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On the Record

The Rule of Law and Terrorism: The Critical Implications of a New National Debate

Larry D. Thompson

It was a distinct honor and privilege to serve the Department of Justice for almost two years. By the way, my two years must have been dog years because it feels like I was at Justice for at least 6 years.

But my experience in the Department was in many ways very satisfying. I served during some truly historic times as the Department had to play a critical role in dealing with the terrorist attacks of 9-11 and take lead in helping to restore our financial markets following the spate of corporate scandals that started with the Enron bankruptcy. As a former prosecutor and white-collar defense lawyer, the corporate fraud work was near and dear to my heart. I believe the Department’s vigorous criminal enforcement in the corporate and financial areas has played a critical role in our market economy and perhaps helped stave off a wave of potentially unnecessary and unhelpful regulation.

But it was the work on the terrorism front that I found special and want to talk to you about tonight. The reason I want to talk to this distinguished audience about terrorism, is that I have recently heard some people whose judgment and balance I respect very much question the government’s antiterrorism efforts and question the relatively new authorities given the government under The PATRIOT Act.

Now let me share with you something I said on this subject before I left government. I told the Ninth Circuit Judicial Conference this year that the government’s authorities under which it deals 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 this 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. Justice Barak left me with a copy of a 1999 decision of the Israeli Supreme Court 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 investigations 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:

Author

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Larry D. Thompson

Senior Fellow, Economic Studies and Governance Studies, Brookings; Former Deputy Attorney General (2001-2003)

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. I referred to them often as we at the Department tried to do what we had to do to keep us safe.

This all is a good preclude to why I want to talk to you about terrorism. As a leader in the Department of Justice, I came to realize that the country’s success in fighting the threat of terrorism would increasingly depend on public confidence that the government can ensure the fair and impartial administration of justice for all Americans while carrying out its essential national security and public safety efforts. This is why the concerns I mentioned deserve our attention.

But the level of discussion and debate about the government’s antiterrorism efforts is at the extremes. Some view the government’s techniques and authorities as unnecessarily authoritarian. While others view those who have concerns as uninformed and willing to unnecessarily sacrifice the country’s safety. Much of the debate is shrill and ill-informed on both sides.

This is truly unfortunate, and certainly does not foster the needed public confidence. By necessity, I believe, some of the government’s efforts have been aggressive. In dealing with terrorism, the department’s focus could no longer be on just investigation and prosecution. The department also had to be concerned about prevention and disruption. There has been an increased use of material witness warrants in terrorism cases. There has been the voluntary interviews of certain aliens. The president has designated three persons who are U. S. citizens as enemy combatants.

And there is another antiterrorism measure I would like to single out because of how it fits into the public debate about the government’s anti-terrorism efforts. The department has increased the availability of searches and electronic surveillance under The Foreign Intelligence Surveillance Act. In doing so, the department issued new directives that have fostered cooperation among national security and law enforcement personnel. To me, this means that the department undertook necessary measures that will allow intelligence and law enforcement officials to “connect the dots” in terrorism investigations.

The department’s authority to undertake these important efforts was derived under Section 218 of the PATRIOT Act and that particular provision will “sunset” or cease to be in effect on December 31, 2005. In fact, sixteen provisions of the PATRIOT Act will sunset in 2005.

Now, I obviously strongly believe that this provision is important to our success in dealing with terrorism. But what I believe is not the point. The point is that it is vitally important that the country have a reasoned, dispassionate, and informed debate about the legal tools and measures necessary in dealing with terrorism. This is the only way we can achieve the public confidence which I believe is necessary if our efforts are to be successful. And we certainly cannot afford to allow the provisions of the PATRIOT Act, like Section 218, to sunset without the kind of reasoned and careful national discussion I am talking about. Too much is at stake.

I have a modest proposal. This discussion or review of the government’s antiterrorism authorities, I believe, should be done outside the partisan wrangling of Congress and outside the unhelpful influence of interest groups.

We should consider establishing, either a congressional or presidential bipartisan commission to review and report on the sunsetting of provisions of the PATRIOT Act. Such a commission should consist of respected and balanced constitutional scholars and legal practitioners.

I know commissions have, in the past, been misused. For example, they have been used to shield Congress or the Executive Branch from having to make difficult decisions. But, perhaps, in this instance, a review commission, with an appropriately distinguished membership, will allow us to take one small but very important step toward a reasoned, dispassionate and informed national discussion about anti-terrorism efforts.

I have had a first-hand positive experience with such a commission. In 2000, I participated in what was called The Judicial Review Commission on Foreign Asset Control. It was a bipartisan congressional commission. The primary mandate of the commission was to review the constitutionality of the Foreign Narcotics Kingpin Designation Act’s preclusion of judicial review of decisions by the government. After assembling a staff, the commission engaged in informed fact finding, held public hearings, and produced a report to Congress. The commission’s work, I believe, also formed a basis for legislative modification of the controversial preclusion of the judicial review provision of the Kingpin Act. The commission’s work received broad support from Democrats and Republicans, many career government officials, industry and even the American Civil Liberties Union.

If after a reasoned and informed debate, it becomes clear that public confidence in the government’s antiterrorism efforts would be substantially eroded if one more provision of the PATRIOT Act were not sunsetted, then fine. We as a country should then move on and do our best to ensure public safety.

Too much is at stake to proceed any other way in a country that is threatened by the horrors of terrorism but whose citizens—all of them—cherish The Rule of Law. Al Qaeda, for example, continues to pose a threat to our country, even though we have had some success against it. More than one-third of the Al Qaeda leadership identified before the Afghanistan war has been killed or captured. But, 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, because we do continue to face the prospect of mass murder of civilians on our soil by terrorists, we should not be complacent. We Americans have an absolute right to be safe on our own soil and free of terrorist attacks. The greatest danger we face as a nation in dealing with terrorism is that we take the very serious threats we face for granted, continue to be ill-informed, and do not try to secure public confidence in our anti-terrorism authorities that I believe are necessary to protect our homeland. I know that some of my efforts at Brookings will be devoted to trying to find ways to make our discussion and debate regarding our antiterrorism authorities and measures more informed and reasoned.

Now, I’ll try to answer any questions you may have. But remember that in doing so, I’ll be guided by what a great lawyer, Emory Buckner, once said. Buckner served as U.S. Attorney for the Southern District of New York from 1925 to 1927. He said the two most useful things a lawyer can say is “I don’t know” when he or she does not know the answer, and “I admit” when a mistake is made or a persuasive fact presented against a position you have taken.

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.

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