The U.S. Court of Appeals for the 2nd Circuit recently upheld New York City’s program of random searches at subways. The case is McWade v. Kelly, No. 05 6754 CV (2d Cir. 2006) and I’ve posted a copy here. The program was initiated after the London subway bombing. Back in December, 2005, a federal district court upheld the searches, which are conducted without a warrant, without probable cause, and even without reasonable suspicion. In a blog post critiquing the decision, I wrote:
It is another big waste of money and time, as well as a needless invasion of civil liberties — all for a cosmetic security benefit. There are 4.5 million passengers each day on the NYC subways. What good could a few random checks do? The odds of the police finding the terrorist with a bomb this way are about as good as the odds of being hit by lightning. I doubt it will have much of a deterrent effect either.
The 2nd Circuit panel concluded that the program was “reasonable” under the 4th Amendment’s special needs doctrine. Under the special needs doctrine, if there are exceptional circumstances that make the warrant and probable cause requirements unnecessary, then the search should be analyzed in terms of whether it is “reasonable.” Reasonableness is determined by balancing privacy against the government ‘s need. The problem with the 2nd Circuit decision is that under its reasoning, nearly any search, no matter how intrusive into privacy, would be justified. This is because of the way it assesses the government’s side of the balance. When the government’s interest is preventing the detonation of a bomb on a crowded subway, with the potential of mass casualties, it is hard for anything to survive when balanced against it.
The key to the analysis should be the extent to which the search program will effectively improve subway safety. In other words, the goals of the program may be quite laudable, but nobody questions the importance of subway safety. Its weight is so hefty that little can outweigh it. The important issue is whether the search program is a sufficiently effective way of achieving those goals that it is worth the trade-off in civil liberties. On this question, unfortunately, the 2nd Circuit punts. It defers to the law enforcement officials:
That decision is best left to those with “a unique understanding of, and responsibility for, limited public resources, including a finite number of police officers.” Accordingly, we ought not conduct a “searching examination of effectiveness.” Instead, we need only determine whether the Program is “a reasonably effective means of addressing” the government interest in deterring and detecting a terrorist attack on the subway system. . . .
Instead, plaintiffs claim that the Program can have no meaningful deterrent effect because the NYPD employs too few checkpoints. In support of that claim, plaintiffs rely upon various statistical manipulations of the sealed checkpoint data.
We will not peruse, parse, or extrapolate four months’ worth of data in an attempt to divine how many checkpoints the City ought to deploy in the exercise of its day to day police power. Counter terrorism experts and politically accountable officials have undertaken the delicate and esoteric task of deciding how best to marshal their available resources in light of the conditions prevailing on any given day. We will not and may not second guess the minutiae of their considered decisions. (internal citations omitted)
Although courts should not take a “know it all” attitude, they must not defer on such a critical question. The problem with many security measures is that they are not a very wise expenditure of resources. It is costly to have a lot of police officers engage in these random searches when they could be doing other things or money could be spent on other measures. A very small number of random searches in a subway system of over 4 million riders a day seems more symbolic that effective. If courts don’t question the efficacy of security measures in the name of terrorism, then it allows law enforcement officials to win nearly all the time. The government just needs to come into court and say “terrorism” and little else will matter.
In NYC, you are always only a few blocks from a subway, so it is “reasonable” to extend the random search provision to anywhere in the city. Voila!, forget that part of the constitution. And since bombs aren’t limited to subways in NYC, searches are likely to be extended…
John Prescott has given vent to his private feelings about the Bush presidency, summing up George Bush’s administration in a single word: crap.
The Deputy Prime Minister’s condemnation of President Bush and his approach to the Middle East could cause a diplomatic row but it will please Labour MPs who are furious about Tony Blair’s backing of the United States over the bombing of Lebanon.
The remark is said to have been made at a private meeting in Mr Prescott’s Whitehall office on Tuesday with Muslim MPs and other Labour MPs with constituencies representing large Muslim communities. Muslim MPs wanted to press home their objections to British foreign policy and discuss ways of improving relations with the Muslim communities.
In Nederland werden in 2004 ca. 9.300 bedrijven failliet verklaard en dat aantal stijgt nog steeds. Iedere nacht zijn er honderden bestuurders en ondernemers die wakker liggen van de financiële problemen en de zorgen waarmee zij dagelijks te kampen hebben. En dat is niet nodig met onze hulp! Ervaar de hulp van het Nationaal Faillissement Preventie Instituut (NFPI). Ervaren crisismanagers en onafhankelijke insolventie adviseurs kunnen u helpen een naderend faillissement af te wenden en een onafwendbaar faillissement ten goede te keren. Maar nu even niet, want we zijn zelf failliet…
A woman whose altercation with passengers and crew led to the diversion of a trans-Atlantic passenger flight Wednesday will be detained and likely will face federal criminal charges, a U.S. federal prosecutor said.
The 60-year-old woman was being held in Boston, Massachusetts, after crew diverted the London-to-Washington flight to Logan International Airport.
U.S. Attorney Michael Sullivan did not say what charges would be filed against the woman, who has not been identified. Sullivan said in a statement, however, that “there is no evidence that this was a terrorist-related incident.”
Once the plane was on the ground, security officials placed the entire luggage on the tarmac and inspected each piece with bomb-sniffing dogs, while passengers were interviewed by FBI and TSA officials. The flight left for Washington at about 6 p.m (2200 GMT).
If all you have is security theater, you need a stage every now and then. What better place than a tarmac to show how ‘serial’ you are..
BIOMETRIC testing is set to be introduced at European airports under plans for stringent new security measures revealed yesterday in the wake of last week’s alleged terror plot.
Passengers would have their fingerprint or iris scanned under the measures proposed by EU interior ministers, which would also use passenger profiling to try to identify potential terrorists.
The move to beef up relaxed security procedures in Europe came as John Reid, the Home Secretary, warned that human rights would have to be balanced against the threat from terrorism and that the current terror threat was Europe-wide and needed to be tackled on an international level.
The EU minister in charge of justice, Franco Frattini, said ministers were looking at the “positive profiling” of passengers, carried out well in advance of their flights, based on “biometric identifiers” such as iris scans or fingerprints.
However, both he and Mr Reid stressed that there were no plans for profiling based on passengers’ ethnic origins. Rather, the profiling would be drawn from biometric information.
Responding to the plans, Phil Booth, the national co-ordinator of NO2ID, a UK campaign group which lobbies against a centralised biometrics database, said the biometric scheme could not work unless Europe had the fingerprint of every international terrorist on record.
“If [interior ministers] do not have that, then what they are proposing is the construction of the largest haystack of all time to find a few needles,” he said.
“This magical thinking about biometrics identifying terrorists is plainly crazy. What is more worrying is that John Reid is grandstanding and using an alleged incident to conflate our security and our freedom.”
Mr Booth added that biometrics could also be used for de facto racial profiling of passengers: “Because it is a measure of the body, biometrics will often identify people’s ethnic origin.”
My finger print is currently not on file. Nowhere. So, how is getting my print going to make you feel safer?
A district judge ruled yesterday that British investigators have until next week to investigate the suspects arrested in an alleged plot to blow up as many as 10 trans-Atlantic jetliners, saying they could be kept in custody without charge.
It was the first major test of a new terrorism law that lets suspects be held for as long as 28 days without charge so investigators can solidify their cases.
I wonder how many they’re going to have to release for lack of evidence…
Scientists believe they have found a key gene that helped the human brain evolve from our chimp-like ancestors. In just a few million years, one area of the human genome seems to have evolved about 70 times faster than the rest of our genetic code. It appears to have a role in a rapid tripling of the size of the brain’s crucial cerebral cortex, according to an article published Thursday in the journal Nature.
Study co-author David Haussler, director of the Center for Biomolecular Science and Engineering at the University of California, Santa Cruz, said his team found strong but still circumstantial evidence that a certain gene, called HAR1F, may provide an important answer to the question: “What makes humans brainier than other primates?” Human brains are triple the size of chimp brains.
Looking at 49 areas that have changed the most between the human and chimpanzee genomes, Haussler zeroed in on an area with “a very dramatic change in a relatively short period of time.”
The U.S. Federal Communications Commission has begun an investigation of the use of video news releases, sometimes called “fake news,” at U.S. television stations.
Video news releases are packaged stories paid for by businesses or interest groups. They use actors to portray reporters and use the same format as television news stories.
The FCC has mailed letters to at least 42 stations asking station managers about agreements between the station and the creators of the video news releases.
“You can’t tell anymore the difference between what’s propaganda and what’s news,” Adelstein said.
Sounds like somebody has been watching the Daily Show:
In the “you can’t make this shit up” category, today we have the story of a company that makes cases that might protect your laptop as checked luggage. The name of the company makes me wonder. I cannot find any connection with the similarly named larger company we’ve all come to know and love, but the coincidence is a weird one…