Some tiny creature, mad with wrath,

Is coming nearer on the path.

--Edward Gorey

Location: Pittsburgh, Pennsylvania, U.S. Outlying Islands

Writer, lawyer, cyclist, rock climber, wanderer of dark residential streets, friend.

Monday, July 25, 2005

The Terrorists Are Winning

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
--The Fourth Amendment to the Constitution of the United States of America

Only systematic random searches have been deemed constitutional in the related context of highway sobriety / immigration checkpoints. While the New York authorities have paid lip service to the systematic nature of their random searches, one reporter I read / heard (can't recall where) indicated that at the station he monitored, the intention to search every fifth passenger broke down as soon as the station got busy. Subsequently, approximately eighteen people in a row went unsearched, followed by three consecutive searches. When the police write their own rules, their biases inevitably infect the process. Hence the requirement of systematicity in the sobriety checkpoint context, something even more urgently required in this new context.

Furthermore, the dinimution of one's expectation of privacy while driving is tied to the heavily regulated nature of automobile licensure and usage. While mass transit is heavily regulated, its passengers are not. No license or identification traditionally is required. You can ride no matter your age or state of disability. These criteria substantially distinguish the patronage of mass transit from driving a private vehicle and call into question the constitutionality of the checkpoints in the first instance.

Then there's this, from a story relating the temporary evacuation on Sunday of New York's Penn Station following a bomb scare:

Also Sunday, a double-decker Gray Line tourist bus was evacuated in midtown Manhattan after a bus company supervisor told police that five male passengers with backpacks and "stuffed" pockets had raised her suspicions. Police handcuffed five men and searched about 60 passengers before determining there was no threat.

Shall we return to the Fourth Amendment? The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . unless, of course, they have "backpacks and 'stuffed' pockets," in which case, in the parlance of hide-bound Fourth Amendment law, they evidently have virtually no reasonable expectation of privacy.

Furthermore, let's make no mistake: thanks to the suspicions regarding the five passengers in question, the police searched 60 passengers, as if to say, "Well, while we're at it." Sixty searches based on the dubious suspicions of one untrained private citizen regarding five men.

That New Yorkers didn't acquiesce to the crushing tragedy that befell it in 2001 testified to its singularity among world cities. Would that they were so defiant in the face of this quiet erosion of its fundamental freedoms. For surrendering to such disquietingly invasive measures without a fight is letting the terrorists win; five years ago, these security measures would have precipitated an insurrection.

If it's this bad before someone manages to detonate some sort of explosive in a public place in Manhattan, how much worse is it going to get when someone does. Becuase it's the worst kept secret in the United States right now that our time is coming; if Madrid didn't make that clear, London sure as hell ought to.


Anonymous Anonymous said...

This kind of thing irks (ok, seriously fucking annoys) me no end - but it strikes me that 4th Amdt. protections were disappearing long before 9/11. Are the terrorists winning on this (are we destroying those freedoms they supposedly hate) - you betcha! But it's not just because of them.

12:14 PM  
Blogger Moon said...

Of course you're right that, with increasing ignorance of the cost, the American people have been standing by while their A4 rights are eroded step by step. And while it didn't start with 9/11, let's not forget the seminal moments of the first WTC bombing (I had the pleasure of living in NYC then, and there was a heavy uptick in security in the immediate wake of the bombing which made it terribly difficult, albeit not impossible, to sneak booze up to the Empire State Building's observation deck) and the McVeigh / Nichols bombing of the federal building in Oklahoma City. 9/11 hardly marked the invention of terrorism on these shores. Indeed, as someone recently noted, the terrorism reaches back to our Minutemen and beyond.

2:30 PM  

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