2nd Circuit upholds subway searches

Bill Weinberg

One year after the hysteria that followed the London bombings, we are treated to yet another terrorist scare emanating from the UK, with the alleged plot to blow up airliners mid-flight by mixing combustible liquids, supposedly discovered in the nick of time. While that dominates the headlines (much more so, note, than the real terrorist carnage in Mumbai, which generated barely a media flicker compared to the significantly less deadly London attacks), buried in the inner pages of even the New York papers comes another turn of the screw they started tightening a year ago. From the New York Daily News, Aug. 12:

Judges OK subway searches
Random bag searches in the subways are not only an effective tool in the city’s anti-terror arsenal – they’re constitutional, a federal appellate court ruled yesterday.

A three-judge panel of the 2nd Circuit U.S. Court of Appeals upheld a city inspection program that began after last summer’s terror attacks in the London subway system.

“In light of the thwarted plots to bomb New York City’s subway system, its continued desirability as a target, and the recent bombings of public transportation systems in Madrid, Moscow and London, the risk to public safety is substantial and real,” the panel wrote.

The New York Civil Liberties Union, which filed the case on behalf of subway riders opposed to the inspections, was weighing an appeal.

The panel upheld a lower court ruling by Manhattan Federal Judge Richard Berman in December. It found the program to be a minimally intrusive invasion of privacy because riders who don’t want to undergo a search can simply walk to another station to enter the subways.

“Once again, at a fitting moment, the court upheld the constitutionality of the bag inspection program, one of our key strategies for deterring a subway attack,” Police Commissioner Raymond Kelly said.

And they dismissed suggestions that the sporadic nature of the inspections rendered the entire program ineffective. They noted that terrorists “prize predictability.”

“An unexpected change of plans might well stymie the attack, disrupt the synchronicity of multiple bombings, or at least reduce casualties by forcing the terrorist to detonate in a less populated location,” the judges wrote.

Activist critics of the NY Civil Liberties Union note that their attorney Christopher Dunn declined to cross-examine NYPD Deputy Commissioner for Intelligence David Cohen, a 30-year CIA veteran whose testimony was considered the lynchpin of the case. (New York Times, Nov. 1, 2005)

Now more than ever, see The Citizen’s Guide to Refusing New York Subway Searches

See our last posts on fear in the subways and fear in New York City generally.

Also note that, while we withhold judgement on the recent UK busts, these spectacularized “terrorism” cases have been getting increasingly specious.

  1. On the subject of “specious”…
    This Aug. 11 New York Times editorial is something of a relief:

    The London Plot

    For almost five years now, we have carried around the legacy of Sept. 11. There is no sunny morning that does not revive its memory. The news of a terrorist plot against America-bound airliners yesterday called up feelings that are never all that far below the surface.

    There is nothing Americans want more than to win the war on terror, to come to a place where people no longer feel it is a fine thing to forfeit their own lives and the lives of innocents in order to make the world notice their anger and frustration. It is a point on which the country is absolutely undivided. It is one matter about which subway commuters, airline passengers and mall shoppers feel no irony or cynicism whatsoever.

    It comes like a punch to the gut, at times like these, when our leaders blatantly use the nation’s trauma for political gain. We never get used to this. It never feels like business as usual.

    On Wednesday, when the administration already knew that British agents were rounding up suspects in what they believed was a plot to blow up planes en route to the United States, Vice President Dick Cheney had a telephone interview with reporters to discuss the defeat of Senator Joseph Lieberman of Connecticut in a Democratic primary. Mr. Cheney went off on a rather rambling disquisition, but its main point was clear: In rejecting Mr. Lieberman, who supported the war in Iraq, the Democrats were encouraging “the Al Qaeda types.” Within the Democratic ranks, the vice president added, “there’s a significant body of opinion that wants to go back — I guess the way I would describe it is sort of the pre-9/11 mind-set, in terms of how we deal with the world we live in.”

    The man who beat Mr. Lieberman, Ned Lamont, lives in Greenwich, a suburb full of commuters who work in New York high-rise buildings. They are completely aware of the way international terrorism can come crashing down on an ordinary family, leaving the survivors stunned and bereft. A dozen of their neighbors died at the World Trade Center. They will never be able to go back to a “pre-9/11 mind-set.”

    But that did not seem to deter Mr. Lieberman from scoring a cheap sound bite yesterday. Leaving Iraq, as Mr. Lamont advocates, “will be taken as a tremendous victory by the same people who wanted to blow up these planes in this plot hatched in England,” he said. “It will strengthen them and they will strike again.”

    Here is what we want to do in the wake of the arrests in Britain. We want to understand as much as possible about what terrorists were planning. To talk about airport security and how to make it better. To find out what worked in the British investigation and discuss how to push these efforts farther. It would be a blessed moment in modern American history if we could do that without turning this into a political game plan.