[...]some municipal police departments' investigatory powers are limited by state law and some by locally set administrative guidelines.9 Those investigatory powers are overseen by a variety of institutional mechanisms, including state and local legislatures, agency oversight boards, external audits, and courts.10 Local law enforcement agencies vary in how they codify and apply guidelines to regulate collection, use, dissemination, and retention of data related to counterterrorism.11 Most, but not all, states have electronic surveillance statutes, covering different types of communications and regulated by different standards and processes.12 And racial and ethnic profiling is regulated by states and many local governments through a combination of legislation, court decisions, and administrative guidelines.13 This is not by any means to deny the predominance of federal national security law and policy, on account of the massive resources and capabilities of the federal government and the primacy of federal law in this context.
ARTICLES NATIONAL SECURITY FEDERALISM IN THE AGE OF TERROR Matthew C. Waxman* National security law scholarship tends to focus on the balancing of security and liberty, and the overwhelming bulk of that scholarship is about such balanc- ing on the horizontal axis among branches at the federal level. This Article chal- lenges 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 under- standing 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 gov- ernment 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 re- veals the important policy benefits of our shared federal-local national security system, and it suggests ways to better capture these benefits, especially if terror- ism threats evolve to include a greater domestic component. * Associate Professor, Columbia Law School; Adjunct Senior Fellow for Law and Foreign Policy, Council on Foreign Relations; Member, Hoover Institution Task Force on National Security and Law. I thank the following for their comments on drafts of this Ar- ticle: Philip Bobbitt, Richard Briffault, Robert Chesney, Erin Delaney, Robert Ferguson, Jo- shua Geltzer, Abbe Gluck, Jack Goldsmith, Philip Hamburger, Aziz
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