Terrorism and Beyond: The Role of Policing in Fighting Terrorism in the USA compared with Europe

EDITOR'S NOTE: We are seeking reactions and input for this work in progress, a draft synopsis of Chapter XII of the book in preparation Terrorism and Beyond: The Role of Policing in Fighting Terrorism in the USA compared with Europe, by Arthur A. Jones and Robin Wiseman.

Doctor Jones and Doctor Wiseman are international human rights lawyers with legal educations in the United States and Europe. They are consultants and authors on international policing, social policy and human rights, and regular contributors to the forum here at LA Community Policing. (For more of their work, please see the Think Tank.)

What follows is an incomplete chapter of their book, still in the process of being prepared for future publication. Input is being requested of the Community Policing community. You are respectfully asked to send your comments, criticisms and thoughts by email to the address below:

May 24, 2005

by Arthur A. Jones and Robin Wiseman
email to: Arthur@lacp.org

CHAPTER XII: PUBLIC-PRIVATE PARTNERSHIP
IN THE U.S.
WAR ON TERROR: HOMELAND SECURITY

Just as the American approach is a "war on terror" emphasizing the use of military means, the same philosophy or bundle of motives has also attached to the fight against terrorism at home. This chapter discusses the organizational structure that has been set up pursuant to the Patriot Act, and more specifically the National Response Plan (NRP) released by the Department of Homeland Security in January 2005.

The DHS materials have been updated to include major "maiden" speeches given by Michael Chertoff, the newly-installed Secretary of Homeland Security, on April 26, 2005, at the International Center for Enterprise Preparedness, New York, and at the U.S. Chamber of Commerce, on April 29, 2005. Both of those talks address the subject matter of this chapter.

We analyze the Bush Administration's action plan for a national response in the event of a future terrorist strike in light of its inherent structure and likely consequences. The main areas of concern with the NRP and with Secretary Chertoff's views of "public-private partnership" in that endeavor are:

First: they reflect a consistent pressure by the Bush Administration to reduce and to marginalize the role of state and local policing in the entire anti-terrorist matrix. As we have noted in other chapters, the current government has drastically cut the budget of the C.O.P.S. office, and has nearly eliminated funding to police forces for equipment, technology, interoperability, cross-training, education and salaries for officers. At the same time, state and local taxation has been operating on a severely reduced base.

The result is a near-universal scramble for scarce local police financing nationwide, coupled with significant cutbacks and the loss of the central "think tank" and clearing house (C.O.P.S. and its research/training institutes) at national level. The applied philosophy of Community Policing, as it is presently practiced in the U.S., will be in danger of withering if it continues to be unable to develop and disseminate new Community Policing programs as they evolve.

Also, intelligence gathering and first responder responsibilities of state and local police under DHS authority have been intentionally downplayed and neglected. In fact, in a DHS paper released April 1, 2005, a vague "future goal" of Secretary Chertoff is to "expand regional collaboration among first responders." It was immediately denounced as "such an anemic little list of goals for our first responders" by Richard Clarke, former chief of antiterrorism under Presidents Clinton and George W. Bush.

According to Clarke and many other experts, if the Bush administration were seriously planning an expanded role for community policing, it would presumably be making preparations or overtures similar to those Secretary Chertoff is swiftly making to the private security and manufacturing sectors.

This Chapter will document the falling star of US Community Policing while contrasting it with the rising star of European Community Policing.

Second: There is growing concern over the lack of accountability inherent in public-private partnerships that are vaguely defined yet grant a paramilitary status (or, more precisely, a police replacement status) to privately owned and operated security businesses. The track record is abysmal. Private contractors are almost never brought to justice for wrongs committed in the course of anti-terror activities.

On the other hand, municipal police forces are subject to a highly evolved legal structure of oversight and liability. It is an area of voluminous judicial decisions at all levels, federal and state. In this Chapter, we will demonstrate the broad civilian control over Community Policing and contrast it with the narrow military hierarchy -much power concentrated in few hands-and private security companies that offer even less civilian control or accountability. The comparative picture will then be augmented by the diligent research conducted by European governments and police forces that led, inter alia, to their adoption of Community Policing, in its present and future forms, as the linchpin of antiterrorism.

Third: Private security forces are not held to uniformly high standards across the country. There are no well-established training curricula; no history of public service; no ethos requirement. They are, in fact, mercenaries.

There are no Federal laws setting minimum standards for training or education of private security forces in the U.S. Even state laws are spotty on this issue. Thirty states have no training requirements at all. California, one of the four most "rigorous" states, requires a minimum of 40 hours (e.g., five eight-hour days) of training. No state requires even the scantest introduction to government, civics, or constitutional studies for private security operations.

As this book will demonstrate, European governments and citizens, EU members and non-members alike, are making an informed, judicious choice in avoiding the path the U.S. is taking:

"The public service may embrace other goals, such as social justice and being representative of social diversity. The lesson is that the decision to outsource [homeland security] would be taken purely for financial reasons, while social, economic or environmental factors would be left out of the decision. Values that are promoted by the public [policing] service will be jeopardized." Schreier and Caparini, "Privatizing Security: Law, Practice and Governance of Private Military and Security Companies; Geneva Centre for the Democratic Control of Armed Forces (DCAF), No. 6, Geneva, Switzerland, March 2005.

Fourth: The track record to date of private industry in the war on terror, both at home and abroad, is abysmal. The U.S. has, in fact, sent dubious "private armies" into a legal vacuum. Not surprisingly, the amateurism of the more than 20,000 private soldiers sent into Afghanistan and Iraq has met with worldwide dismay and disgust.

The pending lawsuits are mounting daily. Among the civil defendants are Custer Battles, Inc., CACI International, Titan Corp., Blackwater USA, Northrop-Grumman, Halliburton, Kellogg-Brown-Root, L-3 Communications, DynCorp, CSC, MPRI, Kroll Associates, and a growing number of others, all U.S. Government contractors in a "public-private partnership."

The employees of those contractors enjoy a virtual immunity from prosecution for acts committed abroad. They are not subject to military justice and are almost never tried in the U.S. for crimes, including murder and torture, they commit abroad. Much legal effort, and taxpayers' money, is expended in perfecting the avoidance of accountability.

This should be no surprise to Americans. Private security employees are loyal only to their employers. They answer to nobody but the shareholders. The nation as a whole has no legal means to impose or enforce even the most minimal standards of decency on them.

To quote P.W. Singer, a noted authority on public-private security questions, "Our democratic principles of public safety and security were formulated by leaders who did not, nor could they, anticipate the consequences if the security and public safety system became commingled with very real market forces, with all their dynamic shifts, uncertainties and extrinsic purposes."

Similarly, when police forces are privatized, or private policing acts at odds with the civic mission of police, a new agent of action parallel to the state is created: ruled by money alone.

All democracies are governed by a consensus of their citizens, openly arrived at, that they share a civic unity of spirit. It can be successfully policed and maintained only if the police themselves are a delivery instrument of civil and of human rights. They must be well-trained, and carry a thorough working understanding of the constitutional, human and civic structure they protect.

The state and municipal police of the Twenty-first Century are, increasingly, recruited and educated precisely with all those aims in mind. They represent one of the greatest achievements of the struggles of the 20th Century for ethics and accountability in government. The educational Renaissance of American police came with Community Policing as an applied philosophy supported by federal programs. The march toward an open civil society and the even-handed protection of human and civil rights is still unfinished. It is a work in progress.

One of its chief goals is to ensure the local community's ownership of its government infrastructure. Diluting that guarantee with a partnership between federal cabinet officers and private security corporations will result in the elimination of local governance in security planning. It will stop all local ownership of the communities. It will circumvent the few existing requirements of accountability.

Instead, it is clear that DHS intends to partner, closely and permanently, with private security manpower and technology. To Secretary Chertoff, it is a matter of risk management. And, according to him, risk management is a matter for corporations: "That is why we must and do count heavily on partnerships with many of you [private businesses]. And this is especially important given the private sector owns about 85 percent of our nation's critical infrastructure." (Chertoff, speech to US Chamber of Commerce, April 29, 2005).

Also, Secretary Chertoff offers private businesses a resource that the Bush Administration just recently stripped away from police forces: money. "We can do many things on the federal level to help our private sector partners…we can provide you information and intelligence…and we can provide some level of funding." (Ibid.).

As to accountability, will it increase under Secretary Chertoff's National Response Plan? No. "…[W]e have to be candid in recognizing that fear of the transaction costs of litigation has inhibited full deployment of our private ingenuity. That is why [we] provide limited liability protection to companies and manufacturers that develop qualified homeland security technology and processes." And more clearly, "We will provide some protections in the event that you are sued in connection with a terrorist attack."

It has never yet been demonstrated that fighting private lawsuits has harmed the security industry. In fact, PSCs are currently in unparalleled boom times, and the prospects are even brighter. They are getting Billions of dollars in no-bid contracts, and a large number of top executives from DHS are now leaving to become lobbyists for private security companies. (See U.S. News and World Report, May 30, 2005).

The legal vacuum in which private security firms have been operating abroad will now be accorded to them at home in the U.S. The program, as outlined by Chertoff, aims to insert private business into the public trust and to diminish the role of police in public safety. It strips police budgets, while offering both money and legal immunity to private security and technology firms.

The machinery for implementing that program is largely set forth in the 426-page National Response Plan. Briefly, in the event of a "significant terrorist strike", an all-powerful vertical hierarchy of newly-created councils and committees will go into action. Many of them consist of the FBI and three major partners:

The participation - or policy-making representation - of FBI, private security industry, National Guard (or Department of Defense) and (lastly) local police, will take effect in the following bodies, among others:

Joint Operations Center (JOC); responsible for policy-making decisions;
Joint Operations Center, Intelligence Unit (JOCIU); joint public-private decisions on intelligence security and usage;
Joint Field Office (JFO); awards and dispenses money for public-private partnership action.

Thus, private firms such as Kroll Associates, or Halliburton, and many others, will wield great influence in the awarding of DHS contracts. Municipal police will evidently have to compete with them, and with the National Guard, for funds.

There are no special provisions in the National Response Plan for the protection and preservation of civic government or of accountability to civilian bodies.

Secretary Chertoff has addressed the plan for cooperation with private commerce in great detail. He has likewise begun putting together the plan for National Guard participation. "If we were to have a critical event here, we would look to the National Guard as a critical part of our response, in terms of the ability to manage an emergency. I want to thank the business community for working with the Guard…"

As of this writing, Chertoff has not mentioned specific roles for state and local police apart from the vague phrase "information sharing" as set forth in the National Response Plan. He has not publicly recognized the importance of policing, community or otherwise, in preserving the nature of America's democracy. He has not addressed the issue of police funding.

Small wonder, then, that European observers emphasize the lack of regulation, accountability, and civic content in the U.S. approach. To Europeans, it appears from the record that the U.S. intends to pursue terrorism within its own borders in much the same way it now does in Iraq and Afghanistan. Many now predict that, upon US forces departure from Iraq, more of the considerable rage and resentment of the radical factions of Islamism will be directed against the US homeland. Thus, DHS Secretary Chertoff's planning in substituting military forces (National Guards) and paramilitary firms (private security companies) for community policing may constitute part of a self-fulfilling prophecy.

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The second part of Chapter XII will compare and contrast European anti-terrorist structures and organizations, together with the role, present and projected, of Community Police at three levels: National, International, and Supranational.

Sub-section (A), National, will discuss European 21st Century Community Policing and its primary role in antiterrorism, on a country-by-country basis. It will include intelligence gathering; first responder and terrorist sweep training; interoperability of communications; officer education in human rights, civic structure and democratic societies.

Sub-section (B), International, will refer to bilateral and multilateral treaties and working agreements between and among separate countries respecting protection of multiple homelands, and the international provisions for regulation and accountability of antiterrorist forces, both public and, where applicable, private security organizations.

Sub-section (C), Supranational, will review the antiterrorist measures recently taken by the European Union, the Organization for Security and Cooperation in Europe (OSCE), the Organization for Economic Cooperation and Development (OECD) and other bodies. In an ever-growing contrast with the policies of the US, they stress civilian (police) responses and planning; preservation of civil and of human rights; openness and transparency of processes; large investments in police training and education at all levels; and interdisciplinary or "cross-cutting" approaches to fighting terrorism that will create a broad basis of political and intellectual innovation.

Sub-section (C) will also review the roles of the Council of European Chiefs of Police, of the European Parliament and courts, the European Attorney General, and Europol in fighting terrorism and making the needed adaptations in society and economies to prevent its recurrence. It will explain the EU insistence upon avoiding a military response while preserving its acquis communautaire, the cumulative total body of laws, citizens' rights, achievements and progress in the EU to date.

In the words of the Chief of one of Europe's foremost national police forces, "Subverting one's own institutions for the declared purpose of fighting an open-ended war on terror is like surrendering to gain a ceasefire. There is no way to estimate the costs."

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--- Arthur A. Jones and Robin Wiseman are international human rights lawyers with legal educations in the United States and Europe. They are consultants and authors on international policing, social policy and human rights, and regular contributors to the forum here at LA Community Policing.

For more of their work, please see the Think Tank.

For additional information or a complete list of references, contact: