If the war on terror is going to succeed, we have to be able to trust the government. That means not just the president, or the secretary of defense, but the people who will actually be operating where the rubber meets the road.
We have to trust them to do their best; we have to trust them to be honest; and we have to trust them not to cover up when they make mistakes because understanding mistakes is crucial to learning, and learning is crucial to victory in any war — but perhaps especially this one.
That's why it is so disturbing to discover that Thomas A. Kelley, the official chosen by Congress to investigate intelligence failures leading up to Sept. 11, is himself charged with having obstructed the investigation of FBI misdeeds in the Waco debacle. The FBI's behavior in the aftermath of its astonishing failures at Waco and Ruby Ridge was that of an organization more anxious to cover up its mistakes than to learn from them.
Documents disappeared, misleading statements were issued and some of those at fault were actually promoted and given awards. Such behavior cannot be tolerated if the FBI is to succeed against Al Qaeda terrorists and their ilk.
Security officials are demanding greater powers to engage in surveillance and interrogation and greater authority to intercept electronic communications, as well as the ability to hold American citizens who are determined to be "enemy combatants" without trial. Such powers are doubtful enough in any case, but they are tolerable at all only if the American public can be assured that those who wield them can be trusted.
But as Dave Kopel and Paul Blackman illustrated in their book No More Wacos: What's Wrong With Federal Law Enforcement and How to Fix It, federal law enforcement has long suffered from serious systemic problems that make its trustworthiness dubious. This isn't to say that most federal law enforcement officers aren't trustworthy. They are. (Indeed, some first-class former students of mine, including a couple who are rather far from the traditional G-Man stereotype, are fine people who are flourishing in the FBI.)
But the FBI has always gotten good people. Its problems have been in management, and sadly, things are probably even worse at the other law enforcement and intelligence agencies.
Organizations that work ensure that bad news flows to the top. Only by getting word of what's not working to the top can they address problems. (When you stub your toe, the nerve ganglia along the way don't try to convince your brain that it's actually good news, which is why you don't stub your toe very often. Middle management, sadly, tends not to be so honest.)
In American society, "the top" doesn't simply mean the political appointees in an agency. It means the American people. Citizens don't need to know the operational details of ongoing actions, of course, but they do need to know whether things are working. In particular, they — that is, we — need to know when things have failed, and why.
In today's context, that means that we need to know about who's being arrested, who's being held, how surveillance operations are being conducted and what else is going on. Not at the time, perhaps — operational security is important, after all — but afterward. This will help us deal with future threats, and the accountability that this provides will tend to discourage current abuses.
Unfortunately, there is little reason to think we can expect such accountability. The FBI's record in the past has demonstrated an Arthur Andersen-like enthusiasm for keeping damaging information out of the hands of critics and overseers. Conspicuously absent among the many reforms introduced in the wake of Sept. 11 is anything that will address this problem.
In fact, the Department of Homeland Security will, under the current draft, be exempt from whistleblower protection laws, even though it is whistleblowers who have provided most of the evidence about intelligence failures leading to Sept. 11. (To be fair, the bill allows for the removal of many civil service protections, something that would also facilitate firing people who are incompetent or overreaching, and thus in some ways promote accountability.) So why should we trust this new national security bureaucracy that we're supposed to be building?
In short: we shouldn't. Or in the words of Ronald Reagan, "Trust, but verify." Trust is all very well, but the security bureaucrats have already proved that they're not worthy of blind trust.
As the homeland security bill works its way through Congress, members should be thinking hard about ways to build accountability into the system. Because a security bureaucracy that isn't trusted can't do its job. And a security bureaucracy that can't be trusted shouldn't be allowed to do its job.
Glenn Harlan Reynolds is a law professor at the University of Tennessee and publishes InstaPundit.Com. He is co-author, with Peter W. Morgan, of The Appearance of Impropriety: How the Ethics Wars Have Undermined American Government, Business, and Society (The Free Press, 1997).
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