Questions and Answers for David Cole and Jules Lobel, authors of Less Safe, Less Free: Why America Is Losing the War on Terror (The New Press, 2007) Q. Six years after 9/11, are we safer? A. The Bush administration says so, but the facts don’t support that claim. We examined everything the record compiled by the Bush administration’s “war on terror” to date, and found that the administration’s response to 9/11 has not only compromised fundamental principles of the rule of law, but has actually made America less safe. They have launched an aggressive campaign that they call the “preventive paradigm,” started a war that has sacrificed tens of thousands of lives and wasted untold resources, and sacrificed some of our most important liberties, yet they have little or nothing to show for it. Al Qaeda has reconstituted itself in Pakistan, independent groups have sprouted up all over the world, and meanwhile the administration has convicted exactly one person for an actual terrorist attempt since 9/11 – Richard Reid, the shoe bomber. Q. What is the “preventive paradigm?” A. This is an approach adopted by the administration right after 9/11, and given that name by thenAttorney General John Ashcroft. It emphasizes the use of highly coercive measures against people or states not for wrongs they have committed in the past, but on the basis of speculative guesses about what they might do in the future. It has included special registration of Arabs and Muslims, preventive detention, intensive surveillance, coercive interrogation, and a “preventive war” in Iraq. In each instance, the administration has argued that the measures must be used before we have strong evidence of wrongdoing. And as a result, the measures have been employed against many who pose no threat at all, and have been remarkably unsuccessful in identifying actual terrorists. Q. Can you give me an example? A. Well, take the government’s aggressive focus on Arab and Muslim immigrants in the wake of the 9/11 attacks. By its own accounts, it locked up over 5,000 foreign nationals in preventive detention in the first 2 years after 9/11, sought out 8,000 Arab and Muslim men for FBI interviews, and called in 80,000 Arab and Muslim foreign nationals for special registration, fingerprinting and photographing. The idea was that we might find a terrorist. But the government’s record in this regard is 0 for 93,000. Not one of these men has been convicted of a terrorist offense. Q. But doesn’t the government claim that it has indicted over 400 people in terrorism related cases and convicted over 200?
A. It does, but those statistics are misleading. First, none of them are those foreign nationals that we referred to above. Second, the vast majority of these cases actually had no terrorism charge at all – they mostly involve minor charges of credit card fraud and the like. The Justice Dept’s own Inspector General found that the statistics were misleading and that many cases had no terrorism ties whatsoever. The Washington Post and New York Times looked at all these cases and found that only 39 individuals were convicted of any terrorism charge. And virtually all of them were for the crime of “providing material support” to a proscribed organization, not for engaging in or conspiring to engage in any kind of actual terrorism. Q. Doesn’t the government claim it has deported over 500 people in connection with counterterrorism investigations? A. Yes, but what it doesn’t say is that most were deported under a “hold until cleared” policy, under which we would NOT deport a suspect until the FBI CLEARED him of any connection to terrorism. So these are misses, not hits, in terms of finding any actual terrorists. Q. Hasn’t President Bush claimed to have disrupted a number of terror plots? A. Yes, but again the facts don’t support his claims. He claimed that ten plots had been foiled by the US and its allies. Only three involved targets in the United States. Even those, including an asserted plot to fly a plane into the Liberty Tower in LA, have been described by counterterrorism experts as more pipe dreams than actual plots And perhaps most tellingly of all, no one has been brought to justice for any of these alleged plots. If people were caught plotting to conduct actual terrorist attacks, you’d expect to see them convicted – like the blind sheik in NYC, convicted long before 9/11 for plotting to blow up bridges around Manhattan. But since 9/11, the government has a big fat zero in terms of the plots President Bush identified. Q. How did you come to be involved in this work? A. (David Cole) I’ve been a constitutional lawyer defending immigrants and citizens in cases involving claims of national security and terrorism for more than 20 years. I began as a lawyer with the Center for Constitutional Rights, the New York public interest law organization that is now coordinating the representation of Guantanamo detainees. While there, I represented a group of Palestinians arrested in the late 1980s in Los Angeles for their political activities in support of Palestinian selfdetermination. I subsequently represented many Arab and Muslim immigrants who the government sought to deport or detain using secret evidence – including Nasser Ahmed in New York, Fouad Rafeedie in Ohio, and Mazen AlNajjar in Tampa, Florida. This was all before 9/11. A. (Jules Lobel). I’ve been a constitutional lawyer challenging executive abuse of power and infringements of civil liberties for 30 years, much of that time working with the
Center for Constitutional Rights. I’ve also been very interested in the idea and practice of “emergency power” what can and should governments do in emergencies. I found, even before 9/11, that socalled emergency powers were all too easily invoked, very rarely given up, even when the emergency subsided, and often violated basic principles of constitutional rights and separation of powers. Q. How did those experiences prepare you for what happened in the United States after 9/11? A. In some sense, nothing could prepare us for what happened after 9/11. But our pre9/11 experiences taught us a number of things. First, that the government nearly always targets the most vulnerable first. Second, that claims of “emergency” and “terrorism” are often inflated. Third, that executives are often driven to assume sweeping powers in times of crisis. And fourth, that the government will often try to rely on secrecy not for legitimate reasons, but to hide the fact that it really has very little evidence of wrongdoing. We also learned that one can fight back in the courts, in the media, and in the court of public opinion So while the government is often inclined to cut corners when dealing with the most vulnerable members of our society, we can fight back. Q. What have you been doing since 9/11/ A. (David Cole) I’ve split my time about evenly between litigating cases and writing and speaking on the subject of civil liberties. With other lawyers at the Center for Constitutional Rights, for example, I represent Maher Arar, the Canadian citizen who was rendered to Syria to be tortured. And I represent a class of Arab and Muslim foreign nationals rounded up and abused in the immediate aftermath of the 9/11 attacks. I’m also challenging the constitutionality of the laws making it a crime to provide “material support” to groups designated as terrorist, regardless of the nature of the support provided. A. (Jules Lobel) I’ve been involved in a number of national security cases, with the Center for Constitutional Rights. I represent I represent Maher Arar, the Canadian citizen who was rendered to Syria to be tortured. I represented American servicemen who challenged the army’s unilateral extension of their contracts. And I have consulted inn the Guantanamo cases. Q. Why did you write Less Safe, Less Free? A. We felt that there is a real need for a straightforward commonsense assessment of how we have been doing in what the Bush administration calls the “war on terror.” Particularly with Bush leaving office and a campaign for a new president in full swing, it’s important that we look at how the administration’s “preventive paradigm” has worked. And we think it’s particularly important to address that question from two angles
– what it has done to the principles for which this country stands at its best, and what it has meant for U.S. security. We argue that the tactic of using coercive government measures “preventively,” based not on proven past wrongdoing but speculation about future threats, has led us to compromise the most basic principles of the rule of law – equality, fair procedures, checks and balances, and the like. At the same time, we show that these sacrifices have not netted much if any benefit from a security standpoint. Through a hardnosed analysis of the available evidence, we show that the preventive paradigm has netted few real terrorists and disrupted few real plots. What’s worse, it has backfired, as measures such as coercive interrogation, disappearances into secret CIA prisons, indefinite detention without trial at Guantanamo, and preventive war have sparked unprecedented levels of antiAmericanism worldwide, thereby increasing the likelihood that we will be attacked again. Q. What should we have done? A. That’s Part III of our book. We show that one can be “preventive” without using harsh measures like preventive detention, coercive interrogation, and preventive war. The rule of law permits a nation to do much to protect itself while staying true to principles of justice and equality. Measures such as safeguarding nuclear stockpiles around the world, outfitting first responders, protecting vulnerable infrastructure, and screening cargo and passengers more carefully have the potential to offer substantial protection, without the sacrifices in principle that the Bush administration’s approach has entailed – and without the backlash that has followed. Q. What is your hope with this book? A. We hope that it will inform the public debate, and make people realize that if we are to be safe in the twentyfirst century, we need to be smart about counterterrorism, not just act tough. And most importantly, we need to conform our response to the rule of law if we are to avoid creating a problem even bigger than the one we faced on 9/11. Less Safe, Less Free: Why America Is Losing the War on Terror is available from your local bookstores, from Amazon.com, or from www.thenewpress.com.