To honor David Cole is not only to recognize the work of an enormously talented and creative lawyer but also to honor the best traditions of American lawyering. At critical junctures in our history, when threats to our national security-real or perceived-have led the government to take repressive measures, some few but highly effective lawyers have stepped forward to protect dissent, individual rights, and the basic principles of equality and due process of law.
For the past fifteen years, David Cole has devoted his legal talents to representing people and organizations targeted by the government based on their speech, associations, status as aliens, race, or political beliefs. For the past two years, he has been at the forefront of the effort to maintain civil liberties during a "war on terrorism." To understand the context of his recent work, recall that on December 11, 2001, Attorney General John Ashcroft, appearing before a Senate committee, made the following challenge:
To those who pit Americans against immigrants and citizens against non-citizens, to those who scare peace-loving people with phantoms of lost liberty, my message is this: Your tactics only aid terrorists, for they erode our national unity and diminish our resolve. They give ammunition to America's enemies, and pause to America's friends.
The attorney general sought to equate dissent with lack of patriotism and to accuse those who defend the rights of immigrants of dividing citizens from non-citizens. Unfortunately, the hallmark of federal law enforcement and terrorism over the past two years has been to blame and punish immigrants who have nothing to do with terrorism.
If the attorney general was thinking about any person in particular whose criticism and analysis had the kind of "bite" that must be countered, it might well have been David Cole. From the very start of the post-September 11, 2001, era and as the government used the attacks to secure new and unprecedented powers for law enforcement and to expand the government's authority to search, seize, and detain people suspected of terrorism, David Cole has led the resistance to this movement, articulating the unconstitutional and counterproductive nature of the government's approach.
While much of the country, including the legal community, appeared transfixed by the events of September 11 and the government's law enforcement response, some lawyers and activists set about the hard job of documenting the serious and dangerous oversteps of that response. David Cole has testified in Congress, filed and argued lawsuits challenging parts of the USA PATRIOT Act and related measures, has written books and articles on the issues, and has been a perceptive commentator in newspapers and on radio and television. He has been the most consistent and articulate critic of the government during the past two years.
David Cole's latest books on terrorism and civil liberties, Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism (2003) and Terrorism and the Constitution: Sacrificing Civil Liberties in the Name of National Security (2002), are essential reading for anyone concerned about the state of constitutional rights in this country since September 11. In these books and in his briefs and legal arguments, he focuses on the significant harms caused by the counterterrorism measures-in particular, the damage that has been inflicted on numerous innocent immigrants. His writings help us understand the complex ways in which the USA PATRIOT Act and related measures have affected rights to free speech, association, and immigration and ideas of equality and due process.
His magnificent work on civil liberties in a time of crisis is just the latest chapter in a remarkable career. An ardent champion of the rights of all people on American soil, particularly the foreign born, his principled critiques of government policy are an invaluable inspiration to those who similarly seek to preserve constitutional and human rights. David Cole is a professor at the Georgetown University Law Center, a volunteer staff attorney for the Center for Constitutional Rights, the legal affairs correspondent for The Nation, and a periodic commentator on National Public Radio's All Things Considered. He has litigated many First Amendment cases, including the Supreme Court cases of Texas v. Johnson and United States v. Eichman, which extended First Amendment protection to flag burning. The American Lawyer named him one of the top forty-five public sector lawyers in the country under age forty-five. Professor Cole is also the author of the award-winning book No Equal Justice: Race and Class in the American Criminal Justice System.
Beyond Cole's free speech victories in the Supreme Court, he has litigated some of the most difficult immigration and human rights cases to arise in the past fifteen years. A sample of his cases shows the breadth and complexity of the issues:
- American-Arab Anti-Discrimination Committee v. Reno (a First Amendment challenge to provisions of the McCarran-Walter Act authorizing deportation of aliens advocating doctrines of world communism or destruction of property): The district court declared the provisions of the McCarran-Walter Act unconstitutional and later held that immigrants and citizens have the same First Amendment rights, and that Immigration and Naturalization Service (INS) use of secret evidence violates due process. The Supreme Court reversed the First Amendment decision, ruling that the 1996 Illegal Immigration and Immigrant Responsibility Act had divested courts of jurisdiction over selective prosecution challenges.
- Open Door Counselling, Ltd. v. Republic of Ireland (a challenge under the European Convention on Human Rights to Ireland's constitutional prohibition on counseling about abortion): Ireland banned clinics from telling women about opportunities to obtain legal abortions outside of Ireland. The European Court of Human Rights held that the Irish ban violated Article 10 of the European Convention, guaranteeing freedom of expression and information.
o Bullfrog Films, Inc. v. Wick (a First Amendment challenge to U.S. Information Agency (USIA) regulations denying tax benefits to internationally distributed documentary films identified as propaganda): The Ninth Circuit held the regulations unconstitutional, and Congress subsequently enacted legislation barring USIA from issuing certificates based on the political viewpoints of films.
- Martinez-Baca v. Suarez-Mason (suits against an Argentine ex-general alleging torture, arbitrary detention, and "disappearances," in violation of international human rights law): The district court in a related case, Forti v. Suarez-Mason, ruled that the "disappearances" were violations of customary international law and awarded a judgment of $8 million; the district court in Martinez-Baca awarded a $21 million judgment.
- In re Randall; Randall v. Meese (First Amendment litigation resisting the INS attempt to deport feminist author Margaret Randall for advocating "world communism"): The Board of Immigration Appeals reversed the order of deportation for political writings on the ground that Randall never lost her U.S. citizenship.
- Wojnarowicz v. American Family Association (the first lawsuit under the New York Artists' Authorship Rights Act): Artist David Wojnarowicz filed suit against Reverend Donald Wildmon and the American Family Association for a leaflet misrepresenting Wojnarowicz's works of art in a mailing to 6,000 people (including members of Congress) during the National Endowment for the Arts controversy. The district court enjoined mailing of the leaflet and required a corrective mailing.
- Humanitarian Law Project v. Reno (a First and Fifth Amendment challenge to a federal statute criminalizing material support to designated terrorist organizations without regard to the purpose or effect of the support): The district court issued and the Ninth Circuit affirmed a preliminary injunction against enforcement of the prohibition on providing "training" and "personnel."
Almost two years after September 11 and the passage of the USA PATRIOT Act, Attorney General Ashcroft embarked upon a national public relations campaign to shore up sagging support for the USA PATRIOT Act and to lay groundwork for USA PATRIOT Act II. This tour, like much of the government's defense of the USA PATRIOT Act and other "antiterrorism" measures, reflects a growing awareness among the American public of the grave threats to liberty posed by post-September 11 law enforcement action.
Fortunately for those who believe in freedom, safety, and the U.S. Constitution, David Cole continues to speak truth to power.
David Rudovsky is a senior fellow at the University of Pennsylvania Law School. He is also a founding partner at Kairys, Rudovsky, Epstein & Messing in Philadelphia, where he has been engaged in civil rights, civil liberties, and criminal defense litigation for more than thirty years. In 1986 he was awarded a MacArthur Fellowship for his work in the criminal justice field.