In my prior post I introduced the DC area Metro system's random bag search program, and provided footage of the transit system's police chief Michael Taborn stating that bag search refusers would "be observed. Be watched," if they were so bold as to assert their Fourth Amendment rights.
As I wrote, that seems to be to show that the bag search program is illegal "even under the permissive 2006 MacWade v. Kelly court ruling WMATA relies on to claim its program passes constitutional muster."
MacWade v. Kelly
The MacWade v. Kelly ruling itself seems quite flawed to me. First, the case history presented by Judge Straub is a deeply depressing story of how a mighty oak called the Fourth Amendment has been whittled down to a toothpick by successive findings of "special needs" justifying ever widening intrusions on privacy and freedom from suspicionless search. Yet in its earliest manifestations, a key, though unacknowledged, aspect of that case history was that the subjects of those searches could avoid the search altogether.
...the danger alone meets the test of reasonableness, so long as the search is conducted in good faith for the purpose of preventing hijacking or like damage and with reasonable scope and the passenger has been given advance notice of his liability to such a search so that he can avoid it by choosing not to travel by air
This history suggests to me the case was not just wrongly decided, but perhaps wrongly argued by the plaintiffs; they may have had more luck suggesting that for many mass transit users, such avoidance is essentially not possible. We've built our lives around the necessity of using mass transit, so that routine suspicionless searches threaten to become an everyday part of our lives in a way they don't for, say, air travellers or museum goers.
But the deeper problem was that the judges gave too much credence and too much weight to the contentions of security consultants like Richard "Against All Enemies" Clarke. Clarke et al asserted that the whole random search program is an effective deterrent, even if a given individual is all but certain not to be screened.
That essentially required assuming (presumably under oath) that terrorists are idiots, flummoxed to a head-scratching standstill by the simple stratagem of random searches at rotating stations.
Yet even I -- not steeped in the evil of terrorism -- can surmise that bad people who want to attack a place could easily adjust to random, laughably thin defenses of that place. Planners could adjust by either sending in more attackers, or giving them more flexible plans: attacking the shopping center next door if they happen to encounter a screening station -- or , as Ms. Zinkl pointed out, a bus instead of a train or platform within the same system.
"May decline to be searched." Period.
Still, while swallowing Clarke's guff whole, the court admitted there was a privacy issue at stake, and remained unwilling to give up on the Fourth Amendment altogether. While at pains to insist it didn't matter a great deal to them, the three judge panel still ruled that the New York procedures were "minimally intrusive" and "narrowly tailored", and counted the ways, including:
(1) passengers receive notice of the searches and may decline to be searched so long as they leave the subway [...]
To my way of thinking, that's that. It's not "may decline to be searched, but should expect a knock on the door from the FBI." It's simply "may decline to be searched." Period. A criterion established to preserve a fig leaf's worth of the Fourth Amendment simply can not mean the person exercising that right can expect to wind up on some FBI agent's to-do list. Thus, Taborn's comments on January 5th illustrated a new flaw in an already flawed policy.
As I mentioned in my first post here, the course of the local debate over bag searches echoes familiar national ones. Two elements of our nation's sled ride down the slope of diminishing civil liberties are (1) the near absence of any brakes applied by civilian oversight, which defers almost completely to (2) security 'experts' pushing measures that are highly questionable -- both in terms of civil liberties and in terms of security -- as necessary and effective.
Thus, new board chairman Catherine Hudgins (day job: Fairfax County supervisor) was reported to have claimed the issue was "out of our hands" in remarks during a February 7 public meeting in Reston, Virginia. WMATA board discussions of the issue on January 27th and February 10th were similarly disappointing.*
On both occasions, some directors framed the bag search program as a response to a specific threat, when this was explicitly denied by their own police department. On both occasions, directors such as Downey, McKay, Hudgins and Downs said or implied that the General Manager and Chief of Police were authorized to implement the bag search program on their own, and that the directors' job -- far from living up to their oaths to the Constitution -- was mainly to communicate to the public "what will happen to them," in Hudgins' rather unfortunate choice of words.
That being the case, the task of reversing or setting limits to Metro's bag search program has fallen to a coalition of local and national civil liberties groups including the ACLU of the National Capital Area (ACLU-NCA), Defending Dissent Foundation, the Bill of Rights Defense Committee, and local groups such as Montgomery County Civil Rights Coalition (a group I'm with) and DC Civil Liberties Coalition. We've set up a campaign to lobby directors directly.
I also strongly urge readers in the area to join with us in a petition and education campaign about this infringement on our Fourth Amendment rights; here are ACLU-NCA and Montgomery County links to learn how, when, and where.
[adapted from a post at newsrackblog.com]