Access to Justice speaker targets 'double standard' in rights debate

Issue January 2004 By Krista Zanin

To what length should the nation go to protect national security? And just what impact will the government's decisions have on the country as a result of its treatment of foreign nationals post Sept. 11.

Author, civil liberties lawyer and Georgetown University Law Center professor David Cole will address these issues and more this month when he is the featured speaker at the Access to Justice Awards Luncheon of Annual Conference 2004.

Cole, author of "Enemy Aliens" and "No Equal Justice," argues in "Enemy Aliens" that in balancing liberty and security, the government has consistently relied on a double standard, imposing measures on foreigners that would not be tolerated if applied more broadly U.S. citizens.

"One of my principle concerns is the way in which we have responded to the war on terrorism," Cole said. "We have exploited a double standard. We have talked about the need to balance, to recalibrate, the need for liberty and security, but for the most part what the government has done is sacrifice the rights of some for security of the rest of us. And the 'some' are foreign national and Muslims, a group that has no voice and no vote in the political process."

Cole will discuss his views on constitutional freedoms in the war on terrorism during the Access to Justice Awards Luncheon, which will be held from noon-1:30 p.m. Friday, Jan. 23 at the Sheraton Boston Hotel. The luncheon also recognizes outstanding members of the legal community who make significant contributions to their communities and to the profession through volunteer and pro bono efforts.

A volunteer staff attorney for the Center for Constitutional Rights, Cole has argued cases including Texas v. Johnson and National Endowment for the Arts v. Finley before the United States Supreme Court.

Cole says denying rights to foreign nationals is the easiest way to strike the balance between security and freedoms, because it allows the majority to feel they are getting increased security without sacrificing their own liberties. But doing so, according to Cole, is only counterproductive from a security standpoint.

"I think it's wrong as a matter of constitutional law and human rights law to deny to foreign nationals basic human rights that we insist upon for ourselves," Cole said. "It is counterproductive from a security standpoint, because these double standards contribute to the growing anti-Americanism around the world, which I think undermines our ability to get real cooperation from other nations and makes it easier for Al Qaeda and other terrorist groups to recruit people to take action against us."

Cole also warns that the denial of rights to foreign nationals could extend to U.S. citizens.

"In fact, all our rights are at stake with respect to what is happening to foreign nationals," Cole said.

Cole is the legal affairs correspondent for The Nation, a commentator on National Public Radio's "All Things Considered" and a columnist for Legal Times while he also teaches constitutional law and other courses at Georgetown University Law Center.

Cole says the Constitution draws little distinction between the rights of foreign nationals and the rights of American citizens.

"I think constitutional law is largely about our efforts of various groups to keep the nation true to the pre-commitments that it has made," Cole said. "Nowhere is the challenge of holding true to those promises more difficult than in times of national security with respect to rights to people other than ourselves."

Cole said he is not an absolutist, and believes that most civil liberties involve some sort of balance with other important state interests, such as national security. Still, he believes the balance the government seeks to achieve today is not fair and is no solution.

"My view is we ought to be striking a balance that is fair across the board," Cole said. "If we do so, then the political process is likely to be more effective at achieving a fair balance.

"One of the reasons we so often overeact in terms of fear is that all of our security interests are weighted on the security side of the balance. But on the liberty side of the balance, it's only the liberties of the vulnerable, voiceless minority. Of course you get a skewed balance. If we insisted on a more uniform approach and did not employ double standards, I think we would achieve a much better balance."