How would local politicians and prosecutors react to a new set of terrorist attacks?

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.