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.