This Article aims to promote conceptual clarity about what role local officials ought to play as part of an overall intelligence strategy that conjoins elements of national and sub-national authority to practice “intelligence under law” It emphasizes areas of comparative local strength as well as vulnerability, and suggests what a rightly conceived set of institutional arrangements ought to look like Conceptual work of this sort is a necessary foundation for homegrown counter-terrorism to play a significant role in addressing homegrown terrorism

The Law of Homegrown (Counter) Terrorism

There are various ways to oversee police behavior including internal discipline, civilian review boards, civil law suits, and criminal prosecutions. These are important tools but an equally important but less examined mechanism is legislative oversight, and, in particular, the legislative investigation. A legislature may choose to review police policies concerning the use of surveillance, informants and undercover operatives, the implementation of community policing, the use of force, eradication of gang activity, and perhaps most prominently in the post 9/11 world, counter terrorism initiatives. All of these matters involve policy decisions at the departmental level and not actions taken at the discretion of individual officers in the field. The aim of legislative oversight is not to micro-manage police decisions, but to structure those decisions in line with best practices and within constitutional boundaries. Acting through their elected representatives, communities can have a say, for example, about shoot to kill policies, random searches of people on busses and trains, and the keeping of dossiers on individuals and groups. This Article identifies the benefits and limits of local legislative investigations as a means of police oversight by looking at the 2003 investigation of the Metropolitan Police Department by the City Council of the District of Columbia. The investigation focused on the police mishandling of anti-globalization demonstrations held in Washington D.C. from 2000-2003 and led, ultimately, to the drafting of model legislation, "The First Amendment Rights and Police Standards Act of 2004," enacted in 2005. As the Article explains, legislative investigations enable the government to address police practices at a systemic level, are more likely to gain the co-operation of the police since the aim is not to affix blame per se, can more forward with relative speed, and are likely to result in improvements since the legislature is directly invested in the effort and controls the levers of reform. Legislative investigations also have some potential to counter the "dual messages" phenomenon that allows police to acknowledge the rules that limit their behavior but to flout them at the same time. Formal policies and official pronouncements of police departments never approve of violation of rights, or permit brutality, corruption, or unlawful conduct. But informal messages from police leaders, rank and file, citizen groups, or even the media may communicate a different set of norms which appear to look past or even encourage these kinds of transgressions. A legislative investigation can publicly affirm the need to adhere to the rules and show that there are consequences if police rules and constitutional rights are violated. Finally the article discusses the keys to conducting a successful legislative investigation of the police and describes the legislative changes resulting from the District of Columbia police investigation.

Legislative Oversight of Police: Lessons Learned from an Investigation of Police Handling of Demonstrations in Washington, D.C.

Abstract A few years after the end of the Cold War, Richard Betts argued that a specter was haunting the field of strategic studies, “the specter of peace,” and asked whether that field should survive the new era. Today, more than two decades after the 9/11 attacks that stimulated the field of homeland security (HS) studies, we could ask a similar question about that field. Should it survive as an academic field of study, and if so, how should it adapt and change in an era in which concerns about terrorism have in large part been overtaken by great power competition, climate change, AI, pandemics and a host of other asymmetric threats? Is it/can it be an academic discipline? A profession? What questions does it ask and what contributions does it make to practitioners, policy makers, or society? This article reviews the state of HS studies today and what sub-fields and disciplines it touches. It examines HS publication and education in the United States and evaluates the contributions that HS studies have made to date. This review suggests homeland security studies should indeed survive, as a meta discipline that serves a valuable purpose by addressing the question of how governments and societies should best prepare for and respond to threats to their security that can range from local to global in scope, from small to large in scale, and from tame to wicked in character.

Should Homeland Security Studies Survive?

September 11, 2001 resulted in the drastic expansion of intelligence and surveillance capacities in the New York City Police Department (NYPD) and the NYPD has continued to adopt emergent surveillance technologies. These tools have investigative applications beyond counterterrorism and many worry their use is outpacing oversight and regulation. The transformations of the NYPD in the early 2000s were followed by major – if lagged – changes to the external oversight of police and surveillance tools, including the 2013 establishment of an Office of the Inspector General for the NYPD and the Public Oversight of Technology (POST) Act in 2020. This article tracks these developments and their capacity to mitigate information asymmetries, enhance transparency, and ultimately influence the use of police surveillance technologies in New York City. 

From 9/11 to the POST Act: democratic oversight of police surveillance technologies in New York City

Following 11 September 2001, the New York City Police Department (NYPD) established and expanded counterterrorism and security intelligence capacities to an extent unprecedented for an American loc...

Jeffrey Milliman

Papers

City council and national security: oversight of local counterterrorism and security intelligence

From 9/11 to the POST Act: democratic oversight of police surveillance technologies in New York City