UPDATE: The Obama Administration has decided NOT to try Tsarnaev as an enemy combatant. This is good news for civil liberties.

The initial phase of the Boston Bombing investigation appears to be winding down. With one of the suspects killed, and another detained, the F.B.I., according to media sources, is engaged in a wider search for members of a terrorist cell to which the Tsarnaev brothers were attached. (Of course, I am not sure why the F.B.I. would want that information publicized unless it is a ploy to see if people might reveal themselves to authorities through their activities, but that is a different matter.)

The attack and the aftermath have sparked a debate about how our legal system ought to deal with these kinds of situations. There seem to be three major issues at play. First, should we increase surveillance to enhance security in America? Second, how much authority does the government have to search for suspects? Third, how should the legal system handle the surviving Tsarnaev? Is he an enemy combatant, and therefore placed outside of constitutional protections, or does he possess the rights of citizenship?

We will, it can be assured, hear continued cries for more surveillance technology in light of the Boston Bombing. Politico ran a helpful article that summarizes some of the major concerns here. As noted by Friess and Meyers, surveillance technology likely sped up the Tsarnaevs’ eventual death and apprehension. Cameras in public places allow law enforcement officials to quickly reconstruct events, search for patterns of behavior, and identify possible suspects. Our digital environment also allows them to distribute such information quickly so the public becomes an active agent in the process. This is, unquestionably, valuable and cannot be dismissed. Increasing the number and sophistication of such cameras will enhance our justice system’s efficiency.

There are pitfalls, however, that should not be minimized. While increasing surveillance will ease apprehension, it is unlikely to be preventative unless facial recognition software becomes so sophisticated that it can flag suspected terrorists soon enough for authorities to prevent an attack. As criminals and terrorists become more aware of the cameras, they will guard their identities more closely, and if they are suicide bombers, prevention is really the only significant goal. There is the additional matter of a reduced freedom involved with constant surveillance, even in public places. While many might argue that government looking over your shoulder is only a problem if you are committing a crime, it is, by definition, intrusive and should be suspect in a free society.

Count me among those who argue against increased levels of surveillance. The technology tilts the balance so heavily toward the government’s ability to monitor to the point that it becomes pervasive. While the Fourth Amendment is not at issue so long as actions are in public view, the public view doctrine assumes something like limited resources. I cannot imagine government’s ability to surveil us non-stop, so long as we are in public, is reasonable so long as we live in a society that describes itself as “free.”

I have been searching for more information about the nature of the searches that took place this past weekend. Via Twitter, some are claiming they were ordered out of their houses at gunpoint if they refused to allow either the police or the military to search. I am hesitant to reflect on this without more information and confirmation. While authorities could claim to be in “hot pursuit” of a criminal, this does not grant them the ability to search whatever they wish because of the possibility the suspect is inside. In other words, how “hot” was the pursuit if authorities executed a 20 block dragnet to look for him?

In general, authorities need a warrant, or absent that, probable cause, to search or seize. Of course, the circumstances here are extreme and we should not always apply a rigid standard in all instances, especially when the application of our principles undermines the system itself. At the same time, we have to be vigilant and protect our liberties. This is an exception, to be sure, but it should not become a precedent whereby government can claim latitude whenever emergency circumstances arise.

Practically, as Emily Bazelon points out here, infringing on our liberties was not really effective. Declaring a form of martial law, restricting citizens to their homes, and imposing a curfew, actually made law enforcement’s job more difficult. By removing thousands of eyes from the area, Tsarnev needed only avoid authorities and not citizens themselves. And, as we now know, Tsarnaev was only found once the detention was lifted and a citizen, on a stroll outside, noticed blood on the side of his boat.

The final issue is how Tsarnaev will be handled within the American legal system. The Obama Administration, the last we heard, did not read him his Miranda rights. This will allow them to treat Trasrnaev as an enemy combatant, which means he could be questioned without an attorney present. John McCain appears to support this, while Stephen Bainbridge notes this is a terribly bad idea and I agree. Tsarnaev is an American citizen who committed a crime on American soil. He should be treated as such and he should be afforded his full range of constitutional privileges. John Yoo disagrees, arguing that Tsarnaev should be treated as a combatant unless it is clear he is disconnected from any larger organization.

There is also the matter of whether the government seeks the death penalty for Tsarnaev. Massachusetts does not have the death penalty, and Tsarnaev’s actions and flight were all within the commonwealth. At the same time, federal laws allow for acts of terror to be prosecuted in federal court, where prosecutors can seek the ultimate punishment. Boston.com provides a good overview of the matter here.