Session to interview Edward Epstein on his book how americat lost its secrets, the man and the fact. Books will be available on a firstcome firstserved basis. A quick reminder there is no qanda. We have podcasts so if you missed anything you can listen m to the podcast available. A quick introduction the cochair he is also a professor of law at harvard university. Thanks for coming tonight. The author and editor of the book the trial i and the memo ws targeted killings in the secrecy of the law much of the book contains the roots. The litigation involved in the nose and why zero he was the deputy legal director at the person in charge at the aclu sees the first director of the institute of Columbia University and started out his career as an attorney at aclu and first Transparency Initiative during t the Bush Administration very aggressively and get access to information for the bushn administration. The book starts off with 55 or so essays that they must read aa and a fundamental critique of the Obama Administrations mem memos. This began and the administration and how you got into the business of the other litigation and the government and what you thought you were doing and how you came to do it. Thanks to the Hoover Institution for having me. I dont get many invitations to speak. So yes, we did a lot of work on the National Security project. I start at the aclu in 2002 and even before that i was doing work in the weeks and months before 9 11 than the national securit9 11 and defend thenatiod existed until 1990 but it was shut down and it was resurrected after 9 11 and i started working in that group that became formalized and we worked on issues ranging from government surveillance to ideological exclusions of the scholars because of their political views. We worked on issues of National Security and then interrogation. A lot of my energy was spent in the administration on trying to control the government to be more forthcoming about the interrogation of policies. We had some success in forcing the government to disclose what turned out to be evidence of the torture of prisoners at guantanamo and the sites. The banthen when the Obama Administration took office, president obama now famously disclosed that remaining document we have been litigating for, that had been the foundation for the cia. Were you out of business at that point . Sort of, yes. I had very high hopes for the Obama Administration and it was clear we would have a tv over litigation for would have gone n in the previous years. But from my perspective, the first few months were really in the heady times because the torture memos were disclosed. As everybody knows, one of the first acts was to disavow torture and reverse the transparency presumption. He committed to close guantanamo. Some of the cases were settled in the first few months after president obama took office. The ideological exclusion cases were on behalf of the organizations for the cases were related to the scholars that have been excluded and both of them were settled and it was actually the state department under secretary clinton agreed to allow them to come back. So there were a lot of positive developments first few months of vendor for reasons many have discussed in the Obama Administration they took a turn six months into the administration and generated a lot. To make sure that i understand, youre talking about the ramp up to the program and the use of the unmanned vehicles to target and engage in legal force. The techniques were used under the Bush Administration but ramped up significantly in the Obama Administration. What was your reaction when that happened and how did you force these documents as well just as you have done in the interrogation documents . What was the concern . I guess there were parallel concerns. One was the transparency in the news articles in 2009, 2010 about the ramp up of the program we were interested to know who were only targeting. That was kind of a transparency concern that we had raised with respect to other programs. And then right at the end of 2009 and the beginning of 2010, there were news reports that the government was going to target this american citizen and we there were these new stories in the 2010 indicating that the cia and the special forces were spee targeting this american citizen. In other words intended to kill this american citizen. The proposal was essentially two years they have proposed extrajudicial attention. There were differences but its an awesome use of power by the government. It was the subject. One results in the Collateral Damage. They are expressing some degree of concern about this proposed targeting. Why he was being targeted input process had taken place, what process the administration was proposing to comply with or what kind of judicial process it had in mind for the kind of killings is a part of the letter was to suggest they should be a little bit more forthcoming about the policies. Maybe talk about the client independent we will get into the merits. In may of 2010, one of my colleagues and i went to yemen to meet with the father of percy was intended to kill. We met with him and hes a very interesting guy and spent a lot of time in the United States and had a phd here and had taught economics here in the u. S. And have gone back to yemen where he became the president of the university and the minister of agriculture and yemen and have close ties to the United States but he had this son could become public enemy number one. So she was very conflicted about this situation. Though obviously his loyalty was to his son. He said to us cannot possibly be right th but government can tart my son like this without presenting evidence to anyone or saying what he is accused of because at the time all we had was the leaks to the media and we agreed it doesnt seem right to us either. So we put together this lawsuit to essentially ask the courts to weigh in on the scope of the force and we filed suit in the summer of 2010. So you lost that at the district level on standing grounds. And allpurpose statement [laughter] so you lost that lawsuit and he was eventually targeted and killed in a month or week later his son was killed in Collateral Damage and then youve got another lawsuit. The Collateral Damage his son was killed in a strike and the government never explained what it was meant to do more who they were targeting. It was leaked to the media suggestinsuggesting some of thoe targeted by this 16yearold american kid was killed in a separate strike and the government has never provided an on the record account. Another case, you lost a lot of the cases that you want some too. The point was to try to get the courts to say what the law was and they are saying we are going to kill this american citizen because he presents some kind of an unspecified threat to the United States and we said there are limits especially against its own citizen and the court has a role in articulating what those limits are and essentially they said no. This question of who constitutes a legitimate target for the legal force is a question committed to the political branches and not one on which the courts have any role to play. That was the first case. Then he was killed in a stricken 2010 and his son was killed in a separate strike ten months later and we filed another suit. This one an effort to compel the government to provide evidence to the actions already carried out. The argument we made it to the court was we understand the courts have accepted that the government can carry out these kind of actions without first presenting evidence to the court that we think it ought to be required after the fact in the same way that if police use lethal force here on the streets of washington, d. C. After the fact they can be brought to court and forced to defend their use of force. Once again we lost this time on the grounds that bring mideast is available in other contexts including that i just described here are not available for special factors to emphasize, getting relief has rarely been done in history so these are longshot cases. And the grounds on which you lost were standing in the political question. The power is also a novel power that the idea that government is going to deliberately target one of its own citizens and you say in wartime ensure we are going to get to that. Even the government didnt recognize that an actual battlefield so they were novel. That is a fair point. The assertion of power americans have been killed in wartime and world war ii and the like but never targeted like this were outside the traditional battlefield but a topic we will get back to in a second. Theres another line of litigation challenging the authority. Freedom of information lawsuits and documents related to the program not unlike the litigation and the Bush Administration. There it its fair to say he won a big case in the Second Circuit and the opinion that supported the drone strike was revealed in connection to the judge being confirmed so i think you just look at the litigation you would say there were a few Small Victories and yet i would suggest that as soon as the litigation began the government started revealing more information and giving speeches on the topic and revealing information voluntarily. Ultimately even though you told the story how a defens they coue ruled the right way you got all these documents so it was a success in the transparency would you agree with that . No. We had some success july 2010 the office of Legal Counsel that was the justice departments green light for the killing of aand bar are and in a formal set was released in response to the litigation and the president ial policy guidance was a document he Obama Administration put in place in may of 2132 normalize the Drone Program so yes we had those successes but its important to realize and recognize the limits because its important for people to understand to what extent transparency is a matter of grace. We have these landmark victories we managed to get out of the circuit. The dc circuit held i think in 2013 that the cia could no longer refuse to confirm or deny that it had documents about the campaign so for several years the position had been when we ask for information response was what campaign. That was a response they rejected in this opinion. It was a big victory because it is very rare almost unheard of that a federal court, let alone an Appeals Court would overrule or secondguess the determination of whether information is properly classified or not and in a sense they were saying the mere fact we have a campaign is properly classified so from the litigation perspective that is a big victory. The other was the circuit case which the Court Required o the Obama Administration to release this man now and again a big victory because this is a memo to government argued was properly classified and the release would cause great damage to National Security. The threejudge panel unanimously announced they had to release. And the judge of that court review not thought of as a progressive was a part of the panel. But the memo was released on the grounds of official acknowledgments of the argued the government shouldnt be able to keep this secret when it has effectively acknowledged the content of the memos t they released them through other documents in the public statements and that was the argument the court adopted so we won on thone on the grounds thae Court Essentially said you already have the information youre asking for so there is no harm in giving you the information and. In practical terms it was. Ltd. Never in the history of american warfare has any particular technique or part of a campaign been so legalized by the government or the paper you are referring to get in the documents they released last month and extensive analysis governing the use of force in International Domestic law i would say we have much more information now than we ever had about the legal basis and that the Legal Process and we know a lot about it so why is this a success for transparency . A couple things. First, you are right we know a lot about this. Its more than we know and others. The comparison we had strikes off the battlefield, weve had irregular forces in lots of different contexts. World war ii of course you have to be careful about the comparisons. Thats why we have the height of the legalized era which theyve legalized things like crazy and why youve been going after them to learn more. I am proud of the work we did. I dont want to overstate the victory. Its important for people to realize at the end of the day it was executive. This political pressure in part that you brought. The fact of the matter you raised the temperature significantly, you hit a nerve and debated a lot more insight as a result and they published a lot more. I dont understand why this is a large victory for the transparency wartime. Some say way too much transparency because its being observed and too much time spent figuring out the cases. Thats why arent you happy . You and i disagree. Partly it is a matter of timing. We titled the litigation in 2010 and got the memo in 2015 or 2014. Often what happens with this kind of secrecy is it allows the government to create facts on the ground and by the time it gets disclosed its no longer realistic for anybody to go back and revisit the decisions. A time for making the decision is passed and the public is excluded from the decisionmaking and then given thgivethem the information onlyn its too late. Said the public is excluded from the decisions that we are talking about. They are made at the highest levels of government, ultimately by the president to use force in the war authorized by congress and you could argue about the International Law issues but at least with regards to the Islamic State which you argue about that this is an authorized war and the president is making a decision about how to use force and the American People were never involved in the decision. How would you like them to be involved in the decision . The Obama Administration didnt get the documents until 2016 in the president ial policy guidance but you could imagine a debate in 2010 about the scope of the Governments Authority to use legal force against one of its own citizens and the decisionmaking that precedes the use of that force. You could imagine a public debate about should the government be required to go to a judge before or after. Canned by government use force against people who dont present a truly imminent threat. You could imagine that but it never took place. There was a moment in 2012 or 2013 where congress got engaged in that set of questions and in fact senator feinstein proposed at one point she would hold hearings on the appropriateness of the court and eric clapper said at one point he thought there were merits to the argument and there ought to be another branch involved. Do you think that is a good idea . No i dont. For Different Reasons than you but [laughter] one day youre gettin you are court involved and they will not use the force in the campaign authorized by congress and it will heighten the legitimacy of whats going on. But also the military decisionmaking to put it lightly. Why dont you want to . My opposition isnt getting the courts involved. We already have courts whose role it is to check the governments use of lethal force against its own citizens but i think that the appropriate venue and time is after the fact and the obvious response to that is afterthefact is too late and that is true but if you accept and begin with the assumption which is my proposition that the Governments Authority to use legal force comes into question without a prior review comes into play when the threat is truly imminent then by definition it is infeasible to have the review before the use of legal force and the threat is won by definition doesnt allow for the prior judicial review. That would force the court to judge the legality of the strike thats right and it would include the validity of the work thats right. Its a suit brought under the Fourth Amendment in the same way that Excessive Force cases are brought here. It would look very much like a. I expected the outcome would be very much like a hideous cases. The court of appeals ultimately would say you know little around the margins to make it look like you are doing something but in fact aokay thumbs and then youve got real legitimacy for what the president is doing. I think thats a fair characterization of what the d. C. Has been with the habeas corpus is. If you recall the District Courts were actually much more engaged or aggressive at scrutinizing the governments arguments but yes because of the makeup of the d. C. Circuit is if the cases are brought in the d. C. Circuit. Let me it is true that the history of these lawsuits has been one that courts have been quite understandably extremely hesitant to secondguess the president and his military decisions even afterthefact the embarrassment to the president is something the courts would bend over backwards to avoid even more than they hate this case where you are talking about the release of a detainee. Here you are talking about declaring the war legal. I think the pressure on and the judge in that sort of sense is going to be much more in support of the president. Thats exactly why these cases piled at the level. You may be right. You are certainly right that in the National Security cases generally the courts tend to be very deferential to the effect of branch. If you look at the fisa court you see that reference all over the place and the hagee is cases its true that the government gets lots of deference. I think at the margins that judicial review is a useful thing and there are ways for courts to actually uphold what the government has done while narrowing the afford authority Going Forward so one accord appears to be in a specific case deferring to the government decisions that can articulate a rule that has the constraining effect Going Forward. Theres another benefit i think to having the judiciary involves , so right now the government has a choice of using legal force and the never having to attempt the use of legal lethal force or possibly capturing the person and having to submit evidence in a criminal trial, not just the courts that the public to invest habeas decision and i dont think it takes, you dont have to be paranoid about using government power to see that the structure the government is going to lean towards killing even when capture is a possibility because you dont have to account for your actions when you kill like you do when you capture. You know so i think the judges, if judges could move that line with the use of legal force that would the a. Useful thing and the transparency comes with judicial process i think force is a kind of ownership over policy that is a very healthy thing for democracy. I think it forces all of us to own the policy in a way that we dont when its kept secret. How can judges enforce back . So right now and it was certainly true in 2010 and is less now but in 2010 all the strikes were rarely acknowledged that they were never formally acknowledged. We never knew who they were targeting. We didnt know the scope. Essentially we did know who was king killed and we didnt know why they were being killed. I think its very easy for us to forget about that when the effects of the program are so distant and so mysterious and shrouded in secrecy. When you have judicial process societal ownership over the policy and and i think thats a hell of a thing and i think he would have made a difference for the torture debate especially if there had been an earlier debate a couple of points. You did force the torture debate. The american side was engaged by bipartisan push back. I agree but is stopped in its tracks four years later. Journalists made public they didnt like what they saw and they pushed back. I think we did have a debate in this country in large part because of the litigation you brought in because of the drone strike against the american citizens. It was a very robust debate and the government became much more transparent but i think the country reacted differently to the drone strike sunday have taken nonsupport. They have not expressed congressional legislation on up to the issues have been wholly debated in large part and its a success for story for you in the end up largely debate is a strong word but basically people didnt mind what they saw. I think theres an annulment of truth to that. The Drone Program that the public ultimately endorsed is an arrow in the Drone Program that the Obama Administration today is. As you point out in your essay policy front. They narrowed it down when they said they sequellae are not going to have any civilian casualties even though they continued to narrow plate criteria but i dont understand and again im sorry to go back to the same thing, this should be a huge Success Story for you even though it didnt turn out in the end the way you thought it should. He basically did engage the country and you engage the government. They did know what they were doing and they just didnt stop. I dont think the courts played a role. Although that litigation when the administration had to defend it we have learned a lot from that litigation and im quite confident inside the government they were forced to get their acts act much more and order in terms of Legal Process. I think its all part of the same environment and you are responsible for a. Thank you. Also responsible for here the American People basically said for a brady of reasons and maybe not good reasons we are okay with this. First transparency from ice perspective is not just instrumental. I understand sometimes youre going to demand that the government make information secret and people are going to disagree with you about what the information signifies our how it should be understood. I understand that and i think to the extent we were able to force transparency that was a success whatever happened afterwards. I do think that, i will tell you one. We had many losses under my leadership that the aclu but family didnt always appeal but if there is one law that i wish we had the opportunity to appeal its the second because i do think that the Appeals Court and the Supreme Court might have reacted differently than the District Court did. If you look at the harmony case and if you look at scalias defense in the on the case essentially this is not the line that i would draw but the line that was important to him was citizenship. He felt very strongly that with the u. S. Citizen and government has different obligations and he said you need at the very least explicit congressional authority. He would have gone further and said the criminal trial i think you would have because the american citizen was involved. I just want to mention a point that you and i have talked about a lot but so the audience understands when you bring these cases especially the case of the war you always run the risk that you are going to lose and set a bad precedent. I think its just part of doing business when you are in that type of litigation. How do you think about the tradeoff of an important case to bring. Theres a chance of winning and do we appeal and how much do you worry and there must be cases where you just think you will make up that precedent. Do you think thats an important tradeoff . It is and whether we made the right tabulations history will judge. It probably while. Its counterfactual with that stuff. Their different ways to lose cases and a few loose cases at the threshold thats a very frustrating thing. Its a political question doctrine but you dont do damage to law on the merits. There is no decision out there in which a court has weighed in on the lawfulness of targeting the law. Of course you know we do create a precedent. We do have this District Court decision out there that says this kind of question is a political question but that those kinds of decisions are often so fact bound that im not sure how much precedent they actually have. They do allow the government to stand up and say you have a federal court ruling saying its not the court. Thats what you lost. Thats right to the truth as they were saying that before. When we bring these cases we try not to bring cases that are clear losers. We usually bring cases when we think theres an opportunity to do some good but we would always take into account the public debate in the way the case would inform or enrich or affect the public debate. Sometimes an important reason to bring one of these cases was there isnt debate about something to debate about or the debate is focused on the wrong issues in the case will move. I think he did that. One of the things i was struck about him by the way you get two books in one because you have all these great Important Documents and theres really consequential essay that jameel row. I was struck in the essay on what i think was a paradox. On the one hand you are saying there is no rule of law here, only barely paraphrasing. There is no rule of law in the drone agram. On the other hand the documents reveal this highly bee rock or ties highly legalized internal process where its just been lawyer to death and the processes are very elaborate and there are a lot of words. That seems like a paradox to me. I think it is kind of a paradox. Its one of the points i try to make an introduction that you think that there is a lot of law here but its not really law. A lot of the terms that the administration, the administration deliberately chose terms that sounded like constraints but redefining those terms so they werent that constraining. The operative terms were cherrypicked indifferently law regimes and even to the extent that the government has adopted a free market in regard to that framework and the policy framework rather than a legally binding one and even its recognized as legally binding rule those rules arent enforceable in any court so i wouldnt go as far as to say its completely lawless. I dont think its completely lawless but the fact that its saturated with the language of law doesnt mean the government is actually operating under a set of rules that are constraining. Im not sure we have time to talk about it. We have a new administration we will see what they do. Theres a restrictive policy over. Forgiving and expansive legal regime. I agree with the legal regime itself. A couple of points the reason cherrypicking is the lies you said earlier they are trying to negotiate their way to three or four different legal regimes and inevitably in this new context there is going to be melding of different areas of law. If think its straining the example but i agree with you also there are tons of discretion and subordinates about whom to target. I dont think thats any different than any prior war. In fact it has to be the case for these highlevel detainees encoding alawlaki by particular strikes that may be for the nuclear strikes at the end of world war ii or the giant bombing campaigns in germany there have been then this much deliberation at the top of an administration before. The situation is novel. I think you are right. Inside the executive branch but when youre talking about surprising an american citizen we have never before said executive process this is the first time anybody has ever said executive process is sufficient. Even there you have judicial process. Well, we are out of time. One of my main complaints of the counsel memo is that the lawyers who write that memo green lighting the killing of alawlaki say you have to provide general process before the fact. Im have to go to a judge before and imprisoning your evidence. They never said that that assumes the judicial process is available afterthefact i and i dont think you can answer the constitutional question in a vacuum looking only at whats required before a. If you account the availability or unavailability. Last question. Even though you want to downplay your successes you were hugely consequential during the bush demonstrations and prying out a lot of stuff from the Bush Administration and the debate regarding sparking debate that changed legitimation in my view. Have we moved on from the aclu heading up the center in columbia can you tell us what you see as the big issues in the First Amendment area and interrogation and detention and drums. I think source protection of whistleblowers. I think theyre a bunch of issues that are free speech issues that arent First Amendment issues. Now a lot of things in the hands of private actors in this question up what those private actors can and should do with that power is hugely consequential and then there are some issues that overlap the surveillance issues and the First Amendment limiting government surveillance that is an important set of issues and will become more important under this administration. Government secrecy around National Security and the First Amendment issue the right of access to information and i anticipate ending up with those cases. Congratulations on a great hook. Thanks. [applause] [inaudible conversations] [inaudible conversations]
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