Remarks* of Deputy Attorney General
Larry D. Thompson
to the ABA White Collar Crime Committee
November 2, 2001
- It's a pleasure to be with you this afternoon.
- After 16 years as a defense attorney myself, it is good to be among former colleagues.
- When I first accepted your kind invitation to appear here today, I planned to talk about a number of issues, including perhaps issues surrounding the Gotti decision by the Oregon Supreme Court.
- But then came the terrible events of Sept. 11.
- So I come to talk to you today about the new and formidable challenges we face as a nation, and a few of the things the Department of Justice is doing to help meet those challenges.
Post-Sept. 11: The New Paradigm
- I am certain that it's obvious to everyone in this room that the events of Sept. 11 constitute a watershed in the history of the United States.
- How we as a nation and a government think about our vulnerabilities to a terrorist attack is forever changed.
- The collective effort we now put into strengthening our domestic security is of a magnitude and intensity that would have been unthinkable before Sept. 11.
- It needs to be because the enormity of the potential risk to civilian lives on American soil is unprecedented.
- The events of Sept. 11 have had a transforming effect on the Department of Justice.
- To be sure, the Department continues to investigate the crimes committed on Sept. 11, and to evaluate what prosecutorial action may be appropriate with respect to anyone involved with those crimes - or the potential commission of future acts.
- But the overriding imperative of the Department - and of the President - is to disrupt and prevent the occurrence of further terrorist attacks.
- In that regard, a new paradigm is in effect with respect to the most critical mission of the Department of Justice and, in particular, the FBI.
- At the direction of Attorney General Ashcroft, investigators and prosecutors are now under strict instructions to make pertinent information immediately available to appropriate officials if the sharing of that information could help to disrupt or avert a terrorist incident - even if it means compromising a potential criminal prosecution.
- In addition, terrorism task forces have been established in each of the 94 U.S. Attorney's Offices to ensure that the rule of law is applied consistently and as forcefully as possible to detain and prosecute individuals who pose a threat to the national security.
- These task forces also direct the U.S. Attorneys to work with state and local law enforcement officials so that we can bring as many law enforcement resources as possible to bear in our fight against terrorism.
- To give the American people additional weapons in the fight against terrorism, the President last week signed into law the "usa patriot act of 2001.".
- This legislation provides law enforcement with enhanced tools to detect, disrupt, and prevent potential terrorist activity.
- Importantly, it modernizes existing laws to take account of new and future communications technologies available to would-be terrorists.
- Particularly noteworthy are amendments to the Foreign Intelligence Surveillance Act:
- This law allows the government to surveil spies and foreign terrorists.
- Foreign terrorists are trained to frequently change mobile and ground-line phones, as well as their location, in order to defeat surveillance.
- Under previous law, in order to obtain FISA coverage of a telephone number not specified in the original court authorization, the Department was required to draft a new application, get it certified by the FBI Director and signed by the Attorney General, and present it to a judge on the FISA court.
- These procedural requirements had the effect of delaying timely coverage of targets and impairing our ability to detect and prevent a terrorist action.
- They were clearly inadequate and, in today's world, unacceptable.
- Under the new law, the FBI may conduct "roving" FISA surveillance - that is, it may obtain FISA coverage on a given target regardless of what instrument of communication the target is using, or where the target is located -- without the need to seek a new order from the FISA court.
- This change in law brings FISA into conformity with Title III, which was similarly amended a few years ago.
- It also allows this important law enforcement tool against foreign terrorists to be supplied to the way foreign terrorists actually communicate with each other in the 21st century.
- Other important elements of the new legislation include the following:
- Authorizing the government to obtain voice-mail stored with a third party by means of a search warrant, rather than a wiretap order.
- Providing for nationwide search warrants for investigations concerning terrorism.
- Expanding the use of pen registers and "trap & trace" orders to apply to internet communications, and to permit a single order valid throughout the United States.
- Of equal importance to these measures are other legislative provisions that enhance information-sharing between law enforcement and intelligence officials.
- It is absolutely essential that law enforcement officials share vital information with our national security and intelligence agencies in order to maximize our ability to prevent future terrorist attacks.
- Under previous law, with few exceptions, criminal investigators could not share grand jury or Title III information with U.S. intelligence agencies - even if such information might be potentially valuable to intelligence operations aimed at detecting and thwarting terrorism.
- The new law permits foreign intelligence information obtained in a criminal investigation - including grand jury and Title III information - to be shared with intelligence and other U.S. Government officials, provided that, in the case of grand jury information, the court is notified when such information-sharing occurs.
- Similarly, FISA surveillance may now be obtained if gathering foreign intelligence is a "significant" purpose of the surveillance, rather than the "primary" purpose.
- This should allow intelligence officials at the fbi and other agencies to exchange information and consult more freely with federal prosecutors.
- One element of the new legislation about which there has been a great deal of misunderstanding is the provision regarding the detention of aliens.
- The legislation authorizes the Attorney General to certify that he has reasonable grounds to believe an alien is removable from the United States or inadmissible under the national security provisions of the Immigration and Nationality Act, or that the alien is otherwise engaged in an activity that endangers national security.
- If the Attorney General makes that certification, he is required to keep the alien in custody during the pendency of removal proceedings and - if the alien is found to be removable - until the alien is removed from the United States.
- Of course, if the alien is determined in the proceeding not to be removable, the alien's detention would end.
- The new law also requires the Attorney General file immigration or criminal charges within 7 days against any alien who he certifies.
- That provision has been inaccurately described in the press as a protection against the possibility that we might take an alien into custody, certify him as a risk to the national security, and then hold him indefinitely without filing any charges against him.
- that perception is simply unfounded.
- The INS routinely files charges against aliens it takes into custody in fewer than 7 days, and if no immigration charges are filed, the alien is released from INS custody.
- These rules are being followed for the aliens being held on immigration charges in the ongoing investigation into the September 11 attacks.
- In sum, we believe the new legislation represents a balanced, measured approach to protecting the people and institutions of the United States, particularly given the unprecedented nature of the security threat facing our nation.
FOREIGN TERRORIST TASK FORCE
- On October 29, the President announced that the Attorney General would create a Foreign Terrorist Tracking Task Force. The Task Force will coordinate interagency efforts to achieve two goals: (1) deny entry into the United States of aliens who may be involved in terrorist activities and (2) to locate and apprehend any such aliens who may already be in the United States.
- On Wednesday, the Attorney General formally announced the appointment of the first Director of the Task Force, Steven McCraw. Mr. McCraw had been a Deputy Assistant Director in the Intelligence Branch of the FBI's Investigative Services Division.
- The Task Force will draw upon the information and expertise of the several federal agencies, including the FBI, CIA, State Department, INS, Secret Service, and Customs. The Task Force will ensure that all of the relevant information possessed by those agencies, as well as all publicly-available data and information shared with us by our allies, is brought to bear on the effort to prevent terrorists from entering the United States and, if they do enter the United States, prevent them from carrying out operations in this country.
- The President also directed a review of our student visa policies in light of September 11 that will focus on two objectives. First, we will develop a program to ensure that sensitive courses of study are not made available to students who may use the knowledge against us. Second, we will implement new measures to ensure that the foreign students who are permitted to come to the United States honor the conditions of their visas and leave the United States when their visas expire. As part of this review, we will re-examine the compliance record of the institutions that have been approved to receive foreign students and remove irresponsible institutions from the program.
- The President also directed the Director of the Office of Science and Technology Policy to make recommendations about using advanced technology to help enforce our immigration laws. These recommendations are expected to focus on the sharing of information among federal and state agencies as well as on the effective use of commercially available information. This review will also focus on the possible uses of advanced biometric technology to help us identify suspected terrorists.
DOJ Role in Interagency Coordination
- Finally, I want to say a few words about the teamwork and cooperation being demonstrated across the U.S. Government to bolster our domestic security.
- Prior to the commencement of operations of Gov. Ridge's Office of Homeland Security, the Department of Justice was tasked by the National Security Council with coordinating the efforts of numerous government agencies - including the FBI, Nuclear Regulatory Commission, FEMA, the Dept. of Transportation, the Dept. of Energy, and the U.S. Customs Service - to identify potential vulnerabilities to terrorist attack in the United States and ensure that all necessary and appropriate actions are taken to address those vulnerabilities.
- All of these agencies responded with a sense of purpose the likes of which I have never seen, and and I want to publicly commend each of the participating agencies and departments for their tireless efforts and dedication, particularly in the early days and weeks after Sept. 11.
- From what I've seen, Gov. Ridge is already off to a fast start in establishing his coordination of this vital effort, and we at the Department of Justice will do everything we can to contribute to his success.
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THE DEPARTMENT IS COMMITTED TO HIGH ETHICAL STANDARDS
- As a former United States Attorney and as a former white-collar defense attorney, I believe it is important that Department attorneys conduct themselves in accordance with the relevant attorney conduct rules. I want to assure you that the Department is committed, and I personally am committed, to ensuring that Department of Justice attorneys conduct themselves in accordance with the highest ethical standards.
- After the passage of 28 U.S.C. § 530B the Department took a number of steps to ensure that its attorneys understand and abide by their attorney conduct rules. As part of that effort, the Department established a new office -- the Professional Responsibility Advisory Office (PRAO) - to advise and train Department attorneys on attorney conduct rules issues that arise in their cases. From the time PRAO opened on April 20, 1999, until the present, PRAO has handled almost 2000 inquiries.
- I am glad to report that the Department's efforts have been quite successful, and I'm not aware of a single Department attorney who has been disciplined by a state bar.
- That does not mean, however, that the statute has not caused problems for effective law enforcement needed to protect the public.
CHANGES TO 28 U.S.C § 530B IS NEEDED NOW TO PROTECT THE PUBLIC
- Current law presents some unnecessary and unintended problems to our attorneys' ability to effectively and ethically discharge their duties to enforce federal law and to investigate and prosecute violations of federal law. We want to address these problems, and we want to work with the ABA to develop a fair and appropriate statutory solution.
- The problems under the current law are, basically, fourfold:
- The lack of a definitive choice of law provision to direct Department attorneys to the clearly-applicable rules of attorney conduct imposes unnecessary delays and unreasonable uncertainty for Department attorneys who want to abide by the appropriate ethics rules.
- The unforeseen interpretation of state ethics provisions governing fraud and deceit in Oregon has resulted in the shutdown of legitimate undercover law enforcement investigations, and the danger that law enforcement agents conducting investigations will be encouraged not to seek advice and guidance from Department attorneys in any investigation where Oregon rules might apply.
- If legislation is not enacted, it is an invitation to terrorists and other criminals to locate their conspiratorial activities in Oregon, where they are assured that they can operate without fear of infiltration by government agents or government-directed confidential informants. This is not hypothetical or hyperbole - criminals in Oregon have been found with news clippings about the Oregon supreme court decision. This safe haven for criminals threatens not just Oregon, but all of us.
- Department attorneys - who are members of many different state bars, and who are acting in many different states -- are involved in the ongoing terrorism investigations. These same attorneys need to be involved in undercover and covert investigations to protect both the admissibility of evidence, as well as the rights of the public and potential subjects and targets of investigations.
- Various states rules on contacts with represented persons present unintended impediments to the appropriate conduct of law enforcement investigations and present the danger that law enforcement agents conducting investigations will be encouraged not to seek advice and guidance from Department attorneys.
- Attorney conduct rules that prevent attorney supervision of law enforcement agents engaged in necessary and otherwise-legitimate law enforcement activities leave us with an untenable choice. We can forego all Department attorney involvement in terrorism investigations, which would mean that agents would take investigative actions without legal guidance from prosecutors, or, in many instances, investigations could not proceed because federal law and Department of Justice guidelines require attorney involvement in and approval of many investigative activities. On the other hand, we can retain the necessary involvement of Department attorneys, but have them face substantial obstacles in assessing difficult choice-of law issues because of conflicting state laws and rules.
- As you may know, Senators Leahy, Hatch, and Wyden introduced legislation to make some changes to 28 U.S.C. § 530B. Their legislation does not repeal 530B -- it reinforces Congress's expressed intent that Department attorneys abide by attorney conduct rules. Under the bill's provisions, Department attorneys will remain subject to the relevant jurisdiction's attorney conduct rules.
- The legislation maintains the high ethical standards to which Congress -- and the Department -- seeks to hold Department of Justice attorneys. The law,
- Clarifies which state rules govern Department attorneys where more than one state's rules could apply -- a common occurrence when attorneys are involved in multi-district litigation1;
- Permits Department attorneys to supervise and oversee law enforcement agents engaged in legitimate law enforcement undercover activities to ensure that the evidence is obtained lawfully, and that the rights of the public and potential subjects and targets of investigations are protected;
- Requires Department attorneys to be members in good standing of a state bar2; and
- Refers to the U.S. Judicial Conference the issue of contacts with represented persons so that these federal judges could hear from all interested parties - the Department, the ABA, the Conference of Chief Justices, and other interested parties - to determine how best to accommodate in federal courts the legitimate but competing interests of these various groups.
THE LEGISLATION WAS AMENDED TO ADDRESS THE ABA'S CONCERNS
- I understand that the ABA sought and obtained -- with our support -- a change to the language of Senator Leahy's bill to address certain of their concerns and that they have been in close contact with Senator Leahy's staff during the drafting process. I also understand that both the Department and the ABA recognize that each has legitimate concerns regarding the rule on contacts with represented persons, and that we both agree that the Judicial Conference is a fair and neutral place to air those concerns and to get a resolution that will give us consistency.
- I believe that the Leahy/Hatch/Wyden legislation provides a sensible and measured means to provide clear guidance to Department attorneys concerning their ethical obligations while accommodating the important law enforcement responsibilities that we all share. This bill would help bring order and certainty to the choice-of-law question, and allow Department attorneys to concur in legitimate undercover enforcement activities in the investigation of Federal crimes. I urge you to support its passage.
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And now I'd be pleased to answer any questions you might have.
*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 While the legislation calls for attorneys to be governed by federal district court rules and decisions, the vast majority of federal district court rules incorporate the rules of their state's bar.
2 This requirement is not in the U.S. Code, but has been required by the Commerce, Justice, State Appropriations Act for many years.