Swiss cheese of privacy protection

Jameel Jaffer in conversation with Adam Bodnar · 24 July 2013
Interview with Jameel Jaffer, Deputy Legal Director of the American Civil Liberties Union.

Adam Bodnar: My first question naturally cannot escape the case of Mr. Edward Snowden. It seems that his person connects all different traces and issues related to the national security, access to public information, whistleblowing and privacy. It is also much bigger issue due to impact of Snowden’s case on international relations, in terms of extradition attempt by the US, but also information submitted by him on wiretapping of European embassies. Let me start with simple question – what is your prediction what will happen to Snowden in future?

Jameel Jaffer: I have no special expertise or knowledge about it. I think that he has disclosed information of immense public significance. A lot of this information should have been disclosed a long time ago, by the US government itself. Some of this information concerns abuse of power by the National Security Agency in terms of surveillance of American citizens. The information itself is immensely valuable to the public debate. So if Mr. Snowden is ultimately captured or extradited to the US and he is tried here, then I expect that his lawyers will make an argument that the Constitution does not permit a prosecution for disclosure of information concerning governmental abuses. I think it is a very strong argument. US law on this point is not very generous to whistleblowers, but still I think that he has a strong argument. We will have to see how it will play out.

AB: Don’t you think that if Mr. Snowden is at certain point extradited or somehow kidnapped by the US forces he will face the same degrading and inhuman treatment as Private Bradley Manning? Maybe it is not the issue of defense arguments presented by Mr. Snowden at the trial, but rather of his treatment before the trial starts, which make take a few years – looking at the example of Manning’s trial which has just started.

JJ: Absolutely. I think it is a valid question about pre-trial detention. We all know about the treatment to which Bradley Manning was subjected: solitary confinement and even worse. I think that it is something which Mr. Snowden must be worried about. It is also one of the points he presumably makes to other countries in requesting asylum. He presumably contends that if he is extradited to the US, he will be prosecuted under draconian laws and possibly sentenced to a life term for having disclosed information which should never have been secret in the first place. He may also raise concerns about his likely treatment in pre-trial detention.

AB: In case of extradition of Mr. Snowden to the US what court will be competent to hear his case – military commision court or civil court?

JJ: Private Bradley Manning has a case before the military commission, because he was a soldier. I expect that Mr. Snowden would be tried in an ordinary federal criminal court. Whether that‘s better or worse for him it is a complicated question. The laws are just as draconian with respect to civilians as they are with respect to military personnel. It will be a different forum, but ultimately I think that the consequences in case of conviction are more or less the same.

AB: Mr. Snowden disclosed two types of data. First set of data was of more general nature. It concerned the use of PRISM system, general surveillance and cooperation between different big internet players and the National Security Agency. Second set of data concerned wiretapping and intercepting of communications of different embassies, but also of European allies. I will ask the provocative question – from your point of view which one of those disclosures is more important?

JJ: I think it depends who you are, because both of them are equally important. If I were a European I’d be more bothered about the latter set of disclosures. But of course both of these are symptoms of the same disease. The problem is that there are insufficient limits on what the National Security Agency is allowed to do right now. It used to be that the technology itself dictated the limits. But now the NSA has all the technology in the world. It has incredible power to monitor electronic communications, not only in the US, but also outside the US. And it is using all that power. There should be some system of checks and balances in place to limit the collection of information, but that system really does not exist.

AB: Let’s stop here for a moment on the system of checks and balances. Under the Foreign Intelligence Surveillance Act of 1978, a special court (so called FISA court) has been created and its task was to monitor the operation of secret services in terms of surveillance. But according to recent article in „New York Times“ it seems that the FISA court approves just everything what the services ask for.  It is the conclusion drawn from the general analysis of jurisprudence of this court. In view of that do you really believe that there is a chance for checks and balances in this area, especially with the involvement of judiciary?

JJ:  I don’t think that the FISA court is working properly. As you said, they approve virtually everything. But beyond that, this court is structurally not set up in a way to provide a real check on governmental power. Judges of the court meet in secret, they allow only the government to appear in front of them, they rarely publish their decisions, and their jurisdiction is very limited. The FISA court may consider claims related to privacy protection, but it cannot consider issues related to the First Amendment, which protects the freedoms of speech and association. But even as regards privacy concerns, the FISA court is not looking at individualized surveillance applications. It considers only broad programs of surveillance. The court does not ask the government: who are you targeting, why are you targeting? Instead the court is asking questions like: what is the purpose of this general program of surveillance? Is it for purposes of foreign intelligence? If the government says yes, then the court checks a box and issues an order.

The FISA court may also ask whether targets are outside of the US. If the government says yes, then it is the end of the court’s inquiry, because people outside the US are not afforded privacy protections under US law. This turns out to be a problem not only for people being outside of the US, but for people inside, too, because in the course of monitoring people outside the US, the NSA ends up collecting a lot of communications by Americans. So even if you take a purely parochial approach to this and you think that only American privacy that matters here (I don’t personally agree with that sentiment), in fact American privacy is deeply affected here.

AB: As I understand one of the reactions to PRISM affairs is the interest of different congressional committees, which try to put some check on the government in this context. Could you please explain which committees are especially interested in this issue and what might be the effect of their work?

JJ: There are different committeesin the Senate and in the House of Representatives. There are the Intelligence Committees and the Judiciary Committees in both chambers of Congress. In theory, they exercise an oversight responsibility over the intelligence agencies. In practice, however, they have not been very effective in reigning in intelligence agencies. To the contrary, the biggest defenders of the NSA have been the leaders of the Intelligence Committees. But there are some members of the Intelligence Committee, namely Senator Mark Udall, Senator Ron Wyden, who were very vocal on those issues, saying to the general public for the last few years that there is much going on inside the NSA and that we should worry about.  They talked to the public as much as they could, but without violating the confidentiality restrictions.

AB: But on the other hand it was the Senate Intelligence Committee that prepared recently the secret 5.000 pages long report on abuses in the context of the CIA rendition program. According to general information available on this report, it might be quite relevant for many countries, including Poland, in terms of cooperation of the CIA during the Bush administration in implementation of the rendition program. But at the end of the day it appears that there is no consent for disclosure of this report or even its 500 pages long executive summary. Do you think there is a chance that this report will be ever disclosed and as a result provide certain accountability for abuses that happened in the past?

JJ: I think that this report will be disclosed at some point, but precisely when is an important question. There are members of the Intelligence Committee who believe that at least the executive summary should be disclosed. Some others think that more should be disclosed. Ultimately, the courts will review it and will decide whether some parts of the report should be disclosed or not. As more time goes by, the more probable it is that the report will be disclosed. But on the other hand, as more time goes by and the report becomes less relevant. In terms of 10 years it will be only of historical interest.

One difference between the torture and CIA rendition issues and the surveillance issue is that torture happened because the executive branch exceeded its powers, whereas with surveillance, a lot of what‘s going on was approved by Congress. So it is unlikely that you will see the same kind of congresional oversight and accountability in the latte context. Some Members of Congress are very invested in all of these surveillance programs.

AB: In connection with abuses happening as a result of activity of the US authorities, in Europe we can observe attempts to implement certain public accountability mechanisms – in the context of the CIA rendition program, but also in the context of PRISM. For example, there were committees established in the Parliamentary Assembly of the Council of Europe (Dick Marty’s committee), or in the European Parliament (Giovanni Fava’s committee). Right now the European Parliament is going to establish a committee to investigate the PRISM issue. There was also a judgment of the European Court of Human Rights in El-Masri v. Macedonia, in which the US was named as the country using torture. What is your assessment of the reaction of different American agencies, courts or other institutions to those developments in Europe? Does anybody care about it at all?

JJ: The American Civil Liberties Union certainly cares. But it is hard to say how much effect those decisions have here in the US in general. At the margins they have an effect on how judges think in individual cases. They can sometimes shame judges into acting here. When they see that analogous courts in other countries are dealing with similar issues, it becomes harder for judges here to explain why they are not doing the same. While it is true that on the whole the US courts have been unwilling to grapple with issues relating to torture or national security surveillance, all of those decisions have been decided by closely divided courts. The private suit against Jeppesen Dataplan, a Boeing subsidiary, concerning its involvement in the CIA rendition program, was dismissed by a 5 to 4 vote in the Court of Appeals for the 9th Circuit. The Maher Arar case, concerning the CIA rendition of the Canadian citizen to Syria, was dismissed by a 6 to 5 vote in the Court of Appeals for the 2nd Circuit. The Clapper v. Amnesty International case, concerning the operations of the NSA, which I argued last year, was dismissed by a 5 to 4 vote in the Supreme Court. All these cases were decided against us, but by closely divided courts. So things that matter on the margins matter a lot. If there is just something that can tip a 4 to 5 court to change its position into a 5 to 4 court, it makes all the difference in the world. I don’t think that any single decision or report by European bodies, lower courts in the US or human rights bodies in the US could on its own change the landscape. But it is not inconceivable that in a crucial case, something like that may make a difference in a closely divided court.

AB: I would love to discuss with you the issue of targeted killings by drone attacks, since you are very much involved in litigation of those cases. However, I have a feeling that we would then open another Pandora’s box of new issues. But I would limit myself just to one specific question which connects litigation against drones’ abuse and discussed before privacy concerns. It seems to me that the ACLU strategy takes more care about civil liberties, i.e. certain rights held by US citizens under the Bill of Rights than about human rights in general. You are concerned about drone attacks because sometimes the US citizens might be killed without due process (compare the case of Anwar Al-Awlaki), but at the same time you do not take into sufficient account mass killings of non-US citizens. Such approach was visible also recently in the speech by Barack Obama, who announced putting certain due process guarantees with respect to use of targeted killings vis-à-vis US citizens, but somehow did not mention anything specific regarding other several hundreds of potential victims. Don’t you think that such approach is in fact detrimental to the cause?

JJ: I think that it is a very fair question. It is something we struggle with all the time. We go to the US courts here. We have to face the peculiar landscape of American law. That landscape is a hostile one, even if you represent interests of the US citizen. If you are representing the interests of somebody who is not the US citizen, somebody who is outside the territory of the US, the family member of somebody in Pakistan who is killed by a drone attack and has no connection to the US, it is not just an up-hill battle. It is a very difficult claim. It bothers us that it is such a difficult claim. We think that the protection that is extended to the US citizens should apply to anybody else, too. But we have to make a choice between making a tiny progress in courts with respect to a tiny percentage of the people who are affected by drone attacks, or not to make progress at all. So, we make the progress which we can in courts, focusing on claimants who have a standing in the US courts, and then we try in the public sphere to make a broader argument that is not limited to clients which we represent before courts. It is a hard balance.

As regards surveillance it does not make sense to concentrate only on US citizens, because ultimately US citizens’ privacy turns on the actions not just of the US government but of other government’s, too. You have to come up with solutions that restrict all governments and protect all people. Otherwise you have nothing, you have just a Swiss cheese where nobody’s privacy is protected.