Police Don't Fight Wars
American cities have famously become fronts in the war on terrorism. This is not only—indeed not even primarily—because terrorists struck the twin towers in New York and are likely to continue to target large cities. It is also because, as Dan Richman points out, the federal government has, wisely, made coordination with local law enforcement a central part of its campaign against terrorism.
As Richman argues,this policy has led to conflicts in several major cities—some localgovernments have resisted what they perceive as heavy-handed,intrusive, and illiberal federal information-gathering tactics. Thisis not just a case of the usual suspects (left-leaning college townsand Northern California cities) passing symbolic resolutions againstfederal policy. Rather it is police departments in cities withmoderate politics resisting federal intelligence tactics that theyfeel will undermine their ability to do day-to-day police work. Thesepolice departments worry about alienating the constituencies andcommunities whose cooperation good police work requires. As Richmanpoints out “the gains from domestic intelligence gathering . . .are felt primarily, even exclusively, at the national level, whereasthe costs fall on the localities—not just the fiscal costs but thesignificant intrusions and hostilities that attend any large-scaleinvestigations of immigrant activities in communities with sizeableproportions of immigrants.”
Richman nevertheless concludes thatfederal–local cooperation is the best anti-terrorism policy. Forreasons that Alexis de Tocqueville could have predicted, states andlocal governments are well poised to obtain crucial information inthe anti-terrorism effort. Local police, more than any otherinstitution in government, have long-term relationships with anddetailed information about the communities under their jurisdiction.They have worked to create and maintain good relationships withcommunity leaders, and they, perhaps more than existing federalagencies such as the FBI and certainly more than federal officials innewly minted anti-terrorism bureaucracies, have experience in theday-to-day, low-key intelligence gathering that a protractedanti-terrorism effort will require.
So in Richman’soptimistic story, state and local officials will cooperate with thefeds—for a price. That price may be a more equitable distributionof federal anti-terrorism funds, but more importantly, it will alsobe a greater sensitivity to civil rights and civil liberties—asensitivity that through hard experience local law enforcement hasdiscovered is necessary for effective police work that requires thecooperation of repeat players in the civilian world.
Sounds good sofar. But to some, the idea of local police as guardians of civilliberties will sound more than a bit odd. True, local police arelikely to be more accountable to local constituencies than federalagents, but local police also tend to be most responsive to the localcommunities that are least likely to be victims of police abuse andmost likely to fear the effects of violent crime. COINTELPRO aside,the constitutional criminal-procedure reforms of the 1960s werenecessitated largely by the abuses of local police—not federalofficials. Richman argues that the question of who is entitled tospeak for the “community”—one that vexes “communitypolicing” advocates who propose decentralization of policeoversight to the neighborhood level—is lessof an issue wheninstitutional structures—cities, towns, and counties—canlegitimately claim to represent community concerns. But in fact thisissue of representation looms even larger at the local level: just aslocal civil-rights demonstrators in Selma, Alabama, could not rely onlocal authorities to represent their concerns, so too in manycommunities, the groups most likely to be targets of law-enforcementabuses may be politically powerless.
Still, Richman is rightto suggest that local police have learned a lot about cooperative,sensitive policing since (and because of) the criminal-procedurereforms of the 1960s and 1970s. For instance, it’s telling thatlocal police now overwhelmingly support such procedural safeguards asMiranda warnings, having found that clear rules delineating civilrights and liberties actually help them do their jobs.
Perhaps thebigger question is one Richman himself poses but does not answer: towhat extent will federal agencies be willing to compromise with thoselocal officials who have begun “to see an essential connectionbetween improved community relations and effective lawenforcement”? Here early indications don’t inspire optimism: theJustice Department and Department of Homeland Security seem to excelat deploying bombastic “nation at war” rhetoric in order tojustify sweeping, heavy-handed COINTELPRO-like tactics. By contrast,the best one can say for their skills at the more subtle,cooperative, low-profile police work characteristic of the best locallaw enforcement investigations is that those skills have yet to beobserved.Here, perhaps, the rhetoric of the current anti-terrorismeffort is more than telling. The insistence of federal officials fromboth sides of the partisan aisle to refer to anti-terror efforts bothforeign and domestic as a “war on terrorism” bodes ill for theability of local officials to temper federal civil-rights abuses.Wars, after all, justify extraordinary measures: extreme secrecy,massive deficit spending, and the suspension of civil libertiesenjoyed in times of peace (can rationing be far behind?). One reasonmany submit to such extraordinary measures in times of war is thatthe threat is dire. Another is that we expect the state of war to betemporary: V-Day will arrive in at worst a matter of years—notdecades or generations—after which, with the enemy decisivelyrouted, we’ll be able to go back to nylon stockings, chocolatebars, and untapped telephones. In this respect Bush’s statementthat the war or terrorism may not be winnable is chilling: itsuggests an indefinite state of martial law, justified by aconceptual enemy—“terrorism” rather than specificterrorists—that, by its very nature can never be decisivelyconquered. The “war on terrorism,” like its illiberal twin, the“war on drugs,” threatens to transform a serious but discreteevil into a free-floating justification for a domestic crackdown fewwould tolerate in “normal” circumstances. We can and must findand capture specific terrorists, but we can’t win a war on“terrorism.” Americans will probably have to live with the threatof terrorism for the indefinite future, just as many Europeans havefor decades. But we need not and should not have to live with thedisregard for civil liberties and rights that the language of warseeks to justify.
Richman’s argument for local governmentcooperation in anti-terror efforts suggests another reason why thelanguage of war is a bad fit for anti-terrorism efforts: local policedo not fight wars; they fight crime. Good police departments havelittle use for the “shock and awe” tactics of modern warfare and,as Richman suggests, even less for the illiberal tactics infamouslydeployed in the present war on terrorism.
If local policedon’t fight wars, and the skills and networks of local police arecentral and indispensable components of the anti-terror effort, thena sound and effective anti-terrorism effort will not be a “war.”Indeed, other than the important, unfinished, and neglected effort tostabilize Afghanistan, our anti-terrorism efforts have none of thecharacteristics of a war. Instead, we have a series of slow, arduous,detail-oriented investigations, a long-term intelligence operationrequiring the cultivation of local knowledge, local alliances, andinside contacts, involving lots of waiting around in unmarked carsdrinking coffee from Styrofoam cups, and culminating in theoccasional bust. It is a tough, dangerous, often tedious andunglamorous job. Happily, on the domestic front, many local policedepartments have learned to do it and do it well without resort tosuch wartime tactics as indefinite detentions without trial, secretarrests, or torture. On the international front, it’s telling thatconflict in Iraq—the main reason it remains plausible to think ofthe anti-terror fight as a war—has no proven connection toterrorism and has diverted resources from the type of investigativework that might actually locate and undermine terrorists. Today thereare fewer experienced CIA officers assigned to find Osama bin Ladenthan there were before 9/11.
If these aren’t enough reasons to drop the “war on terrorism,” here’s another: the rhetoric of war dignifies al Qaeda. It reinforces al Qaeda’s vainglorious attempt to recast the ruthless slaughter of civilians as an honorable battle tactic against a powerful enemy. The events of 9/11 were not an act of war; they were a mass murder, a drive-by killing on a monstrous scale. The architects and henchmen of 9/11 are not worthy of war; they are not a hostile army, they are a gang of thugs. Tough-talking politicians often insist that we don’t bargain with terrorists. We shouldn’t go to war with them either; we should track them down and bring them to justice. Our anti-terrorism efforts should be guided not by the hot drama of battle but by the cool professionalism of modern law enforcement. We should reject fiery rhetoric and quixotic ambitions and demand from our public officials “just the facts.” Instead of waging “war” on terrorism, let’s establish a dragnet for terrorists.
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About the Author
Richard T. Ford is a professor of law and the Justin M. Roach Jr. Faculty Scholar at Stanford Law School. He is the author of Racial Culture.
