Daniel Richman: The Right Fight

Enlisted by the feds, can police find sleeper cells and protect civil rights, too?

Daniel Richman

8 Since September 11, two large questions have dominated the discussions of how to prevent terrorist attacks on American soil. First, how do we ensure that the government has the authority it needs to gather, share, and use information about potential terrorist activities? Second, how do we ensure that this authority is not abused? The first question evokes images of “connecting dots” and “eliminating stovepipes.” The second raises issues about democratic accountability and the proper balance between individual liberties and national security.

Each question can be profitably pursued on its own terms. And so they were, separately, in the report of the National Commission on Terrorist Acts Upon the United States (a.k.a. the 9/11 Commission), which for the most part focused on coordination failures within the federal government, while noting the “need for balance as our government responds to the real and ongoing threat of terrorist attacks.” But their separation will ultimately be self-defeating, because there is a deep connection between building an effective domestic-intelligence network and building one that is democratically accountable and balanced. Asserting such a close connection between effectiveness and accountability may sound like empty idealism, but a structural basis for the claim can be found in the building blocks from which the domestic-intelligence network will be constructed. State and local governments must be full partners in any effective strategy for preventing acts of terror: without their participation, the federal government cannot possibly know what “dots” to connect. But the relationships that local police departments have formed with the communities they serve can be threatened when these departments are asked to participate in federal intelligence-gathering efforts. If this conflict can be defused, greater police involvement will bring with it not just better intelligence but a system that will be more accountable to the communities from which the information is gathered.

To make the case for the close connection between effectiveness and accountability in combatting terrorism, I will explore the complex tensions between federal and local interests and show why these tensions are not just inevitable but valuable. Their strength is underestimated by those who believe that a nationally coordinated response to threats of terrorism can be effective only if it is dominated by the federal government. Their value is also underestimated by those who fear that any coordinated national response to terrorism will lead to the creation of a police state. The interactions between levels of government that have attracted the most attention since September 11 have been oppositional, with local governments complaining about inadequate federal funding or condemning federal policies on civil-liberties grounds. But the most fruitful contributions that local governments can make to the emerging intelligence network will arise from their participation, not their criticism. Better understood, and embraced, the distinct interests of federal, state, and local governments will help ensure that the network is true to the political values of the nation it protects.

* * *

To understand current relations between the federal government and state and local law-enforcement officials, we need to start in the decades before 9/11, when violent crime, not counterterrorism, lay at the heart of intergovernmental interactions.

Historically, our federal system has assigned the function of controlling episodic violent crime to state and local authorities—and usually local authorities, since very few states have integrated law-enforcement hierarchies. It is thereforethe local police, working with local district attorneys, and county sheriffs, working with county attorneys, who have primary responsibility for keeping the streets safe and going after rapists, robbers, and murderers. They are at the other end of the telephone line that victims and eyewitnesses call; they will be judged (fairly or not) by movements in the “uniform crime report” statistics, and they will be held directly or indirectly accountable by local voters.

In the 1960s, however, President Johnson, goaded by Barry Goldwater’s use of crime as a campaign issue, began a tradition of federal funding for state and local criminal enforcement. By the 1990s both the Bush and Clinton administrations had flagship programs that committed investigative and adjudicative resources against street criminals. And both in their dollar amounts and in the discretion they gave to state and local enforcers, federal grant programs took off during the 1990s. A lot of the federal funding, like the money that the Edward Byrne Memorial State and Local Law Enforcement Assistance program committed to narcotics enforcement, was administered by the states. But the election of Bill Clinton—who promised to put 100,000 new police officers on the streets—brought the COPS (Community Oriented Policing Services) program, which put money directly into the hands of local police departments, particularly in big cities.

The merits of these federal grant programs—whether they achieved their stated goal of crime reduction, and how many more cops ended up patrolling the streets—are contested issues: crime reductions in the 1990s may have come more from demographic changes or the performance of the economy than from police presence. However these debates are resolved, what matters here is that the latter part of the 1990s marked the high-water mark of a federal–state–local relationship that nicely served a wide range of political interests. Federal officials did well. Presidential administrations of both parties got to tout their commitment to the Fight against Crime and the War on Drugs, as did legislators, who readily appropriated large sums of money for these endeavors. And because the violent crime targeted by the enforcement and funding programs was essentially local, legislators could also reap the benefits of the money flowing into their own districts. The interests of federal enforcement agencies were also well served by the new violent-crime priorities. The general public was happy to see the “feds” fighting local bad guys—street gangs, armed robbers, and murderers. And the championing of these cases by local legislators could only redound to the benefit of agencies at funding time, and to field offices in their relations with headquarters (since local alliances could be triangulated against centralized control). Even better was the extent of federal enforcement discretion. Since violent crime was still primarily a local responsibility, federal agencies could be quite strategic in their case selections.

Local enforcers did well too. While the Supreme Court might bemoan federal intrusion into a traditionally local domain, local enforcers were less concerned with constitutional prerogatives and more with direct grants, overtime pay, and the aid-in-kind provided by federal enforcement activity. After all, federal agencies can rarely pursue violent-crime cases without the help of the local police, who alone control the informational networks on which federal law-enforcement agencies must rely when pursuing episodic criminal activity. So although judges decried the flood of “state” cases into federal court, and defendants who expected to be prosecuted in state court complained when they were somewhat arbitrarily singled out for harsher federal sentences, state and local law enforcers generally looked on this federal “intrusion” with equanimity, even glee. Federal funds also supported a variety of local programs that allowed the police to be more agressive in their crime-fighting strategies.

* * *

This decade of direct grants, block grants, and enforcement assistance from the federal government to state and local authorities continued with the election of George W. Bush. In a May 2001 memo to department heads, Attorney General John Ashcroft included as two of his seven goals reducing gun violence and drug trafficking and helping states with anti-crime programs. (Terrorism did not make the list.) The new administration did announce plans to phase out the COPS program—not particularly surprising, given that Republicans had long questioned the efficacy of this Clinton program, which tended to funnel most of its money to urban Democratic strongholds. But the plan envisioned a reconfiguring of federal aid to violent-crime prevention programs, not a transfer away from it.

Then came September 11.

Daniel Richman: The Right Fight


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