Balkinization  

Monday, July 25, 2005

Terrorism, Deterrence, and Searching on the Subway

Daniel Solove

Dave Hoffman (law, Temple) over at the Conglomerate blog, has written a very thoughtful retort to a recent post of mine (cross-posted at PrawfsBlawg and Balkinization) regarding the searching of baggage on NYC subways. I argued that:

It is another big waste of money and time, as well as a needless invasion of civil liberties -- all for a cosmetic security benefit. There are 4.5 million passengers each day on the NYC subways. What good could a few random checks do? The odds of the police finding the terrorist with a bomb this way are about as good as the odds of being hit by lightning. I doubt it will have much of a deterrent effect either.
Dave argues that I’m “underestimating the effect of random searches on public safety.” I am not much of an expert in behavioral law and economics and deterrence, so I’m straying far away from my turf. But I’ll try my best to defend the territory I’ve wandered onto.

Dave argues: “Terrorists are notoriously risk averse - they obey the law punctiliously until they attack. Thus, even a relatively minor risk of being caught will act as a very large deterrent, forcing terrorists to find other paths.” Really? Since when are terrorists risk adverse? Anybody willing to blow oneself up in the process of committing his or her crime is hardly risk adverse. And I just don’t see the relevance of the fact that terrorists obey the law prior to engaging in terrorism. However, suppose Dave were correct and the terrorists would “find other paths.” There are so many other targets that are even more dangerous and damaging. So we close off one target but leave the rest unguarded. Are we really any safer?

Dave also contends that if the police vary the number of searches, it will make it “hard for terrorists to intelligently evaluate the likelihood of being stopped on any given trip.” But unless the number of searches were really great in proportion to the number of subway riders (4.5 million each day), the variation would be relatively small. Wouldn’t the terrorists think that if three or four of them tried to bomb the subway on a given day, probably all (or at least most) would get through?

Dave argues that “there is a good argument that terrorists, subject to human behavioral tics, are likely to vastly overestimate the likelihood of being caught and therefore be more deterred than rational terrorists (what a contradiction in terms that is!) would be.” But Dave forgets that many terrorists are different from ordinary criminals in that terrorists are often on a suicide mission. They care about getting caught only because their mission might fail, not because of any potential legal sanction that might be imposed. If Dave is right, why on 9-11 did the terrorists try to use planes? Why not try some other means of terrorism? After all, planes involve a lot of security whereas other targets don’t. Wouldn’t the “risk-adverse” terrorist who might overestimate being caught attempt something else? Why did they go to flight school and expose themselves at many points to being detected when they could have tried something different? I’m certainly no expert on terrorist behavior, but I’m not very convinced by Dave’s theory.

Dave says: “Will terrorists then move on to other targets of opportunity? Probably. But forcing them to do so would be a victory.” I’m not so sure. This depends upon what the other targets are. Is it a victory to stop a terrorist from bombing a subway car and killing 40 people so that the terrorist decides instead to blow up a building or mall killing thousands?

Dave says I speak of two kinds of costs – law enforcement costs and civil liberties costs. For law enforcement costs, Dave argues that I neglect the other law enforcement benefits such as catching drug use and guns. True, the searching might help the police enforce other criminal laws, but I worry that the “special justifications” for fighting terrorism will then be used as a way to conduct general policing. The issue is whether we want ordinary crime policed at the same degree of invasiveness as terrorism.

The civil liberties costs are high, which Dave admits. There are also other costs as well, such as inconvenience and hassle, something which New Yorkers don’t like very much. Frankly, I wonder how long New Yorkers will be willing to put up with these searches.

Now, of course, let’s assume that the searches are not done using some kind of racial profiling – that they truly are random. If they’re not, then we need to address the profiling issue, which involves another cost Dave isn’t accounting for.

Finally, I’m a bit confused by Dave’s example. He uses a model of 1000 random searches per day, and calculates a “7% chance of being searched over the course of a year of weekdays.” I don’t know enough to say whether his rough calculations are correct, but I question the basic underlying assumption. Why look over the course of a year? Doesn’t this assume that a person rides the subway each and every day? Are terrorists likely to ride regularly each day and always be transporting materials for their plot on the subway each time?

Dave makes his arguments with humility, admitting that many of his points are made based on assumptions and models of behavior that he’s not entirely sure are correct. My arguments are made with a similar humility. I’m speculating a lot and am resting on a number of assumptions too.

There is another argument Dave doesn’t raise against my position that is worth thinking about. He might contend that even if I’m right that the searching provides mostly a “cosmetic” benefit, is there still a benefit worth considering? If a cosmetic but ineffective security measure makes people feel better, doesn’t making people feel better have value? So if Security Measure X is much less effective and more costly than Security Measure Y, but X makes people feel much better, to what extent should this attribute weigh in the balance? But even if we can placate people based on false perceptions, should we?

Comments:

Why should the way a strategy makes people feel be a consideration at all -- at least, if we're talking in terms of rational policymaking rather than political calculation?

At the very least, if the government wants to make people feel good, is this such an overridingly important goal that it's worth diminishing people's civil liberties for?

Wouldn't most people, if given the choice, prefer a government that protects our liberties and leaves our feelings up to us to deal with? Isn't the idea that our feelings are the government's responsibility kind of ridiculously statist?
 

A long overlooked aspect of 9-11 that bears on the question in play. The 9-11 terrorists exploited a well-known security hole that allowed you to bring knives and other sharp things onto the flight deck. It was legal to have the box cutters, so the terrorists had no reason to fear a search.

And, at the time, people did not fear plane highjacking. The model was, you took a flight to wherever the highjackers wanted to go and they let you go home. Cooperation with the highjackers was stressed, not confrontation.

Terrorists seeking to blow up the NY subway have little or nothing to fear from random searches. They can test the search patterns with ease, simply by going back and forth to the various forms of entertainment available in NY. They can easily see which lines get real searches and which don't.

They can look for the built in security holes, just like 9-11.
 

The problem with any target-hardening strategy is that you can't harden every target. There simply isn't enough money. If you harden the subways, the target will become buses. Or hospitals. Or elementary schools. Or day care centers. And so on.
 

By the way, why would a terrorist, being searched on a crowded, underground line or platform, care whether or not he or she is actually on the train before taking the lives of the nearby innocents? Searches are sheerly cosmetic.
 

Why should the way a strategy makes people feel be a consideration at all -- at least, if we're talking in terms of rational policymaking rather than political calculation?

It's important that people feel comfortable moving around freely. It's important to have some visible security apparatus in order to make sure people know that they are safe. This visible apparatus ought not be intrusive, and it ought not give a mistaken impression of security. The NYC subway-search plan fails on both counts - but we shouldn't discount the importance of visible security mechanisms wholesale.
 

What strikes me as bizarre about the NYC searches is that anyone who doesn't want to be searched can simply exit the subway. So why should a terrorist fear being searched at all? Isn't it quite zany to believe that someone possessing weapons will consent to a search? Won't the "rational terrorist," which seems to be at the heart of this debate, simply exit and move to another subway entrance? If NYC were London, with everyone being photographed (and immediately identified?), then the putative opportunity to refuse to consent would presumably come with a significant cost, but I assume that the NYC program isn't there (yet?). I'm with Daniel: The NYC program is the worst kind of attempt by government to fool a gullible public. (I note for the record that when I was leaving the Tel Aviv airport last month, on an El Al flight, not only did they not make me take off my shoes and sport jacket, but the meal included a real fork. Since I find it incredibly implausible that El Al is "soft on the terrorist threat," I can only conclude that our having to take off our shoes in American airports (and being provided with inadequate plastic forks) is foolish and serves no real purpose).
sandy levinson
 

What strikes me as bizarre about the NYC searches is that anyone who doesn't want to be searched can simply exit the subway. So why should a terrorist fear being searched at all? Isn't it quite zany to believe that someone possessing weapons will consent to a search? Won't the "rational terrorist," which seems to be at the heart of this debate, simply exit and move to another subway entrance? If NYC were London, with everyone being photographed (and immediately identified?), then the putative opportunity to refuse to consent would presumably come with a significant cost, but I assume that the NYC program isn't there (yet?). I'm with Daniel: The NYC program is the worst kind of attempt by government to fool a gullible public. (I note for the record that when I was leaving the Tel Aviv airport last month, on an El Al flight, not only did they not make me take off my shoes and sport jacket, but the meal included a real fork. Since I find it incredibly implausible that El Al is "soft on the terrorist threat," I can only conclude that our having to take off our shoes in American airports (and being provided with inadequate plastic forks) is foolish and serves no real purpose). Ditto, I'm afraid, for the random searches, at least if we allow the "opt out" (and I assume that it would be unconstitutional not to).
 

Is there any profiling involved with these random subway searches?
 

I am looking everywhere for comfort shoes and comfort shoes, while doing so I somehow stumbled onto your comfort shoes blog. I am happy to say I learned something and will look into this further...

Thanks for the great posts...

jon
 

Having discovered your blog through the blooger toolbar, I hope you don't mind saying that I have a ebooks site/blog. It pretty much covers ebooks related stuff. Check it out if you have time.
 

money making opportunity
 

Hi, I was just blog surfing and found you! If you are interested, go see my Stormclix related site. It isnt anything special but you may still find something of interest.
 

Hey I was just blog surfing amd I found your blog! Looks Great!

I also have a airline american center ticket
It deals mostly with airline american center ticket plus other stuff,
You can save up to 50% your next flight!

You should check it out if you get a chance!!
 

Hello,

I am searching for fresh information
for my cc Infopage, 30,000 daily updated Information Pages about all kind of subjects.

It might interest you to know that your blog has been visited and has been read. I hope you enjoy your "Blogging".

I wish you all the luck I can, keep the good work going!

Kind regards,
Jos
Today's News From & About Google
 

Yo, This blog is pretty neat. You should check out mine sometime. It pretty much covers free money making opportunity related stuff.
 

What a great site you have here, I bookmarked it!

I have a quit smoking help related info site. It covers quit smoking help related information.

Check it out when you can. ;)
 

Your post is great and let me say

A favorite pastime of mine is Sports Betting to make a few extra bucks.
My only problems is that I was never good at picking teams or games.
Recently I found a site that is like Sports Betting but I dont lose my money if my pick is bad.

Its a sports stock market, kinda like NASDAQ. which makes a big difference because if I buy shares in a team. I keep the stock whether they win or lose, but as a bonus I get paid divdends if they win.
So I can make money with dividends and also from selling high and buying low.

I buy shares in NFL, NASCAR, NCAAB, MLB, Golf, Tennis ect....
They just released Some Great IPOS's this week!

Heres a link http://allsportsmarket.com
you can log in and check it out for free..


Keep up the good work on your blog!
-Erik
 

Help me Dude, I think I'm lost.

I was searching for Elvis and somehow ended up in your blog, but you know I'm sure I saw him in a car lot yesterday, which is really strange because the last time I saw him was in the supermarket.

No honest really, he was right there in front of me, next to the steaks singing "Love me Tender".

He said to me (his lip was only slightly curled) "Boy, you need to get yourself a shiny, new lcd tv to go with that blue suede sofa of yours.

But Elvis said I, In the Ghetto nobody has a lcd tv .

Dude I'm All Shook Up said Elvis. I think I'll have me another cheeseburger.

Then I'm gonna go round and see Michael Jackson and we're gonna watch that waaaay cool surfing scene in Apocalypse Now on the lcdtv in the back of my Hummer.

And then he just walked out of the supermarket singing. . .

"You give me love and consolation,
You give me strength to carry on "

Strange day or what? :-)
 

FREE Wordpress Hosted Blogs With 10 Customised Templates To Choose From at Blogsilla.com

people magazine subscription

Free unlimited number of blogs
 

It's tough finding good career in finance information like this. Have a look here career in finance for some more good stuff if you get a chance.
 

Very cool blog you got! I just added you to my bookmarks!

I have a great article resource you might want to check out.
 

Cool blog you have. I have a casino money related site. Check it out if you get a chance. The URL is casino money
 

Bloggs are such a wonderful way to plublish ones thoughts. Thanks for letting me visit and leave a comment. quitting smoking
 

Inevitably this always catches up with you and usually at the worst possible time calculation . calculation
 

Lots of good mcm electronics information here. Also check out mcm electronics if you get a chance. I was able to lear a lot.
 

online casino directory Informazioni circa online casino directory Un commento su online casino directory Guida informazioni e rapporti per online casino directory, questo sito offre pagine dedicate a online casino directory e suggerimenti e consigli su come e dove giocare! online casino directory
 

According to a 12/02/05 NYT article

http://www.nytimes.com/2005/12/02/nyregion/02cnd-search.html

Police Commissioner Raymond W. Kelly said through a spokesman, "Common sense prevailed." in response to a ruling by Judge Berman approving the random bag searches by the NYPD. Mayor Bloomberg also supported the ruling.

Kelly, Bloomberg, and Berman all need a lesson in common sense. If a person with a bomb is stupid enough to continue walking past the police checkpoint *and* unlucky enough to be searched, he will simply refuse, exit the station, walk 6 blocks and enter the next station, where there is no police checkpoint.

This policy does nothing to increase security and at the same time cuts deeply into the skin of the New Yorker's privacy, not to mention our rights under the fourth amendment.
 

Hi there, what a wealth of information there is available!! I was searching for casino player and can see how I landed on your blog while looking for casino player related info!! Although your blog wasn't exactly what I was looking for it certainly got my attention and interest. Kind regards and thanks for the read
Luke
 

Hi there, what a wealth of information there is available!! I was searching for grand online casino and can see how I landed on your blog while looking for grand online casino related info!! Although your blog wasn't exactly what I was looking for it certainly got my attention and interest. Kind regards and thanks for the read
Luke
 

Post a Comment

Home