David A. Harris

8 When Professor Daniel Richman writes of the necessity for a new federalism in law enforcement, he puts his finger on one of the most important issues law enforcement faces in the post-9/11 era. Meeting the challenge of terrorism requires that federal, state, and local law enforcement cooperate; unless they do, opportunities to avoid the untold damage our enemies would like to inflict on us will be lost. Without every level of law enforcement working together, we will never “connect the dots,” in the phrase of report after report from congressional committees, the 9/11 Commission, and many non-governmental organizations. In terms of intelligence-gathering, almost everyone seems to agree that our anti-terrorism efforts must get the benefit of the close-to-the-ground information that only local police efforts can provide. If we do not manage to change the relationship between federal and local law-enforcement officials to allow this crucial intelligence to flow, our enemies will make us pay.

So if the idea of an invigorated and redirected relationship between federal agents and local police departments is so obvious, so logical, and so necessary, how has the federal government gotten it so wrong so often since September 11, 2001? The answer lies in what is really necessary for such a relationship to work: generating and building real partnership and true accountability between the federal and local police agencies. And almost every action that the Department of Justice has taken since the attacks bespeaks not a respect for local law enforcement, but at best condescension and at worst contempt. Sure, the people at the top of the Department of Justice want a relationship with local police—but only on their shortsighted, wrong-headed terms.

Let’s begin with the most basic facts of the post-9/11 reality. Our vicious, suicidal, murderous enemies are extremely adaptable, dedicated to their “mission,” and willing and well-financed enough to take the time to plan, lie in wait, and then execute sophisticated strategies that take advantage of our vulnerabilities. If our government is correct, the greatest and most pressing danger is that a certain number of them—tens? hundreds? thousands?—are already inside our country as part of “sleeper cells” that will be activated by al Qaeda when the right time comes for them to wreak their terrible havoc. At the same time, the FBI—now the primary organization with the mission of stopping terrorism—finds itself desperately short of agents, analysts, and linguists with even basic skills in Arabic; we could not hope to infiltrate these cells. More than three years after the attacks on the World Trade Center and the Pentagon, we still face an appalling situation for which we remain under-resourced and unprepared.

This leaves us few good choices. But what we must do, above all else, is not squander the opportunities we have. In the post 9/11 world, where can law enforcement find people who know the language of the terrorists? Where can they find people who understand the culture, down to its finest nuances? Who is likely to notice when a new person moves into the Arab or Middle Eastern community or begins to attend the mosque or community center, and who will notice the behavior or views of that person when they are a bit odd or skewed? Fortunately, we have at least one answer: members of the Arab-American and Middle Eastern communities themselves. They will have the language skills, the inborn cultural fluency, and the contacts that can give law enforcement the intelligence it needs to take on al Qaeda and its sleeper cells on our own soil. In fact, these communities represent the only possibility for doing this. Any determination to ignore them or to simply shrug them off would sacrifice the only weapon realistically available in the fight.

Professor Richman recognizes this when he writes of the ability of local police officers to access intelligence in Middle Eastern communities because of local police departments’ long-standing relationships with Arab-Americans or Middle Easterners in their communities. In some places, the FBI and other federal law-enforcement agencies have done an unaccustomed amount of outreach work in the three years since September 11, 2001, working hard to forge connections with Muslim and Middle Eastern groups. But even three more years of these efforts will not give the FBI what local police tend to enjoy almost automatically: a kind of home field advantage, cultivated through everyday interaction and work on local problems, that can become a bridge of trust available to all involved when a crisis comes.

Given the absolute necessity of incorporating the advantages local police have into the larger anti-terrorism efforts, how has the federal government attempted make law enforcement federalism a reality? Using examples that Professor Richman spotlights in his discussion, the federal efforts can be viewed as nothing less than ferociously counterproductive.

Take the U.S. Department of Justice’s announcement a few months after 9/11 that it planned to interview 5,000 young Middle Eastern and Arab men who had recently entered the country. The men were not suspected of any involvement in terrorism, or in any crimes of any kind; in fact, they were not suspects at all. They simply might know something, the Department of Justice said—perhaps something that they did not even realize they knew. And all of the interviews were to be voluntary; none of the “non-suspects” had to go through the interviews if they did not wish to. The Department of Justice actively sought the participation of local police departments around the nation in the effort, especially in areas like Metropolitan Detroit, in which there were hundreds of persons on the list of those to be interviewed.

In Arab and Middle Eastern communities, the wave of fear and panic was entirely predictable—predictable, that is, to anyone familiar with these communities. Given the fact that hundreds of the Arabs and Middle Easterners who had been swept up in federal government raids and detentions in the immediate aftermath of the attacks, and that hundreds were still in jail, many held incommunicado without access to lawyers, and that others had been summarily deported, the alarm was not at all surprising. Many seemed to think that the interviews were not really voluntary; they feared that failure to cooperate would mean jail or deportation.

More surprising, perhaps, were the reactions of local law-enforcement officials and agencies, whom federal authorities were counting on to help with the interviews. Reactions were both numerous and sharply critical. Police chiefs and other leaders called the plan ill-conceived, a waste of time, and—worst of all—likely to cause irreparable damage to their relations with Middle Eastern and Muslim communities. The members of these communities were, of course, the very people who could be (and the only people who could be) sources of intelligence on al Qaeda sleeper cells in the United States; the fear that the interviews would inspire could not help but cut off the flow of intelligence. Even former FBI officials joined the denunciation. The former FBI (and CIA) director William Webster criticized the interviews strongly; Kenneth Walton, the former assistant FBI director, said the Department of Justice was engaged in “the Perry Mason school of law enforcement.” The interviews, Walton said, would produce nothing more useful than “the recipe to mom’s chicken soup.”

But the Department of Justice’s reaction to this criticism may be most telling of all. Despite taking flak from both terrified immigrant communities and law enforcement at all levels, the department went ahead with the program. Then, just months later, in the spring of 2002, before the 5,000 interviews had even been completed, the department announced plans for another 3,000 interviews of non-suspects. A report by the non-partisan General Accounting Office issued in April of 2003 found no evidence of any intelligence gains from the interviews; the Department of Justice offered the GAO nothing to support its assertions that the interviews had been worthwhile. In fact, the department has never made any attempt to show what, if anything, it accomplished with the interviews; in fact, they told GAO investigators that they had not even reviewed the interview program to determine whether it had been a worthwhile undertaking. My own research revealed that the interviews gathered little information of any conceivable value; many of the parties present in these interviews (including the federal agents who conducted them) experienced them as perfunctory exercises inbureaucratic formality.

It is the federal government’s blatant misunderstanding of what it could gain from working with local police that makes the interviews of non-suspects such a compelling counterexample how to foster a new federalism in law enforcement. The attorney general and the Department of Justice wanted to use local police departments to help find, contact, and interview non-suspects, but they seemed to have thought of local police simply as extra bodies—a “force multiplier” that would extend their reach and add local knowledge. Police were asked for their help, but their input was never requested and, when given, was not welcomed. Complaints from police that the questioning was at odds with law-enforcement ethics or even illegal (as some officials from Oregon said) were summarily dismissed. Most important, complaints from local police officials that the interviewing of non-suspects in their communities would badly injure their painstakingly built relationships with Middle Eastern communities—thus making intelligence gathering more difficult or perhaps even impossible—were simply ignored.

And therein lies the problem. Professor Richman is absolutely correct when he says that we need a new law-enforcement federalism in which local and state law enforcement work with and provide intelligence to the federal government. To say that federal officials must make state and local police agencies their partners in the anti-terrorism effort is also true. But what it takes to build such a partnership is more than just giving local police “a larger voice.” Real partnership takes a sharing of power and authority. Partners learn to trust each other when they work together in a relationship in which they share authority and are therefore accountable to each other. Surely, local law-enforcement officials had “a voice” regarding the interviews of the thousands of non-suspects; many of them spoke up and voiced their disagreement with the policy. What was missing was any willingness on the part of the federal government the federal government to listen and respond to that voice, instead of just imposing its will by fiat. Only true partnership can assure that the most important assets that local law enforcement has to offer in the anti-terror fight will actually help us.

Has the federal government realized the error of these command-and-control ways? Have they made it a priority to join with local law enforcement as partners, building a sharing of power into their systems? At best, the signs are not good. Some within the Department of Justice seem to feel that a broad crackdown on illegal immigrants should be part of the war on terror, and they want to enlist local and state police in these efforts. Police departments have almost uniformly rejected the idea, not just because they would have to take up this considerable burden without any additional federal money. Rather, their biggest objection is eerily similar to the concern they voiced about the interviews of non-suspects: crackdowns on illegal immigrants will interfere with their ability to do police work in immigrant communities. Local police know that their ability to bring safety to the streets in their cities depends upon the willingness of the people who live there—whether they are citizens, legal immigrants or illegal immigrants—to contact the police and give them information about crime and disorder. If people believe that the local police are in the business of enforcing immigration law, they will be that much less willing to talk to them. The Department of Justice has rejected this criticism and has gone forward anyway. The Bush administration’s allies in Congress have ignored the objections of law enforcement as well, and introduced the CLEAR Act. (Full disclosure: I testified in Congress against the CLEAR Act’s Senate counterpart in April of 2004.) The objective of the CLEAR Act is simple: to use financial penalties to compel state and local governments to become adjuncts to the federal effort to ferret out illegals.

We are therefore a long way from accomplishing what Richman so rightly recommends. It is only with law enforcement federalism that our anti-terrorism efforts can have their full effect; without a cooperative effort between federal, state, and local police, all levels of law enforcement will be deprived of essential intelligence and vital information that only local police departments can gather. But stating that this should happen will not make it so. Any relationship between federal and local law enforcement must be based on mutual trust, shared authority, and accountability. Without these necessities, no effort can succeed.<

David A. Harris is the E.N. Balk Professor of Law and Values at the University of Toledo College of Law. He is the author of Profiles in Injustice: Why Racial Profiling Cannot Work and Good Cops.

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Originally published in the December 2004/January 2005 issue of Boston Review