The United States’ War on Terror, initially a visceral response by the government and several of its allies to the terrorist attacks of September 11, 2001, is still based on the government’s desire to protect the American people – depending on whom you ask.
The most recent polls reveal one of President Bush’s lowest approval ratings since the beginning of his presidency – 33 percent, according to a poll conducted by the Washington Post on Jan. 19.
Some experts argue that the government’s attempts to keep the country safe and secure have compromised civil liberties, and the American people have taken note.
David Cole, a professor of law at Georgetown University, is one such expert. Cole graduated from Yale Law school and has written books on the War on Terror, civil liberties and the criminal justice system. He is a respected voice regarding First Amendment and constitutional law issues and a contributor to National Public Radio.
Cole spoke on Tuesday night at UR regarding the “Paradigm of Prevention” adopted by the Bush administration. The “Paradigm of Prevention,” which supports the use of preventive detention, coercive interrogation and preventive war in the name of safety, is, according to Cole, compromising the rule of law and making Americans less safe.
Cole identifies the rule of law as a set of norms – equality, transparency, fair process, checks and balances and a commitment to fundamental human rights – which are internationally followed.
In his talk “Less Safe, Less Free – Why We are Losing the War on Terror,” Cole suggests that President Bush’s warrantless wiretapping program, ethnic profiling and the suspension of the writ of habeas corpus have effectually sacrificed civil liberties and violated international policies. One such policy, the Foreign Intelligence Surveillance Act (FISA), was established in 1978 and describes procedures for the surveillance and collection of foreign intelligence information between and among foreign powers. Cole discussed the War on Terror’s current relationship with the law in an interview with the Campus Times.
How has the War on Terror affected our legal system, specifically with regards to the suspension of habeas corpus and the privacy rights of both citizens and non-citizens?
It is hard to identify a right that the Bush administration has not sought to impinge upon in the name of increasing our security, everything from the first amendment rights of political association that penalize association with black-listed groups, to due process which has been denied by the government’s assertion of the authority to lock up human beings indefinitely without charges and without trials, to fundamental privacy rights which have been infringed upon by programs like the President’s warrantless wiretapping program.
Our government has suspended habeas corpus and restricted other civil liberties during times of crisis in the past – for example during the Civil War. How does the suspension of habeas corpus and other possible civil liberty violations today compare with those in America’s history, such as the Civil War?
During the Civil War we were in a war – a nationwide war – on our own turf, and President Lincoln initially, then Congress thereafter, suspended the writ of habeas corpus in connection with fighting that war on our shores. It is very different from today where we suffered a single attack on September 11 – a terrible attack – but it is not like there is an ongoing war on American shores. There is no invasion, no rebellion. The Constitution says that the writ of habeas corpus can be suspended by Congress when necessary in response to a rebellion or invasion, and most scholars agree that there has been no rebellion or invasion.
Often your discussions on the War on Terror address issues such as violations of civil liberties. But it can be difficult for the everyday American, specifically the college student, to be fully aware of such civil liberty violations. How exactly do these violations apply to the everyday person and, more specifically, the average college student?
For the most part, these measures have been targeted not at the everyday college student – not even the everyday American – but at foreign nationals such as Arabs, Muslims and minority groups. In the most direct sense, they generally don’t affect the everyday college student, but in a broader sense, I think they do for two reasons. The first is that they’ve done immeasurable damage to the United States’ reputation abroad and have given al Qaeda all sorts of recruitment fodder that it can use to recruit terrorists and take action against us. All of us are made more vulnerable when our government engages in activity that fosters and breeds anti-American resentment around the world.
The second is that if you look at history, what the government does in the name of national security is almost always initially targeted at a minority group, but inevitably it is extended to broader and broader groups as the government gets used to the power and seeks to expand it. Our rights may not seem directly affected today, but they will be tomorrow.
You regularly cite the warrantless wiretapping program as an example of how the current government is violating the rights of Americans. How are these specific violations of national policies regulated?
There have been many lawsuits that have been filed and many federal courts have ruled that President Bush violated the Foreign Intelligence Surveillance Act and the Constitution with his warrantless wiretapping program.
The government appealed that decision, but, while it was on appeal, they also announced that they were terminating the warrantless wiretapping program and in fact we are now able to adhere to the requirements of FISA. They have essentially backed off of their initial claim, but for five years, they were engaging in conduct that was criminally prohibited by our federal law.
What challenges will a new administration face regarding the War on Terror in 2008?
I think that, unfortunately, whoever takes over will have their work cut out for them, because the Bush Administration has adopted a number of very short-sided policies that have done tremendous damage to the United States’ image abroad and to our reputation. They have fueled anti-American resentment and have made the world a more dangerous place for Americans.
The task that a new president will face is how we can recover some of the standing that we had before September 11. How can we once again be seen as a country that believes in the rule of law, believes in the principles of liberty and equality and the like?
And if a president can do that then we will stand a chance of reversing some of this tremendously dangerous anti-American resentment for which President Bush is responsible.
Fischer is a member of the class of 2008.
