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How has the delicate balance of power among local and federal governments lost both its delicacy and equilibrium in the wake of terrorist attacks on New York and Washington? Constitutional lawyers will differ in assessing the state of American federalism. But they clearly agree on the need to debate the subject. Which is what they did last month at a day-long gathering at Brooklyn Law School, with scholars and practitioners engaged in the topic, “Our New Federalism? National Authority and Local Autonomy in the War on Terror.” Opinions varied widely on such details as the USA Patriot Act: “A really, really bad idea,” said Professor Judith Resnik of Yale Law School; “Most criticism is misguided and ill-informed,” countered Judge David G. Trager of the Eastern District of New York. But the exchange, in and of itself and no matter the divide of thought, was seen as having important value. “This is what I hoped the symposium would be,” said Judge Trager, a former dean of Brooklyn Law. “Involving the academic world to help with real-world problems.” In a series of cases decided before the year 2000, the symposium brochure noted, the U.S. Supreme Court “set out rules prohibiting the federal government from ‘commandeering’ local law enforcement officials but allowing the federal government to preempt certain local laws that thwart national interests.” Then came the events of Sept. 11, 2001, and what may well be a tectonic shift in power sharing. Case in point: in November 2001, Attorney General John Ashcroft issued a request to local police departments around the country to help the FBI round up and interrogate some 5,000 “persons of interest” — for the most part, Muslim men of Arab or South Asian extraction. That request was met with objections from a host of civil liberties groups and a storm of refusals from police chiefs, notably Detroit’s Charles Wilson, who said he would not deploy his officers to “go out and treat people like criminals.” Ultimately, however, “Nobody failed to obey,” noted Professor Burt Neuborne of New York University Law School and director of the Brennan Center for Justice. “We’re dealing with issues globally, not locally. “We’re now in the midst of a national re-examination of policing,” he added, “and the dissemination of information the government has.” Despite her dim view of the Patriot Act, Resnik acknowledged, “There are radical moments when judges of different political stripes will say, ‘Okay, feds, you have the authority.’ “ But Professor Vikram Amar of the University of California, Hastings College of the Law cautioned, “The power to commandeer involves the power to destroy.” Amar was one of several panelists who presented papers for later publication in the Brooklyn Law Review. His offering was titled “State and Local Power to Prevent and Redress Federal Constitutional Violations in Times of War.” Elizabeth Rindskopf Parker, dean of the McGeorge School of Law at University of the Pacific in Sacramento, Calif., said the FBI was “rather ham-handed” in questioning Muslim males in the immediate aftermath of 9/11 by failing to realize differences between local and national politics. “The FBI is a much smaller force than you might expect,” she said, “and much less informed.” Paul Finkelman, a former Brooklyn Law professor now on the faculty of the University of Tulsa College of Law, elaborated, “Elected sheriffs, for instance, cannot reasonably be expected to round up ethnic voters.” BLANKET REQUEST The federal government’s blanket request for local law enforcement aid is “fundamentally stupid,” said Finkelman, because it relies on reluctant parties, as well as “the [potential] incompetence of local officials.” If there are not sufficient numbers of federal agents to carry out Ashcroft’s requests, he added, “Maybe [the Congress] should repeal an unwise tax cut and hire more.” Arnold M. Howitt, executive director of the Taubman Center for State and Local Government at the John F. Kennedy School of Government at Harvard University, said of current federal initiatives to combat terrorism, “For the most part, these are appropriate things to be doing. At the same time, there are worries — and serious concerns about whether the means are appropriate for the threat.” Among Howitt’s concerns is the legacy of the British reaction to another terrorist era, when radical Irish nationalists attacked and killed random victims in England in the 1960s and ’70s. A body of emergency laws was enacted that thwarted traditional civil liberties. A number of those laws, he said, remain on the books.

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