David Cole is Professor of Law at Georgetown University Law Center. He is the award-winning author of several books, including The Torture Memos: Rationalizing the Unthinkable (2009), Less Safe, Less Free: Why America Is Losing the War on Terror (with Jules Lobel, 2007) and Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism (2003) He has been awarded an Open Society Foundation Fellowship for 2012–2013 to write his next book, on the role of civil society in enforcing constitutional rights.
Remarks by the President at the National Defense University May 23, 2013
What Changed When Everything Changed: 9/11 and the Making of National Identity by Joseph Margulies
Report of the Constitution Project’s Task Force on Detainee Treatment 560 pp.
United States v. Windsor
Hollingsworth v. Perry two cases decided by the Supreme Court, June 26, 2013
Shelby County v. Holder a case decided by the Supreme Court, June 25, 2013
Fisher v. University of Texas a case decided by the Supreme Court, June 24, 2013
On Constitutional Disobedience by Louis Michael Seidman
The Gun Report a blog by Joe Nocera at nocera.blogs.nytimes.com
Gun Guys: A Road Trip by Dan Baum
From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage by Michael J. Klarman
Gunfight: The Battle Over the Right to Bear Arms in America by Adam Winkler
The City That Became Safe: New York’s Lessons for Urban Crime and Its Control by Franklin E. Zimring
Kill or Capture: The War on Terror and the Soul of the Obama Presidency by Daniel Klaidman
Power and Constraint: The Accountable Presidency after 9/11 by Jack Goldsmith
The Executive Unbound: After the Madisonian Republic by Eric A. Posner and Adrian Vermeule
Flagrant Conduct: The Story of Lawrence v. Texas by Dale Carpenter
Nothing to Hide: The False Tradeoff Between Privacy and Security by Daniel J. Solove
The Rights of the People: How Our Search for Safety Invades Our Liberties by David K. Shipler
The Autobiography of an Execution by David R. Dow
In the Place of Justice: A Story of Punishment and Deliverance by Wilbert Rideau
The Guantánamo Lawyers: Inside a Prison Outside the Law edited by Mark P. Denbeaux and Jonathan Hafetz
Because It Is Wrong: Torture, Privacy and Presidential Power in the Age of Terror by Charles Fried and Gregory Fried
The Guantánamo Review Task Force Final Report
Holder v. Humanitarian Law Project a case decided by the Supreme Court, June 24, 2010
Investigation into the Office of Legal Counsel’s Memoranda Concerning Issues Relating to the Central Intelligence Agency’s Use of ‘Enhanced Interrogation Techniques’ on Suspected Terrorists a report by the Office of Professional Responsibility, Department of Justice
Memorandum for the Attorney General by Deputy Attorney General David Margolis
Race, Incarceration, and American Values by Glenn C. Loury, with Pamela S. Karlan, Tommie Shelby, and Loïc Wacquant
Let’s Get Free: A Hip-Hop Theory of Justice by Paul Butler
Releasing Prisoners, Redeeming Communities: Reentry, Race, and Politics by Anthony C. Thompson
Gay Marriage: For Better or for Worse? What We’ve Learned from the Evidence by William N. Eskridge Jr. and Darren R. Spedale
Same-Sex Marriage and the Constitution by Evan Gerstmann
Marriage, Sexuality, and Gender by Robin West
Same-Sex Marriage and Religious Liberty: Emerging Conflicts edited by Douglas Laycock, Anthony R. Picarello Jr., and Robin Fretwell Wilson
Torture Team: Rumsfeld’s Memo and the Betrayal of American Values by Philippe Sands
The Trial of Donald Rumsfeld: A Prosecution by Book by Michael Ratner and the Center for Constitutional Rights
Administration of Torture: A Documentary Record from Washington to Abu Ghraib and Beyond by Jameel Jaffer and Amrit Singh
Terror and Consent: The Wars for the Twenty-first Century by Philip Bobbitt
The Cost of Counterterrorism: Power, Politics, and Liberty by Laura K. Donohue
The Terror Presidency: Law and Judgment Inside the Bush Administration by Jack Goldsmith
Never Again: Securing America and Restoring Justice by John Ashcroft
General Ashcroft: Attorney at War by Nancy V. Baker
Unchecked and Unbalanced: Presidential Power in a Time of Terror by Frederick A.O. Schwarz Jr. and Aziz Z. Huq
It Can Happen Here: Authoritarian Peril in the Age of Bush by Joe Conason
Not a Suicide Pact: The Constitution in a Time of National Emergency by Richard Posner
The Next Attack: The Failure of the War on Terror and a Strategy for Getting It Right by Daniel Benjamin and Steven Simon
The Naked Crowd: Reclaiming Security and Freedom in an Anxious Age by Jeffrey Rosen
A decision by the US Court of Appeals for the Second Circuit in a case involving the New York City Police Department suggests that there is no limit to the obstacles courts can raise to claims of race discrimination.
The cases the Supreme Court will review in the 2013–2014 term, which begins this week, are likely to go some way toward clarifying just what kind of conservatives the court’s majority justices are.
By adhering to the Constitution about military strikes, Obama is pursuing a path on Syria that accords with the rule of law, and may in fact be more effective at deterring further use of chemical weapons.
Obama has not sought the approval of the one body whose authority is clearly required for an attack on Syria: the United States Congress.
Both Attorney General Eric Holder’s brave speech against racial injustice and Judge Shira Scheindlin’s powerful decision against “stop-and-frisk” by the NYPD reflect a growing recognition over the past decade—in law and in politics—that something is fundamentally wrong with the enforcement of criminal law in America.
Together, the Supreme Court’s decisions in the two gay marriage cases are a consummate act of statesmanship. By allowing the transition to full recognition of same-sex marriage to take place gradually, they avoided the backlash that a federal mandate in every state might have triggered.
President Barack Obama’s speech Thursday at the National Defense University may turn out to be the most significant of his tenure. He outlined a way out of this “perpetual war,” saying that “our democracy demands it.” Whether he can make good on this promise will very likely define his legacy.
After four years of near silence on the post-9/11 legacies of torture and indefinite detention, President Obama responded to a question about Guantánamo this week by calling it “not sustainable” and “contrary to who we are.” Will the administration now follow its rhetoric with concrete action?
At some point, the Supreme Court will recognize, squarely and clearly, that it is unconstitutional to exclude gays and lesbians from the benefits (and burdens) of marriage. Anti-gay-marriage laws will be viewed with the same condemnation as anti-miscegenation laws.
What happens when a Supreme Court ostensibly committed to judicial restraint confronts a long-standing civil rights statute that offends its conservative majority’s sense that law should be colorblind? That question will be front and center when the Court hears arguments this week in a case challenging a central provision of the 1965 Voting Rights Act.
Drones radically reduce the disincentives to killing. And that may well make a nation prone to use military force before it is truly a last resort.
Here are twelve questions John O. Brennan, the president’s nominee to head the CIA should be asked to answer—on the public record—before he is confirmed.
The Supreme Court’s decision on Friday to take on two challenges to anti-gay marriage laws has attracted widespread attention. But equally remarkable is the fact that neither the federal government nor the state of California are even willing to stand behind those laws.
What would President Romney do with a drone? This question apparently haunted the White House so much that in the weeks before the election it raced to establish “explicit rules” and “clear standards and procedures” for the use of unmanned drones for targeted killings. But the real problem is not that there are no guidelines written down but that we the people don’t know what they are.
“Free speech” is not free. It can have serious, even deadly consequences. When a Californian recently uploaded a primitive YouTube video depicting Mohammed engaging in oral sex, it sparked violence and riots throughout the Muslim world. And according to Malise Ruthven in his recent NYRblog post, at least sixty people are believed to have been killed in the 1988-1989 riots in Pakistan and India prompted by Salman Rushdie’s The Satanic Verses, which satirized Mohammed and depicted his wives as prostitutes. But if we were to start prohibiting speech on the ground that some listeners, somewhere in the world, might be offended and react violently to it, we would be enforcing the worst kind of international “heckler’s veto,” and sanctioning the violence, which is surely more reprehensible than the speech itself.
What will they do for an encore? The often staid Supreme Court closed its 2011-2012 term in late June with a nail-biting final day decision on the Affordable Care Act. The opinion surprised almost everyone, including four of the Court’s five conservative justices, as Chief Justice John Roberts, for the first time ever in a 5-4 decision, joined the liberal wing of the Court to uphold the bulk of the Affordable Care Act. Three days earlier, the Court struck down most of Arizona’s anti-immigrant law, again surprising many observers and disappointing many conservatives.
Why can’t we recognize a win when it is handed to us on a silver platter? In both the health care and immigration law cases, the overall outcomes were broad victories for liberals.
Sometimes I think being American means never having to say you’re sorry. On Wednesday, May 2, the US Court of Appeals for the Ninth Circuit, a federal appeals court in San Francisco, unanimously dismissed a lawsuit against former Justice Department lawyer John Yoo by Jose Padilla, the US citizen picked up at O’Hare Airport and held in military custody as an “enemy combatant” for three and a half years, during which he says he was subject to physical and psychological abuse.
Google “39 Ways to Serve and Participate in Jihad” and you’ll get over 590,000 hits. You’ll find full-text English language translations of this Arabic document on the Internet Archive, an Internet library; on 4Shared Desktop, a file-sharing site; and on numerous Islamic sites. You will find it cited and discussed in a US Senate Committee staff report and Congressional testimony. Feel free to read it. Just don’t try to make your own translation from the original, which was written in Arabic in Saudi Arabia in 2003. Because if you look a little further on Google you will find multiple news accounts reporting that on April 12, a 29-year old citizen from Sudbury, Massachusetts named Tarek Mehanna was sentenced to seventeen and a half years in prison for translating “39 Ways” and helping to distribute it online.
The President of the United States can order the killing of US citizens, far from any battlefield, without charges, a trial, or any form of advance judicial approval. That’s what Attorney General Eric Holder told a group of students at Northwestern Law School yesterday, in a much anticipated speech. The Constitution requires the government to obtain a judicial warrant based on probable cause before it can search your backpack or attach a GPS tracking device to your car, but not, according to Holder, before it kills you. If you are inclined to trust Obama with such power, what about the next administration? Or the leaders of Saudi Arabia, Russia, or China? In international law, what the United States does is often a precedent (or pretext) for others, and we will not have a monopoly on drone killing for long.
On February 7, the US Ninth Circuit Court of Appeals declared California’s Proposition 8, which bans gay marriage, unconstitutional. For many gay rights activists, however, the sounds of celebration have been decidedly muted. While time and momentum are undoubtedly on the side of recognizing gay marriage, there is still widespread hostility, with a majority of state constitutions now explicitly rejecting recognition of gay marriage. The next stop in the Proposition 8 case could well be the US Supreme Court, and there is no guarantee that the decision will be upheld there. A loss in the Supreme Court could set the gay rights movement back for decades.
For a moment, it seemed that President Obama would actually stand up to Congress on Guantanamo and military detention. But on Wednesday, the White House announced that the president will not veto the National Defense Authorization Act, despite the extraordinarily dangerous principles the legislation endorses. It creates a presumption in favor of indefinite military detention for foreign terrorism suspects, and it provides that indefinite detention without charge may be imposed on anyone who has provided “substantial support” to groups that are “associated forces” of al-Qaeda, though it leaves undefined what constitutes “substantial support” and which groups might qualify as “associated forces.” Most disturbingly, the law still effectively prevents President Obama from closing Guantanamo.
For nearly ten years now, Guantanamo Bay’s military prison has been an international symbol of United States lawlessness and a recruiting boon for al-Qaeda. If Congress gets its way the facility will stay that way for the indefinite future. Both houses of Congress have now approved versions of the National Defense Authorization Act (NDAA), a bill that would require the use of military detention and military courts for suspected terrorists and make it virtually impossible to close Guantanamo.
Sunday’s New York Times reported that the Justice Department’s Office of Legal Counsel has produced a fifty-page legal memo that purportedly authorized President Obama to order the killing of a US citizen, Anwar al-Awlaki, without a trial. Last month, the US carried out that order with a drone strike in Yemen that killed al-Awlaki and another US citizen traveling with him. The strike was front-page news, and apparently was undertaken with the approval of Yemen authorities, yet as it was a “covert operation,” the Obama administration has declined even to acknowledge that it ordered the killing.
Imagine that Russia started killing individuals living in the United States with remote-controlled drone missiles, and argued that it was justified in doing so because it had determined, in secret, that they posed a threat to Russia’s security, and that the United States was unwilling to turn them over. Would we calmly pronounce such actions compliant with the rule of law?
On June 29, 2011, the first federal court of appeals to rule on the constitutionality of the Affordable Care Act, otherwise known as “Obamacare,” upheld the law by a vote of 2-1. Two more appellate court decisions are expected soon, and ultimately the Supreme Court will have the final say. But more significant than the judges’ reasoning is the judge who cast the deciding vote – Judge Jeffrey Sutton. Had those challenging the law been asked to name their “dream judge” for this appeal, they would almost certainly have named Sutton. It’s not only that he is a Republican, a former law clerk to Justice Antonin Scalia, an appointee of President George W. Bush, and an active member of the Federalist Society. Sutton made his name litigating for states’ rights.
Some commentators have optimistically pronounced the killing of Osama bin Laden the beginning of the end of our conflict with al-Qaeda. But having eliminated al-Qaeda’s most inspiring symbol, we persist in offering the group an alternative source of inspiration: the prison camp at Guantánamo Bay.
The January 31 ruling by US District Judge Roger Vinson of Florida that the new health reform law is unconstitutional in its entirety was immediately hailed by Republicans and Tea Party activists, who have made overturning the law their chief goal. The second federal district court judge to invalidate President Obama’s health care law, Judge Vinson reasoned that if the Commerce Clause empowers Congress to require citizens to buy health care insurance as a means of regulating “interstate commerce,” there would be no limit to Congressional power. It could require us to buy cars, bread, or even broccoli, as all could equally be said to be economic actions that would promote commerce.
About twenty years ago, a gaunt, respectful, but angry David Wojnarowicz walked into my office at the Center for Constitutional Rights in New York to ask what could be done about a flier that Donald Wildmon of the American Family Association had just sent out to every member of Congress, all major newspapers and TV networks, and thousands of religious ministers throughout the country.
In the face of overwhelming evidence that numerous US detainees were tortured during the Bush years, President Barack Obama has famously said he wants to “look forward, not back.” He prohibited the use of torture and cruelty in one of his first executive acts, but since then he has consistently resisted all efforts to hold accountable those who, under the prior administration, authorized such mistreatment.
There are probably four votes to strike down Proposition 8—Justices Stephen Breyer, Ruth Ginsburg, Sonia Sotomayor, and Elena Kagan—but there are also almost certainly four votes to uphold it—Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito. As is so often the case on controversial matters before the Supreme Court these days, everything turns on Justice Kennedy. Which way will he rule?
In the Roberts Court’s world, corporations’ freedom to spend unlimited sums of money apparently deserves substantially greater protection than human rights advocates’ freedom to speak.
On Monday, June 14, the Supreme Court declined to hear Maher Arar’s case, conclusively shutting the door on the Canadian citizen’s effort to obtain redress from US officials who stopped him in September 2002 while he was changing planes on his way home to Canada and shipped him instead to Syria, where he was tortured and imprisoned without charges for nearly a year.
Whatever else you might say about John Yoo, the former Justice Department lawyer who drafted several memos in 2002 authorizing the CIA to commit torture, you have to admit that he’s not in the least embarrassed by the condemnation of his peers. On February 19, the Justice Department released a set of previously confidential reports by its Office of Professional Responsibility (OPR) excoriating Yoo’s legal work—but stopped short of referring him for professional discipline by his state bar association. Since then Yoo has written Op-Eds for The Wall Street Journal and The Philadelphia Inquirer trumpeting his “victory.” In the Wall Street Journal piece, entitled “My Gift to the Obama Presidency,” Yoo argued that President Obama owes him a debt of gratitude for “winning a drawn-out fight to protect his powers as commander in chief to wage war and keep Americans safe.” Four days later, in The Philadelphia Inquirer, Yoo called the decision not to refer him for bar discipline “a victory for the people fighting the war on terror.”
President Obama’s announcement that the United States intends to purchase a maximum security prison in Thomson, Illinois, and plans to move as many as 100 remaining Guantanamo detainees there has prompted a variety of criticisms from right and left. Not-in-my-backyard populists oppose holding these prisoners anywhere in the United States (though in a classic prison-industrial complex move, the Obama administration realized that those concerns can be bought off with a promise of bringing 3,000 jobs to a depressed, rural Illinois region).
On October 13, a sold-out crowd at New York’s Cooper Union listened for an hour and a half to readings by such prominent writers as Art Spiegelman, Don DeLillo, Susanna Moore, Eve Ensler, A.M. Holmes, George Saunders, and Paul Auster. Convened by PEN American Center and the ACLU, these writers came together to read not their own work, but the words of CIA bureaucrats, FBI agents, torture victims, former President George W. Bush, Army interrogators, Guantanamo detainees, former Director of Central Intelligence George Tenet, and coroners’ reports on the homicides of suspects killed in US military and CIA interrogations.