One ongoing controversy concerns whether the criminal justice system is capable of grappling with terrorists. Cheney himself warned against a law-enforcement approach to terrorism in a 2009 speech, and much of Congress is averse to trying accused terrorists in the federal court system. You'd think that law enforcement's success apprehending the Tsarnaev brothers, the elder brother's death, and the solid evidence against the younger brother would suggest that the criminal justice system is in fact capable of bringing terrorists, or at least these particular suspects, to justice.

John Yoo thinks this case shows the inadequacy of the law-and-order approach.



"How is this a victory for traditional law enforcement?" he asks in an item at the American Enterprise Institute's blog. "Two young brothers, lightly armed, killed several innocent civilians, wounded 170, killed an officer and wounded another, and shut down one of America's great cities. We had a whole city trapped in its homes and paramilitary forces in its streets. Law enforcement alone means the nation lies vulnerable to attacks on soft targets and must expend enormous resources to catch the killers afterwards. A pre-emptive strategy based on intelligence and the use of force overseas seeks to prevent such attacks further from our shores. That option should be preferred by everyone compared to what we've seen in Boston these last five days."

What a slippery rhetorician. Obviously, the United States should preempt terrorist attacks using intelligence when possible. Does anyone disagree? Can anyone deny that we already dedicate significant resources to intelligence gathering? Yoo writes as if that wasn't happening prior to Boston. For years now, we've also been preemptively using force overseas. The drone war waged in Pakistan, Yemen, and elsewhere didn't stop the Tsarnaevs. And it is difficult to imagine any preemptive war that could have stopped two legal residents of the U.S. from attacking their city. Exactly which country would Yoo have had us invade to stop those bombs? But never mind. Yoo has an ideological predisposition to preemptive war. So he implies that it would've made us safer in this case, even though that makes no sense given the facts. It should also be noted that the Tsarnaevs did not shut down a major American city. Boston wasn't shut down by their bombs. The day after the marathon, Bostonians kept calm and carried on.

The suspects were still at large, and at that point, unknown. The Tsarnaevs failed to shut down Boston with their violent act. Once they were flushed out of hiding and killed a police officer at MIT, once they engaged in a shootout with police, leaving one of them dead, authorities made a decision. Whether prudently or overzealously, it was U.S. authorities who decided to shut down Boston. Since Dzhokhar Tsarnaev was found hiding in a Watertown backyard, apparently wounded, it seems that shutting down Greater Boston, however understandable, didn't save any lives. In hindsight, shutting down a single Watertown neighborhood would've been sufficient.

