The 9/11 Commission: Striking The Right Balance Between Individual Rights And Collective Security

Editor: Governor Thompson, would you give our readers a brief overview of your career?

Thompson: I started my career as a prosecutor, first with the State's Attorneys Office of Cook County and then with the Illinois Attorney General's Office. After returning to Northwestern Law School to teach, I went to the U.S. Attorney's Office as First Assistant for a year and then as U.S. Attorney for the Northern District of Illinois. In 1977, after four years there, I left to run for Governor of Illinois. I was elected and held that position for 14 years. During the administration of the first President Bush, I was asked to chair the President's Intelligence Oversight Board which was charged with insuring that our nation's intelligence and federal law enforcement agencies conducted their operations in accordance with U.S. law and the Constitution. This was a fascinating position in which to serve, particularly since it took place during the 1991 Gulf War. I left the governor's office in 1991 and have been with Winston & Strawn since that time.

Editor: Would you share with us why you decided to return to Winston & Strawn after leaving office?

Thompson: I had practiced for the firm for about a year while running for office, and I did feel some loyalty toward the people who had supported me. More importantly, Winston is the oldest firm in Chicago, and it has an extraordinary national record. Among all of the firms with which I interviewed Winston was the one that offered me the earliest leadership opportunity. That was really the deciding factor.

Editor: You were named to the National Commission on Terrorist Attacks upon the United States - the 9/11 Commission - in late 2002. Who were the other members of the Commission and who named them?

Thompson: The President named the Chair. He originally named Henry Kissinger, who withdrew because of demands from the press and relatives of the victims that he reveal the names of his clients, something he was unwilling to do. The Democratic leadership of Congress named the Vice Chair, initially George Mitchell, who withdrew for the same reason. The President then named Tom Kean, former Governor of New Jersey, as Chair and the Democratic leadership named Lee Hamilton, former Chair of the House Foreign Affairs Committee, as Vice Chair. The two of them pledged to act as a team, and not as Republican and Democrat. They provided inspired leadership for the rest of us, who included Rick Ben-Veniste, who had served as a Watergate prosecutor and, at a very early point in his career, had been a student of mine at Northwestern; Bob Kerrey, former Governor of Nebraska and Senator from that state; Fred Fielding, a former White House counsel and now a senior member of the Washington law firm Wiley Rein & Fielding; John Lehman, former Secretary of the Navy; Jamie Gorelick, former General Counsel at the Department of Defense and Deputy Attorney General; Tim Roemer, a former Congressman from Indiana; and Slade Gorton, former Republican Senator from the state of Washington. It was a pretty distinguished group consisting of five Republicans and five Democrats. I was appointed by the Speaker of the House, Denny Hastert.

Editor: What was the mandate of the Commission?

Thompson: We were asked to find out, to the extent that the evidence would show, what happened on 9/11, why it happened, what failures may have contributed, and to make recommendations to ensure, to the extent possible, that it did not happen again.

Editor: In July 2004, the Commission released its public report. Would you summarize the general findings of the report?

Thompson: The first thing I would emphasize is that the report was unanimous. There was not a single dissenting voice, and I think that reflects two things: the inspired leadership of Tom Kean and Lee Hamilton, and the recognition on the part of all of us that, in the words of Tim Roemer, we carried the weight of history on our shoulders, and had a responsibility to the American people that transcended any partisan interest. It is not possible to work on something of this magnitude - and be conscious of that magnitude - without developing a great deal of respect for and trust in your colleagues. That certainly occurred here. The report was sometimes critical of both the Bush and Clinton administrations, and we reached our conclusions in an objective and non-partisan manner and, as I say, unanimously.

I think the most important finding was what Tom Kean referred to as a "failure of imagination" on the part of the federal bureaucracy, including the law enforcement agencies and the intelligence community. During the Cold War, of course, we conceived of an attack as coming from overseas, and the idea of being attacked from within, and in a way that utilized a common American experience - domestic air flight - was beyond the imagination of most people serving in these positions.

There is no question but that we missed opportunities - either through accidents of timing, bad luck, negligence, and perhaps all three - to break up this conspiracy before it struck. We knew that Osama bin Laden was behind the attack on the USS Cole, and neither the Clinton nor the Bush Administration - the one perhaps because it was leaving office and the other just coming in - responded. At a time when we knew that he had training camps in Afghanistan and a pretty good idea of where he was at the time, that constituted a major failing.

The failure of the major intelligence agencies, the FBI and the CIA, to pay attention to what they were hearing from some of their operatives and to communicate effectively with each other was a major shortcoming. As a consequence of this finding, Congress has adopted our principal suggestion concerning the office of a National Intelligence Director, to whom all U.S. intelligence agencies are responsible.

We did not get everything we asked for - the reform of the intelligence committees of both the House and the Senate, which are duplicative and serve to complicate the intelligence effort, is still pending, and the distribution of Homeland Security Funds continues to be based on factors other than risk. I understand the origins of this - I've been a politician for a long time - but I do think it is possible to send the bulk of the funding to where most of the risk is without cutting anybody out, and that has not been done as yet.

What has been accomplished? I give the Administration credit for its diplomatic efforts across the world. Many governments are pretty quiet at the moment - this is the kind of war in which no one wishes to call attention to themselves - but in fact we are the beneficiaries of a great deal of quiet cooperation. We have not been attacked since 9/11. Other countries - England, Spain, Egypt, Indonesia, the Philippines - have been attacked, and we hear the threats directed against us on an almost daily basis. But we have not experienced the terrible events of 9-11 again. Is this because of our increased vigilance? We are certainly spending a great deal of money, and we have made a decent start on legislative reform, on agency reform and on getting everyone to understand how dangerous the world we live in today is. Sad to say, these are accomplishments.

Editor: Jumping ahead a couple of years, just this past April you participated in a program on the U.S. response to 9/11 at the ABA's Section of International Law Spring Meeting.

Thompson: We were trying to cover a variety of viewpoints that have been expressed publicly by lawyers, by public policy commentators and by many social service agencies on issues that have arisen since 9/11. These issues include the Guantanamo detainees, trials before military tribunals, the opinions of the Supreme Court on the powers of the President with respect to due process protections accorded prisoners taken during a time of war, the applicability of the Geneva Conventions, and so on. Many of these issues are more esoteric than anything we dealt with on the 9/11 Commission, but they are of great importance because they address how the world views America and the American justice system. We have created, and consciously created, a system that attempts to establish a balance between liberty and security. That balance is not static. Our Constitution is a living document that must be constantly reinterpreted to meet the conditions of the time. The ABA program constituted a very American discussion on how far the government should go, and on what protections should be extended to people accused of terrorist actions or acts of war, at a very difficult moment in our history.

Editor: Do you have a sense of how we are doing in this shadowy war against terrorism?

Thompson: I think we are making progress. We have been able to disrupt terrorist activity, intercept communications, interrupt the flow of financing, keep senior leadership on the run, and all of these things contribute, I think, to the fact that we have not suffered another attack We have been able to penetrate some of their groups, something that is extremely difficult to do. Above all, I believe the American people have a better understanding of the issues we face, and that means that if and when another attack comes we will be better prepared, emotionally and psychologically, to deal with it. In light of the efforts we are making to prevent another 9/11 from taking place, I am hopeful that we will not be required to experience another tragedy of such magnitude.

Editor: In May of this year we celebrated National Law Day, which recognizes our unique heritage of freedom under the rule of law. In the war against terrorism we are fighting a cruel, fanatical, relentless and secretive adversary. In your view, is it possible to win such a war without subverting the rule of law?

Thompson: Yes. This is not a war we have experienced before, however. I grew up during World War II, and witnessed Korea and Vietnam as an adult. These were conventional conflicts with armed and uniformed soldiers fighting along defined battle lines. The rules here are different. The balance between liberty and security is not easy to draw in a situation like this, and certainly this is one of the most difficult tasks that we ask of a President. I am not certain I would like to be in the President's shoes and required to decide - not merely consider - how far to go in protecting the security of the nation, his first and most fundamental duty, and how much to pull back for fear of violating someone's constitutional rights. A mistake that goes too far in support of security may be redeemable; one that goes too far in favor of liberty may not be redeemable. The fact that so many Supreme Court decisions that address this kind of issue are split decisions, five to four, six to three, reflect just how difficult they are to make. Nevertheless, we elect a President expecting that he will be capable of making them and that, in doing so, he will be as much subject to the rule of law as any of the rest of us. Yes, it is possible to win the war against terrorism without subverting the rule of law. It is the rule of law that defines us.

Published June 1, 2006.