Over at Left2Right, Don Herzog explains that he doesn’t trust the government to investigate terrorism cases because terrorism investigations are run secretly — specifically, the investigations are run by “faceless assistant special agents and magistrates” via “ex parte proceedings,” using “gag rules.” As best I can tell, Herzog appears to see this state of affairs as the result of a naive trust many people have in “law and order.” Herzog suggests that this is backwards: we should trust the government when it operates in the open, he suggests, but we shouldn’t trust it to operate in secret.
It seems to me that this very much misses the real debate, however. The secrecy of terrorism investigations ordinarily is not justified by naive faith in government, but rather by a realistic operational understanding of how terrorism investigations work and the serious practical problems with alternatives to secrecy. The norm is secrecy not because no one is worried about government abuse, but because the potential harm of government abuse is considered outweighed by the increased effectiveness of secret investigations. In other words, the issue isn’t trust alone, it’s effectiveness balanced against the risk of abuse.
At the risk of belaboring the obvious, the basic problem is that “open to the American public” also means open to Al Qaeda. There is no way of letting 300 million Americans know about how investigations are going without letting the bad guys know, too. Of course, this doesn’t mean that absolute secrecy is always required, or that existing law strikes the right balance. In the current system, only the identity of the judges on the FISA court and the overall number of FISA orders requested and obtained every year are public; DOJ must give classified briefings on how the system is working more generally, but those are closed to the public. Should the system be more open? Perhaps. I am certainly open to new ideas about how we can increase effective government oversight of terrorism investigations without impeding their effectiveness. (I have a few ideas myself, actually, that I have thought of proposing in a law review article.) But I don’t think it helps to imagine that terrorism investigations are secret just because people are a blind to the risk of abuse.
Every one agrees that there is a risk of abuse when the govermment acts secretly. Everyone is worried about that. The problem is that this risk isn’t the only risk out there, and the risk has to be weighed in a very practical way with other competing objectives.
UPDATE: An e-mail from Prof. Herzog suggests that I may have misunderstood his post, and for that I apologize. Here is Herzog’s response:
I quite agree on everything you say. My post was motivated by an
endless series of comments saying that the right was properly skeptical of
the state and the left had boundless faith in its competence and
honesty. I’m a “trust and verify” kind of guy, and all I wanted to say
was, when we can’t verify, because we can’t have publicity, let’s not kid
ourselves about the price we’re paying.
Agreed.
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