David Cole Speaks on “Why We’re Losing the War on Terror”

Says We’re Sacrificing Basic Values for a False Sense of Security

by MARK GABRISH CONLAN

Copyright © 2007 by Mark Gabrish Conlan for Zenger’s Newsmagazine • All rights reserved

“After 9/11, the Justice Department adopted an enforcement regulation which depends on predicting the future,” said David Cole, Constitutional law professor at Georgetown University near Washington, D.C., legal affairs correspondent for The Nation and litigator before the U.S. Supreme Court on a variety of issues — from the unconstitutionality of laws prohibiting flag-burning to a challenge to content restrictions on federal arts funding — at his June 26 lecture at the Lyceum Theatre in Horton Plaza. The result, he said, has been a series of sweepingly repressive measures that have abandoned the basic guarantees of civil rights and due process under the U.S. Constitution and the British common-law tradition that informed it, a strategy Cole regards as so blatantly self-defeating he called his lecture “Why We’re Losing the War on Terror.”

Cole began by mentioning the 2002 film Minority Report. In the movie, based on a short story by legendary science-fiction author Philip K. Dick, “the Department of Justice has found three witches who can predict crimes with uncanny accuracy, and they solve the problem of crime” — until someone figures out how to game the system and use it to frame the film’s protagonist, John Anderton (Tom Cruise), for an as-yet-uncommitted murder. According to Cole, the real-life Justice Department isn’t literally following the film’s story — “they don’t have witches in the basement,” he conceded — but they’re likewise basing much of the so-called “war on terror” on a similar claim to clairvoyance.

“Bush’s first attorney general, John Ashcroft, was the progenitor of this whole idea,” Cole said. “There was a discussion in the White House on September 12, 2001 and Bob Moeller, head of the FBI, said, ‘We want to find the people responsible for this and bring them to justice.’ Ashcroft said, ‘We need to find them and not worry about bringing them to justice. We want to prevent a future attack from occurring.’ So the Bush administration put in a host of highly coercive measures in response, not to what people have done in the past, but to what they might do in the future.”

Cole talked about a case in which he represented Mash al-Harar, a Syrian-born Canadian citizen who became one of the most infamous victims of Bush’s “prevention” policy towards terrorism. Al-Harar “was returning home to Canada from a family vacation in Europe and changing planes at JFK Airport when he was pulled out of line and questioned by immigration authorities for one week,” Cole explained. “When his family contacted an attorney in New York, the government lied to the attorney and to his family and said they didn’t know where he was. Al-Harar was deported to Syria and spent the next year being imprisoned in a cell the size of a grave and tortured. After one year he was released by the Syrians because they found no evidence he was guilty of any wrongdoing. Neither did the Canadians, but the U.S. actions against al-Harar were part of this ‘prevention’ paradigm. They feared he might have information about terrorism, and that Syria could get the information out of him by torturing him.”

Even the advocates of harsh treatment of detainees, including the sweeping roundups of thousands of Arab and Muslim Americans after 9/11, the attempt to establish a “law-free zone” at Guantánamo Bay in Cuba and set up ad hoc “military commissions” to try alleged terror suspects, the tortures at Abu Ghraib and the so-called “extraordinary renditions” in which the U.S. has flown people like al-Harar to other countries where they would be tortured, concede that the purpose is “prevention” rather than punishment. “No one argues it’s O.K. to torture someone to punish them or bring them to justice,” Cole said. Instead, the argument the torture supporters usually use is the so-called “ticking time bomb” scenario, in which supposedly the person under interrogation is part of a terrorist group that has set a nuclear bomb to go off within hours and supposedly torture is the only way to get him or her to tell where the bomb is before it goes off.

“Most tragically,” Cole said, “the ‘prevention’ scenario is what launched the war in Iraq. In 2002 the Pentagon rewrote the laws of war to be able to attack pre-emptively when we haven’t been attacked and are not under imminent threat of attack. No one ever said Iraq was imminently threatening to attack us.” Instead, he reminded his audience, the rhetoric about Saddam Hussein’s alleged programs to develop weapons of mass destruction was that he would achieve a chemical, biological or nuclear weapons capability within two, three, five or 10 years, and that he needed to be stopped and forcibly removed from power before that happened. Even if Iraq had been developing weapons of mass destruction — which, we now know, it was not — attacking it at that stage was a flagrant violation of international law, Cole argued.

The real problem with Bush’s “prevention” strategy, Cole said, is not just that it gets us into needless, wasteful, unnecessary and illegal wars like the U.S. attack on Iraq in 2003, but that it “puts tremendous pressure on the fundamental values of the rule of law.” He also made two other critiques of it: “it’s not clear that the ‘prevention’ paradigm works,” and “there are smarter ways to prevent terrorism.” Cole admitted that the U.S. has pursued a “prevention” strategy in the past, most notoriously in the mass internment of Japanese-Americans during World War II. “No one said that any of them were spies or saboteurs, simply that they might do things later,” Cole said. But he argued that the Bush’s “preventive” program is not only wrong on its face, it runs the risk of changing America’s image in the rest of the world from a free society based on law to a quasi-dictatorial regime based on arbitrary executive power.

“There are many values people associate with the rule of law: equality, transparency, fair processes, checks and balances, and a commitment to human rights,” Cole said — adding that Bush’s “prevention” strategy offends against all five. “Equality: just as in the Japanese internment we targeted Japanese and not Germans or Italians,” Cole explained (though actually some Germans and Italians in the U.S. were interned during World War II — but selectively, not en masse as the Japanese were), “after 9/11 we targeted foreign nationals in general and nationals of Arab or Islamic countries in particular. In the first months after 9/11 the administration locked up over 5,000 foreign nationals out of fear that they might engage in terrorism.” Cole said that one of these roundups was based on an anonymous tip that there were “too many Middle Easterners” working as clerks in a particular convenience store.

After each of these raids, Cole added, “Ashcroft would go on TV and say things like, ‘We’ve locked up 500 terror suspects,’ making it look like they were doing something, when Ashcroft later in his memoir said he’d had no idea what they were doing. The detainees were arrested in secret, so a wife whose husband had disappeared would be told they had no idea where he was. They were ‘tried’ in secret hearings from which family members, friends, attorneys and even members of Congress were barred. A number of them were guilty of immigration violations and agreed to leave the country, but instead we held them for months without probable cause.” Cole argued that the administration was able to get away with this because the victims weren’t U.S. citizens; if they’d tried to round up 5,000 citizens without probable cause or due process, “there would have been more of a hue and cry.”

Cole cited Guantánamo, in which “5,000 people have been locked up for over five years,” is another example of the current administration’s flagrant disregard for the rule of law in its current pursuit of a “preventive” strategy against terrorism. “Not one has been given a trial,” Cole said. “The government has said the President can designate anyone in the world an ‘enemy combatant’ and hold them forever. Some were to be ‘tried’ in military tribunals, and the rules allowed them to be tried and executed based on secret evidence. This only applied to foreign nationals, not U.S. citizens, because vice-president Dick Cheney said that foreigners don’t deserve the same rights as U.S. citizens.”

When Cole filed suit on behalf of al-Harar, the Canadian citizen apprehended at JFK Airport and then “rendered” to Syria for torture, the government’s first response was “he’d never ‘entered’ the U.S. and therefore had no constitutional right to object.” Cole also said that “the most immoral of these double standards” was another pronouncement by Cheney, this one saying “that there was no ban on cruel, inhuman and degrading treatment of foreigners held outside the U.S.,” a doctrine which “freed” the CIA to engage in waterboarding and other forms of torture (euphemistically referred to as “enhanced interrogation techniques”).

Cole also said that the secrecy the administration created at every level of the program — “secret arrests, secret trials and secrecy as a trump card” in avoiding judicial scrutiny — systematically violated the transparency essential to maintaining the rule of law. “In Harar’s case, the government has said his whole case must be thrown out because it’s a secret,” Cole said. “The same argument was made in the ACLU’s case on al-Masri, a German national” who, like al-Harar, was secretly “rendered” to a country that tortured him, “and by the President to get the courts to get rid of the suit about the President’s illegal wiretapping program.” According to Cole, even though the program’s existence had been revealed in the U.S. media and the President, in defending the program, had publicly acknowledged its existence, nonetheless the administration claimed to the courts that even hearing the lawsuit would reveal government secrets, and therefore the courts had no right to try it.

As for “fair processes,” Cole’s third standard of the rule of law, he noted how the administration has systematically avoided prosecuting detainees or terror suspects in ordinary U.S. courts, where due-process safeguards would apply to them. The whole reason the initial 5,000 detainees were “locked up on immigration violations,” Cole said, “was so they couldn’t be tried in U.S. courts.” He also said that the detainees at Guantánamo are entitled to so-called “status review board” hearings to determine whether or not they are genuine “enemy combatants” — i.e., terrorists — but in these hearings, “they get no lawyers, the judges are the military judges who put them there in the first place, and even if the detainee gets one panel to say he isn’t an ‘enemy combatant,’ the government can put him through the process again and again until they get a panel to say he is.”

With regard to “checks and balances” — the principle we learned in middle school was the essence of the U.S. Constitution — “the administration has made arguments in three areas that the President is above the law when he is acting as commander-in-chief,” Cole said. He cited an interesting precedent — Richard Nixon’s claim in his 1977 interviews with David Frost regarding warrantless wiretapping that “when the President does it, that means it is not illegal” — and said that Bush and his attorneys have argued that in time of war that’s literally true. The theory is called the “unitary executive” and one of its intellectual authors, Justice Department attorney turned law professor John Yoo, who in an interview on the February 16, 2007 episode of the PBS-TV show NOW, told interviewer David Brancaccio, “I think the President can do anything that a regular commander-in-chief can do in wartime, ranging from what kind of tactics used on the battlefield to bigger strategic questions of which countries to invade, which fronts to attack first.”

According to Cole, the Bush administration has used this concept not only to broaden the “war on terror” to other countries, but to evade legal accountability and prevent the courts from reviewing its actions. “Bush had argued that the Guantánamo detainees couldn’t have a day in court because that would ‘interfere’ with the President’s ability to conduct the war on terror the way he chooses,” Cole said. “The U.S. Supreme Court reversed that in a 9-0 decision, but that did not stop Bush. They also expressed this view in the infamous ‘torture memo’ of 2002, when they said Bush has to have the freedom as commander in chief to wage the war on terror in his own way. Bush also argued that the national wiretapping program is not a crime because it is his right to ‘engage the enemy’ as he sees fit.”

Cole recalled a debate he once had with Viet Dinh, the Justice Department attorney who wrote most of the USA PATRIOT Act; oddly, he remembered it as a private conversation between the two men but it was actually a discussion on the Jim Lehrer News Hour on PBS. In the debate, he made many of the same arguments against the administration’s anti-terror strategy he repeated at the Lyceum Theatre, and Dinh’s only response was, “You’re so September 10. Everything changed on September 11, and these measures are necessary to keep us safe.”

“Have they?” Cole asked. “Their strongest argument is that there have been no terrorist attacks in the U.S. since 9/11,” he conceded. But he also said that, after initially fudging the statistics to make it seem as if terrorist incidents targeting Americans worldwide had declined since 9/11, the State Department was finally forced to issue a report saying that such incidents “have gone up in both numbers and lethality.” Cole also noted that all those detentions in the early days of the “war on terror” — the initial round-up of 5,000 nationals of Arab and Muslim countries, the subsequent round-up of 8,000 more and the “special registration” requirement imposed on legal immigrants from 31 countries (all but one, North Korea, either Arab or majority Muslim) at the end of 2001, under which 80,000 people were forced to register and many of them were detained overnight or longer (again without any word to their families as to where they were), the total number of terror-related convictions in U.S. courts has been zero.

What’s more, said Cole, by so flagrantly violating the rule of law in the “war on terror” we’ve “undermined our ability to protect ourselves in the future.” When the “war on terror” dragnet actually caught somebody genuinely evil and a threat to the U.S. — Khalid Shaikh Muhammad, allegedly the number three man in al-Qaeda and mastermind of the 9/11 attacks — we put him beyond the reach of the criminal justice system because the evidence against him has been obtained by torturing him and his associates, Cole argued. (When the administration released Shaikh Muhammad’s “confession,” it bore the tell-tale signs of a statement extracted under torture — notably that he “confessed” to actions he’s known not to have been involved in, including the first attempt to bring down the New York World Trade Center in 1993.)

As for the war in Iraq, Cole said it’s increased, not decreased, the terror threat to the U.S. “In Iraq, we’ve created a training ground and recruiting cause for the militants,” Cole explained. “Al-Qaeda has much more support throughout the Muslim world than it had on September 11, 2001.” Even in western Europe and other U.S. allies, Cole argued, the repressive tactics in the U.S. “war on terror” have evaporated the worldwide sympathy for the U.S. immediately after 9/11 “to a point where anti-Americanism has never been stronger, among our allies as well as our enemies.” Cole pointed to a British poll which revealed that, asked who was the most dangerous person to world order, Osama bin Laden came out on top — and George W. Bush was number two.

“There is a better way,” Cole said. “Some preventive tactics make sense, but we don’t need to invoke these harsh measures. The 9/11 Commission came up with 42 recommendations, including securing nuclear stockpiles around the world, protecting vulnerable infrastructure, better screening of cargo and passengers, better coordination of information among law enforcement agencies [which the USA PATRIOT Act was supposed to have brought about, but hasn’t], encouraging moderate Muslims and supporting secular education in the Muslim world. They did not recommend ‘rendering’ people to Syria for torture or claiming that the President is above the law. While we were doing these tough measures, we were not doing sensible prevention.”