Boston Review Books

Islam and the Challenge of Democracy
by Khaled Abou El Fadl
(Princeton University Press)

8 There is a sad irony to the “optimism” in my account of how state and local governments can inform and appropriately temper the federal response to terrorism: it is based on deep pessimism about the threat of terrorism. Juliette Kayyem suggests “there is no reason to believe that the kind of terrorist threat we face today is so pervasive in America that our entire local and state police apparatus must be complicit in the federal government’s overarching enthusiasm.” My assessment of the available evidence is quite different (though I’d be thrilled to be wrong). I assume there will be more attacks, and quite possibly many more. This is not an argument for blithely throwing money at every project touted as related to “homeland security.” Nor for encouraging every cop on the beat to see himself as deputized to wage his own personal “war on terror.” But it does mean that we need to develop a capability to prevent future attacks.

Ms. Kayyem envisions the police playing only two roles in this endeavor for now—waiting to be called in by the feds when there is a credible threat, and when there isn’t, serving as conscientious objectors, “critiqu[ing] and “undermin[ing].” I think this is the road to disaster. One of the most chilling aspects of the 9/11 Commission’s report was its account of the time the hijackers spent in this country. The movement of people (even reticent people) through any community leaves ripples. They rent apartments, worship, and go to schools. The 9/11 hijackers did these things for months, and those who tried to blow up the World Trade Center and other New York landmarks in 1993 did it for longer, and even conducted paramilitary training in rural Pennsylvania. As Elizabeth Glazer’s pathbreaking violent gang work at the U.S. Attorney’s office in New York showed, the police—through their neighborhood contacts and felony arrests—have access to information that the feds simply cannot duplicate, and that will be indispensable in picking up these ripples and turning them into leads.

I therefore think that Ms. Kayyem gravely underestimates the costs leaving the police on the sidelines. Of course, one could argue that these costs, however grave, should be charged against the federal government because of its counterterrorism policies since 9/11. And in response to Ms. Kayyem’s observations, and those of David Harris and David Sklansky on this score, I simply can’t offer a persuasive defense of many of the federal government’s activities over the past three years. Perhaps someone else can. But that person would need to come out with a far better case for the intelligence benefits of the interview programs, detentions, and prosecutions of alleged terrorism suspects on unrelated charges than the public record now supports. Nor can I can really dispute Richard Ford’s suggestion that the federal record so far does not inspire optimism.

The issue becomes where we go from here. And on this my pessimism about the threat inspires my optimism. No responsible police official wants to be on the sidelines, and, at least over time, I expect the feds to be more solicitous. Ultimately, I don’t think the feds have a choice: they need the cooperation, and they lack the money to buy it. Constructive engagement is going to happen. I just want it to happen now. Although the nexus between academic debate and actual policymaking has been all too slight in recent years, my goals are both to catalyze this engagement and to offer some assurance to those who fear it.

As Kevin Johnson notes, one area where partnership does not make sense, at least under current conditions, is in the enforcement of the immigration laws. Yet at the same time there needs to more-effective enforcement of these laws. The legacy of our nation’s ambivalence about immigration policy has been a relatively strict legal regime with extremely uneven enforcement. The INS was a poor agency because too many interests were served by it being that way. This has got to stop, and the job will be expensive. But recruiting or dragooning the police to help may be a false economy, with any savings in the federal budget outweighed by the costs in criminal enforcement and counterterrorism intelligence gathering by police. Far more thought needs to be given to this process than either the administration or its legislative allies have been willing to give.

As for the FBI, I completely agree with former Congressman Barr that importation of the MI-5 model (a stand-alone domestic intelligence agency) would both impair the collection of intelligence by the FBI and create unnecessary risks of abuse. But, unlike him, I do not think that we can avoid developing the kind of intelligence-gathering and analysis capability that MI-5 provides. That is precisely what we will need the FBI to do, and I support the recent efforts of the Justice Department in this direction. When former Congressman Barr contends that “a law-enforcement model . . . is likely to be empirically more effective and definitely less prone to abuse than importing the foreign-intelligence model,” he is only half right. The law-enforcement model succeeded in putting a bunch of terrorists away for a long time. And had any of the 9/11 hijackers survived, they could have been put away too. But the torturous progress of the Moussaoui trial and the 9/11 Commission’s painful account of the pre-9/11 intelligence failures dramatically illustrate the limits of this approach. As Elizabeth Glazer nicely puts it, the “sight lines” need to be longer now. Former Congressman Barr is right about the risks of abuse in this endeavor, but we need to rise to the challenge of managing these risks.

Part of the answer may lie in the accountability that long-term interaction with state and local actors contributes to the domestic intelligence system. Part will have to come through well-considered regulation of federal intelligence collection. Take libraries—bastions of the First Amendment and personal autonomy, but also places that provide easy access to computers that in turn can access virtual terrorist bases. Libraries should be honored (and well-funded) places. But prosecutors have sought information from them in criminal cases in the past (e.g. when tracking the Unabomber), and to put them out of range of agents tracking terrorists makes little sense. Some balance between intelligence needs and the risk of abusive data mining needs to be struck. But in Washington, the debate has yet to advance beyond sound bites.

Edward Rubin’s response plays to my prejudices. As a lifelong resident of New York City, I admit that the notion of doing away with states entirely has some appeal. And, as William Stuntz notes, much would be gained were the federal government to play a far more direct role in local policing than it has historically. But given that we have not even been able to get the Department of Homeland Security on its feet yet, tectonic changes of this magnitude will have to wait. Moreover, the case against state involvement is far weaker than it used to be. As in the days when the focus of federal aid was on violent crime, too much homeland security money is still sticking to state hands. But the emerging intelligence network cannot simply be run from Washington, and we should not want it to be. Some system of sub-national fusion will be needed, and the choice is between regional centers run by Homeland Security or a state-based system. I’d much prefer the latter. Not only do states provide a ready-made politically accountable platform to support the architecture, but that platform is far more likely to take urban concerns into account. At least so far, states have been rising to this challenge, taking on an operational role that they rarely played before. Maybe they just want to justify their cut of funding. For now, though, we ought to give them the benefit of the doubt.

Unlike Rubin, Corey Robin does not even think that urban politics foster accountability (except in Dearborn). He is not quite clear about the sources of the federal government’s accountability, however, and against a history in which purely federal domestic intelligence programs have gone awry without any state or local help, this is a serious lacuna. Moreover, in Robin’s embrace of centralization, he misses the greatest contribution that the federal government has made (at least in part) to better policing at the local level: a focus on performance-oriented statistics. These have probably done far more than civilian complaint review boards to give police forces an interest in community relations. It is enlightened self-interest, and not liberal principle, that lies behind police officials’ reluctance to take on immigration enforcement duties. But in structuring institutional arrangements, enlightened self-interest is precisely what we should be looking for.

Finally, a word on terminology. Although this country has too often allowed epithets to drive our policy, words do matter. I agree with Richard Ford that, at least on the home front, talk of “war” is not particularly helpful. But, as Elizabeth Glazer suggests, Ford’s talk of “thugs” and the “cool professionalism of modern law enforcement” has its limits too. Dealing with “thugs” is fairly straightforward (and I enjoyed doing it): one gathers evidence against them, seeks a criminal conviction by plea or trial, and maybe even deters some potential thugs in the process. And if, in the interim, a thug does an extra bank job, or even kills someone, we say, “That is the price we pay for a free society.” There is a grave social cost to dispensing with this adjudicatory regime, but the cost of exclusive reliance on it to protect ourselves may be even greater. We need to work this out. Ours is a history of both overreaction and underreaction to threats. We’ll never get it precisely right. But we need to do better.<

Daniel Richman is a professor at Fordham Law School and has written extensively about federal criminal enforcement issues. Between 1987 and 1992 he was a federal prosecutor in New York.

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