Where Liberty Lies: Civil Society and Individual Rights in America's "War on Terror" after 9/11

Castan Centre for Human Rights Law, proudly presents

Professor David Cole, Georgetown Law, Washington

Tuesday, 18 December 2012
Held at Monash University Law Chambers, 555 Lonsdale Street, Melbourne


Watch the full video of the event on our YouTube channel


Watch David Cole explain the importance of civil society in this 6 minute Q&A



Audio recording of lecture


Report by Candice Colman

The Bush Administration's response to 9/11 has been widely criticised by civil society groups both within the USA as well as globally for curtailing civil liberties and abrogating human rights. In the final Castan Centre event for 2012, Professor Cole reflected on the first decade post-9/11 and the lessons that civil society can learn about the relationship between counter-terrorism & human rights. Professor Cole teaches constitutional law at Georgetown University Law Center. He has published works on civil rights, criminal justice and constitutional law and has litigated on constitutional issues arising out of the First Amendment, which protects free speech.

Professor Cole began with an overview of US government responses to national security crisis over the years, noting that a prevalent culture of Presidential infallibility extended from President Lincoln's suspension of habeas corpus during the American Civil War, to President Roosevelt's detention of American and Japanese nationals during WWII for their ethnic identity. Bearing that culture in mind, he suggested that the most interesting thing about the decade post-9/11 is not the Bush Administration's ‘overreaction' to this admittedly ‘horrific attack', but rather, the fact that the Bush Administration was forced to curtail virtually all of its most aggressive anti-terror measures over its 8 year term. Professor Cole argues that the rollback was in part a response to resistance mounted by civil society groups.

Professor Cole noted the authorisation of the CIA to engage in torturous tactics and the disappearance of suspects in ‘black sites', as well as the erosion of the rule of law through policies including the unilateral creation of a military commission system. These commissions could authorise execution in response to evidence from torture victims without the avenue of judicial review. He further noted the widespread concern over the purported inapplicability of the Convention Against Torture and the Geneva Convention to foreign detainees outside US borders. He compared President Bush's claims to uncheckable override powers as Commander-in-Chief to President Nixon's infamous statement in response to a previous instance of warrantless wire-tapping of US citizens: ‘My understanding in that if the President does it, that means it's not illegal.'

Yet, despite this theory of leadership which was in sharp contradiction with the principles of constitutional law, Professor Cole argued that from 2004 onwards the Bush Administration was ‘more law abiding' than during its first term.

During its second term, the Bush Administration curtailed their torture practices, released 500 detainees from Guantanamo Bay, and introduced a judicial basis for wire tapping, none of which was mandated by Congress or decisions of the Supreme Court. Professor Cole argued that it was in part a result of pressure from civil society groups, such as Human Rights Watch, Human Rights First, the Center for Constitutional Rights, the American Civil Liberties Union and others, made up of citizens who had come together in their commitment to a certain set of human rights or constitutional standards on civil liberties. He argued that the filing of law suits, issuing of reports, leaking of top secret government memos, and public protesting by individuals who were committed to a strong constitutional basis for non-derogable human rights standards was ultimately helped bring about a significant decrease in the ‘lawless' measures used by the Bush Administration in the name of national security.

According to Professor Cole this resurrection of rule-of-law standards has continued during the Obama Administration. He cited the official cessation of the ‘Enhanced Interrogation Tactics' torture program of the CIA, and the publicising of the government memos that authorised it; as well as the further release of detainees from Guantanamo Bay as evidence of this. Overall, Professor Cole felt that the Obama Administration had a mixed record on human rights. On the one hand, President Obama refused to rely on Commander-in-Chief powers and showed his determination to be constrained by the laws of war notwithstanding a court decision to the contrary. On the other, Professor Cole remains concerned by the Obama Administration's widespread use of state secrets privileges to avoid accountability for past rights violations, as well as the expansion of the targeted drone killing program. Thus, the need for civil society resistance remains.

Professor Cole closed by suggesting that in the decade after 9/11 civil society groups have been surprisingly effective in curtailing the abuse of human rights by the US executive, legislative and judicial powers. The audience left with a strong impression of the integral role a robust civil society has to play in safeguarding civil liberties.


David Cole is a professor at Georgetown University Law Center, a volunteer attorney for the Center for Constitutional Rights, the legal affairs correspondent for The Nation, and a regular contributor to the New York Review of Books. He is the author of six books.  His first book, No Equal Justice: Race and Class in the American Criminal Justice System was named Best Non-Fiction Book of 1999 by the Boston Book Review, and best book on an issue of national policy in 1999 by the American Political Science Association.  Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism, received the American Book Award in 2004.  Less Safe, Less Free: Why America Is Losing the War on Terror, published in 2007, and coauthored with Jules Lobel, won the Palmer Civil Liberties Prize for best book on national security and civil liberties.   His most recent book is The Torture Memos: Rationalizing the Unthinkable (2009).

He has litigated many significant constitutional cases in the Supreme Court, including Texas v. Johnson and United States v. Eichman, which extended First Amendment protection to flagburning; National Endowment for the Arts v. Finley, which challenged political content restrictions on NEA funding; and most recently, Holder v. Humanitarian Law Project, which challenged the constitutionality of the statute prohibiting "material support" to terrorist groups, which makes speech advocating peace and human rights a crime.  He has been involved in many of the nation's most important cases involving civil liberties and national security, including the case of Maher Arar, a Canadian citizen rendered by U.S. officials to Syria and tortured there.  

New York Times columnist Anthony Lewis has called David "one of the country's great legal voices for civil liberties today," and Nat Hentoff has called him "a one-man Committee of Correspondence in the tradition of patriot Sam Adams."  David has received numerous awards for his human rights work, including from the Society of American Law Teachers, the National Lawyers Guild, the ACLU of Southern California, the ABA Section on Individual Rights and Responsibilities, and the American-Arab Anti-Discrimination Committee.