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Jameel Jaffer - America Wouldn’t Give Snowden a Fair Trial - Harvard Political Review 20151122

Jameel Jaffer - America Wouldn’t Give Snowden a Fair Trial - Harvard Political Review 20151122

Jameel Jaffer is a deputy legal director of the American Civil Liberties Union.

Harvard Political Review: What do you do at the ACLU?

Jameel Jaffer: I direct something called the Center for Democracy, which houses the ACLU’s work on free speech, privacy, national security, and human rights. I also litigate cases myself, particularly cases having to do with national security and civil liberty.

Our cases tend to raise issues of first impression, or issues that are deeply contested. Issues like gay marriage, the Kim Davis case being one such example. Cases that require reconciling different rights are both difficult and fascinating. We believe in the freedom of conscience, and we don’t believe the government has a limitless interest in enforcing its laws. On the other hand, if you take the right to refuse service to its logical limit, you completely gut any concept of equality. If you look at the civil rights movement of the 1960s and 1970s, there were groups that said the same things about interracial marriage that some are saying about gay marriage now.

My own docket is relatively narrow, because I also have management responsibilities. At the moment it consists of cases involving government surveillance, particularly cases that have grown out of the Edward Snowden disclosures. I’m also litigating several cases involving the CIA’s targeted killing program. A couple of years ago, we represented the families of U.S. citizens killed by the CIA in Yemen. More recently, we’ve been trying to force the Justice Department to disclose the purported legal basis for the drone program, as well as information involving specific strikes: information about how many civilians have been killed, information about where these strikes have taken place.

One of the Americans whom the CIA killed in Yemen was a 16-year-old boy. He was the son of Anwar al-Awlaki, whom the CIA had killed in a drone strike two weeks earlier. But this kid had never been accused of being involved in terrorist plots. To me that seems completely outrageous that the United States government would kill one of its own citizens, a 16-year-old boy at that, and not offer any explanation for it. To not present to a court, or to the American public their explanation … A lot of people on both the left and the right advocate for limited government, but when it comes to this purported authority to kill citizens without judicial process, these critics of limited government have been completely silent. And I can’t think of any greater government power than the power to kill people—even far away from conventional battlefields—without presenting evidence to the public or even to a court.

Does the government argue protections for national security reasons in these cases? If so, are they legitimate?

Yes, they do. Are they legitimate? For the most part, no, they are not legitimate. I don’t think anything we are asking for would jeopardize security— we’re asking for policy level information, not the names of future targets. We’re asking for information that would help the public to better understand government policy, and help the public hold politicians accountable for their policy decisions.

When it comes to the targeted killing program, in my view, these are not issues of national security; national security is being used to shield politicians from embarrassment or criticism.

In a related vein, one of the many revelations that emerged from the Snowden documents was that the United States spied on heads of state, such as German Chancellor Angela Merkel. Is this among your concerns about NSA overreach?

To be honest, spying on Angela Merkel doesn’t bother me that much. The part of it that bothers me is the mass surveillance, the surveillance of huge numbers of people, the vast majority of whom are not suspected of having done anything wrong. The expansion of the agencies’ mandate to include mass surveillance raises profound civil liberties concerns.

Do you believe there is a constitutionally protected right to privacy?

The word “privacy” doesn’t appear in the Bill of Rights. But a concern for privacy can be found in various places, including the Fourth Amendment which prohibits unreasonable searches and seizures, as well as the Fifth Amendment’s Due Process Clause, which has been held to protect certain kinds of personal autonomy. When we challenge government surveillance, we are usually arguing a Fourth Amendment violation. These kinds of arguments are especially challenging in the national security context because the courts are more deferential to the government in this context and because so much is secret. The government often argues that the issues we present to the courts are too sensitive to be litigated.

You have been involved in multiple important cases, which one has been most important to you and why?

They’ve all been important to me. Something that I’m particularly proud of right now is our representation of Edward Snowden, whose disclosures three years ago provoked an extremely important and overdue debate about privacy, and about the proper limits of government surveillance power in a democratic society. All of us who work with Ed feel honored to have this opportunity and believe that his actions have been incredibly important. Thanks to him, we’re now for the first time having an informed debate about government surveillance policies.

Another case that was important to me involved the Bush Administration’s interrogation program. We were able to force the CIA and the Defense Department to release documents that showed what everybody now takes as fact: that the CIA supervised a program of torture in overseas black sites. When we were litigating this case, many people refused to believe that this could possibly be true. To be frank, even I found it difficult to believe, at first. But through the release of these documents, it became a matter of indisputable fact that the CIA had this torture program and that it was authorized by senior Bush Administration officials.

Why hasn’t Snowden returned to the United States to face trial?

He would not receive a fair trial here, and that’s because he’s been charged under the Espionage Act, which doesn’t allow for a public interest defense. He wouldn’t be permitted to argue that his actions were in the public interest; he wouldn’t even be permitted to argue that what he disclosed revealed unconstitutional conduct on the part of the government. The Espionage Act makes those kinds of arguments off limits.

What is the endgame for Snowden and the ACLU?

I think that he’s done something for which he should be thanked, not prosecuted. I think that many many people see it that way. I hope that the U.S. government eventually comes to see it that way. He’s not miserable. He’s participating in an international debate that he started. He sees that his disclosures have changed the political landscape. He speaks at conferences, and through Skype. I think he finds that gratifying.

On a somewhat different topic, how would you respond to claims that the Supreme Court’s decision on same-sex marriage was not within their jurisdiction?

I don’t think that’s right. The Constitution and Bill of Rights were meant to be a check on the majority. You don’t subject individual rights to popular whim. The claim was the constitution protected the right to same-sex marriage, just like the Constitution protects the right of different races to marry. The argument that we should leave rights to majority vote is an argument that the rights don’t exist at all.

So, you wouldn’t describe yourself as an absolutist or an originalist when it comes to the constitution?

I don’t think the meaning of the Constitution was fixed in the 18th century. To hold that view makes the Constitution irrelevant to our society today: it has to be flexible enough to answer all kinds of new developments. This is an issue that comes up in our privacy litigation all the time, because the government comes up every day with new ways of invading our privacy. To hold that the Constitution is fixed is to hold that it is irrelevant.

What is your greatest frustration with America’s legal system?

I’m not sure this is a response to your question, but one of the things that’s frustrating me right now is the extent to which arguments about law have replaced arguments about morality, and arguments about the wisdom of policies. Questions of whether or not the policies are fair, or humane, or even effective, have been pushed to the sidelines. A lot of these questions that lawyers are answering are, perhaps, ones that they are not especially well-equipped to answer. So many people think of [the recent bombing of a Doctor’s Without Borders hospital in Afghanistan] through the lens of the law. But even if that it was a lawful strike—and I doubt it was—was it a morally defensible one?

You attended Harvard Law School. Some have said that law is a shrinking profession. Do you think it is still worthwhile for young people to seek degrees in law?

I’m glad that I went to law school, and there are a lot of things that I have been able to do, or wouldn’t have been able to do if I hadn’t gone to law school. But there is a cost to law school, and not just a monetary cost. Law school teaches you to think in a certain way, but it discourages you from thinking in certain other ways. Those other ways of thinking have real value. There are other ways of approaching problems and the world, and if you think of everything as a case to be analyzed, you flatten the world. I didn’t realize the extent to which that was true until I was ten years out of law school.

This interview has been edited and condensed.

Image credit: Office of Jameel Jaffer