BILL MOYERS: This week on Moyers & Company…

MATT TAIBBI: The rule of law isn’t really the rule of law if it doesn’t apply equally to everybody. I mean, if you’re going to put somebody in jail for having a joint is his pocket. You can’t let higher ranking HSBC officials off for laundering eight hundred million dollars for the worst drug dealers in the entire world.


VINCENT WARREN: There is not a country in the world that believes that the U.S. drone attacks that we are doing on countries that we are not at war with is the right and sustainable solution for us.

VICKI DIVOLL: All we have is the president interpreting his own powers and the limits on his own powers. And that is not the way it's supposed to work. We need more oversight.

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BILL MOYERS: Welcome. This week, two United States senators insisted that the Justice Department come clean. Why are Wall Street’s big banks not only too big to fail but too big to jail? Senators Sherrod Brown of Ohio, a Democrat, and Chuck Grassley of Iowa, a Republican, are outraged that the giant banks violate the law with impunity -- laundering money, cheating homeowners, falsifying information -- every trick in the ledger book. They sent a letter to Attorney General Eric Holder demanding to know why the banks get away with fines instead of jail time.

Maybe they had their anger roiled by “Frontline,” Public Television’s premier investigative series. The other night, “Frontline” broadcast a report called “The Untouchables,” on how the Department of Justice allegedly has looked the other way for fear that prosecuting the banks would do even more damage to the American economy.

ELIOT SPITZER in Frontline: The Untouchables: It was a definite sense that justice backed off.

NARRATOR in Frontline: The Untouchables:Did the government fail?

MARTIN SMITH in Frontline: The Untouchables: A number of people told us that you didn’t make this a top priority.

LANNY BREUER in Frontline: The Untouchables: Well I’m sorry that they think that because I made it an incredibly top priority:

BILL MOYERS: That’s Lanny Breuer, the assistant attorney general in charge of the criminal division at the Justice Department. A week after the Frontline report, he stepped down and is now expected to return to private corporate practice -- one more government appointee spinning through the lucrative revolving door between Washington and Wall Street.

That door could be a big reason why government treats the banks with kid gloves. A man who once worked for Citigroup, Jack Lew, the president’s chief of staff, has been picked to be the new Treasury Secretary. And Mary Jo White, the newly named head of the Securities and Exchange Commission, is a chief litigator at a top law firm representing big investment banks like Morgan Stanley.

With all this happening, it’s time to talk with journalist Matt Taibbi. You’ve seen him on our broadcast before. A contributing editor at “Rolling Stone,” he’s been tracking the high crimes and misdemeanors of Wall Street and Washington for years.

Welcome back to the show.

MATT TAIBBI: Thanks for having me.

BILL MOYERS: You're working on a story right now that'll come out in a couple of weeks on the HSBC settlement. That's the, tell me about that, why it interests you.

MATT TAIBBI: Well, the HSBC settlement was a really shocking kind of new low in the history of the too big to fail issue. HSBC was a serial offender on the money laundering score. They had been twice given formal cease and desist orders by the government. One dating back as far as 2003, another one in 2010 for inadequately policing the accounts in their system. They laundered over $800 million for cartels in Colombia.

BILL MOYERS: Drug cartels?

MATT TAIBBI: Drug cartels in Colombia and Mexico. They laundered money for terrorist connected banks in the Middle East. Russian gangsters. Literally, you know, I talked to one prosecutor who's, like, "They broke basically every law in the book and they did business with every kind of criminal you can possibly imagine. And they got a complete and total walk." I mean, they had to pay a fine.

BILL MOYERS: $1.9 billion, a lot of money.

MATT TAIBBI: It's a lot of money. But it's five weeks of revenue for the bank, to put that in perspective. And no individual had to suffer any consequences at all. There were no criminal charges no individual fines, which was incredible. Incredible.

BILL MOYERS: Lenny Breuer also forced the Swiss bank UBS, as you know, to pay a big fine in the LIBOR, the price fixing conspiracy. And that outraged you as well, didn't it?

MATT TAIBBI: This is the, I think the biggest financial scandal of all time. It was a price fixing scandal where, essentially, some of the world's biggest banks got together and they conspired illegally to artificially rig the global interest rates which are based upon this London inner bank offered rate, which is a rate that measures how much it costs for banks to lend money to each other.

This LIBOR rate affects the prices of hundreds of trillions of dollars of financial products. And it goes from everything from credit cards to mortgages to municipal bonds. Basically everything in the world the price is, you know, is somehow connected to LIBOR. And these guys were monkeying around with this for individual profit. And they got, again, a complete and total walk on this. There were no criminal charges, which is just unbelievable.

BILL MOYERS: Did you see the Frontline documentary “The Untouchables?”


BILL MOYERS: Then you're familiar with Lanny Breuer's testimony.

MARTIN SMITH in Frontline: The Untouchables: You made a reference to losing sleep at night worrying about what a lawsuit might result in at a large financial institution. Is that really the job of a prosecutor to worry about anything other than simply pursuing justice?

LENNY BREUER in Frontline: The Untouchables: I think I am pursuing justice and I think the entire responsibility of the department is to pursue justice, but in any given case, I think I am prosecutors around the country being responsible should speak to regulators, should speak to experts, because if I bring a case against institution A, and as a result of bringing that case there’s some huge economic effect. If it creates a ripple effect so that suddenly counter-parties and other financial institutions or other companies that had nothing to do with this are affected badly, it’s a factor we need to know and understand.

MATT TAIBBI: Think about what he's saying. He's essentially saying that some individuals are so systemically important, that they can't be arrested and put in jail. Now, it's only a few steps forward to the corollary to that, which is if some people are too systemically important to arrest, other people may safely be arrested. So we're creating a class of people who are arrestable and another class of people who are not arrestable, which is crazy. It's a crazy thing for the assistant attorney general to say, to admit out loud that he's dividing Americans up into these two classes. There's no reason they couldn't have taken a number of individuals from some of these companies and put them on trial.

Historically, we've always done this. Even under the Bush administration, if you go back just ten years, you know, WorldCom, Enron, you know, Adelphia. We took the leading individuals of these companies and we put them on trial to make an example out of them. And this is exactly what we're not doing in this case. Those companies were systemically important then. I don't see why they can't do the same thing now.

BILL MOYERS: You were shocked when you heard that President Obama had named Mary Jo White to lead the Securities and Exchange Commission. And you wrote that she was a partner in a law firm that represented a lot of these big banks. You know, Bank of America, Goldman Sachs, Chase, AIG, Morgan Stanley.

You said, "She dropped out and made the move a lot of regulators make, leaving government to make bucket loads of money, working for the people she used to police." And I gather your great concern is that you don't want to see the country's top financial cop being indebted to the people who created the bank role?

MATT TAIBBI: Right. Yeah, absolutely. I mean, it's just simple common sense. I mean, you're sitting on $10 million, $15 million, however much money she made working there at Debevoise and Plimpton when she was a partner and you owe that money to this specific group of clients and now you're in charge of policing them, just psychologically think of that. It doesn't really work, you know? It doesn't really work in terms of how aggressive a prosecutor should be, what his attitude towards the people he's supposed to be policing should be. It's just, the circumstances just aren't quite right. You'd much rather see a career civil servant in that in that situation.

BILL MOYERS: She was once a tough prosecutor. What's your beef?

MATT TAIBBI: Well, you know, I have people who are telling me that I'm wrong about this, that Mary Jo White was an excellent prosecutor and she's a good choice. But, you know I've done stories in the past about an episode, you had an SEC investigator named Gary Aguirre who was pursing an insider trading case against the future CEO of Morgan Stanley. He asked for permission to interview that future CEO. His name was John Mack. It was denied. And it was because there was communication between Morgan Stanley's lawyer, who at the time was Mary Jo White and the higher ups at the SEC who included the director of enforcement, Linda Thomsen. Aguirre was later fired for complaining about having this investigation squelched.

BILL MOYERS: Blowing the whistle.

MATT TAIBBI: For blowing the whistle. But the SEC was later forced to pay a $750,000 wrongful termination suit to Aguirre in that case. But what's so interesting is that Aguirre's boss, the guy who killed that case went to work for Mary Jo White's firm nine months after the case died. And he got, you know, a multi-million dollar position. It's a classic example of how the revolving door works in Washington. You know, you have these regulators at the SEC. And they know that there's that job out there waiting for them. So how hard are they really going to regulate these companies when they know they can get that money?

But in Washington, you know, people kind of shake their heads at it because it's so common you know, that these people, they move from government back to, you know, these high priced legal defense firms that represent the banks. And then they go back to government again. And it's this sort of, this coterie of, you know, 100, 200 lawyers who really run this entire thing. And it's all the same people on both sides.

BILL MOYERS: Lanny Breuer was one of them. He was in a very prestigious Washington law firm. Jack Lew, the new incoming secretary of the Treasury if he gets approved, served three years at Citigroup. His record there, according to “The Wall Street Journal” was not very lustrous for a man who's about to take over the Treasury Department. But “The Wall Street Journal” suggests that he got his job, not because he had the experience, but because he was a crony of Robert Rubin.

MATT TAIBBI: Jack Lew served in the Clinton administration. I think he worked in the OMB in the, you know, Office of Management of the Budget. And he was one of the key players in helping pass the repeal of Glass-Steagall. And, you know, this is kind of the way it works. It's not a one to one, you know, obvious connection. But, you know, Glass-Steagall was repealed specifically to legalize the merger of Citi Group. And, you know, coincidentally Bob Rubin, who was the Treasury secretary and Jack Lew end up working at Citi Group five, ten years later. And they make enormous amounts of money. And then they go back to government. And again, this is just sort of this merry-go-round that everybody in Washington knows about. And that's the way it works.

BILL MOYERS: How do you explain President Obama's attitude in this? When he was running for president, he promised the close the revolving door. And he seemed genuinely shocked at the collapse of the financial system and the banks' role in it. But he also was raking in massive campaign contributions from these very people. Did those investments, did those contributions turn out to be good investments, or do you think he's just overwhelmed by the system that's controlled by these guys?

MATT TAIBBI: I think that they genuinely accept the explanation that they're probably hearing from all these people who run these Wall Street companies. You know, people like Bob Rubin and Larry Summers who are close confidants of the Obama administration are probably telling them, "Look, if we start prosecuting all kinds of people for you know, X, Y and Z, there's going to be major instability in the markets. People are going to flee America. They're going to withdraw capital from the American financial system. It'll be a disaster. Jobs will be lost." But it's just not an acceptable it's explanation. I think they're--


MATT TAIBBI: Well, just because the rule of law isn't really the rule of law if it doesn't apply equally to everybody. I mean, if you're going to put somebody in jail for having a joint in his pocket, you can't let higher ranking HSBC officials off for laundering $800 million for the worst drug dealers in the entire world. People who are suspected, not only of dealing drugs, but of thousands of murders. I mean, this is an incredible dichotomy. And eventually, you know, it eats away at the very fabric of society when some people go to jail and some people don't go to jail.

BILL MOYERS: But do you ever have the sense that those guys are, you know, are and their lawyers are up there laughing at all of us on their way to the bank, no pun intended? I mean, the fact of the matter is they are immune. There was a story in “The Washington Post” the other day by Howard Schneider and Danielle Douglas. With the lead, "Five years after the collapse of Lehman Brothers, a global push to tighten financial regulation around the world has slowed in the face of attempted recovery, which the banks helped bring on. "And a tough industry lobby effort. Big banks, insurers and other financial giants remain intact and arguably too big to fail." I mean, nothing really has changed.

MATT TAIBBI: No, no, definitely not. And in fact, if you want to look at it objectively, since 2008, you know, the companies that we're talking about have become bigger and more dangerous and more immune to prosecution than they were back then. And you might even say by a lot. I mean, you know, the first factor was that you had a series of mergers in 2008, which you know, made companies like Wells Fargo and JP Morgan Chase, you know, double in size.

Or they were much bigger than they were before. So therefore they're more dangerous. And so you have these companies, like Barclays, like Royal Bank of Scotland, like UBS, like HSBC, which are, you know, they can't be regulated. We can't get an accurate accounting of what's going on in their books. And apparently now we can't even criminally prosecute them for laundering money like HSBC does. I mean we just keep setting the bar lower and lower and lower. And it's getting scary I think.

BILL MOYERS: There's a new analysis out just the other day from the Economic Policy Institute that shows the super-rich have done well in the economic recovery, while almost everyone else has done badly. And the economist Robert Reich says, "We're back to the widening inequality we had before the big crash." Are the financial and political worlds just too intertwined and powerful for anything to change?

MATT TAIBBI: I mean, it's a concern, I would worry about. But it doesn't mean you can't, you know, try to stop the problem. I definitely think though that there is this connection now between political power and financial power that's just becoming more and more overt. I mean, what Lanny Breuer is saying in that video is these people who have an enormous amount of power, destructive financial power we can't prosecute them.

On the flip side what they're essentially saying is that people who don't have any money at all, it's politically safe to put them in jail. And so, you know, we're creating this kind of dual class. And it's a very upsetting and disturbing situation.

BILL MOYERS: Matt Taibbi, we'll be looking forward to your next expose in a couple of weeks. Thank you very much for being with us.

MATT TAIBBI: Thanks for having me on.

BILL MOYERS: If you’ve seen or only heard about the film “Zero Dark Thirty” you know that it’s triggered a new debate about our government’s use of torture after 9/11.

DAN in Zero Dark Thirty: Right now, all this is about simply is you coming to terms with your situation. It’s you and me bro. And I want you to understand that I know you. That I’ve been studying and following you for a very long time.

BILL MOYERS: Some people leave the theatre claiming the film endorses and even glorifies the use of torture to obtain information that finally led to the killing of Osama bin Laden. “Not true,” say the filmmakers, but others argue the world is better off without bin Laden in it, no matter how we had to get him. “What’s more,” they say, “there hasn’t been a major terrorist attack on American soil since 9/11. If we have to use an otherwise immoral practice to defend ourselves against such atrocities, we’re okay with it.” Or so the argument goes.

But torture is only part of the debate over the fight against terrorism. What about the undermining of civil liberties here at home? The rights of suspects? The secret surveillance of American citizens? The swollen executive powers first claimed by George W. Bush and now by Barack Obama? Soon after he succeeded Bush, President Obama announced he would not permit torture and would close down the detention camp at Guantanamo Bay. He also said this:

BARACK OBAMA: Our actions in defense of liberty will be just as our cause. And that we the people will uphold our fundamental values as vigilantly as we protect our security. Once again America’s moral example must be the bedrock and the beacon of our global leadership.

BILL MOYERS: Four years later, Guantanamo not only remains open, but a few days ago, the State Department announced it was eliminating the office assigned to close the prison and move its detainees. Meanwhile, President Obama has stepped up the use of unmanned drones against suspected terrorists abroad.

Those drone attacks have killed a growing number of civilians and have prompted the United Nations to launch an investigation into their legality and the deadly toll on innocent people:

BEN EMMERSON: The central objective of the investigation I’m formally launching this morning is to look at the evidence that drone strikes and other forms of remote targeted killing have caused disproportionate civilian casualties in some instances, and to make recommendations concerning the duty of States to conduct thorough independent and impartial investigations

BILL MOYERS: A key player in our government’s current drone program is this man, John Brennan, a senior official at the CIA and head of the National Counterterrorism Center during the Bush presidency. Reportedly, Barack Obama considered offering him the top job at the CIA in 2008, but public opposition caused Brennan to withdraw from consideration. Obama kept Brennan on as an adviser, and last year, when Brennan became the first official to formally acknowledge that the drone program even existed, he again encountered protests:

PROTESTER: How many people are you willing to sacrifice? Why are you lying to the American people and not saying how many innocents have been killed?

MODERATOR: Thank you ma’am for expressing your views. We will have time for questions following the presentation.

PROTESTER: I speak out on behalf of Tariq Aziz. A 16 year old in Pakistan who was killed because he wanted to document the drone strikes.

BILL MOYERS: Now, despite Brennan’s past notoriety, Obama officially has nominated him to head the CIA. This time, there’s been little criticism of the decision. So, we’ll watch Brennan’s upcoming confirmation hearings to see if any Congressional critics press him on whether the Obama administration is fighting the war on terror within the rule of law. Which brings me to my guests for this discussion. Vincent Warren is executive director of the Center for Constitutional Rights, which is dedicated to advancing and protecting the rights guaranteed by the United States Constitution and the UN’s Universal Declaration of Human Rights.

Vicki Divoll served on the staff of the Senate Select Committee on Intelligence, in the White House counsel’s office for President Clinton, and as a legal advisor to the CIAs Counterterrorist Center. She practices law in Washington and recently published this op-ed in The New York Times provocatively entitled, “Who Says You Can Kill Americans, Mr. President?”

Welcome to you both.


BILL MOYERS: As I said in our opening, the torture debate is back, because of the movie “Zero Dark Thirty”. You've seen it. Where do you come down on whether the film glorifies, condones, or misrepresents the use of torture?

VICKI DIVOLL: I think it's for the viewer to decide whether it glorifies it. I did not find it glorifying in any way, shape, or form. One could argue that the film is so disturbing that it will, in fact, aid in the movement to not enable the United States to engage in those practices in the future.

BILL MOYERS: From your own experience at the C.I.A., did any of it ring true?

VICKI DIVOLL: Well, I left the C.I.A. in January of 2000. And was on the committee for 2001. When I worked in the Counterterrorist Center and we worked, I worked directly on the hunt for Osama bin Laden the programs that would capture and or kill him, pre-9/11. And harsh interrogation, detention, and certainly killing were not on the table. You would have been laughed out of a conference room if you brought up any tactics such as those, at that time.

VINCENT WARREN: I think that the film condones torture and misrepresents the facts about what torture actually does. It condones torture in the sense that the arc of the film really shows that that methodology, which really happens in the first part of the film, according to the film, leads to the killing of Osama bin Laden at the end.

You know, the idea is that for, in a narrative, that people are supposed to cheer when the bad guy gets it. But nobody is really figuring out how to feel about the bad guys in the beginning. Because, torture is a tremendous problem. It's one of the big three things that countries cannot do.

One of them is slavery, another one is genocide, and the third one is torture. The human rights law sees these as the crimes that human beings should never commit to each other. So one of the questions, really, is does torture work the right question? That's what the film seems to say. And that's really not the moral question. The question is should we be doing it at all?

BILL MOYERS: But, let me ask you, Vicki, do you know if the torture that was introduced after 9/11 produced usable intelligence?

VICKI DIVOLL: Well, no, during the period of time after 9/11 that I was general counsel of the Senate Intelligence Committee, I personally, was not privy to those programs. To the extent that they were going on, at that time, and to the extent that they were briefed to Congress, they were briefed to a tiny gang of four, or gang of eight, group within the Congress.

So staffers didn't know about it. There was no oversight of it. So, I don't know. I do know, though that Senator Feinstein has finally gotten, she's the chairman of the Senate Intelligence Committee, has finally gotten a report out of the committee, through the Republicans and Senate vote, allegedly it’s 6,000 pages long. And it covers all things torture. And she's very upset about the film. And she believes that whatever you want to say about torture and its human rights violations, that it did not produce the intelligence that the film suggests that it did.

BILL MOYERS: And she says the use of these harsh interrogation techniques was quote "far more systematic and widespread than we thought." But how do we ever know if that report isn’t published?

VICKI DIVOLL: This is one of the problems with oversight of national security matters. Some of these things have to remain secret. You can debate over which ones should and which ones shouldn't. But someone has to decide that this information can be released without harming national security. And I don’t see that happening any time in the near future. It is possible that some of the findings could get out, though, in a declassified version.

VINCENT WARREN: Clearly the Senate Intelligence Committee wants to and needs to keep some of this stuff classified. But we run into this problem where if you look historically, the only way that a country and certainly a country like the United States can torture is if they do it in secret, right?

There was a connection between the secrecy and the torture. It was not a mistake that George Bush created secret black sites, some of which appear in the film. It's not a mistake that even the names of the people who the government was torturing became classified information. The Senate for Constitutional Rights is an organization that has represented many of, many torture victims, knows that very well.

So what we're left with here in the age of President Obama, who really sees himself as the transparency president, is this question about how transparent will or should a government be in order for the rest of us, the fourth branch of government, the people, to make sure that this type of torture and these types of crimes don't happen in our name?

BILL MOYERS: The European Court of Human Rights found last month that C.I.A. agents tortured an innocent German citizen named Khalid El-Masri, who was arrested in Macedonia and then handed over to a C.I.A. rendition team, taken to Afghanistan, where he was severely beaten, sodomized, dealt severe pain and suffering. It's the first time the European court has described C.I.A. treatment of its terror suspects. Do you know about that?

VINCENT WARREN: Well, the El-Masri case is a very interesting one. And not just because of the factual circumstances that you laid out, but also because of the legal journey. Khalid El-Masri also had cases here in the United States. And the U.S. courts actually refused to look into the merits of those claims, looking at things like the state secrets privilege or different types of immunities that would keep him as a torture victim from being vindicated in U.S. courts. So in fact what I think is the lesson here is not so much that the European courts could make those findings. It's that the European court did make those findings.

BILL MOYERS: You mean he couldn't have gotten a fair trial or the courts wouldn't at least give him a trial in this country?

VINCENT WARREN: In this country, very few of the post-9/11 torture victims have ever had their day in court. And in fact, until recently the Center for Constitutional Rights has been successful in a settlement. We got $5.2 million from U.S. corporations who were involved in harsh interrogation and torture in Abu Ghraib for 72 torture victims.

But none of those cases have gone through adjudications. No court has made a finding the way that the European court did about the circumstances of their torture and their abuse. That's a problem here in the United States. And when you couple that with an aggressive policy from both the Bush and the Obama administrations, where the Obama administration is now making the arguments that courts should not hear these types of cases, that's when you really want run into problems.

VICKI DIVOLL: It's a great point. And it feeds into all of the issues we've been talking about, involving presidential power to conduct these kinds of programs, whether it be a secret detention program, a black site, harsh interrogation. They prefer not to call it torture in the Bush administration, because torture's just a word. And it has a definition that they don't agree with.

BILL MOYERS: In the Bush administration?

VICKI DIVOLL: Yes. The Bush admin, well, the Obama administration doesn't torture. And he's said that.

BILL MOYERS: He said that soon after he came into power.

VICKI DIVOLL: Yes, he did, in fact--

BILL MOYERS: And you believe him?

VICKI DIVOLL: I do. And in fact, he was instrumental in arguing for and then, as president, releasing the legal justifications that the Bush administration had relied on to conduct the program and opened them to the light of day. And they were reviewed and harshly criticized. In fact, some of the authors were even considered for censure.

The fact of the matter is the two branches of government set up to keep a watchful eye on the president in these areas, have a lot of trouble doing it for a variety of reasons. The courts have trouble taking these cases. There are so many constitutional and common law and statutory limitations on their ability to hear, even hear these questions, never mind resolve them, that we're not, we don't know what the constitutional outcome is, because the courts aren't ruling on it.

VINCENT WARREN: I'm not convinced that the U.S. doesn't torture at this moment just because President Obama said that we don't. One of the reasons why I'm not convinced is because there is so much information that still is remaining classified, that there's so much work that the Obama administration could have done, particularly in the last term, around pursuing accountability for the Bush administration that they're not doing.

So the courts, the problems in the courts are not just a question of court inability to do something. But there's a structure in place that actually, I think, was, has been protecting the U.S. government from these types of inquiries. And they're being utilized now. But we're in a situation moving forward where the people really need the ability to hold our government accountable moving forward for these types of violations.

BILL MOYERS: Do you think the president, President Obama is fighting the war on terror within the rule of law?

VINCENT WARREN: I do not. In fact, I know that he is not.

BILL MOYERS: What about you?

VICKI DIVOLL: I am concerned that he may not be. But I'm not going to go quite so far as to say that he is not following the rule of law. I think his lawyers have told him he is and he believes them.

VINCENT WARREN: Let's look, example number one is the U.S. drone program. And that the drone program is something that has been, the Bush administration and the Obama administration say are authorized by the authorization of use for military force that was passed by Congress. And the way that the Obama administration is using that is that they're dropping bombs, targeting for killing of terrorist suspects in countries in which we are not at war, including Yemen, including Pakistan, including places in Africa.

There is no legal authority for these types of drone attacks. The U.S. cannot drop bombs on people in places that they cannot send troops. It is a mechanism, I think my, in my view, a political mechanism that says, "It is so much easier to talk about how the wars are over and we're bringing troops home and that we're not putting more troops in harm's way by dropping bombs"

There's no legal authority for that. There's no judicial oversight for how they determine who they're going to kill and who they don't want to kill. There's a, right after 9/11, there was, on the, on this kill list, there were approximately nine people, Al Qaeda operatives that the military, the C.I.A. said that they wanted to get. Now this is something that is going to expand. And there's no legal authority. And there's no judicial oversight.

And I would say that here where we have, by latest reports 3,000, both people who are classified as militants and people who are classified as civilians that have been killed by drones since these programs started to happen, that is way, way, way too many. And in fact, on the day of the inauguration, three people were killed outside of Sana'a in Yemen by drones. This is a real problem.

VICKI DIVOLL: Well, I take a little bit of a different approach to this than Vince does, in the sense that the use of drone attacks throughout the world against foreign persons, I think, is troubling from a moral, ethical, and policy point of view. But I don't subscribe to the fact that it's illegal under U.S. law.

And that's the law that the president is bound by the Constitution to follow. My focus has been primarily, and I'm not saying it's a good program. I'm just saying that I think it's a moral policy question rather than a legal one primarily for the president. I focus primarily on the targeted killing of American citizens, which does bring into play the United States Constitution and the rule of law in the United States. And I'm very troubled about that aspect of it.

BILL MOYERS: Can you help us understand how this official program of targeted killing works?

VICKI DIVOLL: Apparently, the agencies, primarily the Pentagon and the C.I.A. nominate people to be on the list. And it goes through a, what the White House promises is a very rigorous process of review to determine if those people should or should not be on the list. We don't know exactly what the standard is. But it involves a number of criteria, including whether the host country, the country in which this person, particular person is cooperative or not vis-à-vis capturing the person. In any event, they have a standard. Names are nominated. It goes through an interagency process. And finally it makes it to the president. And he makes the final decision who is or is not on the list. Does that sound like what you understand?

VINCENT WARREN: I think that's certainly what the government has said happens. And, of course, this is the problem is that the only thing that we ever know about the counterintelligence stuff over the last 10 or 11 years has been, you know, what the government has been forced to say, what journalists have been able to find out, or what human rights organizations like ours have been able to find out on the ground. That's certainly what they're saying.

VICKI DIVOLL: Or what the government chooses to tell us.

VINCENT WARREN: What the government chooses to tell. And very often what the government chooses to tell us is forced by media work or litigation work from human rights organizations.

VICKI DIVOLL: That’s right. There are U.S. citizens who've been put on the same hit list, the same targeted killing list, high-value target list that foreigners have. And so far that we know of, three of them have been killed. One of them, I don't know if all of them were targeted. I know one of them was, because it was, that information was released.

BILL MOYERS: That was--


VICKI DIVOLL: Anwar al-Awlaki, he's a United States citizen born in New Mexico. I'm not saying he's not, probably wasn't a very bad man. But that's hardly the point. We have lots of very bad people, who perhaps we would like to put behind bars or even execute, depending on your point of view on those things. But--

BILL MOYERS: There was plenty of evidence that he was a suspect.

VICKI DIVOLL: I think that's right. But there's plenty of evidence that lots of people are suspected of doing lots of things. And that doesn't mean we shoot them from the sky.

VINCENT WARREN: I agree with Vicki on that. And on the al-Awlaki case, Center for Constitutional Rights and the ACLU, we both have a legal challenge. We've actually had two. The first one was in 2010, to seek to prevent the killing of al-Awlaki when it was made plain that he was put on the list. And the second case after al-Awlaki was killed, he was also killed with another U.S. citizen. And then two weeks later, his 16-year-old son, about 400 kilometers away from where his father was killed was having dinner in an outdoor café with his cousin. And he and, I believe, seven other people were killed, because they were looking to target somebody else.

BILL MOYERS: By a drone?

VINCENT WARREN: By drones. And that person that they were looking to target, reportedly, was not among the dead.

BILL MOYERS: And isn't the center, your center, representing that boy's grandfather?

VINCENT WARREN: We're representing the families of the people who were killed, which includes Abdulrahman al-Awlaki, that's the grandson, we're representing his grandfather who's bringing these cases and these claims.

BILL MOYERS: On what constitutional grounds are you resting your case?

VINCENT WARREN He is a U.S. citizen. He was a US citizen. He was born in Colorado. He went to Yemen with his family in 2002. As a US citizen, we all have a right not to be summarily killed by our government without a trial. That's the legal just--

VICKI DIVOLL: Maybe not a trial, without some process.

VINCENT WARREN: Without due process. Without some process, whatever process is due to us.


VINCENT WARREN: But certainly not in an extra-judicial killing by a drone.

VINCENT WARREN: Under international law there is no legal justification for targeting people without any meaningful oversight or articulable reason. There are rules that have been established in terms of the law of war and otherwise that keep governments from just dropping bombs randomly on other folks in different countries at which it is not at war.

And then the second piece is the piece that Vicki brings up, which is the constitutional issue, that we certainly cannot and should not live in a country where the U.S. is targeting its own citizens for killing without any due process at all. So we've moved from the Bush administration, where we started out with detention in Guantanamo without charge or trial. And now we're in the era of killing without charge or trial.

BILL MOYERS: Someone said to me on the day of the inauguration, you know, "How can you fight a war against terror any other way than meeting the assassins on their ground, who are willing to kill or be killed?" And trying to make a point that it was very difficult for a president to know where to stop, given the nature of the enemy.

VICKI DIVOLL: But war is difficult under all circumstances. And they're the ones, the Presidents Bush and Obama, who want to call it "war," because it enhances their own powers in, by doing so.

BILL MOYERS: The war powers.

VICKI DIVOLL: War powers. But the fact of the matter is for centuries we studied the just war ethics. And we've looked at the fact that sometimes our enemy doesn't fight fairly. That does not give us the right to do the same. Just because the enemy is ugly and vicious and does awful things does not allow you to do the same. It’s a basic tenet of just war ethics.

VINCENT WARREN: I completely agree with Vicki on this. And I, you know, I, it's troubling to me that in this great country, where we can send people to the Moon. We can have these great debates about gay marriage. And we can really be invested in our own progress as human beings as a, and as a nation. It's troubling that the only way that we can seem to resolve, the way that the public seems to want to resolve the current terrorism problem is by turning our nation into a country that out terrorizes the terrorists. That is precisely the wrong thing to do. And I agree with Vicki. It is not easy. It has never been easy. And what we should not be looking for are easy solutions that are going to test well in the public. Those aren't the smart solutions.

BILL MOYERS: But we haven't experienced a major terrorist attack since 9/11, doesn't that fact suggest to a lot of people that the war on terror fought on the terms you two are skeptical about is working?

VINCENT WARREN: It suggests that. There's no question about it. You can't disprove a negative. But I would also point out that right now, we've killed as many people, almost as many people in the last ten years with drones as Al Qaeda killed here in New York on 9/11. And I'm not looking to try to create some sort of proportionality. That's not my point.

My point here is that there is a methodology by which we can actually become our own worst nightmare and that the work that we're doing to keep ourselves safe in the short term actually makes us less safe in the long term. And we are very much on that axis. There is not a country in the world that believes that the U.S. drone attacks that we are doing on countries that we are not at war with is the right and sustainable solution for us. It just, the popular opinion around the world is very clear on that. And in this country, we seem to have a problem with it.

VICKI DIVOLL: There are many commentators who believe, and some in government who are concerned that the reaction in these villages, in these tribal areas to the drone threat, which is constant over their heads is radicalizing some who might not have otherwise been radicalized. So I think there's certainly a concern that we're making the problem bigger.

BILL MOYERS: In your op-ed piece the other day in “The New York Times,” you called on the president to tell us where in the Constitution, in effect, he finds the authority to secretly target and kill American citizens , the people he suspects are involved in terrorist activities. What are you asking him for? What's the issue here?

VICKI DIVOLL: Well, the issue in that particular op-ed is focused primarily on the fact that there are legal memoranda in the Department of Justice that explain in great detail the legal support that Obama believes he has for conducting this program. And he won't, the Justice Department won't release them. And he won't order them to be released.

Even though he himself released the same type of memo about President Bush's program, you know, "Tell us what your legal theory is. Congress isn't doing anything. The courts are having trouble doing anything. You're the only one who knows what your legal theory is. Tell us what it is so that we can decide if we think you're right or not."

There are two issues in terms of whether Obama can be doing this. One is does he have the power to do it? And that's what Vince has been talking about, in terms of the authorization for use of military force and the laws of war and that kind of thing.

The other is there some constitutional protections of the individual that stops him from doing it? Due process, right to counsel, any of those kinds of protections that we as citizens have against our government. They have determined in the White House that those don't stop President Obama from engaging in these activities. I don't know if they're right or not. The Supreme Court has never been asked that question.

VINCENT WARREN: One of the main problems here is. Is that, you know, when we talk about the legal justifications and legal memos and things like that, we are now in an era where even the government's interpretation of the law becomes something akin to a state secret. That we have to go through legal hurdles to get the government to articulate the legal theory by which they have the justification for doing things. That's a problem in a democracy. That is probably one of the deepest problems in a democracy.

VICKI DIVOLL: Remember, there are no court cases out there to look at. The lawyers for President Obama are speculating about what the law is. The executive branch is supposed to implement and enforce the law. The judicial branch is supposed to tell us what the Constitution says. We have been unable to get the judicial branch through, though you're trying mightily to make that happen. So all we have is the president interpreting his own powers and the limits on his own powers. And that is not the way it's supposed to work. We need more oversight.

BILL MOYERS: You said Congress has a hard time pressing the administration on this. Why?

VICKI DIVOLL: Well, not to be too cynical, but we have a Democratic Senate and we have a Democratic president and we have a Republican House. So on issues of aggressive national security, a Democratic Senate, who might, if President Bush were still in office be jumping up and down and taking action of all sorts, effective or ineffective, that depends on your view, is not doing that now.

They are not. They don't want to criticize a sitting president that is of their own party. They didn't do it during the first term, for a variety of reasons including he had another election coming up. I don't know if they're going to do it this term either, even though he does not. Senator Wyden seems to be agitating in that direction. And we'll see what comes with that.

BILL MOYERS: Democrat of Oregon. He's actually been pressing for greater transparency and oversight.

VICKI DIVOLL: He has indeed.

BILL MOYERS: But not getting anywhere, even among--


BILL MOYERS: --among his Democratic colleagues.

VICKI DIVOLL: That's right. And he's been, he's on the Senate Intelligence Committee. He was on the committee when I was there. He's been on the committee for a very long time. And he is willing to press a Democratic president on these issues, but he hasn't gotten any traction yet. Senator Leahy, the chairman of the Judiciary Committee has, in my opinion, very feebly pushed also without result.

BILL MOYERS: So would both of you agree with one of President Obama's counterterrorism advisors in his 2008 campaign, a man named Michael Boyle, who said that the, Obama has been quote "just as ruthless and indifferent to the rule of law as” President Bush? He goes on to say, "President Obama has waged his war on terror in the shadows, using drone strikes, special operations, and sophisticated surveillance to fight a brutal, covert war against Al Qaeda and other Islamist networks." Essentially, he's saying there's no difference between the Bush administration and the Obama administration. And you’re shaking your head.

VICKI DIVOLL: I do not agree with that at all. On the Bush, the very premise underlying the Bush administration's actions in all of these areas was that the rule of law does not apply to him. That if Congress enacts a law and says, "Don't do that," that he can do it anyway. That's the unitary executive theory. That was the basis for all of his activities. President Obama does not subscribe to that theory. If Congress passed a law tomorrow that said, "You may not target with drones," I believe he would obey that. But Congress isn't doing it. So who do we look to? I look to Congress.

BILL MOYERS: But who's going push Congress to do it if, the Democrats are skeptical about taking on that White House and they want to cooperate with the White House? And the Republicans are on the other side?

VICKI DIVOLL: The media, the American people, the voters. It's not a perfect system.

VINCENT WARREN: I agree with Vicki that there really is a fourth branch of government here that is probably the most important one.

VICKI DIVOLL: And they've been too quiet.

BILL MOYERS: But President Obama was reelected with the public knowing that he was using drones in the war on terror. There is a consensus that since there has not been a major terrorist strike on the United States since 9/11 something must be working out there. And his popularity is actually up over what it was even a few months ago. Where is your constituency for these constitutional arguments?

VINCENT WARREN: This has been the George Bush mantra. "You can tell that I'm doing great stuff, because nothing bad has happened." And when something bad does happen, whether it's big or small or minor, they grab more power. They don't give back more power. They grab more power.

It, this is a cycle in which the lack of terrorist activity is a justification for the methodologies and any terrorist activity that does happen is a justification for grabbing more power. So, you have a situation now moving beyond the Obama administration, what would it look like for us if every country. There are roughly 50 countries that I believe have drone technology. What if they were allowed to take their terrorist suspect, wherever they happen to be, and just to drop bombs on them? What would that look like? That's really where we're going. That's what's at stake here for us. It's really not a question about whether people like President Obama or whether he doesn't, whether they don't. And I frankly think that President Obama has done great disservice to what his ideals were and why we elected him in the first place in 2008, which was around the questions of transparency and human rights. And that's the piece that we actually need to keep our eye in the next four years.

BILL MOYERS: You mentioned Senator Ron Wyden a moment ago. He is on the Senate Select Committee. He's allowed to know the legal rational that's being offered for targeted killing, as well as all the countries where the killing is where it's happening. But even he can't get answers. And he's promised to bring these issues up at John Brennan's confirmation hearings for CIA director coming pretty soon.

What questions would you put to John Brennan when he goes before the Congress to testify on behalf of his nomination for director of the CIA?

VICKI DIVOLL: I'm not going to quibble with them on the fact that they are really, really, really careful before they put someone on the list. I'm sure they are. And I would not doubt that the people they put on are threats to us.

I'd like to move to the other point and say, "Okay, what about the process? Why can't the process include another branch of government? Why do you think that you should own this issue?" Now the Bush Administration would say, "Because it's war. And we own war." I don't think the Obama administration would be quite that broad in their statement.

I would like to ask Mr. Brennan, "Have you considered putting forth with Congress the idea of perhaps legislating in this area, having a regularized system that involves other branches of government? We don't want to just trust one branch with this awesome power."

VINCENT WARREN: I would love for John Brennan to answer the following question. "The legal justification for us to drop bombs in places that, like Yemen and places like Pakistan and North Africa, places at which we are not declared to be at war, is the following."

I would also like to know what he thinks the line is between assassinating, target killings extra, outside of the United States and within the United States? Is there actually a line that can be drawn? What if there was a foreign person within the United States? Does the authority that is invested in the Obama administration is claiming, does that allow them to kill people within the United States who are foreign? Does it allow them to kill people within the United States who are U.S. citizens? There's no meaningful line that has been articulated.

VICKI DIVOLL: Anwar al-Awlaki's cell phone had more protections than his life.

BILL MOYERS: What do you mean?

VICKI DIVOLL: If we had wanted to target his cell phone, because he's a US citizen in a foreign place, the Obama administration had to go to a judge in the Foreign Intelligence Surveillance Court and get an order authorizing the eavesdropping on his cell phone. If they want to kill him, they don't have to. So his cell phone's more valuable, has more protections, because of Congress's action. Congress gave that review to the court. And the president has to go through it. To kill him, they don't have to. This is the kind of thing we're talking about.

VINCENT WARREN: That's right. The public narrative, I think, really is "The government must, we trust President Obama. The government must know what it's doing. So when these people died, there was probably a good reason for it. And you actually don't have to tell us what it is. We trust you." That's where democracies die. That's where we go wrong. You should never ever trust that the government is being completely and totally honest about the mistakes that it's making-- And the stakes are so high for both the, for the law, for our foreign policy, and for civilians in a killing program that it should, we should be doubly concerned in getting that information out there, so that we make sure that we don't make those mistakes or we correct them when we do.

BILL MOYERS: Let's close with a brief discussion on the issue of surveillance and eavesdropping. On the 31st of December, the president extended this controversial wiretapping act until 2017. The FISA act?

VICKI DIVOLL: Foreign Intelligence Surveillance Act.

BILL MOYERS: Right. Are you both troubled by the seeming lack of oversight for this extension of surveillance and wiretapping of suspected terrorists in this country? Do you think there's a real danger here?

VINCENT WARREN: I think there's a tremendous danger. And I think, you know there has been a codification of the expansion of power under George Bush. And so any time that Congress or through policies that are happening now that we're institutionalizing, codifying, making hard into our infrastructure things that were literally unthinkable ten or 11 years ago is of tremendous concern to us.

It shows our slippage. And we don't always realize that that's what's happening because we can say, "Well, that's what the law says." And, you know, where I come from and I think where we come from in the Center for Constitutional Rights is that we find that there is virtually always a gap between what is legal and what is just and what is right.

And that the problem that we have in this next four years is narrowing the gap between what the law says and what the law should be in order for us to be safe, secure, free citizens within this country and to treat other countries and other people around the world with the same amount of respect. Narrowing the gap between what's legal and what's just is what the big battle is.

BILL MOYERS: What's your greatest concern about this next four years in terms of the issues we've been talking about?

VICKI DIVOLL: We need Congress to step up and do its job. Which is to conduct oversight of this president and all presidents, the presidency, not just President Obama, in order to get some of these issues, in fact it's a golden opportunity to do it while you have a Democratic Senate and a Democratic President. It's harder if you have a Republican President because it looks partisan.

Here the two sides could work together. In fairness to President Obama, presidents don't like to acknowledge the giving up of power, no president does. On their watch they don't want to be the guy that shrunk the job. But I do think that the Senate, in particular, because it's still in Democratic hands, has a golden opportunity to get some of these things back under control so that when the next president comes in we'll have some laws and some standards that we can follow.

VINCENT WARREN: I very firmly believe that President Obama, that he's our best chance that I can see for the foreseeable future to do exactly what Vicki said, would be to shrink that pie of presidential power. He's inherited more from George Bush and George Bush took more than anybody else. If he doesn't do that, the next president will have more power than the previous two and that we'll be back on this show in four years talking about how we've slipped even more and that there's more egregious policies. And we will be looking at the ramifications for these policies. I want to see that change. And it's going to take people here in this country to be able to make that happen.

BILL MOYERS: Vince Warren, Vicki Divoll, thank you very much for being with me.


VICKI DIVOLL: Thank you very much, Bill.

BILL MOYERS: That’s it for this week. At our website there is a Q&A on the morality of the drone program with a political scientist who studies the ethics of war. There is also data on the number of people killed by American drones since 2002 when the attacks began. That’s all at I’ll see you there and I’ll see you here next time.

Are Drones Destroying our Democracy?

February 1, 2013

In the fight against terrorism, the American military’s escalating drone program has become the face of our foreign policy in Pakistan, Yemen and parts of Africa. And while the use of unmanned drones indeed protects American soldiers, the growing number of casualties — which include civilians as well as suspected terrorists — has prompted a United Nations investigation into both the legality and the deadly toll of these strikes.

Bill explores the moral and legal implications of using drones to target our enemies — both foreign and American — as well as other intelligence issues with Vicki Divoll, a former general counsel to the Senate Select Committee on Intelligence and former deputy legal adviser to the CIA’s Counterterrorism Center, and Vincent Warren, Executive Director of the Center for Constitutional Rights.

Also on the show, Rolling Stone‘s Matt Taibbi on the shocking lack of accountability for big bankers who continue to act unethically, and in some cases, illegally.

Learn more about the production team behind Moyers & Company.

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