Random Searches on New York City Subways

Marty Lederman

Dan Solove has an interesting post over at Concurring Opinions on last week's Second Circuit decision upholding the constitutionality of random searches in the New York City subway system. There's a modestly interesting thread in the comments section there involving Dan, Orin Kerr and me, among others.

Dan's principal complaint about the decision is that the courts largely deferred to the government with respect to the question of how effective the search program is at detecting terrorist activity. As I suggest in the comments, however, it appears from the court's opinion that this program is not predicated on actually interdicting any terrorist acts. Its purpose, instead, is simply to convince Al Qaeda that there is a not-insignificant risk that concerted, multi-bomb plans of attack would be thwarted. And if that's the objective, then it really doesn't much matter how comprehensive or frequent the searches truly are -- all that matters is that there's some uncertainty about AQ's prospects for success, an uncertainty that, according to expert tesimony, serves as a useful deterrent to such planned attacks.

As I wrote in the comments there, under the government's deterrence theory that the court of appeals endorsed, data about the frequency or effectiveness of the searches are beside the point: It doesn't matter how many people are searched, or that the searches never turn up evidence of terrorist acts. Indeed, it probably doesn't matter, on their theory, whether there are any serious searches going on at all. Uncertainty is everything. And so, if the federal courts were actually to "find" that the searches are minimally intrusive and are thus ineffective -- that all but the most amateur terrorists would be able to easily circumvent the program -- such a finding would itself undermine the actual effectiveness, the deterrent value, of the program.

This is a difficult argument to counter. It doesn't have any particular stopping point, and would appear to justify all manner of police practices intended to disorient and deter Al Qaeda. So it is a real problem figuring out how to deal with it under Fourth Amendment doctrine.

More broadly, I think this is an example of a recurring theme in the conflict with Al Qaeda: the asserted need, above all else, that U.S. law and law-enforcement practices not be transparent, the better to create uncertainty about the conduct and limits of anti-terror efforts. One sees it, for instance, in the torture debate, where the whole point appears to be to obfuscate which interrogation techniques are lawfully permitted so that Al Qaeda detainees will not know what their captors are capable of doing. And in the Padilla detention case: By the government's own admission, the interrogation of Padilla would only be effective -- the relationship of "trust" and "dependence" with his interrogators could only be sustained -- if Padilla were convinced that all hope was lost, that no judicial processes were at work, that he had no prospect whatsoever of any legal process, let alone due process. If he were actually permitted to speak to an attorney -- who would tell him that there was an actual lawsuit pending on his behalf! -- the jig would be up. And also in the debate about electronic surveillance: The Administration claims that it could not actually amend FISA to permit the NSA program, because such transparency -- you know, the sort one gets when the laws are actually written into the statute books rather than in secret DOJ memos -- would tip off the terrorists to what our government is doing. Everyone, including the Congress, must actually think that FISA is still fully operative -- the better to lull everyone into speaking freely across the wires.

In sum, this appears to be of a piece with a concerted effort to establish a system of secret law and secret law-enforcement practices. The ordinary checks and balances of an open system in which the courts, Congress and the public understand what the law provides, and are able to evaluate what the government is doing? -- Well, that only helps the terrorists. Which is undoubtedly true. In a secret police state, where there's no assurance that the law sets any limits on the state, and where the legal limits are unknown -- no more than rumor -- wrongdoers surely are deterred by the uncertainty of it all. (Add obligatory Kafka citation.) Abiding by a rule of law -- of transparent, open, law -- does, indeed, give wrongdoers more information about the limits of the state. That's one of the costs of democracy.
Posted 8:39 AM by Marty Lederman [link]