Remarks of Deputy Attorney General
Larry D. Thompson
National Asian Pacific American Bar Association
November 9, 2002
It is, as always, good to be back home in Atlanta, and it is an honor to have the opportunity to address this great group. Let me express my thanks, as well, for this invitation to speak as part of such an impressive program. Id like to focus briefly tonight on two topics that are central to my work at the Department: the ongoing war against terrorism and our comprehensive effort to attack corporate fraud. But in doing so, Id also like to mention or give you some observations about these historic times we live in and the rewards or satisfaction of public service and some issues facing our profession in our efforts to root out corporate fraud.
Turning first to the most urgent concern - the war that we are now fighting we would do well to recall the sacrifices that the preservation of country may require. We are rich nation that has enjoyed many luxuries, not the least of which has been the peace that has prevailed within our borders for four generations even as combat flared and smoldered abroad. In this current war, that has brought the fighting and dying home to our cities, we have had to think carefully through the treatment of captured enemy combatants and to think especially hard about U.S. citizens who have taken up arms against their own country.
These concerns lead me to often think about the larger values that we as a nation hold dear.
We are the keepers of the idea most cherished in America and most despised by our enemies: tolerance and inclusion. Throughout human history, wars of hatred have been waged against outsiders viewed as other people. But in the U.S., where we have drawn our population from every corner of the earth, we are other people.
Inclusiveness is a guiding principle of this Administration. In the Justice Department alone, the Attorney General and I have committed to maintaining the diverse blend of people that makes us an effective, inclusive agency. And it is worth noting that Asian Americans are playing a substantial role in these efforts.
Two of our most prominent U.S. Attorneys are Asian Americans: Debra Yang in Los Angeles and Carol Lam in San Diego. Both of them lead the Anti-Terrorism Task Forces in their districts to coordinate the investigation of terrorism and the dissemination of terrorist threat information. They are tough, seasoned prosecutors and they have the complete confidence of the Attorney General and myself.
In addition, Assistant Attorney General for the Office of Legal Policy Viet Dinh has been a leader in crafting our counter-terrorism policies and in drafting new legislation such as the USA Patriot Act. He also led the way in drafting the much needed revisions to the Attorney Generals Guidelines for Investigations and Undercover operations. Viet is smart, a tireless worker, and tremendously important to our efforts at Justice. I greatly admire him.
Back to enemy combatants and why we treat them as we do.
It is critical that we keep foremost in mind the scope of the terrorist threat. Since the terrorist attacks of September 2001, Americans both at home and abroad have continued to be threatened or killed by concerted terrorist actions: from the shoe-bomber to the murder of Daniel Pearl, to the recent assassinations of an American soldiers in Kuwait and the Philippines and of American tourists in Indonesia. We do well to remember that 10,000 men went through Al Qaedas training camps. This legion of hate has dispersed itself throughout the globe. Stamping it out will require vigorous, sustained effort -- likely for many years. We cannot afford a pause from caution or a holiday from vigilance. And it is with this backdrop that we consider enemy combatants.
It is a universal principle of warfare that enemy combatants may be detained outside the criminal justice system for the duration of hostilities. The key concept here: is outside the criminal justice system. We are really not talking about punishment. In every war since the founding of the Republic, the United States has detained, without legal recourse, captured enemy combatants sometimes including U.S. citizens fighting for the enemy.
We need to detain enemy combatants because it would be suicidal not to they could otherwise resume their belligerent acts and in order to gather information about the enemy and his plans. Such detention is entirely distinct from criminal punishment. It is a military imperative and an integral part of the presidents constitutional duty to defend the United States. Considering such important issues makes clear one thing: these indeed are historic times. We are the first generation of Americans to face the prospect of mass murder by a foreign enemy on American soil. As DOJ has moved to an emphasis in our counter-terrorism efforts to prevention saving American lives.
I get a great deal of satisfaction out of what I do. I never, ever worked on a more righteous cause or effort. I would encourage members of this great organization to consider public service, too. From my standpoint, the times I have been the happiest and most satisfied professionally, were when I took jobs because I felt the position was right for me at the time not because of the money.
We need you! You may need us! If the DOJ is going to continue to enjoy the confidence of all Americans, it will need to have as diverse an attorney workforce as possible.
Now, as we are all aware from the business scandals of the past months, attack from foreign terrorists is not the only threat to our nations well-being. Our financial markets have been shaken by a wave of criminal conduct at the highest levels in American corporations. The markets have lost trillions of dollars. While this conduct is shocking, it is not without precedent and the administration is taking swift and certain action to punish the wrongdoers and restore confidence to investors.
Several months ago, the President appointed me Chairman of the Corporate Fraud Task Force, an interagency group that represents the vast law enforcement resources of the Justice Department, the S.E.C., the Treasury Department and others. We are coordinating and overseeing these efforts to root out fraud in corporate boardrooms and executive suites, and, most importantly, to put the wrongdoers in prison.
As you know, those crimes have compromised the integrity of a wide range of companies -- from multi-billion dollar communications giants to tiny internet start-ups. They affect not only institutions, but shareholders and employees and pensioners. They harm average folks as well as major investors, Main Street as well as Wall Street.
I am very proud of the way our dedicated, professional agents and prosecutors are handling these significant matters from Arthur Andersen and Enron to WorldCom and Adelphi., The Department and its allied agencies are pressing ahead on many fronts pursuing investigations both large and small with great results, including more than 50 convictions nationwide in corporate fraud cases since the founding of the Task Force.
Let me briefly mention a couple of concerns with respect to our corporate fraud investigations. There is a significant category of wrongdoers who cannot be imprisoned, however, but are nonetheless crucial targets of our efforts. Although it should be done sparingly, we should never hesitate to prosecute corporations themselves when the circumstances warrant it.
In making the decision to seek an indictment against a corporation we consider a number of factors: the companys history of wrongdoing, its response to regulatory actions, its reaction to the criminal conduct committed by its employees (including cooperation with the governments investigation), the level within the corporation at which the crimes were committed or condoned, and the pervasiveness of the criminal behavior within the organization.
People often ask me: Why are we experiencing these corporate scandals? I am not an economist or sociologist I dont know. But based on my experience as a prosecutor and defense lawyer, I know we need to look at a corporations culture.
Large corporations develop their own methods and culture that guide employees thoughts and actions. That culture is a web of attitudes and practices that tends to replicate and perpetuate itself beyond the tenure of any individual manager. That culture may instill respect for the law or breed contempt and malfeasance. I believe the organization itself must be held accountable for the culture and the conduct it promotes.
Without corporate criminal liability, there would be no effective deterrent to a corporate culture that -- expressly or tacitly -- condones criminal conduct. Instead, corporations could merely appoint a "Vice-President in charge of going to jail" who would serve as a whipping boy a highly paid whipping boy for the collective acts of the organization. It should go without saying that the criminal law seeks to punish individuals who commit crimes. This will always be our priority. But the criminal law wisely seeks to punish and reform the corporation that fosters or condones its employees criminal behavior. There is clear legal precedent for this.
Also, people many times ask me about the corporate scandals where were the professionals? Without question, professionals were close to the activity in many of these cases. We will be taking a careful look at the role of professionals.
What about our profession? Let me say also that lawyers, both outside and in-house counsel, can play a major role in this corporate culture both for good and for ill.
I see two primary mistakes lawyers have made in these matters. First, they forgot who their client is. As we learned in first year corporate law class, when you represent an entity, your client is the entity itself not the general counsel or the management.
Second, lawyers fail to give their clients independent legal advice. This is the major duty of our profession to give the client independent, conflict-free advice. If we dont, we are simply trading off the integrity of our profession. The pressure can be intense to go along, as accountants have sometimes gone along with a companys improper practices on the theory that they are only "cutting corners."
We simply have to get beyond that type of thinking.
What I strongly believe is this: Like other professions, law is a calling, not a business. We MUST put our ethical obligations to our clients and our own personal integrity FIRST.
We will press ahead in these efforts and look forward to your continued cooperation and support. I believe we are on the right track but we will not be complacent. As Will Rogers once said, "even if youre on the right track, youll get run over if you just sit there." And we will not just sit there. We will move aggressively to defeat terrorism wherever it exists and defend citizens rights whenever they are threatened. I can assure you of that.
*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.