What Is the Threshold for Martial Law?

It seems simple enough. Publicly available evidence shows two young men implicated in the horrific massacre in Boston this Monday, the shooting of the officer at MIT, crimes against others, and violent resistance against the police. One brother is dead and the other on the lam. And so the police have locked down Boston, Cambridge, Belmont, and Watertown. There are tanks and heavily armed officers all over the streets. They go door to door, without warrants, searching for the suspect.

The crime of April 15 was unspeakable. The bombers murdered three people, including an eight-year-old boy, and injured two hundred more, many of them maimed and missing limbs. An atrocity like this, of course, represents everything civilization must oppose.

I cannot help but wonder what the standard is that triggers the martial-law response we’re seeing in New England. If these bombers had murdered three but not caused as many injuries—if the sheer terror of their crime had not reached this magnitude—would Boston look like a totalitarian state right now? What if the police needed to find a serial killer? Or what if a city was home to lots of violent crime in general?

If the suspect escapes into another city tomorrow, can the police lock down one city after another until they find him? And how long will this go on? They might catch him and it might all end and Boston could be back to normal, if we can call it that, by the end of the weekend. What if he isn’t caught for a while? What if a future suspect implicated in a gruesome and dramatic criminal act next year manages to escape justice for months? Can the police now just shut down cities, transportation, and—as they did on Monday*—cell service for as long as they deem necessary? Should normal denizens really have no say of their own on whether they will risk the violent threats that might await them outside? If they have no right to walk about freely today without expecting, at a minimum, serious harassment from authorities, can the same be true on any other day?

People tolerate extreme police powers when they seem temporary. The martial law after Katrina gave way to more civilized policing, such as it is in New Orleans. But what if the emergency persists? What if the U.S. becomes home to a crime plausibly labeled terrorism every couple months—can we expect a state of constant siege? Even then, the threat to any given American would be very statistically low. Yet the gruesomeness and horror could legitimize all sorts of overreaction.

Not long ago, American law enforcement embraced the pretense that it sought to arrest suspects and bring them to trial. The advertised standard seems to have shifted. In February, the LAPD appeared to target ex-cop Chris Dorner, who allegedly murdered police and families of police, for summary liquidation. They drove around shooting at trucks they thought might contain the suspect. They surrounded him in a cabin, deployed CS gas, and the building went up in flames. Almost no one made a big deal of the fact of what had happened—everyone just assumed he was guilty and that there was no reasonable way to apprehend him alive. Or people didn’t care.

The same is true of Dzhokar Tsarnaev, the nineteen-year-old suspect who managed to escape an army of law enforcement. Everyone assumes he’s guilty, and I would surely bet that he is, but that is not supposed to be America’s standard of legal justice. We also have every reason to want him alive, to know about his motives, to learn as much as we can to guard against future threats. Yet the standards of guilt have seemed to decline in recent memory, along with the standards for the state abolishing civil liberty. And in this case, even if he’s certainly guilty, the standards for how the state tries to bring someone into custody seem to have eroded as well.

We see the danger inherent in state power. The police are conducting the most pedestrian, universally assumed valid function of government. They are going after a murderer who appears to be armed and dangerous and a continuing threat. And in this pursuit, they have turned several cities into what look like police states by any reasonable measure. This demonstrates that the core nature of the state, its monopoly on crime control, always holds the potential for a full-blown security state and a total abolition of public liberty. What matters most is a culture wary of state power in any and all manifestations.

Yes, the lockdown will eventually ratchet back, but I fear this is only a hint of what is to come. On the one hand, we can say the suspect allegedly committed a particularly insidious crime and poses an especially frightening threat, and so the police reaction is either no cause for alarm, or at least something that will pass. On the other hand, all it took was a couple people with a couple bombs made from pressure cookers, and they managed to provoke the kind of full-scale lockdown you’d expect in response to a genuine invasion by a fully armed and manned military force. Monday showed us how fragile life and social tranquility are. Today shows us how fragile liberty is.

There is nothing we can do to fully overcome the vulnerability of life, unfortunately. There is something we can do, however, to shield against the vulnerability of liberty. We can start by at least asking questions about whether what is happening in Boston is the best response even to the bloody terror of this week.

* This is an inaccuracy. The cell service was down due to bandwidth issues. 

Update: The suspect has been captured, and the state of siege has ended. They have put aside his Miranda rights for the time being in the name of the “public safety” exception, to interrogate him. 

Some correctly note that in many respects the shutdown was voluntary and welcome by the frightened community. Even if the people went along with it with little prodding, the power of the state to decide a city and all its commerce should be shuttered, and the decision to use it in this instance, should make Americans at least a bit troubled. And we should also keep in mind that the overwhelming majority of the massive police response did not aid in capturing the suspect—it ultimately turned on that old fashioned breakthrough—a normal denizen calling the authorities with information.

The Kennedy assassination, the DC sniper attacks, and so many other crises did not inspire quite this multi-thousand-officer approach, complete with tanks and a closed down city. The main question needs to be answered: what constitutes a justifiable reason for the state to do this? If a far greater attack occurred, what would that justify? 

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