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David Cole: Lawyer For Terror By: William R. Hawkins
FrontPageMagazine.com | Thursday, April 01, 2004

Speaking at the Ronald Reagan Presidential Library and Museum on March 17, Vice President Dick Cheney again drew the distinction between fighting a war against terrorism and conducting normal domestic law enforcement activities. “For many years prior to 9/11, we treated terror attacks against Americans as isolated incidents, and answered - if at all - on an ad hoc basis, and never in a systematic way. Even after an attack inside our own country - the 1993 bombing at the World Trade Center, in New York - there was a tendency to treat terrorist incidents as individual criminal acts, to be handled primarily through law enforcement.” said the Vice-President. He then recounted the long list of terrorist attacks against Americans around the world in the 1990s and the creation of a vast network of training camps, financing operations and covert cells. “Remembering what we saw on the morning of 9/11, and knowing the nature of these enemies, we have as clear a responsibility as could ever fall to government: We must do everything in our power to protect our people from terrorist attack, and to keep terrorists from ever acquiring weapons of mass destruction.....Against this kind of determined, organized, ruthless enemy, America requires a new strategy - not merely to prosecute a series of crimes, but to fight and win a global campaign against the terror network.” proclaimed Cheney.

To most Americans this would seem a straight-forward and sensible approach. As the train bombings in Madrid again demonstrated, terrorists are not constrained by the rules of warfare, international law or any sense of morality. They use the weapons of war against civilians going about their normal daily business. The more defenseless the victims, the better. They are not stealing cars and holding up liquor stores, but attempting to massacre as many people as possible so as to destroy what they consider to be enemy societies.


Yet there are people in the United States who oppose the “war on terrorism.” These well-funded and energetic dissidents want terrorists to be treated no more harshly than street criminals, and to be accorded all the Constitutional rights and lengthy legal procedures that wily lawyers can devise, even when the accused is a foreigner with no claim to American citizenship.


One very loud voice on the Left in this campaign to emasculate the anti-terrorism measures enacted not only after the attacks of 2001, but also those enacted after the first foreign attack on the World Trade Center in 1993, is Georgetown University Law Professor David D. Cole. After graduating from Yale Law School, Professor Cole served as a law clerk to Judge Arlin M. Adams of the United States Court of Appeals for the Third Circuit. Cole then became a staff attorney for the Center for Constitutional Rights where he litigated a number of major First Amendment cases, including United States v. Eichman, which established that the First Amendment protects flag burning. He is the author of No Equal Justice: Race and Class in the American Criminal Justice System (New Press, 2000), co-author, with James X. Dempsey, of Terrorism and the Constitution: Sacrificing Civil Liberties for National Security (New Press, 2001) and the writer of numerous articles. His is the legal correspondent for The Nation, the flagship tabloid of the radical Left.


Cole’s newest book is Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism (New Press, 2002). Here he reconfigures the argument from No Equal Justice. In this earlier book, he alleged that America has two separate systems of justice, one for the privileged and educated, another for the poor and less educated, which he defines as being black and Latino people living in inner cities. The “double-standard” this time around is between American citizens and foreign non-citizens, especially from Arab-Muslim countries, but including any alien group engaged in any activity detrimental to U.S. national interests. He argues for the moral and pragmatic importance of avoiding a double standard and according foreigners the same rights as citizens.


Enemy Aliens was written with a Ford Foundation grant meant to “safeguard human rights and civil liberties of non-U.S. citizens and to inform policy makers and the public about these issues.” For the second anniversary of the September 11 terrorist attacks, the Ford Foundation published review of the book it its newsletter where it was argued that “Cole’s fight has taken on new urgency, as the government has detained thousands of Arab-American and Muslim men, held hundreds of ‘enemy combatants’ without trial, charges or access to legal representation, and endorsed racial profiling in terrorism cases.”


In the interview with Cole accompanying the review, he denounces “the criminalization of what the government calls material support for terrorist organizations. This is a practice that was introduced, again through the immigration law, against foreign nationals, but has now become part of the criminal law, and applies to both U.S. citizens and foreign nationals. It 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. I represent a human rights organization in Los Angeles in a lawsuit challenging this statute.”


The law to which Cole is objecting was not enacted by the Bush Administration after September 11, 2001, but during the Clinton administration in 1996. The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) came in the wake of the deadly 1993 World Trade Center bombing, a second plot later that year to bomb New York City landmarks, a 1995 conspiracy to blow American airliners out of the sky and the Oklahoma City bombing of a the Murtha Federal building. the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) that make it a crime punishable by up to 10 years in prison to provide material support to any foreign organization the Secretary of State has designated as a terrorist group.


The case Cole is working on is Humanitarian Law Project, et al, v. Department of Justice. It involves financial supporters of the Liberation Tigers of Tamil Eelam (LTTE) operating in Sir Lanka and the Kurdistan Workers Party (PKK) operating in Turkey, both formally designated foreign terrorist organizations. The PKK is responsible for some 22,000 deaths, primarily through bombing civilian targets in support of an independent Kurdistan.


Cole is working on the case as Cooperating Attorney and Board Member of the Center for Constitutional Rights. The CCR was founded in 1966 by Arthur Kinoy and William Kunstler Kinroy has a long history as an activist with known Communist-front groups such as the International Workers Order and the United Electrical Workers, a union expelled from the CIO because of it Communist leadership. William M. Kunstler is best known as the chief defendants' counsel at the trial of the “Chicago 8" who organized of the violent "peace" demonstrations as the 1968 Democratic Convention. He was cited for contempt of court for his disruptive tactics. Kunstler also defended the “Catonsville 9" a group of antiwar protesters led by Daniel and Philip Berrigan who broke into government offices to destroy local draft records.


In the Humanitarian Law Project case, the “plaintiffs’ principal complaint is that AEDPA imposes guilt by association by punishing moral innocents not for their own culpable acts, but for the culpable acts of the groups they have supported.” The CCR claims that it violates the First Amendment to punish people who give money, advice or other material support to terrorist organizations because such acts merely constitute “free speech” in support of the group’s political agenda.


One of the CCR disingenuous arguments is that “a woman who buys cookies from a bake sale outside of her grocery store to support displaced  Kurdish refugees to find new homes could be held liable so long as the bake sale had a sign that said that the sale was sponsored by the PKK, without regard to her knowledge of the PKK’s designation or other activities.” This is not, of course, how terrorist organizations raise funds. Groups engaged in terrorism, guerrilla warfare or other forms of armed resistance overseas draw much of the their finances from exile communities in other countries. It is difficult to contend that these exiles are unaware of what they are funding back home. Certainly, the Humanitarian Law Project is fully aware of the nature and actions of the PKK, with which they have had a very long association. Indeed, the CCR brief was a political manifesto for the movement and a propaganda assault on the Turkish government.


Yet, Cole and the CCR were able to convince a 3-judge panel of the Ninth Circuit Court of Appeals that “to avoid due process concerns and under the Court’s long-standing principles of statutory construction, we hold that to convict an accused of violating § 2339B, 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. Finally, we hold, as did the district court, that the terms “personnel” and “training” included in the definition of “material support” are void for vagueness.”


“Material support” was defined in the AEDPA as “currency or other financial securities, financial services, lodging, training, safehouses, false documentation or identification,

communications equipment, facilities, weapons, lethal substances, explosives, personnel, transportation, and other physical assets, except medicine or religious materials.”


Excluding “training” and “personnel” from the list of illegal activities supporting terrorism is a massive loophole. The Ninth Circuit Court ruling was made in 2000,  but Cole was quick to exploit its meaning after the 9/11 attacks. When Attorney General John Ashcroft made a speech to a national conference of U.S. Attorneys on October 1, 2002, directing federal prosecutors to "use the full weight of the law" to "neutralize" terrorist threats, Cole lashed out in the next issue of The Nation. “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 Humanitarian Law Project case is not finished. Though the Supreme Court refused to hear the government’s appeal of the Ninth Circuit Court decision, the government has sought to dismiss the challenge to provisions regarding “training” and “personnel” at the district court level on the grounds that is issue has become moot because the underlying policy had been changed and the terms are now better defined.  Judge Audrey Collins of the Federal District Court for the Central District of California again ruled against the government, but the case is back before the Ninth Circuit on the government’s appeal of that ruling. Meanwhile, the law was amended by the USA PATRIOT Act, so the whole process may start again.


A key part of the Bush Administrations’ anti-terrorism effort has been the dismantling of financial networks that have funded terror, and a number of groups which had supposedly been operating as charities have been raided and closed down, with their assets seized.


Cole has, of course, been campaigning against the Patriot Act. Writing in the Winter 2002 issue of Human Rights, a journal of the American Bar Association, Cole argued, “The Patriot Act also resurrects 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. Excluding people for their ideas is flatly contrary to the spirit of freedom for which the United States stands.”


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. Not until the streets are filled with dead and maimed bodies are the authorities to be allowed to act. A better strategy for crippling the war on terrorism would be had to find. But then Cole has spent his entire career refining his skills in league with a radical Left network determined to defeat the United States on every front and hand victory to any and every enemy America has in the world.


Supreme Court Justice Arthur Goldberg, a well known liberal, stated the critical principle in 1963 that should guide American policy in a time of crisis, “while the Constitution protects against invasions of individual rights, it is not a suicide pact.” Nor should people like David Cole be allowed to twist its meaning to provide cover for those who would plot new suicide bombings.

William Hawkins is a consultant on international economics and national security issues.

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