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“I heard someone say that there are two kinds of lawyers. There are those who work for people and those who work for property. I made a decision to work for people in that formulation, and then found myself in a particular place and time and historical moment, and responded to that. That, by the way, has happened more than once in these 15 years.” — Wizner

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Ben Wizner joined the American Civil Liberties Union in 2001 to work toward prison reform. Five weeks later, the 9/11 attacks took place, changing the focus of the ACLU and of Wizner’s work almost immediately.

A lot of civil rights issues that were believed to have been resolved definitively in the US were reopened post-9/11, and Wizner spent the next ten years litigating numerous cases of torture, extraordinary rendition, targeted killings, government watch lists, surveillance practices, and more.

In 2011, he became director of ACLU’s Speech, Privacy and Tech Project.

A year after Wizner took on this project, a man named Edward Snowden left a government facility with two USB drives of classified documents and changed the world. These documents, which definitively proved that US government was running massive unchecked surveillance programmes, were handed over by Snowden to a small group of journalists. His revelations shook the US, and reverberations of it were felt across the world. He was branded anything from ‘traitor’ to ‘patriot’, his US passport cancelled, and he was ultimately granted asylum in Russia.

Later in 2013, Wizner became principal legal adviser to Snowden.

For this interview, I spoke with Wizner about the challenges of working on these cases and his experience in law.

“I never quite got over this sense of wonder and horror that this was our own country that had done these things.”

IA:

“Torture, which was being rebranded as enhanced interrogation, has no basis in science or psychology for being an effective method of drawing accurate intelligence from its victims. And it’s so universally condemned on humanitarian grounds that post-WWII, the UN inserted provisions against it.

Most of the cases you brought to court about post-9/11, including those involving torture, were thrown out of court.

So what was your experience bringing these cases to court and having to make the differentiation between legal success vs. political success? What was going through your mind at the time?”

BW:

“The first thought that I had was that I couldn’t believe that it was 2006/7/8, and we were litigating torture cases against our own government. If you had told me when I was a law student in the 1990s that I would be litigating torture cases, I would’ve assumed that I would have an international career, and would be trying to bring justice to Latin America or Africa or somewhere else. I would not have imagined that it would be in the United States. I never quite got over this sense of wonder and horror that this was our own country that had done these things.

A guard and unnamed detainee at Guantanamo Bay Detention Centre in 2010. Credit: John Moore/Getty

I would say that on the worst days, I believed that what we were doing was a kind of bearing witness. That it wasn’t litigation in the traditional sense. It wasn’t trying to get a court to do something, it was creating a record so that sometime down the road in history, people would be able to look back and decide whether it had been the right decision or a disastrous decision. So it was a kind of human rights documentation to develop evidence and try to present it to these courts.

On the better days, I had the sense that we were at least winning the public argument about this, and we were very strategic about it. We believe, for example, that torture is always wrong. It doesn’t matter if the victim is innocent, or if the victim is a terrorist. When you have somebody helpless in your custody, you can’t inflict physical torture on that person. However, we understand that the public would react very differently based on who the victim was. So when we brought these cases to the court and the court of public opinion, we were very strategic about bringing them on the behalf of people who had been swept up in cases of mistaken identity or error, because if the debate in our country was, “what rights should terrorists have”, we were going to lose that debate. But if the debate was “what happens if we don’t use due process in law, would we actually torture an innocent person”, then I think we had an opportunity to change the way the conversation was going.”

“And then obviously having Snowden enter my life and my work was a kind of tsunami.”

IA:

“You said you’ve made a change in your career more than once. The first was post-9/11 when you started working on national security issues. The second was when you switched to work on speech, privacy and tech. How did you know this was the right change to make?”

BW:

“What really happened was ten years after 9/11, I was beginning to feel burnt out. That while it was necessary and rewarding to bring all these cases, it was dispiriting that the country seemed to be having precisely the same conversation about terror and rights that it had ten years earlier.

That was when [the ACLU] came to me and said, would you be interested in leading a new project that we’re putting together on speech, privacy and tech.

The reason why I said yes to that was precisely because I had so little experience [in these areas] and it offered a mid-career opportunity to start at the bottom of a new learning curve.

Edward Snowden. Credit: Freedom of the Press Foundation

And then having Snowden enter my life and my work was a kind of tsunami.

The work that I’ve been doing with him — and I say with him, not for him — is not traditional legal work, by any means.

Except in the sense that you ask the client what his goal is, and you try to help him effectuate that goal.

Snowden’s [primary] goal was to be as effective a spokesperson as he could be for reform.”

“Having a strong and independent press that can’t be intimidated by the government is one of the pillars of any open society.”

IA:

“As a young journalist, I was inspired by a quote I saw on my first day in the newsroom: “who will guard the guardians?” Free press is often referred to as the “Fourth Estate”, as important to the existence of a democracy as a judicial system or a legislature.

The revelations have brought to focus some incredibly tough challenges for any modern-day democracy, like: who gets to decide what the public should or shouldn’t know? So why whistleblowers and members of the press, and not officials who’ve been elected by the public?”

BW:

“I think there’s a real surface appeal to the argument that these hard decisions should be made by people who we’ve elected, not by people who self-appoint like a Snowden or a journalist.

Journalists (L-R) Laura Poitras, Glenn Greenwald, Barton Gellman receive an award along with Ewan MacAskill for national security reporting. Credit: Andrew Burton/Getty

If you look back into the previous, any period of time, in any democracy, say 10 years, just do a mental exercise: what are the things we wouldn’t know if we only knew what the government thought we should know?

In the US, it’s very easy:

we would not have known that the case for war in Iraq was based on lies and exaggerations;

we would not have known about the torture of prisoners at Abu Ghraib;

we would not have known about secret prisons that the CIA set up around the world;

we would not have known anything but the government’s version of the drone program;

we would not have known about the NSA’s violation of the law and the constitution to do surveillance.

These are all things that we know because people in government violated their contractual obligation to keep secrets, shared information with journalists, who then shared it with the public.

This has always been the way that democracy is protected in the US. It’s why freedom of the press is put into the first amendment of our constitution because the people who wrote the constitution knew we needed an independent profession that would challenge the tendencies of governments to suppress information. Having a strong and independent press that can’t be intimidated by the government is one of the pillars of any open society.

So I think perhaps what’s different about Snowden from some of these other examples is the scale of what he revealed to journalists, but the idea that journalists would make these decisions on behalf of the public is nothing new. It’s as old as the republic in the US.

But I’m willing to concede that this is a hard problem in any democracy, that it really does put competing values against each other.”

“If we had perfect enforcement of our laws, which surveillance really enables, we wouldn’t have social change.”

IA:

“A question that’s brought up again and again in any discussion on privacy is “I have nothing to hide; why do I need privacy?”

The revelations have led to an open discussion about human rights. Never before has there been a government with the ability to collect and store massive amounts of data about every individual, for unknown purposes. I recall you saying in a lecture, “the NSA is not uniquely evil, it’s uniquely capable”. Should the right to privacy be considered as fundamental in modern society as the right to free speech?

How would you respond to someone who says they “have nothing to hide”? What’s really at stake here?”

BW:

“If we had perfect enforcement of our laws, which surveillance really enables, we wouldn’t have social change. In the US, and here I’m borrowing from my friend Bruce Schneier, who’s a cryptographer who writes about these issues, we’ve had two fundamental shifts in law and public opinion over the last few decades that were fundamentally enabled by law breaking.

Credit: Yuri Alexandre/Getty

The first is the movement for gay and lesbian rights. In most states, any sexual relations between people of the same sex were illegal not very long ago, and had those legal prohibitions been enforced through surveillance, we would not have been able to reach a time where the country could decide collectively that this was a form of discrimination and that we should change our laws.

The same is true of our drug prohibition. We’re moving in the next few years toward broad legalisation of marijuana in the US, and that’s simply because of how many tens and millions of people use it regularly and recreationally, and have decided that it’s not a problem, even though it’s still illegal in 48 states.

So there are reasons why we should worry about a government that is capable of knowing everything and enforcing all laws perfectly. We want to have a little bit more distance.

I also think that we ask too much of this word, “privacy”. It doesn’t capture fully the set of concerns that we should have about a world in which corporations and governments have massive amounts of information about us and are able to make decisions that affect our lives in ways that are not transparent and provide very little due process.

On the government’s side, that might be a way to decide which of us should be at the faster line at the airport, which of us should be in the extra security line at the airport and who should be on a terrorism watch list. But it’s not done in a transparent way. There’s no court to go to to challenge it and say “you’re wrong, show me your evidence”. So really, we’re talking about surveillance being a kind of power, but a kind of power that is invisible and doesn’t provide the kind of fair process that free societies have expected since at least the universal declaration of human rights.

So that’s a long way of saying, everybody should worry [about a right to privacy]. Even people who think they shouldn’t, should.”

“This is a long, long process, and there’s no real solution to these fundamental problems of democracy.”

IA:

“What struck me while reading up on the Snowden case was how the justice system doesn’t function in a vacuum, that the court of public opinion has been about as vital to the conversation as the court of law.

In the three years since the revelations, there has been a historic reform passed by the Congress, the USA Freedom Act, that for the first time since 1978 restricts the surveillance authority of the intelligence community, rather than expanding upon it. This was the first time since 9/11 that the legality of surveillance programmes was being considered.

On the other hand, after terrorist attacks in San Bernardino and Paris, the intelligence community reported that terrorists might’ve been beneficiaries of encryption too.

As an outsider, the last three years seem like they would’ve been a bit of a rollercoaster ride for Snowden and yourself. What is it actually like to work on this case? What are the good days and bad days like?”

BW:

“The most exhilarating days have been the days on which the Federal courts of the US have issued decisions that would not have been possible without the evidence that Snowden provided to the journalists, and the journalists published. Especially for those of us who had been so unsuccessful before in getting courts to pay attention to these issues, the fact that we now have, all of a sudden, courts that are willing to examine the legality of intelligence programmes and give us their answers.

Wizner at Harvard Law School in 2014. Credit: Kris Snibbe/Harvard University (Used with permission)

And then you see after an event like the Paris attacks how cynical and exploitative the intelligence community can be. That they wait for these moments when the public is frightened and angry in order to seek authority that would not have helped them prevent those attacks in the first place. There’s not a shred of evidence that encrypted communications were any barrier to investigating those terrorist attacks. In fact, in virtually every terrorist attack in the West in the last several years, it turned out that the attackers were well-known to law enforcement and to intelligence communities before, but you can’t follow everyone all the time. In fact, trying to collect everything makes it even harder to do the kinds of investigations that are actually effective.

So, on those kinds of days, we have to remind ourselves, and I have to remind Snowden, that this is a long, long process, and there’s no real solution to these fundamental problems of democracy. The most we can hope to do is embolden and give additional strengths to the parts of society that are able to do oversight.”

“To me, [this] case will always be the reminder of what can happen when in a moment of national trauma or panic, we forget our values.”

IA:

“If you can think of the cases you’ve worked on in the last 15 years, is there any that really stands out to you? It doesn’t have to be the Snowden case.”

BW:

“The case that stands out the most for me is the case of Khalid El-Masri.

el-Masri is a German citizen who was a used-car salesman and was travelling in Europe and in Macedonia. He was arrested by local intelligence agents who thought that his passport was fake and that his name matched the name of a wanted al-Qaeda terrorist. This was in 2005.

Khaled el-Masri leaving court in 2006. Credit: Chip Somodevilla/ Getty Images

He was turned over to the CIA, and he was flown to a black site prison in Afghanistan, a country where he had never been, and he was held in brutal conditions for five months, even though it was pretty clear to the CIA agents on the ground that they had made a mistake and this was the wrong person. Now because he was a German citizen, and not a citizen of Pakistan or Afghanistan, in which case he would’ve probably been dumped in Guantanamo, they had to find a way to return him, while being able to deny that any of this had happened.

So he was dropped on a hillside in Albania, and picked up by intelligence agents, and brought back to Germany and told never to talk about it again.

This was a case of someone who was completely innocent and lived this incredible nightmare. Imagine being in a dungeon in Afghanistan, not being able to contact your children, your wife, not being told why you’re there, and have this go on for month after month.

Then when we did try to get the courts to force an acknowledgement, an apology, some kind of remedy for this person, we were told that the case was a state secret. That he was a state secret; his experience was a state secret. That even though we had the evidence to bring this case to completion, we couldn’t litigate it.

So I won’t forget his courage in bringing that case. He knew that this was likely to be the result in US courts, and he has been able to get some measure of vindication through other bodies, the European Court of Human Rights ruled against Macedonia in the case unanimously. More recently, the US Senate released a report in which his case was discussed and the CIA admitted that they had made a mistake, and that’s a kind of accountability.

But to me, that case will always be the reminder of what can happen when in a moment of national trauma or panic, we forget our values. We can destroy the lives of completely innocent people.

And I should say, he’s never entirely recovered from this ordeal.”

“What prepared me to be as defiant as I am in being.”

IA:

“How do you feel about the el-Masri case now?”

BW:

“Well, it relates to the work that I do for Snowden. Let me explain why:

No one in the US government was punished for what happened to el-Masri, even though it was a crime by US and international standards. In fact, most of the people in the CIA who made these mistakes were promoted and had their careers advanced at this time.

So when I hear people in the US government now say that if Snowden thinks that what he did was right, he should face the music. He should come back, he should put himself in a court, and he should let himself be judged.

I say, who do you think you are to make that argument? Not a single person in the Bush administration was criminally investigated for torture. Not a single person in the senior ranks of the CIA was punished for what they did to human beings.

Over 100 human beings died in our custody as a result of harsh interrogation techniques. Only the lowest level people were slapped on the wrist for these kinds of transgressions. We essentially gave a blanket pardon to people in our government who were the architects of these grave human rights violations.

I say to them, you’re saying that this person, Snowden, who broke your laws in order to educate the public, whose actions have actually “strengthened the country” in the words of the President, that have made an “important contribution” in the words of the former Attorney General, that he should go to prison for doing this, when there’s been almost complete impunity for what US officials did?

I think that in some sense my experience with those earlier cases is what prepared me to be as defiant as I am in being able to say, “absolutely not should Snowden be punished”. Absolutely not.

Maybe in a country where every violation of law is punished equally, we could decide what kind of punishment would be appropriate for someone who broke the law for the public good, but in a country in which we’ve decided to give a “get out of jail” free card to the people who violated human rights on a grand scale?”

“Don’t talk to me about punishment for Snowden.”