Post Date: August 14, 2006

The following op-ed by Professor William Stuntz, Lessons from London, originally appeared in The New Republic on August 12, 2006.

In the wake of September 11, there was a lively debate about the optimal mix of “hard” versus “soft” power–guns versus diplomacy, military force versus foreign aid. Thursday’s foiled plot to blow up commercial jets shows that a similar divide informs the world of police work. Scotland Yard and the FBI sometimes stop terrorists by shooting them, just as the criminal justice system sometimes stops attempted murders by incarcerating the would-be killers. More often, though, violent plans are thwarted by a different sort of policing: light on force and violence, heavy on secrets and lies. Plant informants or bribe sources, figure out ways to listen and watch that the bad guys don’t know about. Trick people into telling you their secrets. Get more information.

Deceit is the key to that enterprise–all good surveillance and intelligence operations depend on it. No Islamic terrorists want to tell Western intelligence services what their plans are. The only way government agents find out, short of brutalizing suspects or sources, is to trick them into giving the information away. Undercover agents and informants do that by pretending to be friends, colleagues, or even lovers. Effective surveillance programs do it by seeing or hearing things that the targets don’t expect to be seen or heard. The idea is for the targets to give away information without realizing it–just like a mark gives his money to a con artist without knowing he’s just been conned.

Naturally, if the police are to be good con artists, they will have to do some unsavory things. As Fred Kaplan noted in Slate this week, “good intelligence requires contacts with the sort of people who hang around the dark alleys of the world.” The point is more general: Burrowing into terrorist networks, discovering who belongs to them, where they get their money, and what evils they plan–these things cannot be done without a certain amount of seemingly disreputable police conduct. If you want to make an omelet, you need to break some eggs–a line usually cited about the breaking of heads. But the adage applies better to the kind of policing that gathers information than to the kind that uses force and doles out punishment. The government can do violence punctiliously. It can’t gather information that way. At least not if it wants good information in large quantities.

There is another problem as well: to get the information it needs, the government must also get a lot of information it doesn’t need. Honest taxpayers must fill out elaborate tax returns so that the government has the information it needs to catch tax cheats. Securities laws require detailed reporting of often pointless information, but those reports help the government spot stock frauds. In those settings–as in most white-collar investigations–the government must gather a great deal of information about a great many innocent people in order to target a few guilty ones. So, too, with respect to terrorism: The government will never identify would-be terrorists if it must know who they are before it begins investigating them. No doubt, British agents targeted some people incorrectly during the course of their long inquiry into the plot to blow airplanes out of the London sky. That is the nature of such investigations; the police make mistakes sometimes. Thankfully, the enterprise of gathering information is self-correcting: The more the police learn, the better they can do the job of separating the innocent from the guilty.

Those two problems–police investigations necessarily involve secrecy and deceit, and gathering information about criminals inevitably means gathering information about innocent people too–explain this strange fact: Taken as a whole, U.S. law does a better job of curtailing privacy violations than it does of curtailing police violence. The body of law that governs when police officers can strike suspects is both small and forgiving; police rarely need to worry about breaking the rules, because the rules let them do pretty much what they want. (The law that governs when police can shoot suspects isn’t that much better.) The law of car searches is both more elaborate and more protective. The law of wiretapping, still more.

That is strange. And it’s wrong. In a healthy legal order, police brutality would receive a lot more attention than searches of glove compartments. Especially so since the law can protect privacy indirectly. Instead of barring telephone surveillance without warrants and probable cause, let the government listen–but place strict limits on how the information is used, and impose strict rules to preserve the anonymity of the many innocents caught in a program like the NSA’s. And such programs ought to be judged systematically, not phone call by phone call. The question should be whether this policy’s gains justify its costs–whether the risk of harm to innocents is needlessly high or otherwise outweighs the benefits of the information it generates. That’s a simple and obvious idea. Under current law, it’s also a radical idea.

When James Madison and his friends banned “unreasonable searches and seizures,” they had a particular danger in mind: government agents ransacking private homes and seizing private books and papers without any legitimate reason. It’s good and right to guard against that danger. But there are other dangers as well. Letting the police keep their secrets and tell their lies saves lives (including, sometimes, the lives of the people they investigate). That should weigh more heavily in the legal balance than it does now.

Aside from a few tidbits in today’s papers, I don’t know what British agents discovered as they were putting the puzzle’s pieces together, or how they discovered it. And I don’t want to know–if I know, others will too, and some of them will use that information to serve terrible ends. But I do want American agents and officers to have the widest possible latitude in putting the pieces of other, similar puzzles together. Honesty may be good policy, but it makes for poor policing.

William J. Stuntz is the Henry J. Friendly Professor at Harvard Law School.