| A New
World Elizabeth
Glazer
8 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.<
Elizabeth
Glazer
was the first deputy commissioner of New York City's Department
of Investigation from 2002 to 2003.
Click here to return to the New
Democracy Forum “The
Right Fight.”
Originally published in the December
2004/January 2005 issue of Boston Review |
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