Interview on the Wiretapping Bill & the Unprecedented Expansion of Presidential Powers

Revolution talked to Shayana Kadidal, senior managing attorney at the Center for Constitutional Rights (CCR), about these developments, focusing on the question of NSA wiretapping. The CCR website notes, “In addition to supervising the Guantánamo litigation, [Kadidal] also supervises the Cuba Travel project and works on the Center’s case against the NSA’s warrantless surveillance program, CCR v. Bush, and its challenge to the ‘material support’ statute, HLP v. Gonzales. He also works with the Vulcan Society of Black firefighters challenging discriminatory hiring policies of the New York City Fire Department; and with the Sikh Coalition against religious discrimination by New York’s Transit Authority, among other cases.”

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REVOLUTION: First, can you step back a bit and put these developments around torture and government spying in the context of the very profound changes that have been happening in the law over the last seven years or so—the gutting of habeas corpus and so on?

Shayana Kadidal: All the changes in the law have one common theme, which is that the executive should have certain powers that cannot be checked by Congress. That anything that Congress says, regardless of how clear it is, under certain circumstances these sorts of regulation of executive powers are going to be beyond the powers the Congress was intended to have. And, you know, some of this has been on Vice President Cheney’s agenda since the 1970s. If you’ll remember, he was one of the people in the Watergate era that felt that a lot of the post-Watergate reforms that the Democrats pushed through with their huge majority were things that in fact weakened the country because they left us with an overly weakened executive. Among these are the FISA (Foreign Intelligence Surveillance Act) statutes limiting the President’s ability to gather intelligence information without judicial approval for the purposes of furthering “national security,” spying on foreign powers, foreign governments, foreign terrorist organizations, whatever. That’s one category.

Then another category, which is more relevant now since 9/11, is this notion that we’re a nation that is in something akin to a war with Al Qaeda, and that traditionally Congress should have no role in telling the President how to interrogate captured soldiers in a war, that the lack of Congressional power to regulate these things extends to specific techniques of interrogation. Whereas previously one might have thought that under Congress’s power to define war crimes, which is very clearly spelled out in the Constitution, power to regulate the armed forces, these things, expressly Congress is given power to pass rules about interrogation, even in a military context, even if you accept that there’s a “war” against Al Qaeda—that military rules should apply instead of ordinary investigative rules. Even if you accept all that, there’s an argument that Congress ought to have power to regulate these things as spelled out in the Constitution. The administration and its crop of lawyers say no, that’s not the case—that the President has total control over things that happen on the battlefield, he’s the commander in chief, and that’s the most “efficient” way to do things. And that you’ll be endangering the country by telling the President what kind of interrogation techniques he can use.

So it all falls into this context of executive power. And in particular whether Congress can set limits to presidential power.

If Congress had passed this bill banning waterboarding with a veto-proof vote, what would have happened is that the President would have issued a “signing statement” saying: notwithstanding the veto-proof vote, I don’t think I have to enforce it, because I think it exceeds Congress’s powers. And if CIA or various officials would have been called to account for having disobeyed the statute, the President would have said: Look, I issued this legal opinion that the statute itself is unconstitutional. The attorney general signed off on it. And government officials ought to be allowed to rely on the legal advice from the executive branch.

REVOLUTION: There is the issue of habeas corpus—under Bush’s Military Commissions Act passed by Congress in 2006, the President can declare somebody “enemy combatant” on his say-so and detain them and deprive them of all rights.

Kadidal: Right, it’s basically a way of saying that the judicial branch doesn’t have any role in telling the President when he can detain “enemy combatants” in the battlefield. And they’re defining the battlefield as virtually the entire world—defined only by the nebulous organization that we’re supposed to be engaged in war against, Al Qaeda.

REVOLUTION: Let’s turn to the bill, officially named FISA Amendments Act (FAA), that expands the NSA warrantless wiretapping program. I’ll ask you about the version the House just passed, without the immunity for telecommunication companies that participated in this illegal wiretapping. But first, can you describe the key elements and dangers in this bill?

Kadidal: It’s essentially on the model of the bill that got rammed down the Democrats’ throats by the President in the summer of 2007. That bill was most notable for departing from the content of individualized warrants—namely, when the government decides to surveil a single target, a single person, and they produce some level of evidence to the FISA court that the person is working for a foreign power or foreign terrorist organization or foreign power, defined very broadly by the FISA statute. Then the court can issue an individual order saying you can surveil that one person.

Well the departure from that—it’s a tremendous departure, in terms of the history of wiretapping regulations—in the FISA Amendments Act, the government is now allowed to go to the court and ask for approval of an entire program of surveillance. So they’ll come to the court saying: We want to surveil every person who calls from Afghanistan to the United States in the middle of the night, when the person they call calls five other people within 15 minutes. Some sort of criteria like that, very generalized, that could apply to hundreds and hundreds of cases every day, where the government may not even have any idea of who the person is who is being surveilled. And the FAA says as long as those programs do not “target” people inside the U.S., it’s OK. The court can go ahead and approve the program.

Now that statute only lasted for six months, and the Democrats were willing to offer some short-term extensions to it. The President refused to accept that, and so it collapsed. But any orders for approving whole programs under that statute can continue for a whole year. So if they went to the secret FISA court the day before the statute expired and said we want to do six or seven different wholesale programs, well those programs could get going for another year. So this is the kind of regime that the government is working under right now.

One of the interesting things about it is that under the Act the government can target, pretty much wholesale, U.S. citizens who are not located in the U.S. And if those intercepts happen to catch calls between those U.S. citizens living overseas and people living within the U.S. who are citizens also, well it makes no difference—it would still be legal under the FAA.

To give you an example: We work all the time on our Guantánamo cases with U.S. citizen lawyers located in London working with an organization called Reprieve. So let’s say I’m calling one of those lawyers up to discuss something sensitive on one of the Guantánamo cases. Under the FAA, the government could target one of those lawyers over there without ever going to a FISA court for a warrant. And they could listen in to any conversation that those lawyers have with anyone else, including a U.S. citizen lawyer in the United States talking about a case against the government, like myself. So it’s pretty much open season on lawyers.

REVOLUTION: The principle of lawyer-client privilege is being thrown out the window.

Kadidal: Right. Ordinarily, even with standard wiretap where they go before a judge to prove probable cause of criminal activity—let’s say they’ve got a wiretap on the home phone of a high-level drug dealer—if that dealer calls up his attorney, the second they figure out or have reason to believe that the conversation is a privileged conversation, under the ordinary rules for wiretapping, either under domestic wiretapping law or FISA, they’re supposed to turn off their recorders. There are supposed to be these procedures in place called “minimization” procedures that protect privileged communications like conversations with a lawyer. The government is just not allowed to monitor or record them. And there’s supposed to be a process in place so that if they accidentally do things like spying on a non-lawyer’s line and they call up their lawyer, well the process is supposed to protect those communications. Again, under the FAA, that scenario I outlined for you, they can in fact target U.S. citizen lawyers’ communications.

Under the new bill that was passed by the Senate, the “Cheney-Rockefeller bill” as it were, some of those problems have been ameliorated a little bit. But the same general concept of approving whole programs of surveillance is still there. And that’s just a very far departure from anything that traditional Fourth Amendment warrant requirements have been in this country. The whole idea was that the Fourth Amendment was in part a reaction to these writs of assistance whereby the British Crown had authorized police officers to look anywhere they wanted in order to find people who had been not obeying the Crown’s tax regulations. It was extremely unpopular—the police basically going hog-wild. That’s the kind of thing that led the Founders to word the Fourth Amendment in the way they did, requiring probable cause where the criminal activity of the plaintiff would be detailed to the judge with some specificity, and where warrants are issued that put narrow constraints on law enforcement officials in terms of how they can interpret it and execute it. It’s supposed to be the opposite of giving law enforcement carte blanche. That’s basically the problem with the FAA, with the new version that’s on the table, that it would allow the government rather than the judge to decide on the details of who’s going to be listened to.

REVOLUTION: What about this question of immunity for telecommunication companies under this bill? There are various lawsuits against those companies for participating in Bush’s illegal wiretapping program. The House has now passed a version that Bush has threatened to veto because it doesn’t have the immunity provision. Can you talk about what’s behind this?

Kadidal: The way the Bush administration spins this is that we shouldn’t be out there penalizing these companies for just trying to help us out when we asked them to help after 9/11. Basically, it seems what happened was that a lot of these big companies allowed the NSA to come in and tap right into the backbone of their communications to be able to sweep up every last thing that goes through their communications networks and ship off one copy of it—every phone call, every email—to Fort Meade, where the NSA has the biggest accumulation of computer power on the planet, to analyze this sort of thing. It’s not a case necessarily of them wanting the ability to execute specific wiretaps and pick out certain phone communications with a little more speed. It seems like the kind of access that we know has taken place, from the accounts of two whistle-blowers inside these companies, is basically wholesale access. It’s more akin to John Poindexter’s Total Information Awareness (TIA) than it is to being able to execute specific warrants more speedily.

But even leaving that aside, the idea that these companies were doing these voluntarily to be “patriotic” is a little ridiculous and shows a lack of perspective. The reality is that these telephone companies are operating in a kind of monopolistic environment. They depend on government licensing at some level in order to make their profits. So they are very dependent on regulations being favorable for them, in order to make healthy profits. That tells you that these companies have a huge financial incentive to do whatever the government happens to do, regardless of whether they think it’s legal, or a good idea from the policy standpoint, or whether it serves the best interests of their customers. They’re thinking about their bottom line in one of the most heavily regulated industries in this country. Of course they’re going to do what the government tells them to do. And in some cases there might have been financial quid pro quo, sort of a “gentlemen’s agreement,” that favors are going to come back their way in exchange for doing what the intelligence agencies want. The whole idea that these companies ought to be protected from getting penalized for violating their own customers’ privacy is sort of absurd. The customers are the ones, you know, pumping in $500 or $1000 a year in their phone usage fees. It’s absurd for the companies to be claiming the government has a stronger claim to their loyalty than the customers.

Now there have been all sorts of compromise proposals out there around this bill. It does seem like a big stumbling block. The administration is pushing very hard on it. Because I think they know that if there’s any kind of liability, it means that in the future the lawyers at these companies are going to be calling the shots. And the lawyers are going to be cautious when the statute says you can be fined $1000 a day for participating in unlawful wiretapping on one of your customers. That’s what the game is about. Any kind of liability is going to diminish the companies’ willingness to break the law willy-nilly in the future. So some of these compromise proposals have said, well, let’s put a cap on the amount of damages—2% of the company’s market capitalization max, or x amount of dollars per person max—so they would be accountable, they would be hurt, but it wouldn’t drive them out of business. For the Bush administration, even something like 2% of market capitalization is too much because they know that any penalty that hurts at all is going to diminish the companies’ willingness to go along with executive lawbreaking in the future.

REVOLUTION: It shows the determination of the present government to sweep away any roadblocks to their spying powers.

Kadidal: Sure, if the Congress is a check on the President’s powers in some circumstances, and the courts’ warrant requirements are a check on that power, the willingness of the telephone companies or private companies, which all accumulate huge bodies of data nowadays—everything from Google to phone companies to Amazon to credit companies—if those private companies are also then a check to the President’s power by insisting on following the law, well then that’s a problem for this theory of unlimited executive power.

REVOLUTION: You mentioned the Total Information Awareness program, which had been banned by Congress back in 2003. A recent Wall Street Journal article, on March 10, said that in fact the NSA has been building essentially the same program. So the current NSA wiretapping bill is clearly just one part of vast and growing government surveillance. Can you comment on that?

Kadidal: I think you’re right. They initially came out in defense of the [NSA warrantless wiretapping] program in 2005 after the New York Times broke the story. And they said it targeted only a couple of thousand Al Qaeda terrorists, was really focused—when, in fact, with all the whistle-blower information that we’ve seen and so forth, it’s known in fact that it may be very broad. That they have tapped into a number of those backbone circuits at a number of these phone companies. And they have the technology now to be able to basically scan through every single email that goes through the system, and possibly do voice-recognition on huge amounts of calls. Now this is precisely what the TIA program looked like. And when TIA went into existence in early 2003, there was a backlash. Americans thought that it was really too much in terms of intrusion into privacy, in part because of this whole notion that they will gather every bit of information about you and then do “pattern analysis” to decide whether you’re suspicious. Well, I mean, an ordinary American hears that “the NSA is spying on Al Qaeda terrorists” in a focused manner, well they think, you know, my name is not “al-something” in Arabic so they’re not going to suspect me. But when they hear about “pattern analysis” and hear about “every communication” being in the hands of the government, then they start to get nervous. They could become a target for something completely unwitting that “fits a pattern.” So it created a backlash, and Congress de-funded the TIA program. But the bill that did it really cut off only certain aspects of it and allowed others to go forward without realizing it. I think that’s the nature of the press coverage of it. The TIA was allowed to go forward in some respect. It’s not surprising because it is simply too important for the intelligence agencies for something like this to go forward. You heard after 9/11 the fact that “human intelligence,” especially in the Arab world, was in really bad shape, and that intelligence gathering generally had become very oriented to military targeting needs, and thus very dependent on technology, and human resources really weren’t there. Well, the intelligence agencies’ response to that hasn’t been to try to cultivate Arabic-speaking agents to go out to the Arab world and do that hard work of planting sources on the ground. Instead they felt, well, maybe we can rely on technology to replace that human capacity. In some respects it was a dream of intelligence agencies in the ’40s—the problem with human spies is they can be traitors, they can be working for both sides at the same time, they can be flaky and unreliable and everything else human. The dream has always been to create sort of a robotized person to carry out your intelligence gathering—sort of like the Manchurian Candidate. That was supplanted with the notion that instead of having intelligence agents try to infiltrate suspicious organizations, we can scan through every phone call and use some “pattern recognition” criteria that will let us find the suspects without ever having human intelligence in the first place. The problem, of course, is that just doesn’t work very well. In some respects the fact that you would use this strategy indicated that the government’s reputation in the relevant communities worldwide and in the minority communities in the U.S. was so bad that people wouldn’t cooperate with you anymore. And that makes it impossible to fill that human intelligence void.