David d. Cole

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Georgetown University Law Center

600 New Jersey Ave. NW Washington, DC 20001 (202) 662-9078

PROFESSOR, Georgetown University Law Center, 1994-present
FELLOW, Open Society Foundations, 2013-14
CO-DIRECTOR, Center for Transnational Legal Studies, London, 2008-09
VISITING SCHOLAR, University College London School of Public Policy, Fall 2007
VISITING PROFESSOR, New York University Law School, Spring 1996
ASSOCIATE PROFESSOR, Georgetown University Law Center, 1990-94
STAFF ATTORNEY, Center for Constitutional Rights, 1985-90
LAW CLERK to the Honorable Arlin M. Adams,

United States Court of Appeals for the Third Circuit, 1984-85

YALE UNIVERSITY, B.A. English, magna cum laude, 1980
Secrecy, National Security, and the Vindication of Constitutional Law (Elgar Pub. Forthcoming 2013) (ed. with Federico Fabrinni and Arianna Vedaschi)
Securing Liberty: Debating Issues of Terrorism and Democratic Values in the Post-9/11 United States (iDebate Press, 2011)
The Torture Memos: Rationalizing the Unthinkable (New Press, 2009)
Justice at War: The Men and Ideas that Shaped the Bush Strategy in the War on Terror (New York: New York Review Books June 2008)
Less Safe, Less Free: The Failure of Preemption in the War on Terrorism, with Jules Lobel (New Press, 2007)

Palmer Civil Liberties Prize, 2007

Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism (New Press, 2003) (rev. paperback ed., 2005)

American Book Award, 2004

Hugh M. Hefner First Amendment Award, 2004
Terrorism and the Constitution: Sacrificing Civil Liberties in the Name of National Security, with James X. Dempsey (First Amendment Foundation, 199) (The New Press, 2d rev. ed. 2002) (The New Press, 3rd fully revised ed. 2006)
No Equal Justice: Race and Class in the American Criminal Justice System (The New Press, 1999)

Anne Rea Jewell Prize for Best Non-Fiction Book of 1999, Boston Book Review

Gladys M. Kammerer Award for best political science publication in the field of national policy, from American Political Science Association, 2000

Alpha Sigma Nu Prize, 2001, Jesuit Honor Society

“The United States: Civil Society’s Defense of the Rule of Law,” in Assessing the War on Terror, ed. Mohammed Ayoob & Etga Ugur (2013)
“Military Commissions and the Paradigm of Prevention,” in Guantanamo and Beyond: Exceptional Courts and Military Commissions in Comparative and Policy Perspectives, ed. Oren Gross and Fionnuala Ni Aolain (Cambridge Univ. Press, 2013, Forthcoming)
“Comparative Advantages: Secret Evidence and ‘Cleared Counsel’ in the United States, the United Kingdom, and Canada,” in Secrecy, National Security, and the Vindication of Constitutional Law (Elgar Pub., forthcoming 2013) (with Stephen Vladeck)
“Judgment and Discrimination,” in Blind Goddess: A Reader on Race and Justice, ed. Alexander Papachristou (New Press, 2011)
“Outsourcing Terror: Extraordinary Rendition and the Necessity for Extraterritorial Protection of Human Rights,” in Prisoners in War, ed. Sybille Scheipers (Oxford Univ. Press, 2010)
“Counterterrorism and the Constitution: Does National Security Require a Trade-off with Civil Liberties?” in Debating Terrorism and Counterterrorism: Conflicting Perspectives on Causes, Contexts, and Responses, ed. Stuart Gottlieb, (CQ Press, 2009)

  • Revised essay, 2d ed. 2013

“Terror Financing, Guilt by Association, and the Paradigm of Prevention,” in Counterterrorism: Democracy's Challenge, edited by A. Bianchi and A. Keller (Hart Publishing, 2009)

"Strategies of the Weak": Thinking Globally and Acting Locally toward a Progressive Constitutional Vision, in The Constitution in 2020 297 (Jack M. Balkin & Reva B. Siegel eds., Oxford: Oxford University Press 2009)   
“Communists, Terrorists, or Just Arabs?: The Twenty-One Year Epic Deportation Struggle of the LA 8,” in The Arab-American Handbook (Seattle, Wash.: Cune Press 2009)
“Human Rights and the Challenge of Terror,” in Leonard Weinberg, ed., Democratic Responses to Terrorism (Routledge, 2008)
“Foreword: Justice and the Outsider,” in David C. Brotherton and Philip Kretsedemas, eds., Keeping Out the Other: A Critical Introduction to Immigration Enforcement Today (Columbia Univ. Press, 2008)
“What Bush Wants to Hear,” in Liberty Under Attack: Reclaiming Our Freedom in an Age of Terror (Richard C. Leone & Greg Anrig, Jr. eds., New York: Public Affairs 2007).
Gideon v. Wainwright and Strickland v. Washington: Broken Promises,” in Criminal Procedure Stories (Carol Steiker, ed. 2006)
“The Idea of Humanity: Human Rights and Immigrants’ Rights,” in Samantha Besson, Michel Hottelier, Franz Werro, eds., Human Rights at the Center (Schultess Press, Switzerland, 2006)
“Imaginary Walls and Unnecessary Fixes,” in Stewart A. Baker and John Kavanagh, eds., Patriot Debates: Experts Debate the USA PATRIOT Act (2005)
“Criminalizing Speech: The Material Support Provision,” in Stewart A. Baker and John Kavanagh, eds., Patriot Debates: Experts Debate the USA PATRIOT Act (2005)
“The New McCarthyism: Repeating History in the War on Terrorism,” in Dissent in Dangerous Times, ed. Austin Sarat (Univ. of Mich. Press, 2005)
“What’s a Progressive to Do? Strategies for Social Reform in a Hostile Political Climate,” in Varieties of Progressivism, Peter Berkowitz, ed. (Hoover Institute Press, 2004)
“Shining Light on the Black Box,” Foreword to Benjamin Fleury-Steiner, Jurors’ Stories of Death: How America’s Death Penalty Invests in Inequality (Univ. of Mich. Press, 2004)
“Terrorism and Civil Liberties,” in What We Stand For: A Practical Progressive Program for America, ed. by Mark Green (Newmarket Press, 2004)
“Let’s Fight Terrorism, Not the Constitution,” in Rights vs. Public Safety After 9/11: America in the Age of Terrorism (A. Etzioni and J. Marsh, eds.) (2003)
“The Ashcroft Raids,” in It’s a Free Country: Personal Freedom in America After September 11 (D. Goldberg, V. Goldberg, and D. Greenwald, eds. 2002)
“Terrorism Control and the Constitution,” in Encyclopedia of the American Constitution (Oxford Univ. Press, 2000)
“Government-Funded Art and the First Amendment,” in Michael Kelly, ed., Encyclopedia of Aesthetics (Oxford Univ. Press, 1998)
“Two Standards of Criminal Justice,” in David Kairys, ed., The Politics of Law (3d edition, Basic\Harper Collins,1998)
"Casualties of the Drug War: An Equality-Based Argument for Drug Treatment," in Joel A. Egertson, Daniel M. Fox, & Alan I. Leshner, Treating Drug Abusers Effectively 281(Blackwell Publishers, 1997) (with Barry Littman)
“Abortion Clinic Protests,” in Gara LaMarche, ed., Speech and Equality: Do We Really Have to Choose? (1996)
"David Wojnarowicz," in David Wojnarowicz: Brush Fires in the Social Landscape

(Aperture Books, 1994)

“Getting Nearer and Nearer,” (review of Michael Klarman, From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriag), N.Y. Rev. of Books, Jan. 12, 2013
“Where Liberty Lies: Civil Society and Individual Rights After 9/11,” 57 Wayne L. Rev. 1203 (2012)
“Confronting the Wizard of Oz: National Security, Expertise, and Secrecy,” 44 Conn. L. Rev. 1625 (2012)
“Legal Affairs: Dreyfus, Guantanamo, and the Foundation of the Rule of Law,” 29 Touro L. Rev. 43 (2012)
“Our Romance with Guns,” (review essay on several books), N.Y. Rev. of Books, Sept. 27, 2012
“The Taint of Torture: The Roles of Law and Policy in Our Descent to the Dark Side,” 49 Houston L. Rev. 53 (2012)
“Obama and Terror: The Hovering Questions,” (review of Daniel Klaidman, Kill or Capture: The War on Terror and the Soul of the Obama Presidency and Jack Goldsmith,

Power and Constraint: The Accountable Presidency after 9/11), N.Y. Rev. of Books, July 12, 2012
“Are We Stuck With the Imperial Presidency?,” (review of Eric A. Posner and Adrian Vermeule, The Executive Unbound: After the Madisonian Republic), N.Y. Rev. of Books, June 7, 2012
“The First Amendment’s Borders: The Place of Holder v. Humanitarian Law Project in First Amendment Doctrine,” 6 Harv. L. & Pol. Rev. 147 (2012)
“The Gay Path Through the Courts,” (review of Flagrant Conduct: The Story of Lawrence v. Texas by Dale Carpenter), New York Review of Books, April 5, 2012
“Keeping Watch on the Detectives,” (review essay on multiple books), New York Review of Books, Dec. 22, 2011
“Turning the Corner on Mass Incarceration?,” 9 Ohio St. L. J. 27 (2011)
“35 States to Go,” London Review of Books, Mar. 3, 2011 (reviewing David Garland, Peculiar Institution: America’s Death Penalty in an Age of Abolition)
“The Sacrificial Yoo: Accounting for Torture in the OPR Report,” 4 Journal of National Security Law and Policy 455 (2010)
“Hope and Betrayal on Death Row,” New York Review of Books, Nov. 25, 2010 (Review of David Dow, Autobiography of an Execution, and Wilbert Rideau, In the Place of Justice)
“What to Do About Guantanamo,” New York Review of Books, Oct. 14, 2010 (reviewing several books)
“English Lessons: A Comparative Analysis of UK and US Responses to Terrorism,” 62 Current Legal Problems, ch. 5 (2009)
“Can Our Shameful Prisons Be Reformed?,” New York Review of Books, Nov. 19, 2009 (reviewing several books)
“Out of the Shadows: Preventive Detention, Suspected Terrorists, and War,” 97 California Law Review 693 (2009)
“The Same-Sex Future,” New York Review of Books, July 2, 2009 (reviewing several books)
“What to Do About the Torturers?,” New York Review of Books, Jan. 15, 2009 (reviewing several books)
Rights Over Borders: Transnational Constitutionalism and Guantanamo Bay,” 2008 Cato Supreme Court Review 487
“No Reason to Believe: Radical Skepticism, Emergency Power, and Constitutional Constraint,” (Review of Eric Posner and Adrian Vermeule, Terror in the Balance), forthcoming Univ. of Chicago Law Review (2008)
“A Larger War on Terror,” New York Review of Books, Dec. 4, 2008 (reviewing Philip Bobbitt, Terror and Consent)
“The Poverty of Posner’s Pragmatism” (Review of Richard Posner, Not A Suicide Pact, 59 Stanford Law Review 1735 (2007)
“The Brits Do It Better,” New York Review of Books, June 12, 2008 (reviewing Laura K. Donohue, The Cost of Counterterrorism: Power, Politics, and Liberty and David Bonner, Executive Measures, Terrorism and National Security: Have the Rules of the Game Changed?
“The Man Behind the Torture,” New York Review of Books (December 6, 2007) (Review of Jack Goldsmith, The Terror Presidency),
“Against Citizenship as a Predicate for Basic Rights,” 75 Fordham Law Review 2541 (2007)
“The Grand Inquisitors,” New York Review of Books (July 19, 2007) (reviewing several books)
“How to Skip the Constitution,” New York Review of Books, Nov. 16, 2006 (Review of Richard Posner, Not a Suicide Pact)
“Double Standards, Democracy, and Human Rights,” 18 Peace Review 427

(Oct.-Dec. 2006)

“Reviving the Nixon Doctrine: NSA Spying, the Commander-in-Chief, and Executive Power in the War on Terror,” 13 Wash. & Lee J. of Civ. Rts. & Soc. Justice 1 (2006)
“Why the Court Said No,” New York Review of Books, August 10, 2006
“In Case of Emergency” (Review of Bruce Ackerman, Before the Next Attack: Preserving Civil Liberties in an Age of Terrorism), New York Review of Books (July 13, 2006)
“The Liberal Legacy of Bush v. Gore,” forthcoming Georgetown Law Journal (June 2006)
“Are We Safer?” (Review of Daniel Benjamin and Steven Simon, The Next Attack), New York Review of Books (March 9, 2006)
“The National Security Agency’s Domestic Spying Program: Framing the Debate,” 81 Indiana Law Journal 1355 (2006) (with Martin S. Lederman)
“How to Skip the Constitution” (Review of Richard Posner, Not a Suicide Pact, New York Review of Books (November 16, 2006)
“Reviving the Nixon Doctrine: NSA Spying, the Commander-in-Chief, and Executive Power in the War on Terror,” 13 Wash. & Lee J. of Civ. Rts. & Soc. Justice 1 (2006)
“Why the Court Said No,” New York Review of Books, August 10, 2006
“In Case of Emergency” (Review of Bruce Ackerman, Before the Next Attack: Preserving Civil Liberties in an Age of Terrorism), New York Review of Books (July 13,2006)
"Torture and the War On Terror": NSA Wiretapping Controversy: A Debate between Professor David D. Cole and Professor Ruth Wedgwood,” Case Western Reserve Journal of International Law 509 (2006)
“The Liberal Legacy of Bush v. Gore,” 94 Georgetown Law Journal 427 (2006)
“The Idea of Humanity: Human Rights and Immigrants’ Rights,” 37 Columbia Human Rights Law Review 627 (2006)

Reprinted in Samantha Besson, Michel Hottelier, Franz Werro, eds., Human Rights at the Center (Schultess Press, Switzerland, 2006)

Reprinted in V. B. Malleswari, Human Rights: International Perspectives(Icfal University Press, India, 2007)
“Are We Safer?” (Review of Daniel Benjamin and Steven Simon, The Next Attack), New York Review of Books (March 9, 2006)
“The National Security Agency’s Domestic Spying Program: Framing the Debate,” 81 Indiana Law Journal 1355 (2006) (with Martin S. Lederman)
“The Priority of Morality: The Emergency Constitution’s Blind Spot,” 113 Yale Law Journal 1753 (2004)
“Are Foreign Nationals Entitled to the Same Constitutional Rights as Citizens?,” 25 Thomas Jefferson Law School Law Review 367 (2004)
“Judging the Next Emergency: Judicial Review and Individual Rights in Times of Crisis,” 101Michigan Law Review 2565 (2003)
“The Course of Least Resistance: Repeating History in the War on Terrorism,” in Cynthia Brown, ed., Lost Liberties: Ashcroft and the Assault on Personal Freedom (2003)
“Terrorism and the Rule of Law: A Review of Ronald Daniels, et al., The Security of Freedom: Essays on Canada’s Anti-Terrorism Bill (2001), 1 Intl J. of Const. L. 745 (2003)
“The New McCarthyism: Repeating History in the War on Terrorism,” 38 Harv. Civil Rights Civil Liberties Law Review 1 (2003)

reprinted in Dissent in Dangerous Times, ed. Austin Sarat (Univ. of Mich. Press, 2005)
"Their Liberty, Our Security," Boston Review, Dec. 2002/Jan. 2003

reprinted in 32 International Journal of Legal Information 290 (2003)
“In Aid of Removal: Due Process Limits on Immigration Detention,”

51 Emory Law Journal 1003 (2002)

“Enemy Aliens,” 54 Stanford Law Review 953 (2002)
“Faith and Funding: Toward an Expressivist Model of the Establishment Clause,” 75 S. Cal. L. Rev. 559 (2002)
“Formalism, Realism, and the War on Drugs,” 35 Suffolk Univ. Law Rev. 241 (2001)
“Secret Evidence, Guilt by Association, and the Terrorist Profile,” 15 Journal of Law and Religion 267 (2001)
“As Freedom Advances: The Paradox of Severity in American Criminal Justice,” 3 University of Pennsylvania Journal of Constitutional Law 455 (2001)
“No Equal Justice: How the Criminal Justice System Uses Inequality,” 6 Harvard Journal of African American Public Policy 85 (2000)
“No Equal Justice,” 1 Connecticut Public Interest Law Journal (2000) (at www.law.uconn.edu/journals/cpilj/crntisu.html)
“Hanging With the Wrong Crowd: Of Gangs, Terrorists, and the Right of Association,” 1999 Supreme Court Review. 203 (2000)
“Damage Control? A Comment on Professor Neuman’s Reading of Reno v. AADC, 14 Georgetown Immigration Law Journal 347 (2000)
“Foreword: Discretion and Discrimination Reconsidered: A Response to the New Criminal Justice Scholarship,” 87 Georgetown Law Journal 1059 (1999)
“Symposium: Art, Distribution, and the State: Perspectives on the National Endowment for the Arts,” 17 Cardozo Arts & Entertainment Law Journal 705 (1999)
“The Value of Seeing Things Differently: Boerne v. Flores and Congressional Enforcement of the Bill of Rights,” 1998 Supreme Court Review 31 (1998)
“Jurisprudence and Liberty: Habeas Corpus and Due Process as Limits on Congress’s Control of Federal Jurisdiction,” 86 Georgetown Law Journal 2481 (1998)
“No Clear Statement: An Argument for Preserving Judicial Review of Removal Decisions,” 12 Georgetown Immigration Law Journal 427 (1998)
“What’s Criminology Got to Do With It?” (Review Essay on Michael Tonry, Malign Neglect -- Race, Crime and Punishment in America, and John Hagan & Ruth D. Peterson, eds., Crime and Inequality), 48 Stanford Law Review 1605 (1996)
"The Paradox of Race and Crime: A Comment on Randall Kennedy's 'Politics of Distinction,'" 83 Georgetown Law Journal 2547 (1995)

Reprinted in Wasserstrom & Snyder, A Criminal Procedure Anthology (1996)

"Playing by Pornography's Rules: The Regulation of Sexual Expression," 143 Univ. of Pennsylvania Law Review 111 (1994)
"From Hand-Holding to Sodomy: First Amendment Protection of Homosexual (Expressive) Conduct," 29 Harv. Civ. Rts.- Civ. Lib. L. Rev. 319 (1994) (with William Eskridge)
"Going to England: Irish Abortion Law and the European Community," 17 Hastings Int'l. & Comp. L.Rev. 113 (1993)
"Beyond Unconstitutional Conditions: Charting Spheres of Neutrality in Government-Funded Speech," 67 New York Univ. L. Rev. 675 (1992)
"Neutral Standards and Racist Speech," 2 Reconstruction 65 (1992)

Reprinted in Bender et al., Hate Crimes (Greenhaven Press, 1996)

"Are You Now or Have You Ever Been a Member of the ACLU?" (Book Review of Samuel Walker, In Defense of American Liberties), 90 Mich. L. Rev. 1404 (1992)
"First Amendment Antitrust: The End of Laissez-Faire in Campaign Finance," 9 Yale Law & Policy Rev. 236 (1991)
"Youngstown v. Curtiss-Wright," (Book Review of Harold Koh, The National Security Constitution: Sharing Power After the Iran-Contra Affair), 99 Yale Law Journal 2063 (1990)
"McCarran-Walter," Constitution, Vol. 2, No. 1, at 51 (1990)
"What's A Metaphor?: The Deportation of a Poet," 1 Yale Journal of Law and Liberation 5 (1989)
"Interpreting the Alien Tort Statute: Amicus Curiae Memorandum of International Law Scholars and Practitioners in Trajano v. Marcos," 12 Hastings International and Comparative Law Review 1 (1988) (with Harold Koh and Jules Lobel)

"A Justice's Passion," 10 Cardozo Law Review 221 (1988)

"Against Literalism," (Book Review of James Boyd White, Heracles' Bow: Essays on the Rhetoric and Poetics of Law), 40 Stanford Law Review 545 (1988)
"Agon at Agora: Creative Misreadings in the First AmendmentTradition," 95 Yale Law Journal 857 (1986)
"Taming Lyons: Obtaining Standing to Seek Equitable Relief," in Lobel, ed., Civil Rights Litigation and Attorney Fees Annual Handbook (1986)
"Getting There: Reflections on Trashing from Feminist Jurisprudence and Critical Theory," 8 Harvard Women's Law Journal 59 (1985)
"Challenging Covert War: The Politics of the Political Question Doctrine," 26 Harvard International Law Journal 155 (1985)
"The Force of Law: Judicial Enforcement of the War Powers Resolution," 17 Loyola L.A. Law Review 715 (1984) (with Michael Ratner)
"Strategies of Difference: Litigating for Women's Rights in a Man's World," 2 Journal of Law & Inequality 33 (1984)

Articles and op-eds in The Nation, Legal Times, New York Times, New Republic, Harper’s, Washington Post, Boston Globe, Wall Street Journal, The Guardian (UK), Foreign Policy, Slate.com, Salon.com, Los Angeles Times, USA Today, The American Prospect, Christian Science Monitor, Baltimore Sun, National Law Journal, Human Rights, The Champion, Washington Monthly, Village Voice, Newsday, Chicago Reader, San Francisco Review of Books, Boston Rock, and others.

“Enemy Combatants: Two Views,” Dec. 4, 2007
“Alien Tort Claims Act of 1789: An Important Tool for Defending Human Rights,” Feb. 22, 2004
“Detention of Enemy Combatants is Unconstitutional,” May 12, 2003
“Risks of Trading the Rights of Foreigners for Citizen Security in the US,” Aug. 6, 2002
“Current Laws are Sufficient to Fight Terrorism,” Oct. 15, 2001
“Affirmative Access,” Mar. 2, 2001
“Broken Windows,” Mar. 7, 2000
“Federal Death Penalty,” Feb. 15, 2000
“Racial Profiling,” Dec. 6, 1999
“Racial Profiling May Not Be Entirely Irrational but is Still Unacceptable,” May 4, 1999
“Overruling Miranda,” Feb. 10, 1999
“Roe Was A Compromise,” Jan. 20, 1998
“Two Trials,” Nov. 14, 1997
“Looking Back on the Court,” June 30, 1997
“Victim’s Rights,” April 16, 1997
“Gideon Anniversary,” March 18, 1997
“Legal Services Corporation,” January 31, 1997
“House of Representatives Passes Anti-Terrorism Bill,” March 15, 1996
“Congress Targets Death Row Resource Centers for Cuts,” September 29, 1995

Norman Dorsen Presidential Prize, American Civil Liberties Union, 2013
Honorary Degree in Psychology, Adler School of Professional Psychology, 2009
Lifetime Commitment to Justice Award, American-Arab Anti-Discrimination Committee, June 2008
Palmer Civil Liberties Prize for Less Safe, Less Free, 2007
Honorary Degree, City University of New York School of Law at Queens College, 2007
Freedom of Expression Award, ACLU Foundation of Southern California, 2007
Distinguished Alumni Award, Evanston Township High School, 2006
Human Rights Award, Society of American Law Teachers, January, 2006
William J. Brennan, Jr. Award, Thomas Jefferson Center for the Protection of Free Expression, 2004
American Book Award for Enemy Aliens, 2004
2004 Outstanding Achievement Award, The Political Asylum/Immigration Representation Project, Boston, MA
Hugh M. Hefner First Amendment Award for Enemy Aliens, 2004
Human Rights Hero, American Bar Association Section on Individual Rights and Responsibilities, Winter 2004
People’s Law Award, National Lawyers Guild, 2003
2001 Alpha Sigma Nu Book Prize for No Equal Justice, from Jesuit Honor Society
Constitutional Rights Award, National Coalition to Protect Political Freedom, April 2001
Anne Rea Jewell Prize for Best Non-Fiction Book of 1999, from Boston Book Review, for No Equal Justice
2000 Gladys M. Kammerer Award for best political science publication in the field of national policy, from American Political Science Association, for No Equal Justice
Senior Justice Fellow, Open Society Institute’s Center on Crime, Communities and Culture, 1998-99
Abu Saad Excellence Award, May 1999, American Muslim Council, for outstanding contributions on behalf of the Muslim community
Named one of 45 outstanding lawyers under 45 in the public sector, by The American Lawyer, “The Public Sector 45,” Jan./Feb. 1997
American-Arab Anti-Discrimination Committee, April 20, 1996, for promotion of civil rights.
Trial Lawyers for Public Justice, Trial Lawyer of the Year Award, 1995, for work on Paul v. Avril, international human rights action against former President of Haiti General Prosper Avril.

TEXAS v. JOHNSON: First Amendment challenge to Texas criminal conviction for burning United States flag in political demonstration. Supreme Court held that flagburning is protected expression under First Amendment, and cannot be prohibited.
UNITED STATES v. EICHMAN; UNITED STATES v. HAGGERTY: First Amendment challenges to prosecutions for flagburning under Flag Protection Act of 1989, passed by Congress in response to Texas v. Johnson. Supreme Court held federal legislation unconstitutional.
AMERICAN-ARAB ANTI-DISCRIMINATION COMMITTEE v. RENO: First Amendment challenge to provisions of McCarran-Walter Act authorizing deportation of aliens advocating doctrines of world communism or destruction of property. District Court declared provisions of McCarran-Walter Act unconstitutional; reversed on ripeness grounds in 9th Circuit. District Court granted preliminary injunction on selective prosecution and due process claims; 9th Circuit affirmed, holding that immigrants and citizens have same First Amendment rights, and that the INS's use of secret evidence violates due process. Supreme Court reversed First Amendment decision, ruling that 1996 Illegal Immigration and Immigrant Responsibility Act had divested courts of jurisdiction over selective prosecution challenges.
OPEN DOOR COUNSELLING, LTD. v. REPUBLIC OF IRELAND: Challenge under the European Convention on Human Rights to Ireland's constitutional prohibition on counseling about abortion. Ireland banned clinics from telling women about opportunities to obtain legal abortions outside of Ireland. European Court of Human Rights held that Irish ban violated Article 10 of the European Convention, guaranteeing freedom of expression and information.
FINLEY v. NATIONAL ENDOWMENT FOR THE ARTS: First Amendment challenge to NEA's politically-based denial of federal funding to four performance artists whose works address issues of sexuality, and to the 1990 statutory provision requiring NEA grants to made "taking into consideration general standards of decency." District Court declared "decency" standard unconstitutional in 1992; 9th Circuit affirmed in 1996. Supreme Court reversed in 1998, interpreting statute as merely advisory and upholding on that ground. .
BULLFROG FILMS, INC. v. WICK: First Amendment challenge to USIA regulations denying tax benefits to internationally distributed documentary films identified as propaganda. Ninth Circuit held regulations unconstitutional; Congress subsequently enacted legislation barring USIA from issuing certificates based on political viewpoints of films.
LEBRON v. NATIONAL RAILROAD PASSENGER CORP.: First Amendment challenge to Amtrak's refusal to lease "Spectacular" billboard in Penn Station to artist who sought to display parody of Coors advertisement. District Court held Amtrak was state actor and issued injunction ordering display of artwork; 2d Circuit reversed on state action grounds; Supreme Court reversed, holding Amtrak is a government entity for constitutional purposes. On remand, 2d Circuit found no First Amendment violation.
MARTINEZ-BACA v. SUAREZ-MASON; FORTI v. SUAREZ-MASON: Suits against Argentine ex-General alleging torture, arbitrary detention, and "disappearances" in violation of international human rights law. District Court in Forti established "disappearances" as violation of customary international law, and awarded $8 million judgment; District Court in Martinez-Baca awarded $21 million judgment.
HAASE v. WEBSTER; HEIDY v. U.S. CUSTOMS: First and Fourth Amendment challenges to Customs and FBI policies concerning seizures of written materials carried by travelers returning from Nicaragua. Customs changed its policy in response to suits. District Court in Heidy issued permanent injunction.
IN RE RANDALL; RANDALL v. MEESE: Defensive and affirmative First Amendment litigation resisting INS attempt to deport feminist author Margaret Randall for advocating "world communism." Board of Immigration Appeals reversed order of deportation for political writings on ground that Randall never lost her U.S. citizenship.
RAFEEDIE v. MEESE: Due process and First Amendment challenge to INS attempt to exclude and deport Palestinian permanent resident for his political associations on the basis of confidential information, without a hearing. District Court issued preliminary injunction; D.C. Circuit affirmed; District Court issued declaratory relief finding INS violated plaintiff's First Amendment and due process rights.
KIARELDEEN v. RENO: Habeas corpus petition challenging INS detention of Palestinian man based on secret evidence that he never had opportunity to confront, and challenging reliance on secret evidence to deny asylum. District court declared detention on secret evidence unconstitutional and granted habeas corpus. INS released him shortly thereafter.
AHMED v. RENO: Habeas corpus petition challenging INS detention of Egyptian man based on secret evidence that he never had opportunity to confront, and challenging reliance on secret evidence to deny asylum. In November 1999, the INS released Mr. Ahmed after we had compelled it to disclose much of the previously secret evidence and had successfully defended him in immigration court.
AL-NAJJAR v. RENO: Habeas corpus petition challenging INS detention of Palestinian man based on secret evidence. District Court ruled use of secret evidence unconstitutional in May, 2000, and remanded to INS for a new bond hearing. Al Najjar released December 2000.
AD-HOC COMMITTEE OF BARUCH BLACK AND HISPANIC ALUMNI ASSOCIATION v. BARUCH COLLEGE: First Amendment and Equal Protection challenge to Baruch College's selective refusal to grant recognition to Black and Hispanic Alumni Association. District Court dismissed; 2d Circuit reversed and remanded. College settled, granting full recognition and support to Association.
BURKE v. BARNES: Challenge to constitutionality of pocket veto of El Salvador human rights legislation. D.C. Circuit held President's use of pocket veto unconstitutional; Supreme Court dismissed as moot.
NEW YORK STATE NOW v. TERRY: Section 1985(3) action for injunction against Operation Rescue blockades of family planning and abortion clinics in New York metropolitan area. Obtained injunction, upheld by 2d Circuit, and $500,000 in contempt fines.
MASSACHUSETTS v. SULLIVAN: Statutory and constitutional challenge to Reagan Administration's restrictions on counseling about abortion by Title X family planning clinics. District Court issued permanent injunction; 1st Circuit affirmed en banc; reversed in light of Rust v. Sullivan.
GAY MEN'S HEALTH CRISIS v. SULLIVAN: First Amendment challenge to requirement that all federally-funded AIDS education materials, even where targeted to a specific audience, be "inoffensive to a majority of adults outside the target audience." District Court declared requirement unconstitutional.
WOJNAROWICZ v. AMERICAN FAMILY ASSOCIATION: First lawsuit under New York Artists' Authorship Rights Act, by artist David Wojnarowicz, against Reverend Donald Wildmon and American Family Association for leaflet misrepresenting Mr. Wojnarowicz's works of art in a mailing to 6,000 people, including every member of Congress, during National Endowment for the Arts controversy. District Court enjoined mailing of leaflet and required corrective mailing.
HUMANITARIAN LAW PROJECT v. HOLDER, First and Fifth Amendment challenge to federal statute criminalizing material support to designated terrorist organizations, without regard to the purpose or effect of the support. District Court and Court of Appeals struck down parts of law; Congress amended law; Supreme Court upheld statute as amended.
AL HARAMAIN ISLAMIC FOUNDATION V. GEITHNER: Constitutional challenge to procedures employed to freeze assets and designate as “terrorist” a Muslim charity. Court of appeals ruled that government violated the First, Fourth, and Fifth Amendments.
KINDHEARTS FOR CHARITABLE AND EDUCATIONAL DEVELOPMENT, INC. V. U.S. DEPT’ OF TREASURY: Constitutional challenge to procedures employed to freeze assets and designate as “terrorist” a Muslim charity. District Court ruled that freezing of charity’s assets violated Fourth Amendment and Fifth Amendment; government settled case and removed KindHearts from designated list.
TURKMEN V. ASHCROFT: Bivens action against federal officials for constitutional violations in treatment of immigration detainees after attacks of September 11. Dismissed by District Court, affirmed by Second Circuit.
NORTH JERSEY MEDIA GROUP v. ASHCROFT: First Amendment challenge to government’s policy of closing all “special interest” immigration hearings in the wake of September 11 attacks, without individualized findings of necessity. District court held closure policy unconstitutional; Third Circuit reversed.
HADDAD v. ASHCROFT: Due process challenge on behalf of detained immigrant to closed immigration hearings. District Court held closure violated plaintiff’s due process rights.
ARAR v. ASHCROFT: Constitutional challenge on behalf of Canadian citizen stopped at JFK Airport while changing planes, interrogated without a lawyer, ordered deported on secret evidence, and sent to Syria, where he was tortured and held without charges for ten months. District Court dismissed on national security grounds; Second Circuit affirmed en banc.
CENTER FOR CONSTITUTIONAL RIGHTS v. BUSH: Constitutional challenge to National Security Agency’s warrantless wiretapping of Americans in “war on terror.” Pending in District Court.
SALAH V. U.S. DEPARTMENT OF TREASURY: Constitutional challenge to designation of U.S. citizen residing in Chicago as “designated terrorist,” freeze of all his assets, and bar on any transactions with anyone in the United States, imposed without trial, hearing, or notice of charges. Government de-listed Salah on day before it was due to file answer to Salah’s federal court complaint.
Testified before the Subcommittee on Constitution, Civil Rights, and Civil Liberties of the House Judiciary Committee and the Subcommittee on International Organizations, Human Rights, and Oversight of the House Foreign Affairs Committee on Rendition to Torture: The Case of Maher Arar, Oct. 18, 2007
Testified before the Subcommittee on Immigration, Border Security, and Claim of the House Judiciary Committee on Constitutional Implications of the Alien Gang Removal Act of 2005, June 28, 2005
Testified before the Senate Judiciary Committee on the USA Patriot Act, May 10, 2005
Testified before Senate Judiciary Committee on Constitutional Implications of Statutes Penalizing Support to Terrorist Organizations, May 5, 2004
Testified before Subcommittee on the Constitution, Federalism, and Property Rights of the Senate Judiciary Committee on Civil Liberties and Anti-Terrorism Legislation, October 3, 2001
Testified before House Judiciary Committee on Secret Evidence in Immigration Proceedings, May 23, 2000
Testified before Subcommittee on Immigration and Claims of the House Judiciary Committee, on Secret Evidence in Immigration Proceedings, February 10, 2000
Testified before Subcommittee on National Economic Growth, Natural Resources, and Regulatory Affairs of House Committee on Government Reform and Oversight, on Constitutionality of "Stop Taxpayer Funded Political Advocacy" Bill, August 2, 1995
Testified before Senate Subcommittee on Terrorism, Technology and Government of Senate Judiciary Committee, on Constitutionality of Counterterrorism Legislation, May 4, 1995
Testified before House Crime and Criminal Justice Subcommittee of House Judiciary Committee on Freedom of Access to Clinics Bill, June 10, 1993
Provided written testimony to House Crime and Criminal Justice Subcommittee of House Judiciary Committee on Constitutionality of Hate Crime Enhancement Legislation, Summer 1992
Testified before Senate Labor Committee on Title X Restrictions on Family Planning Counseling, May 15, 1991

Center for Constitutional Rights, New York, New York, 1996-2013
Police Foundation, Washington, DC, 2000-2013
Constitutional Project, Liberty and Security Initiative, Co-Chair, 2001-present
Human Rights Watch Advisory Committee, Americas Project, 2003-07
Bill of Rights Defense Committee, Board of Advisors, 2004-present
District of Columbia Prisoners’ Legal Services, Inc., Washington, DC, 1997-2001
American Bar Association, Commission on Immigration, 2003-2004
Free Expression Policy Project, Advisory Committee, 2003-present
American Bar Association, Standing Committee on Law and National Security, 2006-2008

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