Donald Trump has been in power less than two weeks and has already done incredible damage. He’s signing executive orders like they are autographed pictures — but this isn’t a reality show. This week on Intercepted we talk to former senior FBI agent Ali Soufan about the commander in chief’s radical edicts, the “Muslim ban,” and Trump’s campaign to make torture great again. Constitutional rights lawyers Faiza Patel and Vince Warren dissect the (il)legality of Trump’s immigration ban and Rep. Barbara Lee breaks down Trump’s terrifying approach to government. Former covert agent Mike German and Intercept Editor-in-Chief Betsy Reed explain what secret FBI documents published this week by The Intercept tell us about how Trump could resurrect J. Edgar Hoover’s legacy. Hip-hop artist Brother Ali performs. Plus, Peter Sarsgaard stars in the bizarre true story of an NSA operative with exciting vacation tips for fellow operatives on their way to interrogate prisoners at Guantánamo.
Jeremy Scahill: “You just run to the wall like a nice little man.
Drop this bomb on the Zooks just as fast as you can.
I have ordered all Yooks to stay safe underground
while the Bitsy Big-Boy Boomeroo is around.”
Donald J. Trump: The world is a mess. The world is as angry as it gets. Well, you think this is gonna cause a little more anger?
JS: “As I raced for that wall, with the bomb in my hand,
I noticed that every last Yook in our land
was obeying our Chief Yookeroo’s grim command.”
DJT: Our country has a lot of problems, believe me. I know what the problems are even better than you do.
JS: “They were all bravely marching
with banners aflutter
down a hole! For their country!
And Right-Side-Up Butter!”
This is Intercepted.
I’m Jeremy Scahill, coming to you from the offices of The Intercept in New York City, and this is episode two of Intercepted. Well, Donald Trump has been in power less than two weeks, and he has already managed to do incredible damage. He is signing executive orders like they are autographed pictures.
But this isn’t a reality show. This is our world. This is our country. And these executive orders, particularly the one that many people, I think, are rightly calling a Muslim ban, it’s already separating Muslims. It is targeting Muslims, it’s targeting Arabs, it is targeting Africans. It at times has been targeting legal permanent residents, people with green cards. And it’s also being celebrated by not only neo-Nazi groups, but by ISIS. These orders are not gonna make us safer. They are going to increase hostility against the United States, and they are going to empower violent radicals abroad and also within the United States. This is going to get people killed.
I checked in this week with Barbara Lee. She is a Democratic congressperson from California. She is the only member of Congress who, right after 9/11, voted against the Authorization for the Use of Military Force, the blank check that the Democrats and the Republicans gave to Bush and Cheney to declare the world a battlefield and wage these endless wars. I asked her for her take on this moment that we’re in right now.
Rep. Barbara Lee: I’m very terrified with regard to what we see taking place. And the signs are there. When you talk about shutting down the media, putting out their alternative facts, banning dissent and opposition, criticizing people who are exercising their First Amendment rights; trying to get people to believe, really, the distortions that they’re putting out there. That, to me, is very scary. It’s very dangerous. And you see also the corporate and military consolidation of the public sector. You see efforts to privatize schools. When you just look at the nominees, you see very few people with experience in the public sector. And so when you have the corporate sector merging with the military sectors, and when you have Cabinet officials who have historically said they want to dismantle the Cabinets and the agencies that they’re running, that I’m very terrified that we are beginning to see an erosion of our democratic values and an erosion of the public sector.
JS: Now, there’s been a lot of attention paid to this extraordinary move that Donald Trump took on Monday night, when he fired the acting Attorney General Sally Yates. And he fired her in direct retaliation for her standing up and saying, “I’m not convinced that this executive order is lawful.”
Jeff Sessions: But if the views the president wants to execute are unlawful, should the attorney general or the deputy attorney general say no?
Sally Yates: Senator, I believe that the attorney general or the deputy attorney general has an obligation to follow the law in the Constitution, and to give their independent legal advice to the president.
JS: This is the beginning of what are going to be a series of Nixon-esque moves by this Trump White House.
Richard Nixon: Well, when the president does it, that means that it is not illegal.
JS: Meanwhile, Trump’s Cabinet appointees continue to get confirmed. The Democrats are putting up some resistance. They’ve boycotted some aspects of it. But most of these people, if not all of them — they’re going to end up in these positions. We are going to end up with the Cabinet of billionaires, bigots, Islamophobes, racists, and very dangerous people to be in charge of a country with nuclear weapons, massive surveillance powers, special operations forces around the globe. Who is the person running the show right now? Steve Bannon.
Steve Bannon: What we need to do is bitch slap the Republican Party and get those guys, you know, heaving to. And if we have to, we’ll take it over.
JS: Steve Bannon, the former head of Breitbart News, a white nationalist — some would say a white supremacist. Steve Bannon is now going to be on the Principals Committee of the National Security Council. The Democratic Party is not where the resistance is right now. The resistance is in the streets. And you know what? It’s a lot of ordinary people who have seen what these executive orders have already done, and they’ve responded spontaneously.
Crowd: Refugees are welcome here! No hate, no fear! Refugees are welcome here! No hate, no fear!
Male speaker: Show me what America looks like!
Crowd: This is what America looks like!
Lee Gelernt: The courts work the way they’re supposed to work in our country. The president could not override the courts.
Crowd: No hate, no fear! Refugees are welcome here! No hate!
JS: And it’s coming from the American Civil Liberties Union, from the Center for Constitutional Rights, from immigrant rights activists and advocates. But this is the beginning of a very long battle in the streets and legally. I’m joined by two people. Faiza Patel is the co-director of the Liberty and National Security Program at the Brennan Center for Justice and Vince Warren is the executive director of the Center for Constitutional Rights. That is the organization that they were the first lawyers to defend prisoners taken to Guantánamo in the aftermath of 9/11. I want to welcome both of you to Intercepted.
Faiza Patel: Great to be here.
Vince Warren: Thanks, Jeremy.
JS: The first thing I wanted to ask both of you about is just your assessment of that first week of Trump’s administration and this avalanche of executive actions, executive orders. Obviously, the executive order barring people from seven countries from coming into the United States, and also, at least for a time, really targeting people who also had green cards, what’s your assessment from a legal perspective of where this fits into U.S. history on immigration policy, and what are the sort of stakes right now?
FP: I think the stakes are super high, but I think it’s important to distinguish between the different executive directives that have come out of the White House. So some of them have immediate effect, such as the ban that went into place on Friday, which disrupted so many lives over the weekend. But many of them are actually just telling Congress or telling the agencies and signaling what it is that he wants to do. At the same time, I mean, there’s obviously this intent to have this avalanche of executive orders to make it look like, wow, he’s definitely doing something, you know? He’s a man of action. But the question is really whether action without thought and without a real understanding of the consequences is necessarily a good thing. And I think that’s really lost in the conversation.
JS: Vince, what about the — there are critics and there are people within Trump’s circle that are saying, look, Obama did this. He did this in 2011. He did a sweeping set of restrictions on people coming out of Iraq. This is born of some of Obama’s own watchlisting policies, and it’s perfectly legal.
VW: People are very excited now on the right to talk about, well, Obama did this first, so it’s perfectly fine for Donald Trump to do it. But the first answer to that is, President Obama did a range of things that were ill-advised, and I think were problematic. But I think, more importantly, that we have to separate presidential authority to make these types of pronouncements from the wisdom and judgment by which they do it. And I think one of the really key differences between prior administrations and this one is that not only is the power that Donald Trump invoking sweeping, but also, his analysis is very ill-defined and also sweeping, so that it creates the effect of actually having a Muslim ban.
And we can have discussions about whether it is a Muslim ban or it is not. But when you’re looking at seven majority Muslim countries that you’re doing a total ban on people coming in for a variety of reasons for a particular time, and you are signaling that you’re gonna preference religious minorities in majority Muslim countries, particularly Christians, that speaks pretty broadly about a Muslim ban. And that’s something that President Obama hasn’t done before. And I think, frankly, when we look back on this time 20 years from now, it’s gonna be one of the darkest moments in presidential history.
JS: Well, and of course, almost immediately once the order was signed, and then you had people being denied entry into the United States, including green card holders, this emergency legal action was taken. A federal judge stayed portions of Trump’s executive order. And in fact, Customs and Border Protection agents were ordered to comply with this federal judge’s ruling, but they didn’t do that in some cases. And we’re hearing many tales of CBP basically defying a federal judge’s order, Faiza. So what’s your assessment of what happened there?
FP: So we’ve actually had five different federal judges order halts to different portions of the program. And I think the bit that you’re referencing is the order that came out of the district court in Virginia, which applies to Dulles Airport. We were hearing that the Customs and Border authorities were not giving access to attorneys to their clients. Now obviously, if CBP is ignoring a court order, that’s a really big problem. And I guess the next question then becomes, why is CBP ignoring that order? Is it doing so on its own authority, or is it doing so because it’s been directed by somebody higher up not to follow through on that order? So I think those are some very important questions that we don’t have the answers to yet.
JS: Well, and Homeland Security Secretary Gen. John Kelly did issue a statement basically saying, we’re backing off this business of targeting green card holders. But they did still say that green card holders now have to go through an additional vetting process, even though they’ve been through — they’ve had their entire lives put into a proctological exam just to get the green card, Vince.
VW: Absolutely. This is, you know — it’s better to think about this as essentially a constitutional crisis that has been instigated by the president. So, we have a scenario where there are executive orders that say one thing. The head of various administrations are saying another thing. Those are not getting passed down to the rank and file, though, the people who are responsible for enforcing. They’re not sure what to enforce and what not to. The federal judge says, “Don’t enforce anything.” Some of the agencies are still enforcing it, even though their leaders say that we shouldn’t.
This is the danger of leading by executive order because it’s created so much chaos that civil society, the civil and human rights groups, like the ACLU, the Brennan Center, Center for Constitutional Rights, have had to respond in very, very tactical ways. But the response has been as varied as the measure of chaos that’s been put out there. So, everybody is very confused. And the people that are suffering are the poor people that are coming back to visit their relatives, that are trying to leave the country and don’t know if they’ll ever get back. And they’re put into handcuffs during these types of interrogations.
JS: And so, the next part of this — and I really think almost no one in this country understands that the courts have upheld the assertion from the executive that people basically don’t have Fourth Amendment rights in airport interrogation. What do I mean by that? Now, you’re lawyers. You may take issue with some of what I’m saying. But they have a right to search all of your belongings. They’ve asserted the right to read any emails that they can access on your computer, to read your text messages, to download the contacts on your phone. When we obtained, at The Intercept, in 2014, the government’s 166-page rulebook for watchlisting guidance — I just want to read you part of this because I don’t think people understand, this is even before Trump and executive orders. This was under President Obama. And this is when they encounter you at a border.
“In addition to data like fingerprints, travel itineraries, identification documents, and gun licenses, the rules encourage screeners,” meaning the people who are interacting with people crossing our borders or coming into our airports, “to acquire health insurance information, drug prescriptions, any cards with an electronic strip on it, hotel cards, grocery cards, gift cards, frequent flyer cards, cell phones, email addresses, binoculars, peroxide, bank account numbers, pay stubs, academic transcripts, parking and speeding tickets,” and on and on and on. All of this stuff — and this is directly quoting from the government’s watchlisting guidance — existed under Obama. And the courts have actually said, when this has been challenged, no, actually, they do have a right to do all of that. And they can hold you for an undetermined amount of time. It just says “a reasonable amount of time.”
So, if that was the standard that already was on the books, and now we have these executive orders combined with open, overt Islamophobic, bigoted rhetoric, where does that put us? Because no one seemed to be up in arms about this except a handful of civil liberties organizations, some journalists, and lawyers trying to fight this. And it’s great that the ACLU’s getting 19 million dollars in donations right now, but where were people when this stuff was going on since 9/11?
FP: So, I think people were very much there, and I think there are two things to recognize, right? One is that generally, in immigration law and at the border, the executive branch, the president, DHS, Customs and Border Patrol, do have a fair amount of discretion. And that has historically been the case. That doesn’t mean that their discretion is unlimited, but you do give them some flexibility because you’re trying to keep the nation’s borders secure. At the same time —
JS: You don’t get a lawyer there, though.
FP: You don’t get the lawyer there. But let me finish, because I think it’s important to keep in mind that discretion can be abused or it can be used in ways that are useful, are reasonable, right? And so, when you have policies that come into it which do harm some people — and they definitely went overboard in some instances. There’s no question about that. But if, in fact, Customs and Border Patrol actually asked every traveler coming into the United States for all of that information, you would not have international travel coming in through our airports. So there has to be some understanding of when these kinds of information is requested, right?
Now, you’re right. Most of the time, information was requested from people traveling from Muslim countries, and was requested from people traveling from other third world countries. But there was always some kind of cap on that. Now, you’re in a situation where you have an administration that has an overtly hostile attitude towards a particular faith and towards particular countries. So that’s got to filter down to CPB and make what was already a pretty tough policy even worse for people coming into the country.
VW: My assessment is, Center for Constitutional Rights has been around for 50 years, and for the last 15, we’ve been very deeply in the post-9/11 scenario. And we have been saying for a very long time under George Bush, under Barack Obama, and it’s the same thing under Donald Trump, is that it’s not just the person who is the president that is the ultimate problem, although we have a particularly problematic one these days. It’s the power of the presidency and the power of the executive branch that is the problem. And so, it was a much easier sell to get people to care under George Bush. It was virtually impossible to get people to focus on these issues under President Obama. And had we had more support for those issues, we might have been able to push back to limit some of these powers so that a crazy man like Donald Trump doesn’t come in and deploy them, and then have a range of folks who are very reasonable and rational say, “But, you know, this is the power of the presidency.” That’s the ultimate problem that we have here.
FP: I couldn’t agree more with that statement.
JS: And look. I mean, I am so heartened to see the diversity and the numbers of people pouring into the streets, going on their own volition to airports to both confront this injustice, but also to be there to welcome people when they come and say, “This policy doesn’t speak for all of us.” I mean, it’s an incredible moment that we’re in. But I also think it’s a teachable moment that when we snooze or sleep during periods when someone like Obama is in power, who so many people identify with, they like him, they believe in him. For a lot of people, the conscience is sort of checked at the door when the Democrats are in power. Of course, not for you guys, but that is a lot of what we’re hearing now.
Obama picked up from where Bush and Cheney left off, not — I don’t think he took things in the insane direction they would have if they had eight more years in power. But he did a lot of disturbing things with executive authority. And Trump is a product of that whole system.
VW: The way I’m thinking about this is, we’re asking the question, is how did we get here? How did we get here to this moment? There is some subtlety to this. Constitutionalists will look at the power of the presidency just as raw power. And I think there’s an important point to that. But we also have to think about, it’s different to issue executive orders or to move — use your presidential authority to do things that are consistent with human rights, and to do them in ways that are inconsistent with human rights. And so, Obama has a mixed record. So some of the things that he’s done, for example, what did he do uniformly without the consent of Congress?
There’s DACA, which is something that Congress uniformly rejected. There is getting the Department of Justice out of doing contracts with private prisons. Those are things that he didn’t ask Congress for. Well, he asked Congress for DACA, but he didn’t need congressional consent to be able to move some of these things. Now, what I wish he had done, would have done the same thing with respect to Guantánamo. But with Guantánamo, he took the opposite approach. This is the approach of, I’m gonna only be able to go as far as Congress lets me. So, I’m saying that there are different ways that we can think about this presidential power, and I know it’s dangerous to say it’s good to use the power for good and bad to use the power for evil.
Nonetheless, we should be clear that there is a very big difference between the type of things that we’re expecting now under this administration that is consistent, I think, with unitary presidency, as President Obama did with drone strikes, than it is to think about some of the positive things that the president can do consistent with a broader human rights framework, even though constitutionally, it may cause some problems.
JS: Vince Warren is the executive director of the Center for Constitutional Rights, and Faiza Patel is from the Brennan Center for Justice.
Brother Ali: Bismillah. Brother Jeremy, it’s Ali, also very honored and humbled to contribute this. Bismillah.
Our hearts were torn apart just like y’all was.
Watching towers full of souls fall to sawdust.
Every time we called your office, you ignored us. And now you’re holding hearings on us all inside of Congress.
Microscopes on us and asking for jihadists.
My answer was in line with all of the Founding Fathers.
Patrick Henry said it best, “Give me liberty or death.”
I shall never accept anything less.
You claim innocence and you played victimless, but you gave the kiss of death in the name of self-defense.
Slavery and theft of other nations till the end of pacifying your citizenry with excess.
We believe in freedom, justice, and security, but they’re only pure when they’re applied universally.
So certainly, if I preach against the machine, my aim was only to clean the germs out of the circuitry, urgently putting fear inside your heart.
They want to burn Korans and tell me not to build a mask.
Me and my wife and babies, we ain’t never made jihad, except we touch our head to the floor and talk to God.
Ask him to remove every blemish from our heart.
The greatest threat of all doesn’t come from any bomb, but the moment you refuse the human rights for just a few. What happens when that few becomes you?
JS: Those are the words of the Minnesota-based hip-hop artist Brother Ali. Coming up, we’re gonna talk to two former special agents with the FBI and get their take on Trump’s Muslim ban, on surveillance in the age of Trump, and on Trump’s love of torture. Stay with us.
JS: This is Intercepted. I’m Jeremy Scahill in New York. Be sure to check out our website, theintercept.com, where we have a lot of in-depth investigative reporting. And this week, we published an incredible series of investigative articles about the FBI. And of course, Donald Trump is now going to be heading up a vast surveillance network internationally, but also at home. And these documents, which we published under the banner of the FBI’s secret rules, it’s more than 1,000 pages of secret FBI documents showing their surveillance tactics, how they entrap people in these terror plots that the FBI seems to be so good at breaking up. And these entrapment campaigns are increasingly aimed at Muslims. And right now, to discuss that, I’m joined by two people, Mike German, who is a former FBI special agent who worked on covert operations and actually infiltrated radical right-wing white supremacist organizations. And I’m also joined by our editor-in-chief, Betsy Reed.
Betsy, I wanted to start with you. There’s a historical context to this that has to do with the Church Committee that exposed U.S. covert operations inside of the United States, surveillance operations inside of the United States. Now Donald Trump is going to inherit these vast surveillance powers. What did you find in this investigation?
Betsy Reed: In the wake of the Church Committee exposing all the abuses of mostly the Hoover era of the FBI, a number of restrictions were put in place on the powers of the FBI. And those restrictions were intended to prevent the kind of overreach that involved the infiltration of political and religious organizations, and all of the scandals that came to light in the mid-’70s. In recent decades, that system of rules and restraints has evolved. The problem is, it has evolved largely in secret.
So that’s why what The Intercept is publishing today, which is a package of almost a dozen articles, along with copies of three crucial manuals, including the FBI’s overall governing rulebook, known as the DIOG, and classified policy guides for counterterrorism and confidential informants. And this gives us and the public a vital glimpse of how the FBI understands its own power and understands the constraints on its own power.
JS: Mike German, you worked for a decade and a half in the FBI. You infiltrated extremist right-wing organizations. You were one of those agents that had to go undercover and use some of the tactics that were developed in the decades that we’re talking about when we talk about the Church Committee investigations. What’s your concern about what is revealed in these documents and the policies of the FBI?
Mike German: What I found doing that work is that the legal structure that was created by Attorney General Edward Levi to prevent the abuses during the Hoover era were actually effective in making sure I was focused on the right people, right? You can imagine going into a group of neo-Nazis. Not too many people who you’re gonna find that you like or have any sort of agreement with. But I had this structure where I had to document my reasonable suspicion that each individual I was interacting with was likely to commit some federal crime or had committed some federal crime. And that simple practice of having to sit down and look at the evidence and say, wow, you know, I can write up two sheets on this guy, and I can’t come up with two sentences on that guy. My investigation should shift toward the people where I have the best evidence.
And what I found was that was effective not just for protecting the rights of people who were just venting their spleen and holding views I didn’t agree with, but for making my cases effective in finding people who were actually going to do harm. So what I saw shortly after 9/11 was an attack on that system of guidelines that limited or focused the FBI with reasonable suspicion towards suspicionless gathering. And what’s so clear in these new documents is how the FBI is targeting people not because of evidence of wrongdoing, not with clear legal standards like probable cause and reasonable suspicion, but are granted an awful lot of leeway to conduct very aggressive investigations against people who are not thought to have been doing anything wrong, now or in the future.
JS: So when people hear about the FBI has broken up a plot where there were some Muslims who attended a particular mosque in New Jersey, and they were trying to buy explosives to take into another state to blow up a Jewish community center, what should the critical thinker be looking for there or being skeptical of when we hear these kinds of reports, which we hear all the time now, of the FBI breaking up these terror plots involving Muslims?
MG: Right. And a lot of what you see now is not plots to commit an act of terrorism, but just to travel abroad to a conflict zone. And that’s — we’ve branded that in certain countries as this very dangerous activity, when the evidence doesn’t actually show that. But for the actual sting operations, they create a plot. Typically what I look for first is, was there involvement of any real terrorist group? Second, if there isn’t any contact with a real terrorist group, whether the defendants obtained weapons on their own. In this country, it’s very easy to get weapons. And the idea that you would have a group that was — that we were going to label as a terrorist group that had never on their own sought to obtain any kind of weaponry is a huge clue to me.
Before 9/11, if I had suggested this group were about to commit some act of violence and they had not a single pistol, that would have been hard to swallow. So one of the things that troubles me isn’t just that the FBI now is willing to provide weapons, which we really didn’t do prior to that, but they provide very sophisticated weapons. We have military grade plastic explosives, surface-to-air missiles, these kind of things that blow completely out of proportion the threat that was actually posed.
BR: What I think you can see in all those cases you described, which The Intercept has reported on extensively, the use of basically what amounts to entrapment schemes to make it seem like they’re busting this high-level terrorist plot, but it actually turns out to be some sort of hapless guy in his mother’s basement. And in the manuals that we have and that we’re publishing, is the evolution of the FBI from what people used to think of as the guys who were protecting you against organized crime to a massive domestic intelligence operation that operates way more — in way more similar ways to the CIA and the NSA than to the police. And that’s really, at the broadest level, what you can see in these manuals.
JS: I want to read part of the overview that Betsy Reed wrote with Glenn Greenwald, just to give a sense of the kinds of information that’s revealed in these documents. “The bureau’s agents can decide that a campus organization is not legitimate, and therefore not entitled to robust protections for free speech; dig for derogatory information on potential informants without any basis for believing they are implicated in unlawful activity; use a person’s immigration status to pressure them to collaborate, and then help deport them when they no longer are useful; conduct invasive assessments without any reason for suspecting the targets of wrongdoing; demand that companies provide the Bureau with personal data about their users in broadly worded national security letters without actual legal authority to do so; fan out across the internet, along with a vast army of informants, infiltrating countless online chat rooms; peer through the walls of private homes, and more.” Mike, your response to that?
MG: That’s exactly right. The guidelines, the attorney general guidelines that govern the FBI’s authorities were changed four or five times since 9/11, the most drastically in 2008, when this category of assessments was brought on, that requires no factual predicate. There are no facts that are required before an agent can start a very intrusive investigation that involves recruiting and taking informants. It could involve physical surveillance. It could involve covert and overt interviews. And an overt interview doesn’t sound like a very intrusive tactic, but when you see how it’s used in practice, where an FBI agent goes to your workplace and interviews your boss about whether you’re a terrorist. Maybe goes to your landlord and interviews your landlord and your neighbors about whether you’re a terrorist. That could have a serious effect on your life.
So these are powers that, what we’ve found through the Hoover era, need constraint, particularly since the 2010 inspector general report revealed the FBI agents are often making their own allegations to justify preliminary investigations. So, just as you suggested, the idea that an agent might look at some political group they’re opposed to and say, well, is it potentially possible in the future that somebody within this group commits a federal crime? Of course it is. That’s true of all of us. But that’s all that’s necessary to justify very intrusive investigations.
JS: Well, and I remember talking to you back in 2014 when we obtained the government’s secret rulebook for watchlisting people. And one of the, I think, stunning statements in there was that agents can nominate someone to be classified as a known or suspected terrorist, even in the absence of concrete evidence or irrefutable facts. And so the whole thing is very Orwellian. Not to be cliché, but it is.
BR: Not to mention the fact that they have incredibly powerful tools of surveillance at their disposal, including Stingrays, otherwise known as cell-site simulators. They have infrared technology that can allow them to, in some cases, look through the walls of private homes, and a range of other very powerful tools.
MG: And at the same time, we had a push toward information sharing between the agencies.
MG: And so what you have is the NSA engaged in some very broad collection programs that the FBI agent sitting at his desk now has access to.
BR: And that’s a revelation, actually, of our series. That’s a story about name trace requests that can be issued even on the basis of an assessment, which requires almost no basis for suspicion.
MG: And I think it gets to this concept of domestic intelligence being somehow divorced from law enforcement, right? That if we’re doing something for an intelligence purpose, there aren’t really the same constitutional limitations on the activity that’s being conducted.
BR: So, I just would want to say one thing in fairness to the FBI. I mean, it’s very clear, looking at these documents, that there are very few limits on its ability to pursue terrorism investigations. There are constraints that are a legacy of the Church Committee era on its ability to violate what are clearly First Amendment protected activities. And you can also see throughout the document a very keen awareness of the Constitution, right? And the FBI, in response to questions from our reporters, has given a series of explanations of their constitutional justification, how they understand their ability under the law and the under the Constitution to conduct this whole range of activities.
So, we’re very critical of that, but it is worth acknowledging that they do actually, in theory, respect the Constitution. And I do think that at this moment, when we have a president who is basically an authoritarian — I don’t think there’s much evidence that he even understands what the Constitution is — I think a lot of people are actually looking to the FBI to be the guardians of our constitutional rights when it comes to these matters. So that’s why this series and these documents are so important for the public to see, because if this is the last stop, our last defense against unconstitutional searches and seizures, we need to understand exactly what the FBI sees as its authority and the limits on that authority.
JS: Mike, just because we have you here, I wanted to ask you your assessment of how these executive orders that Trump is churning out like they’re his tweets — the banning of people from seven countries, some of the comments he’s made on torture — is that actually going to make the country safer, or is it gonna affect the agents who did the kind of work that you did in a negative way? What’s gonna happen as a result of this from your perspective as a law enforcement professional?
MG: I think it’s gonna make things much worse and much more difficult for law enforcement and intelligence officers. I mean, having been inside groups that planned terrorist acts, you’re giving fodder to the terrorist groups that would target you to argue that, yes, this is a cultural war. This is a religious war. This is something that we have to stand up to now because if we don’t, they’ll only get stronger and have more weapons directed against us. So I think it’s gonna be entirely counterproductive in our efforts abroad, but also our efforts here. These sorts of things, we’ve moved from dog whistles to overtly racist —
JS: Drudge siren every day at the White House with the racism.
MG: And that will encourage an element within the violent neo-Nazi far right. So it’s really a horrible way of going about it, particularly since we’re living in an age that is really of such incredible historical security, right? The violent crime is way down from where it was, the amount of terrorism over the last ten years is far lower than it was in the 1970s when I first started looking to go into law enforcement.
JS: Well, you’re clearly not reading the president’s tweets.
JS: Which is the real news these days.
MG: Exactly. So we have this strange situation where terrorists are trying to use fear as a weapon, and rather than mitigating that fear, our government is amplifying it and increasing it even beyond all reason.
JS: Right. I mean, Trump has found a way to unite ISIS and the Ku Klux Klan in mass celebration of some of his initial policies and executive orders, and I think that’s a very good indication of why this is so dangerously wrong. The fact that those groups are celebrating it as a victory in their respective causes says a lot about what Trump is actually doing here. Mike German, a former special agent in the FBI. Thank you for being with us.
MG: Thanks for having me.
JS: Our editor-in-chief, Betsy Reed. Thank you as well. And I’d direct people to theintercept.com to read this spectacular series with a lot of great reporting from Cora Currier, Trevor Aaronson, and others.
MG: Thanks, Jeremy.
JS: Okay, so as we dissect the Trump administration’s extremist agenda, these executive orders, I do want to say — and it feels weird to admit this — that there is something I actually find refreshing about Donald Trump. And that’s his use of the word torture. Now, Trump is 100 percent right to call waterboarding torture. A lot of Republicans and Democrats, none of them will say this. I’m glad Trump doesn’t use the term enhanced interrogation techniques or EITs. He’s calling it what it is. But that’s where my praise of Donald Trump ends because Donald Trump is proudly using that term, and he’s saying he loves torture. He wants to make torture great again. Now, as I’ve listened to the president and his advisors talk about this issue, I’ve thought a lot about Ali Soufan.
Ali Soufan is a career counterintelligence professional. He spent years as a special agent in the FBI. He was one of the most aggressive investigators of the cells and the individuals that went on to be the key plotters of the 9/11 attacks. And in the immediate aftermath of those attacks, Soufan was on the frontline trying to bring to justice the people that supported, enabled, plotted the 9/11 attacks. And he had a plan to interrogate them, to extract information that could lead them to the next bit of information. But what he found was that the CIA starts intervening and snatching the prisoners away from the FBI. Why? Because they want to take them to black sites where they could torture them.
Ali Soufan joins us right now. And before we get to this issue of Trump and torture, I wanted to get your thoughts as a counterterrorism agent, as a law enforcement professional, on Trump’s executive order banning refugees and people from these seven countries from entering the United States.
Ali Soufan: Any kind of blacklisting countries like this will probably ruin effective local partnerships that are already in place. When you’re operating in conflict zones in places like Yemen or in places like Iraq, or Syria, or Libya, you need local support. You need local help. You need people to assist you, to translate for you, to show you the lay of the land. Unfortunately, if this ban is seen as an anti-Muslim ban, or if this ban is blacklisting a whole entire population that will end up fighting back on the much needed local cooperation that we depend on in areas like Iraq, and Syria, and Libya, and other places.
JS: And what do you make of — President Trump is — he doesn’t use the term enhanced interrogation technique. He openly has said that he thinks, and this is his word, torture works.
AS: The thing is not — as you know, Jeremy, it’s not about how you feel. It’s about the facts. It’s interesting that he’s not calling it EIT, or he’s not putting any lipstick on a pig. He’s just trying to sell a pig to the nation. And I think there are an overwhelming support to the idea that torture is not only illegal, but it’s also immoral and ineffective. Congress has spoken, and I don’t believe we’re gonna see Congress going back and changing the law in order for President Trump to carry his executive order.
JS: For people that don’t understand the difference between a smart interrogation technique and torturing people, waterboarding them, etc., could you just tell the story of your interaction when you had a high value target, what you would have done with that individual, and what ended up happening with the CIA?
AS: So basically, when you sit down with a terror suspect, you need to have a deep knowledge about the organization, about where he fits in the organization, what’s going on. And you need to play a poker mental game with them, a chess mental game with them, in order to develop some kind of a rapport that will allow him to give you information. A lot of times, they don’t give the information because they want to give the information. A lot of times, they give the information because they think you know the information based on the interaction that you have with them.
The advocates for torture, they always refer to the case of Abu Zubaydah, a terror operative. He worked closely with Al Qaeda, even though he wasn’t an Al Qaeda member. He was arrested in 2002. And the whole torture program, or the so-called EIT program, was based on his interrogation. Abu Zubaydah provided all the intelligence that he provided way before waterboarding, and way before EIT, and way before torture. And then, they implemented the torture program. And after that, they claimed that all the information that they got from the torture program — sorry, all the information that Abu Zubaydah provided was information that they got because of the torture program.
There were many investigations that took place by the Senate, by the military Armed Services Committee, the Senate Select Committee on Intelligence, the CIA inspector general report, the Department of Justice report. And everybody concluded that there was no actionable intelligence that was generated because of torture. Abu Zubaydah lied. After 83 sessions of waterboarding, he claimed that he was a number three of Al Qaeda, even though he wasn’t an Al Qaeda member. And later on, when they went back to him and they said, “Why did you lie?” He said, “Well, you were torturing me. I told you what you want to hear.” You don’t want to get the information that you want to hear. You want to get the truth.
JS: Now, what is your assessment of if Donald Trump — and I know he’s saying, well, I’ll defer to the sensibilities of Gen. James Mattis. But of course, Mattis is the defense secretary. He is not in control of the CIA. So the door is still left open for Trump to authorize tactics. What is your sense of if people would follow those orders? Because you read op-eds where they say, oh, no CIA officers would do this. And yet, there are certain elements within the CIA that, I think, would be very on board with reinstituting these same techniques that were used under the Bush/Cheney administration.
AS: Well, I think the situation is a lot different today than it used to be in 2002. When I was fighting torture back then, you did not get a lot of support, you know? Sometimes you feel that you and a couple of your colleagues are alone fighting against the whole system. But today, the situation is very different. Today, you see people from across the spectrum, Republicans, Democrats, people in Congress, people in the intelligence community, the military. You have 176 military officers who wrote a letter to Trump about how harmful torture is to our national security. So now the situation is a little bit different. We have way more support than we had back in 2002 when we stood up against torture. People in the FBI, CIA, and the Pentagon.
The other point that I want to make here, which makes this time also a little bit different, is the law. Because of 2002, because of EIT torture, Congress acted a legislation — enacted a legislation basically outlawing these kind of techniques, and outlawing torture. So now, if anybody did do these kinds of tactics, this is against the law, and it’s considered a criminal act. That did not exist before in 2002. So, you know, the president can put any executive order that he wants, but in order to change the law, he needs Congress, and I really doubt you’re gonna have a congressional debate that authorizes the president to use torture. Because, as you mentioned, correctly, he is not even using EIT or waterboarding. He’s just saying torture. I would like to watch that hearing and see how they will try to sell it to the American people.
JS: Ali, thank you very much for taking the time to do this. I really, really appreciate it.
AS: Good luck.
JS: Ali Soufan is a former special agent with the FBI. You can check out his book, “The Black Banners.” Now, as we end today’s show, we wanted to share a bit of the surreal world of NSA operatives with you. When we started The Intercept a few years ago, one of our primary missions was to analyze, sift through, investigate, and report on the documents provided to us by NSA whistleblower Edward Snowden. And among the most bizarre of these documents are those from an internal NSA newsletter called SID Today, Signals Intelligence Directorate Today. It’s like their private little newspaper. And this newsletter contains first person accounts from NSA staffers detailing their adventures around the world. And as Trump promises to fill Guantánamo back up, we thought we’d share one NSA staffer’s enthusiastic review of life at Gitmo, but not for the prisoners.
Peter Sarsgaard: A temporary duty to Guantánamo Bay. December 22, 2003. An early start can have you climbing John Paul Jones Hill to the Joint Task Force skiff while taking in a beautiful sunrise over the Caribbean Sea, and Camp Delta looming austerely below on the southern coastline. After a hustled day of tackling a myriad of issues and directly contributing to the global war on terrorism, one might be inclined to drive out to Phillips Park and enjoy a gorgeous sunset over the leeward landing.
However, the day would not be complete without the frequent iguana encounter. Few work environments offer such an opportunity — a rewarding challenge with incredible surroundings.
The mission of JTF GTMO is to conduct detention and interrogation operations, to collect and exploit intelligence in support of the global war on terrorism, to screen detainees, and to support law enforcement and war crimes investigations. The interrogation focus at Guantánamo is strategic. Tactical questioning is accomplished in theater to see what they know, categorize them accordingly, and determine what requirements they can satisfy. The work can be extremely interesting, challenging, very fulfilling. On a given week, the NSA LNO might pull together intelligence to support an upcoming interrogation, formulate questions and strategies for the interrogation, and observe or participate in the interrogation. Afterward, the LNO captures and disseminates pertinent technical information gleaned from the interrogation back to the NSA.
Outside work, fun awaits. Opportunities abound. Watersports are outstanding. Boating, paddling, fishing, water skiing and boarding, sailing, swimming, snorkeling, and scuba. No experience, no problem. Learn how to operate a boat in a weekend. Become a certified open water scuba diver within weeks. If you’ve already mastered these skills, or once you do, the MWR Marina rents boats, from pontoon party boats to Carolina skiffs, ski boats to kayaks. Recently, they’ve added sailboat rentals, too. The local dive shop has all the gear and tips to ensure a perfect outing.
Water sports not your cup of tea? There are many other activities to round your day off. The library has two dozen Internet terminals and over a thousand videos. Or, take in a movie at the outdoor theater, featuring a weekly variety of the latest releases. Other activities include pottery, hiking, nature walks, biking, paintball, martial arts, tennis, racquetball, basketball, softball, and bowling. There are also several swimming pools and gyms, or just relax and take in the warmth of the sun. If you would be interested in a TDY opportunity at Guantánamo Bay, please contact [redacted] for more information.
JS: That was actor Peter Sarsgaard playing the role of an NSA staffer. You can read more of those accounts at theintercept.com.
One last thing before we go. I want to urge people to check out the podcast Maeve in America, which is hosted by the comedian Maeve Higgins. It’s our sister podcast here at First Look Media. They have a great episode about the immigration ban this week, and you can subscribe and find more information about that show at MaeveinAmerica.com. Intercepted is a production of First Look Media and The Intercept, and distributed by Panoply. Our producer is Jack D’Isidoro, and our executive producer is Leital Molad. Rick Kwan mixed the show. Our music was composed by DJ Spooky. Until next week, I’m Jeremy Scahill.
DJT: It seems so foolish and so naive, but this is what we have to put up with.