Debating the Legal Gray Areas in the War on Terrorism

Kenneth Roth of Human Rights Watch, CFR's Matthew C. Waxman, and James D. Zirin, host of Conversations in the Digital Age, join Fordham University's Karen Greenberg to discuss national security, civil liberties, and how to strike the right balance between the two. The panelists weigh in on the debates over the proper venue for trying terrorism suspects, the legality of the U.S. drone strike program, and the National Security Agency's mass surveillance of telecommunications data as revealed by the Edward Snowden leaks.

GREENBERG: Welcome. Thank you for coming out on this wet and humid day. We have a wonderful panel here so I'm going to get started as soon as we can. I'm going to do brief introductions.

 

But the first introduction is by way of saying that each one of these gentlemen has had some experience working for the government. And I think it matters, when you're thinking about the balance between security and liberty.

 

And so I will briefly introduce them and then we can get to our talk.

 

First is James Zirin. I'm sure you know him very well. He has a wonderful news show, which has been going for how many years?

 

ZIRIN: Oh, at least 10 years.

 

GREENBERG: At least 10 years. And probably many in this room have been on it. And it's just provocative and...

 

ZIRIN: If you haven't, you're invited to come on it.

 

GREENBERG: There you go.

 

(LAUGHTER)

 

Recently wrote a book called The Mother Court, about the Southern district of New York, which is really a wonderful read. I encourage you to read it. And he's been thinking about these issues and talking to everyone in the field for a very long time.

 

Next is Matt Waxman, professor at Columbia University. Also a fellow here at the Center on—the Council on Foreign Relations.

 

He has written innumerable pieces, mostly for lawyers but also for the public. Matt worked for the Pentagon. He worked for Condoleezza Rice.

 

He worked in the Bush administration when these questions of security versus liberty were in the front of everybody's minds, both in government and in the public, and is one of the best resources in the country for thinking about these issues. And then there is Ken Roth, who I discovered this morning has been at Human Rights Watch since 1993, which of course is all of our lifetimes. So I don't know how that happened, Ken, that you've been there so long.

 

Ken worked in the Southern district, the court that Jim wrote about, as prosecutor. And since then he's been working as the head of Human Rights Watch and doing a fabulous job in growing it from what was a very small organization to something that must be, I don't know, 10 times its original size, and is now in countries all over the world.

 

The reports that they produce, both about this country and elsewhere, are the beginning point for so much human rights advocacy and legal work around the world.

 

So I think—I think we have a good panel. I'm going to get started with—with a question that's very broad, and then we will get into the smaller questions. And that question is, over the course of the 12-plus years since the—since 9/11, since the war on terror began, we've been debating security versus liberty, how do we strike this balance? Do we want to strike this balance?

 

The assumption of this panel is we want to strike this balance somehow. And—and I'd like you to comment on that, whether that is actually what we want to do, strike a balance.

 

And then, what you think the shape of that balance has been, or that conversation has been over the past decade to 12 years, in the sense of have we progressed in terms of both security and liberty? Are we on a long, slippery slope away from liberty? Are—what—how exactly do you see the shape of this story?

 

Jim, we'll start with you.

 

ZIRIN: Well, I could start with a conversation I had with a friend of mine named John Sawers when he was Ambassador to the United Nations from Britain and he subsequently became head of MI5. And he made the obvious statement, which hadn't quite occurred to me, that it's for the executive branch to protect our safety and it's for the judiciary to protect our liberties. And I think that immediately strikes a balance.

 

Now you get overly zealous members of the executive branch who take, of course, their obligation to ensure our safety very seriously. And the issue arises as to whether that is at the expense of our liberties.

 

General Hayden, who was the head of the CIA, or when he was the head of the CIA made the statement at the Council that he was going to go so close to the line that there would be chalk on his cleats.

 

And when you have an over zealous executive branch exercising its duty, its very serious and solemn duty to protect our safety, you often get intrusions. And of course, the intrusions that we've seen since 9/11 are broadly speaking enhanced interrogation, which may be a euphemism for torture, surveillance, detention without a trial going on for a decade or more, and surveillance which may be warrant-less in certain cases, or even if there is a warrant, may have a tendency to undermine our civil liberties.

 

So what is the shape of it now? I think that since we've gone for a period of time without another attack, there's less incentive on the part of the executive branch perhaps to encroach on civil liberties.

 

But then you have the further question as to what these civil liberties are and what they should be. And I think my colleagues can address that more precisely.

 

GREENBERG: Matt, you've given some thought to the different periods of—of—different issues that have been under focus during different periods of time since 9/11. Do you want to talk a little bit about that to shape the rest of the discussion?

 

WAXMAN: Sure, yeah, thanks.

 

I think if you look at the period since 9/11, we've gone through I think a series of big debates about particular issues of civil liberties and national security. Some of them have been resolved to one degree or another; some of them I think have been totally—remain quite unresolved.

 

I think the first, probably the biggest debate was—was one in around the 2004-2005 time period when the major focus was on detainee treatment and especially interrogation issues. This was I think fueled, in part, by the Abu Ghraib disclosures.

 

This was also a period where there was quite a bit of reform, not as much reform as some people in this room might like. But this was a period where Congress got in the game, passed statutes limiting—imposing certain minimum treatment standards, for example, with regard to any detainees.

 

But 2004–2005, I would say the big issue was detainee treatment. Later, after that, around 2006, 2007, 2008, I think the big issue was one of detainee process. What kind of procedural protections are detainees, captured terrorism suspects, entitled to?

 

And that's one that I think remains quite unresolved, quite unresolved. There's a lot of—there remains quite a lot of debate. I think there was an expectation that President Obama was going to come in and enact some significant reforms in that area or that Congress might act.

 

I think we remain quite—in a state of quite a bit of split on that particular issue.

 

President Obama comes into office in 2009. I think the big civil liberty question that was getting the most attention then concerned drone strikes and targeting, the use of lethal force, especially lethal force against U.S. citizens, even though that represented such a small percentage of the actual use of lethal force in the war against Al-Qaeda.

 

And then, more recently, with the Snowden disclosures, the major issue is surveillance. And there I think we're starting to see some consensus, perhaps some legislative movement on a small piece of the surveillance issue.

 

But again, major, major issues remaining—remaining unresolved.

 

GREENBERG: Ken, President Obama came in, as Matt has said, with a great deal of promise and made a lot of pronouncements about what he was going to change in the areas Matt has laid out.

 

How do you see what he's done and how it's affected the debate in terms of these issues—detention, surveillance, drones, and interrogation?

 

ROTH: Overall, I mean, I've been disappointed by Obama in large part because he hasn't been willing to spend political capital to really take on these issues when there's any resistance.

 

So right at the beginning he did stop the torture. He—he definitively closed the CIA secret detention facilities. But he's refused to prosecute anybody for torture.

 

And indeed, he's even fought, until recently, the disclosure of the Senate Intelligence Committee report, which still is not declassified because Obama's CIA is still blocking that.

 

And so we're left on the issue of torture with it being a policy choice of Obama not to continue it, but no reaffirmation that this is blatantly illegal and—and a criminal act that should never be replicated. So who knows what comes next?

 

With respect to detention, again he came into office talking about closing Guantanamo. He tried to bring the 9/11 suspects to trial here in the Southern district of New York.

 

He caved in the face of pressure from everybody from Bloomberg to the right wing in Congress, with very unhelpful results, in the sense that the military commissions are going on and on and on, and I would be surprised if we ever get a conviction under the military commissions.

 

Whereas if people had been brought to the Southern district for civilian trials, these would have been long done with—with few qualms about the fairness of the trials.

 

On drones, Obama—I mean the biggest problem with drones has been what standards govern them. And Obama gave a very good speech a year ago basically articulating the proper standards.

 

And the big question here is, should these be war standards in which you can just shoot to kill an enemy combatant with very few constraints? Or should they be policing standards where you use lethal force only as a last resort to face an imminent lethal threat? Obama basically endorsed the latter standard, policing standards, in a place like Yemen where there's no visible armed conflict involving the United States going on. But unfortunately it was Professor Obama speaking, not President Obama.

 

So he didn't give any order. He just gave a nice speech. And practice continues.

 

And on surveillance, Snowden the supposed traitor is the one who disclosed all of this. I mean, we would have had no changes had it not been for the Snowden disclosures. And we now are scrutinizing much more closely, recognizing that this mass collection of our communications metadata has not ended or solved not a single terrorist case that the administration can cite, while massively invading our privacy.

 

There are steps being taken to correct that. But with respect to the separate issue of actually listening in on the communications or reading the e-mails of non-Americans outside the United States, Obama's not doing anything to address that, and indeed is about to lose the ability to set standards to this German-Brazilian initiative, which is going to set international standards despite—without the involvement of the United States because the U.S. has been so far behind on this issue.

 

ZIRIN: I'd just like to supplement Ken's arguments, which I essentially agree with, in one area, and that is the trial of terrorists in civilian courts as opposed to military commissions.

 

Military commissions have historically been unsuccessful. They were called into question because of the trials during the Civil War or after the Lincoln assassination. There were military commissions in the Second World War.

But the Southern district of New York has acquired great expertise in successfully prosecuting terrorists under standards that have existed for 225 years and they're well recognized in our jurisprudence.

 

In 1961 in the Southern district, a group of Quebec's separatists, who wanted to blow up the Statue of Liberty and the Liberty Bell and the Washington Monument, were successfully prosecuted in the Southern district of New York, long before 9/11.

 

Before 9/11, Mary Jo White brought at least six terrorism cases, including attacks on American embassies, attacks on the Cole, and other cases, all before 9/11. And they were all successfully prosecuted without turning the court into a forum for propaganda or any of the other horribles that the critics of civilian trials have voiced.

 

And then most recently we've had two successful prosecutions in the Southern district of New York involving terrorists. Both resulted in a conviction. The last one was the propagandist in London who supported the 9/11 attacks and claimed it was all just speech, but it turned out it was much more than speech. And so I would submit that the civilian courts are the proper forum to prosecute terrorists, either the 9/11 terrorists or other terrorists if there's jurisdiction here.

 

And that if, in the case of Khalid Sheikh Mohammed, the poster child who was being tried in a trial that never seems to begin or to end in Guantanamo, where constitutional safeguards are not observed in all respects, and it's kind of a makeshift procedure that has been engrafted on military tribunals to try to give them certain rights you'd have in the civilian court but not quite succeeding--I would submit that that's the wrong way to go.

 

GREENBERG: Matt, I want to turn to surveillance and the Snowden revelations and what they've unleashed. Where do you think we stand now? What do you think is going to happen?

 

WAXMAN: Well, so...

 

GREENBERG: I don't mean to make you a prophet, but...

 

WAXMAN: Yeah, no, no. I mean, one of the things that's interesting—well, first of all, I think different people see very different things in the Snowden revelations.

 

I have to say I—I—in my mind—to me, the Snowden revelations showed quite a lot of areas where—where, in my view, the government was overreaching on policy grounds. I think it was overreaching on policy grounds.

 

But I don't look at the Snowden revelations and see rampant illegality. In fact, quite the contrary. One of the things the documents show is a National Security Agency that is obsessed with legal compliance and procedures for ensuring it.

 

Now one might say that the legal boundaries that were set that it's complying with are too broad, that Congress has given the NSA, intelligence agencies too much leeway. The Foreign Intelligence Surveillance Court has been buying into interpretations the NSA's authorities that are too broad. And we can—we can debate whether that's true.

 

I think reasonable people can disagree—can disagree on that.

 

What I don't think the—the documents—the information shows, though, is a—a—an NSA that is lawless, that is abusing its—its powers and so forth.

 

And to come back to a point that was made earlier, one of the questions is how effective are these programs? And I think that's a very, very important question to ask when we talk about massive collection of telephony metadata, for example.

 

How useful is that as a counterterrorism tool? That's a critically important question to ask and it's one that's very difficult to answer. It's not one that the Foreign Intelligence Surveillance Court is equipped to answer. It's not one that I think Congressional Oversight is well equipped to answer.

 

In terms of setting up the right institutions to analyze these questions, that's difficult. I don't think, though, that the metric we should be—we should be judging these programs by is how many terrorist attacks did this or that program stop.

 

There are a number of people, friends in the audience, I know, who are—who work in intelligence. And one of the I think most important lessons of the last decade and a half of combating Al-Qaeda is that intelligence programs work in combination. You don't thwart terrorist attacks with one intelligence program at a time.

 

So I think it's silly to ask how many terrorist attacks did any one program stop. That's just not a good way to—to judge programs. In fact, if the number of attacks thwarted by any one program were extremely high, I would wonder why isn't—what is the rest of the intelligence community doing?

 

GREENBERG: Ken, how do you see this?

 

ROTH: Well, first of all, Matt, and I disagree with you in the sense that-- I think it's a bit of a straw man to say what terrorist attack did this program alone stop.

 

Rather, the appropriate question is but for this program, was there any terrorist attack that was stopped that wouldn't have been stopped? And the answer to that is no. In other words, this program—the vast collection of our metadata—according to the Obama administration, didn't contribute to—wasn't a necessary contribution to stopping any terrorist attack.

 

In fact, the best case they could come up with is this guy in San Diego who wire transferred money to the Al-Shabaab. A classic case of targeted surveillance. I mean, they had to be out of their mind not to be already tracing Al-Shabaab's bank accounts.

 

And so, why—why do you need this mass collection of metadata in order to get there—they can't come up with a single case. In which case you have to say, well, why was this mass intrusion on our privacy worth it?

 

Now I mean, you're right in the sense that that particular part of the program wasn't illegal. It goes back to a 1979 Supreme Court case where the Court ruled that when you dial the phone number—this was back in the day when you did that, you dialed—that—that you had no privacy interests in those numbers because you shared them with the phone company.

 

Now it easily could have decided that case the other way around. But that rationale is no longer, I would argue, an appropriate one in a world where our metadata really defines our lives in many ways more than the contents of our communications.

 

And the Supreme Court has actually hinted in the Jones case of two years ago that it was not happy. Five justices were not happy with this rote application of this 1979 case to our mass communication metadata today, and essentially gave the Obama administration a chance to fix it up before the Court ruled.

 

And, indeed, it is now doing that. It's pulling out of the mass collection of metadata.

 

But one example where I think the NSA went way beyond any legitimate interpretation of law and the FISA Court went along is this argument that when the government collects our metadata, that that doesn't involve our privacy rights at all until it looks at it. That if it's just sitting in a government computer, we don't have to worry about it in privacy terms.

 

And the analogy which I've been using, which I think puts this in the appropriate light, is imagine if the government put a video camera in your bedroom with a direct feed into a government computer and said, "Don't worry. Your privacy rights interests are not implicated unless we actually look at the video."

 

Would you be satisfied with that? Would that be adequate protection of your privacy interests? Obviously not.

 

But that has been the theory. It was such an untenable theory that they never went public with it. The FISA Court was the only one that ever ruled on it secretly and we didn't know about it until Snowden. Once we know about it, Obama immediately backs off and the new legislative proposals won't do that anymore. The phone companies and the Internet companies keep the data until there's a focused query for it.

 

But that's an example of how when you have a system that is not being publicly scrutinized, you get the wrong balance between privacy rights and our security.

 

ZIRIN: Is there mainly a difference, in your view, if the data is lodged with the government or if it's lodged with the phone company, when the government can obtain it any time it wants to by subpoena or otherwise?

 

ROTH: Well, yes it does in the sense of—well, first of all, as long as there's not a mandate on the phone company to—or Internet company to keep the data beyond what is useful for business purposes.

 

But the big difference is if the government has to ask for it with a targeted request, that's a big production. None of us object targeted surveillance. You have to make an evidentiary showing to an independent tribunal or somebody and then a warrant is issued that says you can get this or that set of phone calls or e-mails.

 

But the—the problem is that the U.S. government has been collecting all of our data on the theory that you need a haystack to find the needle.

 

And—and that, you know, very elastic sense of relevance has given really almost no recognition to our privacy rights.

 

GREENBERG: Matt, do you want to weigh in?

WAXMAN: Yeah, well, so I'd make a couple of points on that end in response to some of the—the points that Ken made, some of which I very much agree with. Though I'd push back on a couple of aspects.

 

First of all, I do think it's a bit odd that there's this—that the fix to the problem of government collection and analysis of our metadata is let's leave it in the hands of companies and just make sure that when the government wants to do some targeted query it'll go to those companies and get the data.

 

The reality is that in the 21st century, there's massive amounts of data that all of us are generating, digital crumbs that are being collected by various actors—government, private sector, et cetera. And just based on what I've seen of what the government does with that data and what the private sector does, I have more faith that the government is respecting my privacy than the private sector.

 

I—that's—in terms of my comfort level, I'm more comfortable with it in the hands of the government than companies that I admittedly willingly give it to because of—because of—of convenience.

 

I also—I share Ken's concerns about the—the metadata program. And I agree that I have not seen a persuasive case about how effective this program has been in thwarting attacks, the question being sort of but for this program, would some attacks have occurred?

 

And I think that's an important question to ask. Though I mean part of this—I think the difficulty here is as we think about this prospectively, which programs, which kinds of protections are we willing to dispose of? And then, what is going to be our reaction when a terrorist attack gets through?

 

I'm hesitant to make big, public predictions, but I'll do one now and it's a dire one, which is I think some time in the next decade we're going to have a major public debate about some catastrophe. I think it's going to be something nasty involving, for example, synthetic, biological agents.

 

And one of the questions we're going to be asking, and we're going to be beating the government up over this, is why weren't you collecting and analyzing more data about individuals who were accessing certain kinds of—of biological agents, for example? This could've been avoided if we collected and analyzed information more smartly.

 

Now the answer isn't, then, swing in the—back in the direction of we'll just collect and analyze everything. Not only would that be a problem for civil liberties, but it would also be a problem for security. We can't do it and choices have to be made.

 

But I do think there are some difficult judgments that do have to be made about what kinds of reasonable infringements of privacy we're willing to make in order to buy certain additional protections in—in—in security? And right now, I mean one of the things I'm struck by as I look at the Snowden revelations and what's coming of them is the reaction of our political system is not, wow, we need to radically reform our surveillance programs.

 

It is likely that Congress is going to pass some new protections with regard to metadata. It'll be in the hands of the private telephone companies and the government will have to query it in certain more specific ways.

 

But the reaction has not been, holy cow, I didn't realize the government was doing all of these kinds of things, so let's scrap it. I think we're going to end up—I think the political system is going to end up in a place not that different than surveillance looked before the Snowden revelations.

 

ROTH: I'm not sure that's true. In other words, if you just look at the House bill right now, there's a—for metadata, not for non-Americans outside the United States—but for metadata, there's a big shift because they're basically saying that this—this analysis that the NSA was playing with, which is collect all of our data and then do a big data analysis. This new tool that's only been possible for the last three or four years.

 

There basically is a decision that, no, that's not the way to go. That the infringement on all of our privacy rights by collecting that data in order to permit a big data analysis isn't worth it.

 

And instead we're going to go back to the traditional method, which is targeted surveillance.

 

Now in the example you give, I mean, if there is a particular lab or a particular tools needed to make some kind of synthetic, biological agent, by all means they should be surveilling them. Nobody would quarrel with that.

 

And look at the people who are checking in on that, look at the people they're talking to. That's classic targeted surveillance.

 

What we object to is to pick up all of our metadata and plug in who's talking about biological weapons because there are a lot of very legitimate reasons to talk about biological weapons. I do it. Does that mean that I'm a legitimate subject? And that's what people are objecting to.

 

WAXMAN: I think where you and I disagree, though, is I'm not as bothered as you are by the—by the collection and warehousing by the government because I do—I do think that there is and there have been in the past grounds for grave concern about abuse of what the government does with that data.

 

And the answer for that is not for the government not to collect and analyze data; it's to put in place good checks and protections to ensure that the government is a good steward of that information and doesn't abuse it. And I think the Snowden documents, the documents that have come out through Snowden, show the government has actually been quite responsible with what it does with that data.

 

ZIRIN: But what are the checks on Google and AOL? That's where it's lost.

 

WAXMAN: That's where I'd like to see more checks.

 

ZIRIN: I mean, is your privacy invaded if Google then uses the information to market some product to you that you don't want? Or if you buy a book on Amazon, pretty soon they want you to have a massage. I mean, that's...

GREENBERG: I want to bring this back to the—the national security and the government because one of the things that's underlying Matt's premise is trusting the government and trusting who's in power.

 

They have all this information but they'll only look at it in the following circumstances. Is that something all of you are comfortable with?

 

ROTH: No. Traditionally there are two checks on government. The one is, Matt, what you're describing, that if it has information it can only do certain things with it.

 

But there's a separate check in terms of what information it can collect, particularly on the means they can use to collect that information. And I'm not satisfied with dispensing on those restraints on the means of collection and simply focusing on use.

 

In answer to the—the—both of your questions of what about private companies, in Europe the concept of data protection, that you actually own the information about you whether it's in the government's hands or private industry's hands, that is going to be something that Americans are going to have to deal with more and more as the world becomes more globalized.

 

So I'm not going to pretend that what Google does or what Facebook does is completely fine, but it is different in kind from what the government can do.

 

I mean, while Google or Facebook can cause a lot of embarrassment, they can market you things you don't want to be marketed, they can share your data—they're not able to put you in prison, they're not able to do a lot of coercive things that are uniquely governmental.

 

And that's why I think the concept of rights as a constraint on governmental conduct is different and important from the separate need to regulate companies that have vast amounts of our private data commercially.

 

GREENBERG: Ken, you said that earlier that you thought that this new legislation rolls back to a time of targeted surveillance—rolls back...

 

ROTH: On metadata.

 

GREENBERG: On metadata. Rolls back to before the PATRIOT Act, before 9/11—I mean, how—where do you see this rolling us back to?

 

ROTH: Well, I mean, it's obviously a somewhat different era in that kind of the Internet questions being asked now are different from the phone questions being asked back when these things were litigated 30 years ago.

 

But what these seem to be moving toward is some requirement of factual specificity. Before-- what about this is suspicious activity that would warrant reading—looking at—getting access to the metadata? Some kind of independent arbiter and some kind of limit on how many hops out you can go. In other—it used to be three hops, now it's two hops.

 

So that means if you happen to call a pharmacy and the pharmacist has a shady connection, that doesn't mean you suddenly become a suspect if you're three hops away, the way it used to.

 

But in that sense, it's more like the paradigm of a search warrant or the classic wiretap, and I think that's the direction that we should be going. The big restriction is that it doesn't yet apply those constraints for non-Americans outside the United States, which implicates many U.S. citizens, as well, because we all live in a global world.

 

And I spend more than half my time talking to people outside the United States, the vast majority of whom are not American.

 

So I'm getting picked up all the time as I suspect are many of you, and that's incidental to their listening in on a foreign target.

 

So I think we have to worry about it in those terms, we have to worry about whatever precedent the United States sets is exactly what other governments are going to do, which is going to scoop up all of our communications if they're all part of the Five Eyes, you know, the U.S., U.K., Canada, New Zealand, Australia. They're just going to trade stuff.

 

So if the U.S. can't listen in on your conversation, Britain can. And then they'll trade it back and forth.

 

So there's a lot more still to be done. This House bill is a narrow, partial solution to the problem.

 

GREENBERG: So in a way, the courts, the way you refer to it because the trials are basically—these are legacy trials at Guantanamo and the rest are, it seems, a signal from the administration you're going through the federal courts, whether it's the EDBA or the Southern District of New York.

 

In surveillance, there's some kind of new rationality for pushing back on the overzealousness of the government.

 

What about drones? Is that the outlier in this in terms of taking on a life of its own? And where does that—how do you see drones both politically and legally?

 

And this is—let's start with you, Jim?

 

ZIRIN: Well, we need a drone court so that—a secret court like FISA where officers of the security forces come in and present their case as to why they should be taking out someone in Yemen in the desert.

 

And then, do you need present—so it's not entirely a lawyer's call, a next party preceding with only one party being present, do we need some kind of ombudsman and advocate for the life of suspected terrorists who appear before the drone court.

 

And then, finally, a principal decision is made and they either sign the death warrant or they refuse to sign the death warrant.

 

Or are these judgments that really have to be made by the executive branch at a very high level with some kind of check and balance to make sure it's not used arbitrarily, with some sort of standards within the executive branch as to when it can be used?

 

I mean, certainly the cop on the beat has the right under certain circumstances to kill in his own defense or the defense of others, and if in some far-flung country, plotters are trying to accomplish an imminent attack on the United States and they all meet in a house to do the final details for how the plot is to be carried out, aren't they legitimate targets of a drone attack?

 

GREENBERG: Before you guys answer, we're going to go to members' questions in a minute, but I want brief answers from you. And basically on this point, is it—does it matter if we're at peace or at war in terms of having the drone policy that we now have?

 

Matt? Then Ken.

 

WAXMAN: I think yes, it does matter. And I think how one evaluates the legality and propriety of drone strikes depends a lot on whether one buys into the basic premise that we're engaged in a war or armed conflict with Al-Qaeda and its allies.

 

And I think if you buy into that, and—and—and let me say, I do, and I think all three branches of the U.S. government across administrations, across political parties, have bought into that, and I think from that flows authority to use lethal force against enemy fighters under certain circumstances.

 

Now the big question is under—exactly what are those circumstances, especially when we're talking about the use of force outside of a so-called hot battlefields? One thing to say, in combat in Afghanistan, lethal force is legal and appropriate, but in Yemen, Somalia, et cetera, it's another story. But I do think a lot depends on the basic framework that one accepts or doesn't that we're engaged in a continuing armed conflict, or war, or not.

 

GREENBERG: All right. Ken, continuing armed conflict?

 

ROTH: Well, I agree with Matt's statement of the problem. I think we come out differently on how we characterize what's going on.

 

The—this has been an easier problem so far because there's been a genuine armed conflict in Afghanistan and the tribal areas of Pakistan. And so most people when they think about the global war with Al-Qaeda think about that area—there is a hot war, nobody's contesting that.

 

But that's obviously winding down in terms of U.S. involvement. And so the real question is, you know, look at Yemen today, which I think presents the harder problem. Yemen—there's an occasional drone attack by the United States, but in no realistic sense is the United States engaged in an armed conflict with Al-Qaeda in the Arabian Peninsula.

 

And I don't mean that in a subjective sense; I don't mean this because Congress said it or didn't say it. But there's an objective test on Geneva Conventions. Is there an adequate level of fighting? Are there organized forces involved?

 

And under those objective standards, there's not an armed conflict taking place there, which means that the much more restrictive rules governing police powers, that you can only shoot if there's an imminent lethal threat posed to yourself or others, those would kick in. And for the most part those standards are not met.

 

Most people when asked this question say, well, Congress has signed off on this global war against terrorism. That's not good enough.

 

I mean, if Congress signed off and said we are going to go to war with the members of the Council on Foreign Relations because we all know that sinister plots are hatched there, that wouldn't make it all right for them to start summarily shooting all of us because there's no—there's no actual war going on.

 

Instead they have to rely on police standards when they can't shoot unless there's an imminent lethal threat.

 

The same rules should apply in Yemen or wherever else this comes up. Absent that objective armed conflict, the only appropriate use of lethal force is under the same standards that applies to the cop on the beat. If there's an imminent lethal threat, yes, otherwise you've got to use other means.

 

GREENBERG: OK. Your question? Way in the back. Wait for the microphone. Please identify yourself.

 

QUESTION: I wonder to all of you whether all of this discussion has been about us—do the rules only apply to us? I mean, are we really comfortable with the fact that Kazakhstan can operate according to the same rules and apply its own judgment about when lethal force can be used-- drones, for instance, or important information they can accumulate about us, or is that something at this stage we don't have to worry about because most countries can't really do it? And I just wonder where you come out on that.

 

 

ROTH: .Gary, the issue isn't just drones. We tend to be more comfortable posing in terms of drones because there's this view that right now the U.S. and maybe with Israel has relative monopoly on this technology. But, the rules that apply to lethal force with drones are the same ones that apply to ordinary assassination. And, are we comfortable with Russia, you know, declaring some Chechen in London as an enemy combatant and summarily shooting him under the theory that there's a global war going on. Or China going after Uighers wherever they may be found. I mean, if you divorce this declaration of war from objective criteria of the level of hostilities taking place, you are opening it up to this kind of, I would say, unlawful use of lethal force around the world. And we absolutely do have to look outside the United States. We have to look at the precedents that the U.S. is setting.

 

ZIRIN: My hope is that if we use appropriate standards that are consistent with our values and our constitutional values, eventually, others will have to as well because of the moral force of...

 

ROTH: Or put it the other way. Whatever the U.S. does, you can be sure that others will follow that precedent.

 

GREENBERG: Over here. Wait for the microphone, please identify yourself.

 

QUESTION: Jack Rosenthal, soon to be of Hunter College. Two questions: one, what do you hope happens to Edward Snowden? And number two, what changes would you advocate in the FISA court?

 

GREENBERG: Matt, why don't we start with you on that one?

 

WAXMAN: Sure, also I don't know what I'd like to have happen to Edward Snowden, I think you can probably tell, I'm more skeptical than some others here of the value of what he did through his actions. I do think some of the debate has been valuable that has come about as a result of some disclosures, though I'm also quite concerned about the damage to American national security. And frankly, we don't know what other documents he has, what else might come out. I should also just mention that there's-- with regard to – to get back to the metadata question and some reforms. I actually agree with Ken that some of the kinds of reforms we see being proposed in Congress now for limiting the metadata program make good policy sense. I think, I just disagree with whether they are compelled as a matter of constitutional law, or as a matter of, kind of, hard, moral or ethical principle. I think they're sound as a matter of policy. The second, sir, the second part of your question?

 

GREENBERG: FISA.

 

WAXMAN: Oh, FISA reform.

 

So one of the reforms that's talked about for reform of the Foreign Intelligence Surveillance Court that I think makes quite a lot of good sense is this idea that especially when the Foreign Intelligence Surveillance Court, the FISC is deciding major issues of policy or—or—or legal interpretations—statutory or constitutional interpretations—that it's important that there be some representation for the other side of the argument than simply the government's representation.

 

The Foreign Intelligence Surveillance Court was designed in 1978 for a very specific set of purposes, which were really about a kind of targeted surveillance that Ken was talking about. And I think it's a system that does that much better than it's given credit for.

 

More recently, though, the FISC has been charged with deciding major public policy issues through interpretation of Congressional statutes in secret. And I think that's a dangerous role for that court to play unless it's—it's—unless we have some real adversarial process.

 

So one of the reforms would be to ensure that outside groups, nongovernmental groups, could make arguments, could present arguments, contrary interpretations, for example, before the court. I think that's a sensible reform.

 

GREENBERG: Ken, what about the appointment to the FISA Court and how it's constituted? I mean, if you're going to have a court that sort of rolls over and makes these policy decisions in cahoots with the government.

 

ROTH: I would like to find a system where someone other than just the Chief Justice appoints the FISA Court members, since there's been a sort of one-dimensional nature to those appointments.

 

GREENBERG: Yeah.

 

ROTH: And I agree with the—the—the proposal that is before the House now would not only introduce these sort of amicus, independent experts who would make sure the court's informed by some perspective other than the government. But it would also presumptively declassify any FISA Court opinion in this policy area, which is important.

 

I would question whether the FISA Court even should be making these policy decisions. And I'd be inclined to push them back to the original purpose, which is targeted surveillance where you can't notify the subject of that surveillance.

 

It's not clear to me why any of these methods are so secret, why without some redaction you couldn't have a regular, articlethree court addressing them.

 

GREENBERG: Right, like you deal with CIPA issues in...

 

ROTH: Exactly. There are lots of ways to handle this.

 

And on the question of Snowden, by the way, I would just—I mean, I think that unlike something like the WikiLeaks dump where it was pretty much indiscriminate, here there seems to have been a fairly focused effort to responsibly disclose information that is deeply troubling about the way in which our privacy rights were being disrespected.

 

And so while, as a technical matter, he did violate the law—he had a duty not to disclose—I would call him a whistleblower. There is not whistleblower protection under U.S. law for people who have classified information.

 

They have no recourse other than to go to the Inspector General of their agency or to the—the Congressional Intelligence Committees. We saw from predecessors to Snowden that those methods didn't work. In fact, they were prosecuted, they were persecuted.

 

So I think Snowden was perfectly fair in recognizing that the established avenues wouldn't work. Public disclosure was the only option. I think he did us all a service. And I would recognize that by having Obama or Holder say that they're not going to prosecute him.

 

GREENBERG: Jim, do you want to weigh in on Snowden?

 

ZIRIN: Well, as to what I hope happens to him, I suppose one possibility is that Putin will put some ricin in his vodka and then the whole thing will go away.

 

As a lawyer, I hope that he'll be, at some point, brought to justice because he did violate the law and he did violate his duty in trust. It's hard for me to see him as a whistleblower because he didn't expose any illegality. A whistleblower classically is someone who comes forward and says, well, they're trying to make some product but they're poisoning everybody's soup. And he hadn't done that.

 

What he's done is he's disclosed, in terms of the metadata, he disclosed a comprehensive program of spying on citizens and—but done—he certainly hasn't disclosed, to my knowledge, of any instances of warrant-less surveillance. They were all in accordance with the NSA program which implicates the FISA Court.

 

So I think that—I don't see him as a whistleblower. I see him as a wrongdoer. And really the hope is that he'll be brought to justice.

 

GREENBERG: More questions?

 

ZIRIN: Although I do agree with Ken, I think what he did was in the public interest.

 

GREENBERG: In the back?

 

QUESTION: With respect to recent developments, the "New York Times" talked about over the weekend, Facebook, Google, Yahoo, everybody sort of making some fairly significant changes to transmission protocols to subvert efforts to—to subvert surveillance efforts.

 

Also, with Brazil and Germany and some other countries basically taking their own steps to avoid this—are we in a new era now where this is actually moving in the direction of not being possible? Or is just becoming much more difficult?

 

ROTH: Well, no, look what Google, et cetera, are doing is making it difficult to have surreptitious surveillance. You can still have targeted surveillance. You can go get a court order and—and Google will have to turn it over.

 

QUESTION: (OFF-MIKE)

 

ROTH: The surreptitious, the mass surveillance we don't want. We want to have targeted surveillance where there's a legitimate reason that the government has to articulate before some kind of independent magistrate before they can get your information.

 

If Google has to encrypt in order to force the government to follow those rules, so much the better.

 

Now there's this—internationally, I mean there is a—there are a couple of different strains of response to this. And actually I met with Anglo American a couple of months ago to discuss this.

 

And one of the developments that I'm worried about is there was an effort to create a so-called kind of Euronet. And the idea would be that all data about Europeans would have to stay in Europe. And that would be one response to the NSA's surveillance.

 

The alternative response would be to develop global privacy standards that everybody would have to respect. And the problem I see with the Euronet, which I talked to her about and which she actually hadn't thought about previously, which is a little scary—but when we talk about Internet companies about how to operate in China, rule number one is you don't put any user data in China.

 

So that when they ask for it, who was that dissident who was talking about Tiananmen Square, you can say, sorry, the data's not here. I can't turn it over to you.

 

If Europe sets up a Euronet, China's going to love it. It's just an invitation for them to set up a China net and to force all that user data to be kept in China.

 

And so, again, you've got to be careful about the precedents you set. And fortunately, she got this and I think they're going to push much more toward establishing global privacy standards rather than setting up this sort of technical response to it.

 

But there are many ways that this can all go.

 

QUESTION: (OFF-MIKE)

 

ROTH: Who want to do the same thing?

 

QUESTION: As the NSA. In other words, we want—so we see that you guys are listening to everything. Now we want to listen to everything.

 

GREENBERG: The foreign (inaudible) are going to want to be able to get the information the way the American government can get the information.

 

ROTH: And there again you—some foreign governments have perfectly legitimate interests in getting that data. If they can articulate a genuine security reason, identify a suspect, by all means they should get it.

 

I think what we want to resist is governments that say, oh, our national security interest is met by somebody who's talking about Tiananmen Square, therefore we can go after them. You do have to have a certain free speech standard that's welded onto the concept of what national security is.

 

QUESTION: Granted. But I think one of the problems is that it's the companies that are under pressure, not the U.S. government under pressure to yield this information.

 

So I mean China being a classic example where of course the Chinese are constantly trying to get the Internet companies to yield information about people that they consider to be suspicious or just metadata in general. Not to mention countries like Russia or North Korea, for goodness sake, or Syria or whatever—more repressive regimes.

 

ROTH: This is why it's important that as global standards are developed, we have to recognize that global privacy standards are underdeveloped so far, there's a need to address privacy and free expression at the same time.

 

Now this is where the U.S. government is actually on the right side. Germany and Brazil, when the U.S. starts talking about free expression, they say, oh, you're just changing the subject—we've got to focus on privacy. In fact, you've got focus on both.

 

We need privacy restrictions that make it harder for governments to get our data, but we also need free expression restrictions that limit the kind of data that's appropriately asked for. You need both.

 

GREENBERG: Before we get to the end of this, I want to make sure we touch on Bergdahl and the prisoner swap because how could we not. And so, I'd like you to each—we're going to start with you, Jim—sort of set this and how you see this, why it's important—maybe it isn't important. But it seems to intersect with an awful lot of the issues we're talking about today.

 

How do you see this? Do you see this in the context of Guantanamo? Do you see this in the context of the end of the war in Afghanistan? Where do you see it?

 

ZIRIN: Well, I think the first question needs to be asked, what are the facts? And they remain murky. Was Bergdahl a soldier who was captured and detained? Or was he a spy? Was he a deserter? And I think a lot is going to turn on exactly what—what happened and what his status was. And I gather he's still being debriefed.

 

And I think the president may have acted precipitously in receiving his parents at the White House before knowing what the facts were.

 

Secondly, I think you have to draw a distinction between a hostage, a prisoner of war, detainee, and whether we negotiate with foreign countries that have taken hostages or have taken prisoners of war and are prepared to release people from Guantanamo or elsewhere that are being detained here in exchange.

 

GREENBERG: So on the issue of whether he was a deserter or not, do you think that impacts on the decision of whether or not the United States should have brought him home?

 

ZIRIN: Well, the decision's been made and we are—Secretary Kerry said he was a U.S. soldier and of course we want him brought home. But of course, if he was a U.S. spy we have another reason for bringing him home. And we—probably the four people released from Guantanamo are not very dangerous and we really haven't given up very much.

 

But we lost something in terms of our willingness to negotiate for the return of hostages and who we're willing to give up in return. That remains an open question.

 

GREENBERG: Matt, you've been in the Guantanamo detainee release business for a—or you were, for a very long time. Over 500 went out of the Bush administration under a variety of conditions and negotiations.

 

What do you think?

 

WAXMAN: Yeah, well, so one of the things I worked on in the government was the transfer and release decisions of Guantanamo detainees. They're difficult decisions to make. They're difficult—they involve difficult judgment calls about risk. And they also involve difficult diplomatic negotiations.

 

One of the things I worry about coming out of the Bergdahl situation is that the controversy surrounding it may lead to greater Congressional restrictions, either—either as a matter of formal legislation or just I think political pressure on the administration with regard to the transfer and release of Guantanamo detainees. I think that's a mistake. I think whatever one thinks about this particular deal, I think it's important that the president of the United States have discretion to release and transfer detainees from Guantanamo.

 

I think the kinds of restrictions that Congress has put in place with regard to transferring detainees to third countries or home countries are a mistake.

 

I think a bigger mistake is the restrictions that Congress has put on moving Guantanamo detainees into the United States for possible prosecution in civilian courts. I don't think that's the answer for all of the Guantanamo detainees, or even all of the most dangerous ones. I think that is an important tool that any president of any party ought to have.

 

And it's one that the Bush administration would have fought very, very hard for had Congress tried to impose these kinds of restrictions or tried to scrutinize delicate transfer decisions like it's occurring now.

 

So that's—that's one of my real worries, is that there will be—is that the political reaction to this will make it more difficult for the administration to try to find solutions to many of the remaining Guantanamo cases.

 

GREENBERG: Ken, is this the beginning of the end of Guantanamo?

 

ROTH: I wish. No, look, when you think about Guantanamo, it's useful to think in terms of three categories of detainees.

 

First, there are ones who committed allegedly a serious criminal act and the administration would like to prosecute. The problem is they've been pursuing them before military commissions, which will never conclude.

 

They actually are set up to fail in many respects because even if you get to trial, some of the easiest crimes to convict, whether conspiracy or—or material support for terrorism, are not applicable in a military commission. You need to bring them to a civilian court.

 

There are all kinds of problems of fairness. So I hope that for those people, Khalid Sheikh Mohammed foremost, they're brought to the United States for civilian trial.

 

Then there is roughly half if not more whom the administration, Bush and Obama, have agreed don't pose a threat. And they're just looking for the right moment to send them off. Most of these are Yemenis. The perception is that Yemen is too chaotic, so there's a reluctance to send them back.

 

But at some point they've just got to bite the bullet. These people don't pose a serious threat. They should be released.

 

Then the tough issue is about 30 detainees whom Obama says can't be prosecuted because they were tortured, or lack of evidence, but there's the sense that they do pose a serious risk. And what do you do about those?

 

His inclination is to move them to some super-maximum security facility in the United States, which is just on-shoring Guantanamo. In my view, that wouldn't solve anything.

 

Rather, I would just release them. I mean, there are lots of dangerous people in the world. A handful happen to be in Guantanamo. Most are not. Why is Obama not going to release this handful? It's the Willie Horton problem. He doesn't want to be politically responsible if one of these does something untoward, whereas he wouldn't be politically responsible if one of the gazillion other people who are dangerous out there does something.

 

He's got to get over that politics, get over the Rahm Emanuel problem that he feels the only people who care about this are the people who are already going to vote for Obama, and just do the right thing. This is becoming a legacy issue and I hope Obama doesn't leave office with the same Guantanamo that he inherited from Bush.

 

GREENBERG: And you will notice that in the past few months he has whittled away at that forever detainee category very quietly without anyone noticing. A few of the people who have been released—cleared for release—have been on that forever detention list.

 

ROTH: The five Taliban released are not insignificant people.

 

GREENBERG: Right.

 

ROTH: And if they can go, I mean, who there poses a more significant risk than these Taliban leaders? And the security constraints are them are one year in Qatar. So it's not as if this is a long-term solution.

 

At some point you've just got to learn to live with risk. And if that's the price to get rid of the scar on America's reputation and bring U.S. detention policy within the law, I think that's a risk we should assume.

 

GREENBERG: So I think we have some answers to our questions, which is that the conversation over liberty and security has advanced somewhat more than I had thought before the beginning of this conversation. It seems that we're rolling back certain things, sticking with certain things, but beginning to see what are gray areas and what are really black and white areas.

 

So thank you very much, gentlemen. And thank you for joining us.

 

(APPLAUSE)