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A special need, indeed

Yesterday in Manhatten, Federal District Court Judge Richard M. Berman rejected the New York Civil Liberty Union's challenge to random police searches of the bags and backpacks of subway patrons.  Following a bench trial, Judge Berman concluded that the governmental interest in preventing a terrorist bombing of the subway system outweighed the invasion of privacy resulting from the random searches, and thus held that the searches passed constitutional muster.

His decision can be found here.  The NYCLU's Complaint can be found here.  The NYCLU's summary of the bench trial can be found here.

The judge based his decision on the "special needs" doctrine, which was originally intended to support searches in situations that were beyond the need for normal law enforcement.  Historically, if the special needs doctrine applied, searches could be conducted based upon less than probable cause, but only in certain carefully chosen regulatory (as opposed to law enforcement) contexts, as long as the purpose of the search did not include apprehension of one guilty of criminal conduct.  The situations in which the doctrine has been held to apply have been expanded by the courts in recent years.

I believe that the judge was overreaching in this case and am hopeful that he'll be reversed on appeal.  Otherwise, our Fourth Amendment rights will continue to be eroded to the point where any search without a warrant will be consitutional, as long as it was conducted in the name of the fight against the nebulous concept of terrorism.


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I was well on my way to agreeing with you on the legal implications of this ruling, but I have trouble with your characterization of the unfortunately very real threat of terrorism being deemed a "nebulous concept." Even the ACLU conceded to the court in this case that terrorism is real and that law enforcement agencies are entitled to and mandated to be vigilant in their efforts - as long as those efforts are within Constitutional parameters.


Wdegraw, I don't disagree that terrorism is real. However, until it is defined with specificity, and law enforcement officers are required to operate within the parameters of that definition, any minor infraction could arguably be classified as "terrorism." And whenever that occurs, it seems that our Fourth Amendment rights go out the window.


Until the terrorists - who we know mean us great harm - define "terrorism" for us, how much more specifically defined does it need to be in light of the London and Madrid train/bus bombings?

When you say that "any minor infraction can be classified as "terrorism"', what do you mean? Perhaps an example?

Also, can you balance the minor inconvenience of a random bag search in a public place with the major consequences of a terrorist attack - in light of the specific parameters of very successful deadly public transportation terrorist attacks thus far in Europe (and ALL THE TIME in the Middle East)?

For instance, in light of 9/11, most reasonable folks accepted (and still do) the inconvience of full blown bag searches at our airports. So why after London and Madrid should our expectations of privacy, safety or convenience be any more (or less)?

Nicole Black

wdegraw-- I'll refer you to Wikipedia's page on alleged Patriot Act abuses:

The stated purpose for the Act is to: "deter and punish terrorist acts in the United States and around the world, to enhance law enforcement investigatory tools, and for other purposes."

The topic headings from the Wikipedia page include 1)Using the Act to investigate alleged copyright infringement, 2)Using the Act to investigate child pornography on the internet, and 3)Using the Act against the homeless.

This is the perfect example of a failure to adequately define what behavior constitutes "terrorism" and the goverment's apparent willingness to abuse the power granted by the Act in violation of the rights of ordinary citizens uninvolved in terrorist activites. Therein lies my concern.


The problem is not with the definition of terrorist, it seems to be with whether you think a criminal investigation aimed at terrorists must be limited to investigation of violent acts or whether you can target terrorist activity through other crimes as well (what I suggest we call "the Capone strategy").
Nicole may be against the Capone strategy, or she may think it is being used in cases unlilkely to be related to terrorist activity.

Nicole Black

Well, truth be told, what I am truly afraid of is the government having too much unchecked power. I don't trust the government *not* to abuse power that is given to them. In fact, it's human nature to abuse power and historically there are many examples of those in power abusing it in order to retain control. I'm not particulary enamored with the idea of a new era of McCarthyism in which we seek out terrorists, rather than communists.

I value my right to be free from governmental interference too much to roll over and play dead simply because of fear. I know it's a cliche by now, but I truly believe that if we do that, the terrorists have won.

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