Social Science Research Council

Comments by David Cole Georgetown University Law Center

Transcript by: ACE Transcription Washington D.C.


David Cole: [intro off mic] . . . somewhat parallel to those that we've responded to here, which is that we did not in fact go out and catch the bombers. Rather, what we did was exploit immigration law to go out and round up the usual suspects, some four to ten thousand. We don't even know an accurate figure because it was done in such a kind of roughhouse and offhand way-but somewhere between four and ten thousand people were swept up. Not on charges that they were involved in the bombing, but that they were involved in associations that we're troubled by.

And Louis Post, who was the acting secretary of labor and who was actually a very courageous man, ended up stopping many of the deportations that were intended by J. Edgar Hoover, who ran this program, essentially out of the Justice Department before he moved over to the FBI, later, he said that the delirium of the time moved in the direction of deportation like water seeking the course of least resistance.

And I think that's really the theme I want to hit today, which is that we all have heard the talk about -- And I think it's legitimate talk -- about the need in light of the increased insecurity that we all feel after September 11, to rethink the tradeoffs between liberty and security. But I think when you look at what we have actually done as a nation, we have not made that hard choice of saying which of our liberties we're willing to give up for security. But rather we have said we're willing to give up their liberties, namely immigrants' liberties, foreign nationals' liberties, and particularly Arab and Muslim liberties, in the name of protecting our security.

And I want to suggest that that is wrong as a constitutional normative matter, that it may well be counterproductive as a security matter, and that it's actually illusory because what we do to immigrants in these times of crisis virtually always gets extended to citizens ultimately.

First of all, the case for the targeting of immigrants. Probably the first piece of evidence in the case is the preventive detention campaign that John Ashcroft is still undertaking. It began immediately after September 11 with great fanfare in which Ashcroft proudly announced that he was going to use every law within his power to pick up suspected terrorists, lock them up, and keep us safe from the next terrorist incident.

And in the course of this campaign, he's locked up somewhere between twelve hundred and two thousand people-we don't even know an exact number because the government won't tell us a number. They stopped telling us a number seven weeks into the campaign when it was 1,147, so you can extrapolate from that, and I think 2,000 is actually a fairly conservative estimate. These are "suspected terrorists," according to John Ashcroft.

What do we know about them? Well, we know that none have been charged with any involvement in September 11. The only person charged was Moussaoui, and he was picked up before this sweep, this preventive detention campaign sweep. We also know that a grand total of four have been charged with any terrorist-related crime. Four. And that virtually all of the others not only have not been charged with terrorism, but have been affirmatively cleared by the FBI, because the government's policy has been to detain people until the FBI affirmatively clears them of any criminal activity whatsoever, much less terrorist activity.

So these twelve hundred to two thousand "suspected terrorists" turned out to not be terrorists at all. It's unclear how locking them up made us safer at all. The majority of them have been held in secret. Their names aren't even disclosed to the public. All of those who have been held on immigration charges, and that again is the majority of them, have been tried in secret. No one has been able to attend their hearings, even a U.S. citizen wife who could face her husband being expelled from the country for the rest of his life, she can't even attend the hearing at which his fate will be determined. The press is not allowed.

Many of these individuals were held for weeks, and in some instances over a month without any charges whatsoever. Ultimately, they have been charged, but often with very technical immigration charges. And many of those who are held on immigration charges said okay, I overstayed my visa or I worked on a student visa or I didn't take enough credits on a student visa so I'm deportable, I'll leave, and here's my ticket. And the government has taken the position that it's not even going to let them go. It has kept them in detention for months thereafter not on any probable cause that they're involved in any kind of criminal activity. Not for any legitimate immigration purpose, because the only legitimate immigration purpose is getting them out of the country, and they've agreed to leave the country. But simply because the FBI hasn't yet gotten around to clearing them. And then when they get cleared, when the FBI determines that they're innocent, they are released. So we've essentially reversed the presumption of innocence, presumed guilty until proven innocent by the FBI. Only then do they get their freedom.

None of this could be done to citizens. Citizens have the right to a public trial. They have a right to come before a judge for a probable cause hearing within forty-eight hours. They cannot be detained unless the government can show that they are a danger to the community or a risk of flight, etc.

The second piece of evidence is the Patriot Act. The Patriot Act is a large piece of legislation with many provisions that I don't find troubling at all, but the most troubling ones, the most extreme ones, are those directed at immigrants. It imposes guilt by association on immigrants in the name of cutting of financing and support of terrorism, making it a deportable offense for any alien to have provided any kind of support to any group of two or more individuals who have ever engaged in an act of violence.

That's how broadly the definition reads. You've talking about definitions of terrorism. Under this law terrorism is defined to include things like assassinations and the like, but at the bottom, the catchall provision is any use or threat to use a weapon against a person or property except for mere personal monetary gain. So an armed robbery is not terrorism, but a domestic dispute in which a wife picks up a knife and threatens her husband is terrorism under this law. For immigrants, not for citizens, but for immigrants, that's defined as terrorism.

It also resurrects the practice of ideological exclusion where we keep people out of this country not by virtue of what they have done, not by virtue of their acts, not even by virtue of what we fear they may do here, but based solely on the fact that they said something that we do not like. That is a practice that we followed in the McCarthy era. We got rid of it in 1990 with much fanfare about how we were a country that believes in freedom of expression and free trade and ideas. It's back in the law under the guise of fighting terrorism.

And then the last provision with respect to immigrants authorizes the attorney general to unilaterally certify that someone is a terrorist and then lock them up without charges for seven days and ultimately indefinitely in many cases even if they win an immigration proceeding and establish that they're entitled to stay here by virtue of asylum or some other sort of benefit. Without any kind of hearing, without any kind of requirement that the attorney general show that the person actually poses any kind of a threat that would require his being detained. You might think well, if he has been found to be a suspected terrorist, by definition he poses a threat. But when you realize that terrorism is defined so broadly as to include a person who sends a box of crayons to a group that at one time in the past used violence, and now is not using violence, or includes the wife who picks up a knife and threatens her husband, you have to question whether that authority is justified.

Immigrants have also been subjected to ethnic profiling in a fairly extensive way. They have been called in for interviews based solely on the fact that they are males from Arab countries. They have been selectively subjected to registration and fingerprinting requirements because they are from Arab countries. They have been selectively prioritized for deportation under the Absconder Apprehension Initiative because they are from Arab countries. And they have been subjected to detention because in effect they are from Arab countries. Virtually all of those two thousand or so detainees are from Arab countries.

The final piece of evidence is a military tribunal order which was issued in November and which had this curious fact that it was limited to non-citizens accused of terrorism or harboring terrorists. It didn't apply to citizens. It didn't apply to John Walker Lindh. It only applied to non-citizens. There's no constitutional prohibition on applying military tribunals to citizens. We did it in World War II. The Supreme Court upheld it. But I see this as part of this pattern of saying to the American people, it's not your rights that are at stake, it's their rights. And just to underscore that, this is what Vice President Dick Cheney said when this military tribunal order was issued, "somebody who comes into the United States of American illegally who conducts a terrorist operation killing thousands of innocent Americans, they don't deserve the same guarantees and safeguards that would be used for an American citizen."

All right, real quickly why I think this is wrong, why it's counterproductive, and why it's ultimately illusory. First of all, whether it's wrong. It's clearly not irrational to be concerned about al-Qaeda people and to believe that al-Qaeda consists of immigrants from Arab countries, foreign nationalists from Arab countries. So it's not irrational, that's certainly not an irrational presumption. That makes a lot of sense. What is wrong is to deny immigrants as a category, or Arab and Muslim immigrants as a sub-category, basic human rights. Rights like due process, the right to a fair hearing, the right to an open hearing, the right to a presumption of innocence. The rights of association and speech, which we all enjoy. Those rights, if you looked at the Constitution, are not limited to citizens. They're not privileges of citizenship. They are rights of persons, as the framers put it. And that's because the framers understood these rights to be divine in nature. These divine rights did not apply only to Americans, they were not the only divine people. They applied to all people. Now today, we don't have that kind of natural law understanding of rights, but the human rights understanding that we do have reflects a similar notion that these kinds of rights are basic and should be afforded equally to all persons, not distinguishing between foreign nationals and nationals.

Second, the double standard is counterproductive. I think it's counterproductive because it undermines the legitimacy of the war on terrorism. When we are seen as being willing to impose on foreign nationals, and particularly Arab foreign nationals, burdens that we would not impose on ourselves, then I think the legitimacy of our efforts is undermined. And that has costs both internally and externally-internally it has costs because the Arab community here gets extremely alienated. The interview process which we engaged in discovered no useful information, but did a great job of alienating the Arab community so that we would not get any useful information from the very communities that are most likely to be able to help us in identifying the actual real perpetrators. And that's true at large with the international world. If we want the cooperation of Arab countries, it doesn't really help us to be treating their citizens in ways that we don't treat anyone else's citizens.

And finally, it's illusory, this promise that Dick Cheney gave us, that it's not Americans' freedoms, that it's not Americans' rights that are stake. That's an illusory promise. And I think that's been shown already in this conflict with the extension of this concept of military justice, which was introduced as being limited to non-citizens. When Jose Padilla and Yassir Hamdi showed up, we extended the very same arguments to U.S. citizens. And we were arguing that we can hold all people -- citizens as well as non citizens -- as enemy combatants without hearing, without trial, without lawyers, indefinitely because the president says they're a bad guy and courts have no authority to review that determination.

But the notion that the double standard is illusory is also supported historically. The Palmer raids that I talked about at the outset were directed at immigrants. Now they were not directed at immigrants because we thought that the bombers were immigrants. They were directed at immigrants because those were the only laws we had that allowed us to go after people. We couldn't go after citizens for association. Hoover and Palmer wanted such a law, they introduced such a law many times in Congress, but Congress wouldn't give it to them. So they went down the course of least resistance. But Hoover then went on to the FBI and spent essentially the rest of his life seeking to extend to the citizenry the kind of control that he enjoyed in his first job over foreign nationals. And he succeeded in the McCarthy era where in the Alien Registration Act, better known as the Smith Act, we targeted aliens but at the same time targeted citizens for their associational activities.

And the same thing is true with the Japanese internment. The Japanese internment didn't arise out of nowhere. It was an extension of a practice that's still on the books that allows us during a war to lock up any person who's a citizen of the country with which we're at war, without regard to any evidence that the person is in fact disloyal, dangerous, subversive, or anything. And we used that law during World War I, World War II. But in World War II, the government said well, the same arguments that apply to enemy aliens also apply to Japanese citizens. Once a Jap, always a Jap. Literally, the lieutenant general who was responsible for the plan testified in Congress . . . the racial strains are undiluted, he said, doesn't matter whether they're a citizen or an alien, we have to presume they're loyal to Japan, and that's why we have to lock them all up. And we locked up 110,000 people, 70,000 of them U.S. citizens.

So for reasons of self-interest, for reasons of pragmatism and security and most importantly, I think, for reasons of principle, we ought to resist this notion of going down the course of least resistance.


* Readers interested in a more detailed exposition of this argument should see David Cole, "Enemy Aliens," Stanford Law Review, Volume 54, P. 953 (2002), and David Cole, Enemy Aliens (Now Press, Forthcoming 2003).

See also testimony of David Cole in front of House Judiciary Committee regarding the use of Secret Evidence