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DAVID COLE Printer Friendly Page

David Cole: Lawyer for Terror
By William Hawkins
April 1, 2004

Unholy Alliance: How the Left Supports the Terrorists at Home
By David Horowitz
September 24, 2004



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  • Professor of law at Georgetown University
  • Radical attorney-activist who has repeatedly defended supporters of terrorism
  • Believes that the “greatest threat to our freedoms is posed not by the terrorists themselves but by our own government's response.”

See also:  Center for Constitutional Rights   Bill of Rights Defense Committee

                 The Nation   Constitution Project   NPR

Born in 1958, David Cole earned a bachelor’s degree from Yale University and a JD from Yale Law School. After completing his education, he served as a law clerk to Judge Arlin M. Adams of the U.S. Court of Appeals for the Third Circuit. Cole then worked as a staff attorney for the Center for Constitutional Rights (CCR) from 1985-90, and later went on to hold a seat on the CC
R board of directors.

Now a prominent attorney-activist in the ranks of the American Left, Cole has litigated many cases during his legal career. Among these were Supreme Court cases like
Texas v. Johnson (1989) and United States v. Eichman (1990), both of which extended First Amendment protection to flag-burning; National Endowment for the Arts v. Finley (1998), which challenged content-based restrictions on funding for the National Endowment for the Arts; and Holder v. Humanitarian Law Project (2010), which challenged the constitutionality of the statute prohibiting “material support” to terrorist groups.

Cole has taught constitutional law, national security, and criminal justice at the
Georgetown University Law Center for many years. One of his more notable classes has been “National Security and Civil Liberties,” which was instituted post-9/11 and, according to the course description, aims to “address the tension between liberty and security in times of crisis.” Specifically, the course is intended to “shed light” on what it calls “the current crisis,” a reference to America's war on terror. It is in this context that the course proposes to address such issues as “the respective roles of Congress, the President, and the courts in times of emergency”; “the targeting of foreign nationals”; and “preventive detention, surveillance standards, enemy combatants, military tribunals, the role of international tribunals, and regulation of speech and association.”

Cole was fervently
opposed to the passage of the Anti-Terrorism and Effective Death Penalty Act (AEDPA) of 1996, a Patriot Act precursor that made it a crime punishable by up to 10 years in prison to provide “material support” to any foreign organization designated as a terrorist group by the Secretary of State. In a 2003 interview, Cole explicitly denounced “the criminalization of what the government calls material support for terrorist organizations,” adding: “This is a practice that … criminalizes any support of any blacklisted terrorist organization without regard to whether one's support actually had any connection whatsoever to terrorist activity that the group undertakes.”

In his 2001 book, 
No Equal Justice, Cole alleged that America has two separate systems of justice – one for the privileged and educated, another for the poor and less educated (whom he identifies as black and Latino people living in inner cities). Cole reprised these arguments in his 2002 book, Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism. The “double-standard” referenced in the latter book was the one that allegedly distinguished between American citizens and foreign non-citizens, especially non-citizens from Arab-Muslim countries. Enemy Aliens was written with a Ford Foundation grant whose stated purpose was to “safeguard human rights and civil liberties of non-U.S. citizens and to inform policy makers and the public about these issues.”

Since the 1990s, Cole has been in the vanguard of an activist-led movement that aspires to vitiate anti-terrorism legislation and, more broadly, hamstring U.S. efforts to effectively wage a war on terrorism. Significantly, he wrote in 2002 that “it appears that the greatest threat to our freedoms is posed not by the terrorists themselves but by our own government’s response” to 9/11.

Also in 2002, Cole committed his signature to a “
Statement of Conscience” drafted by Not In Our Name (NION), a self-described “peace movement” initiated by C. Clark Kissinger of the Revolutionary Communist Party. The NION Statement condemned not only the Bush administration's “stark new measures of repression,” but also its “unjust, immoral, illegitimate, [and] openly imperial policy towards the world.” According to NION, on whose advisory board Cole sat, it was the American government – and not the government of any other nation – that posed the most “grave dangers to the people of the world.”

In 2002 as well, Cole came to the defense of 
Sami Al-Arian, the University of South Florida professor arrested for his involvement with the terrorist group Palestinian Islamic Jihad. Calling Al-Arian “the victim,” Cole contended that “people cannot be punished for advocating criminal activity unless the Supreme Court has said their speech is intended and likely to incite imminent lawless actions.” On the strength of this argument, Cole claimed that Al-Arian’s remark wishing “Death to Israel” was protected speech.

Cole also lamented the plight of his client (and Al-Arian’s brother-in-law)
Mazen Al-Najjar, who since 1997 had been in detention on charges that he was a fundraiser for Palestinian Islamic Jihad. Depicting Al-Najjar’s case as a routine instance of U.S. authorities' unjust targeting of foreign nationals, Cole asserted, on no evidence, that his client was being “held under conditions which are far worse than any convicted murderers.”

When Attorney General John Ashcroft made a speech to a national conference of U.S. Attorneys on October 1, 2002, directing them to “use the full weight of the law” to “neutralize” terrorist threats, Cole lashed out in the next issue of The Nation,
writing: “Ashcroft has stretched the meaning of 'terrorism' … applying it, for example, to a group of young men in Lackawanna, New York, who apparently did nothing more than attend an Al Qaeda camp, and to John Walker Lindh, who merely signed up to fight for the Taliban.” (The young men in Lackawanna were the so-called “Lackawanna Six.”)

In the Winter 2002 issue of 
Human Rights, a journal of the American Bar Association, Cole protested that: “The Patriot Actresurrects ideological exclusion, the practice of denying entry to aliens for pure speech. It excludes aliens who ‘endorse or espouse terrorist activity,’ or who ‘persuade others to support terrorist activity or a terrorist organization,’ in ways that the secretary of state determines undermine U.S. efforts to combat terrorism. It also excludes aliens who are representatives of groups that ‘endorse acts of terrorist activity’ in ways that similarly undermine U.S. efforts to combat terrorism.” Portraying terrorism as a free speech issue, Cole added: “Excluding people for their ideas is flatly contrary to the spirit of freedom for which the United States stands.”[1]

Cole reprised this line of argument in his passionate opposition to the Domestic Security Enhancement Act of 2003 (a.k.a. “Patriot Act II”), which sought to ban all support – regardless of its nature – for terrorist organizations. In February 2003, Cole enumerated 13 major components of Patriot Act II which he found objectionable. Some excerpts:

1. “Section 201 … would mandate that all arrests in connection with 'international terrorism' investigations be secret until an indictment is filed. Never before in our history have we permitted secret arrests.”

2. “Section 312 would automatically terminate any consent decree governing police spying abuse that was entered before September 11, 2001, no matter what the basis of that decree.”

3. “Section 503 would give the Attorney General unchecked power to deport foreign nationals, including lawful permanent resident aliens, whenever he determines that their presence is inconsistent with our 'national security.'”

“Section 501 would … provide that even activity that is currently legal to engage in – such as belonging to or supporting the lawful activities of a group designated 'terrorist' by the Attorney General – would be presumptive grounds for losing one’s citizenship.”

5. “Section 103 would authorize the Attorney General to bypass the courts altogether for Foreign Intelligence Surveillance Act searches and wiretaps whenever Congress has authorized the use of force. Section 128 would allow government to bypass grand juries for subpoenas in terrorism investigations. Section 126 allows government to bypass courts or grand juries in seeking access to credit reports.”

6. “Section 301-306 would authorize creation of a DNA database on 'suspected terrorists,' expansively defined to include mere association with suspected terrorist groups, and noncitizens suspected of everyday crimes or of having supported any group designated as terrorist.”

7. “Section 107 would eliminate protections in the current FISA law for U.S. persons (citizens and lawful permanent residents). It would allow the government to get pen registers on U.S. persons for any foreign intelligence investigation, without regard to any criminal or terrorist nexus.”

8. “Section 121 eliminates the distinction between international terrorism and domestic terrorism. The reason for that distinction has been that domestic terrorism is a crime, and should be treated as a criminal matter, while international terrorism is both a crime and a matter of foreign intelligence. As a result, international terrorism investigations have used broader surveillance under looser restrictions than domestic terrorism investigations ...”

9. “Section 126 would give federal law enforcement authorities access to credit reports on the same basis as private companies. Historically, law enforcement access has been more limited …”

10. “Section 128 and 206 impose gag orders on persons subjected to terrorism investigations. Section 204 would presumptively give the government authority to make secret presentations to courts in criminal cases related to the Classified Information Procedures Act.”

11. “Section 411 creates new death penalties for certain terrorist offenses.”

12. “Section 322 authorizes extradition even where there is no treaty authorizing and setting criteria for extradition.”

13. “Section 504 … creates an 'expedited removal' process, radically limiting judicial review, for any foreign national convicted of a wide range of minor and major crimes, irrespective of when the crime was committed. This simply exacerbates the already harsh immigration laws governing those who have committed a crime, and seeks to deprive them of any meaningful judicial review, without any connection to terrorism or national security.”

In 2003, Cole, as a cooperating attorney and board member of the Center for Constitutional Rights, worked on Humanitarian Law Project, et al, v. Department of Justice. This case involved financial supporters of the Liberation Tigers of Tamil Eelam (LTTE) operating in Sir Lanka, and the Kurdistan Workers Party (PKK) operating in Turkey, both of which were violent Marxist separatist groups that had been formally designated as foreign terrorist organizations; together they were responsible for at least 100,000 deaths.

The lead plaintiff in the case was
the Humanitarian Law Project (HLP), whose president, the longtime civil-rights attorney Ralph Fertig, sought to help PKK find peaceful ways of advancing its goal, which was to create an independent Kurdish state in southeast Turkey, northern Iraq, and parts of Iran and Syria. Notwithstanding PKK's bloody track record, Fertig and HLP maintained that with a proper blend of persuasion and education, the organization could be convinced to renounce its violent tactics and to work, instead, within the framework of “various representative bodies such as the United Nations for relief.”

HLP was joined
in the suit by five Tamil groups that had been supporting LTTE with donations of food, clothing, books and educational materials for its orphanages, refugee relief centers, and schools. These Tamil organizations also wished to make cash contributions that would: (a) help LTTE to finance its 1997 lawsuit challenging its terrorist designation, and (b) enable LTTE to distribute literature in the United States.

In the courtroom, Cole maintained that an AEDPA/Patriot Act provision criminalizing “material support” for terrorists was unconstitutional. His argument was that because the prohibition did “not require proof that an individual intended to further terrorist activity,” it “impose[d] guilt by association, rather than on the basis of one’s acts.” Ultimately, Cole was able to convince a three-judge panel of the Ninth Circuit Court of Appeals that “to convict an accused of violating” the aforementioned provision, “the government must prove beyond a reasonable doubt that the accused knew that the organization was designated as a foreign terrorist organization or that the accused knew of the organization’s unlawful activities that caused it to be so designated.”

Circa 2004, Cole spoke at a large fundraising banquet for the Council on American-Islamic Relations' Southern California office

Cole and the Center for Constitutional Rights garnered considerable media coverage in 2005 when CCR elected to represent the radical lawyer 
Lynne Stewart during her trial for having abetted the terrorist ambitions of Islamic Group leader Omar Abdel Rahman, mastermind of the 1993 World Trade Center bombing. No sooner was Stewart found guilty in February of 2005, than Cole rallied to her side. In a post-trial column for The Nation, where he was a legal affairs correspondent, Cole denounced the decision, stating that “this case illustrates how out of hand things have gotten in the ‘war on terrorism.’” Cole claimed that Stewart had committed no crime; that the charges against her “were a stretch”; and that if anyone could credibly be accused of terrorism, it was the Justice Department.

Cole and Elena Kagan served as advocates for the Humanitarian Law Project and its fellow plaintiffs in a 2009-10 Supreme Court case known as
Holder v. Humanitarian Law Project, which grew out of the aforementioned Humanitarian Law Project, et al, v. Department of Justice. Oyez.org lays out the basic facts of the 2009-10 case as follows:

Among the plaintiffs in this case are supporters of the Kurdistan Workers Party ("KWP") and the Liberation Tigers of Tamil Eelam ("LTTE"). The KWP and LTTE engage in a variety of both lawful and unlawful activities. They sought an injunction to prevent the government from enforcing sections of the Antiterrorism and Effective Death Penalty Act ("AEDPA"). Section 302 authorizes the Secretary of State to designate a group as a "foreign terrorist organization." Section 303 makes it a crime for anyone to provide "material support or resources" to even the nonviolent activities of a designated organization. In previous cases, the courts have held that Section 303 was unconstitutionally vague. Congress then passed the Intelligence Reform and Terrorism Prevention Act ("IRTPA") which amended the AEDPA. It added a state of mind requirement that individuals "knowingly" provide "material support or resources" in order to violate the Act. Congress also added terms to the Act that further clarified what constituted "material support or resources." The government moved for summary judgment arguing that challenged provisions of the AEDPA were not unconstitutionally vague. The district court granted a partial motion for summary judgment, but held that some parts of the Act were unconstitutionally vague. On appeal, the U.S. Court of Appeals for the Ninth Circuit affirmed, holding that the terms "service," "training," or "other specialized knowledge" within the AEDPA, as applied to the plaintiffs, were unconstitutionally vague.

In a 6-3 decision issued on June 21, 2010, the Supreme Court ruled that the law making it a crime for Americans to provide “material support” of any kind to a foreign terrorist organization was constitutional – even in cases where the material support was for ostensibly peaceful purposes. Cole, for his part, lamented that the Court's ruling “basically says the First Amendment allows making peacemaking and human rights advocacy a crime.”

In addition to his professorial and litigation-related activities, Cole is also the legal-affairs correspondent for
The Nation, and an advisory board member with the Bill of Rights Defense Committee. Moreover, he has served as co-chairman of the Constitution Project's Liberty and Security Committee, a commentator on NPR's All Things Considered, and a regular contributor to the New York Review of Books.

In July 2016, the American Civil Liberties Union announced that Cole would be its next national legal director.

For additional information on David Cole, click here.

[1] In an analysis of Cole's mindset, conservative scholar William R. Hawkins explains: “Cole believes this should hold true even if the ideas expressed are for the total destruction of the United States and the mass murder of its inhabitants. And even if those who desire this outcome don’t just talk about it, but organize to help bring it about, the authorities should still take no action and allow such people to freely enter the country.”




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