interview: David COLE

ISLAMICA: We just had the fifth anniversary of Sept. 11. What is the state of civil liberties in the United States?

DAVID COLE: I am now at work on a new book called Less Safe, Less Free: Why We Are Losing the War on Terror. And I think that title captures where I think we stand. That is, we have less civil liberties than we had on 9/ 1 1 in some significant ways. But we are also, I believe, less safe as a result in many instances of the sacrifice in human rights, civil liberties, and the rule of law that (the Bush) administration has adopted.

ISLAMICA: Have there been actions taken by the Bush administration that you would characterize as positive developments?

COLE: Wow, that’s a really hard question! (laughing) Well, I think there’s plenty that they have done which is non-controversial which has probably indeed has made us safer – the kind of things the 9/ 1 1 Commission recommended – which are largely pro- tective measures that are designed to make it more difficult for a terrorist to hit us and make it more likely that we will be able to identify terrorists before they hit us. So, the increased security at airports, increased checking of luggage, increased security of ports, increased security on others sorts of potential targets like chemical plants and fuel supplies and places like that. Also, in- creased sharing of information from intelligence people to law enforcement people, greater efforts to protect nuclear materials in the former Soviet Union, so that they are not accessible to terrorists. All of those things are posi- tive and I think they make us safer. But they do not involve the infringement of civil liberties, they don’t involve ethnic profiling, they do not involve targeting of foreign nationals or Arabs and Muslims. I think they are to be applauded. But I would point to the ?/ 1 1 Commission itself, which issued a report card in December 2005 on how the Bush administration is doing in terms of furthering these matters, and it’s not the kind of report card you would want to see your children come home with. It had something like 8 Fs, maybe 10 Ds, and a dozen Cs, a couple of B-s and maybe one or two As. It was a very critical report card on the recommendations made by the ?/ 1 1 Commission, which are essential for this kind of relatively low level, broad-based protective measures that I think make it harder for anyone to attack us and arc more likely to make us safe. But they do not make as splashy headlines as say announcing the detention of Jose Padilla or the prosecution of Sami Al-Arian does.
ISLAMICA. You have already touched on the issue of foreign nationals and you also discuss this in your book Enemy Aliens. Why should American citizens stick their necks out and use their political voice to oppose measures, such as wider law enforcement or intelligence gathering, when the targets of such measures are largely foreign nationals?

COLE: Well, I think there are at least a couple of reasons that we all have to care about. Historically, measures that have been initially directed at foreign nationals have subsequently been extended to citizens. What happens is foreign nationals are the easiest targets and most vulnerable targets, so they’re the initial targets. But government officials, once you give them a certain kind of power over individuals, they get used to it and almost inevitably seek out ways to extend it. You will see that virtually every form of repressive government measure that has been employed in the United States against citizens started out as an antialien measure and was then extended to citizens. We have seen that kind of extension already. The enemy combatant authority was first articulated with respect to the foreign nationals being held at Guantanamo (Bay, Cuba). The Bush administration argued that it was okay because they are foreign nationals, but ultimately it extended it to American citizens Jose Padilla and Yaser Hamdi. You also see it with respect to spying on Americans. The (National Security Agency) program is a program that (purportedly) targets foreign nationals, but foreign nationals talking to people in the United States, namely Americans and (other) foreign nationals, without any distinction being made between them. It is anyone who is having a call with someone who they suspect might have some link to AI-Qaeda or an affiliate group.

So that’s one. What we do to foreign nationals inevitably is extended to citizens. The second reason, maybe an even more important reason, is that if we are perceived by the rest of the world as employing a double standard in the way that we pursue the war on terror, if we are seen as imposing on other countries’ nationals, burdens that we wouldn’t be able to tolerate ourselves, then we sacrifice the legitimacy of the enterprise. And I don’t think the world considers it illegitimate for the United States to seek to protect itself from another attack like the one we suffered on 9/ 1 1 , but I think the world does think it is illegitimate to do so by sacrificing their citizens’ rights and not our citizens’ rights.

ISLAMICA: You brought up the issue of domestic spying. What concerns you more about this practice: the actual substantive measure of warrantless wiretaps of American citizens on American soil or the aggrandizement of power by the executive branch?

COLE: I think it’s definitely the latter. We don’t know enough about the program to know how concerned we ought to be about invasions of privacy that are illegitimate. We don’t know how many taps there have been nor how widespread the program really is. At some point we may learn that and there may be serious concerns. But what we do know is what the Bush administration has put forth as its defense of the program, and they should give everybody pause. Because the argument is essentially that the president as commander- in-chief has the unilateral, “uncheckablc” authority to select the “means and methods of engaging the enemy,” which is a quote from the Justice Department’s memo defending the program. And their claim is that when you’re talking about the means and methods of engaging the enemy, it is impermissible for either of the other branches of government, Congress or the courts, to restrict the president in any way shape, or form. So that means that the president can spy on Americans in the face of any criminal statute that specifically prohibits it.

The president made the same argument with respect to torture in the famous August 2002 “torture memo.” Even though there was a criminal statute that prohibits torture under all circumstances, the president as commanderin-chief could ignore and violate those laws because they were unconstitutional to the extent that they restricted his selection of the means and methods of engaging the enemy. And he has made that argument with respect to “enemy combatants.” He argued in the Supreme Court in the Guantanamo case that the court could not give Guantanamo detainees access to courts because that would consist of the courts interfering with the president’s decision about how to select the means and methods of engaging the enemy. The court unanimously rejected that argument. So this is a view of unfettered executive power that I think all Americans ought to be concerned about.

ISLAMICA: So are we heading toward some sort of constitutional crisis, a face-off between the executive branch and its counterparts in the legislative and judicial branches?

COLE: I think we are in the midst of one, when you have a president who makes that argument, first in secret in the torture memo then openly to the Supreme Court where it is rejected by all nine justices on the court. In the Guantanamo case, not one justice adopted the view that it is unconstitutional for the courts to play a role in reviewing the detentions. But then you see the president continue to make the argument with respect to the NSA spying program after it has been rejected unanimously by the Supreme Court. That’s pretty bold. I think if the Supreme Court rejects the argument with respect to the NSA spying program, the president is likely to obey that. But literally construed, his argument is, “Why should I obey it? Because I am the only one who gets to say what is permissive when engaging the enemy, not the Supreme Court or Congress.”

ISLAMICA: The Palmer Raids in 19191920, the internment of Japanese Americans during World War II, and the outbreak of McCarthyism during the Cold War era are all universally recognized as disturbing examples of overreaction in times of heightened national security. What lessons can the government take from these regrettable episodes, and what fessons can the people take?

COLE: Well, I wish the government would learn from its mistakes but it is not clear that it does. I think the round up of Arabs and Muslims after 9/ 1 1 is very, very similar to the round up that we saw in the Palmer Raids. Then, there was a series of terrorist bombings – eight bombs went off in eight different cities within the same hour of the same day. And we responded not by going to the bombers – we actually never caught the bombers – but by rounding up thousands of foreign nationals and charging them with technical visa violations and guilt by association. And similarly, after 9/ 1 1 , we rounded up thousands of foreign nationals, virtually all of them Arabs and Muslims, and charged them with technical visa violations and other types of non-terrorism related charges. At the end of the day, not one of the people rounded up in the Palmer Raids was found W have been involved in the bombing, and not one of the over 5,000 foreign nationals the government detained in anti-terrorist measures in the first two years after 9/ r r has been convicted of any terrorist crime. So I think the lesson is these kinds of sweeps are not particularly effective and are likely to harm many innocent people and alienate the very communities we need to be working with.
ISLAMICA: Even though the vast majority of Muslims are not terrorists, many recent attacks of terror have been committed by Muslims. That being the case, is there anything wrong with engaging in some religious profiling in order to serve the interests of the nation as a whole?

COLE: I don’t think religious profiling or ethnic profiling is permissible, period. That is using religion or ethnicity as a proxy for suspicion. It just doesn’t make any sense. On the one hand it’s true, all of the 19 hijackers were Arab Muslim men. But there are millions and millions of Arab Muslim men around the world so it’s just a terribly bad way of singling out, and I think, based on what we have learned since 9/ 1 1 , it is virtually useless as a way of identifying terrorists. Because not only did they detain 5,000 foreign nationals, they also called in 80,000 people for special registration simply because they came from Arab or Muslim countries. They sought out 8,000 others for FBI interviews because they were young men from Arab and Muslim countries. Out of these 93,000 people, not one of them today stands convicted of any terrorist offense! So this has been shown to be an ineffective tool and it’s a tool which creates tremendous alienation and enmity within the very communities we ought to be working with if we are going to find any real terrorists.

ISLAMICA: You have worked with members of the Muslim community since the days of secret evidence. Have you seen an increase in outreach and coalition building as compared to the mid-1 990s?

COLE: Absolutely. I think in some sense this has been a wake-up call and Muslim communities have responded. I think (they have responded) quite well by seeking to speak to the broader community and work with the broader community, recognizing that that’s in their interest. In particular, I see the work of the Muslim Public Affairs Council (MPAC) and the Council on American-Islamic Relations (CAIR) as very important in terms of getting the message out. And you know more local groups as well as many mosque leaders whom I have worked with. In Chicago, for example, where I visited, there’s a Jewish-Muslim alliance progressive Jews who have worked with Muslims – and there’s also some sort of a round table of law enforcement people who have met regularly with leaders of the Muslim community. All ofthat is, I think, really useful and important. I think it has been done, we should always be doing more of it, but that’s the direction we need to be going in.

ISLAMICA: Your contributions to the defense of civil liberties have included advocacy in the courtroom, including several high profile cases, as well as scholarly works and appearances in major media outlets. Among these different channels, where have you found your voice to be most effective?

COLE: That’s a good question, because I don’t have a way of measuring effectiveness, (laughing) My view is that all of these outlets are important. You need to fight cases in the courts, but you certainly cannot rely on the courts, you need to testify in Congress and lobby your Congress person, but you certainly cannot rely on Congress. You need to speak out in the media, but you cannot totally trust the media either. You need to work within the academy because that’s an influential opinion body. I think that one of the lessons that people have learned in the civil rights community is that it is generally not enough to focus on litigation in the courts. If you go back to the days of Brown versus Board of Education, there was a sense that what lawyers do is go to court. And what courts do is provide us with remedies. But that was always a sort of false notion in the sense that the only reason the courts were responding was because there was a political movement of getting out in the streets and demonstrating, getting media attention to civil rights abuses that created a climate in which that change could occur. What that means is you have to have a multipronged approach and a significant part ofthat is educating the public and change the culture so that people are less afraid of Arabs or Muslims, more attuned to civil rights and civil liberties issues that are presented, more aware of the security costs of some of the kinds of choices the Bush administration had made, and more committed to the values that this country was founded upon.

ISLAMICA: How has your own thinking evolved since 9/11?

COLE: That’s a good question. I have been thinking about these issues since the mid-8os when I started representing people in immigration proceedings with some sort of quasi-“terrorist” elements in the case. So for a long time I’ve been thinking about how one balances security and civil liberties. I guess I have been struck, on the one hand, by how far this administration has been willing to go, particularly in the area of torture and the detentions at Guantanamo, and the kinds of arguments it has made about people having no rights whatsoever, renditions, and the like. So on one hand I’ve been surprised that the government went as far as it did. I think before 9/ 1 1 one would have thought, I mean I certainly thought, that torture was an abstract discussion, not a true matter of controversy. On the other hand, I’ve also been happily surprised by the resilience of those who have spoken out against these kinds of measures, the robustness of civil society in its opposition to much of what the Bush administration has done. I think that’s incredibly important. So I’m talking about groups like CAIR, MPAC, and the Arab-American AntiDiscrimination Committee (ADC), Human Rights Watch, the ACLU, the Center for Constitutional Rights, various immigrants groups, the privacy Internet groups, I mean there’s a prettybroad array of non-governmental organizations which provide opportunities for people to get involved, which provide important loci of resistance to government abuse. That’s absolutely critical because we talk in this country about the importance of checks and balances. But when one party controls the presidency, the Congress and the courts for all intents and purposes, where are the checks and balances going to come from? I think they come from the people – through these political organizations that are engaged in the struggles that speak out, and I think it’s because these organizations have effectively been speaking out that you see the media more critical of the administration than the media has been in prior national security crises, and you also see the courts more critical and more willing to stand up to the administration than in prior national security crises. Again, it helps create the culture I was talking about before that is necessary to get some remedy.

Please visit www.islamicamagazine.com for an expanded Q & A with Professor David Cole.