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.