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A Different Perspective on the Boston Lockdown

ALEXANDER J. BLENKINSOPP*

INTRODUCTION

he Watertown, Massachusetts, standoff in April 2013, which led to the arrest of one alleged Boston Marathon bomber and the death of the other, is still fresh in the nations collective mind. The suspects confrontation with law enforcement personnel and the subsequent manhunt resulted in the lockdown of a large part of the Boston metropolitan area.1 Commentators, legal and otherwise, have been quick to worry that just a couple of suspected terrorists were capable of creating so much trepidation that they brought a major city to a standstill. These commentators express concern about the troubling legal implications of the governments response, the huge economic costs of the shutdown, and the public policy precedents for dealing with terrorism in the future. I believe these commentators have viewed the lockdown incorrectly. Government officials reason for locking down Boston and the surrounding area was not the dangerousness of the situation. Rather, officials were very close to capturing the remaining suspect, and shutting down the city greatly improved the chances of doing so. Commentators fear s about the ramifications of the lockdown are unjustified when one considers the actual facts of the situation. We need a different lens for analyzing these events, one that rightly casts the governments actions in a more positive light and might even send a stronger message to would-be terrorists.

M.P.P. and M.B.A. Candidate, Harvard Kennedy School and Harvard Business School; A.B., Harvard College; M.Sc., University of Oxford. Thanks to Kyra Wilson Cook, Alex Potapov, and Ina Subulica for their helpful comments. 1 See Mark Clayton, Marathon Bombing: Manhunt has Boston Under Lockdown. How Long Can it Last?, CHRISTIAN SCI. MONITOR (Apr. 19, 2013), http://www.csmonitor.com/USA/2013/0419/Marathon-bombing-Manhunt-has-Boston-underlockdown.-How-long-can-it-last (identifying the Boston-area neighborhoods that were asked to shelter-in-place).
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New England Law Review On Remand

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Fears About the Ramifications of the Lockdown

During and after the Watertown standoff and manhunt, commentators expressed concerns that fall into three broad categories: legal, economic, and public policy. The primary legal concern seems to be the infringement of individual rights. Professor Eugene Kontorovich issued one of the stronger criticisms of the lockdown, calling it a freakout[] and overreaction .2 He further lamented the severe blow it supposedly dealt to civil liberties: Two Chechen Islamist terrorists have succeeded in turning Boston, Americas cradle of liberty, into a prison. . . . [T]he lockdown of Boston illustrates the extent to which civil liberties are at stake in the war on terror.3 Lawyer Wendy Kaminer predicted that Bostonians choice to cower in fear and comply with the shelter-in-place request issued by government officials would further erode civil liberties.4 Commentator Justin Davidson, too, questioned the lockdown: If we come to accept the notion that the best way to protect a city is to keep it clear, then we will have abridged our own freedom of assembly.5 Even columnist Ross Douthat, who acknowledged that the response might successfully deter some marginal terrorists, expressed apprehensions about the civil liberties fallout if the frequency of attacks in the United States increases: [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.6 The economic fallout also received attention. One estimate put the lockdowns cost at upward of $333 million per day. 7 Another offered the rough estimate of $1 billion, though it added that the halted economic activity might merely have been delayed, rather than eliminated. 8 Trading
2 Eugene Kontorovich, The American Athens Becomes a Prison City, VOLOKH CONSPIRACY (Apr. 19, 2013, 10:55 AM), http://www.volokh.com/2013/04/19/the-american-athens-becomesa-prison-city/. 3 Id. 4 Wendy Kaminer, We Dont Cower in Fear: Reconsidering the Boston Lockdown , ATLANTIC (Apr. 21, 2013, 11:13 AM), http://www.theatlantic.com/national/archive/2013/04/we-dontcower-in-fear-reconsidering-the-boston-lockdown/275165/. 5 Justin Davidson, Sirens and Silence, N.Y. MAG. (Apr. 19, 2013), http://nymag.com/news/intelligencer/boston-lockdown-davidson-2013-4/. 6 Ross Douthat, Thoughts on the Boston Lockdown, N.Y. TIMES (Apr. 22, 2013, 5:25 PM), http://douthat.blogs.nytimes.com/2013/04/22/thoughts-on-the-boston-lockdown/. 7 Joshua Green & Caroline Winter, It Costs $333 Million to Shut Down Boston for a Day, BLOOMBERG BUSINESSWEEK (Apr. 19, 2013), http://www.businessweek.com/articles/2013-0419/it-costs-333-million-to-shut-down-boston-for-a-day. 8 Yuval Rosenberg, What the Boston Lockdown Might Cost, FISCAL TIMES (Apr. 19, 2013), http://www.thefiscaltimes.com/Articles/2013/04/19/What-the-Boston-Lockdown-MightCost.aspx.

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2013

A Different Perspective

in the options market was much lower than usual leading to less liquidity and perhaps financial lossesas Boston, home of several large financial firms, remained dormant on a monthly options expiration day. 9 And the manhunt itself is believed to have cost millions.10 The main public policy complaints focus on how the government sent a signal of weakness and potentially encouraged more attacks in the future. Professor Paul Campos said the suspect at large was being treated as if he was some sort of existential threat to the entire region, which could serve as fuel for future acts of violence by others. 11 One writer argued that the shutdown was an undue surrender to the power of the terrorist act in the face of an ultimately small threat to the public peace. 12 Another claimed that violent acts occur in the United States all the time, so the events in Boston represented a near-hysterical overreaction by the authorities.13 A fourth wonder[ed] about the long-term strategic ramifications and if this wouldnt be viewed as a near-surrender to terrorism, adding that such widespread disruption was unnecessary and that there is symbolism when one of the U.S.s largest cities paralyzes itself in face of terrorism. 14 One columnist essentially declared that the terrorists had won because of the shutdown: If the primary goal of terror attacks is to instill fear and intimidate people, to influence governments and to attract world attention, then the Boston bombers have probably succeeded beyond their wildest dreams.15

9 Angela Moon & Doris Frankel, Options Volume on Expiration Light Due to Boston Lockdown, REUTERS (Apr. 19, 2013, 11:53 AM), http://www.reuters.com/article/2013/04/19/markets-options-boston-idUSL2N0D616820130419. 10 David Gura, How Do You Lock Down a City Like Boston and How Much Does It Cost? , MARKETPLACE (Apr. 19, 2013), http://www.marketplace.org/topics/economy/how-do-youlock-down-city-boston-and-how-much-does-it-cost. 11 Paul Campos, We Gave Tsarnaevs the Attention They Wanted , SALON (Apr. 20, 2013, 11:00 AM), http://www.salon.com/2013/04/20/tsarnaevs_got_the_attention_they_wanted/. 12 Adam Gopnik, Dzokhar Tsarnaev, Lost and Found, NEW YORKER (Apr. 19, 2013), http://www.newyorker.com/online/blogs/newsdesk/2013/04/dzhokhar-tsarnaev-isfound.html. 13 John Cassidy, Terrorist Hunt Sends America Over the Edge, NEW YORKER (Apr. 20, 2013), http://www.newyorker.com/online/blogs/johncassidy/2013/04/terrorist-hunt-sends-americanuts.html. 14 Yaakov Katz, Analysis: Boston Lockdown, JERUSALEM POST (Apr. 20, 2013, 12:34 AM), http://www.jpost.com/Features/Front-Lines/What-message-is-US-sending-with-a-Bostonlockdown-310424. 15 Chemi Shalev, The Boston Bombers Have Already Scored a Tremendous Victory for Terror , HAARETZ (Apr. 19, 2013, 8:40 PM), http://www.haaretz.com/blogs/west-of-eden/the-bostonbombers-have-already-scored-a-tremendous-victory-for-terror.premium-1.516532.

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New England Law Review On Remand

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II. The Actual Facts of the Lockdown The actual events in the Boston area during the manhunt indicate that these fears are misplaced. First, it is a misnomer to refer to these events as a lockdown. The vast majority of people in the affected Boston -area neighborhoods were asked, but not legally required, to remain indoors16 (mostincluding this authordid so). Public transit service was suspended, and vehicle traffic into and out of Watertown was prohibited, but, for the most part, nobody was involuntarily locked anywhere. 17 Second, the supposed lockdown occurred only after authorities had come extremely close to capturing the remaining suspect. There was no shutdown in the wake of the Boston Marathon bombing. There was no shutdown immediately after the suspects allegedly shot a police officer to death at MIT. There was not even a shutdown until hours after the suspects traded gunfire with police officers, one of the suspects died, and the other fled. In fact, the shelter-in-place request came only when the authorities believed they had trapped the suspect within a relatively small areain other words, when they virtually had him within their grasp. As Representative Michael Capuano of Massachusetts replied when asked whether the shutdown set a bad precedent, No, I dont think so at all. I mean, they were looking for somebody who was clearly in the area. 18 When the remaining suspect seemed to have escaped, the authorities lifted the shelter-in-place request and resumed public transportation service.19 This indicates that the immediate prospect of catching the suspect is what led the government to order the lockdown in the first place. The danger did not diminish at all when the suspect had apparently evaded police capture, yet the public was no longer warned to remain indoors. The obvious conclusion is that the principal purpose of the lockdown was to aid the manhunt, not to keep Bostonians out of harms way. The commentators who worried about terrorists scaring Boston into their homes are missing the point; it was the immediate possibility of success not fearthat prompted the shutdown.

16 Alan Greenblatt, Boston on Lockdown: Today Is So Much Scarier , NPR TWO-WAY (Apr. 19, 2013, 12:31 PM), http://www.npr.org/blogs/thetwo-way/2013/04/19/177934915/The-SceneIn-Boston-Today-Is-So-Much-Scarier. 17 See Nate Rawlings, Was Boston Actually on Lockdown? , TIME (Apr. 19, 2013), http://nation.time.com/2013/04/19/was-boston-actually-on-lockdown/. 18 Justin Sink, Capuano: Boston Shutdown Not a Worrying Precedent, HILL (Apr. 22, 2013, 11:24 AM), http://thehill.com/video/house/295267-capuano-boston-shutdown-not-a-worryingprecedent- (quoting the CNN interview with Representative Michael Capuano of Massachusetts). 19 Boston Manhunt: Suspect Escapes, Lockdown Lifted , ABC NEWS (Apr. 19, 2013, 10:14 AM), http://abcnews.go.com/US/video/boston-bombing-suspect-manhunt-dzhokhar-tsarnaevescapes-lockdown-19002184.

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The governments stoppage of public transport, and its shelter-in-place request to the public, had clear benefits to the manhunt. These steps made it much easier to notice and identify the suspect had he been in public, and it would have made it more difficult for the suspect to hitch a ride or escape via mass transit. When officials believed they were on the verge of capturing the suspect, a lockdown was sensible because it made capture much more certain. To use economic terminology, the marginal benefit of a lockdown in this case was significantly higher as was the probability of a large payoffthan it would have been if the suspects whereabouts were totally unknown. III. A Different Lens The lockdown was not acquiescence to terror. Rather, it showed determination to bring a suspected terrorist to justice. It would be beneficial, both symbolically and practically, for the government to make this point explicitly and publicly. When events were at their scariestright after the Boston Marathon was bombed, or after the suspect was thought to have escapedthere was no lockdown in place. Terror did not win the day; pragmatism did. Despite Douthats concerns about the lockdown, he perfectly articulated the message that authorities should send to would-be terrorists: You will be caught, and quickly, because we will move mountains to catch you, up to and including shutting down an entire city to ensure that you stay cornered.20 Professor Noah Feldman accurately stated that it is the mark of a strong state that it responds to terror with thousands of police, helicopters and the full weight of a security apparatus that has confidence in its ultimate success. 21 This is what commentators should focus on. The standoff and search in Watertown was a unique situation. Seldom do authorities find themselves, for hours on end, extremely close to capturing an apparently dangerous terrorist. The United States will continue to face terrorist threats in the future, but the worrisome precedents cited above will not flow from Watertown. The lockdown was entirely voluntary and, as libertarian commentator Megan McArdle noted, its very unlikely that were going to make a habit of this sort of thing, 22 especially because the circumstances are unlikely to reoccur. Economically, the cost of a near-certain opportunity to catch a terrorist seems worth it,

Douthat, supra note 6. Noah Feldman, Terrorism Comes to Cambridge, BLOOMBERG (Apr. 19, 2013, 3:08 PM), http://www.bloomberg.com/news/2013-04-19/terrorism-comes-to-cambridge.html. 22 Megan McArdle, The Cost of Boston, DAILY BEAST (Apr. 22, 2013, 10:15 AM), http://www.thedailybeast.com/articles/2013/04/22/the-cost-of-boston.html.
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New England Law Review On Remand

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particularly when one considers millions of people s peace of mind or the sums that would have been spent in the following months and years to locate and apprehend the suspect. From a public policy perspective, the actual facts on the ground show that no surrender to terrorism occurred, and therefore Watertown is not some sort of disturbing paradigm.

CONCLUSION
That so many commentators expressed concern about the lockdown indicates that the government has not conveyed the optimal message. Officials should state explicitly that they would not have shut down a major metropolitan area if there were no obvious, highly probable, impending benefits to doing so. In addition, the authorities should emphasize that this was a request adhered to voluntarily, and that they do not anticipate taking this unique step again due to the implausibility of this situation arising in the future. The Watertown standoff and manhunt ended well. It was a success, and the government must make an effort to ensure it is perceived that way. Those are the truly important precedents that should be drawn from Watertown.