Another turn of the screw. Shame on Judge Richard Berman. From the New York Daily News, Dec. 2:
Judge: Searches of bags in subway is constitutional
Random police searches of riders’ bags to deter terrorism in the nation’s largest subway system do not violate the Constitution and are a minimal intrusion of privacy, a federal judge ruled Friday.“The risk of a terrorist bombing of New York City’s subway system is real and substantial,” U.S. District Judge Richard M. Berman said in a 41-page ruling tossing out a lawsuit brought by the New York Civil Liberties Union.
Citing testimony that up to 50 percent of terrorist acts were directed at transportation systems, he said the need to implement counterterrorism measures was “indisputable, pressing, on-going and evolving.” He called the searches effective.
The Manhattan ruling came hours after Berman heard closing arguments in the lawsuit filed in federal court in Manhattan on behalf of several subway riders.
The judge said he had no doubt that the random searches were a reasonable method of deterring and detecting a terrorist attack. He credited testimony by police officials who said the policy might lead terrorists to choose a different target.
“Because the threat of terrorism is great and the consequences of unpreparedness may be catastrophic, it would seem foolish not to rely upon those qualified persons in the best position to know,” Berman said.
In its lawsuit, the NYCLU said sporadic police searches which began in July following deadly mass transit bombings in London subjected innocent riders in New York to pointless and unprecedented invasions of privacy.
NYCLU Legal Director Christopher Dunn said: “We remain confident that this program is unconstitutional and we intend to appeal immediately.”
“Common sense prevails,” police Commissioner Ray Kelly said after the ruling.
“I am very happy with the ruling,” said Gail Donoghue, a city lawyer who argued the case.
Mayor Michael Bloomberg said: “We have an obligation to keep this city safe and the NYPD will continue to use reasonable precautions like bag searches to do so.”
In its lawsuit, the NYCLU said sporadic police searches which began in July following deadly mass transit bombings in London subjected innocent riders in New York to pointless and unprecedented invasions of privacy.
Under the search program, officers permit people to refuse inspection and leave the transit system. Officers are instructed to limit inspection to what is necessary to be sure a backpack or other large container does not contain an explosive device.
On Nov. 14, the police department began a test project to determine the feasibility of using explosive detection technology in subways that would do an instant analysis of chemicals on the surface of backpacks or other containers.
In her closing argument, Donoghue called the searches a “life and death” necessity and said the city should not wait for a specific threat or an attack to implement security.
“That kind of complacency is a very dangerous thing,” she said. “The threat is immediate. It is real and of extreme concern to those who run the counterterrorism in this city.”
Donoghue likened the daunting task of protecting a sprawling system, with 468 subway stations, to securing the nation’s borders.
By studying the habits of terrorists and al-Qaida’s manual, law enforcement officials concluded that terrorists look for easy targets and do not want to encounter surprises, she said.
“Terrorists are looking for certainty. They have limited resources. An element of uncertainty changes the odds,” she added.
In his closing statement, Dunn drew applause from more than a dozen NYCLU supporters who had staged a rally outside the courthouse when he criticized the city’s reasoning for the searches as vague and unsupported by the facts.
“If that is the standard under which the Constitution exists, it no longer exists,” Dunn said.
Dunn said a vague and broad threat of terrorism does not justify the random searches.
See our last post on the litigation, and fear in the subways.
