I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Tuesday, November 10, 2009

Transcript: Interview with Rep. Jerry Nadler

Glenn Greenwald: My guest today on Salon Radio is Democratic Congressman Jerry Nadler of New York, whose bill, the State Secrets Protection Act, was just approved last week by the House Judiciary Committee by a vote of 18-12, and if it passes the House and Senate, it will be the first bill, the first law ever, to regulate the states secrets privilege. Congressman, thanks for joining me.

Let me ask you to begin by explaining what the principal points of this legislation are, and where does it go from here?

Jerry Nadler: Well, let me just start with one bit of background. As you have pointed out in your many articles, there's an old maxim in law, and that is there's no right without a remedy. If you can't enforce a right, it doesn't matter what the Bill of Rights says or what the Constitution says or anything. And if the government invades your rights, if it kidnaps you and sends you to Syria to be tortured, if it invades your house, ransacks your papers, steals your guns, for the conservatives among us, whatever - what's your remedy? Your only real remedy is to sue. To sue the government in tort for damages or to sue for an injunction to say stop - that's your remedy.

If the government can simply walk into court, as soon as you file the complaint, and file an answer saying, "dismiss the case because the consideration of the case would necessitate the revelation of state secrets that would involve major national security" and the case is dismissed, just on the magic incantation of the words "state secrets," then you can't enforce any rights and none of us have any rights. The Bill of Rights becomes like the Soviet Constitution of 1936, which read very nicely, but didn't mean anything. So we've got to change that.

GG: Let me stop you right there, because you had a quote from last week that I found really striking, that I was about to ask you about, and you sort of answered it, but I want to ask you about another part of it. You said, quote, "The state secrets doctrine, as it has been reinvented in the last few years, is the greatest threat to liberty in this country."

Now, that's a fairly strong claim, and I think you just explained part of why that is. What do you mean when you say, "the state secrets doctrine, as it has been reinvented in the last few years"?

JN: Well, it was clearly reinvented because for 50 years, from the Reynolds decision by the Supreme Court in 1953, it was an evidentiary privilege, that is to say, the government could not stop a trial, but it could go into court and say, that document that you want in evidence, that piece of paper, that whatever, you can't have that piece of evidence because that piece of evidence is a state secret. So, it would shield a piece of evidence. But it would not stop the trial right upfront.

The Bush administration made two changes, both of which have been embraced by the Obama administration. One, it started using this doctrine, which was used very sparingly before, all the time. And secondly, it invented, not only to say, you can't see a document, but it invented the use of saying, you can't have a lawsuit, of coming into court right on the pleadings, right after the initial filing of the initial complaint, to say, stop the lawsuit, because, not that you can't see a document, but the very consideration of the lawsuit, the very consideration of the case, will endanger state secrets, and dismiss the case right off the bat.

And that hides everything. If you dismiss the case right off the bat, then you can't use the case to find out what's going on, to prove that the government is violating rights, is engaging in torture, or is wiretapping without a warrant or whatever. That's what I meant by reinventing. It was never used until the Bush administration to dismiss a case right upfront.

GG: And you feel that it's fair to say, as I think you just did say, that in cases involving rendition, brought by victims of torture, people alleging they were subjected to illegal warrantless eavesdropping, that the Obama administration has been using this privilege in exactly the same way, meaning in this way that's reinvented, by saying not just these specific documents are subject to the state secrets privilege, but the subject matter itself is?

JN: Yes. They said that in court on a number of occasions, and they've in a number of cases, the al-Haramain case, in another case the Jeppesen case, they've taken exactly the same position, saying that you can't consider the case, as the Bush administration did, and they've argued in courts, in appellate courts, they've sought review, to defend that position.

Now, they have, we've been talking, I've been talking with the administration since January about this, and what they've been telling us is, we're reviewing the policy, we're reviewing the policy, we're reviewing the policy. But meanwhile they go into court and take obnoxious positions.

GG: Except --

JN: Finally, they came out with this new position, the Attorney General a few weeks ago. So what that position amounts to is, we will use the doctrine more sparingly - and that may be true - no one person in the administration will have the ability to make the decision, it will have to be a group of people, committee, will review each case very carefully, we'll be more sparing in its use and we'll report to Congress. All of that's fine.

But all of that is minuscule because it still reserves to the Executive Branch the absolute power to try to stop any case, the absolute right. The court, the Ninth Circuit, three panel judges of the Ninth Circuit in one of the cases said the executive cannot be its own judge. That is key to the American system of justice; it's why we have three branches, that nobody can be your own judge. If the executive commits an act which someone else alleges is improper or is a crime or whatever, you go to court. A court has to judge that. And they're still saying, with respect to this, trust us. We won't use this doctrine when we shouldn't - trust us. But the court can't review it.

GG: Right. And even subsequent of course to the announcement by Attorney General Holder, there was a case just two weeks ago alleging warrantless eavesdropping, illegal warrantless eavesdropping, on the part of the Bush Administration and the Obama DOJ responded by asserting the state secrets privilege as a way to get rid of the entire lawsuit.

JN: And it may very well be true that before they did that, they had more people review it within the department and more people look at it carefully. But so what?

GG: Right. Now, let me ask you about the specific legislation. What is it that your legislation would do principally that would curb these dangers and abuses?

JN: Essentially the legislation would do two things. It's a little more complicated, but essentially it would do two things. One, it would say you cannot use the state secrets doctrine to block a case right off the bat. You cannot challenge right upfront on the pleading and say, you cannot consider the case because it would reveal state secrets. You can, move to suppress an individual document or evidence or whatever, and it's conceivable that if all the evidence is suppressed the case collapses. But that's because the evidence is suppressed.

Secondly, if you move to, if the government says, this document or this evidence, whatever it is, is so sensitive that you can't use it, the court has to judge that, not the administration. The court must hold a suppression hearing, an in-camera secret hearing, in which the administration has to allege and prove to the satisfaction of the court, why that evidence is so secret and so dangerous, that in fact it cannot be used in open court. And it may. I mean, there are some things that are. And if it proves that to the satisfaction of the court, and the court agrees with it, then it's got to see if it can make a summary of the evidence, or a redacted version of the evidence, that can be used in court. And that's essentially the bill.

GG: Right.

JN: There are some more details, but those are the essences.

GG: Right. Now, let me just finish up with a couple questions about the procedure and the politics of how this bill can become law. There was some speculation - it was just speculation, but it was there - when the DOJ announced its internal guidelines, that part of the intent was to render legislation unnecessary, on the grounds that the Justice Department is now solving the problem. Have you heard from the White House, either formally or informally, about what their position is on the need for this legislation?

JN: They have so far said that they are agnostic on the legislation. They have not taken a position. As I've said, we've been talking to them, we've been trying to get them to support the legislation, and I must say that they've been - it's not the White House, the Justice Department, we've been talking to, and the Counsel's office, I might add too, but mostly the Justice Department - and I think it's fair to say they've been slow-walking it. This has been taking months and months and we've been talking to them about since February, since they came into office, and they've not taken a position.

Now, hopefully, with the first time approval by the entire Judiciary Committee of this bill - I know staff is meeting with Justice Department staff this week, today and tomorrow in fact, my staff - we can get them to be a little more forthcoming. Also, there are some people who have suggested that maybe we ought to put into the same bill with the PATRIOT ACT reauthorization.

GG: Is that something you're considering doing?

JN: It's something I want to do; I don't know whether I can.

GG: Do you have any indication at all from House leadership about their willingness to bring this bill to the floor now that Judiciary has approved it?

JN: Not yet. I think the fairest thing to say about House leadership is that they've been completely and totally preoccupied with health care.

GG: Right - that's fair.

JN: If you consider: we've been talking to the leadership on staff level, and they're interested in this legislation. I don't think we can say anything more than that. Obviously they're going to have to make some decisions because we reported the PATRIOT ACT reauthorization with the changes that you're familiar with, also this week. And that's got to be taken care of; the legislation, it will lapse if we don't approve it by the end of the year, so they're going to have to pay some attention to it one way or the other.

GG: Absolutely. Well, I don't think it can be overstated the importance of this bill that you're sponsoring and pushing for the reasons that you explained quite well, so hopefully there will be some mechanism for the people who care about it, and there are a lot of them, to start exerting some pressure and help make it into law.

JN: I hope so. They should exert pressure on the leadership of both houses. One of the basic problems is that I have to think that the administration is not going to support the bill, and it's going to be very difficult to pass it. When you have a Democrat president, and they put out the word that they don't want this bill, it's going to be very difficult to pass it in the House.

GG: Right. There's supposed to be that whole separation of powers thing, and members of Congress acting independently, but I guess that's just theoretical now.

JN: And that's true to some extent, but of course, the administration and politics plays a large role, as we all know.

GG: Absolutely. Well, I really appreciate your efforts - I think it's, as I said, an incredibly important bill that you're working on, and I appreciate your taking the time to talk to me, and we'll definitely be following it.

JN: Thank you. I spent a considerable amount of time working with John Conyers and Bobby Scott, also on the Patriot Act. I think this is frankly more important that the Patriot Act.

GG: Yeah. Absolutely. I agree completely, and I've been writing about it a lot as you know, and will continue to follow.

JN: Good.

GG: Thanks, Congressman, appreciate it.

[Transcript courtesy of Thames Valley Transcribe]