National Security Federalism in the Age of Terror

That’s the title of a new paper in the Stanford Law Review by Columbia Law School’s Matthew Waxman (link is to SSRN).  One highly topical example of national security federalism is raised by the controversy over NYPD surveillance of various Muslim groups.  It is easy to view this issue in familiar terms of substantive balances or tradeoffs of security versus privacy or other Constitutional values – and seen in those terms, the natural solutions seem to lie in tightening and enforcing substantive restrictions and guidelines that govern police intelligence activities and investigations. Waxman’s new article is important for focusing instead on the broader structural and institutional issues – the federalism issues – at stake here, too:  What role should local police agencies play in terrorism prevention, and how should their cooperation be organized horizontally (among local police agencies) and vertically (between the federal and local governments)? How much discretion should state and local governments have in performing counterterrorism intelligence functions, and what are the dangers and opportunities in localized variation and tailoring?  (Below the fold, the abstract from SSRN.)

National security law scholarship tends to focus on the balancing of security and liberty, and the overwhelming bulk of that scholarship is about such balancing on the horizontal axis among branches at the federal level. This Article challenges that standard focus by supplementing it with an account of the vertical axis and the emergent, post-9/11 role of state and local government in American national security law and policy. It argues for a federalism frame that emphasizes vertical intergovernmental arrangements for promoting and mediating a dense array of policy values over the long term. This federalism frame helps in understanding the cooperation and tension between the federal and local governments with respect to counterterrorism and national security intelligence, and also yields insights to guide reform of those relationships. The Article emphasizes two important values that have been neglected in the sparse scholarship on local government and national security functions: (1) accountability and the ways vertical intergovernmental arrangements enhance or degrade it, and (2) efficiency and the ways those arrangements promote public policy effectiveness. This Article reveals the important policy benefits of our shared federal-local national security system, and it suggests ways to better capture these benefits, especially if terrorism threats evolve to include a greater domestic component.