Who could gamble daily on the horses for nothing in new york. He was so deep with the bookies that they would always stake them in hopes that a long shot came galloping home and they could take his winnings. But he had the gift of gab. He was just a wonderful charlatan, a wonderful artist and like the best con man, he often believed his own cons. He believed that the show was going to work. Thank you all so much. [applause]. Thank you walter, thank you you for coming. Please remember to fold up your chair and come up on the righthand side to get your book signed. [inaudible] [inaudible conversation] cspan, created by americas Cable Television companies and brought to as a Public Service per cable or satellite provider. Afterwards is next on tv. University National SecurityCenter DirectorKaren Greenberg discusses her book, wrote justice. She takes a critical look at the legal questions arising from policies and laws enacted to fight the u. S. War on terrorism after niall 11. She is interviewed by a member of the supine group and the inside story of 9 11 and the war against al qaeda. Host hi karen. Another great book i see. Rogue justice, the making of the Security State. What you mean by the term robe justice . Guest rogue justice is the term i gave to the way in which the mechanisms that are supposed to keep a safe from interference from the states, they are supposed to protect the constitution it went off the rails after 9 11 and has failed to come back. So i call it rogue justice because it is out of control, outside of the bounds of the law and seems like a rogue element compared to what we expected or what were used to. Host you have a lot of very emotional quotes throughout the book. I know you love going to court, watching all of these proceedings, specially when it comes to terrorism, prosecution. Why did you include that in the book and why do you focus so much on National Security quotes versus others . Guest the book is really about what happened in the realm of National Security. There have been people who have proposed National Security courts but i wanted to see what goes on inside the courtroom because that is where the issues of innocence, the issue of the power of the law are most clearly shown and demonstrated. It is actually fascinating to watch the difficulties that they have on National Security cases. Thats why wanted to go. Theres all this talk about kenard cordes try terrorist. We have never tried one 9 11 terrace, yet in 15 years. So years ago i just started going to court to see what is a terrace prosecution look like. Ive been to many states and districts to see what the narrative of the defensive, what the narrative of the prosecution is and how it changed over time. I think it is important for the American People to understand that there are nuances to these cases. Not all terrorism cases are the same. There is an entire spectrum of cases from those who are accused of wanting to plot and founded evidence like the subway bomber in new york to those who are really just aspirational. I wanted to see how those cases played out differently and if there was a way in which justice could be described as not rogue. One of the takeaways from the book is that the courts were like a deer in the headlight when it came to National Security cases. Theres a realm of cases, surveillance cases brought by the aclu and others about overreaching by the government. Many of them, some secret court cases with a classified court. There there are terrorism prosecutions of prosecutions over foia requests. So there is a realm of cases that we need to look at to see how the courts and time after time, after time many of the judges and important judges in this country, in and port jurisdictions have said National Security, we do not want to part of it. We are not equipped to think about it. The president has told us this person is an enemy combat. He is told. He is told as they need the surveillance powers whether or not we get to the constitutional issue. The president told us we need to have this kind of foia request denied, whatever it is. And i wanted to see what the substance of this was and how the judges interacted with the lawyer and for the part many of them just took a backseat. By the time they got engaged and interested was too late. Host its interesting you said the courts and the judges, think the term that you just use words like a deer in the headlight. Federal courts were always used to prosecute National Security cases from big spies to to the bombers of federal court, many spies, of the cia spies in different big National Security litigations are also prosecuted in federal court. So they have a lot of experience of precedents in dealing with it. After 9 11 was a different . Guest thats a good question. Thats what i wanted to try to figure out. Why this why this shyness in the face of these prosecutions. One of the easy reasons is that there were not a lot of courts that did National Security courses. Southern district of new york in Eastern District of virginia that had done spy National Security cases there were comfortable classified evidence. As he began to expand outwards and had 400 prosecutions in states across the nation, where could you get the judges that can actually feel like they have the confidence to weigh in on it. As a result of that the National Security, in part was established at the department of justice for the purpose of managing, overseeing make consistent the argument that were used in the Legal Framework that was used to prosecute these cases. It took a long time. In taking a long time there became a lot of political backlash to, lets not use our courts. That is that is one of the saddest things that happened. In the halls of dc, in the halls of congress that the courts were not up to the task. They are up to the task and work and by the way, compared against the 9 11 trial, who could have taken this long to try any trial within the federal court system. I agree with you there up to the task. Let me also say many other jurisdictions are also up to the test. For example the Eastern District of new york, the brooklyn courthouse has done numerous terrorism trial since 9 11 is one of the leading courts in this regard. In virginia theyve had more terrorism cases and spy cases since 9 11. The d. C. Court, the same thing. He like you have cases in boston, slowly but surely theyre getting courts that are more comfortable with these issues but its taken a long time. The scariness factor would somebody get acquitted and have a set things off course from the very beginning. Host that takes me to the very beginning of your book with attorney general getting the case for the 911 defendants to the military and transferring it to guantanamo bay. I think it was reluctant to do so. Its interesting that you start your book with that and of the book you go back to the scene again, gang, and again. What is the importance of that specific thing and that specific decision and what kind of impact eric holders decision was for guantanamo bay. And what effect did it have in our views in the United States as the efficacy of federal courts. Guest it was a really unfortunate and unhappy moment for the american judicial system. Eric holder convey that. He basically said when he said theyre going back to the military commissions at guantanamo instead of being tried in manhattan federal court, what he said was look, i believe our courts are up to this task, i do not not believe for a minute that this is how it should be but congress has taken the decision out of my hand to make it impossible to bring guantanamo detainees to this country for any reason including prosecution. One of the original impetus for writing this book was a memo to eric holder which was basically listening, it wasnt congress that did this to you. It was ten years of the reference by the court to this idea of the National Security state. After ten years its not Just Congress able to do this, the fact that the court are not saying, here we are, how many prosecutors came down on the side of congress. How many prosecutor said, these are not cases we should not handle. Its too dangerous, to classified information, we information, we dont want to run the risk of acquittal. We dont want to be responsible for more death in america, its not our job. So it is not our job, its not just about the congressional ban on transfer from guantanamo. It was a very a very long narrative that started right after 9 11. The original military Commission Document came out as a president ial order in the fall of 2001. It was taken out of the federal courts and should have been an outcry, an outpouring of know, we know how to do this, were protecting herself, herself, our system, our balance of power. After all of those years that is how i see the story. So thats right, thats right comes back. To me, then 9 11 trial is an incredibly important misstep, mishap, the fact that we have not had a for americans. Triers are guilty and innocent, trials lay out a narrative. Trials. Trials are healing. They bring closure. We have not had closure for nine a level on some deep psychological that i cannot put in a scientific category, but i know it. It is fundamental. A lack of trust in our courts so im glad that you asked about the holder because it does matter to me. Its what inspired me to go back and say, how could this happen. That we did not try this trial. What else went wrong . Host another thing that goes handinhand and we see it in guantanamo, again and again every time there is a hearing, most of the fightings in the discussions in Legal Proceedings have to do with secrecy. It seems that secrecy is very important to you. Again that is a topic that you refer to throughout the book. So cant we have secrecy at a time of National Crisis . Im trying to be the devils advocate here on this. Guest we absolutely need secrecy. Secrecy classification which is a lawyer, kate a word for it. Secrecy is essential to National Security. Theres no question about it. But how much secrecy is really the issue. Secrecy that shuts down our court in a way that they cannot function as they used to, secrecy that takes way from the American People the right to really know what is going on. Lets remember that when president Obama Took Office and issued a series of degrees on the second day of office, he talked about transparency. It was one of the issues he said im going to bring transparency back into our realm. You are going to know what goes on inside this government. It has not happened. What i would say about these cases is that when you go to court their is a tremendous amount of classification already. These cases weather before 9 11 or after 9 11 has always had classified issues. And there the procedures act which gives guidance and roles to judges, prosecutors and defendants about how to handle classified material. For the most part its work. That doesnt mean its not contested by some attorneys on either side of the aisle but his work for long time. Classification issue, at one, they cannot even get to the beginning of the trial. Its all about what is going to be presented, what isnt, whats allowed to be seen, what exists. What exists. What no longer exists in the case of guantanamo. One of the problems with secrecy after 9 11 is that theres some suspicion on the part of many and some of it i share, not all of it. Some of it i share in the secrecys about things the United States government did that they should not have done. That cannot be the reason things are classified. Rather than sources and message and information that would help her enemies. So for example, torture. The fact that these individuals are tortured that is not a secret. What kind of torture, we may not know. It seems to me that cannot be the reason that we cannot have these trials. Host you mention torture and you and i have been talking about torture for a long time. From your experience, youve been looking into these issues for a long time, youve looked into guantanamo and your first book was about guantanamo and today its about the federal courts. In your understanding is there a lot of classification in the federal system or in one time a and how this over justification has an impact on the entire Justice System . Guest i think im not the only person at all to think that over classification is an issue. You you can see the government struggled with this. Recently they decided on the level of classification that would snow longer classify. I think thats a move in the right direction. There are number of federal judges that have said, when i looked at the materials they were astonished the reason is if you give a breath to classification and neared the officer to determine whether its classified or not why would you classify . Why would you take the risk that you made the mistake that some are down the road couldve been the needle in haystack. There is an unwillingness to take on responsibility, that is fed by push by classification. So there has been all of this because on the media and the rumor mongrels, they found out this and that. And it will impact these trials. Theres also basic things. And one, though i understand the term. There are a lot of issues they ask the government and they admitted to publicly thats part of the official investigation that has been released by these agencies when you see these entities and government that are still considered classified in the guantanamo courtroom. How do you explain that . Its beyond inappropriate. You have a number of individuals that testify to congress or that have written or spoken about things that in one context classified s so theres a chill factothere is a chillfactor thak about that even though this is public knowledge. This is dangerous because it diminishes the legitimacy. Its not a good space to be. It makes a mockery of what classification should be for those things which are truly dangerous, secret and there is a category of those things. Whats happened in a lot of areas not just classification is the governmenasthe government id now people dont trust the decisions or the lines that its drawn between classified and unclassified and thats another thing that i included to in the book is the trusted the government to say whats real and what makes sense going forward. It works while. In all of the cases that involve classified information that judges figured out a way to handle it and the Defense Attorneys are not up in arms about it. They wish things had gone their way. But thats what the judges role is to say you can have this but not this. In the longest terrorism case weve ever had, look how they litigated what could be shown in court when you were dealing with individuals tortured which no one knew at the time, with information people may or may not have known at the time depending on the case. And after tremendous guilt they came up with a system of substitutes for the witnesses and testimony verbatim, but they came up with something in the trial that was concluded. Even in an egregious case where the reasons for classification are so complicated it worked out. Host one of the biggest philosophical constructs after 9 11 is the balance between liberty and security. People have been insisting its fine to do all these things if they can prevent another 9 11. From reading the book and knowing you personally hell do you see the balance based on your opinion and based on your countless hours sitting in court listening to National Security cases . The security has won in the balance. One in the balance. There has been a balance that has overwhelmed courtrooms and the juries and the media in terms of understanding what is at stake and that liberty has suffered tremendously and i will come back to how that is the case. What i think further is that we focus on liberty and while we are focusing on liberty versus security we should have been focusing on justice versus security. But we have lost the strength and backbone of our system in this context including the wall in congress so when you think about the courtroom you see a lot of cases where the rights are at issue these are lowlevel cases where people were caught in the middle of inactivity we are not talking about the embassy bombings, we are talking about individuals that are somewhere between aspirational and talking about al qaeda and isis comes across as being tantamount and that is an issue. Another issue that has come up, the Fourth Amendment has been beaten up since the beginning. Thats what the revelation showed and i write a lot about this lawyers and others. They recognized the surveillance authorities were not justified by the way they had been laid out by another Justice Department lawyer and did their best heroic standing up for th this. Guest he wa guest he was willing to put his career at stake. He was pro wall enforcement and understand the security at stake and wanted to bring it back and the Fourth Amendment isnt as protective as it used to be a. Thats the push to bring back to the power so whats necessary in this and we havent figured out thats what i mean when i say security has one mostly through the work of other organizations that has found its voice here and there. I also wasnt thinking about this. We want balance but i think the tension between the two is great they are supposed to think about how to keep the country safe and Civil Liberties advocates and others are supposed to think about how to protect our constitution. Its got a built into the fabric of who we are as a nation. You mentioned something about the cases as socalled aspirational. If you look at an individual trying to issue al qaeda were isis an