Saturday, August 06, 2005

It's about time

Previous related posts:
NYPD to commence random searches of bags and backpacks (original)
The failure of random searching (follow-up)
So I'm now a "socialist whore for terror" (follow-up)

Just over two weeks ago, under orders from Mayor Mike "Führer" Bloomberg, the NYPD began "random searches" of subway and commuter train passengers' bags and backpacks. From the onset, the New York Civil Liberties union decried the searches as unconstitutional, but initially they decided not to mount a challenge in court. They finally filed suit on Thursday, seeking an injunction against the searches. The defendants are Ray Kelly (NYPD Commissioner) and the City of New York.

John Podhoretz (go to for login information if you don't want to register) essentially says the NYCLU's suit is wasting everyone's time. No, it is the random checking that wastes everyone's time. If the NYCLU's suit succeeds, it will have saved us from wasting time being searched at turnstiles, and it will in no way increase our danger from terrorists.

On the other hand, Charles Peña of Cato proposed an eminently sensible alternative that is less intrusive and infinitely more effective: bomb-sniffing dogs. "Any searches as a result of the dogs picking up certain scents would be the result of probable cause and the likelihood of catching a would-be bomber would increase exponentially. Furthermore, the presence of such dogs might actually have a deterrent effect as a terrorist would know that the chances of getting caught would be much greater than random searches."

I read the NYCLU's complete complaint, but their claim that "the only people being searched are innocent users of the subway system" is not true. At least a couple of people (not related to terrorism) stupidly agreed to searches and were caught with weapons. I don't see their weapons possession as intrinsically criminal, but they technically violated current law. Thus the mayor's office can truthfully counter that the program has indeed helped catch criminals, though not terrorists. That can color the public's perception of the rest of the NYCLU's claims: if the NYCLU erred on something simple, what about the rest of its assertions? The public might even come to believe the searches are making the subways safer, even if they're not catching terrorists.

These are the most significant parts of the complaint. My commentary will be brief, since I don't want to repeat too much what I've written previously:
1. This lawsuit challenges a program, unprecedented in this country, under which millions of innocent New Yorkers are subject to suspicionless searches by the police. The New York City Police Department has adopted and is enforcing a criminal, law-enforcement policy and practice of searching the possessions of those seeking to enter the New York City subway system without any suspicion of wrongdoing whatsoever. Since the subway search policy was put into effect on July 21, 2005, police officers have searched the purses, handbags, briefcases and backpacks of thousands and perhaps tens of thousands of people, all without suspicion of wrongdoing. On July 27, the NYPD announced it would continue its subway search program indefinitely.

2. Under the subway search program as the Police Department has implemented it, the NYPD is not conducting searches at most subway entrances at any given time, is giving advance notice about searches at those entrances where searches are being conducted, is allowing people selected for a search to walk away, and is not basing the searches on any suspicious activity of individuals. Consequently, as common sense would suggest, the NYPD's subway search program is virtually certain neither to catch any person trying to carry explosives into the subway system nor to deter such an effort. Indeed, given the way the Department has implemented its search program, the only people being searched are innocent users of the subway system.
So it's not just large bags, backpacks, luggage and so on. The NYPD has decided to search handbags too. Why? Are they afraid they're committing "discrimination" and not checking enough women?
3. Though the NYPD's written subway search guidelines indicate that riders are to be selected for search in a nondiscretionary manner by using a numerical formula (e.g. one in every five or ten people with bags), the volume of people entering subway stations and the lack of NYPD control over that volume result in many people being selected for search in a discretionary and arbitrary manner, which creates the potential for impermissible racial profiling.
As I've said, random searches cast a net with extremely wide holes. Terrorists can simply utilize the law of large numbers, sending in a bunch of operatives at once. Odds are that some, even most, will get through.

Racial profiling can be valid when there has been a specific crime committed by a person of describable skin color. If a fleeing suspect is a black male, then police will naturally waste their time stopping white, Hispanic or Asians. But take my "Spot the terrorist" quiz again, and honestly ask yourself how many of them really look "Middle Eastern." None do.
4. The plaintiffs are law-abiding New Yorkers who ride the new York City subway system daily and who routinely carry into the system bags containing personal items and private materials. All of the plaintiffs are subject to potential search under the NYPD search policy, and some already have been searched by police officers. All of the plaintiffs object to the police searching their personal possessions as a condition of entering the subway.
It's all about the Fourth Amendment. No warrants issued, no probable cause -- so by what authority can the NYPD stop people at random, or even by "profiling"?
5. The constitutional right of people not suspected of any wrongdoing to be free from police searches is one of the most fundamental protections of our free society. While concerns about terrorism of course justify -- indeed, require -- aggressive police tactics, those concerns cannot justify the Police Department's unprecedented policy of subjecting millions of innocent people to suspicionless searches in a way that is virtually certain not to identify any person seeking to engage in terrorist activity and will not have any meaningful deterrent effect. Under our constitutional regime, the Department has many tools and strategies available to it to respond to legitimate concerns about terrorism, and the plaintiffs have no objection to the Department conducting appropriate searches.
We "civil liberties Chicken Littles" oppose random searches, but that in no wise means or implies that we don't recognize terrorist threats. We are simply saying you cannot rescue us from terrorists by putting us under a police state. The Islamofascists already know that tyranny under our own government is the next best thing to their own religious dictatorships. If they cannot conquer us, they will win by default by plunging us into a society governed by fear.

The filing justifies this as a matter for the federal court with regional jurisdiction, since this involves the Constitution (Title 28, Part IV, Chapter 85, Sections 1331 and 1343 of the United States Code). God help us if the case is assigned to the same federal judge who bungled up this case. Such jurists are liable to find the Constitutional unconstitutional one of these days.

The following are listed under the heading "FACTS" and are indeed so:
18. Many of those relying on the subway each day carry with them into the system purses, handbags, briefcases, bookbags, gym bags, luggage, and backpacks, many of which contain personal items in which riders have a substantial, legitimate, and important expectation of privacy.
It's not just an expectation of privacy, but a right to privacy.
19. On July 21, 2005, several hours after an attempted terrorist attack on the London subway system, New York City Mayor Michael Bloomberg and New York City Police Department Commissioner Raymond Kelly announced that the NYPD would start conducting "random" searches of persons seeking to enter the New York City subway system.

20. At the press conference at which city officials announced the subway search policy, Mayor Michael Bloomberg stated that the search policy was not in response any specific threat against the city.
That's a very important admission which I noted from the day it was announced. The searches are not in response to any "specific threat," so they must be because of an elevated threat. After all, if there's no increased threat, then why are the searches starting now? Why didn't they commence before? Is there something new that Bloomberg wants to tell us?

I'll say this again: if there's a serious, credible threat, then let's do the proper thing. Governor Pataki should call out the National Guard, suspend the writ of habeas corpus, and impose martial law on New York City. Let people see the full horror of the police state, not this veiled facade of liberty. Perhaps then they'll understand how precious personal liberty really is.
21. Upon information and belief, Commissioner Kelly made the decision to institute the subway search program without consulting with the Metropolitan Transporation Authority, which operates the subway system.
I was unaware of this. It means the NYPD usurped the authority and responsibility that the MTA's own police should have had in the first place. I've seen MTA police at Grand Central, as well as National Guard members carrying automatic rifles, but the searches are being conducted by the NYPD. So even if they were legal (which they are not), it should have been the MTA commencing the searches, then asking the NYPD for help with manpower shortages.
22. Since July 21, 2005, NYPD officers have searched the possessions of thousands, if not tens of thousands, of people seeking to ride the subway in stations across the City. Upon information and belief, searches have taken place at most of the 468 subway stations in the New York City subway system.
I've only noticed searches a few times, and I regularly go through three major stations (and sometimes through a couple of minor ones). This is a symptom of limited manpower. The NYPD was already stretched so thin that it cannot effectively respond to existing criminal activity. So why must it be saddled with random searches, which aren't even that effective anyway? Random searches aren't just an illusion of safety: they're an illusion that we're doing something practical.
23. Police officers are not limiting themselves to searches According to a July 23 report in the New York Times, police officers at a Jamaica, Queens subway station required subway riders who were searched to produce identification; though these people were not accused of any wrongdoing, the officers recorded their personal information in writing. According to the same story, officers at a subway stop at 42nd Street and 8th Avenue in Manhattan "briefly rifled through papers and notebooks" found in purses or backpacks.
Demanding identification? Recording those people's identities? Rifling through papers? How can papers possibly be explosives?!

God knows the NYPD would probably look suspiciously on a copy of the Constitution.
24. Under the NYPD's policy and practice, subway riders are being selected for search without suspicion that the person has engaged in or will engage in any wrongdoing.
Damned right -- there's no probable cause at all.
26. At any given time, searches are taking place at a small number of entrances to the 568 stations in the New York City subway system. When searches are taking place at some subway stations, many if not most of the system's other stations are available for entry without any searching taking place. And even at the stations where searches are taking place, they are not always taking place at all entrances to the station, leaving people free to enter that same station without risk of being selected for a search.
I've said this, too, all along. The net's holes are just too big to catch terrorists.
30. As a result of the fact that people are given advance notice of searches at a particular subway entrance and are permitted to walk away if selected for a search, the search program instituted by the Police Department is virtually certain not to catch anyone seeking to bring a bomb into the system. Rather, the only people being searched are people who present no threat of bringing explosives into the subway system.

31. As a result of the fact that the Police Department is conducting random searches at only a small number of entrances to the subway system, terrorists are free to enter the system without fear of being subjected to a search.
Exactly what I've been saying. It's rarely more than several blocks to the next Manhattan subway station. The only terrorists this net will catch are incredibly stupid ones, and that's assuming the unlikely event they'll run into an NYPD checkpoint and be searched.
32. According to published reports, the Police Department will arrest any person who is searched and who, as a result of the search, a police officer learns may have committed a crime.
Doesn't that sound like a good idea? Why, then, shouldn't we establish checkpoints like this all over -- not just at NYC subway entrances, not just all over NYC, but all over the U.S.? Why aren't the authoritarian conservatives calling for those as "reasonable searches" that will further protect society? Because of the Fourth Amendment, which was designed to protect us from such an intrusive, innately suspicious Big Brother government.

Jefferson admonished in 1798, "In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution." He knew men in authority cannot be trusted implicitly, particularly when they receive (or usurp) even more powers. Nor was this was not a theoretical conclusion: it was borne of the colonials' bitter experience as British subjects. Even the Constitution, Patrick Henry and others believed, formed too strong a central government, one whose officials could assume too many powers not originally intended for them. Thus it was necessary to create specific chains: the Bill of Rights. Now the situation has reversed itself: those in government are rarely chained, because they have surreptitiously transferred the shackles upon us.

I'm still trying to figure out how a couple of non-terrorists got arrested on weapons charges. Let's just dismiss them as stupid for consenting to searches, but we cannot do the same for Islamic terrorists. They had the patience to plan the 9/11 attacks for years, to coordinate the deadliest, most complex terror attacks in history. Richard Reid, whose "shoe-bomber" attempt I personally believe was just an experiment and not that meticulously planned, still was close to succeeding.
35. ...[Plaintiff] Mr. Shonebaum asked for the officer's name and she gave it to him, asking "Aren't you happy to have your bag searched?" He replied that he was not because it was a violation of the Fourth Amendment.
That says all: the police actually think we should be grateful that they help trample all over the Constitution.
36. Plaintiff Joseph Gehring, Jr., ...frequently carries with him a bag containing legal papers as well as personal effect. He is deeply offended by the prospect of having his bag searched by police officers as a condition of riding the subway system and is concerned that he may ethically prohibited from allowing police officers to court with a briefcase containing client files.
It doesn't matter if he carried military secrets, confidential papers or cooking recipes. He still has a right to privacy unless he is suspected of having actually committed a crime.
37. Plaintiff Partha Banerjee...often carries in his backpack lawful, written materials he believes police officers may find objectionable. He is fearful that, if he is searched, he might be singled out for mistreatment, including unlawful interrogation and detention, because of the political materials he carries. As someone with brown skin, Mr. Banerjee also is concerned that, with the new fear and paranoia, he is more likely to be singled out by police officers for a search. In September 2003, while seeking to enter a political rally on Wall Street where he was scheduled to speak, Mr. Banerjee had his backpack unlawfully searched by NYPD police officers and was upset by that search.
September 2003. Was there an increase in the terrorist threat level that New Yorkers weren't told about?
38. On his way home from work on July 22, 2005, [plaintiff Norman Murphy] entered the A/C/E Chambers Street subway station. As he approached a turnstile, a police officer asked him if he could look in his bag. Mr. Murphy responded, "Absolutely not." The police officer appeared startled and did not say anything in response. Mr. Murphy left the station and walked a few blocks to a nearby R/W station instead, taking that train uptown to 42nd Street...
Once more, it's all too easy to get past the checkpoints. You don't even have to take a bus or a cab: in midtown and downtown, it's usually just a few blocks to the next subway station. The searches are as effective in deterring terrorists as the daughters of Danaüs drawing water with their sieves.

I don't always agree with the ACLU/NYCLU, but I hope this case succeeds. It must.


Blogger Jacqueline Mackie Paisley Passey said...

Do they have enough bomb-sniffing dogs to cover all those stations? I believe there is quite a lag time in producing new bomb-sniffing dogs, the training is quite demanding and many dogs wash out.

Sunday, August 07, 2005 2:46:00 AM  
Blogger Perry Eidelbus said...

I don't know how many there are, but dogs would be better than the current waste of human labor. The NYPD are fools if they really think they're making it hard for terrorists. Harder, yes, but not significantly.

Sunday, August 07, 2005 12:19:00 PM  
Anonymous Eric said...

Perry, don't make the mistake of seeing this a "privacy" issue. It is not. It's a property issue, which was the entire point of the Fourth Amendment in the first place. I have the right to keep the government out of my property so long as I have not done anything criminal. And the government must establish said crime (or at least a good suspicion of it) before violating my property rights.

Searching our bags (and other possessions) without a warrant says, in effect, that we are no longer "secure in their persons, houses, papers, and effects".

See my post on the topic for more on the property rights argument.

I'm not surprised that the NYCLU used the "right to privacy" argument, they have been instrumental in creating that constructed right. The truth is, you have no reasonable expectation of privacy in a public place and there's no such thing as an inherent right to privacy. But the fundamental right to property is enough, and more than enough, to deem this behavior immoral and unconstitutional. Aside from that it fails, as you have noted many times, the consequentialist test of being effective.

Sunday, August 07, 2005 2:15:00 PM  
Blogger Perry Eidelbus said...

It's true there's no "right to privacy" as the ACLU and derivative groups claim. I don't I don't try to define it as anything but a violation of personal security, which is indeed derived from property rights. That's why your car is considered an extension of your home for purposes of searching.

At the same time, though, we need to put our protestations in terms that most people can understand. If only a relative few of lawyers and judges have ever read the entire Constitution, what about most people? So I find myself with the strange bedfellows of the ACLU/NYCLU. They may not make the precise arguments I would, but then again, an ally in war may not fight precisely as you would.

Sunday, August 07, 2005 2:29:00 PM  
Anonymous AK said...

Damn Perry and Eric,

Ever here of the 9th amendment? Sorry, but WTF is up with that "constructed right" stuff? Do you know how close we came to not getting the Bill of Rights at all?

It'd both a 4th amendment and a Right to Privacy issue.

Although I concede that there are real people out there that really want to hurt us, the sad truth is they are searching people on the grounds that it makes many people feel safer if they see someone -doing- something. If it means Lady Liberty gets another jab in the gut so be it (it's a wonder the old gal is still breathing). There is always the chance that they, despite all odds, might actually catch and prevent a terrorist act.

During World War 2, the country pulled together and formed millita units to scan the sky for the enemy. They ran scrap metal drives and rationed gas. None of those types of actions would make any sense in this kind of conflict we are seeing now, nor would they have been particularly effective during Vietnam or Gulf war one. Worried helpless people, who can do nothing to improve their lot are bad for the economy. A poor economy is bad for national defense and domestic tranquilly.

And then we have the whole “War on Freedom” thingie. Don't worry, fifty years from now the President will hand a token payment over to some old detainee, and officially apologize on behalf of the nation, just in time to make the evening news, and all will be right with the world again.

Sunday, August 07, 2005 11:15:00 PM  
Anonymous AK said...

"As I've said, random searches cast a net with extremely wide holes. Terrorists can simply utilize the law of large numbers, sending in a bunch of operatives at once. Odds are that some, even most, will get through." -Perry

If they are caught at the entrance they can just detonate right there. First prize is creating terror on the subway. Second prize is creating terror at the subway entrance and making a hero at the same time. They go for the gold but might just take the silver.

Sunday, August 07, 2005 11:21:00 PM  
Blogger Perry Eidelbus said...

The problem, AK, is that terrorists can simply refuse to be searched. The most the NYPD will do is turn them away, so then the terrorists take a little jaunt to the next subway station.

They could have struck NYC long ago, if they wanted. If they wanted, because without a full lockdown (the start of martial law), there's no way to completely prevent them from bombing the subway. I fear they're passing up these opportunities for a really big attack.

Monday, August 08, 2005 12:34:00 AM  
Blogger Perry Eidelbus said...

By the way, no offense, and none taken by me, but I'm quite aware of the Ninth Amendment. I'm just saying "privacy" isn't quite what civil liberties groups usually make it out to be. I'm also aware that we not only didn't have a Bill of Rights for a few years, but many of the Constitution's framers didn't think it was necessary.

Monday, August 08, 2005 12:42:00 AM  
Anonymous AK said...

minor disconnect here.

OK so today we are a “free” nation, and by respecting peoples civil rights, the bomber shows his “government issued, REAL ID”, which the future hero scans at the checkpoint. He then asks to search terror guy. Terror guy declines, cites his rights, and leaves the area. Terror guy then walks to the next station and boards without hitting the dragnet.

Bomb goes off. People die. Terror is spread.

The global database is used to show that terror guy circumvented dragnet. So Lady Liberty gets a few more teeth knocked out. More civil liberties are lost.

Terror guy 2 hits dragnet, but this time he can't board, and he can't leave. So terror guy 2 blows himself up right then and there at a busy entrance and kills and maims dozens. Terror is spread, a hero is born, 72 virgins, humble slave of god.

Monday, August 08, 2005 1:00:00 AM  
Anonymous AK said...

Excuse me, Perry, that's just my snarky posting style.

Monday, August 08, 2005 2:12:00 AM  
Anonymous Eric said...

AK, from a strictly legalistic perspective, the 14th Amendment means that the states (and cities, in this case) cannot abrogate our 4th Amendment rights to be secure in our property. The 9th Amendment isn't at issue here.

By the way, in my opinion the Bill of Rights was a mistake, just as Madison argued it would be. Essentially the view has come to be that we only have those rights guarunteed in the Constitution, and no others, rather than what Madison et al intended, which is that the government only had those powers enumerated in the Constitution.

Yes, the right to privacy is a constructed right. It is not an inherent, or natural, right. It is constructed from a combination of your right to property and right to liberty, basically. The fact is that if your right to property were not infringed by the government there would be no need for us to have created the "right to privacy".

Monday, August 08, 2005 2:55:00 AM  
Anonymous AK said...


I would be of the opinion that the Constitution was a mistake, and the Bill of Rights is its saving grace.

Perhaps the federal government was a wee too weak. It apparently didn't even have the ability to raise revenue. In any case the Convention in 1787 was meant to be a caucus for revision, not scrapping the entire thing and starting over.

Rhode Island sent no delegates, they evidently were suspicious. Thomas Jefferson was safely overseas, serving as an ambassador to France. Patrick Henry refused to attend, declaring he "smelt a rat." Guards were posted, to keep the curious away. Records of the debate went unpublished for years.

Hamilton and his camp clearly wanted a monarchy, but he wisely knew that he was unlikely to get support for that. What he proposed was a president and congress that would hold office for life, on good behavior. This apparently was seriously considered.

I bring that last point up because when Hamilton, and Madison and others argue that the Bill of Rights was a mistake, and and that any list of rights would be construed as the only rights that one retained. Fortunately, that viewpoint did not prevail.

Essential reading to go along with the Federalist Papers, which were written by James Madison, Alexander Hamilton, and John Jay, would be the relatively unknown Anti-Federalist Papers, written to encourage the rejection of the new Constitution, mostly on the basis that the new Constitution lacked a statement of individual rights.

The newly formed government quickly enacted an embargo against Rhode Island, which refused to join the new union. Rhode Island, of course, eventually caved, signing away some of its independence.

Shortly after that the vested taxing authority started taxing liquor, giving the well connected eastern distilleries a tax of six cents a gallon, while screwing the small individual distillers out on the fronter by taxing them at a rate that was 50% higher.

It's a shame that this and future rebellions we so effectively squashed, to the point that such a thing would be virtually unthinkable in this day and age. Unfortunately, the caliber of the average individual has gotten so soft over the years that I think that will be our nations eventual downfall.

Monday, August 08, 2005 8:10:00 PM  
Anonymous AK said...

oops, left this out.

To show how close we came to a monarchy I'd like to point out Benjamin Franklin's responce to the question of what kind of government the delegates had created after the convention in 1787. His answer was: "A republic, if you can keep it."

Monday, August 08, 2005 8:19:00 PM  
Blogger Perry Eidelbus said...

Oops, I forgot we had this thread going. I'll have to post a little reminder post.

I don't think the Bill of Rights was a mistake, nor was the original unlimited Constitution a mistake. It comes down to how each was perceived by politicians. The Constitution wasn't intended to create a very strong, virtually unlimited federal government, nor was the Ninth Amendment ever intended to be ignored. Still, they happened. That's why I said to Stephen Littau, we don't need more laws, just better judges. It's not even "misinterpreting" the law -- the bad judges today totally misread what was written plainly. If we rephrase the Second Amendment as Bruce Tiemann did, we realize how clearly it was written:

"A well-crafted pepperoni pizza, being necessary to the preservation of a diverse menu, the right of the people to keep and cook tomatoes, shall not be infringed.

I would ask you to try to argue that this statement says that only pepperoni pizzas can keep and cook tomatoes, and only well-crafted ones at that. This is basically what the so-called states rights people argue with respect to the well-regulated militia, vs. the right to keep and bear arms.

Patrick Henry viewed federalism with as much pessimism as anyone. I wonder what he'd think of today, when Congressional law trumps state law, when that was never intended?

My political curiosity, exclusive of my anxious solicitude for the public welfare, leads me to ask who authorized them (the framers of the Constitution) to speak the language of "We, the People," instead of "We, the States?"

He never did see the Constitution as applying to the people, only to the states. Even Madison's mild federalism, Henry felt, was too wide a road to a great centralization of power. Madison was right in that the ideals, and the first few decades of implementation, were good for our country. Henry was also right, because things degenerated.

Wednesday, August 10, 2005 11:08:00 PM  
Anonymous AK said...

Oops, I forgot we had this thread going. I'll have to post a little reminder post.

it's OK, we're nicking pits, or somthing like that.

Saturday, August 13, 2005 11:05:00 AM  
Blogger Perry Eidelbus said...

It's ok, AK, I forgot to make an entry pointing out that I had replied. I need to find out in Blogger how to list the last 10 comments.

Saturday, August 13, 2005 11:30:00 AM  

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