Less Safe, Less Free: David Cole on
David Cole came to Northeastern School of Law today to give a talk on his new book, Less Safe, Less Free: Why America Is Losing the War on Terror.
What follows are my unedited notes from his talk. The standard disclaimer applies, in that some of the things I type may be direct quotations or paraphrases.
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Some of you may have seen the film Minority Report, set in the not all that distant future, at a time when we’ve solved the problem of crime by identifying three witches who have a seemingly perfect ability to foretell the future. Locked in the basement of the Justice Dept., they predict who will commit the next crime. Congress passes a ‘pre-crime’ law, and the problem of crime is solved, until someone figures how to trick the witches.
Not withstanding our inability to predict the future, the Bush Administration is predicated upon the idea of being able to predict the future enough to authorize a ‘pre-crime strategy.’ Ashcroft called it the ‘paradigm of prevention.’ When you’re facing an enemy who is willing to commit suicide, it’s not enough to bring them to justice after the fact: they’re dead. We want to prevent the next attack from occurring: no one wants another 9/11.
As implemented, the prevention method is based that the state can used its strongest coercive forces. Examples: prevent detention, the idea that you lock someone up not because they’ve done something wrong but because you fear they’ll do something wrong in the future. Another example: coercive interrogation/torture/enhanced interrogation techniques. The argument is not that it’s justified to used to punish people for past acts, the argument is always that this is justified to stop the ticking time bomb from going off. Here the preventive paradigm makes what is unthinkable, thinkable. Final example: preventative war, a la the Bush Doctrine. Rejects the international law rules that only a self-defense can a country unilaterally attack another, or when you face an imminent attack. Bush administration said that doesn’t make sense in the era of terrorism, not that Iraq attacked us, but they had the WMD and they might give them to Al Qaeda, and AQ might then use them against us.
To make it more concrete, this preventive paradigm. Case: Canadian citizen traveling through the US, arrested at JFK by immigration officials, kept away from lawyers, deported on the basis of secret evidence that he was a threat to national security, evidence that he wasn’t able to see or rebut. He wasn’t seeking to enter the country, he was merely changing planes. A federal jet took him not to Canada, but to Syria. Why would the US send a Canadian to Syria? Except for the record that Canada doesn’t have a record of locking people up and torturing them — Syria does. He was locked up for a year and tortured in Syria. After a year, Syria released him, and he is back in Canada, with no evidence that he’s been engaged in any wrong-doing. Canada undertook a massive inquiry, found no evidence, and awarded him $10m in damages for Canada’s cooperation with the US’s mistreatment. He was a victim of the preventive paradigm — no evidence that he was engaged in any wrongdoing. If we had some evidence that we couldn’t put on the table, we would have sent him to Gitmo. But we didn’t, we only had vague suspicions, so we sent him to Syria to see what they could get.
Three points: 1. This preventive paradigm, the use of harsh coercive methods — puts tremendous pressure on the rule of law (less free). 2. These paradigms have not made us more safe, and in fact have made us less safe (less safe). 3. These paradigms are unnecessary, plenty of way a country can respond to terrorism that have fewer negative consequences.
Five basic principles of the rule of law we’ve seen compromised in the name of this protection. The rule of law is designed to legitimize the State’s monopoly on the use of coercive force. It is used only in the appropriate circumstances (checks and balances, due process). But when you switch focus to preventive measures based on fear, these kind of values get in the way and thus get thrust aside. First: equality, everyone is equal before the law. If the preventive measures applied were applied to all Americas, they would be unacceptable. But they have been applied to a minority, Arabs and Muslims, especially foreign nationals. The argument is that it is justified to take actions against them. Over 5,000 foreign nationals were rounded up in preventative detention measures after 9/11. Many were arrested in secret, without even informing their families. Hundreds were tried in secret. Even members of Congress were not allowed to attend. People were picked up on such tips as anonymous tip from the FBI that there are too many Middle Eastern men working at the convenience store; if they can’t rule out the possibility they’re terrorists, they’re locked up. Guilty until proven innocent. Justification: they’re not Americans, they’re foreigners. In most instances they’ve violated technicality of immigration law. Same argument with Gitmo. Same argument with the Canadian man sent to Syria: he doesn’t have any constitutional rights, because he is a foreigner, not an American citizen. The international treaty on cruel and inhuman treatment — Bush Administration came up with the view that the treaty doesn’t protect foreigners, only Americans. So much for the commitment to equality.
Second value: transparency. Gotta know what’s going on to protect freedoms. Assertions of state secret privileges.
Third value: due process. Before the state can take away an individual’s rights, there has to be a hearing. Not so for enemy combatants, who the president argued could be locked up forever without a trial.
Fourth value: checks and balances. How do you enforce the rule of law against the sovereign? Not so in the War on Terror, according to Bush. Resurrected Nixon’s understanding of Constitutional Law. Nixon, when asked why he thought he could authorize warrant-less wiretapping, “the president does it, thus it isn’t illegal.” Bush says the President can do it, if the President says “Commander in Chief.” He has argued that the President has uncheckable powers with respect to engaging the enemy. They can order torture, even though there’s a criminal statue barring it. They can order warrant-less wiretapping, despite the fact that Congress made it a crime. Unconstitutional for the Supreme Court to review President’s decisions — that would interfere with the President’s uncheckable authority in waging the War on Terror.
Fifth value: commitment to basic human rights. Gitmo and Abu Ghraib. Two images for which the US is better known around the world than the Statue of Liberty.
When I make these complaints in Washington to some of my friends who have worked for or defend the Administration, they always respond: “David, you’re so September 10th.” Yes, we’ve had to make some sacrifices, but this is a New World Order. This is a New Threat. It requires different balances, we’re doing it for your Security.
How have they done on the Security side of things? State department issued a report showing that world terrorist incidents had fallen, until Colin Powell corrected it, and thus every year since 2001 terrorist incidents have increased. Al Qaeda has reconstitued itself in Pakistan. Whole new groups have sprung up.
Administration says: There have been no terrorist attacks in the US since 9/11. Tom Ridge’s speech: “no terrorist incidents have occurred on American soil since 9/11.” He then knocked on wood. How many of the foreign nationals locked up have been convicted of terrorist offenses? Zero. What about all the young Arab Muslim foreigners sought out for interviews? None. Let’s call in Arab men for special registration, 83,000 ultimately under pain of deportation. None of them. Most extensive campaign in ethnic profiling since WWII, Govt’s record is 0 for 95,000. Govt says they’ve convicted 2,000 people for terrorism _related_ offenses, most of them are not terrorism itself, but merely ‘related’ e.g. filling out credit card forms incorrectly, lying to FBI agents — Washington Post found only 39 had any terrorist charge. We looked at the 39 cases the Post identified, virtually all of them are convictions under the statute ‘Material Support for Terrorist Organizations,’ which allows conviction without any proof of conspiracy, intent — all you have to do is to prove that this individual did something for the benefit for this group, and this group has to be labeled a terrorist group. About the only person convicted of an attempted terrorist attack is Richard Reid. He was caught by an alert airline attendant who saw this strange looking guy trying to light his shoe.
We’ve had massive focus on the Arab-American communities and we have not found a single American terrorist cell. Over half of the Gitmo detainees have been released. Only 8% have been characterized as ‘fights’ by the Military’s own tribunal. Not a whole lot there to show for the preventive paradigm.
Preventative paradigm has made us less safe. War in Iraq has created a magnet for terrorist recruitment, terrorist training camps. 10,000s of American and Iraqi lives lost. Iraq is just one part of this, but this preventive paradigm approach in which the Administration plays into AQ’s hands. How do democracies defeat terrorists? By isolating the terrorists from their potential communities of support. If you don’t do that, then if you capture and kill the real terrorists without isolating them from their community, they will just be supported and replenished from their communities. But when you treat the Arab or Muslim communities as presumptively suspect, you’re not isolating terrorists from their communities. We gave AQ a great recruitment tool in Gitmo and Abu Ghraib. We are less safe and less free as a nature of the Bush Administration response.
There are plenty of ways a country can respond to terrorism without this blowback effect. 9/11 Commission comes up with 42 recommendations with how to prevent terrorism; missing from that list is rendering suspects to Syria to be tortured and most of the other things the Bush Administration had done. Instead, sensible methods: protecting nuclear stockpiles, supporting moderate Muslims, more effort into solving the Palestinian-Israeli conflict (a principle source of animosity towards the US), exerting US force through soft power rather than military might. We spend more on our military than the next 10 nations combined. And at the same time we have one of the lowest per capita aid programs in the developed world. One of the countries where Anti-Americanism dropped after 9/11 was Indonesia, where we sent a lot of aid after the tsunami, and they saw the US as actually helping people. Coercive measures are sometimes authorized and sometimes justified but must be done within the confines of the rule of law, not treating the rule of law as an obstacle to be cast aside. National Security Strategy of 2005: “the strength of the nation state will be challenged by a strategy of the weak using international fora, judiciary processes and terrorism.” It aligns using international fora and the rule of law with terrorism. View of the rule of law as a tactic as the terrorist use against us. Israeli justice Barak wrote: “A democracy must often fight with one hand tied behind its back, it nonetheless has the upper hand. Preserving the Rule of Law and recognition of an individual’s liberty constitutes an important component in its understanding of security. At the end of the day, they [add to] its strength.”
Closing note of optimism: if on 9/11, you had said the US is not going to be able to do whatever it wants to retaliate against this group — people would say who’s going to stop them — and yet, 6 years later, what we have seen is that the Administration has been forced to retreat on all of its most extreme assertions of rule of law disregarding preventive power; torture memo disclosed had to be retracted. Cruel and inhuman overruled by Congress. Gitmo as a law-free zone, Supreme Court said no. Military courts, no. Warrant-less wiretapping, no. On a host of initiatives, the President has been forced to retreat. Why? Most importantly, civil society. The Civil Society groups that have stood up for what this country does best. Coordinating international support. Last majority security country in the US was the McCarthy period, and most of these groups didn’t exist.
Some years ago, Cornell West wrote a book called the ‘Future of American Progressivism,’ a disturbingly thin book. It had a good idea: “Hope is more the consequence of action, than its cause. As the experience of the spectator favors fatalism, so the experience of the agent, produces hope.” People don’t resist because they have hope, they have hope because they have resisted. My hope today is that you will be the next generation of agents for hope and that you will produce, by doing so, not just hope, but change.
Questions:
Q: How do you see public policy translating into action? In Abu Ghraib we see the failure of soldiers to not torture.
The question is what about the resistance soldiers in Abu Ghraib — the solider who released those photos was resisting. A memo that justified torture in the Justice Dept., transferred to the military side, weakened the strict prohibition against torture. General Counsel of the Navy was iced out of the process b/c of his opposition. Many in the military have worked to put in anti-torture measures. Part of the problem in Abu Ghraib was a lack of training and supervision in a chaotic situation; war is always chaotic and thus you need clear rules.
Q: Japanese internment? Prevent similar events?
We haven’t forgotten about the Japanese internment. People, activists, engaged in a decades-long struggle to write and right the history. Courts throwing out the convictions and Congress issuing a formal apology and reparations to the survivors. A very powerful historical example that creates an anti-precedent.
Q: President’s Executive Order that amends the National Emergency Act giving Prez and VP enormous power. Give the Prez sweeping dictatorial power?
National emergency; broadly written. A real problem with the National Emergency Act. Example: President Clinton; Mohammad Sala in Chicago, under National Emergency Act, Clinton put him on the list of designated terrorists, no hearing, no opportunity to defend himself, he just gets a notice in the mail. The consequence: all his assets are frozen, it becomes a crime for anyone to do business with him or to give him anything of value. This law was designed to put embargoes on countries, but instead Clinton put an embargo on an American citizen. Crime to sell him a loaf of bread, a newspaper, for a doctor to treat him. All under this notion of emergency powers.
Q: Iraq?
We learned the lesson of the danger of preventive war. Actually been a complete and utter disaster; take that into account as to whether we should engage in preventive war against Iran. World rejected preventive war after WWI, WWII. Countries going to war with other countries under the nature of preventative. Constraint on pre-textual aggression. Getting out of Iraq and solving that problem is hugely difficult. How does the next president restore America’s image around the world. Very very difficult because we’ve been dug into such a deep hole.
Q: Other than waiting for 1/20/2009, what else we can do?
Countdown. Louder and louder as we get thing. Lots of battles being waged right now. Effort to restore habeas corpus, stripped from Gitmo detainees by the Republican congress. Protect America Act, which the Democrats enacted in haste and fear which expands the NSA’s power to engage in warrant-less wiretapping. Six month sunset provision. What should this look going forward? If your member of Congress hears from you. Bill of Rights defense committees. Get involved. Speak out, get engaged. An old message. Judge Learned Hand: “The constitution is only as strong as the people who stand for it and believe in it.”ringtone ahoogaa ringtone year goodadam harringtonringtones afiperish ringtones shall allharrington alex burnettac dc ringtonesreal ringtones free 100 Map