Teka E. Thomas, Esq.
teka_thomas@yahoo.com
A coordinated bombing attack across several American cities is a scenario so realistic that many analysts consider it probable. In the ensuing hysteria that would sweep city halls across the country, one policy question would quickly emerge. What role should municipal officials have in the counterterrorism and intelligence policies of their police departments?
This essay looks at how the local political system and the legal system would react. The fundamental theme is that while policy is made at all jurisdictional levels, all policy must be under the rule of constitutional law.
I. Potential Reaction from mayors and city councils
New York, Los Angeles, Philadelphia and other American and foreign cities have sophisticated police units collecting and analyzing intelligence on terrorism threats to their cities. Much has been written about how cities respond to terrorism, and precious less about how various cities go about spending federal homeland security funds. This article is about cities setting policies to investigate and deter terrorists before they act.
The 9/11, Atlanta Olympic bombing, and Oklahoma City experiences teach us that local and state resources would be dealing with the situation in the opening hours. Additionally, local police are in the best position to collect human intelligence from informants in the communities they patrol. It stands to reason that after such an infamous day, state and local government would focus heavily on intelligence and counterterrorism. It would even become a major campaign issue in every city council election.
In such an America, as city councils would scramble to set their laws and policies to prevent an attack in their towns and districts. Cities differ in terms of density, ethnic makeup, and the number of high profile or sensitive targets. Therefore, different cities would set different priorities. Oversight and policymaking are two core functions of a city council. An analysis of each reveals profound problems with setting intelligence policy form the local level.
Local Political Oversight of Local Counterterrorism
There are a wide variety of ways that American cities are structured politically, and that includes the political control of their police departments. However, most councils set the police budget and have a public safety committee that have some role in reviewing the police department’s operations. Additionally most cities have a commission that has substantial oversight over the department. Oversight is very valuable in cleaning out fraud, waste, and abuse. It is also a mechanism for the needs of the community to influence the operations of the police. One could argue that the high stakes of terrorism, and the potential for civil liberty violations given those stakes, makes oversight all the more important. But later analysis demonstrates inherent problems with the local oversight regime.
The two major problems with local oversight are security and efficiency in police operations. Security is by its nature inefficient. The risk at oversight hearings is the leaking of information could ruin an investigation or a legal case against a terrorist. With council hearings into their police officers monitoring terrorists, federal and state authorities would only share information with local police if those council members had security clearances. Additionally, the procedures and facilities for the hearings would have to ensure security. That would be an administrative and logistical nightmare across the country. Lastly, while oversight it valuable, there is a counterargument that such hearings would impede operations. There would be a limited number of officers on the intelligence detail, and they should not be taken off their cases much less have their identities jeopardized.
Competence to make policy
Lastly, there is the general issue of competence in the subject matter of terrorism. Both the competence to set the right policies as well as the competence to be constitutional. Terrorism is the use of violence for political communication and political action. It is very complicated, nuanced, and often international in nature. It is questionable if elected politicians without a professional staff could set the right policies for their cities. Also, laws and policies must adhere to the United States Constitution. There are sad chapters in America such as the anti communist “Red Scare” after World War I when local police began arresting suspected subversives without due process. City councils are literally and figuratively very close to public opinion, and political decisions with such grave consequences to civil liberties would be very dangerous. Ultimately, terrorists win when we are terrorized into capitulating the Constitution.
Immediate localization of intelligence gathering would be a predictable outcome to another terrorist attack on the homeland. The mass hysteria would be similar to the West Coast in December, 1941. All levels of government must be proactive in planning for the police response, but also the politicians’ response. Probably the best interest of security and civil liberties is for a federal program of training, funding, and managing localities in collecting intelligence about homegrown terrorists in their communities.
II. Potential for local and state prosecutions
The legal system at the county level might react in a way that violates the people’s individual rights, as well as harm federal counterterrorism operations. This raises several concerns.
First, a primer on the criminal justice system. In most states, the chief prosecutor is elected at the county level but his or her office enforces state criminal statutes. Judges stand for re-election usually. With juries elected locally, and news coverage being local, it all amounts to a legal environment that is more populist than the federal system.
Examples of state prosecutors handling crimes with a potential federal interest are Jim Garrison’s prosecution in the John F. Kennedy assassination in Louisiana, Arthur Marshall’s prosecution of the man who shot presidential candidate George Wallace, and the prosecution of Sirhan Sirhan, Senator Robert Kennedy’s assassin. Prosecutors and judges may race the Feds to the courthouse for the political benefit it gives them and to calm their population.
Terrorism suspects might be prosecuted for a variety of charges simply to detain them. One possibility is that they are subjects or informants in federal investigations. Otherwise, these people would probably be victims of a constitutional violation, which is probably also a wasteful use of law enforcement resources.
Two legal principles come into play: the Supremacy of the federal government, and Abstention from federal courts interfering with a state’s legal process. The Supremacy Clause allows the federal government to control policies when they come into conflict with state operations in a given field (Pennsylvania v. Nelson 350 U.S. 497). There are several federal statutes and agencies related to terrorism and clearly it can dominate investigations and operations. There is no case law about stopping a state prosecution.
Recent letters published in the media have shown tension between the US Justice Department assisting the New York Police Department with surveillance warrants under the Foreign Intelligence Surveillance Act. The law was passed in 1978 and updated in 2008. It recognizes the need for secrecy with terrorism and espionage investigations. It also seems to establish that Congress has clearly stated that the federal government will dominate the field of counterterrorism and that local authorities cannot operate completely independently.
The other doctrine is the Abstention doctrine. It holds that while federal courts are loath to enjoin a state prosecution, there are some exceptions (see Younger v. Harris 401 U.S. 37). It is a procedure for individuals on trial. There are no judicial precedents on whether the federal executive branch can stop a state prosecution. These jurisdictional sea lanes are negotiated privately, between state and federal law enforcement.
The reality is that federal prosecution offices have the sophisticated statutes, legal expertise, and technical resources to prosecute a large terrorist organization. With the possible exception of a few state Attorneys General or large county District Attorney’s offices, if there were a state prosecution of a suspected terrorist, it would probably be for a small offense. Many crimes are committed in creating the conspiracy and planning the logistics of the group such as money laundering or other crimes to raise money.
III. Recommendation
To review, municipalities are best situated for human intelligence and immediate response to an incident. The federal government has the best ability to analyze intelligence, prosecute terrorists, and fund a recovery.
What is needed is a clear articulation, in law, of what the federal scheme is for counterterrorism and what the states and cities can and should do. FISA should be updated to clearly state that the federal government “occupies the field” of counterterrorism, both in the interest of civil liberties and security. Also, in addition to a massive federally administered program to collect raw intelligence from local police, the law ought to delineate what states could and count not prosecute legally related to terrorism. Perhaps a national commission could suggest a Model Anti-Terrorism Code for states to suggest legislation for them to pass to do things at the state and local level during a time of national emergency. This includes procedures for military units, as Katrina showed how disastrous it is not to prepare for civil-military jurisdictional problems.
This scenario is regrettably predictable. However, tactics must be part of an overall strategy, and strategy must be part of a national policy. The kicker is that any policy must be subordinate to the U.S. Constitution.
Friday, November 28, 2008
Thursday, November 27, 2008
A Constitutional framework for intelligence gathering by local police
By Teka E. Thomas
teka_thomas@yahoo.com
Currently one of the biggest changes occurring in American government is the localization of national security. Since the terrorist attacks of 2001, states and cities are touting new homeland security efforts for prevention and response to terrorist attacks. Much has been written about preventing terrorist attacks on American soil by increasing physical barriers and security personnel at sensitive targets. Additionally, a lot of resources have been directed at the response to an attack.
However, there is precious little discussion about local governments gathering intelligence about impending terrorist attacks. Recently, the Bush Administration announced a plan to fund $1.6 Billion to local and state police departments to conduct terrorism investigations. This development requires an analysis of the constitutional, political, and administrative consequences of this trend.
Why Terrorism is Special
Terrorism is essentially the use of violence for political communication and political action. Purely domestic terrorism is really grassroots politics turned violent. Examples include Ku Klux Klan murders and violence, and the bombing of the federal building in Oklahoma City in 1995. Respectively, those had domestic actors trying to intimidate part of the population, or making a symbolic statement against federal policies. The attacks of September 11, 2001 were an example of foreign individuals murdering a lot of people in a spectacular fashion. Their purpose, supposedly was revenge for American policies in the Middle East, however they may have attempted to goad Americans into changing their own society. There is another, potentially more dangerous middle ground which is homegrown natives carrying out an attack in the United States to synchronize with the aims of international groups such as Al Qaeda of 9/11 fame. It is this last group that could seek to harm Americans and be difficult to detect. Local police, being part of the fabric of communities, are probably the best able to gather intelligence on domestic terrorist threats.
Terrorism is often more violent than most crime, and as designed, creates mass fear among the population. Therefore these crimes are special. The American Constitution outlines the parameters for the criminal justice system that patrols neighborhoods, investigates crime, tries the accused, and imprisons the convicted. The federal government, states, and cities allocate resources for these activities. For example, a typical large American city has a predictable number of murders every year. While each murder is devastating for the victim’s family, a city has the police and emergency personnel to budgeted to handle it. There are also funds for prosecutors, courthouses, and prison cells to handle the situation.
However, most American cities do not have the resources to respond to a triple car bombing. Nor do they have the ability to protect the courthouse in what would be a sensational trial. In short, terrorists present a threat that is greater than the capacity of the criminal justice system to handle. Therefore, more resources must be added, and the constitutional framework of the system must be altered for these special crimes.
For the specific goal of collecting intelligence before the fact, here is an analysis of the legal and systemic issues that America will face.
Detective work versus Intelligence work
A short discussion is warranted about what intelligence gathering is and how it differs from normal police work. Collecting intelligence will require a new set of training for police. For those large departments that set up a unit devoted to intelligence, it would have a different culture and mindset than the rest of the department.
A military intelligence airman once explained that James Bond is fundamentally a cop, not a spy. All James Bond movies focus on one villain and stopping him or her. What this airman illustrated by metaphor is that detectives gather evidence for a prosecutor who will present the elements of a crime at trial. It is episodic and linear. Hence, the large number of detective shows on television, it makes great drama. There are few shows about spies, who are in the business of gathering and analyzing information for policy makers to make strategic decisions. That would not make compelling television.
Domestic intelligence agencies have a mission and a culture focused on gathering more and more information. Police agencies are focused on arrests and crime statistics. This dichotomy of organizational culture must be kept in mind when discussing the training police agencies to spot local angles to international operations. Despite the differences between spying and police work, the constitution’s definition of a search will probably remain the same. Therefore, special domestic intelligence agencies need a framework for surveillance warrants from state judicial officers.
Examples abroad and in American cities
Several other established democracies in Europe as well as Israel have a national domestic intelligence agency, and integrate local police in anti-terrorism intelligence. In Great Britain, there are only about 43 police agencies. Local police departments in that country have a unit called Special Branch, which are dedicated to national security matters. Britain’s Security Service, popularly known as MI-5, does not have arrest powers. It is the Special Branch officers who arrest terror suspects often in coordination with MI-5. London’s Metropolitan Police service has one large bureau dedicated to counterintelligence and intelligence gathering.
Here in the United States there are about 20,000 police departments. The NYPD has gone far and beyond other departments in creating a local deterrence to terrorism. They are by far the largest department, and having suffered terrorist attacks on a grand scale, they have the local political support needed for this expensive program. Their intelligence division, headed by a former senior CIA official, has about 1,000 officers. They focus on keeping tabs on leads about individuals, as well as possible links in the logistics of terrorism, such as stores that sell materials that could be used to make bombs. There are intelligence officers in every precinct who analyze crime patterns that may foreshadow preparations for a terrorist organization. The counter terrorism unit focuses on deterrence by physical presence, and preparing for a response.
In Los Angeles, with a small fraction of the resources of their New York counterparts, 300 officers are used for intelligence and counter terrorism. Without the funds or personnel to get critical mass for a robust intelligence bureau, the LAPD has focused on working together with other municipalities and federal authorities based in Southern California.
Other cities have set up specialized units, and provided training in intelligence gathering. Most states have information fusion centers to attempt to collect and analyze intelligence. However, probably only New York City has a sufficiently professional unit to be considered self contained.
Local Counter-terrorism
At the most basic level, there ought to be a nationwide, regularized process for the 730,000 local and state police officers to pass up information from their trained eyes. By comparison, there are only about 18,000 federal agents who often transfer to various branch offices nationwide. Local police know America’s neighborhoods, and are in the best position to engage the population in remaining vigilant against terrorism. The United States must integrate local law enforcement in order to reach its full potential in protecting the country from terrorism.
Basically, all police officers would need training from the academy and throughout their careers on topics like typical terrorist cell structures, the types of crimes are used to raise money for terrorism, and recognition of logistical preparations for a terror strike. The federal government, working with all states, would need to create a set of relationships among agencies and a protocol.
This shows one of the many conundrums about anti-terrorism. The United States of America is a decentralized federation with a legally weak national government. However, as stated above, the prevention and response to terrorism requires a lot of government resources. Focusing on the prevention angle, American cities need to use their relatively meager resources to do what legally strong national governments have been doing in Europe for years. Namely, domestic intelligence gathering and working with local police.
Los Angeles had a new innovation by adding in checked boxes on police reports that represent certain activities known to be associated with terrorist groups. Irrespective of whether a suspect is arrested, statistics could be compiled and analyzed for patterns. However, the LAPD is one of the largest departments in the country, and can devote personnel to analyzing such information. Most cities are not big enough to scale to that level.
Considering that cities and counties are of widely varying size, the best way to organize this is for state governments to liaise directly with municipal and county law enforcement to collect tips from communities and analyze suspicious crime patterns. Then states ought to then work with local FBI offices or FBI led Joint Terrorism Task Forces to monitor the situation.
II Federalism and a Constitutional Framework for Counter-Terrorism
This all assumes that cities want to gather intelligence. There is a concept in constitutional law that asserts that states are sovereigns that cannot be commandeered by the federal government. The 1997 decision in Printz v United States stands for the notion that Congress or the federal executive branch cannot force state and local officials to carry out a federal regulation. That case was about forcing localities to follow the federal gun registration process. The holding was quite absolute, asserting the 10th Amendment prerogatives of states to be clear of federal control not enumerated in the Constitution. The first paragraph of the dissent in that ruling raised the issue of whether in a national emergency, the federal government could take control of state and local resources. The dissent raised the specter of a situation such as the aftermath of a terrorist attack or natural disaster where local government is overwhelmed. 9/11 and Hurricane Katrina come to mind.
The Printz holding however, raises doubt that the federal government could force city police departments to do what the LAPD has done, and collect data to support a federal policy. That opinion, like most constitutional theory, assumes that state and local governments can handle their own regulatory and criminal justice situations. It also assumes that the federal government can do its duties in disasters, responding with speed where its critical mass is needed to scale up. Terror attacks raise that premise into doubt. In light of the Printz decision, federal legislation may be needed to allow an emergency to be declared where federal officials can at least “coordinate” if not “commandeer” local officials.
What Congress certainly can do, is rein in the activities of states and local governments in how they collect data. In Reno v South Carolina , the US Supreme Court held that under its power to regulate interstate commerce, if the federal government can regulate a business activity, it can regulate states from doing the same thing. Here, two arguments could be made that the federal government can regulate states and localities. Under the supremacy clause, the federal government takes precedence in any area of its jurisdiction if it supplies the resources. Congress can make clear its intention to occupy the field of domestic terror intelligence, working with states and local governments. Secondly, Congress can claim that federal civil liberties are at stake and can use its authority under section 5 of the Fourteenth Amendment to limit what states and localities can do in gathering intelligence.
As discussed above, local law enforcement, is best equipped to get information from local informants. However, neither local nor state governments can respond to the effects of a large terrorist strike after the fact. That would require the critical mass of the national government. Therefore, a working partnership, within Tenth Amendment guidelines is critical in counter terrorism.
In sum, it seems that the federal government can set up a voluntary system for cities and states to participate in passing up suspicious information.
III Oversight and Local Government
Control of information
Sharing information among levels and branches of government seems obvious in theory. It assumes that all government actors are loyal and disciplined enough to act in the nation’s security interest. And after all, a government in a democracy must share information throughout the government and with the people. Except on a few issues like national security.
Oversight comes not only from the legislative branches hearings and subpoenas, but also from judicial proceedings. At the federal level, there is legal precedent that on issues of national security, the executive branch has a lot of autonomy to classify information and refuse to share it with the other branches as freely as most other government business. Additionally, US v Reynolds was a 1953 case that held that requests for information from the public were generally rejected in national security cases. A federal statute that applied the same principles to local law enforcement would probably pass constitutional muster.
Cities pass freedom of information acts to monitor what police are doing. This is traditional oversight, with the conception of crime being street crime that we are familiar with. However, the stakes with terrorism are high, beyond the margin for error. Thus police have a legitimate claim that releasing information about the methods of investigation, the sources of information, or any details about an investigation would have devastating results.
For example, in the early 1980s the public of Los Angeles collected police files under a local freedom of information act ordinance. The police were preparing to secure the Olympics in 1984, and thought it was crucial to share information with the FBI. However the FBI would never share information with the LAPD is a city council or police commission decided it could know everything the police knew.
There is also the issue of state judges in county courthouses learning about information either in a surveillance warrant application, or in a lawsuit about a privacy or information sharing.
Lastly, there is the issue of local police’s chain of command. Usually, American most cities have a “council-manager” government, with an elected city council that rotates its mayor annually. The council supervises a city manager who runs the bureaucracy including the police. Thus, in a four year period, four different people in each city could serve as mayor and have some level of authority over the police department. Human nature of organizational behavior being what it is, every mayor would want to know everything its police department is doing. Investigating each local politician for a security clearance would be a tremendous administrative task, as well as offend democratic notions that elected officials ought to be able to review government operations.
In sum, at the local level, city councils, police commissioners, annually rotating mayors, judges, and potentially the staff members and judicial clerks of the aforementioned people, could claim to have the right to see sensitive information. A well funded terrorist is an existential threat to the solvency of a municipality, given the damage he or she could do. This is more profound than even a serial killer or a dangerous street gang. The framers of the constitution did not deal with modern technology, population concentration, or modern urban development. Contemporary policymakers must interpret constitutional parameters of the criminal justice system with terrorists in mind.
National Secrecy Law
To protect intelligence, there would have to be a federal secrecy law that prohibits local officials and jurists from subpoenaing certain information. Concomitantly, there would have to be a federal law limiting local police operations dealing with terrorism.
As for a national terrorism investigations Secrecy Law, there is strong legal precedence for the concept in Federal Law. The Freedom of Information Act has several states clearly that law enforcement (and presumably any investigation deemed domestic intelligence) has several exceptions. These exceptions, found at 5 U.S.C. § 552 (b) 7 have been buffered by certain post 9/11 court decisions. Terrorism investigations are deemed so sensitive that even the names of detainees, in addition to the names of witnesses informants, and other methods and sources of information do not have to be disclosed. Under the federal constitutions “supremacy” clause, Congress should have full authority to pass a law that applied to local officials across all branches of government.
On the other hand, there is a problem of local police collecting files not only for investigations that the federal government has a strong interest in, but also conducting illegal investigations under the guise of terrorism. The potential secrecy law could also give the federal government subpoena power over such identifiable files under the supremacy clause. Furthermore, as for potential civil liberties violations, strong controls over the scope of local police investigations could be written under the power granted to it by the Fourteenth Amendment § 5. That allows Congress to legislate to states to protect civil liberties and civil rights guaranteed by the federal constitution.
The last issue is oversight of the local police. An option that probably works best is for criminal investigations involving terrorists, is that oversight should not be horizontal but vertical. Meaning, city councils and state judges ought not know everything, but local law enforcement should be supervised by state and federal authorities in handling this information. The federal government would have to devote substantial personnel to monitoring how local police conduct investigations and maintain information.
E Two levels of American police activity
At its simplest, we could have a system where a federal agency works with all willing states to set up agencies to collect information from all willing local police departments. When terrorism is the subject matter, city councils and judges would not have the right to see the information. Perhaps, the beat cops who got the tips would not be allowed to maintain the files they write up. The investigation could be handled by a more professional outfit.
Large police forces have manpower to scale up a specialized counter terror unit. Such a unit goes beyond having all 700,000 local police be simply tipsters for federal and state authorities. They could be seen as a supplement to the FBI, or whatever federal agency conducts counter terrorism and domestic intelligence. It is also a major threat to civil liberties, since these local units may not have the same training as federal units. Cities like New York do their own investigations because they do not trust the federal government to share information fast enough.
Also, as history has show local police are more susceptible to local political passions and certain communities may be abused. For several years, the LAPD did not release certain files regarding the assassination of Robert Kennedy, despite the great federal interest in doing so. There was no law at the time requiring the police to turn over such files. Control of information and investigations must be put under federal control with legislation.
IV Conclusion
To conclude, American government is not well designed or acculturated to investigate terrorism. Our government is divided horizontally across three branches, and vertically at the federal, state, and local levels. Our traditions of privacy from government, and access to government are very different from European democracies, and those principles are completely counter to the conduct of national security, domestically. That domestication of national security is a major change in governing our country, however it is necessary.
In designing this intelligence process, I tried to uphold general principles of organization as well as the spirit of the constitution. It will be very expensive and will represent a major increase in federal power over states and localities. At the local level, it represents a major reduction in the ability of the legislative and judicial branches to check local police. However, this country needs an integrated, national approach to stopping homegrown terrorism and the follow points seem to be the way to approach it.
Posner, Richard. Preventing Surprise Attacks: Intelligence Reform in the Wake of 9/11. Rowman and Littlefield Publishers, 2005.
http://www.neiassociates.org/regionalization.htm
http://www.met.police.uk/so/counter_terrorism.htm
http://www.ojp.usdoj.gov/bjs/lawenf.htm
http://www.nypdshield.org/public/
http://www.city-journal.org/html/17_3_preventing_terrorism.html
http://www.ojp.usdoj.gov/bjs/lawenf.htm
http://www.fleoa.org/
http://www.securitymanagement.com/news/incident-report-revision-helps-lapd-gather-terrorism-intelligence
Printz v. United States 521 US 898 (1997)
Reno v Condon 528 US 141 (2000)
345 US 1 at page 10
Vernon, Robert. L.A. Justice. 1993, Focus on the Family Publishing. Pg 60.
Melanson, Philip. “Secrecy War- National Security, Privacy, and the public’s right to know.” Brassey’s Inc. 2001.
The author is an attorney in Washington, D.C. and a former military officer.
teka_thomas@yahoo.com
Currently one of the biggest changes occurring in American government is the localization of national security. Since the terrorist attacks of 2001, states and cities are touting new homeland security efforts for prevention and response to terrorist attacks. Much has been written about preventing terrorist attacks on American soil by increasing physical barriers and security personnel at sensitive targets. Additionally, a lot of resources have been directed at the response to an attack.
However, there is precious little discussion about local governments gathering intelligence about impending terrorist attacks. Recently, the Bush Administration announced a plan to fund $1.6 Billion to local and state police departments to conduct terrorism investigations. This development requires an analysis of the constitutional, political, and administrative consequences of this trend.
Why Terrorism is Special
Terrorism is essentially the use of violence for political communication and political action. Purely domestic terrorism is really grassroots politics turned violent. Examples include Ku Klux Klan murders and violence, and the bombing of the federal building in Oklahoma City in 1995. Respectively, those had domestic actors trying to intimidate part of the population, or making a symbolic statement against federal policies. The attacks of September 11, 2001 were an example of foreign individuals murdering a lot of people in a spectacular fashion. Their purpose, supposedly was revenge for American policies in the Middle East, however they may have attempted to goad Americans into changing their own society. There is another, potentially more dangerous middle ground which is homegrown natives carrying out an attack in the United States to synchronize with the aims of international groups such as Al Qaeda of 9/11 fame. It is this last group that could seek to harm Americans and be difficult to detect. Local police, being part of the fabric of communities, are probably the best able to gather intelligence on domestic terrorist threats.
Terrorism is often more violent than most crime, and as designed, creates mass fear among the population. Therefore these crimes are special. The American Constitution outlines the parameters for the criminal justice system that patrols neighborhoods, investigates crime, tries the accused, and imprisons the convicted. The federal government, states, and cities allocate resources for these activities. For example, a typical large American city has a predictable number of murders every year. While each murder is devastating for the victim’s family, a city has the police and emergency personnel to budgeted to handle it. There are also funds for prosecutors, courthouses, and prison cells to handle the situation.
However, most American cities do not have the resources to respond to a triple car bombing. Nor do they have the ability to protect the courthouse in what would be a sensational trial. In short, terrorists present a threat that is greater than the capacity of the criminal justice system to handle. Therefore, more resources must be added, and the constitutional framework of the system must be altered for these special crimes.
For the specific goal of collecting intelligence before the fact, here is an analysis of the legal and systemic issues that America will face.
Detective work versus Intelligence work
A short discussion is warranted about what intelligence gathering is and how it differs from normal police work. Collecting intelligence will require a new set of training for police. For those large departments that set up a unit devoted to intelligence, it would have a different culture and mindset than the rest of the department.
A military intelligence airman once explained that James Bond is fundamentally a cop, not a spy. All James Bond movies focus on one villain and stopping him or her. What this airman illustrated by metaphor is that detectives gather evidence for a prosecutor who will present the elements of a crime at trial. It is episodic and linear. Hence, the large number of detective shows on television, it makes great drama. There are few shows about spies, who are in the business of gathering and analyzing information for policy makers to make strategic decisions. That would not make compelling television.
Domestic intelligence agencies have a mission and a culture focused on gathering more and more information. Police agencies are focused on arrests and crime statistics. This dichotomy of organizational culture must be kept in mind when discussing the training police agencies to spot local angles to international operations. Despite the differences between spying and police work, the constitution’s definition of a search will probably remain the same. Therefore, special domestic intelligence agencies need a framework for surveillance warrants from state judicial officers.
Examples abroad and in American cities
Several other established democracies in Europe as well as Israel have a national domestic intelligence agency, and integrate local police in anti-terrorism intelligence. In Great Britain, there are only about 43 police agencies. Local police departments in that country have a unit called Special Branch, which are dedicated to national security matters. Britain’s Security Service, popularly known as MI-5, does not have arrest powers. It is the Special Branch officers who arrest terror suspects often in coordination with MI-5. London’s Metropolitan Police service has one large bureau dedicated to counterintelligence and intelligence gathering.
Here in the United States there are about 20,000 police departments. The NYPD has gone far and beyond other departments in creating a local deterrence to terrorism. They are by far the largest department, and having suffered terrorist attacks on a grand scale, they have the local political support needed for this expensive program. Their intelligence division, headed by a former senior CIA official, has about 1,000 officers. They focus on keeping tabs on leads about individuals, as well as possible links in the logistics of terrorism, such as stores that sell materials that could be used to make bombs. There are intelligence officers in every precinct who analyze crime patterns that may foreshadow preparations for a terrorist organization. The counter terrorism unit focuses on deterrence by physical presence, and preparing for a response.
In Los Angeles, with a small fraction of the resources of their New York counterparts, 300 officers are used for intelligence and counter terrorism. Without the funds or personnel to get critical mass for a robust intelligence bureau, the LAPD has focused on working together with other municipalities and federal authorities based in Southern California.
Other cities have set up specialized units, and provided training in intelligence gathering. Most states have information fusion centers to attempt to collect and analyze intelligence. However, probably only New York City has a sufficiently professional unit to be considered self contained.
Local Counter-terrorism
At the most basic level, there ought to be a nationwide, regularized process for the 730,000 local and state police officers to pass up information from their trained eyes. By comparison, there are only about 18,000 federal agents who often transfer to various branch offices nationwide. Local police know America’s neighborhoods, and are in the best position to engage the population in remaining vigilant against terrorism. The United States must integrate local law enforcement in order to reach its full potential in protecting the country from terrorism.
Basically, all police officers would need training from the academy and throughout their careers on topics like typical terrorist cell structures, the types of crimes are used to raise money for terrorism, and recognition of logistical preparations for a terror strike. The federal government, working with all states, would need to create a set of relationships among agencies and a protocol.
This shows one of the many conundrums about anti-terrorism. The United States of America is a decentralized federation with a legally weak national government. However, as stated above, the prevention and response to terrorism requires a lot of government resources. Focusing on the prevention angle, American cities need to use their relatively meager resources to do what legally strong national governments have been doing in Europe for years. Namely, domestic intelligence gathering and working with local police.
Los Angeles had a new innovation by adding in checked boxes on police reports that represent certain activities known to be associated with terrorist groups. Irrespective of whether a suspect is arrested, statistics could be compiled and analyzed for patterns. However, the LAPD is one of the largest departments in the country, and can devote personnel to analyzing such information. Most cities are not big enough to scale to that level.
Considering that cities and counties are of widely varying size, the best way to organize this is for state governments to liaise directly with municipal and county law enforcement to collect tips from communities and analyze suspicious crime patterns. Then states ought to then work with local FBI offices or FBI led Joint Terrorism Task Forces to monitor the situation.
II Federalism and a Constitutional Framework for Counter-Terrorism
This all assumes that cities want to gather intelligence. There is a concept in constitutional law that asserts that states are sovereigns that cannot be commandeered by the federal government. The 1997 decision in Printz v United States stands for the notion that Congress or the federal executive branch cannot force state and local officials to carry out a federal regulation. That case was about forcing localities to follow the federal gun registration process. The holding was quite absolute, asserting the 10th Amendment prerogatives of states to be clear of federal control not enumerated in the Constitution. The first paragraph of the dissent in that ruling raised the issue of whether in a national emergency, the federal government could take control of state and local resources. The dissent raised the specter of a situation such as the aftermath of a terrorist attack or natural disaster where local government is overwhelmed. 9/11 and Hurricane Katrina come to mind.
The Printz holding however, raises doubt that the federal government could force city police departments to do what the LAPD has done, and collect data to support a federal policy. That opinion, like most constitutional theory, assumes that state and local governments can handle their own regulatory and criminal justice situations. It also assumes that the federal government can do its duties in disasters, responding with speed where its critical mass is needed to scale up. Terror attacks raise that premise into doubt. In light of the Printz decision, federal legislation may be needed to allow an emergency to be declared where federal officials can at least “coordinate” if not “commandeer” local officials.
What Congress certainly can do, is rein in the activities of states and local governments in how they collect data. In Reno v South Carolina , the US Supreme Court held that under its power to regulate interstate commerce, if the federal government can regulate a business activity, it can regulate states from doing the same thing. Here, two arguments could be made that the federal government can regulate states and localities. Under the supremacy clause, the federal government takes precedence in any area of its jurisdiction if it supplies the resources. Congress can make clear its intention to occupy the field of domestic terror intelligence, working with states and local governments. Secondly, Congress can claim that federal civil liberties are at stake and can use its authority under section 5 of the Fourteenth Amendment to limit what states and localities can do in gathering intelligence.
As discussed above, local law enforcement, is best equipped to get information from local informants. However, neither local nor state governments can respond to the effects of a large terrorist strike after the fact. That would require the critical mass of the national government. Therefore, a working partnership, within Tenth Amendment guidelines is critical in counter terrorism.
In sum, it seems that the federal government can set up a voluntary system for cities and states to participate in passing up suspicious information.
III Oversight and Local Government
Control of information
Sharing information among levels and branches of government seems obvious in theory. It assumes that all government actors are loyal and disciplined enough to act in the nation’s security interest. And after all, a government in a democracy must share information throughout the government and with the people. Except on a few issues like national security.
Oversight comes not only from the legislative branches hearings and subpoenas, but also from judicial proceedings. At the federal level, there is legal precedent that on issues of national security, the executive branch has a lot of autonomy to classify information and refuse to share it with the other branches as freely as most other government business. Additionally, US v Reynolds was a 1953 case that held that requests for information from the public were generally rejected in national security cases. A federal statute that applied the same principles to local law enforcement would probably pass constitutional muster.
Cities pass freedom of information acts to monitor what police are doing. This is traditional oversight, with the conception of crime being street crime that we are familiar with. However, the stakes with terrorism are high, beyond the margin for error. Thus police have a legitimate claim that releasing information about the methods of investigation, the sources of information, or any details about an investigation would have devastating results.
For example, in the early 1980s the public of Los Angeles collected police files under a local freedom of information act ordinance. The police were preparing to secure the Olympics in 1984, and thought it was crucial to share information with the FBI. However the FBI would never share information with the LAPD is a city council or police commission decided it could know everything the police knew.
There is also the issue of state judges in county courthouses learning about information either in a surveillance warrant application, or in a lawsuit about a privacy or information sharing.
Lastly, there is the issue of local police’s chain of command. Usually, American most cities have a “council-manager” government, with an elected city council that rotates its mayor annually. The council supervises a city manager who runs the bureaucracy including the police. Thus, in a four year period, four different people in each city could serve as mayor and have some level of authority over the police department. Human nature of organizational behavior being what it is, every mayor would want to know everything its police department is doing. Investigating each local politician for a security clearance would be a tremendous administrative task, as well as offend democratic notions that elected officials ought to be able to review government operations.
In sum, at the local level, city councils, police commissioners, annually rotating mayors, judges, and potentially the staff members and judicial clerks of the aforementioned people, could claim to have the right to see sensitive information. A well funded terrorist is an existential threat to the solvency of a municipality, given the damage he or she could do. This is more profound than even a serial killer or a dangerous street gang. The framers of the constitution did not deal with modern technology, population concentration, or modern urban development. Contemporary policymakers must interpret constitutional parameters of the criminal justice system with terrorists in mind.
National Secrecy Law
To protect intelligence, there would have to be a federal secrecy law that prohibits local officials and jurists from subpoenaing certain information. Concomitantly, there would have to be a federal law limiting local police operations dealing with terrorism.
As for a national terrorism investigations Secrecy Law, there is strong legal precedence for the concept in Federal Law. The Freedom of Information Act has several states clearly that law enforcement (and presumably any investigation deemed domestic intelligence) has several exceptions. These exceptions, found at 5 U.S.C. § 552 (b) 7 have been buffered by certain post 9/11 court decisions. Terrorism investigations are deemed so sensitive that even the names of detainees, in addition to the names of witnesses informants, and other methods and sources of information do not have to be disclosed. Under the federal constitutions “supremacy” clause, Congress should have full authority to pass a law that applied to local officials across all branches of government.
On the other hand, there is a problem of local police collecting files not only for investigations that the federal government has a strong interest in, but also conducting illegal investigations under the guise of terrorism. The potential secrecy law could also give the federal government subpoena power over such identifiable files under the supremacy clause. Furthermore, as for potential civil liberties violations, strong controls over the scope of local police investigations could be written under the power granted to it by the Fourteenth Amendment § 5. That allows Congress to legislate to states to protect civil liberties and civil rights guaranteed by the federal constitution.
The last issue is oversight of the local police. An option that probably works best is for criminal investigations involving terrorists, is that oversight should not be horizontal but vertical. Meaning, city councils and state judges ought not know everything, but local law enforcement should be supervised by state and federal authorities in handling this information. The federal government would have to devote substantial personnel to monitoring how local police conduct investigations and maintain information.
E Two levels of American police activity
At its simplest, we could have a system where a federal agency works with all willing states to set up agencies to collect information from all willing local police departments. When terrorism is the subject matter, city councils and judges would not have the right to see the information. Perhaps, the beat cops who got the tips would not be allowed to maintain the files they write up. The investigation could be handled by a more professional outfit.
Large police forces have manpower to scale up a specialized counter terror unit. Such a unit goes beyond having all 700,000 local police be simply tipsters for federal and state authorities. They could be seen as a supplement to the FBI, or whatever federal agency conducts counter terrorism and domestic intelligence. It is also a major threat to civil liberties, since these local units may not have the same training as federal units. Cities like New York do their own investigations because they do not trust the federal government to share information fast enough.
Also, as history has show local police are more susceptible to local political passions and certain communities may be abused. For several years, the LAPD did not release certain files regarding the assassination of Robert Kennedy, despite the great federal interest in doing so. There was no law at the time requiring the police to turn over such files. Control of information and investigations must be put under federal control with legislation.
IV Conclusion
To conclude, American government is not well designed or acculturated to investigate terrorism. Our government is divided horizontally across three branches, and vertically at the federal, state, and local levels. Our traditions of privacy from government, and access to government are very different from European democracies, and those principles are completely counter to the conduct of national security, domestically. That domestication of national security is a major change in governing our country, however it is necessary.
In designing this intelligence process, I tried to uphold general principles of organization as well as the spirit of the constitution. It will be very expensive and will represent a major increase in federal power over states and localities. At the local level, it represents a major reduction in the ability of the legislative and judicial branches to check local police. However, this country needs an integrated, national approach to stopping homegrown terrorism and the follow points seem to be the way to approach it.
Posner, Richard. Preventing Surprise Attacks: Intelligence Reform in the Wake of 9/11. Rowman and Littlefield Publishers, 2005.
http://www.neiassociates.org/regionalization.htm
http://www.met.police.uk/so/counter_terrorism.htm
http://www.ojp.usdoj.gov/bjs/lawenf.htm
http://www.nypdshield.org/public/
http://www.city-journal.org/html/17_3_preventing_terrorism.html
http://www.ojp.usdoj.gov/bjs/lawenf.htm
http://www.fleoa.org/
http://www.securitymanagement.com/news/incident-report-revision-helps-lapd-gather-terrorism-intelligence
Printz v. United States 521 US 898 (1997)
Reno v Condon 528 US 141 (2000)
345 US 1 at page 10
Vernon, Robert. L.A. Justice. 1993, Focus on the Family Publishing. Pg 60.
Melanson, Philip. “Secrecy War- National Security, Privacy, and the public’s right to know.” Brassey’s Inc. 2001.
The author is an attorney in Washington, D.C. and a former military officer.
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