this one's not quite dead yet
Shoot first and ask questions later
Posted: 2005-07-23 18:26
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Author: Phil Gengler
Section: Politics

In the wake of two rounds of explosions in London's Tube rail system, there has been a response on the part of government here in America to increase the apparent security of the transportation system, especially in the crowded NY/NJ area. After the July 7 bombings, more police were assigned to make patrols of train stations up and down various lines, with some officers also riding on the trains. Following the (smaller) incident on July 21, law enforcement officials instituted a policy of performing "random" bag checks of passengers in the NYC subway and on the LIRR.

There has been quite a bit of discussion about this among 'railfans' at a forum I frequent. There was also a fairly active thread about it at MetaFilter. The majority of people whose opinions I've come across seem to feel that the searches are "good idea," since even if they fail to stop an attack, they make people feel safer.

While I'm willing to concede that such searches may make people feel safer, they are not actually making people any safer, especially since, with the subway and LIRR searches, people are free to decline to be searched and then walk away. Firstly, since the subway and railroads (in this area, at least) are "public transit" and opened by local government, there is no ground for preventing someone who pays the fare from riding. Being forced to consent to a search of a closed container (a backpack, for example) in order to gain access to public infrastructure seems a blatant violation of one's Fourth Amendment protections against "unreasonable searches" (for the record, I feel the same way about being subjected to such searches when entering courthouses and other government buildings). Since the searches are conducted at random, or in the case of courthouses and government buildings, on everyone, there is no "probable cause" for such a search. The fact that someone is carrying a bag onto a train does not make them any more likely to commit a crime, since thousands of commuters bring bags, briefcases, etc. onto trains every day, and have for years.

Second, by allowing people who decline to be searched to walk away (instead of being detained, which I suppose is one bright spot in this whole mess) just makes it possible for someone actually looking to get a bomb onto a train to just walk away and try again later or at a different station. Speaking to probabilties, one comment on MetaFilter noted that even a mandatory search of passengers would only have stopped one of the four bombs in the first London attack.

Third, such measures open up other places where a terrorist could detonate a bomb. Rather than have to get it on board, one would just need to get inside the station, to the turnstile area (for the subway) and detonate it during rush hour. The stepped-up security in stations also makes it more likely that a terrorist would just avoid them and concentrate on a different target that does not have the same level of security (a bus, for example).

This has come in a number of places (here, for example). All our response to terrorism thus far has been reactive. After 9/11, airline security was stepped up, and then there were attacks on other targets, such as the rail system. Now that security has been stepped up there, as one example, movie theaters could be next. After a theater was attacked, security at those would be stepped up, and then the next attack would be somewhere else, etc. Given that most governments don't have the money to pay for even the current expanded security in the long run, it's obvious that we can't protect everything. I don't believe we would want to, even if we could. Even if every airport, train station, theater, museum, office building, etc. had an armed patrol, that would still leave individual residences open. Short of permitting armed agents to live in our homes (or have such legislated upon us by the government, in contravention of the Third Amendment, since no war has been formally declared, and our current "state of war" is merely a common understanding and not the legal one).

Much has been said about one's "right to live" being more important than any "right to privacy." I have to agree, since without being alive, it is impossible to exercise any other rights. I do not believe, as others do, that a "right to live" is so important as to warrant overriding other rights, which, given the definition of a right as something inherent and not given, like a privelege, doesn't make much sense. It is important to balance all rights, not just a select few. It is also important to remember that our Constitution includes a Ninth Amendment, which reads "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." In contrast to those who claim that the Constitution does not recognize a right to privacy, the Ninth Amendment clearly does (despite how much this amendment has been gutted by the courts over the years).

It is commonly recognized that our expectation of privacy is significantly diminished when we enter a public place. Courts have ruled, for example, that it is not illegal to take pictures of someone in a public place. One thing to note about this, though, is that we choose how much we want to reveal about ourselves. Someone can cover their entire body from head to toe, and thus ensure that virtually nothing is learned about them. On the other hand, we could all walk around without any clothing whatsoever, and keep nothing about our appearance secret. I don't think that society as a whole is going to give up on clothing anytime soon, as we recognize that there are some personal things best left private. The same logic should apply to carrying something through a public area. If I'm carrying a copy of the "Anarchist's Cookbook" (or even an almanac) under my arm, I shouldn't expect that people should avert their eyes not look at it. If I'm carrying it in a closed bag, however, I have some expectation of privacy. After all, we don't generally tolerate random people searching through our closed bags. There is an expectation that what is placed out of public view was done so because the owner or carrier didn't want everyone to see it.

The same goes for carrying drugs, with the only difference there being that drugs have been labeled 'illegal' by the government. With the subway searches, the New York times reports that "anyone found to be carrying illegal drugs or weapons will be subject to arrest." If the checks were confined solely to bombs, then it might not be so bad; however, with the scope of the search including drugs (and presumably also other illegal items, like drug paraphernalia) this is a blatant violation of the "unreasonable search" clause. The Supreme Court has ruled that if something like drugs or weapons are found during the course of an otherwise legal search, the drugs can be used as evidence in a case about those. With those decisions, however, the items found were incidental to a search conducted either with a warrant or consent. While these searches also require "consent," it's basically the same as an officer wanting to search someone's home, and if they don't get consent, telling the person they couldn't live there. There is no "implied consent" law for carrying bags on the subway the same way there is for a breathalyzer test when driving (which, incidentially, I think is blatantly unconstitutional).

Where do we draw the line here? It's possible that a terrorist might load up a car with explosives and blow up a bridge, so should be all be required to consent to having our cars searched at random, or else we can't use the roads? You could walk over a bridge with explosives and detonate it, so should we have to consent to searches before we're allowed to walk on a public street? If we continue to allow our rights to be eroded by "security theater," as some have called the actions being taken, what right to we have to call this country the land of the free?

One more thing I want to cover goes back to the idea of the "right to live." On Friday, British police shot and killed a man in a Tube station. Reports indicate that the man was "acting suspiciously," by wearing a heavy coat on a summer day and avoiding eye contact with police. It is believed that the man was told by police to stop, but instead hurried to get on a train. He was shot five times at point blank range and died. Today, the New York Times is carrying a story headlined "Britian Says Man Killed by Police Had No Tie to Bombings." In the name of security, an innocent man was shot and killed, by the "good guys." What I find more repulsive about the story was that he was shot at point blank range, which means the officers were right behind him. Some witness reports indicate that the man had tripped; I don't know for certain if this was the case, but in any event, if the police were that close to him, why didn't they take him into custody? There was nothing to be lost from it; if he was carrying a bomb, he was stopped before he could detonate it, and police would have the chance to learn something about the operation (certainly, no less than if he were dead). If, as was the case, he was not detonating a bomb, he gets to go on living. What happened to this man's "right to live?"

Over at, I posted a hypothetical, which relates to the London situation. It goes like this: I'm out one day in early/mid fall, and the day is much warmer than I was dressed for (expecting a colder temperature; perhaps it's just an unseasonably warm winter day, and I've got a bulky coat on because it's all I've got). I'm on way back home from school, so I've got a backpack full of books and a laptop, and I'm in a bit of rush since I've got a doctor's appointment, so I'm trying to weave in and out of people to get through and to the train before it leaves. Maybe at this point an officer yells "Stop," but I don't look up because I don't think it's directed at me, or I don't hear it.

Should the police shoot first and ask questions later? The only thing I may have done wrong was not turn around and respond to the officer yelling "Stop," but assuming I heard it, how was I supposed to know it was directed at me and not one of the people in the crowd?

Measures such as the bag searches do very little to make anyone more secure, or deter a terrorist attack. They do, however, have the effect of giving people the idea that such measures are necessary, and that they must give up some liberty to be safe. As the ubiquitous Ben Franklin quote goes, "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety." Those that give up that liberty for the delusion of security also deserve neither liberty nor security, but those of us who do value our liberty must not let those people give up our liberty, for it is not theirs to give nor the government's to take.


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