Thank you, General Rives. I would like to commend you for holding this Leadership Summit, and to thank you for inviting me to join you today.
As many of you know, my own experiences in the Air Force date back to when I was an 18-year-old Airman First Class stationed at Fort Yukon Air Station, Alaska. That experience, as well as my two years as a cadet at the Air Force Academy, left me with some appreciation for the work that you, and all of your colleagues in our armed services, do every day. And as a lawyer, I admire the work done by the JAG Corps in particular. Thank you for all you do to keep my family, and all of America, safe.
The theme of this conference, Teams Within Teams, is a fitting one for the work we do, and the way in which we do it. The Department of Justice and the Department of Defense are, of course, key players on the President's team in our global War on Terror. And in smaller teams every day we support and rely on each other.
For example, we all know that the military cannot win this war without the service of the Guard and Reserves. More than a thousand DOJ employees took military leave last year, a number of whom are in the audience today, and I am extremely proud and supportive of their sacrifice. And as Attorney General I am also responsible for enforcing the Uniformed Services Employment and Reemployment Rights Act, or USERRA. DOJ investigates, mediates, and, if necessary, litigates on behalf of citizen soldiers to preserve their employment rights.
In one recent USERRA case, the Department won a consent decree from an employer who terminated a service man named Richard White on the very same day he told his boss he was being called to active duty and deployed to Iraq. The consent decree requires the employer to pay back wages to Mr. White.
What leads an employer to treat a soldier like an inconvenience is something for a higher power to judge. But here on earth, we have USERRA, and we’ll use it for Richard White, and for soldiers like him, as often as is necessary.
There are many other ways in which the Department of Justice directly supports the Department of Defense. Our new National Security Division works closely with DOD on counterterrorism and counterintelligence investigations and prosecutions including those held at Guantanamo and subject to military commissions. Our civil litigators are defending more than 200 cases pending in federal courts related to detainees, including habeas petitions, FOIA lawsuits, and tort claims.
The Solicitor General’s office represents DOD in a wide range of matters before the Supreme Court. The Office of Legal Counsel helps interpret statutes and Executive Orders for DOD. The FBI is helping to investigate and disrupt potential attacks on military personnel around the world, and to make use of valuable intelligence the military collects on the battlefield. These are but a few examples.
I have also had the opportunity as Attorney General to travel around the world to see Justice, Defense, and other U.S. Government personnel in action. In August I was able to travel to Doha, Qatar, and see firsthand at Al Udeid Air Base the invaluable support the JAG Corps is providing to our men and women on the battlefield. I spoke with the CENTAF Commander, Lieutenant General North, and he told me, "My lawyers are indispensable. They help us fight and win wars."
I was particularly impressed by the role the JAGs played in the Combined Air Operations Center. There I witnessed real-world examples of how JAGs are involved in the targeting process; providing advice to the commander on the legality of planned operations under the law of armed conflict and the applicable rules of engagement. I saw how lawyers work with aviators and weaponeers to identify and analyze potential targets, assess potential collateral damage, and recommend courses of action in a time-sensitive, high-stakes environment.
I toured the 379th Air Wing, had lunch with the Staff Judge Advocate and other lawyers there, and learned more about how they support the mission of our soldiers on the front lines. I met with the CENTCOM Commander, General Abizaid, and discussed the importance of the rule of law in his Area of Operations, and the important role JAGs play in combat operations.
Also in August I had an opportunity to visit Baghdad for the second time. I saw how Department of Justice and DOD personnel are working with Iraqi officials to rebuild the country’s legal and law enforcement infrastructure. I visited the courthouse of the Iraqi High Tribunal and learned more about how we are working together to help the Iraqis prosecute Saddam Hussein and others who have committed atrocities against Iraqi citizens.
The President has made clear that our mission in Iraq and Afghanistan is nothing less than the establishment of the rule of law. The stakes are the highest, and your role is vital.
But the atrocities of September 11th made clear that we must use every instrument of national power to wage the War on Terror. The tools of law enforcement are often critical in protecting our citizens. But any thought that al Qaeda’s campaign of global terrorism presented merely a law enforcement dilemma was laid to rest five years ago.
When our enemies are willing to sacrifice their own lives to attack us, when their cause is nothing less than a return to the Dark Ages, and when the cost of each tactical success for the enemy is measured in the hundreds and thousands of innocent lives lost, then we face something fundamentally different from crime—we are at war. Every resource of our Nation, including the military and the intelligence services, must be directed at preventing future attacks before they occur.
Over the past five years, the United States and its allies can point to a number of successes on that front. Our intelligence-gathering efforts were instrumental in capturing dozens of Osama bin Laden’s closest henchmen, including the mastermind of the 9/11 attacks, Khalid Sheikh Mohammed, as well as Abu Zubaydah and Ramzi bin al Shibh. And the capture of those terrorists has led to actionable intelligence that has disrupted many other terrorist plots.
These successes, and the vigorous prosecution of the War on Terror, have undoubtedly made us safer, but we are not yet safe. Our enemy is patient and smart. While our successes have weakened and fractured al Qaeda, they have also forced our enemies to adapt. And so we continue to work with our allies around the globe to identify new ways to contain and combat the ever-changing threat of terrorism.
Because we are at war, we must govern our conduct by the law of war. And we must acknowledge that some of the limitations of the civilian justice system simply do not hold.
In order to defend the security of our citizens, we must have the ability
*to detain terrorists and remove them from the battlefield;
*to collect from them the vital intelligence that enables us to capture their associates and break-up future plots;
*and to create effective and fair procedures that will allow us to prosecute and punish captured terrorists for their war crimes.
The legal doctrines directed at achieving these ends are not the same as those we would employ during peacetime. The Supreme Court has recognized this in several of its decisions, including its recent Hamdan decision. And Congress has endorsed this view with the Military Commissions Act of 2006, which the President signed into law last week. The successful implementation of this Act is one of the most important challenges we will face together going forward.
As you know, the military commissions created by this legislation have been the subject of extensive debate, inside and outside the Administration. I personally met with the service Judge Advocate Generals twice on this topic to get the benefit of their input and expertise. Members of my Department also consulted with the JAG Corps on many occasions. The input of the JAGs was important in creating an effective system of justice for terrorists, and much of what I heard was incorporated into the final product, such as the decision to use the Uniform Code of Military Justice as a model for the military commissions.
This new law provides for full and fair military trials of captured terrorists; reinforces and clarifies our obligations under the Geneva Conventions; and buttresses our ability to gather vital intelligence to disrupt future terrorist attacks.
For hundreds of years, the United States and other nations have used military commissions—not civilian courts and not courts-martial—to try unlawful enemy combatants. Military necessity does not permit the strict application of all court-martial procedures, and of course, there are important differences between the procedures appropriate for trying our service members and those appropriate for trying the terrorists they fight against.
For instance, courts-martial, like the civilian justice system, provide for strict rules governing the use of hearsay and the collection of evidence. But many witnesses before the commissions are likely to be foreign nationals not amenable to process, and others may be unavailable because of military necessity, injury, or death. And the United States military cannot be expected to leave the battlefield to gather evidence like police officers in the course of fighting the enemy.
Military commissions are both necessary and appropriate in prosecuting unlawful enemy combatants. Let me emphasize, however, that they are also venues in which the accused will receive a full and fair trial. The procedures for these commissions, like those of international war crimes tribunals, are adapted to wartime circumstances. But they contain all of the procedural protections that we regard as fundamental:
*trial before an impartial military judge
*with a defense counsel drawn from the JAG Corps
*and the presumption of innocence unless proven guilty by competent evidence beyond a reasonable doubt.
The Military Commissions Act entrusts the JAG Corps with serving as the principal prosecution and defense counsel in these critically important trials. And, as your partner, the Department of Justice will continue to rely upon your professionalism and expertise in these terror trials.
Though our enemy shows nothing but contempt for the law of war, and the standards of civilized nations, we provide him with these protections because they are consistent with the values of the United States. These values are among the many hallmarks of civilization that separate us from them.
While it is rooted in the traditions of the law of war, the Military Commissions Act gives individuals detained as enemy combatants at Guantanamo Bay greater legal rights than are provided to lawful prisoners of war under the Geneva Conventions. The new law, consistent with history, makes clear that alien enemy combatants may not file habeas corpus petitions in the civilian courts. Yet the United States provides every detainee at Guantanamo Bay the opportunity to challenge his detention not merely before a military tribunal, but also with an unprecedented appeal to our own domestic courts.
The Act also contains important provisions to reinforce our compliance with the Geneva Conventions, and to clarify for U.S. personnel their international obligations. For instance, interrogations of prisoners have proven to be among the most vital sources of intelligence in the War on Terror, and they have saved the lives of innocent civilians in the United States and around the world. These interrogations employ tough techniques, but the techniques are safe, consistent with our values, and have been carefully reviewed to ensure compliance with the law.
The Act buttresses the President’s authority under our Constitution to interpret the meaning and applicability of the Geneva Conventions for the United States. It empowers the President to provide our personnel, and particularly our interrogators, with clear and authoritative guidelines for what they must do to comply with the Geneva Conventions.