David Cole, attorney for the Humanitarian Law Project. He is a law professor at Georgetown University and editor of the new book The Torture Memos: Rationalizing the Unthinkable.
In its first-ever review of the PATRIOT Act, the Supreme Court has announced it will decide the constitutionality of a controversial anti-terrorism law that makes it a crime to give any form of aid, including humanitarian assistance, to groups on the State Department’s list of foreign terrorist organizations. The Supreme Court case centers on a lawsuit filed by the Center for Constitutional Rights on behalf of the Humanitarian Law Project. We speak to David Cole, a Georgetown University law professor and attorney in the case. [includes rush transcript]
This is a rush transcript. Copy may not be in its final form.
JUAN GONZALEZ: For the first time, the Supreme Court will review part of the PATRIOT Act. On Wednesday, the Supreme Court announced it will decide the constitutionality of a controversial anti-terrorism law that makes it a crime to give any form of aid, including humanitarian assistance, to groups on the State Department’s list of foreign terrorist organizations.
The material support law was first adopted in 1996 but strengthened by the PATRIOT Act in 2001. The Obama administration has defended the law as a vital part of the nation’s effort to fight terrorism, but civil liberties groups say it essentially allows for guilt by association.
AMY GOODMAN: The Supreme Court case centers on a lawsuit filed by the Center for Constitutional Rights on behalf of the Humanitarian Law Project. The group provides nonviolent dispute resolution and human rights advocacy training to the Kurdistan Workers’ Party and several groups of Tamil Americans who sought to provide humanitarian relief in war-torn areas of Sri Lanka once controlled by the Tamil Tigers.
We’re joined now by David Cole, attorney for the Center for Constitutional Rights representing the Humanitarian Law Project. He’s a law professor at Georgetown University, edited the new book The Torture Memos: Rationalizing the Unthinkable.
David Cole, explain the significance of the Supreme Court looking at the PATRIOT Act for the first time and what your case is based on.
DAVID COLE: Well, this is a particularly broad law, made much broader by the PATRIOT Act, and it allows the government to basically put someone in jail for fifteen years on a terrorism conviction without having proved that the individual engaged in any terrorism, conspired to engage in any terrorism, attempted to engage in any terrorism, provided any support to terrorist activities. Instead, what triggers the crime is simply your doing anything of value for any group that has been put on a blacklist by the Secretary of State.
And so, our clients, Humanitarian Law Project, had been providing human rights advocacy training and peacemaking negotiation assistance to the Kurds in Turkey, essentially encouraging them to use lawful, nonviolent means to resolve their disputes with the Turkish government, by going to Geneva and filing human rights claims, by participating in peace talks and the like. Once this law was put in place, it became a crime for this American human rights group to continue to encourage the Kurds to use lawful, nonviolent means to further their dispute, because the group in Turkey, the Kurdistan Workers’ Party, has been labeled a terrorist organization.
JUAN GONZALEZ: And how many people have actually been prosecuted by the federal government in recent years?
DAVID COLE: Well, it’s interesting. This law was passed, as you indicated, in 1996, but it really was left unenforced until September 11th. Since September 11th, however, it’s been a favorite tool of the government. There have been over a hundred prosecutions. And the reason it’s the favorite tool is precisely because it doesn’t require the government to prove up that an individual actually is connected to any kind of terrorist activity. It allows them to paint with a broad brush. And so, you know, they’ve prosecuted a student in Idaho who simply had a website that had links on its website to other websites that had jihadist rhetoric, and they said that was material support. So it’s been used very, very broadly by the administration.
AMY GOODMAN: Hasn’t Senator Feingold introduced a bill to amend this aspect of the USA PATRIOT Act?
DAVID COLE: He has. Senator Feingold is, you know, rightly concerned about how sweeping this law is and has sought to narrow it so that it serves its legitimate purpose, which is to cut off support for terrorist activity, while not penalizing people like my clients who are simply trying to engage in speech in furtherance of nonviolence. But thus far, that amendment hasn’t gone very far.
JUAN GONZALEZ: And what’s been the position of the Obama administration so far on the law?
DAVID COLE: Well, they’re the ones who asked the Supreme Court to review the case. We prevailed in the lower courts. The lower courts held that the parts of the material support law that most clearly affect speech — prohibition on expert advice, on training, on services — were unconstitutional and protected our client’s right to provide this kind of a lawful support. It’s the Obama’s administration that sought to have the Supreme Court review the case. So, thus far, they haven’t taken a position that’s any different from their predecessors, or indeed from the Clinton administration, which initially defended this lawsuit when it was filed back in the ’90s.
AMY GOODMAN: David Cole, tell us about the Tamil American doctors.
DAVID COLE: Well, the Tamil — we have a Tamil American doctor, who’s a plaintiff, who really sought to provide aid in the areas of Sri Lanka that were under LTTE control and were hardest hit by the tsunami. And he was barred from providing medical assistance to people in need, because of this law. We also have a number of Tamil organizations, which include doctors and educators, who similarly sought to provide support to the lawful — again, the lawful humanitarian activities of the LTTE, the Liberation Tamil Tigers of Eelam.
And the basic, you know, idea that we’re pushing here is that when Americans are seeking to engage in speech in furtherance of lawful, nonviolent activities, they shouldn’t be called terrorists. It’s one thing to punish someone who’s sending weapons to a terrorist organization or sending people to go fight for a terrorist organization. That should be a crime. But teaching people how to advocate for human rights in the UN or providing people with medical assistance, that is not terrorism and should not be criminalized and should be constitutionally protected.
JUAN GONZALEZ: And this whole process by which the State Department determines or puts organizations on its terrorist list — how big is that list? How does — is there any kind of oversight by Congress on this, the development — putting organizations on such a list?
DAVID COLE: Yeah, well, there’s actually two lists, Juan. One by the Secretary of State, that only has about forty, roughly forty, organizations on it. But there’s a similar list that has the similar kinds of effects that the Treasury Department puts out, and that list has over 10,000 names on it.
And the answer is that this is a totally one-sided secret process in which the executive branch decides to put an individual or a group on a blacklist. The criteria are so broad that they could literally put thousands and thousands and thousands of organizations around the world on these lists. They’re very selective about how they do it. And if you look at the lists, they are, you know, the people — the groups we don’t like, rather than the groups we do like, regardless of the tactics that the groups use.
AMY GOODMAN: I wanted to get your comment, David Cole, on the FBI director Robert Mueller speaking before Congress yesterday, urging lawmakers to approve renewal of three PATRIOT Act spying provisions that are due to expire at the end of the year that would allow the government to collect a wide range of financial and personal records, as well as monitor suspects with roving wiretaps. This is what he said in Congress yesterday.
ROBERT MUELLER: Those provisions have been very essential to us, particularly the first two, which relate to the business records provision and, secondly, the roving wiretaps. And a third, while it has not been used, on lone wolf, is — will be and is important, if we get a similar situation that we had with Moussaoui in 2001. So, I would urge the reenactment of those provisions.
AMY GOODMAN: David Cole, can you respond to that and explain what roving wiretaps are?
DAVID COLE: Well, there’s a number of provisions that are at issue. The roving wiretap authority is the authority to put a tap on an individual, no matter what phone he uses, rather than on a specific phone. And the argument for it is, in the modern era, people use many different phones, and cell phones are easily disposed of and changed, and you can get a new number. And so, if the government can show that an individual is seeking to evade scrutiny by engaging in that activity, it should be able to employ roving wiretaps, which is not an unreasonable argument.
But the problem is that the statute doesn’t really put the government to a strong enough test and require sufficient safeguards to ensure that wholly innocent people’s phone numbers are not picked up by virtue of this kind of wiretap. I mean, if an individual then goes into — such an individual comes into your home, your phone can then be wiretapped, or his mother’s phone can be wiretapped. It can be very, very broad. And so, the opponents are not saying get rid of it. The opponents are saying restrict it so that we have sufficient safeguards. And the same is true with the business records provision and the lone wolf provision.
JUAN GONZALEZ: David Cole, I’d like to ask you about a terrorism-related case you’re very familiar with, as well, the case of Abdullah al-Kidd, the former football star at the University of Idaho who was arrested and held as a material witness for a long period of time and has since sued former Attorney General Ashcroft, and his case was upheld by the Circuit Court in the Ninth Circuit Court. Can you talk about that case?
DAVID COLE: Right, well, you know, Juan, the material support laws that we’re challenging in the Supreme Court were a broad brush effort to go after lots of people without proving that they engaged in any criminal activity. Well, another way that the government did this after 9/11 was not by passing a new law, but by exploiting old laws for purposes they were never designed to serve. And the material witness law is such a law.
It gives the government the power to lock up somebody who has not committed a crime, but it has to show that that person has relevant evidence to an ongoing criminal proceeding and, if he were served with a subpoena, which is how you usually get someone to testify, he would flee. And then you’re supposed to bring that person in to testify within relatively short period of time, because he’s an innocent person who’s being locked up.
In Mr. al-Kidd’s case, the government, and many others, in fact — the government used this material witness authority not to — for the legitimate purpose of detaining someone who would otherwise flee and who they wanted to have testify in some kind of criminal proceeding, but rather for the illegitimate purpose of locking up someone who they were suspicious of, for, you know, unspecified reasons, but as to whom they lacked any probable cause of criminal activity, which is what you usually need in order to lock somebody up. And so, what they did with Mr. al-Kidd was they locked him up as a material witness and then imposed significant restrictions on where he could travel and what he could do for nearly a year and never called him to testify in any proceeding whatsoever. It was clearly a pretextual use.
And Mr. al-Kidd sued the Attorney General and those under him, who were responsible for using the law in this way. And the Ninth Circuit Court of Appeals, in a decision written by a judge appointed by George W. Bush, said that Mr. Ashcroft has to stay in the suit and can be held accountable, because he himself devised and publicly extolled this policy of using the material witness law for this illegitimate purpose of rounding up people as to whom we lacked any probable cause of criminal activity.
AMY GOODMAN: David Cole, we want to thank you for being with us, attorney for the Humanitarian Law Project, law professor at Georgetown University, editor of the new book The Torture Memos: Rationalizing the Unthinkable, on the Supreme Court, for the first time, reviewing the USA PATRIOT Act, or parts of it.
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