David Cole, a noted Georgetown University law professor and civil liberties expert, spoke in Hoyt Auditorium on Tuesday night as part of the year-long Humanities Project lecture series on the War on Terror. Cole focused what he saw as the Bush government’s subversion of the rule of law under their anti-terrorism policies, which, he said, “undermined the legitimacy of enterprises of protecting America from terrorists.”
To begin, Cole referred to “Minority Report,” a film in which the government can predict crimes before they happen, engendering the prosecution of “precrime.” The anti-terrorism laws created after September 11, 2001, he asserted, were “predicated on the ability to predict the future.”
Cole likened the basis for these laws, the “Paradigm of Prevention,” introduced by John Ashcroft as a threefold way to prevent terrorism, to the fictional prosecution of “precrime.” The tenets of the Paradigm of Prevention, preventive detention, anticipatory coercion and preventive war were all “based on some prediction of what [a state or individual] may do,” according to Cole.
Having introduced the idea of the Preventive Paradigm, Cole introduced what would be the main points of his speech: the Paradigm of Prevention has eroded the rule of law which was meant to check the state’s power; the compromises on the rule of law have not made us safer but have most likely put us at a greater risk of attack and we can effectively fight terrorism with rule of law.
Before continuing, Cole defined rule of law as “a set of norms that are widely shared,” and enumerated its five components – equality before the law, transparency, due process, checks and balances and a commitment to human rights and dignity.
Our government has compromised the notion of equality before the law, “the most critical” to Cole, by lowering the legal status of foreign nationals in ways that would not be feasible to use against citizens. The government was able to call in 80,000 foreigners for fingerprinting, photographs and voluntary interrogations, something he argued would have created an uproar had those people been citizens. These actions, Cole explained, went undetected because people accepted that it was permissible to infringe upon the rights of foreign nationals.
After proceeding to address our government’s failings on transparency, due process and checks and balances, Cole spoke in detail about how our lack of commitment to human rights may have done the least to keep us safe.
“If [the terrorists] had hired a Madison Avenue firm to create a campaign to recruit terrorists, they could not have devised something better than Abu Ghraib,” Cole said. “It makes us vulnerable to al Qaeda’s propaganda.”
Our failure to have respect for human rights has made us less safe, Cole explained. On September 11, 2001, he noted, the world had sympathy for us as a country. Because of our actions, we have lost their sympathy. That lack of support, he claimed, has made it harder for us to fight terrorists.
To assess the value of the compromises made on the rule of law under the Paradigm of Prevention, Cole asked, “Have we kept America safe?”
Government statistics, he said, would indicate yes. There has been no terrorist attack against the United States since September 11, 2001 and the Justice Department has brought 400 indictments and 200 convictions in terrorism-related cases.
Cole added, however, that those “terrorism-related” cases were not really related to terrorism. The government levied charges, like immigration-paper infractions, and then tried to link the suspects to terrorism. The median jail sentence served in these cases was 14 days, which he pointed out would do nothing if that person had actually been a terrorist.
What Cole saw as the problem with the War on Terror was not the war itself, but the way we have fought it. Fighting in Afghanistan, he held, was legitimate because we had the approval of our allies, NATO and the UN.
Subverting the rule of law to potentially deter terrorism, as was the case with Guantanamo Bay, has not made us safer, according to Cole.
“If we had treated [the detainees] more humanely, verified their status and repatriated them eventually, it would not have been such a disaster,” Cole said.
Despite the critical tone of his speech, his overall message was positive. In his final minutes, Cole cited incidences where infringements on the rule of law by the Bush government’s War on Terror had been successfully challenged, including the government’s ceasing to wiretap without warrants. He attributed these reversals to pressure applied by members of “civil society,” like the ACLU, Amnesty International, the press, ethnic and religious groups and other groups of citizens.
These successes, Cole said, highlighted the importance of speaking out against government infringements on the rule of law.
“We can learn that the United States is less powerful and rule of law is more powerful than we would have thought on September 11. Rule of law has shown itself more powerful only by people speaking out on the principles on which this country was founded,” Cole concluded.Fleming is a member of the class of 2010.