Prepared Remarks of Attorney General Alberto R. Gonzales at the U.S.

Air Force Academy Regarding Civil Liberties and the War on Terrorism
Colorado Springs, Colorado November 20, 2006
Good morning. Somewhere in the world – right now – an Army private stands guard at a lonely lookout post… Somewhere in the world – right now – a Navy Lieutenant leads his seal team in a covert operation to gather intelligence information… Somewhere in the world – right now – an Air Force major sits in the cockpit of his F-16 fighter preparing to drop armament over a theater of operations. And somewhere – right now – an American family is grieving over the loss of a young son … of a daughter … killed in defense of our Country. The United States is the most powerful nation in the world. Throughout the history of our great nation, our military has been tested and called upon to defend freedom … and warriors have died. So when I look out at your bright, young faces, I feel a range of emotions. As a parent, I am anxious and concerned for your safety and welfare. As a cabinet official, I feel a sense of comfort that America’s best and brightest are leading our military. And as an American citizen, I feel pride and gratitude for your commitment and sacrifice on behalf of 300 million Americans. You chose this noble profession after the September 11th attacks. So you have answered this calling knowing well the dangers and the enemy that confronts the United States in this world of terrorism and asymmetric warfare. I had a chance, this past summer, to visit for the second time the front-lines of the

war on terror in Iraq. And I was inspired by the steadfast resolve of our men and women in uniform, as well as our civil servants who are there to help the Iraqi people establish their new government. You are here at the Air Force Academy at a time of great historic significance. Your studies and your experience here inevitably focus on your future role in this conflict, because America will rely upon you as we continue to wage this war. As Air Force officers, you will be involved in fighting it. Today, as students, you seek to understand it. I am here, as Attorney General of the United States, to discuss how civil liberties factor into the fight at hand. I appreciate the topic of this lecture because it is critical that we never lose sight of civil liberties while we fight the War on Terror, or any other war. To achieve victory at the cost of eroding civil liberties would not really be a victory. We cannot change the core identity of our Nation and claim success. And our identity has never been in doubt – we are a free people, dedicated to liberty for the popular and the unpopular, committed to the ideal that the People govern themselves, and determined to have a government that cannot extinguish or suppress the rights that make us Americans. So I look forward to our discussion today on this vital topic. And I encourage you, during this lecture and whenever you find yourself engaged in conversation or debate on these issues, to keep in mind this irony: that our ability to have this debate is one of the very things our enemy hates about our society. Free speech. Freedom of association. These values are repulsive to the radical Islamic terrorist. They fear them and suppress them whenever and wherever they can. Yet through those very means, we as a society are protective of that terrorist’s rights. This is ironic, but good. Because, as you well know, America has a unique responsibility to set the global standard for liberty and fair conduct. The world looks to us to set high standards for freedom, and we take that leadership role very seriously. Our commitment to leading by example – on issues from human rights to free speech – is strong. Indeed, other countries strike a different balance between security and freedom, both in the activities they punish as crimes, and in the procedures with which they do so. In some instances, our allies have adopted or utilized some counterterrorism tools that we have not adopted in the United States because doing so would abridge the civil liberties protected by our constitution. For example, speaking out in support of past terrorist acts is punishable in several

European countries, including Italy, Spain, and France. And after the July 2005 terrorist attacks in London, the United Kingdom passed a law making it a crime to directly or indirectly encourage terrorism, or to disseminate terrorist publications, or to post “terrorist publications” on the Internet. Laws like these contain aspects that would be inconsistent with the First Amendment if adopted in the United States. Another example: In France, police can hold suspects in custody for up to 96 hours if there are plausible reasons to suspect that the person has been involved in a terrorism offense, or up to six days if there is a serious danger that acts of terrorism are believed to be imminent. Compare this to our country, where there must be a probable cause hearing within 48 hours of a suspect’s arrest. And in the United Kingdom, the arrest or search of a suspected terrorist is allowed if law enforcement “reasonably suspects” the person to be a terrorist or to possess “anything which may constitute evidence that he is a terrorist.” This reasonable suspicion standard is a lesser standard than the “probable cause” standard required under the Fourth Amendment of the U.S. Constitution. The terrorism suspect can be detained in the United Kingdom for up to 28 days, and the reviewing official still does not need to find probable cause–only that there are reasonable grounds to believe that detention is necessary to obtain relevant evidence. In short, there are a variety of approaches to combating terrorism, and each country, including ours, makes choices based on their unique legal system. In spite of what I see as America’s clear commitment to civil liberties, some critics have suggested that recent U.S. policy decisions are setting a bad example – that we are sacrificing civil liberties, and even that we are doing so in a futile effort against terrorism. These are myths. Let me share with you the facts. First, the war is, indeed, broad, difficult and ongoing – but our enemies are on their heels; we are making progress. We’ve taken away the “home base” for al Qaeda in Afghanistan. We’ve destroyed training camps, cut off funding channels, and disrupted means of communication. Architects of the September 11th attacks have been captured and interrogated … and we have learned vital information from them which has enabled us to prevent further attacks. Khalid Sheikh Mohammed, Abu Zubaydah, and Ramzi bin al Shibh today await justice before a Military Commission at Guantanamo Bay. We have disrupted plots and put homegrown radicals behind bars. In August of this year, British authorities – with the assistance of the FBI – disrupted what would have been a major terrorist attack on U.S.-bound planes with massive casualties. So it is a fact that we are safer, even if we are not yet safe.

We are winning because of the tools we have developed, the passion and persistence with which we fight, and the flexibility that our armed forces and law enforcement officials have shown on the battlefields of this conflict – both abroad and also in disrupting terrorist plots at home. As part of our nation’s proud military tradition, you should take great pride in being part of a force that is combating terrorism, world-wide. You will be led by brave men and women who have adapted to the most difficult of circumstances, and I applaud all of you, and all Americans in uniform, for that. What does this have to do with civil liberties? Some critics, pointing to the tools that are helping us win the War on Terror, have challenged them as inconsistent with our nation’s historic commitment to civil liberties. I am disappointed that there are so many myths as a result of those questions, but I welcome the debate and the opportunity I have to address the facts surrounding the Terrorist Surveillance Program, the Patriot Act, as well as Guantanamo Bay and the recent Military Commissions Act—which do not directly relate to Americans’ civil liberties, but which indicate how seriously we take even the rights of enemy combatants. *** Common myths about the Terrorist Surveillance Program are that it is an invasion of privacy and an unlawful eavesdropping tool. I want to be very clear about the facts here: the Terrorist Surveillance Program does not invade anyone’s privacy, unless you are talking to the enemy in this time of war. It targets only international communications in which we have reasonable grounds to believe that one party is a member or agent of al Qaeda or an affiliated terrorist organization. The TSP is lawful. The President established the Program under both the authority given to him by Congress when it passed the Authorization for Use of Military Force in the wake of the 9/11 attacks, and by his authority under the Constitution. The Program serves as an essential early warning system, alerting us to the presence of al Qaeda operatives in the United States, and it operates with the speed and agility necessary to protect the nation. The Program does not violate any constitutional freedoms. History and law both confirm this. The Program is, in fact, nothing more than a modern-day version of the “signals” intelligence that our country has gathered and relied upon in every conflict in our history, and that every nation has relied upon. In every conflict we have been in, the United States government has needed to know what the enemy is doing, and signals intelligence provides one of the most important ways to do that. George Washington, for example, steamed open the mail in our earliest fight for

freedom. During the Civil War, telegrams were intercepted. During both World Wars, we intercepted telegrams in and out of the United States. We have always worked to stay a step ahead of our enemies. The President’s core duty under the Constitution is to protect the nation from foreign attack, and presidents have always done this by uncovering the communications our enemies use in harming our people. To be certain that the Program is no broader than it must be, it is regularly reviewed to ensure the protections of civil liberties. Indeed, about every 45 days, the Program is reviewed to ensure that is still necessary, that there is no better way to achieve the same objectives, and that it remains reasonable under the Fourth Amendment. Importantly, in addition to being lawful, the Terrorist Surveillance Program is effective. Indeed, it has proven to be one of our most effective tools in the war against terrorism. U.S. intelligence officials have confirmed that the program has helped stop terrorist attacks and has saved American lives. I wish to be very clear: The only purpose of the Terrorist Surveillance Program is to detect and prevent al Qaeda attacks before they can be carried out. It is narrowly focused in every way – by targeting only the communications of al Qaeda, by targeting only international communications, and by requiring high-level approval, as I mentioned before, approximately every 45 days. Some people will argue nothing could justify the government being able to intercept conversations like the ones the Program targets. Instead of seeing the government protecting the country, they see it as on the verge of stifling freedom. But this view is shortsighted. Its definition of freedom – one utterly divorced from civic responsibility – is superficial and is itself a grave threat to the liberty and security of the American people. As Justice Robert Jackson remarked in the case Terminiello v. City of Chicago, “The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.” *** Justice Jackson’s call for, quote, “a little practical wisdom,” close quote, applies not only to those who misleadingly attack the Terrorist Surveillance Program, but also to those who endlessly repeat the refrain that the Patriot Act is a threat to our civil liberties. It is a myth that the Patriot Act empowers the government to be overly intrusive, giving it power that could someday be used to pry into innocent Americans’

personal lives. The fact is that the Patriot Act was born of a well-established criminal justice and national security structure as well as vibrant bi-partisan debate in Congress, both upon its establishment and its renewal. The Act was written to help the law enforcement and intelligence communities to protect Americans and fight the war on terror. It, in fact, answered the call of career, rank and file law enforcement to update our laws to match law-enforcement tools with modern technology. The Patriot Act simply ensures that law enforcement and national security personnel have the tools they need to keep us safe from terrorism – and in many cases those tools were already available to law enforcement in other contexts – while also ensuring that those tools are consistent with the Constitution and include appropriate safeguards against government over-reaching. The Patriot Act does not authorize the government to go into your house or read your mail without probable cause and a warrant. It does allow law enforcement and intelligence personnel to better share information and better coordinate with each other. It does give national security investigators tools like those criminal investigators have used for years. And it does update the law to keep up with evolving technology and increasingly sophisticated terrorists. Many of the tools in the Patriot Act are identical to those that have been used for years to investigate drug dealers and white-collar crime. They've been used effectively, and they've been used without an adverse impact on civil liberties. So criticism of the Patriot Act has always begged the question: if we can use these tools successfully and prudently in the area of dealing with, say, drug traffickers, why shouldn’t they be used in the war against terrorists who want to import chemical, biological or even nuclear weapons to inflict mass civilian casualties? *** You surely have heard the myth that the U.S. is holding detainees in Guantanamo Bay in violation of international laws and basic human rights. This is not supported by the facts. It is a mistaken perception. First, the detention facility at Guantanamo exists because it is necessary. The facility will not remain open one day longer than it is needed, but until then we have an obligation to our warriors, to the men and women fighting in uniform, that we hold these individuals while hostilities continue. The United States has no desire to be the world’s jailer, but we do have an

obligation to both our own troops and to the soldiers of our allies to detain and remove terrorists from the battlefields of this conflict. In doing so, the United States strives mightily to meet all of our international obligations. Unfortunately, the debate over U.S. compliance with the Geneva Conventions has been unnecessarily muddied when it comes to Guantanamo. We read a lot about this in the newspapers and hear about it on TV or the radio – but I’d like to boil it down to one simple fact today: the United States provides individuals detained as enemy combatants at Guantanamo with more procedural protections than those owed to lawful prisoners of war under the Geneva Conventions. We have put in place extensive procedures to ensure that the individuals we detain at Guantanamo are, in fact, enemy combatants. Every detainee has received, or will receive, a hearing before a Combatant Status Review Tribunal, or “CSRT,” a fair military tribunal that exists to determine whether the individual is in fact an enemy combatant. And detainees have the right to appeal CSRT determinations to the U.S. Court of Appeals for the D.C. Circuit. In other words, every detainee at Guantanamo has the chance to challenge his detention, in court. The Department of Defense has further established Administrative Review Boards, or ARBs, that review the status of each detainee annually and may direct the release of detainees whom the ARB determines no longer pose a threat to the United States and can be repatriated safely to their home countries. The processes provided detainees are not, however, without risk. As you may know, there have been over a dozen occasions where a detainee was released but then returned to fight against the United States and our allies again. What would you say to the parents of a young soldier who has been killed by someone we had once captured and then released? Whatever process is afforded detainees, it must fully account for the high stakes involved in this war. Military Commissions, like international war crimes tribunals, employ procedures that are adapted to wartime circumstances. Nevertheless, they contain all of the procedural protections that civilized nations regard as fundamental. What is extraordinary, in other words, is how much – not how little – our law protects enemy combatants. That the government is so anxious to give these rights to enemy combatants, who are not U.S. citizens and are not in the United States, should make it obvious that the government is even more committed to ensuring that the civil liberties of Americans are zealously guarded. When you hear sneering references to “Gitmo,” or assertions that military commissions are hopelessly unfair, I hope you will be

armed with the facts – and that you will remember that our treatment of enemy combatants is itself evidence of how strongly we value civil liberties. *** And what about torture? Again, there are many misconceptions, and many myths. Let me be clear here today: Our law plainly and unequivocally prohibits torture as well as cruel, inhuman, and degrading treatment. The United States does not engage in torture, and consistent with our law and practice, no evidence obtained by torture shall be admitted at a military commission proceeding. Torture is not tolerated by this country on the battlefield or off. Anyone who tortures or abuses a detainee tarnishes the service of every honorable student and soldier in this room today. The President has said this, and I will say it again: those who commit torture in the name of the United States government will be prosecuted. In any discussion of Guantanamo, detainees and military commissions, I think that one final fact helps put things in perspective – and that is the fact that members of al Qaeda are not merely common criminals. Some critics around the world have argued that they are “just” criminals, that their crimes somehow do not amount to war crimes. But here are the facts: al Qaeda seeks to employ weapons of mass slaughter as a means of achieving political goals against both the civilian and military capacity of the United States, Europe, and our allies throughout the world. Its members continue to fight our Armed Forces on battlefields around the world, and they will continue to do so until we stop them. Al Qaeda has committed acts on a scale that transcends mere crime, as recognized by NATO immediately after the attacks of September 11th. Their crimes are therefore nothing less than war crimes. Given the magnitude of the atrocities al Qaeda has committed, there can be no comparison between the crimes of its members and that of common civilian criminals. As a final point in this area, I offer an observation: the United States has rightfully positioned itself in this conflict and other conflicts throughout history as a mature and moral leader – an example to follow. Yet we know that the fair and humane treatment of the detainees at Guantanamo will have absolutely no effect on how their confederates treat our soldiers and civilians. They will not rise to our good example. They do not and will not obey international law, the law of war or the moral laws of humanity. They will not hold trials or offer counsel or defense. They will torture, abuse and swiftly murder those who they capture. They do not have prisoners; they behead those they capture. And their victims are not limited to those wearing the uniform – they are equal-opportunity murderers, targeting soldiers, humanitarian volunteers, journalists, missionaries, contractors – men and women, young and old – all the same.

In treating terrorist detainees humanely, we accept that there will be no reciprocity on these issues. But we do it because of our values as a nation, and because the United States has always stood, and continues to stand, for the rule of law in the world. *** In closing, today’s visit has resurrected so many memories. I remember a Saturday morning inspection in my Fourth Class year, when an upperclassman found a dustbunny underneath my roommate’s bunk. My roommate and I were standing at attention with the upperclassman holding the dust-bunny on his white-gloved index finger just inches from my roommate’s face. As he dressed us down for the discrepancy, he looked back and forth between us. Suddenly, at a moment when the upperclassman was looking at me, my roommate blew the dust-bunny off of his outstretched finger. Needless to say, the mischievous act provoked quite a reaction and that tiny puff of air caused us suffering that lasted several weeks. Since that year, there have been many important changes here, including the admittance of women. But some things have not changed and should not change … such as the continued value of academy graduates in insuring the safety of our country from enemies across the world. Since today’s war is fought at home, too, by the law enforcement community that I now am part of, I want you to know that for all of us – from the prosecutors and investigators at the Department of Justice and the FBI to state and local police – for all of us, just as it is for all of you, every day is September 12th. The armed forces are on the front lines, and America is grateful for the ultimate sacrifice – but we fight together when it comes to protecting our wonderful country from the hatred of extremists. Thank you again for your commitment. I pray that God will watch over you. May He continue to guide your decisions and may He continue to bless the United States of America. ###