Terrorism and the U.S. Criminal Justice System

Thanks. It is good to be back in the private sector. And, tonight especially, it’s good to be back with friends and professional colleagues. I really appreciate the support and friendship of members of this organization during my tenure in government. Your notes, e-mails, and telephone messages were great and meant a lot to me — even if I could not reply to all of them.

After 2½ years in Washington, I really did not want to jump back into the fray and start practicing law right away. By the way, my 2½ years must have been dog years because it feels like I was at Justice for at least 6 years.

So now after practicing law for almost 30 years, I have the unlikely position and title as a scholar. I am a senior fellow at The Brookings Institution in Washington, DC. I have a six month commitment to Brookings. In January of next year, I plan to teach at the University of Georgia Law School for one semester. I’ve always enjoyed teaching, and I’m looking forward to my time on the University of Georgia campus. And, sometime in the spring of next year, I plan to return to what I really like and that is criminal defense work. I plan to take some indigent criminal cases in the State System. Of course, I cannot do any defense work in the Federal System for a while.

My experience in Washington was in many ways very satisfying. I served in the Department during historic times — as the country had to deal with the terrorist attacks of 9-11 and the spate of corporate scandals following the Enron Bankruptcy.

I did some very interesting things. I participated almost daily in our country’s national security plans. Following 9-11, I started and led our homeland security effort until Tom Ridge arrived and got started.

But it is the work on the terrorism front that I found special. There were daily CIA and FBI briefings. There were also high-level homeland security meetings regarding our national threat level. Trying to ensure the safety of our fellow citizens has been about as righteous of a cause as I have ever been involved with.

Now recently there has been a lot of controversy surrounding our counter-terrorism efforts — primarily associated with the Patriot Act. I’m not going to get into the Patriot Act debate here — but would like to share with you some of my observations and beliefs about what we need to do in our fight against terrorism while preserving the Rule of Law.

There are a number of terrorist organizations trying to do Americans in but Al Qaeda is the one we’ve had a lot of focus on. I believe it is very important for us to focus on what they have said they want to do to us.

In 1998 Osama bin Laden and ayman Al-Swahili issued a fatwa — declaring war on Americans. They wrote:

“The judgement to kill Americans and their allies, both civilian and military, is the individual duty of every Muslim able to do so, and in any country where it is possible. We, in the Name of God, call on every Muslim who believes in God and desires to be rewarded, to follow God’s order to kill Americans and plunder their wealth wherever and whenever they find it.”

We have had some success against Al Qaeda. More than one-third of the Al Qaeda leadership identified before the Afghanistan War has been killed or captured. But Al Qaeda continues to pose a threat to our country. George Tenet has testified before Congress that the CIA continues to receive information that Al Qaeda is dedicated to striking the U.S. Homeland again.

But terrorism is a very serious matter even without an attack on the U.S. Homeland. Last year, more than 600 people were killed in acts of terror — 200 people were killed in Al Qaeda related attacks alone. Nineteen were U.S. citizens.

So in the face of this threat — presented by Al Qaeda and other terrorist groups — I viewed my job as one where I should ensure that the Department took responsible, appropriate, and, yes, aggressive measures in its fight against terrorism. I believe I was duty bound to zealously protect the United States and to utilize every constitutional and legal means available to maintain the safety and security of our citizens. The Department’s focus could no longer be on just investigation and prosecution. The Department also had to be concerned about prevention and disruption.

I told the Ninth Circuit Judicial Conference this year that our authorities under which we deal with terrorism are not, and should not be, unbridled. There should be appropriate checks and balances to government power. The struggle against terrorism should not change the essential character of our great nation. We should never waiver from the principle that we are a country dedicated to the Rule of Law.

Shortly after the terrorist attacks of 9-11, I met with retired Justice Barak of the Supreme Court of Israel. It was a very profound experience. He left me with a copy of a 1999 decision of the Israeli Supreme dealing with the interrogation practices of The General Security Service — also known as “Shin Bet” — in using so-called “moderate physical pressure” in the interrogation of terrorism suspects. The Court noted in deciding to prohibit this practice:

“A Democratic freedom-loving society does not accept that investigators use any means for the purpose of uncovering the truth?At times, the price of truth is so high that a democratic society is not prepared to pay it.”

The Israeli Supreme Court’s conclusion in the case applies equally to our country:

“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.”

Wise and eloquent words. They were my guideposts as we tried to do what we had to do to keep us safe.

I mentioned this passage to a 38-year veteran of the Justice Department. He said to me, our adherence to principles like those articulated in the decision of the Israeli Supreme Court is why the Department is the Department of Justice rather than the Department of Federal Prosecutors.

I mentioned earlier the controversy surrounding the Patriot Act. I do believe I can say that whether you like the Patriot Act or think that its an unwarranted encroachment on our civil liberties – most Americans want this country to maintain the safety and security of its citizens from terrorist attacks.

As a leader in the Department of Justice, I came to realize that the country’s success in fighting terrorism would increasingly depend on public confidence that the government could ensure the fair and impartial administration of justice for all Americans while carrying out its essential and aggressive national security efforts.

This is very important. It is why we need, for example, an independent judiciary. But we also need a strong and effective criminal defense bar. As I told the National Association of Criminal Defense Lawyers last year, the work of the criminal defense bar is indispensable to our criminal justice system.

That is why I am proud to be returning to the criminal defense bar.

You know, I have often observed that prosecutors and criminal defense lawyers experience more civility towards each other than lawyers in civil cases. I believe this is because they both share a faith in the adversary system to provide the proper checks and balances and produce a just result.

I am very confident that our criminal justice system has remained strong in the face of the 9-11 terrorist attacks and that it is resilient enough to overcome any concern that some have — and I do criticize anyone for these concerns — that the Rule of Law will be diminished as the country’s legal system moves forward to address the problem of terrorism.

*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.