Tag: The Law

Not Giving In

One of the worst temptations after a high-profile crisis like Boston is to surrender some of our freedom for the illusion of safety. Perhaps this was justifiable after 9/11, when he had 2800 dead and weren’t sure what Al-Qaeda’s capabilities were. But even in that case, we can see now, after ten years, that we gave too much. Warrantless wiretapping, surveillance, no-fly lists, TSA, torture, the spectre of drones in American cities, the Patriot Act. The last time we gave an inch, the government took about ten miles.

In the wake of Boston, many pro-“security” pols are already beating the drums for more restrictions on our freedom. They are as shameless and as opportunistic as those who called for immediate gun control in the wake of Sandy Hook. They are hoping that, in the passion of the moment, we will give them something they have wanted for a long time whether or not it would have prevented this tragedy.

But the idea that we should have a 9/11-type surrender of freedom after Boston is simply absurd once you push aside the emotions of the last week. As horrible as the attack was, it killed and maimed fewer people than a good night on America’s highways. As scary as it is that terrorists might start going after “soft targets”, there are literally tens of thousands of mass gathering throughout the year in the United States. We simply can not protect all of them, no matter what we do. And, as we have found out with the powers we gave the government after 9/11, any powers we give the government now will quickly be used for other purposes.

In Boston, at least one bad idea was used and several more have been proposed in the interest of “public safety”. To tackle three of them:

Lockdown: For years, we have had a growing problem with schools locking down the minute they sense some danger, real or imagined. In Boston this week, we had the strange case of a (mostly) voluntary lockdown put out by the Governor. This lockdown included MTBA, which basically mandated the lockdown for anyone without a car (with corresponding hurt to the working poor).

Murderers, rapists and muggers are always on our streets. But for one idiot kid, we shut down a major American city? If I were him, I would have been delighted to see millions of people inconvenienced because the police couldn’t find me. The cost of the lockdown has been estimated between $1 and $3 billion (although I think those are wild overestimates). Was it worth that? Was it worth the precedent? Ironically, the kid was found because the lockdown was lifted and one man ventured out of house and saw something in his boat.

The motto for this week was “Boston strong”. And the people of Boston have indeed shown a sterling resilience. I’ve heard many say they plan to go to the marathon next year as a show of defiance. But what is strong about telling people to hide in their homes and not go out?

I was living in Baltimore when the Beltway Sniper was on the loose. We didn’t have any killings up there (although it turned he was staying there). But the sense of tension and fear was very palpable. Much more so than this week because no one had any idea who the sniper was. But we got out and went to work. The idea of shutting down anything simply wasn’t on.

Look, I get the flip side: if he’d had more guns and bombs, he might have gone into a public square and slaughtered dozens. But that danger always exists. Criminals have weapons. Terrorists have bombs. That we knew this one guy was dangerous does not make any other day of the week safe. If you know of a specific danger, you can call in more cops and warn citizens. In an extreme case, you can use the National Guard. In short, you can increase the number of alert and armed people who are out there and improve the odds. But having everyone cower in their homes? It’s not only a violation, it’s an ineffective one.

(More on this from Popehat.)


One thing being pushed in the wake of Boston is more public surveillance. We are being told that we need more security cameras and more police access to security cameras.

Never mind that the clearest video of these guys came from a private store’s camera. Never mind that more images came from the public. Never mind that, with ubiquitous smart phones, it’s almost impossible not to be photographed every day. Never mind that the public cooperates any time something like this happens. Never mind that cameras have never delayed or stopped a terrorist attack: London is one of the most heavily surveilled cities in the world but that didn’t stop the 7/7 attacks. No, we need more cameras say the police staters.

The police state supporters have always wanted more cameras. They have been pushing them on us for decades using any crisis — the War on Drugs, 9/11, Boston — to push for more. They are constantly walking through the blood of the slain in their efforts to get everyone on camera every day. Of course, these cameras are rarely used for counter-terrorism. Like the Patriot Act powers, they are mostly used for ordinary crime, including drug crime. And we frequently find that they are abused for purposes that have no relation to crime.

I would think that the ease with which these guys were identified and the images that came in from the public would indicate that we have enough surveillance already.


Remember when Rand Paul filibustered the Senate over the use of drones, worrying that the President’s power to kill would be extended into this country against American citizens? Remember how crazy everyone said he was, how paranoid?

Well, guess what? Lindsey Graham and John McCain are now calling for an American citizen captured on American soil with no obvious ties to any terrorist organization to be treated like an enemy combatant. They want to deny him a lawyer, deny his Miranda rights and basically detain him indefinitely.

Now do we see why Ron Paul wanted clarity on drones? Now do we see why he wanted clarity on targeted killing? Now do we see why we shouldn’t have opened the door to indefinite detention and denial of rights with Jose Padilla? Once you have started to carve out areas of the law that are exempt from Constitutional rights, those areas will expand and expand until they enclose everything.

No extremist links have been alleged in this case, let alone proven. There is no evidence that he is tied Al-Qaeda or any other group. There is little evidence this was part of a larger conspiracy. It’s not even clear what, if any, role their religion played in this. But McCain and Graham simply want him declared an enemy combatant because … well, because he’s a Muslim who killed and maimed a bunch of people. They now want the “battlefield” to enclose the entirety of the United States.

Constitutional rights are not popular the best of times. Every time a high-profile criminal is caught, some subset of the population gets annoyed that he gets a lawyer and jail time instead of being strung up at dawn. If the Bill of Rights were ever up for a vote, I doubt it woud get 50%. That is why those who do value civil liberties, who claim to revere the rights and liberties enshrined in our Constitution must never give an inch.

I don’t object to a temporary delay in Mirandizing this guy to make sure there are no more bombs out there (and, indeed, the FBI has apparently made some related arrests this morning). But once that is done — preferably within a day or two — he should be Mirandized and given a lawyer. He should be tried in a criminal court and thrown in jail for the rest of his life (Massachusetts has a death penalty on the books but has not used it for thirty years).


We have courts because they are essential to the protection of the rule of law and the rights of individual citizens, and they are the method by which we dispense justice under rules that are designed as much to protect us as they are to protect criminal defendants. Treating Tsarnaev, a naturalized American citizen who has lived in this country since he was eight years old, treated no differently from men who were captured on battlefields in Afghanistan and are currently sitting in the prison complex at Guantanamo Bay where they are likely to remain for a very long time, is a perversion of that system of justice in the name of a haphazard system of non-justice that has risen up in the years since the September 11 attacks. If Tsarnaey is treated as an “enemy combatant” then it would mean that any American citizen could potentially receive the same designation if the government so chose, and that they could be subjected to the same deprivations of rights, including lack of access to counsel for extended periods of time. That’s a perversion of justice and a perversion of liberty.

Lindsey Graham and others in the Republican Party would have us believe that this weeks events in Boston were part of a war that began nearly twelve years ago with the attacks of September 11th. At the very least, this judgment is premature because we have absolutely no idea what the real story behind the Boston Marathon attacks actually is. We don’t know if the Tsarnaev brother were motivated by religion, by a political agenda, by an unspecific generalized hatred of the society they’d grown up in based on the fact that they hadn’t achieved what they believed they were entitled to, or by just a desire to cause destruction and pain to people. Even if the attacks were based on some kind of religious/political motivation, we don’t know if they were acting alone or if they were surrogates for others, either domestic or foreign. Ascribing, at this early date, these attacks to a “Global War On Terror” is both premature and, quite obviously, based only on the fact that they are Muslim men. That is clearly not sufficient grounds to strip an American citizen of his rights and throw him in the rat hole that is Guantanamo Bay.

Our legal system has served us well, although admittedly at times imperfectly, for two centuries now. Sacrificing the values it represents in the name of the “war on terror” would be a fatal error.

Bingo. Mirandize him, give him a lawyer, put him on trial. Those are his rights as an American. No matter what he’s done.