"Your papers are not in order"

My friend Charlie sent me this last night. While the British police may not have said the stereotypical Gestapo line, they certainly acted like the Gestapo in their actions:

Suspicious behaviour on the tube

David Mery
Thursday September 22, 2005
The Guardian

A London underground station was evacuated and part of a main east-west line closed in a security alert on Thursday, three weeks after suicide bombers killed 52 people on the transport network, police said. (Reuters)

This Reuters story was written while the police were detaining me in Southwark tube station and the bomb squad was checking my rucksack. When they were through, the two explosive specialists walked out of the tube station smiling and commenting: "Nice laptop." The officers offered apologies on behalf of the Metropolitan police. Then they arrested me.

Please read the whole thing: Mr. Mery's encounter with British law enforcement is nothing short of mind-boggling.

The police decided that wearing a rain jacket, carrying a rucksack with a laptop inside, looking down at the steps while going into a tube station and checking your phone for messages just ticked too many boxes on their checklist and makes you a terrorist suspect.

I've written at length on NYC Mayor Mike Bloomberg, as of late July, ordering the NYPD to conduct random searches of subway and commuter train passengers' bags, backpacks and briefcases. Since they began, I've wondered if I look "suspicious."

An MTA worker (not a policeman but a general worker) seemed to watch me closely this past Friday evening, as I held my portfolio in one hand while performing minor legerdemain with the other. Having made a brief call as I walked from work to the subway, I still had my cell phone in my hand as I walked down the subway station steps. I was going to put it away in any case, then I remembered I needed to put more money on my Metrocard. So I placed my phone in one of my pockets and retrieved my wallet from the same, which garnered the MTA worker's attention.

I also try not to make eye contact with the police, because I thought that might be construed as suspicious. Apparently it's damned-if-you-do: don't look at the police, and that's suspicious, but so is looking at them. When I open my portfolio and pull out my earbuds, do I alarm anyone in the brief moment before also producing my CD player? What about my usual dark suit, since Osama advised his operatives to wear Western dress to blend in? It's finally a little cool during the evenings, but what about when the weather was warm? Up until a week ago, it wasn't unusual for me to be a little warm when leaving work, if not visibly sweating. Does noticeable perspiration count as "suspicious" behavior?

Under current laws the police are not only entitled to keep my fingerprints and DNA samples, but according to my solicitor, they are also entitled to hold on to what they gather during their investigation...

Charges have been formally dropped, yet they can continue to hold on to his belongings that they seized but haven't returned. Is he still under suspicion of a crime? If so, then why is he not being charged? If not, then by what moral justification -- and by this I mean the highest order of justice, that which is above what any law might say -- can they keep his belongings?

His DNA will be kept on file, and U.S. federal law enforcement likely will have that power very soon. Charlie sent me this today, from the Washington Post:

Bill Would Permit DNA Collection From All Those Arrested

Suspects arrested or detained by federal authorities could be forced to provide samples of their DNA that would be recorded in a central database under a provision of a Senate bill to expand government collection of personal data.

The controversial measure was approved by the Senate Judiciary Committee last week and is supported by the White House, but has not gone to the floor for a vote. It goes beyond current law, which allows federal authorities to collect and record samples of DNA only from those convicted of crimes. The data are stored in an FBI-maintained national registry that law enforcement officials use to aid investigations, by comparing DNA from criminals with evidence found at crime scenes.

This is another of those proposed laws that sound nice but don't hold up to scrutiny in the least -- not after careful application of logic and the principles of justice.

Once Senators Kyl and Cornyn's bill becomes federal law, federal law enforcement can keep your DNA samples permanently once you've been arrested for a crime, even if you were arrested in error. This is not just about people who are still suspects in unsolved crimes: this law applies to people who were once suspected and arrested but were eventually cleared. How does it serve justice to keep DNA records of people that even law enforcement acknowledges are innocent? So when Kyl talks about empowering police to catch perpetrators via DNA taken from them after a previous crimes, how can records on innocent people possibly be useful?

His logic is also faulty. He spoke of catching perpetrators after the first crime, but these methods necessarily require two crimes: the original when a suspect's DNA is taken, and the second where he is linked to the first. I wonder if he's seen too much "Law and Order" (actually one of my favorite shows) where a criminal "got away" because of insufficient DNA evidence. Point of logic: if there's sufficient reason to suspect someone of a crime, a judge can already, without this proposed law, issue a warrant to get a DNA sample from a suspect. It's true that this new law would allow a suspect's permanent DNA records to be compared with the perpetrator's DNA taken from the crime scene. However, if the suspect cannot be found, then he or she couldn't have been prosecuted anyway.

While this law may be useful in linking serial criminals to multiple crimes, there is too great a danger of "Big Brother." Corrupt police officers will be further empowered to pursue "witch hunts," continuing to harass innocent people they have previously arrested. Or they can appear like they're "doing something," when the public demands action but there's no real suspect. Both reasons are partly why we have the Fourth Amendment requiring judges to issue warrants:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

And why must an innocent person expend time and money, essentially pleading with the government to finally exonorate him or her?

"DNA is not like fingerprinting," said Jesselyn McCurdy, a legislative counsel for the American Civil Liberties Union. "It contains genetic information and information about diseases." She added that the ACLU questions whether it is constitutional to put data from those who have not been convicted into a database of convicted criminals.

The provision, co-sponsored by Kyl and Sen. John Cornyn (R-Tex.), does not require the government to automatically remove the DNA data of people who are never convicted. Instead, those arrested or detained would have to petition to have their information removed from the database after their cases were resolved.

Privacy advocates are especially concerned about possible abuses such as profiling based on genetic characteristics.

"This clearly opens the door to all kinds of race- or ethnic-based stops" by police, said Jim Dempsey, executive director of the Center for Democracy and Technology, a digital policy think tank.

Originally, the federal DNA database was limited to convicted sex offenders, who often repeat their crimes. Then it was expanded to include violent felons. Several states, including Virginia, also collect DNA from those arrested for violent crimes.

"It's a classic mission-creep situation," said Jim Harper, a privacy specialist with the Cato Institute, a libertarian think tank. "These guys are playing a great law and order game...and in the process creating a database that could be converted into something quite dangerous."

The CDT's concern about racial profiling is minor. DNA is, after all, just DNA. However, Cato is correct, and the ACLU has the strongest point. This proposed law is wholly unconstitutional, clearly violating the Fourth Amendment. When you are no longer charged with a crime, is it not logical that keeping your DNA records constitutes an unreasonable seizure?

And though there are problems with how the Fourteenth Amendment was ratified, this proposed federal law could violate that too:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

I would say that a government keeping my biological data in a database, after I've been cleared and only because I might be a suspect in a future crime, constitutes a violation of my liberty after I've been given "due process."

Should the Fourteenth Amendment apply only to states' laws, leaving federal law unchecked? Clearly not. We've had decades of jurisprudence, based on the Fourteenth Amendment new rules of citizenship, that apply the First Amendment to all levels of government, not just Congress. With that, and the Supreme Court ruling that federal law can supercede state law, what's good for the goose should be good for the gander: federal law must be held to the same standard that state law is.

I am more concerned, however, with the violation of the Fourth Amendment. Warrants necessarily expire when there is no longer suspicion of criminal wrongdoing. We're now back to the days of J. Edgar Hoover, who did some good in modernizing the FBI, but also a great deal of bad by spying on Americans who he deemed "unpatriotic," but who were in fact innocent of actual crimes.