The Counterrevolution

by Bernard E. Harcourt

  But since 9/11, the domestication of counterinsurgency accelerated exponentially with the hypermilitarization of local police forces and the coming of total information awareness. What is happening today is that foreign warfare, domestic antiterrorism policing, and ordinary domestic policing have all converged on the counterinsurgency model. Modern warfare has now colonized our ordinary forms of domestic policing and governance.

  Police departments are increasingly adopting the logic of the counterinsurgency model. Professors Charles Sabel and William Simon at Columbia University document this trend and the emerging contrast between an earlier strategy of policing modeled on large-scale warfare and a newer policing approach modeled on counterinsurgency.20

  The earlier model can be illustrated by the NYPD order-maintenance approach. Mayor Rudolph Giuliani and his first police commissioner, William Bratton, inaugurated the strategy in 1994 under the rubric “broken-windows policing” or the “quality-of-life initiative.”21 Giuliani’s successor, Michael Bloomberg, and his police commissioner, Ray Kelly, modified the strategy to prioritize “stop-and-frisk” practices in the early 2000s. With the return of Bill Bratton as police chief under mayor Bill de Blasio from 2014 to 2016, the NYPD strategy reverted to an aggressive misdemeanor arrest policy under the broken-windows theory. At all times, though, the NYPD emphasized a massive campaign of either aggressive misdemeanor arrests or stop-and-frisk practices—modeled on large-scale warfare.22

  One of the main architects of broken-windows policing, Jack Maple, referred to the strategy as all-out “war.” Bratton, Maple asserted, had “clearly communicated a revolutionary goal—to ‘win the war on crime.’”23 “Maple and others called Chief of Patrol Louis Anemone ‘our Patton,’” Sabel and Simon add, “invoking the World War II general associated with mobile tank warfare.”24 The metaphor could hardly be more on point: the approach was modeled on the kind of large-scale warfare characteristic of World War II and the policy interventions that were designed in its mold, like the War on Poverty and later the War on Crime.

  In his own descriptions of broken-windows policing, Maple referred repeatedly to war strategists from Sun Tzu, the ancient Chinese general and strategist from the fifth century BCE (544–496 BCE), to Hannibal in the Alps, to Admiral Lord Nelson at Trafalgar, to General Patton. Napoleon appears over and over. Marine Corps strategy and maneuver warfare became the model. The World War II motif was everywhere. General Patton surfaced again and again. So did Eisenhower. The police officers were referred to as “troops in the field.” The police captains were referred to as “skilled, audacious commanders.” And they were each—or practically each—given a field marshal equivalent right out of World War II.25 As Maple wrote:

  Bratton was our George C. Marshall, the man of vision who shook the US armed forces out of their sleep in 1941 and demonstrated an infallible instinct for identifying talent. Chief of Department John Timoney was our Eisenhower, as respected by the soldiers in the field as he was knowledgeable about the intricacies of managing a mammoth fighting organization. Chief of Patrol Louie Anemone was our Patton, a tireless motivator and brilliant field strategist who could move ground forces at warp speed. First Deputy Commissioner Dave Scott didn’t have a World War II counterpart: He was Burt Lancaster in Trapeze. He wanted to help the young acrobats learn to fly, but he was also there to catch us if we fell.26

  Today, by contrast to this earlier battlefield logic, a number of cities are turning to a very different approach. In Cincinnati, for instance, new strategies are being developed under the express rubric of SARA (Scanning, Analysis, Response, Assessment), imposed on the city by a consent decree settling civil-rights lawsuits against the city for excessive use-of-force practices. The SARA approach is reminiscent of systems analysis—the type of recursive systems planning perfected by RAND in the 1960s. As Sabel and Simon describe it, the approach “begins with a precise definition of a problem, proceeds to look for well-configured interventions, implements them, assesses the results, and then if the problem persists, begins the cycle anew with a revised account of the problem in the light of experience.” The approach is based on the idea of “problem-solving policing,” and it targets whatever needs are identified, whether it is shoplifting, street prostitution, “Assaults in and Around Bars,” or “Disorder at Day Laborer Sites.”27

  Many of these new policing interventions engage with the communities and involve local stakeholders. They may implicate social-service agencies as well, or job-related services, or community volunteers depending on the needs—notice the resonance with winning hearts and minds in the traditional counterinsurgency context. Some of the officers involved in these efforts draw a comparison to the strategies used in the war in Afghanistan. “In discussing his work with a community development organization in Cincinnati’s Walnut Hills neighborhood,” Sabel and Simon report, “Captain Daniel Gerard noted that he saw similarity between this work and that of a friend serving as an army officer in Helmand Province, Afghanistan.” In Afghanistan, the army officer had been involved in “economic and institutional development efforts.” Sabel and Simon comment:

  The implication is that Problem-Oriented Policing more resembles the counterinsurgency model of warfare associated with General David Petraeus than General Patton’s mobile tank tactics invoked by Bratton to explain Compstat. Like POP, the counterinsurgency approach prescribes that patrol, response to incidents, and use-of-force be coordinated with diverse proactive initiatives that engage civilians with a stake in achieving security. The goal is to secure terrain by building a viable community, not by attempting to annihilate all potentially hostile forces. As POP-influenced police offers often say “we couldn’t arrest our way out of this problem,” David Petraeus reports that he often said in Iraq that “we would not be able to kill or capture our way out of” problems there.28

  Today, a counterinsurgency mindset has begun to dominate ordinary policing. Increasingly, it seems, there is an active minority that needs to be identified and eliminated—predominantly susceptible Muslims, Mexican “bad hombres,” inner-city black youths, and unruly police protesters. We are told about the dangers of ISIS followers who are now “home grown” in the heartland of the United States—not to mention in the banlieus of Paris, in the outskirts of London, in the center of Brussels. A counterinsurgency mentality is beginning to pervade the streets. Everything is perceived through an “us versus them” lens, the law-abiding citizens versus the criminals. There is constant talk about the “criminal element” and “criminal invasion”—terms that appear in the early writings of James Q. Wilson, Edward Banfield, and George Kelling, and have now become routine. So, for instance, the former police chief of St. Louis, Sam Dotson, was quoted saying that, in the wake of the Black Lives Matter protests, the “criminal element is feeling empowered.”29 Meanwhile, the Washington Post and Guardian have begun documenting the high rate of lethal police shootings in the United States, fueling a siege mentality in certain neighborhoods in inner cities: 1,091 police shootings in 2016 according to the Guardian, 963 according to the Post.30

  Policing at the national level as well has seen a noticeable shift. The War on Crime, during the second half of the twentieth century, involved large-scale military-style operations—especially the federal War on Drugs in Latin America, which included widespread eradication and blanketing of poppy fields, and military campaigns in the countryside. These campaigns had dramatically disparate effects on African Americans and Hispanics at home. In both their foreign and domestic manifestations—the eradication of cocaine abroad, the elimination of crime domestically—the political interventions had Patton-like ambitions. Presidents from Richard Nixon through Ronald Reagan promoted massive prison construction and juvenile detention facilities, mostly for minority youths, and increasingly militarized the policing of housing projects.

  But as the historian Elizabeth Hinton shows in her compelling book From the War on Poverty to the War on Crime, the model of large-scale warfare has increasing
ly tilted toward counterinsurgency strategies.31 Federal officials began to view black militant activists as a revolutionary minority that needed to be repressed, violently. President Ronald Reagan signed a Comprehensive Crime Control Act in 1984 under which most of the $900 million that Congress allotted for drug rehab programs was spent on intelligence facilities, warplanes, and helicopters. In the early 1990s, the federal government began experimenting with a “Weed and Seed” approach that mirrored the counterinsurgency paradigm: to weed out drug users, dealers, and traffickers, and seed the neighborhoods with social and economic revitalization programs. The weed-and-seed approach sought to “mobilize community residents in the target areas to assist enforcement in identifying and removing violent offenders and drug traffickers from the community.”32 Through federal grants, the approach was implemented in more than 150 communities across the United States. And through programs like the Excess Property Program and others, the federal government began funding the increasingly counterinsurgency-modeled militarization of local police forces.

  Today, all three central strategies of counterinsurgency have been turned back on the American people. Americans are now caught in total information awareness. American Muslims and other minorities have become the active minority that is targeted for elimination. And it is, more broadly, the American people whose hearts and minds are being sought. The counterinsurgency paradigm has come home.

  8

  SURVEILLING AMERICANS

  RIGHT AFTER 9/11, HIGH-RANKING OFFICIALS IN THE BUSH administration devised an illicit eavesdropping program and cast as wide a net possible, covering both foreign and domestic communications. The NSA began eavesdropping inside the United States—without court order. Congress soon passed Section 215 of the USA PATRIOT Act that provided for the bulk collection by the NSA of all telephony metadata held by American telecommunications companies like AT&T, Verizon, and Sprint. The FBI began a massive campaign of information gathering targeting over five thousand Muslims. Local police departments, such as the NYPD, implemented surveillance programs directed at mosques and Muslim communities, and began infiltrating domestic Muslim organizations. Through both digital and analog methods, the government turned total information awareness on the American people.

  The linchpin of a domesticated counterinsurgency is to bring total information awareness home. Just as it was developed abroad, it is total surveillance alone that makes it possible to distinguish the active minority on domestic soil from the passive masses of Americans. A fully transparent population is the first requisite of the counterinsurgency method. In General Petraeus’s field manual, it received a full chapter early on, “Intelligence in Counterinsurgency,” with a pithy and poignant epigraph: “Everything good that happens seems to come from good intelligence.” And as the manual began, so it ended, with the following simple mantra: “The ultimate success or failure of the [counterinsurgency] mission depends on the effectiveness of the intelligence effort.”1

  The government is supposed to treat domestic surveillance differently than foreign intelligence—which explains, among other things, the separation and different legal standards that apply to the FBI and the CIA. Under federal law, domestic communications receive greater protections and require a warrant from a judicial officer to intercept. Foreign communications related to terrorism investigations pass through a more expedited process at the Foreign Intelligence Surveillance Court (FISC), but nevertheless also require approval from that court. Stringent but graduated rules on domestic and foreign intelligence gathering had been put in place in the 1970s as a result of illicit domestic wiretapping programs like COINTELPRO and the subsequent investigation and recommendations of the Church Committee. Limits had been placed especially on domestic surveillance as a result of the excesses of Hoover’s FBI investigations into the personal lives of Martin Luther King and others.

  Despite all of these restrictions, after 9/11 the government swept aside many of the intelligence reforms from the 1970s and put in place a massive surveillance network at the local, national, and global level to achieve total information awareness of the American people. Programs created after 9/11 for foreign intelligence gathering were turned on Americans. Plus, new technological capabilities made it possible to sweep Americans up with foreign surveillance—both incidentally and intentionally. The digital revolution made the intelligence community’s wildest dreams come true. The perceived crisis of global terrorism, of course, naturalized and justified the gradual encroachments. But the domestication of total surveillance had deeper roots in the very logic of counterinsurgency warfare. The fact is, in this new governing paradigm, every American is a potential insurgent.

  Constant vigilance of the American population is necessary—hand in hand with the appearance of trust. Appearances are vital. A domesticated counterinsurgency must suspect everyone in the population, but not let it be known. This posture, developed in counterinsurgency theory decades ago, was at the core of the paradigm. David Galula had refined it to a witty statement he would tell his soldiers in Algeria: “One cannot catch a fly with vinegar. My rules are: outwardly you must treat every civilian as a friend; inwardly you must consider him as a rebel ally until you have positive proof to the contrary.”2 This mantra has become the rule today—at home.

  In the wake of the Twin Tower attacks, the NYPD started surveilling hundreds of mosques, Muslim businesses, associations, and student groups—infiltrating dozens of them—without any evidence they were tied to terrorism or had engaged in wrongdoing. The NYPD recruited “mosque crawlers” to infiltrate and monitor Islamic places of worship, and “rakers” to infiltrate Muslim bookstores, cafés, and bars. (They were called rakers because the head of intelligence, who came from the CIA, would say he wanted his unit to “rake the coals, looking for hot spots.”) The NYPD infiltrated student groups at Brooklyn College and City College of New York, and accessed student records under false pretenses.3

  “Place Mosque under observation before and during Jumma (Friday Prayers), record license plates and capture video and photographic record of those in attendance. Pay special attention to all NY State License plates.” Those were the directions given to NYPD undercover agents in the “Target of Surveillance” directive regarding the Majid Omar Mosque in Patterson, New Jersey.4 An “NYPD Secret Weekly MSA Report” dated November 22, 2006, recounted the activities of the Muslim Student Associations at Buffalo, at NYU, and at Rutgers–Newark.5 The NYPD intelligence officer reported visiting, in his words, “as a daily routine,” the websites, blogs, and forums of the Islamic student organizations there and at Albany University, Baruch College, Brooklyn College, Columbia University, LaGuardia Community College, University of Pennsylvania, Rutgers–New Brunswick, Stony Brook, SUNY Potsdam, Syracuse University, Yale University, and others. He detailed an upcoming scholarly conference at the Toronto Convention Center, discussing the background and visa status of the invited speakers.

  In a secret intelligence briefing for the head of intelligence, dated April 25, 2008, the NYPD reported being worried about the verdict in the Sean Bell case—the acquittal of three NYPD detectives charged in the multiple-shooting death of an unarmed man in Jamaica, Queens. The briefing reported that the agency was “especially concerned with and keying on our convert mosques i.e. Ikhwa, Taqwa, Iqquamatideen and MIB (Mosque of Islamic Brotherhood)” and asked a confidential informant to get “involved with the New Black Panther Party.”6

  The same briefing detailed another covert NYPD operation to infiltrate a whitewater rafting-trip by students at City College of New York. The briefing recounted that an undercover NYPD operative, named “OP# 237,” left for the “Whitewater Rafting trip Monday, April 21, 2008 and returned Wednesday night April 23, 2008.” It explained, “The trip was hosted by the EXTREMEGOERS CCNY SPORTS GROUP; which is essentially run by the MSO [Muslim Student Organization].” It detailed the names and status of many of the nineteen CCNY students, noting that “Ali Ahmed was in charge and did orchestrate the events.” It e
mphasized, “In addition to the regularly scheduled events (Rafting), the group prayed at least four times a day, and much of the conversation was spent discussing Islam and was religious in nature.”7 Although the report spoke in conspiratorial terms, there was no prior reason—and none developed—to suspect the college students of anything.

  The NYPD prepared analytic reports with maps and intelligence covering every mosque within one hundred miles of the city, including in Newark, New Jersey, and Suffolk and Nassau Counties, detailing their addresses, telephone numbers, pictures, ethnic affiliation, and “information of note,” with entries such as “During visit 3 African Muslim males and an Egyptian male customer were observed dining within” and “Observed a lot of products made in Egypt were sold inside the location.”8 These secret “Demographics Unit” reports mapped mosques, madrassahs, and Muslim population density by ethnicity. They included surveillance photos and intelligence notes on every mosque and Muslim businesses (see surveillance reports on next page).

  The Associated Press described the program, in a Pulitzer Prize–winning series, as a “human mapping program” of American Muslims that amounted to “an unusual partnership with the CIA that has blurred the line between foreign and domestic spying.” This kind of monitoring of Muslims without any suspicion would have run afoul if it had been done by the federal government, which may explain, as AP suggested, why the CIA worked surreptitiously with the NYPD to ramp up this domestic spying program and also why the federal government gave the NYPD more than $1.6 billion over the decade following 9/11.9

  Several years later, in August 2016, the Office of the Inspector General for the NYPD issued a report detailing the extent of the targeting of Muslims. It reviewed a random sample of NYPD intelligence investigations from 2010 to 2015 and found that 95 percent of the investigations of political activities targeted Muslims or activity associated with Islam.10 It also found that over 50 percent of those investigations continued after outliving their authorization.