Alberto Mora:

Our purpose as a government, as a country, is to protect and advance human dignity under all situations. And human dignity is defined by human rights and is defined by the civil rights that are articulated in our Constitution, which led me to the conclusion that in the strategic defense of our country, we do two things - we protect our lives and our territory, but we also protect our freedom and our values.

Katy Glenn Bass:

Hello and welcome to Lawyering Without Law, a podcast by the Knight First Amendment Institute where we explore the unique and important role that lawyers and the legal profession play in defending democracy or facilitating a country’s slide into authoritarianism. I’m Katy Glenn Bass. I’m the research director at the Knight First Amendment Institute, and you just heard a clip of our next guest, Alberto Mora, who we will introduce in just a minute. Joining me back on the podcast today is my co-host, Professor Madhav Khosla, the B.R. Ambedkar Professor of Indian Constitutional Law and professor of political science at Columbia University. He is also the Knight Institute senior fellow.

Madhav Khosla:

Hi, Katy. Great to be back on the show.

Katy Glenn Bass:

I’m glad you’re here.

Madhav Khosla:

Joining us today is Alberto Mora, who served as the General Counsel of the Navy during the George W. Bush administration.

Katy Glenn Bass:

After learning that detainees at Guantanamo Bay were being interrogated using practices widely considered to meet the legal definition of torture, Mora became one of the most prominent internal critics of the administration’s use of torture during the war on terror, arguing that these practices violated both US law and democratic values. In this conversation, we’ll talk about the fight against the use of torture after September 11th, the role that lawyers played during moments of national crisis, and what those debates can tell us about the present day.

Madhav Khosla:

Alberto, welcome to Lawyering Without Law.

Alberto Mora:

Thank you so much.

Madhav Khosla:

So to start off, can you tell us a little bit about your background, how you became involved in the debate over torture and interrogation policy inside the US government after 9/11?

Alberto Mora:

Well, by way of background, I think the first point to convey is that I’m the son of a Cuban father and Hungarian mother. I was born in Boston, but my father, who was studying postgraduate gastroenterology at Harvard Medical School, took his young family back to Cuba. So my first eight years, for all practical purposes, were in Havana and Pinar del Río, Cuba. The family supported the Castro revolution, thinking it to be a Democratic revolution, but soon thereafter, it was clear that it was not and the family then migrated to the United States. One year in Miami, then grade school and high school in Jackson, Mississippi, then off to college at Swarthmore.

And then into the State Department. That started a career that was both private sector and governmental in the George W. Bush administration. I was nominated and then confirmed to be the General Counsel of the Department of the Navy, so both the Navy and the Marine Corps. I assumed my responsibilities in the summer of 2001 was in the building when the aircraft hit the Pentagon on 9/11. And then my professional life changed, much like a lot of people’s lives changed after that day. I say my professional life changed because the team around the Navy Secretary, Gordon England, was selected really to redesign the business functioning of the department, make it more efficient. But then as soon as the aircraft hit, the country was at war and almost all of that work went out the window and we were focusing on fighting the war against terror.

Madhav Khosla:

And you had initially understood the Guantanamo interrogation program as a legal error that could hopefully and potentially be corrected through internal channels. When did you realize that that framing was inadequate and what did that reveal about how lawyers inside government understand the institutional role?

Alberto Mora:

Well, I actually had no understanding of the interrogation program at first. The interrogation and really detainee management and handling activities were classified as operational activities during the war, meaning that it was handled through military channels, really not through the Department of the Navy channels. The departments, all the military departments are entrusted with training, equipping, and then providing combat-ready forces to the combatant commanders who actually deploy the military. So I, as Navy General Counsel, had no involvement whatsoever, wasn’t even copied on correspondence or memoranda concerning anything dealing with the detainees, including the interrogation activities. I knew that detainees were being sent to Guantanamo. In fact, I was president in Guantanamo when the second flight load of detainees arrived and saw Camp X-Ray and how it was set up, which struck me as inadequate temporary facilities.

But the first time I got involved in interrogation would’ve been in November 2002, so more than a year after the 9/11 events, when an organization within the Department of the Navy, which I supervise, which is the Naval Criminal Investigative Service, they’re responsible for law enforcement, anti-terrorism, counter-espionage, counter-terrorism activities for the Navy, came to me and told me via the director of NCIS that they had been hearing rumors and had information concerning detainee abuse in Guantanamo. He wondered whether I wanted to get further involved in that. I did. NCIS came to me and told me what the basis of their suspicion was that detainees were being abused. They hadn’t seen it. They had not been present in any interrogation session, so they couldn’t verify it. But Guantanamo being a small place and people sharing work notes, the mess halls, the dormitories during recreation, they came to understand that one of the two task forces, the military task force responsible for obtaining intelligence information that could be used in military operations from the detainees, had been authorized and was using force to elicit the information.

NCIS went hunting further. They obtained, without permission, by the way, fragments of interrogation transcripts. And what they put together was a picture that untrained interrogators, mainly young with no language experience, no cultural experience, no interrogation experience, had been authorized to use force and the use of force was gradually increasing. NCIS was concerned that if the Guantanamo interrogation practices proceeded as the historical evidence shows globally, meaning that if force is authorized, then the level of force will continue to increase until they’ve reached the level of torture. They felt that that process was underway. It’s called force creep. And they felt that at Guantanamo, the interrogators may have already reached a level of torture.

When they finished the brief, I said I had heard nothing about this, but it really sounded like unauthorized unlawful activity was going on and I promised to look further. Two days later, I had in my hands the composite memorandum that was capped by a memorandum from the Department of Defense General Counsel Jim Haynes to Secretary of Defense, asking for authority to apply certain counter-resistance interrogation techniques to the detainees that included walling, potentially waterboarding, detainee-specific phobia techniques and other techniques that appeared as either clearly being in the realm of torture, such as waterboarding or potentially being waterboarding, depending on how they were applied to the individuals in question, either singly or in combination.

When I saw what had been requested by way of interrogation techniques, the absence of any competent legal memorandum associated with the legal authority for applying those techniques and the fact that the DoD General Counsel, with a consent of the chairman of the Joint Chiefs of Staff and the deputy Joint Chiefs of Staff, had submitted a request for approval of those techniques to Secretary Rumsfeld, Secretary Rumsfeld had approved them, I felt that this had confirmed what NCIS had feared and at least on paper, given the legal arguments and the interrogation techniques applied, that the interrogators might be certainly using cruel and inhuman and degrading treatment, but potentially had reached the level of torture at the time.

That was my initial set of understandings and my initial involvement with the entire procedure. I felt that this was entirely a mistake, meaning that had the attorney in Guantanamo, this is the Judge Advocate General for the Army that was a chief lawyer in Guantanamo, not written a memorandum that I thought was beyond their capabilities and I deemed as incompetent from a standpoint of accurately describing the legalities of interrogation in Guantanamo. That was approved by Southern Command in Miami, then sent up to the joint staff. The legal advisor to the chairman had not acted on the memorandum until the DoD General Counsel had gotten its hands on it and then he and the secretary approved it. Secretary approved it, I felt, because he had been relying on not only his general counsel, but four or five levels of lawyering before it had gotten to him. I felt the general counsel and certainly Secretary Rumsfeld were overwhelmed and not devoted sufficient time to read the memorandum and imagine what it could lead to. And so they’d missed the issue.

As soon as I got the memorandum, I went to see the DoD General Counsel, said, “Look, I’ve got this memorandum. I think it potentially authorizes torture.” He says, “No, it doesn’t.” And then I spent the next 45 minutes walking him through why I believe that easily the authorized techniques could lead to the torture. He listened to me as long as I cared to speak, but I felt that he immediately understood exactly the point I was making. I felt that because he had made a mistake, because I felt naively that no American lawyer, no senior government official would ever knowingly authorize the use of torture, that he would recognize his mistake and was certain that before I left his door to exit his office, he’d be calling Secretary Rumsfeld asking for the authorization to be withdrawn or suspended for the time being.

And I really didn’t think much about it. I thought the problem had been solved once the mistake had been pointed out. And about 10 days later, two weeks later, I was at my mother’s house near Miami, Florida in the pool when I got a phone call from the NCIS director, David Brant, saying, “Remember the problem we had talked about in Guantanamo, well, the problem is continuing.” And I was standing with a phone dripping wet and realized that while all of this had been a mistake, it was not inadvertent that people, who have been cautioned about the illegality of the activities, proceeded without changing. And I knew I’d had a different kind of problem than one of a simple legal mistake by an overworked attorney.

Katy Glenn Bass:

Thank you for sharing that history. So thinking about the way lawyers were understanding their institutional roles during that period, there were obviously a number of lawyers who were writing justifications for these interrogation practices. There were also lawyers like you and others inside the Department of Defense who believed that the program was unlawful and was inconsistent with American values. So how does this program continue in the face of internal opposition? What allows a large institution to act against what a lot of officials privately believe?

Alberto Mora:

That’s a question I’ve been posing myself for the last 25 years. I have yet to come to a satisfactory explanation how this came about. For those of us at my level, at the departmental level in the Department of Defense, and this is all the departments, Air Force, Army as well, we were not involved in the original lawyering. I wasn’t and I don’t believe the others were either. The Department of Defense General Counsel was involved. He was part of the inner circle of attorneys in the administration. That would include White House Counsel Alberto Gonzales, it would include the attorney general, it would include Vice President Cheney’s legal counsel at the time and a few others. State Department was not involved, for example. They were excluded from this. So there was a group of attorneys, probably less than 10, maybe even half of that, who understood the program. And as history later showed, the program was initiated by the CIA and taken to the White House into the attorney general’s office for recommendations to be enacted and then approved legally.

We had no understanding of that. It’s like the blind man touching the elephant. You see a portion of it, but you don’t see the totality of it. You don’t understand it. That’s what happened to me. I felt this was wholly homegrown in Guantanamo, it was mistakenly approved in DoD. I had no knowledge. In fact, I didn’t even suspect that National Security Council, attorney general, Office of Legal Counsel, White House Counsel had been involved in devising the program. I thought it was entirely a problem of the Department of Defense’s own making. It was only later actually until after Abu Ghraib that I got a fuller understanding of the entire dimensions of the program.

I don’t understand how this happened. I don’t understand how any single attorney, by looking at the paperwork, could not have understood that this was torture and it was illegal under any interpretation. But if I were to interpret what happened, I think the root cause is the fear and fury that the entire nation felt after 9/11, a fear that many more attacks would take place and many more Americans and other nationalities, residents in this country would die and the fury that this had happened and the determination to fight back against those responsible. I’m certain that the fear and fury distorted the mentality, the thought process, the lawyering process, most fundamentally, but certainly the values. And it went up from CIA and then they encountered attorneys both in the White House and the Department of Justice, principally John Yoo, who was a senior national security attorney in the Office of Legal Counsel. Very few other people at that level in the Department of Justice or at the White House had experience in international humanitarian law, laws of war. And so they were acting on the advice of a very few people who were sympathetic to the application of torture to these individuals.

Fundamentally, these attorneys thought that Al-Qaeda, through its barbarism, had opted out of the human race, individuals who, because they demonstrated their willingness and ability to kill and manifested their desire to kill many more, did not qualify for the ordinary legal protections or human rights protection that all individuals are entitled to. This was a mistake, a mistake on many different levels, but the failure to recognize the inherent right to be free from torture by individuals, including people of Al-Qaeda, they created a sham legal analysis that was not meant so much to provide an objective application of the law, but really more to create a get-out-of-jail card and legal immunity screen to protect those who recommended, designed, authorized, and implemented the program from ever being held responsible for having committed war crimes as it turns out. I believe that was the mechanism. They wanted the torture. They felt that the individuals who were targeted for torture had volunteered for that kind of treatment, and then they wanted to ensure that if anybody found out about the program, nobody would be held responsible for it. That was the internal, I think, locus, calculus. And then it filtered up through all these various departments and apparently nobody objected it until they got to me as far as I know. It’s shocking that that should have reached that level of permission at that point.

Katy Glenn Bass:

I agree with that. You spoke at the beginning of the episode about your own family history and your family’s roots in Hungary and in Cuba. Did that family history shape how you reacted to this program. And if so, how?

Alberto Mora:

Yes, absolutely. Both my parents and my mother twice had gone into exile. They had lost their family, their way of life, their language. You might come to the United States and have a very successful life and very comfortable life as my parents did, but nonetheless, you experience a type of suffering that is incurable by later success outside of your own homeland. My father, for example, was always Cuban, academic physician, did well financially, professionally, very credentialed, but he always felt Cuban and always felt that part of him was missing. What that taught me was the importance of politics, the important role of the United States in defending democracy and the rule of law. It taught me how comfort and security may be lost, and it pointed me unknowingly at first, but really in the direction of becoming a lawyer and becoming interested in American foreign policy and the role of the United States in the world. And that role I always felt was to defend democracy, defend human rights, defend the rule of law as the primary functions of American power globally.

Madhav Khosla:

So in 2016, you wrote a piece for Foreign Affairs emphasizing the strategic costs of torture, and that argument is sometimes read more through a pragmatic lens rather than through a moral one. And how do you understand the relationship between the strategic case and the moral case, and what’s your sense about which one perhaps proved more effective within government?

Alberto Mora:

So I’ve spoken to very accomplished academics who also served in government, including at the National Security Council. And they said that they never heard a discussion at the National Security Council as to what the right thing to do is. I mean, rather right thing, the moral thing to do was. There’d never been a discussion about morality at the National Security Council level, which takes us to a point worth noting that when the Bush administration approached the issue of torture, they only asked the question, “Can we do this?” Meaning they asked the legal question. They never asked the question, “Should we do it?” Which is why, as far as I know, and I think as far as the historic record now indicated, the National Security Council was never tasked with producing any memorandum as to the should question, “Should we use torture even if it were to be legally authorized to do so?"

I think had a pair of young staffers been given the weekend to put together a memo, they would’ve come up with 50 reasons why the United States should not engage in torture for foreign policy reasons, in addition to the legal and moral reasons as well. Unfortunately, the National Security Council on three occasions authorized the use of torture. And this is the full National Security Council, which included individuals like Colin Powell, who later told me personally that he regretted those choices that had he known what he was doing, what they were all doing, he never would’ve authorized the implementation of the enhanced interrogation program that the CIA was organizing.

So back to your question, I think as I thought about why the United States authorized torture and how it came about to do so, I felt that we had undervalued the policy reasons why torture should never have been implemented. And what I’m talking about there is that in reality, the United States is a construct of many ideas, but principally of certain values that are baked into the Constitution. We’ve organized our Constitution, we’ve organized our legal system, we’ve organized our system of governance in order to value and implement certain moral judgments, and at the heart of the moral judgments is the importance of human dignity. Our purpose as a government, as a country, is to protect and advance human dignity under all situations, and human dignity is defined by human rights and is defined by the civil rights that are articulated in our Constitution, which led me to the conclusion that in the strategic defense of our country, we do two things - we protect our lives and our territory, but we also protect our freedom and our values.

And the Bush administration did not realize that by essentially taking the right to be free from torture out of the basket of inalienable personal rights, both under international law and under American constitutional rights, we were then diminishing this fear of rights not only globally, but also within our own country. We had transformed the right to be free from cruelty to a matter of policy discretion by government, meaning that no, it’s not a matter of rights, individual rights; it’s a matter for any government anywhere to decide when or how to use torture to advance whatever security objective or other national objective they may have. That severely impinges on human dignity.

What’s worse, as the enhanced interrogation program metastasized, meaning that the black sites were constructed in various different countries, many other countries were recruited to engage in the extradition programs through other countries, for example, Morocco, Egypt, Jordan, other countries and so forth. We were asking them to put aside their adherence to human rights and to their own laws prohibiting cruelty to individuals and adopting a new architecture of human rights, which severely diminished. So I think their policy considerations, and in fact, in one of the conversations I had with the Department of Defense General Counsel, I asked him the question, “Who decided that it was more important or more in the national interest for us to be able to torture half a dozen, two dozen individuals rather than continue to coherently espouse the advance of human rights across the world, which has brought such benefits to the United States and so many other countries for over 50 years?” And so, whether we knew it or not, it was a policy decision we had made that we would value the application of torture over coherent enforcement and expansion of human rights.

So that was one problem, one policy problem with the decision to use torture. But I also felt pretty clear that the rest of our allies in the war on torture, meaning all the European countries, where this kind of behavior was per se criminal activity on those countries, those countries would not support an American policy or revisions to the architecture of human rights, such as the United States was proposing. And their opposition to that would also mean necessarily that our ability to create an alliance, expand an alliance, and fight with an alliance that shared the same values would be compromised. So our efforts to fight terrorism would suffer militarily as a result of our mistake in using torture as a weapon of war.

So there are a number of reasons. And in fact, I think the policy consequences of the use of torture were severe, not only to ourselves, our rule of law, our constitutional values, and our purpose, but also to the global alliances that we had sought to expand and maintain as a key foreign policy focus since the end of World War II. And I had two interests leaving the Pentagon. One is that the Bush administration’s definition of torture, which essentially permitted, as one critic said, everything that Saddam Hussein had been doing in his own country under the OLC definitions of torture, that that definition not be changed, that we revert back to the standard international definition of what constituted extreme force. And the second was that we understand not only the legal consequences, the moral consequences of use of torture, but the policy consequences that would necessarily ensue if that kind of reasoning were to be adopted by the United States and other countries. So those were my principal objectives and concerns following from this experience in the Pentagon.

Katy Glenn Bass:

Thank you. So you challenged the torture program from within the administration, and I believe you stayed for several years. You left at the beginning of 2006, correct?

Alberto Mora:

Yes, that’s right.

Katy Glenn Bass:

So looking back now, do you think that staying inside was the right decision? And do you have any advice for lawyers within this administration who are weighing the trade-offs between dissenting internally and leaving and going public?

Alberto Mora:

I think decision to resign is a difficult decision, a complex decision. It has various different kinds of metrics. Ultimately, it’s a personal decision that falls back on one’s own sense of right and wrong. It will vary with every individual. And by the way, I never asked anybody in the Department of the Navy or in any other administration to do anything on this program because I understood that this could be career-limiting. I felt that as a political appointee, this was my job. This is the reason that you have political appointees to take action on decisions that might be politically convenient or could be career-ending for somebody who’s a career officer.

I sympathize and I understand that if you’re 20 years into a 30-year career as a civilian in the general counsel’s office in the Department of the Navy and you’ve got the proverbial kids in school and the mortgage to pay off, that you losing all of that, losing your retirement after 20 years of investment is a profoundly serious decision with profoundly serious impacts on one’s wife and children. And because I felt I could do this myself, I could raise the issue, confront the decision without necessarily involving others, I did that, but also recognizing an important element in the decision whether or not to stay in an administration or not stay in an administration.

I think, first of all, what happened with me is that most of this activity was done before Abu Ghraib. So we raised the issue, I was successful, and then I don’t mean to give myself the credit, because when I went around and talked to the other services, senior judge advocates, all of them agreed with my analysis. All of them agreed that this was unlawful, that the memoranda were incompetent, and that as a policy decision, as a military decision, the use of torture was profoundly counterproductive on many different levels. So after a relatively brief period of time, I’d say maybe two months or three months after the initial discovery of the torture, it wasn’t me that was working. It was a team, myself and all the other senior TJAGs that were advocating for the same position within the Pentagon. This was an achievement from the standpoint of attempting to counter the policy.

I went repeatedly back and indicated that I would have to write a written memorandum and put it in the file, send it to the DoD General Counsel, staking my position that the authorized techniques were torture. Secretary Rumsfeld rescinded the authorization to use those techniques in Guantanamo. And NCIS confirmed to me that the abusive interrogation at Guantanamo had stopped. This, to me, was a victory. I felt that common sense had finally prevailed. It took a while longer than we would have wished, but nonetheless, the Pentagon had come to see the reality that those interrogation techniques were neither legal nor wise.

Secretary Rumsfeld then ordered that we create what was called a working group to analyze the issue in much greater detail. That working group was then directed that they were to accept the Office of Legal Counsel’s memoranda on harsh interrogation techniques, which I certainly wouldn’t accept and it turned out the other JAGs would not accept as well. I informed the DoD General Counsel that I would not submit to OLC advice if this was going to be the advice that torture was authorized, and we would oppose or not concur with any working group recommendations that would rely on those memoranda.

The working group was disbanded, we thought, and no memorandum authorizing those techniques was ever authorized. So we had thought that we had won the debate concerning techniques, and I, and I don’t think anybody else among the senior JAGs, ever received any other indication that abuse was going on elsewhere outside of Guantanamo until Abu Ghraib. When Abu Ghraib exploded in the summer of 2004, I was astonished because I was wondering, how could this have happened? We had this discussion in the Pentagon, we had a decision, and so forth. And then of course then the disclosures about CIA involvement, Justice Department involvement, National Security Council involvement, the presidents and the vice president’s own involvement came out, and it became clear that what I had thought the problem was was a complete misreading. I was looking at only at a narrow corner of the issue, not at the entire picture.

President Bush threatened to veto Senator McCain’s Detainee Treatment Act legislation that would have prohibited the use of abuse by any government official directly or indirectly anywhere in the world. Had that happened successfully, I would have been obliged to resign from the administration, but because the veto did not prevail, the act came into place, there was significant progress at the senior levels in the military to oppose the use of torture and return to Geneva, I felt that my continuing the administration was warranted, but there could have come a time where had the administration prevailed on the torture issue, I would have had to resign out of principle.

Madhav Khosla:

Alberto, the lawyers most responsible for authorizing the torture program face little professional accountability. And how do you think that represented something to the next generation of government lawyers? What message did it send to them?

Alberto Mora:

I think that’s a matter that has been profoundly troubling throughout. I don’t understand how anybody responsible for authorizing and implementing torture could be any attorney involved in the process, could not but be sanctioned and possibly disbarred by their home bar association for having done so.

I think what’s happened is the torture program was a failure, a failure in the sense that it was counterproductive. It didn’t produce the intelligence that they hoped and was confident it would produce. The Senate torture report, by the way, I think conclusively demonstrates that as a policy matter, meaning torture did not work as it was advertised by the CIA supporters of the program to have worked in addition to being illegal, bad policy.

But the immunity program that was put in place, the immunity mechanism that the Department of Justice put in place has been strikingly successful. In addition to the fact that the politics of this were such that there probably would not have been a member of Congress that would’ve supported indicting those responsible for the torture program at any time between 2001 to the present time, and that would’ve been compounded by the fact that to have really held everybody who was responsible accountable, it would’ve meant holding the president, vice president, attorney general, national security advisor and a whole raft of lawyers as responsible and that simply would not have happened as a matter of politics in this country.

By the way, when I was in the Pentagon, I understood that there were two issues here. One was the legal standard and then the accountability issue. Those were the two primary legal issues when you talk about something like torture. There’s no law that actually would be worthy of the designation of law unless there’s accountability for its violation. But as I say that, I recognize, and I recognized this in the Pentagon, that for me to have raised the accountability issue at the very start would’ve changed the dynamic of the discussion completely because everybody associated with the program would’ve felt personally threatened and they would’ve been, and the discussion would not have changed as to what does a law provide about torture, but am I going to be liable or are my colleagues going to be liable and what are the political dimensions of this?

So I never raised accountability at first. My interest was ensuring that the international standard and the international definition of torture was upheld. But later, once that standard was more or less upheld, then the accountability issue reared up. And my hope is that as a result of our torture experience, the American public, the American national security leadership understand that were we to go back to a torture regime, there will be accountability next time around. That’s not a given; that’s a hope more than a legal certainty at this point.

But my belief is that the authorization of torture and the inability of our courts and political system, including congressional oversight, to hold those accountable for doing this has facilitated the slide down into the current situation where you see much greater illegalities being conducted in the administration. You see widespread cruelty as a feature of administration policy across a wide variety of fronts with very little appreciation to the fact that any application of cruelty to individuals under whatever guise, whether it be for military intelligence purposes or immigration law enforcement, is contrary to our values. And we seek, at all times, to build a world that is more protective of human dignity than one that is less protective of human dignity. And I think what we’ve seen in the trajectory between the Bush administration and the Trump administration is a slide down towards greater use of cruelty as governmental policy and less accountability for the same reasons that we didn’t hold people accountable in the Bush administration for having violated the law.

Katy Glenn Bass:

Yeah, I think that’s an important observation. So we have one last question for you in our few minutes remaining, which is turning to the work that you did after you left the Pentagon working on international rule of law programs through the American Bar Association. And I’m just wondering, from that vantage point, how do you see the pressures, how do you understand the pressures that are now being applied to lawyers and judges and institutions, like universities and law firms in the United States?

Alberto Mora:

Well, I had thought that my experience in the Bush administration was difficult, but it’s really has no degree of difficulty compared to what lawyers are experiencing now in the Trump administration. I and my colleagues in the JAG Corps would not have lasted half an hour in the Trump administration. Whatever one may say about the Bush administration, one can’t say that they attack lawyers personally the way that the Trump administration is attacking them now. Lawyers who believe, as I do, that the federal government is only authorized to do those things that it’s expressly allowed to do under federal law have not survived in the Trump administration. So you have a situation now is that to the extent that there are still individuals ... And of course, as you know, thousands have resigned from Department of Justice, but all the various different departments. Those individuals are probably not raising legal objections, not really working as lawyers as the way they should be.

So we have an immense threat to the rule of law in this country, an immense threat that comes from various different directions, including the Supreme Court decision Trump v. US that found that fundamentally a president is immune from being held responsible for illegalities while acting [inaudible 00:33:17] presidency. So under that analysis, where Trump to order the use of torture like George W. Bush did, then he most likely would not be held, could not be held liable, could not even be investigated for having committed torture. So my belief, stated starkly, is that the United States is a country that has a strong rule of law tradition, but it is not a country strictly speaking that is a rule-of-law country, simply because presidential immunity and its cascading effects throughout the administration then removes the president, the administration from the full ambit of accountability.

The American Bar Association gave me an extraordinary opportunity. When they selected me to be the director for global programs, it involved the directorship of the Rule of Law Initiative and then oversight of the human rights activities of the Bar Association. The Rule of Law Initiative had started towards the end of the Cold War, 1989, 1990 as the Berlin Wall was falling down, when individual American attorneys started going over to Eastern Europe primarily and volunteering their services to countries, rebuilding human rights, criminal laws, the judiciary prosecution functions, establishing defense bars, really reforming the entire legal systems of the country. The programs were extraordinarily successful in many countries. You go to a place like Georgia, for example, the country of Georgia, and they’ll tell you the American Bar Association was responsible for the Georgian Bar Association and regaining life and autonomy in that country. But the same can be true of many countries in the region and around the world.

I should mention that in my sense, before the growth of authoritarianism in this country and in other countries, like Hungary and other places, I saw as the greatest threat to the rule of law, the growth of corruption in all its senses, lots of countries in which the rule of law is significantly eroded through or extinguished through the use of corruption. I worked extensively in Guatemala, for example, where that was a country where the legislature, the law schools, the bar association, the courts, and even civil society were all under pressure from malign elements that essentially did not want the rule of law to function in their countries. And so what I was focusing on for my time there was how can the American Bar Association and the United States government and other governments, particularly in Europe, work together to help rescue countries that have been captured by malign elements? What’s the process? How do you chunk that mission? Where do you start? What are the forces that need to be applied, the theory?

And that continues to be a challenge. Even if authoritarianism weren’t an overriding challenge, the threat of corruption to legal systems and the rule of law are an immense problem that have been underanalyzed and not given sufficient importance in public policy, foreign policy.

Katy Glenn Bass:

That’s absolutely right. And unfortunately, I think that is increasingly going to be the case here, trying to disentangle the corruption from the breakdown of the rule of law.

Alberto, this has been a really fascinating and thoughtful discussion. Thank you so much for taking the time to come and speak with us. And also, I just want to add a personal note because I was in law school right around the time you had left the Pentagon. I started in 2006, and the fight over the torture program was really formative in both my undergrad and my law school years. It was why I went to law school. And I just want you to know that people like you who did stand up and who said, “This is wrong. This is both immoral, but it’s also unlawful,” you really meant an enormous amount to young law students like me and to the people that I went to school with. So thank you for the work that you did. It’s been a little awestruck talking to you just now. It’s been wonderful. Thank you.

Alberto Mora:

Katy, thank you so much for those kind words. I’m delighted to hear them.

Madhav Khosla:

Thanks so much for being with us, Alberto.

Katy Glenn Bass:

And that’s it for this episode of Lawyering Without Law. Join us next time for a conversation on the history of 20th century authoritarianism with David Deisenhouse and Jan-Werner Müller.

Lawyering Without Law is a production of the Knight First Amendment Institute at Columbia University. This episode was produced and engineered by Dustin Foote, fact-checking by Harriet Engelke and Arman Amin. Candace White is our executive producer. Our music comes from Envato Elements. The art for our show is designed by Jay Volmar. Thanks to Alberto Mora who joined us for this episode.

Lawyering Without Law is available on Apple, Spotify, and wherever you listen to podcasts. Please subscribe, share, and leave a review. We’d love to know what you think. To learn more about the Knight Institute, visit our website, knightcolumbia.org, that’s knight with a K, and follow us on social media. Bye for now.