In an era in which police excesses reflexively spur calls for federal oversight, Richman shows that since 9/11 local law enforcement has become the surprise bulwark of civil liberties: a police commander has little incentive to spend his hard-earned community goodwill by rounding up residents for federal interrogations that—from his perspective—have remote connection to the terrorist threat. Richman suggests that this shift in roles may provide an opportunity to fix some old problems: providing local law enforcement with a larger voice in domestic intelligence policy could mollify the perennial complaint that feds don’t share information. Richman’s specific point is debatable—if ever there were a time for the federal government to keep its information close, this is it. Richman’s larger point is right: 9/11 has forced a dramatic redefinition offederal and local authorities’ spheres of power.
Two aspects of this redefinition are worth noting. First, the daunting responsibility of crafting a strategy to address terrorism has focused the federal government on its core interests. Second, law enforcement’s piece of this effort extends beyond its traditional arrest and prosecution functions. Local law enforcement, immersed in deep local knowledge, and federal law enforcement, with information coming from across the country and the world, are now as much in the intelligence and prevention business as they are in the business of bringing cases to court.
In the 1990s prosecutors and academics were occupied with debates over whether the principles of federalism suffered when the federal government began to prosecute traditionally state crimes. 9/11 stopped the debate cold. Can there be any question that terrorism must be added to the Constitution’s list of piracy and treason as unassailable redoubts of federal concern? Terrorism poses a threat to the nation as a whole; the strategy for attack and defense engages many facets of the government’s power—its military, its diplomatic corps, its intelligence capacities; information needs to be assembled not only from the United States but from across the globe. And all these resources have to be brought to bear not simply to arrest the “bad guys” but to anticipate and prevent attacks and, even, to shape and guide the currents of world history and to persuade our sworn enemies to be, if not our friends, not our attackers.
What part can law enforcement play? Arresting the terrorist will not be the end of the story in the same way that arresting a murderer “solves” the murder. The threat of terror will continue. So law enforcement’s role becomes instead a hybrid of intelligence-gathering and traditional investigation. Some examples of this shift: When the FBI began rounding up Muslim men shortly after September 11, it was an exercise in intelligence-gathering only tenuously connected to any particular case. When the “wall” that separates the methods by which information can be gathered for criminal prosecution and for intelligence purposes got its 15 minutes in the public eye, it was exactly because prosecutors and investigators had increasingly used the Foreign Intelligence Surveillance Act provisions to collect information that did not have a direct nexus to criminal prosecutions. When the United States Attorney’s Office for the Southern District of New York—which had prosecuted the perpetrators of the 1992 World Trade Center bombing—created a terrorism unit in 1995, its docket of prosecutable cases was small enough that the unit was merged into the office’s Organized Crime Unit. The paucity of indictments was hardly an indication of idle prosecutors, but rather a signal that prosecutors and investigators were immersed as much in finding and following intelligence as in building cases.
For a time it seemed that prosecutors were waging the war on terror alone. But today indictments can appear insignificant compared to the ongoing threat. Consider the case of Osama bin Laden. In 1998, the United States Attorney’s Office for the Southern District of New York indicted bin Laden for his role in terrorist attacks from Somalia to Tanzania. While the indictment was the culmination of years of investigation—bin Laden had been named as a co-conspirator in the 1992 Trade Center bombing case—the United States’s cruise missile attack against bin Laden’s training camps put law-enforcement efforts in context. Can anyone now imagine the capture of bin Laden leading to his trial in Manhattan’s Foley Square?
To be sure, arrests and prosecutions remain important: when Sheikh Abdul Omar Rahman was arrested and later convicted on charges that he plotted the destruction of the United Nations and the Holland Tunnel, among other landmarks, the deaths of untold numbers were averted. But the sight lines now are longer and the prize is different from those in traditional law-enforcement cases. We are still learning about the enemy through intelligence. Only sometimes will that intelligence ripen into evidence for arrests. The story of terrorism cannot be told through prosecutions in the way the story of the mob can be summed up in the investigations and trials that have occurred since Apalachin. In this new world, the mesh of local and federal information will be critical and, we must all hope, Professor Richman’s happier ending inevitable.