Effective Counterterrorism: State and Local Capabilities Trump Federal Policy

Following the September 11, 2001, terrorist attacks, and then Hurricane Katrina, Americans generally assumed that authorities in Washington, D.C., would shoulder the primary responsibility for securing the safety of the American homeland. This assumption is understandable given that over the past half-century the federal government has amassed far more authority than was ever envi­sioned in the U.S. Constitution. Despite a rich his­tory of civilian defense in which states and localities have taken responsibility for their own affairs, the U.S. government is federalizing more and more of the homeland security mission.

Not only is this approach constitutionally incor­rect, but the states themselves could do the job bet­ter. Washington's one-size-fits-all solutions rarely succeed. The country's needs are too diverse, federal resources are physically too far from any one loca­tion to secure rapid responses, and federal decision-making is notoriously inept.

The Heritage Foundation's Homeland Security and the States Project seeks to place responsibility where it should be according to the Constitution and where the most efficient, effective leadership resides. This project focuses on four areas where state and local leadership is preferable to federal oversight: preparedness for and resiliency against terrorist attacks and natural disasters, disaster response, interior enforcement of laws against ille­gal immigration, and counterterrorism. The project involves four key phases:

• Research and outreach to state and local associations in Washington, D.C.;
• State and local outreach using 10 regional roundtables;
• Drafting, circulating for review and comment, and finalizing a suite of solutions across the four areas of focus for states and localities to enact or adopt; and
• Launching an adoption campaign.

As part of the research process, we have gathered the homeland security budget data for specific states, cities, and counties; analyzed disaster re­sponse activities at the federal level historically; compiled initiatives and legislative actions to com­bat illegal immigration; and conducted a survey of state and local counterterrorism capabilities. (See Appendix A.)

State and Local Law Enforcement Must Lead

As The Heritage Foundation's previous report on state and local homeland security budgets viv­idly demonstrated, state and local resources far exceed federal resources.[1] Specifically, in addition to appropriating more money every year to domestic law enforcement efforts, states and localities employ over 1.1 million officers, compared to the roughly 25,000 agents working for the Federal Bureau of Investigation and Immigration and Customs Enforcement. This imbalance makes sense given the chronic public safety issues in American cities and states.

Constitutionally, states and localities are the proper leads on domestic security issues. As Alexander Hamilton noted in The Federalist No. 17, "There is one transcendent advantage belonging to the province of the State governments, which alone suffices to place the matter in a clear and satisfactory light--I mean the ordinary administration of criminal and civil justice."[2]

But the importance of a state and local lead on domestic counterterrorism goes beyond money, personnel, and even constitutional appropriateness. As the counterterrorism survey reveals, the vast majority of state and local law enforcement agencies use one or more of the three primary policing techniques-- community policing, intelligence-led policing, and problem-oriented policing--to secure their jurisdic­tions. These techniques, first widely deployed by then-New York City Transit Authority Chief William Bratton in 1990, have resulted in significant reduc­tions in crime all across the United States.

Unlike federal agents who really enter communities only as part of active investigations, state and local law enforcement personnel see it as a source of success to become active parts of their community. Whether it is by walking an assigned beat or patrolling sections of a city by car, local law enforcement officers come to know their communities inside and out. This familiarity results in two critical developments:

• Community members trust them and share key information about what is going on in the area, and
• Law enforcement personnel develop a gut instinct that allows them to sense when some­one or something just is not right.

As the International Association of Chiefs of Police has noted, "Over the past decade, simulta­neous to federally led initiatives to improve intelli­gence gathering, thousands of community policing officers have been building close and personal rela­tionships with the citizens they serve." These activ­ities provide them "immediate and unfettered access to local, neighborhood information as it develops...[where the people] provide them with new information."[3]

In addition to their community knowledge, state and local governments house roughly 90 percent of America's prison population. Given the increasing concern that some prison inmates are susceptible to radicalization, the work being done in U.S. jails and prisons to monitor, detect, and thwart terrorist activities must remain closely connected to the same activities occurring in our communities, espe­cially as potentially radicalized prisoners are paroled. This linkage becomes even more impor­tant as gang and drug cartels consider connecting with terrorist groups.

This investment in money, people, policing techniques, and communities gives America its best chance to detect and prevent a terrorist attack once the terrorists have entered the country or when homegrown radicals emerge. To be successful, state and local law enforcement must have the ability to do its job.

Developing State and Local Capabilities

As detailed in the Target Capabilities List (TCL) developed by the U.S. Department of Homeland Security (DHS) in close partnership with state and local partners, there are five critical prevention capabilities that states and localities should possess to deal with the threat from terrorists:

• Information-gathering and recognition of indicators and warnings;
• Intelligence analysis and production;
• Intelligence and information-sharing and dissemination;
• Counterterrorism investigation and law enforcement; and
• Chemical, biological, radiological, nuclear, and explosive (CBRNE) threat detection.

Each capability has specific outcomes, objectives, preparedness measures, performance measures, resource elements, planning assumptions, and tar­get-capability preparedness levels. The TCL capa­bilities assume a requisite level of staffing to perform the tasks within each capability.[4] (For details on each of the five TCL capabilities, see Table 1.)

The 9/11 Commission's conclusions pertaining to the staffing capabilities needed by the FBI are con­sistent with the TCL personnel requirements and apply with equal force to state and local counterter­rorism units. Specifically, units should possess "agents, analysts, linguists, and surveillance special­ists who are recruited, and retained to ensure the development of an institutional culture imbued with a deep expertise in intelligence and national security."[5] Ideally, agencies will possess distinct counterterrorism units with dedicated full-time officers and a leadership structure that reports directly to the head of the agency.

Agencies should ensure that being part of the counterterrorism units provides career advance­ment for their personnel so that they can attract and retain officers. To do this, they "should fully imple­ment a recruiting, hiring, and selection process for agents and analysts that enhances [their] ability to target and attract individuals with educational and professional backgrounds in intelligence, international relations, language, technology, and other relevant skills."[6]

Although many small to medium-size cities may not need the full gamut of counterterrorism capabil­ities, many higher-risk jurisdictions, given al-Qaeda's global history of launching attacks in large urban centers, should have them. This requires city and county leaders to restructure their budgets to ensure that the requisite level of funding goes to acquiring, creating, and maintaining vibrant coun­terterrorism capabilities. DHS grant funding can then be used to supplement the state and local bud­gets to acquire the necessary TCL capabilities.

Regional Counterterrorism Today

Due to the sensitivity of publicizing existing capabilities of specific states, cities, and counties, the Heritage survey asked respondents to identify themselves by Federal Emergency Management Agency (FEMA) region and population. Heritage sent the counterterrorism survey to the principal state and local law enforcement officials (state superintendent or secretary, chief of police, and sheriff) in 129 jurisdictions across America. The list represented 28 states and the District of Columbia, as well as 54 cities and 46 counties. The cities and counties are jurisdictions that DHS has made eligi­ble for the Urban Areas Security Initiative (UASI) grant program. (For the list of jurisdictions, see Appendix B.)

Heritage received responses from 64 of the 129 jurisdictions. The 64 responses cover nine of the 10 FEMA regions. Heritage did not receive any responses from Region VIII (in Denver, Colorado) and received only one response from Region VII (in Kansas City, Missouri). Those two regions, however, have only eight survey recipients because of their lack of higher-risk urban areas (only four UASI jurisdictions across the 10-state area).

Critically, Heritage did receive responses from more than half of the recipients in four regions: II, IV, IX, and X. These four regions contain almost half of the higher-risk urban areas that received UASI funds in fiscal year 2008, including Atlanta, the San Francisco Bay Area, Los Angeles-Long Beach, Miami, New York City-Northern New Jersey, and Seattle. (For the distribution of recipients and responses by region, see Table 2.)

Based on the survey responses, it is clear that much work remains to be done to ensure that the higher-risk states and localities possess the counter­terrorism capabilities highlighted in the TCL that are necessary to keep their citizens safe from another terrorist attack.

Specifically, of the 64 jurisdictions, only 42 pos­sess counterterrorism units. Of those units, only 20 were deemed critical enough to have leadership that reported directly to the head of the agency. Staffing levels also were weak. Even though six jurisdictions had 31 or more "full-time officers [who] work on terrorism issues," 12 had no full-time officers, and another 30 had only one to five full-time officers.

In terms of more specialized staffing, only three jurisdictions had 21 or more full-time intelligence analysts. Twenty jurisdictions did not have any full-time intelligence analysts, and 27 had between one and five intelligence analysts, which together repre­sented 73 percent of the jurisdictions. Jurisdictions with full-time linguists were even worse: Only two jurisdictions had 21 or more full-time linguists, and one had between 11 and 20 full-time linguists. A total of 52 jurisdictions lacked a full-time linguist.

Despite the lack of full-time linguists, many juris­dictions had some ability to translate and communi­cate in one of 16 different languages. Not surprisingly, the language that most jurisdictions could handle was Spanish (36). The second language was Arabic (24), followed by Russian (23), Korean (17), and Farsi (14). Other languages were Portuguese (12), Mandarin (11), Cantonese (10), Hindi (8), Urdu (7), Pashto (6), Punjabi (5), Bahasa Indonesian (4), Somali (4), Turkish (4), and Bangla (3).

To close the gaps in intelligence and linguistics, states and localities need to partner with higher-education institutions to develop analytic and lan­guage programs.

The jurisdiction with the most capabilities had a counterterrorism unit with 31 full-time officers, 21 intelligence analysts, and 21 linguists; could trans­late and communicate in all 16 languages, and belonged to a Joint Terrorism Task Force (JTTF). The jurisdiction with the least capabilities had no counterterrorism unit, no intelligence analysts, and no linguists; could not translate or communicate in any of the 16 languages; and did not belong to either a JTTF or a fusion center.

Finally, when it comes to the continued inter­agency fight between DHS and the U.S. Department of Justice over which agency is the primary federal partner for state and local law enforcement on infor­mation- and intelligence-sharing, the Justice Department has far more connections to the nation's major law enforcement entities. Specifically, almost every one of the major law enforcement jurisdictions that responded to the survey (61) belonged to a JTTF, while only 43 jurisdictions participated in or had a fusion or data center. Because state and local law enforcement agencies already face budget constraints and very limited resources, the demands-- in many cases redundant--by DHS and the Justice Department can overwhelm them.

What Should Be Done

Washington needs to end the dual-headed fed­eral agency fight over which entity should be the primary federal partner of state and local law enforcement. Rather, the federal government needs to present a federal enterprise solution to state and local governments. The bottom line is that too many of the United States' higher-risk jurisdictions lack the requisite level of counterterrorism capabilities to engage in effective prevention activities. This defi­ciency must end.

First, state and local political leaders must stop underfunding their law enforcement agencies and thereby preventing those agencies from building robust counterterrorism programs. These elected officials must also stop cutting law enforcement budgets during budget crises. With the explosion of state and local budgets unrelated to public safety over the past decade, surely there are other agencies that could be downsized and still maintain minimum functionality. The nation's security must come first.

Second, states and localities should reorganize their law enforcement agencies in accordance with the 9/11 Commission's recommendations. To attract top candidates, law enforcement agencies must make clear that a career in counterterrorism has the same upward mobility as a career in more traditional units. Candidates also need to know that their jobs will be secure when money gets tight.

Third, there must be a realistic assessment of risk. Are there really 60 urban areas that can be classified as "high risk," or did DHS simply make a political decision when it enlarged the number of fully eligible urban areas from 35 to 60 last year? Although the DHS risk formula is classified, those who have seen it know that the curve on the chart begins to flatline once the line hits the 30th urban area. By extending eligibility to 60 urban areas, DHS is merely diluting the finite federal funds that truly at-risk urban areas need to supplement their local budgets, thereby delaying the implementation of critical counterterrorism capabilities. Since DHS has failed to make the tough choices, Congress must expressly limit the number of urban areas that are eligible for the UASI grant program to 35 or fewer.

In the eight years since the 9/11 attacks, too much of the debate about how to fix domestic intelligence deficiencies has been focused on the federal aspect. Whether the debate centered on the creation of the Information Sharing Environment (ISE) or the role of the Director of National Intelligence, there was too little serious discussion of the role of states and localities. Too often, Washington viewed states and localities as mere sources for data.

Rather than spending yet more years talking about the need for state and local "information-sharing," which really just means sending informa­tion to the federal government, the United States should first properly apportion the roles and responsibilities between the federal government and states and localities based on the respective resources that each possesses (money, people, and experience). Then the federal government should help states and localities, especially the higher-risk jurisdictions, to fill gaps in their counterterrorism capabilities.

Finally, the federal government should get out of the way of state and local law enforcement agencies so that they can do the job they have done since the founding of our country: protect us. Thankfully, it is not too late to do these things so that we increase the odds of preventing a terrorist attack on American soil.

Matt A. Mayer is a Visiting Fellow at The Heritage Foundation, President and Chief Executive Officer of Provisum Strategies LLC, and an Adjunct Professor at Ohio State University. He has served as Counselor to the Deputy Secretary and Acting Executive Director for the Office of Grants and Training in the U.S. Department of Homeland Security. He is author of Homeland Security and Federalism: Protecting America from Out­side the Beltway, which will be published in June 2009. The author thanks all the state and local law enforcement agencies that responded to the survey.

Appendix A

Homeland Security and the States Counterterrorism Survey

Appendix B

Cities and States Eligible for UASI Grants

Appendix C

Region I Survey Results (click to view)

Region II Survey Results (click to view)

Region III Survey Results (click to view)

Region IV Survey Results (click to view)

Region V Survey Results (click to view)

Region VI Survey Results (click to view)

Region VII Survey Results (click to view)

Region VIII Survey Results (click to view)

Region IX Survey Results (click to view)

Region X Survey Results (click to view)