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Toward Intelligent Anti-Terror Policing By: Daveed Gartenstein-Ross
FrontPageMagazine.com | Friday, July 15, 2005

Twice since 9/11 we have witnessed high-profile reminders of our mass transit system’s vulnerability to terrorist attack.  And while the March 11, 2004 Madrid train bombings and the July 7 atrocities in London loom largest in our memory, they are not the only indications that such attacks are possible in the United States.  Chechen terrorists have bombed the Moscow subway system with alarming frequency over the past several years, and in late August of last year two men were arrested in an alleged plot to blow up a Manhattan subway station.

Commentators have spoken frequently of how our open society is vulnerable to terrorism.  But al-Qaeda derives particular advantage from the fact that one of its goals is to cripple our economy:  To the extent that our anti-terror measures overreact to the terrorist threat, we may unwittingly do al-Qaeda’s work for it.  For example, if we tried to protect New York’s subway system through anti-terror measures similar to those used on airlines, complete with metal detectors and wandings, traveling by subway would become so inconvenient that many people would no longer do it.  The resulting traffic congestion and delays would have a significant economic impact.

In light of this dilemma, some commentators have concluded that nothing can be done.  For example, the talented Newsday columnist Ellis Henican wrote on the day after the London attacks:

Every day, 4 1/2 million men, women and children climb aboard [the New York City subway] trains.  Add another half-million or so for the commuter rails, another 2 1/2 million if you count the buses.  You’re gonna strip-search every one of them?  You’re gonna walk them through metal detectors and wand their bodies when the magnetometers ring?  You’re gonna rifle every briefcase, knapsack and gym bag?  Impossible!

Henican is right that we cannot protect ourselves 100 percent from the threat of terrorism.  However, we can improve our odds.  In writing of the impossibility of protecting the subways, Henican takes as a given our current one-size-fits-all model of anti-terror policing wherein every passenger must be treated equally.  In this model, everyone must be equally inconvenienced by metal detectors, wands, and bag searches.  Yet it is precisely from this policing model that we must move away if we’re to have a realistic chance of preventing an attack on the mass transit system right here in the United States.

The United States is blessed with extremely talented and dedicated law enforcement officers who have done an impressive job since 9/11 of tracking down the terrorists in our midst.  Solid intelligence, arrests and prosecutions are a cornerstone of protecting U.S. citizens.  Yet nobody believes that all terrorists on the home front will be captured by the FBI and other policing agencies before they can strike.

Thus, another important component of preventing terror attacks is safeguarding the terrorists’ targets.  And here is the problem:  Our current method of doing so is the antithesis of intelligent policing.  The current one-size-fits-all approach squanders resources, imposes unnecessary burdens on all of us, and prevents the law enforcement officers involved from effectively using their skills and ingenuity.

The current system is typified by airport security screening, which is so obsessed with equal treatment that the job it has done of wasting resources on those who couldn’t possibly be terrorists is almost truly hilarious.  That is, it would be hilarious if our security weren’t being compromised in the process.  Al Gore was twice singled out for extra security screening during a trip to Wisconsin.  Seventy-five-year-old Congressman John Dingell was forced to strip down to his underwear to prove that it was his artificial hip, and not a weapon, that had set off a metal detector.  But perhaps the best example is the time that 86-year-old former South Dakota governor and World War II flying ace Gen. Joe Foss was detained by airport security and forced to relinquish a sharp object that he’d been attempting to carry onto a plane.  The sharp object was a Congressional Medal of Honor that he’d received for his World War II heroics.

The basic concern underlying our ineffective policing of airports is that we don’t want anybody – specifically, those of Arab descent – to feel that they are unfairly singled out on the basis of ethnicity.  This is a noble concern.  However, it doesn’t logically follow that the best way to address this concern is by implementing a ridiculously inefficient method of anti-terror policing.

Even more problematic is that we use this one-size-fits-all policing paradigm beyond the airport context.  Outside of airports, we either have a checkpoint-based system of security – where everybody who wishes to enter a federal courthouse, for example, goes through metal detectors – or else we have no security at all.  There is very little room for real policing.  In the current paradigm, law enforcement officers tasked with guarding “soft targets” don’t try to spot potential terrorists, don’t ask questions of suspicious-looking civilians, and never ask people dressed inappropriately to open up jackets or bags so they can have a look inside.

Thus, under the present system, Grand Central Station is filled with National Guardsmen who stand around and do not interact with passengers.  During terrorism alerts there is a markedly increased police presence in major cities like New York and Washington, D.C., yet it’s unclear how officers staring stoically into the distance will prevent an actual terrorist attack.

A far better policing model would seek to maximize our chances of disrupting a terrorist attack by more efficiently targeting the areas where terrorists are likely to strike.  The first component of this model is less of an emphasis on keeping people out of soft targets (through metal detectors and the like), but attempting to identify potential bad guys once they’re inside.  In New York subway stations, for example, this would involve roving policemen tasked with identifying possible terrorists.  While we cannot search every man, woman and child climbing onto the subways, we can focus on those who best fit the terrorist profile.

Part of the necessary training that this policing model entails is identifying those who are most likely to be terrorists.  Thus far, we as a society have shied away from addressing this because of the question of racial profiling.  If we try to hone in on those who are most likely to be terrorists, will we inadvertently make Arab-Americans feel like despised second-class citizens?

One obvious answer is that someone can oppose racial profiling while favoring more intelligent anti-terror policing.  Many non-racial factors – such as gender, age, dress and behavior – can be used to identify the most likely terrorists.

That caveat aside, addressing the racial aspect of terrorism is important both for effective policing and also for protecting the rights of racial minorities.  After all, individual law enforcement officers are unlikely to ignore the fact that Arabs are statistically more likely to be Islamic terrorists than people of other ethnicities.  Yet a large number of non-Arabs have been part of al-Qaeda also.  Jose Padilla, accused of involvement in a “dirty bomb” plot, is Latino.  Richard Reid, the famed “shoeicide bomber,” is of mixed Jamaican and Caucasian ancestry.  And former metalhead and alleged al-Qaeda plotter Adam Gadahn is Caucasian (and part Jewish, to boot).

When people shy away from considering race as part of a possible terrorist profile, they do so because they fear that race will come to predominate over all other factors.  If it did, the potential result would be making Arabs feel stigmatized on the basis of their ethnicity while overlooking the Padillas, Reids and Gadahns.  But wisest course of action is discussing race with officers so that they can take proper account of it without allowing it to skew their perceptions.

A second component of an intelligent policing model is that the officers charged with protecting soft targets from terrorists would have more interaction with civilians.  They should be trained to be polite and courteous, and to defuse possible tensions.  Because many citizens naturally feel nervous around authority figures, properly training officers about politeness and professionalism in their dealings with civilians is crucial to the success of this new policing model.  After all, people should not be made to feel that they’re living in a police state, nor that they’re guilty until proven innocent.

However, officers should be encouraged to ask questions of passengers who seem suspicious, and, when necessary, to ask passengers to open up their jackets or bags.  In this way, officers could use their own insight and initiative to identify and investigate individuals who seem suspicious.

Much ink has been spilled bemoaning the problem of how difficult it is to protect an open society from the threat of terrorism.  Far less thought has gone into identifying how we can more effectively do so.

Solid intelligence and arrests will continue to form the backbone of protecting us domestically.  But in addition, while nothing will guarantee invulnerability from future attacks, moving toward an intelligent model of anti-terrorist policing at the terrorists’ targets will improve our chances of breaking up future attacks while avoiding an undue burden on society as a whole.  Simply concluding that nothing can be done is both unpalatable and also inaccurate.      

Daveed Gartenstein-Ross is an international counterterrorism consultant and an attorney with Boies, Schiller & Flexner.  He is a 2002 graduate of the New York University School of Law, and clerked on the United States Court of Appeals for the D.C. Circuit following law school.

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