I’ve been planning to write a blog entry on education, but the events of the last week have pushed that aside for now. But, even if the bombings and the shootings and yesterday’s regional lockdown have been occupying the national (and even international) media, it is important for us within the HLS community to work through some of the legal implications of these events. At the same time, it is also important to acknowledge that I’m writing this from the perspective of someone who knows people who were at the marathon on Monday, who went to bed on Thursday hearing the sound of explosions and sirens in the distance, and, even if I am not a native of the area, I’ve spent much of the last fifteen years here and consider this as much of a home as anywhere. As interesting as the legal issues are, this also has very personal dimensions, as I’m sure is the case for any other readers at HLS.
I’ve been thinking about a number of interesting angles that these events have brought into focus as our society tries to generate a positive response. I invite any readers of the blog or any members of the CRCL community to add their thoughts, either in comments or in their own posts. One issue, surely, is to cultivate empathy through the recognition that the feelings of fear and anger and sorrow experienced within our community are also experienced around the world on a daily basis. Obviously the harms within our immediate community will resonate more strongly than those far away—but this can prompt reflection about the pains experienced by others, and to think about the connections between domestic and international security.
Surveillance is another issue that will surely need to be addressed in the coming weeks; some will, no doubt, call for more widespread surveillance as a way to more easily and quickly identify people of interest, while others may argue against granting greater surveillance powers to the state. It’s unclear to me what the full implications of either of these positions are. As creeped out by surveillance as I am (and trust me, I’ve spent way too much time reading or watching dystopian sci-fi stories to be anything but creeped out), the people-powered (rather than government-led) response, as seen on Reddit, hardly inspires confidence. The alternative to state surveillance may more closely resemble vigilantism than actual protection of personal liberties. For those of us who are interested in protecting civil liberties in today’s wired and decentralized world, it is probably more valuable to find ways of doing so within the likely scenarios of greater surveillance, rather than just pushing back against surveillance in the first place.
The notion that Tsarnaev should be detained as an enemy combatant has been criticized extensively elsewhere, and I don’t want to lend any additional space to bizarre conservative posturing.
But then there’s the issue of the public safety exception and Miranda. The exception allows for questioning before hearing Miranda rights in the face of a threat to public safety. To the extent that there may be additional explosive devices in the Boston area, this would probably fall within the exception. But, as Emily Bazelon writes, the DOJ has a policy of continuing unwarned questioning beyond the immediate confines of the public safety exception when the FBI and DOJ deem this necessary. And it looks like this policy may be followed in this instance. If the public safety exception is being stretched, this seems problematic. The threat to the public here is, thankfully, resolved. As the legal mechanisms kick in now, our job as individuals concerned with the civil rights protected by the Constitution should be to protect Tsarnaev’s fair trial rights. We don’t know exactly what the motivations of the bombers were, but part of maintaining our resilience in the face of this kind of attack is not deforming our legal system in the name of vengeance. That is no way to honor those who put themselves at risk as first responders and as public safety officials.