Deputy Attorney General Larry D. Thompson
Speech* to the NACDL Mid-Winter Meeting
Wyndham Miami Beach Resort
Miami Beach, Florida
February 21, 2002
- INTRODUCTION/NEW PARADIGM
- It is a pleasure to be at this luncheon; to appear before so many lawyers I know and have worked with. And, it is a pleasure to appear before an organization in which I was a member and before which I spoke as a defense lawyer.
- As DAG, I usually talk about the work of DOJ but no discussion of the work of the Department can begin without talking about the terrible events of September 11 and the effect they had on the Department.
- Since September 11, I still hear a number of people say that we are having trouble getting back to normal; many find it difficult to get in an acceptable routine.
- But I have noticed something remarkably normal in our common reaction to this great tragedy.
- I'm sure you have noticed it too. It is our SPIRIT.
- We have all pulled together to support each other; to preserve our way of life.
- Private practitioners - members of this organization - called and/or e-mailed - volunteering to do whatever they can.
There is a common sense of purpose - that we as a nation will prevail against terrorism
- We have not been hit again; BUT threats still exist; they are real; terrorists are still plotting and attempting to commit acts of mass murder against innocent citizens.
Nevertheless, events of 9/11 have had a transforming effect on DOJ.
- Personal transforming effect - this is as righteous of a cause or case as I have ever worked on.
There is a great effort put into strengthening domestic security - the magnitude and intensity of which I have never seen.
Potential loss of civilian life by mass murder by a foreign enemy on American soil is unprecedented.
To be sure, DOJ continues to investigate crimes of 9/11 with an eye towards prosecution in appropriate cases.
But overriding imperative of DOJ is to disrupt and prevent terrorism / a little like a cop on the beat / save lives.
- Most essential function of any government is to secure the safety of fellow citizens.
Investigators and prosecutors are used to handling information / evidence in a certain way.
Attorney General Ashcroft has given strict instructions to investigators and prosecutors:
- Make pertinent information available to appropriate officials-if sharing information can disrupt or prevent a terrorist attack.
- Even if it means compromising potential criminal prosecution.
- IN essence, there is a new challenge at DOJ and a new paradigm to meet the challenge.
- In order to meet the challenge of disrupting and preventing terrorism, we must rapidly respond to terrorists threats and rapidly share and exchange information about terroristic activities.
To meet these challenges, the Justice Department has undertaken several new efforts in our fight against terrorism.
- First, we have established special task forces nationwide to initiate and coordinate swift preemptive actions and responses by federal, state, and local law enforcement.
- The federal government does not have enough eyes, ears and feet available.
Second, we have substantially improved coordination between the FBI, INS, and our intelligence agencies.
Third, we are ensuring that the names of foreign nationals seeking entry to the United States are checked against law enforcement and intelligence databases for potential indications of terrorist associations or activities:
- Foreign Terrorist Tracking Task Forces
- Student Visas.
Fourth, we are detaining foreign nationals with suspected links to terrorist organizations.
Fifth, we are conducting voluntary interviews with several thousand additional foreign nationals to gain information about potential terrorist operations in the United States.
Sixth, we are intensifying efforts to enforce judicial orders of deportation against fugitive aliens from certain countries.
Finally, we are reexamining and revising administrative regulations where appropriate to be more aggressive in investigating the threat of terrorism.
CONCERNS / BALANCED MEASURES
- It is no secret that criminal defense lawyers - including this organization - have raised some concerns over some of these measures.
- 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.
- In fact, in the hours after the terrorist attacks of September 11, the Attorney General challenged all of us in the Justice Department to "think outside the box" in fighting terrorism, but cautioned us: "Don't think outside the Constitution."
- We take to heart then-Attorney General Robert Jackson's caution that government lawyers exercise their tremendous power in ways that are "dispassionate, reasonable and just."
- As a long-time career employee of the office reminded me soon after I began this job, that this is the reason that we are the "Department of Justice" rather than the "Department of Federal Prosecutors."
- That said, we are duty bound to zealously represent the United States "with earnestness and vigor" and to obtain justice through every constitutional means at our disposal.
- This is the way I represented clients in private practice. And this is the way I believe I should represent the public interest.
The initiatives I have outlined - to borrow the Supreme Court's phrase from Berger v. United States - strike "hard" blows against terrorism, not "foul" ones. They are aggressive - and we must be aggressive in confronting a threat of this magnitude. yet, these measures are balanced and in all cases subject to judicial review. They do not change the essential character of the legal protections available to criminal defendants.
- We can discuss in detail a couple of our measures in this important fight.
- Detention of Aliens -- Let me address in particular, the concerns that have been expressed regarding the detention of foreign nationals and the possible monitoring of conversations between terrorist inmates and their attorneys.
- The detention of foreign individuals suspect of terrorist ties is consistent with applicable law and constitutional precedent. The detainees are either already wanted for crimes, or in violation of their immigration status, or have testimony material to the ongoing investigation.
- All detainees have the right to be represented by an attorney and to have their detention reviewed on legal grounds.
- POTENTIAL MONITORING OF COMMUNICATIONS BETWEEN INMATES AND ATTORNEYS
- Monitoring of communications between inmates and attorneys may occur only in those few, but critical, situations.
- Where the head of a law enforcement or intelligence agency certifies that reasonable suspicion exists to believe that the inmate may use those communications to further or facilitate terrorist acts. The Supreme Court has long held that such communications could not - in any case - be privileged.1
- The monitoring is not surreptitious
- it is conducted only after written notice to the inmate and the attorney.
The team monitoring the conversations is barred from any connection with the prosecution of that inmate.
Cannot, without court approval, use the information for purposes other than preventing a terrorist act.
These SAMS only apply to about 20 out of over 150,000 inmates in federal custody.
ROLE OF CRIMINAL DEFENSE ATTORNEY
- Having addressed the government's efforts in the fight against terrorism, let me now offer some observations about the role of criminal defense lawyers. As many of you know, you enjoy a special status in the criminal justice.
- I am proud of having been a member of the criminal defense bar -- indeed a member of this organization.
- I have shared the difficulties and frustrations inherent in what you do.
- But I also understand that your good and professional work is indispensable to our criminal justice system.
- IMPORTANT PROJECT - FBI REVIEW -- One of the most important things I have been asked to do is conduct a review of the FBI. I asked this organization to give us input into this important effort.
- I have observed that oftentimes prosecutors and criminal defense lawyers experience more civility with each other than lawyers in civil cases.
- I think this is because we share a faith in the adversary system to provide checks and balances and produce a just result.
- Within that adversary system, criminal defense lawyers can play an important role in what our nation faces today.
- In zealously representing your client's interests, you understand that it is often favorable for your client to convey information to the government at the earnest possible time.
- This sense of reality that a true professional criminal defense lawyer understands is especially important today. We certainly acknowledge these efforts and welcome them.
- Of course, all lawyers are ethically bound to reveal a client's plans to commit future criminal acts. In terrorist cases, the stakes are high. All of us do what we can in this struggle. I need to vigorously represent the public's interest within the bounds of the law. You need to zealously represent your clients' interest. But I believe that in doing so, you too can help in this real and important effort to prevent future terrorist attacks and the mass murder of our fellow citizens. We certainly need you to think about these things.
- I certainly appreciate your commitment to the criminal justice system. I also look forward to continued dialog with you, my former colleagues, on terrorism and other issues of mutual interest.
*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 E.g., United States v. Zolin, 491 U.S. 554, 562-63 (1989)