The Law of Homegrown (Counter)Terrorism

Texas Law Review

Volumn 88, Issue 7, 2010, Pages 1715-1749

  Rascoff, Samuel J ^a  

^a University School of Law   (United States)

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EID: 78649347119     PISSN: 00404411     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (314)

1. See NAT'L COUNTERINTELLIGENCE CTR., A COUNTERINTELLIGENCE READER: AMERICAN REVOLUTION TO WORLD WAR II 171 (Frank J. Rafalko ed., 2004) [hereinafter CT READER] (describing the creation of the New York City Police Department's (NYPD) "special sabotage squad," which resulted in citizens giving information regarding espionage to the local police rather than the FBI).
2. Id. at 169-70.
3. Id. at 177.
4. Id.
5. The commandeering logic behind the directive would nowadays, in all likelihood, run afoul of the doctrine established in Printz v. United States, 521 U.S. 898, 935 (1997), which held that state police officials could not be involuntarily required to assist in the enforcement of a federal regulatory regime.
6. see Dole v. South Dakota, 483 U.S. 203, 211-12 (1987) (permitting the federal government to avoid state-sovereignty limitations on commandeering by making the receipt of federal funds conditional on state cooperation).
7. See BEVERLY GAGE, THE DAY WALL STREET EXPLODED 173 (2009) (recounting how the NYPD was actively involved in the investigation of the September 16, 1920 Wall Street bombing);
8. Adam M. Giuliano, Emergency Federalism: Calling on the States in Perilous Times, 40 U. MICH. J.L. REFORM 341, 362 (2007) ("The Framers incorporated limited but significant state roles regarding national defense and homeland security.").
9. It was precisely the distinctive structural features of the Cold War and the bipolar nuclear conflict that it ushered in that caused the role of locals in national security to recede from view.
10. See Ian Anderson et al., Assessing the Terrorist Threat to America, NAT'L ASS'N COUNTY ADMINS., http://www.countyadministrators.org/index.asp?Type=B- BASIC&SEC={EA2CBDBC-E2FD-4C32-AC04-D0430ACB34A2}&DE={83EACB65-3B6B-419F- 9613-580ADCF39A5E} ("The Cold War, with its theories such as deterrence and mutual assured destruction, dominated national security ⋯ . A centralized and hierarchical enemy demanded the same to combat it.").
11. The historical record of local involvement in domestic intelligence, no different from federal, is decidedly mixed. As Morgan has observed, in Chicago, the police department's intelligence unit-a true "red squad"-became very closely linked with Mayor Daley and concerned itself with spying on his political opponents. RICHARD E. MORGAN, DOMESTIC INTELLIGENCE 84 (1980). The NYPD's Bureau of Special Services and Intelligence (BOSSI) enjoyed a different reputation.
12. Id.
13. "BOSSI did not respond to City Hall concerns about political opponents and prided itself on its independence."
14. Id. at 85.
15. Unlike Chicago, "the New York operation focused on the law enforcement utility of the information it gathered."
16. Id.
17. Mayor Lindsay and Police Commissioner Murphy (well-known as a progressive) disbanded BOSSI in the mid-1960s and replaced it with the Intelligence Division, as it is still known.
18. Id.
19. Allegations of illegal activities made against the Intelligence Division beginning in the 1970s culminated in a consent decree that continues to bind the NYPD.
20. See Handschu v. Special Servs. Div., 605 F. Supp. 1384, 1417 (S.D.N.Y. 1985) (approving a consent decree that governs investigation and surveillance of political-action groups by the NYPD).
21. See generally Paul G. Chevigny, Politics and Law in the Control of Local Surveillance, 69 CORNELL L. REV. 735, 751-67 (1984) (discussing the circumstances leading up to and the specifics of various consent decrees in Memphis, Chicago, and New York, which had farreaching influence);
22. Jerrold L. Steigman, Reversing Reform: The Handschu Settlement in Post-September 11 New York City, 11 J.L. & POL'Y 745, 765-70 (2003) (detailing litigation in September 2002 in which the Handschu consent decree was relaxed).
23. See Samuel J. Rascoff, Domesticating Intelligence, 83 S. CAL. L. REV. (forthcoming 2010) (discussing the involvement of state and local governments in domestic intelligence)
24. see also, e.g., Richard A. Posner, Op-Ed., What Our Intelligence Agencies Could Learn from Silicon Valley, WALL ST. J., May 28, 2010, available at http://online.wsj.com/article/SB10001424052748704717004575268783383613118.html (noting that "there are at least 20 separate U.S. intelligence agencies, not counting state and local agencies" and that "New York City's police department, for example, has a formidable intelligence unit").
25. Examples abound. The so-called Lackawanna Six were Yemeni-Americans who trained in an al Qaeda camp in Afghanistan before returning to the United States with no clear follow-up plan. DINA TEMPLE RASTON, THE JIHAD NEXT DOOR 175-78 (2007). The six were all convicted for their activities in Afghanistan, and the reported mastermind of the plot, Ahmed Hijazi, was killed in a Predator drone strike in Yemen. James Risen, An American Was Among 6 Killed by U.S., Yemenis
26. Say, N.Y. TIMES, Nov. 8, 2002, at A13. The "Fort Dix Six," a group of Muslim immigrants radicalized while in the United States, were convicted of conspiring to attack U.S. military personnel.
27. See Kareem Fahim & Andrea Elliott, In Large Immigrant Family, Religion Guided 3 Held in Fort Dix Plot, N.Y. TIMES, May 10, 2007, at A1 (detailing the lives and families of the six immigrants). In October 2008, a Somali-American who traveled from Minneapolis to Somalia with other Somali-American youths became the first confirmed U.S. citizen to commit a suicide bombing. Andrea Elliott, Charges Detail Road to Terror for 20 in U.S., N.Y. TIMES, Nov. 24, 2009, at A1. Another Somali suicide bomber may have had ties to Seattle.
28. See Jeffrey Gettleman, American Helped Bomb Somalia Base, Web Site Says, N.Y. TIMES, Sept. 25, 2009, at A13 ("The Somali Web site listed a Seattle phone number for the bomber's father, but the number [was] apparently not in service."). Omar Hammami was raised a Southern Baptist in Alabama, converting to Islam and becoming increasingly radical in his viewpoints during high school.
29. Andrea Elliott, The Jihadist Next Door, N.Y. TIMES, Jan. 31, 2010, (Magazine), at 26. Still in his twenties, he is currently believed to be among the leaders of Al Shabab, a Somali-militant organization linked to al Qaeda.
30. Id.
31. Concerns have grown over U.S. citizens immigrating to Yemen and associating with al Qaeda in the Arabian Peninsula. STAFF OF S. COMM. ON FOREIGN RELATIONS, 111TH CONG., ALQAEDA IN YEMEN AND SOMALIA: A TICKING TIME BOMB 1 (Comm. Print 2010). Law enforcement and intelligence officials believe that as many thirty-six American ex-convicts traveled to Yemen in 2009.
32. Id.
33. Sharif Mobley, an American man formerly employed at nuclear power plants in New Jersey, was recently arrested in Yemen on suspicion of being associated with al Qaeda in the Arabian Peninsula and also with the Somali movement Al Shabab. Scott Shane, American's Arrest Stirs Fears That Wars Radicalize U.S. Muslims, N.Y. TIMES, Mar. 13, 2010, at A4. Following his arrest, Mobley grabbed a security official's gun and shot two guards, one fatally.
34. Id.
35. Abdulhakim Mujahid Muhammad, born Carlos Bledsoe in Memphis, Tennessee, killed one soldier and wounded another in a shooting attack outside an army recruiting center in Little Rock, Arkansas. James Dao, A Muslim Son, a Murder Trial and Many Questions, N.Y. TIMES, Feb. 17, 2010, at A11.
36. Muhammad had converted to Islam in college, becoming increasingly radicalized through studies at the Islamic Center of Nashville and a stint teaching and studying in Aden, Yemen.
37. Id.
38. Najibullah Zazi, an Afghan-born permanent resident of the United States, was arrested in September 2009 and recently pleaded guilty to attempting to detonate bombs within the New York City subway system as part of an al Qaeda plot.
39. A.G. Sulzberger & William K. Rashbaum, Guilty Plea Made in Plot to Bomb New York Subway, N.Y. TIMES, Feb. 23, 2010, at A1. David Headley, a U.S. citizen "raised in elite circles in Pakistan," has been accused of assisting in the 2008 Mumbai attack by the terrorist group Lashkar-e-Taiba as well as of conspiring to attack the Danish newspaper that published cartoons of the Prophet Mohammed.
40. Ginger Thompson & David Johnston, U.S. Man Accused of Helping Plot Mumbai Attack, N.Y. TIMES, Dec. 8, 2009, at A1. Headley's radicalization appears to be longstanding, and he is alleged to have received training by Lashkar-e-Taiba from 2002 to 2003.
41. Id.
42. Although the details are as yet unclear regarding the motive of the crime and its possible connection to radicalism and terrorism, Major Nidal Malik Hasan's mass murder at Fort Hood may be the most serious modern incident of homegrown radicalism and terrorism committed in the United States.
43. See Daniel Byman, Homeland Insecurity, WALL ST. J., Dec. 15, 2009, available at http://online.wsj.com/article/ SB10001424052748704517504574589841594836308.html (describing the Fort Hood shootings as "the deadliest terrorist attack on U.S. soil since 9/11"). One of the unresolved issues in the case is Hasan's relationship with Anwar al Awlaki, a Yemeni-American with alleged terrorist connections, and what influence, if any, the latter had on Hasan's subsequent crime.
44. See The Fort Hood Attack: A Preliminary Assessment: Hearing Before the S. Comm. on Homeland Security and Governmental Affairs, 111th Cong. (2009) (statement of Juan Carlos Zarate, Senior Advisor, Center for Strategic and International Studies), available at http://hsgac.senate.gov/public/index.cfm? FuseAction=Hearings.Hearing&Hearing-ID=70b4e9b6-d2af-4290-b9fd-7a466a0a86b6 (describing alleged communications between Hasan and al Awlaki as "troubling")
45. Dan Murphy, Fort Hood Shooting: Was Nidal Malik Hasan Inspired by Militant Cleric?, CHRISTIAN SCI. MONITOR, Nov. 10, 2009, http://www.csmonitor. com/World/Global-News/2009/1110/fort-hood-shooting-was-nidal-malik-hasan- inspired-by-militant-cleric (reporting that investigators are researching Hasan's contact with al Awlaki).
46. on May 4, 2010, Faisal Shahzad, a Pakistani-born naturalized U.S. citizen, admitted involvement in a failed attempt todetonate a car bomb in New York City's Times Square.
47. Mark Mazzetti et al., Terrorism Suspect, Charged, Admits to Role in Bomb Plot, N.Y. TIMES, May 5, 2010, at A1. In December 2009, Pakistani police arrested five U.S. citizens in the home of a man linked to radical Islamist groups.
48. Jerry Markon et al., Arrests Suggest U.S. Muslims, Like Those in Europe, Can Be Radicalized Abroad, WASH. POST, Dec. 12, 2009, at A1. What the men had hoped to accomplish on their trip to Pakistan has yet to be reported.
49. See generally RICK "OZZIE" NELSON & BEN BODURIAN, CTR. FOR STRATEGIC & INT'L STUDIES, A GROWING TERRORIST THREAT? ASSESSING "HOMEGROWN" EXTREMISM IN THE UNITED STATES (2010), available at http://csis.org/files/publication/100304-Nelson-GrowingTerroristThreat-Web.pdf (recounting recent incidents of domestic terrorism and suggesting measures the United States should take to counter such threats)
50. Byman, supra (postulating various explanations for the recent spike in homegrown terrorists);
51. Sebastian Rotella, A U.S. Strain of Extremism May Be Rising, L.A. TIMES, Dec. 7, 2009, at A1 (describing 2009 as the most dangerous year in terms of domestic terrorism since 2001)
52. Bruce Hoffman, American Jihad, NAT'L INT. ONLINE, Apr. 20, 2010, http://www.nationalinterest.org/Article.aspx?id=23200 (calling for greater official attention to the phenomenon of homegrown terrorism).
53. See CTR. ON LAW & SEC., N.Y.U. SCH. OF LAW, TERRORIST TRIAL REPORT CARD (2010) (demonstrating that the majority of terrorism suspects tried in federal court in the United States in the last eight years have been homegrown terrorists). There is no agreed-upon definition of homegrown terrorism. A recent report defined it as "terrorist violence perpetrated by U.S. legal residents or citizens." NELSON & BODURIAN, supra note 9, at v n.1. A proposed statute, meanwhile, would have defined homegrown terrorism as "the use, planned use, or threatened use, of force or violence by a group or individual born, raised, or based and operating primarily within the United States ⋯ in furtherance of political or social objectives."
54. Violent Radicalization and Homegrown Terrorism Prevention Act of 2007, H.R. 1955, 110th Cong. § 3 (as passed by House, Oct. 23, 2007).
55. See, e.g., QUINTAN WIKTOROWICZ, RADICAL ISLAM RISING 5-6 (2005) (explaining how individuals in the Western world are drawn to radical Islamic groups by analyzing their initial interest in the groups, the means by which they are persuaded to believe the radical group is a credible source of Islamic interpretation, and the process by which they are persuaded to engage in "risky activism"). The homegrown terrorism that I focus on mainly emanates from certain strains of radical Islam. But the concept is certainly not limited to instances of acts of violence inspired by any one religious tradition or ideology.
56. See, e.g., Michael Brick, For Texas Pilot, Rage Simmered with Few Hints, N.Y. TIMES, Feb. 19, 2010, at A1 (revealing how Joseph Stack was radicalized by antigovernment rhetoric and philosophy before flying his plane into an Austin, Texas building housing the local Internal Revenue Service offices). Joseph Stack's suicide note clearly indicates that he wanted to be a martyr and that "violence not only [was] the answer, it [was] the only answer." Letter from Joe Stack (Feb. 18, 2010), available at http://graphics8.nytimes.com/ packages/pdf/us/20100218-stack-suicide-letter.pdf.
57. See, e.g., PRESIDENTIAL TASK FORCE ON CONFRONTING THE IDEOLOGY OF RADICAL EXTREMISM, REWRITING THE NARRATIVE: AN INTEGRATED STRATEGY FOR COUNTERRADICALIZATION 8-20 (2009) [hereinafter REWRITING THE NARRATIVE], available at http://washingtoninstitute.org/pubPDFs/PTF2-Counterradicalization. pdf (surveying efforts by European governments to address extremist ideology and offering recommendations for the U.S. government).
58. See id. at 13-17
59. (making numerous recommendations to the Obama Administration regarding potential changes to the United States' counterradicalization policies in the Middle East);
60. WHITE HOUSE, NATIONAL SECURITY STRATEGY 19 (2010) [hereinafter NATIONAL SECURITY STRATEGY], available at http://www.whitehouse.gov/sites/default/files/ rss-viewer/national-security-strategy.pdf (emphasizing the need for counterradicalization efforts within the United States).
61. See id. at 17-18
62. (discussing ways to improve domestic counterradicalization efforts). In an example of the increased focus on counterradicalization, Department of Homeland Security Secretary Janet Napolitano submitted written testimony to the Senate Homeland Security Committee detailing the efforts by the Department, especially its Office of Information and Analysis (I&A), to counter radicalization, noting that I&A "strengthen[ed] its analysis in several areas," notably "violent radicalization and domestic terrorism." Eight Years After 9/11: Confronting the Terrorist Threat to the Homeland: Hearing Before the S. Comm. on Homeland Security & Governmental Affairs, 111th Cong. (2009) (statement of Janet Napolitano, Secretary, Department of Homeland Security), available at http://www.dhs.gov/ynews/testimony/testimony- 1254321524430.shtm. More generally, in his Nobel Prize acceptance speech, President Obama referred to radicalization as a major threat to peace which must be countered by a correct understanding of faith as "the law of love": [G]iven the dizzying pace of globalization, the cultural leveling of modernity, it perhaps comes as no surprise that people fear the loss of what they cherish in their particular identities-their race, their tribe, and perhaps most powerfully their religion. In some places, this fear has led to conflict⋯ . [M]ost dangerously, we see it in the way that religion is used to justify the murder of innocents by those who have distorted and defiled the great religion of Islam, and who attacked my country from Afghanistan.
63. Barack Obama, U.S. President, Remarks by the President at the Acceptance of the Nobel Peace Prize (Dec. 10, 2009), http://www.whitehouse.gov/the-press- office/remarks-president-acceptancenobel-peace-prize. Counterradicalization, which is strategic in its breadth and anticipatory in its methodology, can be distinguished from deradicalization, which aims to unwind ideological developments that have already taken place within an individual or group. OMAR ASHOUR, THE DE-RADICALIZATION OF JIHADISTS 5-6 (2009). In an interview with Der Spiegel, Napolitano said that the United States will expand its communication and coordination with Europe regarding deradicalization, as both face similar questions: "How do you identify a youth who is susceptible to becoming radicalized? How do you work with that youth, his family and community to give them alternatives to radicalization?" Cordula Meyer, Away from the Politics of Fear, DER SPIEGEL ONLINE, Mar. 16, 2009, http://www.spiegel.de/ international/world/0,1518,613330,00.html.
64. See supra notes 12-14 and accompanying text. There are reasons to be concerned about the abilities of both federal and local programs. Counterradicalization implies the capacity of officials to comprehend and intervene in processes that are heavily informed by religiously inspired ideology, historically not a strong suit of law enforcement agencies.
65. See RICHARD A. POSNER, COUNTERING TERRORISM 105-10 (2007) (discussing how law enforcement and intelligence agencies diverge in terms of their missions and institutional cultures). A debate rages across Western European democracies (many of which currently practice counterradicalization more vigorously and comprehensively than the United States) about the degree to which nonviolent extremists ought to be enlisted in the ideological struggle against violent extremists.
66. See, e.g.,Lorenzo Vidino, Europe's New Security Dilemma, WASH. Q., Oct. 2009, at 62 ("A source of particularly heated debate among policymakers is the role that could be played in these programs by nonviolent Islamists ⋯ ."). Furthermore, as discussed below, counterradicalization implicates concerns about basic freedoms guaranteed by the Bill of Rights, especially those embodied in the First Amendment's Speech and Religion Clauses.
67. See infra notes 112-13 and accompanying text. For a recent powerful critique of British counterradicalization policy.
68. I do not mean to argue that federal intelligence does not possess formidable advantages over local intelligence. Federal officials are vastly more experienced and capable in areas of electronic surveillance, including tracking material on the Internet.
69. See DAVID S. KRIS & J. DOUGLAS WILSON, NATIONAL SECURITY INVESTIGATIONS & PROSECUTIONS § 3 (2007) (summarizing the history of federal national-security surveillance from the expiration of a World War I statute barring federal wiretapping in 1919 to the War on Terror). Furthermore, although the NYPD has dispatched approximately ten of its intelligence officers to overseas posts, Adam Pincus, Traveling Blues: Oversight Procedures on Expenses and Legal Issues Unclear for Overseas NYPD Officers, CITY HALL, Mar. 10, 2008, http://www.cityhallnews.com/newyork/article-285-traveling-blues.html, it obviously remains the case that the federal government enjoys a massive intelligence advantage beyond the nation's borders.
70. See KRIS & WILSON, supra, at § 16:2 (describing federal authority to conduct intelligence activities abroad).
71. See Elinor Ostrom, Organizational Economics: Applications to Metropolitan Governance, 6 J. INSTITUTIONAL ECON. 109, 111 (2010) (arguing that coproduced services are provided most effectively by smaller departments that make relationships with their citizens and learn the differences between neighborhoods). Like the much more widely discussed idea of counterinsurgency, counterradicalization places emphasis on interactions between government and more general populations.
72. Cf. MICHAEL T. FLYNN ET AL., CTR. FOR A NEW AM. SEC., FIXING INTEL: A BLUEPRINT FOR MAKING INTELLIGENCE RELEVANT IN AFGHANISTAN 4 (2010) (arguing against excessive reliance on intelligence related to insurgent violence and in favor of more broadgauged intelligence related to "fundamental questions about the environment in which [U.S. forces] operate and the people [U.S. forces] are trying to protect and persuade").
73. The intelligence cycle is an iterative process that includes, most basically, collection and analysis.
74. See MARK M. LOWENTHAL, INTELLIGENCE: FROM SECRETS TO POLICY 51 (2d ed. 2003)(describing the intelligence cycle as a "perfect circle" in which the intelligence community "collects intelligence, which is then processed and exploited, analyzed and produced, and disseminated to the policymakers").
75. See, e.g., CHRISTOPHER DICKEY, SECURING THE CITY: INSIDE AMERICA'S BEST COUNTERTERROR FORCE-THE NYPD (2009) (presenting a narrative portraying the NYPD as the nation's most effective counterterrorism force);
76. William Finnegan, The Terrorism Beat: How Is the N.Y.P.D. Defending the City?, NEW YORKER, July 25, 2005, at 58, 61 (quoting RAND expert Brian Jenkins as saying that "'[a]s [international terrorism] metastasizes, ⋯ [w]e're going to win this at the local level'"). My focus throughout is on the role of police (federal and local) in intelligence gathering and analysis. Obviously, intelligence does not exhaust the role of police in counterterrorism work. For a thoughtful survey of some of the conceptual issues brought up by the involvement of local police in counterterrorism
77. see generally Matthew C. Waxman, Police and National Security: American Local Law Enforcement and Counterterrorism After 9/11, 3 J. NAT'L SECURITY L. & POL'Y 377 (2009).
78. See, e.g., Radicalization, Information Sharing and Community Outreach: Protecting the Homeland from Homegrown Terror: Hearing Before the Subcomm. on Intelligence, Information Sharing, and Terrorism Risk Assessment of the H. Comm. on Homeland Security, 110th Cong. 12 (2007) (statement of William J. Bratton, Chief of Police, Los Angeles Police Department) ("[O]ver 700,000 local law enforcement officers in the U.S. are already on the front lines, fighting crime and gathering critical information on a daily basis.").
79. Comments like those of former Director of National Intelligence John Negroponte are typical: We all recognize that-while protecting the rights of our citizen-critical terrorism information can be developed by engaged police officers who patrol the streets of our nation. In fact, without engaged police officers, we may not stop the next threat. The federal government can't be-and shouldn't try to be-everywhere all the time. Werely mightily on the more than 13,000 state and local police departments in the United States. Our state and local colleagues are our eyes and ears throughout the nation.
80. John D. Negroponte, Dir. Nat'l Intelligence, Remarks to the FBI National Academy 2 (Oct. 3, 2006), available at www.dni.gov/speeches/20061003-speech.pdf;
81. see also Dennis C. Blair, Op-Ed, Strengthening Our Front Line of Defense, WASH. POST, Dec. 18, 2009, at A31 (touting increased co-operation among FBI, local law enforcement, and intelligence agencies in the recent arrests of Americans allegedly associated with foreign terrorist organizations).
82. As discussed below, counterradicalization intelligence substantially loosens any requirement for tying authority to engage in intelligence gathering to a finding of even potential criminal liability.
83. See infra note 78 and accompanying text. For a discussion of the distinction between high (intelligence and security-related) and low (case-oriented) policing, see Jean-Paul Brodeur, High and Low Policing in Post-9/11 Times, 1 POLICING 25, 26 (2007).
84. K. JACK RILEY ET AL., STATE AND LOCAL INTELLIGENCE IN THE WAR ON TERRORISM, at xiv-xv (2005). While the report may be accurate (especially as to funding) as a descriptive matter, its conclusion is flawed in view of the fact that it is predicated on an excessively narrow, technology-based view of intelligence.
85. See id. at 2
86. (distinguishing between "intelligence gathering" and "information gathering" on the basis of the use of electronic surveillance).
87. Contemporary European practice is of a piece with this claim. For example, "Rich Picture" represents a collaboration between local police and the British Security Service (MI5).
88. See Gordon Corera, Don't Look Now, Britain's Real Spooks Are Right Behind You, TIMES ONLINE, Dec. 2, 2007, http://www.timesonline.co.uk/tol/news/uk/ article2982769.ece ("The counterterrorist machinery has also spread out from London around the country, with a series of large regional MI5 stations opening to work closely with the police⋯ . A joint project, Rich Picture, is designed to cast a wide intelligence net to pick up warning signs of radicalisation or unusual activity as early as possible.").
89. See, e.g., Ernest A. Young, Welcome to the Dark Side: Liberals Rediscover Federalism in the Wake of the War on Terror, 69 BROOK. L. REV. 1277, 1290-91 (2004) (arguing that "[f]ederalism best protects liberty over time" by providing "potential dissenters [to federal counterterrorism strategies] ⋯ their own [state] governmental institutions around which to organize their efforts, as well as their own constitutional space in which to implement and demonstrate the effectiveness of alternative policies").
90. See, e.g., Jerome H. Skolnick, Democratic Policing Confronts Terror and Protest, 33 SYRACUSE J. INT'L L. & COM. 191, 211 (2005) (emphasizing New York's "institutions of accountability").
91. See, e.g., Daniel Richman, The Right Fight: Enlisted by the Feds, Can Police Find Sleeper Cells and Protect Civil Rights, Too?, BOSTON REV., Dec. 2004-Jan. 2005, available at http://bostonreview.net/BR29.6/richman.php (discussing the central role of local law enforcement in ensuring public safety as part of a balanced "portfolio" which helps local officials in dealing with community leaders).
92. See infra Part II.
93. See Chevigny, supra note 7, at 751-67 (discussing the circumstances leading up to and the specifics of various consent settlement decrees in Memphis, Chicago, and New York that had farreaching influence).
94. See infra notes 116-17 and accompanying text.
95. See infra notes 38-44 and accompanying text.
96. For an example of an association advocating more involvement of local law enforcement in homeland security and intelligence.
97. see MAJOR CITIES CHIEFS ASS'N, TWELVE TENETS TO PREVENT CRIME AND TERRORISM 6 (2008), available at http://www.majorcitieschiefs.org/pdfpublic/ MCC%20Twelve%20Tenet%20Final%205%2021%2008.pdf.
98. See infra subpart III(A).
99. See infra subpart III(A). For example, within DHS, the Office of Intelligence and Analysis is responsible for both the Fusion Centers formally tasked with sharing information with state and local jurisdictions and the broader policy of information sharing with subnational units. FY2010 Budget Request: Hearing Before the Subcomm. on Intelligence, Information Sharing, and Terrorism Risk Assessment of the H. Comm. on Homeland Security, 111th Cong. (2009) (statement of Bart R. Johnson, Acting Under Secretary, Office of Intelligence and Analysis, Department of Homeland Security).
100. Federal Bureau of Investigation, Protecting America Against Terrorist Attack: A Closer Look at Our Joint Terrorism Task Forces, http://www.fbi.gov/ page2/may09/jttfs-052809.html.
101. Department of Homeland Security, State and Local Fusion Centers, http://www.dhs.gov/files/programs/gc-1156877184684.shtm (last modified Sept. 16, 2009).
102. Interagency Threat Assessment and Coordination Group, http://www.ise.gov/docs/misc/ITACG-brochure.pdf.
103. See Lawrence C. Reardon, Interpreting Political Islam's Challenge to Southeast Asia, in DEMOCRATIC DEVELOPMENT AND POLITICAL TERRORISM 195, 213 (William Crotty ed., 2005) ("Radical Islamic terrorism thus is viewed as a transnational phenomenon that had been transformed from a local to a regional or global phenomenon."). As mentioned, I am focusing primarily on homegrown terrorism related to certain varieties of radical Islam, although the concepts discussed in the Article could be applied equally to combating homegrown terrorism inspired by any ideology.
104. Henry N. Butler & Jonathan R. Macey, Externalities and the Matching Principle: The Case for Reallocating Environmental Regulatory Authority, 14 YALE L. & POL'Y REV. 23, 25 (1996). For a city to practice counterterrorism, just as for a state like California to regulate greenhouse gases with an eye to redressing global warming, is to devote resources to a problem that by its nature eludes comprehensive local resolution. For a view that terrorism "must be added to the Constitution's list of piracy and treason as unassailable redoubts of federal concern,"
105. see Elizabeth Glazer, A New World, BOSTON REV., Dec. 2004-Jan. 2005, available at http://bostonreview.net/BR29.6/glazer.php.
106. David Thacher, The Local Role in Homeland Security, 39 LAW & SOC'Y REV. 635, 669 (2005) (emphasis omitted). In the specific case of the NYPD, certain aspects of its counterterrorism program may have been designed, in part, to motivate the federal government to take similarly aggressive action, a sort of reversal of the famous Brandeisian laboratory theory of federalism in the sense that here the subnational entity played the role not of laboratory rat but of provocateur.
107. See DICKEY, supra note 19, at 157-59 (giving examples of the NYPD's more aggressive intelligencegathering techniques that the FBI later adopted). The directive issued by FDR referenced in the introductory paragraph, itself the result of a memo written by FBI Director Hoover to Attorney General Frank Murphy on March 6, 1939, reveals a similar tension.
108. See CT READER, supra note 1, at 171-72 (reporting that the sequence of events that led to FDR's issuance of the directive began with Hoover's memo). In that memo Hoover explained that the federal government needed to become more active in countersabotage operations because the public was beginning to assume that it was the local-and not the federal-government which would be in the lead. Id. Hoover had learned that the NYPD had "'created a special sabotage squad of fifty detectives ⋯ and that this squad [would] be augmented in the rather near future to comprise 150 men.'"
109. Id. at 171.
110. There had been "considerable publicity" with the result that private citizens were likely to transmit information concerning sabotage "'to the New York City Police Department rather than the FBI.'"
111. Id.
112. After informing the Attorney General of this development, "the Director strongly urged that the President 'issue a statement or request addressed to all police officials in the United States: asking them to turn over to the FBI "any information obtained pertaining to espionage, counterespionage, sabotage, and neutrality regulations."'"
113. Id.
114. Richard Stewart has underscored, there are rational explanations for violations of the "matching principle" on the part of subnational actors addressing climate change.
115. Similarly, as Richard Stewart has underscored, there are rational explanations for violations of the "matching principle" on the part of subnational actors addressing climate change. Richard B. Stewart, States and Cities as Actors in Global Climate Regulation: Unitary vs. Plural Architectures, 50 ARIZ. L. REV. 681, 691 (2008). First, subnational governments that lead in this area will achieve "radiator effects" by stimulating participation by other states, thereby spreading costs and increasing benefits.
116. Id.
117. Second, subnational agencies that assumeleadership roles may be able to leverage their market position by causing other subnational groups to piggyback on their policies.
118. Id. at 692
119. Third, there may be a race to the top in which benefits accrue to industry in greenhouse-gas-regulation-leader jurisdictions.
120. Id. at 691
121. But see Jonathan B. Wiener, Think Globally, Act Globally: The Limits of Local Climate Policies, 155 U. PA. L. REV. 1961, 1965 (2007) (arguing that a race to the bottom is more likely than a race to the top);
122. Dafna Linzer, In New York, a Turf War in the Battle Against Terrorism, WASH. POST, Mar. 24, 2008, at A1 (discussing the conflicts between the NYPD and the FBI). Many of the clashes Linzer describes date back two or three years and have been adequately addressed by the FBI more recently.
123. See id.
124. ("[R]ecently, officials in the FBI and the NYPD said the bitterness ⋯ [had] faded⋯Both departments credit the improvement to a pivotal meeting, 2 1/2 years ago, between [Police Commissioner] Kelly and FBI Director Robert S. Mueller III.").
125. Epistemic federalism diverges from the view that questions of institutional design are logically anterior to questions of understanding the threat. For an opposite view that politics play a greater role in the process
126. see William Stuntz, Responses to the September 11 Attacks: Terrorism, Federalism, and Police Misconduct, 25 HARV. J.L. & PUB. POL'Y 665, 670-71 (2002).
127. See William N. Eskridge, Jr. & John Ferejohn, Structuring Lawmaking to Reduce Cognitive Bias: A Critical View, 87 CORNELL L. REV. 616, 620-21 (2002)
128. As NYPD Deputy Commissioner Richard Falkenrath has observed in Congressional testimony, In combating 'homegrown' threats, the burden shifts ⋯almost entirely to local law enforcement⋯ This is one of the reasons why the NYPD has decided to augment its joint counterterrorism investigative work with the FBI with an organizationally distinct intelligence program operating under separate legal authorities. Homeland Security: The Next Five Years: Hearing Before the S. Comm. on Homeland Security and Governmental Affairs, 109th Cong. 19 (2006) (statement of Richard Falkenrath, Deputy Comm'r, New York City Police Department) [hereinafter Falkenrath, Hearing], available at http://hsgac.senate.gov/public/index.cfm?FuseAction=Hearings. Hearing&Hearing-ID=9f137c90-5424-4bc6-a3eb-f785acc1f82d. This is one of the reasons why the NYPD has decided to augment its joint counterterrorism investigative work with the FBI with an organizationally distinct intelligence program operating under separate legal authorities. Homeland Security: The Next Five Years: Hearing Before the S. Comm. on Homeland Security and Governmental Affairs, 109th Cong. 19 (2006) (statement of Richard Falkenrath, Deputy Comm'r, New York City Police Department) [hereinafter Falkenrath, Hearing], available at http://hsgac.senate.gov/public/index.cfm?FuseAction=Hearings. Hearing&Hearing-ID=9f137c90-5424-4bc6-a3eb-f785acc1f82d.
129. Epistemic federalism argues for an interdisciplinary approach to problem solving that leverages the various informational capacities of government at different levels to achieve a more complete overall understanding of a phenomenon. The concept of epistemic federalism resonates with Schapiro's concept of "polyphonic federalism" that leverages the competitive overlap between national and subnational governments.
130. See Robert A. Schapiro, Toward a Theory of Interactive Federalism, 91 IOWA L. REV. 243, 244 (2005) ("Polyphonic federalism does not divide state and federal authority, but instead seeks to harness the interaction of state and national power to advance the goals associated with federalism."). The core Executive Order that guides the work of the Intelligence Community also builds in this competitive impulse.
131. See Exec. Order No. 12,333, 3 C.F.R. 200 (1982), as amended by Exec. Order No. 13,284, 68 Fed. Reg. 4075 (Jan. 23, 2003), Exec. Order No. 13,355, 69 Fed. Reg. 53,593 (Aug. 27, 2004), Exec. Order No. 13,470, 73 Fed. Reg. 45,325 (Aug. 4, 2008) (recognizing the value of analytic competition between intelligence agencies for generating sound intelligence), reprinted as amended in 50 U.S.C. § 401 (2006). But epistemic federalism is subtly yet fundamentally different in that it views the subnational actors not merely as alternative regulatory actors to the federal government but as institutional actors possessed of different perspectives on regulatory problems.
132. See, e.g., James Risen & David Johnston, Al Qaeda May Be Rebuilding in Pakistan, Emails Indicate, N.Y. TIMES, Mar. 6, 2002, at A1 ("American officials believe that one of the benefits of the war in Afghanistan was to disrupt the terror network's ability to communicate from a central command center.").
133. See MARC SAGEMAN, LEADERLESS JIHAD 141 (2008) (describing the lack of formality in local networks). Sageman's thesis has been criticized, especially by Bruce Hoffman, who regards al Qaeda as posing an enduring threat as a headquarters organization.
134. See Bruce Hoffman, The Myth of Grass-Roots Terrorism, 87 FOREIGN AFF., May-June 2008, at 133, 134-35 (citing governmental authorities who contend that al Qaeda remains America's most serious threat and retains top-down command capabilities).
135. See SAGEMAN, supra note 46, at 143 ("The process of radicalization that generates small, local, self-organized groups in a hostile habitat but linked through the Internet also leads to a disconnected global network, the leaderless jihad.").
136. See BRYNJAR LIA, ARCHITECT OF GLOBAL JIHAD: THE LIFE OF AL-QAIDA STRATEGIST ABU MUS'AB AL-SURI 104 (2008) (excerpting a 1991 audiotape by Abu Mus'ab al-Suri, in which al-Suri discusses the need for global jihad to eliminate vulnerable command structures, prefiguring the organizational slogan he later developed, "nizam la tanzim," meaning "system, not organization").
137. BERNARD ROUGIER, EVERYDAY JIHAD 276 (2007).
138. See id. at 277
139. ("If ⋯ nothing is done to resume Palestinian-Israeli negotiations, Ain al-Helweh might become the vanguard of a salafist-jihadist militancy that would spread in the Palestinian territories, break through nationalist barriers, and change the scale of the struggle, the better to strike 'the serpent's head' ⋯ .").
140. SAGEMAN, supra note 46, at 143. "The global Salafi jihad has a very fuzzy boundary ⋯ [which] raises ⋯ epistemological issues on a group and individual level." MARC SAGEMAN, UNDERSTANDING TERROR NETWORKS 151 (2004). The homegrown threat is not limited to the United States or to its Western European allies. Bernard Rougier, whose study of Islamic radicalization in the Lebanese refugee camp Ain al-Hilweh offers a powerful case study of the local origins of jihad, has written, "Whatever the nature of the ties between Islamists in Lebanon-or some of them-and Osama bin Laden or Ayman al-Zawahiri, the salafist-jihadist phenomenon exists autonomously: its development does not depend on 'international terrorist networks.'" ROUGIER, supra note 49, at 275.
141. The node may be a physical location or a virtual one.
142. See STAFF OF S. COMM. ON HOMELAND SEC. AND GOVERNMENTAL AFFAIRS, 110TH CONG., VIOLENT ISLAMIST EXTREMISM, THE INTERNET, AND THE HOMEGROWN TERRORIST THREAT 15 (2008) [hereinafter VIOLENT ISLAMIST EXTREMISM], available at http://hsgac.senate.gov/public/-files/IslamistReport.pdf ("Despite recognition in the [National Implementation Plan] that a comprehensive response is needed, the U.S. government has not developed nor implemented a coordinated outreach and communications strategy to address the homegrown terrorist threat, especially as that threat is amplified by the use of the Internet.").
143. See ROUGIER, supra note 49, at 86-98 (describing the methods by which the al-Nur and Salah al-Din Mosques, al-Huda bookstore, and al-Hidaya newspaper provided access to radicalization theories and materials to refugees).
144. Andrea Elliott, Where Boys Grow Up to Be Jihadis, N.Y. TIMES, Nov. 25, 2007, (Magazine), at 70; Fiona Govan, Town That Breeds Suicide Bombers, DAILY TELEGRAPH, Nov. 25, 2006, at 16.
145. Christopher Caldwell, After Londonistan, N.Y. TIMES, June 25, 2006, § 6 (Magazine), at 41.
146. See SAGEMAN, supra note 46, at 23-24.
147. Cf. Richard H. Shultz Jr. & Roy Godson, Intelligence Dominance: A Better Way Forward in Iraq, WKLY. STANDARD, July 31, 2006, at 22, 24 (referring to a veteran foreign intelligence professional who "was describing a situation in which an operative functions somewhat like thepoliceman on the beat-constantly talking to, interacting with, and keeping tabs on the people in his neighborhood and, most of all, keeping his eyes open for slight changes or new developments in the local scene").
148. It goes without saying that the NYPD does not supply a model of local intelligence that can be replicated in every respect by other major metropolitan, still less (the more typical) suburban or rural police departments. Still, it is useful to discuss the NYPD as offering a conceptual alternative to federal intelligence, both in terms of its institutional strengths and vulnerabilities.
149. Federal Bureau of Investigation, About Us-Quick Facts, http://www.fbi.gov/quickfacts.htm.
150. Daniel Richman, Prosecutors and Their Agents, Agents and Their Prosecutors, 103 COLUM. L. REV. 749, 788-89 (2003).
151. NYPD Frequently Asked Questions, http://www.nyc.gov/html/nypd/html/faq/ faq-police.shtml.
152. See Colleen Long, US Police Departments Seeking More Bilingual Cops, DAILYNEWS, Mar. 11, 2010, http://news.yahoo.com/s/ap/20100311/ap-on-re-us/us- bilingual-cops-2 (noting that one-third of NYPD employees can speak a second language-of those, "785 are certified linguists or expert translators in 63 languages, including Bengali, Dari, Farsi, Arabic and Urdu").
153. As of March 2010, the Minneapolis Police Department has a dedicated Crime Prevention Specialist who speaks Somali.
154. See Minneapolis Police Department Sector Lieutenant & Crime Prevention Specialist Contacts, http://www.ci.minneapolis.mn.us/safe/docs/safe- staff-map.pdf (listing a Somali contact under cultural outreach).
155. See supra note 62. "The FBI did not dedicate sufficient resources to the surveillance and translation needs of counterterrorism agents. It lacked sufficient translators proficient in Arabic and other key languages, resulting in significant backlog of untranslated intercepts." NAT'L COMM'N ON TERRORIST ATTACKS UPON THE UNITED STATES, THE 9/11 COMMISSION REPORT 77 (2004) [hereinafter 9/11 COMMISSION REPORT]. Security concerns also increased the difficulty of recruiting officers qualified for counterterrorism. "Very few American colleges or universities offered programs in Middle Eastern languages or Islamic studies ⋯ . Anyone who was foreignborn or had numerous relatives abroad was well-advised not even to apply."
156. Id. at 92.
157. "Similar to our findings in our previous audits, we determined that the FBI still does not have a reliable means of assessing the amount of foreign language audio, text, and electronic material it collects and reviews for its counterterrorism, counterintelligence, and criminal operations." OFFICE OF THE INSPECTOR GEN., U.S. DEP'T OF JUSTICE, AUDIT REPORT 10-02, THE FEDERAL BUREAU OF INVESTIGATION'S FOREIGN LANGUAGE TRANSLATION PROGRAM 48 (2009), available at http://www.justice.gov/oig/reports/FBI/a1002-redacted.pdf. As the New York Times has reported, The report also contains new information about the bureau's efforts to hire more translators. It showed that the number of the bureau's linguists-both staff members and contractors-had fallen slightly to 1,298 as of September 2008, from a peak in 2005. It met its hiring targets in 2008 for only 2 of 14 targeted languages. The process of hiring linguists has been slowed because of lengthy security vetting and competition with other intelligence agencies that are also trying to hire more translators, the report said.Charlie Savage, F.B.I. Is Slow to Translate Intelligence, Report Says, N.Y. TIMES, Oct. 27, 2009, at A20. The lack of native language speakers in the FBI is largely an artifact of the national-security clearance process, a holdover from the Cold War where the presence of relatives in a sensitive location overseas would tend to disqualify an individual from obtaining a clearance.
158. See OFFICE OF THE INSPECTOR GEN., supra, at 77 (noting that the length of the clearance process for linguists, averaging fourteen months, is even longer for foreign-born linguists with family still living abroad). While critics rail against the anachronistic clearance process, it remains a fact of life in the federal Intelligence Community and is unlikely to change soon.
159. Cf. DIR. OF NAT'L INTELLIGENCE, U.S. INTELLIGENCE CMTY., FOLLOW-UP REPORT ON 100 DAY PLAN: INTEGRATION AND COLLABORATION 14-15 (2007) (suggesting means to address the "[m]ultiple, complex, and inconsistent security clearance systems" that "slow the pace in filling open positions and moving personnel"). Willy-nilly, this has given local intelligence a comparative institutional advantage-so much so that the "[t]he Department of Defense recently borrowed seventeen computer-literate Arabic speakers from the N.Y.P.D. to assist its intelligence arm." Finnegan, supra note 19, at 64.
160. See Steven M. Cox, Policing into the 21st Century, 13 POLICE STUD.: INT'L REV. POLICE DEV. 168, 168 (1990) (highlighting the roles of municipal police that extend beyond law enforcement such as assisting citizens with their private trouble).
161. BRUCE L. BERG, POLICING IN MODERN SOCIETY 4 (1999) (discussing the daily work of municipal police, including patrols and emergency services, that closely connects them to the local community). As Gill has observed, "the fundamental goal of the police is order-maintenance, to which end obtaining convictions is only marginally related." PETER GILL, POLICING POLITICS 210-11 (1994). This is the core concept of the constable on patrol (or "cop")-what Skolnick has called the "peacekeeper paradigm." Skolnick, supra note 26, at 192.
162. See JAMES Q. WILSON, THE INVESTIGATORS 207 (1978) (providing an example of the conflict between the DEA and the FBI over intelligence-gathering and prosecutorial priorities);
163. Matthew M. Johnson, FBI's Intelligence Woes Restir Debate on an American MI5, CQ HOMELAND SECURITY, Oct. 23, 2007, public.cq.com/docs/hs/hsnews110- 000002611323.html (discussing the struggle within the FBI to define the appropriate role for its intelligence-gathering function);
164. see also POSNER, supra note 15, at 146-47 (describing the challenges facing the FBI's domesticintelligence operations);
165. Scott Shane & Lowell Bergman, F.B.I. Struggling to Reinvent Itself to Fight Terror, N.Y. TIMES, Oct. 10, 2006, at A1 ("F.B.I. culture still respects door-kicking investigators more than desk-bound analysts sifting through tidbits of data.").
166. For all that it seems to be the paradigm of a headquarters-driven plot, even the September 11th attacks might have been detected through local counterterrorism. The Hamburg cell-which included Mohammed Atta, Ziad Jarrah, Marwan al Shehhi, and Ramzi Binalshibh-coalesced and became radicalized in the Quds mosque in Hamburg. 9/11 COMMISSION REPORT, supra note 63, at160-64. Tyler Drumheller, the retired head of the European Division for the CIA recently commented, "I always believed that the real story of 9/11 was in the notebook of a Hamburg beatcop." Tyler Drumheller, European Div. Chief, CIA, Panel Discussion at the Center on Law and Security Conference: Intelligence in the Age of National Security (Feb. 1, 2008), audio available at http://www.lawandsecurity.org/podcasts/Intelligence&theLaw.mp3. The point about the notepad may be an exaggeration-the operational planning for the attacks took place not in Germany but in Afghanistan-but the larger observation about how a local police department might have been best positioned to know about the Hamburg cell's radicalization is well-taken.
167. See 9/11 COMMISSION REPORT, supra note 63, at 156-60 (detailing the planning and preparations that took place in Afghanistan). Drumheller also asserted that the CIA is now authorized to make direct contact with police across Europe as part of their counterterrorism work. Drumheller, supra. In other words, even national-level intelligence agencies have come to appreciate that the critical, ground-level information concerning the microgeometry and microgeography of the terrorist threat resides with the local authorities. That this is so suggests another sense in which the local police may have an important role to play in epistemic federalism. Notwithstanding substantial cultural and institutional differences, local police organize the world similarly regardless of the country in which they work and may therefore be well positioned to communicate with one another, employing a common set of cultural norms and a shared professional vocabulary.
168. See, e.g., John P. Sullivan, Global Terrorism and the Police 10 (Mar. 29, 2008) (unpublished manuscript), available at http://www.allacademic.com//meta/ p-mla-apa-research-citation/2/5/4/3/3/pages254336/p254336-10.php (arguing that national police forces must co-operate with other national police officers across international borders to effectively combat the terrorist threat).
169. Thus, the ODNI decided to train members of an elite new analyst cadre by sending them on a rotation to the NYPD to learn "streetcraft." Robert K. Ackerman, Cultural Changes Drive Intelligence Analysis, SIGNAL ONLINE, May 2007, http://www.afcea.org/signal/articles/templates/SIGNAL-Article-Template. asp?articleid=1311&zoneid=31.
170. See SAGEMAN, supra note 46, at 24 ("To answer the question 'How do people become terrorists?' we need to look at processes, especially the relationships between individuals and their environment.").
171. See id. at 71-72
172. (arguing that, in addition to capturing and eliminating the core group of active terrorists, law enforcement officials must have the requisite knowledge of others that may potentially be connected to terrorist networks).
173. See NEIL HAYNES, METRO. POLICE AUTH., MPS PREVENT DELIVERY STRATEGY (2008), http://www.mpa.gov.uk/committees/mpa/2008/080724/08/?qu= Rich%20Picture&sc=2&ht=1 (describing Rich Picture as a system utilizing national-and local-level intelligence for counterterrorism via neighborhood policing).
174. Elinor Ostrom, Crossing the Great Divide: Coproduction, Synergy, and Development, in STATE-SOCIETY SYNERGY 85, 86 (Peter Evans ed., 1997). Ostrom goes on to explain, [P]roduction of a service, as contrasted to a good, was difficult without the active participation of those supposedly receiving the service⋯ . If citizens do not report suspicious events rapidly to a police department, there is little that department can do to reduce crime in an area or solve the crimes that occur. We developed the term 'coproduction' to describe the potential relationships that could exist between the 'regular' producer (street-level police officers, school teachers, or health workers) and "clients" who want to be transformed by the service into safer, better educated, or healthier persons. Coproduction is one way that synergy between what a government does and what citizens do can occur.
175. Id. at 99-100.
176. Id. at 86.
177. In discussing coproduction, another commentator has stated, Co-production is ⋯ noted by the mix of activities that both public service agents and citizens contribute to the provision of public services. The former are involved as professionals, or 'regular producers,' while 'citizen production' is based on voluntary efforts of individuals or groups to enhance the quality and/or quantity of the services they receive. VICTOR A. PESTOFF, A DEMOCRATIC ARCHITECTURE FOR THE WELFARE STATE 160 (2009).
178. There is also a totally different use of the term coproduction to mean situations in which local and federal authorities jointly produce intelligence. See, e.g., John P. Sullivan, The Frontiers of Global Security Intelligence: Analytical Tradecraft and Education as Drivers for Intelligence Reform, SMALL WARS J., Aug. 22, 2008, http://www.smallwarsjournal.com/blog/journal/docstemp/ 87-sullivan.pdf (describing the Terrorism Early Warning program pioneered in Los Angeles where local and federal authorities work with private-sector analysts to develop counterterrorism intelligence through open-source intelligence and collaborative analysis).
179. See DAVID SHANZER ET AL., ANTI-TERROR LESSONS OF MUSLIM-AMERICANS 3 (2010), http://www.sanford.duke.edu/news/Schanzer-Kurzman-Moosa-Anti-Terror- Lessons.pdf (arguing that in order to foster better mutual understanding between law enforcement and Muslim-Americans, "[l]aw enforcement agencies should develop policies on the appropriate use of informants in Muslim-American communities and discuss these policies openly with community leaders" while "Muslim-Americans, for their part, should understand that the use of informants is an accepted, long-standing law enforcement practice and may be necessary in appropriate cases to gather evidence on individuals who are a potential danger");
180. see also Jacqueline Ross, Police Informants (warning that engagement with informants in the criminal context is difficult because "criminal insiders" both provide the best information and have motivations that are most divergent from law enforcement goals), in PRIVATE SECURITY, PUBLIC ORDER: THE OUTSOURCING OF PUBLIC SERVICES AND ITS LIMITS 159, 172 (Simon Chesterman & Angelina Fisher eds., 2009).
181. Community policing has been defined as "a philosophy that promotes organizational strategies, which support the systematic use of partnerships and problem-solving techniques, to proactively address the immediate conditions that give rise to public safety issues such as crime, social disorder, and fear of crime." COPS, U.S. Department of Justice, Community Policing Defined, http://www.cops.usdoj.gov/default.asp?item=36 (last revised Dec. 15, 2009)
182. see also ALEJANDRO J. BEUTEL, MUSLIM PUB. AFFAIRS COUNCIL, BUILDING BRIDGES TO STRENGTHEN AMERICA 4 (2009), available at http://www.mpac.org/ publications/building-bridges/MPACBuilding-Bridges-Complete-Condensed-Paper.pdf (observing that community policing "gathers and contextualizes various bits of information better to construct a fuller intelligence assessment" (emphasis omitted)). Reliance on the "community" as part of an overall intelligence strategy inevitably raises questions about who represents the community. The answer, clearly, is that no group or institution can lay claim to that sort of representative status. Instead, the community to which I refer is necessarily an artificial construct, comprising mutually opposed elements within a neighborhood or social grouping. Taking this broad view of the community goes some way to ameliorating concerns about public-choice pathologies whereby certain members of the community attempt to gain official sanction for their views.
183. See NATIONAL SECURITY STRATEGY, supra note 13, at 19 ("The Federal Government will invest in intelligence to understand this threat and expand community engagement and development programs to empower local communities.").
184. Under the Attorney General's Guidlines, Assessments ⋯ require an authorized purpose but not any particular factual predication ⋯ . Likewise, in the exercise of its protective functions, the FBI is not constrained to wait until information is received indicating that a particular event, activity, or facility has drawn the attention of those who would threaten the national security. Rather, the FBI must take the initiative to secure and protect activities and entities whose character may make them attractive targets for terrorism or espionage. The proactive investigative authority conveyed in assessments is designed for, and may be utilized by the FBI in the discharge of these responsibilities.
185. OFFICE OF THE ATT'Y GEN., DEP'T OF JUSTICE, ATTORNEY GENERAL'S GUIDELINES FOR DOMESTIC FBI OPERATIONS 17 (2008), available at http://www.justice.gov/ag/ readingroom/guidelines.pdf.
186. See, e.g., Intelligence Reform: Hearing Before the S. Select Comm. on Intelligence, 110th Cong. 80 (2007) (statement of John S. Pistole, Deputy Director, Federal Bureau of Investigation) (describing the domain management process as a "continuous, systematic approach designed to achieve a comprehensive understanding of a geographic or substantive area of responsibility" that "provides the basis for investigative, intelligence, and management direction by enabling leaders to consider and select courses of action through the knowledge gained, identified gaps in knowledge, and identified gaps in capability").
187. For example, the FBI has engaged in this discretionary authority to tally the number of mosques in various jurisdictions without delving deeper into the significance of the information being gathered.
188. See Michael Isikoff, The FBI Says, Count the Mosques, NEWSWEEK, Feb. 3, 2003, at 6, 6 (noting that the launch of a new FBI initiative includes counting mosques).
189. See Press Release, John Miller, Assistant Dir., Office of Pub. Affairs, Fed. Bureau of Investigation, FBI Response to Congressional Quarterly Article Alleging Willie T. Hulon and Phil Mudd's Involvement in So-Called "Falafel Investigation" (Nov. 26, 2007), http://www.fbi.gov/pressrel/pressrel07/ editor112607.htm (denying a story attributing to senior FBI officials a plan to detect Iranian agents by tracking falafel sales in San Francisco grocery stores).
190. The expertise at issue is not, strictly speaking, a matter of familiarity with Islamic theology or legal doctrine. It is closer to an intimate acquaintance with the sociological dimensions of what Olivier Roy has dubbed the "third generation"-meaning the young Muslim men who are themselves frequently the products of parents who sought to assimilate into the cultural mainstream of Western Europe (or, by extension, the United States). OLIVIER ROY, GLOBALIZED ISLAM 2 (2004).
191. See BEUTEL, supra note 76, at 14 (relating that community-policing practices began in the 1980s); NELSON & BODURIAN, supra note 9, at 10 ("[L]ocal officials are intimately connected to the communities-like the Minneapolis Somali one-that global terrorist groups may seek to exploit.").
192. David A. Harris, The War on Terror, Local Police, and Immigration Enforcement: A Curious Tale of Police Power in Post-9/11 America, 38 RUTGERS L.J. 1, 46 (2006)
193. see also Chevigny, supra note 7, at 736 (quoting the 1960s vintage National Advisory Commission on Civil Disorders to the effect that police intelligence should use "undercover ⋯ personnel and informants, but ⋯ should also draw on community leaders, agencies, and organizations in the ghetto"). More generally, as RAND experts John Arquilla and David Ronfeldt have said, "conflicts may increasingly be waged by 'networks,' perhaps more than by 'hierarchies' ⋯ [and] whoever masters the network form stands to gain the advantage." John Arquilla & David Ronfeldt, The Advent of Netwar (Revisited), in NETWORKS & NETWARS 1, 1 (2001); cf. Chris Wilson, Searching For Saddam, SLATE, Feb. 22, 2010, http://www.slate.com/id/ 2245228 (exploring how social-networking techniques helped capture Saddam).
194. These analytic shortcomings are themselves related to a lack of funding and a lack of familiarity with the professional norms of the Intelligence Community, especially in the area of analysis.
195. See ROB JOHNSTON, ANALYTIC CULTURE IN THE U.S. INTELLIGENCE COMMUNITY 28-29 (2005) (highlighting the presence of a distinctive culture within the Intelligence Community, especially among analysts).
196. RILEY, supra note 24, at 58.
197. See Rascoff, supra note 23 (explaining how local law enforcement authorities have become a part of the "domestic intelligence apparatus" but noting that there is an "absence of agencies at the state and local level that are well positioned to understand and cabin the discretion of intelligence officials"). The purpose of this sort of analysis is not to locate the proverbial "needle in the haystack" but to take measure of the haystack itself.
198. This is an example of a troubling phenomenon in intelligence, namely overcollection of intelligence relative to capacity for analysis. See id. For a recent example, see Christopher Drew, Drone Flights Leave Military Awash in Data, N.Y. TIMES, Jan. 10, 2010, at A1 (describing the inability of the military and government agencies to analyze the flood of data received for intelligence purposes from drone aircraft).
199. See Craig Horowitz, The NYPD's War on Terror, NYMAG, Feb. 3, 2004, http://nymag.com/nymetro/news/features/n-8286/ (quoting Commissioner Ray Kelly's dismissive comments about the NYPD's own intelligence capacity prior to his comprehensive reforms: "[The NYPD's intelligence division] was an intelligence service in name only. We simply had to get better information. We didn't know what was going on in our own city, let alone the rest of the world.").
200. I discuss and take critical aim at fledgling attempts by the federal government to harness the power of local intelligence. See infra Part III.
201. See RILEY, supra note 23, at 58 (asserting that the ideal division of analytical labor would have local authorities taking the general guidance provided by federal officials and applying it to their local domain).
202. Herman was recently tapped to serve as president of the American Civil Liberties Union. American Civil Liberties Union, Susan N. Herman, President of the ACLU, http://www.aclu.org/leader/susan-n-herman-president-aclu.
203. See Susan N. Herman, Collapsing Spheres: Joint Terrorism Task Forces, Federalism, and the War on Terror, 41 WILLAMETTE L. REV. 941, 942 (2005) [hereinafter Herman, Collapsing Spheres] (describing a decision by the Portland City Council to withdraw local officers from JTTF);
204. Susan N. Herman, Introduction to Our New Federalism? National Authority and Local Autonomy in the War on Terror, 69 BROOK. L. REV. 1201, 1212-13 (2004) [hereinafter Herman, National Authority] (listing various local departments that refused to participate in FBI interviews post-9/11);
205. Tom Lininger, Federalism and Antiterrorism Investigations, 17 STAN. L. & POL'Y REV. 391, 393 (2006) (arguing for the use of state bar codes to regulate the conduct of federal government lawyers in antiterrorism prosecutions).
206. See Thacher, supra note 40, at 661-62 ("Local [Dearborn] police declined to conduct the interviews themselves, they went to great lengths to explain their participation in a qualified way, and they ultimately adopted the role (at least in part) of monitors for the federal agents and representatives of community concerns.").
207. See City of N.Y. Exec. Order No. 41 (Sept. 17, 2003) (prohibiting New York City officials from reporting an immigration violation to federal authorities absent evidence of the commission of a separate crime). A similar approach was taken by the International Association of Chiefs ofPolice, on the theory that enforcement by local officers of federal immigration laws would interfere on the vital relationships between police and immigrants, including illegal immigrants. Daniel Richman, The Past, Present, and Future of Violent Crime Federalism, 34 CRIME & JUST. 377, 411 (2006).
208. 505 U.S. 144 (1992).
209. 521 U.S. 898 (1997).
210. See, e.g., Herman, National Authority, supra note 93, at 1211 (asserting that while local governments "may not resist or limit federal enforcement efforts within their jurisdictions ⋯ because of Printz, they may not be required to offer their services to help").
211. See Young, supra note 25, at 1280 ("[F]ederalism has no dependable liberal or conservative valence as those terms are understood today in an intuitively political sense.");
212. cf. Richman, supra note 27 ("To some, the notion of police departments as bulwarks of civil liberties against federal encroachment might sound a bit odd.").
213. Skolnick, supra note 26, at 211-12. While Skolnick's observation pertains to New York City, the same logic may apply, with varying degrees of accuracy, to other cities and communities as well.
214. Marina Caparini, Controlling and Overseeing Intelligence Services in Democratic States, in DEMOCRATIC CONTROL OF INTELLIGENCE SERVICES 3 (Hans Born & Marina Caparini eds., 2007).
215. See Cass R. Sunstein, Terrorism and Probability Neglect, 26 J. RISK & UNCERTAINTY 121, 133 (2003) (proposing probability neglect, which is especially likely in the context of terrorism, as a partial explanation of public overreaction to highly publicized, low-probability risks).
216. Martin Innes, Policing Uncertainty: Countering Terror Through Community Intelligence and Democratic Policing, ANNALS AM. ACAD. POL. & SOC. SCI., May 2006, at 222, 235-36. But
217. see Adrian Vermeule, Posner on Security and Liberty: Alliance to End Repression v. City of Chicago, 120 HARV. L. REV. 1251, 1253 (2007) ("[F]or Judge Posner the central consideration in both opinions involved, not federalism or local government, but the scope of civil liberties against any level of government and the scope of executive authority to investigate potential terrorist groups."). Vermeule takes Judge Posner to mean that there is no upshot for the protection of rights in the national-security arena as between federal and state authority. Whether or not the exegesis is accurate, the insight is overstated. As I maintain, local authorities possess certain advantages in informal governance mechanisms while formal governance is somewhat more assured at the national level. See infra subpart II(B).
218. Richman, supra note 27.
219. See Thacher, supra note 40, at 644 ("The Dearborn case contributes to such study [of authority] by illustrating how surveillance and information-gathering can have chilling effects on a city's social life that may undermine trust and co-operation with police.").
220. See Tom R. Tyler et al., Legitimacy and Deterrence Effects in Counter-Terrorism Policing: A Study of Muslim Americans, 44 LAW & SOC'Y REV. (forthcoming 2010) (explaining that fair police procedures influence the perceived legitimacy of law enforcement and the willingness of people to co-operate with them).
221. The Department of Homeland Security's Office of Civil Rights and Civil Liberties has initiated dialogue on issues of radicalization, but thus far the program only covers approximately five communities across the country. VIOLENT ISLAMIST EXTREMISM, supra note 52, at 15. and while each of the FBI's fifty-six field offices has a Community Relations Unit, these units do not focus on issues of radicalization or, for that matter, terrorism.
222. Id.
223. See Jon M. Peha, Fundamental Reform in Public Safety Communications Policy, 59 FED. COMM. L.J. 517, 523 (2007) ("The advantages of local control are that local decisionmakers are able to match local resources (e.g., tax dollars) to the most pressing local needs.").
224. See, e.g., David Johnston, With Crime Up, a City's Police Force Questions the Focus on Terror, N.Y. TIMES, July 24, 2008, at A17 (reporting that the homeland security and terrorismrelated focus of federal resources and grants is limiting local law enforcement in its ability to fight community crime effectively).
225. The recent abuse of national security letters by the FBI supplies a good example of the dangers of this kind of "mission creep."
226. See, e.g., David Stout, F.B.I. Head Admits Mistakes in Use of Security Act, N.Y. TIMES, Mar. 10, 2007, at A1 (describing Congress's outraged response to reports that the FBI had used national security letters to improperly obtain personal information and business records). While it is true that local departments may want to stress their vulnerability to terrorism in order to compete for federal funding, it does not necessarily follow that the departments will actually devote resources to the issue once the cash is on hand.
227. Cf. Johnston, supra note 109 (reporting that local law enforcement officers would prefer more discretion in the use and allocation of federal resources to fight crime).
228. See REWRITING THE NARRATIVE, supra note 12, at 13-20 (recommending a comprehensive approach involving a number of strategic, functional, and organizational steps to counter radical Islamist extremism).
229. The First Amendment runs only against governmental actors. of central importance is the Establishment Clause as it functions to create "'a wall of separation between Church and State.'" Everson v. Bd. of Educ., 330 U.S. 1, 16 (1947) (quoting Reynolds v. United States, 98 U.S. 145, 164 (1878)). Establishment Clause jurisprudence is famously knotty, but has generally moved in the direction of greater tolerance for governmental endorsement of religion in society.
230. See, e.g., Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 35 (2004) (O'Connor, J., concurring in judgment) ("The Court has permitted government, in some instances, to refer to or commemorate religion in public life."). However much latitude the government may have to support religion in general, the deep engagement with Islam entailed by counterradicalization would seem to implicate precisely the "excessive government entanglement with religion" that has been consistently prohibited. Lemon v. Kurtzman, 403 U.S. 602, 613 (1971)
231. see also McCreary County v. ACLU, 545 U.S. 844, 881 (2005) (refusing to permit the display of the Ten Commandments in a county courthouse because the
232. Agostini v. Felton, 521 U.S. 203, 233 (1997) ("Not all entanglements, of course, have the effect of advancing or inhibiting religion⋯ .Entanglement must be 'excessive' before it runs afoul of the Establishment Clause."). A recent policy paper advocates community, rather than law enforcement, involvement in counterradicalization, although seemingly for reasons of effectiveness rather than compliance with the Bill of Rights.
233. See BEUTEL, supra note 76, at 16 ("Law enforcement must focus its energies on counterterrorism (i.e., criminal activities), not counterradicalization⋯ . The role Muslim communities should play is in counterradicalization efforts through better religious education, social programs and long-term constructive political engagement.").
234. President Obama has followed the pervasive federal practice of framing engagement with Islam as promoting "tolerance" and discouraging "extremism." In his speech at Cairo University, Obama invoked both concepts, asserting that "America is not-and never will be-at war with Islam. We will, however, relentlessly confront violent extremists who pose a grave threat to our security." Barack Obama, U.S. President, Remarks by the President on a New Beginning (June 9, 2009), available at http://www. whitehouse.gov/the-press-office/Remarks-by-the-President-at-Cairo-University-6- 04-09. Later in the speech, Obama began his discussion of religious freedom by noting that "Islam has a proud tradition of tolerance" before urging his audience to work to close the "fault lines" between Sunni and Shiites. Id. Whether governmental actors actually sidestep religious engagement by framing their normative account of Islam in these terms is an open question.
235. See Yvonne Yazbeck Haddad & Tyler Golson, Overhauling Islam: Representation, Construction, and Cooption of "Moderate Islam" in Western Europe, 49 J. CHURCH & ST. 487, 511-12 (2007) (describing two interventionist policies that Western European governments have converged on in attempting to establish a new Islam: institutionalizing representative Muslim bodies and facilitating the construction of Muslim spaces);
236. Robert Lambert, Salafi and Islamist Londoners: Stigmatised Minority Faith Communities Countering al-Qaida, 50 CRIME L. & SOC. CHANGE 73, 82-83 (2008) (discussing the effects of the British government's Sufi Muslim Council's description of two groups of U.K. Muslims, the Salafi and Islamist communities, as dangerous extremists, and openly siding with their religious opponents); Samuel J. Rascoff, Establishing "Official Islam" (June 2010) (unpublished manuscript, on file with author).
237. Richman, supra note 27.
238. Although my emphasis here is on the absence of formal governance mechanisms, it bears mentioning that a crucial informal tool is also missing from the local-intelligence-governance repertoire, namely historical consciousness. While measurement of historical awareness within an organization is inevitably difficult, it seems intuitively correct that practitioners of domestic intelligence at the federal level are more keenly aware of the excesses of the J. Edgar Hoover Era than local police are acquainted with the checkered history of Red Squads. To be certain, modern policing has become highly professionalized over the last generation, but that professionalization has typically come in areas of core crime fighting through modalities that allow management by numbers, such as the NYPD's COMPSTAT program. I thank Kenji Yoshino for raising this provocative idea.
239. See Chevigny, supra note 7, at 747-68 (discussing consent decrees resolving federal civil rights litigation in New York City, Chicago, and Memphis).
240. See Handschu v. Special Serv. Div., 605 F. Supp. 1384, 1417 (S.D.N.Y. 1985) (approving a consent decree for the NYPD in the context of investigations of political groups)
241. see also Steigman, supra note 7, at 765-70 (detailing litigation in September 2002 in which the Handschu consent decree was modified by judicial order).
242. But see RILEY, supra note 23, at 34 (noting the ways in which various local intelligence agencies have supplemented oversight by reference to external governance bodies); Raymond W. Kelly, The 2006 Paul Miller Distinguished Lecture: Safeguarding Citizens and Civil Liberties (Nov. 15, 2006) (discussing an external legal advisory board for NYPD intelligence, chaired by a distinguished member of the bar), in 59 RUTGERS L. REV. 555, 557-58 (2007).
243. RILEY, supra note 23, at 33.
244. For example, the New York City Council Public Safety Committee has never held a hearing about the oversight component of the NYPD Intelligence Division, which is funded entirely by private foundations. Pincus, supra note 16. As Committee Chair Peter Vallone Jr. put it, "The City Council does not have any real expertise in that area to conduct meaningful oversight. Perhaps some other system needs to be established." He went on to argue, "We should have oversight. That is what our forefathers envisioned when they came up with checks and balances. There is no way to perform an effective check if we weren't actually aware of what is happening."
245. Id.
246. of course, it is also true the congressional intelligence committees have fallen short in providing a robust check on Executive action.
247. See Rascoff, supra note 8 (noting that intelligence gathering at the subnational level has largely gone ungoverned). See generally Anne Joseph O'Connell, Intelligent Oversight (calling for more centralized congressional oversight over intelligence activities and stating that even after 9/11, intelligence committees complained that they were not receiving necessary information from Executive agencies), in THE IMPACT OF 9/11 AND THE NEW LEGAL LANDSCAPE 161-64 (Matthew Morgan ed., 2009).
248. See Rascoff, supra note 8 (describing how the role of judges in the governance of intelligence is limited).
249. See David A. Harris, Law Enforcement and Intelligence Gathering in Muslim and Immigrant Communities After 9/11, 34 N.Y.U. REV. L. & SOC. CHANGE (forthcoming 2010), http://papers.ssrn.com/sol3/papers.cfm?abstract-id=1330023 (suggesting that law enforcement and Muslim communities jointly negotiate limitations to the use of informants for counterterrorism intelligence gathering).
250. The first JTTF dates back to 1980, but the program was very substantially increased after 9/11. Press Release, Fed. Bureau of Investigation, Protecting America Against Terrorist Attack: A Closer Look at the FBI's Joint Terrorism Task Forces (Dec. 1, 2004), http://www.fbi.gov/page2/dec04/jttf120114.htm.
251. NYPD Deputy Commissioner Falkenrath has said, "The federal government, while well intentioned, has no overarching vision for terrorism-related information sharing with state and local agencies and no federal direction or leadership⋯ . At least three Cabinet-level officers ⋯ have substantial oversight responsibility for the federal government's information-sharing system; none of them appears truly engaged by the topic." Falkenrath, Hearing, supra note 43, at 20.
252. Federal Bureau of Investigation, supra note 35.
253. Department of Homeland Security, supra note 36.
254. Interagency Threat Assessment and Coordination Group, supra note 37. As Greg Treverton, an experienced student of domestic intelligence, recently put it, [T]hree different agencies seemed to have responsibility for intelligence connections with state and local officials after the 2004 Act [creating the Director of National Intelligence]: the DHS, which had the congressional mandate;
255. the FBI, which had the troops in the field through its field offices and JTTFs; and the ODNI, which had the stake. GREGORY F. TREVERTON, INTELLIGENCE FOR AN AGE OF TERROR 114 (2009).
256. Judge Posner acknowledges that neither the DHS nor the FBI model of reaching out to local officials is adequate, but believes that an MI5-like organization would do better. As he explains,MI5 has been able to do what the FBI and the Department of Homeland Security have been unable to do-integrate local police into the national domestic intelligence system. It is a vital mission. Local police, border patrol, customs officers, and private security and intelligence personnel gather enormous masses of information at the source, as it were. They are well positioned to notice anomalies that may be clues to terrorist plotting. We need an agency that will integrate local police and other information gatherers into a comprehensive national intelligence network, as MI5 has done in Britain. POSNER, supra note 15, at 155-56.
257. JTTFs are not designed solely to achieve collaboration between federal and subfederal actors;
258. much of the "joint-ness" achieved by JTTFs is a function of co-operation within the federal government.
259. Cf. Brig Barker & Steve Fowler, The FBI Joint Terrorism Task Force Officer, FBI L. ENFORCEMENT BULL., Nov. 2008, at 12, 13 (reporting that 24% of personnel within JTTFs are from state and local law enforcement agencies and that 17% are from non-FBI federal agencies).
260. See Robert A. Martin, The Joint Terrorism Task Force: A Concept That Works, FBI L. ENFORCEMENT BULL., Mar. 1999, at 23, 25 (observing that the NYPD brings insights to a JTTF that come from years of living and working with New Yorkers); Federal Bureau of Investigation, supra note 37 (indicating that a primary benefit of a JTTF is intelligence sharing across agencies).
261. See, e.g., Herman, Collapsing Spheres, supra note 93, at 951-53 (discussing the degree to which the terms of the JTTF agreement between the FBI and the City of Portland, Oregon, led to problematic federal control of local police officers).
262. For example, the Dearborn, Michigan police department contributes a single officer to the local JTTF. Thacher, supra note 40, at 665.
263. See generally Barker & Fowler, supra note 128, at 13 (reporting that 24% of personnel within JTTFs are from state and local law enforcement agencies and that 17% are from non-FBI federal agencies).
264. Local politicians (including the mayor of Dearborn) emphasize that they have no dealings with the officer assigned to the JTTF to underscore that at the local level, they are not involved in the gathering of intelligence.
265. See Barker & Fowler, supra note 128, at 13 ("Mayor Guido, for example, emphasized the city's hands-off relationship with the officer who serves as their primary liaison to the task force ⋯ ."). As one commentator has put it, "the city maintains considerable distance between [the officer dedicated to the JTTF] and the rest of city government, as if to insulate itself from the contaminating effects of offender search activities.
266. Id. at 666.
267. Although there are some 100 JTTFs around the country, Press Release, supra note 122, many of them have their ownbranches dedicated to monitoring foreign areas of responsibility such as the Horn of Africa, Saudi Arabia, and Iraq. Guy Lawson, The Fear Factory, ROLLING STONE, Feb. 2008, at 60-65. This global approach flies in the face of the ground-up counterterrorism intelligence gathering practiced by local police and is unnecessary given the availability of sound intelligence on these areas coming out of the core intelligence agencies headquartered in Washington, D.C. For a recent critical assessment of the work of the JTTFs, see Lawson, supra.
268. See supra subpart I(A).
269. Intelligence Reform: Hearing Before the S. Select Comm. on Intelligence, 110th Cong. 80 (2007) (statement of John S. Pistole, Deputy Director, Fed. Bureau of Investigation).
270. See MICHAEL GERMAN & JAY STANLEY, AM. CIVIL LIBERTIES UNION, WHAT'S WRONG WITH FUSION CENTERS? 6 (2007), available at http://www.aclu.org/pdfs/ privacy/fusioncenter-20071212.pdf ("Intelligence fusion centers grew in popularity among state and local law enforcement officers as they sought to establish a role in defending homeland security by developing their own intelligence capabilities. These centers evolved largely independently of one another ⋯ and were individually tailored to meet local and regional needs."). As of 2009, there were seventy-two Fusion Centers nationwide. Department of Homeland Security, State and Local Fusion Centers, http://www.dhs.gov/files/programs/gc-1156877184684.shtm (last modified Sept. 16, 2009).
271. One commentator recently noted, [I]t is widely accepted that effective intelligence processes are essential in terrorism prevention, and that state, local, and tribal law enforcement and other public sector agencies are in a unique position to play a role in this process. There is agreement that as the majority of critical infrastructure sites in the country are owned and/or operated by the private sector, that it too has an important role to play. However, the uneven, grassroots development of fusion centers, devoid of strong federal direction and national consensus on their mission, scope, and 'ownership' threatens the value of their contribution and increases the risk of abuse. Siobhan O'Neil, The Relationship Between the Private Sector and Fusion Centers: Potential Causes for Concern and Realities, HOMELAND SECURITY AFF., Apr. 2008 (Supp. 2), at 3-4.
272. Ryan Singel, Feds Tout New Domestic Intelligence Centers, WIRED, Mar. 20, 2008, http://www.wired.com/threatlevel/2008/03/feds-tout-new-d;
273. see also U.S. GOV'T ACCOUNTABILITY OFFICE, GAO-08-35 HOMELAND SECURITY: FEDERAL EFFORTS ARE HELPING TO ALLEVIATE SOME CHALLENGES ENCOUNTERED BY STATE AND LOCAL FUSION CENTERS 5 (2007) ("Themajority [of the centers] had missions and scopes of operations that included more than just counterterrorism-related activities, such as collecting, analyzing, and disseminating criminal as well as terrorism-related information.").
274. See Zoe Baird, Why Information Sharing Is Not Always Enough, FED. COMPUTER WK., Feb. 17, 2010, http://fcw.com/articles/2010/02/22/comment-zoe- baird-markle-national-security.aspx ("The job isn't done when information is shared but rather when it is thoroughly analyzed by people not only collecting the dots but also connecting them."). That Fusion Centers are distributed evenly across the states suggests another flaw: that the widely disparate vulnerabilities that states face visà-vis terrorism have not been accounted for. Cf. Eric Lipton, Homeland Security Grants to New York Slashed, N.Y. TIMES, May 31, 2006, at A1 (detailing how security grants were cut for cities such as New York City and Washington D.C. while cities such as Omaha and Louisville "got a surge of new dollars").
275. DEP'T. OF JUSTICE & DEP'T OF HOMELAND SEC., FUSION CENTER GUIDELINES: DEVELOPING AND SHARING INFORMATION AND INTELLIGENCE IN A NEW WORLD 2 (2005), available at http://www.fas.org/irp/agency/ise/guidelines.pdf ("The concept of fusion has emerged as the fundamental process to facilitate the sharing of homeland security-related and crime-related information and intelligence. For purposes of this initiative, fusion refers to the overarching process of managing the flow of information and intelligence across levels and sectors of government."). Other DHS- and FBI-led initiatives in counterradicalization- focused outreach have also proved unsuccessful at combining federal and state strengths.
276. See VIOLENT ISLAMIST EXTREMISM, supra note 52, at 15 (observing that "the efforts by [DHS Office of Civil Rights and Civil Liberties] and the FBI's Community Relations Unit are not tied into programs administered by local police departments, some of which are quite comprehensive").
277. I & A Reconceived: Defining a Homeland Security Intelligence Role: Hearing Before the Subcomm. on Intelligence, Information Sharing and Terrorism Risk Assessment of the H. Comm. on Homeland Security, 111th Cong. (2009) (statement of Bart R. Johnson, Acting Under Secretary for Intelligence and Analysis, Department of Homeland Security), available at http://homeland.house. gov/siteDocuments/20090924104844-11233.pdf
278. see also id. ("Central to this proposal is the establishment, at the Secretary's direction, of a new Joint Fusion Center Program Management Office"). The Department of Defense has also recently sought to share more intelligence with subnational entities via the Fusion Centers. Press Release, Dept. of Def., DOD Announces New Information-Sharing Access to Help Fusion Centers Combat Terrorism (Sept. 14, 2009), http://www.defense.gov/Releases/ Release.aspx?ReleaseID=12974.
279. Nevertheless, Fusion Centers remain part of the contemporary institutional landscape.
280. See NATIONAL SECURITY STRATEGY, supra note 13, at 20 ("To prevent acts of terrorism on Americansoil ⋯ [w]e will continue to integrate and leverage state and major urban area fusion centers that have the capability to share classified information ⋯ .").
281. See PROGRAM MANAGER, INFO. SHARING ENV'T, REPORT ON THE INTERAGENCY THREAT ASSESSMENT AND COORDINATION GROUP: SECOND REPORT FOR THE CONGRESS OF THE UNITED STATES, THE SECRETARY OF HOMELAND SECURITY, AND THE DIRECTOR OF NATIONAL INTELLIGENCE 17 (2009) [hereinafter PROGRAM MANAGER REPORT] available at http://www.ise.gov/docs/ITACG-Status-Report-PM-ISE-FINAL-24Nov09.pdf, (demonstrating the difficulty of evaluating the program at such an early stage)
282. id. at 20
283. (listing the names of the six state and local law enforcement and emergency personnel currently assigned to the ITACG Detail).
284. See Homeland Security Intelligence at a Crossroads: The Office of Intelligence & Analysis' Vision for 2008: Hearing Before the Subcomm. on Intelligence, Information Sharing and Terrorism Risk Assessment of the H. Comm. on Homeland Security, 110th Cong. (2008) (statement of Rep. Jane Harman, Chairwoman, Subcomm. on Intelligence, Information Sharing and Terrorism Risk Assessment), available at http://homeland.house.gov/SiteDocuments/ 20080227111045-34957.pdf (pronouncing that ITACG will remain and expand despite resistance by other agencies). In her prepared statement before the February 26, 2008, hearing, Chairwoman Harman castigated veteran CIA official Charlie Allen, who runs DHS's Intelligence and Analysis office. "Bottom line, Charlie: you are not effectively serving the State and [local officials] who are the people who will prevent the next attack."
285. Id.
286. The Group began as part of WHITE HOUSE, NATIONAL STRATEGY FOR INFORMATION SHARING 18 (2007), available at http://georgewbushwhitehouse.archives.gov/nsc/ infosharing/NSIS-book.pdf, and was more recently signed into law as part of the Implementing Recommendations of the 9/11 Commission Act of 2007, Pub. L. No. 110-53, sec. 521, § 210D, 121 Stat. 266, 328-32 (to be codified at 6 U.S.C. § 124k). The Group consists of a Detail and an Advisory Group.
287. Id. § 210D(b).
288. The purpose of the Detail is to "integrat[e], analyz[e], and assist[]in the dissemination of federally-coordinated information within the scope of the information sharing environment, including homeland security information, terrorism information, and weapons of mass destruction information, through appropriate channels identified by the ITACG Advisory Council."
289. Id. § 210D(b)(2).
290. Id.
291. see also WHITE HOUSE, supra note 144, at 18-19 (discussing the purposes of creating the ITACG). It was located in the NCTC over the vigorous objection of DHS, which sought a monopoly over counterterrorism information sharing with state and local entities. At a February 26, 2008, hearing of the House of Representatives Homeland Security Committee's Subcommittee on Intelligence, Information Sharing and Terrorism Risk Assessment, Chairwoman Jane Harman noted that she had "a major issue with [DHS's] endless refusal to take the ITACG seriously and to build a robust State, local, and tribal presence at the NCTC that makes the intelligence production process for State and locals better." Homeland Security Intelligence at a Crossroads, supra note 143. The key word here is "production"-which signifies a role for the local entity in producing intelligence, not merely in consuming it. The NYPD has actually dispatched an officer to sit among the federalofficials at NCTC (not through ITACG). Tina Moore, U.S. Snoops Get NYPD Lift to Sniff Out Qaeda, N.Y. DAILY NEWS, Mar. 26, 2008, at 8. 50 U.S.C. § 404o(d) (2006)
292. see also RICHARD A. BEST JR., CONG. RESEARCH SERV., THE NATIONAL COUNTERTERRORISM CENTER (NCTC)-RESPONSIBILITIES AND POTENTIAL CONGRESSIONAL CONCERNS 4 (2010) (referring to the current NCTC charter which includes providing "strategic operational plans for military and civilian counterterrorism efforts and for effective integration of counterterrorism intelligence and operations across agency boundaries within and outside the US").
293. See, e.g., Edward J. Tully & E.L. Willoughby, Terrorism: The Role of Local and State Agencies, NAT'L EXECUTIVE INST. ASSOCIATES ET AL., May 2002, http://www.neiassociates.org/state-local.htm (criticizing federal law enforcement and intelligence attitudes towards local and state agencies as the principal flaw in their ability to combat terroristic threats).
294. PROGRAM MANAGER REPORT, supra note 142, at 5.
295. See id. at 10
296. (detailing the daily operations of the ITACG Detail (made up of state, local, and tribal (SLT) personnel), including "assist[ing] in identifying time-sensitive terrorism threats to locations within the United States" and "identif[ying] suitable strategic and foundational assessments as candidates for downgrading or tailoring for dissemination to SLT and private sector consumers").
297. As I have argued elsewhere, these goals are mutually reinforcing.
298. See Rascoff, supra note 8 ("Not only does rationality review pave the way for more accurate and more rights-protective intelligence, it also lays the methodological foundation for a more coordinated and consistent intelligence process, and one with more robust and centralized accountability mechanisms.").
299. I use the term "rationality" in an expansive sense, to embrace ideas of cost-benefit analysis and cost effectiveness, as well as more explicitly normative judgments.
300. Id.
301. See The White House, Office of Management and Budget, Information and Regulatory Affairs, http://www.whitehouse.gov/omb/inforeg-default/ ("OIRA carries out several important functions, including reducing paperwork burdens, reviewing Federal regulations, and overseeing policies relating to privacy, information quality, and statistical programs.").
302. For an extensive discussion on the potential for regulatory oversight of intelligence
303. see Rascoff, supra note 8.
304. See, e.g., Andrea Elliott, A Call to Jihad, Answered in America, N.Y. TIMES, July 12, 2009, at A1 (chronicling the rise of young ethnically Somali jihadists in Minneapolis).
305. Id.
306. See Jesse Ellison, The Refugees Who Saved Lewiston, NEWSWEEK, Jan. 17, 2009, at 69 (describing the recent influx of Somali refugees into Lewiston, Maine).
307. See Michael A. Sheehan, Op-Ed., The Terrorist Next Door, N.Y. TIMES, May 4, 2010, at A31 (arguing that concerns about the potential financial and political costs have caused local departments to be leery of covert intelligence gathering).
308. NATIONAL SECURITY STRATEGY, supra note 13, at 20 ("We are improving information sharing and cooperation by linking networks to facilitate Federal, state, and local capabilities to seamlessly exchange messages and information ⋯ .").
309. Local intelligence collaboration is a vital piece of the puzzle. An example is supplied by the NYPD's Operation Sentry, which brings together members of police departments throughout the extended New York City Metropolitan area.
310. See Press Release, NYPD, NYPD Convenes Operation Sentry Members for Annual Conference (May 5, 2009), http://www.nyc.gov/html/nypd/html/pr/pr-2009- ph10.shtml.
311. The creation of a non-Washington-centric Information Sharing Environment in which "[a]ll players in th[e] network-including those at the edges-would be able to create and share actionable and relevant information" has been vigorously advocated by the Markle Foundation as early as 2003. TASK FORCE ON NAT'L SEC. IN THE INFO. AGE, MARKLE FOUND., CREATING A TRUSTED INFORMATION NETWORK FOR HOMELAND SECURITY 8 (2003). As of yet, nothing approaching that framework has been implemented.
312. Stewart A. Baker, Should Spies Be Cops?, FOREIGN POL'Y, Winter 1994-1995, at 36.
313. See supra Part III.
314. See James B. Comey, Intelligence Under the Law, 10 GREEN BAG 2D 439, 443-44 (2007) ("We know that there may be agonizing collisions between our duty to protect and our duty to that constitution and the rule of law⋯ . [I]n the long-run, intelligence under law is the only sustainable intelligence in this country.").