Panic Stains Tsarnaev’s Apprehension

I cannot think of a time in American history, or indeed in world history, in which an entire city has been shut down to apprehend a single criminal. On Friday, the city of Boston and its neighboring cities of Cambridge and Watertown were all but completely closed for business by law enforcement so that two (admittedly dangerous) men could be arrested.

On a related note, indications are that after one of those men was apprehended, he was questioned by law enforcement and intelligence gathering officials before he was Mirandized. So now we must consider that the Constitution may have been violated in official zeal to apprehend the man, potentially endangering his ultimate prosecution and conviction.

These two facts about Friday’s dramatic events in Boston are tightly related — because people let labels do their thinking for them, reacting to something inexactly labeled “terrorism.” Using that label contributed to the triumph of panic, which stains the apparent resolution of the threat to public safety represented by Monday’s awful events in Boston.

More than forty years after its pronouncement, pretty much everybody knows the Miranda rule. And the basic idea that this rule might need some common-sense exceptions and nuances for safety reasons is not particularly controversial. This was formalized in 1981 in a famous case called New York v. Quarles.

The United States Supreme Court carved an exception out of Miranda‘s exclusionary rule for situations where public safety is an immediate issue. The Quarles case has since become an important part of police training and a subject of ongoing legal controversy. But it has had surprisingly little subsequent treatment by the Supreme Court, because to a large degree in practice the common-sense application of the rule has been sorted out at trial court and intermediate appellate court levels in general law enforcement situations. While not particularly troublesome in the abstract, Emily Bazelon at Slate does an excellent job of summarizing how application of the Quarles exception has sat uncomfortably with the apprehension of high-profile terrorism suspects during the Global War On Terror.

Here, the danger inherent in carving such an exception out of Miranda is that all manner of inquiries about purportedly imminent public safety threats will be justified, with the threat to public safety receding from “imminent” to “reasonably perceived” to “reasonably imagined” to “fancifully concocted post hoc” such that  the exclusionary rule becomes eviscerated and the Fifth Amendment is rendered as effective a nullity as the Privileges and Immunities Clause.

Back to Boston in the immediate past. Dzhokhar Tsarnaev was apprehended Friday in Boston after a dramatic series of events leading to his arrest on suspicion of, acting in concert with his late older brother Tamerlan, planting bombs near the finish line of Monday’s Boston Marathon, killing three people and maiming many others. The entire city of Boston went on lockdown as the Tsarnaev brothers were identified and chased after the brothers allegedly robbed a convenience store, killed an MIT security officers, took and alter released a hostage, and the elder brother was wounded and then killed in exchanges of gunfire with law enforcement. Tamerlan was wounded in such an exchange, died of his wounds, and was found to have been wearing an explosive vest. Dzhokhar Tsarneav was later found disabled from his wounds and apprehended.

It would appear that the younger Mr. Tsarneav, like other terrorism suspects before him in the immediate past decade, was questioned without being Mirandized first concerning … something. We don’t know and won’t for a while exactly what questions he was asked, which again is okay. That Tsarneav’s guilt is assumed by the arresting and investigating officers is not a particular problem for me; while the judicial system must presume him innocent until such time as he is convicted, law enforcement does have public safety to consider.

If it turns out the only questions asked of Mr. Tsarneav were about whether there were other bombs anywhere then Quarles obviously applies and those were proper questions, which would be great if that was as far as it went. But one suspects that there was some questioning about motive and a broader sweep to the questions than that — at the President’s personal request, “Tsarnaev will be questioned by a federal team called the High Value Detainee Interrogation Group, which includes officials of the FBI, CIA, and Defense Department.” Fear, maybe even panic, are the reasons why I feel pretty confident that Mr. Tsarneav is not just being questioned about Lite-Brites near bridges.

After all, feelings are still raw concerning the Tsarneav brothers and the bombing in Boston. A horrific crime, followed by the unprecedented near-closure of an entire American metropolis, followed by a Grand Theft Auto-style chase-and-shootout. So rational thought and common sense about the Boston bombing is sure to be in short supply. Which is why lots of people were arrested or accused, who turned out to have nothing to do with the bombings, including strip-searches. Which is why news media like CNN, the AP, Fox News, and the New York Post embarrassed themselves so badly trying to report on the events with inadequate information. Which is why politicians are calling for Mr. Tsarneav to be treated as an “enemy combatant” despite no evidence existing that anything other than ordinary crime happened.

Clear thinking is hard to come by when panic prevails.

Clear thought would have taken into account that two explosive devices were detonated Monday, causing awful harm to innocent people at a high-profile public event. But it would also have considered that after that, no further acts of violence occurred until Thursday night, when the Tsarneav brothers apparently felt the weight of law enforcement’s investigation descending upon them and they allegedly went on their deadly and dangerous crime spree. Finding Tamerlan Tsarneav’s explosive vest was certainly unnerving, but we need to bear in mind that this was only discovered after most of the Boston metro area was put on lockdown, with all manner of arrests and searches and restrictions on commerce and travel and individual liberty put into effect.

Clear thought would recall that “terrorism” is more than something which causes fear. Terrorism is motivated by a desire to effect change; it political. A terrorist issues demands, with the implied or explicit message “Do what we want, else there will be bloodshed.” Neither the Tsarneav brothers themselves, nor anyone acting in apparent concert with the bombers, ever issued demands. Not even for money.

Much has been made that they are of Chechen ethnic background, but the significance of this fact is vague at best.

The deaths and injuries and unprecedented shutdown of Boston Thursday night and Friday were pretty clearly the result of the Tsnarnaevs’ effort to evade apprehension rather than the extension of whatever it was that the bombers were doing on Monday. There was no rational reason to think that anything was going on other than crime.

Of course people were scared by the bombings, and wanted some blend of justice and revenge. A celebratory public event was disrupted, people were hurt, a community was attacked. Justice should be served. The criminals should be apprehended and public safety should be secured.

But that doesn’t take what happened out of the realm of “ordinary crime” and into the realm of something called “terrorism” in which different rules apply. As far as the government is concerned, the law applies at all times.

Slapping the label “terrorist” on a criminal does not change the rules, no matter how heinous the crime is.

Slapping the label “terrorist” on a criminal does, however, heighten the already-justified fear that we have of a criminal. Slapping the label “terrorist” on a criminal causes whatever cool thinking is going on to become silenced and disregarded. A fear response is fast, reflexive, and defensive. Cool heads did not prevail in Boston this week. Panic did. Panic, not concern for public safety, justified the shutdown of the entire city.

Slapping the label “terrorist” on a criminal is an invitation to law enforcement to disregard the law. It invites panic and the bad decisions made under panic’s influence.

It’s precisely when it is hard to want to afford civil liberties to a suspect, that is when they are most likely to be needed and when a violation of the Constitution is most likely to occur. And it is precisely then when cool heads need to prevail. Cool heads did not prevail in Boston this week.

While fear in response to the bombings is understandable, we look to law enforcement and political leaders to not panic and instead to do that which is reasonably calculated to lead to the best possible result. We look to them to vindicate the law, not to short-circuit it. We look to them to restore the peaceful, ordered liberty that is the hallmark of our culture, rather than to lock down an entire city. We look to them to assuage panic, not to perpetrate it.

When Christopher Dorner went on his killing spree in the greater Los Angeles metropolitan area, the city stayed open for business. That didn’t mean law enforcement was “slacking off” or treating the matter lightly. Given that Dorner had made available a manifesto announcing his intentions, and had targeted law enforcement and law enforcement-related individuals specifically, the law enforcement community probably took him more seriously since they were directly threatened by him. His motive was revenge, not political change (at least, not directly).

What didn’t happen was Dorner getting labeled a “terrorist” although in truth he was closer to that than the Tsarnaev brothers appear to have been. What didn’t happen was a shutdown of Los Angeles, or even major portions of the area. What did happen was a wide-ranging and later more tightly focused search for the highly dangerous suspect. Like Tsarnaev, Dorner was located and trapped. Notwithstanding an act of jaw-dropping idiocy and panic by a couple of police officers in the nearby city of Torrance, there was intensely focused but professional thought put in to the task of securing public safety.

Nothing I’ve said should be read to condone anything that the Tsarnaev brothers seem to have done. Nor should the reader understand that my criticism of shutting down Boston and apparently playing fast and loose with the Miranda rule as a suggestion that law enforcement should not have aggressively tracked these guys down and done what was reasonably within their power to secure public safety. And no one should infer any lack of sympathy on my part for the justifiable fear for further disruptions to public safety that these guys represented and the stress that law enforcement was under because of that fear.

What I’m suggesting is that there was a degree of panic, of letting that fear control decision-making, and that leaves a stain. Part of that panic came from calling the bombings “terrorism.” An effect of that panic was pressure on a gray zone in our fundamental laws. Another effect of that was what still seems to me to be the entirely unnecessary shutdown of a major urban area, at an economic cost of hundreds of millions if not billions of dollars, all to capture two criminals.

It should have been possible to find a way to apprehend these guys and keep people safe without shutting down the city. The example of the apprehension of Christopher Dorner demonstrates one way that could have happened — someone kept their head and public safety was secured with substantially less disruption. Hopefully when Tsarnaev pursuit is broken down and analyzed later, panic’s role can be identified and lessons can be learned from that.

If so, cool thinking will get assigned more value when (sadly, we all know it’s “when” and not “if”) future threats to public safety occur. Panic must be kept at bay — when it is, we need not sacrifice either liberty or order while we protect safety.

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering litigator. Recovering Republican. Recovering Catholic. Recovering divorcé. Recovering Former Editor-in-Chief of Ordinary Times. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.


  1. The “lockdown” was voluntary, and all reports indicate that law enforcement did not harrass in any way those who chose to go about their day. What’s more, the “lockdowns” were limited in duration and scope, ebbing and flowing as new information came in. We similarly “lockdown” here in flyover country when threatened by tornadoes, even if the odds are slim that a tornado will hit at one’s location.

    Remember, these were people who weren’t just gunman. They had not only used explosives in their initial crime, but deployed other explosives and had also attacked law enforcement officers with explosives. Given that fact, I think that law enforcement advising people to stay home was both reasonable and prudent.

    • It remains unclear to me the extent to which police instructed people to stay off the streets (which seems to have been the case in Watertown) as opposed to simply advising people to do so (which seems to have been the case in Cambridge and downtown).

      • I’m not sure if this applies to the Boston/Watertown case, but I can imagine a scenario in which an armed person is on the loose, and police advise/order residents to stay indoors. About 20 years ago, near Littleton, Co, some madman (Eugene Thompson) apparently wandered around the town, shooting people. I’m unclear on the details, but in a situation like that, I could see reason for a geographically limited and temporary order, or at least caution, against straying outside one’s home.

        I actually didn’t think of this example until I read Alex’s and others’ comments here. In large part, I’m tempted to agree with that part of your post, as well as with the rest of your post.

      • If you watch the press conferences, what it seemed was done was that they asked people to stay off the streets. Which actually is a third thing from either of the two you mention.

      • A friend drove over to my house during the “lockdown” and was not harassed at all.

        Really, this seems to be a big deal among people watching form outside of the Boston area. Those of us here seem fine with it.

  2. If the capture of Dzhokhar Tsarnaev doesn’t count as a Quarles exception, what possibly could? The man and his brother have murdered and maimed many people in a public setting, murdered a uniformed police offer, detonated explosive munitions in the course of fleeing from an entirely justified pursuit — can the scent of a Danger to Public Safety be smelt among any of their manifest crimes?

    There should have been a way to avoid shutting the city down — I hardly know what to say. What do you propose?

    American justice not only saved Dzhokhar Tsarnaev’s life, it now seems he is talking as fast as he can get the words out of his mouth. You need to make the case as to why this doesn’t count as a Quarles exception.

    • Can’t speak for Burt, but I’m reading in his post the concern that, while this situation certainly qualifies as an exception under Quarles, that we’ve got a very clear recent history of using it as an excuse to expand the questioning from discernment of immediate threats to a permanent hold for any potential threat that can be imagined on all manner of suspects – much less someone like this who had obviously recently committed several dangerous acts of violence.

      Contra Burt, I am holding out hope that the authorities in this case will turn him back into the normal justice system as soon as appropriate.

    • I think you’re getting mixed up on the terminology, which for Quarles is pretty muddled, I admit. The rationale for Quarles was not simply that certain crimes are so heinous that we do not apply standard protections for the accused. It’s that, in a situation where time is of the absolute essence, mirandizing may take too much time and endanger public safety. The instant case was concerned with a suspect who had an empty holster; the cops asked him where the gun was without mirandizing him. This seems prudent in a situation where time is of the essence. The analogous situation would seem to be asking if there are any more bombs, and if so, where. Anything else would seem to violate due process. We’ll need more information to figure out whether there was a violation.

    • For that matter, leave Quarles itself aside for a moment. I don’t like arguing law with a lawyer, but the usual remedy for a Miranda violation is exclusion. If there’s no need nor expectation of using the fruits of interrogation in his criminal trial, then there’s no problem under current law.

      More from Orin Kerr:

      • This point is made in several places downthread too. The Fourth Amendment:

        The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

        And the Fifth Amendment:

        No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

        Miranda is aimed explicitly at the Fifth Amendment’s privilege against self-incrimination. Literally read, the Fifth Amendment right is to not be compelled to be a witness against oneself, which is technically not the same thing as speaking to the police while not on the witness stand. So if you concede the validity of Miranda as a safeguard against self-incrimination, you’ve already gone beyond its literal words.

        So isn’t it fair to say that questioning pre-Miranda is itself a form of search and seizure? As such, it needs to be “reasonable” to conform to the Fourth Amendment. Questioning as described in Quarles is (at least in theory, if not in every practice) reasonable because it’s aimed at protecting public safety. Going beyond “where’s the gun” kinds of questions is unreasonable because it goes beyond the scope of information necessary for the police to secure immediate public safety.

        The rights of individuals are not atomized and discrete; we articulate them in various laws such as the Amendments. But the right itself is something less discrete to all but the most literal of formalists. In this case, you can call the right a lot of different things. Privacy. Autonomy. Non-cooperation. Non-incrimination.

        If we’re considering the dimension of the right articulated in the Fourth Amendment, then to say “Well, as long as the authorities don’t use the information in court, there’s no violation” is incorrect, since that part of the right provides that you’re immune from having an unreasonable search performed in the first place — even if law enforcement later does nothing with the fruits of that unreasonable search.

        Maybe you think that the Fourth Amendment and the Fifth Amendment reach substantively different rights in which case your reaction to the above paragraph is that I’m, in the words of a Proud Bostonian below, talking out of my ass. Feel free to say so if you really think that way. But I don’t see the Fourth and the Fifth reaching different rights any more than I see the Ninth and the Tenth tackling different subjects or the Due Process Clauses of the Fifth and the Fourteenth reaching different subjects. We’re talking about limits on what the government can legitimately do.

        And as I’ve tried to make clear in several places in the OP this may well be a situation where Tsarnaev’s rights have not been violated. We don’t know enough to say so one way or the other. I shed no tears for Tsarnaev. I praise Boston PD, FBI, and the other law enforcement authorities who apprehended Tsarnaev and brought him in alive.

        My point is that in a situation where there is immense pressure and tremendous fear, the temptation is to make shortcuts and imprudent decisions. A principal quality of character we should look for in the people who are charged with leadership in such situations is calm, a quality of being substantially immune to panic. It looks to me like panic was a player in this process from start to finish and, for some, even afterwards. My pointing this out was and is intended to benefit the response to similar situations which, unfortunately, will inevitably arise in the future.

        When decisions are made under the influence of panic, bad things happen. The impact of law enforcement on ordinary, innocent peoples’ lives becomes much greater than it needs to be. The Constitution gets set aside if it is even thought of at all, and courts are later required to either throw out information or make up excuses post hoc for panicked decisions made by others. This, too, is Monday morning quarterbacking, just from an apologetic rather than a critical posture. I think we learn more information useful for future problems when we examine past actions critically than apologetically, and that such criticism, if considered honestly and thoughtfully, is constructive and useful.

        I suppose there are those who will be blind to this nuance. For some, saying that the cops are anything less than thoroughly professional and heores, and Tsarnaev’s rights are a) of negligible importance, b) waived by virtue of his opting out of the social contract and/or c) not violated anyway because of whatever circumstances one might point to, is the end of the story. I’ll not reach such people at all and engender fury with a post like this. But for those who, like me, think it’s possible to have both intelligent and effective government which includes robust law enforcement and substantial respect for civil liberties of individual by the government, analyses and criticisms of this nature are an important part of the ongoing process of citizenship.

        • Fear of what?

          I don’t disagree with your assessment of the importance of the 4th & 5th amendments, but you seem to have leaped to ordinary criminal activity well in advance of everyone else.

          As I say below, I suspect you are correct… but absent that certainty, are fears of a broader immanent conspiracy entirely unfounded? Perhaps you will say yes… I think the general sense is that there is a different category for Treason and minor Acts of War (terrorism).

          I was surprised that there were immediate calls for declaring these (probably unaffiliated) amateurs enemy combatants… and that is alarming. But, in the fog uncertainty, not potentially unreasonable. Trying to make sure that criminal proceedings are the normative assumption is appropriate, but my quibble with you seems to be that you have either per-determined exactly the nature of this attack, or you have no category for an extra-criminal action.

          • The second is closer to the first: I’m reluctant to take nearly anything out of the ambit of the criminal justice system and call it “extra-criminal,” thus effectively removing the government’s response to it from the limits set upon it by law. The law, IMO, allows ample maneuvering space for the government to respond effectively to crimes of all sorts. Including treason.

            That’s not to suggest that I can’t apprehend that a particular criminal action might not be part of some larger plan. Nor that I think immediate fears of the bombings being part of such a broader plan were at all unreasonable. I felt them too, as did everyone else watching the news. How much more intense would those fears have been to the people on the ground directly dealing with the bombings! I’m sure they were all waiting for the next shoe to drop. What would that subsequent step in a broader plan have looked like? More bombings, the issuance of a demand or a threat, further attacks of a different nature upon a target missed in the first strike. Those things didn’t happen. So somewhere along the line, fears of a concerted terrorist attack should have settled. Which does not mean, even for a heartbeat, that law enforcement should have eased up on trying to catch the bombers.

          • Fair enough, but I think the operative assumption is “Somewhere along the line, fears of a concerted terrorist attach should have settled.” That’s a reasonable hedge with which I personally agree – this seeming more like the DC Snipers than a “real” terrorist action – but the nature of bombs and explosives are sufficiently different from guns and snipers that ascertaining that there are no additional hidden explosives or a larger conspiracy doesn’t trigger for me a constitutional crisis.

            Declaring them enemy combatants simply because they are Caucasian does.

            [I never thought I’d ever have occasion to write that].

          • I was surprised that there were immediate calls for declaring these (probably unaffiliated) amateurs enemy combatants… and that is alarming.

            I’m surprised that you’re surprised. It’s completely in character for the particular media and politicians that are saying it.

        • Quarles resolved to the question “where’s the gun?” in the presence of an empty holster. All this carrying-on about Miranda is so much moot hand waving and posturing: this is clearly not a Miranda case. As I understand it, the boy is sedated and has not yet been interrogated.

          The larger question, one which I though you might have raised, would address the calls for declaring this boy an Enemy Combatant by U.S. Sens. John McCain of Arizona and Lindsey Graham of South Carolina. As I understand it the DoJ has invoked a Quarles public safety exception — but has not yet declared him to be an enemy combatant.

          The validity of this public safety except is not in doubt: nobody, not even you, has seriously raised such doubts. I’m not a lawyer. But this much I do know, having been through the justice system on a pretty serious felony beef and been acquitted, the government’s problem will resolve to evidence, not testimony — the defendant’s or otherwise.

        • I don’t see anything new in the treatment Tsarnaev, though, even to the extent I agree with the contention that current practice is problematic. Even if it’s true that some aspects of current jurisprudence are problematic, the tools the authorities are using are part of regular criminal law as it currently exists, not “extra-criminal” carve-outs for those labeled terrorist. The police would equally be allowed to conduct an un-Mirandized interrogation of drug-dealer in order to get information about higher-up the supply chain.

          It’s possibly true that panic and pressure lead to some troubling responses regarding the lockdown and house-to-house search (although also possible not, I don’t know). And, of course, obeying the calls to declare him an enemy would be over the line. But in terms what’s actually happened to Tsarnaev once he got in custody, I don’t see any evidence that panic and pressure pushed the authorities beyond established law.

        • I just don’t agree with your interpretation of the fourth amendment. Asking questions is not search or seizure. The reason we have Miranda, I’m guessing, is that it’s important to make clear to the suspect that he’s under no compilation to testify against himself, or else he might do so under the misapprehension that the police can force him to do so. And if the police can introduce the suspect’s statements as evidence, that’s testimony. There’s no reaching there—the suspect’s words are being introduced as evidence in court. That’s testimony.

          Why do we have the prohibition against unreasonable search and seizure? Well, for one, having the police bust in and search your house for no good reason is a huge imposition.

          • Compilation => compulsion. Cell phones. What’re you gonna do?

          • I’llo ffer further explanation of why I think the Fourth and the Fifth get at the same thing and I suspect I’ll leave it at that afterwards. Both guard against the government getting into your sphere of privacy and personal information. It takes something from you and then uses it against you. It has authority to do that – with a warrant or a similar showing of good cause.

            The exclusionary rule is used as a remedy for the violation of both, as well. (Don’t confuse the remedy with the right it vindicates.)

          • he’s under no compilation to testify against himself

            That’s covered under “freedom of assembly”.

          • Burt, with the understanding that you’ve probably had your last word on this topic (per your comment above), I do kind of think you’re talking out of your ass (though left to my own devices I would have chosen a more conciliatory phrase).

            The Fourth Amendment protection against search and seizure is plainly a different right than the Fifth Amendment right against self-incrimination, which in turn is a different right than the Fifth Amendment right to counsel, which itself is a different right than the Sixth Amendment right to counsel! There is also a separate question of a general substantive due process right not to be subject to police brutality or otherwise “unreasonably” coercive police interrogation (this is the due process voluntariness inquiry). These things are all related, but they’re not all the same and the differences are important. Questioning an arrestee without giving him the Miranda warnings is, on its own, not a violation of ANY of these rights; the Miranda warnings are purely prophylactic. What it sounds like you’re talking about above is the due process question (that’s the inquiry closest to “were the police reasonable in conducting their interrogation), but that right is only violated by serious police misconduct (i.e. “enhanced interrogation”), and questioning someone without Mirandizing him doesn’t come anywhere near that standard. Frankly, this strikes me as a totally run-of-the-mill law enforcement situation, where you might make a decision about whether to Mirandize someone based on whether you need his confession to obtain a conviction. If you don’t need the confession and you think a looser interrogation might serve some purpose, it is perfectly constitutional to question him (e.g. about accomplices) without giving Miranda warnings.

          • Since repetition enhances neither veracity nor suasion I’m content to have articulated myself whether that be in oral, epistolary, or rectal form.

        • Continued from above: I don’t see that there’s any comparable harm from questioning a suspect who’s being held anyway. All you can do is ask questions, and you can’t even introduce his statements as evidence. There’s just not a lot of potential for abuse here, as there is with physical searches, or even wiretapping or snooping on email.

    • I agree with BlaiseP. It strikes me as equally panic-stricken to consider all things criminal. This was no ordinary crime; not just because it was a bomb, but because we can’t quite fathom a criminal motive… love, hate, lust or lucre. There may well be a simple motive, but it is not sufficiently apparent that we can assume Mere Criminanity.

      This begins to smell to me more like the DC Snipers than well trained operatives…perhaps we might call them Accidental Terrorists.

      So prudence suggests that making certain that no broader conspiracy exists is reasonable, but once that path is reasonably closed, one assumes simple criminal justice is all that would be required moving forward.

  3. Provided nothing from the pre-Miranda interrogation is used against Tsarneav in court, has the Constitution been violated?

    Also, from what I’ve read, “shutdown of the entire city” is exaggerated. Public transit was shut down. Two sports events were cancelled voluntarily. People were asked to stay in their homes in the neighborhoods where the house-to-house was being conducted. This doesn’t sound like panic to me, it sounds like tactics:

    * Keep Tsarneav contained
    * Avoid creating large gatherings in case he wants to go out in a blaze of glory
    * Facilitate the manhunt while keeping civilians out of the line of fire

    And this was based on the amount of carnage someone willing to use explosives on a crowd could cause, not on his status as a terrorist. Also, I’m sure they expected to find him much sooner, making this a few hours of inconvenience, not a whole day.

    • In answer to your first question, no. This has been a frustrating couple days for people who are actually familiar with Fourth Amendment doctrine, because these kinds of pieces are being written all over the place without any recognition that asking someone questions without Mirandizing them can never actually be a constitutional violation. The constitution is only violated (if at all) when a statement is admitted in court.

      • Of course I would put my own foot in my mouth when writing this kind of comment. Meant Fifth Amendment doctrine.

    • I want to second Mike’s read on the lockdown being overblown. I live in Cambridge, about a 10 minute walk from the Tsarnaev residence and I had no problem going about my daily errands – grocery shopping, a liquor run, laundry. Most shops and cafes were open with people milling about, even a few cars on the street.

      What was locked down was public transportation (which effectively restricted any major travel around the city) and as a result most major employers and universities followed suit. That’s why the shots you saw of “ghost town” Boston were mostly of downtown, high-traffic commercial and business area. I would say the lockdown was almost exactly like what happened earlier this year during a blizzard (when the T was shut down) and nothing really like martial law.

      • 1. Boston is a metro reliant on public transit. Wikipedia says that the Green line is the busiest light transit line in America. I can’t find statistics for the Red, Blue or Orange lines or the bus system, but if memory is anything to go by, they are busy almost the day through.

        In a metro like Boston, shutting down the MBTA is paramount to shutting the city down.

        2. Reports from Watertown suggest the situation was a little bit different there. As in Cambridge, Belmont, etc. they were asked to stay inside – but their streets were also flooded with 9,000 armed law enforcement personal and armored vehicles. That lock down seemed real enough to the people who lived in it, if any of the photos and interviews are to be trusted.

        But even if what happened is closer to a blizzard than martial law, the government’s response was simply not proportional to the attack. As I wrote over at my place:

        Boston was turned into a prison to catch a 19 year old who killed three people. Lets put this in perspective: every year an average of 115 people are murdered in the Boston Metro. [3] That is roughly one murder every three days. Living in Boston’s lower income “ghettos” I was acutely aware of this fact. I befriended many people whose friends and family members were the victims of gang warfare. Their deaths brought no manhunts.

        Acts of terrorism are different from normal homicides, and they should not be treated as such. …Again, I implore my fellow countrymen to see things in proper perspective. India and Great Britain have shown how great power democracies can weather protracted terrorist campaigns without curtailing civil liberties or searching homes with heavily armed troops. Between 1970 and 1999 the Provisional Irish Republican Army detonated over forty bombs in the city of London alone. Since 2000 Islamic terrorist groups like Lashkar-e-Taiba, Jaish-e-Mohammed, and the Indian Mujahadeen have staged more than 30 different attacks in India since the 1990s. The most recent, a motorcycle bombing in Bangalore, happened two days ago. Great Britain survived the IRA. India thrives despite her home-grown Jihadists. Neither nation resorted to urban lock downs or paramilitary man hunts to do so…..

        Had someone told me two weeks ago that a terrorist attack on a major U.S. city would wreak such devastation that its citizens would be unable to walk outside and convoys of military vehicles would be rolling down its streets I would have dismissed the story without second thought. Only a truly catastrophic attack could possibly produce such ruin and terror.

        We suffered no attack of this sort. Our terror is entirely of our own making.

        • Great Britain have shown how great power democracies can weather protracted terrorist campaigns without curtailing civil liberties or searching homes with heavily armed troops.

          OK, we’ll arrest a different Chechen and get a confession by threatening his father’s life.

        • A “prison”? Really?

          Good grief! I thought the term “lockdown” was a case of preposterous overreach.

          I got a day off from work, which I spent with my wife and a dear friend. That friend drove to our house in Dorchester, leaving from Somerville (go look at a map). At no point did he encounter any “prison guards.” In fact, he rather enjoyed the drive, since seldom is I93 so clear of traffic.

          We remained inside. However, others in our neighborhood felt free to walk down the prison-sidewalk, yes somehow free of any interference from these invisible prison guards.

          Yes, most businesses were closed. Yes, transit was closed. On the other hand, they got the guy. No civilians were killed.

  4. That someone does not seem to grasp the terrorist “objective” or “demands” does not mean that those objectives and demands do not exist, have not been clearly articulated, and are not conceivably served by actions such as these, but een accepting your premise that the two brothers do not qualify as “terrorists,” or cannot at minimum be reasonably suspected of being terrorists, they still wouldn’t qualify as “normal” criminals. The sole purpose of the bombings appeared to be to create casualties in a spectacular fashion. Dorner’s intentions were completely different. He did not target “everyone and anyone, women and children included.” Assuming the perpetrators to be utterly motiveless principles of pure murderous destruction might actually be more terrifying than to assume that they have political or political-theological purposes.

    The rest is Monday morning quarterbacking. If the brothers turned out to have been better at what they were doing, or if they had taken advantage of “business as usual” to create additional multiple-casualty events, then one suspects that critics would quite reasonably ask why they didn’t take simple measures, like asking people to stay indoors, in order to eliminate opportunities and help law enforcement isolate the fugitives. Why shouldn’t the entire city be invited to participate by locking things down for a day or two? What was the great harm? Perhaps it showed that “we” can be “terrorized,” but “we” were the targets, so a reaction in some way involving us all is perfectly appropriate, even apart from its practical purposes. If and when someone like the Tsarnaevs, identified and at large, turns up with a more advanced plan or a larger conspiracy, re-employing the Boston model may be the difference between a handful of casualties and thousands.

    Nor has “the Constitution” been “violated.” The legal risk in not Mirandizing the suspect is mainly to the state, unless, indirectly, we enter onto the slippery slope of effectively eliminating the bar against self-incrimination. That “violation” has not yet occurred, and we have no good reason to believe that it is going to occur. It is at this point a matter of speculation, though I won’t call it “panic”-ky speculation.

  5. the elder brother was wounded and then killed in exchanges of gunfire with law enforcement.

    Somewhat irrelevant to the post, but still interesting: according to police reports, after the elder brother had run out of ammo, the police tackled him. They were in the process of handcuffing him when they saw the SUV driven by the younger brother bearing down on them and got out of its way, as it ran over and killed the elder brother.

    • Add hit and run to the list of charges against the younger brother, and from now on call the elder brother “speed bump” to distinguish him from White Hat, who probably sucks at Halo because he runs over his own Marines.

  6. I agree that the significance of their Chechen natsional’nost is still unclear. But, the media, pundits, and blogs have sure managed to prove they know nothing about Chechnya in the last few days.

    • They know it’s the place Hitler invaded after Munich.

      • Google it and the first thing you see on the wiki is “Caucasian Wars”.

        You don’t need any more info than that.

  7. This is a most excellent post, and gives words to thoughts that have been racing through my mind as I reflected on the events of recent days.

    Earlier today, while listening to the insufferable and remarkably-ignorant-of-her-own-bullshit Monica Crowley, I was reminded of why voices like yours are so necessary in the legal profession. She spoke about the importance of “wringing as much information out of him as possible before he lawyered up”, demonstrating that she saw the younger brother as a means to an end, undeserving of the full legal protection afforded him as a citizen. She cheered on charging the “Chechen terrorists” (a phrase she repeated ad nauseam) as enemy combatants, ignoring what all of these words actually mean. And she spoke about how the brothers were radicalized to “hate, despise, and destroy our freedoms”, ignoring that the only groups who curtailed our freedoms this past week were agents of our own governments.

    Brava, Burt.

    • Great point. I initially read Burt’s post as being quite premature and cautionary, but after listening to news panelists talking about how these “warriors” need to be put in a “CIA black site” and we should throw away the key, I think his caution is entirely warranted.

      • Yes, this gets me as well. He’s a US citizen and should be turned over to the criminal justice system for trial. I’m pretty sure he’ll be tried of a capital crime in a federal court (as was Timothy McVeigh). Calls to torture him or turn him over to a CIA black site distress me. I know there’s still a lot of raw anger out there over the crimes but calls to circumvent our justice system strike me as the kind of unnecessary panic that’s led to things like the Patriot Act and the whole invasive rigmarole of national security theater one has to put up with in order to get on a plane these days.

        • Yea… I’d consider “wring out of him” a euphemism if I couldn’t easily imagine him actually getting physically wrung.

        • It’s not about anger for his crimes; most of the call to send him to Guantanamo is coming from people who think killing people from blue states is a valid electoral strategy. It’s because he’s a Muslim, period.

          • For people who think killing people from blue states is a valid electoral strategy, you’d think they’d have been more disappointed to hear that he was a theist too.

          • Because Massachusetts doesn’t have the death penalty.

          • I don’t know the details, but I suspect something he did violates a federal anti-terrorism law that carries the death penalty. McVeigh was tried in federal count.

          • Keep in mind, McVeigh bombed a federal building. The federal hook here is going to be tied to either a pretty amorphous concept of interstate commerce – e.g., that the pressure cookers used had traveled in interstate commerce- or some sort of an allegation- possibly not very easy to prove at this point- of a specific intent to attack the federal government.

          • Could the fact that the victims were from all over the country (or, at least, multiple states) be used as a place for the Feds to insert themselves or is that just a reason for Massachusetts to have a Massachusetts trial, Connecticut to have a Connecticut trial, and so on?

          • Given that there were suspicions of the activity being related to international, politically-motivated terrorism, I see good reason for Federal law enforcement authorities to be involved in the investigation. If it becomes clear that this was what some in this thread have called “spree violence” or one of the many theories that the brothers were enacting revenge against a Boylston Street merchant for having participated in the prosecution of their mother for shoplifting, this is pretty much a purely local matter for the Massachusetts state courts. The fact that some victims were from states other than Massachusetts (and indeed, countries other than the United States) does not seem particularly relevant to me. Of course, I’m not a Federal prosecutor and I don’t have access to all the facts, so we’ll need to reserve final judgment on this until and unless prosecutors making filings in a court.

          • The bombing is a Federal felony beef under 18 U.S.C. Section 844.

          • Ah. Good spot. Given the broad scope of “interstate commerce,” it’s hard to imagine that some component of the pressure-cooker bomb wouldn’t have been obtained through it.

          • Betcha this kid will never see the inside of a Massachusetts courtroom except perhaps to remand this case to the District Court. Not being a lawyer, I’m not sure if remand is the correct word, but in a tussle over venue, I would think the US District Court would win out. What’s your thought?

          • “Remand” is what happens when a case in Federal court is sent down to a state court.

            Thanks to your spot of 18 USC sec. 844, it appears to me that both the state court of Massachusetts and the U.S. District Court for the District of Massachusetts have concurrent subject matter jurisdiction.

            I’d suspect that the prosecutors from both systems would not speak to one another and reach an informal agreement about which one should go first, based on a comparison of the different procedures and sentences available in the different systems, and when each one felt that enough evidence had been accumulated to go to trial. The willingness of the defendant to plead guilty (and to what) would be a factor too.

          • Also, I don’t know why threading seems to have broken down here, and I don’t have a ready fix available at the admin level. Sorry about that.

          • (In my experience, threading breaks down when there are replies to a comment that has been deleted. Has a comment been deleted recently? If so, I’d guess that re-instating the comment would put the comments back. If the comment did not meet the standards of the blog and you don’t want it on the page, it can always be rewritten.)

          • I haven’t deleted any comments on this thread at all.

          • “Given that there were suspicions of the activity being related to international, politically-motivated terrorism…”
            Where did these suspicions come from?

          • What do we think about the fact that to have federal laws against acts (of terrorism?) like this, we have to bring them in under a pretty smirk-worthy ostensible theory that our concern is with how they affect commerce among the several states? Is that actually our concern? If it isn’t, is it still just fine that it’s how we are able to enact thiose laws, or should we reconsider whether we want federal laws about these matters where they don’t intersect with federal property/personnel/business (i.e. like the mail)? Or might it raise the question of whether we’re really actually so much on board with the whole architecture outlining what matters the federal Congress can and can’t legislate, as the Constitution is presently understood to outline it, after all?

          • Mark,

            That was my thinking, but I do wonder in what way the crimes definable as “federal” here are actually capital crimes. (I wouldn’t put it past the feds to try, for the reason Mike said. I just don’t really know what the rationale would be.)

  8. Well, frankly the Quarles ruling is one of the stupidest decision on the books, but that doesn’t mean the exception it carves out isn’t necessary and wise.

    On Quarles:

    To clarify my contempt for Quarles, only in a place like New York, where people wouldn’t know which end of a gun to point, would they think a pistol hidden behind a box of Cheerios is a clear and present danger to life and limb. It’s not like a poltergeist is going to grab it up and start blasting at people, nor is it a Star Trek phaser set on overload. It’s a gun – in a store – like you might find in a gun store. Gun stores aren’t dangerous places or the cops wouldn’t hang out there to relax, cops that at home probably have a backup gun, perhaps hidden behind a box of Cheerios. That the police in the case were too lazy to retrace the suspect’s mad dash and look for his weapon, perhaps causing a cleanup on aisle three, or that the public has an immediate and pressing need for canned peas 50% off, or that the store owner can’t see his profits take a hit for half an hour, isn’t a reason to toss out a fundamental Constitutional protection. Perhaps we should call it the “public worker laziness, shopper convenience, and grocer profit exception” to the Fifth Amendment.

    However, if the case had been an example of a clear and present danger to public safety, as opposed to an example of people who think a gun in a store is like a gas leak (come on, we used to carry guns in bars or sometimes leave them laying on the counter. One of my friends is a girl who goes grocery shopping with a gun on her hip, in plain sight), then the exception it calls for makes sense.

    Let me cross post some comments I made elsewhere which cut to why we need an exception:

    “There’s already a Miranda exception carved out to cover questions asked to protect public safety (“Where are the other bombs you planted?”) because the civil rights of the accused do not outweigh the right to life of other innocent citizens yet to be harmed. When this principle is applied to a situation that has escalated to war, it holds that the civil rights of a suspect do not outweigh those of all the other citizens who will see their rights, and possibly their very lives, stripped away in the whirlwind.

    One of the Founders’ complaints about King George, as listed in the Declaration of Independence, is not just that he abused or ignored our rights, but that he failed to protect us from our enemies.

    Refusing to lift a finger or lay a hand on a suspect who knows where a ticking time bomb is set to blow up a school or other public place is to become at some level complicit in carrying out the subsequent attack, tacitly accepting the demented will and intent of someone in custody. As the Supreme Court ruled, we are not to be accused and condemned for trying to beat a confession out of someone if what we are doing is trying to save lives from an immediate and ongoing threat.

    We can have a government that both doesn’t abuse our rights and protects us from enemies bent on harm, once you rule out the case that people have a right to keep doing us harm on behalf of our enemies. If there are no bombs gong off then the government (us) will play nice. Otherwise the government will perform job one, stopping the bombs and the bombers and protecting our citizens.

    Looked at another way, the police can use lethal force on a suspect who presents a clear and immediate threat to the public. Normally this changes as soon as we have him in custody, because historically most weapons were wielded by hand and a suspect no longer presented a threat once custody was established. So by happenstance custody marked the end of the immediate threat and the point where the court system took over, making a nice dividing line between two rules of conduct. (No one is complaining about the fate of suspect #1, whom the government killed in the street.)

    The Boston bombers were wielding one of those unusual weapons that can still kill people after be taken into custody. That is something unusual in criminal cases, so much so that we didn’t bother to design our system around it.

    Imagine some future case where people have cell-phones implanted in their brains, something that everyone finds extremely convenient and something that is barely in the realm of fiction even today. So suppose some wacko builds a bunch of cell-phone activated smart bombs and drone delivery systems and starts causing havoc.

    We accept that idea that a cop who sees the suspect, and sees the suspect’s drones closing in, can kill him dead in the street to stop the attacks, in defense of himself and the public. But if the drones were all busy across town, then the cop can just walk up and throw the cuffs on. What did the cuffs really change? Nothing.

    The suspect could be just as busy as ever flying drones into school buildings. You could drag him into court and present him to a judge and he could sit at the defendant table and grin like an idiot while blowing up more innocent people. In effect, he is still at large even in a courtroom full of lawyers and while staring at a judge. Hopefully the bailiff would have sense enough to shoot him between the eyes. But then we get to semi-autonomous drones that have to be given an encoded shutdown command, where just shooting the defendant wouldn’t work. In that case, some enhanced persuasion is called for.

    Maybe you find that upsetting, but I don’t. Regular people have rights that shouldn’t extend to wetware that is still actively functioning as part of a deployed weapon’s command and control system. The presence of handcuffs and an orange jumpsuit doesn’t change that any more than wearing bright-orange Nikes would protect an ad-hoc anti-tank missile team from the army’s return fire.

    Our civil legal protections for those who are acting as enemy command and control systems should start after a dire threat has abated (or a war has ended), not when mere physical custody begins. It is certainly more convenient for us to treat physical custody as marking the change in the rules (between being shot dead in a liquor store with no questions asked versus lawyering up), and in almost all normal cases that works, but that is a convenient custom based on the historical nature of our common hand weapons, not holy writ based on immutable laws of nature.

    White hat guy is likely acting as a foreign enemy combatant. He might still be functioning as part of an active weapon system (is Boston still booby trapped?). Dressing him in an orange jumpsuit with a number on the back doesn’t instantly make him like everyone else wearing an orange jumpsuit around the Boston courthouse. Noting that he’s a US citizen doesn’t make him like every other citizen who isn’t acting as an enemy combatant and who still might have ticking time bombs emplaced in one of our cities.

    But rest assured, once he has become a normal defendant and all outstanding questions have been answered, the might and majesty of our legal system, our protections for the rights of the accused, the greatness of this nation’s civil liberties, will soon see him on the tenure track to a professorship at Harvard, or at least Stanford, plus raking in an awesome forward on a book deal. Our country is great that way. Just thank G-d we know he was born on foreign soil so nobody can run him for President.”

    Regarding the shutdown of Boston, Cambridge, and Watertown; Massachusetts has been infantilizing its population regarding the right to lethal force for quite a while. It’s no surprise that as a result the government has to treat the citizens as infants, wholly unable in any numbers to protect themselves from a 19-year old wounded white kid. In Wyoming the government probably would’ve just advised citizens to graciously shoot the suspect in the legs or the nuts because he was still wanted for questioning by authorities, perhaps incentivized by a larger bounty for alive than for dead.

    To sum up, a person’s relation to government grants them our normal legal protections as the default case, largely because it’s overwhelmingly the most common case. That doesn’t mean those protections are the primary case – which applies to those who are national enemies engaged in hostilities against us or dire threats to the public or our Constitution. To join the class of objects who get to chat with a cute lawyer, you have to be separated from the class of objects categorized as national disasters, weather phenomenon, plagues, nuclear warheads, enemy fleet commanders, and rabid squirrels. Once that’s done, you can have your day in court. Handling the priorities the opposite way means people die, possibly in huge numbers, while the lawyers dicker. Then they get pissed of an select a new government that will actually guard their security.

  9. Excellent post, Burt.

    Saying that this isn’t “terrorism” is a particularly interesting point. The suspects haven’t elucidated any clear political agenda, or made any demands, so this does seem more comparable to, perhaps, a school shooting (but on a much larger scale) than a terrorist attack – a mass act of violence in which it isn’t really clear what motivated the perpetrators. Yet until you brought up the point, it hadn’t occurred to me to think of it as anything but terrorism.

    Here, the danger inherent in carving such an exception out of Miranda is that all manner of inquiries about purportedly imminent public safety threats will be justified, with the threat to public safety receding from “imminent” to “reasonably perceived” to “reasonably imagined” to “fancifully concocted post hoc” such that the exclusionary rule becomes eviscerated and the Fifth Amendment is rendered as effective a nullity as the Privileges and Immunities Clause.

    This is also an excellent point. If the cops were asking about things like the location of other explosives, than this particular incident seems like a clear case of a reasonable exception to Miranda, but any kinds of exceptions to rights do seem to expand beyond what they were intended to mean (just look at the redefinition of “imminent” in the Obama Drone Memos).

  10. “The suspects haven’t elucidated any clear political agenda, or made any demands”

    My own comment may have seemed to support the notion that terrorism must be obviously instrumental in some way, but I don’t think this conclusion is correct. How “clear” the agenda is to you or to anyone else, or whether the terrorist makes particular demands, is irrelevant. The objective that matters is the objective to terrorize. So, the use of a “weapon of mass destruction,” a category that includes bombs, already apparently puts Tsarnaev in jeopardy under the federal Terrorism statute, whatever reasons or motives he may have had for using one against a crowd of people. This isn’t just a peculiarity or technicality of U.S. law. Numerous attempts to define “terrorism” legally have made little or no reference to objectives or demands beyond the clear objective of intimidating a community through acts of violence.

    It’s also irrelevant whether the perpetrator might have had additional motives. An act or set of acts whose purpose appears to be to make a spectacle of murderous destruction in a socio-politically significant setting will probably and reasonably be classified as terrorism. Though it’s possible that a school shooter may also want to terrorize, or that a particular terrorist may have personal grievances or even be a psychopath, an act that aims chiefly to kill as an end in itself, without regard to the effect on anyone else, will probably not be classified as terrorism. But the definitions are not mutually exclusive. You can be both a deranged killer and a terrorist.

    • “The objective that matters is the objective to terrorize. So, the use of a “weapon of mass destruction,” a category that includes bombs, already apparently puts Tsarnaev in jeopardy under the federal Terrorism statute, whatever reasons or motives he may have had for using one against a crowd of people. This isn’t just a peculiarity or technicality of U.S. law. Numerous attempts to define “terrorism” legally have made little or no reference to objectives or demands beyond the clear objective of intimidating a community through acts of violence.”

      Wouldn’t this have made Benghazi very much NOT terrorism? It was an organized, frontal attack against a government target.

      • The original attempts to define Terrorism for purposes of international law in fact focused on attacks on officials, including diplomats, as representatives of their states or, using the broad definition, communities. See, for example,

        In the dryly humorous Wikipedia way, the above entry makes the following observation early on:

        A 2003 study by Jeffrey Record for the US Army quoted a source (Schmid and Jongman 1988) that counted 109 definitions of terrorism that covered a total of 22 different definitional elements. Record continued “Terrorism expert Walter Laqueur also has counted over 100 definitions and concludes that the ‘only general characteristic generally agreed upon is that terrorism involves violence and the threat of violence.’ Yet terrorism is hardly the only enterprise involving violence and the threat of violence. So does war, coercive diplomacy, and bar room brawls”

        • Which is why it seems to me that “terrorism”, at least how the phrase is used in America, means, “People we don’t like doing things we don’t like.”

          • True, which is why it’s sufficient for me to call him “a person who commits mass murder of innocent bystanders.” I think we can agree that’s worth stopping.

          • Agreed. Presuming they’re guilty, they are murderers. That should suffice.

            Do prosecutors get double-bonus points for convicting a terrorist?

          • If he’s a nut who went nuts, that’s one thing.

            If it turns out that someone in Pakistan was sending him money via Western Union to buy chemicals and guns, that’s a different thing entirely.

          • One implies the threat of future attacks, for one

          • Terrorism seems like a perfectly valid definition. It’s terribly ancient. Murdering strangers because they happen to be part of some Hated Other Group, to send a message of some sort.

            Terrorism might be a good definition for what goes on between gangs. These gangitos don’t really know each other. They’re just shooting at a hat. By extension, what about bombing of civilians when we did it? Wasn’t that all about breaking the morale of the Germans or the Japanese or whoever we happened to be bombing at the time?

    • So, the use of a “weapon of mass destruction,” a category that includes bombs, already apparently puts Tsarnaev in jeopardy under the federal Terrorism statute,

      Bull. Crap. They better not try to use THAT rationale.

      A WMD is a nuclear, chemical, or biological weapon. A conventional bomb is none of the above.

      In answer to your main point: So Newtown was terrorism? Columbine was terrorism?

      That word has come to mean so many things it doesn’t mean anything anymore, except “violence that wasn’t committed by us”.

      • One of our local Univ. of Kentucky football players was charged with making and setting off “weapons of mass destruction” in a nearby apartment complex. His “bombs” were 2-liter Diet Cokes and Mentos. They actually cuffed him and hauled him downtown and the news reporters, who were in the dark, initially reported the claims against him at face value, briefly adding his name to the pantheon of Timothy McVeigh and the Ted Kaczynski. Thank goodness the charges were dropped, otherwise he probably could’ve got life in prison for making soda pop fizz.

      • Interesting thread: I’m going to peg this long comment as a reply to KatherineMW – – but I’m trying to address questions raised elsewhere. I’d just post this comment on my own blog, but, since it was inspired by this discussion (and since League pingbacks are largely dysfunctional), and since others have not hesitated to on about it at interesting length – like George Turner above, for instance – I hope it will be seen to belong and fit here.

        Because the idea of “terror” is a definitional and circumscribing topic for our “way of life,” perhaps for ways of life at all, we shouldn’t be surprised if it ends up seeming to connect everything to everything – if every particular question explodes like a conceptual bomb striking ever other concept in the vicinity.

        To KatherineMW’s problem with the “WMD” designation for a “conventional bomb,” that any such bomb is a “WMD” for purposes of the law would hardly be the sole instance where a legal designation is different from a popular or political one. The point for the law seems to be that engaging in “mass destruction” is immediately a crime against society, an attack on (the) people as well as an attack on particular persons. The statute just encodes the understanding that in making a bomb a criminal shows disregard for life in general: It is another dimension of criminality, and inherently points to pre-meditation and other aspects of intent. The significance of the infraction, or its usefulness or importance at trial and sentencing if things ever reach that point, will depend on other circumstances, and be as much a practical as an ideal-legal question. At the same time, the fact that bomb-making may be inherently terroristic for purposes of the law obviously does not mean that acts involving other weapons or types of weapon may not also be crimes against society. It could be that someone preparing a rifle has the same overall intent as someone else making a bomb, but the fact that someone is making a bomb remains strong evidence of criminal intent, neglect of human life, and specifically of a willingness to terrorize. Someone taking care of a rifle could have many uses in mind.

        More generally, in a social-political order built on individual rights, with its roots in an 18th Century metaphysics of the individual and natural or God-given “certain inalienable rights,” “mass terror” is fundamental negation on the plane of social-political conduct: It denies the existence of such rights at all. It does not see individuals, or for that matter life, liberty, or pursuit of happiness. It has pre-alienated those rights. It treats them as irrelevant and absurd, or worse. It says that they are destructive, evil-working lies.

        In this connection, we can certainly observe terroristic elements to Newtown and Columbine, and other mass or spree killings, even if by “terror” we usually are referring to political violence in the conventional sense of “political” – governments, parties, laws, and so on. The insanity of a school shooter and the implacability of a political or theo-political fanatic overlap here: Both the pathological killer and the zealot hate “this world,” but so, too, in a way, do the good, moderate liberal-democratic citizens who resort to torture and terror in the professed hope of defending, restoring, or building a better world than the one made hateful by the terrors perpetrated by others. On Blaise’s point about bombing the Germans and Japanese, those responsible for the campaigns openly used the word “terror” to describe their tactics and objectives. The Germans did so more self-consciously and systematically at first, even giving the name terror-attack (Terrorangriff) to the military tactic, as they employed it and as they claimed it was being employed against them, though as Blaise also indicates, and as the Nazis were very aware, the usefulness of terror was in no way a modern discovery.

        All of these terms and concepts flow into each other: Torture also typically includes terrorism, as exemplary violence against particular victims to impress others. “Terror leads to torture, and torture leads to terror.” It may be helpful for us to recognize, unless it is more important for us not to admit it, that the American or liberal-democratic way of torture-terror is that it’s more or less and sooner or later OK if the other guy tortures-terrorizes first. The Germans, the Japanese, the South, the Indians, Communists, Al Qaeda, Saddam: They all “asked for it” by insisting on ways of life that we could not accept without agreeing to the displacement of the way of life, the non-torturing-terrorizing way of life, we insist on. This conclusion on our part is easy to portray as hypocritical or as a madly self-contradictory abstraction, but these criticisms do not rise to the level of the argument or its necessity: They do not comprehend the provocation as understood from within the liberal-democratic value system, which is not merely an abstract value system, but concrete, a complex system at work in the world. The contradiction is also neither new, nor unique to America. It is the primordial self-defense justification written in modern forms of extreme violence. The Reign of Terror can be described as another such reign of terror-against-terror, for example – just one among very many, potentially – but the uniquely well-developed American expertise with the contradiction in its modern age forms, and America’s world-historical position, are interdependent, if not the same thing.

        The liberal-democratic society at war turns to torture-terror with the objective of eliminating torture-terror, an objective that the establishment of the liberal-democratic rule-of-law order is thought to be most likely to achieve to the greatest extent achievable. When we are not feeling particularly tortured-terrorized, we are more inclined to pretend that being fundamentally opposed to torture-terror is the same thing as promising never to engage in it. However, all war amounts inherently to socialized torture (or terror), and “everybody breaks,” and “the enemy has a vote.” The terrorist seeks to torture the enemy society, our society – the good, liberal-democratic society – into revealing its secret, a cruelly judgmental version of the plain-sight secret that the good society is and always has been and can only have been something other than it portrays itself as being, that it is, among other bad things, an edifice built on a foundation-pit of maimed corpses that needs continually to be re-filled. The belief that some version of this truth is the most important and all-inclusive, perhaps the only true truth about the good society may be typical of terrorist ideologies generally, and it is also a truth that a certain kind of sophomorically rigorous mind, such as the Holden Caulfield phoney-hating mind, cannot get around. The thought of the insanity of so-called sanity drives this mind insane, and makes the extremely irrational appear no more or less rational than any other conduct. (The problem is related to the fundamental inability of reason to provide its own reason for being.) The idea ties the school shooter or post office shooter or serial killer to the somewhat more conventionally unconventional political radical and also to the religious zealot. It is the idea of the truth whose recitation, or whose expression through counter-enactment, the liberal-democratic society finds intolerable, torturous, since that society is built on a rationale that, if universally accepted and consequentially applied, would, or so it is believed, tend to eradicate torture-terror in whatever identifiable phenomenal forms.

        At some point that project might look like a hopeless attempt to eliminate evil itself, but that is a question at the extremes and the limits, where the terrorists, zealots, psychopaths, and evil philosophers dwell. In the meantime, the moderate proponents of the good society live in seemingly well-justified, easily intimated and excited fear that disbelief in their necessary fiction will impede or even destroy their or our absolutely all-important project and the only way of life we can approve. For the same reason a truly impartial judgment of these matters might appear as nihilistic as the acts and outlooks it assesses. Extreme impartiality can also be a kind of terrorism from the perspective of the good society, even from the perspective of most of those who consider themselves its honest critics.

        • Wonderful comment (to CK MacLeod @62 is indexing has indeed broken down).

          On the way we’ll resort to torture if our enemies do, Jacksonian Americans who do most of our fighting seem to go by the rule that if the enemy acts like a gentleman, so will we, but if not, we’re happy to show that we’re experts at the most vicious aspects of human behavior, as if a civilized form of war is something we grant to enemies who’ve earned it.

          All also add another note to my comments on Quarles, that some fear invoking the exception is going to be the camel’s nose under the tent. Heck, the ruling itself has the entire camel lounging inside on top of the beer cooler. If the original case had been as dire as the current situation then it would make sense to worry that one day something as simple as ditching a gun in a grocery store after a failed holdup would invoke the exception, but that was the case were the exception started.

          • George – this is a good point that the kind of situation in the present (well, recent) case in Boston seems clearly to better justify the creation/application of a “public safety exception” to the Miranda requirement than did the actual facts of Quarles.

    • If the definition of terrorism is “the clear objective of intimidating a community through acts of violence,” are all hate crimes a subset of terrorism?

      • Under that definition I think they could lock up the Chicago Blackhawks in the NHL and perhaps the San Diego Chargers in football, plus of course almost every football fan in Oakland.

    • We consider terrorism different than a spree-killing. (Like a school shooting, or a theater shooting).

      Obviously, both engender terror. In fact, I’ve got no qualms stating a spree killer is quite happy to cause terror.

      A spree-killer is really trying to maximize casualities. If he uses a bomb instead of a gun, does that change it to terrorism? If he wants to spree-kill more than once — uses a bomb then uses another one — is he still a spree killer?

      The definition of terrorism has become awfully watered down over the last decade.

      I tend to view “terrorists” as those who weapon is terror — they have a goal unrelated to killing or casualities, and see such deaths and the fear they instill as a means of reaching that goal.

      Spree killers just want to kill people. As many as possible. They have no real goal other than inflicting casualities.

      So was this guy a terrorist or a spree killer? Hard to say at this point.

      But I think most people aren’t really going to care whether he’s a spree killer, or a terrorist, or a psychopathic spree killer who admired the way terrorists really got the kill count high, or some weird mixture of both. They’re gonna see “bombs in public places TERRORISM” and end the story.

      More’s the pity. Motivations are important, at least to me.

      (Offhand, I lean towards spree killing entirely because the connections to idealogies that support terrorism has, so far, seemed quite shallow. The equivilant of wearing a John 3:16 T-shirt, so to speak. I’d imagine the FBI got ahold ofhis computers and everything else, so I suppose we’ll eventually find out what he was planning and why. So perhaps I’m merely leaning towards spree due to lack of data.)

  11. I think that a lot of it has to do with the amount of certainty we have that these guys are the guys. If they were just a couple of Chechens who freaked out and ran away from the cops? Hey, it’s tough being a guy with a funny accent anywhere in America. When the cops show up, it’s easy to want to freak out and run away. Easy enough to understand if someone from a different culture actually ups and does it… well, easy enough to say “well, there’s a reasonable doubt here.”

    If you run away while shooting, that makes any reasonable doubt a lot more strained… and when you throw explosives when the reason the cops wanted to talk to you involves explosives? There’s no more doubt.

    So now we have to have a conversation about the importance of following the process vs. the importance of making sure we reach the right outcome and what it says about the process if the process itself gets in the way of reaching the right outcome.

    • There’s no issue there. It won’t require any statements from Tsarneav to get a conviction.

      What we want to know from him are things like “Are there any more bombs?” “Who taught you and your brother to make bombs?” “Do you know anyone else making bombs?” We can’t get at them the usual way, since no one is making any deals with him. Thus the heavy pre-Miranda interrogation.

      • I don’t know what we could ask before we read him those sentences from off of a card that we couldn’t ask him afterwards.

        If he were yelling “I want to talk to a lawyer!” at the top of his lungs, can the cops *REALLY* say “you haven’t been mirandized” and have that change anything?

        • This is the part that confuses me, Mirandizing doesn’t confer any rights, it’s procedural.

          I assume what this is all about is that they’re questioning him and refusing him access to counsel until such time as the authorities see fit.

        • No. But I see no reason to assume that he has asked for a lawyer. If everybody asked for a lawyer without prompting, there’d be no need for Miranda warnings in the first place.

          • Well, a 19-year-old immigrant might just be the exact type of person for whom Miranda was intended. He’s young, has probably had zero interactions with the police, and might not have grown up consuming media that demonstrates it.

        • No. But without the explicit warning

          1. He’s less like to demand a lawyer and clam up, and
          2. The cops could more likely get away with “Yes, your lawyer’s on the way, but there are one or two points we’d like to clear up before he gets here.”

          Which is fine with me.

          • So you’re a liberal, but not an ACLU liberal? Sincere question.

          • I’m not that familiar with the ACLU’s stance here. But in this case, where self-incrimination is completely moot, I have no trouble with relevant questions being asked. Though if he asks for counsel, he should get it, and of course “enhanced interrogation” is unacceptable.

          • The ACLU’s position is here.

            As to self-incrimination being completely moot, I’m very uncomfortable believing that the media informs us sufficiently well to know when it’s okay to do away with constitutional niceties.

          • By “moot”, I mean that even if every word he says is excluded on 5th Amendment grounds, there’s still more than enough evidence to convict him.

          • And we know that because we saw the evidence….where? If it’s all so self-evident, and if the 5th Amendment is so irrelevant, perhaps we can just agree to the superfluity of the 6th as well, and forego the expense of a trial.

            In all truth, I prefer my liberals to be of the ACLU variety.

          • And we know that because we saw the evidence….where?

            Throwing the same sort of pressure-cooker bomb during a shootout with the police is pretty suggestive, as are the explosives found at his house.

          • And you know it was the same type of bomb because who told you?

            Seriously, with enough media reporting we can just get rid of that time-consuming trial by jury business, right? The Court of Public Opinion is now in session.

          • OK, I admit it. All that talk about trying him with his statements excluded was just a cover; I really want to send him straight to Guantanamo so John Yoo can personally waterboard him while he’s forced to watch the entire run of Sarah Palin’s Alaska.

      • It’s not about evidence as much as about the issues regarding the whole “rights” thing in the first place. We condemn, loudly, the thought that the guy be treated as an “enemy combatant”… but there are a non-zero number of reasons to treat him as one. If we decide that we’re not going to go the “enemy combatant” route, but the criminal law route, why *NOT* mirandize the bleeding guy before you take him somewhere and start screaming at him?

        It’s like we’re trying to have it both ways. The upsides from treating this like it was just a criminal act. The upsides from treating this like it was a lot more than just a criminal act.

        And no downsides at all. Yet.

  12. It seems to me that the shut down was largely a media exaggeration as other’s have pointed out. I think shutting down public transportation for a day was necessary and proper because of the way public transportation works in the Boston-Metro Area. It would have been very easy for Tsarnev to make it to the wilds of Vermont or New Hampshire on public transportation. Or escape somewhere else. The New York City subway will take you as far as New York and the commuter rail lines would largely trap someone in the suburbs. Boston’s network is a bit different.

    The Miranda thing does bug me though. I think he is a terrorist* but I think that we show victory over terrorism by using the normal channels of American justice and the legal system.

    *I don’t care whether he had a political motive or not. Denonating two bombs in a crowd at a public event is an act of terrorism. The purpose besides causing damage was to spread fear.

    • ND,

      Words need to mean something. Terrorism isn’t too precisely defined, but if we use it too loosely we lose the ability to distinguish between young men who reacted violently for personal reasons and those who are intending repeat targeting for political purposes. For punishment of perpetrators the difference shouldn’t matter, just the harm caused. But for political purposes–broadly speaking–it makes a difference in how the public and our government respond–that is, it tends to make us over-respond, and become yet more willing to toss th Bill of Rights out the window. And the media over-reaction you mention stemmed from their instant assumption of terrorism. So for all love, please, let’s not conflate all bad acts so that we lose the ability to distinguish among them and shape our reactions appropriately.

      • I see the distinction–just like I don’t like politicians’ rhetoric of “war” (war on drugs, war on poverty, war on terror)–but I do think setting bombs in a public place meets a common-sense definition of “terrorism.” Maybe that “common sense” is largely a post 9/11 creation, although I’d be interested to know if early 20th century anarchist bombings were similarly described as “terrorism.” And whatever the pedigree of the common-sense definition, I agree terror(ism) as a term can be and has too often been misused.

        • I’d think that the anarchist bombings would meet that definition if we associate terrorism as the instillation of terror or murder of civilians to meet a political goal. Anarchism, or “bringing down the system” would qualify, I think.

          In this case, we don’t know what the endgame is. To be honest, I’m content calling it terrorism until given a reason not to. The main indication we have at this point is their methodology, which is something I consider more common to terrorism than spree killing as I conceptualize it. But there are a number of things that could come to light that would make me change my position on this.

          • Will,

            Given that calling it terrorism allows a host of actions that are negative for the suspects and which further empower the government, shouldn’t the burden of proof be calling it such only when we have a reason to, rather than the inverse?

          • Kazzy, from a what-do-we-charge-them-with standpoint, I agree. He should be treated like a criminal until or unless it can be demonstrated that he is a terrorist.

            But from a what-do-we-call-this standpoint, I don’t have a problem with “terrorism.”

            Addendum: To clarify, even terrorists – when they’re US citizens, at least – should be treated as criminals. But until terrorism can be demonstrated, I don’t think they should be charged with anything above and beyond the specific crimes they committed.

          • If so many people didn’t let labels do their thinking for them, and mistakenly believe that calling someone a “terrorist” means they aren’t entitled to the procedural requirements of regular criminal justice system, then I would have les of a problem with the use of this word in this context.

            But I still don’t have the slightest clue what the Tsnarnaev brothers were trying to accomplish.

          • Well, what’s the point of calling him *anything* if it doesn’t mean anything practically? If we’re going to treat him like a regular criminal, calling him a terrorist seems needless.

          • As a matter of identification. At this point, I am actually less interested in whether or not the two were terrorists than whether the acts they committed were terrorism. If so, it goes into something of a different category, in my mind, than if they were just psychologically imbalanced.

            Like I said in my addendum, I don’t really think that terrorists should get different treatment even when they are bona fide terrorists, if they are American citizens at any rate and not in our military. There may be ramifications as to how we prepare for future acts like this. Or maybe not. That’s for the experts to decide.

            But what is this? I think of it as terrorism, at the moment.

          • First, let me say that I don’t care so much what you, Will Truman, calls them, because I trust you to make sound and reasoned decisions about them independent of terms.

            But I do worry about how the narrative about and around them is crafted. Because that can and will have profound impacts… And not just on them. Given all that comes with that label, I think folks in positions of power, by which I mean the government and the media, should avoid the term unless a strong argument can be made for its usage. I haven’t seen that argument made yet.

          • I’d like to put in a vote against this consciously ends- and agent-based advocacy around language usage. “Don’t say it’s X because that increases the likelihood that Y,” I’m not big on that. “You can call it that but I don’t want them to.” Nah. It is or it isn’t – or it’s a border case or not clear, or there isn’t enough info (yet). Whatever it is, I want people to do their best to try to understand the definitions of terms and apply them honestly and earnestly – and that includes government officials. If they aren’t sure but are going to treat it like terrorism, that’s what I’d like them to say – that way we can judge them for taking that step of action, rather than have some ends-based agenda for how they use the language. We should at least say we want them to use the language as honestly as they can, however forlorn that hope is in reality. We know they’re not going to conform to our agenda anyway, so why let them make us freight our use of language with an ends-based agenda in order to combat their Orwellianism? Let’s combat Orwellianism with an attempt at earnestness and transparency in usage.

          • MD,

            Allow me to clarify.

            If something is terrorism, we should call it such. If we don’t like some of the consequences that come with calling it terrorism, we should change those consequences, not the language we use.

            But if we are not sure if something is terrorism AND calling it terrorism carries with it certain consequences, consequences the alleged would not be expected to face if they weren’t guilty of terrorism, than we should avoid calling it as such until we know for sure, lest we risk subjecting them to the consequences due to terrorists when they are not, in fact, terrorists.

            Terrorism does, or should, mean something very specific. But the way in which we seem to use that word nowadays, both colloquially and officially, indicates otherwise.

      • We don’t know yet if it was terrorism, or, if it was, who else was involved. Those are the important questions to answer that go beyond imminent danger.

  13. Thank you, Burt. I’ve been irritated from the start by the immediate assumption that this was a terrorist act and have spent much of the week grousing about that. I’m glad to not be alone. Also count me in agreement with your constitutional concerns.

    • I tend to agree with you. My gut feeling has been more spree-killer. I’m sure as their lives get dug into and the FBI wanders through their computers and homes and whatnot, that might change as we get some information on what they were thinking.

      If they were terrorists, though, it appears they were a terrorist team of 2. (Which really sounds pretty classic psychopath + manipulatiable minion).

  14. Random note: I am nearly not getting how a Satyr/Pan goes with the content of this post.

    • The word “panic” comes from Pan. Satyrs were originally associated with all kinds of irrationality, including fear, even if now they’re perhaps more associated with drunkenness and lust. Pan’s pipes were mythologically thought to produce a mindless fear in those who heard them, hence “panic” comes from Greek “πανικός” (panikos) meaning “pertaining to Pan” by way of French “panique”.

      • And between radio, TV, and internet, there was satyration coverage.

      • Oddly enough, that’s my reaction to commercials for “Zamfir, Master of the Pan Flute” and to almost any album advertised on late-night TV.

        Strange fact: If you spin a Windows Vista CD backwards it plays satanic chants. If you spin it forwards it installs Vista.

      • As much as I thought I knew my Greek mythology, I did not know this.


      • Fnord is absolutely correct regarding my choice of illustration and I thank him for the etymology. My principal concern with the response to the Boston bombing has been the pervasive influence of panic. Pan playing his pipes is the classical allegorical symbol and personification of panic.

        • Oh Panny boy,
          The pipes, the pipes are calling

          Daniel Pipes, that is.

  15. Speaking as someone who lives in Boston and whose friends and neighbors suffered in the Marathon bombing, I think the author of this post has his head up his ass. I will also say that comments about how citizens were not allowed to walk the street are quite simply masturbatory tripe. You could walk down the street, you could even choose the direction – and if many people chose to stay indoors rather than getting in the way of a manhunt for a pair of suspects armed with bombs and guns, that was a perfectly sane reaction. It’s very hard to respect internet tough guys who don’t live here and who choose to yap on about appropriate reactions. Our government did a stellar job and should be congratulated for it, rather having to listen to whining malcontents blinded by their own ideology.

  16. As I’ve thought more about it, I think the designation of “terrorism” is very similar to “hate crime” designations… in most situations, they simply make something that is already illegal illegal in a new way. I do think there exist legitimate acts that qualify as either terrorism or hate crimes, wherein there is a clear and explicit intent to cause widespread harm beyond the specific targets of the initial crimes, but most acts that get labeled as such fail in this regard.

    And, as is so often the case, each side has their preferred term for throwing around loosely.

    • I don’t know if I agree with this.

      There are people who commit horrible crimes because they suffer from mental illness, delusions, are sociopathic, and/or psychopathic.

      Then there are people who commit the same crimes for very specific ideological reasons against a perceived enemy. The purpose of these attacks is either to cause the civilian population to live in fear and use that as a leveraging tool against the enemy government or as an attack in a war that can not be won by either side.

      I don’t have a problem with labeling the above terrorism. I also don’t have a problem with labeling a crime as a hate crime if it done only or primarily for prejudicial reasons. If X commits arson against Y because Y is Gay, Black, Jewish, Asian, Latino, Buddhist, Hindu, Muslim, etc and that aspect of Y’s identity is a primary or sole motive for the arson, or any other crime, it is a hate crime.

      • ND,

        I’d agree that crimes such as those you describe in P2 are terrorism.

        But simpy having hate in your heart, to me, doesn’t matter. Murder is murder…are we going to charge someone with super murder because they are hate-filled? An example of something I’d consider an HC would be hanging a black guy from a tree at a town line and declaring, “Any blacks who cross this line get the same!” There are obvious victims to that action beyond the dead man. So the crime is different.

        I’m. It arguing that terrorism and HCs don’t exist, only that I think most designations as such aren’t particularly helpful.

        • We also don’t know these guys’ metal state.

          What do we do if they deluded themselves into thinking they were high ranking officers of AQ but turned out to be nothing more than Internet fanatics who had no real contact with anyone else?

          • We also don’t know these guys’ metal state.

            Fans of Megadeath, obviously.

          • Heh, I caught that typo and considered fixing it but realized it provided too much fodder. I pegged Schilling to jump on it but well played, Hanley.

  17. As I understand it, questioning someone without reading him his Miranda rights is not inherently unconsitutional. It just makes statements made under these conditions inadmissible. Which is fine if you’re looking for information you need for some reason other than conviction of the suspect. Since the suspect isn’t incriminating himself, there’s no constitutional issue. Is that not right?

    • By the way, if the suspect is aware of evidence against him that the police are likely to discover without his help, can he, prior to being read his rights, tell the police how to find that evidence, thus tainting it and making it inadmissible?

        • I was thinking of the fruit of the poisonous tree doctrine, but it turns out that that applies only to illegal searches, not to pre-Miranda interrogation. And also that there are indeed exceptions for cases where the evidence would inevitably have been discovered anyway, or is discovered as a result of non-tainted information.

        • Well, keep in mind that even if the prosecutors somehow completely screw the pooch, which is unlikely, I’m sure John Kerry could find a way to have suspect number two extradited to China to face charges for the murder of Lingzi Lu, a Chinese national, and they would no doubt be delighted to try to the case. If I was an investigator interviewing the suspect, I might even use that possibility as leverage.

    • I’m not sure, but I recommend the very enjoyable and enlightening Youtube video Never Talk to the Police, a law school lecture, which is followed by part 2 by a police investigator from Virginia Beach who starts out by saying, “Everything he said was true, and it was right and it was correct.”

  18. Let me put a question given that the guy grew up in the US and presumably watched television, how could he not know his Miranda rights? How many times are they recited on various television shows? (Also I would assume they are covered in High School Civics and History Classes). So one must assume he knew of them before the event. If one knows of them them and chooses to remain silent, unless torture is used what can be done to make someone talk? Clearly the shoe bomber might not have known of the rights although US tv shows have gone world wide. So short of coercive techniques, its not clear what difference it makes if he chooses to say nothing. Also failing to respond to a request for a lawyer might also get a higher sanction later in the court.

    • We can’t assume that any particular arrestee does actually know his Miranda rights despite their pervasive (and sometimes incorrect) illustration in popular culture, and we certainly can’t assume that under the pressure of apprehension, arrest, and interrogation that even an intelligent and educated arrestee (say, a lawyer) will think to properly invoke them without the reminder.

      • Since he was a naturalized citizen in addition he had to study in more detail than a native born American. One must assume that naturalization class definitely covers the issue of rights. Now in this case this has become a non issue since he is intibated and sedated right now. (They have not said if he in conscious). So as the median have admitted he is not capable of being interviewed right now. I understand they have 72 hours to charge him, and the magistrate would also inform him of his rights.

  19. Burt,

    A bit of an odd legal question…

    Imagine the brothers reached out to some guy down the street, an American citizen, and said, “How can we make a bomb?” And that guy, verbally, tells them what to do.

    I assume, if found out, that guy would be arrested.

    If so, how is that not a violation of the 1st Amendment’s protection of free speech? If all he did was give verbal instructions on bomb making.

    • An element of the crime of conspiracy to commit homicide, or aiding and abetting homicide, would be the degree to which the instructor knew or should have known that the brothers would use the information to a malicious purpose such as committing homicide. So the instructor would certainly be a person of interest, but without more facts, I don’t see criminal culpability on his part.

      Many public libraries have a book called The Anarchist’s Cookbook on their shelves and that book contains (among other things) accurate instructions for how to make a pipe bomb. It’s not for a librarian to refuse to check that book out to any one person because he thinks that the patron will use the book for a malign purpose. The patron may have other reasons that she’s interested in the book.

      • Would a public library be violating the first amendment if it refused to carry “Anarchists’ Cookbook” on the reason that it might be used for violent purposes?

        • I don’t see how. Doesn’t a library have discretion over which books it purchases?

          • It’s a weird dynamic. There is limited shelf space and so any given library culls any number of books in any given year (or sells them in the “Friend Of The Library” alcove off to the side, next to the books they sell that were donated to them).

            But let’s say that a community says “We don’t want you to carry that Madonna ‘Sex’ book!” and has a protest. The library, of course!, says that it won’t bow to censorship and buys a copy of it for their special collection. Another library in another part of the country just doesn’t buy it in the first place because, dude, she’s making out with Vanilla Ice and that’s money that could be used to pay for a book that doesn’t have Madonna making out with Vanilla Ice in it.

            There’s limited shelf space, after all.

            Seems weird to have the protest be the driver of whether a library buys a book, no?

          • And what if a public library has no books by black authors? Is that illegal discrimination, or just something the head librarian should be fired for? What if the majority of the community approves, so the librarian is secure in his job: is there any appropriate legal remedy?

          • Mike,

            I don’t know what the remedy would or should be. My question was–I think–based on a matter of policy, whether a the first amendment prohibits a library from viewpoint-based discrimination (as opposed to storage-space-based or funds-based discrimination) in its selection of books.

            I imagine that an actual policy (good luck proving it) of not including black authors might run afoul of something, if not the first amendment, then maybe the 14th? If it does, I don’t know what the remedy would be.

            Maybe I’m wrong, though. I’m not about to endorse compelling libraries to carry books on how to make bombs. And librarians strike me at least a little less likely than other state actors to endorse racist book selection policies. I’m not saying it’ll never happen, just that I’m more concerned about voter i.d. laws and attempts to overturn the VRA.

          • How many copies of books that never/rarely get checked out should libraries be required to keep on their shelves? If nobody ever checks out Don Quixote, I can understand saying “well, the library should have *ONE* copy… don’t want to be a crap library without Don Quixote, after all”.

            If people come into the library and check out Danielle Steele by the wheelbarrow, but the “classics” are only good for dusting and otherwise sitting on the shelf to make the librarians feel better about working in a building where everybody who comes to visit does so only because they want more Danielle Steele books… what responsibility does the library have to keep multiple translations of, like, THE FIRST MODERN NOVEL on the shelves?

            As I said, it’s a weird dynamic.

            And, yes, Pierre. The Sex book had a section devoted to Madonna making out with Vanilla Ice.

            (You know, the Sex book was probably checked out a *LOT* for a couple of years there but, at this point, the scandals have faded, the pictures aren’t *THAT* interesting apart from the fact that they include bodyparts, and the book has historical value primarily because it used to be scandalous (for reasons including the fact that it included pictures of bodyparts). So it’d make sense to have a library have a copy of the book in 1993. Less so in 2013. Certainly not *TWO* copies.)

      • Burt,
        Even if he knew, what law does he break isn’t a de facto restriction on speech?

        • The one about being an accessory before the fact to a crime.

          “Yeah, I used to work at that jewelry store before the rat bastards fired me. The night guard shifts change at 1:30 AM, and they send the dirty uniforms out to Lee’s Dry Cleaners. There’s only one alarm circuit and it’s a five-year-old model that allows a three second interruption, so there’s plenty of time to bridge it. Take the SOBs for all you can.” is not protected speech.

          • Why not?

            “Congress shall make no law abridging the freedom of speech.”
            Emphasis mine… Though it should be everyone’s.

          • Argh. Only “no” was supposed to be bolded… Little help?

          • Kazzy,

            I’m pretty absolutist when it comes to free speech rights, but I still think there are some limits to them. I endorse–within reason and with exceptions for public officials, etc–civil libel and slander laws. I also endorse laws–maybe even criminal laws in some cases–that would punish people for fraudulent speech. I would endorse prosecuting someone in the example at issue, provided that the elements Burt offers are present. I would also endorse incidental restrictions on speech, such as the famous (if hypothetical) prohibition against falsely shouting fire in a crowded theater.

            Even if your absolutism exceeds mine, I would still imagine that there’s a limiting element somewhere.

            Now as for Mike’s example, I’d still need to know more of the context–although his phrasing provides a lot of context already. That context would have to indicate that the speaker knew, was encouraging, and helping explain how his or her interlocutor would do the deed.

          • PC,

            First, let me say that I’m not necessarily making assertive arguments here, but rather am asking questions, the sorts of questions I think need to be asked if we’re looking at making such behavior illegal. Perhaps it should be illegal, but when laws start to run up against the 1st Amendment, I think the argument for such laws needs to be much, much stronger than we often get.

            To this specific set of circumstances, if we are drawing a line between simply stating knowledge and information about bomb making and aiding and abetting ongoing criminal actions, enforcement of criminal sanctions against the latter seems predicated on what the alleged knew and when he knew it. Which takes us down a tricky path of criminalizing knowledge or, more specifically, criminalizing knowledge in conjunction with speech. Which is tricky… not impossible… but tricky. So I think there are some hoops the government ought have to jump through before doing so.

            Going a bit further, if we’re going to make the argument that offering advice about indulging in illegal behavior to someone you know is likely to or actively involved in criminal behavior, I’d want to know about the scope of such laws. How many tax advisors offer “advice” on how clients can dodge certain taxes? I’m not talking about taking advantage of legal loopholes, but actively engage in tax evasion. Are those tax advisors acting criminally? Etc.

            So, while I’m being a bit of a devil’s advocate here, I think these are questions that need to be answered, by the government, before we just accept that someone who says, “Here is how to make a bomb,” is a criminal, no matter how heinous the ultimate outcome of that speech might be.

          • Why not?

            Why is saying “Kill him and I’ll forgive your debt.” a crime? It’s just speech, after all. If you’re going to say that it’s paying someone to commit a crime, then

            1. Money is speech. Just ask the Supreme Court.
            2. Suppose that I was lying and I don’t forgive the debt. Now all I’ve done is break an oral contract, and an illegal, unenforceable one. No money changed hands; I just said a few words, as is my right.

          • Kazzy,

            I guess we really don’t disagree, then. On the following, I have an anecdote:

            How many tax advisors offer “advice” on how clients can dodge certain taxes? I’m not talking about taking advantage of legal loopholes, but actively engage in tax evasion. Are those tax advisors acting criminally? Etc.

            When I was a bank teller, we were supposedly held personally (and criminally) liable if we advised a customer on how to avoid automatic scrutiny for making large cash deposits. At the time, someone making a cash deposit of more than $10,000 had to fill out a report to the IRS (I don’t know if that’s still the rules). And telling a customer they could avoid having to fill out a report by, say, depositing $7,000 one day and $4,000 the next was supposedly giving criminal advice on how to “structure” illegal deposits.

            I don’t know how often or whether this law was ever enforced against tellers. I also don’t know how much this was so much the law and how much it was just bank risk-management policy on how it trained tellers. Of course, in my example, and in your tax advisor example, the people subject to such laws observe an occupation that might make them specially liable for the “advice” they give, in a way they might not if they were ordinary people. (But just in case, I’ll assert that I am not giving advice on how to structure cash deposits:) So don’t do it!)

        • Plenty of laws are de facto restrictions on speech but we seem to like those laws anyway and have little difficulty conforming them to our notions of the First Amendment.

          Hypothetically, let’s say I use a racial slur while firing my employee. The racial slur is speech and in other contexts it would be protected — but it’s also evidence of my racially discriminatory motive for firing her. So when I get sued either by my employee or by the EEOC, am I being punished for my use of the racial slur? Should I be? So we like antidiscrimination law, don’t see a problem with prohibiting race discrimination in employment, but speech gets necessarily implicated.

          There are many theoretical ways out of this pickle, but what you can’t get around is that speech is part of life and therefore something that will be at issue in all sorts of legal disputes, including those in the criminal justice system.

          I don’t know if that’s a helpful response to your question.

          • Well, all your responses are helpful, first off.

            But I’m not sure that is exactly the same. The racial epithet itself isn’t illegal; it would simply be used as evidence in a claim of racial discrimination. My guess (though please correct me if I’m wrong) is that if you could document that the firing was for cause, and here is the paper trail documenting such, and the epithet was wrong but not a factor in the decision to fire, the law might find on your side. But, I dunno…

            I’m not opposed to all restrictions on speech, though my knee jerk reaction is to be. I just think that if we are going to impose some, the government has a high burden to demonstrate that such is appropriate. And perhaps they’ve done so in this case… I’m just asking the question… and being a bit of a nudge.

          • “My guess (though please correct me if I’m wrong) is that if you could document that the firing was for cause, and here is the paper trail documenting such, and the epithet was wrong but not a factor in the decision to fire, the law might find on your side. ”

            I don’t know if you’re wrong or not, but I imagine that an employer wouldn’t want to be in the situation where he/she has to document that, despite his or her racial slur, the employee was fired for cause. In other words (and I’m not a lawyer, etc), I imagine the fact of uttering that slur is often presumptive evidence of discrimination.

      • Heck, one library in New Mexico had a book on the shelves that explained how to make an atomic bomb. Not just the usual stuff about how make explosive lenses (which is easy) pits, and explosively activated neutron sources, but apparently all the details. Apparently it got mixed up with some donations from one of the labs or something. When it was eventually discovered, they yanked it. I think that would be one of the few volumes where you would end up with a yard full of federal agents and military intelligence people busting down your door to recover an overdue library book. ^_^

        • Making an explosive lens is easy. Making a set of explosive lenses that are all shaped so you get a perfect implosion is very hard.

        • The people who did the Manhattan Project should’ve just read that book instead of spending all that time developing their own a-bomb. Just think of how much money they could’ve saved!

  20. More than the D.C.snipers, I am reminded in this instance of the Centennial Park Olympic Bombing, Richard Jewell, and the actual bomber, Eric Rudolph–not discovered till a year and three bombings later. The concern for public safety and other terrorizing happenings occurring at the Olympics and its many venues, AND the shameful treatment of Richard Jewell bring to the fore the various cautions and precautions that law enforcement and government prosecution should heed. Some information seems much more clear in the Boston bombing— but ignoring our Constitutional protections and letting emotional responses reign only leads to error. Did anyone see the Central Park 5 documentary?

    Exigencies aside ( and emotional reaction does tend towards “inventing” and perceiving supposed exigencies in any instance ) we triumph over lawless terrorism and chaos by exhibiting the exact opposite behavior. Lawful, reasoned, fair, just response.

  21. I know Boston voluntarily shut itself down (no one was ordered to stay home, the police merely suggested it), but the fact that it happened has consequences, & not just economic ones. Americans have become the butt of a huge statistical joke, being largely unable to assess risk – unable to differentiate between that which will likely kill you; & that which will NOTlikely kill you, but will make the news in a rather spectacular fashion.

    • I see a qualitative difference between the self-shutdown described here(and elsewhere) and a police-induced shutdown as had been described by a breathless national media. But as MRS describes, the voluntary action isn’t particularly appealing although for different reasons than the putative official one.

    • Since far more people die in car accidents than terrorist attacks, clearly the manhunt should have been called off and all personnel reassigned to traffic duty.

      • Hardly, but having more eyes on the street would be far more effective than telling everyone to stay home, then having the police go door to door.

        As was noted elsewhere, the bomber was found by a citizen after people left their homes & went about their daily business.

        • Hardly, but having more eyes on the street would be far more effective than telling everyone to stay home, then having the police go door to door.

          Yeah, it’s not like 10,000 reports of random dark-skinned people would have been a distraction.

          • They had clear photos out by then.

            But are you seriously OK with locking down a whole metro area, even voluntarily, and having the police do door to door raids looking for a guy who was wounded & on the run?

            The whole “Police State” aspect of that is not troubling to you at all?

          • Since it wasn’t the whole metro area, and it was a request, not an lockdown, and even wounded he was still armed and dangerous, no, it doesn’t seem police-statish to me.

          • MRS,
            if they’re cataloguing every instance of malfeasance found in houses? yeah, that’s badform. If they’re breaking down doors, also bad form.

            Police told New Orleans to stay inside and not evacuate, didn’t they, during a hurricane or two?

          • Kimmi

            First off, police searching door to door, loaded for bear, is not in any sense of the word, safe. I don’t care if they were or were not cataloging things for future investigation – the point is they were armed, guns in hand. Is gun, is dangerous – and when it is not safely tucked in a holster, or gun safe, or slung on the back with the safety engaged, but is instead in the hands of an officer running on more adrenaline & anxiety than is normal, the possibility of of a negligent discharge goes from effectively non-zero to a disturbingly high value (see news: police accidentally shoot during raid & wound/kill innocent person).

            So no, absent a known, or very large probability of a, threat inside a home, the police should not have their guns at the ready. Ever. If they have a problem with that, well, no one made them wear the badge.


            Police pursue armed & dangerous suspects all the time, all across the world, & I can not think of another instance where the populace was asked to shelter in place (absent a major natural disaster). Be alert, be aware, sure! But hide?

            I’m not sure what saddens me more, that a populace was so terrified of a dumb kid with a gun who happened to find a spectacular way to get attention, or that the police are so incompetent that they can not find an secure said dumb kid without a battalions worth of military hardware & personnel, and a populace willing to be cowed into hiding & violent searches.

          • MRS: I can not think of another instance where the populace was asked to shelter in place

            I think is ignoring the fact that the Tsarnaev’s had been spotted with multiple IEDs and there was reasonable suspicion that they would be planting those IEDs in the area. My guess was that the house-to-house walkthrough was as much about making sure no stray bombs were around and that people could feel relatively safe navigating the area.

          • trizzlor:

            Not really making your point with me. Dorner had guns & bullets, as did the D.C. snipers, yet L.A. & D.C. kept right on working. The IEDs these kids employed weren’t doctored mortar or artillery shells capable of taking out a up-armored humvee, they were little more than well placed science experiments (I made bombs like that when I was a kid, lost of smoke & fire & a small debris field – I just did it out in the middle of nowhere, instead of dropping it in a garbage can in the middle of a crowd).

            As for the door to door – if they were worried about IEDs in the homes, then you politely ask the people to leave, then send in the bomb squad, not an assault team. No, those were cops looking for the kid. I sincerely hope that in the final analysis, the police had a real strong probable cause to storm houses like that, because if they just decided to go door-to-door in the hopes that they’d get lucky, then they are supremely lucky no innocent bystanders were hurt.

          • MRS,
            Your point sir. And a good point it is.
            We might well ask why they didn’t just use IR, if they were simply looking to catch a bad guy (they clearly had it around). You know, call up the house, say “gather family in one room”, and then scan house.

  22. He’s been Mirandized now, and has counsel, and since the reports are that he’s still unable to talk because of a throat wound, couldn’t have been interrogated.

      • And pantomime.

        “Quiet? Sleepy? Calm? OK, calm. Sounds like…, no, rhymes with calm. Umm, Mom? “

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