In his response to my earlier Lawfare post on the FBI's investigation of Tamerlan Tsarnaev and a later review of that investigation by various Inspectors General, Michael German misconceives my argument. Put as concisely and clearly as possible, my argument has four points:
1. A formal tip from a nation that wants our cooperation should be taken more seriously than the 999 other tips that may come into an FBI office in a year.
2. The tip can be assumed to be reliable---without having to link it to an unsolved murder---if and when its reliable basis in electronic or human surveillance is made clear by its accurate predictions, that could not be mere guesses, about future actions of the suspect.
3. A worrying tip should be followed up by such measures as monitoring travel to jihadist sites.
4. If there is evidence to support a 10-20% chance that an individual is planning a terrorist attack, the closure of an investigation with no prosecution should not end reasonable and non-coercive efforts to discourage him from launching any such attack.
Mr. German never comments on the first or second, preferring to blame the FBI workload for the failures in this and other cases. He agrees with me on the third; and treats the fourth as equivalent to favoring massive, discriminatory, hostile, dragnet surveillance of an ethnic group. Mr. German urges that the threat of terrorism will be better handled if the FBI drops every investigation that ends in a less-than-prosecutable chance that an individual is planning a terrorist attack.
This hardly makes sense, and is not the way we handle dangerous people in other areas. A belief that a jury will unanimously find, beyond a reasonable doubt, that a suspect has committed a past crime is the federal standard for bringing a prosecution because of the severe burdens on an individual of being prosecuted and perhaps convicted. Where these burdens are absent---substituted for by interviewing members of a family and friends, letting the suspect know politely that he is suspected of planning terrorism, or engaging in occasional physical surveillance---there is no reason to require that these steps be taken on as sturdy a basis as is required for a prosecution. I agree that in dealing with an individual like Tamerlan Tsarnaev, where the evidence would not meet the standard for prosecution but does suggest a very real possibility of a terrorist attack, the preventive steps have to be carefully calibrated to be fair. Asking Tamerlan about his travel plans to Dagestan would, for example, plainly satisfy that standard. That’s the type of prevention that we already do with members of violent street gangs. What the FBI knew about Tamerlan demonstrated a far greater danger than any associated with a member of a street gang.
Throughout much of his response, Mr. German draws on a sentence in which, wanting to point out every possible drawback of the recommendations I was proposing, I said that seeking to identify terrorism suspects like Tamerlan in advance of any attack “inevitably means casting a wide net of at least slight suspicion over the broader community and all its members.” I then spelled out the moral and practical problems with any program that does this: “This is unfair to the vast majority of those in the community. The unfairness is costly to counter-terrorism for it reduced the fund of willingness to volunteer information or help.”
These consequences, I said, raise an initial question as to whether the steps I was proposing were too costly to be worth taking at all. Mr. German treats these sentences, not as a regretted but perhaps inevitable cost, but rather as an enthusiastic recommendation to cast a wide net over everyone in Muslim neighborhoods. Like German, I would accept very substantial costs and risks rather than to purposely cast a net of suspicion over any ethnic, racial, or religious group in the United States. I am simply aware that a process intended to focus exclusively on individual suspects may accidentally and unfortunately seem to cast suspicion more broadly unless it is carefully executed.
Philip Heymann is the James Barr Ames Professor of Law at Harvard Law School. Heymann has served at high levels in both the State and Justice Departments during the Kennedy, Johnson, Carter, and Clinton administrations, including Deputy U.S. Attorney General (1993-1994).