September 11, 2001 : Attack on America
DOJ Oversight: Preserving Our Freedoms While Defending Against Terrorism - Statement by George J. Terwilliger Before the Committee on the Judiciary United States Senate; December 4, 2001




DECEMBER 4, 2001

Mr. Chairman, Senator Hatch and members of the Committee.

Thank you for asking me to join your discussion of issues of law and policy concerning the extraordinary crisis before the Nation today. I am a strong believer in the value of responsible congressional oversight of the Executive Branch. Oversight necessarily involves being properly informed, and I am honored to try to assist the Committee today.

I am currently a partner in the Washington, D.C. office of White & Case, an international law firm. Because I represent corporations and other institutions that face government inquiries, I see the exercise of significant government powers daily. Previously, I was privileged to serve in the Justice Department for fifteen years, including as the Deputy Attorney General of the United States in the Administration of President George Herbert Walker Bush and as United States Attorney in Vermont appointed by President Reagan. For eight years prior to that I was an Assistant United States Attorney both here in Washington and in Vermont. During my government service I investigated or prosecuted several terrorism cases and supervised the conduct of others. I worked very closely with the FBI and other law enforcement and intelligence agencies, both here and in foreign countries. During the Persian Gulf crisis, I had lead responsibility for the Justice Department's counter-terrorism program and represented the Department at the National Security Council counter-terrorism inter-agency working group.

Since leaving government service in 1993, I have participated in a number of symposia and national security exercises related to terrorism. Most recently, I participated in the mock role of the Attorney General in "The Dark Winter" bio-terrorism exercise at Andrews Air Force base. In that exercise, our mock National Security Council, under the leadership of former Senator Sam Nunn, had a sobering experience dealing with a now not so futuristic outbreak of smallpox.

As a result of work in both criminal justice and intelligence matters over the years, I offer one, simple conclusion for your consideration:

The most sound, viable defense against terrorism is the collection and analysis of intelligence sufficient to ensure the preemption of terrorist activities.

We cannot "lock down" the country so as to secure it from terrorism without inflicting unacceptable harm to individual liberties and the stream of commerce. To be sure, there are many other aspects of a comprehensive counter-terrorism program. These include immigration enforcement, as well as criminal investigations and prosecution. Prosecutors and investigators in Washington, New York and elsewhere have done an outstanding job investigating and prosecuting terrorism cases. However, we are now in a state of war.

This is not just another criminal case to be investigated. In this war, a rigorous intelligence program will permit us to triumph by identifying whom and what groups represent danger. All the intelligence needed to assess their vulnerabilities and undertake preemptive acts cannot, and very well should not, be obtained solely through the criminal justice system. In fact, it would be a mistake, in my judgment, to provide law enforcement generally with the broad powers that may be necessary to the more specific and limited counter-terrorism intelligence mission. Requiring that all terrorists be tried in the criminal justice system, with its expansive rights providing defendants information from the government's investigative files, is counter-intuitive because it may compromise the long-term intelligence goals necessary to preempt terrorist violence.

Because of the importance and value of intelligence to victory, we must utilize all lawful means to promote its collection, preservation, analysis and appropriate sharing. For example, the use of military tribunals to adjudicate the responsibility of "unlawful belligerents" for so-called "war crimes" is an exercise of constitutional authority, clearly supported by Supreme Court precedent and deeply rooted in the law of civilized nations. How and when such tribunals are best used is a decision for the Executive as Commander in Chief and part of directing the military campaign of national defense.

Using military tribunals to adjudicate individual responsibility for acts of war against our civilian population is an important option. These lawful procedures may be critical to the government in both providing a fair adjudication and protecting the sensitive sources and methods by which relevant evidence to be presented in the tribunal proceedings is obtained. That, in turn, can preserve our ability to collect and use the intelligence necessary to win the war. For this reason, as well as several others, the President's carefully drawn Order providing the option to use such tribunals is a wise choice.

The use of tribunals characterized by fair and reasonable procedures is consistent with our national commitment to the rule of law. Concerns that military tribunals somehow take away civil liberties or bypass the civil justice system are unfounded. One can understand that some, perhaps not having fully considered the lawful authority for the use of tribunals, might initially harbor such concerns. This is understandable, given that the state of war is itself an unusual circumstance, and that we have not before faced a foreign threat of this magnitude and nature on our home soil. On reflection, though, I hope that responsible analysis will lead to an understanding that:

" Responsibility for war crimes is not a matter of civil justice;

" Military tribunals have been lawfully and successfully used throughout our history;

" Tribunals can be fair; and

" Preservation of sources and methods by which information, including evidence of responsibility for war crimes, is obtained is vital to victory;

Until we can establish the intelligence necessary to preempt terrorism reliably, we need to use all lawful means to prevent further acts of terrorist violence. This violence has the real and apparent present ability to kill thousands of innocent men, woman and children here in the United States. It is apparent that, in the judgment of those with awesome responsibility to prevent such attacks now, aggressive enforcement of immigration and other laws is necessary. In deference to their judgment, I support that vigorous enforcement. Simply because there is the danger of abuse, we should not assume that abuse is occurring. Rather, common sense suggests that we should presume good faith unless and until circumstances indicate otherwise. If the prevention mission and renewed vigor in intelligence gathering renders it appropriate, in the judgment of responsible officials, to seek interviews with 5,000 people, then I support that too. These are not easy judgments and I respect the burden, responsibility and accountability that attends to making them.

The key consideration here is the use of existing lawful authority to good effect. Lawful procedures are meant to be used-and used aggressively in times of peril. Today we face the presence of infiltrators in our midst who are prepared to kill and destroy indiscriminately, even at the cost of their own lives. That is a harsh and ugly reality. Dealing with this is not an option. It is the responsibility of government to provide for the national defense by determining who embodies this threat and capability, and rooting them out. The survival of the freedoms we cherish, for which many prior generations have paid dearly in blood, depends on our success. Truly, the greatest threat to our civil liberties is failure in the mission to secure America from terrorist violence.

Thank you.

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