Thank you for the invitation to be with you today.  I was a member of this Committee for several years and attended many of its conferences.  I learn much every time I spend time with this Committee and have encouraged many of my colleagues in DoD to become more involved.   

I received this invitation many months ago and spent considerable time thinking about what I would say today. I considered sharing with you the nuts and bolts of the legal issues surrounding one or two major litigations pending against the Defense Department right now, or my insights from my personal involvement – I testified four times before Congress in July alone -- on legislative reform of military commissions – Section 1031 of S. 1390, the Senate version of the 2010 National Defense Authorization Act.     

Then I realized there is a much larger, overarching issue we face today– something that, in the day to day grind of my own job, I must recall for myself every once in a while.    

Tomorrow marks the eighth anniversary of the day that, along with December 7, 1941 and November 22, 1963, is one of the darkest single days in American history.   

Many of us have vivid, very personal, first-hand connections with the tragic events of that day.  I suspect some of you in this room were in the Pentagon that day and acted heroically to care for the lives of your colleagues.   

For me, there are certain vivid recollections of the day that I will never shake.   

I had been back in private law practice in New York City for nine months, after serving 27 months as the General Counsel of the Air Force in the Clinton Administration.  It was primary day in New York City -- the day voters in New York were going to vote for the Democratic and Republican nominees for Mayor and other city offices. I drove to work that day, from my home in Montclair, New Jersey to my law office in midtown Manhattan.  Back then I was driving to work about 2-3 days a week, taking the bus or the train the other days. Depending on traffic in the Lincoln Tunnel, my door to desk commute when I drove was almost always one hour, ten minutes. I’d leave home around 630, before the tunnel got backed up, park at a garage on 53^rd and 8^th Avenue, and be in my office by 740.  

Many here will remember that the weather that day in the Northeast was picture perfect, clear blue sky, temperature in the 70s, no humidity.  I remember thinking then that September does not usually bring such great weather.  I recall all this about that morning because September 11^th is my birthday.  That day I planned to leave work early, and celebrate my birthday the way I like to always spend it -- a quiet dinner at home, menu of my choice, with my wife and two kids.     

My office at Paul Weiss was on the 28^th floor of 1285 Avenue of the Americas, or, as we New Yorkers know it, 6^th and 51^st.  My office was on the East Side of the building, near the southeast corner.  Step out of my office, and from the associate’s office a few feet away was a clear view down 6^th Avenue at the World Trade Center.   

I was an eyewitness to the flames and destruction caused by the first plane, the impact of the second plane at 9:03 am, the collapse of the first tower at 9:59 am, and the collapse of the second tower at 10:28 am.  The images of smoke and destruction against the backdrop of a clear beautiful blue sky are burned in to my memory.   

After the Pentagon was hit, many of you will recall, and should recall -- as a lesson in crisis management -- the number of false reports about attacks elsewhere that day.   

I remember seeing the fighter jet over Manhattan, and I remember the drive home over the George Washington Bridge – all the traffic on that great bridge was pointed one way, headed out of the city, while no traffic was allowed in.  The City that day had been attacked, and did, indeed, feel like a war zone.   

Politics aside, I recall feeling terrible that I had left federal service, powerless to do anything, that the position of General Counsel of the Department of Air Force was, nine months in to the new Administration, still vacant, and that I was not at the Pentagon that day with my career colleagues.  I wanted to do something.  I walked the streets looking for a hospital that would accept blood donations.   

Like December 7, 1941 and November 22, 1963, September 11, 2001 is a single day that changed the direction of our country like no other.  One major military operation in Afghanistan was launched as a direct result; and a second military operation in Iraq, some will argue, was launched as a direct result of the environment created post-9/11.  We faced an ill-defined enemy that had penetrated our borders.  We knew of Anthrax attacks, but we did not know when and where they would end.  Our leaders warned us of a next terrorist attack that would be even bigger than the attack on 9/11.   

The psyche of the American public changed; we were afraid, we feared for our safety and that of our children.   

It was within the context of this environment that certain national security legal judgments were made, which conventional legal wisdom now says were plain wrong.  

We read now-declassified OLC legal opinions and are stunned that senior lawyers of our government would, in very detailed and graphic terms, approve waterboarding, confinement in cramped spaces, slapping a man in the face, or depriving him of sleep, all in the name of national security.  Read these opinions from 2002 and 2005 and what you see is the thinking of an era.  Suddenly, we faced a national security crisis that did not, and does not, fit neatly within either the law of war or law enforcement box.     

I raise all this not to criticize, accuse, or score political points.  My job is to get it right now and for the future.  But, out of the legal judgments that were made in the years that immediately followed 9/11, there are a few -- what our President has referred to in a very different context -- “teachable moments.”   

This morning I’d like to share with you my own observations in this regard.  After only seven months on the job, I am still learning, and I hope to continue to learn.     

First, as national security lawyers we must be cautious about the legal judgments we make during times of fear, uncertainty or national emergency.  As Justice O’Connor wrote in Hamdi v. Rumsfeld: “It is during our most challenging and uncertain moments that our nation’s commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad.” One of my personal pledges in this job is to adhere to that principle.   

As lawyers it is our job to be steadfast in our application of the rule of law regardless of the political climate or changing times.  We must help shape policy to fit the law; we do not shape the law to fit policy.   

One of my closest family friends is a retired ivy-league professor in his late 70s.  He is one of the most courteous, dignified and mild-mannered men you will meet, who, in the 1960s was considered by many to be one of the intellectual engines of the civil rights movement.  He was considered by others to be a dangerous radical subversive.  Our own government wiretapped his home phones and sent informants to sit in on his classes, reflecting the fear and anxiety of the period.  We must all be wary that, even with the knowledge and approval of its lawyers, our government can go too far.   

Second, policymakers, lawyers, judges and lawmakers cannot claim a “zero tolerance” for torture but then try to render opinions that carve out exceptions for “enhanced interrogation techniques.”  You simply cannot issue a rule or legal opinion that says you can hit a man, but don’t hit him too hard, and expect thousands of personnel in the field to know exactly where that line is.  As our commanders in the field know, issue a rule of law like that and the exception will quickly eat up the rule, and the message to the interrogator in the field is that senior officials of our government are willing to tolerate a lot more.   

Third, we were reminded in the political debates of the last few years that torture, cruel, inhuman, or degrading treatment of those we capture are contrary to American values.  This is more than a legal judgment.  It is a judgment about who we think we are as Americans.  As American as George Washington is the value we place on the dignity and basic human rights of the individual.  Indeed, in 1776, after the Battle of Trenton, George Washington wrote an order covering the treatment of Hessian prisoners that said:  "Treat them with humanity, and let them have no reason to complain of our copying the brutal example of the British Army in their treatment of our unfortunate brethren."  That is our history as a nation, and others in the world community look to us to set this example.   

In December 2005, I attended a meeting of retired generals and admirals gathered to sign a letter in support of the McCain Amendment.  I recall one 85 year old retired two-star there who had seen the worst of human abuse in the battles of Iwo Jima.  These were not politicians, and they were not well versed in the policy debates of Washington, but they were all unequivocal in declaring simply “Americans do not torture,” with no exceptions.  “This is not about protecting the bad guys; it’s about who we say we are as Americans,” was the consensus that came out of that room.   

This is why I am pleased that, in the area of military commissions reform, banning the admissibility in evidence of statements that are taken as a result of cruel, inhuman and degrading treatment was one of the very first things we did in this new Administration.  I am also pleased that this was done with the unanimous support of the Judge Advocates General of the Army, Navy, Air Force and the Staff Judge Advocate to the Commandant of the Marines, 

This potential for the use in evidence of such “CID” statements, as we call them, was the most controversial item about the Military Commissions Act of 2006, and, in my opinion, cost the commissions system more in credibility than it could ever benefit us by obtaining a few extra convictions.  The ban on CID statements was a change we put forward in May among the five rules changes to military commissions procedure, and it is a change further codified in the pending Senate legislation.   

Fourth, as I preached many times before, a collaborative and open working relationship between our excellent civilian attorneys and our JAGs produces better quality legal judgments and advice.  The five rules changes I spoke of a moment ago were the joint work product of our JAG and civilian lawyers.   

In July I testified before Congress and promoted one standard for the admission of a detainee’s statements on behalf of the Obama Administration.  The Judge Advocates General of the services testified and proposed another.  In early August I put us all in a conference room together in my office, lawyers from DoD, the White House and DOJ, JAG and civilian, and out of that meeting came an agreement on language which we then submitted to Congress.  If all these lawyers in the Executive Branch can agree to it, it must be pretty good.        

Fifth, and having said all I just said about the fantastic work we lawyers are doing, we must guard against “overlawyering” national security.  We are at war with Al Qaeda.  This new president reiterated that in his speech at the National Archives on May 21.  We must guard against viewing this war as a global law enforcement operation, and we must guard against devising legal guidance for the war-fighter that only a lawyer can comprehend.   

I am pleased to be part of an Administration that has made the rule of law a cornerstone of its national security policy, and to have a central role in that policy.  President Obama is a lawyer, and a smart one.  He believes, and I agree, that by promoting our own country as a nation of laws, we promote national security, by occupying the moral high ground in communities in which Al Qaeda must recruit.  Senator Obama campaigned on this idea, and I for one interpret 365 electoral votes and 69.5 million popular votes as a mandate to pursue this policy in office.   

On a more immediate level, we must do this to restore our credibility in the courts.  The courts are now into the business of national security to an extent no one could have imagined eight years ago.  This is not because we invited them here; it’s because we drew a sharp line in the sand and dared them not to cross.  Even judicial appointees of the prior Administration are showing an increasing impatience with our claims that there are areas of national security in to which the courts cannot intrude.   

No person is above the law, and no area of government operations is beyond the reach of the law.     

This morning I have tried to describe the principles that guide me in office.  But, there are no easy answers to the questions we face.   

Please be patient with us.   

Thank you for listening.  

 In the words of my dad, “You must honor the chair whether it is sitting, walking or lying down.”