National Security and Civil Liberties: An Interview with Jameel Jaffer

Jameel Jaffer is an Adjunct Professor of Law and Journalism and the Executive Director of the Knight First Amendment Institute at Columbia University. Previously, he was deputy legal director at the ACLU and director of the ACLU’s Center for Democracy, overseeing work on free speech, technology, national security, and human rights. He has litigated numerous critical post-9/11 cases involving national security and human rights, including the litigation leading to the publication of the Bush administration’s torture memos and the Obama administration’s drone memos. He attended Williams College, Cambridge University, and Harvard Law School.

The interview below was conducted in the Fall of 2021. It has been edited for brevity and clarity.

Harvard Undergraduate Law Review (HULR): So it seems that you've done extensive work in a variety of fields, including national security, technology, and free speech. Can you tell me a little bit about how you ended up wanting to work in these areas, and also discovering your passion for protecting the First Amendment?

Jameel Jaffer: Sure. Well, this isn't what I always set out to do. I'm not one of those people who, you know, knew from the beginning that they wanted to be a civil liberties lawyer or work at the ACLU, or even be a lawyer. I did lots of different things. I studied English and math as an undergrad, and then development economics in grad school. And I went to law school for reasons that everybody now says you shouldn't go to law school for. I went to law school, mainly because I hadn't really figured out what I wanted to do. And it seemed like it would be useful and nice to have three more years to think about what I wanted to do. But then, when I graduated from law school, I ended up working for two judges, one in New York on the Second Circuit, and then one on the Canadian Supreme Court. And both of those judges just happen to hear—both of those courts happen to hear a lot of cases involving civil liberties when I was there. I got to work on some of those cases, and, you know, I had written a little bit about civil liberties when I was in law school, but it was kind of an academic interest. When I started clerking, I became more and more interested in that set of big civil liberties issues and human rights issues more generally. And I had agreed to, you know, I had lined up a job at a big law firm in New York, and came to New York after my second clerkship to start that job. But that happened to be in October of 2001. So right after 9/11. And very quickly, I sort of fell into doing pro bono work for the ACLU, mostly relating to immigration detention. There were, you know, hundreds of people who were rounded up in the days and weeks after the 9/11 attacks. Most of them, immigrants from South Asia or the Middle East; almost all of them were Muslim. And they were being held in very difficult conditions in detention centers in New Jersey, in New York. And I was working with the ACLU trying to get access to those detention centers, connect the men who are being held there with lawyers who could file habeas petitions on their behalf. And it was, it was really difficult work, but also very rewarding work. You know, in my day job, I was working on equity derivatives, essentially helping banks make a lot of money. And it was intellectually challenging, and I liked the people I was working with. But when I started doing this pro bono work, it became very quickly obvious to me that my talents and my skills were being better used in those detention centers. And I just felt like I was making a bigger difference in those people's lives. And I also felt like if I weren't doing that work, there wasn't somebody else who's going to do it. Whereas when I was working on Wall Street at this big law firm, I knew that if I quit, there'd be somebody else the next day doing exactly the same work that I was doing. And I was very lucky. I didn't come out of law school with a lot of debt, in part because my parents helped me pay for law school and in part because I had worked before going to law school, so I had some resources. And I didn't feel the same pressures that many other people feel to make a lot of money on Wall Street to pay back educational debt. And I had this kind of freedom that let me leave Wall Street and go to the ACLU. And I was lucky enough to be offered a job at the ACLU. And so that's what I did. That's how I got into it.

HULR: That's awesome. And so now you don't work at the ACLU, you work for Columbia. How have you felt these experiences differing, particularly with regards to the ways you're able to make the positive change that you're talking about with the immigration cases?

JJ: Yeah, so I worked at the ACLU for 14 years, mostly litigating national security cases. Many national security cases are First Amendment cases as well. They involve free speech or privacy or press freedom. National Security has always been a kind of crucible of the First Amendment; that's sort of where the hardest cases always arise. And so I did get some experience litigating First Amendment cases when I was at the ACLU, and then I had the opportunity five years ago to come to Columbia and help start this new institute that focuses on free speech in the digital age. And now I was excited about that, partly because I always wanted to build something of my own. I had built some things within the ACLU, but the ACLU is a 100 year old organization. It's already what it is, you know? And this was an opportunity to build something from scratch. And with resources from Columbia, and the Knight Foundation, it was a great, great opportunity. And so now, I've been at the Knight Institute for five years, and we have a team of 25 people, which is still pretty small, especially in relation to an organization like the ACLU. But it's big enough that we can make a difference in the world. And we try to do that through litigation and research and public education. So it's a different kind of job. And now I'm an executive director, rather than only a litigator—that has pluses and minuses. But I like that it's a new challenge. I'd been at the ACLU for a long time, and I kind of needed something new and different. And this is definitely that.

HULR: Awesome. So back at the ACLU, to my understanding, you co-litigated some Freedom of Information Act requests and worked for the release of torture memos regarding the prisoners at Guantanamo Bay. What was that experience like for you?

JJ: Yeah, this was definitely one of the most important cases that I've been involved with. It was, as you say, it was a Freedom of Information Act lawsuit. We filed it in 2003 when very little was known about the treatment of prisoners in military and CIA custody. There had been a few news stories suggesting that prisoners were being abused in custody, and so we filed this Freedom of Information Act request, which the government didn't respond to initially. But then, in April of 2004, the Abu Ghraib photographs  were published by 60 minutes in the New Yorker, and those photos showed that there's something that had gone very seriously wrong at at least this one detention center in Iraq. And so we filed a lawsuit to enforce the Freedom of Information Act requests that we had filed the previous year. And over the next decade, various government agencies ended up releasing thousands of pages of documents to us relating to the interrogation and torture of prisoners, at Guantanamo, in detention facilities in Iraq and also in Afghanistan. And it's hard to trace public policy to any specific thing; the release of all those documents definitely made a very big difference to interrogation policy over time, they ended up putting pressure on Congress to restrict the kinds of interrogation methods that interrogators could use. The Bush administration closed down the CIA's so-called black sites overseas. President Obama later rescinded the legal memos that had authorized torture, and a lot of that happened, at least in part, because of the documents that were made public through this lawsuit. So it really was an important lawsuit and certainly among the most important that I've been involved in, and I think evidence of the power of public interest litigation to make a real difference in the world.

HULR: You've also worked on other important cases regarding civil liberties. Are there any ones in specific aside from this that you feel have been most impactful on you as a person?

JJ: The one that was probably most difficult in a lot of different ways was another case that I litigated at the ACLU, and we were representing the family of Anwar al-Awlaki, who at the time was regarded by the US government as the Bin Laden of the internet. Like he was, you know, the next Bin Laden, and, you know, described to be a person who was a very, very serious threat to the United States. But he was a US citizen. Born in the United States, had spent a lot of time in the United States, but then had moved back to Yemen, which is where his family was from. And in 2010, or 2011, I don't remember the precise timing, the Obama administration added al-Awlaki to what used to be called “Kill Lists”. The CIA had a list of people who it was intending to assassinate, usually with armed drones, overseas. And they added this US citizen to a CIA Kill List and we ended up litigating on behalf of the family. This question of whether the Constitution permitted the government to carry out the deliberate killing of an American citizen without ever presenting evidence to a court. And we lost this case in the District Court. And soon after we lost the case, the CIA and the Defense Department carried out the killing and killed Anwar al-Awlaki in Yemen. They also killed another US citizen in the same strike, and a few weeks later killed Anwar al-Awlaki’s 16 year old son in a separate strike. And then we ended up representing the family again in a second lawsuit and the family decided eventually that they didn't want to pursue the suit anymore up to the appeals court, or the Supreme Court. And I felt like the legal issue was extremely important—arguably the most important national security question that had been presented to the courts. But I also felt that we had failed the family, that the family had really relied on us to present these issues to the courts in a way that would be compelling. And we failed to do that. And I always felt that if we had had the opportunity to appeal, we might have been able to convince the DC Circuit or the Supreme Court to go the other way because I really do think that the position that the government was taking in that case can't possibly be right. It can't possibly be the case that the government can kill a US citizen on the basis of evidence that was never disclosed to the public, and never presented to a court. I always felt that eventually, we would have to win in court, but we weren't able to convince the family to pursue the case. And I felt like that was probably my biggest failure as a lawyer—not so much failing to convince the court but failing to convince the family to pursue the case. It was a really challenging case for a lot of different reasons. Because as I said, the government was contending that Anwar al-Awlaki was, you know, effectively the next Bin Laden. And I was in court, arguing his interests, and that's a very difficult position to be in. We at the ACLU, we always said, and I do this at my current job too, that we're here because of the principles that are at stake. You may not like this particular person, this particular person may be a terrible, terrible person, but the principle is crucial. And everybody understands that kind of in the abstract, but I found it a really difficult thing to stand up at a podium and represent somebody whom the government had characterized in the way that they had characterized Anwar al-Awlaki.

HULR: I don't know if you know, but has the US seen any policy changes or successful court cases causing the policy around the US being able to kill an American citizen without disposing evidence to the public or the courts? Has that changed since then?

JJ: No? Well, you know, we made a real effort to try to convince the Obama administration to let the courts have more of a role in overseeing the targeted killing program—that's what they were calling it at the time. And we weren't able to convince—the Obama administration was like every other administration that, you know, a lot of people in the administration before they went into office said, “This is outrageous that the President has all this power, and that those powers aren't subject to judicial oversight.” But once they were in office themselves, they were very happy to have that authority and not have courts looking over their shoulder. And then, because no real safeguards had been put on this system. During the Obama administration, when Trump took office, Trump just extended the program on every axis. Now there were many, many more drone strikes, you know, in the first couple years of the Trump administration than there were in the last couple of years of the Obama administration. And the Trump administration was even less careful than the Obama administration to avoid civilian casualties. So that whole program, I think, has been a human rights disaster. And it's not one that can be pinned, you know, if we were thinking about torture, it's easy to attribute the problem to the Bush administration, because the Bush administration that introduced those policies, but targeted killing was a policy largely introduced by the Obama administration, and the rules around it were created by the Obama administration. And like I said, the Trump administration, if anything, was worse, but you can't attribute this to the Republicans or a single Republican administration. This is a human rights disaster that multiple administrations bear responsibility for.

HULR: Right. What do you think are some of the biggest threats today to human rights?

JJ: I think that the rise of authoritarianism— authoritarian governments, there are many more of them now than there were a few years ago, and they feel emboldened today in a way that they didn't a few years ago. And that has all sorts of implications. I've been focused obviously on free speech and press freedom issues in particular, but, in that area, we saw just a couple years ago the Saudi government authorize the murder of Washington Post journalist at an MIT embassy in Turkey. We see governments like the Saudi government, the Israeli government, the government of Bahrain involved in spying on journalists and human rights activists. They even install spyware on their phones, sometimes, in ways that are almost impossible to detect, and use this spyware to track down human rights activists and journalists to intimidate them, sometimes to find them and imprison them or worse. This kind of technology has opened up all sorts of human rights abuses that were much less possible before. The issues that I've been focused on most, you know, most recently are inside the United States and they have to do with new technology. It's not so much the abuse of the new technology, it's just that we haven't yet figured out how to ensure that this new technology serves democracy rather than undermines it. So, you know, even something like social media, which in my view has many positive aspects—there are a lot of good things that we have got through social media that makes it possible for ordinary citizens to have their voices heard, creates new ways of organizing, creates new ways of holding government officials accountable... There are lots of positive aspects to social media, but social media is also undermining democracy in a lot of pretty fundamental ways. Misinformation seems to spread very easily on social media. Authoritarian governments exploit social media to identify and intimidate activists and human rights advocates. Social media is a kind of surveillance machine, both for private corporations and governments. A new one of the lawsuits that we’re involved in the Knight Institute involves the State Department rule that requires visa applicants to submit their social media handles to the government. This is a problem from our perspective for two different reasons. One is giving your social media handles so the government is a way of facilitating ongoing surveillance of your speech and your associations. And the other is that many people use pseudonyms on social media, some of them for very good reasons, especially human rights advocates living in authoritarian societies. If you want to comment about your government, you have to do it under a pseudonym. And to require people to turn over their social media handles to the State Department is to require people to surrender at least some of the privacy and the anonymity that they have relied on. So that's just one example of how surveillance and social media can intersect in ways that have very serious human rights implications.