professor of law at Georgetown University and the legal affairs correspondent for The Nation. He is co-author with Jules Lobel of the new book, Less Safe, Less Free: Why America Is Losing the War on Terror.
Today marks the sixth anniversary of the 9/11 attacks that killed nearly 3,000 people. In the aftermath of the attacks, the Bush administration launched the so-called "war on terror." Is the world a safer place as a result? We speak with Georgetown law professor David Cole, co-author of "Less Safe, Less Free: Why America Is Losing the War on Terror." [includes rush transcript]
AMY GOODMAN: Six years ago today, the planes hit the towers of the World Trade Center. At the time of our broadcast right now, 8:46 a.m., bells are tolling around the city to mark the moment Flight 11 crashed into the north tower of the World Trade Center.
Nearly 3,000 people were killed in the attacks. In the aftermath, the Bush administration declared a so-called "war on terror." In the name of preventative security the administration legitimized warrantless surveillance, detentions and torture, and launched wars against Afghanistan and Iraq. Is the world a safer place as a result?
Across the globe, we’ve seen a fourfold increase in suicide bombings and a threefold increase in terrorist attacks. Less than one-tenth of the detainees in Guantanamo Bay have been found to have links to al-Qaeda or the Taliban. Not one of 80,000 Arab and Muslim men who underwent special registration has been convicted of terrorism-related crimes.
Leading constitutional scholars David Cole and Jules Lobel have just published a critique of the Bush administration’s post-9/11 policies. It’s called Less Safe, Less Free: Why America Is Losing the War on Terror. David Cole is a professor of law at Georgetown University and legal correspondent at The Nation, joining us now from Washington, D.C., where another attack occurred on this day six years ago. Welcome to Democracy Now!, David Cole.
DAVID COLE: Thanks, Amy.
AMY GOODMAN: Well, talk about the situation. Talk about September 11, 2001, the day after, and what was launched by the Bush administration.
DAVID COLE: Well, I think, you know, what we owe to the memory of the victims of this day is a response that is principled and a response that is effective. And I think what the Bush administration launched the day after was neither principled nor effective.
On September 12, in fact, there was a meeting in the White House, and Bob Mueller, the head of the FBI, was saying that we have to round up the people who were responsible for supporting the 9/11 hijackers, and we have to do it fairly and legally so we can bring them to justice. And John Ashcroft interrupted at that point and said, "Wait a minute, wait a minute. We need to prevent the next attack from occurring. And if we can’t bring them to justice, so be it."
And they took John Ashcroft’s advice, not Bob Mueller’s advice, and decided to throw out the rules in the name of preventing another attack, with the result being that we haven’t brought anybody to justice and we’ve captured very few terrorists. Those that we have captured, we can’t bring to justice, because the way in which we captured them, either by disappearing them or by interrogating them, using torture, has immunized them from being held accountable.
AMY GOODMAN: Talk about Guantanamo right now, that part of the so-called war on terror. Who has been held there of the over 700 men? Who has been found guilty?
DAVID COLE: Right. Well, we’ve had over 775 people held at Guantanamo. These are people who initially we were told were the worst of the worst. They wouldn’t even give us their names. They refused to give them any hearings whatsoever, because they said, "We’re sure they’re all the worst of the worst. There’s no point in having any hearings."
What we now know, after they were forced to provide hearings by a Supreme Court that ruled that the rule of law actually applies at Guantanamo, after they were forced to give hearings, the hearing tribunals — these are the military hearing tribunals, which, as your listeners know, are no model of due process — nonetheless, those tribunals found that only 8 percent, 8 percent of those held at Guantanamo, are fighters for either the Taliban or al-Qaeda. It’s a very small percentage.
No one has been — the only person who’s actually been tried — no one’s been tried. And the only person who they have a conviction against is David Hicks, the Australian, and they only got that conviction by basically giving him a get-out-jail-free card if he pled guilty to an offense. But no one has been brought to justice. And I think it’s largely because they can’t bring people to justice when the evidence they have is tainted by the very tactics we used to get it.
AMY GOODMAN: That’s Guantanamo. What about the number of people here who have been arrested after, well, this day six years ago, after September 11, 2001?
DAVID COLE: Right. Well, if you look — I recently reviewed John Ashcroft’s memoir of his time at Justice. And he said, you know, right after September 11th, his job was to prevent the next terrorist attack from occurring. And he told President Bush he would do that. But he says candidly in the book, "We had no idea where the threat was."
So what did they do? They went out and rounded up Arabs and Muslims in the first two years after 9/11. They’ve admitted to detaining over 5,000 foreign nationals in preventive detention antiterrorism measures. They sought out 8,000 young men for FBI interviews, simply because they are from Arab and Muslim countries. And they required 80,000 to register with INS, be fingerprinted, photographed and interviewed, again, simply because they came from Arab and Muslim countries, no other criteria for suspicion. But the theory was we might find a terrorist here.
Of the 5,000 detained, zero today stand convicted of a terrorist offense. Of the 8,000 sought to be interviewed by the FBI, today zero stand convicted of a terrorist offense. And of the 80,000 brought in for special registration, none convicted of a terrorist offense. So the government’s record there is, in what is really the largest campaign of ethnic profiling since World War II, is zero for 93,000.
AMY GOODMAN: Can you talk, David Cole, about the conviction of Jose Padilla?
DAVID COLE: Well, the conviction of Jose Padilla is an interesting case. Of course, this is the man who the government arrested at O’Hare Airport, originally held him as a material witness. When that was challenged in a New York court, they swept him into military detention, where he was held incommunicado for several years. When that military detention was challenged and it was going go to the Supreme Court, where it looked like they would lose, they swept him out of military detention and put him on trial in Florida.
But this is the man who they originally claimed was responsible for a radiological dirty bomb plot, they subsequently said was responsible for plotting to rent apartments in the United States and blow them up, and they ultimately tried in Florida not for dirty bombs, not for any kind of terrorism within the United States, but essentially for attending a training camp in Afghanistan. And they were — and from their perspective, they were fortunate in obtaining a conviction against him.
But they essentially couldn’t try him on the charges that they laid out in press conferences, again, because what was the evidence for his involvement in these plots? The evidence was either obtained from him when he was held incommunicado for two years, or it was obtained from Khalid Sheikh Mohammed when he was waterboarded, made to fear that he was drowning in order to get him to talk. And you can’t use that kind of evidence in a court of law.
AMY GOODMAN: David Cole is our guest. He has written with Jules Lobel the new book, Less Safe, Less Free: Why America is Losing the War on Terror. David Cole, talk about what we saw in the last weeks: President Bush at an all-time low in popularity, but in the last days of Congress, the Democrats joining with Republicans on the issue of warrantless wiretapping. Where do we stand on surveillance?
DAVID COLE: Well, where we stand on surveillance is, we had a president who, in direct violation of a federal criminal statute, ordered, authorized warrantless wiretapping on Americans. When that was disclosed, it was challenged in the courts. A court held that the program was unconstitutional. The president then terminated the program, rather than defend it in court, and argued in court that the case was moot, but then went to Congress and got Congress, a Democratic Congress, to give him essentially carte blanche to engage in the very warrantless wiretapping that he had been illegally engaging in for five-plus years prior to that period of time. So it was a very, very disappointing response from a Democratic Congress, who clearly was afraid. They were afraid of being perceived as soft on terrorism.
But I think, you know, the point of our book is the Bush administration has acted tough on terrorism, but it hasn’t actually successfully engaged in a preventive strategy that works. It’s engaged in a preventive strategy that thrusts aside the rule of law, that sacrifices the legitimacy of the enterprise of trying to keep us safe, and that has fueled anti-Americanism around the world, making it more difficult for to us get the help we need from other countries and from other communities and making it much easier, of course, for al-Qaeda and al-Qaeda wannabes and al-Qaeda look-alikes to find willing adherence.
AMY GOODMAN: The Pentagon’s new rules, the issue of accountability.
DAVID COLE: The Pentagon — well, the Pentagon has still never been — no one high up has been held accountable for the atrocities at Abu Ghraib, which can be directly linked to the decision in the White House to relax the constraints on interrogation practices. And I think until the world sees us holding people responsible, not low-down people, but higher-up people, the people who made these policy judgments, until the world sees us as holding these people responsible, they’re not going to — you know, they’re not going to buy it.
The Army, the military, has, in fact, now adopted in its field manual rules that ban the use of coercive interrogation. They should have done that at the outset, but they have now done that. But, of course, at the same time, the President has authorized the CIA to continue to use the very tactics that the Army has rejected, the CIA continues to use in its black sites around the world.
AMY GOODMAN: David Cole, the Justice Department claims on its website, lifeandliberty.gov, to have charged more than 400 people in terrorism-related cases. Its own inspector general has said that they’re inflating those numbers. What are those numbers?
DAVID COLE: Those numbers are, indeed, very inflated. The key word there is "related." They say terrorism-related cases. When you actually look at those cases, the vast majority of them have no terrorism charge in them whatsoever. Both The Washington Post and New York Times did an exhaustive study of all the cases, and they found that there were only 39 convictions that had any terrorism charge in them whatsoever. All the rest were minor cases of credit card fraud and lying to an FBI agent, in which the government labels them as terrorism, but doesn’t actually try it or prove any kind of link to terrorism in the trial. Even as to the 39 convictions that actually have a terrorism charge, virtually all of those are under a very broad statute that makes it a crime to provide material support to terrorist groups, regardless of the nature of the support, regardless of your intent.
AMY GOODMAN: David Cole, we’re going have to leave it there. I want to thank you very much for being with us. Wrote with Jules Lobel the new book, Less Safe, Less Free: Why America Is Losing the War on Terror.