National Security Law

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.)