FINAL
Remarks* of Deputy Attorney General
Larry D. Thompson
National Black Prosecutors Association
Los Angeles, California
August 8, 2002
I want to thank you for the opportunity to address this distinguished group. It is particularly appropriate that our theme is "protecting our homeland with justice and fairness" - a phrase that really aptly describes my challenge in carrying out my responsibilities as Deputy Attorney General.
I am also grateful for the chance to reaffirm that as black prosecutors, I believe we are at the core of the African-American community's effort to protect the country from within and without, for the benefit of all Americans.
I would like to speak with you about some of our concerns in the Justice Department as we advance on the legal front in the war against terrorism.
I would also like speak to an issue that confronts us as black prosecutors: debunking the perverse notion popular in some circles that somehow one cannot both represent the government and represent the African-American community.
Staying on top of everything going on at the Justice Department is accurately compared to trying to drink from a fire hose. My morning starts out bright and early with briefings from the CIA and the FBI. They try to give us a full picture of all the emerging threats to our country. I am frequently called upon to review and authorize applications for warrants to engage in surveillance in aid of counter-terrorism and counter-intelligence efforts. I also chair the National Security Coordination Counsel, which includes the Director of the FBI, the INS Commissioner and other senior Department leaders to help us marshal our wide-ranging resources to develop, direct and execute our counter-terrorism strategy to eliminate terrorist threats before they develop into terrorist acts.
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 we live in historic times. We are the first generation of Americans to confront the mass murder of civilians by a foreign enemy on our own soil. September 11, 2001 was not the beginning of America's war against terrorism, but the attacks that day in New York and Washington did galvanize the country and bring into sharp focus our goals.
We are fighting a tenacious and devious enemy who seeks to use our own freedoms against us. That fact has had far-reaching consequences for the law enforcement role in this war. We have had to use every weapon in our legal arsenal to prevent and disrupt future terrorist attacks - including the aggressive use of detention and surveillance.
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 I want to assure you that none of the steps that we at the Justice Department are taking threatens our constitution. All of the measures that we are bringing to bear are arrived at openly, in the sunlight of public attention, and are subject to judicial review.
When you think about it, it is our very open, democratic and just society - whose hallmark is our concern for civil rights - that has made us the terrorists' target.
Our freedoms 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. Others who have responded to this challenge can help guide us to strike the right balance among competing liberty and security concerns.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."
ENEMY COMBATANTS
We are rich nation that has enjoyed many luxuries, not the least of which has been the peace that has prevailed within our borders for four generations even as the combat flared and smoldered abroad. In this current war, that has brought the fighting and dying home to our cities, we have had to think carefully through the treatment of captured enemy combatants - and to think especially hard about u.s. citizens who have taken up arms against their own country.
It is a universal principle of warfare that enemy combatants may be detained outside the criminal justice system for the duration of hostilities. In every war since the founding of the republic, the united states has detained, without legal recourse, captured enemy combatants - sometimes including u.s. citizens fighting for the enemy.
We need to detain enemy combatants because it would be suicidal not to - they could otherwise resume their belligerent acts - and in order to gather information about the enemy and his plans. Such detention is entirely distinct from criminal punishment. It is a military imperative and an integral part of the President's constitutional duty to defend the United States.
BLACKS AS PROSECUTORS
As we reflect on the conduct of this war and our role in it as prosecutors, it is evident that African-Americans share the same aspirations to liberty and the same threat of harm as all of our countrymen. Now more than ever, these principles of liberty serve as the bulwark of our nation against the assaults of terrorism. As our country wages war against a tenacious and ruthless enemy, we stand together first as simply Americans.
When I look around the administration in Washington, I find myself but one of a sizable - and influential - number of African-Americans in positions of authority, especially in our nation's fight against terrorism.
I believe all of you know 2 of them: Secretary of State Colin Powell and National Security Advisor Dr. Condoleezza Rice -- two of President Bush's closest advisors.
But, there are others:
There is Ambassador Frank Taylor, who is in charge of the State Department's counter-terrorism efforts. Before we launched the military offensive against the Taliban, Amb. Taylor traveled the world making the case against Bin Laden.
There is also Deputy Secretary of Health and Human Services, Claude Allen. Mr. Allen is responsible for our country's war against chemical and biological terrorism. He is coordinating our country's medical and scientific efforts against the anthrax attack we experienced some time ago.
Within the Justice Department, the Assistant Attorneys General in charge of Civil Rights and Antitrust are also both African-Americans, as well as being distinguished lawyers. They direct policy on many of the major matters affecting our economy and our liberties.
My friend and colleague Alphonso Jackson, the Deputy Secretary of the Department of Housing and Urban Development is an influential advocate on a range of issues that effect cities across the country and a close advisor to the President.
As much as we have in common as Americans, we in the black community enjoy the same right as other Americans to have individual views, something black prosecutors must have. As African-Americans, we know better than anyone that we are not a monolithic people. And we should not allow anyone to try to put all of our thoughts into one column or fit all of our dreams into one box.
Remember what Dr. Martin Luther King once said:
"Many people fear nothing more terribly than to take a position which stands out sharply and clearly from the prevailing opinion."
It is in this context that I want to address the criticism some have leveled: that blacks should never be prosecutors because we cannot single-handedly defeat racism present in the criminal justice system. We all know from our personal experience the tensions that arise where a significant majority of prosecutors are white, while a substantial number of criminal defendants are minorities.
One of the things that was striking to me when I was in private practice was that, as I had an opportunity to litigate cases against each and every litigating division of the Department of Justice, I seldom saw a minority attorney representing the government across the negotiating table or in federal court. That was puzzling to me since I knew there are talented minority attorneys all across the country.
As Deputy Attorney General, one of my priorities is working on diversifying the ranks of the Department. Attorney General Ashcroft and I are dedicated to making the Department's diversity plan work in as meaningful and effective a way as possible. We plan to do this, not only for the legal divisions at Justice, but also for the FBI, DEA, U.S. Marshals and all other agencies at the Department. In fact, for those of you here today who are law students or judicial clerks, I invite you to apply to join us at the Department of justice through the Attorney General's Honors Program which brings new lawyers into the Department. Information about the program is on our web site and you can apply on-line.
Our attempt to improve the diversity of the Department of Justice reflects our commitment to recognize the valuable role that all segments of our society should play in enforcing our society's laws. If all Americans are to have confidence in the Justice Department, it is important that the Department be as diverse as it possibly can. Improving diversity is one of the attorney general's top ten initiatives. And blacks should serve as prosecutors because we can add our insight and, most importantly, our discretion to the criminal justice system and help ameliorate its flaws.
As Professor Randall Kennedy has pointed out2, those who attack the idea of blacks as prosecutors are preying on the unfounded suspicion that blacks can only advance through "the opportunism or the indulgence of white folks or by serving as a front for white puppeteers." This suspicion "robs black people of authority over their own choices, responsibilities and achievements."
As the sometimes-described liberal syndicated columnist Clarence Page3 put it in defending one of our colleagues who was prosecuting a black man who had killed another black man:
"When people say that good men like [this prosecutor] are traitors to the black community, I wonder which 'community they are talking about. It is a myth - a dangerous racist myth - that black people are soft on crime. Quite the opposite, black people are, on the whole, quite tough on crime. After all, they are more likely to be its victims. Just ask the young black males who have been swelling the rolls in prisons in recent years. Most were sent there by black jurors."
CONCLUSION
I want to thank you for the contributions that each of you has made and give my encouragement to the work of this organization. I thank you for all that you have done and look forward to working with you as we use our professional skills to strengthen and improve our community and our country.
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.
*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").
2 Randall Kennedy, "Justice Thomas and Racial Loyalty," American Lawyer, Sept. 1998.
3 Clarence Page, "Black Prosecutors Need Backup In the Community," LA Times, Feb. 8, 1996, p. B9.