The University of Chicago Law School Faculty Blog

Student Blogger - Fall WIP: Aziz Huq discusses mechanisms for producing community cooperation in counter-terrorism policing

In mid-2010, citizens of Birmingham, UK, took to the streets to protest the installation of 200 closed-circuit television cameras throughout the city. The cameras weren’t in and of themselves the reason for the demonstration—after all, with an estimated 500,000 cameras in London alone, CCTV has become a begrudgingly accepted fact of daily life in the United Kingdom. Instead, the outcry was sparked by police deception. Whereas the police had initially claimed the cameras would be used primarily for monitoring traffic crimes and common delinquency, the cameras were in fact paid for out of a counter-terrorism fund and installed around predominately Muslim neighborhoods. Following the protest and subsequent media coverage, the cameras were promptly dismantled. 

This episode serves as a powerful illustration of the issue at the heart of a paper delivered by Professor Aziz Huq at a recent WIP talk. Written with Professors Tom K. Tyler and Stephen J. Schulhofer of the NYU School of Law, the paper, Mechanisms for Eliciting Cooperation in Counter-Terrorism Policing: A Study of British Muslims, offers a data-driven analysis of how policing tactics impact the willingness of citizens to cooperate voluntarily with counter-terrorism efforts, and, given its likely significance on the efficacy of policing efforts, how community cooperation can best be produced.

As was recognized by Charles Rowan and Richard Mayne, founders of London’s Metropolitan Police, the greater the degree of cooperation between the police and the community being policed, the lesser the need for “physical force and compulsion for achieving police objectives.” This intuition has been confirmed by empirical studies that strongly suggest that policing strategies based on “collective efficacy”—that is, achieving commonly held community goals—are significantly more effective at crime reduction than those that do not engage the public.

As Professor Huq notes, it’s not immediately obvious that the same strategies would be successful in policing terrorism. For instance, terrorism is both a more geographically diffuse and more intricately coordinated threat than any individual crime. However, there is a growing consensus that community cooperation is a pivotally important element of terrorism policing. Information about suspected terrorist activities, for example, may circulate within a discrete, insular community long before police are able to detect it. Strategies that encourage the voluntary sharing of this information would increase the efficacy of terrorism policing while lessening the invasiveness of police tactics.

Drawing on interview responses from randomly selected members of the British Muslim community in London, Professor Huq and his co-authors evaluated three commonly offered mechanisms for eliciting community cooperation with counter-terrorism policing. In their model, cooperation is defined both generally as a receptivity toward helping counter-terrorism efforts and specifically as a willingness to alert police of a suspected terror threat.

The first mechanism was instrumentalism, or a rational choice theory of behavior. According to instrumentalism, an individual will cooperate with the police when the expected benefits of doing so outweigh the expected costs. Put another way, people would cooperate with the police if they both thought that the risk of a terrorist act was sufficiently high and that the police were effective in preventing this threat. The second was “neo-Durkheimian,” an approach based on the French sociologist’s notions of societal integrity. Under this approach, an individual would cooperate if she believed that the police were motivated by shared fundamental values—that is, if she identified morally with the police. Unlike instrumentalism, this approach focuses less on the effectiveness of the police but rather on the law’s expressive function in promoting the values necessary for social cohesion. The last mechanism was procedural justice, or a belief that the police are a legitimate authority. According to the procedural justice approach, an individual would cooperate if she sensed that policing tactics were fairly formulated and implemented. This approach focuses on factors such as whether the community was given an opportunity to participate in policymaking, whether officials exercise authority evenhandedly and consistently, and whether police interactions are conducted with dignity and respect.

Professor Huq’s study found that procedural justice was by far the strongest predictor of cooperation between the police and British Muslims. While this finding is consistent with much of the previous work in the field, there may be reasons to believe the other mechanisms play a larger role in producing cooperation than the survey revealed, as was discussed during the Q&A session following Professor Huq’s talk. For instance, respondents may have been reluctant to admit that they are principally motivated by purely rational considerations, and instead found the notions of fairness embedded in procedural justice a more attractive explanation for their behavior. On the other hand, the degree to which moral identification can yield cooperation may vary from community to community based on factors such as the ethnic composition of the police and the community, or shifts from large urban environments to smaller, more rural areas.

Nevertheless, Professor Huq’s study provides strong empirical evidence that procedural justice is highly correlated with community cooperation in counter-terrorism efforts. This suggests that government-community engagement and consultation is likely to yield the most successful policing strategies, though, as Britain’s unsuccessful attempt community engagement in the wake of the July, 2005, bombings shows, it is important that these efforts be viewed as earnest and not “shallow spin.”

One surprising result of Professor Huq’s study is that there was a separation between the reported significance of procedural justice and legitimacy, a finding at odds with previous studies of cooperation mechanisms. This may suggest that, even if they distance themselves from the workings of government, British Muslims are nonetheless willing to cooperate with the police if they perceive them as acting fairly. Additionally, a community’s belief that it is being specifically targeted for policing may have a corrosive effect on cooperation. However, group-based discrimination seems to have the largest effect on individuals who otherwise feel they are accepted members of the larger society. That is, an individual who identifies with the larger society across multiple dimensions is more likely to be offended by policing tactics that reduce that individual’s identity to a single factor. These two results point to important topics for further research.

Student Blogger - Fall WIP: Aziz Huq is Against National Security Exceptionalism

When it comes to cases involving grave matters of national security, commentators split on the courts' role. Some think the judiciary should be heroes, bravely swooping in to protect civil liberties when passions run highest. Others think that courts should show great deference to the executive, who is in the best position to understand the scope and magnitude of the security threat. Still others advise the court to take a minimalist approach to whatever it decides, viewing the occasion of a security breach as the wrong time to experiment with sweeping opinions. But what they all seem to agree is the notion that there is something different about the judicial role in cases involving national security. And this presumption, that national security somehow presents an exceptional case in the realm of judicial behavior, is what Professor Aziz Huq seeks to undermine in Chicago's latest WIP talk.

Professor Huq first identifies five prominent theories of the judicial role in national security cases. The first is that courts exhibit "social learning", identifying and discarding erroneous security policies over time. The second is the heroic model, whereby judges are the final guardians of civil liberties, standing boldly against democratic pressures. The third, generally opposite of the second, is the executive accommodation model, by which courts are generally deferential to executive policy judgments on the theory that security matters are a quintessentially executive matter. The fourth is a view of judicial minimalism, positing that courts should be very wary of making drastic changes in national security law due to the particularly sensitive nature of subject. And finally, there is the model of "bilateral institutional endorsement", which seeks to involve, to the greatest extent possible, the other two branches of government when deciding to make any changes to the status quo. While some or all of these theories have counterparts related to judicial behavior more generally, each can be uniquely applied to the national security context. For example, while one might generally believe courts should be minimalist in their adjudicatory decisions, it is also quite possible to not subscribe to that belief as a general matter, while still thinking it compelling logic within the particular arena of national security. The "exceptional" quality of these theories is their putatively superior explanatory power in national security compared to "normal" judicial decisions.

The first problem with the national security exceptionalism hypothesis is that none of these five theories seem to do that great a job of explaining how courts actually behave in national security cases. For example, there is little evidence that the court "learned its lesson" (as the social learning model would suggest) from the nearly universally repudiated Korematsu decision, when in Iqbal it was cavalier, to say the least, about the possibility of bias and prejudice precipitating ill treatment towards a segment of the population identified with America's attackers. Likewise, the distribution of outcomes in national security cases is not so polarized as to warrant giving descriptive force to either the highly deferential executive accommodation theory, or the extremely interventionist heroic model. And while it might be said that these theories, though not explanatory on their own, might be so in the aggregate, this seems to beg the question -- particularly given that at least some of the theories (such as the heroic versus accommodation models) are polar opposites of each other.

Of course, on its own this does not show that national security is not an exceptional case; all it demonstrates is that the predominant theories of national security exceptionalism are inadequate. However, Professor Huq continues to observe that to the extent we do observe patterns in the resolution of national security cases, they seem to track broader, transsubstantive trends in the field of public law. For example, the hesitancy of courts to intervene against security decisions at the front end is perfectly consistent with the broader thrust of American law -- in general, judicial intervention aimed at preventing constitutional violations prior to the fact is the exception and not the rule, particularly in matters (such as the 4th Amendment context) where public or official safety is an important value. The broad-based decision strategies and doctrines the courts have developed for law "in general" are perfectly adequate to account for judicial behavior in the national security context as well--there is nothing "exceptional" about it.