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Rethinking Intelligence: Interview with Hina Shamsi

Hina Shamsi is the Director of the American Civil Liberties Union’s National Security Project. She previously served as Senior Advisor to the U.N. Special Rapporteur on Extrajudicial Executions. She is the author of Command’s Responsibility: Detainee Deaths In U.S. Custody In Iraq And Afghanistan (Human Rights First, 2006).

Published: June 27, 2014

Inter­view Tran­script

Hina Shamsi is the Director of the Amer­ican Civil Liber­ties Union’s National Secur­ity Project. She previ­ously served as Senior Advisor to the U.N. Special Rappor­teur on Extraju­di­cial Execu­tions. She is the author of Command’s Respons­ib­il­ity: Detainee Deaths In U.S. Custody In Iraq And Afgh­anistan (Human Rights First, 2006).

Mike German, a fellow at the Bren­nan Center for Justice at NYU Law School, inter­viewed Hina Shamsi on June 27, 2014. The follow­ing is an edited tran­script of that inter­view.

Q: Hi, my name is Mike German. I’m a fellow with the Bren­nan Center for Justice at NYU Law School and today I’m with Hina Shamsi who is the Director of the National Secur­ity Project at the Amer­ican Civil Liber­ties Union. Thanks for being with me.

SHAMSI: It’s a pleas­ure Mike.

Q: Obvi­ously there are a lot of secur­ity threats out there. Why should Amer­ic­ans be concerned about the growth of the intel­li­gence community?

SHAMSI: I think there are at least a couple of reas­ons Amer­ic­ans should be concerned about the growth of the intel­li­gence community and they break down essen­tially into how far the intel­li­gence community has strayed from its legit­im­ate purpose and the ways in which it is carry­ing out its legit­im­ate purpose unlaw­fully or abus­ively.

Q: So can you give me examples?

SHAMSI: I think the paradig­matic example of an agency that strayed from its original purpose is the CIA. Post 9/11, the CIA, instead of stick­ing to its purpose of foreign intel­li­gence gath­er­ing, put into place a secret black site deten­tion and torture program. Hundreds of people were subjec­ted to abuse and our nation’s secur­ity suffered as a result, and of course, the victims suffered as a result. We’re still deal­ing with the consequences of the CIA’s unlaw­ful acts today.

Q: And how about the FBI?

SHAMSI: The FBI has, to its credit, been good in some areas. For example, in the post 9/11 era, FBI agents objec­ted to some of the worst torture and abuses at Guantanamo, which had been turned into a labor­at­ory for abuse by the milit­ary. But the FBI has also been prob­lem­atic in a number of other ways. So for example, FBI agents who are inter­rog­at­ing Amer­ic­ans abroad have subjec­ted them to coer­cion, have parti­cip­ated in their rendi­tion to coun­tries in which they have been unlaw­fully detained, tortured. FBI agents have them­selves parti­cip­ated in abuse of Amer­ic­ans and that’s only abroad. At home, the FBI has been gran­ted, and claimed, broad author­it­ies to conduct surveil­lance when it does­n’t actu­ally have evid­ence of wrong­do­ing. And as we might have expec­ted from history, when intel­li­gence agen­cies take upon them­selves or are gran­ted that kind of expans­ive author­ity, abuses inev­it­ably occur. And the ways in which that is happen­ing are rife. To name just a couple, the FBI has mapped minor­ity communit­ies around the coun­try for their propensity to commit crimes based on crude stereo­types. It has run intel­li­gence programs, intel­li­gence gath­er­ing programs under the guise of community outreach, and the targets of the FBI have been primar­ily in this era, Amer­ican Muslims.

Q: And the agency has often argued that this is what’s neces­sary. But how do Amer­ic­ans assess whether these types of intel­li­gence activ­it­ies are either neces­sary or effect­ive?

SHAMSI: You know I think Amer­ic­ans need inform­a­tion in order to assess agency claims of lawful­ness, of effect­ive­ness, of wisdom about the activ­it­ies that they are carry­ing out. And some of the mech­an­isms to provide us inform­a­tion have been strong. Some have broken down. For example, there are inspector gener­als within the exec­ut­ive branch whose duty and oblig­a­tion it is to carry out invest­ig­a­tions of poten­tial abuses. Some of those have been good, others have been very uneven. And, there’s been a real lack of inform­a­tion that comes out that allows us to assess inform­a­tion. Other over­sight mech­an­isms have also either been broken or not have func­tioned as effect­ively as they should. One mech­an­ism that we look to in our system of checks and balances is Congress. Congress has an oblig­a­tion to over­see the activ­it­ies of the exec­ut­ive branch includ­ing the intel­li­gence community. It has, quite simply, not done its job as effect­ively as it should have. We find out that the CIA lied to Congress about the effect­ive­ness of torture and claimed import­ance of the torture program. The FBI has also misrep­res­en­ted the effect­ive­ness and lawful­ness of some of its activ­it­ies and we need some major reforms in order to ensure that the over­sight func­tions work as they should.

Q: So, in the over­sight, what is the role of civil soci­ety organ­iz­a­tions like the ACLU and what tools do you have to perform that over­sight?

SHAMSI: We use multiple tools in order to enhance the over­sight that the public has and that we’re seek­ing the other branches of govern­ment to provide. So, for example, we have sued for inform­a­tion under the Free­dom of Inform­a­tion Act and through that work we’ve been able to obtain thou­sands of pages, tens of thou­sands of pages of inform­a­tion about the torture program. We’ve also sued for inform­a­tion about the FBI’s activ­it­ies and revealed, for example, that it was mapping minor­ity communit­ies on the basis of crude stereo­types. When abuses occur, we go to the courts on behalf of the victims of those abuses and we also conduct advocacy with the legis­lat­ive branch in order to ensure more effect­ive over­sight.

Q: Can you talk about a couple of the cases where you’ve had some success?

SHAMSI: One recent success that we have had is in our case chal­len­ging the proced­ures for the No Fly List. The No Fly List is part of a vast watch list­ing system that the FBI is in charge of. Our concerns about this watch list­ing system are that it is bloated and it is broken. It is bloated because far too many people are added to it based on spuri­ous inform­a­tion and it is broken because people who are on the watch list have no mean­ing­ful way to clear their names. We then sued on behalf of 13 U.S. citizens who had been wrongly placed on the watch list. They knew that they were on the No Fly List because govern­ment offi­cials in many cases told them so. At least three of our clients were told by FBI agents that if they became inform­ants in their community they would be able to get off the watch list. Now, if you take the No Fly List as a legit­im­ate exist­ing entity, the idea that the FBI would use coer­cion to keep people on or off the list under­cuts the entire logic of the enter­prise. Fortu­nately, a court agreed with us that the govern­ment’s claims of excess­ive secrecy about watch list­ing status in the No Fly context and the govern­ment’s argu­ments for judi­cial defer­ence could not stand and that the No Fly List proced­ures viol­ated the Consti­tu­tion’s guar­an­tee of proced­ural due process. We hope that this decision serves as a wake up call for reform of the entire No Fly List proced­ures and the watch list­ing system as a whole. And we’re going to advoc­ate to ensure that it does.

Q: And we actu­ally know from a couple of cases where actual terror­ists did slide through the cracks; that even though we have this massive watch list that does impact inno­cent people, it does­n’t actu­ally always work effect­ively as a secur­ity mech­an­ism.

SHAMSI: That’s right. I mean, obvi­ously we’re concerned and our primary purpose is to ensure that people’s rights are protec­ted, but hand-in-hand with people’s rights being protec­ted is the need for effect­ive secur­ity meas­ures. And when people are added to a watch list based, for example, on reli­gion or observ­ance of reli­gion or travel to partic­u­lar coun­tries without evid­ence of actual wrong­do­ing or inform­a­tion intel­li­gence about wrong­do­ing, then what ends up happen­ing is that actual threats based on people who have carried out steps that indic­ate wrong­do­ing go unin­vestig­ated.

Q: And what are the imped­i­ments to the ACLU’s work?

SHAMSI: I think one of the primary imped­i­ments to our work is excess­ive govern­ment secrecy. Over and over again in claims to Congress and in claims to the courts and lawsuits that we have brought, the govern­ment has made claims of the need to keep secret inform­a­tion about how it carries out its intel­li­gence activ­it­ies. Now, no one ques­tions that it is proper for the govern­ment to keep legit­im­ate sources and meth­ods secret. But the govern­ment has made expans­ive claims of secrecy and for example, arguing that the use of lethal force in a targeted killing program could fall under sources and meth­ods. That simply does­n’t make sense. It has also used secrecy, the state secrets priv­ilege for example to prevent courts from hear­ing cases on their merits. And it’s done that in context that has meant that not a single victim of the U.S. torture program has had its day in court because cases have been thrown out on secrecy grounds as well as other proced­ural doctrines. I think the other key imped­i­ment, which I think is begin­ning to get better, has been the extent to which Congress and the courts have given defer­ence to the exec­ut­ive branch and the intel­li­gence communit­ies in partic­u­lar. In the early post 9/11 era that meant that over­sight wasn’t func­tion­ing well. More and more cases were being thrown out out of defer­ence to intel­li­gence agen­cies in the exec­ut­ive branch. But now I think we see the tide turn­ing. Our watch list, No Fly List case decision is an example. There are more and more cases in which the govern­ment is being subjec­ted to scru­tiny by the courts and the legis­lature because we real­ize how far afield the exec­ut­ive branch and espe­cially the intel­li­gence agen­cies have gone away from their legit­im­ate mission and in ways that have abused tremend­ously the lives and rights of citizens and non- citizens alike.

Q: Great. What do we risk as a soci­ety by fail­ing to main­tain control of the intel­li­gence agen­cies?

SHAMSI: You know, again we all recog­nize that the intel­li­gence agen­cies have a very import­ant func­tion to play in invest­ig­at­ing wrong­do­ing and build­ing cases for prosec­u­tion. But they have to play that role consist­ent with our Consti­tu­tion and our system of checks and balances. They have to play that role in a way that furthers our demo­cratic values instead of under­min­ing them. And what we cannot have is an intel­li­gence community system run rife without account­ab­il­ity for wrong­do­ing, without trans­par­ency that allows the Amer­ican public to assess effect­ive­ness, legal­ity, and wisdom of the activ­it­ies of the intel­li­gence community. And without over­sight mech­an­isms that ensure our system of checks of balances works. And there still needs to be systemic reform. You look at the Snowden disclos­ures for example. They revealed how far afield the NSA had gone, how much a secret foreign intel­li­gence surveil­lance court had created a body of law that was a secret body of law. These things only became clear as a result of a whis­tleblower who came forward cour­ageously to reveal this inform­a­tion. And that’s just one example. I’ve given many others. We need reform in order to rein in the intel­li­gence community so it fulfills its legit­im­ate purpose in legit­im­ate ways and consist­ent with our Consti­tu­tion and values.

Q: So when we talk about secrecy with intel­li­gence oper­a­tions, I think a lot of Amer­ic­ans think of a CIA oper­at­ing in Moscow that requires a lot of secrecy to protect the agents and to protect the missions, but there’s also an increase in domestic intel­li­gence activ­it­ies, both at the FBI and even state and local law enforce­ment officers. How is that differ­ent and how is the secrecy more damaging to our soci­ety?

SHAMSI: Well, I think you’re exactly right in that we can expect for example, covert spying oper­a­tions by the CIA in Moscow to remain secret. But what we can’t and should­n’t expect is intel­li­gence activ­it­ies carried on domestic soil that are going far beyond what agen­cies are permit­ted to do. Let me give you an example. We know that the FBI has sought to use inform­ants and sent them into mosques and partic­u­lar Muslim communit­ies. They’ve done that in Cali­for­nia, in and, in a case that the ACLU has chal­lenged where an inform­ant was instruc­ted to go into mosque and listen — just seek to listen to conver­sa­tions. So what ended up happen­ing is he listened to First Amend­ment protec­ted conver­sa­tions about reli­gious views, reli­gious exer­cise. He recor­ded people’s names and inform­a­tion. Not anyone who was doing anything wrong, but quite simply people who were going about their daily lives and acts of worship in a reli­gious community. And he was also instruc­ted to start inflam­mat­ory conver­sa­tions to see who would respond. We sued, our Cali­for­nia affil­i­ate sued and the inform­ant himself provided inform­a­tion. The govern­ment came back and claimed state secret priv­ilege in that context in order to prevent aspects of the case from going forward. And this is an example of where secrecy becomes corros­ive. Here is the FBI going beyond what it should legit­im­ately be doing: invest­ig­at­ing actual acts of wrong­do­ing, or wrong­do­ing that’s about to happen based on evid­ence, and instead instig­at­ing some­thing where there is no wrong­do­ing and then seek­ing to hide its abuses and viol­a­tions of equal protec­tion, First Amend­ment under the veil of secrecy. And that is not just corros­ive as I said, it is deeply damaging to the communit­ies that the FBI seeks to work in, and it’s damaging to our values.

Q: And what impact does that have on the communit­ies?

SHAMSI: I think it is hard to over­state the mistrust that minor­ity, in partic­u­lar Amer­ican Muslim communit­ies, now have of law enforce­ment as a result of these programs in which people have been targeted on the basis of their beliefs, not on the basis of having done anything wrong. And that has a tremend­ous impact on the communit­ies as well as on soci­ety as a whole. Within the communit­ies them­selves, based on work that I’ve done, that my colleagues have done, we know that an entire gener­a­tion of Amer­ican Muslim youth is grow­ing up fear­ful of law enforce­ment, fear­ful of exer­cising their First Amend­ment rights. One of the examples that stands out to me is the young man whose true love was inter­na­tional rela­tions, but he was fear­ful that his conver­sa­tions about domestic and foreign policy would subject him to law enforce­ment scru­tiny, so he decided to change to busi­ness.

Q: And that concern’s not specious. I mean, the ACLU recovered train­ing mater­i­als that actu­ally iden­ti­fied polit­ical activ­ity and discus­sions of foreign policy.

SHAMSI: Indeed. In the last decade there have been numer­ous examples not just of train­ing mater­i­als, but of FBI and law enforce­ment records them­selves show­ing that there is a domestic intel­li­gence surveil­lance system in which people’s inno­cent activ­it­ies repor­ted as suspi­cious, uploaded into govern­ment data­bases. And that subjects them to addi­tional law enforce­ment scru­tiny. And what are some of the other impacts of this? So, we hear over and over again that people within minor­ity communit­ies, partic­u­larly the Amer­ican Muslim community, are reluct­ant to report crime, reluct­ant to report domestic viol­ence for fear of invit­ing unjus­ti­fied scru­tiny. And that kind of fear just dele­git­im­izes law enforce­ment and it creates less secur­ity for all of us.

Q: And in the history of the United States we’ve seen certain epis­odes, partic­u­larly during national secur­ity crises, of the govern­ment look­ing at polit­ical dissid­ence as poten­tial secur­ity threats. Have we seen that again?

SHAMSI: We have. I mean much of what is going on now is remin­is­cent of some of the worst abuses of the 1960s and '70s where rights activ­ists, lead­ers in the civil rights community, people who dissen­ted from war and other contro­ver­sial domestic and foreign policies were subjec­ted to scru­tiny, invas­ive surveil­lance. People’s lives were devast­at­ingly impacted and that’s very remin­is­cent of exactly what is happen­ing today. And you know, another import­ant factor in this is that what the national intel­li­gence community does is inev­it­ably going to sink down to the state and local level; so when the FBI claims the author­ity to map Muslims, when the FBI claims the author­ity to send inform­ants into mosques, well the NYPD does the same and it does it even worse.