- Professor of law at Georgetown University
- Radical attorney-activist who has repeatedly defended supporters of terrorism
- Believes that the “greatest threat to our freedoms is posed not by the terrorists themselves but by our own government’s response.”
Born in 1958, David Cole earned a bachelor’s degree from Yale University and a JD from Yale Law School. After completing his education, he served as a law clerk to Judge Arlin M. Adams of the U.S. Court of Appeals for the Third Circuit. Cole then worked as a staff attorney for the Center for Constitutional Rights (CCR) from 1985-90, and later went on to hold a seat on the CCR board of directors.
Now a prominent attorney-activist in the ranks of the American Left, Cole has litigated many cases during his legal career. Among these were Supreme Court cases like Texas v. Johnson (1989) and United States v. Eichman (1990), both of which extended First Amendment protection to flag-burning; National Endowment for the Arts v. Finley (1998), which challenged content-based restrictions on funding for the National Endowment for the Arts; and Holder v. Humanitarian Law Project (2010), which challenged the constitutionality of the statute prohibiting “material support” to terrorist groups.
Cole has taught constitutional law, national security, and criminal justice at the Georgetown University Law Center for many years. One of his more notable classes was “National Security and Civil Liberties,” which was instituted post-9/11 and, according to the course description, aimed to “address the tension between liberty and security in times of crisis.” Specifically, the course was intended to “shed light” on what it called “the current crisis,” a reference to America’s war on terror. It is in this context that the course proposes to address such issues as “the respective roles of Congress, the President, and the courts in times of emergency”; “the targeting of foreign nationals”; and “preventive detention, surveillance standards, enemy combatants, military tribunals, the role of international tribunals, and regulation of speech and association.”
Cole was fervently opposed to the passage of the Anti-Terrorism and Effective Death Penalty Act (AEDPA) of 1996, a Patriot Act precursor that made it a crime punishable by up to 10 years in prison to provide “material support” to any foreign organization designated as a terrorist group by the Secretary of State. In a 2003 interview, Cole explicitly denounced “the criminalization of what the government called material support for terrorist organizations,” adding: “This is a practice that … 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.”
In his 2001 book, No Equal Justice, Cole alleged that America has two separate systems of justice – one for the privileged and educated, another for the poor and less educated (whom he identifies as black and Latino people living in inner cities). Cole reprised these arguments in his 2002 book, Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism. The “double-standard” referenced in the latter book was the one that allegedly distinguished between American citizens and foreign non-citizens, especially non-citizens from Arab-Muslim countries. Enemy Aliens was written with a Ford Foundation grant whose stated purpose was to “safeguard human rights and civil liberties of non-U.S. citizens and to inform policy makers and the public about these issues.”
Since the 1990s, Cole has been in the vanguard of an activist-led movement that aspires to vitiate anti-terrorism legislation and, more broadly, hamstring U.S. efforts to effectively wage a war on terrorism. Significantly, he wrote in 2002 that “it appears that the greatest threat to our freedoms is posed not by the terrorists themselves but by our own government’s response” to 9/11.
Also in 2002, Cole committed his signature to a “Statement of Conscience” drafted by Not In Our Name (NION), a self-described “peace movement” initiated by C. Clark Kissinger of the Revolutionary Communist Party. The NION Statement condemned not only the Bush administration’s “stark new measures of repression,” but also its “unjust, immoral, illegitimate, [and] openly imperial policy towards the world.” According to NION, on whose advisory board Cole sat, it was the American government – and not the government of any other nation – that posed the most “grave dangers to the people of the world.”
In 2002 as well, Cole came to the defense of Sami Al-Arian, the University of South Florida professor arrested for his involvement with the terrorist group Palestinian Islamic Jihad. Calling Al-Arian “the victim,” Cole contended that “people cannot be punished for advocating criminal activity unless the Supreme Court has said their speech is intended and likely to incite imminent lawless actions.” On the strength of this argument, Cole claimed that Al-Arian’s remark wishing “Death to Israel” was protected speech. Added Cole: “The Patriot Act … 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.” Portraying terrorism as a free speech issue, Cole added: “Excluding people for their ideas is flatly contrary to the spirit of freedom for which the United States stands.”1
Cole also lamented the plight of his client (and Al-Arian’s brother-in-law) Mazen Al-Najjar, who since 1997 had been in detention on charges that he was a fundraiser for Palestinian Islamic Jihad. Depicting Al-Najjar’s case as a routine instance of U.S. authorities’ unjust targeting of foreign nationals, Cole asserted, on no evidence, that his client was being “held under conditions which are far worse than any convicted murderers.”
When Attorney General John Ashcroft made a speech to a national conference of U.S. Attorneys on October 1, 2002, directing them to “use the full weight of the law” to “neutralize” terrorist threats, Cole lashed out in the next issue of The Nation, writing: “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 young men in Lackawanna were the so-called “Lackawanna Six.”)
In February 2003, Cole enumerated 13 major components of the Domestic Security Enhancement Act of 2003 (a.k.a. “Patriot Act II”), which sought to ban all support – regardless of its nature – for terrorist organizations. To view these components, click here.
In 2003, Cole, as a cooperating attorney and board member of the Center for Constitutional Rights, worked on Humanitarian Law Project, et al, v. Department of Justice. This case involved financial supporters of the Liberation Tigers of Tamil Eelam (LTTE) operating in Sir Lanka, and the Kurdistan Workers Party (PKK) operating in Turkey, both of which were violent Marxist separatist groups that had been formally designated as foreign terrorist organizations; together they were responsible for at least 100,000 deaths.
The lead plaintiff in the case was the Humanitarian Law Project (HLP), whose president, the longtime civil-rights attorney Ralph Fertig, sought to help PKK find peaceful ways of advancing its goal, which was to create an independent Kurdish state in southeast Turkey, northern Iraq, and parts of Iran and Syria. Notwithstanding PKK’s bloody track record, Fertig and HLP maintained that with a proper blend of persuasion and education, the organization could be convinced to renounce its violent tactics and to work, instead, within the framework of “various representative bodies such as the United Nations for relief.”
HLP was joined in the suit by five Tamil groups that had been supporting LTTE with donations of food, clothing, books and educational materials for its orphanages, refugee relief centers, and schools. These Tamil organizations also wished to make cash contributions that would: (a) help LTTE to finance its 1997 lawsuit challenging its terrorist designation, and (b) enable LTTE to distribute literature in the United States.
In the courtroom, Cole maintained that an AEDPA/Patriot Act provision criminalizing “material support” for terrorists was unconstitutional. His argument was that because the prohibition did “not require proof that an individual intended to further terrorist activity,” it “impose[d] guilt by association, rather than on the basis of one’s acts.” Ultimately, Cole was able to convince a three-judge panel of the Ninth Circuit Court of Appeals that “to convict an accused of violating” the aforementioned provision, “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.” But then, in January 2004 in Los Angeles, Judge Audrey Collins ruled against the plaintiffs, affirming that governmental designations of terrorist organizations were in fact valid.
Cole and the Center for Constitutional Rights garnered considerable media coverage in 2005 when CCR elected to represent the radical lawyer Lynne Stewart during her trial for having abetted the terrorist ambitions of Islamic Group leader Omar Abdel Rahman, mastermind of the 1993 World Trade Center bombing. No sooner was Stewart found guilty in February of 2005, than Cole rallied to her side. In a post-trial column for The Nation, where he was a legal affairs correspondent, Cole denounced the decision, stating that “this case illustrates how out of hand things have gotten in the ‘war on terrorism.’” Cole claimed that Stewart had committed no crime; that the charges against her “were a stretch”; and that if anyone could credibly be accused of terrorism, it was the Justice Department.
Cole and Elena Kagan served as advocates for the Humanitarian Law Project and its fellow plaintiffs in a 2009-10 Supreme Court case known as Holder v. Humanitarian Law Project, which grew out of the aforementioned Humanitarian Law Project, et al, v. Department of Justice. Oyez.org lays out the basic facts of the 2009-10 case as follows:
“Among the plaintiffs in this case are supporters of the Kurdistan Workers Party (KWP) and the Liberation Tigers of Tamil Eelam (LTTE). The KWP and LTTE engage in a variety of both lawful and unlawful activities. They sought an injunction to prevent the government from enforcing [a law authorizing] the Secretary of State to designate a group as a ‘foreign terrorist organization’ [if it provided] ‘material support or resources’ to even the nonviolent activities of a designated organization.”
In a 6-3 decision issued on June 21, 2010, the Supreme Court ruled that the law making it a crime for Americans to provide “material support” of any kind to a foreign terrorist organization was constitutional – even in cases where the material support was for ostensibly peaceful purposes. Cole, for his part, lamented that the Court’s ruling “basically says the First Amendment allows making peacemaking and human rights advocacy a crime.”
In addition to his professorial and litigation-related activities, Cole has been a legal-affairs correspondent for The Nation, and an advisory board member with the Bill of Rights Defense Committee. Moreover, he has served as co-chairman of the Constitution Project‘s Liberty and Security Committee, a commentator on NPR‘s All Things Considered, and a regular contributor to the New York Review of Books.
For additional information on David Cole, click here.
1 In an analysis of Cole’s mindset, conservative scholar William R. Hawkins explains: “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.”