Tag: Boston Marathon bombing

Civil Liberties After Boston—My Take

It’s to be expected that privacy will suffer a bear market after a terrorist attack or attempt. I’ve seen worse, of course, but was concerned this week to read a piece by Richard Epstein on the Hoover Institution web site that I think sounds needless anti-privacy notes. Professor Epstein is not only an important public intellectual, but a Cato adjunct scholar of which we’re proud, and a friendly professional colleague (to whose defense I’ll leap when he’s wronged).

The issue is what policies governments might adopt toward the end of terrorism prevention. Professor Epstein finds the statement of Massachusetts state senator Robert Hedlund (R-Weymouth) to be a bridge too far. Hedlund says:

It’s not surprising that you have law enforcement agencies rushing out to use [the Boston bombing and subsequent manhunt] as pretext to secure additional powers but I think we have to maintain perspective and realize that civil liberties and the protections we’re granted under the Constitution and our rights to privacy, to a degree, are nonnegotiable…

You don’t want to let a couple of young punks beat us and allow our civil liberties to be completely eroded. I don’t fall into the trap that, because of the hysteria, we need to kiss our civil liberties away.

Professor Epstein calls that “dead wrong,” saying, “the last thing needed in these difficult circumstances is a squeamishness about aggressive government action.” Given the importance of preventing terrorism, claims of right against increased surveillance and racial or other profiling should be “stoutly resisted,” he says.

I agree with Professor Epstein that flat claims about a “right to privacy” shouldn’t limit surveillance. “Concern” with racial or ethnic profiling is not a sound basis for desisting from the practice. But I don’t take Hedlund’s statement to be a product of squeamishness, and I think it is in the main correct.

Where I think Professor Epstein goes wrong insofar as he wants law enforcement to have its way is in setting aside “technical difficulties” and “means-ends” questions as peripheral. For me, the Fourth Amendment’s bar on unreasonable searches and seizures demands coordination between means and ends in light of the technological situation (both in terms of doing harm and discovering it). It is not a given that government action is reasonable, and no amount of priority given to a threat makes an incoherent response reasonable and constitutional.

Elite Panic

Prior to the bombing and manhunt in Boston last week, Bruce Schneier pointed to an interesting interview with Rebecca Solnit, author of the book: A Paradise Built in Hell: The Extraordinary Communities That Arise in Disaster. She talks of a concept called elite panic.

The term “elite panic” was coined by Caron Chess and Lee Clarke of Rutgers. From the beginning of the field in the 1950s to the present, the major sociologists of disaster — Charles Fritz, Enrico Quarantelli, Kathleen Tierney, and Lee Clarke — proceeding in the most cautious, methodical, and clearly attempting-to-be-politically-neutral way of social scientists, arrived via their research at this enormous confidence in human nature and deep critique of institutional authority. It’s quite remarkable.

Summarizing her research, Soltis found a portrait elites paint of the public, to which they respond in times of crisis:

Part of the stereotypical image is that we’re either wolves or we’re sheep. We’re either devouring babies raw and tearing up grandmothers with our bare hands, or we’re helpless and we panic and mill around like idiots in need of Charlton Heston men in uniforms with badges to lead us. I think we’re neither, and the evidence bears that out.

There’s no denying the importance and value of investigating and capturing the perpetrators of the bombing, and I do not do so here, but elite panic seems to have been at play in Boston. The lockdown—technically voluntary, but tell that to the guy in the tank (HT: Bovard)—treated the public variously as suspects, sources of interference, or targets for display of governmental authority.

Who are the elites? How does their panic manifest itself? “Elite panic” is not a tight enough concept to declare affirmatively that Boston is its examplar, but the concept is worth having in mind. The resources and resourcefulness of civil society are great and entirely accessible in times of peril. They should not be pushed aside at these times—certainly not at the business end of a gun.

On the Capture of Tsarnaev

Over at the Guardian, Glenn Greenwald reacts to Senator Lindsay Graham’s call to keep Tsarnaev out of the criminal justice system and treat him as an “enemy combatant”:

It is bizarre indeed to watch Democrats act as though Graham’s theories are exotic or repellent. This is, after all, the same faction that insists that Obama has the power to target even US citizens for execution without charges, lawyers, or any due process, on the ground that anyone the president accuses of Terrorism forfeits those rights. The only way one can believe this is by embracing the same theory that Lindsey Graham is espousing: namely, that accused Terrorists are enemy combatants, not criminals, and thus entitled to no due process and other guarantees in the Bill of Rights. Once you adopt this “entire-globe-is-a-battlefield” war paradigm - as supporters of Obama’s assassination powers must do and have explicitly done - then it’s impossible to scorn Graham’s views about what should be done with Tsarnaev. Indeed, one is necessarily endorsing the theory in which Graham’s beliefs are grounded.

It’s certainly possible to object to Graham’s arguments on pragmatic grounds, by advocating that Tsarnaev should be eventually Mirandized and tried in a federal court because it will be more beneficial to the government if that is done. But for anyone who supports the general Obama “war on terror” approach or specifically his claimed power to target even US citizens for execution without charges, it’s impossible to object to Graham’s arguments on principled or theoretical grounds. Once you endorse the “whole-globe-is-a-battlefield” theory, then there’s no principled way to exclude US soil. If (as supporters of Obama’s terrorism policies must argue), the “battlefield” is anywhere an accused terrorist is found and they can be detained or killed without charges, then that necessarily includes terrorists on US soil (or, as Graham put it, using one of the creepiest slogans imaginable: “the homeland is the battlefield”)….

[I]t is worth noting that the US government previously did exactly what [Graham] advocated. In 2002, US citizen Jose Padilla was arrested on terrorism charges on US soil (at Chicago’s O’Hare International Airport), and shortly before he was to be tried, the Bush administration declared him to be an “enemy combatant”, transferred him to a military brig, and then imprisoned him (and tortured him) for the next 3 1/2 years without charges, a lawyer, or any contact with the outside world. That was the incident that most propelled me to start political writing, but it barely registered as a political controversy.

So as extremist as Graham’s tweets may have seemed to some, it was already done in the US with little backlash. That demonstrates how easily and insidiously extremist rights assaults become normalized if they are not vehemently resisted in the first instance, regardless of one’s views of the individual target.

Let’s recall that the police did not bypass the Bill of Rights with Oklahoma City bomber, Timothy McVeigh.  Before his execution, McVeigh got a lawyer, trial, and an appeal.  That’s our law–and there’s no fiddling with it.  And experience tells us there are very good reasons for placing limits on police questioning.  For related Cato work, go here and here.