How Much Civil Liberty Should We Give Up?

By Emily Bazelon, Slate Magazine

21 April 13

Not much. The truth is it doesn't appear that greater powers would have helped the authorities stop the Boston bombing.

his is the scariest day of news I can remember since 9/11. To state the obvious, it's surreal and terrifying to see bombs go off on a day of pride for the Boston Marathon and even more so to watch a whole region go into lockdown while the police hunt for the remaining suspect and perhaps his accomplices.

At the same time, it's been reassuring to hear few calls for constricting civil liberties in the name of national security. Is that about to change, as information pours in about the foreign and Muslim background of the accused bombers? I hope not. At least based on what's public now, it's hard to see how the government could have prevented this act of terrorism without sweeping changes to immigration laws and the scope of law enforcement's powers.

The subject of the manhunt and suspect in the Boston Marathon bombing, Dzhokhar Tsarnaev, is a 19-year-old, remembered by kids who went to Cambridge Rindge and Latin School, for having friends and being "nice" and "normal." The second bombing suspect, by contrast, Dzhokhar's older brother, Tamerlan, said he didn't have a single American friend, and he sounds like a more radicalized and religious Muslim. But both brothers appear to have lived in the United States for several years. They came to this country with their family maybe five years ago, or maybe 10, according to conflicting news reports. Yes, they have foreign origins, and according to current reports, they lived in war-torn Chechnya, Russia's North Caucasus region of Dagestan, and the Central Asian country of Kyrgyzstan. But they lived in America as teenagers. They went to our schools, played on our sports teams, joked on our social media.

I'm not sure I'd go as far as the president of Chechnya, Ramzan Kadyrov, who said of the brothers in a statement on Friday, "They were raised in the United States, and their attitudes and beliefs were formed there." But it is jarring, to say the least, to read that although Tamerlan Tsarnaev had "a YouTube profile, where he created a playlist dedicated to terrorism" and complained as a Muslim that "there are no values anymore," he also bragged about the beauty of his Portuguese-Italian girlfriend and said he loved the movie Borat. How do you get from laughing at Sacha Baron Cohen's disrespectful, irreverent satire about the antics of a bumbling Kazakh visiting America to blowing up the Boston Marathon?

These brothers don't sound like alienated immigrant refugees. They sound assimilated and integrated. And that makes it harder to fathom the motives behind the terrorism they're accused of committing-and harder to imagine how to protect the country from others like them. After 9/11, we learned that the hijackers had lived in the United States for months or years, but all along they'd been plotting as part of a terrorist cell. They'd held themselves apart. Their anti-American, jihadist violence provoked a searing debate about the government's surveillance powers and infiltration of Muslims groups. Congress passed the Patriot Act, expanding the government's authority to gather intelligence, watch suspect groups, and detain and deport suspect immigrants. And with the acquiescence of the courts, the government started aggressively going after people for providing "material support"-money or weapons-to groups designated as terrorist.

Some civil libertarians, like law professor David Cole, have passionately argued that the government has gone too far, needlessly curtailing liberties. But as Adam Liptak concluded in looking back at the decade following the World Trade Center attacks, "By historic standards, the domestic legal response to 9/11 gave rise to civil liberties tremors, not earthquakes." More than picking up the law and moving it a giant step to the right, the government changed how the law was enforced, Liptak says. It was a shift in tactics.

And it worked. The United States "experienced strikingly few terrorist attacks." The last decade was a whole lot safer, terrorist-wise, than the 1970s. Even with the events of this harrowing week, that is still true. That's the reality to remember, even now.

If it turns out the Tsarnaev brothers were part of a cell, then maybe there will be a new group or groups to add to the watch list monitored by U.S. counterterrorism agencies. It's also true that the video feeds that helped the FBI identify the Tsarnaevs make a case for more surveillance of public places, as Farhad Manjoo points out. And surely Texas Republican Rep. Michael McCaul will have company in renewing the push for a proposed law called the Cyber Intelligence Sharing and Protection Act. Passed twice in the past two years by the House but not by the Senate, CISPA calls for private companies to share more of their customers' Internet traffic with the government in the name of fighting cyber threats. Civil liberties groups say it allows for too much spying. In April 2012, after CISPA passed the House for the first time, the White House said President Obama would veto the bill, saying the law repeals "important provisions of electronic surveillance law without instituting corresponding privacy, confidentiality and civil liberties safeguards." Facebook and Microsoft were on board for the law, then changed their positions in the face of criticism.

And that criticism holds. At the very least, lawmakers should take a long, deep breath before they convert the Boston bombing and its aftermath into fodder for doing anything at all. Some of the worst violations of Americans' civil liberties after 9/11 happened fast, when alarm was high. The more deliberate the country can be, the less likely it is to repeat those errors. Or to move beyond them toward the freedom-choking steps that would in the end be the bombings' most frightening legacy.