American Enterprise Institute

May 24, 2006

[Edited transcript from audio tapes]

11:45 a.m.	Registration
Noon	Address:	Paul J. McNulty, U.S. Department of Justice
	Panelists:	Neal Katyal, Georgetown University Law Center
		Ben Wittes, Washington Post
	Moderator:	Jack Goldsmith III, AEI and Harvard Law School
1:30	Adjournment

Proceedings:

Danielle Pletka:  Ladies and gentlemen, before I even start, let me just ask everybody if they would be nice enough to turn off or put their cell phones on vibrate.  Thank you.  I’m Danielle Pletka, I’m the Vice-President for Foreign and Defense Policy Studies here, the American Enterprise Institute. 

We are very pleased to have you all here today for an event on “Successes and Challenges in Terrorism Prosecutions, An In-depth Look at Department of Justice Terrorism Cases After 9/11.”  Our first speaker is Deputy Attorney General Paul McNulty.  Let me tell you a few words about him.  He was sworn in as deputy attorney general of the United States on March 17, 2006.  Prior to his confirmation, he served as acting deputy attorney general since November of last year.  Mr. McNulty has spent nearly his entire career in public service, with more than two decades of experience in federal and in state government.  From 2001 to 2006, he served as the United States attorney for the eastern district of Virginia.  He successfully prosecuted many of our nation’s highest profile cases in the war on terror, most recently the case of Zacarias Moussaoui.  He has spent many years prior to that at the Justice Department, and was also a chief counsel and director of legislative operations for the Majority Leader in the United States House of Representatives.  He was also, and this is when I remember Paul, these many years ago working on anti-terrorism to the Chief Counsel to the House sub-committee on crime. 

We are very happy to have him with us today.  He is going to speak for about 20 minutes and then he has agreed to take a few questions and answers from the audience.  So without further ado, Paul.  Thank you very much.

Paul J. McNulty:  Thank you AEI for hosting this today.  I very much appreciate creating an opportunity for us to discuss this important subject, and one that has created a great deal of interest in both our legal community but also in the nation as a whole, and so I’m grateful for the opportunity as a person in a new position as Deputy Attorney General of the United States to talk about the subject that has occupied so much of my attention in recent years. 

The terrorist attacks of September 11, 2001 marked a defining moment in our nation’s history.  These vicious and brutal attacks resulted in over 3,000 deaths in New York City, Washington, D.C., and Pennsylvania, and shocked and horrified people throughout the world.  In the aftermath of the attacks, President Bush directed then-Attorney General John Ashcroft to do everything in the Department of Justice’s power to prevent such destruction and devastation from ever happening again.  The Department of Justice was called to find new and invigorated ways of using our resources to prevent future acts of terrorism.  We have responded to this call to action. 

And today I’m here to tell that story.  Since September 11th, the Department of Justice has harnessed its full resources, both here at home and around the globe, and committed those resources to preventing terrorism.  And now, nearly five years after the watershed events of 9/11 and the closure of the Zacarias Moussaoui prosecution, it is a good time to take a closer look at the successes we have achieved, the difficulties we have encountered and overcome, and the challenges we face as we move forward. 

I speak today not only as Deputy Attorney General, but also as the former United States Attorney for the Eastern District of Virginia, where, from September 2001 to March 2006, I had the responsibility and privilege of overseeing many of the government’s more significant terrorism prosecutions.  The Department of Justice has developed a strong record of success in the war on terrorism.  Our prosecutions have run the gamut and affirmed that the fight against terrorism is the department’s highest priority.  We have prosecuted and convicted violent terrorists, supporters and financiers of terrorism, and persons who came to our shores and used our freedoms to advance terrorist causes. 

Since September 11th, individuals like Richard Reid, who tried to ignite a bomb in his shoe to kill everyone aboard an American Airlines flight bound for Miami; Sheikh Ali Al-Tamimi, who encouraged young men in Virginia to travel abroad and receive military training to prepare for war against the United States; and Mohammed Al-Moayad, a Yemeni cleric who conspired and attempted to obtain over two million dollars from the United States for Al-Qaeda, Hamas, and other terrorist organizations to fund violent jihad, among many other individuals.  They have been convicted and are behind bars serving significant sentences. 

The extent of September 11th’s impact on the Department of Justice cannot be overstated.  The magnitude of that day’s tragedy transformed our counter-terrorism strategy.  On every level, we committed to a new stratagem of prevention.  The 9/11 attacks shifted the law enforcement paradigm from one of predominantly reaction to one of proactive prevention.  We resolved not to wait for an attack or an imminent threat to investigate or prosecute.  We pledged to those who lost their lives, to their children, to the loved ones they left behind, and indeed to our entire nation, that we would devote the resources and energies necessary to prevent terrorism and protecting our communities.  We understood most fundamentally that the events of 9/11 marked a defining moment for the Department of Justice. 

One of our greatest liberties is the right of all people to form and hold their own views and beliefs.  Yet 9/11 displayed to the entire world how ideology can be used to inspire violence, how deep hatred toward America and its freedoms runs in some circles, and just how vigilant we must be going forward.  Accordingly, if 9/11 marked a defining moment for the Department of Justice, it surely did the same for Islamic extremists and others harboring radical and dangerous views about America.  The moment the Twin Towers were hit in New York, the Pentagon attacked in our nation’s capitol, and Flight 93 was hijacked en route to San Francisco, people had a choice to make.  They could recoil at the horrors and relinquish any thought of ever endeavoring to harm America.  Or they could endorse or even celebrate those vicious attacks as a rallying point for future terrorist acts. 

Since September 11th, people throughout the world, including countless Muslims, have rejected the ideology of hate that led to 9/11.  But, sadly, other individuals have chosen to follow the path of terrorism.  I saw firsthand as a United States Attorney this fact.  Take for example, the Northern Virginia Jihad case, United States v. Ali Al-Tamimi.  Just four days after September 11, a group of young men gathered in an apartment in Fairfax, Virginia, and their purpose in meeting, as proven in federal court, was to discuss plans to join and support the Taliban and engage in jihad against the United States.  Those men, led by Sheikh Ali Al Tamimi, had a choice to make in that apartment.  And while the fires at the Pentagon still smoldered only 20 miles away, they chose not to reject extremist violence, but to embrace it and pursue it. 

It was no different for Ahmed Omar Abu Ali, who, after graduating from the Islamic Saudi Academy in Alexandria, Virginia, chose to move to Saudi Arabia and later join and receive military training from al-Qaeda, and to plan attacks against the United States, including to kill the President.  Nor was it different for Iyman Faris, who chose to travel to Pakistan in early 2002, to discuss with Al-Qaeda’s Khalid Sheikh Mohammed a plan to collapse a landmark bride in New York City by severing its suspension cables with gas cutters, only then to return to the United States to assess the plan’s feasibility by inspecting the bridge’s structure and security. 

Each of these men faced a choice.  They could harbor profound discontent with America while taking care not to let that discontent boil over to criminal conduct, or they could step over that line by supporting terrorist causes.  The line was as clear as their choices were criminal.  By choosing to support terrorist causes, they violated the laws of the United States.  We at the Department of Justice have our own choices to make upon learning that men like Abu Ali, Iyman Faris, and members of the Northern Virginia Jihad have chosen to provide support to terrorists.  We could await further action by these men and then arrest and prosecute them.  Or we could prosecute at the moment our investigation reveals both a risk to our national security and a violation of our nation’s laws. 

In the wake of September 11th, this aggressive, proactive, and preventative course is the only acceptable response from a department of government charged with enforcing our laws and protecting the American people.  Awaiting an attack is not an option.  That is why the Department of Justice is doing everything in its power to identify risks to our national security at the earliest stage possible and to respond with forward-leaning, preventative prosecutions.  Our record since September 11th is strong in multiple respects. In terms of numbers alone, we have charged 435 defendants and won 253 convictions in 45 different judicial districts across the country, with many of these defendants still awaiting trial. These statistics, tracked by the Department’s Criminal Division, represent defendants charged in terrorism or terrorism-related criminal cases with a clear international connection. 

Of course, there is much more to success than tallying charges and convictions.  A walk through these successes demonstrates the extent of the Department of Justice’s commitment to prosecuting and preventing terrorism, and attests to the tireless efforts of the men and women who serve as federal prosecutors in our U.S. Attorney’s Offices and at Main Justice in Washington, D.C., and to the thousands of investigators who have searched the globe for evidence. 

A cornerstone of our post 9/11 efforts has been the material support statutes.  Congress enacted these laws to prevent terrorism by cutting off the provision of support and resources to terrorists and terrorist organizations.  Within the past two years Congress has amended the laws to expand and clarify their broad scope, making it expressly plain, for example, that anyone who receives military-type training from or on behalf of a terrorist organization commits a crime.  The men I spoke of a moment ago – Abu Ali, Iyman Faris, and the members of Northern Virginia Jihad, including Ali Al-Tamimi – were convicted of violating the material support statutes, and those men presently are serving lengthy sentences. 

We have successfully used the material support statutes in a host of other prosecutions as well.  The so called Lackawanna Six or Buffalo Cell case, prosecutors in the Western District of New York used the material support statutes to convict a group of defendants who traveled to Afghanistan to train in the Al Farooq camp operated by al-Qaeda.  While there, the men met Osama Bin Laden and heard Bin Laden report that certain individuals were on a mission to attack the United States. 

The theory of the Lackawanna Six case, much like the theory of Abu Ali and the Northern Virginia prosecutions, was straightforward and obviously logical.  Those who attend terrorist training camps and receive instruction or assist in providing instruction in how to use military-style weapons against Americans or American interests commit crimes and present grave risks to our national security.  The Department of Justice has also successfully used the material support laws to prosecute defendants beyond those who sought and received terrorist training. 

The United States Attorney’s Office in the District of New Jersey, for example, prosecuted and convicted Hemant Lakhani for attempting to sell a shoulder-fired missile to an FBI cooperating witness as part of a plan to shoot down a civilian airplane in jihad against the United States.  The Southern District of New York similarly used the material support statutes to convict both Uzair Paracha for the steps he took to conceal an al-Qaeda operative’s true whereabouts from law enforcement authorities.  These prosecutions, among others, provide concrete illustrations of the Department of Justice’s success in using material support statutes, and similar laws, to prevent terrorism by prosecuting persons who have taken steps to aid, advance, and encourage terrorist causes.  Use of the material support laws will remain a central component of our efforts to disrupt terrorist activity before it occurs. 

Now beyond the material support cases, the Department of Justice has also expanded its post 9/11 efforts to aggressively pursue crimes, such as identity theft and immigration violations, which present risks to our national security.  The simple truth is that terrorists, as well as sympathizers and supporters of terrorist causes, are able to exploit weaknesses in our identification, immigration, and financial systems to facilitate future attacks.  Nobody proved the point more than the September 11 hijackers, seven of whom possessed Virginia identification cards.  In the aftermath of September 11, therefore, it is unacceptable, if not irresponsible, to limit our counter-terrorism strategy only to prosecutions involving core terrorism or material support charges. 

Our preventative mission requires broader vision, including acceptance of the reality that persons presenting security risks to our Nation may be living among us under fake identities.  Individuals who purposely evade immigration or identification laws make a conscious choice to conceal who they are and to deceive the United States.  And if our investigations and intelligence reveal that the deception is connected to, or was committed toward the end of engaging in a terrorist activity, the Department of Justice must respond.  We must use the full arsenal of tools Congress has given us.  It takes little foresight to envision the rightful criticism that would be leveled at the Department of Justice if, in response to a terrorist incident, we looked back after the fact and discovered that the offenders were in this country after having succeeded in committing immigration or identity fraud crimes, and we were in a position to do something about it. 

Two such cases from my experience as United States Attorney in Eastern Virginia illustrate this point.  In 2003 an investigation revealed that Abdurahman Muhammad Alamoudi, a naturalized United States citizen and the founder of the American Muslim Council, had used a false Yemeni passport on numerous occasions to travel to Libya, itself a violation of federal law.  When confronted with the immigration fraud, Alamoudi admitted to the fraud and, more broadly, to participating in a Libyan plot to assassinate Crown Prince Abdullah of Saudi Arabia.  Our aggressive pursuit of immigration charges against Alamoudi resulted in a quick conviction and contributed to Alamoudi’s decision to cooperate with federal and international officials in advancing important terrorism-related investigations both within the United States and abroad. 

We also used the immigration laws to convict Soliman Biheiri, an Egyptian national and then-president of a New Jersey-based Islamic investment firm suspected of having links to terrorism.  When our investigation revealed that money from the investment firm may have been used to help fund the 1998 embassy bombings in Kenya and Tanzania and that the firm may have acquiesced in channeling money through its accounts for a known terrorist, we moved swiftly to learn all we could about Biheiri himself.  In short order, we determined that Biheiri had obtained United States citizenship on the basis of a naturalization application that contained false statements.  So, rather than prolong the investigation, and thus leave open the risk to our national security presented by all of the facts and circumstances we knew at the time about Biheiri, we moved forward and prosecuted and convicted Biheiri for naturalization fraud, among other crimes.

 Across the landscape of our post-9/11 prosecutions, we have achieved other important successes, which deserve emphasis.  Foremost, we have faced and overcome unprecedented challenges, both legally and operationally, in shepherding our cases through the  criminal justice system.  Let me focus quickly on one specific effective use of classified information in certain prosecutions, including the so-called Portland Seven case brought in the District of Oregon against Jeffrey Battle and six other defendants. 

In our prosecutions involving the use of classified information, we undertake an important and essential balance.  We must balance our obligation to hold defendants accountable for criminal conduct and the defendants’ right to a fair trial, while, at the same time, not compromising our national security.  The balance is delicate and difficult, and it ultimately takes place within the protocols Congress provided in the Classified Information Procedures Act. Article III federal judges administer these congressionally-provided protocols and procedures in order to balance the government’s need to protect classified information with the defendant’s right to a fair trial. 

The Portland Seven case provides a useful illustration.  The case arose out of Jeffrey Battle and others’ efforts in 2001 to enter Afghanistan and fight alongside the Taliban against United States and allied forces.  The prosecution entailed the use of classified materials, including electronic surveillance obtained pursuant to the Foreign Intelligence Surveillance Act.  In using the evidence, prosecutors took care to adhere to the procedures delineated in the Classified Information Procedures Act or CIPA by, for example, providing certain notices to defense counsel and the Court and obtaining certain protective orders.  These processes, all overseen by the presiding District Court Judge, ensured that the defendants’ rights remained protected throughout the litigation, while also allowing the prosecution team to make effective use of classified information.

 The Portland Seven prosecution serves to illustrate yet another obstacle overcome in our post-9/11 prosecutions.  As part of the USA Patriot Act, Congress eliminated a barrier that previously prevented prosecutors and members of the intelligence community from sharing full information with each other.  The Portland Seven prosecution involved Jeffrey Battle, who before attempting to enter Afghanistan and fight with the Taliban, had taken steps toward attacking Jewish schools and synagogues within the United States.  In its investigation, the FBI shared important intelligence information with the prosecution team. This sharing enabled the FBI and prosecution to work together to monitor the risks presented by Battle, while also advancing the investigation against other members of the Portland Seven.  The effort marked a significant operational success that would not have been possible but for the USA Patriot Act. 

Now while our record shows many victories in recent years, we have not always been successful.  And when we make a mistake or come up short in a prosecution, it is important to say so.  We did just that in the federal court in Detroit in the case against Karim Koubriti and others.  Although the jury returned guilty verdicts, it turned out that the lead prosecutor, before trial, did not provide the defense with certain evidence that the jury properly could have viewed as exculpating Koubriti and certain other defendants of guilt.  To not disclose the evidence violated the defendants’ constitutional rights and breached a clear duty that prosecutors owe defendants under the law. 

Upon learning of the potential violation, we undertook a comprehensive investigation, which culminated in our acknowledging error and consenting to relief for the defendants. While the error we committed was undeniably grave, our response to learning of it was undeniably right.  Indeed, the presiding judge, upon hearing the results of our investigation and decision to consent to relief, observed that our handling of the matter was “in the highest and best tradition of Department of Justice attorneys.” 

On occasion, it is suggested that a jury’s decision to acquit a defendant marks a setback for the Department of Justice.  A variety of that particular criticism surfaced, for example, following the jury’s decision to acquit Sami Amin al-Arian of certain terrorism charges and not reach a verdict on other serious terrorism charges following a long trial in federal court in Florida in 2005. 

That view is mistaken and especially so in the arena of terrorism prosecutions.  No apology is necessary or appropriate in response to an acquittal.  We bring cases we believe that there is proof beyond a reasonable doubt.  The reality is that, while we will present the strongest case possible, a jury may not agree with our views of the strength of the evidence.  That, though, is the function of a jury.  We recognize that a reality of our prevention strategy is that we may find it more difficult in certain cases to marshal the evidence sufficient to convince 12 jurors beyond a reasonable doubt.  That is because we must bring charges before a conspiracy achieves its goals, before a terrorist act occurs.  To do so, we may have to make arrests earlier than we would in other contexts where we often have the luxury of time to gather more evidence.  This heightened risk of acquittals is one we acknowledge and accept given our unwavering commitment to prevent terrorists’ risks from materializing into terrorist acts. 

It also is worth observing that the al-Arian case, in particular, culminated recently in a conviction and significant sentence.  In April of this year, al-Arian pleaded guilty to conspiring to make or receive contributions of funds, goods, and services to the Palestinian Islamic Jihad terrorist group, and in doing so, admitted to engaging in acts specifically designed to advance the group’s terrorist mission.  In sentencing al-Arian to 57 months in prison, the District Court observed that al-Arian was “a master manipulator” who, as “a leader of the Palestinian Islamic Jihad,” plotted to create “widows and orphans” through acts of terrorism. 

As we approach the fifth anniversary of September 11 and move forward in our fight against terrorism, clear challenges lay ahead.  Terrorists and their supporters are growing more sophisticated.  They are using tools like the internet to train and recruit new followers and to raise money to fund their causes.  One of our biggest challenges, therefore, is to stay a step ahead.  In our investigations, we must continue to adapt to our technologies, approaches and strategies, and adapt these things to the ever-changing means and methods of those planning the next attack. 

In our prosecutions, too, we continue to face difficult challenges, including how most effectively to use classified information without compromising our nation’s security.  We also regularly confront the challenging task of having to prosecute early enough to prevent harm to America, or simultaneously having to let our investigations play out long enough to allow us to identify all co-conspirators in a terrorist plot, and to accumulate evidence sufficient to satisfy the demanding beyond-a-reasonable-doubt standard of proof that governs all criminal trials.  Our mission is a difficult one.  Hatred for America and all that our nation stands for remains deep-seated among many extremists.  When hatred runs so deep, risk runs high.  Today’s risks are very real, and identifying the risks before they take the form of an attack is very hard. 

The American people need to know that their Justice Department embraces the challenge.  We are committed to preventing terrorism and protecting our homeland.  As the Attorney General has said, we have no higher calling than the protection of our fellow citizens.  In responding to the calling, we are not resting on yesterday’s successes, but rather are focusing on today and tomorrow’s challenges.  Our efforts will remain aggressive, and they will remain fair.  In our investigations we will continue to use every tool and authority available to us to identify risks at the earliest stage possible.  And in deciding whether to prosecute, we will not wait to see what becomes of risks.  The death and destruction of September 11, 2001 mandates a transformed and preventative approach. 

Our mission, then, is clear.  We will indeed, we must, press forward aggressively in the war on terror, with prevention and protection serving as the guideposts.  In carrying out our mission, we will remain focused on the freedoms we seek to protect and the risks we seek to address.  The Department of Justice will remain unyielding in our commitment to preserve our cherished rights and protect our national security. 

Thank you all very much for your attention.

Danielle Pletka:  Thank you, Paul.  We are going to turn to questions and answers right now.  If I could just lay down our usual ground rules if people would be kind enough to wait for the microphone, somebody who will bring that to you to identify yourself and if I can ask, we do not ask that you agree with all our speakers or like all our speakers, but we do ask that you be respectful to all our speakers.  Put your statement in the form of a nice, polite question, thank you very much. 

Let me turn to our panel that is going to follow for commentary and just see if they would like to ask any questions.  Neal, Ben, no questions?  You did a great job.  Everybody pretty much has.  Very good.  In which case, let’s turn to this gentleman right here.  If you could just bring the microphone over.

Joel Wanek:  Joel Wanek [phonetic], Open Society.  Inevitably in your investigations you are going to find out information about people who are not terrorists but who are nevertheless violating the law in other ways, some of them may be immigration violations, all types of violations.  What is your policy about pursuing prosecutions of people whom you run across who violated the law but about whom you have no suspicions of terrorism?  And if in fact you do pursue or have others pursue those prosecutions, is there not a danger that Muslim-Americans are going to be disproportionately prosecuted for crimes such as, for example, harboring an immigrant, that is, letting one of your relatives sleep in your house when they are illegal than other Americans?

Paul McNulty:  Thank you for the question.  Two points come to mind in response to your question.  The first is that the enforcement of immigration laws, identity theft, identity-related laws, financial support, security access, enforcement of crimes associated with those issues is important, even if there is no information specifically tying a particular subject to a national security threat.  Why?  Because those systems are so vital to us in securing our country and it is the exploitation of those systems that we have seen as a method of operation for terrorism. 

So we do put some emphasis on making sure that… and I would say renewed emphasis or special emphasis in recent years, in going after things like document fraud crime.  We often prosecute document fraud.  In fact, as a U.S. attorney in Virginia, I had a number of cases in this area where the folks that were involved in the crime were of all different backgrounds because the commonality was individuals were seeking to acquire some identification or some access for various reasons.  And so millions of dollars can be generated from this business of selling documents and identification.  We think it is very important to prosecute those kinds of crimes to discourage that exploitation of systems. 

Now the second point is we do these things in the context of limited resources and the need to exercise prosecutorial discretion.  So U.S. attorneys' offices around the country have to constantly prioritize, constantly decide what can be done with the number of prosecutors, investigators available to do the job.  And that means that in some cases, certain identification fraud or immigration fraud might be identified but not be as high priority as another with a connection to national security.  I think at the end of the day, of course, we have to always be mindful of and concerned about the way in which the community has confidence in what we do.  And so U.S. attorneys have to exercise discretion with that value in mind.

Danielle Pletka:  This gentleman here in the blue shirt.

Roger Pilon:  Yes, I’m Roger Pilon with the Kato Institute.  Paul, you did a very nice job this afternoon of explaining the difficulty of bringing XANT [phonetic] prophylactic prosecutions in the civil courts.  As you know, there has been some criticism of the Moussaoui trial for having been brought in the civil courts in that a good deal of help in that one come [??] from the defendant himself.  Are you here in part to signal that future cases are going to be brought in the civil courts and not in the military tribunals such as those that may involve the Guantanamo detainees?

Paul McNulty:  The answer is no.  I’m not here to signal anything one way or the other.  What I’m here to send - you can go off that simple with just a no - but I’m here to say that we have seen with the use of our criminal courts or our Article III courts, the ability to prosecute terrorist crimes in a wide range of ways, and I had tried to outline that at some length today.  And that means I think all the more that it is a significant tool among many tools for dealing with the threat of terrorism, and I think the Department of Justice is positioned on all this as we remain ready to bring cases where we can and we have again challenges to meet. 

I talked about the SIPA challenge with classified information and we have balances to reach, such as intelligence value and other things but at the end of the day, we are prepared and ready to bring cases wherever we can.  We have prosecutors who now have experience and training more so than ever before to do that and we are looking forward to opportunities wherever we can.

Ken Timmerman:  Hi, Ken Timmerman from NewsMax.  A question about DHS.  It has been reported that there has been significant fraud within the Department of Homeland Security, especially in the citizen and immigration services.  Two hundred criminal files have been taken out of the offices there by top political appointees, and terrorists have been reportedly given identity papers by CIS officials.  Is there a Department of Justice investigation underway at the Department of Homeland Security, looking in particular at fraud within the citizenship and immigration service?  Thank you.

Paul McNulty:  I appreciate your question.  I’m not in the position to really provide any information on that today.  I simply cannot confirm if there is an investigation underway.

Danielle Pletka:  Someone back there?  Please pass this to him.

Mike Cosner:  Mike Cosner with NBC, and this is a bit off- topic, but I think maybe still of interest to this room, but we understand sir that you met with some members of Congress this morning regarding the William Jefferson investigation.  Is there anything you can tell us about that meeting?

Paul McNulty:  Well, actually I did not have a meeting this morning on that subject.  I have been thinking about this subject all morning, but let me just say on that point, I think the Attorney General spoke to this very clearly yesterday and what he said is that we have a tremendous amount of respect for Congress' important independent role.  But the Department has an obligation to the American people to fully pursue corruption cases wherever the trail of evidence goes, and we have made extensive efforts since last August to obtain this important information through other means and we are unable to do so.  The Department has conducted similar searches in the past, including the chambers of federal judges and the private residences of members of Congress, and we believe our actions were lawful and necessary under these very unique circumstances.  We are optimistic that continued talks with Congress can produce a result that meets law enforcement needs and also allays any institutional concerns.

Danielle Pletka:  The gentleman right there.  Put your hand up, sir.

Stewart Powell:  I’m Stewart Powell with Hearst Newspapers.  I just wanted to ask you to elaborate a little bit more on my colleague’s question here earlier.  Did you see anything in the Moussaoui trial with the handling of SIPA information or the ability to get enemy combatant substitutions into the record, that sort of thing?  It would raise the possibility that serious Al-Qaeda operatives such as KSM, Bin al-Shibh, Al-Qahtani, the 20th hijacker, might be brought back here for criminal prosecutions in our system, or with the impediment so high that you prefer to leave them in the military tribunal system.

Paul McNulty:  Well, I’m not going to comment on any particular person, whether or not it is feasible or not feasible.  The Moussaoui trial presented a lot of challenges for us, and the length of time that it took speaks to that fact.  I think we were up and back to the four circuit twice if I’m not mistaken, but it passed a long time so I had forgotten things that have occurred during that stretch.  But the Moussaoui case I think demonstrates that we can be successful. 

The question that Roger had raised earlier was that it was made easier by his plea.  And that is true.  Cases are made easier by pleas but we are very ready and prepared to go to trial.  One of the things that gets lost in the Moussaoui case is that our original indictment in December of 2001 alleged that he was involved in a conspiracy to commit a number of acts, including flying airplanes into buildings and killing Americans.  His conduct was on a path parallel to the 19 hijackers, that is, he was engaged in the same conspiratorial acts in terms of receiving flight training and financial support, and so forth. 

And what we were prepared to prove were those multiple links of his actions to the actions of the others, showing his role in the conspiracy, more than just links but actual common ground in terms of some places of training and travel and all that.  And when we got his guilty plea, and if you look at the statement of facts in the case, that is exactly what he admitted to.  All the things we were prepared to prove in terms of his movement, his flight training, his financial support, his relationships, his conversations, we had worked hard to put together that whole case to show his connection to the conspiracy.  That was the conviction phase, the guilt phase.

 We moved on then to the penalty phase.  In the penalty phase he chose to take the stand and provide more information that he had on his mind to say.  But apart from anything he wanted to assert about himself, and what he thought he was up to and we can all judge that, but the fact is his conviction and his life in prison is built upon the broad conspiracy that he engaged in that brought him right up to August 16th when he was arrested and jailed.  And then the jury in the penalty phase accepted in the first part of it, and then reaffirmed in the second part of the penalty phase that his lie let his brothers go forward in their attacks.  That was what the jury found unanimously. 

So, I chose to give you all that background on Moussaoui when you did not ask for it, but the fact is that we looked at these cases one at a time with the evidence we have at hand, and we continue to gather more evidence, and it might be at some point in time useful in other cases, and we will let that record develop. 

Thank you all for your interest and attention, I appreciate it.

Danielle Pletka:  Let me ask everybody to remain seated please as our panel comes up to the dais.  We will just be 30 seconds.

Jack Goldsmith III:  Thanks very much.  I’m Jack Goldsmith, a visiting scholar here at AEI and a professor at Harvard Law School, and we are going to continue the discussion that the Deputy Attorney General began.  Commenting on him and related matters will be, to my immediate right, Ben Wittes of the editorial page of the Washington Post.  The Washington Post has run probably dozens of editorials on issues related to the Deputy Attorney General’s speech, and Neal Katyal of Georgetown Law School was the National Security Adviser to the Deputy Attorney General under the Clinton administration and is the lead counsel in the Hamdan Military Commission Case in the Supreme Court. 

I’m just going to say a few words and let Neal and Ben say a few words, and then we will just open it up for discussion.  So two of the questioners tried to press the Deputy Attorney General to take a wider lens and relate what he was talking about, which is essentially civilian prosecutions within the United States, to the broader strategy of what to do with terrorist when you capture them. 

And, of course, the United States is engaged in many other strategies besides civilian court prosecutions.  There have been at least two enemy combatant detentions within the United States: Padilla, who has since been transferred back to the civilian system, and Almari, whom I believe remains as an enemy combatant captured in the United States.  And, of course, there are hundreds of people detained outside the United States under a theory that they are enemy combatants during wartime, and the laws of war authorize genuine enemy combatants to be detained until the end of the conflict.  And then a subset of those combatants outside the United States have been charged and are trying to be tried in Article II courts military commissions. 

So one question is, is this a coherent strategy against detainees?  One way of looking at it is that the Department of Justice is as aggressive as they can be with persons captured in the United States using the prosecution tool, and then there are some that have been detained as enemy combatants perhaps for other reasons that the Administration I do not think has made quite clear, and then having a different strategy altogether, a sort of military strategy, an Article II strategy for detainees outside the United States. 

So, one question is, does this strategy make sense?  Is it a coherent strategy going forward more on terrorism?  With these background remarks, I’ll turn it over to Ben.  You want to go first?

Benjamin Wittes:  Sure.  Apologies in advance if these are a little disjointed.  These are some thoughts and responses to Deputy Attorney General’s comments.  I’m here in my personal capacity, and my remarks should not be imputed to the Washington Post editorial page.  It seems to me that Mr. McNulty, in addressing successes and challenges, somewhat overstates the successes and somewhat understates the challenges of terrorist prosecutions, and thus so for precisely the reason that Jack just outlined, which is that he is addressing a very narrow component of the overall issue which is the role of the Department of Justice in prosecuting terrorist-related crimes using civilian courts within the United States.  And this is actually, as we have learned, a rather small piece of the pie. 

Within that context, he was candid enough to acknowledge some of the failures, specifically the absolute fiasco in Detroit.  And the case of Sami Al-Arian who, if you believe the government’s allegations, many of which or some of which Al-Arian admitted to in the context of his plea, was really one of the highest ranking terrorist operatives to be in the United States and a sort of part of the leadership of a major terrorist organization, albeit, not one that is primarily focused against the United States. 

I also think that his remarks somewhat understate, I think, the really astonishing problems with the civilian justice system for this purpose that were revealed by the Moussaoui case.  I should say candidly, initially gratified that Moussaoui was indicted in the U.S. Federal Court, and have been, over the successive four years, sort of alarmed at how the cases played out, which is to say, this enormous range of pre-trial issues took years to bring the case to trial.  The last time I looked and it has been a while, I’m sure it has grown, a mere list of the filings in the case, not the filings themselves but just a computer printout listing them takes well into the hundreds of pages just at the district court level. 

The problems of classified information and witnesses who are not available by virtue of being detained overseas was one that really never came to a head because the government locked out and Moussaoui plead, but is it just a profound problem as you imagine future cases?  Now if you add to this the problems with the military process that the Administration has created, which I’ll reserve because Neal has a much better position to address than I am, I’ll be very brief about, but you know, four and a half years after 9/11, they have not yet managed to produce a trial despite having a rather large number of people potentially amenable to trial before them. 

And the cumulative result of all of this is that we actually have no obviously viable mechanism for trying major terrorist leaders.  Mr. McNulty says they stand ready and able.  I do not mean to overstate this but I’m a little bit skeptical of that, frankly, at this point.  I look and I see that we are holding a fairly substantial number of people whom we have identified as the masterminds of September 11th, including Khalid Shaikh Mohammed, Ramzi Binalshibh, Mohammad al-Kahtani.  I mean these are the people we have identified and in our custody, and there seem to be no plans whatsoever to bring them to trial.  I do not mean to sound unsympathetic to the Administration’s predicament here because if I had to imagine exactly how to do it right now, it’s not clear to me exactly how to do it right now.  But none of this gives me a whole lot of confidence that if you were, say, assessing the successes and challenges that the balance of that assessment focuses on the successes at this point. 

One thing that particularly troubles me is that in so far as there are decisions as to what to do with individuals, for example, you have two American Taliban whom we arrested and brought to the United States, one was Yaser Hamdi, and the other was John Walker Lindh, and what was done with them was diametrically different.  One was stuck into the criminal justice system, one was stuck into a military brig.  You can identify a whole lot of cases like that.  Moussaoui and Kahtani are good examples of that.  While they are both at one point believed to be the 20th hijacker, I believe which one we believe has switched.  And what has happened to Mohammad al-Kahtani is nothing; he is held and that’s it.  And what has happened to Moussaoui is a multiyear production in Virginia in order to bring him to trial. 

It is very hard to identify any principled basis for the decisions that we make in terms of what to do with individuals.  And I think the only guiding principle is convenience, and I guess I’ll stop here.  But it seems to me the first part of answering the question of how to confront the challenges is to try to imagine what in the abstract and what those principles would be, and how in fact, what in fact should guide the decisions when you are confronted with people arrested domestically.  When you’re confronted with people arrested overseas in various contexts so that there is some kind of predictability and reasonable expectation on the part of the public with respect to who is going to be tried for what and under what rules and by what institutions.

Jack Goldsmith III:  Thank you, Ben.  Neal.

Neal Katyal:  Thank you.  It’s a great pleasure to be here.  I have such great respect for the people on this panel and the Deputy Attorney General.  In fact, as I was walking into AEI today, I was reminded of the morning of the Hamdan argument.  This was my first case in the Supreme Court, and I faced the Solicitor General, who has argued 35 cases before the Supreme Court.  And so the solicitor general argued 35 cases; this is my first.  All the newspapers that morning had previews of the argument on the right side of the page, and on the left side the Washington Post had this story about cries emanating from Whitley [sounds like] Park at about 3:00 a.m., and it was described and blamed on the panda; the baby panda bear is crying.  It was actually me at 3:00 a.m., scared to walk into the Supreme Court. 

I do have a lot of respect for what the Deputy Attorney General said here, that Judge [indiscernible] has a what he calls a strong record of success - 435 defendants charged in international terrorism trials and 253 convictions thus far and 45 jurisdictions.  And I do not think that there is much to disagree about that track record of success within that limited framework, as Ben Wittes says.  And in addition to that, there is also right now an existing military court-martial system, which stands, I think, ready and willing to do a lot of the terrorism cases that we could currently bring. 

Instead, the Justice Department, four and a half years ago, did something else.  They decided to launch this military commission process at Guantanamo Bay, a process that they said initially would be the most efficient way to try suspected terrorists, and it has been a complete failure from start to finish.  They announced this, saying that we needed to reinvigorate the system, which existed 55 years ago.  That was the last time we had military commissions.  They did not even give the same set of rights that people had 55 years ago, and they did so without the approval of Congress.  They said we have the power to do this on our own, without seeking an affirmative vote from Congress to authorize this system and the specific rights and procedures. 

Essentially, in these military commissions, which is what some of the questions from Roger Pilon or others were about, why are we planning and using these?  What are these?  These military commissions are criminal trials that are supposed to take place against suspected terrorists in which the President has defined all of the procedures.  It has written everything down from:  Do you have the right to innocence and how many judges are on your panel?  Who is on your panel?  He has handpicked the particular judges who serve on this.  He has handpicked the prosecutors, the defendants.  A Pentagon bureaucrat has defined what all of the offenses are that are triable by a military commission, unlike the Congress of the United States writing criminal statutes. 

Here they have been defined by a bureaucrat who works for the President, and so the entire process, top to bottom, has been one in which the President has controlled everything.  That I think has gone too far and I thought it went too far in November 2001 and thought it would go essentially nowhere.  The Administration at the time said this is the most efficient way to try a terrorist.  Well, we have had four and a half years.  Not a single trial has began, only 10 people have been indicted. 

Contrast that track record with the track record General McNulty was talking about, about 253 convictions and the like, and I think the answer is quite clear - that military commissions thus far have been an abject failure.  Now in my view of course that there are reasons why we might want to have something like military commissions, or to use the existing proud court-martial system, something that I think is the envy of the world.  If we used the court-martial system, there is already authorization from Congress to do it for terrorism offenses, and if we want to use some sort of military commission system, it strikes me that the affirmative vote of Congress up front is necessary before embarking on a system that so departs from our basic constitutional traditions and treaties that we have signed over the past 50 years. 

Let me say two of the things I was struck by in the Deputy Attorney General’s speech, and I’ll just close.  The first is his remarks about Jeffrey Battle and the prosecution there.  Here is what I got him saying’ he said that there were mighty debates in the Justice Department about the case and the need to handle classified information [indiscernible], about the need to balance the need to prosecute criminal cases and the rights of the fair trial of the defendant with the interest of not compromising national security.  And what he said was that all of these debates [indiscernible] take place within the standards Congress has set within the Classified Information Procedures Act, I think a very good act of Congress, one that we used repeatedly at the Justice Department in highly-sensitive national security cases. 

Now, contrast that system set up by Congress done to balance all of those different interests with what is happening in the military commission process.  The President has said he has the authority to bar even criminal defendants from their own criminal trials where not just classified information is being discussed but even material that is not classified but which the Defense Department considers sensitive, something that they call protected information.  Indeed, defendants have already been kicked out of their pre-trial proceedings on the basis of this presidential authority to remove defendants when protected information is being discussed. 

This is an absolute no-no in Anglo-American justice.  It has never been done.  We do not kick criminal defendants out of their trials.  We did not do it in World War II when the Nazi saboteurs invaded.  We do not do it in any other criminal trials unless the defendant is voluntarily disruptive; if they’re throwing food at the judge or something, you can exclude them.  They consented to being kicked out but in the absence of that, as Justice Scalia said for a unanimous court two years ago, the confrontation clause rights that are laced [sounds like] into our criminal justice system require the presence of the defendant and his ability to confront witnesses. 

Second thing about the Deputy Attorney General’s speech that struck me, if you listen to him, he had this profound emphasis on the role of federal courts and federal judges setting limits.  What the Deputy Attorney General said is that it is the executive’s duty to be aggressive to use every tool and authority available to the Justice Department to prosecute these cases but that courts, federal courts, will reign in the excesses.  That is the genius of the system — that we have three branches of government each performing different roles. 

And if you listen to General McNulty, I do not think you would get the full picture of what the Justice Department has been arguing, which is that the federal courts have no role when it comes to these Guantanamo decisions, including these military tribunals, in which the most awesome powers of the government, life imprisonment, and the death penalty are at stake.  They have said the federal court should have no business reviewing this, indeed they have told the Supreme Court that the Supreme Court has no jurisdiction over this matter. 

And whatever the Supreme Court does in the next month or so, which I’m not going to speculate on.  But whatever the outcome, I think it is the proudest thing about our American constitutional tradition that I can represent a guy like Salim Hamdan, who is a man accused of conspiring with Bin Laden, who has a fourth grade education and a Yemeni, and he can sue the President of the United States, the most powerful man on earth, in the highest court of the land.  In any other country, I think I would have to fear for my life and I think Hamdan would have to fear for his.  It is something remarkably American about our system and it is something that I think the Justice Department has not done a very good job embracing, at least with respect to that set of terrorism prosecutions.

Jack Goldsmith III:  Okay, let’s have a conversation for about 20 minutes.  Questions?  Yes.  Wait, we need to wait for the microphone and make it please in the form of a question.  Thanks.

Laurie Mylroie:  Laurie Mylroie, AEI adjunct fellow, and I had wanted to ask this of the Deputy Attorney General but I did not get a chance so I’ll present it to you because I think it is an important question and underlines something, Jack, that you were saying about the lack of some coherence to this whole question of approaching terrorism.  And it actually, of course, goes back when you talk about 9/11 to the 1993 World Trade Center Bombing, that is when all this begins.  Would you explain or describe the ethnicity of Khalid Shaikh Mohammed, the mastermind of 9/11, who is also the uncle of the mastermind of the 1993 Trade Center Bombing?  Then it was mentioned in the press earlier this week about another nephew of Khalid Shaikh Mohammed being a terrorist mastermind, about their ethnicity, what it might imply and just why does a family seem to be at the heart of this terrorism?

Jack Goldsmith:  I'm not sure what the question is. [Cross-talking] I do not know the ethnicity.  Does anyone know the ethnicity of Khalid Shaikh Mohammed?

[cross-talking]

Laurie Mylroie:  Okay.

Frank Fletcher:  Frank Fletcher [phonetic], STS.  My question I guess for the panelists would be, some terrorists have been captured and jailed outside of the United States, non-U.S. citizens.  Others have been actually killed.  One alleged terrorist was in a vehicle, I believe, in Yemen, and a hellfire missile was fired at the vehicle and he and the people with him were killed.  What is the legality of that if we are arguing that terrorists should be arrested and tried?  What is the status of this?  Is this like a military action or what?

Jack Goldsmith:  Do you mean the action?

Fran Fletcher:  Yes.

Jack Goldsmith:  I think it was a military action against a military target and members of the enemy in an armed conflict can be targeted and killed and it is legal to do that in a military conflict so that was the justification for that.  When you detain someone though, potentially depending on what regime applies, different kinds of rights kick in.  But this is one of the prerogatives of war is that you can capture, target and kill members of the enemy.  It happens in every war.  It is part of what war means.  That which distinguishes war from non-war is that you can kill someone legally and it’s not murder.  So that’s the legal basis for it. 

Question at the back, the very back.

Jim Malone:  Yes.  Jim Malone, Voice of America.  The Moussaoui trial, the problems of evidence, the problem of witnesses who may be already detained, also his courtroom antics, which I wonder how they played with the public.  Do you think the track record on that trial makes it less likely that the Department of Justice would pursue similar prosecutions against people like Khalid Shaikh Mohammed?

Ben Wittes:  I do, yes.  I’ll probably come back and eat these words at some point but I think you would have to be very bold after what happened with Moussaoui to want to do that again and remember that Moussaoui was not trying very hard in the sense that a conventional criminal defendant does.  His goal does not, and I do not pretend to have great insight into his mind, but just judging from what he did in public, his goal does not seem to have been what we traditionally think a criminal defendant is trying to do, which is to frustrate the government’s prosecutions.  His goal seems to have been to make life as difficult as possible, including at great jeopardy to himself, so he made sufficient admissions at different points in the trial on the stand to convict him on the basis of his statements alone. 

You have to consider in this that the criminal defendant does have in our system a presumptive constitutional right to represent himself, which Moussaoui made interesting and creative use of prior to the removal of that right after quite some time by a very patient district judge.  If I were in the Justice Department, I would be quite scared of what a Khalid Shaikh Mohammed could do in U.S. Federal Court.  If the goal is to have a platform to make political statements to address sympathetic people around the world, Khalid Shaikh Mohammed who is presumably much smarter than Zacharias Moussaoui.  Now I’m not saying that they should not try or that they should not do it, I’m saying the example of Moussaoui who is after all a relatively low level operative is not, I do not think, nearly as encouraging as the Justice Department will present to us.

Neal Katyal:  In fact, I’ll just say a word about that.  I would add to Ben’s comment, which I agree with, is also the fact that I think the Federal Courts have given the President a fairly robust power to detain enemy combatants, and I think they are likely to continue to do that.  And so folks like Khalid Shaikh Mohammed, I think, who are going to be detained indefinitely and given that backdrop, it seems unwise to bring a prosecution on which the results may be acquittal. 

Now I do not think the fact, and I’m a supporter of broad detention power for the President and of the ability to kill suspected terrorists and military operations like the Yemeni [sounds like], I do not think that means, however, that that power translates into some greater power for the President to essentially use fake trials for example.  That is a very different set of powers.  It’s just like torture; the fact that you can kill someone in a military conflict does not mean you can torture them. 

It is two different aspects for the power, and the problem with a fake trial system is that it is corrosive to the American ideals and the American justice system in the way that detention of enemy combatants and the killing of enemies on the battlefield does not.

Ben Wittes:  I’d like to just spotlight, if I could, a point that Neal made, which I think is actually very important, which is the clash between the incentive structures that the current situation presents, that is, you have no disincentive to hold somebody indefinitely and you have a total wild card in the military tribunal system and a big negative example in the civilian justice system.  And so, the whole incentive structure now militates toward status quo and not doing anything.  I think we need to think pretty hard about whether we want that to be the incentive structure. 

I, for one, am very uncomfortable with the idea that the masterminds of September 11th will not see a day of reckoning in a court.  It is just a matter of what I think the sort of role of a trial is in accountability, in legitimizing punishment.  I feel like it is not what we should be doing, and yet I do not see a particularly attractive trial mechanism that’s available right now.

Jack Goldsmith:  Okay, a couple more of questions.  It is not just that there is an incentive, it is the showing, the substance of showing to detain someone as an enemy combatant is much, much less stringent than in either an Article II or an Article III trial.  The procedural demands are much less stringent than in an Article II or Article III trial, and you can keep the person until the end of the conflict according to the laws of war. 

In a more traditional war, it made some sense that you have these lesser procedural showings and the lesser substandard demands to be able to detain someone, which is a severe restriction because as a general matter, and then you could try someone and with greater substandard procedural hurdles.  But in a traditional war it was thought that the trial was needed to detain the person after the war ended so that the procedural hurdles and the substandard hurdles corresponded to longer deprivations of liberty, and this conflict that may be completely inverted and thereby enhancing all the more the incentives to use the detention process.  You go ahead.

Ben Wittes:  I agree with that completely.  I think you have the whole issue that the conceptual end to detention, which is to say, the end of the conflict is something that nobody anticipates actually happening creates a very different analytical basis for the entire discussion, and I do not think it is reflected in American law in any meaningful respect.

Ken Timmerman:  I'm Ken Timmerman from NewsMax, and I think you are right.  There is no basis in American law because we have not been facing this kind of circumstance before.  If you look at what the Pentagon is doing, they are trying to release as many as people as they possibly can from getting on.  They are trying to find ways to do that.  They have been negotiating, for instance, with dozens of countries around the world to find people who would take these five leaders.  And finally, Albania, I think it was two weeks ago, agreed to take them because if they send them back to China they knew that they would be tortured. 

I wonder with all of this and what you said about killing in war, what is the eventual procedure?  Clearly there is nothing in law.  There is nothing that Congress has passed.  There is no precedent.  This is an unprecedented conflict.  So, what do you say with your imaginative hats on as the way of dealing with these detainees? 

Jack Goldsmith:  I’ll take a shot at it first.  I think what we are going to see that the Deputy Attorney General talked about the aggressive use in Article III courts of the Material Witness Statute, which is really a statue that is not very demanding in terms of whether it requires to find a criminal violation.  So in the Article III courts we have weakened the substandard showing, and I think in the detention context over the course of the last four years under pressure from Supreme Court and for other reasons, the Executive branch has increased the substandard and procedural demands of those defense and processes. 

I think the kind of an obvious solution ultimately, and that is a very vigorous statutorily authorized preventive detention statute.  There are lots of precedents in other context for preventive detention where the detainees have procedural protections that are probably somewhere in between the current detention process, and the current Article III process and in which the government has to make in some context whether in a classified situation or not, assuring that the person meets whatever the substandard is, substandard of dangerousness or membership in a terrorist group and then an ongoing process for review of the detention.  In other words, it will become more proceduralized and I think we will [indiscernible] move away from the criminal process.  The military commissions have not been working towards a more vigorous administrative detention process, for which there are actually a lot of precedents.

Neal Katyal:  If I could say a couple of things and that first of all, I think that we have an existing court martial system which is an alternative to the Article III courts and the Material Supports Statute.  I fully think that we should be using those statutes in our civilian justice system but there are times in which these are purely military offenses that are being committed in the court martial system.  It does a really good job of prosecuting those offenses.  Court martial system is set up by the Congress of the United States and the Uniform Code of Military Justice, so it is a separate branch of government.  It is not the President defining all of the rules and it fairly balances the rights of both sides and has a standing federal military court with judges nominated by the President and confirmed by the Senate to hear these cases. 

Now, we might want to tweak it legislatively in any number of ways but it is a wonderful template to start.  It is the envy of the world.  It is one that uses and handles classified information routinely. After all, the service members who sit in and hear of those cases as juries themselves have clearances.  They have been used on the battlefields and all kinds of places since World War II, and it has expert prosecutors and defense attorneys.  So I think that is a good place to start with respect to the prosecution and with respect to the detention question that Ben Wittes put on the table. 

I think what Jack said is absolutely right.  What we need to think about is a statutorily authorized national security court staffed by individuals with security clearances who act essentially as defense counsel or quasi-prosecutors, not prosecution government attorneys in favor of the detention and against, and they have access to the material and with judges appointed by the President and confirmed by the Senate to terms.  That is the kind of model that other countries are using.  I think it works well.  I think now four and a half years into this, we should not be relying on ad hoc procedures anymore.  We need some action from Congress.

Male Voice:  What are the countries?

Neal Katyal:  The United Kingdom, Germany, Israel and India.

Ben Wittes:  One very high altitude point.  I think one of the big problems in the whole debate about this set of issues is the sort of false choice between a kind of law of war paradigm and a criminal justice paradigm, and I think there is a kind of a shouting match of the death on that.  I think it is a very unfortunate debate because the reality is that the current situation, neither the traditional criminal law nor the traditional law of war, addresses it comprehensively.  And one way or another both what Jack and Neal are talking about, when you talk about tweaking the Court Martial System or when you talk about the creation of a National Security Court or a preventive detention regime, we are talking about a law making exercise.  It is just impossible to think about a law making exercise of the scope and seriousness that I think we all think is necessary to one degree or another without the substantial involvement of Congress.

And I think one of the very unfortunate things about the last four and a half years is that that so much in this policy has not, which is essentially legislative in character, has not been made even in consultation with the legislature.

Jonathan Mitchell:  Hi, my name is Jonathan Mitchell.  How does the text of the authorization to use military force play into this debate, which speaks of necessary and appropriate force?  And instead of talking about whether someone is an enemy combatant, should we not instead go on a case-by-case basis, and ask whether the government's actions are necessary and appropriate with respect to any particular person?

Ben Wittes:  I think you should handle this Jack.

Jack Goldsmith:  So you are talking about the authorization to use force that Congress passed on September 18, 2001, which essentially authorized the President to use all necessary and appropriate force against the nations, organizations and persons essentially responsible for 9/11.  It is a little more complicated than that.  But necessary and proper by themselves do not have obviously the determinant meaning. 

In my view, the “necessary and proper,” what that means is not authorization.  It tracks the language of other authorizations in other armed conflicts including declared wars and the Vietnam War and others.  And I think what those terms mean is that the President possess all the powers he traditionally possessed that the Congress is empowering the President to exercise all the powers he traditionally exercised during wartime.  I think those words mean it is essentially the way that the [indiscernible] case interpreted it. 

But case-by-case necessary and proper is not going to be able to answer the question.  You need something more fine-grained.  The President has been relying heavily on the authorization to use force like consistent with our constitutional traditions regardless of whether you can squeeze out of the authorities to detain or use military commissions and the like.  I think you can, Neal and I disagree about this.  Either the President could squeeze out the authorities from that authorization to do so, that does not mean that four and a half years later it is not prudent to try to come up with a more coherent systematic approach to these problems. 

Roger Pilon:  Roger Pilon, Cato Institute.  Neal, I just want to clarify a point as I understand that you would be perfectly happy with the courts martial.  It is this intermediary military tribunal that concerns you, is that the idea?

Neal Katyal:  Courts martial are set up by an independent branch of government, Congress, and in balance rights fairly.  The military commissions do not.  They break from our most fundamental traditions.  I'm not in favor of courts martial.  In the first instance, I think lots of stuff should be done in the civilian justice system, but Congress has made courts martial available to try these cases, and I think there is an appropriate role for them.

Roger Pilon:  Well, good.  That is exactly the answer I wanted to elicit from you because now I want to ask how would you distinguish who goes into which of those two courts?

Neal Katyal:  Well, if it is a purely military offense for example, something that the military is suited for, I think that is something may belong in a court martial.  If there are classified information issues that you think a court martial is better able to handle because of the security clearances involved and the like, that is another reason.  If there are venue issues, for example a trial in which you are very worried if it takes place in a major metropolitan city that it will pose a threat to the citizens of that city, you have a court martial and it could be stationed somewhere else.  I do not think it is a decision you make likely. 

I think the American tradition in this country is to have civilian open trials wherever possible, but there is this existing authority out there, and I think it is far better to use that, a system that Congress has set up, than to use an ad hoc process that departs from our most basic bedrock constitutional norms. 

Roger Pilon:  So you would leave it to the Executive to make that call.

Neal Katyal:  In the first instance, of course, Congress can regulate it if they see necessary.

Jack Goldsmith:  We run out of time.  Thank you very much.  Thanks to the panelist.

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