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Shayana Kadidal of CCR: the signature moment of Holder’s six years in office was the decision to execute an American citizen by a drone without due process

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SHARMINI PERIES, TRNN PRODUCER: Welcome to The Real News Network. I’m Sharmini Peries, coming to you from Baltimore.

The resignation of Attorney General Eric Holder last week was a stark reminder of the missions unaccomplished by the Obama administration, among them his 2008 campaign promise to close Guantanamo Bay. Further, the Obama administration failed to hold the previous administration of George W. Bush accountable for illegal war in Iraq, and Vice President Dick Cheney, who was the key architect for U.S. policy, where people were held for years without charge and for extraordinary rendition.

Now joining us to talk about all of this is Shayana Kadidal. Shayana Kadidal has been an attorney at the Center for Constitutional Rights in New York City since 9/11. He assists in running the center’s Guantanamo litigation and challenges to government overreach in the area of surveillance, counterterrorism, and whistleblowers.

Thank you so much for joining us.


PERIES: So let’s go back to what happened, Shayana. Obama administration came in with all these promises to close Guantanamo Bay, but what we’ve got was more of the Bush administration’s legal policies. So what happened?

KADIDAL: Right. I mean, it’s no exaggeration to say basically that on almost every front–secrecy, drone policy, detention policy, and surveillance–this administration’s legal positions haven’t really changed that much from the Bush administration’s positions. The only area you can say that they’ve really changed anything significant was in their sort of renunciation of torture, which is something that the Bush folks had done but by 2004.

So, yeah, why did this happen under a Democratic president? Well, I think basically it’s pure politics, right? Democrats know they’re perceived as weak around national security, and they know that the public views the period since 9/11 as largely a success in terms of counterterrorism, because there hasn’t been a similar attack in terms of scale here in the homeland, right? And this is kind of a remarkable thing, right? Because we’ve seen bombings in Iraq every single day on our TV, right? But by and large, the public perceives counterterrorism policy under Bush as a success in terms of how it worked. And so the Democrats know when they come into power that terrorism’s like a lightning strike: you can’t really do anything to prevent it. And if lightning happens to strike, you’re going to be blamed for it if you change any policy that the Bush administration had used. And so I think that’s a political calculation that happened under Obama. And we pretty much knew that was going to be the case for about five months into the administration in 2009.

But Eric Holder, you know, I think he really did contribute significantly to it. A lot of people think that he was one of the more liberal members of Obama’s inner circle in terms of temperament, and his fingerprints aren’t really necessarily all over any of these policies under Obama, but the mere fact that sort of someone who was viewed as kind of a politically naive, kind of technocratic lawyer got out there in front and was the one defending the president’s positions on surveillance or on drone killings or on any of these other things, I think that had a huge impact.

PERIES: So, Shayana, let’s take this apart one by one. Let’s start with Guantanamo. What exactly happened? Why did they fail to close Guantanamo as they promised?

KADIDAL: Right. Well, within a few months of the president being in office in 2009, he issued a speech where he basically said he wanted to keep all his options open, including trying people in front of military commissions at Guantanamo, and including holding people without charges, just indefinitely, essentially a continuation of the Guantanamo system. You know, he basically bought into this idea that there are people who are somehow too dangerous to release but can be tried either. The latter part of that is really the sort of nonsensical legal assertion, right?

And Holder’s Justice Department issued a memo, filed a memo with the courts in these cases early in 2009 that basically created a legal standard that’s made it all but impossible to win cases in the courts. Even though detainees have the right to go in and challenge, basically no one is doing it anymore because the legal standard is so bad. So that’s something that Holder’s signature is really, essentially, on. His Justice Department took up those positions.

And a lot of it comes down to not wanting to charge people, right? That’s–and in the beginning of this Guantanamo litigation, that’s what we were asking for: either charge our people or let them go. And Holder, I think to his credit, the one area of national security policy where he deserves a lot of credit is that he wanted to try people in the most significant cases here in ordinary criminal courts. If he had brought the 9/11 case here in New York as he wanted to, the trial would have been over. It’s likely that the defendants would have been found guilty and executed already. Interestingly enough, the fact that he didn’t handle it well politically, that he didn’t consult with the local politicians in New York especially, before he made that decision and moved those cases here is probably the reason that the cases are still in front of a military commission and still languishing. They haven’t moved forward at all significantly in six years of this president’s administration.

PERIES: The other point is really that there was no charges, anything brought about on the previous administration’s illegal records of going to war, torture, rendition. What happened there?

KADIDAL: Right. Well, it’s hard to tell, but I think it all falls into that initial pattern that I laid out for you: they just didn’t want to change anything, because they knew they’d be blamed if they did, right? So just take a couple of examples. Within a month of getting into office, the Justice Department asserted the state secrets privilege in a case about rendition out in California. And this was after Obama had campaigned on the basis of of wanting to have the most transparent administration in history. And that attitude toward secrecy has kind of pervaded their defense and all the other civil liberties cases.

On targeted killing, on the drone strikes, he basically said in a speech that he thought that the sort of due process that you’re guaranteed under the Constitution, which has always been thought to mean that you get to go to an independent, life-tenured judge and try to make your case, he says that due process for a U.S. citizen who the government is targeting for execution with a drone, that it’s enough to have an internal review in the executive branch, which is almost the opposite of the definition of due process. Yet there he was, saying that due process doesn’t mean judicial process.

You know, it’s interesting to contrast that with what the Bush administration did. When they used a drone to kill an American citizen in 2003, they never even owned up to it, because they thought it would be so controversial to make a legal assertion that it was lawful to kill a U.S. citizen without giving them any access to judicial process first to determine whether or not that use of lethal force by the military or CIA was in fact legal. So there’s a case where they actually went one step further than the Bush administration. And pervasive secrecy was part of the way they litigated those cases, too.

You know, surveillance, another great example. The president had two separate executive branch expert committees–the PCLOB and a special committee that was created post-Snowden–that both said that we were overreaching in terms of federal government surveillance, and yet Holder was one of the few administration officials out there saying that he basically thought what the NSA was doing with legal.

PERIES: So here you’re referring to the mass collection of our telephone data and having access to–.

KADIDAL: And more.

PERIES: Yeah, and more.

KADIDAL: Right. You know, internet content, the whole vast array of what the NSA was doing, as revealed by Edward Snowden–as is still being revealed by Edward Snowden.

PERIES: Right. One of the things that Eric Holder and President Obama, both of them being African-Americans, they’re recognize and being held up for their track record on civil rights defenses. But you would disagree with that.

KADIDAL: No, no. I think a lot of his achievements on the civil rights front are really commendable. I mean, look at Janet Reno, who was in office for eight years. I don’t think you can say that she did things comparable to Holder’s sort of encouragement of use of alternative sentencing systems for drug offenders, his mandate to U.S. attorneys to not charge low-level drug offenders who are nonviolent with crimes that would produce a mandatory minimum sentence. You know, in the federal courts, usually five years is the kind of the minimum you would get for trafficking a lot of drugs, and he said just don’t charge people with offenses that will lead to those automatic five-year sentences. And I think the bottom line on that is that the U.S. prison population in federal prisons has actually dropped, which is an astonishing achievement. You know, you have to give him credit for it.

But I think a lot has been made about how Holder’s hero as attorney general was Bobby Kennedy. Bobby Kennedy similarly had a great record on civil rights issues for African-Americans, had a poor record on civil liberties issues for political dissenters, used a lot of surveillance against suspected communists, which pretty much included a lot of leaders in the civil rights movement, and antiwar agitators as well. I think you see something similar in the way that Holder’s Justice Department has gone after government whistleblowers and journalists, which–again, somewhat unprecedented, much further than even the Bush administration have been willing to push that.

PERIES: Let’s unpack that a little bit. How did this administration manage to get away with making the First Amendment–curtail the First Amendment? How did that happen?

KADIDAL: Sure. You know, I think part of it is that you can get away with a little bit more as a Democrat than you might be able to as a Republican, right? So maybe it seems a little bit more credible when Holder gets out there and says, well, we had to wiretap 20 or get phone records from 20 different AP reporters’ offices because this one story that they ran really threatened national security, and so we have to be able to find the whistleblower that talked to them, right? But something like that has–even if you bought it in that one particular case, it has an enormous chilling effect on all the other sources who might want to talk to journalists, right?

And then you look at the way that he’s treated, for instance, our client Julian Assange, right, where he refuses to say that the World War I era Espionage Act, which was specifically passed to kind of crush antiwar opposition during World War I and used to horrible effect during the red scare generally, during the ’50s and ’60s, that it remained possible, essentially, to charge Julian Assange under the Espionage Act, and that he wasn’t going to rule out charges for someone who, I think, has done more to advance journalism over the last couple of years than anybody else in the world.

PERIES: And finally, Shayana, this is a case that CCR has been quite active in, and that is the whistleblowers, in defending whistleblowers like Julian Assange and Edward Snowden. How do you think the government handled these?

KADIDAL: Well, again, I think, very, very badly, right? Obviously, it was a military prosecution of Bradley (now Chelsea) Manning. But again, the fact that you leave the threat of prosecution over the heads of someone like Julian Assange has essentially resulted in him living in house arrest ’cause he’s worried about getting extradited to the U.S.

On a whole bunch of other fronts, Holder’s Justice Department has been more aggressive about pursuing government insiders who blow the whistle on government incompetence or outright malfeasance than any other Attorney General in the history. And so I think these are also important parts of his legacy that are going to have damaging effects going down the road. The fact that someone who has essentially a lot of street cred from the other things that he did to advance voting rights for African-Americans, to reform criminal justice, was willing to embrace these sorts of prosecutions of journalists and whistleblowers. I think it’s really, really problematic.

PERIES: Shayana, thank you so much for joining us.

KADIDAL: Thanks for having me.

PERIES: And thank you for joining us on The Real News Network.


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Shayana Kadidal is senior managing attorney of the Guantánamo Global Justice Initiative at the Center for Constitutional Rights in New York City. He is a 1994 graduate of Yale Law School and a former law clerk to Judge Kermit Lipez of the United States Court of Appeals for the First Circuit. In his twelve years at the Center, he has worked on a number of significant cases arising in the wake of 9/11, including the Center's challenges to the detention of prisoners at Guantánamo Bay (among them torture victim Mohammed al Qahtani and former CIA ghost detainee Majid Khan), which have twice reached the Supreme Court, and several cases arising out of the post-9/11 domestic immigration sweeps.

He was also counsel in CCR's legal challenges to the "material support" statute (Holder v. Humanitarian Law Project, decided by the Supreme Court in 2010), to the low rates of black firefighter hiring in New York City, and to the NSA's warrantless surveillance program. Along with others at the Center, he currently serves as U.S. counsel to WikiLeaks publisher Julian Assange. On behalf of plaintiffs including Assange, Glenn Greenwald, and other journalists, he led litigation that ultimately resulted in public release of over 550 previously-withheld documents during the court-martial of Pvt. Bradley (now Chelsea) Manning.