Remarks of Attorney General John Ashcroft
Eighth Circuit Judges Conference
August 7, 2002
(Note: The Attorney General Often Deviates from Prepared Remarks)
Throughout our history, there have been periods - such as now - when the most essential security of our nation is threatened. It is natural at a times like these - when government is exercising some of its broadest powers under the Constitution to protect our security - to recall Benjamin Franklin's now-famous caution that, quote, "they that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety."
Franklin's quotation is often answered with Justice Robert H. Jackson's admonition that the Constitution's Bill of Rights is not a "suicide pact" - that blind and unreasonable insistence on liberty will ultimately threaten the very existence of liberty.
There is an obvious tension between these two sentiments. On the one hand there is a legitimate concern that we not sacrifice those very freedoms that make us American in the name of protecting America. On the other hand, we cannot allow those who would destroy America use our liberties as weapons against us. In order for there to be liberty in America, there must be an America.
This tension has often been reconciled by what George Washington called "ordered liberty." British statesman Edmund Burke explained it as, "liberty connected with order; [liberty] that not only exists along with order and virtue, but which cannot exist at all without them."
Ordered liberty is not license. It is not, as Judge Learned Hand said, "the ruthless, the unbridled will." Learned Hand warned that, absent order, liberty becomes license, ultimately leading to the denial of liberty. In a world of unbridled license, the strong do what they will and the weak suffer what they must. Freedom to act according to one's will is lost to the infringement, by force if necessary, of the will of another.
Nor is ordered liberty a euphemism for Big Brother. A pervasive order in which security is guaranteed by a massive, invasive police power that prevents crime before it happens by monitoring everything its citizens say, do and think strangles freedom. In such a society, as Orwell observed, liberty dies.
Perhaps order and liberty are best understood not as competing concepts but as complimentary values. Each contributes to the stability and legitimacy of a constitutional democracy. To put it another, more colloquial way, order and liberty go together like love and marriage - you can't have one without the other.
Boston University Law Professor Randy Barnett has evoked the metaphor of a tall building - a skyscraper - to illustrate the mutually dependent relationship of liberty and order. Liberty permits thousands of people to congregate in the same space, but only with the order imposed by the structure of the building - its hallways and floors, elevators and partitions - are these thousands able to pursue their own interests without trampling on each other. Ordered liberty is the structure that, by directing and constraining the actions of individuals, allows us each the freedom to achieve the potential that is within us.
To illustrate the necessity of the structure of ordered liberty to the functioning of society, Professor Barnett, writing in 1998, suggested this eerily prophetic hypothetical: "Imagine being able to push a button and make the structure of the building instantly vanish. Thousands of persons would plunge to their deaths."
On September 11, as we know all too well, Osama bin Laden pushed that button, killing thousands of innocent civilians from around the world. This tragedy underscores the prescience of Professor Barnett's metaphor. Al Qaeda's attack was not merely an act of violence designed to extinguish American citizens, it was an attack intended to disrupt and to destroy our system of ordered liberty.
This is not garden-variety criminality. This is terrorism, which is far more dangerous. Unlike street crime, terrorism has a philosophic motive. The terrorist desires not simply to hurt individual Americans, but to transform America or destroy us if we will not accede to his will. Terrorists fear freedom. They seek to deny the freedom of choice so central to American democracy. They seek to suppress the free speech, the right of dissent, and the religious tolerance guaranteed by our First Amendment. They seek to subjugate women, while we work for legal equality for all human beings.
To achieve his ends, the terrorist employs means that are vastly different from the traditional criminal. As part of an international conspiracy of evil, the terrorist respects neither borders nor boundaries. The world is the terrorist's battleground - no country is immune from attack, and all innocent civilians are exposed to the threat of wanton violence and incapacitated by the fear of terror.
The terrorist uses violence to disrupt order, kills to foment fear and prevent our citizens from exercising their liberties. Because fear is the objective, the terrorist seeks large, highly public acts of violence. Unlike traditional criminals, who accept risks to themselves in the perpetration of their crimes, terrorists wantonly send their minions to their destruction - and laugh. Terrorists are at war with us - at war with the ordered liberty we champion and the values that undergird America. And the terrorists will continue until they change us, or we stop them.
And we will stop them. From the first, terrible hours of September 11, at the command of the President of the United States, we refocused the vast resources of the Department of Justice to confront terrorism. We have mounted a defense, not merely of our lives, but of the institutions that nurture and protect our liberty. The Department of Justice recognized immediately after September 11 that the unique threat of terrorism requires a fundamentally different approach to law enforcement.
The mission of the Department of Justice has been transformed from a focus on prosecution of illegal acts to a focus on the prevention of terrorist acts. Our most important objective is to save innocent lives from further acts of terrorism by identifying, disrupting, and dismantling terrorist networks. Like many Americans, I am concerned about the expansion of preventative law enforcement. That is why we have undertaken this challenge, mindful that we seek to secure liberty, not trade liberty for security. In each task that we confront, in each challenge we seek to overcome, I have charged Department of Justice officials to think outside the box - but never outside of the Constitution.
Our post-September 11 policies have been carefully crafted to prevent terrorist attacks while protecting the privacy and civil liberties of Americans. We have, for example, sought to close the technology gap between terrorists and law enforcement by updating the law. Congress passed the USA Patriot Act which allows us to monitor communications in the digital, as well as the analog world. I have also revised guidelines for FBI agents to allow them to conduct online searches on the same terms and conditions as the rest of the public. But with every reform, we have been careful not to alter the important, substantive legal predicates that exist to preserve the privacy of law abiding citizens.
We have also enhanced the capacity of law enforcement to gather and analyze intelligence on terrorist activity. The Patriot Act broadened our ability to share intelligence between and among government agencies. In the reorganization of the FBI, over 500 field agents will be shifted permanently to counter-terrorism. Authority to conduct terrorist investigations will be devolved to the field, while information analysis will be centralized. The scope of agents' investigative authority has been clarified for the first time in 25 years, both enhancing terrorist investigations but also reaffirming the freedom of law-abiding citizens from unnecessary governmental intrusion.
Finally, we are utilizing our prosecutorial discretion to the fullest extent in order to prevent suspected terrorists from fulfilling their plans. Each and every person detained arising from our investigation into 9/11 has been detained under the law, with an individualized predicate - a criminal charge, an immigration violation, or a judicially issued material witness warrant. We have not engaged, nor will we engage, in preventive detention.
In the almost eleven months since September 11, we have refocused our efforts, used updated law enforcement tools, and employed new authority under the law to prevent terrorism and defend our nation. We have done so with the constant reminder that it is liberty we are preserving - ordered liberty. We have acted with urgency, but not with haste. We have acted aggressively, but with scrupulous attention to the legal and constitutional safeguards of our freedom.
At the conclusion of World War II came the reckoning at Nuremberg. Supreme Court Justice Robert Jackson led the prosecution of 21 Nazi defendants for crimes against their countrymen, crimes against their neighbors, and crimes against humanity. All pleaded not guilty. Some claimed that they were merely following orders. Others disputed the jurisdiction of the court. But Jackson successfully argued their guilt with a sense of urgency borne of a civilization threatened by a new force for evil.
"The wrongs which we seek to condemn and punish have been so calculated, so malignant and so devastating," said Jackson, "that civilization cannot tolerate their being ignored because it cannot survive their being repeated."
It is now as it was then. A calculated, malignant and devastating evil has arisen in our world. Civilization cannot ignore the wrongs that have been done. America will not tolerate their being repeated.
Justice has a new mission, a new calling against an old evil. Thank you for your hard work. Thank you for your leadership. And God bless the United States of America.