Prepared Remarks of Attorney General

Alberto R. Gonzales
at the U.S. Air Force Academy
Regarding Civil Liberties and the War
on Terrorism
Colorado Springs, Colorado
November 20, 2006
Good morning.

Somewhere in the world – right now – an Army private stands guard at a lonely
lookout post…

Somewhere in the world – right now – a Navy Lieutenant leads his seal team in a
covert operation to gather intelligence information…

Somewhere in the world – right now – an Air Force major sits in the cockpit of his
F-16 fighter preparing to drop armament over a theater of operations.

And somewhere – right now – an American family is grieving over the loss of a
young son … of a daughter … killed in defense of our Country.

The United States is the most powerful nation in the world. Throughout the history
of our great nation, our military has been tested and called upon to defend freedom
… and warriors have died.

So when I look out at your bright, young faces, I feel a range of emotions. As a
parent, I am anxious and concerned for your safety and welfare. As a cabinet
official, I feel a sense of comfort that America’s best and brightest are leading our
military. And as an American citizen, I feel pride and gratitude for your
commitment and sacrifice on behalf of 300 million Americans. You chose this noble
profession after the September 11th attacks. So you have answered this calling
knowing well the dangers and the enemy that confronts the United States in this
world of terrorism and asymmetric warfare.

I had a chance, this past summer, to visit for the second time the front-lines of the
war on terror in Iraq. And I was inspired by the steadfast resolve of our men and
women in uniform, as well as our civil servants who are there to help the Iraqi
people establish their new government.

You are here at the Air Force Academy at a time of great historic significance. Your
studies and your experience here inevitably focus on your future role in this conflict,
because America will rely upon you as we continue to wage this war. As Air Force
officers, you will be involved in fighting it. Today, as students, you seek to
understand it.

I am here, as Attorney General of the United States, to discuss how civil liberties
factor into the fight at hand. I appreciate the topic of this lecture because it is critical
that we never lose sight of civil liberties while we fight the War on Terror, or any
other war.

To achieve victory at the cost of eroding civil liberties would not really be a victory.
We cannot change the core identity of our Nation and claim success.

And our identity has never been in doubt – we are a free people, dedicated to liberty
for the popular and the unpopular, committed to the ideal that the People govern
themselves, and determined to have a government that cannot extinguish or
suppress the rights that make us Americans.

So I look forward to our discussion today on this vital topic. And I encourage you,
during this lecture and whenever you find yourself engaged in conversation or
debate on these issues, to keep in mind this irony: that our ability to have this debate
is one of the very things our enemy hates about our society.

Free speech. Freedom of association. These values are repulsive to the radical
Islamic terrorist. They fear them and suppress them whenever and wherever they
can. Yet through those very means, we as a society are protective of that terrorist’s
rights.

This is ironic, but good. Because, as you well know, America has a unique
responsibility to set the global standard for liberty and fair conduct. The world looks
to us to set high standards for freedom, and we take that leadership role very
seriously. Our commitment to leading by example – on issues from human rights to
free speech – is strong.

Indeed, other countries strike a different balance between security and freedom,
both in the activities they punish as crimes, and in the procedures with which they
do so. In some instances, our allies have adopted or utilized some counterterrorism
tools that we have not adopted in the United States because doing so would abridge
the civil liberties protected by our constitution.

For example, speaking out in support of past terrorist acts is punishable in several
European countries, including Italy, Spain, and France. And after the July 2005
terrorist attacks in London, the United Kingdom passed a law making it a crime to
directly or indirectly encourage terrorism, or to disseminate terrorist publications, or
to post “terrorist publications” on the Internet. Laws like these contain aspects that
would be inconsistent with the First Amendment if adopted in the United States.

Another example: In France, police can hold suspects in custody for up to 96 hours
if there are plausible reasons to suspect that the person has been involved in a
terrorism offense, or up to six days if there is a serious danger that acts of terrorism
are believed to be imminent. Compare this to our country, where there must be a
probable cause hearing within 48 hours of a suspect’s arrest.

And in the United Kingdom, the arrest or search of a suspected terrorist is allowed
if law enforcement “reasonably suspects” the person to be a terrorist or to possess
“anything which may constitute evidence that he is a terrorist.” This reasonable
suspicion standard is a lesser standard than the “probable cause” standard required
under the Fourth Amendment of the U.S. Constitution. The terrorism suspect can be
detained in the United Kingdom for up to 28 days, and the reviewing official still
does not need to find probable cause–only that there are reasonable grounds to
believe that detention is necessary to obtain relevant evidence.

In short, there are a variety of approaches to combating terrorism, and each country,
including ours, makes choices based on their unique legal system.

In spite of what I see as America’s clear commitment to civil liberties, some critics
have suggested that recent U.S. policy decisions are setting a bad example – that we
are sacrificing civil liberties, and even that we are doing so in a futile effort against
terrorism.

These are myths. Let me share with you the facts.

First, the war is, indeed, broad, difficult and ongoing – but our enemies are on their
heels; we are making progress.

We’ve taken away the “home base” for al Qaeda in Afghanistan. We’ve destroyed
training camps, cut off funding channels, and disrupted means of communication.

Architects of the September 11th attacks have been captured and interrogated …
and we have learned vital information from them which has enabled us to prevent
further attacks. Khalid Sheikh Mohammed, Abu Zubaydah, and Ramzi bin al Shibh
today await justice before a Military Commission at Guantanamo Bay.

We have disrupted plots and put homegrown radicals behind bars. In August of this
year, British authorities – with the assistance of the FBI – disrupted what would
have been a major terrorist attack on U.S.-bound planes with massive casualties.

So it is a fact that we are safer, even if we are not yet safe.

We are winning because of the tools we have developed, the passion and
persistence with which we fight, and the flexibility that our armed forces and law
enforcement officials have shown on the battlefields of this conflict – both abroad
and also in disrupting terrorist plots at home.

As part of our nation’s proud military tradition, you should take great pride in being
part of a force that is combating terrorism, world-wide. You will be led by brave
men and women who have adapted to the most difficult of circumstances, and I
applaud all of you, and all Americans in uniform, for that.

What does this have to do with civil liberties? Some critics, pointing to the tools
that are helping us win the War on Terror, have challenged them as inconsistent
with our nation’s historic commitment to civil liberties. I am disappointed that there
are so many myths as a result of those questions, but I welcome the debate and the
opportunity I have to address the facts surrounding the Terrorist Surveillance
Program, the Patriot Act, as well as Guantanamo Bay and the recent Military
Commissions Act—which do not directly relate to Americans’ civil liberties, but
which indicate how seriously we take even the rights of enemy combatants.

***

Common myths about the Terrorist Surveillance Program are that it is an invasion
of privacy and an unlawful eavesdropping tool.

I want to be very clear about the facts here: the Terrorist Surveillance Program does
not invade anyone’s privacy, unless you are talking to the enemy in this time of war.
It targets only international communications in which we have reasonable grounds
to believe that one party is a member or agent of al Qaeda or an affiliated terrorist
organization. The TSP is lawful. The President established the Program under both
the authority given to him by Congress when it passed the Authorization for Use of
Military Force in the wake of the 9/11 attacks, and by his authority under the
Constitution.

The Program serves as an essential early warning system, alerting us to the presence
of al Qaeda operatives in the United States, and it operates with the speed and
agility necessary to protect the nation. The Program does not violate any
constitutional freedoms. History and law both confirm this. The Program is, in fact,
nothing more than a modern-day version of the “signals” intelligence that our
country has gathered and relied upon in every conflict in our history, and that every
nation has relied upon.

In every conflict we have been in, the United States government has needed to
know what the enemy is doing, and signals intelligence provides one of the most
important ways to do that.

George Washington, for example, steamed open the mail in our earliest fight for
freedom. During the Civil War, telegrams were intercepted. During both World
Wars, we intercepted telegrams in and out of the United States.

We have always worked to stay a step ahead of our enemies. The President’s core
duty under the Constitution is to protect the nation from foreign attack, and
presidents have always done this by uncovering the communications our enemies
use in harming our people.

To be certain that the Program is no broader than it must be, it is regularly reviewed
to ensure the protections of civil liberties. Indeed, about every 45 days, the Program
is reviewed to ensure that is still necessary, that there is no better way to achieve the
same objectives, and that it remains reasonable under the Fourth Amendment.

Importantly, in addition to being lawful, the Terrorist Surveillance Program is

effective. Indeed, it has proven to be one of our most effective tools in the war
against terrorism. U.S. intelligence officials have confirmed that the program has
helped stop terrorist attacks and has saved American lives.

I wish to be very clear: The only purpose of the Terrorist Surveillance Program is to
detect and prevent al Qaeda attacks before they can be carried out. It is narrowly
focused in every way – by targeting only the communications of al Qaeda, by
targeting only international communications, and by requiring high-level approval,
as I mentioned before, approximately every 45 days.

Some people will argue nothing could justify the government being able to intercept
conversations like the ones the Program targets. Instead of seeing the government
protecting the country, they see it as on the verge of stifling freedom.

But this view is shortsighted. Its definition of freedom – one utterly divorced from
civic responsibility – is superficial and is itself a grave threat to the liberty and
security of the American people.

As Justice Robert Jackson remarked in the case Terminiello v. City of Chicago,

“The choice is not between order and liberty. It is between liberty with order and
anarchy without either. There is danger that, if the Court does not temper its
doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill
of Rights into a suicide pact.”

***

Justice Jackson’s call for, quote, “a little practical wisdom,” close quote, applies not
only to those who misleadingly attack the Terrorist Surveillance Program, but also
to those who endlessly repeat the refrain that the Patriot Act is a threat to our civil
liberties.

It is a myth that the Patriot Act empowers the government to be overly intrusive,
giving it power that could someday be used to pry into innocent Americans’
personal lives.

The fact is that the Patriot Act was born of a well-established criminal justice and
national security structure as well as vibrant bi-partisan debate in Congress, both
upon its establishment and its renewal.

The Act was written to help the law enforcement and intelligence communities to
protect Americans and fight the war on terror. It, in fact, answered the call of career,
rank and file law enforcement to update our laws to match law-enforcement tools
with modern technology.

The Patriot Act simply ensures that law enforcement and national security personnel
have the tools they need to keep us safe from terrorism – and in many cases those
tools were already available to law enforcement in other contexts – while also
ensuring that those tools are consistent with the Constitution and include appropriate
safeguards against government over-reaching.

The Patriot Act does not authorize the government to go into your house or read
your mail without probable cause and a warrant.

It does allow law enforcement and intelligence personnel to better share information
and better coordinate with each other. It does give national security investigators
tools like those criminal investigators have used for years.

And it does update the law to keep up with evolving technology and increasingly
sophisticated terrorists.

Many of the tools in the Patriot Act are identical to those that have been used for
years to investigate drug dealers and white-collar crime. They've been used
effectively, and they've been used without an adverse impact on civil liberties. So
criticism of the Patriot Act has always begged the question: if we can use these
tools successfully and prudently in the area of dealing with, say, drug traffickers,
why shouldn’t they be used in the war against terrorists who want to import
chemical, biological or even nuclear weapons to inflict mass civilian casualties?

***

You surely have heard the myth that the U.S. is holding detainees in Guantanamo
Bay in violation of international laws and basic human rights. This is not supported
by the facts. It is a mistaken perception.

First, the detention facility at Guantanamo exists because it is necessary. The facility
will not remain open one day longer than it is needed, but until then we have an
obligation to our warriors, to the men and women fighting in uniform, that we hold
these individuals while hostilities continue.

The United States has no desire to be the world’s jailer, but we do have an
obligation to both our own troops and to the soldiers of our allies to detain and
remove terrorists from the battlefields of this conflict.

In doing so, the United States strives mightily to meet all of our international
obligations. Unfortunately, the debate over U.S. compliance with the Geneva
Conventions has been unnecessarily muddied when it comes to Guantanamo.

We read a lot about this in the newspapers and hear about it on TV or the radio –
but I’d like to boil it down to one simple fact today: the United States provides
individuals detained as enemy combatants at Guantanamo with more procedural
protections than those owed to lawful prisoners of war under the Geneva
Conventions.

We have put in place extensive procedures to ensure that the individuals we detain
at Guantanamo are, in fact, enemy combatants. Every detainee has received, or will
receive, a hearing before a Combatant Status Review Tribunal, or “CSRT,” a fair
military tribunal that exists to determine whether the individual is in fact an enemy
combatant.

And detainees have the right to appeal CSRT determinations to the U.S. Court of
Appeals for the D.C. Circuit. In other words, every detainee at Guantanamo has the
chance to challenge his detention, in court. The Department of Defense has further
established Administrative Review Boards, or ARBs, that review the status of each
detainee annually and may direct the release of detainees whom the ARB
determines no longer pose a threat to the United States and can be repatriated safely
to their home countries.

The processes provided detainees are not, however, without risk. As you may know,
there have been over a dozen occasions where a detainee was released but then
returned to fight against the United States and our allies again. What would you say
to the parents of a young soldier who has been killed by someone we had once
captured and then released? Whatever process is afforded detainees, it must fully
account for the high stakes involved in this war.

Military Commissions, like international war crimes tribunals, employ procedures

that are adapted to wartime circumstances. Nevertheless, they contain all of the
procedural protections that civilized nations regard as fundamental.

What is extraordinary, in other words, is how much – not how little – our law
protects enemy combatants.

That the government is so anxious to give these rights to enemy combatants, who
are not U.S. citizens and are not in the United States, should make it obvious that
the government is even more committed to ensuring that the civil liberties of
Americans are zealously guarded. When you hear sneering references to “Gitmo,”
or assertions that military commissions are hopelessly unfair, I hope you will be
armed with the facts – and that you will remember that our treatment of enemy
combatants is itself evidence of how strongly we value civil liberties.

***

And what about torture? Again, there are many misconceptions, and many myths.
Let me be clear here today: Our law plainly and unequivocally prohibits torture as
well as cruel, inhuman, and degrading treatment. The United States does not engage
in torture, and consistent with our law and practice, no evidence obtained by torture
shall be admitted at a military commission proceeding.

Torture is not tolerated by this country on the battlefield or off. Anyone who tortures
or abuses a detainee tarnishes the service of every honorable student and soldier in
this room today. The President has said this, and I will say it again: those who
commit torture in the name of the United States government will be prosecuted.

In any discussion of Guantanamo, detainees and military commissions, I think that

one final fact helps put things in perspective – and that is the fact that members of al
Qaeda are not merely common criminals. Some critics around the world have
argued that they are “just” criminals, that their crimes somehow do not amount to
war crimes.

But here are the facts: al Qaeda seeks to employ weapons of mass slaughter as a
means of achieving political goals against both the civilian and military capacity of
the United States, Europe, and our allies throughout the world. Its members
continue to fight our Armed Forces on battlefields around the world, and they will
continue to do so until we stop them. Al Qaeda has committed acts on a scale that
transcends mere crime, as recognized by NATO immediately after the attacks of
September 11th. Their crimes are therefore nothing less than war crimes. Given the
magnitude of the atrocities al Qaeda has committed, there can be no comparison
between the crimes of its members and that of common civilian criminals.

As a final point in this area, I offer an observation: the United States has rightfully
positioned itself in this conflict and other conflicts throughout history as a mature
and moral leader – an example to follow. Yet we know that the fair and humane
treatment of the detainees at Guantanamo will have absolutely no effect on how
their confederates treat our soldiers and civilians.

They will not rise to our good example. They do not and will not obey international
law, the law of war or the moral laws of humanity. They will not hold trials or offer
counsel or defense. They will torture, abuse and swiftly murder those who they
capture. They do not have prisoners; they behead those they capture. And their
victims are not limited to those wearing the uniform – they are equal-opportunity
murderers, targeting soldiers, humanitarian volunteers, journalists, missionaries,
contractors – men and women, young and old – all the same.
In treating terrorist detainees humanely, we accept that there will be no reciprocity
on these issues. But we do it because of our values as a nation, and because the
United States has always stood, and continues to stand, for the rule of law in the
world.

***

In closing, today’s visit has resurrected so many memories. I remember a Saturday

morning inspection in my Fourth Class year, when an upperclassman found a dust-
bunny underneath my roommate’s bunk.

My roommate and I were standing at attention with the upperclassman holding the
dust-bunny on his white-gloved index finger just inches from my roommate’s face.
As he dressed us down for the discrepancy, he looked back and forth between us.
Suddenly, at a moment when the upperclassman was looking at me, my roommate
blew the dust-bunny off of his outstretched finger.

Needless to say, the mischievous act provoked quite a reaction and that tiny puff of
air caused us suffering that lasted several weeks.

Since that year, there have been many important changes here, including the
admittance of women. But some things have not changed and should not change …
such as the continued value of academy graduates in insuring the safety of our
country from enemies across the world.

Since today’s war is fought at home, too, by the law enforcement community that I
now am part of, I want you to know that for all of us – from the prosecutors and
investigators at the Department of Justice and the FBI to state and local police – for
all of us, just as it is for all of you, every day is September 12th.

The armed forces are on the front lines, and America is grateful for the ultimate
sacrifice – but we fight together when it comes to protecting our wonderful country
from the hatred of extremists.

Thank you again for your commitment. I pray that God will watch over you. May
He continue to guide your decisions and may He continue to bless the United States
of America.

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