Posted by Orin Kerr:
Trust and Terrorism Investigations:
Over at [1]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 imnpeding
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.
References
1. http://left2right.typepad.com/main/2005/01/just_trust_us.html
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