In mid-December, the Washington Metropolitan Area Transit Authority, or WMATA — better known as “Metro” — and its police force announced a new random bag search policy :
…police will randomly select bags or packages to check for hazardous materials using ionization technology as well as K-9 units trained to detect explosive materials. Carry on items will generally not be opened and physically inspected unless the equipment indicates a need for further inspection.
As described, the policy allows people approaching a station to decide to refuse the screening, of course — they just can’t then bring their bags with them:
Anyone who is randomly selected and refuses to submit their carry-on items for inspection will be prohibited from bringing those items into the station. Customers who encounter a baggage checkpoint at a station entrance may choose not to enter the station if they would prefer not to submit their carry-ons for inspection.
Opponents of the policy (including myself) deemed the policy unconstitutional, ineffective, and misguided — security theater that demands public acceptance of routine, suspicionless, unaudited (and therefore possibly profiling-based) searches for almost precisely zero security in return. Thanks in part to a good deal of mobilizing by opponents — including an online petition  and an evening of nearly unanimous public opposition  — WMATA’s “Riders Advisory Council” (RAC), the institutional voice of Metro users, overwhelmingly passed a resolution calling on the Board to halt the program, and require their police department to consider alternatives in consultation with civil liberties advocates.
The RAC is — as its name implies — simply an advisory body, and it’s not clear how much weight the WMATA board of directors will give their recommendation. While the policy was apparently all but sprung on the board by Chief Taborn and WMATA General Manager manager Sarles, it’s not clear whether the board will even take it up at the next board meeting — scheduled for 1pm next Thursday — let alone come to a decision about it.
Be observed… be watched
As welcome as the 15-1-1 RAC vote was, the real news of the January 5th RAC meeting may have happened earlier in the meeting. During a brief question and answer session, Metro Transit Chief Taborn confirmed that bag search refusers would “be observed… be watched” for their decision by law enforcement:
Metro Transit PD Chief Taborn answers questions by Riders Advisory
Council members Diana Zinkl and David Alpert about the random bag
search policy begun in December. (Excerpt transcript )
DIANA ZINKL: And also, could you also clarify, one question that came up at our last meeting, where there was some confusion – the answer either from Deputy Chief Pavlik(?) or the other officer who was in attendance — is what happens if someone’s approaching a rail station, is stopped, does not consent to the search, turns around and leaves and goes to get on the bus.
CHIEF TABORN: What happens is that according to our policy, that person is free to go. But with regards to law enforcement initiatives, there will be some actions, there will be some observations, because we need to establish why that particular person chose not to do it. So there will be some activity that’s afoot.
DIANA ZINKL: Can you give us some specificity — given that I think everyone of us in this room has been in the situation that if there’s something that’s not working with the rail system you go and get on a bus — given that this is a very likely scenario, can you be a little bit more specific as to what’s actually going to happen to that person and what they will be… what their experience will be? Because – I think – the reason I’m asking is that I think this is a very real scenario, and the answer that we received, that was received on Monday, indicated a fair amount of ambiguity and uncertainty from the officer…
CHIEF TABORN: Well I can tell you without any uncertainty that that person would be observed. And what that means to you is different than what it means to me, but that person would be observed.
DIANA ZINKL: Well could you clarify what ‘be observed’ means?
CHIEF TABORN:Be observed. Be, be observed. Be watched.
DIANA ZINKL: And when they try to get on the bus, what would happen?
CHIEF TABORN:That will be activities that law enforcement will use just as any regular law enforcement has to establish probable cause, to find out who, what, where, why, and when.
As I wrote at the Montgomery County Civil Rights Coalition blog, it got worse . When RAC chair David Alpert followed up, Chief Taborn elaborated that “[a]t some point in time, as we work with the FBI and as we work with the Department of Homeland Security, we establish why” the person refused the search.
MacWade v. Kelly
It may not be obvious that this was a bombshell, but Chief Taborn seems to me to have admitted Metro Transit PD is engaged in an illegal program — even under the permissive 2006 MacWade v. Kelly  court ruling WMATA relies on to claim its program passes constitutional muster.
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.
A second problem was that the judges gave way too much credence and too much weight to the contentions of security consultants and bigwigs (including Richard “Against All Enemies” Clarke). Clarke et al asserted that the whole random search policy acts as 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 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. The hypothetical situation Taborn discussed on January 5th illustrates a new flaw in an already flawed policy. If a bag search refuser were indeed not merely prevented from using WMATA services, but put under surveillance or investigation as well, he or she should be able to successfully sue WMATA — and point to MacWade v. Kelly in doing so.
If I’m right about that, I think that random bag search opponents have the chance to come away with at least a partial victory, but a very significant one. Even if the random bag search process continues, Chief Taborn should at least be compelled to rescind the “be watched” consequence of refusal, prevented from sharing refusal information with any federal agency, and required to disinvite TSA or other federal personnel who are currently part of the random bag searches.
In an age of proliferating “domestic intelligence,” “suspicious activity reporting,” and federal/state/local law enforcement “fusion centers”, decoupling Metro Transit Police activities from any hint of federal involvement and any hint of scrutiny of people exercising their Fourth Amendment rights would be no small thing.
Refusing to submit to bag searches should be fully, visibly, and completely immunized from the kind of scrutiny Chief Taborn described on January 5th. People must have the meaningful freedom to refuse to be searched without cause. That’s a freedom that was specifically required, even by MacWade v. Kelly — and certainly by the Bill of Rights.
EDIT, 1/22: retitled from “Metros random bag searches bungle already flawed policy”