Daniel Richman’s article raises an interesting question: can federal national-security efforts be made more successful with the full participation of state and local governments? Richman believes that some federal policies would have been less draconian if states and localities had been integrated at the front end of policy and planning, and he argues that the federal government can be tempered by local (including state) common sense, based on the latter’s better sense of community needs and connections.
That is likely true; you can imagine the police chief of Dearborn, Michigan, saying to Attorney General John Ashcroft, “You want me to do what?” Richman’s argument would be very inspiring if the forms of protest he cites were truly reflective of a grass-roots police and public effort against the draconian measures. I don’t believe there is any proof that this is so. Even Richman notes that many localities failed to interview immigrants not simply out of a sense that it would disrupt community relations but because it just wasn’t feasible.
Still, his argument raises two important questions. First, are bad federal policies made better by local and state input? Second, what do we imagine to be the local and state contribution to terrorism cases?
It seems that the local concerns focused against the federal efforts—ranging from vocal complaints, to non-binding resolutions against the Patriot Act, to legal constructions that would preclude localities from enforcing federal immigration or surveillance policies (constructions that are not at all as suspect as Richman suggests)—provided an important check—perhaps the only check—on a federal policing apparatus that had spun widely out of control after September 11, 2001.
But the checks were not founded on local concerns about privacy, civil liberties, or expense, or even on growing local law-enforcement fears that federal mandates would undermine community-policing efforts. Instead, local officials worried that federal policies were a waste of time. Interviewing thousands of immigrants—regardless of whether there is good interaction with the Arab and Muslim community, regardless of whether Dearborn did it well or not, regardless of outreach and access to lawyers—resulted in not one single terrorism-related arrest. Not a single one.
It isn’t, therefore, that community policing is a better way to package draconian measures, like a wolf in sheep’s clothing. It seems equally plausible that local law-enforcement agents recognize that the federal mandates are no way to actually find terrorists among us. Imagine a local police department, after a major crime involving Hispanic suspects, mandating that its cops interview all Hispanic males in a certain area. It wouldn’t happen, not because local politics would get in the way, but because no police chief would view that effort as a rational starting point for a crime investigation.
If the proposed solution seems so distant from what might actually work, what would work? To be fair, it is hard to say because this Justice Department has not made a single arrest regarding the September 11, 2001, case, nor have any of its subsequent “sleeper cell” arrests proved serious. Most have fallen apart, either because they were completely fictitious (a case in Detroit) or because the original allegations were exaggerated (the Lackawanna defendants).
The second question follows: what role should local and state authorities play in intelligence matters? Richman suggests that the sheer number of local and state police implies that the feds will have to rely on local authorities. Critiquing civil libertarian concerns about overzealous intelligence efforts, Richman argues that COINTELPRO II fears are not appropriate to the terrorist threat—“the need for a national domestic intelligence network focused on threats of terrorist attack ought not be in dispute.” But which measures should those networks use?
The local and state role is likely to remain most relevant in limited circumstances regarding intelligence: when the federal government has a credible threat against a locale and local authorities are put to work to stop it. While the Department of Homeland Security’s track record in this regard is still shockingly inadequate, let’s assume a system that does work. In most instances, then, local and state authorities are likely to be more utilized as first responders and in consequence management—that is, after a terrorist attack when lives are at stake and a criminal investigation ensues. Prevention is another matter, as the 9/11 Commission’s report makes clear: in their list of ten ways in which the terrorist attacks could have been prevented, none included local and state police efforts. Nor is this likely to change, unless we reconceptualize national security secrets completely. We shouldn’t be too disheartened by this; there is simply no reason to believe that the terrorist threat we face today is so pervasive that our entire local and state police apparatus must be complicit in the federal government’s overarching efforts.
And—not to sound too conspiracy-minded—it is very likely that the federal government knew this at the time it mandated some of its more draconian measures. The efforts to interview thousands of immigrants, or the TIPS program, were as likely done for political purposes—to show some activity (though no progress) in light of the growing recognition that the Justice Department had made serious blunders—as for policing purposes. Indeed, it seems unlikely that the Justice Department would have made serious and effective counterterrorism policies without local and state coordination. Their failure to do so suggests that the problem with these intelligence policies wasn’t that the localities were kept out of the loop but that they barely qualified as intelligence policies at all. Given that fact, better to keep the locals out of such federal politics—better to stay on the sidelines, to critique and undermine, to refuse and create legal loopholes—than to be part of it at all.