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.

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.

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”)

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.

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.

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.

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.

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.

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

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.

“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.

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.

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).

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

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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.

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.

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.

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.

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.