Before leaping to the conclusion that lawmen in Boston worked a miracle last week by locking the city down as they searched for Dzhokhar Tsarnaev, consider the following: It was only after folks were told they could leave their homes that a private citizen spotted a trail of blood that led to the young man’s hiding place and capture.
This is important because Boston will now stand as a textbook case of what municipal police officers should do in an emergency. Close down businesses. Order people to stay in their homes. Keep folks off the streets. Search homes one by one at gunpoint.
“It was really creepy,” a reporter who was in Watertown, Mass., during the search and lockdown told me. “It felt like the police wanted to do this to test their emergency response drills. It made me very uneasy. I called you to talk about it because I figured anyone else would accuse me of supporting terrorists.”
Wow, I thought. Criminal defense lawyers rarely play priest to the press.
Although composed in words that do not change, the United States Constitution is written in broad terms. The Constitution’s meaning changes depending on how we define its words. This is particularly clear in the area of our freedom to remain free from unreasonable searches and seizures.
The text of the Fourth Amendment is concise: “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.”
But don’t confuse concision with clarity. What, for example, is an “unreasonable” search and seizure? That’s where Supreme Court rulings end up being the real law of the land. It has the final say on what the Constitution’s words mean.
Our current Supreme Court regards an unreasonable search as one transgressing boundaries we are collectively prepared to honor. If that sounds ambiguous, that’s because it is. The court, not a public opinion poll or a referendum, determines the content of our collective expectations. In doing so, the court relies upon all sorts of things, including many things not found in the Constitution at all.
Some of you are no doubt troubled by all this. I thought the Constitution was the fundamental law of the land, you might say. Ponder this question long enough and you will come to understand the furious politics surrounding the appointment of judges. It’s not enough to promise simply to follow the law. Judges make law.
That’s what makes the Boston bombing case so potentially frightening. What if the court concludes when a terrorist is on the loose, all bets are off? Didn’t the good people of Boston submit willingly to what amounted to martial law? Why isn’t their reaction in their time of extraordinary crisis illustrative of what the American people are prepared to accept as reasonable in the war on terror?
Not so fast.
The federal government has charged Mr. Tsarnaev with using a weapon of mass destruction, a charge carrying a potential death penalty. His weapon was a homemade bomb — black powder packed in a common pressure cooker crammed full of ball bearings and small nails. Directions for construction of such a device are easily found online. It is not as if he was wandering around Boston with a nuclear weapon attached to his back, or even with a backpack filled with anthrax. He did what anarchists did in this country all too frequently in the late 19th century — he detonated an explosive device in a public place.
And then he and his brother allegedly engaged in a shootout with police. The brothers are said to have hijacked a car, and to have thrown explosive devises from the car. None of this conduct is good; all of it is criminal. But the republic was not in danger of collapse.
Terrorism is violence employed to create an overwhelming sense of fear — terror, in fact. Those employing terror as a tool often have political messages: Give me what I want, or I will terrorize you. It’s a form of bullying. A terrorist wins when he changes behavior by means of causing fear. Are the brothers Tsarnaev really terrorists, or just angry young men? Was Adam Lanza a terrorist, too?
Count U.S. Sens. John McCain, R-Ariz., and Lindsey Graham, R-S.C., among the first casualties of the Boston bombing. Both senators were quick to conclude that Mr. Tsarnaev, a naturalized American citizen, should be treated as an enemy combatant and whisked off to secret detention. They reached this conclusion despite the fact that the Constitution prohibits this from occurring, and in the absence of any evidence the man child was acting as an agent of a foreign power.
Fortunately, the Obama administration elected to do what the law requires: to try Mr. Tsarnaev for his crimes in a civilian court, where the defendant will be accorded the protection of the rule of law.
Why are Senators McCain and Graham on the cusp of granting accused criminals who scare us the power to amend our Constitution? Did they succumb in a moment of panic to the illusion that if only government had sufficient power, we’d all be safe? That sort of thinking didn’t prevent the Berlin Wall from being torn down.
I heard one Bostonian describe her terror upon opening her front door in response to a loud knock. The rifles of lawmen were trained upon her. A YouTube video shows folks ushered from their home and into the streets with hands raised in the air. Was all this really necessary to engage in this manhunt? Before you say yes, realize, should the police declare an emergency — or whatever it was that took place in Boston last week — your town might soon by the site of armed men banging on doors, demanding entry into your home.
Two young men exploded bombs in Boston last week. They shot police officers. They were horrible acts, and, if the surviving brother is convicted, he could well face the death penalty. But the brothers did not hold Boston under siege: Law enforcement did that.
Will “shock and awe” policing become the new standard in a crisis? Will it be deemed reasonable by a high court seemingly inclined to give the police the benefit of the doubt? It will if we pretend it’s all right to do so. I say we ought not respond to terrorism with a fearful abandonment of core principles.
A postscript: Before accusing of me of picking and choosing which constitutional amendments to support, and suggesting my support of the Fourth Amendment is inconsistent with my derision of the right to bear arms, a confession: I support repeal of the Second Amendment, but I will bleed for the Fourth Amendment. That’s not hypocrisy. It’s a choice. The Bill of Rights isn’t a bill of goods sold to us centuries ago — it is a living, breathing set of commitments we must interpret over and over again in light of changing needs and circumstances.