Courts & Litigation Criminal Justice & the Rule of Law Terrorism & Extremism

Eric Holder Comments on Civilian Justice System

Benjamin Wittes
Sunday, May 12, 2013, 1:00 PM
Attorney General Eric Holder yesterday made these remarks at the University of California Berkeley School of Law's Commencement.

Published by The Lawfare Institute
in Cooperation With

Attorney General Eric Holder yesterday made these remarks at the University of California Berkeley School of Law's Commencement. In addition to the normal graduation-speech fare, he said the following:
How we respond to such adversity – as leaders, as lawyers, and as Americans – represents a defining issue of our time.   And as we reflect upon these threats this morning, each of you must consider some important questions: How can we uphold the values, and remain true to the highest ideals, of our legal system – while keeping pace with 21st-century threats?   In what ways could we, or should we, adapt and adjust this system consistent with our finest legal traditions?   Above all, how can we be nimble in our pursuit of justice without sacrificing our dedication to our values and the rule of law? None of these questions are rhetorical.   Their answers are being debated every day – not only in seminars at world-class institutions like this one, but in the Executive Branch and the halls of Congress as well.   Especially since last month’s horrific attacks at the Boston Marathon, the urgency of this discussion has come – once again – into sharp focus.   Complicated and emotionally-charged issues of principle and procedure have been thrust back into the national spotlight.   And the importance of finding the right answers would be difficult to overstate. It is in such moments of difficulty and crisis – when cases are most shocking, emotions are running high, and fear is at a fever pitch – that our legal system, and all who serve it, are truly put to the test.  At times of maximum danger we must always restrain the impulse to implement that which we might think to be effective but, indeed, is surely inconsistent with our treasured values.   It is also important to remember, in these trying times, that nothing can be taken for granted.   Positive outcomes are not preordained.   As history teaches us, our great country doesn’t always get it right. In 1942, just months after the bombing of Pearl Harbor, more than 110,000 Japanese Americans were removed from their homes here in California and throughout the Pacific coast.   Many were transported to War Relocation Camps in isolated areas.   More than 60 percent of those interned were American citizens.   And, in a deeply misguided ruling, the United States Supreme Court held that this exclusion process passed constitutional muster. More recently – in the aftermath of 9/11, as our nation struggled to cope with an unprecedented tragedy, and to respond to a new kind of stateless threat – fear and uncertainty drove us, in certain cases, to abandon our values in pursuit of information about those who would do us harm.   We used techniques that were of questionable effectiveness, but were certainly inconsistent with who we say we are as a people.   And in bringing suspected terrorists to justice, some questioned – and continue to question – the capacity and effectiveness of our federal civilian court system.   Members of Congress placed unwise and unwarranted restrictions on where certain detainees could be housed, charged and prosecuted.   In short, many lost faith with our founding documents and our time-tested, effective institutions. In the wake of the Boston Marathon bombings, many of these tired and meritless political arguments – and renewed calls to abandon the use of civilian courts in dealing with terrorism-related activity – are being made once again.   And once again, every legal professional, every aspiring leader, and every graduate in this crowd today must renew your commitment to standing firm – in the face of manufactured controversy and overheated partisan rhetoric – to uphold our most sacred values. Let me be clear:   those who claim that our federal courts are incapable of handling terrorism cases are not registering a dissenting opinion.   They are simply wrong.   Their assertions ignore reality.   And attempting to limit the use of these courts would weaken our ability to incapacitate and to punish those who target our people and attempt to terrorize our communities. Throughout history, our federal courts have proven to be an unparalleled instrument for bringing terrorists to justice.   They have enabled us to convict scores of people of terrorism-related offenses since September 11.   Hundreds are properly, safely and securely held in our federal prisons, not Guantanamo, today.   Not one has ever escaped custody.   No judicial district has suffered a retaliatory attack of any kind.   And no other tool has demonstrated such a robust ability to stop terrorists – and collect intelligence – over a diverse range of circumstances.   I defy anyone, on the merits, to challenge these assertions. Our heritage, and our legacy to future generations, clearly demand that we maintain full faith and confidence in a court system that has distinguished this nation for more than two centuries.   Our security demands it, as well, because prosecuting terrorists in federal court is not just consistent with our values – it is extraordinarily effective.   The Article III system is both strong and fair.   And it has long been seen as legitimate around the world – setting this country apart, differentiating us from other nations, and serving as a model for others to envy – and to emulate. Come what may, we must never cede our freedoms or curtail our dearest liberties, nor feel that there is a tension between them and our ability to keep safe.   Especially in moments of crisis, when we are under attack or faced with difficulty and danger, our actions – your actions – must be grounded in the bedrock of the Constitution.   And steps forward must be rooted not only in our proudest legal traditions – but also our highest ideals. At the same time, we must never be afraid to engage in a robust, responsible dialogue about new strategies for dealing with new challenges – including the need to provide law enforcement with the tools and authorities necessary for gathering vital intelligence; keeping pace with rapidly-changing threats; and protecting public safety – all while safeguarding individuals’ rights to due process.   Just as surely as we are today a nation at war – so, too we are, and must always remain, a nation of laws.

Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.

Subscribe to Lawfare