(Editor's note: This essay is a response to this commentary.)
The scene in Boston on April 18 and 19 was awesome.
By that, I don't mean it was cool. Rather, the mass law-enforcement action to shut down the city and search for the brothers Tsarnaev was "awesome" in the dictionary sense of "awe": "dread ... and wonder that is inspired by authority."
In his commentary in the May 2 issue of the River Cities' Reader, John W. Whitehead announces that the situation showed that "the police state has arrived." Certainly, anybody who's doubted warnings about the police state should have been struck by the swiftness, scope, coordination, and force of law-enforcement actions those two days following the bombs that exploded at the April 15 Boston Marathon. Even though television viewers didn't see much beyond reporters breathlessly saying that something was happening, it was readily apparent that the combined resources of federal, state, and local law enforcement are a fearsome instrument that can be unleashed quickly and without regard for rights.
So if you have the misfortune of seeing your picture above "Suspect Number 1" or "Suspect Number 2" on TV, I hope you did something truly evil, as this is the man- and firepower you'll face. And if you decline to let police search your home in a scenario similar to what happened in Boston, good luck.
But this was not a "police state" as most people think of it - a brutal, proactively oppressive regime. It would be more accurate to say that the Boston metro area on April 18 and 19 was a vivid demonstration of our potential for a police state through a single, short-lived, but widespread instance of de facto martial law.
Yet it was also a visible reminder of a more persistent underlying condition: the security state that has been built steadily in the United States since September 11, 2001. It's ostensibly designed to prevent terrorist attacks, but it proved last month that it's much more adept at responding to them.
Boston showed what our police state could look like. Now we need to decide whether it's what we want.
Do You Feel Safe and Secure?
Most thoughtful people recognize in a general sense that the protections of rights enumerated in the Constitution have been eaten away by legislators, judges, and law-enforcement and intelligence agencies over the past 12 years. But specific infringements - and the government sanction for those infringements - fall into one of three categories for much of the public: under-the-radar, not directly affecting one's day-to-day life, or necessary evils in the interest of security and safety.
That's a key reason the public has been so complacent, so willing to go along with security-state erosions of civil liberties: They don't see them as threats to law-abiding citizens.
Boston's "shelter in place" shutdown and house-to-house searches weren't nearly as easy to swallow, but they appeared to be employed judiciously - after three people had been killed by the bombs, after more than 250 people were injured by them, after a police officer had been shot to death, and after two suspects had been identified and were on the run.
Lest it seem that I'm crafting a defense of the security state, I'll ask a straightforward question: Having seen the security state in full response mode, do you feel safer and more secure?
Before answering, keep in mind that the Boston shutdown was deployed after the marathon bombing. And recognize that its brevity was facilitated by the Tsarnaevs' panic once their faces were made public, and the fact that they stayed in the Boston area.
And, most crucially, remember that our vast and costly security apparatus did nothing to prevent the mass killings and injuries in Boston, Newtown, and Aurora in just the past year.
My question is not intended rhetorically. You can reasonably say "yes," "no," or "I'm not sure."
For me, the answer is "not really." My fear is that we've given away a great deal in terms of rights without getting much back in the way of security. At this point, the best we can say about our security state is that when we are attacked, some serious hellfire will rain down on somebody. (So let's hope they target the right people ... .)
Whitehead's response, on the other hand, is unambiguous and easy (which is different from saying it's wrong). He's a rights absolutist, so if it's in the Constitution, it's sacred. And therefore any effort to diminish that right is by definition bad - an assault on liberty, and an ominous threat to our security as defined by the Bill of Rights. With clear condescension, he bemoans a population "inclined to sacrifice its liberties for phantom promises of safety."
He's echoing Benjamin Franklin, who wrote: "Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety."
Rights Versus Lives
But Whitehead's phrasing makes an assumption rather than a supported argument. Have we really traded rights for "phantom promises of safety"? If the erosion of rights has thwarted one or two dozen or a hundred terrorist attacks and saved one or 43 or 1,239 lives, his argument collapses, because the public has gotten something back in the bargain.
The tension here - which Whitehead does not address - is between public safety and individual rights. To put it in the terms of the preamble of the Constitution, it's between "common defence" and "Liberty to ourselves and our Posterity."
This conflict is a relatively recent phenomenon. Until Americans had to deal with the current, seemingly permanent threat of terrorism on their own soil, defense and liberty were rarely at odds for such an extended period of time. Terrorism complicates things, because it pits the rights of one person against the lives of dozens, hundreds, or thousands of others. The Declaration of Independence among its three "inalienable rights" included both "Life" and "Liberty," not considering that they would not always be compatible.
Franklin, however, seemed to anticipate the collision. Notice the nuances and caveats of his quote: "Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety."
This opens up the question to a cost/benefit analysis. To use Franklin's terms, if we've gotten substantially more than "a little temporary safety" in the equation - or if we haven't given up "essential liberty" - reasonable people can disagree about whether the cost has been worth it.
Whitehead's formulation of the situation is not as simple as he makes it, in other words. My question and answer should make clear that I'm far more ambivalent than he is.
The public has periodically been told that many acts of violence and terrorism have been prevented over the past dozen years through enhanced powers given to law-enforcement and intelligence agencies. But those powers have not resulted in a "safe" country or world. Mass killings - and arguably preventable mass killings - have happened in the United States, and will continue to happen. Period.
Let's keep two facts at the forefront: Both James Holmes (the accused shooter in the July 20 killings at a movie theatre in Aurora, Colorado) and Tamerlan Tsarnaev were reported as threats prior to their infamous actions. Holmes' psychiatrist told University of Colorado police that she felt he might harm others. The Russian government asked both the FBI and the CIA to investigate Tsarnaev for ties to extremism.
This highlights that our security state is porous as a prophylactic. It might be more effective were it deployed more aggressively - casting a wider net, focusing on potential threats rather than actual plans in action.
But this is the very thing Whitehead correctly warns against, because it's a mistake to view the security and police states as discrete. Even if you believe rights for security is a fair exchange, it's a short distance from a benevolent protective state to an authoritarian regime. Whitehead argues that "once a free people allows the government to make inroads into their freedoms or uses those same freedoms as bargaining chips for security, it quickly becomes a slippery slope to outright tyranny." He cites the examples of World War II internment camps of Japanese Americans and the first Red Scare.
Those disgraceful events show that if the threat - or even merely the perceived threat - is great enough, Americans have proved themselves far too pliable regarding rights. As the Washington Post editorialized about the 1920 Palmer raids on radical leftists: "There is no time to waste on hairsplitting over infringement of liberty."
Deep in the Gray
The "slippery slope" argument, then, is a function of relativism. If one views rights as immutable - as Whitehead does - then there's no tension between rights and security, because rights will always win; there are, after all, no explicit exceptions in the Bill of Rights for terrorism or national security. The benefit of this black-and-white view of rights is that the lines are almost always clear.
But if rights are provisional based on situations and threats, there's a whole lot of gray area. Under what circumstances can rights be suspended, and by whom, and for how long? What's the process for restoring them, and who gets to decide that?
For the past dozen years, we've found ourselves deep in the gray. Accepting diminished rights for enhanced safety should be an unsettling position, because rights are then in the hands of people - police, judges, politicians, and bureaucrats - who clearly place a greater value on collective security than individual protections.
You don't need to agree with Whitehead's alarmist tone to still think it critical to be vigilant in guarding your rights - and, probably more importantly, the rights of others. Even in the most generous analysis of our present security state, it's clear that few people in government will advocate for your rights.
And, ultimately, we need to return to the terms of our bargain. We've inarguably traded liberty for the promise of public safety. Yet even though we have given up our rights, we still have mass killings, many of us still feel vulnerable, and we've now seen the security state unleashed - with its distressing potential for abuse.
So this might be a deal that leaves us empty-handed.
