Giving it a shot

Okay, I am going to try to approach this calmly. Emphasis on try.

New York City has used the occasion of the tragic London bombings to institute a long-considered plan to search the bags of people using its mass transit system. And contrary to the impression some have gotten, it's not limited to the subways. As reported by Newsday (NY) for Friday,

[p]assengers entering subways, buses, ferries and the region's commuter rail system will now be subject to bag searches....

The move makes New York's mass transit network the first in the country where bags are checked without the backdrop of a major political event. ...

The searches heighten transit security to a level never before seen, even in the tense days after Sept. 11, when police began increased subway patrols, soldiers started to guard stations and officers were posted at the mouths of underwater tunnels.

Now, I remember some years ago, when I was living in New Jersey, the state police got a well-deserved reputation for harassing longhairs, even those just passing through the state on the Turnpike. Cars were repeatedly stopped for "routine" or "random" checks. It got bad enough that student travel guides in Europe were telling students to avoid the state altogether.

A civil suit wound its way up through the courts, finally arriving at the state's Supreme Court where the police force's behavior was slapped down. The fact that it was demonstrably aimed at people based on their appearance made it a relatively easy case (the only argument to the contrary being the feeble one that long-haired young people did not constitute an "identifiable class" for legal purposes) but the real point here was that in its decision the Court ruled that there is no such thing as a "routine" or "random" traffic stop: If the police stop someone, the Court said, they must have a reason. Not just a reason to stop any someone but a reason to stop that particular someone. There has to be, in legal terms, "individualized suspicion."

That seems such an obvious statement - police can't do things just because they feel like it, they have to have a genuine and legally-valid reason - that it's hard to grasp just how far we have moved from that principle, legally, politically, and most importantly, socially.

Let's be clear here: What has happened is that New York City has declared it official policy that you can be denied access to a basic public facility - mass transit - on which huge numbers (daily ridership approaches 5 million) depend to get to and from work, shopping, health care facilities, and much more, unless you waive your Constitutional right to be free from suspicionless searches. I'll repeat that: You can be barred from public facilities unless you surrender your Constitutional rights. But something that once upon a not-that-long-ago time would have produced shock and frustration now produces, for the most part, the bleating of sheep.

"I don't really feel like it's an invasion of privacy," said Matthew Asti, 25, a carpenter living in Greenpoint. "It seems an appropriate one."

AP's story was equally clear:

"It doesn't bother me," said Davon Campbell, 24, a security worker who waited about four minutes while an officer rifled through his rolling suitcase and two shoulder bags at a station in the Bronx. "I can understand why they're doing it. It's important."

Ron Freeman, 25, a stockbroker whose backpack was searched, said, "They should have done this a long time ago, ever since 9/11."

And Amy Wilson, 28, said the officers' work "makes me feel safer. I like knowing they're here."

The only person quoted as being "perturbed" said it was because of the time it took out of his day. Want more? CNN's report had two delicious quotes:

"I'm not against it," Ian Compton, 35, a computer consultant, said at Grand Central Terminal in midtown Manhattan. "I think any measures for safety that aren't terribly intrusive are worth doing." ...

"If it serves a purpose, I'm OK with it," said one of the men [searched], James Washington, 45, about being stopped.

And just what purpose is this supposed to serve? To make us "safe?" What a crock! What utter crap!

On Thursday, a cluster of officers was seen stopping five men over a 15-minute period as they entered the subway in Union Square at evening rush hour. In each instance, the officers peered briefly into their bags, then waved them through.

Asti, the Greenpoint carpenter, described it as a "cursory glance" and I saw another report where a person who was searched said police just ruffled quickly through the top of his backpack, noting that if he'd had a bomb at the bottom of it they wouldn't have seen it.

Of course. If police were going to do the kinds of searches that would actually be required to have any chance of achieving the claimed ends, they would have to be much more numerous and much more thorough and that would cause real backups and that would get people annoyed in a way that crude invasions of their privacy don't. And what, are we supposed to assume that backpacks and other such containers are the only ways to bring explosives into the system? What about, say, a wrapped-and-ribboned package in a bag marked Bloomingdale's? No? No one who looks like they would shop at Bloomingdale's could be a bomber? In addition to being stupid and engaging in illegal profiling, how about we just change it to a box containing, according to its labeling, an ink jet printer in a bag marked Circuit City? Are we to think that terrorists are just too stupid to think of such things? Or to think of waiting until winter when their bombs could be concealed under bulky clothing?

Or of just trying to brazen it out, gambling they won't get picked for a search - and if they do, just setting the charge off where they stand?

Or of just blowing something else up?

This is so flaming stupid. It is pointless, useless, a waste, it has no hope of accomplishing its supposed goal of making us "safer." None. None.

So what is it for? Two things: One, it lets politicians look tough, look like they're "taking steps," it gives an ass like New York Mayor Michael Bloomberg the opportunity to strut and posture: "See, we're protecting you! Vote for me!" (While at the same time waxing poetic about rights and "find[ing] that right balance.")

More importantly, it establishes the idea that they can do it. It establishes the idea that the State can supersede Constitutional guarantees whenever it, in its superior wisdom and subject only to its own authority, decides it's "necessary" or even merely a fair idea. That's what this is for, that's what this is about. Not public safety, but public control. Not police protection, but police dominance. It is about maintaining and expanding power.

The Fourth Amendment is already dying from the death of a thousand cuts; this is yet another slice. And each time we're told the intrusion is "minimal," unimportant, of no importance, does not "rise to the level of Constitutional concern" - and each cut is later used to justify more cuts.

When police forces in various states instituted the practice of random stops of cars to check for drunk drivers, some people objected on the grounds that the New Jersey Supreme Court had described: There should be no random stops. If someone is driving erratically, if there is reason to think they might be impaired, fine. But to just stop them to see if you could find them doing something illegal? No. But oh, no, the courts found: Driving is a "privilege" subject to regulation and besides, "public safety" overrules concerns about privacy and self-incrimination. When police in New York City started searching the bags of people attending New Year's Eve in Times Square, again it was justified on "public safety" and that this was a special event, a particular circumstance, that no one had any particular right to attend. In each case, there were warnings that these supposedly limited cases would become precedents for further assaults on privacy; in each case those issuing the warnings were considered fear-mongers or kooks - but they have turned out to be Cassandras.

1) City officials ... cited as precedent the procedures used for random stops in checking for motorists who are driving while intoxicated.

2) Police officials [said] that department lawyers had vetted the checks, which they called no different than the non-controversial bag searches that officers conduct on New Year's Eve revelers in Times Square.

But of course these checks are different, very different. These are not a matter of regulating a "privilege" attainted by licensing and testing (as stupid as that decision was). They are not a once-a-year special occasion involving a public party. They are a daily event involving access to a basic public service. To argue otherwise is a goddam self-serving lie.

You want worse? I'll give you worse. If this becomes established procedure, what is to stop body searches on exactly the same basis? (Like I said before, are backpacks and packages the only way explosives can be carried?) And if you can be denied the use of mass transit unless you submit to searches, why not the roads? What's to stop car searches? (Or do you approve of the prospect of car bombs going off in the middle of Manhattan, huh, you terrorist-loving, anti-American, freedom-hater?)

Hell, why not houses? Oh, that pesky Fourth Amendment is too specific for that? Simple, pass a law that says every new lease, every new house-purchase agreement, must have a provision in it declaring that the new tenant/ower, as a condition of taking possession of the premises, agrees to allow police to enter and search whenever they feel it advisable in the name of "public safety." Such a law would not survive a challenge? Why not? Driving is declared a "privilege," not a right - can you point to anything in the Constitution that says you have a right to an apartment or house? Just like in NYC if you don't want to "consent" to be searched, you can "freely choose" to not use the mass transit system and just walk everywhere every day, if you don't want to "consent" to searches of your home you can just "freely choose" to not have one.

And if that seems unthinkable, just look at what New York is doing now - because damn well, other cities are and thinking about doing the same - and ask yourself just how long ago it was that that would have been equally unthinkable.

How long ago would it also have been unthinkable for police to be actively asking businesses to keep tabs on their customers to watch for and report "anything suspicious," as police on Long Island are now doing?

The authorities are asking Long Islanders to do everything from reporting on diners' conversations to monitoring strangers' Internet use to observing fellow worshipers at religious services to noting when parents withdraw their kids from school.

They want restaurants to report customers who won't check their backpacks. They want real estate agents to keep track of properties after they're sold to see if people move in promptly and to regard as suspicious tenants who move "abruptly" before their lease is up. They want hobby shops to let them know if someone buys a remote-controlled model airplane with cash. And again, most people - except for librarians, bless their freedom-loving souls - seem to think this sort of spying on your neighbors and customers, of thinking "everyone's a suspect," as one business owner said, is a good thing.

To realize just how bad things have gotten, you have to take note of the fact that even though Donna Lieberman, executive director of the New York Civil Liberties Union called the plan "not workable" and said it "will not make New Yorkers more secure but will inconvenience them as police go about finding a needle in a haystack," and the NYCLU's Associate Legal Director Christopher Dunn declared "Police searches of people without any suspicion of wrongdoing are contrary to the most basic of constitutional principles," still

[c]ivil liberties attorneys are taking a wait-and-see attitude over the police random searches in the subways and other mass transit that officially began Friday.

The New York Civil Liberties Union had received about 20 complaints as of late Friday but had not filed any legal action to challenge the police search tactic....

I said it before and I say it again: Things are getting worse and I'm scared.

There is one glimmer of hope:

Dunn also indicated that the city might be on some slippery legal terrain, based on state law and a ruling last year by a federal judge in a case involving searches during the Republican National Convention. ...

In 2004, Dunn noted, the NYCLU won a federal injunction against the city to stop police from searching the bags of all demonstrators at the RNC. The ruling stated that police couldn't make such searches "without individualized suspicion" unless there was a "showing of both a specific threat to public safety and an indication of how blanket searches could reduce that threat."

And, significantly,

Bloomberg said that despite the increased security, he wanted to "emphasize" that law enforcement officials had not received any explicit threats to the city's bus and subway system. [emphasis added]

So the plan fails on both counts: There is no specific threat and it's transparently incapable of actually affording any additional protection. Still, courts of late have been so adept and finding ways to parse law and logic to justify the latest affront to our rights that cops and self-interested politicos come up with that a glimmer is all it is.

Footnote: My blogger friend Harry at Scratchings says that while he's dismayed at the public response - or lack of it - to the searches, he's not as dismayed as I am, putting his faith in the ability of people to submit where they must while undermining the system by combining minimum cooperation with quiet evasion. I agree with him that openly defying police orders is not easy for most of us; in addition to socialization and the fear of the consequences of resistance, there are often other considerations, other people beside yourself who would be affected and you may not feel free to bring them into it, even indirectly. But what truly dismayed me was not the lack of open defiance, it was the presence of open acquiescence - not only submitting to it, but endorsing it.

There are two other explanations possible: The newspapers chose not to print the comments of any rider they came across who said the searches were a bad idea. Or riders who oppose the searches did not feel free to be quoted saying so. I find neither of those alternatives an improvement.