In his March 8, 2016 article in the Washington Post, entitled “The FBI and NYPD make peace, focusing on fighting terrorism and not each other”, journalist Adam Goldsmith reports on the evolving relationship between the Federal Bureau of Investigation (FBI) and the New York City Police Department (NYPD). According to Goldsmith, the relationship between the two law enforcement agencies has never been particularly friends. However, as a result of the September 11, 2001 terrorist attacks (9/11) in New York City, the relationship had, until recently, become particularly adversarial (Goldsmith). In the aftermath of the attacks, the NYPD established its own specialized counterterrorism units, known as the Intelligence Division and the Counterterrorism Bureau, with the task for protecting the city other terrorist attacks. As one the largest law enforcement agency in the nation, it was not a problem to staff and fund these two new units, and before long they were actively pursuing and investigating terrorist related activities that they felt threatened or potentially threatened the city or its interests.
Despite, are large FBI presence in New York City as well as NYPD involvement in the Joint Terrorism Task Force that was formed be the federal government after 9/11, its Intelligence Division and Counterterrorism Bureau have largely acted independently and under the direction of the NYPD police commissioner. In essence. Goldsmith points out, the NYPD made an unambiguous decision in establishing the two units to take the city’s protection from terrorist threats into their own hands (Goldsmith). Consequently, over the years there have been a number of incidents where both the FBI and the NYPD have been simultaneously involved in the same terrorist investigations. With neither side trusting the other to effectively carry out the investigation or eliminate the terrorist threat, rather than cooperate, both agencies have rather worked to frustrate the efforts of the other. Indeed, at one point, Goldsmith reports that the NYPD would repeatedly two the vehicles of FBI agents, just to aggravate them (Goldsmith). In another incident, “without informing the” FBI, NYPD investigators allegedly interrogated a local Muslim cleric about a “suspect in a plot to attack” the city’s subway system without knowing that the cleric knew the person (Goldsmith). The cleric then informed the suspect that the NYPD were interested in him, and the person changed his plans. The result was that the FBI, who had been monitoring the suspect in hopes that he would lead them to more important terrorist suspects, were left with a “compromised” investigation (Goldsmith).
Despite the issues between the agencies, Goldsmith writes, that over the last few years and especially with the appointment of William J. Bratton as the NYPD Commissioner in 2013, the relationship has gotten better. This is illustrated first and foremost by the increase in cooperation and information sharing between the two agencies. Indeed, according to Goldsmith the FBI is now a regular attendee of the weekly NYPD “intelligence collection meeting” (Goldsmith). Additionally, the FBI has also increased its inclusion of the NYPD’s natural resource, namely is army of police officers, in FBI operations and investigations in the city. In other areas, both agencies have worked to eliminate areas and instances of tension that had previously existed. For instance, Bratton “banned” NYPD officer from towing FBI cars without reason. What the improved relations have led to is more focus and attention put on an adversary that both agencies have in common, namely the terrorist.
Terrorism is one of the few contemporary issues that simultaneously challenges the American political system on multiple levels. Indeed, as the Goldsmith article illustrates, one of the primary challenges that terrorism, or more specifically, counterterrorism efforts pose is their effect on federalism.
Federalism is one of the exceptional traits of the American political system. As the Constitution makes clear, there are two forms of government, namely federal and state. The federal government is limited to those specific powers that the Constitution states are under its authority. All other powers belong to the states. One of the plenary powers of the federal government is over international affairs. One of the plenary powers of the state, and its subdivisions, is the police power. So while the federal government can send the FBI to investigate a bombing of abroad; the FBI does not have the authority to arrest a person who breaks a New York City law. One the other hand, while a NYPD officer can arrest a person who blows up a bus, they cannot run foreign intelligence operations.
Naturally, national security is a responsibility that government at all levels play a role in ensuring. Terrorism, however, blurs the line between federal and state powers. This is because terrorist is both local and international at the same time. In other words, a terrorist or terrorist organization implicates the authorities of both the state and the federal government. Moreover, the Constitution is not clear on which authority has precedence. The question of federalism, and who has primary authority, was and remains one of the underlying tensions between the FBI and the NYPD.
It has been the tradition that the FBI and other federal agencies such as the Central Intelligence Agency (CIA) would have primary responsibility for the investigation of terrorist activity. This stems from the fact that terrorism has been closely linked to foreign operatives and locations abroad. This also is the result that the FBI has the national reach to follow a lead, if necessary, across state lines. The issue with federalism, however, rises when a suspect has no known interstate or transnational connects. For example, if the suspect was a local citizen who suddenly decides to support ISIS without ever having been abroad or having contact with a foreign individual. Does the FBI have the authority to investigate or monitor this person? Under the Constitution, it would seem that the do not have such authority. That authority, rather, lies with the state, city, or local government with jurisdiction over the individual. From this aspect, the two special units that the NYPD established after 9/11 seem to be a reasonable expression of the police power. That is to say, that in combatting terrorist activity that is of a local nature, the NYPD should have primary responsibility for the investigation and resolution of the case. In other words, there should not be the tension that existed between the FBI and the NYPD as the article details, because the NYPD was within their right, at least for all local counterterrorist investigations, to act.
Federalism under the Constitution not only addresses the divided between the federal and state governments but also between state and state governments. Accordingly, while a state has the police power, that power ends at the state border. In other words, an NYPD officer has no authority in New Jersey. As is often the case, terrorism is rarely a completely local happening. Whether the suspect used travelled abroad, know or has foreign connections, or even used the internet to search or contact a co-conspirator, the chances that they conducted an interstate or transnational act in planning or implementing a terrorist act is highly likely. In this instance, the FBI’s questioning of NYPD counterterrorist efforts is also reasonable in that it is the only law enforcement agency with the power to operate in all states. Moreover, as was revealed in the NYPD interrogation of the Muslim cleric that led to problems with the FBI investigation, the FBI is also one only authority with a broad vision to see to larger picture of counterterrorist efforts.
Perhaps the best resolution to the challenge that terrorism and counterterrorism efforts pose to federalism is the solution reached by the FBI and NYPD. By deciding to work together, the two agencies rendered the issue of who has authority moot. In the battle against terrorism, it is not a question of who has authority but rather an issue of shared authority against a common enemy.
Works Cited
Goldman, Adam. “The FBI and NYPD make peace, focusing on fighting terrorism and not each other.” Washington Post, 08 Mar, 2016. Web. https://www.washingtonpost.com/world/national-security/the-fbi-and-nypd-make-peace-focusing-on-fighting-terrorism-and-not-each-other/2016/03/08/68647bcc-e221-11e5-8d98-4b3d9215ade1_story.html
