David Cole at Maine Civil Liberties Union

"The alien was to be protected, not because he was a member of one's family, clan, religious community or people; but because he was a human being.

"In the alien, therefore, man discovered the idea of humanity."

--Hermann Cohen, as quoted by David Cole

"Immigrants are the canary in the coal mine."

--Beth Stickney, co-founder and Exec. Dir. of the Immigrant Legal Advocacy Project, Inc.

David Cole, legal correspondent for The Nation and a professor at Georgetown University Law Center, keynoted the MCLU's Justice Louis Scolnik Award Dinner in Freeport this evening. I thought some of my Kossak friends would be interested in reading my paraphrase of what he had to say. (And I do mean paraphrase.  I was taking notes with pen and paper -- luddite to the end -- and could barely keep up.)  Cole closed his speech with those words from Hermann Cohen and, as you may infer, the speech was about (more or less) the treatment of foreign nationals by the United States. What follows is a rough paraphrase of what he had to say.  Quotations should also be considered paraphrasing aided by good notes.

The way the United States treats immigrants and foreign nationals has followed a progression, or perhaps regression is a better word, since 9/11.  There are two stages to that course.

The first is common to most periods of crisis throughout our history:  the targeting of immigrants, the "weak link" in the social fabric.  The first modern example of this are the "Palmer Raids" of 1918.  In the midst of WWI, 8 bombs exploded in 8 different cities within an hour of each other.  The government responded with a round-up of thousands of immigrants.  Held with no access to lawyers, interrogated with no recourse to an attorney, hundereds of them were deported.  Their various crimes amounted to technical immigration violations or vauge relations to the American Communist party (itself proven to have no ties to the bombings).  A journalist wrote at the time:

Delirium sparked by the bombings turned to the vilification of immigrants with all the spontineity of water seeking the path of least resistance.

This "path of least resistence" pathology has been mimicked foursquare by the Bush administration.  "You don't have to give up your rights!" he says. "Because we'll take theirs instead."

Examples will be obvious to this crowd.  Guantanamo.  Ethnic profiling since 9/11.  Michael Chertoff, speaking to a during the first term said, "We do not engage in ethinc profiling.  What we do is target foreign nationals based on country of passport."

Cole then related the story of Maher Arar:

A Canadian citizen born in Syria, Arar was returning home to Montreal from Zurich on September 26, 2002, when he stopped at New York's JFK airport to change planes. As he passed through immigration, solely for the purpose of reaching his connecting flight, authorities pulled him aside, denied his requests for a lawyer, interrogated him at length and ultimately accused him, on secret evidence, of being a member of a terrorist organization.

Arar then asked to be deported to Canada, where he had been heading anyway, and where he'd been a citizen for sixteen years. But federal authorities refused and instead put him on a government jet to Jordan, where he was immediately transported to Syria. He spent ten months incarcerated there without charges, much of it in solitary confinement in a three-by-six-foot cell that Arar describes as a "grave." He says he was beaten with cables, threatened with electric shocks and placed in "the tire," which immobilizes prisoners for beatings. About one year later, Arar was released and returned to Canada, where, on November 4, he publically told his story.

Stage Two: The Government discovers that it enjoys weilding power without restraint and, before long, it attempts to weild that power against its own citizens.  Enter the latest scandal (coming as no surprise to those in this room) that the NSA has collected millions of Americans' phone records.  This coming hard on the heels of revelations about the illegal wiretapping in direct contravention of a federal criminal law.

And what legal argument is employed to justify this abuse?  They say, "the Commander in Chief cannot be contrained by the law."  

This argument will sound familiar to those in the room who remember another President who was guilty of illegal wiretapping: Nixon.  When interviewed [by Frost], Nixon said, "I though I could do it because if the President does it then that means it's not illegal."  

Bush has done nothing but add three words to that formula:  Commander in Chief.  The Commander in Cheif, they say, cannot be constrained by Congress.  This is the very same argument trotted out to justify torture, even though there is a Federal statute forbidding it, even though there is a Treaty signed promising not to engage in it.  The commander in Chief has the exclusive and uncheckable power to select the means and methods of engaging the enemy.

This argument is employed to justify means used allegedly to preserve the United States, human rights and security, but it undermines the very things it is employed to protect.  Protecting the United States is a legitimate goal.  But we undermine the legitimacy of the enterprise when we engage in these activities.  You sacrifice the cause in the name of saving it [Cole was much more coherent and eloquent here--I lost the words and patterns he used.  It was good, forceful].

Cole quoted Le Monde on 9/12, "Today we are all Americans."  You won't be reading that on the front page of Le Monde any time soon.  We had all the world's sympathy. Now, anti-Americanism is at an all-time high.  Osama bin Laden has a higher approval rating in some countries than the United States does.

Some people say, "Oh- they hate us for our freedoms.  They hate us because we are powerful and privileged."

Well, we were just as powerful and privleged on September 11th -- and we were more free -- and we had the world's sympathy.  Now, antipathy.

So what does this mean for the rule of law?  The official Defense Strategy from the Pentagon contained the following:

The strength of the nation-state [that's us] will continue to be challenged by the weak through the international fora and judicial processes and terrorism.

The law is for the weak.
"Judicial process" equals terrorism.
Insistence upon the rule of law is the same as terrorism.

That really says it all.  We have officially undermined the rule of law in the name of defending freedom.

There is a better way.  A renewed commitment to our own legacy of law, justice, rights [this is all heavy on the paraphrasing as I was listening now and not taking many notes] will not only strengthen our position in the world and in this struggle, but it will strengthen our selves also.  When asked to rule on the subject of state-sanctioned abuse of a Palestinian, the Israeli Sumpreme Court Justice Barak said

A Democracy must sometimes fight with one hand tied behind her back.  Even so, a Democracy has the upper hand. The rule of law and individual liberties constitute an important aspect of her security stance. ...Only a separation fence built on the base of law will grant security to the state and its citizens. Only a separation route based on the path of law will lead the state to the security so yearned for.

The rule of law strengthens our spirit, and that alone is what will help us to meet this challenge and overcome it.  

And it all comes back to the way we treat our foreign nationals:

The alien was to be protected, not because he was a member of one's family, clan, religious community or people; but because he was a human being.

In the alien, therefore, man discovered the idea of humanity.
  --Hermann Cohen

That's it.  Hope I did it some justice.  Cole was in town to help the MCLU to honor Beth Stickney.  Stickney has been an advocate for immigrant rights in Maine for over twenty years, helping to found and now serving as the director of the nonprofit Immigration Legal Advocacy Project.  In accepting the Justice Louis Scolnik award, she offered some of her own observations [the same paraphrasing disclaimer applies]:

Immigrants are the canary in the coal mine, to me.  Whenever there has been preassure or crisis, be it economic or security or anything else, they, as David said, are the weakest link.  They are the first to be targeted.
...

One of the things my work has led me to examine is that our role in the World--the United States' role in the world--often creates the conditions abroad that causes immigrants to seek a new life here.

...

I'm increasingly finding that, as the laws have changed and the climate for immigrants has worsened, we're forced simply to say, "I'm sorry, there's simply nothing we can do for you."

But I am constantly inspired by the people that I meet and work with.  There is so much energy required simply to leave a home -- no matter how terrible things are -- and start completely new in a new country.  These people have something special, a spark.  They are our national identity, but we're trying to snuff it out.