Fact Sheet: Intelligence Obtained Through the Criminal Justice System (pdf)
As Prepared For Delivery Remarks for John O. Brennan
Assistant to the President
For Homeland Security and Counterterrorism
Brennan Center for Justice
NYU School of Law
New York City, NY
Friday, March 18, 2011
Thank you, Michael, for your very kind introduction and for your leadership here at the Brennan Center for Justice. I have to admit, that has a nice ring to it.
Thank you very much for this invitation, which I appreciate on a very personal level. As an Irish Catholic kid from New Jersey, the role models for my generation didn’t come any better than Justice William Brennan—an Irish Catholic kid from New Jersey. And you can imagine my pride when I discovered that my family has its roots in the same part of Ireland as Justice Brennan’s family, County Roscommon. I’ve often wondered whether, just maybe, somewhere along the line, our families have shared roots. I may never know for sure, but I consider it an honor today to speak at an institution that has done so much to preserve his legacy.
Michael, as a veteran of the White House staff yourself, you know how hard it can be to escape from the West Wing for discussions like these, which are a chance to step back and take a broader look at the pressing issues of the day. In recent weeks, the pace of world events has been dizzying indeed—from the historic events across the Middle East to the devastating earthquake and tsunami in Japan.
But I very much wanted to join you to discuss a subject that I deal with directly every day and which is vital to our national security—the role of law enforcement in the post-9/11 era. And I want to take this opportunity to put that work in a broader context—the principles and policies that are guiding the President and his administration as we work to prevent acts of terrorism against the American people.
Nearly ten years after the September 11th terrorist attacks, the United States remains at war with al-Qa’ida and its associated forces. Because of the relentless pressure to which we’ve subjected it, the senior al-Qa’ida leadership is increasingly hunkered down in its safehaven in Pakistan’s tribal regions. Still, it retains the intent and capability to attack the U.S. homeland and our allies abroad.
Despite having its ideology rejected by the overwhelming majority of Muslims and being at its weakest point since 2001, the threat from al-Qa’ida is diversifying. Groups and individuals have sprung up in places like Pakistan, Yemen and North Africa and seek to commit violent acts to further al-Qa’ida’s murderous agenda.
We have also seen this problem begin to manifest itself here at home. A very small but increasing number of individuals here in the United States have become captivated by these violent causes, seeking to commit violent acts here at home – their plots disrupted in Washington, D.C., Oregon, and Maryland during the past year alone. Others have traveled abroad to join the ranks of international terrorist groups and work to further their cause.
Though it has changed significantly over the past ten years, the threat from al-Qa’ida and its adherents represents the preeminent counterterrorism challenge we face today, and protecting the American people from this threat remains our highest national security priority.
Some suggest this is largely a military and intelligence challenge with a military and intelligence solution. Our military and our intelligence professionals – and the unique capabilities they offer – are an essential part of our counterterrorism efforts. But, to argue that they are the only solution – or that we should place limitations on other tools and capabilities – is a misunderstanding of the complexity of the problem that we face.
Confronting this complex and constantly evolving threat does not lend itself to simple, straightforward solutions. No single tool alone is enough to protect the American people against this threat. We need to use all these tools, together. That is what the Obama Administration is doing. So, our counterterrorism efforts are guided by several core principles.
First, our highest priority is—and always will be—the safety and security of the American people. The United States Government has no greater responsibility.
Second, we will use every lawfully available tool at our disposal to keep the American people safe– military, intelligence, homeland security, law enforcement, diplomacy, and financial – at all levels of the government, working seamlessly.
Third, even as we are unyielding in pursuit of those who would do us harm, we will remain true to the values and ideals that have always defined us as a nation. Only by adhering to our values are we able to rally individuals, communities, and entire nations to the cause of protecting the world against the threat posed by al-Qa’ida.
Fourth, we will be pragmatic, not ideological—making decisions not on the basis of preconceived notions of which tool is perceived to be “stronger,” but based on the evidence of what works—what will actually keep America safe.
Fifth, we must retain the necessary flexibility to address each threat in a way that best serves our national security interests. When confronting the diverse and evolving threat from al-Qa’ida and its adherents, different circumstances will call for different tools.
Guided by these principles, the administration has worked hard over the past two years to establish a counterterrorism framework that is effective and sustainable. This includes the two tools you have gathered to discuss today – law enforcement and intelligence.
The intersection of these two has at times become a subject of intense debate. But to draw the conclusion that the use of law enforcement tools prior to 9/11 somehow hindered our efforts to protect the American people, and that we should therefore abandon the use of law enforcement in this conflict, would be a mistake. In the aftermath of 9/11, the challenges we had to overcome to effectively confront the terrorist threat to this country proved to be much more complicated than ever before. As a result, much of what we have seen over the past 10 years has been an evolution – to find flexible and effective ways to leverage all of our capabilities to confront an evolving threat, including our law enforcement and our intelligence capabilities.
Law enforcement and intelligence are not mutually exclusive. In fact, they can and must reinforce one another. Intelligence is absolutely critical to identifying and disrupting terrorist networks. It empowers law enforcement, informing their operations and enabling them to identify and disrupt plots before they are carried out. And intelligence often plays a critical role as evidence at criminal trials.
Law enforcement is equally indispensable. Through aggressive investigations, we have been able to identify members of terrorist networks and detect their plots. The tools available to law enforcement allow us to act swiftly to disrupt the plots we uncover, and to incapacitate dangerous individuals through successful prosecution and conviction. Law enforcement also has a well-proven track record of gathering vital intelligence through interrogation. When faced with the fair but heavy hand of American justice, terrorists have offered up valuable intelligence about al-Qa’ida and other terrorist groups.
Our challenge, therefore, has been to carefully integrate intelligence and law enforcement – consistent with our values and the rule of law – to ensure that they complement and reinforce each other.
After 9/11, our law enforcement and intelligence communities had to adapt, gain new tools and authorities, restructure, and change their cultures and operations. We updated and improved our criminal code to better empower law enforcement to disrupt plots before they take innocent lives. We eliminated the so-called “wall” to allow intelligence and law enforcement personnel to work together, a critical step toward better integration of our law enforcement and intelligence tools.
The USA Patriot Act and amendments to the Foreign Intelligence Surveillance Act provided our counterterrorism community with enhanced investigative authorities. We reorganized our intelligence, law enforcement, and CT communities to enable them to function more effectively as a whole. The Federal Bureau of Investigation has been further integrated into the Intelligence Community, and continues its transformation into an intelligence-driven organization.
Each of these steps has transformed law enforcement into a more effective counterterrorism tool, one that can be used preemptively – before an attack is attempted, before a bomb goes off. And because they remain bound by our laws and our Constitution, there will always be checks on the use of these law enforcement tools, to ensure they remain consistent with our laws and our values. As a result, today, we are better positioned to protect the American people.
That does not mean that our work is done. When it comes to the detention, interrogation and prosecution of suspected terrorists, our record is clear. Spanning two consecutive administrations, we have successfully leveraged our criminal justice system to protect the American people against the threat from al-Qai’da. According to its own figures, the Bush Administration used federal courts to prosecute suspected terrorists – including several apprehended overseas – on hundreds of occasions, including Zacarias Moussaoui, Richard Reid, Ahmed Omar Abu Ali, Ehsanul Sadequee, Oussama Kassir, and many others.
Today, this impressive record of arrest and prosecution of terrorist suspects in federal court is, unfortunately, frequently forgotten, which has prompted a debate over how best to handle, prosecute and punish those accused of trying to attack our country. That debate has, at times, been conflated with another important and consequential debate that we are engaged in with respect to the future of Guantanamo.
And nowhere does the intersection of law enforcement and intelligence – not to mention our Constitution and our values – come together as starkly as it does in Guantanamo. Before 2009, few counterterrorism proposals garnered as much support on both sides of the political aisle – from Colin Powell to President Bush and John McCain – as the proposal to close Guantanamo.
This administration, for the first time, consolidated all information about the detainees held there, and departments and agencies identified the most appropriate disposition for each individual, and recommended that we bring several individuals to justice for their crimes. The administration remains committed to the closure of Guantanamo – to do what is in the national security interest of this country – and we have continued to move forward with key elements of our plan, including restarting military commissions and providing those who will continue to be held a thorough process of periodic review to ensure their detention is necessary and justified.
But support for closing Guantanamo has inexplicably waned, and some in Congress have sought to impose unprecedented restrictions on the President’s discretion to transfer and prosecute the individuals held there.
Some have argued that all of these cases should be tried in military commissions, and have sought to bar the Executive Branch from prosecuting any Guantanamo detainees in our Article III courts.
Where we believe a military commission is appropriate, we will move forward. However, where the evidence suggests our federal courts are more likely to produce a result that is consistent with our national security, we will push Congress to repeal these restrictions so that we can take the steps necessary to bring those individuals to justice. Repeal of these unprecedented encroachments on Executive authority is critical, so that we can make informed decisions about where to bring terrorists to justice, transfer those it is no longer in our interest to detain, and achieve an essential national security objective – the closure of the detention center at Guantanamo Bay.
Even as we deal responsibly with those in our custody, we face the challenge of dealing with those we capture or arrest in the future. When arresting terrorist suspects, we must balance at least four critical national security objectives. First, disrupt the terrorist-related activity of the individual, including ongoing plots to kill innocent people. Second, gather any intelligence the individual may have that could enable us to identify and disrupt additional plots against the United States and our allies. Third, protect the intelligence, including sources and methods, that allowed us to identify or disrupt that individual and his activities. Finally, where the individual poses an enduring threat – as is often the case in terrorism investigations – provide for the sustainable incapacitation of that individual.
There can, at times, be tension between these objectives, so our core principles and values must guide our every step. When confronted with the question of where to bring someone to justice, we cannot base our decisions on preconceived notions about which system is “stronger” or “more effective” in the abstract. The factual and legal complexities of each case, and relative strengths and weaknesses of each system, must guide our decisions to ensure success. Otherwise, dangerous terrorists could be set free – intelligence lost and lives put at risk.
Terrorists arrested inside the United States will, as always, be processed exclusively through our criminal justice system. As they should be. The alternative would be inconsistent with our values and our adherence to the rule of law. Our military does not patrol our streets or enforce our laws in this country. Nor should it. 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. Our criminal justice system provides all of the authority and flexibility we need to effectively combat terrorist threats within our borders. In the aftermath of 9/11, two individuals taken into custody by law enforcement were later transferred to military custody. And after extensive litigation and significant cost, both were transferred back to law enforcement custody and prosecuted.
Similarly, when it comes to U.S. citizens involved in terrorist-related activity, whether they are apprehended overseas or here at home, we will process them exclusively through 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 in terrorist-related activity has increased, our civilian courts have proven they are up to the job – providing all of the flexibility and authority we need to counter the threat they pose.
The United States cannot expect to detain its way out of this problem. Recreating another Guantanamo runs contrary to our national security interests. So, we must work with our partners to empower them to assist us in our efforts to bring terrorists to justice. In many cases, their home country, the country in which they are apprehended, or the country they seek to attack may have a similar interest – to arrest and prosecute them. Where our partners have the capability to do so, we often work with those countries to assist them in those efforts – by sharing evidence or making witnesses available – to ensure that our collective interests are protected. Where countries lack the capability to lawfully detain and prosecute terrorists, we must work with them to develop the capabilities to mitigate the threat these individuals pose to their people and ours. Our long-term security requires that they build and maintain the capacity to provide for their own security, to root out the al-Qai’da cancer that has manifested itself within their borders and to prevent it from returning.
Where other countries are unwilling or unable to eliminate the threat an individual or network poses, we will continue to act, consistent with our legal obligations, to eliminate the threat. Where we take custody of an individual, we will maintain appropriate policies and mechanisms to preserve our ability to bring that individual to justice – in our civilian courts and our reformed military commissions.
Our legal authority to use military commissions to prosecute terrorism suspects is not limited to Guantanamo, and we will not limit it to Guantanamo as a policy matter. We will reserve the right, where appropriate, to prosecute individuals we capture in the future in reformed military commissions.
Our federal courts are unrivaled when it comes to incapacitating dangerous terrorists. Since 2001, the Department of Justice has convicted hundreds of individuals in terrorism-related cases. In many cases, the individuals have received lengthy prison sentences, and have provided significant and valuable intelligence. Law enforcement, including our federal courts, has been an indispensible part of our strategy to protect the American people, essential to efforts to disrupt, dismantle and defeat al-Qa’ida and its adherents. Where this option best protects the full range of U.S. security interests and the safety of the American people, we will not hesitate to use it.
This is not a radical idea. As former Attorney General John Ashcroft said, “Our priority should be a priority of preventing further terrorist attacks…” As he explained, “to automatically allocate people from one system to another without understanding what best achieves that priority would … be less than optimal.”
Some argue that military commissions are inherently more effective and therefore more appropriate for trying suspected terrorists. Yet our federal courts are time tested, have resulted in far more detentions and convictions, and have produced much longer sentences on average than military commissions. In choosing between our federal courts and military commissions in any given case, this administration will remain focused on producing the right result.
Because of bipartisan efforts to ensure that military commissions provide all of the core protections that are necessary to ensure a fair trial, there are remarkable similarities between commissions and our federal courts. The reformed military commission system includes the attributes Americans believe are necessary to ensure a fair trial: presumption of innocence; proof beyond a reasonable doubt; an impartial decision maker; the right to counsel, including the right to choose your counsel; government-provided representation for those who cannot afford to pay; a right to be present during court proceedings; a right to exculpatory evidence; and a right to present evidence, compel witnesses and compel favorable witness testimony.
In 2009, Congress agreed to replace the original, untested system for protecting classified information in military commission proceedings. They did so by largely codifying the rules that have proven extremely effective in our federal courts – a testament to the strength of our federal courts in protecting intelligence and comfort that our commissions will do the same going forward.
In some cases, there are advantages to military commissions. There is greater flexibility to admit hearsay evidence. Confessions can be introduced in military commissions even if Miranda warnings were not issued, but they have to be reliable and, except in limited circumstances, voluntary.
Though others, such as the former Assistant Attorney General for National Security David Kris, have spoken eloquently about the relative merits of both system, the advantages of our federal courts often go under-appreciated. Our federal courts have a significantly broader scope – a substantially longer list of offenses can be leveraged to prosecute terrorists regardless of the terrorist organization they belong to. Federal courts provide greater clarity and predictability; decades of experience prosecuting terrorists in this system allow us to predict with a greater degree of certainty the admissibility of evidence or even the likely outcome. Federal courts provide a greater degree of finality – the results of successful prosecutions are more sustainable because the validity of the offenses and the system as a whole are less susceptible to legal challenge. Finally, federal courts facilitate cooperation with our partners in bringing terrorists to justice – some of our most important allies will not hand over terrorists, or the evidence needed to convict them, unless we commit to only using it in our federal courts.
Because of the reforms passed by Congress, we succeeded in bringing the military commission system in line with the rule of law, and with our values. Today, both systems—the federal courts and military commissions—can be used to disrupt terrorists’ plots and activities, to gather intelligence, and to incapacitate them through prosecution. But, we must let the facts and circumstances of each case determine which tool we use. That is the only way to ensure we achieve the result that best serves the safety and security of the American people.
As a former career intelligence professional, I understand the value of intelligence. And, when it comes to protecting the American people from al-Qa’ida and its adherents, intelligence is critical to identifying and disrupting their plots, as well as dismantling their network. One of our greatest sources of information 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. Wherever possible, we must maintain a preference to take custody of terrorists, to preserve the opportunity to elicit information that is vital to the safety and security of the American people. Those who suggest that this administration has shied away from detention ignore the fact that, for a variety of reasons, reliance upon U.S. detention for individuals apprehended outside of Afghanistan and Iraq began declining precipitously years before this administration came into office.
After ten years of relentless pressure, our adversaries have become adept at avoiding areas where they are susceptible to capture – and into places where the ability of the U.S. to capture and detain them is limited.
Arguing that the decline in military detention or detention by the CIA results in a decline in intelligence also ignores the vital intelligence we gain from individuals in the criminal justice system. That is often a very difficult task, but in this case, the facts do not lie. In the past two years alone, our criminal justice system has proven to be an extremely valuable intelligence collection tool. 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.
Perhaps no single case has generated as much controversy as that of Umar Faruq Abdulmutallab, charged with attempting to blow up that plane over Detroit. I know that many argued that he should have been placed in military custody and that he should not have been given his Miranda warnings. But, the fact is that his arrest ultimately produced valuable information, and there’s no reason to believe that placing him in military custody would have produced a better result from an intelligence collection perspective, or would have done so more quickly.
The flexibility and leverage that the criminal justice system provides to gather intelligence – before and after arrest, through proffers and plea agreements, and in some cases even after conviction or sentencing – is undeniable. So we have sought to empower our counterterrorism professionals to leverage the strengths of this system to gather critical intelligence.
And, where appropriate, we have made adjustments – to enhance our ability to collect intelligence through interrogation.
Consistent with our laws and our values, the President unequivocally banned torture and other abusive interrogation techniques, categorically rejecting false assertions that these are the most effective means of interrogation.
The President approved the creation of a High-Value Detainee Interrogation Group, or HIG, to integrate the most critical resources from across the government – experienced interrogators, subject matter experts, intelligence analysts, and linguists – to conduct or assist in the interrogation of those terrorists – both at home and overseas – with the greatest intelligence value. Through the HIG, we bring together the capabilities that are essential to effective interrogation, and have the ability to mobilize them quickly and in a coordinated fashion.
Some suggest getting terrorists to talk is as simple as withholding Miranda warnings. Assertions that Miranda warnings are inconsistent with intelligence collection ignores decades of experience to the contrary. Miranda warnings have not proven to be an impediment in most cases. Though some have refused to provide information in the criminal justice system, the same can be said of many held in military or intelligence custody from Afghanistan to Guantanamo.
But, Miranda warnings have, in several cases, been essential to our ability to keep dangerous individuals off the streets, as post-Miranda admissions have led to successful prosecutions and long-term prison sentences.
Rather than succumb to the false choice between intelligence collection and a sustainable disposition for the individual, we must make informed decisions, based on the evidence and the circumstances of each case, to maximize our intelligence collection and our ability to keep dangerous individuals behind bars.
Where our laws provide additional flexibility, we must empower our counterterrorism professionals to leverage it. The Supreme Court has recognized an exception to Miranda, allowing statements to be admitted if they are prompted by concerns about public safety. Applying that ruling to the more complex and diverse threat of international terrorism can be complicated, but our law enforcement officers deserve clarity. And that is why at the end of 2010, the FBI provided 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 Abdulmutallab and Faisal Shahzad. When the immediate threat to public safety was addressed, Miranda warnings were provided, and as the public now knows, intelligence collection did not end; it continued.
The evolution that began following the 9/11 attacks continues. Where possible, we should develop more effective and flexible tools, or strengthen the ones we have, to empower our counterterrorism professionals to succeed, while upholding the values and freedoms that make this country great. Combating terrorism requires a practical, flexible, results-driven approach that is consistent with our laws and our values. It is essential to our effectiveness, as well as our ability to sustain that strategy over time. Our criminal justice system, even though it is just one tool in this fight, embodies each of these things. Where it is available, it is, quite simply, one of the best counterterrorism tools we have to disrupt, dismantle, and defeat al-Qa’ida and its adherents. It has demonstrated unrivaled effectiveness, unquestioned legitimacy, and the flexibility to preserve and protect the full spectrum of our national security objectives.
A rigid approach to the custody, questioning, and prosecution of terrorist suspects, in contrast, would be ineffective, unnecessarily complicating our efforts to counter the complex and diverse threat from al-Qa’ida and its adherents and putting at risk the security of the American people. The Executive Branch, regardless of the administration in power, needs the flexibility to make well-informed decisions about how to handle terrorist suspects – based on the unique circumstances of each case and the advice of experienced professionals. A one-size-fits-all policy in the area of detention and prosecution would be harmful to our national security.
To achieve and maintain the appropriate balance, Congress and the Executive Branch have 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 so do, the Obama Administration will be guided by the principles I have laid out here today.
And finally, as we meet here today, a process of political transformation is underway in many parts of the Middle East, an area that I have focused on throughout most of my professional career. But even as I watch history being made in the Middle East, with the political landscape being changed in ways that were difficult to imagine just 2 or 3 months ago, I am mindful of how fortunate we are to live in a society where respect for rule of law and a set of universal rights and freedoms is the norm. And I am truly inspired by the determination and courage of those who pursue one of the most basic of those universal rights— the right to live in a society that respects the rule of law. If we have learned anything about ourselves and about our values in the period since 9/11, it is that respect for the rule of law is not something to be called upon only when it is easy or convenient. Rather, it is the very hallmark of our democracy and our social compact as a nation. I believe that we operate outside that framework and code at our own peril, and I am proud to represent a President, and an Administration and a Nation, that feel the same way.