John Brennan
Speech on Obama Administration Antiterrorism Policies and Practices
by Marty Lederman , Sep 16, 2011
John Brennan just finished delivering this
speech at the Harvard Law School.
I believe it is the most comprehensive
single statement of the Obama Administration’s policies and practices with
respect to al Qaeda and other terrorist threats. There’s a lot of
material here that will be of interest to OJ readers. I will use boldface
to identify what seem to me to be the highlights of the speech:
September 16, 2011
September 16, 2011
Remarks of John O. Brennan – As Prepared
for Delivery
Assistant to the President for Homeland Security and Counterterrorism
Program on Law and Security, Harvard Law School, Cambridge, Massachusetts
Friday, September 16, 2011
Assistant to the President for Homeland Security and Counterterrorism
Program on Law and Security, Harvard Law School, Cambridge, Massachusetts
Friday, September 16, 2011
“Strengthening our Security by Adhering to
our Values and Laws”
As Prepared for Delivery –
Good evening. Thank you, Dan
[Meltzer], for your very kind introduction and for your service to our nation,
in both the judicial and executive branches. At the White House, Dan
helped us navigate some of the most complex legal issues related to our efforts
to keep the American people safe. I know that President Obama is grateful
for his service. And I am grateful for having had the opportunity to sit
through his many law tutorials during national security meetings in the White
House Situation Room. I dare say that those tutorials were a tad less expensive
than what some of you currently are paying for his pearls of wisdom.
It’s a pleasure to be here at Harvard Law
School, and I want to acknowledge Dean Minow and members of the staff and
faculty who are here tonight.
I especially want to thank Professor
Gabriella Blum and Benjamin Wittes of the Brookings Institution for being the
driving force behind your new Program on Law and Security. The preservation of our national
security and the laws that define us as the United States of America
demand that we understand the intersection of the two—indeed, how they
reinforce one another. So I commend you for your efforts, we look forward
to your contributions, and I very much appreciate the opportunity to be here
for your inaugural event.
It’s wonderful to see a number of friends
and colleagues who I’ve had the privilege to work with over many years—public
servants who have devoted their lives to protecting our nation. And let
me say what a thrill it is to see so many students here this evening. I
just hope your choice to listen to me on a Friday night is not an indictment of
your social lives.
Now, I am not a lawyer, despite Dan’s best
efforts. I am the President’s senior advisor on counterterrorism and
homeland security. And in this capacity—and during more than thirty years
working in intelligence and on behalf of our nation’s security—I’ve developed a
profound appreciation for the role
that our values, especially the rule of law, play in keeping our country safe. It’s an appreciation of course,
understood by President Obama, who, as you may know, once spent a little time
here. That’s what I want to talk about this evening—how we have
strengthened, and continue to strengthen, our national security by adhering
to our values and our laws.
Obviously, the death of Usama Bin Laden marked a strategic milestone in our effort to defeat al-Qa’ida. Unfortunately, Bin Laden’s death, and the death and capture of many other al-Qa’ida leaders and operatives, does not mark the end of that terrorist organization or its efforts to attack the United States and other countries. Indeed, al-Qa’ida, its affiliates and its adherents remain the preeminent security threat to our nation.
The core of al-Qa’ida—its leadership based
in Pakistan—though severely crippled, still retains the intent and capability
to attack the United States and our allies. Al-Qa’ida’s affiliates—in places
like Pakistan, Yemen, and countries throughout Africa—carry out its murderous
agenda. And al-Qa’ida adherents – individuals, sometimes with little or no
contact with the group itself – have succumbed to its hateful ideology and work
to facilitate or conduct attacks here in the United States, as we saw in the
tragedy at Fort Hood.
Guiding principles
In the face of this ongoing and evolving
threat, the
Obama Administration has worked to establish a counterterrorism framework that has been effective in
enhancing the security of our nation. This framework is guided by several
core principles.
First, our highest priority is –
and always will be – the safety and security of the American people. As
President Obama has said, we have no greater responsibility as a government.
Second, we will use every lawful tool and authority
at our disposal. No single agency or department has sole responsibility
for this fight because no single department or agency possesses all the
capabilities needed for this fight.
Third, we are pragmatic, not rigid or ideological – making decisions not
based on preconceived notions about which action seems “stronger,” but based on
what will actually enhance the security of this country and the safety of the
American people. We address each threat and each circumstance in a way
that best serves our national security interests, which includes building
partnerships with countries around the world.
Fourth—and the principle that
guides all our actions, foreign and domestic—we will uphold the core values that define us as
Americans, and that includes adhering to the
rule of law. And when I say “all our actions,” that includes
covert actions, which we undertake under the authorities provided to us by
Congress. President Obama has directed that all our actions—even when
conducted out of public view—remain consistent with our laws and values.
For when we uphold the rule of law, governments
around the globe are more likely to provide us with intelligence we need to
disrupt ongoing plots, they’re more likely to join us in taking swift
and decisive action against terrorists, and they’re more likely to turn over
suspected terrorists who are plotting to attack us, along with the evidence
needed to prosecute them.
When we uphold the rule of law, our
counterterrorism tools are more likely to withstand the scrutiny of our
courts, our allies, and the American people. And when we uphold the
rule of law it provides a powerful alternative to the twisted worldview offered
by al-Qa’ida. Where terrorists offer injustice, disorder and destruction,
the United States and its allies stand for freedom, fairness, equality, hope,
and opportunity. , (DO- rationale for upholding the rule of law
– to enlist support – pragmatic view)
In short, we must not cut corners by
setting aside our values and flouting our laws, treating them like luxuries we
cannot afford. Indeed, President Obama has made it clear—we must reject
the false choice between our values and our security. We are constantly
working to optimize both.
Over the past two and a half years, we have
put in place an approach—both here at home and abroad—that will enable this
Administration and its successors, in cooperation with key partners overseas,
to deal with the threat from al-Qa’ida, its affiliates, and its adherents in a
forceful, effective and lasting way.
, (DO- putting in place the
approach to optimize our values and security)
In keeping with our guiding principles, the
President’s approach has been pragmatic—neither a wholesale overhaul nor a
wholesale retention of past practices. Where the methods and tactics of
the previous administration have proven effective and enhanced our security, we
have maintained them. Where they did not, we have taken concrete steps to
get us back on course.
Unfortunately, much of the debate around
our counterterrorism policies has tended to obscure the extraordinary progress
of the past few years. So with the time I have left, I want to touch on a
few specific topics that illustrate how
our adherence to the rule of law advances our national security.
Nature and geographic scope of the conflict
First, our definition of the conflict.
As the President has said many times, we are at war with al-Qa’ida. In an
indisputable act of aggression, al-Qa’ida attacked our nation and killed
nearly 3,000 innocent people. And as we were reminded just last weekend,
al-Qa’ida seeks to attack us again.
Our ongoing armed conflict with al-Qa’ida
stems from our right—recognized under international law—to self defense.
An area in which
there is some disagreement is the geographic scope of the conflict.
The United States does not view our authority to use military
force against al-Qa’ida as being restricted solely to “hot” battlefields
like Afghanistan. Because we are engaged in an armed conflict with
al-Qa’ida, the United States takes the legal position that —in accordance with
international law—we have the authority to take action against al-Qa’ida and
its associated forces without doing a separate self-defense analysis each time.
And as President Obama has stated on numerous occasions, we reserve
the right to take unilateral action if or when other governments are
unwilling or unable to take the necessary actions themselves.
That does not
mean we can use military force whenever we want, wherever we want.
International legal principles, including respect for a state’s sovereignty
and the laws of war, impose important constraints on our ability to act
unilaterally—and on the way in which we can use force—in foreign territories.
(DO- On the other
hand) Others in the international
community—including some of our closest allies and partners—take a different
view of the geographic scope of the conflict, limiting it only to the “hot”
battlefields. As such, they argue that, outside of these two active
theatres, the United States can only act in self-defense against al-Qa’ida when
they are planning, engaging in, or threatening an armed attack against U.S.
interests if it amounts to an “imminent” threat.
In practice, the
U.S. approach to targeting in the conflict with al-Qa’ida is far
more aligned with our allies’ approach than many assume. This
Administration’s counterterrorism efforts outside of Afghanistan and Iraq are
focused on those individuals who are a threat to the United States, whose
removal would cause a significant – even if only temporary – disruption of the
plans and capabilities of al-Qa’ida and its associated forces. Practically speaking,
then, the question turns principally on how you define “imminence.”
We are finding increasing recognition in
the international community that a more flexible understanding of
“imminence” may be appropriate when dealing with terrorist groups,
in part because threats posed by non-state actors do not present themselves in
the ways that evidenced imminence in more traditional conflicts. After
all, al-Qa’ida does not follow a traditional command structure, wear uniforms,
carry its arms openly, or mass its troops at the borders of the nations it
attacks. Nonetheless, it possesses the demonstrated capability to strike
with little notice and cause significant civilian or military casualties.
Over time, an increasing number of our international counterterrorism partners
have begun to recognize that the traditional conception of what constitutes
an “imminent” attack should be broadened in light of the modern-day
capabilities, techniques, and technological innovations of terrorist
organizations. , (DO- the reason why we
should be more flexible on “imminence”)
The convergence of our legal views with
those of our international partners matters. The effectiveness of our
counterterrorism activities depends on the assistance and cooperation of our
allies—who, in ways public and private, take great risks to aid us in this
fight. But their participation must be consistent with their laws,
including their interpretation of international law. Again, we will never
abdicate the security of the United States to a foreign country or refrain from
taking action when appropriate. But we cannot ignore the reality that cooperative
counterterrorism activities are a key to our national defense.
The more our views and our allies’ views on these questions converge,
without constraining our flexibility, the safer we will be as a country. , (DO-
the U.S. share the flexibility with international community, particularly
allies. Pragmatically that is what matters )
Privacy and transparency at home
We’ve also worked to uphold our values and
the rule of law in a second area—our policies and practices here at home.
As I said, we will use all lawful tools at our disposal, and that includes
authorities under the renewed PATRIOT Act. We firmly believe that our
intelligence gathering tools must enable us to collect the information we
need to protect the American people. At the same time, these tools
must be subject to appropriate oversight and rigorous checks and
balances that protect the privacy of innocent individuals. ,
As such, we have ensured that investigative
techniques in the United States are conducted in a manner that is consistent
with our laws and subject to the supervision of our courts. We have also
taken administrative steps to institute additional checks and balances, above
and beyond what is required by law, in order to better safeguard the
privacy rights of innocent Americans.
Our democratic values also include—and our
national security demands—open and transparent government. Some
information obviously needs to be protected. And since his first days in
office, President Obama has worked to strike the proper balance between the
security the American people deserve and the openness our
democratic society expects.
In one of his first acts, the President
issued a new Executive Order on classified information that, among other
things, reestablished the principle that all classified information will
ultimately be declassified. The President also issued a Freedom of
Information Act Directive mandating that agencies adopt a presumption of
disclosure when processing requests for information.
The President signed into law the first
intelligence authorization act in over five years to ensure better oversight of
intelligence activities. Among other things, the legislation revised the
process for reporting sensitive intelligence activities to Congress and created
an Inspector General for the Intelligence Community.
For the first time, President Obama
released the combined budget of the intelligence community, and reconstituted
the Intelligence Oversight Board, an important check on the government’s
intelligence activities. The President declassified and released legal
memos that authorized the use, in early times, of enhanced interrogation
techniques. Understanding that the reasons to keep those memos secret had
evaporated, the President felt it was important for the American people to
understand how those methods came to be authorized and used.
The President, through the Attorney General,
instituted a new process to consider invocation of the so-called “state secrets
privilege,” where the government can protect information in civil lawsuits.
This process ensures that this privilege is never used simply to hide
embarrassing or unlawful government activities. But, it also recognizes
that its use is absolutely necessary in certain cases for the protection of
national security. I know there has been some criticism of the
Administration on this. But by
applying a stricter internal review process, including a requirement of
personal approval by the Attorney General, we are working to ensure that this
extraordinary power is asserted only when there is a strong justification to do
so.
Detention and interrogation
Aside from the false promises of
enhanced security, the purported legality of depriving detainees of their
rights was soundly and repeatedly rejected by our courts. It came as no
surprise, then, that before 2009 few counterterrorism proposals generated as
much bipartisan support as those to close Guantánamo. It was widely
recognized that the costs associated with Guantánamo ran high,
and the promised benefits never materialized.
That was why—as Dan knows so well—on one of
his first days in office, President Obama issued the executive order to close
the prison at Guantánamo. Yet, almost immediately, political support for
closure waned. Over the last two years Congress has placed
unprecedented restrictions on the discretion of our experienced
counterterrorism professionals to prosecute and transfer individuals held at
the prison. These restrictions prevent these professionals—who have
carefully studied all of the available information in a particular
situation—from exercising their best judgment as to what the most appropriate
disposition is for each individual held there.
The Obama Administration has made its views on this
clear. The prison at Guantánamo
Bay undermines our national security, and our nation will be more secure the
day when that prison is finally and responsibly closed. For all of the
reasons mentioned above, we will not send more individuals to the prison at
Guantánamo. And we continue to urge Congress to repeal these
restrictions and allow our experienced counterterrorism
professionals to have the flexibility they need to make individualized, informed decisions about where to bring terrorists to justice and when and
where to transfer those whom it is no longer in our interest to detain.
Nevertheless, some have suggested that we do not have a
detention policy; that we prefer to kill suspected terrorists, rather than
capture them. This is absurd, and I want to take this
opportunity to set the record straight. As a former career
intelligence professional, I have a profound appreciation for the value of
intelligence. Intelligence disrupts terrorist plots and thwarts attacks.
Intelligence saves lives. And one of our greatest sources of
intelligence about al-Qa’ida, its plans, and its intentions has been the
members of its network who have been taken into custody by the United States
and our partners overseas.
So I want to be very clear—whenever it is possible to capture a
suspected terrorist, it is the unqualified preference of the
Administration to take custody of that individual so we can obtain
information that is vital to the safety and security of the American
people. This is how our soldiers and counterterrorism professionals have
been trained. It is reflected in our rules of engagement. And it is
the clear and unambiguous policy of this Administration.
Now, there has been a great deal of debate
about the best way to interrogate individuals in our custody. It’s been
suggested that getting terrorists to talk can be accomplished simply by
withholding Miranda warnings or subjecting prisoners to so-called “enhanced
interrogation techniques.” It’s
also been suggested that prosecuting terrorists in our federal courts somehow
impedes the collection of intelligence. A long record of experience,
however, proves otherwise.
Consistent with
our laws and our values, the President unequivocally banned torture and other
abusive interrogation techniques, rejecting the claim that these are effective
means of interrogation. Instead, we have
focused on what works. The President approved the creation of a
High-Value Detainee Interrogation Group, or HIG, to bring together resources
from across the government – experienced interrogators, subject matter experts,
intelligence analysts, and linguists – to conduct or assist in the
interrogation of those terrorists with the greatest intelligence value – both
at home and overseas. Through the HIG, we have brought together the
capabilities that are essential to effective interrogation, and ensured they
can be mobilized quickly and in a coordinated fashion.
Claims that Miranda
warnings undermine intelligence collection ignore decades of experience to
the contrary. Yes,
some terrorism suspects have refused to provide information in the criminal
justice system, but so have many individuals held in military custody, from
Afghanistan to Guantánamo, where Miranda warnings were not given. What is
undeniable is that many individuals in the criminal justice system have
provided a great deal of information and intelligence—even after being given
their Miranda warnings. The real
danger is failing to give a Miranda warning in those circumstances where it’s
appropriate, which could well determine whether a terrorist is convicted and
spends the rest of his life behind bars, or is set free.
Moreover, the Supreme Court has
recognized a limited exception to Miranda, allowing statements to be
admitted if the unwarned interrogation was “reasonably prompted by a concern
for public safety.” Applying this public safety exception to the more
complex and diverse threat of international terrorism can be complicated, so our
law enforcement officers require clarity.
Therefore, at the end of 2010, the FBI
clarified its guidance to agents on use of the public safety exception to
Miranda, explaining how it should apply to terrorism cases. The FBI
has acknowledged that this exception was utilized last year, including during
the questioning of Faisal Shahzad, accused of attempting to detonate a car bomb
in Times Square. Just this week in a major terrorism case, a federal
judge ruled that statements obtained under the public safety exception before
the defendant was read his Miranda rights are, in fact, admissible at trial.
Some have argued that the United States
should simply hold suspected terrorists in law of war detention indefinitely.
It is worth remembering, however,
that, for a variety of reasons, reliance upon military detention for
individuals apprehended outside of Afghanistan and Iraq actually began to
decline precipitously years before the Obama Administration came into
office.
In the years following the 9/11 attacks,
our knowledge of the al-Qa’ida network increased and our tools with which to
bring them to justice in federal courts or reformed military commissions were
strengthened, thus reducing the need for long-term law of war detention.
In fact, from 2006 to the
end of 2008, when the previous administration apprehended terrorists overseas
and outside of Iraq and Afghanistan, it brought more of those individuals to
the United States to be prosecuted in our federal courts than it placed
in long-term military detention at Guantánamo.
Article III courts & reformed military
commissions
When we succeed in capturing suspected
terrorists who pose a threat to the American people, our other critical
national security objective is to maintain a viable authority to keep those
individuals behind bars. The
strong preference of this Administration is to accomplish that through prosecution, either in an Article III
court or a reformed military commission. Our decisions
on which system to use in a given case must be guided by the factual and legal
complexities of each case, and relative strengths and weaknesses of each
system. Otherwise, terrorists could be set free, intelligence lost, and
lives put at risk.
That said, it is the firm position of the Obama Administration that suspected terrorists
arrested inside the United States will—in keeping with long-standing
tradition—be processed through our Article III courts. As they
should be. Our military does not patrol our streets or enforce our
laws—nor should it.
This is not a radical idea, nor is the idea
of prosecuting terrorists captured overseas in our Article III courts.
Indeed, terrorists captured beyond our borders have been
successfully prosecuted in our federal courts on many occasions. Our federal courts are time-tested, have unquestioned
legitimacy, and, at least for the foreseeable future, are capable of producing
a more predictable and sustainable result than military commissions. The
previous administration, successfully prosecuted hundreds of suspected
terrorists in our federal courts, gathering valuable intelligence from several
of them that helped our counterterrorism professionals protect the American
people. In fact, every single suspected terrorist taken into custody on
American soil—before and after the September 11th attacks—has first been taken
into custody by law enforcement.
In the past two years alone, we have
successfully interrogated several terrorism suspects who were taken into law
enforcement custody and prosecuted, including Faisal Shahzad, Najibullah Zazi,
David Headley, and many others. In fact, faced with the firm but fair
hand of the American justice system, some of the most hardened terrorists have
agreed to cooperate with the FBI, providing valuable information about
al-Qa’ida’s network, safe houses, recruitment methods, and even their plots and
plans. That is the outcome that all Americans should not only want, but
demand from their government.
Similarly, when
it comes to U.S. citizens involved in terrorist-related activity, whether
they are captured overseas or at home, we will prosecute them in
our criminal justice system. There is bipartisan agreement that U.S.
citizens should not be tried by military commission. Since 2001, two U.S.
citizens were held in military custody, and after years of controversy and
extensive litigation, one was released; the other was prosecuted in federal
court. Even as the number of U.S. citizens arrested for terrorist-related
activity has increased, our civilian courts have proven they are more than up
to the job.
In short, our Article III courts
are not only our single most effective tool for prosecuting,
convicting, and sentencing suspected terrorists—they are a proven tool for gathering
intelligence and preventing attacks. For these reasons,
credible experts from across the political spectrum continue to demand that our
Article III courts remain an unrestrained tool in our counterterrorism toolbox.
And where our counterterrorism professionals believe prosecution in our
federal courts would best protect the full range of U.S. security interests and
the safety of the American people, we will not hesitate to use them. The
alternative—a wholesale refusal to
utilize our federal courts—would undermine our values and our security.
At the same time, reformed military
commissions also have their place in our counterterrorism arsenal.
Because of bipartisan efforts to ensure that military commissions provide
all of the core protections that are necessary to ensure a fair trial, we have
restored the credibility of that system and brought it into line with our
principles and our values. Where our counterterrorism professionals
believe trying a suspected terrorist in our reformed military commissions would
best protect the full range of U.S. security interests and the safety of the American
people, we will not hesitate to utilize them to try such individuals. In
other words, rather than a rigid reliance on just one or the other, we will use both our federal courts and
reformed military commissions as options for incapacitating terrorists.
As a result of recent reforms, there are
indeed many similarities between the two systems, and at times, these reformed
military commissions offer certain advantages. But important differences
remain—differences that can determine whether a prosecution is more likely to
succeed or fail.
For example, after Ahmed Warsame—a member
of al-Shabaab with close ties to al-Qa’ida in the Arabian Peninsula—was
captured this year by U.S. military personnel, the President’s national
security team unanimously agreed that the best option for prosecuting him was
our federal courts, where, among other advantages, we could avoid significant
risks associated with, and pursue additional charges not available in, a
military commission. And, if convicted of certain charges, he faces a
mandatory life sentence.
In choosing between our federal courts and
military commissions in any given case, this Administration will remain focused
on one thing—the most effective way to keep that terrorist behind bars. The
only way to do that is to let our experienced counterterrorism professionals
determine, based on the facts and circumstances of each case, which system will
best serve our national security interests.
In the end, the Obama Administration’s
approach to detention, interrogation and trial is simple. We have
established a practical, flexible, results-driven approach that maximizes our
intelligence collection and preserves our ability to prosecute dangerous
individuals. Anything less—particularly a rigid, inflexible approach—would
be disastrous. It would tie the hands of our counterterrorism
professionals by eliminating tools and authorities that have been absolutely
essential to their success.
Capacity building abroad
This brings me a final area where upholding
the rule of law strengthens our security—our
work with other nations. As we have seen from Afghanistan in the
1990s to Yemen, Somalia and the tribal areas of Pakistan today, al-Qa’ida and
its affiliates often thrive where there is disorder or where
central governments lack the ability to effectively govern their own territory.
In contrast, helping such countries build a
robust legal framework, coupled with effective institutions to enforce them and
the transparency and fairness to sustain them, can serve as one of our most
effective weapons against groups like al-Qa’ida by eliminating the very chaos
that organization needs to survive. That is why a key element of this
Administration’s counterterrorism strategy is to help governments build their capacity, including a robust
and balanced legal framework, to provide for their own security.
Though tailored to the unique circumstances
of each country, we are working with countries in key locations to help them
enact robust counterterrorism laws and establish the institutions and
mechanisms to effectively enforce them. The establishment of a
functioning criminal justice system and institutions has played a key role in
the security gains that have been achieved in Iraq. We are working
to achieve similar results in places like Afghanistan, Iraq, Yemen,
Pakistan, and elsewhere.
These efforts are not a blank check. As
a condition of our funding, training, and cooperation, we require that our partners comply with certain
legal and humanitarian standards. At times, we have curtailed or
suspended security assistance when these standards are not met. We
encourage these countries to build a more just, more transparent system that
can gain the respect and support of their own people.
As we are seeing across the Middle East and
North Africa today, courageous people will continue to demand one of the most
basic universal rights—the right to live in a society that respects the rule of
law. Any security gains will be short-lived if these countries fail to
provide just that. So where we see countries falling short of these basic
standards, we will continue to support efforts of people to build institutions
that both protect the rights of their own people and enhance our collective
security.
Flexibility—critical to our success
In conclusion, I want to say again that the
paramount responsibility of President Obama, and of those of us who serve with
him, is to protect the American people. To save lives. Each of the tools I have discussed
today, and the flexibility to apply them to
the unique and complicated circumstances we face, are critical to our success.
This President’s counterterrorism framework
provides a sustainable foundation upon which this Administration and its
successors, in close cooperation with our allies and partners overseas, can
effectively deal with the threat posed by al-Qa’ida and its affiliates and
adherents. It is, as I have said, a practical, flexible, result-driven
approach to counterterrorism that is consistent with our laws, and in line with
the very values upon which this nation was founded. And the results we
have been able to achieve under this approach are undeniable. We divert
from this path at own peril.
Yet, despite the successes that this
approach has brought, some—including some legislative proposals in Congress—are
demanding that we pursue a radically different strategy. Under that
approach, we would never be able to turn the page on Guantánamo. Our
counterterrorism professionals would be compelled to hold all captured
terrorists in military custody, casting aside our most effective and
time-tested tool for bringing suspected terrorists to justice—our federal
courts. Miranda warnings would be prohibited, even though they are at
times essential to our ability to convict a terrorist and ensure that individual
remains behind bars. In sum, this approach would impose unprecedented
restrictions on the ability of experienced professionals to combat terrorism,
injecting legal and operational uncertainty into what is already enormously
complicated work.
I am deeply concerned
that the alternative approach to counterterrorism being advocated in some
quarters would represent a drastic departure from our values and the body of
laws and principles that have always made this country a force for positive
change in the world. Such a departure would not only risk rejection by
our courts and the American public, it would undermine the international
cooperation that has been critical to the national security gains we have made.
Doing so would
not make us safer, and would do far more harm than good. Simply put, it
is not an approach we should pursue. Not when we have al-Qa’ida on the
ropes. Our counterterrorism professionals—regardless of the
administration in power—need the flexibility to make well-informed decisions
about where to prosecute terrorist suspects.
To achieve and maintain the appropriate
balance, Congress and the Executive Branch must continue to work together.
There have been and will continue to be many opportunities to do so in a
way that strengthens our ability to defeat al-Qa’ida and its adherents.
As we do so, we must not tie the hands of our counterterrorism
professionals by eliminating tools that are critical to their ability to keep
our country safe.
As a people, as a nation, we cannot—and we
must not—succumb to the temptation to set aside our laws and our values when we
face threats to our security, including and especially from groups as depraved
as al-Qa’ida. We’re better than that. We’re better than them.
We’re Americans.
Thank you all very much
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-
Our values – the rule of law – plays a role
in keeping our country safe ; the roles is
-
Strengthen our national
security by adhering to our values and our laws
Guiding principles (counter-terrorism
framework) in the face of this ongoing and evolving threat
-
(1)
highest priority is the safety and security of American people
-
(2)
use every lawful tool at our disposal
-
(3)
pragmatic – in a way that best serve our national security interest
-
(4)
uphold our core value – rule of law ; optimize the both – our values and
our security
o
Why the rule of law strengthen national
security?
§
When upholding the rule of law, withstand
the scrutiny of our courts, allies, and the American people ;
§
enable the U.S, to enlist support ; as
opposed to getting isolated due to war on terror
a few specific topics that illustrate how
adherence to the rule of law advances our national security
-
nature and geographic scope of the conflict
o
war on terror is not restricted solely to
“hot” battlefields ; it can expand to a State that is unwilling or unable to
take measures necessary to fight terrorism ; is it against the rule of law
?
§
9/11 was an act of aggression ; war on
terror constitutes self-defense
§
the U.S.’s war on terror can expand to a
State that is unwilling or unable with restriction imposed by a state’s
sovereignty and the laws of war
o
the key question is whether the threat
posed by Al-Qaida is “imminent” (in relation to self-defense)
§
given uniqueness of the threat posed by
non-state actor, international community increasingly agrees on a more flexible
understanding of “imminence”
§
Thus, expansion of war on terror to a place
like Yemen is justified by the flexible understanding of “imminence”
o
Not only that war on terror in places like
Yemen is consistent with the rule of law, but that it does not hamper the
efforts of the U.S. to enlist support from its allies, coz int’l community
agrees on the need to tailor the concept of “imminence” to conflict with
non-state actor
-
Privacy and transparency at home
o
The intelligence
gathering tools should enable the U.S. to protect Americans, and, at the same
time, protect privacy of Americans by subjecting the tools to oversight,
whether legislative or administrative
§
Strike the proper balance b/w the security
the Americans deserve and the openness the democratic society expects
§
A series of measures President Obama took
to make intelligence gathering process more transparent
-
Detention and interrogation
o
;; the false promises of
enhanced security + cost ran high ; but, political support for closure waned
§
Congress placed restrictions on the
discretion of counterterrorism professionals to make individualized, informed
decision about where to bring terrorists to justice and when and where to
transfer those ; Congress must repeal the restrictions
o
review of detention and interrogation
practice
§
Wherever possible to capture a suspected
terrorist, the unqualified preference of the Obama Administration is to take
custody of .. so that we can obtain information
§
Banned torture and other abusive
interrogation techniques (e.g. “enhanced interrogation techniques”)
·
Created High-Value Detainee Interrogation
Group
§
Miranda warning
·
Real danger is failing to give a Miranda
warning, which could determine whether a terrorist is convicted and spends the
rest of his life behind bars
o
§
reliance on military detention (for
individuals apprehended outside of Afghanistan and Iraq) began to decline
precipitously years before the Obama Administration came into office
-
trial : Article III courts & reformed
military commissions
o
to keep those individuals behind bars ; the
strong preference of this Administration is .. through prosecution wither in an
Article III court or a reformed military commission
§
our Article III courts are not only .. effective
tool for prosecuting, convicting, and sentencing suspected terrorists—they are
a proven tool for gathering intelligence
-
capacity building abroad – the U.S. works
with other nations
o
key element of counter-terrorism strategy
is to help government build their capacity
§
terrorists thrive where there is disorder
or where central governments lack the ability to effectively govern their own
territory
o
the help is not a blank check
§
as a condition of our funding, training,
and cooperation, .. certain legal and humanitarian standards
flexibility – critical to our success
-
Each of the tools I have discussed
today, and the flexibility to apply them to the unique and complicated
circumstances we face, are critical to our success
