Are Metro bag searches really that bad?
Posted by Thomas Nephew on February 21st, 2011
Recently I was asked:
are metro bag searches really that bad? I am no fan of racial profiling, but this just doesn’t sound that bad. What’s to hide in a bag? If it’s not a bomb, it’s not a bomb. Just keep your embarrassing belongings at home if you don’t want Metro Police to see them.
The following is adapted from the answer I sent.
= = =
You are now less free to move about the country
The fundamental answer, of course, is that we have the Bill of Rights for a reason, that reason is to affirm individual rights, we concede them at our peril, even if the concession appears a small one.
Part of what’s at stake here is maybe captured in that Southwest Airlines ad line that says we should be “free to move about the country.” It’s important that we carry our our rights with us wherever we go, including the right to be free from unreasonable searches. This is the very definition of an unreasonable search — for no reason (at least for no disputable reason), you are pulled aside and subjected to a search.
Why is this particular right important? The government should have to have a very good reason, in advance, for searching you — whether in your home or at a subway stop — because otherwise the door is open to fishing expeditions where you get stopped and searched just to see if you can be charged with something or other. You’re focused on bombs — but the police are not; anything they turn up is generally fair game (thanks in part to poor Supreme Court decisions, but that’s the world we live in). The burden shifts to you to know what you ought not carry with you; as a result, you’ll generally carry less; you’ll be less free. We agree one ought not carry bombs around. But fewer agree we ought not carry certain drugs around. And many fewer still agree we ought not carry anti-slavery literature around. Yet all of those things have been sanctioned before. We can’t know what the future holds. Let’s not make searching us for anything any easier than it should be.
Where will these searches end? We’ve already all but conceded that this may happen in isolated occasions — for example, when entering certain buildings like the WMATA headquarters, or when getting on airplanes. (A point Metro Transit Police Chief Taborn made to me in person, and then considered his case closed.) We’re now about to concede it can happen as we move about a city on its subways. We’ll have no point left to make if we are soon asked to submit to random bag searches on the sidewalks and streets of our cities as well. Would you still urge people to simply not take embarrassing things with them, or might you then say enough is enough? We’re saying so now.
Not just unconstitutional, but stupid
Finally, these searches aren’t just unconstitutional — they’re stupid. And they’re not just stupid — they’re stupid by definition. What program of unreasonable, suspicionless (and unconstitutional) searches is going to be better than a program relying on reasonable (and constitutional) ones based on real suspicions? What bad guy is going to be foiled by a plan to occasionally set up bag searches at a few stations, in which a majority (likely a vast majority) of people with bags are left unexamined, and which he or his co-conspirators can simply turn around and walk away from? This is a plan all but guaranteed to never, ever catch a single bomber. Its proponents sometimes concede that — but argue it nevertheless deters bad people from planning attacks, by introducing an element of uncertainty. Yet it’s absurdly easy to plan for the contingency of encountering a bag search: walk away and try somewhere else, some other time. I’d venture to say a subway system advertising this as its best thinking on security invites attack more than it deters it.
Thus WMATA’s bag search program really encroaches on a fundamental civil liberty, yet only pretends to provide security. To me, opposing such a program is an easy choice to make . By contrast, I’m ruefully confident that if we don’t block this now, future Chief Taborns will see the new status quo as a justification for further intrusions on our freedom.
How bad is that really? In the scheme of things, it’s not as bad as an unjust war, or torture, or assassination policies. But it’s bad enough. We ought to fight for our freedoms whenever they’re encroached on — especially when the justification is as threadbare as it is in this case.
Thanks for writing, and thanks for asking an honest, challenging question. I hope this was a decent answer.
Category: Post. Tags: Constitution, privacy, wmata.
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February 21st, 2011 at 11:59 am
What makes random less constitutional? Other than random, how does this differ from airport searches (where there is a random factor as well)? How are airport searches reasonable?
February 21st, 2011 at 12:08 pm
[...] newsrackblog.com » Blog Archive » Are Metro bag searches really that bad? newsrackblog.com/2011/02/21/are-metro-bag-searches-really-that-bad/ – view page – cached are metro bag searches really that bad? I am no fan of racial profiling, but this just doesn’t sound that bad. What’s to hide in a bag? If it’s not a bomb, it’s not a bomb. Just keep your embarrassing belongings at home if you don’t want Metro Police to see them. [...]
February 22nd, 2011 at 2:00 am
I’m fairly sure airport magnetometer searches and the like *aren’t* reasonable by my lights; they are essentially suspicionless, systematic friskings. There are nevertheless differences from the WMATA subway bag searches; for one thing, air travel (or museum visits, or entering the WMATA building to attend a hearing) is not a necessity of everyday life for most of us, so that when one is searched under those circumstances, one arguably inflicts the indignity and abrogation of rights on oneself to some degree. (I’m not thereby minimizing protests against “pornoscanners”.)
Granting for a moment that the bag searches actually *are* random, the main legal effects (as I see them) of randomness are
(1) they are not universal, like airplane searches are intended to be. Since we like to balance (or claim to balance) security against liberty, we must acknowledge that the security benefit or random searches is smaller than that of universal searches, so the liberty effect must be small as well.
(2) they purposely eschew any systematic, rational basis; they are literally by definition unreasonable.
But I don’t grant that the bag searches actually are random, because I have no way of knowing that; indeed, I assert they would either immediately prove not to be random, or would rapidly become so, simply because the system provides no mechanism for auditing and enforcing “randomness.” And *non*random searches may not be reasonable either - they may (well) be mere profiling of racial or religious minorities.