* 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.”
* Was named as the ACLU’s national legal director in 2016
* Former longtime board member of the Center for Constitutional Rights
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 (1984-85). 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 from 1996-2013.
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. (See Footnote #2 for a list off additional major cases on which Cole has worked.
Cole has taught constitutional law, national security, and criminal justice at the Georgetown University Law Center since 1994. 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 was in this context that the course proposed 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.”
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, to which Cole strongly objected, 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.
In June 2004, Cole charged that “the Bush administration’s response to the terrorist attacks of Sept. 11, 2001” had included: “rounding up thousands of foreigners, not for terrorist activity but for technical immigration violations.” “Many were arrested in secret,” he added, “held without charges, denied access to lawyers, presumed guilty until proven innocent, tried in secret, and kept locked up long after their cases were fully resolved…. For [two-and-a-half] years, little has been done to rectify this situation.”
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 board member of the District of Columbia Prisoners’ Legal Services (1997-2001); a legal affairs correspondent for The Nation magazine (1998-present); co-chairman of the Constitution Project‘s Liberty and Security Committee (2001-present); a member of the Human Rights Watch Advisory Committee (2003-07); a board member of the American Bar Association’s Commission on Immigration (2003-04); a member of the Free Expression Policy Project’s Advisory Committee (2003-present); an advisory board member with the Bill of Rights Defense Committee (2004-present); a member of the American Bar Association’s Standing Committee on Law and National Security (2006-2008); co-director of the London-based Center for Transnational Legal Studies (2008-09); a Fellow with George Soros‘s Open Society Foundations (2013-14); a legal-affairs correspondent for The Nation; 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.
UNITED STATES v. EICHMAN; UNITED STATES v. HAGGERTY: First Amendment challenges to prosecutions for flag burning under Flag Protection Act of 1989, passed by Congress in response to Texas v. Johnson. Supreme Court held federal legislation unconstitutional.
AMERICAN-ARAB ANTI-DISCRIMINATION COMMITTEE v. RENO: First Amendment challenge to provisions of McCarran-Walter Act authorizing deportation of aliens advocating doctrines of world communism or destruction of property. District Court declared provisions of McCarran-Walter Act unconstitutional; reversed on ripeness grounds in 9th Circuit. District Court granted preliminary injunction on selective prosecution and due process claims; 9th Circuit affirmed, holding that immigrants and citizens have same First Amendment rights, and that the INS’s use of secret evidence violates due process. Supreme Court reversed First Amendment decision, ruling that 1996 Illegal Immigration and Immigrant Responsibility Act had divested courts of jurisdiction over selective prosecution challenges.
OPEN DOOR COUNSELLING, LTD. v. REPUBLIC OF IRELAND: Challenge under the European Convention on Human Rights to Ireland’s constitutional prohibition on counseling about abortion. Ireland banned clinics from telling women about opportunities to obtain legal abortions outside of Ireland. European Court of Human Rights held that Irish ban violated Article 10 of the European Convention, guaranteeing freedom of expression and information.
FINLEY v. NATIONAL ENDOWMENT FOR THE ARTS: First Amendment challenge to NEA’s politically-based denial of federal funding to four performance artists whose works address issues of sexuality, and to the 1990 statutory provision requiring NEA grants to made “taking into consideration general standards of decency.” District Court declared “decency” standard unconstitutional in 1992; 9th Circuit affirmed in 1996. Supreme Court reversed in 1998, interpreting statute as merely advisory and upholding on that ground. .
BULLFROG FILMS, INC. v. WICK: First Amendment challenge to USIA regulations denying tax benefits to internationally distributed documentary films identified as propaganda. Ninth Circuit held regulations unconstitutional; Congress subsequently enacted legislation barring USIA from issuing certificates based on political viewpoints of films.
LEBRON v. NATIONAL RAILROAD PASSENGER CORP.: First Amendment challenge to Amtrak’s refusal to lease “Spectacular” billboard in Penn Station to artist who sought to display parody of Coors advertisement. District Court held Amtrak was state actor and issued injunction ordering display of artwork; 2d Circuit reversed on state action grounds; Supreme Court reversed, holding Amtrak is a government entity for constitutional purposes. On remand, 2d Circuit found no First Amendment violation.
MARTINEZ-BACA v. SUAREZ-MASON; FORTI v. SUAREZ-MASON: Suits against Argentine ex-General alleging torture, arbitrary detention, and “disappearances” in violation of international human rights law. District Court in Forti established “disappearances” as violation of customary international law, and awarded $8 million judgment; District Court in Martinez-Baca awarded $21 million judgment.
HAASE v. WEBSTER; HEIDY v. U.S. CUSTOMS: First and Fourth Amendment challenges to Customs and FBI policies concerning seizures of written materials carried by travelers returning from Nicaragua. Customs changed its policy in response to suits. District Court in Heidy issued permanent injunction.
IN RE RANDALL; RANDALL v. MEESE: Defensive and affirmative First Amendment litigation resisting INS attempt to deport feminist author Margaret Randall for advocating “world communism.” Board of Immigration Appeals reversed order of deportation for political writings on ground that Randall never lost her U.S. citizenship.
RAFEEDIE v. MEESE: Due process and First Amendment challenge to INS attempt to exclude and deport Palestinian permanent resident for his political associations on the basis of confidential information, without a hearing. District Court issued preliminary injunction; D.C. Circuit affirmed; District Court issued declaratory relief finding INS violated plaintiff’s First Amendment and due process rights.
KIARELDEEN v. RENO: Habeas corpus petition challenging INS detention of Palestinian man based on secret evidence that he never had opportunity to confront, and challenging reliance on secret evidence to deny asylum. District court declared detention on secret evidence unconstitutional and granted habeas corpus. INS released him shortly thereafter.
AHMED v. RENO: Habeas corpus petition challenging INS detention of Egyptian man based on secret evidence that he never had opportunity to confront, and challenging reliance on secret evidence to deny asylum. In November 1999, the INS released Mr. Ahmed after we had compelled it to disclose much of the previously secret evidence and had successfully defended him in immigration court.
AL-NAJJAR v. RENO: Habeas corpus petition challenging INS detention of Palestinian man based on secret evidence. District Court ruled use of secret evidence unconstitutional in May, 2000, and remanded to INS for a new bond hearing. Al Najjar released December 2000.
AD-HOC COMMITTEE OF BARUCH BLACK AND HISPANIC ALUMNI ASSOCIATION v. BARUCH COLLEGE: First Amendment and Equal Protection challenge to Baruch College’s selective refusal to grant recognition to Black and Hispanic Alumni Association. District Court dismissed; 2d Circuit reversed and remanded. College settled, granting full recognition and support to Association.
BURKE v. BARNES: Challenge to constitutionality of pocket veto of El Salvador human rights legislation. D.C. Circuit held President’s use of pocket veto unconstitutional; Supreme Court dismissed as moot.
NEW YORK STATE NOW v. TERRY: Section 1985(3) action for injunction against Operation Rescue blockades of family planning and abortion clinics in New York metropolitan area. Obtained injunction, upheld by 2d Circuit, and $500,000 in contempt fines.
MASSACHUSETTS v. SULLIVAN: Statutory and constitutional challenge to Reagan Administration’s restrictions on counseling about abortion by Title X family planning clinics. District Court issued permanent injunction; 1st Circuit affirmed en banc; reversed in light of Rust v. Sullivan.
GAY MEN’S HEALTH CRISIS v. SULLIVAN: First Amendment challenge to requirement that all federally-funded AIDS education materials, even where targeted to a specific audience, be “inoffensive to a majority of adults outside the target audience.” District Court declared requirement unconstitutional.
WOJNAROWICZ v. AMERICAN FAMILY ASSOCIATION: First lawsuit under New York Artists’ Authorship Rights Act, by artist David Wojnarowicz, against Reverend Donald Wildmon and American Family Association for leaflet misrepresenting Mr. Wojnarowicz’s works of art in a mailing to 6,000 people, including every member of Congress, during National Endowment for the Arts controversy. District Court enjoined mailing of leaflet and required corrective mailing.
HUMANITARIAN LAW PROJECT v. HOLDER, First and Fifth Amendment challenge to federal statute criminalizing material support to designated terrorist organizations, without regard to the purpose or effect of the support. District Court and Court of Appeals struck down parts of law; Congress amended law; Supreme Court upheld statute as amended.
AL HARAMAIN ISLAMIC FOUNDATION V. GEITHNER: Constitutional challenge to procedures employed to freeze assets and designate as “terrorist” a Muslim charity. Court of appeals ruled that government violated the First, Fourth, and Fifth Amendments.
KINDHEARTS FOR CHARITABLE AND EDUCATIONAL DEVELOPMENT, INC. V. U.S. DEPT’ OF TREASURY: Constitutional challenge to procedures employed to freeze assets and designate as “terrorist” a Muslim charity. District Court ruled that freezing of charity’s assets violated Fourth Amendment and Fifth Amendment; government settled case and removed KindHearts from designated list.
TURKMEN V. ASHCROFT: Bivens action against federal officials for constitutional violations in treatment of immigration detainees after attacks of September 11. Dismissed by District Court, affirmed by Second Circuit.
NORTH JERSEY MEDIA GROUP v. ASHCROFT: First Amendment challenge to government’s policy of closing all “special interest” immigration hearings in the wake of September 11 attacks, without individualized findings of necessity. District court held closure policy unconstitutional; Third Circuit reversed.
HADDAD v. ASHCROFT: Due process challenge on behalf of detained immigrant to closed immigration hearings. District Court held closure violated plaintiff’s due process rights.
ARAR v. ASHCROFT: Constitutional challenge on behalf of Canadian citizen stopped at JFK Airport while changing planes, interrogated without a lawyer, ordered deported on secret evidence, and sent to Syria, where he was tortured and held without charges for ten months. District Court dismissed on national security grounds; Second Circuit affirmed en banc.
CENTER FOR CONSTITUTIONAL RIGHTS v. BUSH: Constitutional challenge to National Security Agency’s warrantless wiretapping of Americans in “war on terror.” Pending in District Court.
SALAH V. U.S. DEPARTMENT OF TREASURY: Constitutional challenge to designation of U.S. citizen residing in Chicago as “designated terrorist,” freeze of all his assets, and bar on any transactions with anyone in the United States, imposed without trial, hearing, or notice of charges. Government de-listed Salah on day before it was due to file answer to Salah’s federal court complaint.