Detect, disrupt, and detain: local law enforcement's critical roles in combating homegrown extremism and the evolving terrorist threat.

• Author: Silber, Mitch

Introduction I. The Al-Qaeda Threat to the Homeland 2013 A. Al-Qaeda Core B. Affiliates and Allies C. Al-Qaeda Inspired (or Homegrown) II. Radicalization and Detection A. The Radicalization Process B. Online Radicalization III. Local Law Enforcement's Role A. Local Law Enforcement's Comparative Advantages 1. Manpower 2. General Police Power/Knowledge of the Community 3. Greater Accountability to Local Concerns B. The Legal Framework: The NYPD and Handschu: A Case Study 1. Background 2. Investigations Under Current Handschu Guidelines a. Leads b. Preliminary Inquiries c. Full Investigations d. Terrorism Enterprise Investigations e. Investigative Techniques 3. Other Authorizations Under Handschu IV. Prosecution A. State Level Prosecutions 1. Ahmed Ferhani 2. Jose Pimentel B. Federal Criminal Statutes 1. Background 2. Dissemination of Bomb Making Material/Information 3. Solicitation 4. Communicating Threats Conclusion As this thing metastasizes, cops are it. We are going to win this at the local level. (1)

INTRODUCTION

Over the last dozen years, the great cities of the West--New York, London, Madrid, Amsterdam, Boston, Toronto, Sydney, and Los Angeles, among others--have been under the almost constant threat of al-Qaeda type (2) terrorism. (3) There have been many plots against American cities. (4) Some have been planned and directed from al Qaeda or its affiliates abroad, whereas others have been hatched by small cells of so-called homegrown terrorists and/or lone wolves inspired by al-Qaeda's ideology. (5) And, while the vast majority of these plots have been thwarted, some have succeeded with deadly impact. (6) As the recent al-Qaeda-inspired terrorist attack in Boston of April 2013 demonstrated, despite the death of Osama bin Laden, the al-Qaeda type threat to the U.S. homeland--and cities in particular--remains both real and deadly. (7)

Given that terrorist threats to urban environments are unlikely to abate any time soon, and that cities must seek to protect their citizens from terrorism, local police departments have to consider how best to counter this menace. At the same time, local police departments must balance the competing challenges that urban counterterrorism initiatives raise from security, law enforcement, intelligence and civil liberties perspectives. More broadly, local law enforcement has to understand the nature of the threat, which necessarily informs how it should be best thwarted.

This Article argues that the threat is three-fold: from al-Qaeda "Core"; al-Qaeda's regional affiliates and allies; and homegrown extremists. Moreover, as U.S. military and intelligence operations overseas continue to put pressure on the first two elements, the threat is likely to metastasize and become further decentralized? While the threat from al-Qaeda Core and its overseas affiliates and allies will remain, we have seen over the last five to seven years that these so-called "homegrown extremists"--who are radicalized here in the United States, often in urban centers and often over the Internet--present one of the most serious terrorism threats to the homeland. (9) This Article will focus on the third leg of the stool: the threat of homegrown extremists. In particular, it addresses some of the problems this phenomenon presents, as well as the tools available to law enforcement and intelligence agencies to combat it in urban environments. Finally, it will focus in particular on the role of local law enforcement in combating this threat.

Part I of this Article begins by describing and defining the nature of the al-Qaeda threat in general, and that of homegrown extremism in particular. Part II then addresses the question of radicalization--the process by which homegrown extremists may be moved to violence. Given the often solitary nature of small cells of homegrown extremists and/or lone wolves, Part III then turns to the questions of how law enforcement and intelligence agencies can detect and disrupt groups of individuals who may be radicalizing. The Article emphasizes in particular the role of local law enforcement agencies and the comparative advantages such agencies may have in detecting and combating homegrown radicalization. The Article then turns to the New York City Police Department (NYPD) as a case study, reviewing the legal regime that governs the steps the NYPD can take to investigate, monitor, and/or disrupt potentially aspiring terrorists after their detection but prior to their mobilizing to action. Part IV of the Article then addresses some of the post-investigative tools available to the government at both the state and federal level to prosecute homegrown extremists before they have a chance to conduct a violent attack.

1. THE AL-QAEDA THREAT TO THE HOMELAND 2013

   In discussing the nature of the al-Qaeda threat to the homeland, as well as how to counter it, there is a useful framework to disaggregate the component pieces into three categories with corollary geographic loci: (1) al-Qaeda Core (Afghanistan/Pakistan); (2) al-Qaeda Affiliates and Allies, such as al-Qaeda in the Arabian Peninsula (Yemen), al Shabaab (Somalia), al-Qaeda of the Islamic Maghreb (Mali/Mauritania) and Boko Haram (Nigeria); and (3) the homegrown threat that emanates from within the United States. Each of these components will be discussed in turn.

   1. Al-Qaeda Core

      Al-Qaeda Core served as the central node of the group. Its leadership hierarchy included Osama bin Laden and Ayman al Zawahiri, among others, and it had been based in Afghanistan leading up to the September 11, 2001 attacks. (10) In a May 2013 speech about terrorism, President Obama noted, "Today, the core of al-Qaeda in Afghanistan and Pakistan is on the path to defeat. Their remaining operatives spend more time thinking about their own safety than plotting against us." (11) Debate continues among terrorism experts regarding how much al-Qaeda Core has been degraded in the more than twelve years since 9/11 by bombing campaigns, drone strikes, Special Forces operations and other capture and arrest operations in coordination with Pakistani and Afghan authorities. (12) Yet, few dispute that al-Qaeda Core is substantially weaker than it has been in more than a decade, having lost senior leaders and its safe haven. (13) Consequently, a weaker al-Qaeda Core is less likely to be able to conduct complex operations directed against Western and American cities.

      Thus, the likelihood that al-Qaeda Core might be able to direct trained operatives from its "core" in Afghanistan and Pakistan to attack an American city, as was done in the 2009 Najibullah Zazi plot against the New York City subway system, (14) has been significantly reduced for now. (15) As President Obama noted in May 2013, "They've not carried out a successful attack on our homeland since 9/11." (16) Nevertheless, should the security situation deteriorate in Afghanistan and Pakistan as the U.S. pulls back forces and reigns in its drone program, there is a possibility that al-Qaeda Core may have an opportunity to reconstitute itself to some degree and reconstitute some of its capabilities. (17)

   2. Affiliates and Allies

      During the same time period, the al-Qaeda movement has metastasized to ungoverned regions of the world that are difficult to reach and may have their own organic violent extremist groups with local agendas who are willing to formally ally or informally align themselves with al-Qaeda Core. (18) This diffuse and decentralized element of al-Qaeda affiliates and allies has varying types of relationships with the core organization as well as each other. These relationships range from sharing operatives, to training, to just a loose affiliation via nomenclature. These include groups such as al-Qaeda in the Arabian Peninsula in Yemen, al Shabaab in Somalia, al-Qaeda of the Islamic Maghreb in North Africa, Boko Haram in Nigeria, and jihadist groups in Pakistan like Lashkar-e-Taiba or Tehrik-e-Taliban. (19)

      President Obama both identified this element of the threat and acknowledged their collective desire to attack the continental United States (20):

      Instead, what we've seen is the emergence of various al-Qaeda affiliates. From Yemen to Iraq, from Somalia to North Africa, the threat today is more diffuse, with Al-Qaeda's affiliates in the Arabian Peninsula--AQAP--the most active in plotting against our homeland. And while none of AQAP's efforts approach the scale of 9/11, they have continued to plot acts of terror, like the attempt to blow up an airplane on Christmas Day in 2009. (21) Many counterterrorism analysts share the President's view of the general threat from al-Qaeda affiliates, and agree that the Yemeni branch poses the greatest threat to the United States of all the groups. (22)

      While some of these groups' grievances are local, directing much of their efforts to the zones of conflict in which they are based, as these groups gain confidence and stature and seek to take a more significant role on the world stage, they may seek to attack the United States in its cities. (23) Indeed, this has already happened twice from two separate affiliates--first, the AQAP-directed plot to blow up an airliner headed for Detroit on Christmas Day 2009, and then the May 2010 New York City "Times Square Bomber," whose mission was directed by Tehrik-e-Taliban. (24)

      It may be difficult to predict or detect when others of these affiliates or allies decide to change their strategy from "the local to the global." Based on recent history, however, which saw Western cities like Copenhagen and Sydney as well as New York and Detroit targeted by these groups, the threat that one of these groups might send operatives to American cities to carry out attacks in their group's name should be considered quite real. (25)

   3. Al-Qaeda Inspired (or Homegrown)

      The United States saw few, if any, homegrown, al-Qaeda-inspired plots in the immediate years after September 2001. However, the plot against Fort Dix, which was...