Letter: MTA’s Search Policy Raises Major Constitutional Questions (Wall Street Journal)

In response to acts of terrorism in the London Underground, New York City officials have introduced a program that exposes thousands upon thousands of subway riders to searches of their bags and belongings even though they are not suspected of any wrongdoing. Even city officials recognize that this massive program of suspicionless searches is extraordinary and unprecedented. It also raises serious constitutional questions respecting the right of people to move about freely without police intrusion.

Long-established constitutional principles hold that, as a general matter, police officers may not search individuals on our streets and public thoroughfares absent individualized suspicion. The courts have recognized an exception to this rule, however, where the police searches rest upon a “special need” unrelated to general crime control. But this exception only applies if the searches realistically and effectively advance that need. City officials contend that it is important to try to prevent individuals from bringing explosives onto the subways. We agree. But the problem is that the City’s policy allows individuals to avoid being searched simply by walking away and entering the subway system through a different entrance. This policy is, therefore, unlikely to discover or even deter any would-be terrorists and is unlikely to advance any serious safety interest. At bottom, the City has introduced a policy that authorizes widespread and intrusive searches of thousands of innocent subway riders and does so in a way that makes us no more safe but appreciably less free as we move about the City.

This program is so unprecedented and closely-watched by other municipalities that it has a transformative capacity. It has the capacity to change our collective expectations of privacy and our own sense of the appropriate limitations on police-citizen encounters. In this regard, Justice William O. Douglas has observed: “The privacy and dignity of our citizens [can be] whittled away by sometimes imperceptible steps. Taken individually, each step may be of little consequence. But when viewed as a whole there begins to emerge a society quite unlike any that we have seen – a society in which government may intrude into the secret regions of a [person’s] life.” That is the danger posed by the casual acceptance of this program. It is a small distance both physically and legally from checkpoints on the mezzanines of the subway system to checkpoints on our sidewalks.

Our democracy protects individual liberty through a system of checks and balances. It is the responsibility of City officials to develop policies designed to make us safer. But the courts perform a checking function. And when government policies of this significance are of dubious constitutionality the NYCLU cannot simply look away. Raising questions about the City’s program wins no popularity contests. But in these times of deep national anxiety and conformist pressure, if NYCLU doesn’t raise questions, who will? This we have done in this case. In doing so, we suggest that the City has other options. Rather than deploying officers to conduct futile and unyielding searches of innocent people, it can use those same officers more efficaciously to create a more significant police presence in the subway system. Such a program would more effectively address public safety without sacrificing core constitutional liberties.

Arthur Eisenberg
NYCLU Legal Director

Click here to read Dorothy Rabinowitz’s ‘The Other War’ on the Wall Street Journal’s ‘OpinionJournal’ web site.