As Jack mulls over a response to Orin on computers in the "national surveillance state," I'd like to raise a different set of beefs with the Jack-type response to today's Washington Post's story about the government's recent failures in terrorism trials. Two points.
First, it seems awfully easy to come up with spin either way in interpreting what a mistrial or acquittal in any particular terrorism case really means. Jack looks at the Post story and sees a trend in counterterrorism criminal justice toward "violating people's legal rights by bringing prosecutions too early and with insufficient evidence to convict." (I'm not actually sure what rights Jack thinks it violates if a prosecutor brings a case she believes in good faith amounts to criminal activity and the jury later acquits.) Others (including others quoted in the Post ) as plausibly see mistrial or acquittal in such cases as just a sign of the great jury trial system at work. More broadly, for as many administrative spokespeople as I've heard say the approach changed after 9/11, and the FBI is newly in the "prevention" business now, I've heard other FBI officials say that their approach to crime (and terrorism in particular) has always been prevention. Both sets of arguments seem to me far easier to make than to prove.
But that brings me to point two: anecdotal reports like the Post's are anecdotal. They may be a signal of the phenomenon Jack fears. Or not. We'd have to know more about what's going on - a lot more - to say for sure. How many of these (for lack of a better term) 'preventive' prosecutions post-9/11 have been brought? What statistics exist about what we were doing in this realm (or one closely analogous) before 9/11? What's a typical win/loss record in some control set of criminal cases? What's the total win/loss record in this particular set? And inflated rhetoric of attorneys general notwithstanding, on what basis have prosecutors decided to bring these cases - because they were desperate for some way to lock these guys up, or because they actually thought these guys had committed a crime?
Theory can be enormously helpful in the realm of counterterrorism, but answers to these particular questions (unlike so many others in this field) are actually knowable. I'd thus particularly applaud the work of folks like Bobby Chesney , one of the few scholars I know who is studying what's actually happening in more than one case at a time, and who is described by the Post as painting a "complicated" picture about the federal record in pursuing such 'preventive' cases. Jack, you'll no doubt berate me, too , for not reading enough of your work, but I guess I suspect Bobby's right - the real "trend" picture is more complicated than the one you paint.