WASHINGTON — “It is one thing to create special rules for national security…. Ordinary crime is entirely different,” said Harvard Law School professor Nancy Gertner, who also served as a federal judge from 1994 to 2011.  

Gertner is referring to recent revelations about a U.S. Drug Enforcement Administration (DEA) program designed to secretly collect information about the American public via intelligence intercepts, wiretaps, informants and a massive database of telephone records—all of which Gertner is fine with, so long as it only applies to national security.

“‘Secrets, secrets, are no fun…secrets are for everyone!’ was a common phrase I heard growing up, and it’s true,” explained Gertner, “except when it applies to keeping myself and other Americans safe from terrorists.  Then you can lie, cheat, steal, murder…completely disenfranchise another country from its culture.  I don’t care.”

Gertner’s attitude reflects a growing national consensus as to which circumstances should allow governing organizations to deliberately mislead and hide information from the public.  In the case of the DEA, many have expressed outrage over the creation of the Special Operations Division (SOD), whose work on drug investigations has been kept completely classified.  Particularly controversial is that the SOD has been allowed to “recreate” their investigative trails to protect the secrecy of the division, in addition to the anonymity of their sources, which can be problematic for many players within the U.S. court system.

“You can’t game the system,” explained former federal prosecutor Henry E. Hockeimer Jr.  “You can’t create this subterfuge.  These are drug crimes, not national security cases.  If you don’t draw the line here, where do you draw it? I mean,we certainly aren’t going to draw it at national security cases.  We can’t.  It’s physically impossible.  As they used to say when I was growing up, ‘You can’t stop a terrorist attack without the federal government lying to at least one person.’ ”