Transcripts For CSPAN2 Jameel Jaffer Discusses The Drone Mem

Session. Edward epistein is here with his book. Books will be available for gust guests on a 1st quick come first serve bases. There is no questions but instead we encourage you to talk to the author after. There is also a pod cast that is available on the blog as well as hoovers website. And i am going to do a quick introduction of our interviewer. It is jack goldsmith. He is a senior fellow at the Hoover Institution and cochair of the Hoover National security and Technology Working group and a professor at harvard university. Thank you very much. Thanks for coming tonight. My guest tonight is Jameel Jaffer who needs no introduction. He is the author and editor of the the drone memos. The book, much of the book contains the fruits. Jamals wanted to bring more transparency to the obamas Drone Program. He was involved in litigation involving these memos and other activities while he was the leg legal director and personal in charnel charge of a Legal Program at aclu. He started out his career just after 2001 as a line attorney or not sure what you call it at the aclu. His First Initiative was during the Bush Administration when he used foya aggressively and impact litigation to get access about interrogation and related activities during the Bush Administration. So, before we get to the meet of this book starts off with a 55page essay by jameel which a critique of the Drone Program. Can you start us telling us how you got into the business of litigation against the government and what you thought you were doing and how you came to do it. Take us through the Bush Administration till the contents of this book. Guest first, thanks for inviting me to do this and thanks to the Hoover Institution for sponsoring it. We did a lot of work and i was doing probono work for the aclu in the weeks and months after 9 11. This National Program that existed until 1990 and shutdown because everybody thought it was the end of history; right . It was resurrected after 9 11 and i started working in that group and we worked on issues ranging from government surveillance, exclusion of foreign scholars because of their political views, we worked on issues relating to immigration and National Security and then on issues related to detention and interrogation. A lot of my energy was spent during the Bush Administration on interrogation policy. On trying to compel the government to be more forthcoming on their policies and we had some degree of success in forcing the government to disclose what turned out to be the evidence of tortures at Guantanamo Bay and cia black sites. Then when the obama administrati administration. The memos that were the foundation of the cia. Did you think you had a business at that point . Well, you know, yes, sort of. It was clear we would have some sort of carryover litigation which was clean up litigation from what with gone on from the previous eight years. From my perspective, the first few months of the Obama Administration were heavy times, the torture memos were disclosed as Everybody Knows one of president s first act was to formally disavow, torture, reverse the transparency presumption that prevailed under the freedom of information act. He committed to close Guantanamo Bay. Some of the cases i had been litigated got settled in the first few months after president obama took office. I had been litigating these two cases on behalf of cases related to foreign scholars who had been excluded from the United States and both of those cases were settled and the Obama Administration, the state department under secretary clinton actually, agreed to allow those foreign scholars to come back into the United States. For reasons people discuss and will endlessly discuss the Obama Administration took a turn probably six months into the administration. And generated a lot of issues we ended up with. Host so you are talking about the ramp up of the Drone Program which had the use of airal airial views. How did you come to litigate these memos and force these d k docume documents just like the inte interrogation documented . What was the concern . One was about transparency. In news articles in 20092010 about the ramp up of this program and we were interested to know what the scope of the program was; who are we targeting and what were the results of the strikes and who was making the decisions. So that was the transparency concern that sort of matched the concern. Right at the beginning of 2009, 2010, there were news reports that the administration, the government was going to target this american citizen and we there were new stories in 2009 and 2010 indicating that the cia and special forces were targeting this american citizen. They intended to kill this american citizen. This forced us to use legal force without review and many people, and i say this in my book, Many Americans were properly outraged when president bush proposed extra detention and many of us at the aclu were outraged at the idea of extra judicial killing by the Obama Administration. There are many differences between detention and killing but essentially this was an awesome use of power by the government and we thought it ought to be subject to constitutional limits. Host one results in detention and potential release the other results in death and Collateral Damage. Guest yeah, and there is no appeal from a drone strike. No habeas. We sent my boss a letter in 2010 expressing some degree of concern about this proposed targeting of an american citizen. We had very Little Information about why he was being targeted and what process took place in the executive branch and what process the administration was proposing to comply with or proposing to what kind of process they had in mind. Part of the administration was they were being forthcoming. Host talk about the client and then we will get into the merits of the lawsuit. Guest in may of 2010, one of my colleagues and i went to yemen to meet meet with the father of the guy who the government was intending to kill. He did his ph. D here and taught economics in the United States and went back to yemen where he became the president of a university there and the minister of agriculture in yemen had many close ties to the United States. But he had this son who became public enemy number one. He was very conflicted about this situation almost this loyalty was to his son. He said it can be right the government can target my son like this without presenting efrd or formally saying what he is accused of. All they had was links to the media. We put together this lawsuit with Constitutional Rights to essentially ask the courts to weigh in on the scope of the Governments Authority to use force against an american citizen. We filled that suit in the summer of 2010. Host so you lost that suit at the District Court level on Standing Grounds that the court held. You lost that lawsuit and he was eventually targeted and killed. A month or a week later his son was killed as Collateral Damage in the strike. Guest so the Collateral Damage, his son was killed in a strike. The government has never explained what that strike was meant to do or who they were targeting. There have been links someone else was targeted. This 16yearold american kid was killed in a separate strike and the government has never provided on an the record account for that strike. Host why dont you tell us what you lost . Guest the point of that suit was to try to get the courts to say what the law was. The government is claiming this authority and saying we are going to kill this american citizen because he presents some unspecified threat to the United States. We said to the court, there are limits to the Governments Authority to use lethal force specially against its own citizens. The court has a rule eliminating what those are and the Court Essentially said no. The court said who constitutes the conflict is a question of the political branches and not one in which the courts have any rule to play. That was the first case. Then, al walki was killed and his son was killed in a separate strike a month later. We filled another suit this one in effort to compel the government to present efrd to the court. The argument is we understand the courts have accepted the information but we think you ought to require evidence to the court after the fact in the same way as if police use lethal force here or on the streets of washington, d. C. After the fact they can be brought to court and forced to defend their use of lethal force. Once again we lost. This time on the grounds that remedies that are available in other context they just described are not available in the context of National Security. That is going to emphasize i think it is fair to say these were long shot cases. It was a novel case also. And the ground on which you lost were typically the grounds you lose on when they bring lawsuits against the president challenging his war Time Authority guest i think you are right. The power is a novel power. The idea that the government is going to deliberately target one of its own citizens in war time and you say i am sure we will get to that. He wasnt on a national battlefield. He was in yemen which even the government didnt characterize as a battlefield. Host the lawsuits were novel and americans have been killed in war time and civil war and world war ii and the like gut never in a sense targeted like this outside the traditional battlefield. A topic we will get back to in a second. There is another line of litigation in addition to the losses of challenging the Legal Authority of the war. These were freedom of information lutes lawsuits seeking documents relateded related to this program. There it is fair to say you have mid line success . You wanted the Second Circuit and the opinion that supported the strike was revealed in conjunction with the judge being confirmed. If you look at the litigation, you say you suffer a lot of losses and had a few Small Victories and yet i want to suggest that you got all these documents. It seems like it was pretty good success just in the perspective of transparency. Would agree with that . Guest no. Host why not . Guest we had some success. This is a july 2010 counsel report and the green light for the killing. In a formal sense, that memo was released in response to our litigation. Also released was the president ial policy guidance which is the document the Obama Administration put in place in may of 2013 to regularize the Drone Program. So, yes in a sense it is important to realize or recognize the limits of those successes. Because it is important for people to understand to what extent transparency related to National Security is a matter of executive grace. We have these two, in some ways Landmark Legal victories we managed to get out of the washington, d. C. Circuit and Second Circuit. The washington, d. C. Circuit held in, i think, 2013 that the cia could no longer refuse to confirm or deny that it had documents about the Drone Campaign. For several years, the cias position when we asked for information about the cias response was what Drone Campaign . From a litigators perspective, it is very rare and almost unheard of. An Appeals Court will second guess the determination of whether information is properly classified. In essence, from a litigation perspective it was a big victory. The other big victory is the Second Circuit case in which the Court Required the Obama Administration to release the july 2010 memo. They argued the release of it caused damage to National Security. A huge foia victory. The cleef judge of the Foreign Intelligence Court of review who was progressive was part of the panel. Right . But that memo they released on the grounds of officially acknowledgment. Essentially we had argued that the government shouldnt be able to keep the secret when it has effectively acknowledged the content of the memo and released them through documents and public statements. That is the argument the court adopted. When we won on the grounds the court said you guys already have the information you are asking for. In practical terms, it was a victory. Host i will say never in the history of american warfare has any particular military technique or part of the campaign been so legalized inside the government and also b i would say given the speeches of the Obama Administration give or the paper he referred to or the documents they released last month and it is the law governing use of force under International Domestic law and i would say that we have much more information now than we have ever had about any targeting campaign, uncompreiable more. I would say it is more elaborate bases and process. We know a lot about it. Why isnt this is a gigantic success for transparency . Guest a couple things. First, i think you are right. We know a lot oubt this. This conflict is different from this conflict. I think compare the gue host we have missile strikes off the traditional battlefield and no memo for that. We had irregular forces in lots of contexts and wars. World war ii guest i take your point. I still think you have to be careful with these comparison because this is a different kind of conflict. Host i agree. It is a different conflict in a different era, a legalized era which is why the government has legalized this thing like crazy. It is why you have been going after them to learn more. I am proud of the work we have done. Guest i think it is important for people to realize much of it at the end of the day, executive grace. Host there is political pressure in part you brought here. Yes, it was executive grace. There was no legal rule they did it. But the fact of the matter is you raised the temperature, you hit a nerve, and they did a lot more inside as a result and published a lot more. I dont understand why this isnt a large victory for transparency in war time. Some say way too much transparency and the government is being observed. Why arent you happy . Guest partly is we disagree on what extent this is executive grace. It is a matter of timing. We filled this litigation in 2010 and got the memo in 20142015. Often what happens with this kind of secrecy is the secrecy allows the government to create facts on the ground. By the time the information gets disclosed, it is no longer realistic. The time for making that decision is passed and the public is excluded from the Decision Making and given information only when it is too late. Host so the public is excluded from the Decision Making. The decision we are talking about is all these decisions are made at the highest levels of government. Almost all of them. They are ultimately made by the president to use force in a war authorized by congress. You can argue about the International Law issues. If the president is making a military situation about using force the American People have never been involved in that decision. How would you like them to be involved in the decision . What is the ideal world look like in terms of being involve in that decision publically . Guest so the standards that the Obama Administration announced or were put in place in 2013 and we didnt get the documents until 2016. But you can imagine a debate in 2010 about the scope of the Governments Authority to use the Decision Making to proceed that force. You can imagine a public debate about should the government be required to go to a judge before . Should it be required to go to a judge after . Can the government use force against people who dont present truly imminent threat but instead continue imminent threat . You can imagine that kind of debate. That debate never took place. There was a moment that is hard to believe in 20122013 where congress got engaged in that set of questions. And in fact, senator feinstein proposed she would hold hearings on the appropriateness of the drone court and clapper said at one point he thought there were merits to the argument there ought to be another branch involved. Host do you think that is a good idea . Guest no, i dont. For Hoover Institution<\/a> and cochair of the Hoover National<\/a> security and Technology Working<\/a> group and a professor at harvard university. Thank you very much. Thanks for coming tonight. My guest tonight is Jameel Jaffer<\/a> who needs no introduction. He is the author and editor of the the drone memos. The book, much of the book contains the fruits. Jamals wanted to bring more transparency to the obamas Drone Program<\/a>. He was involved in litigation involving these memos and other activities while he was the leg legal director and personal in charnel charge of a Legal Program<\/a> at aclu. He started out his career just after 2001 as a line attorney or not sure what you call it at the aclu. His First Initiative<\/a> was during the Bush Administration<\/a> when he used foya aggressively and impact litigation to get access about interrogation and related activities during the Bush Administration<\/a>. So, before we get to the meet of this book starts off with a 55page essay by jameel which a critique of the Drone Program<\/a>. Can you start us telling us how you got into the business of litigation against the government and what you thought you were doing and how you came to do it. Take us through the Bush Administration<\/a> till the contents of this book. Guest first, thanks for inviting me to do this and thanks to the Hoover Institution<\/a> for sponsoring it. We did a lot of work and i was doing probono work for the aclu in the weeks and months after 9 11. This National Program<\/a> that existed until 1990 and shutdown because everybody thought it was the end of history; right . It was resurrected after 9 11 and i started working in that group and we worked on issues ranging from government surveillance, exclusion of foreign scholars because of their political views, we worked on issues relating to immigration and National Security<\/a> and then on issues related to detention and interrogation. A lot of my energy was spent during the Bush Administration<\/a> on interrogation policy. On trying to compel the government to be more forthcoming on their policies and we had some degree of success in forcing the government to disclose what turned out to be the evidence of tortures at Guantanamo Bay<\/a> and cia black sites. Then when the obama administrati administration. The memos that were the foundation of the cia. Did you think you had a business at that point . Well, you know, yes, sort of. It was clear we would have some sort of carryover litigation which was clean up litigation from what with gone on from the previous eight years. From my perspective, the first few months of the Obama Administration<\/a> were heavy times, the torture memos were disclosed as Everybody Knows<\/a> one of president s first act was to formally disavow, torture, reverse the transparency presumption that prevailed under the freedom of information act. He committed to close Guantanamo Bay<\/a>. Some of the cases i had been litigated got settled in the first few months after president obama took office. I had been litigating these two cases on behalf of cases related to foreign scholars who had been excluded from the United States<\/a> and both of those cases were settled and the Obama Administration<\/a>, the state department under secretary clinton actually, agreed to allow those foreign scholars to come back into the United States<\/a>. For reasons people discuss and will endlessly discuss the Obama Administration<\/a> took a turn probably six months into the administration. And generated a lot of issues we ended up with. Host so you are talking about the ramp up of the Drone Program<\/a> which had the use of airal airial views. How did you come to litigate these memos and force these d k docume documents just like the inte interrogation documented . What was the concern . One was about transparency. In news articles in 20092010 about the ramp up of this program and we were interested to know what the scope of the program was; who are we targeting and what were the results of the strikes and who was making the decisions. So that was the transparency concern that sort of matched the concern. Right at the beginning of 2009, 2010, there were news reports that the administration, the government was going to target this american citizen and we there were new stories in 2009 and 2010 indicating that the cia and special forces were targeting this american citizen. They intended to kill this american citizen. This forced us to use legal force without review and many people, and i say this in my book, Many Americans<\/a> were properly outraged when president bush proposed extra detention and many of us at the aclu were outraged at the idea of extra judicial killing by the Obama Administration<\/a>. There are many differences between detention and killing but essentially this was an awesome use of power by the government and we thought it ought to be subject to constitutional limits. Host one results in detention and potential release the other results in death and Collateral Damage<\/a>. Guest yeah, and there is no appeal from a drone strike. No habeas. We sent my boss a letter in 2010 expressing some degree of concern about this proposed targeting of an american citizen. We had very Little Information<\/a> about why he was being targeted and what process took place in the executive branch and what process the administration was proposing to comply with or proposing to what kind of process they had in mind. Part of the administration was they were being forthcoming. Host talk about the client and then we will get into the merits of the lawsuit. Guest in may of 2010, one of my colleagues and i went to yemen to meet meet with the father of the guy who the government was intending to kill. He did his ph. D here and taught economics in the United States<\/a> and went back to yemen where he became the president of a university there and the minister of agriculture in yemen had many close ties to the United States<\/a>. But he had this son who became public enemy number one. He was very conflicted about this situation almost this loyalty was to his son. He said it can be right the government can target my son like this without presenting efrd or formally saying what he is accused of. All they had was links to the media. We put together this lawsuit with Constitutional Rights<\/a> to essentially ask the courts to weigh in on the scope of the Governments Authority<\/a> to use force against an american citizen. We filled that suit in the summer of 2010. Host so you lost that suit at the District Court<\/a> level on Standing Grounds<\/a> that the court held. You lost that lawsuit and he was eventually targeted and killed. A month or a week later his son was killed as Collateral Damage<\/a> in the strike. Guest so the Collateral Damage<\/a>, his son was killed in a strike. The government has never explained what that strike was meant to do or who they were targeting. There have been links someone else was targeted. This 16yearold american kid was killed in a separate strike and the government has never provided on an the record account for that strike. Host why dont you tell us what you lost . Guest the point of that suit was to try to get the courts to say what the law was. The government is claiming this authority and saying we are going to kill this american citizen because he presents some unspecified threat to the United States<\/a>. We said to the court, there are limits to the Governments Authority<\/a> to use lethal force specially against its own citizens. The court has a rule eliminating what those are and the Court Essentially<\/a> said no. The court said who constitutes the conflict is a question of the political branches and not one in which the courts have any rule to play. That was the first case. Then, al walki was killed and his son was killed in a separate strike a month later. We filled another suit this one in effort to compel the government to present efrd to the court. The argument is we understand the courts have accepted the information but we think you ought to require evidence to the court after the fact in the same way as if police use lethal force here or on the streets of washington, d. C. After the fact they can be brought to court and forced to defend their use of lethal force. Once again we lost. This time on the grounds that remedies that are available in other context they just described are not available in the context of National Security<\/a>. That is going to emphasize i think it is fair to say these were long shot cases. It was a novel case also. And the ground on which you lost were typically the grounds you lose on when they bring lawsuits against the president challenging his war Time Authority<\/a> guest i think you are right. The power is a novel power. The idea that the government is going to deliberately target one of its own citizens in war time and you say i am sure we will get to that. He wasnt on a national battlefield. He was in yemen which even the government didnt characterize as a battlefield. Host the lawsuits were novel and americans have been killed in war time and civil war and world war ii and the like gut never in a sense targeted like this outside the traditional battlefield. A topic we will get back to in a second. There is another line of litigation in addition to the losses of challenging the Legal Authority<\/a> of the war. These were freedom of information lutes lawsuits seeking documents relateded related to this program. There it is fair to say you have mid line success . You wanted the Second Circuit<\/a> and the opinion that supported the strike was revealed in conjunction with the judge being confirmed. If you look at the litigation, you say you suffer a lot of losses and had a few Small Victories<\/a> and yet i want to suggest that you got all these documents. It seems like it was pretty good success just in the perspective of transparency. Would agree with that . Guest no. Host why not . Guest we had some success. This is a july 2010 counsel report and the green light for the killing. In a formal sense, that memo was released in response to our litigation. Also released was the president ial policy guidance which is the document the Obama Administration<\/a> put in place in may of 2013 to regularize the Drone Program<\/a>. So, yes in a sense it is important to realize or recognize the limits of those successes. Because it is important for people to understand to what extent transparency related to National Security<\/a> is a matter of executive grace. We have these two, in some ways Landmark Legal<\/a> victories we managed to get out of the washington, d. C. Circuit and Second Circuit<\/a>. The washington, d. C. Circuit held in, i think, 2013 that the cia could no longer refuse to confirm or deny that it had documents about the Drone Campaign<\/a>. For several years, the cias position when we asked for information about the cias response was what Drone Campaign<\/a> . From a litigators perspective, it is very rare and almost unheard of. An Appeals Court<\/a> will second guess the determination of whether information is properly classified. In essence, from a litigation perspective it was a big victory. The other big victory is the Second Circuit<\/a> case in which the Court Required<\/a> the Obama Administration<\/a> to release the july 2010 memo. They argued the release of it caused damage to National Security<\/a>. A huge foia victory. The cleef judge of the Foreign Intelligence Court<\/a> of review who was progressive was part of the panel. Right . But that memo they released on the grounds of officially acknowledgment. Essentially we had argued that the government shouldnt be able to keep the secret when it has effectively acknowledged the content of the memo and released them through documents and public statements. That is the argument the court adopted. When we won on the grounds the court said you guys already have the information you are asking for. In practical terms, it was a victory. Host i will say never in the history of american warfare has any particular military technique or part of the campaign been so legalized inside the government and also b i would say given the speeches of the Obama Administration<\/a> give or the paper he referred to or the documents they released last month and it is the law governing use of force under International Domestic<\/a> law and i would say that we have much more information now than we have ever had about any targeting campaign, uncompreiable more. I would say it is more elaborate bases and process. We know a lot about it. Why isnt this is a gigantic success for transparency . Guest a couple things. First, i think you are right. We know a lot oubt this. This conflict is different from this conflict. I think compare the gue host we have missile strikes off the traditional battlefield and no memo for that. We had irregular forces in lots of contexts and wars. World war ii guest i take your point. I still think you have to be careful with these comparison because this is a different kind of conflict. Host i agree. It is a different conflict in a different era, a legalized era which is why the government has legalized this thing like crazy. It is why you have been going after them to learn more. I am proud of the work we have done. Guest i think it is important for people to realize much of it at the end of the day, executive grace. Host there is political pressure in part you brought here. Yes, it was executive grace. There was no legal rule they did it. But the fact of the matter is you raised the temperature, you hit a nerve, and they did a lot more inside as a result and published a lot more. I dont understand why this isnt a large victory for transparency in war time. Some say way too much transparency and the government is being observed. Why arent you happy . Guest partly is we disagree on what extent this is executive grace. It is a matter of timing. We filled this litigation in 2010 and got the memo in 20142015. Often what happens with this kind of secrecy is the secrecy allows the government to create facts on the ground. By the time the information gets disclosed, it is no longer realistic. The time for making that decision is passed and the public is excluded from the Decision Making<\/a> and given information only when it is too late. Host so the public is excluded from the Decision Making<\/a>. The decision we are talking about is all these decisions are made at the highest levels of government. Almost all of them. They are ultimately made by the president to use force in a war authorized by congress. You can argue about the International Law<\/a> issues. If the president is making a military situation about using force the American People<\/a> have never been involved in that decision. How would you like them to be involved in the decision . What is the ideal world look like in terms of being involve in that decision publically . Guest so the standards that the Obama Administration<\/a> announced or were put in place in 2013 and we didnt get the documents until 2016. But you can imagine a debate in 2010 about the scope of the Governments Authority<\/a> to use the Decision Making<\/a> to proceed that force. You can imagine a public debate about should the government be required to go to a judge before . Should it be required to go to a judge after . Can the government use force against people who dont present truly imminent threat but instead continue imminent threat . You can imagine that kind of debate. That debate never took place. There was a moment that is hard to believe in 20122013 where congress got engaged in that set of questions. And in fact, senator feinstein proposed she would hold hearings on the appropriateness of the drone court and clapper said at one point he thought there were merits to the argument there ought to be another branch involved. Host do you think that is a good idea . Guest no, i dont. For Different Reasons<\/a> than you. Host it might be. One day you are getting the courts involved and they are not going to sign against the president and it will heighten the legitimacy of what is going on. Why dont you want it . Guest i think we already have courts whose role it is to check the governments use of, among other things, legal force against its own citizens. But i think the appropriate venue and time is after the fact. You know, the offense response is after the fact it is too late. If you except, and begin with the assumption which is my proposition that the Governments Authority<\/a> to use lethal force without prior judicial review comes into play only when the threat is truly imminent it is infeasible to have judicial review before. An imminent threat is one that doesnt allow for judicial review. After the fact of the review is never as fully satisfying. Equally important it would create a rule that would guide government conduct in the future in the same they that rules establish in Excessive Force<\/a> cases provide guidance to police host in the same the president s in the habeas cases have guided targeting decisions. Guest that is right. Host so, this is just figure out and you would determine in the after the fact review would be wrong full and the errors forced the court to judge the legality of the strike which includes adjudicating the war time authorization . Guest that is right. It is a suit brought under the 4th amendment in the same way Excessive Force<\/a> cases are. It would look like a detention habeas case. Host i expect that the outcome would be very much like the habeas cases . The court of appeals ultimately would fiddle around with the margins but they would say aokay, thumbs up and when you have real legitimacy. Guest if you recall the District Court<\/a>s were actually much more engaged or aggressive in the governments argument but because of the makeup of the washington, d. C. Circuit if the cases were brought in the washington, d. C. Circuit host i dont know this is the makeup of the d. C. Circuit. It is true the history of these lawsuits has been one in which courts have been extremely h hesitant to secondguess the president even after the fact the embarrassment of the president is something the courts would bend over backwards to void. You are talking about declaring the war or strike illegal and i think the pressure on any judge in that sort of sense is going to be worse despite the president and i think that is exactly why the courses are changed guest you are certainly right in National Security<\/a> cases generally the courts tend to be very deference to the executive ourt. In the habeas cases it is true that the government gets lots of deference. I still think at the margin that kind of judicial review is a useful thing. There are ways for courts to actually uphold what the government has done while narrowing the authority going forward. Even when a Court Appears<\/a> to be in a specific case deferring to the governments decision it can articulate a rule that has a constraining effect going forward. There is another benefit to having the judiciary involved. Right now the dpment has the choice of using lethal force and then never having to account for lethal force or possibly capturing the person and having to submit evidence to a court in a criminal trial, not just the court but the public, in a habeas proceeding. I dont think it takes you dont have doob to be paranoid about the abuse of government powers to see the incentive structure is one of such at the margin the government is going to lean toward killing even when capture is a possibility because you dont have to account for your actions when you kill whereas you do when you capture. The transparency that comes with judishalal judicial process i think force is a healthy thing and forces us to all own the policies in a way we dont when it is secret. Host how can judges force that . Guest right now, or certainly true in 2010, less true now. But in 2010, all this stuff was secret. The strikes were rarely acknowledged. Well, never formally acknowledged. Wie didnt know who was being killed and why they were being killed. I think it is easy for us to forget about that program when the effects of the program are so distance and so mysterious or hidden in secrecy. The societal over ownership of the policies is healthy. I think it would have made a difference in the torture debate. Host a couple points. You did force the torture debate. I agree. It is stopped in its track four years later and says the American People<\/a> in large part is what you and journalists made public. You found out what was going on and didnt like what you saw and pushed back. I think we had a debate in this country in large part because of the litigation you brought and the drone strike against the american citizen. It was a very robust debate in the country. The government was more transparent whether by grace or not but i think the country reacted differently to the drone strikes. They have taken ownership and havent expressed congressional inflation on it. We had a debate and people didnt mind what they saw. I think i think there is an omen of truth in that. The Drone Program<\/a> that ultimately endorsed that the Obama Administration<\/a> introduced. Host very much. It is not necessarily on the legal front but on the policy front they narrowed it down when they had basically you will not have civilian deaths. They continued to but narrowed the criteria a lot. I am sorry to be back to the thing but i dont understand why this isnt a huge success story. You engage the country and government and they did narrow what they were doing and didnt stop. I dont think that the courts played the role they ought to have played. There is that litigation and the Obama Administration<\/a> had to defend it. They learned a lot from that t litigation. I am confidant inside the government they were forced to get their act together in ternlz of Legal Process<\/a> and substance. I think it is all part of the same environment and i think you were responsible for it. Also responsible for the legitimation. You and the American People<\/a> said during the pushback for a variety reasons you were okay with this. Guest transparency is not instrumental. Sometimes you will demand the government make information secret and people are going to disagree about what the information signifies. I understand that. I think of the extent we were able to force. I tell you with the many losses under my leadership of the aclu and we didnt also appeal the loss. I wish he had the opportunity to appeal the second case. If you look at the case and scalias decent in the hominy ca case, this is not the line i would draw but the line important to him is citizenship. He felt very strongly that with the u. S. Citizen, the government had a different obligation. Even with detention, you need to to use criminal trial for the u. S. Citizen and i am not one to say we would have prevailed before the Supreme Court<\/a> but i think we would have gotten a different hearing. Host i think you would have. It is hard to know how that would have come out. I want to talk about when you bring the cases, the foia case but the also the cases that run the merit, do you always run the risk you will lose and set a bad precedent. It is just part of doing business. Can you tell how you think about the tradeoff of this is an important case to bring and we have a 30 chance of winning do we appeal . How much do you worry there must be cases you dont bring because you think it is going to make a bad precedent. How do you think about the trade off . Do you think it is important . It is. I think whether we made the right calculations, history will judge. If you lose cases at the threshold it is very frustrating to be thrown out. You dont do damage to the law and the merits. For better or worse there is no decision out there in which the court weighed in on the lawfulness of targeting alwaki. We create a precedent, we have this District Court<\/a> decision out there that says this kind of question is a political question. Those kinds of decisions are so factbound that i am not sure how much president ial weight host the District Court<\/a> does allow the government to stand up and say we have a federal court ruling. Guest the truth is they were saying that before. We try not to bring cases why are clear losers. We bring cases when we think there is an opportunity to do some good. But we would also take into account the public debate and the way that the case would inform or enrich or affect the public debate. Sometimes an important reason to bring one of these cases was there isnt debate about something there ought to be debate about or the debate is focus on the wrong set of issues and the case will move. I think you did that. We are returning out of time and i want to ask you a couple more questions. One thing i was struck about in the essay and you get two books in one because you have the Important Documents<\/a> collected and consequential reading. I was struck on the paradox of you are saying there is no rule of law here, i am paraphrasing, but there is no rule of law in the Drone Program<\/a>. On the other hand, you know, these documents reveal as you call this highly bureaucracies and highly legalized process that has been lawyered to death. There are memos and it is elaborate and there a lot of words. It sounds like a paradox. This is one of the points i make in the introduction. You think there is a lot of law here but it is not really law but it isnt law. A lot of terms that the administration the administration deliberately chose terms that sounded like con train but then redefine those materials so they wrnght that constraining. And the operative materials are sort of cherry picking different legal regime and then even to the extent of the government is over adopted frame qork in perhaps to that a legally binding and uneven to the extent it recognizes legally binding rules, it takes a position that those rules arent enforceable in court. So, thats not to say i mean, i wouldnt go as far as to say that this is completely lawless, but the fact that its sat waited with the rung of saturated with the language of law doesnt many the government is operating under a set of rules that is constraining. Im not sure if agree with that or have time to talk about it. We have this experiment, new administration. Well see what that see if they theres a restrictive policy. I agree the legal regime is the reason cherry picking this is a novel context so theyre trial to negotiate through three or four legal regimes and in this none con ticket theres going to be melding of different areas of law. S its restraining r i agree with you, gives the president s ton of disdiscretion who to target and when to target. No different than any no matter what the novelties are here and has to be the case that for the high level detainee, including awlaki, that for the Japanese Nuclear<\/a> strikes to end world war ii and giant bombing campaigns in germany has not been nearly this type of lib the top of an administration beforet now, the situation is novel bute theres deliberation and. Youre right. E inside the government. Inside the executive branch, yes. Winopen talking about deprivileging an american citizen of his life, we have never before said executive process is sufficient. This is the first time everyone said executive process is sufficient. Outside of a truly eminent situation by the police. Even there can you have judicial process. Treats true. Well, were out of time. One of my main complaints bottoms the the memo is the lures who write that memo, greenlighting the killing of anwar awlaki said you dont have to go to a judge before hadnt and presented your evidence. They never say, but that assumes that judicial process ie available after the fact. Dont think you can answer the constitutional yeah question, looking in a vacuum. You have to take into account the volleyball or unavailability of process afterwards. Last question. You woken to downplay your successes, hugely consequence shall during the administration in prying out a lot of stuff in the Bush Administration<\/a> and sparking delates in relate to go interrogation, and sparking deputt and change. Now you have moved on from the aclu, heading up the First Amendment<\/a> center st. Columbia. Can you tell what you see as the big issues in the First Amendment<\/a> area the equivalent of you can talk about it oar interrogation, detention, drones. The Biggest Issue<\/a> in the trump administration. I think support protection, whistleblowers, i think theyre a bunch of issues that free speech issues on social media. Now a lot of the power that used to be in the hands of the government is in the hands of private actors and this question of what those private actors can and should do we the power is huge hi consequential. So to i think the surveillance issues derek the First Amendment<\/a> limitsgovernments power and wil become more important under thus administration and governmentano secrecy around National Security<\/a> as First Amendment<\/a> right of access to information the Supreme Court<\/a> recognized and anticipate well end up litigating those cases. Good luck with. Congratulations on a great book. 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