04/22/2013 10:06 am ET Updated Jun 22, 2013

Safe and Free

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As a Bostonian, I have complex feelings about my civil liberties and my family's personal safety in the aftermath of the Marathon bombings. My wife was a block from the first explosion. My son and four-year-old grandson had considered going to the finish line and then changed their plans. The dead and maimed could have been any of us. I am surely pleased that the bombers were caught.

But I fear for my country on two opposite grounds.

The emerging history of Dzohkahr Tsarnaev suggests that while the much-expanded national security establishment has been largely successful at thwarting organized assaults by terrorists, it cannot prevent a one-off attack by an extremist-influenced sociopath.

To do so would require turning our country into a police state.

When I was a graduate student, a refugee professor once told the class, "I grew up in Nazi Germany. It was a very safe place to walk the streets. Unless you were perceived to be an enemy of the state."

How many more of us will have to be presumed enemies of the state in order for the rest of us to be safe from random bombers? After an attack like this, national security ratchets up, and never seems to ratchet back down. And some trade-offs are truly difficult.

The police were able to track down the brothers Tsarnaev thanks to security cameras. So, should we now have a massive proliferation of such cameras? There are already proposals. (Will this be the long-awaited national infrastructure and public employment program to cure the recession -- half the population hired by the government to observe the other half?) Not to mention domestic drones.

The FBI has already been criticized for fumbling a tip from the Russians that Tamerlan Tsarnaev had violent extremist tendencies. Should he have been placed on some kind of watch list for continuous surveillance? Should such watch lists be dramatically expanded?

One of the hallmarks of an open society is that the police miss some things. I was an anti-war activist at Berkeley in the 1960s. Later, in graduate school, I was nominated and accepted for a summer internship at the State Department, and assigned, of all places, to the Cuba desk and given a security clearance. It was even more fun that I was sporting a full beard at the time. My mother reported that a government agent had been in our neighborhood and asking the neighbors if they thought I was loyal or had any odd friends. The gumshoes somehow missed my Berkeley activities. But that was then.

When I first worked in the senate, there were no concrete barricades, no metal detectors, anyone could just walk right in. (In Sweden, which has lost one prime minister and one opposition leader to assassins, the people have rejected the course of becoming a security state. There are no metal detectors and no guards at the entrance to parliament. I had an interview there with a minister and all they asked for was some I.D.)

To have a national security state so secure as to guarantee us against any possible attacks would be to lose a fair amount of our liberty. And yet we don't want to be sitting ducks for the next attack.

The comic-opera actions of the TSA suggest that government can err in both directions -- too much "security" and not enough. On a plane trip, by accident, I had a claw hammer in my backpack (I had been hanging a picture.) TSA, despite tens of billions of dollars worth of scanner technology, totally missed it. But now, in order to improve its public relations, TSA is about to permit carry-on pocket-knives with blades long enough to slit someone's throat.

America is also totally schizophrenic on the subject of weapons. The Tsarnaev brothers had a small arsenal of guns and ingredients for bombs, which are all too easy to obtain. But the same gun lobby that just defeated even token gun control legislation ties the hands of the Bureau of Alcohol, Tobacco and Firearms.

Many of the same people who cling to the bogus Second Amendment right to own and use military weapons are the same ones who have paranoid fears of government black helicopters. Yet the NRA has not made common cause with the ACLU to prevent genuine government excesses.

The Obama administration, meanwhile, has continued the one-way national security ratchet. There has been no meaningful pulling back from the misnamed USA Patriot Act that was rushed through Congress after 9/11. If the only president ever to have taught constitutional law, and a liberal Democrat at that, cannot be counted on to have a better sense of the balance of security and liberty, what president will?

I was impressed by the work of the Constitution Project's private, bipartisan commission whose recent report definitively documented that the U.S. government during the Bush years had resorted to illegal torture. Such disclosures help to push back against government excess. Plainly, the government is getting the balance of liberty and security wrong, and the tilt is likely to worsen.

Perhaps we need a private commission of distinguished civil libertarians and security experts to offer a better formula to maximize our security without compromising our liberties. There are some remarkable people, such as former Ambassador to the Czech Republic John Shattuck, who have served both the ACLU and the State Department who could lead it. At such a moment, we appreciate the legacy and loss of Anthony Lewis, who was astutely critical of the folly of recent trends.

We don't want to be a free people who are sitting ducks, nor do we want the grim security of giving up our liberties in order to be safe in the streets. Yes, these values are somewhat in tension, but there is a far better balance than we one we are inexorably moving towards.

Robert Kuttner's new book is Debtors' Prison: The Politics of Austerity Versus Possibility. He is co-editor of The American Prospect and a senior Fellow at Demos.

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