National security federalism in the age of terror

Stanford Law Review

Volumn 64, Issue 2, 2012, Pages 289-350

  Waxman, Matthew C ^a  

^a Columbia Law School ^*  (United States)

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EID: 84857951616     PISSN: 00389765     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (492)

1. See, e.g., Samuel Issacharoff & Richard H. Pildes, Between Civil Libertarianism and Executive Unilateralism: An Institutional Process Approach to Rights During Wartime, 5 THEORETICAL INQUIRIES L. 1 (2004).
2. Mark Tushnet, Controlling Executive Power in the War on Terrorism, 118 HARV. L. REV. 2673 (2005).
3. See William J. Stuntz, Local Policing After the Terror, 111 YALE L.J. 2137, 2139 (2002).
4. See Mark A. Randol, CONG. RESEARCH SERV., R40901, TERRORISM INFORMATION SHARING AND THE NATIONWIDE SUSPICIOUS ACTIVITY REPORT INITIATIVE: BACKGROUND AND ISSUES FOR CONGRESS 3 (2009).
5. See William Bloss, Escalating U.S. Police Surveillance After 9/11: An Examination of Causes and Effects, 4 SURVEILLANCE & SOC'Y 208 (2007).
6. See Nick Madigan, Spying Uncovered, BALT. SUN, July 18, 2008, at 1A.
7. See Andrea Elliott, As Police Watch for Terrorists, Brooklyn Muslims Feel the Eyes, N.Y. TIMES, May 27, 2006, at A1.
8. See Robert O'Harrow Jr., Centers Tap into Personal Databases; State Groups Were Formed After 9/11, WASH. POST, Apr. 2, 2008, at A1.
9. 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) (discussing challenges arising from greater state and local involvement in protecting national security).
10. See Paul G. Chevigny, Politics and Law in the Control of Local Surveillance, 69 CORNELL L. REV. 735 (1984).
11. David E. Kaplan, Spies Among Us, U.S. NEWS & WORLD REP., May 8, 2006, at 41, 44.
12. See Mary M. Cheh, Legislative Oversight of Police: Lessons Learned from an Investigation of Police Handling of Demonstrations in Washington, D.C., 32 J. LEGIS. 1, 1 (2005).
13. See K. Jack Riley et al., STATE AND LOCAL INTELLIGENCE IN THE WAR ON TERRORISM 31 (2005).
14. See Electronic Surveillance Laws, NAT'L CONF. ST. LEGISLATURES, http://www.ncsl.org/IssuesResearch/TelecommunicationsInformationTechnology/ElectronicSurveillanc eLaws/tabid/13492/Default.aspx (last updated Aug. 29, 2010), for a survey of these state laws.
15. For a compilation of state and local law regarding racial profiling that illustrates this variation.
16. see Racial Profiling: The State of the Law, POLICE FOUND. (Mar. 2005), http://www.policefoundation.org/pdf/racialprofilingDelete.pdf.
17. David H. Bayley & David Weisburd, Cops and Spooks: The Role of the Police in Counterterrorism, in TO PROTECT AND TO SERVE: POLICING IN AN AGE OF TERRORISM 81, 86 (David Weisburd et al. eds., 2009).
18. I borrow and modify here the definitions used by Edward Rubin and Malcolm Feeley.
19. See Edward L. Rubin & Malcolm Feeley, Federalism: Some Notes on a National Neurosis, 41 UCLA L. REV. 903, 910-14 (1994).
20. As they explain, "[F]ederalism allows the states to vary as they choose, pursuing their own policies instead of the national one. This can be justified only by arguments favoring a variety of policies, not by arguments favoring the implementation of a single policy by a variety of methods."
21. Id. at 914.
22. I use here the term "localism" rather than their "federalism" because I am primarily interested in actions at the municipal level. Roderick Hills draws a similar distinction between "managerial decentralization" and "democratic decentralization."
23. See Roderick M. Hills, Jr., Is Federalism Good for Localism? The Localist Case for Federal Regimes, 21 J.L. & POL. 187, 192 (2005).
24. See Bayley & Weisburd, supra note 14, at 86.
25. citing dearth of systematic assessments of post-9/11 police departments and activities).
26. See generally Richard Briffault, "What About the 'Ism'?" Normative and Formal Concerns in Contemporary Federalism, 47 VAND. L. REV. 1303, 1307-09 (1994) (discussing differences between the federal-state relationship and the state-local relationship).
27. See Charles R. Wise & Rania Nader, Organizing the Federal System for Homeland Security: Problems, Issues, and Dilemmas, 62 PUB. ADMIN. REV. 44, 49 (2002).
28. see also NAT'L GOVERNORS ASS'N CTR. FOR BEST PRACTICES, 2007 STATE HOMELAND SECURITY DIRECTORS SURVEY 5 (2007), available at http://www.nga.org/files/live/sites/NGA/files/pdf/0712HOMELANDSURVEY.PDF (reporting wide variation among states in the level of state-local government coordination on homeland security issues).
29. See Peter Eisinger, Imperfect Federalism: The Intergovernmental Partnership for Homeland Security, 66 PUB. ADMIN. REV. 537, 541-42 (2006) (explaining that federal-local homeland security partnerships are largely run through state governments).
30. THE FEDERALIST NO. 51, at 323 (James Madison) (Clinton Rossiter ed., 1961).
31. see also THE FEDERALIST NO. 28 (Alexander Hamilton), supra (discussing mutual checks between federal and state governments).
32. See Abraham D. Sofaer, WAR, FOREIGN AFFAIRS AND CONSTITUTIONAL POWER 21-38 (1976).
33. See Allan R. Millet & Peter Maslowski, FOR THE COMMON DEFENSE: A MILITARY HISTORY OF THE UNITED STATES OF AMERICA 88 (1984).
34. Jason Mazzone, The Security Constitution, 53 UCLA L. REV. 29, 39-47 (2005).
35. See Akhil Reed Amar, AMERICA'S CONSTITUTION 116-19 (2005).
36. MILLET & MASLOWSKI, supra note 22, at 88-90.
37. See Richard Franklin Bensel, Yankee Leviathan: THE ORIGINS OF CENTRAL STATE AUTHORITY IN AMERICA, 1859-1877, at 94-237 (1990).
38. See Paul Foos, A SHORT, OFFHAND, KILLING AFFAIR: SOLDIERS AND SOCIAL CONFLICT DURING THE MEXICAN-AMERICAN WAR 171 (2002).
39. The blue [U.S. Army] uniform had been a badge of shame for Mexican War volunteers; it quickly became an honorable symbol of national service in the Civil War.
40. see also Amar, supra note 23, at 380.
41. Edward Corwin argued that World War II mobilization and post-war national security imperatives came at the expense of dual federalism.
42. See Edward Samuel Corwin, TOTAL WAR AND THE CONSTITUTION 70, 173-74 (1947).
43. See Douglas T. Stuart, CREATING THE NATIONAL SECURITY STATE: A HISTORY OF THE LAW THAT TRANSFORMED AMERICA 180-273 (2008).
44. See Laura K. Donohue, Anglo-American Privacy and Surveillance, 96 J. CRIM. L. & CRIMINOLOGY 1059, 1072-77 (2006).
45. See William W. Keller, THE LIBERALS AND J. EDGAR HOOVER 154-89 (1989).
46. William C. Banks & M.E. Bowman, Executive Authority for National Security Surveillance, 50 AM. U. L. REV. 1, 20 (2000).
47. See Geoffrey R. Stone, PERILOUS TIMES: FREE SPEECH IN WARTIME FROM THE SEDITION ACT OF 1798 TO THE WAR ON TERRORISM 220-26 (2004).
48. For a history of these episodes, see generally Richard E. Morgan, DOMESTIC INTELLIGENCE: MONITORING DISSENT IN AMERICA (1980).
49. On the House side, Representative Otis Pike chaired a similar committee investigation. See Loch K. Johnson, Congressional Supervision of America's Secret Agencies: The Experience and Legacy of the Church Committee, 64 PUB. ADMIN. REV. 3, 10 (2004).
50. President Ford also created the Commission on CIA Activities Within the United States.
51. Banks & Bowman, supra note 29, at 32.
52. S. REP. NO. 94-755, bk. 2, at 68 (1976).
53. Id. at 78.
54. On the role of the CIA in recruiting local agency partners, see id. at 103.
55. Id. at 78.
56. See generally Richard A. Best, Jr., CONG. RESEARCH SERV., RL32500, PROPOSALS FOR INTELLIGENCE REORGANIZATION, 1949-2004, at 19-26 (2004) (discussing the work and recommendations of the Rockefeller Commission, Church Committee, and Pike Committee).
57. See Frederick M. Kaiser, CONG. RESEARCH SERV., RL32525, CONGRESSIONAL OVERSIGHT OF INTELLIGENCE: CURRENT STRUCTURE AND ALTERNATIVES 27-29 (2008).
58. Loch K. Johnson, Ostriches, Cheerleaders, Skeptics, and Guardians: Role Selection by Congressional Intelligence Overseers, 28 SAIS REV. 93, 104-06 (2008).
59. See Frederick M. Kaiser, A Proposed Joint Committee on Intelligence: New Wine in an Old Bottle, 5 J.L. & POL. 127, 130-38 (1988).
60. See Johnson, supra note 32, at 5-12.
61. See Foreign Intelligence Surveillance Act of 1978, Pub. L. No. 95-511, §§ 102-103, 92 Stat. 1783, 1786-1788 (to be codified as amended at 50 U.S.C. §§ 1802-1803).
62. Gregory F. Treverton, REORGANIZING U.S. DOMESTIC INTELLIGENCE: ASSESSING THE OPTIONS 8 (2008) (discussing FISA and the "wall" between intelligence and law enforcement).
63. See Banks & Bowman, supra note 29, at 35, 68-70.
64. See Paul C. Light, Federal Inspectors General and the Paths to Accountability, in HANDBOOK OF ADMINISTRATIVE ETHICS 387, 388-92 (Terry L. Cooper ed., 2d ed. 2000).
65. These executive oversight mechanisms included the Intelligence Oversight Board created by President Ford in Executive Order No. 11,905, 3 C.F.R. 90 (1976), reprinting 41 Fed. Reg. 7703 (Feb. 19, 1976).
66. See, e.g., Frederick M. Kaiser, Congressional Oversight of the Presidency, 499 ANNALS AM. ACAD. POL. & SOC. SCI. 75 (1988).
67. This debate has also continued regarding post-9/11 oversight. See, e.g., Amy B. Zegart, EYES ON SPIES: CONGRESS AND THE UNITED STATES INTELLIGENCE COMMUNITY 1-11 (2011).
68. Christopher M. Ford, Intelligence Demands in a Democratic State: Congressional Intelligence Oversight, 81 TUL. L. REV. 721 (2007).
69. See BUREAU OF JUSTICE ASSISTANCE, U.S. DEP'T OF JUSTICE, INTELLIGENCE-LED POLICING: THE NEW INTELLIGENCE ARCHITECTURE 5 (2005).
70. Edward R. Maguire & William R. King, Trends in the Policing Industry, 593 ANNALS AM. ACAD. POL. & SOC. SCI. 15, 19 (2004).
71. Samuel J. Rascoff, Domesticating Intelligence, 83 S. CAL. L. REV. 575, 593-94 (2010).
72. See generally Chevigny, supra note 9 (discussing litigation related to local intelligence abuses and resulting reforms).
73. Frank Donner, PROTECTORS OF PRIVILEGE: RED SQUADS AND POLICE REPRESSION IN URBAN AMERICA 346 (1990).
74. See id. at 90-145, 353.
75. See id. at 300-05.
76. See id. at 296-98.
77. See Chitra Ragavan, Who Ya Gonna Call?, U.S. NEWS & WORLD REP., May 20, 2002, at 14 (describing the retooling of the FBI to combat terrorism after 9/11).
78. See William C. Banks, And the Wall Came Tumbling Down: Secret Surveillance After the Terror, 57 U. MIAMI L. REV. 1147, 1148 (2003).
79. See Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations for 2004: Hearing Before a Subcomm. of the H. Comm. on Appropriations, 108th Cong. 10-17 (2003) (statement of Robert Mueller, Director, FBI), available at http://www.fbi.gov/news/testimony/progress-report-on-the-reorganization-and-refocus-of-the-fbi.
80. See Charlie Savage, F.B.I. Casts Wide Net Under Relaxed Rules for Terror Inquiries, Data Show, N.Y. TIMES, Mar. 27, 2011, at A19.
81. See About the Office of Intelligence and Analysis, DEP'T HOMELAND SECURITY, http://www.dhs.gov/xabout/structure/gc_1220886590914.shtm (last modified Aug. 26, 2011).
82. See Eric Lichtblau & James Risen, Top Aide Defends Domestic Spying, N.Y. TIMES, Feb. 7, 2006, at A1.
83. See Eric Lichtblau et al., Reported Drop in Surveillance Spurred a Law, N.Y. TIMES, Aug. 11, 2007, at A1.
84. See 50 U.S.C. §§ 403, 404(o) (2006).
85. See, e.g., Richard C. Shelby, SEPTEMBER 11 AND THE IMPERATIVE OF REFORM IN THE U.S. INTELLIGENCE COMMUNITY 75-76 (2002), available at http://intelligence.senate.gov/shelby.pdf.
86. William E. Odom, Editorial, Why the FBI Can't Be Reformed, WASH. POST, June 29, 2005, at A21.
87. See Who We Are, MI-5, https://www.mi5.gov.uk/output/who-we-are.html (last visited Feb. 16, 2012).
88. See Louie Freeh, Letter to the Editor, Former FBI Director Says U.S. Doesn't Need a National Police Force, WALL ST. J., Mar. 31, 2007, at A9.
89. Ronald Kessler, Editorial, No to an American MI5, WASH. POST, Jan. 5, 2003, at B7.
90. NAT'L COMM'N ON TERRORIST ATTACKS UPON THE U.S., THE 9/11 COMMISSION REPORT 423 (2004) [hereinafter 9/11 COMMISSION REPORT].
91. Memorandum from Attorney Gen. John Ashcroft to All U.S. Attorneys (Nov. 13, 2001), available at http://www.fas.org/irp/agency/doj/agdirective5.pdf.
92. 9/11 COMMISSION REPORT, supra note 61, at 390.
93. see also id. at 401 (A 'smart' government would integrate all sources of information to see the enemy as a whole.
94. See id. at 215-41, 416-18.
95. The influential Markle Foundation Task Force on National Security in the Information Age likewise concluded that a new nationwide intelligence architecture was needed to link information horizontally among agencies and vertically among levels of government.
96. See Markle Found. TASK FORCE ON NAT'L SEC. IN THE INFO. AGE, PROTECTING AMERICA'S FREEDOM IN THE INFORMATION AGE 48 (2002).
97. See generally Dina Temple-Raston, THE JIHAD NEXT DOOR: THE LACKAWANNA SIX AND ROUGH JUSTICE IN THE AGE OF TERROR (2007) (describing the post-9/11 concern with sleeper cells inside the United States).
98. The 1990s alone saw the 1993 World Trade Center bombing, the Oklahoma City bombing, and the series of attacks by "Unabomber" Theodore Kaczynski.
99. See Banks & Bowman, supra note 29, at 97-106.
100. COUNCIL OF STATE GOV'TS & E. KY. UNIV., THE IMPACT OF TERRORISM ON STATE LAW ENFORCEMENT: ADJUSTING TO NEW ROLES AND CHANGING CONDITIONS 9 (2006). One major survey in the mid-1990s found that only about thirty-eight percent of state and local governments had contingency plans for dealing with terrorist threats; another forty percent reported never having had contact with federal agencies regarding terrorism issues.
101. See Kevin Jack Riley & Bruce Hoffman, DOMESTIC TERRORISM: A NATIONAL ASSESSMENT OF STATE AND LOCAL PREPAREDNESS 26, 31 (1995).
102. See COUNCIL OF STATE GOV'TS & E. KY. UNIV., supra note 67, at 24.
103. citing survey results that ninety-two percent of state law enforcement agencies reported allocating more or many more resources for intelligence gathering, analysis, and sharing since September 2001.
104. For views from the local government level, see, for example, INT'L ASS'N OF CHIEFS OF POLICE, INTELLIGENCE-LED POLICING: THE NEW INTELLIGENCE ARCHITECTURE 23 (2005).
105. But see Riley et al., supra note 11, at 27.
106. discussing survey findings suggesting that counterterrorism intelligence is not as pervasive a function among local law enforcement agencies as some believe.
107. Cynthia Lum et al., Police Activities to Counter Terrorism: What We Know and What We Need to Know, in TO PROTECT AND TO SERVE: POLICING IN AN AGE OF TERRORISM, supra note 14, at 101, 115.
108. citing survey showing that very few police forces have specialized intelligence analysts or intelligence units dedicated to terrorism, and that these features are virtually nonexistent in small agencies.
109. See NAT'L CRIMINAL JUSTICE ASS'N, SERVING AND PROTECTING IN THE SHADOW OF TERRORISM 2 (2003).
110. See Riley et al., supra note 11, at 1.
111. The term has many different meanings, but generally "community policing" is "a partnership philosophy that increases collaboration (or at least consultation) between the community and the police, decentralises police organisational hierarchy, gives greater discretion to lower ranks, places greater influence in the hands of the community in determining police priorities, and promotes a social service ethos."
112. Jerry Ratcliffe, INTELLIGENCE-LED POLICING 3 (2008).
113. See Badi Hasisi et al., The Impacts of Policing Terrorism on Society: Lessons from Israel and the US, in TO PROTECT AND TO SERVE: POLICING IN AN AGE OF TERRORISM, supra note 14, at 177, 181-87.
114. As discussed later in this Article, however, there is a danger that perceptions of police spying and biases against minority communities could erode policecommunity trust and therefore render police involvement in counterterrorism intelligence counterproductive.
115. See Faiza Patel, BRENNAN CTR. FOR JUSTICE, RETHINKING RADICALIZATION 23-25 (2011).
116. See generally Tom R. Tyler et al., Legitimacy and Deterrence Effects in Counterterrorism Policing: A Study of Muslim Americans, 44 LAW & SOC'Y REV. 365 (2010).
117. Arguing, based on empirical studies, that perceptions of procedural fairness promotes communities' cooperation with police.
118. See DHS: The Path Forward: Hearing Before the H. Comm. on Homeland Sec., 111th Cong. 6-10 (2009) (testimony of Janet Napolitano, Secretary of the Department of Homeland Security).
119. see also Dana Priest & William M. Arkin, Monitoring America, WASH. POST, Dec. 20, 2010, at A1 (describing growth of state and local intelligence capabilities).
120. Intelligence Reform and Terrorism Prevention Act of 2004, 6 U.S.C. § 485 (2006 & Supp. IV 2010).
121. OFFICE OF THE DIR. OF NAT'L INTELLIGENCE, UNITED STATES INTELLIGENCE COMMUNITY INFORMATION SHARING STRATEGY 18 (2008).
122. See Peter Neumann, NAT'L SEC. PREPAREDNESS GRP., BIPARTISAN POLICY CTR., PREVENTING VIOLENT RADICALIZATION IN AMERICA 12, 17, 33-34 (2011).
123. Pierre Thomas et al., Holder: Homegrown Terror Threat Increasing, ABC NEWS (July 29, 2009), http://abcnews.go.com/Politics/story?id=8202511&singlePage=true.
124. See David Johnston & Scott Shane, Terror Case: "Scary" Ingredients, N.Y. TIMES, Sept. 25, 2009, at A1.
125. See William K. Rashbaum & Al Baker, Smoking Car to an Arrest in 53 Hours, N.Y. TIMES, May 5, 2010, at A1.
126. See Jack R. Greene & Sergio Herzog, The Implications of Terrorism on the Formal and Social Organization of Policing in the US and Israel: Some Concerns and Opportunities, in TO PROTECT AND TO SERVE: POLICING IN AN AGE OF TERRORISM, supra note 14, at 143, 150.
127. See Bayley & Weisburd, supra note 14, at 86. (describing the British organizational structure).
128. Jacqueline E. Ross, The Place of Covert Surveillance in Democratic Societies: A Comparative Study of the United States and Germany, 55 AM. J. COMP. L. 493, 496, 503 (2007) (describing the German organizational structure).
129. See Stephen D. Mastrofski & James J. Willis, Police Organization Continuity and Change: Into the Twenty-First Century, 39 CRIME & JUST. 55, 58 (2010).
130. On the U.S. system of localized policing in comparison with other democracies, see generally David H. Bayley, PATTERNS OF POLICING: A COMPARATIVE INTERNATIONAL ANALYSIS (1985).
131. See John D. Brewer et al., THE POLICE, PUBLIC ORDER AND THE STATE 115 (2d ed. 1996).
132. NAT'L RESEARCH COUNCIL, FAIRNESS AND EFFECTIVENESS IN POLICING: THE EVIDENCE 51 (Wesley Skogan & Kathleen Frydl eds., 2004).
133. See Randol, supra note 3, at 3.
134. The Department of Justice provided the following numbers for 2004: 12,766 local police departments, 3067 sheriffs' offices, 1481 special jurisdiction agencies, 49 state law enforcement agencies, and 513 other agencies.
135. Brian A. Reaves, BUREAU OF JUSTICE STATISTICS, CENSUS OF STATE AND LOCAL LAW ENFORCEMENT AGENCIES, 2004, at 1 (Carolyn C. Williams ed., 2007), available at http://bjs.ojp.usdoj.gov/ content/pub/pdf/csllea04.pdf.
136. See Reaves, supra note 83, at 2 (citing more than 17,000 state and local law enforcement agencies with more than 700,000 full-time sworn officers).
137. David Thacher, The Local Role in Homeland Security, 39 LAW & SOC'Y REV. 635, 635 (2005).
138. See Bayley & Weisburd, supra note 14, at 91.
139. For a description of contrasting approaches to counterterrorism policing in New York City and Los Angeles.
140. see Judith Miller, On the Front Line in the War on Terrorism, CITY J., Summer 2007, at 28.
141. See Shane Harris, Fusion Centers Raise a Fuss, NAT'L J. (Jan. 31, 2011, 12:44 PM), http://www.nationaljournal.com/member/magazine/issues-ideas-fusion-centers-raise-a-fuss-20070210.
142. NAT'L RESEARCH COUNCIL, supra note 82, at 49.
143. See Homeland Security: The Next 5 Years: Hearing Before the S. Comm. on Homeland Sec. & Governmental Affairs, 109th Cong. 74-76 (2006).
144. [hereinafter The Next 5 Years] (statement of Richard A. Falkenrath, Deputy Comm'r for Counterterrorism, New York City Police Department).
145. See Miller, supra note 86, at 35.
146. See Kaplan, supra note 9, at 42-49.
147. For criticism of counterterrorism training programs at the local level, especially concerning anti-Muslim stereotyping.
148. see Neumann, supra note 76, at 44.
149. Shaun Waterman, Anti-Terrorism Training Draws Scrutiny, WASH. TIMES, Mar. 30, 2011, at A4.
150. See COUNCIL OF STATE GOV'TS & E. KY. UNIV., supra note 67, at 24.
151. For some examples, see supra notes 9-13 and accompanying text.
152. See Protecting America Against Terrorist Attack: Our Joint Terrorism Task Forces, FBI, http://www.FBI.gov/about-us/investigate/terrorism/terrorism_jttfs (last visited Feb. 16, 2012).
153. See Kip Schlegel, Transnational Crime: Implications for Local Law Enforcement, 16 J. CONTEMP. CRIM. JUST. 365 (2000).
154. For example, the FBI manages Violent Gang Task Forces and the Drug Enforcement Agency manages Organized Crime Drug Enforcement Task Forces. See, e.g., Organized Crime Drug Enforcement Task Forces (OCDETF), DRUG ENFORCEMENT AGENCY, http://www.usdoj.gov/dea/programs/ocdetf.htm (last visited Feb.16, 2012).
155. Violent Gang Task Forces, FBI, http://www.FBI.gov/about-us/investigate/vc_majorthefts/gangs/violent-gangs-task-forces (last visited Feb. 16, 2012).
156. Protecting America: National Task Force Wages War on Terror, FBI (Aug. 19, 2008), http://www.FBI.gov/news/stories/2008/august/njttf_081908.
157. See John Rollins, CONG. RESEARCH SERV., RL34070, FUSION CENTERS: ISSUES AND OPTIONS FOR CONGRESS 1 (2008).
158. U.S. GOV'T ACCOUNTABILITY OFFICE, GAO-08-35, FEDERAL EFFORTS ARE HELPING TO ALLEVIATE SOME CHALLENGES ENCOUNTERED BY STATE AND LOCAL INFORMATION FUSION CENTERS 2, 23 (2007).
159. O'Harrow, supra note 7.
160. See Randol, supra note 3, at 2.
161. Implementing Recommendations of the 9/11 Commission Act of 2007, 6 U.S.C. § 124(h) (Supp. I 2007).
162. See Randol, supra note 3, at 15-16.
163. Ken Dilanian, Security at What Price?, L.A. TIMES, Nov. 15, 2010, at A8.
164. See Randol, supra note 3, at 2, 20.
165. See id. at 2.
166. See id. at 20.
167. See supra notes 11-12 and accompanying text.
168. Cf. Richard J. Riordan & Amy B. Zegart, City Hall Goes to War, N.Y. TIMES, July 5, 2002, at A19 ("Americans have always looked to the federal government for protection from enemies abroad.
169. See Am. Ins. Ass'n v. Garamendi, 539 U.S. 396, 413 (2003).
170. See United States v. Belmont, 301 U.S. 324, 330-31 (1937).
171. United States v. Curtiss- Wright Exp. Corp., 299 U.S. 304, 317-18 (1936).
172. Cf. Press Release, The White House, President Bush Releases National Strategy for Combating Terrorism (Feb. 14, 2003), available at http://georgewbush-whitehouse.archives.gov/news/releases/2003/02/20030214-7.html.
173. As the Supreme Court wrote in United States v. Morrison: "[W]e can think of no better example of the police power, which the Founders denied the National Government and reposed in the States, than the suppression of violent crime and vindication of its victims." 529 U.S. 598, 618 (2000).
174. The Supreme Court considered and rejected a version of this exclusive sphere argument in the case Gilbert v. Minnesota, 254 U.S. 325 (1920).
175. better known as a free speech case. Minnesota had passed a statute during World War I making it unlawful to interfere with or discourage military enlistment.
176. Id. at 326.
177. In challenging it, a criminal defendant argued that "Congress alone can under the Constitution 'provide for the common defence.'"
178. Id. at 328.
179. Quoting U.S. CONST. art. I, § 8, cl. 1). Rejecting this claim that any individual state has no interest or power in protecting the United States from its enemies, the Supreme Court explained that "this country is one composed of many. [and] the constituted and constituting sovereignties must have power of coöperation against the enemies of all."
180. Id. at 329.
181. Cf. Judith Resnik et al., Ratifying Kyoto at the Local Level: Sovereigntism, Federalism, and Translocal Organizations of Government Actors (TOGAs), 50 ARIZ. L. REV. 709, 715-17 (2008) (discussing challenges of categorizing issues as essentially foreign or domestic).
182. For a discussion of both views, see Harris, supra note 87.
183. See, e.g., David A. Harris, A Lack of Respect, BOS. REV., Dec. 2004-Jan. 2005, at 12 (discussing imposition of federal counterterrorism policies on local law enforcement agencies).
184. See Matthew D. Adler, State Sovereignty and the Anti-Commandeering Cases, 574 ANNALS AM. ACAD. POL. & SOC. SCI. 158, 163-65 (2001).
185. 521 U.S. 898 (1997).
186. Id. at 933.
187. Id. at 935.
188. Justice Stevens suggested in dissent that the doctrine should be more flexible in national security or emergency contexts.
189. See id. at 940 (Stevens, J., dissenting).
190. As Justice O'Connor explained in her concurrence in Printz: "Congress is. free to amend the interim program to provide for its continuance on a contractual basis with the States if it wishes, as it does with a number of other federal programs."
191. Id. at 936 (O'Connor, J., concurring).
192. see also Lynn A. Baker, Conditional Federal Spending and States' Rights, 574 ANNALS AM. ACAD. POL. & SOC. SCI. 104, 106-11 (2001) (arguing that federal conditional spending practices threaten state autonomy).
193. See supra Part I.C.2.
194. See, e.g., U.S. GOV'T ACCOUNTABILITY OFFICE, supra note 97, at 3.
195. Describing standards promulgated by the federal government for state fusion centers receiving grants).
196. See infra notes 201-03 and accompanying text.
197. For examples of such historical arguments, see Protecting National Security and Civil Liberties: Strategies for Terrorism Information Sharing: Hearing Before the Subcomm. on Terrorism and Homeland Sec. of the S. Comm. on the Judiciary, 111th Cong. 13 (2009) (statement of Caroline Fredrickson, Director, Washington Office, ACLU).
198. FBI Joint Terrorism Task Force (JTTF), BILL RTS. DEF. COMMITTEE (Apr. 3, 2009, 1:08 PM EDT), http:// www.bordc.org/resources/jttf-faq.php.
199. See, e.g., Robert Dreyfuss, The Cops Are Watching You, NATION, June 3, 2002, at 12, 14.
200. see also Danielle Keats Citron & Frank Pasquale, Network Accountability for the Domestic Intelligence Apparatus, 62 HASTINGS L.J. 1441, 1455-65 (2011).
201. Juliette Kayyem, A Waste of Time, BOS. REV., Dec. 2004-Jan. 2005, at 16, 16.
202. [T]here is simply no reason to believe that the terrorist threat we face today is so pervasive that our entire local and state police apparatus must be complicit in the federal government's overarching efforts.
203. See Madigan, supra note 5.
204. Lisa Rein, Federal Agency Aided Md. Spying; Homeland Security Dept. Gave Information to State Police, WASH. POST, Feb. 17, 2009, at B1.
205. See Jerome H. Skolnick, Democratic Policing Confronts Terror and Protest, 33 SYRACUSE J. INT'L L. & COM. 191, 194 (2005).
206. See Eisinger, supra note 19, at 540.
207. Eric Schmitt & David Johnston, States Chafing at U.S. Focus on Terrorism, N.Y. TIMES, May 26, 2008, at A1.
208. See HOMELAND SEC. COMM., MAJOR CITIES CHIEFS ASS'N, TWELVE TENETS TO PREVENT CRIME AND TERRORISM 9 (2008), available at http://www.majorcitieschiefs.org/ pdf/MCC_12TenetFinal52108.pdf.
209. Since 9/11, a key question has been repeatedly posed: Who should be responsible for creating homeland security policies, doctrines, objectives and requirements? One default answer has emerged: The federal government should create those policies and the states should execute them.
210. See Stuntz, supra note 2, at 2160-91.
211. See id. at 2139.
212. See id. at 2140-41, 2160.
213. accord Corey Robin, History's Shadow, BOS. REV., Dec. 2004-Jan. 2005, at 20.
214. See Jerry Berman & Lara Flint, Guiding Lights: Intelligence Oversight and Control for the Challenge of Terrorism, CRIM. JUST. ETHICS, Winter/Spring 2003, at 2, 56.
215. See Charles H. Kennedy & Peter P. Swire, State Wiretaps and Electronic Surveillance After September 11, 54 HASTINGS L.J. 971, 977-85 (2003).
216. On the public law litigation that followed disclosure of 1960s and 1970s police intelligence abuses in New York City, Chicago, Los Angeles, Seattle, Memphis, Detroit, New Jersey, and Michigan.
217. see generally Chevigny, supra note 9, at 744-82.
218. Even before 9/11, the Seventh Circuit modified in 2001 a consent decree emplaced decades before to combat abuses by Chicago's infamous "red squads" by restricting police investigations of groups.
219. See Alliance to End Repression v. City of Chicago, 237 F. 3d 799, 801-02 (7th Cir. 2001).
220. See Ford Fessenden, Filing Opposes Giving Police More Latitude in Surveillance, N.Y. TIMES, Nov. 6, 2002, at A21.
221. Handschu v. Special Servs. Div., 273 F. Supp. 2d 327, 337 (S.D.N.Y. 2003).
222. See Ernest A. Young, Welcome to the Dark Side: Liberals Rediscover Federalism in the Wake of the War on Terror, 69 BROOK. L. REV. 1277, 1285-91 (2004).
223. See Jessica Bulman-Pozen & Heather K. Gerken, Uncooperative Federalism, 118 YALE L.J. 1256, 1278 (2009).
224. For a list of resolutions, see Grassroots Opposition to the USA PATRIOT Act, BILL RTS. DEF. COMMITTEE (Dec. 7, 2007), http://www.bordc.org/resources/ alphalist.pdf.
225. These efforts are reminiscent of resolutions passed in 1798 by the Virginia and Kentucky state legislatures condemning the Sedition Act as unconstitutional.
226. Stone, supra note 30, at 44-45.
227. See USA PATRIOT Improvement and Reauthorization Act of 2005, Pub. L. No. 109-177, 120 Stat. 192 (codified as amended in scattered sections of 18 U.S.C.).
228. see also Bulman-Pozen & Gerken, supra note 138, at 1280 n.85 (acknowledging these limits).
229. See infra Part III.B.1.
230. See Norman Dorsen & Susan N. Herman, American Federalism and the American Civil Liberties Union, in PAPERS FROM THE ELEVENTH ANNUAL LIMAN COLLOQUIUM AT YALE LAW SCHOOL, WHY THE LOCAL MATTERS: FEDERALISM, LOCALISM, AND PUBLIC INTEREST ADVOCACY 21, 28 (2008).
231. On state and local resistance to carrying out federal counterterrorism immigration policies, see 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, 21-44 (2006).
232. On this program, see generally U.S. GOV'T ACCOUNTABILITY OFFICE, GAO-03-459, HOMELAND SECURITY: JUSTICE DEPARTMENT'S PROJECT TO INTERVIEW ALIENS AFTER SEPTEMBER 11, 2001 (2003).
233. See Tyche Hendricks & Suzanne Herel, Terror Probe Interviews Unfinished in Bay Area, S.F. CHRON., Dec. 22, 2001, at A7.
234. See infra notes 202-03 and accompanying text.
235. See Lynn Marshall & Tom Gorman, Now Portland Comes In for Questioning, L.A. TIMES, Nov. 30, 2001, at A1.
236. See Tomas Alex Tizon, Portland, FBI Unit to Part Ways, L.A. TIMES, Apr. 28, 2005, at A8.
237. See Susan N. Herman, Collapsing Spheres: Joint Terrorism Task Forces, Federalism, and the War on Terror, 41 WILLAMETTE L. REV. 941, 947, 952-55 (2005).
238. See id. at 952-54.
239. Id. at 955.
240. See Jim Redden, Should Portland Rejoin Terrorism Task Force?, PORTLAND TRIB. (Dec. 11, 2010), http://www.portlandtribune.com/news/print_story.php?story_id=129203082526556400.
241. See Brad Schmidt, Portland City Council Unanimously Approves "As-Needed" Involvement with JTTF, OREGONLIVE.COM (Apr. 29, 2011, 10:46 AM), http://blog.oregonlive.com/portlandcityhall/2011/04/portland_city_council_unanimou.html.
242. Cf. Dreyfuss, supra note 123.
243. Arguing that federal policies will drive local counterterrorism policies by encouraging state and local governments to exercise greater powers and by offering them resources to do so).
244. See Harris, supra note 142, at 5-7.
245. The Multi-State Anti-Terrorism Information Exchange (MATRIX), for example, was a program launched in 2003 by the U.S. Department of Homeland Security and the Florida Department of Law Enforcement, with funding from the U.S. Department of Justice. The program, which additional states were expected to join, used advanced computer capabilities to access, share, and analyze public records to assist counterterrorism intelligence efforts and investigation.
246. William J. Krouse, CONG. RESEARCH SERV., RL32536, THE MULTI-STATE ANTI-TERRORISM INFORMATION EXCHANGE (MATRIX) PILOT PROJECT 1-2 (2004).
247. Sixteen states participated, but one by one they dropped out over privacy and cost-efficiency concerns. See, e.g., Susan Gast, Matrix and Privacy: Debate over Information Hits Close to Home, ATLANTA J.-CONST., Oct. 19, 2003, at 1F (reporting Georgia's withdrawal).
248. 2 More States Turn Against Massive Anticrime Database, L.A. TIMES, Mar. 12, 2004, at A30 (reporting New York's and Wisconsin's withdrawals).
249. See Ann Althouse, The Vigor of Anti-Commandeering Doctrine in Times of Terror, 69 BROOK. L. REV. 1231, 1235 (2004).
250. Id. at 1272.
251. As Susan Herman explains, this turns some political debates on their heads, as liberals now see the virtues of federalism. Susan N. Herman, Introduction, 69 BROOK. L. REV. 1201, 1205-06 (2004).
252. See Bulman-Pozen & Gerken, supra note 138, at 1278-84.
253. Young, supra note 137, at 1290.
254. See id. at 1290, 1311.
255. Samuel Rascoff cautions against putting too much stock in the role of local police as guardians of liberty in the counterterrorism area.
256. See Samuel J. Rascoff, The Law of Homegrown (Counter)Terrorism, 88 TEX. L. REV. 1715, 1722-23 (2010).
257. See, e.g., Herman, supra note 148, at 943.
258. These joint federal and state/local enterprises might be viewed as weakening the vertical structures of the United States Constitution by collapsing previously autonomous spheres.
259. Kayyem, supra note 123, at 16.
260. [B]etter to keep the locals out of. federal [national security] politics-better to stay on the sidelines, to critique and undermine, to refuse and create legal loopholes-than to be part of it at all.
261. Robin, supra note 130 (warning against liberty dangers of collaboration between federal and local governments).
262. See, e.g., Althouse, supra note 156, at 1261.
263. [T]he ability of state and local government to resist being commandeered creates pressure on the federal government not to go too far, not to put too low a value on individual liberty.
264. Bulman-Pozen & Gerken, supra note 138, at 1280.
265. Arguing that states "use their policymaking authority to thwart the Patriot Act's provisions, something that is possible only because the federal government relies on the states for enforcement assistance
266. Young, supra note 137, at 1288.
267. [A]nticommandeering doctrine. creates the constitutional space for state and local governments to vindicate their own, possibly broader understandings of these rights by refusing to participate in federal enforcement efforts they consider suspect.
268. See Chae Chan Ping v. United States, 130 U.S. 581, 606-10 (1889).
269. Plaintiff's Motion for a Preliminary Injunction and Memorandum of Law in Support Thereof at 19.
270. United States v. Arizona, 703 F. Supp. 2d 980 (D. Ariz. 2010) (No. 2:10- cv-1413-NVW), 2010 WL 2959365.
271. See Peter H. Schuck, Taking Immigration Federalism Seriously, 2007 U. CHI. LEGAL F. 57, 72.
272. Cristina Rodri ́guez argues that "immigration control occurs through a de facto multi-sovereign regime" in which state and local governments' participation is inevitably shaped by local conditions and competing policy demands.
273. Cristina M. Rodríguez, The Significance of the Local in Immigration Regulation, 106 MICH. L. REV. 567, 609-10 (2008).
274. See Peter Bergen & Bruce Hoffman, ASSESSING THE TERRORIST THREAT: A REPORT OF THE BIPARTISAN POLICY CENTER'S NATIONAL SECURITY PREPAREDNESS GROUP 1, 3 (2010), available at http://www.bipartisanpolicy.org/sites/default/files/NSPG%20Final%20Threat%20Assessment.pdf.
275. See Neumann, supra note 76, at 12.
276. Sebastian Rotella, U.S. Sees Homegrown Muslim Extremism as Rising Threat, L.A. TIMES, Dec. 7, 2009, at A1.
277. See Patel, supra note 72, at 5-7.
278. A recent RAND report notes that "[w]hile radicalization and recruitment to jihadist terrorism are cause for continuing concern,. [t]he volume of domestic terrorist activity was much greater in the 1970s than it is today."
279. Brian Michael Jenkins, WOULD-BE WARRIORS: INCIDENTS OF JIHADIST TERRORIST RADICALIZATION IN THE UNITED STATES SINCE SEPTEMBER 11, 2001, at viii (2010), available at www.rand.org/pubs/occasional_papers/2010/RAND_OP292.pdf.
280. See Jerome P. Bjelopera & Mark A. Randol, CONG. RESEARCH SERV., R41416, AMERICAN JIHADIST TERRORISM: COMBATING A COMPLEX THREAT 1-2 (2010).
281. But see Romesh Ratnesar, The Myth of Homegrown Islamic Terrorism, TIME (Jan. 24, 2011), http://www.time.com/time/world/article/0,8599,2044047,00.html (contesting claims that homegrown terrorism is a significant threat).
282. According to Brian Michael Jenkins of the RAND Corporation, "As [terrorism] metastasizes, cops are it. We're going to win this at the local level."
283. William Finnegan, The Terrorism Beat: How Is the N.Y.P.D. Defending the City?, NEW YORKER, July 25, 2005, at 58, 61.
284. see also The Next 5 Years, supra note 89, at 19 ("In combating 'homegrown' threats, the burden shifts. almost entirely to local law enforcement.
285. NAT'L INTELLIGENCE COUNCIL, THE TERRORIST THREAT TO THE US HOMELAND 6 (2007), available at http://www.dni.gov/press_releases/20070717_release.pdf.
286. See NAT'L RESEARCH COUNCIL, PROTECTING INDIVIDUAL PRIVACY IN THE STRUGGLE AGAINST TERRORISTS 16 (2008). Rascoff argues, for example, that local agencies "see" terrorism threats differently than federal ones do, and together they may develop a more complete and accurate assessment.
287. Rascoff, supra note 161, at 1725-31.
288. See NAT'L RESEARCH COUNCIL, supra note 174, at 16.
289. See Bergen & Hoffman, supra note 168, at 30.
290. Who in fact has responsibility in the U.S. government to identify radicalization when it is occurring and then to interdict attempts at recruitment? Is this best done by federal law enforcement. or state and local jurisdictions working closely with federal authorities? What is the role of state and local governments?
291. See infra Part III.C.
292. As Justice O'Connor explained in Gregory v. Ashcroft, "the federalist system is a check on abuses of government power"; it helps ensure that government "will be more sensitive to the diverse needs of a heterogeneous society; it increases opportunity for citizen involvement in democratic processes; it allows for more innovation and experimentation in government; and it makes government more responsive by putting the States in competition for a mobile citizenry." 501 U.S. 452, 458 (1991). On the virtues of federalism and counterarguments.
293. see generally David L. Shapiro, FEDERALISM: A DIALOGUE (1995).
294. Barry Friedman, Valuing Federalism, 82 MINN. L. REV. 317 (1997).
295. Deborah Jones Merritt, The Guarantee Clause and State Autonomy: Federalism for a Third Century, 88 COLUM. L. REV. 1, 2-10 (1988).
296. Briffault, supra note 17, at 1312.
297. see also Gerald E. Frug, The City as a Legal Concept, 93 HARV. L. REV. 1057, 1067-73 (1980) (discussing local autonomy as important to public participation).
298. This view is reflected in the anticommandeering cases. See Printz v. United States, 521 U.S. 898, 920-21 (1997).
299. New York v. United States, 505 U.S. 144, 168-69 (1992).
300. see also Friedman, supra note 178, at 394.
301. Accountability in a democracy means responsiveness on the part of those petitioned.
302. Vicki C. Jackson, Federalism and the Uses and Limits of Law: Printz and Principle?, 111 HARV. L. REV. 2180, 2205 (1998) (noting that "[f]ederal commandeering of states. can risk confusing the lines of political accountability
303. On the various forms of accountability, see generally Jerry L. Mashaw, Accountability and Institutional Design: Some Thoughts on the Grammar of Governance, in PUBLIC ACCOUNTABILITY: DESIGNS, DILEMMAS AND EXPERIENCES 115 (Michael W. Dowdle ed., 2006).
304. See id. at 132, 154.
305. See Thomas E. Feucht et al., Policing, Terrorism, and Beyond, in TO PROTECT AND TO SERVE: POLICING IN THE AGE OF TERRORISM, supra note 14, at 203, 204.
306. See Laura K. Donohue & Juliette N. Kayyem, Federalism and the Battle over Counterterrorist Law: State Sovereignty, Criminal Law Enforcement, and National Security, 25 STUD. CONFLICT & TERRORISM 1, 1-8 (2002).
307. See TASK FORCE ON THE FEDERALIZATION OF CRIMINAL LAW, ABA, THE FEDERALIZATION OF CRIMINAL LAW 43 (1998).
308. See Printz v. United States, 521 U.S. 898, 930 (1997).
309. see also New York v. United States, 505 U.S. 144, 169 (1992).
310. See Bulman-Pozen & Gerken, supra note 138, at 1289-90.
311. Roderick M. Hills, Jr., The Political Economy of Cooperative Federalism: Why State Autonomy Makes Sense and "Dual Sovereignty" Doesn't, 96 MICH. L. REV. 813, 828 (1998).
312. See Paul G. Lewis & S. Karthick Ramakrishnan, Police Practices in Immigrant- Destination Cities: Political Control or Bureaucratic Professionalism?, 42 URB. AFF. REV. 874, 877 (2007).
313. But see David Alan Sklansky, Police and Democracy, 103 MICH. L. REV. 1699, 1810-14 (2005) (presenting evidence questioning theories that localized policing enhances accountability).
314. See Brewer et al., supra note 82, at 115.
315. see also Herman Goldstein, POLICING A FREE SOCIETY 131-43 (1977).
316. Discussing localized political control of American policing). But see Richard T. Ford, Police Don't Fight Wars, BOS. REV., Dec. 2004-Jan. 2005, at 19, 19.
317. True, local police are more likely to be more accountable to local constituencies than federal agents, but local police also tend to be most responsive to the local communities that are least likely to be victims of police abuse and most likely to fear the effects of violent crime.
318. James Q. Wilson, Criminal Justice, in UNDERSTANDING AMERICA: THE ANATOMY OF AN EXCEPTIONAL NATION 475, 476 (Peter H. Schuck & James Q. Wilson eds., 2008).
319. see also William J. Stuntz, Terrorism, Federalism, and Police Misconduct, 25 HARV. J.L. & PUB. POL'Y 665, 670 (2002) ("The single biggest constraint on local police behavior is local politics.
320. See Wilson, supra note 190, at 476.
321. See Lewis & Ramakrishnan, supra note 188, at 881.
322. See Brewer et al., supra note 82, at 115.
323. NAT'L RESEARCH COUNCIL, supra note 82, at 51.
324. This is not to minimize the dangers of racial or ethnic biases in local policing, nor the fact that in the past federal intervention and enforcement has been needed to combat state and local discrimination, which has sometimes been defended under the banner of "states' rights."
325. See Young, supra note 137, at 1277.
326. Community policing also has its skeptics and detractors, and much controversy exists over how effective these strategies are, especially with respect to perceived legitimacy among communities.
327. See NAT'L RESEARCH COUNCIL, supra note 82, at 329 (calling for more research in this area).
328. Sklansky, supra note 188, at 1810-14 (critically analyzing community policing and its democratic legitimacy).
329. Cf. Bulman-Pozen & Gerken, supra note 138, at 1291.
330. [A]ccountability is not simply about knowing who is responsible, but also being able to appeal to them.
331. See Herman, supra note 148, at 942-43.
332. See Citron & Pasquale, supra note 123, at 1453-55 (arguing that fusion centers undermine accountability by blurring lines of authority).
333. See Herman, supra note 148, at 951 (explaining that the terms of Joint Terrorism Task Force agreements are usually kept secret).
334. Alasdair Roberts, Big Brother Keeps Secrets Under Wraps, POST-STANDARD (Syracuse), Dec. 19, 2004, at C1 (discussing unsuccessful efforts by civil liberties advocates to obtain agreement documents under the Freedom of Information Act).
335. See infra notes 211-13 and accompanying text.
336. See Waxman, supra note 8, at 393-95 (arguing that some federal intervention in state and local counterterrorism efforts might be viewed as correcting a distorted political market).
337. See Daniel Richman, The Past, Present, and Future of Violent Crime Federalism, 34 CRIME & JUST. 377, 382-400 (2006).
338. Detroit, Michigan, is home to a large Arab-American community, and its police forces were sensitive about disrupting their relations with them.
339. See Siobhan Gorman, Detroit Finds Some Answers, NAT'L J., Mar. 29, 2003, at 998.
340. Shannon McCaffrey, New FBI Sweep Worries Muslims, DETROIT FREE PRESS, May 27, 2004, at A1.
341. Thacher, supra note 84, at 661-62.
342. See id.; Fox Butterfield, Police Are Split on Questioning of Mideast Men, N.Y. TIMES, Nov. 22, 2001, at A1.
343. See Karen DeYoung, Distrust Hinders FBI in Outreach to Muslims; Effort Aimed at Homegrown Terrorism, WASH. POST, Feb. 8, 2007, at A1.
344. Discussing FBI outreach efforts to Muslim communities and noting that "[a]s the FBI and Muslims wrestle toward accommodation, local law enforcement officials have come to occupy a safe middle ground for both
345. See supra Part II.A.2.
346. See Richman, supra note 200, at 419.
347. Moreover, this is a policy area in which public pressures and political incentives are especially likely to result in overreactions to perceived threats.
348. See John Mueller, OVERBLOWN: HOW POLITICIANS AND THE TERRORISM INDUSTRY INFLATE NATIONAL SECURITY THREATS, AND WHY WE BELIEVE THEM 33-43 (2006).
349. CASS R. SUNSTEIN, WORST-CASE SCENARIOS 42-44 (2007).
350. Therefore, it may be advantageous to arrange institutions in ways that buffer or insulate policy from public opinion swings.
351. See Jerome H. Skolnick, ON DEMOCRATIC POLICING 4-5 (Ideas in American Policing, No. 4, 1999), available at http://www.policefoundation.org/pdf/62.pdf (emphasizing the role of transparency in regulating police).
352. See Richman, supra note 200, at 378.
353. See BUREAU OF JUSTICE ASSISTANCE, supra note 45, at 21.
354. One reason why intelligence operations are not always understood or appreciated is because they cannot be evaluated by traditional measures of law enforcement success.
355. Skolnick, supra note 125, at 203.
356. Unlike crime, which is the familiar, inevitable, and measurable part of the police assignment, there are no measures of success against terrorism except the absence of attack.
357. See Banks & Bowman, supra note 29, at 5.
358. See, e.g., In re City of New York, 607 F.3d 923, 928 (2d Cir. 2010) (granting the city's petition for a writ of mandamus overturning the district court's order compelling production of confidential intelligence reports prepared prior to the 2004 Republican National Convention).
359. See Bruce Russett, CONTROLLING THE SWORD: THE DEMOCRATIC GOVERNANCE OF NATIONAL SECURITY 147-48 (1990).
360. Deborah N. Pearlstein, Form and Function in the National Security Constitution, 41 CONN. L. REV. 1549, 1578 (2009).
361. See Richman, supra note 200, at 410-11.
362. Thacher, supra note 84, at 637-38.
363. See infra Part III.B.
364. Cf. Robert O. Keohane et al., Democracy-Enhancing Multilateralism, 63 INT'L ORG. 1, 7 (2009).
365. In situations involving a public good that no individual group has an incentive to provide on its own, the resulting policy may be more representative of diffuse general interests and majority preference that pass the test of public deliberation.
366. See, e.g., Harold Hongju Koh, THE NATIONAL SECURITY CONSTITUTION: SHARING POWER AFTER THE IRAN-CONTRA AFFAIR 161-66 (1990) (discussing "internal" and "external" mechanisms of accountability for national security decisionmaking).
367. Pearlstein, supra note 213, at 1578.
368. See Koh, supra note 217, at 111-12.
369. See id. at 153.
370. David Golove & Stephen Holmes, Terrorism and Accountability: Why Checks and Balances Apply Even in "The War on Terrorism," N.Y.U. REV. L. & SECURITY, Apr. 2004, at 2, 6.
371. Neal Kumar Katyal, Internal Separation of Powers: Checking Today's Most Dangerous Branch from Within, 115 YALE L.J. 2314, 2348 (2006).
372. See, e.g., Katyal, supra note 219, at 2317.
373. Arguing that overlapping mandates of executive branch national security bureaucracies leads to better decisionmaking through discussion and debate).
374. Gillian E. Metzger, The Interdependent Relationship Between Internal and External Separation of Powers, 59 EMORY L.J. 423, 429-30 (2009).
375. Arguing that internal executive branch checks are important to ensuring depoliticization, harnessing expertise, and fostering consideration of different perspectives in administrative decisionmaking).
376. Ernest Young makes a similar point in noting that "[r]equiring the consent of multiple actors before the government can act is a pervasive institutional strategy in the Constitution; it is most familiar, obviously, in separation of powers."
377. Young, supra note 137, at 1289.
378. He goes on to suggest that counterterrorism might be an area of public policy in which the federal government, notwithstanding its powerful levers of influence, "must still persuade state authorities that federal policy is sufficiently legitimate, wise, and fair to warrant their participation."
379. Id. at 1289-90.
380. See ATTORNEY GENERAL'S GUIDELINES FOR DOMESTIC FBI OPERATIONS 7 (2008), available at http://www.justice.gov/ag/readingroom/guidelines.pdf.
381. See Attorney General Guidelines for FBI Criminal Investigations, National Security Investigations, and the Collection of Foreign Intelligence: Hearing Before the S. Select Comm. on Intelligence, 110th Cong. 2 (2008) (statement of Sen. John D. Rockefeller IV).
382. See Waxman, supra note 8, at 386.
383. See Ratcliffe, supra note 71, at 229.
384. See Richman, supra note 200, at 411-18.
385. Cf. Anne Joseph O'Connell, The Architecture of Smart Intelligence: Structuring and Overseeing Agencies in the Post-9/11 World, 94 CALIF. L. REV. 1655, 1676-79 (2006) (discussing these advantages in the context of redundant rather than centralized intelligence agencies at the federal level).
386. See supra Part I.C.2.
387. See NATIONAL STRATEGY FOR INFORMATION SHARING: SUCCESSES AND CHALLENGES IN IMPROVING TERRORISM-RELATED INFORMATION SHARING 8 (2007), available at http://permanent.access.gpo.gov/lps90310/NSIS_book.pdf.
388. See DEP'T OF HOMELAND SEC., FINAL REPORT: HOMELAND SECURITY INFORMATION NETWORK ADVISORY COMMITTEE MEETING, FEBRUARY 10-FEBRUARY 12, 2009, at 3 (2009), available at http://www.dhs.gov/xlibrary/assets/hsinac_mtg_2009-2-1012.pdf.
389. See supra note 64 and accompanying text.
390. See Edward R. Maguire & William R. King, Federal-Local Coordination in Homeland Security, in CRIMINOLOGISTS ON TERRORISM AND HOMELAND SECURITY 322, 346-49 (Brian Forst et al. eds., 2011).
391. Rascoff, supra note 161, at 1742-44.
392. See INFO. SHARING ENV'T, REPORT ON THE INTERAGENCY THREAT ASSESSMENT AND COORDINATION GROUP (ITACG) 1-2 (2010), available at http://www.ise.gov/ sites/default/files/2010_ITACG_Report_Final_30Nov10.pdf.
393. Rascoff, supra note 161, at 1746-47.
394. See Richman, supra note 200, at 419.
395. See Maguire & King, supra note 232, at 346-49.
396. See George L. Kelling & William J. Bratton, Policing Terrorism, CIVIC BULL., Sept. 2006, at 6-7.
397. Cf. Heather K. Gerken, The Supreme Court, 2009 Term-Foreword: Federalism All the Way Down, 124 HARV. L. REV. 4, 9 (2010).
398. At the national level, we have two competing accounts of how to check a government: (1) separation of powers, which depends on separation and independence, and (2) checks and balances, which depends on integration and interdependence.
399. See supra Part II.A.1.
400. In addition to thinking about national security oversight architecture in both the horizontal and vertical dimensions, there is a need to focus on the public-private axis, especially as the government becomes more reliant on the private sector to support intelligence efforts.
401. See Jon D. Michaels, All the President's Spies: Private-Public Intelligence Partnerships in the War on Terror, 96 CALIF. L. REV. 901, 904 (2008).
402. Accountability" is also often used in the national security context to mean monitored compliance with the law. See, e.g., Stephen Dycus, The Role of Military Intelligence in Homeland Security, 64 LA. L. REV. 779, 807 (2004).
403. Calling for "reliable controls and measures to provide accountability" for domestic military intelligence).
404. Stephen J. Schulhofer, The New World of Foreign Intelligence Surveillance, 17 STAN. L. & POL'Y REV. 531, 538 (2006) (discussing how Title III "promotes better accountability [than FISA] through a far stronger system of sanctions
405. See Rascoff, supra note 161, at 1742 ("[L]ocal intelligence increasingly operates in a formal governance vacuum.
406. See supra notes 45-49 and accompanying text.
407. See BUREAU OF JUSTICE ASSISTANCE, supra note 45, at 19-20.
408. See supra notes 207-10 and accompanying text.
409. See Riley et al., supra note 11, at 34, 45-49.
410. See Symposium on Security, Technology and Individual Rights-2003, 2 GEO. J.L. & PUB. POL'Y 17, 76 (2004) (statement of Craig Burkhardt).
411. Kennedy & Swire, supra note 132, at 984.
412. In some cases, existing local oversight mechanisms can exercise strong checks. Mary Cheh studied the District of Columbia City Council's investigation of tactics used by the D.C. police to disrupt mass protests in 2000-03 by, among other things, preemptively arresting large numbers of suspicious individuals. This local legislative oversight led to D.C. legislation imposing strict standards on police practices that threatened First Amendment rights.
413. See Cheh, supra note 10, at 20-21.
414. By contrast, a series of investigative journalist accounts in 2011 of controversial NYPD surveillance practices pointed to weak formal oversight checks.
415. See Samantha Gross & Matt Apuzzo, NYPD Grilled on Anti-Terror Efforts, NEWARK STAR-LEDGER, Oct. 7, 2011, at 2.
416. Jerome Skolnick argues that a strong civil rights bar and free press are important checks on surveillance powers at the local level and that these checks are stronger or weaker in some jurisdictions than others.
417. See Skolnick, supra note 125, at 210-12.
418. Kennedy and Swire argue that, in general, the press and civil liberties organizations pose a stronger check at the federal level than at the state or local level.
419. See Kennedy & Swire, supra note 132, at 984.
420. Intuitively I agree, but the federal government is also probably stronger in its ability to contest those forces.
421. See Riley et al., supra note 11, at 34.
422. Rollins, supra note 97, at 12.
423. Cf. OFFICE OF THE INSPECTOR GEN., U.S. DEP'T OF JUSTICE, IMPROVING THE OFFICE OF COMMUNITY ORIENTED POLICING SERVICES' GRANT AWARDING, MONITORING, AND PROGRAM EVALUATION PROCESSES 8-9 (2009) (discussing limited capacity for oversight of local grant programs due to resource constraints).
424. See, e.g., Riley et al., supra note 11, at 62.
425. See supra note 45 and accompanying text.
426. Cf. Rascoff, supra note 45, at 616-19 (arguing for a cost-benefit evaluation of intelligence architecture).
427. On environmental pollution spillover effects across state borders, see Richard L. Revesz, The Race to the Bottom and Federal Environmental Regulation: A Response to Critics, 82 MINN. L. REV. 535, 538 (1997).
428. Richard B. Stewart, Pyramids of Sacrifice? Problems of Federalism in Mandating State Implementation of National Environmental Policy, 86 YALE L.J. 1196, 1215-16 (1977).
429. See Revesz, supra note 254, at 535-36.
430. See Stewart, supra note 254, at 1212.
431. But cf. Christopher Dickey, SECURING THE CITY 170-71 (2009) (suggesting that aggressive counterterrorism efforts in New York City might cause terrorists to relocate to New Jersey or other areas).
432. Cf. Dreyfuss, supra note 123, at 12-14 (reporting post-9/11 efforts by police agencies to expand their power).
433. See David Johnston, With Crime Up, a City's Police Force Questions the Focus on Terror, N.Y. TIMES, July 24, 2008, at A17 (describing the increased counterterrorism investment in Providence, Rhode Island, and the attendant criticism from police officials).
434. Schmitt & Johnston, supra note 126.
435. See Editorial, Risk vs. Pork, WASH. POST, May 17, 2005, at A20.
436. See Michael A. Sheehan, Op-Ed., The Terrorist Next Door, N.Y. TIMES, May 4, 2010, at A31 (discussing local government reluctance to invest in some counterterrorism intelligence functions).
437. See Richman, supra note 200, at 408.
438. Observing that, after 9/11, the federal enforcement bureaucracy was "saddled with a politically unavoidable, and all-but-impossible, responsibility: preventing another such attack
439. Even the political rewards of successful counterterrorism intelligence are unlikely to accrue to local governments, because most terrorism prosecutions quickly become federalized.
440. See Thacher, supra note 84, at 637-38.
441. See Herman, supra note 148 and accompanying text.
442. Printz v. United States, 521 U.S. 898, 959 (1997) (Stevens, J., dissenting).
443. See supra Part III.A.2.
444. Courts recognize that New York City faces unique terrorism challenges and dangers. Besides the case involving its investigatory guidelines.
445. see supra notes 134-36 and accompanying text.
446. a good illustration is the NYPD's random search policy for subway riders, which the Second Circuit upheld based in part on New York's "continued desirability as a target."
447. MacWade v. Kelly, 460 F.3d 260, 272 (2d Cir. 2006).
448. See Letter from Raymond W. Kelly, Comm'r, N.Y.C. Police Dep't, to Michael Mukasey, U.S. Attorney Gen., U.S. Dep't of Justice (Oct. 27, 2008), available at http://online.wsj.com/public/resources/documents/Mukasey111908.pdf.
449. See David Johnston & William K. Rashbaum, New York Police Fight with U.S. on Surveillance, N.Y. TIMES, Nov. 20, 2008, at A1.
450. See William W. Buzbee, Federal Floors, Ceilings, and the Benefits of Federalism's Institutional Diversity, in PREEMPTION CHOICE: THE THEORY, LAW, AND REALITY OF FEDERALISM'S CORE QUESTION 98, 100-14 (William W. Buzbee ed., 2008).
451. Cf. Mazzone, supra note 22, at 39-47 (arguing that federal powers over national defense were designed to solve collective action problems among the newly independent states).
452. See Philip Leggiere, Fusion Centers: Tough Tightrope, HOMELAND SECURITY TODAY (Jan. 3, 2011), http://www.hstoday.us/index.php?id=3392&no_cache=1&tx_ttnews%5Btt_news%5D=16211.
453. See Rollins, supra note 97, at 13-14.
454. See Fusion Center Guidelines: Developing and Sharing Information and Intelligence in a New Era, U.S. DEP'T OF JUSTICE, OFFICE OF JUSTICE PROGRAMS (Aug. 2006), http://it.ojp.gov/documents/fusion_center_guidelines.pdf. As of 2010.
455. more than eighty percent of the seventy-two fusion centers had submitted draft privacy policies to the federal government for review and technical assistance. INFO. SHARING ENV'T, ANNUAL REPORT TO THE CONGRESS 52 (2010).
456. See generally Trip Jennings, Post-9/11 Intelligence Goes Local, N.M. INDEP. (Aug. 12, 2008, 3:00 AM), http://newmexicoindependent.com/481/post-911-intelligence-goes-local (describing fusion centers in the Southwest).
457. DEP'T OF HOMELAND SEC., DHS/ALL/PIA-011, PRIVACY IMPACT ASSESSMENT FOR THE DEPARTMENT OF HOMELAND SECURITY: STATE, LOCAL, AND REGIONAL FUSION CENTER INITIATIVE 2 (2008).
458. See Leggiere, supra note 273.
459. New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting).
460. See E. Donald Elliott et al., Toward a Theory of Statutory Evolution: The Federalization of Environmental Law, 1 J.L. ECON. & ORG. 313, 325-26 (1985).
461. See THE MARKLE FOUND. TASK FORCE ON NAT'L SEC. IN THE INFO. AGE, NATION AT RISK: POLICY MAKERS NEED BETTER INFORMATION TO PROTECT THE COUNTRY 5 (2009) ("Information sharing outside the [intelligence community]-as well as information sharing across the law enforcement, domestic intelligence, and foreign intelligence communities- remains problematic.
462. Cf. Erin Ryan, Federalism and the Tug of War Within: Seeking Checks and Balance in the Interjurisdictional Gray Area, 66 MD. L. REV. 503, 581-82 (2007) (describing the benefits of such tailoring in the air pollution control context).
463. See Michael C. Dorf & Charles F. Sabel, A Constitution of Democratic Experimentalism, 98 COLUM. L. REV. 267, 315-16 (1998).
464. See supra note 273 and accompanying text.
465. See INFO. SHARING ENV'T, PRIVACY, CIVIL RIGHTS, AND CIVIL LIBERTIES ANALYSIS AND RECOMMENDATIONS: NATIONWIDE SUSPICIOUS ACTIVITY REPORTING INITIATIVE 25-26 (2010), available at www.ise.gov/sites/default/files/NSI_PCRCL_Analysis_July2010.pdf.
466. See id. at 17-19.
467. Felisa Cardona, Fusion Conference Brings In Officers Nationwide, DENV. POST, Mar. 14, 2011, at A12.
468. Cf. Buzbee, supra note 271, at 113-14 (arguing that federal floors may promote effective experimentalism in areas of risk regulation).
469. See supra notes 69-72 and accompanying text.
470. Some experts worry, however, that counterterrorism and national security intelligence responsibilities will crowd out other traditional police functions or will undermine police-community relations.
471. See Ellen Scrivner, The Impact of September 11 on Community Policing, in COMMUNITY POLICING: THE PAST, PRESENT, AND FUTURE 183, 186-88 (Lorie Fridell & Mary Ann Wycoff eds., 2004).
472. See Joshua D. Freilich et al., Surveying American State Police Agencies About Terrorism Threats, Terrorism Sources, and Terrorism Definitions, 21 TERRORISM & POL. VIOLENCE 450, 452 (2009).
473. see also Stephen J. Schulhofer et al., American Policing at a Crossroads: Unsustainable Policies and the Procedural Justice Alternative, 101 J. CRIM. L. & CRIMINOLOGY 335, 366-67 (2011) (discussing how law enforcement agencies will make varying strategic and tactical choices with regard to intelligence gathering).
474. See Bergen & Hoffman, supra note 168, at 1-3.
475. For contrary assessments about this threat, see supra note 170.
476. See Waxman, supra note 8, at 400-01.
477. See Rascoff, supra note 161, at 1716-20, 1728-31.
478. cf. Marc Sageman, LEADERLESS JIHAD: TERROR NETWORKS IN THE TWENTY-FIRST CENTURY 23-24 (2008).
479. See Neumann, supra note 76, at 32-33.
480. See Bill Gertz, L.A. Police Use Intel Networks Against Terror, WASH. TIMES, Apr. 12, 2011, at A6.
481. See Neumann, supra note 76, at 22.
482. see also Martin Innes, Policing Uncertainty: Countering Terror Through Community Intelligence and Democratic Policing, 605 ANNALS AM. ACAD. POL. & SOC. SCI. 222, 235-37 (2006) (describing British counterterrorism reorientation toward neighborhood policing strategies).
483. See generally Laurie Goodstein, Police in Los Angeles Step Up Efforts to Gain Muslims' Trust, N.Y. TIMES, Mar. 10, 2011, at A17 ("In many ways, local law enforcement agencies play 'good cop' to the F.B.I.'s 'bad cop.'
484. See Patel, supra note 72, at 14-18.
485. Nevertheless, local efforts at engagement will often be more successful than federal outreach to such communities because of those communities' negative perceptions of the FBI.
486. See id. at 31.
487. See Neumann, supra note 76, at 7, 9.
488. The White House recently released an official strategy document emphasizing this approach. See THE WHITE HOUSE, EMPOWERING LOCAL PARTNERS TO PREVENT VIOLENT EXTREMISM IN THE UNITED STATES 3, 6 (2011).
489. See generally Ross, supra note 80 (discussing these issues in the American and German systems).
490. Charlie Savage, F.B.I. Agents Get Leeway to Push Privacy Bounds, N.Y. TIMES, June 13, 2011, at A1 (discussing new FBI guidelines regarding sending informants to religious services).
491. 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 123, 158-65 (2010).
492. Cf. Eli Lake, Intelligence Agencies Slammed over Christmas Plot, WASH. TIMES, May 19, 2010, at A8 (describing political fallout after failure to connect intelligence dots regarding December 2009 airline bombing attempt).