1. Harlan - August 13, 2006 at 6:01 pm

   I mostly agree with your analysis, but one thing I wonder if you considered is the possibility that the random checks might act as a deterrant to potential bombers? That is, if there’s (say) a 10% chance of getting caught (and arrested, and interrogated), would that discourage someone from actually using that methodology for killing lots of people, rather than some other methodology? Security is not about making something impossible to do; that’s impossible. It’s about making something sufficiently hard to do that people won’t bother. Perhaps that’s the standard being aimed for here?

2. Daniel J. Solove - August 13, 2006 at 6:21 pm

   Harlan,

   For a 10% chance of getting caught, that means that cops must search 450,000+ subway riders per day. I doubt that even a fraction of this number are searched. So I bet the chance is much much less than 10% — and probably even less than 1%. I agree that requiring that security measures make something impossible to do is asking too much, but I think that the random subway searches don’t make it “sufficiently hard to do that people won’t bother.” I think that at best, the subway searches would be just a minor inconvenience that terrorists could readily work around. It’s fine if we want to erect small security speed bumps that will achieve tiny benefits if there are no costs. But there are two kinds of costs associated with the subway searches: (1) they cost money and resources that could be used for other security measures; hence they have a cost to security; and (2) they involve a cost to liberty and privacy.

3. NoneSuch - August 13, 2006 at 6:24 pm

   Nice try re: “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…Although courts should not take a “know it all” attitude, they must not defer on such a critical question. ”

   Nuts to that. Courts have neither the resources nor competency to assess whether a particular anti-terroist policy is ’sufficiently effective’, they lack both access to the real-time operational intelligence and the experience to weight it properly. Why not just admit you don’t like the outcome, so you’re inviting judicial overreach?

4. Daniel J. Solove - August 13, 2006 at 6:31 pm

   NoneSuch,

   If you’re right, then I see two possible choices for courts to employ in enforcing constitutional rights: (1) adopt an absolutist approach, which doesn’t require balancing — the rights win out all the time; or (2) don’t enforce the rights at all. Obviously, you’d say that (1) is a “judicial overreach.” I don’t subscribe to (1). But (2) is little to no judicial review at all — we might as well not bother to have constitutional rights at all.

   Is there another way beyond (1) and (2)? The only way I can think of is for courts to balance, but to do this, they must be able to assess the efficacy of a particular anti-terrorist policy.

5. Judd Golden - August 13, 2006 at 7:31 pm

   The incremental erosion of 4th Amendment in the name of “special needs” and administrative searches is stunning and tragic for our free society. If by design criminals were to target every mode of public and private transit – including cars and trucks – would we then be justified in randomly searching everyone everywhere? If we validate every reactive imposition of security after every similar event or threat, then the terrorists are in control and indeed will have won.

6. RepubAnon - August 13, 2006 at 7:40 pm

   How about heightened scrutiny beyond “rational relationship?” These random subway searches are similar to the random checkpoints checking for drunk drivers – but are far more intrusive and far less likely to deter terrorists. All that a checkpoint does is control where suicide bombers detonate their packages – they don’t discourage them. Then, too, we’re starting to see “binary bombers” where each plotter carries a piece of the bomb. Care to start telling people they can’t carry cell phones, shampoo, groceries, gifts, etc. on subway trains?

   Under the court’s current analysis, I see nothing stopping random, warrantless searches of citizens’ private homes looking for drug labs, terrorist bomb-making sites, child pornography, or whatever. After all, these are major threats – and unless the courts start asking whether the cost in constitutional freedom is worth the benefit reasonably expected from the intrusive tactic, we’re not going to have any freedoms left for the terrorists to attack.

   It wasn’t all that long ago that the cops used to do this routinely, as evidence gained during illegal searches by state officials was admitted into evidence. (See Wolf v. Colorado). Only after the much-hated exclusionary rule was put into place by those bleeding heart over-reachers on the Warren Court that poor and/or politically powerless citizen’s homes were safe from random searches.

   George Bush and his minions want to bring back the bad old days, where only the rich and powerful had rights – and the rest of us were protected, if at all, by “guidelines.” We can’t afford to let our constitutional rights be diluted into irrelevance by politicians pushing expensive, fear-inducing, but useless policies designed to make people think they’re being protected rather than actually catching anyone.

   The only way to do this is for courts to apply either “heightened” or “strict” scrutiny to these policies. These are established levels of scrutiny, and shouldn’t be burdensome

   However, seeking court protection only slows down the erosion of our freedoms – politicians screaming “judicial activism” will blame every terrorist attack on the courts and continue placer-mining our freedoms in their search for votes. Ultimately, we’ve got to stand up and say “no more” to these evil parasites exploiting the electorate’s fears to slip their own totalitarian schemes into law. (And, yes, this applies to Iran as well as the US – both are governed by immoral schemers seeking to destroy freedom and promote their own personal power by exploiting their fellow citizens fears and prejudices.)

7. Orin Kerr - August 13, 2006 at 8:55 pm

   Dan,

   How on earth is an appellate judge supposed to determine whether a particular technique is effective at deterring terrorist attacks or catching would-be terrorists? Can you explain how you would determine this if you were an appellate judge?

8. Daniel J. Solove - August 13, 2006 at 8:58 pm

   Orin,

   What’s the alternative? Isn’t this what balancing approaches ask judges to do?

9. Orin Kerr - August 13, 2006 at 9:09 pm

   Dan,

   I’m not asking for alternatives, or asking what balancing requires: I am just asking you to explain how a Judge Solove would do what you insist judges must do.

10. Marty Lederman - August 13, 2006 at 9:15 pm

    Orin: The *trial-court* judge would take evidence, allow cross-examination, etc., and then apply some sort of substantive standard to the evidence. What would be unusual about that? Basically, the judge would ask the government officials *why* they believe the searches would prevent terrorist acts, what their level of certainty is, and the extent to which they think the problem will diminish with the searches. If the best they can come up with is “We just think it will work,” that’s not too reassuring, is it? And why would that be entitled to any deference? (I’m not saying they wouldn’t have more than that — but the court of appeals’ opinion appears to be willing to be satisfied with that “showing.”)

11. Daniel J. Solove - August 13, 2006 at 9:19 pm

    Orin — Marty answered your question for me, but my question to you remains unanswered. . .

12. Orin Kerr - August 13, 2006 at 9:42 pm

    Marty,

    Marty, let me see if I understand you correctly. Under your approach, I gather “special needs” issues would become a question of dueling experts, leading to fact-finding and strong appellate deference to the fact-finidng of the trial judge. The government’s expert presumably would claim that he thought the techniques would be reasonably effective, although presumably for classified reasons. (I’m not sure how the court would hear the evidence; perhaps purusant to CIPA?) The defense expert would claim that he thought the techniques would be ineffective, albeit presumably without any access to any of the classified material. The trial court would then make a factual finding that reached an essentially conclusive answer as to the efficacy of various techniques, and the appellate courts and the Supreme Court would defer to the fact-finding of the district court unless the findings were “clearly erroneous.” This is a very interesting idea. Has it been done before? Is it the usual practice in special needs cases?

    Dan,

    Well, obviously what the courts are doing is one alternative. I’m not saying it’s right; I just lack your confidence that it is wrong under the special needs exception cases. Of course, if you have case citations for why it is incorrect under current caselaw, I would be very interested to see the citations.

13. Orin Kerr - August 13, 2006 at 9:56 pm

    Yikes, this is really embarrassing — I just took at look at the Second Circuit’s opinion, and it seems like this is what the district court did. The trial court had a factual hearing and found facts; the Second Circuit deferred to those factual findings. Also, it turns out that the idea of deferring to the law enforcement view of efficacy is the United States Supreme Court’s idea, from the Sitz case. (Lesson to OK: Read case before commenting, not after.)

    So witht that background, let me ask a differnet question: What did the Second Circuit do that what was wrong?

14. Daniel J. Solove - August 13, 2006 at 9:59 pm

    Orin,

    The special needs doctrine is a case-by-case balancing of particular search programs. Thus, this case turns on a very fact-specific analysis. That’s what the special needs test requires — it’s a balancing test, after all. My point is that if balancing tests are to have any meaning at all, then the court needs to develop an approach to analyze the facts. Otherwise, what do you suggest? One approach is to just let the government win — but if this is the approach, why not just call a spade a spade and say that if the government’s interest is preventing terrorism, the government wins? That’s a rule that wouldn’t involve the courts making factual determinations. But if courts are going to make factual determinations, then they must make them. What else would you propose courts do?

15. Marshall - August 13, 2006 at 10:11 pm

    The absolutist approach is actually the only one that makes any sense. The “balance” approach is really the security ratchet; since

    these “security” increases are never rolled back, over time the result is the same as choice 2, although I guess it is easier on the squeamish.

16. Orin Kerr - August 13, 2006 at 10:25 pm

    Dan,

    I think you may have posted your latest without seeing my latest, but (having actually read the case) I guess I would propose that lower courts just follow the U.S. Supreme Court’s guidance on how to conduct special needs balancing. My tentative sense is that the Second Circuit did that; is that wrong?

17. Daniel J. Solove - August 13, 2006 at 10:53 pm

    Orin,

    The Supreme Court has been all over the place when it comes to the level of deference it applies to special needs balancing and other balancing approaches. You’re right that Sitz is particularly deferential — it was written by Chief Justice Rehnquist, the king of deference. The Court’s random checkpoint cases are all over the map, and it is hard to distill many coherent principles from them.

    My critique is aimed at the approach of deference in the special needs analysis. The 2nd Circuit opinion is not alone in this, and I wasn’t claiming it was an outlier. Nor was I claiming it is wrong because it did not follow Supreme Court law. My point was framed more broadly at the deferential approach toward the special needs balancing — if the rule calls for a balance, how can you do so meaningfully if you don’t scrutinize the government’s claims? My article, The Darkest Domain: Deference, Judicial Review, and the Bill of Rights, http://ssrn.com/abstract=693281, contains a much more detailed argument about why deference in constitutional rights cases is incoherent with a judicial balancing approach.

    What I cannot understand is how the government could lose in the balance if its interest is in preventing terrorism and courts must defer to the government on the effectiveness of the program. It seems to me that it is a charade to even have a balancing test. Courts should be honest and just say that the rule is “government wins.”

18. Orin Kerr - August 13, 2006 at 11:00 pm

    Dan,

    Can you point to cases in which the Supreme Court does what you urge? I guess I’m trying to understand your criticism: is your view that the Second Circuit didn’t follow the law, or is your view that the law should be changed?

    Also, I think it’s pretty clear that the rule isn’t “government wins.” Courts don’t defer absolutely; they must determine on their own that the threat is “substantial and real,” and then deternmine if the program is “a reasonably effective means of addressing the government interest in deterring and detecting a terrorist attack on the subway system.” As I understand it, the Court must make that determination of “:reasonable effectiveness” without deferring.

19. Daniel J. Solove - August 13, 2006 at 11:09 pm

    Orin,

    The Court has deferred in countless cases involving the Fourth Amendment and other constitutional rights, so I can’t claim that the 2nd Circuit deviated from the law. My view is that the law doesn’t make much sense.

    I don’t understand your second paragraph. Determining that the threat of terrorism is “substantial and real” is a no-brainer. I don’t see how the government could possibly lose on that one.

    Then you write: “As I understand it, the Court must make that determination of ‘reasonable effectiveness’ without deferring.” What does that mean exactly? Does it defer to the government’s claims or not?

    I’m not arguing that courts should require that a security measure be the most effective or even highly effective. But they must determine whether they are effective enough to outweigh privacy rights. Is “reasonably effective” just a marginal improvement (i.e. a benefit greater than zero)? If so, then how could the government possibly lose unless its measure was absolutely absurd?

20. Daniel J. Solove - August 13, 2006 at 11:15 pm

    Orin,

    A brief follow-up on my last point. There seem to be two issues involved in the effectiveness inquiry:

    (1) How effective must a security measure be?

    If it must be “reasonably effective,” what does this mean? If the standard is set too low, then the government can’t lose.

    (2) Should a court defer to the government’s claims and evidence about the effectiveness of a security measure?

    If a court defers, then it is nearly impossible for the government to lose. I guess the government would lose if it couldn’t find anybody to testify that there would be a benefit from the program or couldn’t even articulate any rationale behind it. But deference here seems to make the government’s case a walk in the park.

21. Orin Kerr - August 13, 2006 at 11:19 pm

    Dan,

    The law uses intermediate standards like “reasonably effective” all the time. Why is this standard likely to be particularly hard to apply, or to mean no scrutiny at all? I guess I don’t understand why you seem to be using very absolute-sounding words, such as “possibly lose” and “absolutely absurd,” when the standard seems to call for some kind of middle ground degree of deference.

22. MinuteMan - August 13, 2006 at 11:24 pm

    1) One recurring counter-argument seems to be that the courts are

    incapable of determining complex matters such as the likely

    effectiveness of an constitutional right-infringing security

    methodology. Courts rule on matters of comparable complexlity all the

    time and sometimes even rely on juries. This is a very disingenuous

    argument.

    2) Allowing the government to violate basic rights on the basis of the

    mere existence of an extremely small possiblity that they might

    prevent a serious crime pretty much throws out the idea of individual

    rights in this country. Surely this same logic could be used to

    justify random searches of homes to possibly find or possibly deter

    the making of bombs, chemical weapons, etc. If we’re not safe from

    unreasonable search in our homes then that extremely fundamental

    right is nonexistent.

23. Marty Lederman - August 13, 2006 at 11:40 pm

    OK, prompted by Orin’s audacious idea of actually reading the opinion, I did, too. (Radical idea, no?) And it’s not as bad as Dan suggests, but still raises a troubling problem. Here are the key parts of it, which the court unfortunately buries in a bunch of deference rhetoric:

    1. “The expert testimony established that terrorists seek predictable and vulnerable targets, and the Program generates uncertainty that frustrates that goal, which, in turn, deters an attack.”

    and

    2. “Plaintiffs neither contest their expertise nor directly attack the substance of their testimony.”

    Standing alone, the first point seems to make sense: A terrorist group that plans well in advance, and that generally engages in multiple, concerted attacks, might well be deterred if it knows that there is a material risk of interdiction. In that case, the program is effective *not* because it will ever detect anything of value, but simply because it will *deter* Al Qaeda attacks.

    If plaintiffs had challenged this assumption, that would be one thing. But the court says that they didn’t. That would seem to make for a pretty strong predicate for the special needs exception.

    Except this: OK, so of course the presence of a search program will act as *some* deterrent to Al Qaeda, compared with a subway system lacking such searches. That’s established by the testimony, and fairly intuitive, to boot. But we simply don’t know *how much* it will deter Al Qaeda — and therefore, without some sort of quantification of the deterrent, it’s impossible to balance the cost to liberty on the other side.

    Which is why plaintiffs’ principal agument was apaprently that “because defendants’ experts could not quantify the Program’s deterrent effect, their testimony fails as a matter of law to establish efficacy.” And it’s here that the court of appeals’ opinion is lacking. The court writes:

    “The concept of deterrence need not be reduced to a quotient before a court may recognize a search program as effective. Indeed, expressing the phenomena in numeric terms often is impossible because deterrence by definition results in an absence of data.”

    That seems like a bit of a cop-out, as if even the tiniest bit of deterrence would be enough. And that can’t be right. On the other hand, how is anyone — the experts or the court — supposed to figure out exactly how much this will deter Al Qaeda?

24. Phoenix Rising - August 14, 2006 at 12:10 am

    What I hear Dan saying – and I agree – is that it is hard to imagine a random subway search to be “reasonably effective”. Search 10% and you’ve searched 450,000 people every day; assuming you search most people during rush hours (~6 hours), you’re searching 75,000 people per hour; do 15 people per hour per officer (4 min per search) and you need 5,000 officers to do the job – at 10% effectiveness. And you completely screw up the subway stations while you’re at it.

    So what random search under those conservative parameters – where a determined bomber can still blow up the station itself, BTW – is “reasonably effective”? That the 2nd Circuit essentially punted when asked to consider the balance issue is perhaps not against certain court precedents, but it certainly seems contrary to the Constitution in its reasoning. If the government says “this is effective”, the defense says “how can it be”, and the court says “we’re not getting into it – we believe the government”, then logic says we essentially have NO Constitutional rights except those the government allows us to have.

25. Phoenix Rising - August 14, 2006 at 12:17 am

    Marty,

    Thanks for reading the opinion and summarizing; I don’t have that kind of time – you did me a great favor.

    The disturbing part about the reasoning you describe is that it sounds an awful lot like the roadblocks many civil liberties suits are running into lately. The government does not provide reasonably quantitative data, so plaintiffs can’t provide effective arguments; using “national security” interest as a cover compounds the problem.

    What couldn’t the government provide in the case? Number of people searched? Subway use data? I understand that they can’t attach a chart to “random search intensity vs. deterrence to al-Qaeda cell member”, but in this case it seems even a cursory glance would invalidate “reasonableness”.

26. David Fenton - August 14, 2006 at 12:48 am

    I live in NYC. I ride the subway a lot.

    The searches have been in effect for more than a year, and even so, I’ve never had my bag searched even once.

    In fact, I’ve only one time entered a station with searches in place. I offered my bag to be searched, and the police declined to search it.

    The system can be completely circumvented by locating a subway station where there is no police checkpoint. Anyone with a cab fare or a car of his own can manage that. The easiest way to do it is board the subway in one of the outer boroughs, where checkpoints are incredibly rare in my experience.

    Only a moron terrorist would attempt to board the subway with a bomb at Time Square.

    I can only conclude that the searches are completely ineffectual — they cannot possibly reduce the possibility that any competent terrorist could board the subway with a bomb.

    I don’t know how the courts could ignore such obvious facts, but I presume that if it didn’t get introduced into evidence, the appellate court obviously had no chance to rule on the basis of those facts.

    The whole thing is a complete sham. It’s a public relations ploy that invades the privacy of people in order to make them feel safer while actually doing absolutely nothing to prevent a terrorist attack, except by a terrorist who’s too stupid to shop for a subway station with no checkpoint.

    –

    David W. Fenton

27. Marty Lederman - August 14, 2006 at 8:24 am

    Note to Phoenix Rising and David Fenton: Under the government’s deterrence theory that the court of appeals endorsed, the “reasonably quantitative data” are sorta beside the point: It doesn’t *matter* how many people are searched, or that the searches never turn up evidence of terrorist acts. Indeed, it probably doesn’t matter, on their theory, whether there are any serious searches going on *at all.* The theory is predicated on the notion that what is important is that *AL Qaeda come to the conclusion* that they can’t be sure a concerted, multi-bomb effort would not be thwarted. In other words, the whole point is *not* to quantify, or to reveal the odds of being searched — *uncertainty* is everything. If there is a meaningful risk of being searched, AQ will not take the chance. And so, if the federal courts were actually to “find” that the searches are minimally intrusive and are thus ineffective — that all but moron terrorists would be able to easily circumvent the program –that finding would *itself* undermine the actual effectiveness, the deterrent value, of the program.

    This is, as PR notes, a difficult argument to counter. It doesn’t have any particular stopping point, and would appear to justify all manner of police practices intended to disorient and deter AQ. So it is a real problem deciding how to deal with it under Fourth Amendment doctrine. But if it is to be credited, then taking evidence of effectiveness and coverage is not only beside the point, it is desructive of the very premises of the program. Mind you, I’m not saying this is ok — but it does make the puzzle more difficult.

28. Anderson - August 14, 2006 at 12:16 pm

    The theory is predicated on the notion that what is important is that *AL Qaeda come to the conclusion* that they can’t be sure a concerted, multi-bomb effort would not be thwarted.

    But that’s applying an absurd definition of “certainty.” Al Qaeda couldn’t be CERTAIN that the 9/11 plot wouldn’t be foiled … but they went ahead with it anyway. Metaphysical uncertainty does not deter anyone, not even philosophers. (See concl. of Hume’s Treatise, Bk. I.)

    Knowing that you are, say, 99.9% unlikely to be the target of a random search, would seem to be encouraging news to al Qaeda, if anything.

29. ruidh - August 14, 2006 at 12:25 pm

    But even a cursory glance at the frequency of searches will tell any would-be terrorist that the chances of getting searched at a station where searches are going on is less than 1% and exactly zero at a station where there are no searches going on. I fail to see how anyone can make a straight faced argument that the searches are not completely INeffective at preventing attacks. All an organization needs to do is send *two* persons to seperate station to increase their likelihood of success from very likely to exteremely likely.

    Does anyone really think AQ is fooled by such transparently ineffective techniques?

30. Brand X - August 14, 2006 at 12:49 pm

    ML,

    If we know that the practice has *some* actual deterrent effect, and there are no more attacks of the kind we are seeking to deter, then the practice must have *enough* deterrent effect to ensure public safety of the kind sought. How is that not logical? If you disagree, how do you defend the sociological definition of “critical mass” in Gratz and Grutter?

    DS,

    “Isn’t this what balancing approaches ask judges to do?” It doesn’t seem to me you can have it both ways: Either balancing tests are frauds that conceal predetermined outcomes or they are not. If they are not, “reasonably effective” should be sufficed by the reasoning in my answer to ML. Why is it categorically wrong for a balancing test to result in more government wins than not?

31. Anderson - August 14, 2006 at 1:58 pm

    and there are no more attacks of the kind we are seeking to deter, then the practice must have *enough* deterrent effect to ensure public safety of the kind sought.

    A lovely example of what my dad (a lifetime civil servant) used to call “elephant prevention.” Budget X dollars to ward off elephants, and then justify the renewal of the budget item on the grounds that no elephants have appeared–it must be working!

32. Eric - August 14, 2006 at 2:02 pm

    A case like this is why I think courts should have followed Nadine Strossen’s advice and incorporated a Least Intrusive Alternative requirement into Fourth Amendment (and especially special needs) doctrine. See The Fourth Amendment in the Balance: Accurately Setting the Scales through Least Intrusive Alternative Analysis,” 63 NYU L REV 1173 (1988). Marty is right that this is all about creating an Al Qaeda perception that there is a security program that will create uncertainty. But there are myriad less intrusive ways to achieve this. There has been a lot of talk back and forth on the efficacy of bomb-sniffing dogs in the noisy and generally smelly subway, but the fact is, you wouldn’t even need real bomb-sniffing dogs. As long as someone performing surveillance saw that there were lots of dogs sniffing around the subways– possibly even sniffing people’s bags as they walked in– then there is uncertainty about whether a bomb could be brought into the subway undetected. Furthermore, the NYPD began experimenting with explosive detection machines (with the cotton swabs– they use them in a lot of airports). Again, there are questions about whether they can detect all explosives (as a result, the District Court simply concluded that it was a “pilot program” that did not change the legal analysis), but on the theory of perception/deterrence, you wouldn’t even need working machines. As long as you were going through the motions and a terrorist had no way of knowing whether or not it was real, then you have accomplished the same thing as these random searches.

    Courts should balance rigorously, but Orin’s outline of how a fact-finding trial would work (with a battle of experts with one side having greater access to evidence) is inevitably how a lot of these trials would play out. So given that, requiring the government to show why less intrusive alternatives truly won’t work might be the only compromise.

33. Paul - August 14, 2006 at 2:20 pm

    Eric,

    It’s true that in order to “scare” terrorists you don’t have to perform real searches, you just have to make people think that you’re performing real searches. You could have fake dogs, as you suggest, or even have the NYPD search some actors who (unbeknownst to the general public) are in league with the NYPD and have secretly given their consent to be searched. Neither of these techniques would register as a blip on the Fourth Amendment radar.

    But to the extent that you’re “scaring” terrorists, you’re probably scaring the rest of us even more. The _fear_ of being searched by the NYPD is something that implicates the values the Fourth Amendment protects. If we all cower in fear of searches, and we all think we live in a police state, does it matter if these searches aren’t really going on?

    I mean, I can’t be the only person who doesn’t like dogs enough to be a little concerned at the prospect of walking by NYPD canine units every day.

    But yes, I think the Strossen approach makes a lot of sense and we’d be better off if the courts would use it. Though when least intrusive alternatives are calculated without regard to cost (as they have to be in order to be anything other than a backstop against wholly irrational and bizarre policies), it starts to look more like the judiciary substituting its judgment for that of the legislature.

34. Brand X - August 14, 2006 at 3:18 pm

    Anderson: “Budget X dollars to ward off elephants, and then justify the renewal of the budget item on the grounds that no elephants have appeared–it must be working!”

    Except here we have as a given that the policy has *some* actual deterrent effect. There is no proof whatsoever that the policy in your hypo has any deterrent effect, so your hypo is off.

35. Kagro X - August 14, 2006 at 3:59 pm

    If your expediency threshold is low enough, you can simply send a letter to Osama bin Laden, notifying him that you neither confirm nor deny the existence of a program of random searches, and be done with it.

    That the letter might be undeliverable is, by itself, of course no bar to efficacy. There’s still a chance someone might open it and read it.

36. Cognomen - August 14, 2006 at 4:59 pm

    “Under the court’s current analysis, I see nothing stopping random, warrantless searches of citizens’ private homes looking for drug labs, terrorist bomb-making sites, child pornography, or whatever….” <-From an earlier posting.

    _________________________________________________

    There is an obvious difference in a person’s expectations of privacy when, as commuters, they are randomly searched (w/o a warrant or prob. cause) in a public space (subway station) to prevent or deter violence and harm vs. law enforcement invading a person’s home, for a warrantless search to deter the same. To ignore the difference between the two is over-simplifying the argument.

    Too much of the above postings debate the wisdom of the action, the effectiveness of public policy, or the $ cost. I don’t see how these issues are judicial and have a place in constitutional analysis. Mr. Solove and others appear to be inviting the court to (pardon the cliche) sit as a “super legislature” (Lochner alert) and impose their beliefs for that of law enforcements. I think the court was correct to defer to law enforcement in developing policies to ensure the public’s safety. The government has an important and compelling justification for random searches in a busy public transportation facility. Furthermore, a law has never had to be the best or 100% effective to be constitutionally permissibly. Now if you want to debate if these searches are the least restrictive or narrowly tailored means to achieve such an end that I can see but the efficacy arguments and the like belong in the political or legislative arenas not constitutional.

37. Anderson - August 14, 2006 at 5:30 pm

    Except here we have as a given that the policy has *some* actual deterrent effect.

    It’s “given,” IIRC, b/c the plaintiff was foolish enough not to challenge it. Not a mistake that future litigants will make.

38. Eric - August 14, 2006 at 6:30 pm

    Now if you want to debate if these searches are the least restrictive or narrowly tailored means to achieve such an end that I can see but the efficacy arguments and the like belong in the political or legislative arenas not constitutional.

    But Cognomen, the least restrictive/narrowly tailored test entails a degree of effectiveness inquiry– after all, you’re looking for the least restrictive means of effectively achieving that end. You have to look at how effective a measure is in order to see if other less restrictive measures would be equally (or perhaps more?) effective.

    But the least restrictive means question is sort of academic– the Supreme Court has repeatedly disavowed the requirement that a Fourth Amendment search be the least restrictive means (see the Strossen article I posted about above).

39. Brand X - August 14, 2006 at 6:43 pm

    Kagro: There’s still a chance someone might open it and read it.

    This is hypothetical deterrence. We have here as a given there is some actual deterrence; not the chance of it. Again, the hypo is off.

    Additionally, the deterrence measured by the experts wasn’t as open-ended as you suggest, no one in this case wrote an expert report claiming that someone — as opposed to some terrorist — was deterred. Again, the hypo is off.

40. Kagro X - August 14, 2006 at 8:18 pm

    Brand X: We have as a given there is some actual deterrence? No we don’t. We have your guess at it.

    “The deterrence measured by the experts” was likely never measured by anyone, experts or otherwise. And that’s as open-ended as you can get.

41. Joe - August 14, 2006 at 10:07 pm

    I appreciate this discussion partly since I live in NYC and often take a medium sized shoulder bag when I go on the subway. I never saw a search though heard annoucements warning about them repeatedly.

    The “least intrusive means” approach seems a good idea. No approach is cost-free for individual privacy, but fear of dogs etc. is less intrusive (police less likely to look inside bags, perhaps seeing contraband) in various ways.

    Also, as to the comment about homes, the locale of the search also has to be taken into consideration assuredly. There is no right to use all sorts of contraceptives in subways, right? Cf. Griswold.

    As to reading the opinion, it is worthwhile. It is actually pretty short, esp. if you skim various non-relevant info. It is around 20pg of spaced .pdf pages that would take someone the same amount of time to read than a longish NYT magazine article … appropriately I read it yesterday.

    I find the comment that the judges clearly couldn’t second guess, or even barely consider second guessing, the judgment of the experts somewhat troubling. Experts must not be allowed to take away the job of judges, which includes securing constitutional liberties in many areas where experts have a role. Consider the annoyance of the dissents in Hamdan that the majority second guessed the executive.

42. Brand X - August 15, 2006 at 10:48 am

    Kagro X: We have as a given there is some actual deterrence? No we don’t

    That’s just fighting the given, which proves your hypos (and the arguments relying upon them) are off.

43. Kagro X - August 15, 2006 at 11:26 am

    Brand: The hypos are clearly a joke. There’s no point in offering a serious one when the given is a joke, too.

    When the givens are as ridiculous as yours, all hypos are subject to the attack of being “off.”

    That aside, there’s nothing “off” about it. The someone who opens the letter need not be a terrorist. The “given” that terrorists exist and could come into possession of the information once the letter is opened — which is obviously at the heart of this administration’s secrecy doctrine — is all that’s necessary, when your efficacy threshold requires merely there be some value above zero.

44. Brand X - August 15, 2006 at 1:16 pm

    Kagro X: The “given” that terrorists exist and could come into possession of the information once the letter is opened — which is obviously at the heart of this administration’s secrecy doctrine –

    Except that isn’t the given in the case. That’s the given in your irrelevant hypo. The given in the case is that the random searches have some actual deterrent effect on terrorists seeking to commit terrorist acts in the subway.

    But nice pivot to attacking the Bush administration. I’ll note that the New York police are the authorities performing the searches, so the administration to blame, if any, is the Bloomberg administration. Try to stay focused on relevant points next time.

45. Kagro X - August 15, 2006 at 1:52 pm

    It’s not my pivot, it’s Lederman’s. And your given is still a hypothetical, itself.

46. Kagro X - August 15, 2006 at 2:01 pm

    Besides, there’s still nothing irrelevant about my hypo. Even assuming the otherwise retarded position that it’s a “given” that random searches, even if they’re neither random nor actually even performed, have some actual deterrent effect, and that any such effect, no matter how small or immeasurable, is presumed to exist and therefore justify the program, then why quibble with how the information is released?

    Why would the release of the information have to be any more effective than the searches — or even just the threat of them — have to be?

    If there’s no minimum threshold for effectiveness, there’s no minimum threshold for effectiveness. Theoretically, all that we have to do is contemplate the searches. Then any terrorist capable of calculating the costs and likelihood of detection — and these are the terrorists such a program would have to be targeting — would doubtless know that we knew that they would know that we must be surely be contemplating it, and that therefore some risk existed, and they ought to be deterred.

47. Tortoise - August 16, 2006 at 3:51 am

    Brand X, the problem lies in your proposed test for effectiveness – that “there are no more attacks of the kind we are seeking to deter”.

    Hypothetically, let us state that the risk of terrorist attack on the NY Subway in any given year is 5% in the absence of random searches, and that random searches are actually highly effective and will deter 80% of all potiential attackers, thereby reducing the risk to 1% per year.

    If we review the program after five years, can we tell if it has been effective or not?

    With the program, there is a roughly 5% (4.88%) chance of a terrorist attack during the five year period, i.e, a 95% chance of no terrorist attack.

    Without the program, there is a 77% likelihood of no terrorist attack over the same period.

    Which means that with or without the program, it is still most likely that nothing will happen, and the effectiveness cannot be established. (Remember that there is also a 5% chance of an event even with the program in place).

    If we could wait 45 years before doing the evaluation (and assuming all conditions remained the same) then the cumulative risk of a terrorist event in the absence of searches is 90%, but there is also a 36% chance even if the searches were continued.

    Which is a very longwinded way to say this: The absence of events over a given period is meaningless. The actual value of any anti-terrorist program could only be measured in terms of plots actually detected and prevented.

    And “deterrence” cannot be evaluated at all.

48. Brand X - August 16, 2006 at 10:21 am

    Wrong person # 1: Theoretically, all that we have to do is contemplate the searches.

    This is another off and silly hypo. At issue here is deterrence of the terrorist population, which is mixed into the general population; that requires publicizing to everyone whatever steps we may take and publicizing to everyone that we will take them randomly. Mere contemplation is not even enough in theory.

    Wrong Person #2: The absence of events over a given period is meaningless.

    Only if you assume there is no connection between the absence and the preventive steps taken. I’m not sure why you would make that assumption when your given is that there is such a connection.

    I’m done.

49. Tortoise - August 16, 2006 at 11:15 am

    Brand X. The assumption – clearly stated – was that the preventive steps are effective 4 out of 5 times. Did you actually read the comment, or can you just not understand it? I hope you don’t gamble.

    Or vote. If this kind of misperception is common, checking a Voter’s IQ rather than their ID would seem to be more helpful.

    (BTW, it is perfectly obvious that you’re “done”)

50. Cosim - August 17, 2006 at 11:05 pm

    I find the case troubling, not so much because of the result, but because of the symbolism of the Second Circuit’s opinion – judges deferring to police authorities on a constitutional question. As a New Yorker and subway rider, I’ll make the following comments, against the background of my view that this Mickey Mouse system of searches will hardly make anyone actually safer (albeit some ill-informed people will feel safer, content in the knowledge that the sovereign is doing something – anything! – calculated to make matters better than they’re in reality, even if they aren’t).

    1. The strategy by NYCLU in this case seemed, from the start, to give New York’s Mayor and his commissioner of police what they most craved: a chance to make this subway search program legitimate. Perhaps NYCLU should’ve instead first attacked the Mayor’s power to even impose the search regime – it’s somewhat unclear what positive authority the Mayor can point to authorizing him to act as he has. (Think of this as the recent NSA wiretapping separation-of-powers issue at the local level; when, if ever, did New York’s City Council authorize this kind of suspicionless search? This argument that the Mayor acted ultra vires seems to me a better first strategy than the headlong rush for the fourth amendment.) Judge Calabresi of the Second Circuit, for one, appeared moved by this state law argument. See Tunick v. Safir, 228 F.3d 135 (2000).

    2. Judge Straub deferred to the judgment of three antiterrorism “experts”, whose credentials his rather slender opinion spent quite a lot of time reciting. But in light of the recent move by the Supreme Court toward (pseudo-)empiricism in its Daubert and Kumho Tire opinions, how much do the factors in those cases affect the value of the expert testimony to which Judge Straub deferred? Or do antiterrorism experts get a free pass on that?

    3. A very interesting issue is raised by Judge Straub’s selective quotation of Judge Oakes’ 1974 opinion in the United States v. Albarado case. The issue is consent, which Judge Straub seems to premise much of his judgment on; Judge Straub argues that if one doesn’t want to be searched, then she needn’t ride the subway, but if she does choose to take the train, then she is privy to the searches. Judge Oakes devoted much of his opinion to how a magnetometer search (on all passengers) at an airport must not be premised upon consent; indeed, he actually discussed the concept of coercion, which Judge Straub – quite tellingly, I think – avoided entirely. To quote Judge Oakes,

    [I]f the government were to announce that hereafter all telephones would be tapped, perhaps to counter an outbreak of political kidnappings, it would not justify, even after public knowledge of the wiretapping plan, the proposition that anyone using a telephone consented to being tapped. It would not matter that other means of communication exist — carrier pigeons, two cans and a length of string; it is often a necessity of modern living to use a telephone. So also is it often a necessity to fly on a commercial airliner, and to force one to choose between that necessity and the exercise of a constitutional right is coercion in the constitutional sense.

    By contrast, Judge Straub’s description of a search makes it seem almost enjoyable, and he says, “The officers assigned to each checkpoint give notice of the searches and make clear that they are voluntary.” But voluntary in what sense? Isn’t Judge Straub doing exactly what Judge Oakes admonished against in Albarado?

    4. Everyone is entitled to his own set of…facts? It caught my eye that at least one finding of fact cited approvingly by Judge Straub was at odds with what our newspapers reported at the time. He wrote that police may not “request or record a passenger’s personal information, such as his name, address, or demographic data”, even though the New York Times had reported that “At Sutphin Boulevard-Archer Avenue in Jamaica, Queens, officers were seen asking riders to show a driver’s license or other identification and writing down the personal information.” But perhaps NYCLU didn’t read the newspaper, either? I can’t say.

    5. In an age of anxiety, when bottled water and chapstick can’t freely be brought onto a plane, many judges will strain credulity to believe whatever the state says in the – honest and sincere, I think – belief that they’re defending their society from attack. NYCLU should’ve known that before they played with fire, getting not only themselves burnt, but all of us too, given the precedential and universalistic nature of our legal system.

51. Jackie - September 19, 2006 at 3:17 am

    Harlan said if there’s (say) a 10% chance of getting caught (and arrested, and interrogated), would that discourage someone from actually using that methodology for killing lots of people, rather than some other methodology?

    Paul said It’s true that in order to “scare” terrorists you don’t have to perform real searches, you just have to make people think that you’re performing real searches. You could have fake dogs, as you suggest, or even have the NYPD search some actors who (unbeknownst to the general public) are in league with the NYPD and have secretly given their consent to be searched.

    The key to terrorism is to terrorize, and these are suicide bombers. In rush hour, with enough people lined up to have their bags searched, I doubt whether a suicide bomber would think he’d have to actually get on a train before setting himself to blow.

    These searches aren’t the answer, and sadly, by the time most Americans get around to realizing it, our lost liberties will have become settle law.

    America is over. We can’t even get paper receipts on our voting machines.

Leave a Reply