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Democratic Principles in the War on Terror

Senate Republicans yesterday filibustered the confirmation of James Cole, President Obama's nominee to become Deputy Attorney General.  There were a couple of reasons for their opposition, but it is principally grounded in the views Cole expressed when opposing Bush's Terrorism policies.  Specifically, a 2002 Legal Times Op-Ed authored by Cole contained the offending statements, as cited yesterday by GOP Sen. Chuck Grassley; behold the irony in Grassley's remarks:

Back in 2002, Mr. Cole was the author of an opinion piece in the Legal Times. In that piece, he stated, "For all the rhetoric about war, the Sept. 11 attacks were criminal acts of terrorism against a civilian population, much like the terrorist acts of Timothy McVeigh in blowing up the federal building in Oklahoma City, or of Omar Abdel-Rahman in the first effort to blow up the World Trade Center. The criminals responsible for these horrible acts were successfully tried and convicted under our criminal justice system, without the need for special procedures that altered traditional due process rights."

In other words:  Terrorists should be treated as criminals and accorded full due process within our normal "criminal justice system" -- i.e., dealt with as part of a law enforcement paradigm -- not treated as warriors subjected to "the rhetoric of war" and "special procedures that altered traditional due process rights."  In his now-controversial Op-Ed, Cole added:

The attorney general justifies much of his agenda by pointing to the "war on terrorism" and saying that it is an extreme situation that calls for extreme actions. But too much danger lies down that road. The protections built into our criminal justice system are there not merely to protect the guilty, but, more importantly, to protect the innocent. They must be applied to everyone to be effective. What are we fighting for if, in the name of protecting the principles that have raised this nation to the pinnacle of civilization, we abandon those very principles?

Cole's point:  even the most heinous Terrorists must be accorded the full and normal protections of our criminal justice system before being punished.  Even more notably -- and ironically -- Media Matters recently published a defense of Cole from the attacks launched by Fox News, arguing that Cole's views were mainstream because he was objecting to lawless Bush policies:

Cole criticized the Bush administration for, among other things, 'detain[ing] non-citizens without the benefit of counsel or judicial review, facilitat[ing] the implementation of military tribunals to try noncitizens for terrorist crimes," and for 'institut[ing] the use of the classification 'enemy combatant' to hold American citizens without access to counsel or judicial review.  

Those, of course, are, with some modifications, the policies that the Obama administration has itself adopted (see: "Obama administration readies indefinite detention order for Guantanamo detainees" - "Obama to resume Gitmo military trials").  While Obama hasn't argued that American citizens can be held "without access to counsel or judicial review," he has gone further than that by arguing that American citizens can be targeted for killing by drone attacks without judicial review, and has sought to carry out that policy.  So many of the general theories and specific policies so vehemently condemned by Cole during the Bush years (when he was doing little other than voicing the standard Democratic view on such matters) are the ones this administration has now expressly and vigorously adopted as its own.

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Glenn Greenwald

Glenn Greenwald

Glenn Greenwald is a Pulitzer Prize-winning journalist, constitutional lawyer, commentator, author of three New York Times best-selling books on politics and law, and a staff writer and editor at First Look media. His fifth and latest book is, No Place to Hide: Edward Snowden, the NSA, and the U.S. Surveillance State, about the U.S. surveillance state and his experiences reporting on the Snowden documents around the world. Prior to his collaboration with Pierre Omidyar, Glenn’s column was featured at Guardian US and Salon.  His previous books include: With Liberty and Justice for Some: How the Law Is Used to Destroy Equality and Protect the PowerfulGreat American Hypocrites: Toppling the Big Myths of Republican PoliticsA Tragic Legacy: How a Good vs. Evil Mentality Destroyed the Bush Presidency, and How Would a Patriot Act? Defending American Values from a President Run Amok. He is the recipient of the first annual I.F. Stone Award for Independent Journalism, a George Polk Award, and was on The Guardian team that won the Pulitzer Prize for public interest journalism in 2014.

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