Speech* of Deputy Attorney General
LARRY D. THOMPSON
at Mercer Law Day - Macon, Georgia
Friday - March 8, 2002
- INTRODUCTION/NEW PARADIGM
- Friends, colleagues at the Bar. It is a pleasure to be back home in Georgia and to have an opportunity to share this celebration of Law Day with the faculty and students of Mercer University. About twelve years ago, I had one of my most satisfying experiences as a lawyer when I was encouraged by Professor Hal Lewis of the law school faculty to serve as an Adjunct Professor here at Mercer's Law School. I am honored to be with you, President Godsey, Judge Bell, and your other special guests to commemorate our remarkable system of justice.
- 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 have 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 - and quintessentially American - 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; and to rise to the challenges that this new struggle has thrust upon us.
- Lawyers from all around the country have called and/or e-mailed - volunteering to do whatever they can. What a tribute to our profession!
There is a common sense of purpose - that we as a nation will prevail against terrorism and we do face a challenge.
- 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 Americans.
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.
The 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 the overriding imperative of DOJ is to disrupt and prevent terrorism.
- Most essential function of any government is to secure the safety of our fellow citizens.
Investigators and prosecutors are used to handling information / evidence in a certain way. [Toward admission into evidence.]
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 are new challenges at DOJ and a new paradigm to meet the 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 by federal, state, and local law enforcement.
- The federal government does not have enough eyes, ears and feet available to investigate all terrorist threats.
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. This has led to the creation of the Foreign Terrorist Tracking Task Force. Among other things, this task force carefully monitors student visas and consider the use of biometrics in our immigration entry system.
Fourth, we are detaining foreign nationals with suspected links to terrorist organizations.
Fifth, we are conducting consensual, 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. [i.e., special administrative measures; potential monitoring of inmates of attorney-client communications, which only apply to 20 out of 158,000 inmates.]
CONCERNS / BALANCED MEASURES/ RULE OF LAW
- Some commentators and lawyers have raised 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.
- During my tenure as United States Attorney for the Northern District of Georgia, and now as Deputy Attorney General, I have seen firsthand how dearly Americans cherish their heritage of liberty under law and their keen awareness of how the rule of law makes our democracy possible.
- In the months since the tragic events of September 11, we have recognized that the Justice Department's success in defeating terrorism depends on public confidence that we can ensure fair and impartial administration of justice for all Americans while carrying out our essential national security mission.
- Indeed, it is our very open, democratic and just society - whose hallmark is our concern for civil rights - that has made us the terrorists' target. Our civilization's freedom is grounded in the rule of law that we have gathered to celebrate today.
- Our freedoms, our laws are the envy of the world and the perennial winner in the global marketplace of values and ideas.
- It is precisely because the terrorists' ideals cannot compete in the open marketplace that they have turned to violence and horror. They attempt to achieve through mass murder what they will never be able to accomplish in a free exchange of ideas: to subvert our freedoms, freedoms for which millions of Americans - from our Founding Fathers, to our immigrants from every quarter, to our civil rights marchers - have strained and sacrificed.
- They target us simply because we are American. They make no distinction between rich and poor, black and white, Jew and Christian. Because they fear our freedom, they must resort to terror.
- But we will prevail because of our sacrifices and the strength of our laws safeguarding freedom.
- This reverence for our law and its centrality to this battle inspired the Attorney General immediately after the terrorist attacks to challenge all of us in the Justice Department to "think outside the box" in fighting terrorism, but caution us: "Don't think outside the Constitution."
- We also take to heart then-Attorney General Robert Jackson's cautionary admonition 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.
- This monitoring requires that the head of a law enforcement or intelligence agency certify 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 further prosecution of that inmate.
Without court approval, the government cannot use the information for purposes other than preventing a terrorist act.
All of SAMS-including the ones relating to attorney communications-only apply to about 20 out of over 150,000 inmates in federal custody.
NOT CHANGING THE ESSENTIAL CHARACTER OF OUR NATION
- At the same time that the Department has shifted its focus to prevention and disruption of terrorist attacks, we have continued to take aggressive measures to ensure that the American public's sensitivities to the terrorist threat do not boil over in a way that results in discrimination or violence against our fellow Americans of Middle Eastern descent or who worship in the Muslim faith.
- Since September 11, the Department's Civil Rights Division, the Federal Bureau of Investigation, and United States Attorneys' Offices have investigated approximately 300 incidents involving violence or threats against Arab-Americans and other individuals perceived to be of Middle Eastern origin. Federal indictments have been brought in several cases, and federal assistance to state and local prosecutors has facilitated the prosecution of more than 60 additional cases.
- Just one example of our aggressive response to a hate crime precipitated by the events of September 11 occurred in Utah. Two days after the terrorist attacks in New York and Washington, an individual attempted to burn down a restaurant owned by a Pakistani-American family. The owners and patrons were inside the restaurant at the time. The perpetrator was federally charged and later pleaded guilty, admitting that his crime was "in retaliation" for the terrorist attacks. He was sentenced to four and a half years in prison.
- While we have aggressively pursued all such cases wherever they have occurred, as an American, I am pleased that such incidents of hate-motivated crime based on individuals' perceived Arab-American heritage have been extremely rare.
- In the years to come, many of you who are about to begin your practice of law will confront daunting personal and professional challenges. You will also have the opportunity to contribute greatly to the welfare of this country and to use the skills and status of your position in the community to benefit others.
- During my legal career, I have been privileged to know many attorneys, from both the public and private sectors who have made a real difference in their professional and personal communities. They have helped those less fortunate and acted with integrity in all things.
- As you students move on with your lives after leaving Mercer University, I urge you to remember the privileges --and obligations--of being a lawyer, and to cherish the blessings that flow from a system of government based on respect for individual rights rather than fanaticism, spiritual corruption, or rule by fiat.
- Again, I am deeply grateful to President Godsey for inviting me to be part of your Law Day celebration. You may be sure that when I return to Washington, I will rejoin thousands of devoted public servants who are continuing to work on your behalf to bring terrorists, other violent criminals, and lawbreakers of every variety to justice. I believe we are on the right track but we will not be complacent. As Will Rogers once said, "Even if you're on the right track, you'll 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.
1 E.g., United States v. Zolin, 491 U.S. 554, 562-63 (1989)