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.