Right-wing media attack Cole for non-controversial statements on drug war, civil liberties

Carlson: "[S]ome people, specifically Republicans, are a little disturbed by the fact that [Cole] may actually get this job." On the June 15 edition of Fox News' Fox & Friends, co-host Gretchen Carlson said: “Here are why some people, specifically Republicans, are a little disturbed by the fact that he may actually get this job. He's said some interesting things about 9-11.” Carlson also claimed Cole “has written an editorial where he believes 9-11 was more of a criminal act than an act of war.”

Doocy attacked Cole's remarks about the war on drugs. Co-host Steve Doocy claimed, as one of the “interesting things” Carlson referred to, “He compared 9-11 to the war on drugs. He's saying it was actually -- war on drugs, actually a longer term and far more devastating disaster for our country in terms of the number of people affected. The war on drugs over the war on terror that started with 9-11.”

Kilmeade claimed Cole said 9-11 is “like an ordinary murder, rape or mafia-type crime. Good, fantastic.” Co-host Brian Kilmeade distorted Cole's comments to claim “He went on to say it's like an ordinary murder, rape or mafia-type crime. Good, fantastic. I'll tell you what, this guy profiles exactly like someone who worked in perfect tandem with Eric Holder because they believe the same things.”

CNS: Cole “liken[ed] the attacks on the World Trade Center” to “domestic crimes.” In a June 14 CNS News article, staff writer Fred Lucas wrote:

Despite a resolution by Congress authorizing war against those responsible for the 9/11 terrorist attacks, President Obama's nominee to be the number two official at the Justice Department, James Cole, wrote an op-ed in 2002 likening the attacks on the World Trade Center and the Pentagon to the domestic crimes of murder, rape and child abuse, while arguing that the attackers ought to be treated like domestic criminals.

Lucas also quoted from other sections of Cole's op-ed, including his “war on drugs” comments.

Fox Nation: “Obama nominee: 9/11 Was Not an Act of War.” Fox Nation linked to the CNS News article under the headline “Obama Nominee: 9/11 Was Not an Act of War.” From the Fox Nation:

Many of the policies to which Cole objected were later found to be unconstitutional

Cole objected to, among other things, the Bush administration's enemy combatant and military tribunals, policies later found to be against the law. In his September 9, 2002, Legal Times op-ed, Cole criticized the Bush administration for, among other things, “detain[ing] non-citicizens 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.”

In Hamdi v. Rumsfeld, the Supreme Court found the Bush admin.'s policy of holding U.S. citizens as “enemy combatants” without ability to challenge their detention to be a violation of the law. In 2004, in Hamdi v. Rumsfeld, eight justices stated that that the Bush administration's policy of holding an American citizen, Yaser Hamdi, on American soil as an “enemy combatant” without a “meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker” violated the law. In a plurality opinion for four justices, Justice Sandra Day O'Connor wrote:

At this difficult time in our Nation's history, we are called upon to consider the legality of the Government's detention of a United States citizen on United States soil as an “enemy combatant” and to address the process that is constitutionally owed to one who seeks to challenge his classification as such. The United States Court of Appeals for the Fourth Circuit held that petitioner's detention was legally authorized and that he was entitled to no further opportunity to challenge his enemy-combatant label. We now vacate and remand. We hold that although Congress authorized the detention of combatants in the narrow circumstances alleged here, due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker.

Two other justices, David Souter and Ruth Bader Ginsburg, also rejected the limitations on habeas corpus that the Bush administration urged. And Justices Antonin Scalia and John Paul Stevens stated that the Bush administration's detention policy as applied to Hamdi was unauthorized by law.

In Rasul v. Bush, the Supreme Court rejected Bush admin.'s argument that Gitmo detainees could be held without challenge. In the 2004 case Rasul v. Bush, the Supreme Court rejected the Bush administration's argument that, under the law as it existed at the time, Bush could order people to be detained at Guantánamo Bay without the ability to challenge the terms of their detention in federal court. The court's majority opinion stated that the detainees who brought the case alleged that “although they have engaged neither in combat nor in acts of terrorism against the United States, they have been held in Executive detention for more than two years in territory subject to the long-term, exclusive jurisdiction and control of the United States, without access to counsel and without being charged with any wrongdoing -- unquestionably.” The petitioners filed habeas corpus petitions seeking to challenge the terms of their detention in federal court. The court rejected the Bush administration's argument that the courts did not have jurisdiction over the habeas corpus petitioners, holding that “the federal courts have jurisdiction to determine the legality of the Executive's potentially indefinite detention of individuals who claim to be wholly innocent of wrongdoing.”

In Hamdan v. Rumsfeld, the Supreme Court struck down Bush admin.'s military commissions as in violation of military law and Geneva Conventions. In the 2006 case of Hamdan v. Rumsfeld, the Supreme Court struck down the Bush administration's procedures for trying Salim Ahmed Hamdan, a Yemeni national, by military commission. The majority opinion stated that “the military commission convened to try Hamdan lacks power to proceed because its structure and procedures violate both the UCMJ [Uniform Code of Military Justice] and the Geneva Conventions.”

In Boumediene v. Bush, the Supreme Court also struck down the military commissions system set up in response to Hamdan.

During confirmation hearing, Cole said he supports military courts in their current form, when appropriate. During his June 15 confirmation hearing, Cole reportedly stated that: “We must use every tool we have to fight terrorism. That includes both military commissions and Article III courts. ... We need both of those tools. Each one has its advantages and its limitations.” In response to Sen. Jeff Session's questions about Cole's 2002 op-ed, Cole also stated: “Senator, my view is that if you have a good military commission that conforms with the rule of law, it is a very useful tool. ... Sometimes it is right to go with an Article III court, sometimes it is right to go with a military commission.”

Ret. military brass and prominent conservative scholars and statesmen also support civilian trials for terror suspects

Cole argued that “the Sept. 11 attacks were criminal acts of terrorism,” and should be tried as such. In his Legal Times op-ed, Cole wrote:

[T]he attorney general is not a member of the military fighting a war--he is a prosecutor fighting crime. 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.

[...]

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?

As Justice George Sutherland wrote in Berger v. United States (1935), a prosecutor “is the representative not of any ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.” It is a difficult balancing act between being a protector against crime and a protector of rights. But that is what lies at the heart of being a prosecutor.

Bipartisan group, which includes prominent conservatives, also calls for criminal trials in terrorism cases. The nonpartisan Constitution Project states: “The largest bipartisan group of prominent Americans to propose a plan for closing the Guantanamo Bay detention facility has backed a single scheme for the disposition of cases of current and future detainees. Former members of Congress, diplomats, federal judges and prosecutors, high-level military and government officials, as well as national security experts today [November 4, 2009] backed a plan for the handling of detainees when the detention facility is closed.”

Constitution Project Declaration: “Civilian federal courts are the proper forum for terrorism cases.” From the Constitution Project's statement:

Declaration Supporting Federal Court Prosecution of Terrorism Suspects and Opposing Indefinite Detention Without Charge

We, the undersigned, urge Congress and the President to support a policy for detention treatment and trial of suspected terrorists that is consistent with U.S. treaty obligations and constitutional principles. As it moves to close Guantanamo and develop policies for handling terrorism suspects going forward, the government should rely upon our established, traditional system of justice. We are confident that the government can preserve national security without resorting to sweeping and radical departures from an American constitutional tradition that has served us effectively for over two centuries.

Civilian federal courts are the proper forum for terrorism cases

Over the last two decades, federal courts constituted under Article III of the U.S. Constitution have proven capable of trying a wide array of terrorism cases, without sacrificing either national security or fair trial standards.

Prosecutions for terrorism offenses can and should be handled by traditional federal courts, which operate under statutes and procedures that provide the tools necessary to try such complex cases. Moreover, the War Crimes Act explicitly gives federal courts jurisdiction to try certain war crimes.

Terrorism suspects should be criminally tried, not detained without charge

We believe it is unconstitutional to detain indefinitely terrorism suspects in the United States without charge, either for the purposes of interrogation and intelligence-gathering or solely on the basis of suspected dangerousness. There are limited times when preventive detention, subject to required procedural protections, is appropriate in the context of armed conflict. However, the continued detention without charge of the detainees remaining in Guantanamo is not appropriate and is contrary to American values. [Beyond Guantanamo, The Constitution Project]

Declaration signed by numerous retired generals, admirals, legal experts, and conservatives, including Grover Norquist, Barry Goldwater Jr., and David Keene. The signatories of the Constitution Project's Beyond Guantanamo: A Bipartisan Declaration include Norquist, president of Americans for Tax Reform; former Rep. Thomas B. Evans Jr. (R-DE), a former co-chairman of the Republican National Committee; Keene, chairman of the American Conservative Union and board member of the National Rifle Association, and former Reps. Goldwater, Jr. (R-CA) and Bob Barr (R-GA). Other signatories include retired generals, admirals and legal experts.

Recent report from 16 former federal judges found that “the habeas process” instituted after Boumediene v. Bush “is working.” As The Constitution Project noted, in Boumediene v. Bush, the Supreme Court “ruled that the constitutionally guaranteed right of habeas corpus review applies to the Guantánamo detainees, enabling them to challenge their detention in federal court.” On June 10, the Constitution Project and Human Rights First “released a report from 16 former federal judges, with a combined experience of 248 years on the federal bench, entitled Habeas Works: Federal Courts' Proven Capacity to Handle Guantánamo Cases. In this report, the judges show that the habeas process is working and that the federal courts have developed consistent jurisprudence on standards to be applied and the procedural and evidentiary rules governing Guantánamo habeas cases." From the Constitution Project:

As they have done for centuries, judges are reviewing these habeas petitions to assess whether each detainee is properly being held. Contrary to the criticism leveled by some that the District Court judges are usurping the role of legislators, the report demonstrates that judges are playing an appropriate constitutional role and are fulfilling the duty they've been charged with: applying the law to the facts in these cases.

[...]

Judge Sessions, a signatory of the report, shared his opinion that the courts have been successful in developing a consistent jurisprudence. “The courts have been struggling with it and been making very good and sound headway trying to determine how to deal those people who have been placed in Guantanamo and whether and how they are entitled to be released,” Judge Sessions said.

Judge Sessions explained that the road ahead for the future of habeas litigation would not necessarily be clear cut, but that placing the responsibility in the hands of the courts was the best solution. “We are going to continue to deal with problems and procedures, but the courts are equipped to deal with this issue and are the right people to handle this,” he said.

The War on Drugs has lasted almost 40 years and affected millions

Bureau of Justice Statistics: 1.8 million drug-related arrests in 2007. According to the Bureau of Justice Statistics, 1,841,200 arrests were made for drug-related offenses in 2007 alone, which comprised almost 13% of arrests for all offenses. From the Bureau of Justice Statistics:

AP: "[T]he United States' war on drugs has cost $1 trillion and hundreds of thousands of lives." A May 13 Associated Press article stated, “After 40 years, the United States' war on drugs has cost $1 trillion and hundreds of thousands of lives.” The article also noted, “The dealers who are caught have overwhelmed justice systems in the United States and elsewhere. U.S. prosecutors declined to file charges in 7,482 drug cases last year, most because they simply didn't have the time. That's about one out of every four drug cases.”

Cato Institute: There are “about 480,000 drug offenders in jails and prisons.” According to the Cato Institute's 2009 "Handbook for Policymakers":

Total drug arrests are now more than 1.5 million a year. Since 1989, more people have been incarcerated for drug offenses than for all violent crimes combined. There are now about 480,000 drug offenders in jails and prisons, and about 50 percent of the federal prison population consists of drug offenders.

DOJ: “Approximately 4 percent of all homicides in 2008 were drug-related.” The Department of Justice estimated that "[a]pproximately 4 percent of all homicides in 2008 were drug-related, a percentage that has not changed significantly over the same 20-year period." According to the DOJ:

The most recent annual data from the Federal Bureau of Investigation (FBI) show that 12.2 percent of more than 14 million arrests in 2008 were for drug violations, the most common arrest crime category. The proportion of total drug arrests has increased over the past 20 years: in 1987, only 7.4 percent of all arrests were for drug violations. Approximately 4 percent of all homicides in 2008 were drug-related, a percentage that has not changed significantly over the same 20-year period.

The characteristics of populations under correctional supervision reflect these arrest patterns. According to the Bureau of Justice Statistics (BJS), 20 percent of state prisoners and 53 percent of federal prisoners are incarcerated because of a drug offense. Moreover, 27 percent of individuals on probation and 37 percent of individuals on parole at the end of 2007 had committed a drug offense.

Cole has support of “a broad coalition of groups”

NPR: Cole “has won support from a broad coalition of groups, including the National District Attorneys Association and the National Association of Criminal Defense lawyers.” NPR reported on June 15 that “Cole has won support from a broad coalition of groups, including the National District Attorneys Association and the National Association of Criminal Defense lawyers. The American Bar Association's Criminal Justice Section, which Cole once led, also wrote senators a letter urging his confirmation.” The article added:

The lesson of Cole may be this: Any lawyer who has spent 30 years pursuing high-stakes cases in Washington will develop his share of detractors. And they will reappear exactly when someone is on track to get a plum government job.

Former GOP Sen. Danforth: Cole is “exceedingly knowledgeable,” “highly regarded,” “serious and careful.” In his June 1 letter to the Senate Judiciary Committee, former Republican Sen. John C. Danforth (MO) wrote in support of Cole's nomination, saying:

Jim is a “lawyer's lawyer.” He is exceedingly knowledgeable, especially on matters relating to legal and business ethics, public integrity and compliance with government regulations. He is highly regarded at Bryan Cave as a skillful litigator. As his resume demonstrates, he has long and deep experience in the Department of Justice.

Jim Cole is both serious and careful. As I observed when working with him, he is intent on advising clients to do the right thing and avoid even the slightest hint of impropriety. His standard is to know and respect the rules and to conduct oneself in a manner that is beyond reproach.

When in 1999-2000 I served as Special Counsel to investigate the Branch Davidian disaster at Waco, Texas, Jim was the model for how to conduct the investigation: thoroughness, objectivity and no leaks. As he has been the model for our Firm, I am certain he will be the same for the Department of Justice. He has my enthusiastic endorsement for Deputy Attorney General.

Reagan Justice official: Cole's “distinguished record of government service at the Justice Department, as well as his extensive experience in private practice makes him well-qualified.” W. Stephen Cannon -- formerly Deputy Assistant Attorney General under President Reagan -- also wrote to the Senate Judiciary Committee in support of Cole's nomination. In his June 7 letter, Cannon wrote that he “enthusiastically endorse[s] Jim's nomination and firmly believe the President has made an excellent choice. Jim's distinguished record of government service at the Justice Department, as well as his extensive experience in private practice makes him well-qualified to handle this difficult job. If confirmed, I'm confident Jim will serve with great skill and distinction.”

Bush campaign aide, former RNC deputy chairman: “Cole has my highest recommendation.” Jack L. Oliver -- whose past work included serving as Bush-Cheney '04's finance vice chairmen, deputy chairman of the Republican National Committee, and finance director of Bush for President 2000 -- also wrote “in strong support of Jim Cole's nomination to serve as Deputy Attorney General of the United States.” Oliver wrote on June 7:

I have always been tremendously impressed with the thoroughness and professionalism by which Mr. Cole has conducted himself. Therefore, Mr. Cole has my highest recommendation to serve as Deputy Attorney General of the United states and it is an honor to have the opportunity to write on Mr. Cole's behalf. If confirmed, I believe that Mr. Cole would serve the Department of Justice and the country with great distinction in the years ahead.