In MacWade v. Kelly, the subway bag search case, the court found that the bag search program “is an effective measure to help deter and detect a terrorist attack against New York City’s subway system,” even though searches are pre-announced and anyone who doesn’t like to have their bag searched (a subset of passengers that presumably includes everyone with a bomb in their bag) can simply walk away. The basis of the court’s finding was the testimony of Commissioner Sheehan and Richard Clarke, the defendants’ experts. The reasons given for the effectiveness of the program were that
- Its random nature “adds uncertainty and unpredictability to the planning and implementation of a terrorist attack”; and that
- The program “reinforces the awareness of police officers, transit workers, and the public of the need to be alert.”
Reason (1) simply begs the question. A program that’s not effective to begin with doesn’t somehow become effective just because it its administered in a random fashion. Random strategies presuppose an effective program. And with respect to (2), one must seriously wonder if the witness wasn’t joking. The purpose of the bag searches is to keep the police awake alert? C’mon! (Dan Solove has some fitting comments on this issue.) And that’s it. That’s the basis for the court to conclude that the bag searches are an effective means to deter and to detect a terrorist attack. I am not convinced, and it appears that court took its own admonition to heart that:
[I]t would be inappropriate for courts to second-guess the judgments of law enforcement officials and other public officials who are charged with protecting the public and making difficult choices of resource allocation.
That, of course, is a ridiculously lenient standard of judicial oversight. I wonder if there are any public officials who aren’t “charged with protecting the public and making difficult choices of resource allocation.” If that were the standard, then judicial review as such would be nonexistent.
The most interesting issue raised by the opinion is somewhat less obvious. In the conclusions of law, the court writes:
Against the compelling government interest in preventing a terrorist attack, the Court has weighted the (relatively limited) level of intrusion imposed upon subway riders.
Borrowing language from economics, the court compares totals, i.e., a terrorist attack, with marginals, i.e., the intrusions imposed upon subway riders. The comparison is not between “preventing terrorist attacks” and “people’s privacy” (two totals), nor is it between “the increase in safety from the subway bag search program as challenged” and “the relatively minor intrusions imposed upon subway riders by the program” (two marginals). As between the two, only the latter is a reasonable approach to weighing competing interests, but be that as it may, comparing marginals to totals is simply not meaningful, because the totals will always win. The court’s faux balancing is merely a rhetorical gloss on a foregone conclusion.
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I assume that if searches took place at 99% of subway stops that would be an “effective” program worthy of a serious balancing against the intrusion on privacy, whereas a program at only one subway stop would not be effective, and that there is some line in the middle between effectiveness and ineffectiveness. Then the question becomes, how much deference does a judge give to law enforcement officials in drawing that particular line, which essentially involves an empirical determination about deterrence and criminal behavior? I think these are not questions as easily answered, for a judge, as your post suggests.
That being said, the program ultimately is probably not about deterrence at all, but about making people feel better(irrationally perhaps, but no less actually) — helping them feel, subconsciously if nothing else, that the authorities are doing something, anything, about what is from a rational point of view (at least for local law enforcement authorities who have no control over international policy) the intractable problem of terrorism. Is helping people feel irrationally more protected a valid government purpose that is entitled to constitutional recognition?
This effort to give people comfort that the government is doing something, anything (no matter how pointless or even counterproductive in reality) to “fight” terrorism, is by the way, the same ultimate reason, it seems to me (and has seemed to me from the beginning), that we went to war in Iraq.