#03-15-02: FINAL Speech* of Deputy Attorney General LARRY D. THOMPSON at the American College of Trial Lawyers Friday

FINAL Speech* of Deputy Attorney General LARRY D. THOMPSON at the American College of Trial Lawyers Friday - March 15, 2002 INTRODUCTION/NEW PARADIGM I am honored to be invited to address this distinguished group at a time when lawyers and the legal process have become critical players in our national effort to defeat terrorism. Since September 11, I still hear a number of people say that we are having trouble getting back to normal; many find it difficult to get in an acceptable routine. But I have noticed something remarkably normal - and quintessentially American - in our common reaction to this great tragedy. I'm sure you have noticed it too. It is our SPIRIT. We have all pulled together to support each other; to preserve our way of life; and to rise to the challenges that this new struggle has thrust upon us. People from all over have called and/or e-mailed - volunteering to do whatever they can. What a tribute to our country! There is a common sense of purpose - that we as a nation will prevail against terrorism and we do face a challenge. We have not been hit again; BUT threats still exist; they are real; terrorists are still plotting and attempting to commit acts of mass murder against innocent Americans. The events of 9/11 have had a transforming effect on DOJ. Personal transforming effect - this is as righteous of a cause or case as I have ever worked on. Think about this: The potential loss of civilian life by mass murder, by a foreign enemy, on American soil is unprecedented. The overriding imperative of DOJ is to disrupt and prevent terrorism / a little like a cop on the beat / save lives. Most essential function of any government is to secure the safety of our fellow citizens. Attorney General Ashcroft has given strict instructions to investigators and prosecutors: Make pertinent information available to appropriate officials-if sharing information can disrupt or prevent a terrorist attack. Even if it means compromising potential criminal prosecution. IN essence, there is a new challenge at DOJ and a new paradigm to meet the challenge. The Justice Department has undertaken several new efforts in our fight against terrorism. First, we have established special task forces nationwide to initiate and coordinate swift preemptive actions by federal, state, and local law enforcement. Second, we have substantially improved coordination between the FBI, INS, and our intelligence agencies. Third, we are ensuring that the names of foreign nationals seeking entry to the United States are checked against law enforcement and intelligence databases for potential indications of terrorist associations or activities. Fourth, we are detaining foreign nationals with suspected links to terrorist organizations. Fifth, we are conducting voluntary interviews with several thousand additional foreign nationals to gain information about potential terrorist operations in the United States. Sixth, we are intensifying efforts to enforce judicial orders of deportation against fugitive aliens from certain countries. Finally, we are reexamining and revising administrative regulations where appropriate to be more aggressive in investigating the threat of terrorism. CONCERNS / BALANCED MEASURES Americans before us have gone to war many times - and spent untold blood and treasure to secure the liberties that we hold dear - but, as I said, we are the first generation of Americans to confront the mass murder of civilians by a foreign enemy on our own soil. Our founding fathers were wise in many ways, not the least of which was providing us with a legal framework resilient enough to wield against terrorism, while respecting the civil rights that the Constitution was designed to defend. As Alexander Hamilton wrote at the dawn of our republic, "The circumstances that endanger the safety of nations are infinite, and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed. This power ought to be coextensive with all the possible combinations of such circumstances; and ought to be under the direction of the same councils which are appointed to preside over the common defense." History has proven Hamilton right, time and again. Each major conflict in which our country has fought has required strong wartime legal measures to secure the homefront. Indeed, many of our most ardent champions of liberty have imposed strictures many times more constraining than those now in place. During the Civil War, President Lincoln suspended habeas corpus not only in the war zone, but behind the lines as well, detaining literally thousands of citizens for suspected anti-Union activities. During World War Two, President Roosevelt ordered the detention of thousands of American citizens of Japanese ancestry. And throughout our history, from the Revolution through the Second World War, military commissions have repeatedly tried unlawful combatants such as spies and saboteurs - including American citizens - many of whom were executed. I am not endorsing these measures nor defending them. I just note that they occurred. As a public official - and as an attorney who, for many years, represented criminal defendants - I share the concern that the struggle against terrorism not change the essential character of our nation. But nothing in our program that I have outlined for you threatens our Constitutional safeguards in any way. In fact, far from it. Despite the gravity of the terrorist attacks and the threat of future attacks, all of the measures that we have brought to bear are arrived at openly in the sunlight of public attention. All of the electronic surveillance techniques authorized by the USA PATRIOT Act and all of the Special Administrative Measures (or "SAMs") for the potential monitoring of prisoners' communications with their attorneys are subject to judicial review. In the sober light of history, our current measures - effective as they are - are open and moderate, and certainly not nearly as restrictive as prior generations' wartime responses. And this is true despite that our own soil has become a battleground to an extent not imagined since the Civil War. Indeed, we recognize that the Justice Department's success in defeating terrorism depends on public confidence that we can ensure fair and impartial administration of justice for all Americans while carrying out our essential national security mission. It is no coincidence that our very open, democratic and just society - whose hallmark is our concern for civil rights - that has made us the terrorists' target. Our civilization's freedom is grounded in the rule of law. Our freedoms, our laws are the envy of the world and the perennial winner in the global marketplace of values and ideas. It is precisely because the terrorists' ideology cannot compete in the open marketplace that they have turned to violence and horror. They attempt to achieve through mass murder what they will never be able to accomplish in a free exchange of ideas: to subvert our freedoms, freedoms for which millions of Americans have strained and sacrificed. We are certainly not the first nation to be assailed by terrorists bent on its destruction.¹ Although Israel has been the victim of repeated terrorist assaults, the Israeli Supreme Court has prohibited the use of "moderate physical pressure" by its investigators. In doing so, the Israeli court recognized a principal that applies equally to our own struggle: "This is the destiny of democracy, as not all means are acceptable to it, and not all practices employed by its enemies are open before it. Although a democracy must often fight with one hand tied behind its back, it nonetheless has the upper hand. Preserving the Rule of Law and recognition of an individual's liberty constitutes an important component in its understanding of security. At the end of the day, they strengthen its spirit and [add to] its strength and allow it to overcome its difficulties." This same reverence for civil rights inspired the Attorney General immediately after the terrorist attacks to challenge all of us in the Justice Department to "think outside the box" in fighting terrorism, but caution us: "Don't think outside the Constitution." We also take to heart then-Attorney General Robert Jackson's cautionary admonition that government lawyers exercise their tremendous power in ways that are "dispassionate, reasonable and just." That said, we are duty bound to zealously represent the United States "with earnestness and vigor" and to obtain justice through every constitutional means at our disposal. This is the way I represented clients in private practice. And this is the way I believe I should represent the public interest. The initiatives I have outlined - to borrow the Supreme Court's phrase from Berger v. United States - strike "hard" blows against terrorism, not "foul" ones. They are aggressive - and we must be aggressive in confronting a threat of this magnitude. Yet, these measures are balanced and in all cases subject to judicial review. They do not change the essential character of the legal protections available to criminal defendants. RESPONSE TO HATE ATTACKS At the same time that the Department has shifted its focus to prevention and disruption of terrorist attacks, we have been vigilant in ensuring that the American public's sensitivities to the terrorist threat do not boil over in a way that results in discrimination or violence against our fellow Americans of Middle Eastern descent or who worship in the Muslim faith. Since September 11, the Department's Civil Rights Division, the Federal Bureau of Investigation, and United States Attorneys' Offices have investigated approximately 300 incidents involving violence or threats against Arab-Americans and other individuals perceived to be of Middle Eastern origin. Federal indictments have been brought in several cases, and federal assistance to state and local prosecutors has facilitated the prosecution of more than 60 additional cases. Just one example of our aggressive response to a hate crime precipitated by the events of September 11 occurred in Utah. Two days after the terrorist attacks in New York and Washington, an individual attempted to burn down a restaurant owned by a Pakistani-American family. The owners and patrons were inside the restaurant at the time. The perpetrator was federally charged and later pleaded guilty, admitting that his crime was "in retaliation" for the terrorist attacks. He was sentenced to four and a half years in prison. While we have aggressively pursued all such cases wherever they have occurred, as an American, I am pleased that such incidents of hate-motivated crime based on individuals' perceived Arab-American heritage have been extremely rare. CLOSING Our profession has contributed greatly to the welfare of this country and to its security in time of war. We have much to be proud of. But in practicing law, it is important to bear in mind as well the privileges --and obligations--of being a lawyer, and to cherish the blessings that flow from a system of government based on respect for individual rights rather than fanaticism, spiritual corruption, or rule by fiat. In this we are the bulwark of our society against terror. Again, I am grateful to you, my colleagues, among whom are several former partners and dear friends, for inviting me address this August group. You may be sure that when I return to Washington, I will rejoin thousands of devoted public servants who are continuing to work on your behalf to bring terrorists, other violent criminals, and lawbreakers of every stripe to justice. I believe we are on the right track, but we will not be complacent. As Will Rogers once said, "Even if you're on the right track, you'll get run over if you just sit there." And we will not just sit there. We will move aggressively to defeat terrorism wherever it exists and defend citizens' rights whenever they are threatened. I can assure you of that. Thank you. *NOTE: Mr. Thompson frequently speaks from notes and may depart from the speech as prepared. However, he stands behind the speech as presented in written format.
¹ Israeli Supreme Court decision of September 6, 1999 concerning the interrogation practices of the General Security Service (also known as "Shin Bet").