Georgetown Law Center professors David Cole, an outspoken opponent of the USA Patriot Act, and Viet Dinh, former U.S. Assistant Attorney General for Legal policy and a leading architect of the Patriot Act, squared off last Tuesday night at a discussion of Cole’s new book, “Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism.”
According to Alex Aleinikoff, associate law center dean and moderator of the debate, Dinh participated in the discussion not to dispute Cole, but rather to engage him in a “healthy discussion and debate . in a tough but friendly manner in the best of community building here at Georgetown.”
Cole began with a barrage of criticism of President Bush’s military tribunal order issued in November 2001. The order, which only applies to non-U.S. citizens, authorizes the trial of those accused of terrorist crimes in military court, where they can be executed on the basis of evidence kept secret from them and from their appointed council.
Cole said the problem was that the rights of U.S. citizens are jeopardized. “The message to Americans is [that] your rights are not at stake,” he said. “I wrote my book in part to say that our rights are at stake.”
Cole said that over 5,000 foreign nationals have been incarcerated in anti-terrorism related measures since the Sept. 11, 2001 attacks and that only two have been convicted. Most others were affirmatively cleared of any connection to terrorism, he said.
“The bottom line is that very, very few of [the foreign nationals], virtually none of them, were charged with anything related to terrorism,” Cole said. “If the Attorney General locked up 5,000 citizens after Sept. 11 . and we could only get two convictions to show for it, I think he’d be out of a job. But he isn’t, and I think it’s because he targeted foreign nationals, and not citizens.”
Dinh said he thinks that no one can deny the president the authority to detain an enemy combatant during a war. “I think that power extends very broadly to the war against terror,” he said.
At the same time, Dinh praised Cole and his book. Dinh described Cole’s voice as “a voice that matters,” and said that he is proud to be an American alongside other Americans like Cole who fight to ensure that liberty is extended to all. Dinh also said that he agrees with Cole’s assertion that race should play no role in law enforcement.
He contested Cole, however, on the issue of the United States trying suspected terrorists in a military court.
“Make no mistake about it: this is war,” Dinh said. “I think David makes a very good point regarding the fact that the government has used its prosecutorial discretion to a very – I would argue in many cases to its fullest – extent when there has been suspicion of terrorist involvement. But I would say that there is no moral, legal or constitutional right to violate the law of this country,” Dinh said.
Cole alleged that the government is engaging in ethnic profiling. He said that the targeted countries are those with predominantly Arab and Muslim populations. “I consider it the most extreme campaign of ethnic profiling we’ve seen in this country since World War II,” Cole said.
Cole concluded his speech by arguing that the United States needs cooperation from the community in which al Qaeda might be living.
“It is not irrational, it’s not prejudiced, it’s not a stereotype to say that al Qaeda is made up of Arab and Muslim foreign nationals” Cole said. “That’s a fact. But it also is the case that 99 percent of the Arab Muslim population has nothing to do with al Qaeda, and if we build bridges to those communities to get their assistance in finding the al Qaeda people, I’m sure we could do a lot better.”