Drones, surveillance, torture, rendition, Guantanamo Bay, Cuba. These are just some of the subjects over which Jameel Jaffer has fought the U.S. government.
He is the head of the ACLU's Center for Democracy — and now he's leaving after more than a decade with the civil liberties organization to run the new Knight First Amendment Institute at Columbia University.
"There's obviously reasonable disagreement on what the government's response to the very real response of terrorism ought to be," Jaffer tells NPR's Ari Shapiro. "But, I think there's probably widespread agreement now that, at various points over the last 15 years, the U.S. government has crossed lines that it shouldn't have crossed. And ... one of the ACLU's roles has been to draw attention to those transgressions and to try to right them."
On the Obama administration's mixed record on civil liberties and the possibility it will come to regret some of its successes
There are respects in which the needle has moved in the right direction. When President Obama came to office, he famously disavowed torture and closed the CIA's black sites, promised to close Guantanamo Bay and has made some progress in that direction. And I think that those were all the right decisions, and I'm glad that this administration has put energy into fulfilling those promises.
But at the same time, if you step back and you look at some of the other decisions that this administration has made on national security and civil liberties issues, I think that the record is, at best, mixed. There was a dramatic expansion of the use of drones to carry out targeted killings, including in places far removed from actual battlefields. There was a ... wholehearted defense of the National Security Agency's dragnet surveillance practices. There was a series of prosecutions of government whistleblowers — more prosecutions of whistle than any other previous administration had been responsible for. So those are all very troubling things.
I think that a lot of Americans were willing to put these kinds of powers in the hands of the presidency because it was President Obama who was in charge. And whatever you think of President Obama, these powers are now going to be in the hands of some new president, and another president after that. And I wonder whether the Obama administration's lawyers ... will look back on some of the arguments ... that allowed them to claim broad powers on the part of President Obama. Now those arguments will be used by another president and I wonder whether they will regret some of their successes.
On why the courts have yet to weigh in on a number of important national security issues
One of the frustrating things, as a litigator in this particular sphere, has been the use of procedural arguments to derail litigation that might have resulted in rulings on the merits.
So if you think of issues like torture and rendition and surveillance and targeted killing, there are very few cases in which the courts have weighed in on the merits of those issues. You can count the number of times on one hand — and you're talking about district court cases, not appellate cases, let alone Supreme Court cases. And that's because the Bush administration and then the Obama administration were very successful at persuading the courts to throw the cases on threshold procedural grounds.
On how the Obama administration has used procedural arguments and the state secrets privilege
The Obama administration invoked the state secrets privilege (which essentially lets the government tell a judge to throw out a case because a trial would expose information that compromises national security) to derail litigation about government surveillance policy. ... And that was the argument that the Obama administration used in some of the surveillance cases, in some of the drone cases. There are many other procedural arguments that both the Bush administration and then the Obama administration were able to use to keep the merits questions, the substantive questions, out of court.
And the result is that there are very few decisions in which the courts have weighed in on the lawfulness of government surveillance practices, on the lawfulness of the targeted killing campaign. And that's actually a pretty remarkable thing, 15 years after [Sept. 11], there are so few decisions that relate to the lawfulness of these very controversial policies.