In recent months, the New York Police Department (NYPD) has come under attack for its counterterrorism intelligence activities, including its alleged efforts to “map” ethnic communities and its surveillance of religious groups. It is easy to view this controversy in familiar terms of security versus privacy or non-discrimination. Seen in those terms, the natural solutions seem to lie in tightening and enforcing substantive restrictions and guidelines that govern police intelligence activities and investigations.
The natural and important focus on substantive restrictions on police surveillance and intelligence collection, however, should not obscure the broader structural and institutional issues at stake here: What role should local police agencies play in terrorism prevention, and how should their cooperation be organized horizontally (among local police agencies) and vertically (between the federal and local governments)? How much discretion should state and local governments have in performing counterterrorism intelligence functions? And how can counterterrorism tasks be integrated with other police functions?
Illustration by Barbara Kelley
The NYPD is a special case. It has a large intelligence unit and about 1,000 officers dedicated full-time to counterterrorism—far more than any other municipal police department—and New York City faces unique threats. That said, involvement of local police in counterterrorism intelligence tasks is not a unique phenomenon. That involvement may even grow in the future, as threats and counterterrorism strategies evolve.
Police powers are constitutionally divided vertically in the United States, so some key counterterrorism competencies and resources reside at the state and local level. A major architectural challenge, therefore, is integrating counterterrorism intelligence with local policing. The solution will not be one-size-fits-all; instead, the U.S. domestic intelligence system should embrace local government variation, input, and oversight.
OUR COUNTERTERRORIST FEDERALISM
Following the September 11, 2001 al Qaida attacks, governments at all levels—federal, state, and local—recognized that local police would play a significant counterterrorism role going forward. Many of the informational “dots” comprising the September 11 plot sequence had occurred and had been detected by someone, somewhere, at some level of government in the United States; others should have been seen and passed on, but were missed. Perhaps the attacks could have been averted with better systems and policies to discern, analyze, assemble, and act on such “dots” throughout the country.
Who would perform these functions, though? The FBI was reoriented after 9/11 toward intelligence functions and counterterrorism, but it is a relatively small domestic security agency for a country this size, and there is no American appetite for a new domestic intelligence agency along the lines of Britain’s MI-5. A significant part of the answer therefore had to be state and local law enforcement, where much of the human resources for intelligence functions reside.
Unlike most other democracies, though, the United States has a system of policing that is highly localized and heterogeneous. As a constitutional matter, the federal government may not “commandeer” state and local legislators or executive officials, such as police agents. Police scholars generally regard the U.S. system as the most fragmented in the industrialized world.
The result is that there are more than 700,000 local police officers from about 17,000 state and local law enforcement agencies who may conduct relevant activities such as surveillance, profiling-based investigation, and data collection and sharing. Most of this activity is done in the service of broad local law enforcement and policing mandates, but it also contributes to a national security policy principally led by the federal government. These activities, moreover, are governed by a complex web of law: not just federal law, but also state statutes and state constitutional doctrine, municipal legislation and regulations, judicial consent decrees, and state and local administrative guidelines.
How effective are state and local counter-terror programs?
With a post-9/11 policy imperative of collecting, analyzing, and connecting informational dots to prevent terrorist attacks, the federal government launched a set of initiatives designed to enlist state and local partners. The FBI, for example, has invited state and local agencies to participate in joint investigative task forces, and the Justice Department and Department of Homeland Security have provided grants and training to support the establishment of local intelligence capabilities, state and major urban area intelligence “fusion centers,” and data-sharing programs.
These efforts to mobilize and link together federal, state, and local agencies are still evolving, not only because working through the details is tricky, but also because the terrorist threat has been shifting, as have strategies for combating it. Some of the continuing architectural challenges in preventing terrorism include combining federal terrorism expertise with local knowledge, reconciling intelligence activities with community policing, and harnessing local, bottom-up learning to inform and improve our national efforts.
As to the issue of specialized expertise and local knowledge, a common mantra since 9/11 has been that local police are the “eyes and ears” or “front line” of the domestic war against terrorism. But there remains a dearth of systematic study of the effectiveness of state and local counter-terrorism programs. Critics argue that widely enlisting local agencies and agents into national counter-terrorism intelligence initiatives is, at best, inefficient because they lack the necessary expertise and institutional priorities to identify, investigate, and track the most significant terrorism threats; some local police forces also exhibit ethnic and religious biases that undermine their intelligence effectiveness (though recent controversies regarding federal training programs suggest that this problem is marbled through all layers of the law enforcement community).
Counter-balancing these concerns, local police are better suited than federal counterparts to perform some intelligence functions because of their superior familiarity with their local communities. This deep familiarity accrues because of local police agencies’ broad public service and community order mandate and because police forces and their leadership are generally drawn from the local area.
Moreover, the strategic wager to invest in local police intelligence architecture versus centrally-managed capabilities is related to the structure of the terrorism threat it is built to combat. International terrorist networks—especially those like al Qaida that are controlled or supported by a central core—are often detectable through technological and institutional capabilities that only exist at the federal level (like large programs to monitor communications, significant cooperation efforts with foreign government agencies, and centralized analysis of seemingly disparate bits of information). By contrast, the more that terrorism threats include domestic, and perhaps homegrown, dangers, the more dependent the government will be on tips and observations generated and analyzed locally.
We need to build trust between the government and Muslim communities.
Beside knowledge and expertise, relationships of trust between communities—and especially, when it comes to Islamist terrorism, Muslim communities—and government agencies and agents are important to acquiring information about potential threats. Leveraging such relationships requires reconciling intelligence activities with community policing.
Modern local policing strategy trends call for deep engagement with the community. Local police functions include preventing and investigating crime as well as maintaining order, patrolling, and providing services—and these are rarely distinct from their “national security” functions. The resulting familiarity and networks of relationships with community actors and other local agencies and institutions position local police to receive information and detect suspicious irregularities.
On the flip side, though, this means that local police intelligence efforts can badly backfire if agencies are perceived to harbor ethnic or religious biases or if their activities are viewed as casting an overbroad net, therefore alienating communities upon which police rely for information.
It is unsurprising that post-9/11, institutional reconfigurations that push counter-terrorism responsibilities to local police agencies would also raise concerns that local capabilities, refined over a long time to deal with other crime and public policy issues, match poorly with the national security imperatives of combating terrorism, or that saddling local police agencies with these responsibilities would distort and degrade their regular functions. Studies show, however, that post-9/11, counter-terrorism responsibilities have not widely resulted in radical changes to internal police agency structure or the way they manage their core local public policy functions. The above analysis suggests that some comparative counter-terrorism advantages derive from the very broad public service and order-protecting mandate of local police.
Furthermore, in the classic federalism sense of “laboratories of democracy,” some long-term advantages of localism in American counter-terrorism intelligence may ultimately emerge through experimentation and the resulting adaptation as best practices spread. This sort of bottom-up learning through local innovation may be especially important in developing new policy tools for combating terrorism. For example, the federal government has been working with select state and local intelligence fusion centers to develop and refine policies and practices for recording, filtering, and sharing suspicious activity reports possibly indicative of terrorist activity.
Learning from localized experimentation and adaptation might also be well-suited to the strategic problem of countering violent extremist recruitment and radicalization—a problem that overlaps significantly with intelligence policy and practice but is also sometimes in fragile tension with it. The federal government is therefore working to empower local partners in this area.
Lessons from European countries more experienced in dealing with domestic terrorism threats suggest that local governments may be better positioned than national ones to design and implement strategies for countering violent-extremist activity and recruitment, but that counter-radicalization and national security intelligence efforts are difficult to balance or meld because the latter may erode trust among communities perceived to be targeted for surveillance. Given their broader community protection and service mandate, local police and other local agencies may serve as a better bridge between those activities than could their federal counterparts, and may be better positioned to leverage the influence and capabilities of non-government actors.
In light of these interlocking challenges—combining federal terrorism expertise with local knowledge, reconciling intelligence activities with community policing, and harnessing bottom-up learning—two policy implications stand out. First, both the federal government and local communities have an interest in the continued role of local government in counterterrorism policy and programs. Institutional structures should be designed to leverage local input. This idea may seem counterintuitive to those who view police intelligence activities as threatening to civil liberties and to local community values—those who therefore want to see police separating or distancing themselves from national security functions—but local government involvement can also help protect against federal government intelligence overreach.
State and local governments need to develop varied forms of oversight.
Second, state and local governments will need to develop varied forms of oversight, tailored to local conditions. This will be a slow and uneven evolutionary process. Again, this idea may seem counterintuitive to those who see national security law as requiring uniformity, or who look to the federal government to provide rights-protective checks on aggressive state and local activities.
Further consideration of institutional design should focus on how federal-local partnerships can provide genuine opportunity for joint planning and policy formulation. For instance, the emergent intelligence architecture includes mechanisms for collaborative investigation among federal and local agencies (such as joint investigative task forces) and efforts to involve state and local governments in intelligence sharing and analysis.
It is important, though, that the evaluation of these programs looks beyond whether they adequately resource counter-terrorism efforts or break down barriers to necessary information sharing—the priority issues that most naturally flowed from assessments of pre-9/11 bureaucratic defects in “connecting dots”—to whether they promote meaningful analysis and opportunity for joint deliberation or mutual review between levels of government involved in counter-terrorism policy.
For these joint programs to work effectively over time, both local and federal agencies would have to commit to major cultural shifts as a matter of long-term strategy. State and local governments would need to purchase more clout by devoting substantial resources and senior-level attention to collaborative national security programs. Federal agencies like the FBI would have to view local agencies as essential players, and to demonstrate their commitment with greater flow of information and greater deference to local policy priorities.
A related priority is developing oversight systems of local intelligence activities that protect rights, promote accountability, and ensure effectiveness. This will take some time, though, and remain an evolutionary process. At the federal level, the intelligence abuse investigations of the Seventies eventually produced a constellation of formal oversight mechanisms and checks on domestic intelligence activities arrayed across all three branches of government—a complex undertaking that remains a work-in-progress nearly forty years later.
In the decades prior to 2001, by contrast, many state and local agencies dismantled their national security intelligence apparatuses altogether or adopted tight restrictions on their ability to function at all. As a result, governmental intelligence oversight mechanisms are considerably less mature and developed at the state and local level, and they are very patchy and uneven across jurisdictions.
Although the federal government will have some role to play in monitoring and constraining local government intelligence activities, much of this oversight gap must be filled by decentralized, locally-developed mechanisms. Rather than a one-size-fits-all approach, state or local jurisdictions will need to develop, supplement, and retool their own oversight instruments—including internal agency review processes, legislative monitoring, and external audits—tailored to their particular interests, circumstances, and laws or guidelines. The result will be a locally-textured counterterrorism architecture rather than a nationally-homogenous intelligence system, but it will be one better able to reconcile or balance the multitude of policy imperatives in our federal system.