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One on One With Rep. Jerrold Nadler

Tuesday, 23 August 2011 06:11 By Alissa Bohling, Truthout | Interview
One on One With Rep Jerrold Nadler

Rep. Jerrold Nadler speaks at a rally for the ADA Amendements Act at the US Capitol. (Photo: Leadership Conference on Civil and Human Rights)

At a time when the freedoms many Americans once took for granted are under concerted attack, Rep. Jerry Nadler (D-New York) - a vocal proponent of civil liberties over his nearly 20 years in office - has a lot on his plate. Most recently, Nadler spoke out against the political maneuvering leading up to the debt deal. In a statement after his vote against the final "compromise," he criticized the Congressional "blackmailers" and their "unbalanced, callous plan that will strangle the middle class and working poor, to say nothing of the elderly and kids." As the country waits to see how the Congressional "supercommittee" will divvy up the required $1.5 trillion in cuts, Nadler spoke with Truthout about the political upheaval that has accompanied our ongoing economic turmoil.

Alissa Bohling: Under Obama, civil liberties have eroded even further than they did under Bush. He broke his campaign promise to close Guantanamo  and approved extending the most controversial PATRIOT Act provisions, among other things ...

Rep. Jerry Nadler: I think the president is subject to a lot of criticisms on civil liberties. I don't think breaking his campaign promise on closing Guantanamo is one of them. They have tried that, and they've been stymied by Congress. Everything else I'd probably agree with you.

AB: So, focusing just on the fact that he's approved extending the PATRIOT Act provisions, and that overall we've seen things erode under him - why do you think Obama's performance on civil liberties has received less attention than Bush's? Is it just the economic crisis or are there other factors?

JN: I don't know. I've certainly tried to raise concerns. You've got a number of things: they have a war on whistleblowers which is much more extensive than previous administrations. They're trying to extend, as a matter of law, the Espionage Act, although they're losing in court on that. The Espionage Act of 1917 makes it a crime to divulge secret information. Now, that's always been interpreted in the United States to mean that, if I am a government employee or CIA employee or Defense Department worker, and I have secret information and I give it to you and you publish it, I'm guilty of a crime, but you aren't. Because it's my duty not to divulge the information. You got the information, you're free to publish it: freedom of the press.

Now, that is not true under the Official Secrets Act in Great Britain. Attempts have been made from time to time in the United States to pass a law analogous to the Official Secrets Act and have always been rebuffed. The administration is trying, through a number of court prosecutions, to get the courts to interpret it as criminal for you to publish, as well as for me to give you the information. They haven't succeeded yet, but that would be very, very dangerous because that would shut down much of the information that we get.

For example, it's certainly a crime for whoever gave WikiLeaks the information if it was classified. It's not a crime, or it's never been considered a crime, for WikiLeaks to publish the information or to give it to The New York Times. And we don't want to extend that, because you'd really shut down freedom of the press to a large extent.

The worst issue is the state secrets issue. Obama hasn't been worse than Bush, but he's been equally bad, which is pretty bad. The real issue with state secrets is - I've got to give you a little history here, too, so you can put it in context. There are various evidentiary privileges. You can't be forced to testify against yourself in court - that's the privilege against self-incrimination; it's constitutionally based. You can't be forced to testify against your spouse: common law privilege. There are various privileges against testimony, against introducing evidence. In 1948, an Air Force bomber crashed in Georgia, killing everybody aboard. Among those killed were three civilians, allegedly on contract with the CIA, doing some sort of civilian research. The widow of one of the civilian workers sued the Air Force for wrongful death. In discovery, she asked the Air Force to produce the accident report. The Air Force comes back and says, "No, we cannot give you the accident report because it would reveal too much of the secret nature about the secret research they were doing, and it's a danger to national security, and it's a state secret." This goes up to the Supreme Court, which, in 1953, agrees with the Air Force and thus establishes the new common law privilege of state secrets. You can't be forced to reveal a state secret in a court. That's the original State Secrets Doctrine.

Now, it turns out that in 1996, the daughter of the plaintiffs found the now-declassified accident report on the Internet, and it said nothing about secret research or anything else. So, the case that established the privilege was a fraud. In fact, there was no issue of secrecy. The Air Force simply made it up because they didn't want to have to pay damages, or they didn't want to be embarrassed. The accident report did show the multiple careless errors that caused the plane to crash, which was really what the Air Force was hiding.

So, along comes the Bush administration. This use of the State Secrets Act had been used to say that you can't have this piece of evidence in a civil trial because it would reveal a state secret, and it was used very sparingly. The Bush administration made two changes. One, they started using it all the time, and two, they extended it. They used it not only to deny evidence in a court proceeding, but they also said, "O.K., you bring a lawsuit. Sue the CIA for torturing you, or kidnapping you," or whatever, and they would move to dismiss the case right up front, before anything happened in the case, on the grounds that the case itself is a state secret, or that hearing the case would necessitate the revelation of a state secret. And many courts said, yes, we'll dismiss the case merely on the assertion, without requiring the administration to prove it, even to the satisfaction of the court.

The danger of this is that, with respect to any right that any of us has, whether guaranteed by the Bill of Rights, the Constitution, the statute, whatever - how do you enforce it? There's an ancient maxim in law that says, "There is no right without a remedy." If you can't enforce a right, it doesn't mean anything. The only way you enforce a right, ultimately, is by suing, either for injunctive relief - stop doing that, says the court - or damages - give me damages because you should have done it, and don't do it again. If the administration can stop any lawsuit, right up front, by simply intoning the magic words, "state secrets," then there's nothing to protect any of our rights.

That's what Bush did, going through the courts. Now, I introduced legislation, as did Senators Kennedy, Leahy and Specter, back in 2006 or 2007, to make two changes to the State Secrets Act. One was to say you couldn't, on the basis of state secrets, move to dismiss a case right up front. You could move to suppress evidence and maybe the case gets dismissed because all the evidence gets suppressed, but you couldn't dismiss the case. Second, if you're asking that evidence be suppressed, you have to prove to a court in camera - the court is given authority to appoint security-cleared attorneys, a magistrate, and so forth - but you have to prove to the court that it is necessary to suppress this evidence. And if the court ultimately agrees, then is there a summary of the evidence that can substitute? And if the court ultimately says that you can admit the evidence, and the administration still says it's too dangerous, then O.K., you don't admit the evidence, but the point of fact to which the evidence is relevant is decided automatically against the government. And if the evidence is ultimately suppressed by the court because it really is too dangerous, then you have a more difficult situation. The court is instructed to act in the interest of justice, whatever that is.

Now, the administration has doubled down with the Bush administration in going into court and opposing any restriction on the State Secrets Act. And they came out with a statement a year ago May, essentially saying that they would be much more careful in its use, and they would be limited in it use, and only a committee including the deputy attorney general could authorize it.

AB: And have they followed through on that?

JN: Well, maybe, but it doesn't matter, because it's essentially still saying, "Trust us." And the Ninth Circuit Court of Appeals, in ruling on this question, at least the three-judge panel said - it was overturned later, 5-4, by a full panel - but the three-judge panel said that the executive could not be its own judge. And that's the key: no branch of government can judge its own actions.

So, essentially what they've put into place are things that are supposed to say, "Don't worry, we'll handle it better," and maybe they will, but what about their successors? Or maybe they won't. So far, they have used the State Secrets Act to frustrate everybody who's tried to get into court to allege torture or to allege rendition or illegal wiretapping.

AB: And the next question becomes, because that enables this now entrenched pattern of impunity, what does that mean, for people in other countries and for Americans?

JN: It's terrible. It's ultimately tyrannical. You cannot have anybody - certainly not the executive branch of government - have impunity. And that's what I meant when I said you have no rights unless you have a way of enforcing the rights. So far, there have been cases ... Canadian Parliament voted $10 or 12 million indemnity to Maher Arar for their role in giving the wrong information to the FBI, which then kidnapped him and he was rendered to Syria, where he was tortured. They eventually figured they got the wrong guy, and he was let go. He tried to sue in this country and he was stopped by the State Secrets Doctrine. So, our government doesn't admit anything. It's not held accountable for it's wrongdoing and it's not stopped.

AB: And they're so brazen about it. So, something I'd like to hear about from an insider like yourself is, what message do they think they're sending to the public, or do they care?

JN: I don't know. They've tried to send the message that they're going to behave better, that they're going to be more restrictive. But the fact is, on a lot of these civil liberties issues, they have essentially been the same. And the real problem with that is that it's worse when they do it than when Bush does it, because by their doing it, they institutionalize it.

In other words, when Bush did it and we screamed about it, we hope the Democrat who gets elected will repudiate it. By their going along with it, it becomes accepted. It's very much like Social Security and the Wagner Act - the National Labor Relations Act (NLRA) - instituted by the New Deal. You have the Democrats in power from 1932 to 1952 and they put this in. Republicans hate it, and they fulminate about it. In 1952, Eisenhower gets elected as a Republican, and, much to the chagrin of the right wing of the Republican Party, he doesn't seek to destroy Social Security and doesn't seek to repeal the NLRA. He trims it at the edges a little, but he basically accepts it. So, it becomes institutionalized; it becomes not controversial anymore. Same thing with Medicare. Johnson puts it in; the Republicans hate it. Nixon gets elected; he keeps it on, and by the time Reagan, who hates it, gets elected, it's too entrenched to do anything about it.

My great fear is that this very negative civil liberties stuff gets institutionalized because the Democrat goes along with it and doesn't do anything about it, and Democrats who might have been screaming when Bush did it now are sort of silent, and it becomes accepted, and it's precedent.

AB: And now that we're approaching the tenth anniversary of 9/11, what have we sacrificed over the last ten years in the name of national security? Can we ever get it back?

JN: Ever is a long time, so I'm not going to comment on that. But yeah, we had a torture regime under Bush. The torture has been at least nominally repudiated, but no one brought to task, no one prosecuted, except a couple of very low-level people at Abu Ghraib, and we now know that that was authorized from higher ups that no one touched. We also had state secrets used suddenly to stop trials; and we passed the Patriot Act, which has all the problems you know about; and we passed legislation to legitimize the illegal wiretapping that was done and to say you couldn't sue the telephone companies. All that is being institutionalized now. Things that wouldn't have been possible before 9/11 are now possible, and done - now what you read in the library can be surveilled. National Security Letters have been grossly abused, but they're still there, without the safeguards we tried to put on them.

And it's insidious, because rights gradually taken away aren't noticed until one day you say, "Wait a minute, where are we?" and it's usually too late.

AB: You're closely involved with civil rights issues, including gay rights. At the Senate hearing on your Respect for Marriage Act, it was pointed out that most Republicans under age 45 now support equal marriage rights. Public opinion seems to be shifting, but what do you think the prospects are for the bill?

JN: I think we will pass the bill eventually, not in this Congress because the Republicans won't allow us to take it up in the House. Maybe it'll go somewhere in the Senate this year, I don't know. It's certainly going to pass in the next few years. The question is, will the courts beat us to it? They may declare the Defense of Marriage Act (DOMA) unconstitutional before we get a chance to repeal it. The Respect for Marriage Act basically is a repeal of DOMA, as you know. There's a fair number of lawsuits that precede it; I think there's a fair likelihood that we'll win even at the Supreme Court level, and this may happen before we're able to pass the legislation. I just hope whichever can be faster goes.

AB: Former Weather Underground member Susan Rosenberg published a book this March about the years she spent in prison serving a 58-year sentence for weapons possession before Bill Clinton commuted the sentence in 2001.

JN: I was just reading the book last night!

AB: Rosenberg writes about the interest you took in her case. What motivated you to get involved?

JN: I was called up by Rabbi Roly Matalon, who's in the book, asking me to help her. The story was that she was in jail for a long time, her father was dying, she was an only child, her father desperately wanted to see her before she died. Prisons have a program under which, if the family pays for the armed guards, at the Bureau of Prison's discretion, you can get out of jail for a few hours to see your dying parent. Rosenberg's family had agreed to pay the $5,000 or whatever it was, and they were just refused. And I thought, this is ridiculous.

I spoke to the head of the Bureau of Prisons, and I said, "Be human. How can you not do this?" And he said to me, "Well, you know, she's still in contact with some of her terrorist friends from the outside." I said, "So?" And he said, "Well, you know, they're terrorists." Well, maybe they are, maybe they aren't, but again, "So?" And he said, "Well, it's very dangerous." And I said, "Wait a minute. She's going to be escorted by armed guards? What are you afraid of? Are you afraid that her terrorist friends - if they are in fact terrorists - will come and machine gun the guards and set her free on the way to the hospital or on the way back?" And he said, "Yes, that's exactly what we're afraid of." And I said, "O.K., let me ask you this. Susan's been moved from prison to prison; she's been in three or four prisons. How did you move her?" He said, "With armed guards." And I said, "Well, how come you weren't afraid of the same thing then?" And he said, "Well, we didn't tell anybody that we were going to move her, or where or when." I said, "Fine, don't tell anybody she's going to visit her father. Don't tell me, don't tell anybody, just make it happen."

AB: And did you ultimately help and pressure for her sentence to be commuted in 2001?

JN: I couldn't pressure, but I certainly helped, because I thought it was a failure of due process. She was accused of involvement in the Brinks robbery, in which a couple of cops were killed. She proclaimed that she was innocent of that. There were two Brinks trials. And in the second trial, which she could have been a member of, the evidence was so overwhelming that five of the seven accused were acquitted by the jury. Meanwhile, she was caught red-handed in possession, and of having transferred over state lines, dynamite and small arms, and other stuff. For this, she was sentenced to 58 years in jail, which was a hell of a sentence, you know, 59 months for this stick of dynamite, 59 months for that stick of dynamite.

AB: The sentence itself shows a certain political ...

JN: Listen, they should have been hostile to her. She went into court and she called the judge a pig, she advocated violence, she made all kinds of crazy statements. And the judge quite properly said she should not be considered for parole as long as she maintains her current attitudes.

Anyway, she's in jail for about 15 years. But meanwhile, she proclaims innocence in the case of the Brinks robbery, and she demands to be tried. US Attorney Rudy Giuliani says, "I'm not going to waste money trying her, she's in jail for 58 years anyway." But she claims she was innocent, and she was never convicted or tried. She goes to jail, goes through a lot of hell, changes her attitude, etcetera, etcetera.

Then she comes up for parole. The statute says that the parole board is supposed to ask three questions and grant parole if the three questions get the right answers, in its judgment. Question one: is the prisoner rehabilitated? Question two: would the prisoner's release at this point pose a threat to society? Three, would the prisoner's release at this point demean the gravity of the offense - in the other words, we don't let murderers out after two years even if they're no threat to anybody and they're rehabilitated.

The parole board makes a finding that she deserves parole under the statutes. However, they said, we will not grant parole now, and we will recommend that she not be considered for parole for another 15 years, because of the Brinks robbery. In other words, they were sentencing her for 15 years for something she denied and was never convicted of. And I thought this was just wrong.

AB: And she was held in an unusual prison at one point.

JN: It comes out in her book. I was just reading this last night. I didn't really know this too much. She and others were held under terrible solitary confinement in very severe conditions; there were three women held, in a three-woman jail, essentially, in Lexington, Kentucky. They built the jail specially for political prisoners. Hauling dynamite over state lines is not a political crime - it's a real crime, but they did it for political reasons. In any event, these so-called political people were kept in this prison, which was painted all white, sensory deprivation, separated from everybody else, in conditions designed to produce mental deterioration.

AB: Sounds like Guantanamo Bay.

JN: Well, arguably worse, I don't know. In any event, the American Civil Liberties Union and the Prisoner's Rights Project ultimately brought a lawsuit, and the courts ordered that prison destroyed. They said it was cruel and unusual punishment, a violation of international as well as American law. So, I urged the commutation because I thought it was a failure of due process.

There's one other failure of due process where I have urged, along with many others, that a prisoner ought to be freed, and that's Jonathan Pollard. This was the guy who spied for Israel. In 1985 or 1986, he comes up for sentencing. He makes a plea bargain with the government. In return for pleading guilty, they will not recommend the maximum sentence; that's the deal. The maximum sentence is life in prison. And, of course, the deal is made with the US attorney's office. So, he enters a plea of guilty. After he enters a plea of guilty, the Secretary of Defense, Caspar Weinberger, sends a memo to the court, saying this guy did all sorts of terrible things, and he's responsible for the deaths of American spies or whatever - which turned out not to be true - makes all sorts of allegations, and says it is imperative he receive a life sentence. This does seem to break the government's plea deal. The US attorney did not break the deal, but the secretary of defense came in over his head. Pollard asks to withdraw his plea; he says in those circumstances, I'll plead not guilty and let's go to trial.

They refused to let him withdraw his plea. He goes to jail. It's now been 25 years. And I think that the government broke its word. It's a failure of due process. It also gets involved with the Israeli issue, but forgetting that, the federal government should obey its word.

AB: Do you think you'll ever be heard on that?

JN: I don't know, but he's sick enough that it may not be a question pretty soon.

AB: Your district includes ground zero, which has been caught up, especially symbolically, in the struggle you're engaged in between security interests and civil liberties. Does that have an effect on your work?

JN: Yes and no. I was in the middle of the whole controversy over the Islamic cultural center, and I supported the right of the people to build it without interference. My position was, you know, religious freedom is at stake here, and people were looking to deny it for pretextual reasons, landmarking - they didn't really care about the landmarking. They were really looking to deny it because they were anti-Islamic, or because, you know, "It's a sacrilege; how dare you build a mosque" - not that it was really a mosque, but never mind small details - "how dare you build a mosque near hallowed grounds where the Muslims attacked us?" But wait a minute, the Muslims didn't attack us, al-Qaeda attacked us. You can't blame all Muslims, and you can't say you aren't going to permit religious liberty for Muslims in this country. I very much supported them. Of course, my Republican opponent last year tried to make that the major issue. In parts of my district, that would be effective, but frankly, you have to protect religious liberty.

AB: You also recently criticized this bill from Rep. Peter King that would protect terrorism tipsters from being sued by anyone they reported for suspicious activity.

JN: Yes, but that bill is widely misunderstood, and the criticism is widely misunderstood. There are principles of indemnity in law right now: if you, in good faith, complain to the police, or the airline pilot, about possible illegal activity, you're already protected; you're already indemnified. You don't need a new law for that purpose. The real problem with this bill - let's put it this way. Let's assume you think that I am a suspicious character, and that the satchel I'm carrying, oh my god, it may be a bomb. In fact it's my violin but, you know. So, you point it out to somebody. You're perfectly entitled to do that.

Now, I get really angry because the police hassled me as a result of this. Now, as long as you did it in good faith, you're going to win the lawsuit. On the other hand, I'm entitled to sue anybody for anything. O.K., however: the normal procedure is that you have to pay your attorney's fees. What Peter's bill says, is that in such a case, I would have to pay your attorney's fees, which would make it very, very dangerous for a victim of an improper identification. Let's assume that you weren't in good faith, that you just hated people who look like maybe they're Muslim, or had swarthy skin. Before I sue you, I have to be very careful, because if I lose the lawsuit, that could get expensive. It shifts the burden, and there's no good reason to do that. We're already protected, and the real issue is the attorney's fees, not the protection.

AB: So, you do think it would open things up more for profiling people based on national origin and so on?

JN: It would open it up somewhat more to profiling, but the fact is, you're already indemnified. And all the propaganda for the bill is, "You should be protected, you should be free to make a complaint." You already are.

AB: So what do you think their motivation is for trying to push it through?

JN: They want to make it easier for frivolous people, on a frivolous basis, to make a complaint.

AB: As we've seen with a bill like this, it's almost become taken for granted that people are going to be profiled as terror suspects based on their religion, based on their national origin. But you remain an outspoken critic of these types of practices. What is it like to work against the kind of momentum that's built up in this country since 9/11?

JN: You do what you can do. And you have to keep fighting. And you make progress slowly. Hopefully, you make progress eventually.

Alissa Bohling

Alissa Bohling is a former assistant editor and reporter at Truthout and the recipient of a 2013 Excellence in Online Journalism Award from the National Lesbian & Gay Journalists Association for her reporting on the war on terror's profiling of transgender people.


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One on One With Rep. Jerrold Nadler

Tuesday, 23 August 2011 06:11 By Alissa Bohling, Truthout | Interview
One on One With Rep Jerrold Nadler

Rep. Jerrold Nadler speaks at a rally for the ADA Amendements Act at the US Capitol. (Photo: Leadership Conference on Civil and Human Rights)

At a time when the freedoms many Americans once took for granted are under concerted attack, Rep. Jerry Nadler (D-New York) - a vocal proponent of civil liberties over his nearly 20 years in office - has a lot on his plate. Most recently, Nadler spoke out against the political maneuvering leading up to the debt deal. In a statement after his vote against the final "compromise," he criticized the Congressional "blackmailers" and their "unbalanced, callous plan that will strangle the middle class and working poor, to say nothing of the elderly and kids." As the country waits to see how the Congressional "supercommittee" will divvy up the required $1.5 trillion in cuts, Nadler spoke with Truthout about the political upheaval that has accompanied our ongoing economic turmoil.

Alissa Bohling: Under Obama, civil liberties have eroded even further than they did under Bush. He broke his campaign promise to close Guantanamo  and approved extending the most controversial PATRIOT Act provisions, among other things ...

Rep. Jerry Nadler: I think the president is subject to a lot of criticisms on civil liberties. I don't think breaking his campaign promise on closing Guantanamo is one of them. They have tried that, and they've been stymied by Congress. Everything else I'd probably agree with you.

AB: So, focusing just on the fact that he's approved extending the PATRIOT Act provisions, and that overall we've seen things erode under him - why do you think Obama's performance on civil liberties has received less attention than Bush's? Is it just the economic crisis or are there other factors?

JN: I don't know. I've certainly tried to raise concerns. You've got a number of things: they have a war on whistleblowers which is much more extensive than previous administrations. They're trying to extend, as a matter of law, the Espionage Act, although they're losing in court on that. The Espionage Act of 1917 makes it a crime to divulge secret information. Now, that's always been interpreted in the United States to mean that, if I am a government employee or CIA employee or Defense Department worker, and I have secret information and I give it to you and you publish it, I'm guilty of a crime, but you aren't. Because it's my duty not to divulge the information. You got the information, you're free to publish it: freedom of the press.

Now, that is not true under the Official Secrets Act in Great Britain. Attempts have been made from time to time in the United States to pass a law analogous to the Official Secrets Act and have always been rebuffed. The administration is trying, through a number of court prosecutions, to get the courts to interpret it as criminal for you to publish, as well as for me to give you the information. They haven't succeeded yet, but that would be very, very dangerous because that would shut down much of the information that we get.

For example, it's certainly a crime for whoever gave WikiLeaks the information if it was classified. It's not a crime, or it's never been considered a crime, for WikiLeaks to publish the information or to give it to The New York Times. And we don't want to extend that, because you'd really shut down freedom of the press to a large extent.

The worst issue is the state secrets issue. Obama hasn't been worse than Bush, but he's been equally bad, which is pretty bad. The real issue with state secrets is - I've got to give you a little history here, too, so you can put it in context. There are various evidentiary privileges. You can't be forced to testify against yourself in court - that's the privilege against self-incrimination; it's constitutionally based. You can't be forced to testify against your spouse: common law privilege. There are various privileges against testimony, against introducing evidence. In 1948, an Air Force bomber crashed in Georgia, killing everybody aboard. Among those killed were three civilians, allegedly on contract with the CIA, doing some sort of civilian research. The widow of one of the civilian workers sued the Air Force for wrongful death. In discovery, she asked the Air Force to produce the accident report. The Air Force comes back and says, "No, we cannot give you the accident report because it would reveal too much of the secret nature about the secret research they were doing, and it's a danger to national security, and it's a state secret." This goes up to the Supreme Court, which, in 1953, agrees with the Air Force and thus establishes the new common law privilege of state secrets. You can't be forced to reveal a state secret in a court. That's the original State Secrets Doctrine.

Now, it turns out that in 1996, the daughter of the plaintiffs found the now-declassified accident report on the Internet, and it said nothing about secret research or anything else. So, the case that established the privilege was a fraud. In fact, there was no issue of secrecy. The Air Force simply made it up because they didn't want to have to pay damages, or they didn't want to be embarrassed. The accident report did show the multiple careless errors that caused the plane to crash, which was really what the Air Force was hiding.

So, along comes the Bush administration. This use of the State Secrets Act had been used to say that you can't have this piece of evidence in a civil trial because it would reveal a state secret, and it was used very sparingly. The Bush administration made two changes. One, they started using it all the time, and two, they extended it. They used it not only to deny evidence in a court proceeding, but they also said, "O.K., you bring a lawsuit. Sue the CIA for torturing you, or kidnapping you," or whatever, and they would move to dismiss the case right up front, before anything happened in the case, on the grounds that the case itself is a state secret, or that hearing the case would necessitate the revelation of a state secret. And many courts said, yes, we'll dismiss the case merely on the assertion, without requiring the administration to prove it, even to the satisfaction of the court.

The danger of this is that, with respect to any right that any of us has, whether guaranteed by the Bill of Rights, the Constitution, the statute, whatever - how do you enforce it? There's an ancient maxim in law that says, "There is no right without a remedy." If you can't enforce a right, it doesn't mean anything. The only way you enforce a right, ultimately, is by suing, either for injunctive relief - stop doing that, says the court - or damages - give me damages because you should have done it, and don't do it again. If the administration can stop any lawsuit, right up front, by simply intoning the magic words, "state secrets," then there's nothing to protect any of our rights.

That's what Bush did, going through the courts. Now, I introduced legislation, as did Senators Kennedy, Leahy and Specter, back in 2006 or 2007, to make two changes to the State Secrets Act. One was to say you couldn't, on the basis of state secrets, move to dismiss a case right up front. You could move to suppress evidence and maybe the case gets dismissed because all the evidence gets suppressed, but you couldn't dismiss the case. Second, if you're asking that evidence be suppressed, you have to prove to a court in camera - the court is given authority to appoint security-cleared attorneys, a magistrate, and so forth - but you have to prove to the court that it is necessary to suppress this evidence. And if the court ultimately agrees, then is there a summary of the evidence that can substitute? And if the court ultimately says that you can admit the evidence, and the administration still says it's too dangerous, then O.K., you don't admit the evidence, but the point of fact to which the evidence is relevant is decided automatically against the government. And if the evidence is ultimately suppressed by the court because it really is too dangerous, then you have a more difficult situation. The court is instructed to act in the interest of justice, whatever that is.

Now, the administration has doubled down with the Bush administration in going into court and opposing any restriction on the State Secrets Act. And they came out with a statement a year ago May, essentially saying that they would be much more careful in its use, and they would be limited in it use, and only a committee including the deputy attorney general could authorize it.

AB: And have they followed through on that?

JN: Well, maybe, but it doesn't matter, because it's essentially still saying, "Trust us." And the Ninth Circuit Court of Appeals, in ruling on this question, at least the three-judge panel said - it was overturned later, 5-4, by a full panel - but the three-judge panel said that the executive could not be its own judge. And that's the key: no branch of government can judge its own actions.

So, essentially what they've put into place are things that are supposed to say, "Don't worry, we'll handle it better," and maybe they will, but what about their successors? Or maybe they won't. So far, they have used the State Secrets Act to frustrate everybody who's tried to get into court to allege torture or to allege rendition or illegal wiretapping.

AB: And the next question becomes, because that enables this now entrenched pattern of impunity, what does that mean, for people in other countries and for Americans?

JN: It's terrible. It's ultimately tyrannical. You cannot have anybody - certainly not the executive branch of government - have impunity. And that's what I meant when I said you have no rights unless you have a way of enforcing the rights. So far, there have been cases ... Canadian Parliament voted $10 or 12 million indemnity to Maher Arar for their role in giving the wrong information to the FBI, which then kidnapped him and he was rendered to Syria, where he was tortured. They eventually figured they got the wrong guy, and he was let go. He tried to sue in this country and he was stopped by the State Secrets Doctrine. So, our government doesn't admit anything. It's not held accountable for it's wrongdoing and it's not stopped.

AB: And they're so brazen about it. So, something I'd like to hear about from an insider like yourself is, what message do they think they're sending to the public, or do they care?

JN: I don't know. They've tried to send the message that they're going to behave better, that they're going to be more restrictive. But the fact is, on a lot of these civil liberties issues, they have essentially been the same. And the real problem with that is that it's worse when they do it than when Bush does it, because by their doing it, they institutionalize it.

In other words, when Bush did it and we screamed about it, we hope the Democrat who gets elected will repudiate it. By their going along with it, it becomes accepted. It's very much like Social Security and the Wagner Act - the National Labor Relations Act (NLRA) - instituted by the New Deal. You have the Democrats in power from 1932 to 1952 and they put this in. Republicans hate it, and they fulminate about it. In 1952, Eisenhower gets elected as a Republican, and, much to the chagrin of the right wing of the Republican Party, he doesn't seek to destroy Social Security and doesn't seek to repeal the NLRA. He trims it at the edges a little, but he basically accepts it. So, it becomes institutionalized; it becomes not controversial anymore. Same thing with Medicare. Johnson puts it in; the Republicans hate it. Nixon gets elected; he keeps it on, and by the time Reagan, who hates it, gets elected, it's too entrenched to do anything about it.

My great fear is that this very negative civil liberties stuff gets institutionalized because the Democrat goes along with it and doesn't do anything about it, and Democrats who might have been screaming when Bush did it now are sort of silent, and it becomes accepted, and it's precedent.

AB: And now that we're approaching the tenth anniversary of 9/11, what have we sacrificed over the last ten years in the name of national security? Can we ever get it back?

JN: Ever is a long time, so I'm not going to comment on that. But yeah, we had a torture regime under Bush. The torture has been at least nominally repudiated, but no one brought to task, no one prosecuted, except a couple of very low-level people at Abu Ghraib, and we now know that that was authorized from higher ups that no one touched. We also had state secrets used suddenly to stop trials; and we passed the Patriot Act, which has all the problems you know about; and we passed legislation to legitimize the illegal wiretapping that was done and to say you couldn't sue the telephone companies. All that is being institutionalized now. Things that wouldn't have been possible before 9/11 are now possible, and done - now what you read in the library can be surveilled. National Security Letters have been grossly abused, but they're still there, without the safeguards we tried to put on them.

And it's insidious, because rights gradually taken away aren't noticed until one day you say, "Wait a minute, where are we?" and it's usually too late.

AB: You're closely involved with civil rights issues, including gay rights. At the Senate hearing on your Respect for Marriage Act, it was pointed out that most Republicans under age 45 now support equal marriage rights. Public opinion seems to be shifting, but what do you think the prospects are for the bill?

JN: I think we will pass the bill eventually, not in this Congress because the Republicans won't allow us to take it up in the House. Maybe it'll go somewhere in the Senate this year, I don't know. It's certainly going to pass in the next few years. The question is, will the courts beat us to it? They may declare the Defense of Marriage Act (DOMA) unconstitutional before we get a chance to repeal it. The Respect for Marriage Act basically is a repeal of DOMA, as you know. There's a fair number of lawsuits that precede it; I think there's a fair likelihood that we'll win even at the Supreme Court level, and this may happen before we're able to pass the legislation. I just hope whichever can be faster goes.

AB: Former Weather Underground member Susan Rosenberg published a book this March about the years she spent in prison serving a 58-year sentence for weapons possession before Bill Clinton commuted the sentence in 2001.

JN: I was just reading the book last night!

AB: Rosenberg writes about the interest you took in her case. What motivated you to get involved?

JN: I was called up by Rabbi Roly Matalon, who's in the book, asking me to help her. The story was that she was in jail for a long time, her father was dying, she was an only child, her father desperately wanted to see her before she died. Prisons have a program under which, if the family pays for the armed guards, at the Bureau of Prison's discretion, you can get out of jail for a few hours to see your dying parent. Rosenberg's family had agreed to pay the $5,000 or whatever it was, and they were just refused. And I thought, this is ridiculous.

I spoke to the head of the Bureau of Prisons, and I said, "Be human. How can you not do this?" And he said to me, "Well, you know, she's still in contact with some of her terrorist friends from the outside." I said, "So?" And he said, "Well, you know, they're terrorists." Well, maybe they are, maybe they aren't, but again, "So?" And he said, "Well, it's very dangerous." And I said, "Wait a minute. She's going to be escorted by armed guards? What are you afraid of? Are you afraid that her terrorist friends - if they are in fact terrorists - will come and machine gun the guards and set her free on the way to the hospital or on the way back?" And he said, "Yes, that's exactly what we're afraid of." And I said, "O.K., let me ask you this. Susan's been moved from prison to prison; she's been in three or four prisons. How did you move her?" He said, "With armed guards." And I said, "Well, how come you weren't afraid of the same thing then?" And he said, "Well, we didn't tell anybody that we were going to move her, or where or when." I said, "Fine, don't tell anybody she's going to visit her father. Don't tell me, don't tell anybody, just make it happen."

AB: And did you ultimately help and pressure for her sentence to be commuted in 2001?

JN: I couldn't pressure, but I certainly helped, because I thought it was a failure of due process. She was accused of involvement in the Brinks robbery, in which a couple of cops were killed. She proclaimed that she was innocent of that. There were two Brinks trials. And in the second trial, which she could have been a member of, the evidence was so overwhelming that five of the seven accused were acquitted by the jury. Meanwhile, she was caught red-handed in possession, and of having transferred over state lines, dynamite and small arms, and other stuff. For this, she was sentenced to 58 years in jail, which was a hell of a sentence, you know, 59 months for this stick of dynamite, 59 months for that stick of dynamite.

AB: The sentence itself shows a certain political ...

JN: Listen, they should have been hostile to her. She went into court and she called the judge a pig, she advocated violence, she made all kinds of crazy statements. And the judge quite properly said she should not be considered for parole as long as she maintains her current attitudes.

Anyway, she's in jail for about 15 years. But meanwhile, she proclaims innocence in the case of the Brinks robbery, and she demands to be tried. US Attorney Rudy Giuliani says, "I'm not going to waste money trying her, she's in jail for 58 years anyway." But she claims she was innocent, and she was never convicted or tried. She goes to jail, goes through a lot of hell, changes her attitude, etcetera, etcetera.

Then she comes up for parole. The statute says that the parole board is supposed to ask three questions and grant parole if the three questions get the right answers, in its judgment. Question one: is the prisoner rehabilitated? Question two: would the prisoner's release at this point pose a threat to society? Three, would the prisoner's release at this point demean the gravity of the offense - in the other words, we don't let murderers out after two years even if they're no threat to anybody and they're rehabilitated.

The parole board makes a finding that she deserves parole under the statutes. However, they said, we will not grant parole now, and we will recommend that she not be considered for parole for another 15 years, because of the Brinks robbery. In other words, they were sentencing her for 15 years for something she denied and was never convicted of. And I thought this was just wrong.

AB: And she was held in an unusual prison at one point.

JN: It comes out in her book. I was just reading this last night. I didn't really know this too much. She and others were held under terrible solitary confinement in very severe conditions; there were three women held, in a three-woman jail, essentially, in Lexington, Kentucky. They built the jail specially for political prisoners. Hauling dynamite over state lines is not a political crime - it's a real crime, but they did it for political reasons. In any event, these so-called political people were kept in this prison, which was painted all white, sensory deprivation, separated from everybody else, in conditions designed to produce mental deterioration.

AB: Sounds like Guantanamo Bay.

JN: Well, arguably worse, I don't know. In any event, the American Civil Liberties Union and the Prisoner's Rights Project ultimately brought a lawsuit, and the courts ordered that prison destroyed. They said it was cruel and unusual punishment, a violation of international as well as American law. So, I urged the commutation because I thought it was a failure of due process.

There's one other failure of due process where I have urged, along with many others, that a prisoner ought to be freed, and that's Jonathan Pollard. This was the guy who spied for Israel. In 1985 or 1986, he comes up for sentencing. He makes a plea bargain with the government. In return for pleading guilty, they will not recommend the maximum sentence; that's the deal. The maximum sentence is life in prison. And, of course, the deal is made with the US attorney's office. So, he enters a plea of guilty. After he enters a plea of guilty, the Secretary of Defense, Caspar Weinberger, sends a memo to the court, saying this guy did all sorts of terrible things, and he's responsible for the deaths of American spies or whatever - which turned out not to be true - makes all sorts of allegations, and says it is imperative he receive a life sentence. This does seem to break the government's plea deal. The US attorney did not break the deal, but the secretary of defense came in over his head. Pollard asks to withdraw his plea; he says in those circumstances, I'll plead not guilty and let's go to trial.

They refused to let him withdraw his plea. He goes to jail. It's now been 25 years. And I think that the government broke its word. It's a failure of due process. It also gets involved with the Israeli issue, but forgetting that, the federal government should obey its word.

AB: Do you think you'll ever be heard on that?

JN: I don't know, but he's sick enough that it may not be a question pretty soon.

AB: Your district includes ground zero, which has been caught up, especially symbolically, in the struggle you're engaged in between security interests and civil liberties. Does that have an effect on your work?

JN: Yes and no. I was in the middle of the whole controversy over the Islamic cultural center, and I supported the right of the people to build it without interference. My position was, you know, religious freedom is at stake here, and people were looking to deny it for pretextual reasons, landmarking - they didn't really care about the landmarking. They were really looking to deny it because they were anti-Islamic, or because, you know, "It's a sacrilege; how dare you build a mosque" - not that it was really a mosque, but never mind small details - "how dare you build a mosque near hallowed grounds where the Muslims attacked us?" But wait a minute, the Muslims didn't attack us, al-Qaeda attacked us. You can't blame all Muslims, and you can't say you aren't going to permit religious liberty for Muslims in this country. I very much supported them. Of course, my Republican opponent last year tried to make that the major issue. In parts of my district, that would be effective, but frankly, you have to protect religious liberty.

AB: You also recently criticized this bill from Rep. Peter King that would protect terrorism tipsters from being sued by anyone they reported for suspicious activity.

JN: Yes, but that bill is widely misunderstood, and the criticism is widely misunderstood. There are principles of indemnity in law right now: if you, in good faith, complain to the police, or the airline pilot, about possible illegal activity, you're already protected; you're already indemnified. You don't need a new law for that purpose. The real problem with this bill - let's put it this way. Let's assume you think that I am a suspicious character, and that the satchel I'm carrying, oh my god, it may be a bomb. In fact it's my violin but, you know. So, you point it out to somebody. You're perfectly entitled to do that.

Now, I get really angry because the police hassled me as a result of this. Now, as long as you did it in good faith, you're going to win the lawsuit. On the other hand, I'm entitled to sue anybody for anything. O.K., however: the normal procedure is that you have to pay your attorney's fees. What Peter's bill says, is that in such a case, I would have to pay your attorney's fees, which would make it very, very dangerous for a victim of an improper identification. Let's assume that you weren't in good faith, that you just hated people who look like maybe they're Muslim, or had swarthy skin. Before I sue you, I have to be very careful, because if I lose the lawsuit, that could get expensive. It shifts the burden, and there's no good reason to do that. We're already protected, and the real issue is the attorney's fees, not the protection.

AB: So, you do think it would open things up more for profiling people based on national origin and so on?

JN: It would open it up somewhat more to profiling, but the fact is, you're already indemnified. And all the propaganda for the bill is, "You should be protected, you should be free to make a complaint." You already are.

AB: So what do you think their motivation is for trying to push it through?

JN: They want to make it easier for frivolous people, on a frivolous basis, to make a complaint.

AB: As we've seen with a bill like this, it's almost become taken for granted that people are going to be profiled as terror suspects based on their religion, based on their national origin. But you remain an outspoken critic of these types of practices. What is it like to work against the kind of momentum that's built up in this country since 9/11?

JN: You do what you can do. And you have to keep fighting. And you make progress slowly. Hopefully, you make progress eventually.

Alissa Bohling

Alissa Bohling is a former assistant editor and reporter at Truthout and the recipient of a 2013 Excellence in Online Journalism Award from the National Lesbian & Gay Journalists Association for her reporting on the war on terror's profiling of transgender people.


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