This war needs quiet lawyers

Whatever happened to John Ashcroft? Following the attorney general's much criticized proclamation that the Department of Justice had, some months ago, captured Jose Padilla, an American-born "dirty bomber," not much has been seen or heard from America's top lawyer. Could it be that the administration finally believes Mr. Ashcroft went too far when he proclaimed Mr. Padilla as an enemy of the state and sent him to the Department of Defense?

It would be a wise move for Ashcroft and the entire Department of Justice just to stay silent for a while. Not that they shouldn't continue to do their job; we need good lawyering in this new phase of the war on terrorism more than ever before. In places like the Philippines, Morocco, and Western Europe, success will be measured by a series of police actions based on shared intelligence, cooperation, and strong law enforcement.

But what this counterterrorism effort needs more than anything else is silence. This may be a popular war, but it should not be a public war.

And that, to date, is where the department's public pronouncements regarding the war on terror have been so misguided. Ironically, the Justice Department has had an unusual (some might even say illegal) infatuation with the concept of secrecy. From refusing to disclose the names – or even the exact number – of people being detained in post-attack sweeps, to its failure to provide adequate information for allegedly innocent people to assist in their own defense, the department has used national security like a carte blanche "cone of silence" over any criticism of their actions.

In truth, however, this department is dangerously public about how it will prevent terrorism while those plans are still in developing stages. Department of Justice officials utilize the media spotlight as if to show (absent any significant arrests) they are actually doing something. Simply put, this is bad law enforcement (and appears rather desperate). Indeed, if interviewing 5,000 Arab and Muslim immigrants about their knowledge of terrorist attacks was helpful, would you actually make your intentions known in a public announcement?

Since embarking on their antiterrorism mission, Ashcroft and his deputies have displayed a misplaced sense of secrecy. They are loud during the investigation (when information should be kept quiet) and remarkably secret after they have acted (when constitutional and due- process norms suggest that the public has a right to know).

In this regard, Ashcroft should learn from his predecessor, Janet Reno. The most disastrous cases – from both the law enforcement and public relations perspectives – were those that were investigated in public. Either they create a lynch mob to convict when little solid evidence exists (likely what happened with the botched prosecution of scientist Wen Ho Lee) or they assume a man's guilt while the real culprit gets away (remember alleged Atlanta Olympic bomber Richard Jewell). In both cases, because of tremendous pressure from the public and Congress, government lawyers believed that the best course of conduct was to tell everyone where they were going. The government today has taken the same approach with the post-Sept. 11 cases, as well as with the anthrax investigation.

In truth, a good investigation sometimes takes the wrong course, can lead down an empty path, and rarely looks very pretty. In public, there is a reluctance to admit such normal error. Public investigations show the government's hand too soon, force it into positions that may not be supported by fact or law, and give potential culprits a window into private decisionmaking. That is why secrecy is so essential, not just for us, but for our allies who are cooperating in a global effort to undermine the terrorist threat.

This is not simply an issue about government leaking of information. The real concern is government press conferences where every investigatory move is shared and heralded. We haven't found many terrorists this way. We might be more successful if we turned the microphones off, and got the department focused on good old-fashioned lawyering.

• Juliette Kayyem, a former member of the National Commission on Terrorism, served at the Department of Justice from 1995-1999. She is a counterterrorism expert at the Kennedy School of Government at Harvard University.

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