Forum: Less Secure and Less Free: Civil Liberties and the War on Terror – with David Cole – Columbia Law School – Transcript – PDF

2001 Less Secure and Less Free: Civil Liberties and the War on Terror


On October 2, 2001, three weeks after the attacks on the World Trade Center and the Pentagon, a Columbia University Law School forum was held to address the legal and human rights implications of the fight against terrorism. David Cole, professor of law at Georgetown University, and Michael Ratner, vice president of the Center for Constitutional Rights and lecturer at Columbia Law School, caution Americans that although the terrorists violated every principal of human decency, it is even more important to retain the principals of constitutional law, democracy and human rights.

David Cole reminds the audience that historically, fear has caused the United States to restrict civil liberties and abuse human rights during wartime. During World War I, as many as 2,000 people were prosecuted for speaking out against the war. During World War II, 110,000 United States citizens and immigrants of Japanese ancestry were placed in internment camps; and during the McCarthy era it was a crime to be a member of the Communist Party. Cole cautions that the government must be careful in defining terrorist activity, and that the public must refrain from guilt by association and racial profiling.

Michael Ratner, who lives near the former site of the World Trade Center, speaks about the children who have lost parents in his own backyard and around the world. He explains that the loss of innocent life only deepened his resolve to find alternatives to military force. He argues that the powers Congress granted to the president shortly after the attacks were contrary to the principals of a democracy. Rather, he advocates that the terrorist attacks be treated as a criminal act punishable by an international criminal court. He emphasizes that in the long run the root causes of terrorism cannot be ignored and the United States must examine and understand its role in a world of nations.

This feature includes a transcript and video of the October 2, 2001 forum. The epilogue that follows contains links to articles by Michael Ratner and David Cole. Michael Ratner’s “Making Us Less Free: War on Terrorism or War on Liberty?” conveys his deep concern over the erosion of the American system of checks and balances, and the anti-immigrant and xenophobic behavior displayed by the American government and law enforcement. David Cole’s “Enemy Aliens” argues that in recalibrating the balance between liberty and security in the wake of September 11, 2001, the United States has most often taken the easy way out by sacrificing immigrants’ liberties for citizens’ purported security.

David Cole: The attacks of September 11 violated every principle of human decency, of civilized society and of the rule of law. They have made us all vulnerable in ways that most of us have never experienced, and most of us thought we never would experience. They require us, among other things, to re-evaluate our intelligence and law enforcement capabilities, to respond to the threat of terrorism, to ensure that all of us remain safe in our homeland.

But in assessing how we can respond to the fight against terrorism, how we can respond to the threat … I think we have to respond in ways that are measured, that are effective, and that are consistent with our own deepest commitments to constitutional principle. Nothing tests commitments to principle like terror, and we are all afraid.

Historically in times of fear, we have often, unfortunately, overreacted. In World War I, we locked up people for speaking out against the war, many of them immigrants. In World War II, we locked up, or interned, 110,000 citizens and immigrants solely
because of their Japanese ancestry. In the McCarthy era, we made it a crime merely to be a member of the Communist party.

So, that history suggests that we have to be careful and cautious about how we react in a moment of fear. At the time that those actions were taken, they were deemed reasonable. They were all upheld as constitutional by the Supreme Court of the United States. Now, in hindsight, we recognize that they were mistakes, but at the time, they seemed reasonable. So we have to be careful about what may seem reasonable now.

There has been no showing, that I’ve seen yet, that the reason that we missed the conspiracy to engage in the September 11 attacks was because the government lacked sufficient power and authority to conduct surveillance or to target suspected terrorists in our country.

More likely, it seems to me, that it was the result of a failure of coordination among the various intelligence agencies. We have a number of intelligence and law enforcement agencies, they are different bureaucracies, they have turf battles, they don’t share information particularly effectively. And a lot of resources, particularly with respect to INS, particularly with respect to border control types of issues.

Yet, most of what the Bush administration is seeking in its proposed legislation to respond to the threat of terrorism is not directed at these difficult problems of how to resolve turf struggles, how to coordinate our responses, but rather are simply designed to give the government more power.

And so I ask, is it measured as a response and threat of terrorism to impose guilt by association on immigrants? Today, the INS can detain or expel any alien, no matter how long he or she has been living here, who engages in any kind of terrorist activity, facilitates any terrorist activity, plans, conspires to engage in any terrorist activity.

That’s not far enough for the Bush administration. They now want to make it a deportable offense to merely provide support to a terrorist organization. And they define terrorist organization as any organization that has ever engaged in terrorist activity, and then define terrorist activity as any use of a weapon or other dangerous device with intent to endanger person or property.

Now, think about that. Any use of a weapon with intent to endanger personal property. If an immigrant gets involved in a barroom brawl, breaks a bottle, and threatens somebody with it, he’s a terrorist. If a husband and wife get into a domestic dispute, and the wife picks up a knife and threatens her husband with it, she is a terrorist.

This definition of terrorism goes beyond anything that ordinary, reasonable people understand as terrorism. They essentially would make every crime of violence a terrorist activity. They would then make deportable anyone who supports any organization who has ever engaged in such use of force.

That means, any group that has ever been engaged in a civil war. That means that someone who gave a donation to the African National Congress today would be deportable, because 15 years ago, the African National Congress fought apartheid with both violent and peaceful, lawful means. Even though the support today would not possibly, in any way, further terrorist activity because the ANC is not engaged in terrorist activity.

There is no requirement that the alien support have any connection to any kind of terrorist activity, and indeed an alien would be deportable if he was providing support in the interest of furthering peace and countering violence. So, an Irish immigrant today who was in favor of the peace process, and sought to further that by providing peacemaking training to the IRA would be deportable as a terrorist, because the IRA has engaged in terrorism and the statute makes it a deportable offense to
provide any kind of support, including volunteering your time, for any purpose whatsoever to any organization that has engaged in terrorist activity.

Is that measured? Is it measured to give the Attorney General unilateral authority to detain indefinitely suspected terrorists? The Attorney General has been seeking the power to certify that he has reasonable grounds to believe that someone is engaged in terrorist activity, and then to detain that person indefinitely whether or not the person is ultimately found to be deportable. Even immigrants who are ultimately found to be not deportable, to have a right to remain in the United States, under
the Bush proposal they would be subject to permanent, indefinite detention as long as the Attorney General says that he considers them a threat.

Is it measured to resurrect ideological exclusion? Under the Bush proposal, we would bar entry to aliens based upon pure speech. Pure speech. That’s something we did in the McCarren-Walter Act in the 1950s, but we repudiated that in 1990 when Congress appealed the McCarren-Walter Act, and we said that kind of exclusion for pure speech is inconsistent with our notion that we are a free country in which we can tolerate ideas that we dislike. Apparently no longer.

The Bush Administration bill would also expand the government’s authority to conduct wire taps without probable cause of any criminal activity, in criminal investigations, by using as a kind of “end run” around the Probable Cause requirement, the Foreign Intelligence Surveillance Act.

And although the Bush Administration has not been seeking it in formal terms, many citizens apparently today favor the response of ethnic profiling. Studies have shown that before September 11, 80 percent of the American public thought racial profiling was wrong. After September 11, 60 to 65 percent of the American public think ethnic profiling is justified, as long as it’s directed against Arabs and Muslims.

Now, one set of questions you can ask about these responses is, are they consistent with our principles? And I think clearly they are not. They are inconsistent with our commitment to political freedom, they’re inconsistent with our commitment to treating individuals on their own footing as individuals, and not based on their group identity, and they’re inconsistent with our commitment to equality. They, in effect, trade other people’s liberties, mainly immigrants and Arabs and Muslims, for our security.

Will these measures in fact make us more secure? I have my doubts, and I’ll give two examples that suggest that they may not. The examples are Israel and England. Israel has had a very serious problem with terrorism for a very long time. How have they responded? Guilt by association. They make it a crime to be a member of the various terrorist organizations. Incommunicado interrogation, something that we hold to be unconstitutional, for use of force to extract confessions, collective punishment, and assassination of suspected terrorists. Has this made Israel a safer country? I think not. I think, in fact, what it has done has caused more and more extreme responses from the Palestinian side.

England had the same experience with respect to the IRA. They also engaged in guilt by association. They authorized internment without charges. They barred the IRA from speaking on public television, and all of these measures simply made the IRA more sympathetic and more energized. And they didn’t begin to reduce the threat of terrorism until they started to negotiate through the peace process.

Justice Louis Brandeis wrote 75 years ago that fear breeds repression, repression breeds hate, and hate menaces stable government. I think that’s a very important lesson to remember. That in a sense, stability and security are consistent with and dependent upon freedom. If people are free to express their disagreements in peaceful ways, they are less likely to do so in more violent ways.

In addition, it seems to me you can ask whether guilt by association and ethnic profiling are likely to be effective. And I think they’re both likely to be particularly ineffective, for two reasons. One is that by painting with a broad brush, by treating people as guilty or suspect based not on who they are and what they’ve done, but based on the color of their skin or the groups or persons with whom they’re associated, we will inevitably ensnare many, many innocent people. Many, many innocent people.

And secondly, in engaging in these kinds of tactics, these kinds of broad-brush tactics, which will be and have been directed at Arabs and Muslims by and large, we risk the danger of alienating the Arab and Muslim communities. And if, in fact, the FBI believes that there are true threats, true terrorist threats within the Arab and Muslim communities, doesn’t it make more sense to try to build ties to the Arab and Muslim community, to work together with the community, to rely on the millions and millions of law-abiding, peace loving Arabs and Muslims among us, to help us to identify any true threats? Rather than to engage in broad-brush guilt by association and ethnic profiling, that is only going to make it more difficult for us to distinguish the true threats from the innocent among them.

Precisely because the terrorists violated every principle of human decency and civilized society, we have to stay true to our commitments to principle when we think about how to respond. Thank you.

Michael Ratner: David and I in our early days at the Center, along with another friend of mine who I still work with a lot, Professor Jules Lobel at the University of Pittsburgh Law School, have basically brought cases against every single war the United States has fought, really, since the days of Vietnam. On some illegality or other, whether war powers resolution or constitution.

And the question that I’ve been struggling with for this week, or the last three weeks is, is this a different situation? Is this a war, one we’re contemplating with the use of military force, one that I would approve of? And I remembered in my opposition with Jules to the war in Iraq, Alexander Cockburn wrote me a note saying, Michael, even leftists dial 911 sometimes. And it’s an appropriate comment, and it’s made me struggle a lot with the question. And it’s particularly made me struggle because I live downtown, and have been very affected in many, many ways by what happened.

I was jogging by the building when I saw the plane go in, my brother was in 7 World Trade Center, I got a note last week to attend the funeral of my children’s soccer coach, and the kids were supposed to wear their uniforms. So living downtown gives you a sense, first of all, of obviously wanting to stop this, to never have it happen again, and to punish the people who did it.

The other feeling it gave me was of how absolutely horrible terrorism, war, the killing of people is. And the little girl at my kid’s school who lost her father, who’s in 2nd grade–that kid has lost her father forever. And just like, unfortunately and sadly, people around the world have lost parents forever, whether that be in Israel or Palestine, or in Lebanon, or in Cambodia. And what it did really in a way, thinking like that, actually deepened my resolve that we have to try and find alternatives to the use of military force.

Whether there are any in this case, I’m not sure yet, but I would like to think that at this point we don’t want to kill more people. And the course we’re embarked on, I’ve concluded after a lot of self-struggle, is not really the right one. I think the consequences, really, of a war right now, with the use of military force we’re thinking about, could be absolutely horrendous. And I still think, at least in the short run, there are some alternatives. In the long run, I’m sure there are alternatives, and [those] have to deal with root causes and a lot of other issues we can talk about. But even in the short run, I think there is an alternative.

Because I’m a lawyer, some people have mentioned, Why don’t you sue to stop this war? You can … I want to at least. I want to put this in a legal context. Congress passed a resolution which essentially gave the President as much power as he wants. I’m critical of the resolution, because it doesn’t name any country, organization, or person. It allows him essentially to attack anybody he wants at his own discretion. It has no time limit. It doesn’t require him to go back to Congress with any evidence of any country that he wants to attack or any organization he wants to attack. It’s really open-ended.

Whatever we think about the use of force here, I don’t think that’s a way to run a democracy, in which Congress and the people through their Congress should have some more direction about the war. Is it illegal? Unlikely.

The second thing you can look at is the UN. Obviously, any use of force, except in self-defense, is to be authorized by the United Nations. You could make an argument here that this is basically retaliation what the US wants to do, but the US would have a pretty good argument, I think, saying it’s self-defense. That there were a series of attacks, assuming we have evidence of this, a series of attacks on the US by Al Qaeda, or whatever organization they decide they have evidence against, for they finally have evidence, and that those attacks very well might continue. And they could make a self-defense argument in this case, that I think would be hard to win.

Now, even though they could make a self-defense argument, that doesn’t mean that they can simply, without going to the UN to use force, go on forever without the UN doing something. And in fact, in this case, the United States did go to the UN, and the UN passed a series of resolutions. Those resolutions have a number of steps in them, about freezing bank accounts, turning over–they used a loose word in this particular year–terrorists. They had one a couple years ago about bin Laden.

So they have gone to the UN. And what Article 51 really says is, you can use self-defense until the security council has taken measures to protect international peace and security. You could make an argument here, that the US having gone to the UN can’t go off on its own and run a coalition. It’s in the Security Council’s hands. It’s an argument. Each of those resolutions reaffirms the right of countries to use self-defense. And considering that the US probably authored most of those resolutions, that it’s unlikely that argument would prevail.

Because we’re in a law school, I wanted to address that. It’s not, I think, the central issue right now, although I do think UN control of force is a central issue.

I want to talk about why, after really a lot of reflection, I think the use of military force here, the way it’s contemplated–and of course, it depends on scale, and it may depend, in some people’s mind, on scale–is it going to be small commando raids that try to kill bin Laden, or is it going to be something bigger than that? And people may have varying opinions about its use. I don’t think it can be small commando raids. I don’t think that’s possible, and I don’t think that’s what’s contemplated.

In my discussions with people, it’s pretty clear that a lot of people have good reasons against war in this case. And then one thing they always say is, “Well, what are the alternatives, Michael?” As I said, I’ll talk to it. There are at least seven or eight good reasons I can think of right now, and people can come up with more.

But one of them is, I think the use of military force is going to make us less safe. Certainly going to make us less safe in New York, and make the world less safe. The New York Times today, to me, was incredibly frightening. If you look at the articles today, they’re talking about what’s going on in Pakistan, with essentially hundreds of … I can read you this section: “Last Friday, in a drama repeated in hundreds of towns and cities, mullahs at the Red Mosque followed the gentle chanting of afternoon prayers with frenzied threats of violence. Death to America. Let Americans come to be buried.”

Pakistan is very, very divided over what’s going on here. The General in charge of it has basically said the US put a gun to his head, and essentially said we’re going to destroy you unless you go with us. But the amount of hate that a military action of the sort that I believe is contemplated, will engender in the Mid-East, or in this section of the world, is very, very serious. That’s Pakistan, and Indonesia, if you read the article yesterday. There are people going through the streets, trying to sweep all Americans out of Indonesia, volunteering to fight in Afghanistan.

So I think that one thing is, that I think this will make us less safe. I think David’s example of Israel is right. I don’t think Israelis, because of the way they’ve reacted to terrorism, feel any safer, and in fact probably less safe than they have felt in decades. And I think we in New York, living here, probably should feel less safe. In fact, Ashcroft, unless he was using it, which may be, just to puff his proposals, basically said with military attacks, we should fear more terrorism. So, big thing to me
here is, it makes us less safe.

Secondly, I think it’s going to destabilize other countries, whether that be Pakistan or Saudi Arabia, or other countries that have populations that are in struggle over a number of issues. And I think there is a strong chance of destabilization. The Times addresses that, again saying “America runs the danger of setting off a cataclysm in a place where civil violence is a likely bet, and nuclear weapons exist.” Again, we’re talking about Pakistan.

Third, I think the process they’re doing, it’s unlikely to stop bin Laden or kill him, capture him, and unlikely to eliminate the terrorist network. First of all, the last time we tried this when Clinton lodged missiles into Afghanistan, American intelligence was not good enough so that they could actually kill him. Secondly, if you believe what you read in the papers, 37 countries apparently have cells of Al Qaeda. Whether that’s true or not, I don’t know. But it doesn’t seem that an attack on Afghanistan is actually going to help eliminate that. The Times also said there are 11,000 people around the world in the network. Again, I don’t think an attack on Afghanistan is going to help that.

Fourth, what the US is doing here is requiring terrible trade-offs. Think about what we’ve had to do with Indonesia, for example. All of a sudden now, Indonesia, which activists have been fighting against giving military aid to for years, all of a sudden now we have to make a deal to give Indonesia military aid. And we know what Indonesia does with that military aid.

In some way, the war against terrorism, the way it’s been framed in this country, is like the war against communism. We don’t care what kind of government you have, we don’t care how you’re repressing human rights, if you’re with us on the war against terrorism, we’ll let you do whatever you want, essentially, to your own population. A very, very dangerous precedent.

Fifth, and this is shadowy, but they still haven’t come up with the evidence about bin Laden. And I think that’s actually quite serious. You know, we did bomb a chemical plant in Sudan. We thought it was a chemical plant. It was a pharmaceutical plant. We have never shown the evidence about that. I think countries are beginning to demand the evidence. I just happened to read the Sy Hersh piece in the The New Yorker yesterday and it said, “On September 23, Secretary of State Powell told the television interviewer, we will put before the world, the American people, a persuasive case, showing bin Laden was responsible for the attacks. But the widely anticipated white paper could not be published, the Justice Department officials said, for lack of hard facts. There was not enough to make a sale.”

Now, I don’t know whether bin Laden was involved in this or not. I don’t know who was involved. But I do think it will alienate more and more people unless you can show them the evidence, before you go around bombing and killing people.

Sixth, this is a tragedy that’s already begun to happen, and that’s the refugee situation in Afghanistan. The incredible broad threats of war that have come out of our government have created thousands and thousands of refugees in Afghanistan. They’re heading into the mountains. There is a winter coming in a few weeks. They’re trying to lift humanitarian aid in, but it’s estimated it could produce as many as a million and a half new refugees, in a country that already has a million and a half refugees. So we’re going to kill many, many people by this major threat of war.

Lastly, and of course something we all think about, because I think about it living downtown, is the innocence that will be killed in any campaign. And that’s something we all feel very strongly about. Clearly to me, there is a huge chance of some very, very bad things happening if we go to war. The question people have been asking, Well, what’s my alternative? And I tell you, short run, we’ve all been put in a situation that’s been festering, some would say 50 years, some would say 100 years, some would say more. Short run, it’s too much almost to expect answers from our country, much less from us.

But at least in the short run, we have to come up with something that can at least, I think, begin to steer us away. And there has been, obviously, since the announcement two weeks ago, or the Bush speech on September 20, some movement by the United States away from at least the kind of war that you were thinking about when he was giving his speech. And that’s partly because of what the European countries have done. I mean, I think they’ve made some of the points that I’ve made. Other people have. And there is certainly a lessening. I don’t think a lessening to the extent that it’s going to protect us enough, but a lessening.

The proposal that I, and a number of other people, have made is first of all to treat this as a crime against humanity and not as an act of war. And treat it as a criminal act. And get the perpetrators, and however you get them, basically with an arrest and trial, which is the best way. If you can’t there are other ways to do that, but basically treat it as a crime against humanity.

Secondly, go to the Security Council with that. Ask the Security Council for an ad hoc court, much like the courts that we’ve done in Rwanda and for Bosnia and former Yugoslavia. That can try the perpetrators of September 11. It has the advantage, of course, in much of the world of at least making it look more neutral, and it’s a world trying to combat what happened, and not just a United States-led force going in, even with all of our allies.

Third, obviously give that court the power to arrest, extradite, and try the people. And people of course say to me, Well, what if the people just don’t show up? Well, what if they can’t get the people? And the answer to that is, first of all, we don’t know until we really set that up. And lastly, you could actually establish a human force–a human force to arrest the people, really, under you in authority. That’s provided for in the charter to go and actually if necessary use force to get the people. But you would have to present evidence to the court and get them.

Is it a perfect alternative? No. In the present and current situation, I don’t see any perfect alternatives. It’s a short run suggestion or solution, because I think that what we’re facing on the other side is so dramatically bad, and the consequences are so horrible.

The two other things for the long run seem pretty clear to me. One is, the US has to understand that it’s part of a world of nations, and not a superpower that can engage in unilateral actions. That’s true, both even of the force that’s now being put together, which should be under the authority of the UN, but it’s even more true really, or similarly true of the US actions that we’ve seen over the last few years.

Obviously, all of a sudden, the US is paying its UN dues. At this point, what it does is, when it needs the UN, it goes and pays its dues, uses the UN a little bit like a fig leaf, and goes on, and then forgets it the next day. We can’t have that situation. We really have to have the US as part of the UN. And that includes, I think—if it’s going to use force, if my ideas and others like me don’t prevail–at least go to the UN and use a real UN force, and not a fig leaf for the United States.

Secondly, look at the ICC proposal, the International Criminal Court. The US has totally resisted that. If that court were in place, you’d actually have a place where you could present evidence and try the perpetrators of September 11th. And the US is still resisting it. There was actually a discussion on it on the congressional floor a week ago, in which Helms, who is the one who said this proposal is dead on arrival, said, well, maybe we’ll agree to this court if it can’t try any US servicemen. Well, it’s not good enough, obviously, but the fact that he’s woken up that maybe, maybe the ICC is something that’s important, is significant.

Third, the Bush Administration right before this had refused to sign the protocol making it easier to detect violations of the biological weapons treaty. Refused to sign it. Now everybody is worried about biological weapons, and the Bush Administration refused to sign it. So there’s another example where the US thinks that because it’s a superpower somehow it’s immune from what’s happening in the world. And as we can see, it’s not.

Bush also announced, belatedly again, that we’re going to start signing some of the anti-terrorism treaties. Particularly the one on tracing world finances. Again, it was one the US would not have signed, or contemplated signing, but for September 11. So that’s one area that I think the US has to focus on.

The second area, and this is long term, is what are the root causes. And I don’t mean that in a way at all to condone what happened or justify it, but if you don’t look at the root causes, I think you’re really being immoral. Because then you’re saying, let’s not look at why this happened. And therefore you can see it happen again and again. And a lot of people have put forth different answers to this.

Whether it’s the non-settlement of the Israeli/Palestinian conflict or the embargo on Iraq. A variety of causes like that. There’s those, there is obviously the grinding poverty. This stuff has been starting to be recognized.

There was even an article in the Times the other day, by Serge Schmemann saying that you can’t leave these kinds of disputes, Palestinian disputes–he didn’t refer to it directly–but these kinds of disputes going on forever, and not expect some reaction. You can’t have a world made up of such rich and such poor, and expect to be immune forever. So some of the root causes have to be examined if we’re going to get at this in the long term.

Do I have the answer? Obviously none of us do. But I do have a deep skepticism about the course we’re proceeding on, as much as, you know, my emotional feeling is, yeah, I would really love to kill the people who did this. But I have to step back from that and say, maybe that’s not the best solution here. Thank you.


In “Enemy Aliens,” an article for the Stanford Law Review (Volume 54, Issue 5), David Cole maintains that sacrificing immigrants’ liberties for citizens’ purported security is constitutionally and normatively wrong. He argues that it is ultimately a false trade-off, because what we do to aliens often paves the way for future incursions on citizens’ rights.

Six months after September 11, 2001, Michael Ratner argues that anti-immigrant behavior is unlikely to make Americans more secure, and it is certain to make the United States and its people less free.