Rejoinder to David Cole

In his reply to my guest post of yesterday, David Cole criticizes me for offering an imperfect defense of counter-terrorism stings.   Actually, his criticism does not go far enough.   What Cole should have said is that I offered no defense of counter-terrorism stings at all.    There he would be right, for the simple reason that I did not mean to defend the practice (still less its use in any particular case) but merely to elaborate what a more robust analysis of its pros and cons would have to look like.

The problem with the report that issued this week is not that it fails to make powerful arguments – for example, that stings may take a toll on the willingness of Muslim community members to cooperate with police, which, as I observed yesterday, is a deeply serious charge.   The problem, instead, is that the report (and others like it) fails to take seriously potential counter-arguments, tradeoffs, and practical limitations.   It does little to take us beyond a stylized debate in which prosecutors tout every arrest as if it were the next 9/11 averted and critics assume that these interventions are always and inevitably counter-productive.   My aim is to get past these obviously tendentious claims and to create space for serious conversation to be had about stings – and a host of other necessarily controversial counter-terrorism practices, for that matter.

My strong sense is that Cole and I are in radical agreement here.   A few months ago, he had this to say about Glenn Greenwald’s No Place to Hide:

“This is an important and illuminating book. It would have been more important and illuminating were Greenwald able to acknowledge that the choices we face about regulating surveillance in the modern age are difficult and that there are no simple answers.”

Change a few words, and I think you have a pretty good summary of my take on Illusion of Justice. 

About the Author(s)

Samuel J. Rascoff

Associate Professor of Law and Faculty Director of the Center on Law and Security at NYU School of Law