The following is a guest submission from Anthony Gregory, research fellow and student programs director at the Independent Institute and author of The Power of Habeas Corpus in America: From the King’s Prerogative to the War on Terror (Cambridge University Press: 2013).
In “Civil Libertarians Overreact to Boston Lockdown,” Kevin Duewel criticizes my post, “What Is the Threshold for Martial Law?” He was much closer to the lockdown than I. Nevertheless, his response, like others urging libertarians to calm down, misfires.
Duewel’s “initial reaction” was much like mine. He was not fully “comfortable with the Humvees or the Homeland Security tactical vests” or the “9,000 police officers that descended upon the Boston suburbs.” But he reevaluated when he saw locals complying happily. They just wanted to let the police find the terrorist.
This is precisely my concern: that Americans supported a 9,000-cop siege of the city, at a huge economic cost, to find one suspect.
No such lockdown followed the Kennedy assassination, the 1993 WTC bombing, the DC sniper attacks, or the 9/11 attacks. As Robert Higgs explained in Crisis and Leviathan: Critical Episodes in the Growth of American Government, the state expands during crises and afterwards rarely retracts completely. This “ratchet effect” can permanently boost the state’s cost, scope, or size. Most important, the public’s ideological commitments also undergo a ratchet effect. Before the Boston lockdown, Americans maintained a threshold for state power during crises. I fear the threshold has shifted. What if we see five attacks in a row, or another 9/11, or a dirty bomb? What will Americans tolerate? So long as they support the lockdown, we must fear for liberty’s future.
Conservative columnist Ross Douthat notes in the New York Times:
“[T]he problem with flirting with the police state approach, even in a voluntary, only-for-a-day way, is that it makes those “small, manageable” encroachments seem, well, smaller and more manageable, and therefore harder to resist.
After all, once you’ve had snipers in camo on suburban roofs, what’s an extra layer of metal detectors here or there?”
In the end, the lockdown was unnecessary. This shows that the state, not “civil libertarians,” overreacted. Only after the lockdown ended did a Watertown citizen find Dzhokhar Tsarnaev dying in a boat. The police came and reportedly shot the boat full of holes, but failed to kill him. Duewel says, “Bostonians wanted to catch the suspect, and they did so coming out strong.” But they acquiesced in a lockdown that was superfluous at best.
I wrote my blogpost during the lockdown. Its given rationale was to neutralize unfound bombs and capture Tsarnaev, so I feared it would persist past the day. The lockdown ended before the authorities said the threat subsided. They even later cited the ongoing danger as a “public safety” exemption to Tsarnaev’s Miranda rights. I also recalled when Boston’s cops hysterically overreacted to LED advertisements for the Aqua Teen Hunger Force movie in 2007, bringing out emergency vehicles, cruisers, the bomb squad, and helicopters, all to neutralize cartoon aliens. Given the tendency of police overreaction, we should critically watch them during any unusual show of force.
One could quibble with my phrase, “martial law,” which traditionally involves the military supplanting civilian authority. Yet the police themselves have become thoroughly militarized, nationalized, and deputized in the war on terror. They coordinated with the feds and military last week.
When the Framers railed against redcoats, it wasn’t the coat color that mattered. They distrusted the permanent, heavily armed, ubiquitous force occupying the country, frequently violating rights. Even the everyday presence of city police resembles the standing army Jefferson opposed. The police’s heavy-handedness at political rallies and other public events should disturb any classical liberal. When a far bigger police presence arises—including warrantless searches, transit shutdowns, intimidation of journalists, and dragging innocent people out of their homes at gunpoint—anyone who loves liberty should protest.
Yes, Bostonians could still buy beer. Hawaiians also bought groceries under martial law during World War II. Martial law exists on a spectrum. It can entail a mixture of civil and military authority, or executive war powers operating through the police. In the early American republic, state militia functioned as both military and police, and the distinction has frequently been uncomfortably blurry. Whatever we want to call it, the army of thousands of officers with tanks and battle rifles, marching down the street and pulling people from private homes, should alarm us all.
This approach could embolden future attackers, as libertarian Radley Balko pointed out:
So we locked down an entire city, brought in a military force to search for a single man, suspended the Bill of Rights, and now, the city’s largest newspaper calls for more surveillance cameras. If you’re a terrorist who wants to scare an American city into willingly handing over the values that make free societies free, Boston is your template.
Duewel remarks that “[i]f civil libertarians cannot respect police action, they will not only remain electorally irrelevant, they will fail at shifting the debate on civil liberty as well.” But we shouldn’t care about electoral relevance if elected “libertarians” tolerate this atrocious war on terror, national security state, and militarized policing—the principal threat to liberty today. We should, however, want to shift the debate. Adopting a position because it belongs to the majority, whose poor stewardship of liberty has brought us to the current dismal state, does not shift the debate. It surrenders the debate. We don’t pick our free-market principles because they’re popular. We should be no less steadfast in defending civil liberties—especially during crises.
The Boston lockdown should horrify anyone who wants to roll back the state. You cannot credibly advocate limiting government but make exceptions for the police flooding the city, practicing extraordinary powers in the name of security. The fact that most Bostonians are not classical liberals and capitulated to the lockdown simply shows that we have hard work ahead.