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Due Process, Imminent Threat


December 3, 2012

From electronic surveillance to drone strikes to racial disparities in the criminal justice system, the writer, lawyer, and advocate anticipates the most pressing issues of the next four years.

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Image courtesy of Georgetown Law

David Cole attended law school with the firm conviction that he did not want to be a lawyer (he was an aspiring writer). He was eventually swayed by the commitment to justice displayed by several of his law professors, however, and by mentors at the Center for Constitutional Rights (CCR), a legal advocacy non-profit founded at the height of the civil rights movement by lawyers representing activists in Mississippi. Hired as a young attorney, Cole’s early cases before the Supreme Court established the kinds of watershed protections that merited inclusion in constitutional law textbooks, like the right to engage in the “symbolic speech” carried out by flagburners protesting in Dallas during the 1984 Republican National Convention.

Over the years, Cole expanded his focus: he represented a Palestinian man detained and denied asylum based on secret evidence he never had access to, defended the rights of African American and Hispanic graduates of Baruch College seeking to establish an alumni association commemorating the struggle of students of color, challenged the National Security Agency’s (NSA) warrantless wiretapping of Americans during the “war on terror,” and tackled the prohibitions on providing non-violent material support—including legal services and humanitarian aid—to entities defined by the U.S. as “terrorist” groups.

As CCR states in its mission, “History has repeatedly taught us that the hard-won victories of yesterday can never be taken for granted. As society changes, new threats to our rights arise, even as old ones are defeated.” Cole—who followed through with his early ambitions and is now a law professor at Georgetown, The Nation’s legal affairs correspondent, and a contributor to the New York Review of Books, in addition to his ongoing work as a volunteer attorney at CCR—writes about many of the same issues that he litigates. He asserts that President Obama took significant steps during his first term to discontinue the second President Bush’s disregard for human rights, including terminating the CIA’s “enhanced interrogation program,” reforming military commissions, and disclosing the Office of Legal Counsel’s torture memos. Gridlock politics thwarted other intended improvements, such as shutting down Guantánamo and trying terror suspects in civilian criminal courts. Nevertheless, threats like unchecked surveillance and the escalating, opaque drone program loom large, while long-neglected racial disparities in our criminal justice processes demand attention.

As a writer, educator, and advocate, Cole maintains that “change requires pressure from a variety of sources.” He is the author of seven books, including Less Safe, Less Free: Why America Is Losing the War on Terror, Enemy Aliens: Double Standards And Constitutional Freedoms In The War On Terrorism, and No Equal Justice: Race and Class in the American Criminal Justice System. He most recently published Torture Memos: Rationalizing the Unthinkable, and as a 2012-2013 Open Society Foundation Fellow, is at work exploring how civil society organizations safeguard human rights. Over the phone from his office in Washington, D.C., Cole discussed what he anticipates to be the most pressing civil liberties and national security issues over the next four years, and what pressure the public can levy to ensure that progress is made.

Andrea Jones for Guernica

Guernica: How did your internship at CCR in the 1980s shape your commitment to civil liberties and your perspective on where we stand today?

David Cole: CCR was a boldly egalitarian place with a willingness to file lawsuits no one else would—challenging the denial of Medicaid funding for abortions, U.S. intervention in Central America, and the like. After a year-long internship with CCR, and another year clerking for a judge, I went back to CCR to start my career as a lawyer. I represented a wide range of politically engaged individuals targeted for their political views, including flagburners, artists, documentary filmmakers, writers, and political activists. I was inspired as much by their commitment as by their causes. CCR taught me that no real change comes without vision and struggle, and that hope lies in struggle. That lesson has shaped my entire career.

Guernica: In a 2011 New York Review of Books essay, you discussed a case then pending before the Supreme Court concerning the constitutionality of law enforcement officials tracking suspects via GPS devices attached to their cars. You modified sociologist Edward Shils’ McCarthy-era assertion for the technology age: liberal democracy no longer demands privacy for its citizens and transparency for its government, but rather, “it is the citizenry that is increasingly transparent, while government operations are shrouded in secrecy.” Recently, the court heard arguments in a case having to do with widespread secret wiretapping by the NSA. Can you go into the history of this case with regard to government surveillance, and explain what’s at stake?

David Cole: One of the great challenges we face as a nation is how we preserve the realm of privacy from government intrusion in the modern age, when so much of what we do in private is recorded by virtue of the phones we carry, the emails we send, the credit card transactions we engage in, the computers we use. How do you preserve this value that is absolutely critical to a liberal democracy when technology has made it easier and cheaper for the government to monitor our every move?

Historically, wiretapping had to focus on individuals the government had specific grounds to suspect. But this is broad, categorical wiretapping, programmatic, dragnet-type surveillance.

Last term’s GPS decision was a welcome surprise because the court did recognize the need to protect privacy from the onslaught of technology. It unanimously held that the government’s use of GPS to monitor a car 24/7 for a month constituted a search requiring application of the Fourth Amendment. This year, the court faces Clapper v. Amnesty International, which is a challenge to a statute called the FISA Amendments Act (FAA), which amended the Foreign Intelligence Surveillance Act (FISA), essentially to authorize broad-based search schemes directed at the communications of people abroad, but picking up the communications of U.S. citizens here when they communicate with those people abroad. FAA was a response to the exposure of President Bush’s warrantless wiretapping run by the NSA, and subjects that program to the oversight of a judge, who issues an order that authorizes the wiretapping. Historically, wiretapping had to focus on individuals the government had specific grounds to suspect. But this is broad, categorical wiretapping, programmatic, dragnet-type surveillance.

The ACLU brought a challenge to the constitutionality of the law, and the government argued its clients didn’t have standing—or the right to bring a challenge in court—because they couldn’t demonstrate that they had in fact been subjected to electronic surveillance. That’s a Catch-22, however, because the surveillance is secret and the government never provides notice to those who it is monitoring. No one can know whether they’re being monitored, and anyone could be monitored right now.

[L]awsuits do not change society without being part of a larger political and cultural change.

The ACLU’s clients are people likely to be affected by this scheme—lawyers who represent Guantánamo detainees and have to make cross-border phone calls or send emails to regions the government is likely to monitor, to people the government is likely to have an interest in. They also include human rights activists and journalists communicating with similar people overseas. They argued that these individuals had to take protective measures to avoid the risk that their phone calls might be monitored. In effect, they said, “If I’m a lawyer talking to a client, I have to take measures to ensure the confidentiality of the communication. If I think there’s a significant risk that the government is listening in, I can’t use that method of communication. I have to fly to Pakistan or I can only speak in generalities.”

The lower courts held that that was sufficient to give the plaintiffs standing to challenge the constitutionality of the law, but the Obama administration appealed to the Supreme Court and said no, essentially no one has standing to challenge the constitutionality of this scheme. If the administration wins, then what are the limits to conducting electronic surveillance on all of us? If the government can monitor in secret, and then argue in court that because they’re doing it in secret, no one knows whether they’re being watched, therefore no one has the right to challenge the legality of the surveillance—then that surveillance is beyond the law.

Guernica: Last year, you described Obama as bowing to Congressional initiatives to block spending on relocating Guantánamo detainees to the U.S. in order to put them on trial or as a step in closing the prison. Following his reelection, what new factors might allow or push Obama to follow through on his original pledge?

David Cole: Obama has come through the struggle over healthcare, which was long and difficult and for which he sacrificed other battles, so he may now have more freedom to move forward on these issues. Also, his eye in a second term will be more on his historical legacy and long-term results, so he may be more willing to take aggressive stands on this issue.

The struggle to close Guantánamo is one where he can use the bully pulpit to educate the public and reach a resolution, because the Congressional opposition is really unthinking and playing to the lowest common denominator, a kind of not-in-my-backyard kind of politics. Everyone who had to consider the situation of Guantánamo and its cost to the U.S. in terms of our image abroad and our ability to work with other countries has agreed it should be closed. From President Obama to Senator McCain, George Bush, Condoleezza Rice, Colin Powell, and Robert Gates—every one of them has said it would be good to close Guantánamo because of the damage our human rights violations there have done to our standing around the world and our ability to work with other counrties in fighting off threats of terrorism. I’m hopeful the president will seek to fight on this issue. I think if he fights he stands a chance of winning.

Guernica: Can you explain your critique of trying suspected terrorists like Khalid Sheikh Mohammed (KSM) in military commissions instead of civilian criminal courts? How does diminished transparency shield the government from concerns of the past?

The government has deemed “classified” the detainees’ own stories of what was done to them, an unprecedented act of declaring the mental processes of someone who is not a government official classified.

David Cole: The record of success in prosecuting terrorist crimes in civilian federal courts is extremely strong, a conviction rate of over ninety percent. The military commissions, by contrast, have sputtered, stopped, and started, been declared illegal and revised, and then stopped and started up again. They have succeeded in almost nothing except muddying the reputation of the U.S. around the world. The military commissions are tainted by the same problems that Guantánamo itself is tainted, in particular the problem of torture, because the people we are trying–like KSM–were tortured. That issue must be a part of their trial. Their lawyers are making every effort to make it a part of their trial, but the U.S. is doing its best to suppress any discussion of the way we treated these individuals when we captured them and when we interrogated them.

The government has deemed “classified” the detainees’ own stories of what was done to them, an unprecedented act of declaring the mental processes of someone who is not a government official classified. This means detainees can’t speak about their own injuries publicly, and their lawyers cannot disclose to the public what happened to them. The military has built a courtroom with a soundproof Plexiglass wall between the well of the court where the trial participants are, and the audience, so it they can cut off the sound if the defendants have the temerity to raise concerns about how they were treated when disappeared into CIA secret prisons. Those optics are not going to play well on the world stage. Whatever result comes from these commissions is going to be tainted by our unwillingness to confront the wrongs of our past.

In addition, the commissions are tainted by their selectivity. The way you achieve legitimacy is by applying neutral standards, but the military commissions are expressly limited to trying foreigners who commit war crimes. When our own people commit war crimes, we put them in the U.S. military justice system, which is similar to the civilian criminal justice system. Why couldn’t we use that system for the prisoners at Guantánamo? The government has never really responded.

I think the world will believe that the reason we’re avoiding these alternatives that are readily available and consistent with due process is precisely because we want to deny these individuals a fair trial, and in particular because we want to deny them any ability to discuss the way we treated them when we captured them.

Guernica: Continuing on with perceptions of the U.S. abroad and the structures of due process, or lack thereof, what is your perspective on Obama’s accelerated drone program?

David Cole: The drone issue is a complicated one. When you’re engaged in a war, killing is an available option and targeted killing is better than untargeted killing. Drones are not like torture where it’s possible to say, “this has no legitimate role in armed conflict.” That said, I think the biggest problems are threefold. The first is the secrecy that surrounds the program. What we do with drones sets a precedent for what other countries will do with drones when they develop them, and they’re madly seeking to develop these tools. It’s in our interest to make very clear that whatever we’re doing is fully consistent with the laws of war, but we the people and the world at large cannot know that as long as the program and its contours remain secret. The Obama administration, to its credit, has made rough outlines of the program public through a variety of speeches by high-level administration officials, but that’s not enough. We need to know what the actual criteria for strikes are. What is the process by which people are found to fit those criteria? We need to know in order to judge whether the program is consistent with the laws of war, with due process, and with fundamental fairness.

Surely we have a lot of resources at our disposal that we can use to capture people rather than to simply kill them by pushing a button. Capture entails due process, a trial, and the like; pushing a button does not.

Secondly, the administration appears to be using a very broad definition of “imminent threat.” One of the justifications advanced in speeches is that we can use drones in self-defense against individuals who pose an imminent threat of attacking the U.S. International law does recognize that a nation can use military force to respond to an imminent threat by another state or party, but it appears the administration has redefined “imminent” so that it no longer means “immediate” or “impending.” Instead, it includes any individual who says that he wants to attack us, has the capability of attacking us, and will do so secretly when he does. Anwar al-Awlaki, the American whose death the president ordered, was said by the administration to pose an imminent threat. But there was no evidence that he was engaged any plotted attack at the time he was killed—rather, they concluded he posed an “imminent” threat because of this broader conception of imminence where we’ve essentially defined away the requirement for the threat to be immediate. If a threat is not truly impending, because otherwise there may be other ways to neutralize short of death such as arresting the person and bringing him to justice.

The third problem is that they say drones are used only when arrest is not feasible. What does that mean? We knew where al-Awlaki was—he was in Yemen. The Yemeni authorities made one attempt to arrest him, but were unsuccessful. But does that mean arrest isn’t feasible? If we make one attempt to arrest a suspect in the U.S. and fail, we don’t conclude that means fair game to kill him. Surely we have a lot of resources at our disposal that we can use to capture people rather than to simply kill them by pushing a button. Capture entails due process, a trial, and the like; pushing a button does not.

Guernica: This goes back to your first point about killing when engaged in a war, because there are no boundaries in the “war on terror.” Do these rules still apply when the battlefield could theoretically be geographically anywhere?

David Cole: That’s a great question and one that has not been adequately answered. Again, the key issue is that the government’s program is secret. To assess it, we would want to know what criteria and what limits there are to assess whether the government is using the “war on terror” in a kind of global, metaphorical way (as Bush did) or whether they’re using armed conflict in a more narrow and legal sense. I think most people would agree that the armed conflict is centered in Afghanistan and the border regions of Pakistan where many of the Al-Qaeda and Taliban fighters have hidden themselves, and that killing there is part of an ongoing armed conflict. But when you start using these methods in places like Yemen and Somalia, thousands of miles from the battlefield, serious questions are raised about the legality of that attack.

One of the reasons the Obama administration cites self-defense is because that’s not limited to a particular battlefield. The self-defense rationale says that even if there’s no armed conflict, if somebody is about to attack us, we can respond with necessary force to defend ourselves from an imminent attack. I think that’s right, but self-defense is redefined so broadly that the people who are not in fact on the verge of attacking us, who are nowhere near any traditional battlefield and may well be subject to capture, nonetheless can be taken out.

Guernica: How do you think we can move towards more transparency on the topic of targeted killing?

David Cole: It’s really going to be public pressure, maybe Congressional pressure, and pressure from other nations that will push the Obama administration to be more transparent. You just can’t have the president of the U.S. with the authority to order the execution of anyone in the world without that authority being transparent, clear, explicit, and assessable by people here and abroad.

Guernica: With regard to civil liberties and the rule of law, what do you see as the most critical issues to address in the next four years?

David Cole: In addition to closing Guantánamo and ending military commissions, there is a lot that needs to be done to improve human rights and respect for equality and dignity in the U.S. Reducing extraordinarily harsh criminal sentences, which make us by far the world’s leader in incarceration and impose the costs of the program on black and Hispanic young men, should be one of our highest priorities.

Guernica: Can you explain how racial disparities at each stage of the criminal justice process, especially around drug law enforcement, create this two-tiered system in which young men of color are arrested and imprisoned at much higher rates?

David Cole: To do justice to this question would take a book. In fact, my first book, No Equal Justice: Race and Class in the American Criminal Justice System, addressed precisely this topic. I show that at every stage of the criminal justice system, we mediate the tension between liberty and security, between privacy and law enforcement, by adopting double standards, protecting rights relatively robustly for some, but denying those protections to those who most need it. Thus, in theory the Fourth Amendment protects us all against unreasonable searches, but the Court permits the police to do pretextual car stops and “consent” searches (without informing individuals of their right to deny consent) without any objective basis for suspicion. These doctrines make racial profiling possible.

After James Baldwin, I believe that one changes the world by changing how people see the world. Lawsuits can do that. So can writing and other forms of public advocacy. So can literature or the arts. The important thing is to engage in the effort.

Once arrested, everyone in theory has the right to an attorney, but in fact only the wealthy are assured of getting a lawyer who is competent and with sufficient resources to vindicate his rights. Juries routinely do not feature a representative cross-section of the community, because prosecutors are permitted to use unexplained “peremptory challenges” to strike black jurors, subject only very minimal oversight. The death penalty is disproportionately imposed on those who kill white victims, but the Supreme Court has held that this is not discrimination, but simply inevitable. All told, these and other disparities result in African Americans and Latinos being much more likely to be stopped, searched, arrested, prosecuted, and to serve time. The disparities in the criminal justice system are probably the most important civil rights issue in the United States today.

Guernica: What obstacles do the formerly incarcerated face upon their return to society, and how does the stigmatization of prison in terms of housing, employment, and voting perpetuate racial divisions in the criminal justice process?

David Cole: Because of America’s policy of “mass incarceration,” we are the world leader in per capita incarceration rates. This also means that we have very large numbers of people coming out of prison every year. One of the challenges we face as a community is how to reintegrate these individuals, so that they are less likely to re-offend. Instead of devoting resources to reintegration, we have structured the system to make it more difficult for them to reintegrate. In many states, those convicted of felonies are denied the right to vote, even after they have fully served their sentences. They are often barred from public housing, which often leaves them homeless. They cannot serve on juries. And they are ineligible for a wide range of jobs. Some restrictions on ex-convicts are surely justified, but we have imposed restrictions that go far beyond reason, and these collateral consequences in turn make it more likely that this segment of our community will commit more crime. We need to recognize that no one is as bad as the worst thing they have done, and that we owe it to ourselves to reintegrate offenders into the community–for their benefit and ours.

Guernica: What do you see as first steps for improving our criminal justice system?

David Cole: The most important step is reducing the length of criminal sentences. We got to where we are today not so much by arresting more people but by imposing longer prison terms on people for the same crimes, so that prison terms here are now much longer than those our European counterparts impose for the exact same infractions. That creates a ballooning of the prison population, and also means that we’re imprisoning people well beyond the period of their life when they’re likely to be engaged in criminal behavior. We have many older people sitting in prison because of these overly lengthy sentences. We should be reducing the length of sentences, repealing mandatory minimums to restore discretion to judges to give appropriate sentences based on the individual circumstances of each case. We could then use the savings gained from reducing the prison population to reinvest in communities where crime is a problem given lack of opportunity. Right now, many states spend more money on prisons than on higher education. There’s something fundamentally perverse about a society that does that. I think the federal government can and should play a leadership role in altering the politics around crime, seeking to ensure that we have a fair criminal justice system and that we treat those convicted with a commitment to rehabilitation and community reintegration. Being the world leader in incarceration is not something that we should be proud of.

Guernica: Yet somehow, criminal justice reform does not animate public conversation nearly enough to create the impetus for change.

David Cole: That’s a real challenge. The people who are affected are the most vulnerable in our society, the poorest, the least noticed, and with the least voice. Creating momentum for change is very difficult.

Guernica: As a professor, writer, and attorney, you’ve worked to advance civil liberties using many different methods. Do you find yourself a more effective voice balancing the concrete change established through law, and the changes in public awareness and opinion communicated through writing and teaching?

David Cole: Change requires pressure from a variety of sources. Sometimes litigation can bring attention to a social issue like nothing else–consider CCR’s lawsuit seeking habeas corpus for the detainees at Guantánamo Bay, or the lawsuits gay couples have filed seeking the right to marry. But lawsuits do not change society without being part of a larger political and cultural change. After James Baldwin, I believe that one changes the world by changing how people see the world. Lawsuits can do that. So can writing and other forms of public advocacy. So can literature or the arts. The important thing is to engage in the effort.

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