CHANG: You know, you start your book with a very provocative quote from Attorney General John Ashcroft, where he says, in the months after 9/11, quote, "To those who pit Americans against immigrants and citizens against non-citizens, to those who scare peace-loving people with phantoms of lost liberty, my message is this. Your tactics only aid terrorists, for they erode our national unity and diminish our resolve. They give ammunition to American's enemies and pause to American's friends." Why start with that quote?
COLE: Well, I think I start there because it so exemplifies the way that the Ashcroft Justice Department has responded, since September 11th. And that is to reject any concerns about human rights, about civil liberties, about fairness as simply aiding the enemy. As not even appropriate to be on the table.
CHANG: You point out in your book that Attorney General Ashcroft's favorite method of dealing with suspected terrorists is immigration law. Precisely because in many ways it falls outside of constitutional protections. Why is that?
COLE: Because immigration law, according to the Supreme Court, deportation is not a criminal punishment. And therefore all of the full set of rights that apply to the criminal process don't apply. So for example, these immigration detainees were held in secret. You can't hold a criminal detainee in secret.
They were tried in secret. Criminal defendants have a right to a public trial. They were denied access to lawyers. Criminal defendants have a right to a lawyer. They were held without any evidence to show that they were dangerous or at risk of flight.
Criminal defendants can only be held prior to trial if there's actual evidence showing that they're dangerous, or risk of flight. Now my view is that all of those actions are in fact unconstitutional. But he was able to even argue that he could do it because it was not a criminal prosecution, but an immigration case.
CHANG: In many ways historically, we've had pretextual kinds of incarcerations. You cite in your book Bobby Kennedy saying, "I'll arrest a mobster if he spits on the sidewalk if that's the way I can get him in the door." What's wrong with bringing people in who you think may have ties to terrorists?
COLE: No, there isn't… pretextual law enforcement in and of itself is not wrong. It wasn't wrong to go after Al Capone on tax evasion charges when we knew that we was a murderer. But what the problem with the way this administration has used pretextual law enforcement is that it has not targeted terrorists. It has targeted Arabs and Muslims.
There have actually been 5,000… over 5,000 people detained since September 11th in anti-terrorism initiatives undertaken by the Justice Department. And of those 5,000, only three were charged with any crime related to terrorism.
And of those three, only one was convicted, and not actually of engaging in terrorist activity or even planning terrorist activity, but of conspiring to support some unidentified terrorist acts in the unidentified future. So you got 5,000 people locked up on pretexts who had nothing to do with terrorism.
What it does do is alienate the very community that has been targeted.
CHANG: Now I'm not a legal scholar. But my understanding is that Britain has a sort of preventative detention law that they've used against foreign nationals that involve mostly IRA terrorists. Is it not time, given that al-Qaida has proven that they can launch attacks against us with people who are living among us, won't we all sleep better at night if we think that our government is using every means possible to root out these potential terrorists?
COLE: Well, I think we absolutely need to use those means that will root out the potential terrorists. But locking up 5,000 innocent people doesn't root out potential terrorists. Making all Arab and Muslim men come in and register simply because they're from Arab or Muslim countries doesn't make us safer.
And what these initiatives do is I think play into the terrorist hands. Because what the terrorists want most of all when they attack a democracy, a country like ours, is for us to overreact. For us to violate our own principles.
For us to be seen as acting unjustly. Because that then creates the fodder for further recruitment drives.
CHANG: You used the McCarthy era as an example of what we should be looking out for today, which is basically what starts out as infringement of rights of foreign nationals…
CHANG: Seeps into citizens. How… what was the precedent for that?
COLE: The precedent for the McCarthy era was the Palmer Raids of 1919 to 1920. 1919, there were a series of terrorist bombings in the United States. Including a bomb that blew off the front of the Attorney General's private home in Georgetown. The government responded to that series of bombings not by going out and arresting the bombers. But instead by using immigration law to lock up thousands of foreign nationals.
Not on charges of being involved in the bombings, but on charges of guilt by association and technical immigration violations. They were held incommunicado. They were interrogated without lawyers. Much like you saw the government do after 9/11.
Now the reason that's a precedent for McCarthy is that at the time that the Palmer Raids were conducted, Attorney General Palmer and the man who was the real architect of the Palmer Raids, a young man by the name of J. Edgar Hoover, wanted to be able to do the same thing to citizens. They kept introducing bills in Congress to impose guilt by association on citizens.
Congress said no, no, no. But Hoover spent the rest of his career in the FBI seeking to extend to the citizenry the tactics that he employed against foreign nationals during the Palmer Raids. In 1940, Congress passed the Smith Act. And extended guilt by association, an immigration concept, to citizens. And that was the legal foundation for the witch-hunts of the McCarthy era. So what was started with foreign nationals was extended to US citizens.
CHANG: Another historical precedent that you point out in the book is Japanese Internment. And you say that that was in fact preceded by a curbing of rights of non-citizens.
COLE: That's right. The Japanese Internment didn't come out of nowhere. It was an extension to citizens of a tactic that still exists in the law. That was an act in 1798, something called the Enemy Alien Act that allows the President during a declared war to lock up nationals of the country with which we're at war without any evidence that they're actually dangerous.
And the argument is, you can't make fine distinctions in war time. You gotta give the President this kind of leeway. Well, during World War II, the military argued that they had to extend that same philosophy to citizens of Japanese decent. And John DeWitt… General John DeWitt who was the architect of the Japanese Internment Plan testified in Congress.
And I quote, "A Jap's a Jap. It doesn't matter whether they're citizen or alien. The racial strains are undiluted." So across the bridge of race the government went from a measure targeted at foreign nationals, justified on the ground that it was targeted at foreign nationals and extended it to US citizens. And 70,000 of those who are locked up in the Japanese Internment were U.S. citizens.
CHANG: Some conservatives say that rounding up a couple thousand foreign nationals who have actually violated their visas or done some immigration violation is a far cry from interning 120.000 Japanese.
COLE: Yeah, and I think they have a point there. I don't think we have repeated the worst of the worst mistakes that we've made in the past. That is… we are… in World War I, we locked up people for speaking out against the war. We're not doing that now. In World War II, we locked up people solely for their Japanese descent. We're not doing that now.
In the Cold War, we locked up people solely for their political associations. We're not doing that now. But what we are repeating is the same kinds of category mistakes. And that is to sort of give up a focus on individualized culpability and instead sweep broadly in the name of prevention relying on ethnicity today Arab, then Japanese.
And association today, religious association; then, communist association. And what we have seen in the past is that when the government does that many, many innocent people have their lives ruined. And we waste tremendous resources on people who don't pose a threat, while missing people who actually do pose a threat.
CHANG: But let me look… have you look at a Zogby poll which came out recently. That said, basically, two years after 9/11, one fifth, or 21 percent, of those polled said that they were prepared to give up a lot of their civil liberties to allow the government to protect the nation from future terrorist acts. An additional 33 percent said they'd be willing to give some. An additional 23 said they'd give up a little.
COLE: Right. And I don't think there's anything wrong with that. I mean, I think there's a balance to be struck here, between civil liberties and security.
CHANG: But what do those numbers say to you?
COLE: Well, what they say to me is that people are afraid. And they also say to me that people see what's going on. And what's going on is the government is not in fact asking them to give up their rights for security.
Instead it's saying, we'll give up their rights for security. You don't mind if we lock up 5,000 foreign nationals in secret, try them in secret, etc, etc, etc. You don't mind if we impose military tribunals in which we can execute people on the basis of secret evidence on non-citizens, because your rights aren't at stake.
So I think in some respects the question is an abstract question for citizens. Because we as citizens have not been confronted with the difficult choice. Which of your rights do you really want to give up? Which of your rights are you willing to give up for greater security?
And in the few instances where we have been, the response has been, "I'm not sure I want to give up my rights." The national ID card, on the table since September 12th, 2001, killed by Congress in the Department of Homeland Security legislation. Operation TIPS, a program in which the Justice Department is going to go out and recruit 11 million citizens to essentially spy on each other and report the results to the FBI. We said, "Wait a minute! We don't want that kind of American society." Killed by Congress. Total information awareness. Same thing.
CHANG: But aren't you willing to concede that citizens are willing to give up some rights?
COLE: Yes. And…
CHANG: And if so, you've even mentioned in your book that there are some that perhaps are justified.
COLE: Yeah, and I think it is a balance. And I think that when we are more insecure and if we can show that a diminution in some aspect of civil liberties will in fact make us more secure, that may well be a balance worth striking. There's no absolute.
With the exception of the prohibition on torture, most rights are not absolute. Most rights are a balance. But what I'm concerned is that we're not striking the balance in a fair way for everybody. We're cheating on that balance by exploiting the most vulnerable group in our population. Foreign nationals who have no vote whatsoever.
And taking away their rights, you know, for our security. And that's easy for the political, you know, process to do. Because they don't vote. We do.
CHANG: What would you say… let me just ask you this sort of "so what" question. I mean to the extent that we're fighting a war on terrorism, why should we care that someone's civil liberties are being trampled?
COLE: Well, I think we should care because I think that's what America is about. I think America is about a set of principles, principles that we put in the constitution because we knew that we would be tempted, in times like these, to ignore them, to override them.
Principles and these are not esoteric principles principles like due process, first amendment political association, speech, equal protection…these are basic human rights. They extend to all persons. They don't differentiate between citizens and foreign nationals.
And we oughta care because that's the America that we oughta be defending. That's what we should be standing up for. And even though the government's initial targets have largely been foreign nationals, what history shows is that what the government does to foreign nationals will be extended to citizens down the line.
And so our rights are at stake in ensuring that we get the balance right now and not 50 years later, when we recognize that we overreacted.
CHANG: The book is ENEMY ALIENS. David Cole, thank you so much for joining us on NOW.
COLE: Thank you.