8/28/2005

Then came September 11

Continuing Richman's piece...

Then came September 11.

We are often told that September 11 “changed everything.” An overstatement in some contexts, this claim is quite apt when applied to the relations between the federal government and state and local governments in the area of law enforcement.

The shock to the federal enforcement bureaucracy was extraordinary. A system whose defining luxury had been its general lack of primary enforcement responsibility (and accountability) was suddenly saddled with a politically unavoidable, and all-but-impossible responsibility: preventing another such attack. Given the nature of the perceived terrorist threat—the sleeper cells waiting to strike again—this responsibility required the feds to reach out to state and local agencies for intelligence-gathering assistance and create the institutional linkages that would allow for two-way data sharing. In the United Kingdom, which has lived longer with the threat of domestic terrorism, special branches in each local police force mediate between the national security agencies and local communities in a relationship that a recent British government report celebrated as the “golden thread.” Now the United States would have to do something similar, on the fly. The only available templates were the Joint Terrorist Task Forces, of which there were only 35 in selected cities before 9/11. And while successful in New York, these had only mixed success elsewhere.

The federal government’s need for state and local assistance is not simply a matter of manpower—there are about 700,000 state and local police officers on the job compared with about 90,000 federal law-enforcement officers (more than a quarter of whom are in the Federal Bureau of Prisons)—nor even a matter of the many things that cops learn on street patrol. It also stems from the role of state and local enforcers in bringing the bulk of serious criminal charges in the United States, because the threat of prosecution (even prosecutions having nothing to do with terrorism) is one of best tools around for prying loose closely held information. Local police also play a central role in maintaining order and ensuring public safety, and this gives them a more balanced “portfolio” in dealing with community leaders. The police officer who seeks information from a local Arab-American community leader has probably met and assisted that leader before—protecting his property, ironing out some administrative complexity, or ensuring his safe worship.

Recognizing these local advantages, the Justice Department quickly went beyond vague talk of “information sharing” and asked for local assistance in a large-scale program to interview thousands of people (mostly young Middle Eastern males) who had entered the United States on non-immigrant visas. In the spring of 2002, the department went further and announced its plan to place the names of certain aliens who had violated their visa requirements into the national database of wanted suspects. It asked state and local police to arrest these “absconders,” and noted that, as a legal matter, such assistance was “within the inherent authority of the states.”

The predominant response of local police forces to the new War on Terror was to line up at the recruiting station and complain about delays. The drumbeat from police departments during 2002 and into 2003 was that the feds weren’t sharing information with the locals.

That said, conditions were not altogether propitious for police cooperation. In a number of cities and states officials passed resolutions criticizing the administration’s counterterrorism efforts. (As of press time, four states and 355 local governments have done so; see Elaine Scarry’s “Resolving to Resist,” February/March 2004 Boston Review.) Many of these resolutions were costless. The president of the Denver police union called that city’s stance “as relevant as the nuclear-free zone in Boulder.” Some stands were more than symbolic. In December 2001, despite the opposition of the Oregon attorney general and the local district attorney, the Portland City Attorney announced that a state law barring police from “detecting or apprehending” people who have violated only federal immigration law, and from collecting information on political, social, or religious beliefs unless it pertains to a criminal investigation, prohibited Portland police from asking some of the 33 questions that the Justice Department wanted posed to 23 foreigners in the area.

Some of this scattered resistance may have arisen from partisan politics or liberal conviction. But there was a historical basis as well: the federal efforts to recruit local police into a national intelligence network brought back memories of COINTELPRO, CHAOS, and other abuses of the late 1960s, when the feds had urged the locals to create “intelligence units” to gather and disseminate information on potential “civil disorders.” The Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities (a.k.a. Church Committee) later recounted the result of these efforts: “Local police intelligence provided a convenient manner for the FBI to acquire information it wanted while avoiding criticism for using covert techniques such as developing campus informants. . . . These Federal policies contributed to the proliferation of local police intelligence activities, often without adequate controls.” All this was not ancient history to local authorities in places like Denver, which in 2002 was still negotiating a settlement with the ACLU relating to abuses by the police intelligence bureau, and New York City, where a consent decree arising out of similar abuses is still in place.

Local concerns have not been merely partisan, philosophical, or historical, but have also reflected the political economy of counterterrorism. When the federal–local interaction revolved around violent crime, federal initiatives brought significant local benefits, including credit for local leaders and maybe even improved local safety. The counterterrorism dynamic has been precisely the reverse (save in some exceptional locations, like New York City). There is no reason to expect that terrorists pose a particular threat to the many places where they or information about them will be found. Thus, the gains from domestic intelligence-gathering are felt primarily, perhaps even exclusively, at the national level, whereas the costs fall on the localities—not just the fiscal costs but the significant intrusions and hostilities that attend any large-scale investigations of immigrant activities in communities with sizeable proportions of immigrants.

Police officials have had their own pragmatic concerns about federal counterterrorism initiatives, particularly those involving the use of federal immigration statutes. As the Web site of the International Association of Chiefs of Police explained in October 2002,

Enforcement of civil immigration laws by local law enforcement would have a chilling effect on both legal and illegal aliens reporting criminal activity or assisting police in criminal investigations. Local police want illegal aliens to come forward when they have been the victims of, or witnesses to, crimes. Police depend on the cooperation of immigrant communities to help them solve all sorts of crimes and to maintain public order. Without the assurances that they will not be deported, many illegal immigrants with critical information would not come forward.

Few non-federal enforcement officials have been disposed to assist the feds in using the immigration laws as a law enforcement tool, even though, as one federal official noted, “the only barriers to executing such arrests are statutes or policies that states or municipalities have imposed upon themselves.” State officials have responded with somewhat more alacrity. In Maryland, for instance, according to a Baltimore Sun article, “Many local police departments, including those in Baltimore and in Anne Arundel and Baltimore counties, generally will not report illegal immigrants unless they have committed crimes.” However, “state police policy is to inform federal authorities about any suspected of being in the country illegally.” As of April 2004, only Florida and Alabama had formally signed on to the federal initiative, and in Alabama it appears that only state troopers are involved. A bill has been introduced in the House—the Clear Law Enforcement for Criminal Alien Removal Act of 2003—that would require state and local authorities to enforce federal immigration laws, on pain of losing federal funds. At an October 2003 hearing, the National League of Cities expressed its opposition for what it characterized as an “unfunded mandate,” and the legislation’s future remains unclear. (A similar bill is pending in the Senate, with hearings held in April 2004.)

Why the difference between the attitudes of local police departments and their statewide counterparts? Part of the answer is political: Republican governors versus more-liberal local officials in cities. But institutional obligations (or the lack thereof) likely play a role as well. For it is at the local level and particularly in big cities that the costs imposed by the federal enforcement initiative on relationships with immigrant communities would hit the hardest.

Even had nothing else changed in the relationship between federal and local enforcers, the federal counterterrorism initiatives would have imposed new intelligence-gathering responsibilities on the police and threatened to make it harder to maintain order in areas with significant immigrant populations, including most big cities. But the pre-9/11 story is also important, for the new federal initiatives seemed also to come at the cost of prior federal commitments of resources to addressing violent crime and narcotics.

The point here is not that the shift in federal resources was a mistake but that the federal commitment to street-crime law enforcement during the 1980s and 1990s set a new baseline for local expectations of federal assistance. And these expectations are no longer being met.

State and local governments have additional fiscal grievances. Post-9/11 antiterrorism programs have required massive expenditures. And, as the 9/11 Commission sympathetically noted, many have complained vigorously that federal monies have been distributed without regard to need or risk. Because of the congressional allocation formula (reinforced by Department of Homeland Security decisions), the most populous states took the biggest hit, putting up the most money and receiving the least. In 2003, Wyoming received $61 a person in federal homeland-security grants and Alaska, $58. But New York got less than $25, and California got $14.

If one source of intergovernmental tension is the level of homeland-security funding, another (perhaps even more disruptive) source of tension is the way federal funds have been distributed. One police chief complained in a spring 2003 congressional hearing that homeland security

resources do not go directly to local police departments. They cannot be used to hire new police. They cannot be used to pay overtime expenses that we incur each and every time Secretary Ridge changes the alert level. They can be used to purchase equipment, but not by me. I have to wait for a statewide plan to be developed and then I have to hope that a fair share of those funds will filter to my department.

As a mayor put it in another hearing around the same time, “After all, a 911 call does not get a state trooper.” The U.S. Conference of Mayors has (unsurprisingly) expressed similar sentiments. And members have suggested that partisan politics help explain the Republican administration’s reluctance to give money directly to urban areas.

Because local governments will eventually get much of the homeland-security funding, a case can be made for funneling the money through the states and thus encouraging statewide coordination. The governors have embraced these arguments. Speaking for the National Governors Association at a spring 2003 congressional hearing, Massachusetts Governor Mitt Romney testified, “We believe it critical that homeland-security funding and resources be applied against comprehensive and integrated statewide plans. . . . The most critical step to maximizing our resources is developing integrated statewide plans and channeling virtually all homeland security funding through these plans. . . . Without statewide coordination, there is no check on gaps in coverage, incompatible equipment and communications systems, and wasteful duplication.”

Because they see cities as bearing the brunt (in both fiscal and political terms) of any nationwide intelligence-gathering and security-patrolling effort, local officials, particularly from bigger cities, would likely have complained in any case about the statewide funding model for homeland security. But their sense of grievance has been intensified by the perception that it is their violent crime money that is now going to the states. Urban officials have made much of the coincidence that the COPS program is being phased out and other crime control grants reduced just as homeland-security funding plans are being made...

Daniel Richman: The Right Fight

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