| The Feds Aren’t
Listening David A. Sklansky
8 No
question about American law enforcement has drawn
more attention,
before and after September 11, 2001, than how to
reconcile domestic
intelligence-gathering, and public-safety measures
more generally,
with our democratic ideals. Too often, though, the problem of
democratic policing has been reduced to a question
about the proper
contours of judicial supervision. Are systematic checks on law
enforcement by an independent judiciary required for
the maintenance
of a free society? Or do limits on policing, imposed
by unelected
judges, interfere by their very nature with the core democratic
project of collective self-governance?
Among the many
virtues of Daniel Richman’s splendid essay is the reminder it
provides that there are ways to make anti-terrorism policing more
democratic other than adjusting the bounds of judicial oversight.
Richman is right to stress the importance of internal, structural
checks on law enforcement, particularly those imposed by resource
constraints, bureaucratic competition, and decentralization. He is
right, moreover, to deny that civil liberties and democratic
accountability must always come at the expense of security. And he
makes a convincing case that a sound version of law-enforcement
federalism—the proper form of cooperation between local police
agencies and their federal counterparts—could make the fight
against terrorism both more effective and more compatible with our
democratic aspirations. If I differ with him, it is mainly on a
practical question: what should conscientious local authorities do
when this happy prospect seems, for the moment, out of
reach? Half
a century ago, there was broad agreement that local control of
policing made Americans safer both from crime and from government
overreaching. Law-enforcement federalism in the United States was
something close to orthodoxy, endorsed by everyone from the justices
of the Supreme Court to J. Edgar Hoover. Then came Bull Connor’s
fire hoses, the riots of 1967, and the Chicago Convention. By the
1970s hardly anyone thought local police departments were friendlier
to American democracy than the federal government—the stunning
excesses of Hoover’s FBI notwithstanding. Richman is right
that local police departments have changed for the better since then.
The most important change may not be the one he identifies, the rise
of “community policing”—a phrase that can mean, and has meant,
almost anything, except for subjecting police departments to
meaningful mechanisms of democratic control. As or more important may
be the entry of large numbers of minority and female officers into an
occupation that, as late as 1970, was overwhelmingly white and almost
exclusively male. One could say in 1970 the same thing that Richman
says today: local police departments could not afford to slight the
concerns of minority groups. But they did. That is less apt to happen
today, not just because theories of police management have improved,
but because the concerns in question have been brought inside the
department, both in the rank-and-file and, increasingly, throughout
the chain of command. The
improvement should not be
exaggerated. Precisely because local police departments slighted
their relations with minority communities for so long and so
spectacularly—despite their strong institutional interests in doing
otherwise—it would be a mistake to assume that those same interests
will now make them consistent defenders of civil liberties, or
uniformly more sensitive to minority concerns than federal
law-enforcement agencies. (The ranks of federal investigative
agencies have grown more diverse, too.) The remarkable spectacle,
over the past three years, of local police departments standing
between minority groups and federal anti-terrorism efforts may say
less about changed structural dynamics of law enforcement than it
does about the extremism brought the Department of Justice by a
particular attorney general and a particular
president. But
that spectacle also made clear, as Richman rightly insists, that
local police departments are not always less friendly than federal
law-enforcement agencies to civil liberties and minority rights. This
means, in turn, that each level of law enforcement can serve usefully
as a check against excesses by the other. The Department of
Justice can continue to employ criminal prosecutions and “pattern
and practice” suits to guard against civil-rights violations by
local police—even if, over the past four years, neither tool has
seen much use. And local law-enforcement agencies, as they have done
recently, can help to discourage federal anti-terrorism initiatives
from running roughshod over the interests of minority
groups. Richman urges local
authorities interested in
playing this beneficial role to “step up to the plate.” They
should stop passing “empty resolutions of condemnation,” he
suggests, and instead concentrate on helping to shape the emerging
national intelligence network from within. The difficulty with this
advice is that it assumes minimally responsible leadership at the
federal level. It assumes that federal authorities, recognizing the
importance of maintaining good relations with local law enforcement,
will listen to and strive to accommodate concerns raised at the
municipal level. Unfortunately, there has been little evidence since
9/11 of that kind of listening. The objections, for example, that
local authorities raised to the sweep interviews of Middle Eastern
men in late 2001 appear to have gone unheard by the Justice
Department. Far from learning from its experience, the Department
told itself that the interviews had helped to build closer ties
between law enforcement and immigrant communities. Half a year after
the first wave of interviews, moreover, the General Accounting Office
found that DOJ “did not know what the status of the project was”
and “had no specific plans for conducting a comprehensive
assessment of the lessons learned from the project.”
Episodes like this
teach the same
broad lesson as the myopia displayed by so many local
police departments
in the 1960s: no more than any other bureaucracy, law
enforcement
agencies do not always act in enlightened response to
their long-term
institutional interests. We have had a Justice Department for
the past four years that has shown itself,
repeatedly, to be less
focused on results than on ideology. With a pitcher like that
on the mound, there is something to be said for staying in the
dugout.<
David A.
Sklansky
is a professor at the UCLA School of Law and a
visiting professor
at the UC Berkeley School of Law.
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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