Term i gave and the goal of the state was to project an off the rail 9 11 and has failed to really do that. I call it rogue justice because it is out of control, it is outside the bounds of the law and seems like a rogue elelement compared to what we are expecting and used to. Host there is a lot of vivid themes into the book. I know you loved going to court and watching all of these proceedings especially when it comes to terrorist. Why did you include them in the book . Why do you focus so much on National Security courts versus other courts . Guest the book is about what happened in the realm of National Security. There have been people that proposed National Security courts but i wanted to see what goes on inside the courtroom because that is where the issues of guilt and innocence and the power of the law are most clearly shown and demonstrated. It is actually fascinating to watch the difficulties that courts have with National Security cases. That is why i wanted to go. We cant try the 9 11 terrorists. We never have in 15 years. Years ago where started going to court to see what does a terrorism prosecution look like and i have been to many different states and districts to see what the narrative of the defense and the prosecution is and how it changed over time. I think it is important were the American People to understand there are nuances to these cases and not all terrorism cases are the same. There is an entire spectrum from those acocused of wanting to plt and found with evidence like the subway bomber in new york to those who are aspirational. I wanted to see how the cases played out different and if there was a way justice could be described not as rogue. The courts were like a dear in the headlights when it came to National Security cases. There are a whole realm of cases; surveillance cases about overreaching by the government, there are some secret court cases for the fisa court, there are terrorism prosecutions, there are prosecutions over hearings ever foya requests. There is a whole realm of cases we needed to look at to see how the courts feel regarding National Security. And time after time, many of the important judges in important justdications said it was National Security, we dont want a part of it, we are not equipped to think about it. The president cold us this person is an enemy combatant and they need the surveillance powers whether we get the constitutional issue, the president told us we need to have this kind of foya request denied whatever it is. I wanted to see what the substance of it was and how the judges interacted with the lawyers. Many of them took a backseat and by the time they were engaged and interested it was too late. Host you said courts and the judges, i think the tone you just used was like a dear in the headlights. Federal courts were always used to prosecute National Security cases. The east African Embassy bombers, many spies of the cia, and different big National Security cases are also prosecuted in federal court. So the court has a lot of experience and precedent in dealing with it. Why after 9 11 was it so different . Guest that is a good question and one i wanted to figure out. I think one of the easy reasons was there was the Southern District in new york and Eastern District in virginia that did spy case and were comfortable and classified. As you began to expand outward and had had 400 prosecutions in states across the nation where could you get the judges that felt like they had the confidence to weigh in. The National Security, in part, the division was established at the department of justice for the purpose of being able to manage oversee, make consistent the arguments that were used and the Legal Framework used to prosecute the cases. But it took a long time. In taking a long time, there was a lot of political backlash to lets not use our cords. That is one of the saddest things that happened. In the halls of d. C. And congress the courts thought they were not up to the task. They were and compared to the 9 11 trial who could have taken this long to try any trial within a federal court system . I agree they are up to the task and many other jurisdictions are now up to the task. The Brooklyn Federal courthouse has done numerous terror trials since 9 1 and is now one of the leading, if not the leading court, in these cases. And the boston bombing brother who was tried there. And the scariness factor of someone getting acquitted set things off course from the beginning. That takes me to something that actually is at the beginning of the book with attorney general eric holder giving the case for the 9 11 defendants to the military and transferring to the Guantanamo Bay. I think you reluctant to do so. Interesting you start the book with that and throughout the book you go back to that scene again and again. What is the importance of that state departments decision and what kind of chilling effects did it have on our views in the United States as the efficacy of the federal court . It was a real unfortunate and unhappy system for the american judicial system. Holder conveyed that. When he said they are going back to the military commission at Guantanamo Bay instead of being tried in Manhattan Court he said look, i believe our courts are up to this task. I dont believe for a minute this is how it should be. Congress has taken the decision out of my hands by making it impossible to bring Guantanamo Bay detainees to this country for any reason including prosecution. One of the original reasons for writing this book was a memo to eric holder which was listen, it wasnt congress that did this to you, it was ten years of the deference by the courts to this idea of the National Security state. And it isnt Just Congress sable to do this but the courts saying here we are. How many prosecutors came down on the side of congress and said these are not cases we should handle. It is too dangerous, too much classified information, we dont want to run the risk of acquittal. It wasnt just about the congressional ban on transfers from Guantanamo Bay. It was a long narrative that started after 9 11, the original military commission document, and now a president ial order in the fall of 2001 this was taken out of the federal courts right away. There should have been an outcry and outpouring of no, we know how do this and are protecting ourselves, system and balance of power. After all of these years, that is how i see the story and why it comes back and back and back. And to me, the 9 11 trial is an incredibly important misstep for americans that we have not had. Trials are guilt and innocence, trials lay out a narrative, trials are hearing and bring closure. We have not had closure for 9 11 on a deep, psychological level that i cannot name and put in a category but i know it. It is a lack of trust in ourselves that is fundamental and a lack of trust in our courts. I am glad you asked about the holder seen because this does matter to me and it is what inspired me to go back and say how could this happen . What else went wrong . So, yeah. Another thing that go hand and hand with this and we see it in Guantanamo Bay, again and again every time there is a hearing, most of the fighting and discussions and Legal Proceedings have to do with the secrecy and it seems the secrecy is very important to you and again, that is a topic that is said throughout the wonderful book. So since we have a system of national crisis, i am trying to be the devils advocate here. Guest we need secrecy and classification which as a more sophisticated word for it, secrecy is essential to National Security. There is no question about it. But how much secrecy is really the issue. And secrecy that shuts down the court in a way they cannot function as they use to, secrecy that takes away from the American People to right to know what is going on lets remember when president Obama Took Office and issued a series of decrees on the second day in office he talked about transparency and said i will bring transparency back into our realm. You will know what goes on inside this government. It hasnt happened. But i would say about these cases is that when you go to court there is a tremendous amount of classification already. These cases, whether before or after 9 1, always had classified issues. There is the classified procedure act that gives guidance to rules, judges, prosecutors and defendants on how to handle classified material and for the most part it works. We have it. The classification and secrecy sure at Guantanamo Bay has decked these proceedings. They cannot get a trial even. It is all about what is and what is not going to be presented, what is allowed to be seen, what exists and what no longer exists in the case of Guantanamo Bay. One of the problems with secrecy after 9 11 is there is some suspicion on the part of many, some i share, that the secrecy about things the United States government did they should not have done and that cannot be the reason thinks are classified rather than sources and methods and information that would help our enemies. For example, torture. The fact that we know these individuals were tortured. That is not a secret. What kind of torture . We may not know. Who did the torture . We may not know. But it seems that cannot be the reason we cannot have the trials. Host you mention torture and you and i have been talking about torture for a long time. From your experience, you have been looking into these issues for a long time. You looked into Guantanamo Bay and your first book was about Guantanamo Bay and today it is about the federal courts basically. In your understanding, is there a lot of overclassification in the federal system or in Guantanamo Bay . And how dud this over justification have an impact on the entire Justice System . Guest i think i am not the only person to think overclassification is an issue. You can see the government is struggling with this. They recently decided on a level of classification that will no longer be classified. I think that is a move in the right direction. There are a number of federal judges who looked at the classified material and were astonished. If you give a breadth to classification and you are the officer who has to decide whether to classify it or not why wouldnt you . Why take the risk you made a mistake about something that somewhere down the road could be the needle in the haystack. So it is fed by the push of classification and there has been overclassification and who knows what direction that will go in because all of this depends on external events. Between the rumors and the media and they found out this and that much like the snowden case. And we are entering a world where classification is harder because secrecy is harder because the way the internetworks, the way the sophisticated hackers work, there is always a sense of needing deeper and deeper means of classification. Not just the first level of lets classify something. What i would say is it needs to be rethought within the context of 21st century technology. We have a long way to go and it will impact these trials. Also, there are basic things. In Guantanamo Bay, i understand that the word waterboarding is still classified. There are a lot of issues that the u. S. Government and different agencies of the u. S. Government admitted to publically. It is part of official investigation that has been released by these agencies and these entties and the United States but still considered classified. How do you explain that . Guest it is beyond inappropriate. You have a number of individuals who have testified in congress or written or spoken about things that in one context they are classified and in another context they are not. So there is a chill factor of not writing about this even though is Public Knowledge and people can google it. And this diminishes legitmacy of of classification. We laugh about it because it seems ridiculous but it make as mockery of what classification should be. Classification should be reserved for those things which are truly dangerous truly secret, truly important and there is a category of those things. This happened in a lot of areas not just classification. But the government is so overreached people dont trust the lines it is drawing between classified and unclassified for example. That is another thing i allude to in the book. The littering away of trust and government to say what is real, what is right, and what makes sense for us to go forward. Host in rogue justice, how can you seek classification in federal courts . Guest it works well. There are so many issues of all of the terrorism cases being classified information and the judges figured out how to handle it. There are cases where the attorneys wish it went their way but the judges role is to say you can have this but you cannot have this. In the longest terrorism case we ever had, look how they litigated what could be shown in court when you were dealing with individuals who had been tortured, which information that led to torture which people may not are done at the time, after appeals to the Circuit Court twice they came up with a system but the system involved summaries summaries and substitutsubstitu. They had the trial, it was concluded and took years but not 15 years like the 9 11 trial. They worked it out. Host what is the biggest philosophical contract after 9 11 being the balance between libberty and security and peopl advocate it is fine to do these things if they keep us secure and prevent another 9 11. From reading the book, i think you are big on that balance. How do you see the balance, not based on your opinion, but based on your countless hours sitting in court, listening to National Security cases . Guest what i would say is that for the most part security h has, one there is no balance since 9 11 and the security overwhelmed the system and liberty suffer ed tremendously. I will come back to that on how i think that is the case. I think we focus too much on liberty. While we were focusing on liberty versus security we should have been focusing on justice versus security. It is interesting but we have lost the strength and fiber and backbone of our judicial system including our laws in congress. So i think when you think about the security versus liberty in the courtroom which is a really good question for the book. You see a lot of cases where the First Amendment rights were an issue. It is hard to tell in cases how many individuals, and these are lower level individuals, we are not talking about lethal cases or people being taught in the middle of an activity or after a plot, not the embassy or the subway attempted bop bombings but individuals between aspirational and inspirational. Talking about alqaeda and isis comes across as being not guilt. Where is the overt act is an issue. Another issue coming up that is bigger is the Fourth Amendment. The Fourth Amendment has been beaten up and not just in the courtroom. That is what the Edward Snowden revelation showed but we didnt need snowden. Inside government lawyers and others. The current head of the fbi, jim comey, Jack Goldsmith a now professor at harvard, recognized that the surveillance authorities being used were not justified boo the way they were laid out and did their best. Host jim comey was heroic at standing up for this. Guest he was willing to put his reputation at take. This is a guy who is proenforcement. Host the director of the fbi . Guest yes. He understood and wanted to rein it back in. And the Fourth Amendment is still not protected like it used to be and we will see where that conversation is headed. As you know the patriot act was a year ago and there is push to bring back more of the powers. What is necessary, what is not necessaryx we have not figured out as a country. That is what i mean. Security has won. Liberty mostly through the work of the aclu and other organizations has found its voice and it has been lingering and building steam here and there. But it hasnt that recalibration balance isnt there. I have been thinking about this and i am not sure if balance is good. We want balance. I think the tension between the two is great. I think it is great for the country. There should be tension. National security people are supposed to think about how to keep the country safe and Civil Liberties advocates and constitutional scholars are supposed to think about how to protect our constitution and our laws. You want tension. You dont want it has to be built into fabric of who we are as a nation. Host you mention something about the cases socalled aspirational. If you look at individuals trying to reach alqaeda or isis from the other perspective and the only tool you have is to send an undercover agent, or Law Enforcement in general, or to have the source to deal with that informant and see if they are serious enough. Do you see this as a job or utilizing the only tools they have . Do you prefer to individual to be committed before they commit or the act or after the real alqaeda reach out and they commit the act . That is also a ba