation of sovereignty if the country is unable or unwilling to suppress a threat? David Cole:I think the unableI can see the argument for unable or unwilling in certain circumstances as a justification foreign invasion of someone sovereignty, you know, thats what basically what the justification for going in to Afghanistan. They were the Taliban which controlled Afghanistan at the time was unwilling to turn over Osama Bin Laden and to neutralize the threat we faced from Al Qaeda and therefore it was appropriate for us to go in there. So you know, I can see situations in which it makes sense. You know, broadly construed it seems very problematic because it suggests, you know, well ask you if we can come in and if you say yes then we can come in because youve consented, and if you say no, then we can come in because you're unwilling. And that seems deeply problematic, but if its narrowly construed and I think, you know, the circumstances of Pakistan where such that, you know, a strong case could be made that because of the real possibility that even raising the subject would cause us the ability to capture the leader, the motivator of the fight against us that is was justifiable. Charlie Savage:Jameel, do you see anything to criticize in the Bin Laden raid? Jameel Jaffer:Well, I mean I agree with David said initially which is that ultimately there are some facts that would be nice to know that we dont know and its hard to come to any solid conclusion without knowing those facts. But I would ultimately analyze it a little differently than David did. I think the question I would ask first is, was he participating in the armed conflict that we all recognize is going on, the one in Afghanistan? Because you know, a lot of these borders in Pakistan I think are fairly characterized as part of that same armed conflict, and maybe there's an argument that this strike was part of that armed conflict. For example, if Bin Laden was engaged somehow in directing people in Afghanistan, that would be an argument that he was engaged in an armed conflict. But the answer to that question is no, then I think the question is, did he present an imminent threat? I think the government would have very strong governments that Bin Laden of all people present an imminent threat, no so much because he himself is going to do something but because he has the power to order other people to do something imminently or you know, maybe there are even plots that the government thinks are underway. So I think that they have strong arguments but there's a real danger in bad facts here making bad law that, you know, everybody agrees Bin Laden was a very bad man, but we cant start from that and then build a law around it to justify the strike, I mean we should try to be a little bit objective about the application of a lot here, and cognizant of the possibility that we create presidents not just the other presidents, American presidents will use, that presidents from other countries will use. I mean, obviously we dont want other countries carrying out, targeted killing inside the United States, you know, when [???][1:10:14.4] regime carried out the killing of Orlando [???][1:10:18.5] in the 1970. We prosecuted the people who did that. we condemned the people who carried out the killing of [???][1:10:26.2] in London, he was poisoned by the Russians in London, we condemned that. I'm not saying that the Bin Laden raid is of the same characters of those, but I think that when you're thinking through what the rules are, you should think the rules through in a way that, you know, somehow compellingly distinguishes those other cases that we all recognize to have been illegitimate from the one that I think we instinctively want to think of as legitimate. David Cole:And I think its just not hard to distinguish the Londonthere is a war going on, he is the leader of the organization that we are at war with. He has orchestrated attacks against us in the past and continued to have courier communications with the organization, not withstanding the fact that he knew we were, you know, trying to find out where he was. So he wasnt as able to be effective as he otherwise would be, but the notion that you cant kill the head of the organization that you're in an armed conflict with, you know, if you find him in a place where youthere's no other option. I just think thats not...you cant make that Jameel Jaffer:But I dont think it could be David Cole:--was not engage in an armed conflict against Russia and you know, and we have a banned on targetedon extrajudicial assassinations that president Ford put in place and its still in place and it was created because the CIA was found to be engaging in efforts to assassinate foreign leaders who we didnt like when we werent involve in any kind of our own conflict, thats clearly wrong. By killing the leader of the organization with which you're in an on going armed conflict, I think Jameel Jaffer:I agree with you that there are ways to distinguish these things. I agree with you but I think the way that you're focused right now, the fact that were inthat we have declared an armed conflict against this guy, that cant be the answer. Because trying to declare an armed conflict against its enemies and David Cole:I dont think we just declare an armed conflict. We were attacked, 3,000 people died, the Taliban wouldnt turn it over with themand then the UN said it was appropriate. Jameel Jaffer:Russia will say the same thing about the Czechians and theyll be right, you know, they are Czechian organizations that have killed civilians in Russia, I mean, theyll have a strong argument that they are in an armed conflict with those groups and one of those people finds himself in the US and we refuse to extradite, now how are you going to distinguish it? I dont think that your distinction that we have declared an armed conflict and it is a genuine armed conflict, I don't think thats the distinction that going up there. Thats not a distinction that going to make a difference in that situation. There has to be something else besides the fact that were in an armed conflict. David Cole:Well, as I said before, I think there's something else that probably needs to be there is captured by this unwilling or unable. So if there's some Czechian guy here and were willing to do what we can to make sure that he does not, you know, further a war against Russia, then Russia doesnt have any justification to come in. But if we say to Russia, you know, were going to let him, you know, raise billions of dollars and send troops over and were not going to stopthen I think Russia has a legitimate claim to say, Wait a minute. You cant use your country as a staging ground for an attack against out country and that becomes a justification as we did in in Afghanistan. Jameel Jaffer:So how about somebody who like [???][1:13:55.4] who was in the United States before the war in Iraq and was trying to draw up support for a revolution in Iraq. Presumably, we wouldnt have turned him over to Saddam Hussein, but we were protecting him, we were encouraging his activities, in that situation, would Saddam Hussein had been justifiedI mean, plainly not, right? Saddam Hussein would be justified in carrying out the targeting committee? David Cole: I dont know enough about whether anything that [???][1:14:23.2] was doing rose the level of armed conflict attack on Iraq. I dont think it did. I think it involved political opposition from afar which is very different. Charlie Savage:Yeah, we danced around this a little bit and sort of hit it squarely in the head before we move on. I think part of the reason the targeted killing issues and the Bin Laden raid, hit, whatever, are interesting is through the subsequent killing of [???][1:14:52.3] of course you guys are bothhave ties to organizations that are representing his family which makes it a little harder for you to maybe speak differently on what you see of thatif [???][1:15:04.2] is who they said he was, do you see any principal way to distinguish the killing of him from the killing of Bin Laden? Are you okay with both? David Cole:No I'm not okay. I'm not okay with both. I mean, I think that he is not even asserted to be a part of Al Qaeda. He's asserted to be a part of Al Qaeda in the Arabian Peninsula, a group that formed after 9/11. So therefore is not within the frame of the authorization of this military force, which is against those who perpetrated 9/11 and those who harbored them. If that group is a cobelligerent with Al Qaeda, it gets more difficult but at the end of the day I think if he doesnt pose an imminent threat, then the use of lethal force ismeaning, if he's not engaged in some attack upon us that leaves us no time for deliberation and the means of the only way we can protect ourselves is by killing him, then I think our obligation is to wait and to take the risk that he mightby waiting, we might miss his engagement on some other plot against us in the future but we have tremendous ability to surveilled him Charlie Savage:Are you saying that because you reject the notion that AQIP is part of the David Cole:No, I dont know. I mean, I dont know enough about whether that case has been made and they havent had to make that case because they dont even acknowledge that they killedbut also because he's in Yemen. He's not in Pakistan. He's in Yemen. Were friendly with the Yemeni. The Yemeni government is working with us. Its not all obvious to me that he could not have been captured. From what I've read, there was one attempt to capture him and it failed but we knew where he was going. I mean, he was driving in a car from one spot to another spot when we killed him with a drone presumably we shared that intelligence with the Yemenis. The Yemenis couldve come in and instead of using a drone to kill him, we couldve captured him. So I just dont see the caseI mean, the administration itself says that to justify the killing ofhe had to pose an imminent threat and then they would redefine eminence in a way that I think is unacceptable. I just dont see that he posed that threat. I think when you're talking about the leader of Al Qaeda, the actual group were fighting with, not some associated force and you're talking about in a country where the actual armed conflict is going on in Pakistan, not that far from the hot battlefield. Jameel Jaffer: Which I did disagree. Charlie Savage:But you do acknowledge the AQIP repeatedly tried to attack United States as well, right? David Cole:Yeah, well I acknowledged that I've read reports. I dont have any actual information but I acknowledge that he said to have been behind the December underwear bomber attack and also a cargo bomb attack that wasboth of which failed. I mean, there is also a lot of people right here in the United States who have been charged and admitted to, and attempting to engage in armed attacks, right? I think the term armed attack isterrorist acts like blowing up bombs in Times Square or the Harold Square Subway or Seattle, Christmas tree lighting, you know, and what do we do with respect to them. We arrest them, we trial them, we convict them and we lock them up for that crime. I think thats the presumptive way to deal with terrorism and what worries me about the whole associated force, the looseness of associated forces and the ease of killing with drones is that I think it tips the balance and makes it very, very tempting for the government when it could use law enforcement means and intelligence means and other means to resolve problems of terrorism, to treat those problems as war problems. So I think its really critical that we have a very stringent sort of definition of what level of armed and organized attacks upon the United States to justify a military response and I think that, you know, 9/11 and the embassy bombings meets the criteria. I'm not sure two attempts failed meets that criteria and I think its dangerous to have the criteria be some has suggested any attempt to kill an American, then you can go to war, then you can use a drone strike, then you dont need to arrest try, etc. and thats where I worry that we may be going. Charlie Savage:Alright. So we have about half an hour left and I like to start taking questions starting with a few that I think have come in over Twitter and then the audience David Cole:So we know they're short question. We have to respond in 240 characters or whatever it is right? Jameel Jaffer:140. David Cole:140 [Chuckles] Charlie Savage:Okay. This is from [PH][Onecade] didnt Cole says he doesnt oppose taking out the leader of the group if you cant capture him, does this apply to Obama? I'm not surethats sort of a provocative question David Cole:In wartime can youin a traditional war could we kill Hitler, could Rey kill FDR, I actually dont know the answer to that but probably yes, but I dont know the answer to that but certainly you can kill the leader of the army in a war and you know, Osama Bin Laden was effective with that. Charlie Savage:Alright. Jameel? David Cole:That was 139 characters. Charlie Savage:Here's an interesting tactical question Jameel Jaffer:But I guess, you know, maybe with the questionsand I think that this worries both David and me. Right now, were really the only ones who have this technology and so its very easy to adopt relatively broad rules, relatively lacked rules for the use of technology because we know were the only ones who were really going to be able to us. But its only a matter of a year or two years or three year before half a dozen other countries have the same technology and theyll be able to carry out the same kinds of strikethrough carrying out right now and my impression is that the Obama Administration is really thinking about tomorrow. They're not thinking about next week or a month from now, they're thinking about tomorrow, and maybe they're thinking about the rest of their term. They're not thinking about the next president, how the next president is going to use this power or against which enemy the presidents going to use this power and they're definitely not thinking about how is China or Iran or North Korea of whatever it is, you know, going to use this power and you know, I feel pretty confident that five years from now, a lot of people who are now in the Obama administration are going to regret that they didn't put a clear and more stringer rules in place for the use of these things. Charlie Savage:This is a tactical question and it goes to the context, the extensive context that members of the civil society groups like yours have with the Obama Administration officials, the personal ties, the ability to pick up the phone to get briefings and so forth. Do you think thats a net positive or a net negative? Would the groups be more effective, more of an arms length from this administration in achieving their goals that have been co-opted in other words? Jameel Jaffer:Nobody returns my phone call. So its not an issue of me. But I do think something that I'm sure David will disagree with. But I do think that there's real inconsistency amongst some in the Human Rights community and many democrats in their criticisms over the last decade. I mean, it is inconceivable to me that we wouldve accepted this targeted killing program had it been introduced by the Bush Administrationinconceivable that we wouldve been as complacent as we seem to be about it right now. And thats not so much because civil liberty and human rights groups have be co-opted, its because a lot of the people wouldve been on our side, democrats are unable or unwilling to criticize the Obama Administration on these sets of policies. So maybe thats not an answer to your question. David Cole:I guess I dont see a lot of acceptance within the civil society groups of the drone policy. I think thats actually been prettythere's been a fairly consistent criticism of it. You know, I think its a plus hand of mine thats right, you know, when president Bush is in office, the ACLU and CCRs coffers get filled. Its good for businesssomeone that people are scared of. People see and understand the real need for civil society organizations to fight against this, you know, what we saw after 9/11 because nobody else was and I think they were right to do that and right to support those organizations and I think those organizations actually played a big role in the curtailments that we saw even during the Bush administration and in the further curtailments that weve seen under Obama. On the other hand, you know, when the republicans are in power, its very hard for anyone in the sort of human rights community even to get in the door, to walk in the door to be heard by the executive branch and thats less true with the Obama administration and there are people whose sort of framework and viewpoint on the world were framed by their human rights and civil society experiences who went into the Obama administration. So you know, itsbut its also tougher to sort of attack Obama because people are less afraid of them. It becomes a more complicatedthe advocacy I think is in some ways easier when youve got a clear enemy than when youve got someone whos a friend but you think is doing the wrong thing in various institutions and various incidents. But you know, at the end of the day, I would certainly rather have my friends in there even if they're making mistakes than have, you know, have president Romney or presidentsome other iteration of president Bush. Charlie Savage:Do you think that some of theI mean, obviously both of you still are involved in these issues but it is undeniable that there's been a muting of interest. The right doesnt really criticize Obama for these policies with the exception of [???][1:27:00.9] type figure. The left is much quieter than it was during the Bush years. You say your coffers aren't being filled. You know, does thatyou raised at the beginning that your remarks that there's this sort of right wing mean that it was all part as and actually the continuity shows that, you know, there was nothing wrong with what Bush did. You laid out your view that there's actually significant difference and what's wrong is it changed. But to some extent does the continuity especially that someone like Jameel suggests that in retrospect some significant percentage of the criticism during the Bush years was opportunistic pars in Jameel Jaffer:Oh absolutely. I misspoke earlier actually when I said that the civil liberties and the human rights community have been muteI actually dont think thats true at all. The civil liberties and human rights community I think have been great on the drone issue. But, you know, had this happened five years ago, we wouldve had a lot of democrats on our side and there are some overlap between democrats and the civil liberties and human right community just as there is, you know, on the republican side. But if this were happening under president Bush, we would have all these democrats on our side and we dont have all these democrats on our side. Sometimes we do have some of them but I wish that we had them more than we often do. David Cole:Yeah, but we have Dick Cheney on the other side with Joe Biden. Charlie Savage:The other thing you said that was interesting was that the protests and the lawsuits and so forth, that groups like yours brought during the Bush years, you thought deserved a lot of credit for, you know, fixing problems and so forth. Jameel, do you share the view that there's athese groups including your own deserve a lot of credit for, you know Jameel Jaffer:I certainly deserve that credit. Well, you know, I dont think there's a lot to take credit for. I think that, you know, as I said it again, I think that things have, you know, its obvious I'm not a glass half full on this set of issues. I think that were on a very dangerous course and we have made small adjustments to it over the last few years, but they're small adjustments and I think it would be healthy for the civil liberties and human rights community to think about why it is that we havent been more successful at shifting the governments direction on this set of issues. And if you compare, you know, so I'm Canadian myself and I see how Canadians react to some of the national security policies that the Canadian government has put in place. You know, up in Canada, the name Maher Arar is a householdeverybody knows it, you know, everybody knows who he is and everybody knows what happened to him and most people read the report, the official government report about his treatment and down here, you know, I think there's stillthere isnt that familiarity with the facts and you know, I think that people in the civil liberties community are right to beyou know, are right to think about why it is that we havent been more successful about getting these set of facts into the public consciousness and changing the direction of the government. I'm not saying that, you know, I'm glad that these organizations are around. I wouldnt be doing the work that I do if I didn't think that the ACLU were an important organization actually making a difference. But you know, I think there's less to celebrate than I think David does. David Cole:And I guess myI dont necessarily want to be celebratory here or you know, have rose into glasses, but I think one can acknowledge that the toughest time to defend rights is when the government is taking rights from foreigners in a war who are said to be the enemy. That is the toughest time to defend rights and you know, historically in every nation. That is the case. Its not anything unique to the United States. So after 9/11 when we were locking up foreigners here in Guantanamo when we were rendering people, foreigners to be tortured in the like, yeah, in Canada, they know who Maher Arar is because he's a Canadian. It reminds me of the Andy Borowitz report on the poll which found that 97% of Americans are opposed to being killed by a drone. Yeah, if its us, if its our rights, then were concerned. But fine large, the victims are not us, they're them and thats really tough situation and so the congress wasnt pushing back against president Bush. The court only pushed back in fairly minimalist ways. The American people werent pushing back against president Bush. They reelected him after we went to war in Iraq. But nonetheless over time, Bush was forced to curtail virtually all of his most aggressive policies and where was the resistance. I think the resistance came from civil society organizations from some parts of the press, which played a big role. You know, what would we look like today if the center of constitutional rights have not brought the Rasul case, if reprieve had not sent Clive Stafford Smith out to every country that had a person at Guantanamo to do press conferences to put pressure on their governments, to put pressure on our government, leading Bush to release 500 people from Guantanamo who sometimes forget that. he didn't do that voluntarily because the pressure created by civil society, putting pressure on foreign governments to bring pressure. Where would we be on torture if the ACLU hadnt brought the FOA lawsuit that disclosed so many of the torture documents? Where would we be on cruel and human integrating treatments if human rights first did not organize the former generals to stand up behind John McCain and deliver the biggest to feed that the Bush Administration faced from congress in its entire eight years on the issue of cruel and human integrating treatment of foreigners are brought. So I think thats something that we should be proud of and no, we havent succeeded to the point where we would like to succeed. But that just means we have to keep fighting. Female Speaker:So I was actually going to ask about Charlie Savage:A microphone is coming your way. Maybe, I can always repeat. Female Speaker:--ask about our responsibility as advocates to educate the public and oppressedwhere we really are on these issues given the intense amount of interest that the world shows in what the US governments doing and not doing. And the example it seems to meI mean, I agree with David on weve made a lot of progress. I think that if you look at John Carries acceptance speech when he was nominated and he says, When I'm president, John Ashcroft is going to be my attorney general. That was an amazing recognition. He was talking about because I'm not going to have a civil liberties person, a person who doesnt care about civil liberties as the attorney general and that was directly the result of civil society pressure. It was not the result of some senators, you know David Cole:But he didn't say Jameel Jaffer would be attorney general. Thats what we want. Female Speaker:But so Charlie whos reporting is wonderful but starts off this discussion with indefinite detention, Obama moved to the middle and we you all talk about it, it turns out that Jameel, you agree that there are situations where it would be legal to detain people by the military until the end of hostilities without charges. I think Davids description of the way its understood publicly is right though. Its understood that the civil liberties community believes in try or release. Thats not the position that my organization took. Before 2004 filed [???][1:35:38.4] saying the law of war detention for an indefinite period of time is legal in certain circumstances and that what we have happening at the moment is the Obama Administration trying to bring back the limits of law of war detention to what is traditionally understood and accepted as law of war detention. Jameel Jaffer:I dont think thats true Kate, I dont think that the Obama Administration has said that at the end of hostilities in Afghanistan, these 48 people are going to be released. Female Speaker:No they havent answered the question to lawyers for the Obama Administration have raised the possibility that may well have to be released and you cantI mean, I wouldnt even want them to say right now, oh as soon as we leave Afghanistan, they have to be released, because the only effect of saying that publicly at the moment will be congress as soon you can blink your eye, well say you better not release them. But you know, I think that that issue is clearly open within the Obama Administration. It will be raised in the habeas litigation as to whether or not when the war is over in Afghanistan, hostilities authorized by the AUMF are finished and what do we do about that then. Charlie Savage:Do you also have a question to throw at them? Female Speaker:So my question was, in a situation where the issues are really complicated and the changes are really complicated and legal, etc. what do you see our role in trying to educate the press and other than Charlie, the public, who are not too interested in the new answers of these issues and are happy to talk about try or release, indefinite detention and Obama being the same as Bush and doesnt that in itself make the protection of human rights more difficult or why if the understanding is Obama is the same as Bush? David Cole:To Jameel. Jameel Jaffer:You know, I guess I'm not willing to take responsibility for the fact that the world thinks Obama is the same as Bush. I mean, its not something I had ever said and you know, we try to give the administration credit where they deserve credit and to criticize them where they deserve to be criticized. Its just that I think that they deserve more criticism than David does. You know, on this try or release issue, I dont think that our position was no nuance that you know, that it wasnt digestible by the ordinary public positionwas Guantanamo is a unique place, this is a unique kind of war and in this context we think try or release is what makes sense. I dont think thats too complicated and I still think it was the position and is the right position. When I say that we recognize that the government sometimes has the authority to detain somebody until the end of hostilities. I'm not talking about Guantanamo. I'm making a general point about you know, for example about Afghanistan, they can hold people until the end of hostility in Afghanistan. But with respect to Guantanamo because of the history of the place, the history of those people, the fact that this detention center is halfway across the world from the armed conflict, the fact that so many people were tortured in custody, the fact that they were detained, not in connection really with that armed conflict but instead in connection with the global war on terror. For all of those reasons, we thought that try or release with the policy that made sense. But as I said earlier, you know, if the administration comes to the conclusion or if the courts force the administration to come to a conclusion that people at Guantanamo who have been detained over the last decade had to be released or tried at the end of the hostilities in Afghanistan. I think that would be a huge step forward. Charlie Savage:Why dont you just stick the microphone where you will. Female Speaker:Thanks. My question is more about I guess the 10,000-foot level. Were talking about the power to torture or kill. The Bush torture memo logic was if you can kill the enemy, then you can water board the enemy, and by the way, water boarding is not torture. And then Obama said, you cant torture and water boarding is torture, but you can kill the enemy in certain circumstances but its unclear what they are. All of this was decided at the time and then secret memos written by the executive branch and its just been changed by the executive branch in more secret memos. So isnt there a concern, you know, regardless of whether or not there are differences but isnt there a concern that the law has just become whatever the president decides it is? Charlie Savage:The critique of office of legal council, executive branch lawyering. My favorite topic in the world actually. Not kidding. David Cole:I think there's a concern Charlie Savage:Yeah, maybe so because were running out of time. OLC lawyering, still a problem. Go ahead. Female Speaker:My name is Vee Young. First I would like to have this panel and maybe with the cooperation with the department of justice and the president whether Bush or Obama. I think what they are doing is particularly they do about the same rather than different because once the guy elected that, there's a campaign everywhere without really looking into the problem behind them or their supporters doing the wrong things. The department of justice never protected anybody, and on my mind is always listen to his supporter of where the money come from, the real issueor human rights issues really come up on the top of the issues. So I just wonder if whether that is, you know, the Iraqthey didn't allow him to speak and they killed Osama Bin Laden, they even produced a body. So we dont know actually what's going on and the people are not really informed thatvoters everyday, election after election, they dont know they're really voting for. All they do is they heard a propaganda by the special interest group and they get money, bail out everything from them and the department say they are too big to prosecute and what I would say the department is too corrupt to prosecute anything. So all this differentiation and then they dont listen to people anyhow. Do you have anybody who wants to speak their side. So I think Obama, have to say something and department of justice whether they record or anybody else because if you dont listen to the people and if you dont bring up an issue up front and always mess. Charlie Savage:Alright. So fairly of the justice department to prosecute people. She's talked about banks and money would also gets into your torture and look forward and not back. Female Speaker: So my question has to do with this idea that Obama administration maybe continuing the some of the same policies but its doing it within the law and its not claiming the right to ignore the law. And I dont think thats insignificant at all. But I do think the significance is somewhat diminished when you have a congress thats willing to grant you any authority you want essentially even if its a dubious constitutionality and you know you can prevent the courts from reviewing the constitutionality of that law. So to me that somewhat weakens the significance of, okay one of these administrations is acting within the law. But even beyond that and this is really my question. There are two ways to get around the law you dont like and the Bush Administration did the Belton Suspenders Approach. It redefine the law in a way it was breaking the law but it just said it was an interpretation of the law through OLC and if that doesnt work, we have the authority to disregard the law. The Obama administration has decided it doesnt need the belt but its kept the suspenders. So we have this definition of eminence that makes a joke out of the law of war and we have interpretations of FISA, which we only know a little bit about thanks to reporting but that, you know, some senators who know more than we do have said that it makes a joke out of FISA the way that the administration is interpreting it and thats across a range of different applications of FISA, there is some good evidence thats building up that the government is engaging in all dragnet collection of even domestic communications on the idea that somehow its okay if they dont actually look at it until there. So there are some interpretations of the law that are going under this administration that really do skirt the law and what's the difference between doing that and sayingoh and also we could just ignore it. I'm not saying that there's no difference at all, but I just think its a simplification. It strikes me as a simplification to say that this administrations committed to operating within the law and I think to me it seems like a better interpretation to say, well, they're getting most of what they want from the lot and when they're not, they're just interpreting it differently. David, do you think thats wrong? David Cole:Yeah, I think, you know, all law as we learn in law school, as we teach in law school, there's lots of room for interpretation of all laws and you know, nowhere more or so than in the area of national security is that the case for a variety of reasons, some good and some bad. But I guess I think there is a fundamental difference between an administration that takes the position that law should be thrust aside and treated as an obstacle and administration that says, we should operate and we must operate within the law and the law gives us a variety of options and were willing to defend our actions within that concept without resorting to claims that law doesnt apply. Geneva conventions dont apply. We put people on Guantanamo. A law doesnt apply there. Habeas doesnt apply there. The FISA doesnt apply because its Article II commander in chief power. That kind of argument I think is fundamentally different from an attempt or be it flawed, you know, as far as I can tell to figure out how the laws of war which permit killing in two context, armed conflict and self-defense should be applied in thisin a situation that they really didn't contemplate, one day were drafted namely non-state actors that are in various parts of the world that are difficult to police and that have the capability to attack us with very grave consequences. It is to some extent a new world, and you have to take laws that were designed to deal with older problems and apply them to this new set. But I think they're trying to apply them. I dont think they're asserting, we dont even have to apply them and thats the basic Bush approach was we dont have to apply them. Sure within the law there's lots of things you can do in a war. But you know, that was one of my critiques of the Bush Administration at the beginning. They have the right to detain people who were fighting against us. At Guantanamo or anywhere else they want to detain them as long as they it pursuant to the laws of war, recognize Geneva conventions protections, didn't treat them inhumanely and the like, and they threw all that aside and created this problem that they didn't need to create. So I do think there's a big difference. On secret lawI think secret law is a problem and I think its deeply problematic that very, very important powers like the powerI mean, what power could be more important than the power of the executive to kill American citizens and refuse to acknowledge that he has done so. Thats the power that they have asserted with on morethat cant in a democracy, that cant be secret. And so I think there's a real problem with secret law, which was a huge problem in the Obama and the Bush Administration but it continues to be a problem under the Obama Administration. Charlie Savage:That is a good exit thought for you. Jameel, do you want to take a minute or two and sum things up in response to these questions and the general discussion? Jameel Jaffer:I mean, I think the last question was, you know, it gets towell, I think that its exactly right. The distance between ignoring the law and reinterpreting the law is, you know, sometimes not that great and you know, in the [???][1:48:52.4] what the government did is they interpreted the AOMF very, very broadly. But they went in to court and they said, Congress has authorized us to carry up these kinds of strikes. And we went to court and said, Thats what theAOMF didn't authorize you to kill American citizens Yemen who aren't associated with Al Qaeda. And their response was the scope of the AOMF is a political question to be decided by the political branches and court has no business weighing in on it. You know, all other things equal, I think its a good thing that the Obama Administration uses the language of law to explain their actions. But sometimes the way that they're doing it is troubling for other reasons. And then on the secret law issue I think this probably sums it all three of us agree on there's too much secrecy around a lot of these issues, you know, one of the things that a lot of people have forgotten is that the Obama administration, very early on said that they would do a review of this FISA court opinions to determine what could be released and recently Steven after the sort of the guru of secrecy made some calls of the Obama Administration to figure out what had gone on with that inquiry and essentially the answer is nothing, that theyve decided that nothing can be released. And you know, we see that across all these issues on surveillance and targeted killing, on interrogation, the administration, they were very good on this in the first 6 months in 2009. But since then, they really close the tap and then on national security issues its very difficult to get anything out of the government. Charlie Savage:Take it away. Wendy Patten:Terrific. Well, thank you so much Jameel and David for a discussion that was both lively and illuminating and I think really helped us to think hard about important questions around the rule of law and the human rights and civil liberties implications of many different aspects of counter terrorism policy.