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Rethinking Intelligence: Interview with Jameel Jaffer

Jameel Jaffer is the Deputy Legal Director of the American Civil Liberties Union and Director of its Center for Democracy, where he has litigated and managed cases involving government surveillance, targeted killings, and torture. He is the co-author of Administration of Torture: A Documentary Record from Washington to Abu Ghraib and Beyond (Columbia University Press, 2007).

Published: August 28, 2014

Inter­view Tran­script

Jameel Jaffer is the Deputy Legal Director of the Amer­ican Civil Liber­ties Union and Director of its Center for Demo­cracy, where he has litig­ated and managed cases involving govern­ment surveil­lance, targeted killings, and torture. He is the co-author of Admin­is­tra­tion of Torture: A Docu­ment­ary Record from Wash­ing­ton to Abu Ghraib and Beyond (Columbia Univer­sity Press, 2007).

Mike German, a fellow at the Bren­nan Center for Justice at NYU Law School, inter­viewed Jameel Jaffer on August 28, 2014. The follow­ing is an edited tran­script of that inter­view.

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Q:  Hi. My name’s Mike German. I’m a Fellow with the Bren­nan Center for Justice at NYU Law School. And today I’m with Jameel Jaffer, who’s Director of the Center for Demo­cracy at the Amer­ican Civil Liber­ties Union. Thanks for being with me today.

JAFFER: Sure.

Q: Pres­id­ent Obama recently made news this summer, when he commen­ted about the CIA deten­tion inter­rog­a­tion prac­tices and said, “We tortured some folks.”  But, the ACLU has actu­ally made torture a prior­ity since 2003 when they filed the first Free­dom of Inform­a­tion Act, look­ing for inform­a­tion about govern­ment inter­rog­a­tion prac­tices. Why does the ACLU see torture as a civil liber­ties prior­ity?

JAFFER: . In some ways I think the answer is obvi­ous. It’s a complete denial of human dignity. And if there is — we think that human beings have a right to some basic dignity, and bodily integ­rity, and psycho­lo­gical integ­rity — and torture is a denial of all of that. You know, we didn’t expect to be litig­at­ing or work­ing on this set of issues. This is some­thing that we got involved in, as you said, in 2003. There were a couple of news articles that sugges­ted that maybe some­thing was going wrong in the deten­tion centers, in the milit­ary deten­tion centers and the CIA deten­tion centers. And we filed Free­dom of Inform­a­tion Act requests trying to fish for inform­a­tion. And we didn’t expect at that time — I don’t think anybody did — to find this entire system of torture author­ized at the highest levels, and ulti­mately result­ing in the cruel treat­ment, or torture of thou­sands of pris­on­ers.Tthat’s not some­thing we expec­ted. But, I don’t think anybody has any doubt now that it’s some­thing that the ACLU should care about, and that it was the right decision to start asking ques­tions a decade ago.

Q: In his comments where he admit­ted the govern­ment had engaged in torture, Pres­id­ent Obama said that we should­n’t be sanc­ti­mo­ni­ous in look­ing back at the action of the govern­ment offi­cials who put the torture policy in motion. But that neglects to recog­nize that there was actu­ally signi­fic­ant dissent within these agen­cies about whether to adopt a torture policy. Why is it import­ant to acknow­ledge that dissent?

JAFFER: Well, you’re right. In every agency, in every part of the milit­ary, there were people who risked their careers, in some cases risked their safety, to expose torture, to end the torture policies. In some cases, at Guantanamo, there were milit­ary prosec­utors who refused to prosec­ute pris­on­ers on the basis of evid­ence that had been derived through torture. So there were a lot of people who took these risks in order to resist or dissent from the torture policies. And I think we owe them some­thing. Those people did what they were supposed to do. And if we don’t honor those people then there’s the danger that the next time these policies are proposed, the people who would dissent will look back and they’ll say, ‘Well look what happened to those people who dissen­ted last time. They faded into obscur­ity or even worse, they’ve been penal­ized for the dissent that they engaged in.” And people won’t dissent. And that would be a danger­ous thing.

Q: And the way that this idea goes forward suggests that the events that we’re going through now, where other govern­ments are criti­ciz­ing our policies, where there’s a lot of internal criti­cism within the United States — all the prob­lems that have resul­ted from torture, those were actu­ally fore­see­able. And an intel­li­gence agency is supposed to be look­ing forward.

JAFFER: Right. Not just fore­see­able but fore­seen, right? Yeah. It is, I think, a very good ques­tion is why the intel­li­gence agen­cies seem so caught off-guard, six or eight years later, when people star­ted saying, “What are these policies about? What were you think­ing when you adop­ted these policies? Did you not think through the cost? Did you not think through the implic­a­tions for our moral stature as a coun­try or our diplo­matic power? Did you not think through the implic­a­tions of having people in our prison against whom the only evid­ence we could point to is evid­ence that had been beaten out of some­body else? Did you not think all that through?” And the truth is that they didn’t think it through. It was a very short-sighted decision to adopt this set of policies.

Q: And it was actu­ally some of the people with the most exper­i­ence in inter­rog­a­tions who were opposed to these programs.

JAFFER: That’s right. The policies were driven, essen­tially by people who were ideo­lo­gic­ally commit­ted to the policies, not by people who had any exper­i­ence to point to. In fact, very few of them — I’m not sure any of them — had been anywhere close to an inter­rog­a­tion room before. They were ideo­lo­gic­ally commit­ted to the endorse­ment of torture. And the people who did have exper­i­ence were the ones saying this is a bad idea. And so it’s not like nobody figured it out until six or eight years had passed, that this was a bad idea. A lot of people knew it was a bad idea early on. And, there were many other models to look to, the exper­i­ences of many other coun­tries could have guided us in 2001 and 2002. And our own laws could have guided us. Torture is some­thing that is expressly prohib­ited under Amer­ican law. It’s expressly prohib­ited under inter­na­tional legal instru­ments that the United States is a party to. So it both­ers me when people suggest that we were grop­ing around in the dark after 9/11 and that we should be under­stand­ing of the offi­cials who author­ized torture. We have these laws for precisely those kinds of circum­stances. This is why we decided a long time ago to outlaw torture, because we knew that at a time like that some offi­cials would be temp­ted. I don’t think it makes sense now to sort of neglect account­ab­il­ity and let people off the hook, or to pretend that the choice was a more diffi­cult one than it actu­ally was. The choice really should have been made for us by the laws that were already on the books. And it’s a scan­dal that senior offi­cials know­ingly viol­ated those laws and even now, have not been held to account for.

Q: And I know that the ACLU has been on a campaign to honor cour­age, honor the people who complained about these programs, raised concerns about them. Why do you think it’s import­ant to acknow­ledge that dissent?

JAFFER: Well, the part of it to me that seems morally outrageous is that we have honored all of these people who author­ized torture. And yet all of these people who risked their careers and, in some cases, their safety in order to expose the torture policies — policies that most of us now recog­nize to have been misguided and unlaw­ful — those people are slowly, at best, fading into obscur­ity and, in some cases, they’ve actu­ally been penal­ized in some way for the resist­ance that they engaged in, the dissent that they engaged in. And it seems to me and to many of my colleagues here at the ACLU that we owe those people some­thing, and that we need to, in some offi­cial way, demon­strate our grat­it­ude as a soci­ety to those people for taking the risks and paying the cost that they did. But the other thing is, we’re going to be in this kind of situ­ation again. There will be at some point another crisis on the scale of, of 9/11. Nobody wants it to happen. But, it will at some point happen. And we need to think through how we want our public offi­cials and soldiers to act when the same ideas or similar ideas are proposed then. And if we, haven’t honored the people who dissen­ted last time around if instead we have punished those people and writ­ten over their history, then I think it’s less likely that people will say no next time around. I think people will look back and they’ll say, look what happened to those people who said no last time. And they will be quiet. And I think that would be a very sad thing and a very danger­ous thing.

Q: And of course, what we found after second Iraq war was that there was dissent within the intel­li­gence community about the public state­ments being made. Yet, that wasn’t made public until well after the inva­sion. What respons­ib­il­ity does the intel­li­gence community have to respond to the public need for inform­a­tion rather than just poli­cy­makers?

JAFFER: A lot of this inform­a­tion is, in my view, need­lessly secret. The public — there’s no reason why ordin­ary citizens can’t make their own judg­ments about the signi­fic­ance of the threat and the appro­pri­ate­ness of the policies we’ve adop­ted in response to the threat. Those kinds of things are the kinds of things that ordin­ary citizens should be able to grapple with. That is complic­ated by the secrecy surround­ing — the secrecy, need­less secrecy, around govern­ment intel­li­gence and around our national secur­ity policies more gener­ally. I think that most Amer­ic­ans don’t under­stand — certainly don’t fully under­stand — what our National Secur­ity policies are, and why they are what they are. And that’s a huge prob­lem.

Q: And four years ago, the ACLU put out a report: “A Call to Cour­age: Reclaim­ing our Liber­ties a decade after 9/11”. That was four years ago. Obvi­ously, the issue is still ongo­ing.

JAFFER: Mm-hm.

Q: One of the quotes I’ll read from the report: “By defin­ing the struggle against terror­ism in exist­en­tial terms, as a war without geograph­ical or temporal limits, our lead­ers are asking us to accept a perman­ent state of emer­gency in which core values must be subor­din­ated to ever-expand­ing demands for national secur­ity.” And, you’ve separ­ately said that this is “an every­where and forever” war…

JAFFER: Mm-hm.

Q: …and that that’s danger­ous. Why is it danger­ous?

JAFFER: Well, previ­ous wars have been limited geograph­ic­ally and they’ve been limited in time. And so, when the govern­ment said, “Well, during wartime” and “In the context of this partic­u­lar conflict we need to limit civil liber­ties in one way or another,” or, “We need to limit the amount of inform­a­tion that the govern­ment discloses,” that was often prob­lem­atic. But it was prob­lem­atic within the limits that were set by the scope of the war. Now, if you have a war that extends to every corner of the earth, and that almost by defin­i­tion can’t end because the enemy is so vaguely defined, every suspen­sion or curtail­ment of civil liber­ties is a much more signi­fic­ant thing. Because it’s not one that you can be sure will be limited. It’s one that may last forever and that extends to every­where. And I think that you’ve seen over the last decade or twelve, thir­teen years now, the expan­sion of all these policies that were adop­ted in secret and expan­ded in secret and now oper­ate, more or less, in secret. And I think that it’s not an exag­ger­a­tion to say, that ordin­ary citizens have sort of lost control over the policies that the govern­ment is imple­ment­ing in those citizens’ names, right?  The most obvi­ous example prob­ably is the drone war. We don’t know even in which coun­tries the govern­ment is carry­ing out these killings. I mean, we can name some of them. We can’t name all of them, because the govern­ment hasn’t disclosed that list. We don’t know who we are killing. We don’t know which groups we are target­ing, let alone which people said to be asso­ci­ated with those groups we’re target­ing. We don’t know the extent of the civil­ian casu­al­ties, because the govern­ment does­n’t release numbers. Everything we know is sort of pieced together by a hand­ful of report­ers who are, every day taking risks with their lives in order to gather that inform­a­tion. And so, the result is that people liter­ally don’t know what the govern­ment’s policies are. We don’t know who we’re killing, why we’re killing them. And it’s not a surprise that these policies become deformed when secrecy is so pervas­ive.

Q: And obvi­ously, Congress and the courts have a role in check­ing this type of exec­ut­ive abuse.

JAFFER: Yeah, you would think, yes.

Q: How would you rate the perform­ance of Congress?

JAFFER: Well, I guess I just did, right?  I think that both Congress and the courts have profoundly failed. I think that you have intel­li­gence commit­tees in Congress whose job it was to ensure that things like this torture program never took root. And obvi­ously that didn’t work out. The Snowden disclos­ures about out of control govern­ment surveil­lance — all of that is happen­ing, either despite or with the approval of the intel­li­gence commit­tees. And I think that on the armed services side, I think that the record is a little bit better. But, the armed services commit­tees too —a lot of the pris­oner abuse could have been preven­ted had those commit­tees been doing a better job earlier on. In the courts, there’s been a lot of activ­ity in the courts. There are thou­sands of briefs have been filed; hundreds of them by the ACLU, and hundreds of them by the govern­ment, about National Secur­ity policies since 9/11. But virtu­ally every case has been litig­ated over a threshold issue. It’s been that cases have been thrown out on state secrets grounds, on immunity grounds, on stand­ing grounds, on polit­ical ques­tion grounds. These are all threshold doctrines. And when a case is thrown out on a threshold doctrine, it means that the court does­n’t actu­ally address the merits of the policy. And almost without excep­tion, the courts have refused to engage with the merits of the policies. The courts have essen­tially left it to the polit­ical branches to decide what the policies should be. And that’s part of the reason we had a rendi­tion program, a torture program; we had warrant­less wiretap­ping — all of these things, which not just implic­ate civil liber­ties and human rights, but implic­ate the most profound, the most funda­mental civil liber­ties and human rights. All of these policies were allowed to be put in place, and allowed to flour­ish and expand by the courts.

Q: And how do we reas­sert demo­cratic controls over the intel­li­gence agen­cies when there is so much secrecy that blinds us to what’s going on? And even with the torture program, there’s now this conflict between the Senate Intel­li­gence Commit­tee and the CIA about what happened when, and whether it was effect­ive, that for the Amer­ican public, how do we ever know what the truth is?

JAFFER: Right, right. I mean, if there’s a silver bullet, I don’t know it. But you, just then, I think iden­ti­fied one way that some­times the system can be made to work. And the incid­ent that you’re talk­ing about is an incid­ent in which the interests of the intel­li­gence agen­cies and the interests of the intel­li­gence commit­tees diverge. And there’s a way that that’s a very good thing. You know, to the extent that the two polit­ical branches believe that what they’re fight­ing about is the relat­ive power of — their own power vis-a-vis the other. Some­times good things happen because of those kinds of fights, right?  And the same thing happened in the Guantanamo cases where the Supreme Court, I think, was essen­tially just assert­ing its prerog­at­ives. It was just saying, “You may be able to hold people indef­in­itely in Guantanamo, but you can’t hold people indef­in­itely in Guantanamo without our involve­ment.” Well, at first they said without the involve­ment of Congress, and then in the second Boumediene case they said, without the involve­ment of the courts. And that was really a separ­a­tion of powers decision. It wasn’t really about funda­ment­ally human rights. But ulti­mately, it had implic­a­tions for the rights of people at Guantanamo. So, some­times insti­tu­tional compet­i­tion is the way that indi­vidual rights get preserved.

Q: That’s the way it was set up to work.

JAFFER: Yeah, I mean, yeah, I guess that’s not a surprise…

Q: Yeah, right.

JAFFER: But I also think that, on the surveil­lance side where you have a fail­ure of all three branches, and all three branches in a sense have an interest in defend­ing that fail­ure, you need a force from the outside. And whis­tleblowers have been an extremely import­ant force from the outside. I mean, Snowden has a huge effect on the surveil­lance debate. None of the reforms that we are now talk­ing seri­ously about would have been possible but for the disclos­ures that Snowden made to The Guard­ian and The Wash­ing­ton Post. And while other whis­tleblowers haven’t had that degree of influ­ence, I think that many of these debates have been driven by whis­tleblowers since 9/11.

Q: And one of the prob­lems that we’ve seen, in partic­u­larly where you mentioned with the surveil­lance program in both Senate Intel­li­gence Commit­tees — House and Senate Intel­li­gence Commit­tees, and the Foreign Intel­li­gence Surveil­lance Court were in on these decisions — is that what we found now through the leaks Edward Snowden provided, is that the intel­li­gence agen­cies actu­ally misled those entit­ies at some points.

JAFFER: Mm-hm.

Q: How bad a prob­lem is that, when it’s not just the secrecy but actu­al…

JAFFER: Yeah, yeah…

Q: …misin­form­a­tion that’s being provided?

JAFFER: Well, I mean it’s a very signi­fic­ant prob­lem. I mean, just think­ing of some of these…­some of these mislead­ing state­ments went to the most import­ant ques­tions about these policies. This is a state­ment that was made by multiple intel­li­gence offi­cials, includ­ing by John Bren­nan, I think — the state­ment that there were no civil­ian casu­al­ties because of the drone program. You know, which is a ludicrous thing, right?  But that certainly influ­enced public debate about the drone program. Or the state­ment by the Director of National Intel­li­gence…

Q: James Clap­per.

JAFFER: …James Clap­per, that the govern­ment wasn’t collect­ing millions of records about Amer­ic­ans’ commu­nic­a­tions. Also, now that we know what we know, you can see how absurd that state­ment was. Or maybe, some­what less under­stood, but to me equally signi­fic­ant, the state­ment by the govern­ment in the Supreme Court case involving the, the FISA Amend­ments Act, in which the govern­ment said, you can throw this civil suit out, because we are provid­ing notice for crim­inal defend­ants who have been surveilled under this partic­u­lar stat­ute, and they’ll be able to chal­lenge the law. And it turned out that the govern­ment actu­ally had a policy of deny­ing those crim­inal defend­ants notice. So essen­tially the govern­ment managed to insu­late the Act, the FISA Amend­ments Act, from judi­cial review for six years, by play­ing this kind of shell game where they would tell one court that, don’t worry, the other court’s got it; and they’d tell the other court, don’t worry, that court’s got it. So those kinds of state­ments have been, I think, hugely prob­lem­atic. Now that said, there is a danger that people latch onto those kinds of state­ment to justify their own — that one branch latches onto those kinds of state­ments by another branch to justify the first branch’s fail­ures, right?  And I worry that, to some extent, that’s what’s going on now with the CIA. There’s no ques­tion that the CIA misled both the intel­li­gence commit­tees, and the public more gener­ally. No ques­tion that the CIA did that. But that should­n’t distract anyone from the fail­ures of the intel­li­gence commit­tee to have over­seen the CIA — that the intel­li­gence commit­tee was in on this program from very early on, certainly didn’t do enough to stop it. It would be a shame if people reduced the narrat­ive to one in which we essen­tially had a rogue agency. The torture program may have involved a rogue agency. But the story is much, much bigger than the CIA.

Q: Okay. If some­body wanted to learn more about these issues, what would you suggest they read?

JAFFER: Well, depends on the issue. I think that on the torture issue the first things to read are the govern­ments’ docu­ments them­selves. I mean, I think that read­ing the torture memos, it’s always a shock­ing exper­i­ence for me. And I’ve read them now, dozens of times. But just to think that those kinds of memos could be writ­ten by the senior most lawyers in the world’s lead­ing demo­cracy, there’s some­thing shock­ing about it every time.

Q: And the ACLU has a website that…

JAFFER: Yes. We have a data­base that is a very soph­ist­ic­ated data­base and allows people to search all of those torture docu­ments. It’s just thetor­turedata­base.org.

Q: And, for the people who like to read in book form, you have a lot of them published in a book?

JAFFER: Ah, yeah. Well, Amrit Singh and I published some of those docu­ments in a book. I think that a really good narrat­ive about the torture program is Jane Mayer’s book, is in Jane Mayer’s book. On the surveil­lance side, I think Glenn Green­wald’s book is really good. I mean, there’s a lot being writ­ten right now, on the surveil­lance side. I think in the next few months there’ll be some­thing out from Park Gelman too, which I’m sure will be very good. On secrecy more gener­ally, I would say go back a little bit and read Senator Moyni­han’s book, which I still think is the best thing to have been writ­ten on the implic­a­tions of excess­ive govern­ment secrecy.

Q: And those recom­mend­a­tions are still sitting there.

JAFFER: Right, right…

Q: And could be imple­men­ted today…

JAFFER: That’s right.

Q: … to improve the situ­ation, right?

JAFFER: That’s right.

Q: Alright. Well, terrific. I really appre­ci­ate your help.

JAFFER: Thanks.