Arthur A. Jones, J.D., Dr.jur.
Robin Wiseman, J.D., Dr.h.c.
International Human Rights Law and Policy
c/o Los Angeles Community Policing
email to: Arthur@lacp.org

TERRORISM AND COMMUNITY POLICING IN THE
21 ST CENTURY,
THE UNITED STATES AND EUROPE COMPARED

Synopsis, Chapter XII, “Terrorism and Beyond: The Private Sector”

This chapter documents the falling star of Community Policing in the United States , while contrasting it with the rising star of Community Policing in Europe . In it, we examine the uniquely American phenomenon of private sector security businesses replacing state and local police in the “war on terror.”

First, the reader should be aware that, in the worldwide fight to stop terrorism, there is a deep and ever-widening gulf between the United States and Europe in their methods of approach. Europe has developed, and practices, a composite police and prevention response to terrorism, whether emanating from Al Qaeda, Islamic Jihad, Hamas, or other, more loosely affiliated groups or cells.

At the heart of this EU-US dichotomy is a basic difference of philosophy. European governments consider terrorism to be a tactic. It is impossible to declare “war” against a tactic. Also, military might, to Europeans, misses the point entirely. Military incursions can deter attacks, save lives, and change regimes. They cannot, however, promote or improve public ethics, social and political education, acceptable political behavior, or civic institutions.

Neither soldiers nor private security guards are trained for those tasks, but the public police forces of the 21 st Century, increasingly, are being educated to achieve precisely those goals.

Indeed, because police in all democracies are pledged to protect households and persons along with institutions –governments, constitutions, civil rights and judicial integrity—international cooperation among police forces can help us maintain the moral high ground, and may ultimately be the deciding factor in extinguishing the brutal flames of terrorism.

It is precisely that moral high ground that terrorism seeks to destroy, by ripping into what the ancient Romans called civitas : the fabric of civil society. Military actions can defend lives, but armies do not address, with sufficient or maintained focus, the tasks of preserving and advancing the quality and intricacy of rights as they interweave throughout a republic. Police, however, succeed in those tasks through their steadfast application of integrity and values embodied in a democratic and just society.

In large part, that is why Europeans –both EU and non-EU member states—have chosen to expand and educate their Community Policing forces to fight terrorism. Community Policing, when practiced in depth, robs terrorism of its allure, its romance, and its appearance of validity to potential recruits. Invading soldiers, foreign or domestic, do not have that effect.

The disparity between Europe and the U.S. in this area cannot be traced to popular social or cultural forces: Community Policing is more widely accepted and approved at grass roots level on both continents than ever before. Instead, the diminution or downgrading of Community Policing in the U.S. is the direct, intended consequence of the Bush Administration's policies regarding counterterrorism.

Just as American foreign policy is currently fixed around a “war on terror” emphasizing the use of military means, that same bundle of actions, motives and interests is attaching itself 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.

We begin with two major policy 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, in which we analyze the Bush Administration's action plan for a national response in the event of a future domestic 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 will note 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 functions (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.” Richard Clarke, former chief of antiterrorism under Presidents Clinton and George W. Bush, immediately denounced it as “such an anemic little list of goals for our first responders.”

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 to national and local police departments and police associations similar to the preparations Secretary Chertoff is swiftly making to the private security and manufacturing sectors.

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. (1)

Over 36% of all prisoner abuses and civilian casualties/injuries caused by Americans to date in the Iraq and Afghanistan operations were inflicted by private security company employees. None were prosecuted. (2)

Moreover, the question of loyalty rears its head early on in any consideration of the relative merits of outsourcing homeland security tasks to private security companies and the commercial guards they place on the open market. Even if there were strict security and regulatory requirements in place nationwide –there are not—it would be impossible to check credentials and vet qualified personnel out of the vast existing pool. In the Department of Defense alone, one year ago there was a security clearance backlog of over 270,000 investigative and 90,000 adjudicative cases. (3)

The Department of Homeland Security has never yet addressed the basic questions of loyalty and trust. Perhaps Secretary Chertoff assumes that private sector security employees can be trusted with intelligence gathering. Worldwide experience shows clearly that there are no guarantees, even with large-scale vetting, that individual employees hired by a private security firm to perform public safety intelligence tasks will be favorably disposed toward the American citizenry's needs. (4)

In fact, the US Army has recognized, at least since December 2000, that employees of private security companies can be security risks. (5) Specifically, the December 2000 Memorandum cautions that contractors “may be acquired by foreign interests, acquire or maintain interests in foreign countries or provide support to foreign customers.” It continues to warn us that “…[W]hen actors whose main responsibility is not to voters and democratic institutions but to shareholders perform [sensitive tasks], there is reason for concern.” (6)

By contrast, 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, both federal and state. In this Chapter, we will demonstrate the broad civilian control over Community Policing and contrast it with the narrow military hierarchy –great power concentrated in few hands—and private security companies that offer no 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. Sixteen states require no background checks. In 22 states, private security services do not have to be licensed. (7)

As this book will demonstrate, European governments and citizens, EU members and non-members alike, have made 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.” (8)

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 25,000 (some estimates are as high as 45,000) (9) private security guards, sent into Afghanistan and Iraq with military equipment and with quasi-military assignments, has met with worldwide dismay and disgust. (10)

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,

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 an efficient delivery instrument of civil and 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 21st 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 20 th 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 America 's chief goals is to ensure every local community's ownership of its government infrastructure. Diluting that guarantee with a partnership between a federal cabinet officer and any number of private security corporations will result in the elimination of local governance in security planning, thus wiping out all local ownership of communities and circumventing the few existing requirements of accountability.

Using private security firms, their equipment, their tactics and methods, and their security guard employees to carry out what are properly police functions deprived public safety of its whole political context and exacerbated the difficulty of securing local ownership of deciding, funding and budgeting public works matters altogether, all because a third, commercial actor had been thrust into the community equation. (13)

Further, many experts cite the experience of countries around the world –in the Balkans, former USSR, Russia, Central Asia, Afghanistan, Indonesia, Malaysia, Central and South America, and (perhaps most widespread and most catastrophic in result) Africa—for the proposition that public-private partnerships in domestic public safety lead to the dismantling of government in ways that are clearly traceable and provable. They begin with political-commercial cronyism, then proceed to the establishment of parallel or shadow structures of power and authority. (14)

The reliance on private security continues its harmful effects on states by weakening them in the following ways:

Short-term reliance on the private sector may further governments' immediate objectives, but the way in which it tends to crowd out the public security apparatus means that extensive reliance on private security companies in the longer term weakens state authority. Extreme care must be taken to ensure that homeland security is not carried out at the expense of democratic accountability and transparency in the security sector. (16)

Beyond doubt, the involvement of private security companies and their hired guards in homeland security, now or after cessation of US presence in Iraq , will weaken American policing, and will weaken American democracy.

Yet, despite the foreseeable consequence that it will result in dismantling our institutions, DHS Secretary Chertoff 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.” (17)

Also, Secretary Chertoff now 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.” (18)

But will accountability 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.” (19)

The legal vacuum in which private security firms have been operating abroad will now be extended to cover 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; (21)
Joint Operations Center, Intelligence Unit (JOCIU); joint public-private decisions on intelligence security and usage; (22)
Joint Field Office (JFO); awards and dispenses money for public-private partnership action. (23)

Thus, private sector firms such as Kroll Associates, Halliburton, Brown & Root, 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. (24)

There are no special or general provisions in the entire 426-page text of the National Response Plan for the protection and preservation of civic government or of accountability to civilian bodies.

Secretary Chertoff 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…” (26)

[Authors' Note: In the course of final preparations of this Synopsis, a news article appeared in the Sunday, June 26, 2005, edition of the Monterey Herald and the San Jose Mercury newspapers, written by Dion Nissenbaum and entitled “State Guard Forms Anti-terrorism Intelligence Unit”: ‘… California's National Guard has quietly set up a special intelligence unit that has been given ‘broad authority' to monitor, analyze and distribute information on potential terrorist threats, the Mercury News has learned. Known as the Information Synchronization, Knowledge Management and Intelligence Fusion program, …top National Guard officials have already been involved in tracking at least one recent Mother's Day anti-war rally organized by families of slain American soldiers, according to e-mails obtained by the Mercury News.”

“It's nothing subversive,” said Guard spokesman Lt. Col. Stan Zezotarksi. “Because who knows who could infiltrate that type of group and try to stir something up? After all, we live in the age of terrorism, so who knows?”

This current incident demonstrates both the mission creep and the loss of public accountability that accompany military-private sector arrangements, and offers a powerful argument for Community Policing's role in anti-terrorism as opposed to the National Response Plan ordained by DHS.

At the time of this writing, DHS Secretary Chertoff still has mentioned no 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 while it protects us from terrorists.

It is extremely disturbing that Secretary Chertoff has not publicly explained or addressed the issue of police funding. In fact, the current Bush Administration plan is to cut back C.O.P.S. (Community Policing) spending to a meaningless $18 million, down from its peak of $538 million in 2000. (Note: Community Policing finances are also discussed in other chapters).

“The federal government can provide only limited help to states and local government to protect transit systems from terror attacks, and local officials must be largely responsible for the costs of improved subway, train and bus security.” (27)

Chertoff is, of course, aware that state and local officials are already grappling with the problem of finding money to pay for upgrades to protect commuters and other mass transit passengers in US cities. The technology alone necessary to protect mass transit systems in the 30 largest urban areas will probably cost an estimated $ 6 billion. If we count personnel, administrative and other operating costs for an integrated mass transit security system, the cost could exceed $ 6.5 billion per year. (28)

Even the DHS funding to local and regional police forces is at risk of disappearing. According to data released in early May 2005, over 56% of all Homeland Security grants intended for local police remained undistributed after up to two years. Unspent monies were due to be returned to DHS after June 30, 2005, if not otherwise subject to special extension. (29)

Instead, while stiff-arming police forces away from lucrative Homeland Security partnership arrangements with security guards and their equipment producers, Secretary Chertoff and other administration officials have proposed to shift Community Policing efforts toward ferreting out the potential terrorists from among illegal immigrants nationwide. (30)

The idea behind channeling state and local police resources into concentrating on massive surveillance and arrests of illegal immigrants takes the form, not of returning to a policy supportive of Community Policing, but precisely the opposite. In order to fund the wholesale harassment of undocumented foreigners in our midst, the Bush Administration proposes to strip the last remaining money out of Community Policing:

The plan to coerce state and municipal police departments into restricting their homeland security activities to the concentrated pursuit of illegal aliens and undocumented immigrants was put in place in late 2002 by then-Attorney General John Ashcroft, and recently promoted by DHS Secretary Chertoff. On the one hand, the curtailment of federal funding has indeed had the intended chilling effect on Community Policing. On the other, an additional coercive bludgeon is being used to stifle police and municipal dissent: “Police departments that refuse to cooperate with the Attorney General's request are announcing to the world that their communities are safe havens for terrorists.” (32)

As conceived, the “police vs. illegal immigrants” suggestion would have the following consequences:

In any event, the evidence does not support the thesis that massive police intrusion into undocumented workers' lives would locate terrorists. Recent testimony before the House Judiciary Committee revealed that Justice Department sweeps of airport workers across the country identified some 1,000 undocumented workers, but no terrorists. The number of potential terrorists located by means of immigration violations to date can only be considered infinitesimal. (34) In fact, only three employers were even threatened with sanctions in 2004, down from 417 in 1999. Obviously, the massive government pursuit of undocumented workers is already known by federal officials to be a statistically unproductive activity in the search for terrorists.

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 . It will apparently use military force (National Guard) in partnership with private sector security guard businesses, while decimating the numbers of American police officers and ruining their community role, their capabilities, and their functions in society.

Officials and experts now predict that, upon departure of US forces from Iraq , much of the considerable rage and resentment of the Muslim radical factions of Islamism, together with the more general and widespread anger at the US invasion, will be directed against the US homeland. Thus, DHS Secretary Chertoff's plan to substitute military forces (National Guards) and paramilitary firms (private security companies) for community policing may constitute part of a self-fulfilling prophecy.

The DHS plan would also call into question the legitimacy of domestic actions taken by private security companies and their employees or consultants. Even if they are sanctioned by a federal department or task force, their presence in communities will not create a perception of legitimacy. (35) Public concerns over reliance on non-local, private commercial firms hired as mercenaries to protect the homeland could easily undermine the social contract. Openly linking co-determination of basic public safety policy with economic interests would lead to a breakdown of respect for governmental authority and would, at the least, delegitimize its right to rule.

As noted in the foregoing, history teaches us that using private commercial means to fulfill public safety functions inevitably leads to massive abuses of power and wholesale mistreatment of entire segments of the population. (36) It also clearly demonstrates the “travesties that result from treating government responsibilities as an adjunct to commercial operations.” (37)

Finally, private security operations introduced to replace policing, or to function parallel to municipal police, will lead to a loss of transparency and of local ownership of public safety, even before such travesties begin. Once the “mission creep” common to such commercial enterprises is activated, however, abridgments of citizens' rights will become the order of the day. (38)

In that event, a return to police forces paid by taxes and accountable to the people will be difficult, perhaps impossible. Community Policing will have become a distant memory.

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CONCLUSIONS

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Community Policing as a working philosophy builds confidence in the civic governance structure, and can be exported to strengthen emerging democracies. The continued export of militarism, on the other hand, demonstrably leads to “blowback” such as increased terrorism, puppet or client governments lacking in permanent democratic content, legitimacy or stability, and the return of old ethnic and cultural resentments in many countries, many regions.

Strong arguments can be made that American assessments of European policies in the fight against terrorism should not, in the interests of all parties, be based on such subjective or superficial assessments as Europeans' willingness or lack of willingness to adopt or to follow US directions and directives. European insistence on strengthening Community Policing in human intelligence gathering, data sharing, interagency and international cooperation, efficient centralization of police efforts, coordinated deployment of tactical units, and EU-wide arrest warrants, is a complex, progressive and sophisticated process.

It could be emulated in great part in the US to our advantage. It is not emblematic of an anti-American posture on the part of Europeans, nor do European police forces generally wish to lose valuable time mulling over possible American reactions to their accelerated efforts.

Further, Americans involved in first response, intelligence gathering and/or surveillance, as well as their government, will not fulfill the public's expectations if they fail to study European advances –and problems—in sufficient depth and detail. We intend to demonstrate that Americans cannot afford the luxury of military and political chauvinism in combating terrorism in the 21 st Century.

Instead, the available evidence leads us to the conclusion that to prevent the worst kinds of attacks, and to respond well to others, we need to train as many law enforcement officers as possible in Community Policing as it operates in the fields of human intelligence gathering, compiling interactive databanks, and forming close partnerships with local communities and civic organizations at grass-roots level.

We need better education and training for police, public transit bodies, and citizens in general. We need better communications systems between and among police and other first responders, and between all of them and the citizenry. As it now stands, the Department of Homeland Security, under the leadership of Secretary Chertoff, refuses to recognize the duty to protect adequately our public infrastructure as opposed to privately-owned commercial enterprises recently re-classified as ‘infrastructure'. Secretary Chertoff also refuses to fund Community Policing or even to recognize its pivotal importance in defeating terrorism. (39)

The dangerous policy of emphasizing private sector commercial security and military supplier companies in partnership with publicly sworn law enforcement agencies is a symptom of the dogmatic abdication of all public duties for which our government is and should be accountable. The foremost, and most basic, among those duties is that of public safety and security. (40)

We also have a bitter lesson to learn from history. The privatization of public safety has been tried before, under the Roman Empire . Historians are nearly unanimous in the conclusion that private exercise of state functions was one of the chief factors leading to the downfall of the Roman Empire :

“Here was a development that accompanied the dissolution of the Roman Empire: powerful landowners gathered private armies with which they increasingly took over state functions, such as the preservation of peace, policing authority, and enforcement of the law.” (41) The result was a complete and swift ethical breakdown that ended the authority of government and of law. A very few years later, the era we know as the Dark Ages began.

Finally, the US drive to create democracies quickly in all areas of tension worldwide, combined with the current insistence upon engineering the degradation of such basic institutions as police forces at home, will combine to produce a dilution of democratic institutions, within both the newly-minted governments abroad and in the United States . The ultimate product will be a great leveling process—in which Americans have fewer rights, less constitutional protection and little civilian oversight or accountability, serving as a model for dozens of fledgling republics that will see no need or reason to surpass the U.S. in quality of democracy.

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 cost.” (42)

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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.

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