| A Waste
of Time Juliette Kayyem
8 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.<
Juliette Kayyem
is a senior fellow and adjunct lecturer at Harvard's
Kennedy School
of Government. She served as a congressional appointee to the
National Commission on Terrorism from 1999 to 2001.
Click here to return to the New
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Right Fight.”
Originally published in the December
2004/January 2005 issue of Boston Review |
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