David Cole: ACLU Job Is 'Dream Come True'

By Debra Bruno

August 18, 2016

David Cole, legal director, ACLU

David Cole, the new legal director of the American Civil Liberties Union, will begin his job next January, at almost the same time the United States inaugurates a new president.

But in the case of either a President Clinton or President Trump, the ACLU will have plenty of work to do, Cole says. The Georgetown University Law Center professor and civil rights advocate will take over for Steven Shapiro, who held the post for 25 years.

Cole sat down with the D.C. Bar to talk about the biggest challenges he sees facing the ACLU. Condensed remarks follow.

What are the biggest issues you see coming down the pike?

The need for serious criminal justice reform will be with us for the next generation. The ACLU has a campaign to reduce criminal sentences across the states. Also, I think because of all the attention the issue of policing has received in the past couple of years, that has already translated into some political movement and may well translate into political will to both reform police practices and possibly to reform constitutional law to better police the police.

The Fourth Amendment has been interpreted over the years in a way that has afforded police a great deal of discretion, and that discretion is often deployed against young black and Hispanic men in unfair ways. If the courts feel like the police are abusing the discretion to which they've been afforded, then they are more likely to adopt rules that are more restrictive.

What else?

Immigrants' rights are a big one. Immigration reform is still very necessary. In addition, just the basic due process rights of individuals when they are put through the immigration system. If you're a child or you're mentally ill, can you really have a meaningful hearing without a lawyer provided by the state? The consequences can be life or death—if it's an asylum case—and [people] can be separated from their family in deportation. There are also issues about detention. There ought to be strict limits on when and how long those in immigration proceedings can be detained.

Other issues?

Privacy and technology is a huge area. The technology is advancing in ways that are fantastic for Americans in terms of convenience. It's also true, however, that the police and the state can do lots of things much more efficiently than ever before, and that's not necessarily good.

In the old days if the police wanted to know where you were going on a 24–7 basis, they could deploy a team of people to follow you 24–7, but it's usually expensive to do and they're unlikely to do it except in the most extraordinary cases. Now all they need to do is go to your cellphone service provider and download the location data. And, at least under current doctrine, it does not require probable cause. It doesn't even require reasonable suspicion. The courts held that in the analog era, for information you share with a third party, you lose your expectation of privacy vis-a-vis the government getting it from that third party. And nowadays we share everything with a third party: Our Internet service provider, our search engine, our credit card company, our bank company, our phone company.

The courts can modify the rule to require showing of probable cause or a warrant, or Congress or state legislatures could enact statutes that say, before the police can get access to this information, they have to show a judge that they have reasonable grounds to suspect this individual. We all have an interest in law enforcement, we all have an interest in security, but we also have an interest in privacy and preserving a realm of the private in our own lives.

What about reproductive rights?

A continuing issue that got very strong re-affirmation this year is Whole Woman's Health care v. Hellerstedt in which the [U.S. Supreme] Court read the undue burden standard in a meaningful way that will allow courts to see through what are often put forth as women's health measures, but are in fact designed to put barriers in the way of women getting an abortion.

LGBT rights?

The ACLU is in support of extending equality regardless of one's sexual orientation or gender identity, and I think one of the big next steps will be getting recognition of the equality principle. It's the notion that discrimination on the basis of sex is problematic, a concept that was developed in the 1970s by the ACLU, principally by Ruth [Bader] Ginsberg, who was a lawyer for the ACLU, through a series of cases.

You've made a career of arguing before the Supreme Court. Will you continue in the new job?

I hope to. Obviously it's a big job. Steve Shapiro was an extraordinarily successful legal director for 25 years, beloved in the organization, and what he did was help other lawyers do their best. He played a very active role—and I will, too—in anything that the ACLU has that goes to the Supreme Court. It's assuring that the ACLU speaks with one voice. A second important part of the job is just engaging with lawyers on difficult questions in particular cases. You're not coming in and taking over the case;you're providing advice and a sounding board to talk through issues that arise.

Will you continue to teach?

I'm taking a leave. I can't do everything.

How are you and Steve Shapiro different?

Steve did not do the kind of writing and public speaking that I've been doing for the last 25 years and will continue to do. So that part of being a spokesperson or being an advocate for civil rights and civil liberties in the broader sense—outside the courts but in the forum of public discourse—that's something that I will continue to do. But I haven't been in the job yet. What Steve did, people were very happy with, so I want to make sure I can continue that, and if I can also do some litigation and also be a public advocate, all the better.

Lately there have been more calls for civility in politics and in public discourse. What does the ACLU say about that?

If what that translates into are formal efforts by states or state institutions to enforce civility through regulations such as hate speech laws, the ACLU has challenged as being inconsistent with the First Amendment and the Supreme Court has said are inconsistent with the First Amendment.

Why did you decide to take this job?

I think it's an extraordinary organization. My latest book is called Engines of Liberty: The Power of Citizen Activists to Make Constitutional Law. It's an argument that constitutional law does not develop and change because lawyers make clever arguments in the Supreme Court and the justices change the law. Rather, when you look at areas where constitutional law reform has worked, what you see are the organized efforts of institutions, of civil society groups, of associations of citizens, who come together around a particular constitutional vision and then work over the long haul to make change possible.

The ACLU is one of the civil society organizations that have played a key role in developing and changing constitutional law. I'm delighted to be now engaging with one of the most effective organizations in the country on that very enterprise. It's a dream come true.

Will the outcome of the presidential race affect what you do?

The national security, technology, and law enforcement questions have continued under President Obama, they will continue under a [new president]. There's a pressing need to respond to the risk of terrorism, there's a vast new technology, there's an incentive for government to use that as broadly as possible and it impinges on people's rights and liberties. There are lots of opportunities if Clinton is elected and lots of challenges if Donald Trump is elected. Either way, the ACLU will be busy.

Debra Bruno is a freelance journalist who writes for the Wall Street Journal, the Washington Post, and Washingtonian Magazine. She lived in China for three years and has worked at Legal Times, Roll Call, and other publications.