Department of Justice Seal

Prepared Remarks of Deputy Attorney General Paul J. McNulty
at the American Enterprise Institute

Washington, D.C.
May 24, 2006

The terrorist attacks of September 11, 2001 marked a defining moment in our Nation’s history. These vicious and brutal attacks resulted in over 3,000 deaths in New York City, Washington, D.C., and Pennsylvania, and shocked and horrified people throughout the world. In the aftermath of the attacks, President Bush directed then Attorney General John Ashcroft to do everything in the Department of Justice’s power to prevent such destruction and devastation from happening again. The Department of Justice was called to find new and invigorated ways of using our resources to prevent future acts of terrorism.

We have responded to this call to action. Today I am here to tell that story. Since September 11th, the Department of Justice has harnessed its full resources, both here at home and around the globe, and committed those resources to preventing terrorism. And now, nearly five years after the watershed events of 9/11 and the closure of the Zacarias Moussaoui prosecution, it’s a good time to take a closer look at the successes we have achieved, the difficulties we have encountered and overcome, and the challenges we face as we move forward. I speak today not only as Deputy Attorney General, but also as the former United States Attorney for the Eastern District of Virginia, where, from September 2001 to March 2006, I had the responsibility and privilege of overseeing many of the Government’s more significant terrorism prosecutions.

The Department of Justice has developed a strong record of success in the war on terrorism. Our prosecutions have run the gamut and affirmed that the fight against terrorism is the Department of Justice’s highest priority. We have prosecuted and convicted violent terrorists; supporters and financiers of terrorism; and persons who came to our shores and used our freedoms to advance terrorist causes. Since September 11th, individuals like Richard Reid, who tried to ignite a bomb in his shoe to kill everyone aboard an American Airlines flight bound for Miami; Sheikh Ali Al-Timimi, who encouraged young men in Virginia to travel abroad and receive military training to prepare for war against the United States; and Mohammed Al-Moayad, a Yemeni cleric who conspired and attempted to obtain over two million dollars from the United States for al-Qaeda, Hamas, and other terrorist organizations to fund violent jihad –- among many other individuals -- have been convicted and are behind bars serving significant sentences.

The extent of September 11th’s impact on the Department of Justice cannot be overstated. The magnitude of that day’s tragedy transformed our counterterrorism strategy. On every level, we committed to a new strategy of prevention. The 9/11 attacks shifted the law enforcement paradigm from one of predominantly reaction to one of proactive prevention. We resolved not to wait for an attack or an imminent threat of an attack to investigate or prosecute. We pledged to those who lost their lives, to the children and loved ones they left behind, and indeed to our entire Nation that we would devote the resources and energies necessary to preventing terrorism and protecting our communities. We understood, most fundamentally, that the events of 9/11 marked a defining moment for the Department of Justice.

One of our greatest liberties is the right of all people to form and hold their own views and beliefs. Yet 9/11 displayed to the entire world how ideology can be used to inspire violence, how deep hatred toward America and its freedoms runs in some circles, and just how vigilant we must be going forward. Accordingly, if 9/11 marked a defining moment for the Department of Justice, it surely did the same for Islamic extremists and others harboring radical and dangerous views about America. The moment the Twin Towers were hit in New York, the Pentagon attacked in our Nation’s capitol, and Flight 93 hijacked en route to San Francisco, people had a choice to make. They could recoil at the horrors and relinquish any thought of ever endeavoring to harm America. Or they could endorse or even celebrate those vicious attacks as a rallying point for future terrorist acts. Since September 11th, people throughout the world, including countless Muslims, have rejected the ideology of hate that led to 9/11. But, sadly, other individuals have chosen to follow the path of terrorism.

I saw this firsthand as a United States Attorney. Take, for example, the Northern Virginia Jihad case, United States v. Ali Al-Timimi. Just four days after September 11, a group of young men gathered in an apartment in Fairfax, Virginia, and their purpose in meeting, as proven in federal court, was to discuss plans to join and support the Taliban and engage in jihad against the United States. Those men, led by Sheikh Ali Al Timimi, had a choice to make in that apartment. And, with the fires at the Pentagon while smouldered only 20 miles away, they choose not to reject extremist violence, but to embrace it and pursue it. It was no different for Ahmed Omar Abu Ali, who, after graduating from the Islamic Saudi Academy in Alexandria, Virginia, chose to move to Saudi Arabia and later join and receive military training from al-Qaeda, and to plan attacks against the United States, including to kill the President. Nor was it different for Iyman Faris, who chose to travel to Pakistan in early 2002, discuss with al-Qaeda’s Khalid Sheikh Mohammed a plan to collapse a landmark bridge in New York City by severing its suspension cables with gas cutters, only then to return to the United States to assess the plan’s feasibility by inspecting the bridge’s structure and security.

Each of these men faced a choice. They could harbor profound discontent with America while taking care not to let that discontent boil over to criminal conduct, or they could step over that line by supporting terrorist causes. The line was as clear as their choices were criminal. By choosing to support terrorist causes, they violated the laws of the United States.

We at the Department of Justice have our own choices to make upon learning that men like Ahmed Omar Abu Ali, Iyman Faris, and members of the Northern Virginia Jihad have chosen to provide support to terrorists. We could await further action by these men and then arrest and prosecute them. Or we could prosecute at the moment our investigation reveals both a risk to our national security and a violation of our Nation’s laws. In the wake of September 11, this aggressive, proactive, and preventative course is the only acceptable response from a department of government charged with enforcing our laws and protecting the American people. Awaiting an attack is not an option. That is why the Department of Justice is doing everything in its power to identify risks to our Nation’s security at the earliest stage possible and to respond with forward-leaning – preventative – prosecutions.

Our record since September 11th is strong in multiple respects. In terms of numbers alone, we have charged 435 defendants and won 253 convictions in 45 different judicial districts across the country, with many of these defendants still awaiting trial. These statistics, tracked by the Justice Department’s Criminal Division, represent defendants charged in terrorism or terrorism-related criminal cases with an international connection.

Of course, there is much more to success than tallying charges and convictions. A walk through these successes demonstrates the extent of the Department of Justice’s commitment to prosecuting and preventing terrorism, and attests to the tireless efforts of the men and women who serve as federal prosecutors in our U.S. Attorney’s Offices and at Main Justice in Washington, D.C., and to the thousands of investigators who have searched the globe for evidence.

A cornerstone of our post 9/11 efforts has been the material support statutes. Congress enacted these laws to prevent terrorism by cutting off the provision of support and resources to terrorists and terrorist organizations. Within the past two years Congress has amended the laws to expand and clarify their broad scope, making it expressly plain, for example, that anyone who receives military-type training from or on behalf of a terrorist organization commits a crime. The men I spoke of a moment ago – Abu Ali, Iyman Faris, and the members of the Northern Virginia Jihad, including Ali Al-Timimi – were convicted of violating the material support statutes, and those men presently are serving lengthy sentences.

We have successfully used the material support statutes in a host of other prosecutions as well. For example, in United States v. Yaha Goba , the so-called Lackawanna Six or Buffalo Cell case, prosecutors in the Western District of New York used the material support statutes to convict a group of defendants who traveled to Afghanistan to train in the Al Farooq camp operated by al-Qaeda. While there, the men met Osama Bin Laden and heard Bin Laden report that certain individuals were on a mission to attack the United States. The theory of the Lackawanna Six case, much like the theory of Abu Ali and Northern Virginia Jihad prosecutions, was straightforward and obviously logical: those who attend terrorist training camps and receive instruction or assist in providing instruction in how to use military-style weapons against Americans and American interests commit crimes and present grave risks to our national security.

The Department of Justice has also successfully used the material support laws to prosecute defendants beyond those who sought and received terrorist training. The U.S. Attorney’s Office in the District of New Jersey, for example, prosecuted and convicted Hemant Lakhani for attempting to sell a shoulder-fired missile to an FBI cooperating witness as part of a plan to shoot-down a civilian airplane in jihad against the United States. The Southern District of New York similarly used the material support statutes to convict both Uzair Paracha for the steps he took to conceal an al-Qaeda operative’s true whereabouts from law enforcement authorities.

These prosecutions, among many others, provide concrete illustration of the Department of Justice’s successful use of the material support statutes, and similar laws, to prevent terrorism by prosecuting persons who have taken steps to aid, advance, and encourage terrorist causes. Use of the material support laws will remain a central component of our efforts to disrupt terrorist activity before it occurs. Beyond the material support cases, the Department of Justice also has expanded its post 9/11 efforts to aggressively pursue crimes, such as identity theft and immigration violations, which present risks to our national security. The simple truth is that terrorists, as well as sympathizers and supporters of terrorist causes, are able to exploit weaknesses in our identification, immigration, and financial systems to facilitate future attacks. Nobody proved the point more than the September 11 hijackers, seven of whom possessed fraudulent Virginia identification cards.

In the aftermath of 9/11, therefore, it is unacceptable, if not irresponsible, to limit our counter-terrorism strategy only to prosecutions involving core terrorism or material support charges. Our preventative mission requires broader vision, including acceptance of the reality that persons presenting security risks to our Nation may be living among us under fake identities. Individuals who purposely evade immigration and identify-theft laws make a conscious choice to conceal who they are and to deceive the United States, and if our investigations and intelligence reveal that the deception is connected to, or was committed toward the end of engaging in, terrorist activity, the Department of Justice must respond. We must use the full arsenal of tools Congress has given us.

It takes little foresight to envision the rightful criticisms that would be leveled at the Department of Justice if, in response to a terrorist incident, we looked back after-the-fact and discovered that the offenders were in this country after having succeeded in committing immigration or identity fraud crimes, and we were in a position to do something about it.

Two such cases from my experience as United States Attorney in Eastern Virginia illustrate this point. In 2003, an investigation revealed that Abdurahman Muhammad al-Amoudi, a naturalized United States citizen and the founder of the American Muslim Council, had used a false Yemeni passport on numerous occasions to travel to Libya, itself a violation of federal law. When confronted with the immigration fraud, al-Amoudi admitted to the fraud and, more broadly, to participating in a Libyan plot to assassinate Crown Prince Abdullah of Saudi Arabia. Our aggressive pursuit of immigration charges against al-Amoudi resulted in a quick conviction and contributed to al-Amoudi’s decision to cooperate with federal and international officials in advancing important terrorism-related investigations both within the United States and abroad.

We also used the immigration laws to convict Soliman Biheiri, an Egyptian national and the then president of a New Jersey-based Islamic investment firm suspected of having links to terrorism. When our investigation revealed that money from the investment firm may have been used to help fund the 1998 embassy bombings in Kenya and Tanzania and that the firm may have acquiesced in channeling money through its accounts for a known terrorist, we moved swiftly to learn all we could about Biheiri himself. In short order, we determined that Biheiri had obtained United States citizenship on the basis of a naturalization application that contained false statements. So, rather than prolong the investigation -- and thus leave open the risk to our Nation’s security presented by all of the facts and circumstances we knew at the time about Biheiri –- we moved forward and prosecuted and convicted Biheiri for naturalization fraud, among other crimes.

Across the landscape of our post-9/11 prosecutions, we have achieved other important successes which deserve emphasis. Foremost, we have faced and overcome unprecedented challenges – both legally and operationally – in shepherding our cases through our criminal justice system. Let me focus specifically on our effective use of classified information in certain prosecutions, including the co-called Portland Seven case brought in the District of Oregon against Jeffrey Battle and six other defendants.

In our prosecutions involving the use of classified information, we undertake an important and essential balance. We must balance our obligation to hold defendants accountable for criminal conduct and the defendants’ right to a fair trial, while, at the same time, not compromising our national security. The balance is delicate and difficult, and it ultimately takes place within the protocols Congress provided in the Classified Information Procedures Act. Article III federal judges administer these Congressionally-provided protocols and procedures in order to balance the Government’s need to protect classified information with a defendant’s right to a fair trial.

The Portland Seven case provides a useful illustration. The case arose out of Jeffrey Battle and others’ efforts in 2001 to enter Afghanistan and fight alongside the Taliban against United States and allied forces. The prosecution entailed the use of classified materials, including electronic surveillance obtained pursuant to the Foreign Intelligence Surveillance Act. In using the evidence, prosecutors took care to adhere to the procedures delineated in the Classified Information Procedures Act by, for example, providing certain notices to defense counsel and the Court and obtaining certain protective orders. These processes – all overseen by the presiding District Court Judge – ensured that the defendants’ rights remained protected throughout the litigation, while also allowing the prosecution team to make effective use of classified information.

The Portland Seven prosecution serves to illustrate yet another obstacle overcome in our post-9/11 prosecutions. As part of the USA PATRIOT Act, Congress eliminated a barrier that previously prevented prosecutors and members of the intelligence community from sharing full information with each other. The Portland Seven prosecution involved Jeffrey Battle, who, before attempting to enter Afghanistan and fight with the Taliban, had taken steps toward attacking Jewish schools and synagogues within the United States. In its investigation, the FBI shared important intelligence information with the prosecution team. This sharing enabled the FBI and prosecution to work together to monitor the risks presented by Battle, while also advancing the investigation against other members of the Portland Seven. The effort marked a significant operational successes that would not have been possible but for the USA PATRIOT Act.

While our record shows many victories in recent years, we have not always been successful. And, when we make a mistake or come up short in a prosecution, it is important to say so. We did just that in the case brought in federal court in Detroit against Karim Koubriti and others. Although the jury returned guilty verdicts, it turned out that the lead prosecutor, before trial, did not provide the defense with certain evidence that the jury properly could have viewed as exculpating Koubriti and certain other defendants of guilt. To not disclose the evidence violated the defendants’ constitutional rights and breached a clear duty that prosecutors owe defendants under the law. Upon learning of the potential violation, we undertook a comprehensive investigation, which culminated in our acknowledging error and consenting to relief for the defendants. While the error we committed was undeniably grave, our response to learning of it was undeniably right. Indeed, the presiding judge, upon hearing the results of our investigation and decision to consent to relief, observed that our handling of the matter was “in the highest and best tradition of Department of Justice attorneys.”

On occasion it is suggested that a jury’s decision to acquit a defendant marks a setback for the Department of Justice. A variety of that particular criticism surfaced, for example, following the jury’s decision to acquit Sami Amin al-Arian of certain terrorism charges and not reach a verdict on other serious terrorism charges following a long trial in federal court in Florida in 2005. That view is mistaken and especially so in the arena of terrorism prosecutions. No apology is necessary or appropriate in response to an acquittal. We bring cases when we believe that there is proof beyond a reasonable doubt. The reality is that, while we will present the strongest case possible, a jury may not agree with our view of the strength of the evidence. That, though, is the function of a jury. We recognize that a reality of our prevention strategy is that we may find it more difficult in certain cases to marshal the evidence sufficient to convince 12 jurors beyond a reasonable doubt. That is because we must bring charges before a conspiracy achieves its goals – before a terrorist act occurs. To do so, we have to make arrests earlier than we would in other contexts where we often have the luxury of time to gather more evidence. This heightened risk of acquittals is one we acknowledge and accept given our unwavering commitment to prevent terrorists risks from materializing into terrorist acts.

It also is worth observing that the al-Arian case, in particular, culminated recently in a conviction and significant sentence. In April 2006, al-Arian pleaded guilty to conspiring to make or receive contributions of funds, goods, and services to the Palestinian Islamic Jihad terrorist group, and in doing so, admitted to engaging in acts specifically designed to advance the group’s terrorist mission. In sentencing al-Arian to 57 months in prison, the District Court observed that al-Arian was “a master manipulator” who, as “a leader of the Palestinian Islamic Jihad,” plotted to create “widows and orphans” through acts of terrorism.

As we approach the fifth anniversary of September 11 and move forward in our fight against terrorism, clear challenges lay ahead. Terrorists and their supporters are growing more sophisticated. They are using tools like the Internet to train and recruit new followers and to raise money to fund their causes. One of our biggest challenges, therefore, is to stay a step ahead. In our investigations, we must continue to adapt our technologies, approaches, and strategies to the ever-changing means and methods of those planning the next attack. In our prosecutions, too, we continue to face difficult challenges, including how most effectively to use classified information without compromising our Nation’s security. We also regularly confront the challenging task of having to prosecute early enough to prevent harm to America, while simultaneously having to let our investigations play out long enough to allow us to identify all co-conspirators in a terrorist plot and to accumulate evidence sufficient to satisfy the demanding beyond-a-reasonable-doubt standard of proof that governs all criminal trials.

Our mission is a difficult one. Hatred for America and all that our Nation stands for remains deep-seated among many extremists. When hatred runs so deep, risks run high. Today’s risks are very real, and identifying the risks before they take the form of an attack is very hard. The American people need to know that their Department of Justice embraces the challenge. We are committed to preventing terrorism and protecting our homeland. As the Attorney General has said, “[W]e have no higher calling than the protection of our fellow citizens.” In responding to the calling, we are not resting on yesterday’s successes, but rather are focusing on today and tomorrow’s challenges.

Our efforts will remain aggressive, and they will remain fair. In our investigations, we will continue to use every tool and authority available to us to identify risks at the earliest stage possible. And, in deciding whether to prosecute, we will not wait to see what can become of risks. The death and destruction of September 11, 2001 mandate a transformed and preventative approach. Our mission, then, is clear: we will — indeed, we must — press forward aggressively in the war on terror, with prevention and protection serving as the guideposts. In carrying out our mission, we will remain focused on the freedoms we seek to protect and the risks we seek to address. The Department of Justice will remain unyielding in our commitment to preserve our cherished rights and protect our national security.