There was a huge public outcry last December when it was revealed that President George W. Bush had authorized the National Security Agency to intercept international communications of citizens with known connections to terrorist organizations.
But oddly enough, the public has been relatively mum on a recent decision by the 2nd U.S. Circuit Court of Appeals that I think represents a far greater threat to our civil liberties.
Last week, the court upheld a lower court decision allowing the New York City Police Department to conduct warrantless and random searches on the city's subway system. The court of appeals found that a lower court judge properly concluded that the program was a reasonably effective deterrent (to terrorism) and that intrusion on passengers' civil rights was minimal.
Article Four of the Constitution guarantees the right of every citizen "to be secure in their persons, houses, papers and effects from unreasonable searches and seizures …" The Constitution says nothing about deterrence.
The constitutional standard is "reasonableness," and the issue, therefore, is whether it is reasonable to randomly search the backpacks of students, Haitian nannies or little old Ukrainian women.
Legal precedent has established that random searches are legal (and reasonable) so long as they meet a "special need" like public safety. The city of New York argues that the nation's largest subway system is a prime target of terrorists and preventing an attack on the system is important enough to warrant random searches. Of course, experience teaches us that any large gathering of people is a prime target for a terrorist bent on murder. Will the NYPD soon be empowered to randomly search bags at the Macy's Thanksgiving Day parade? Shakespeare in the Park? Any large shopping mall?
Before we open the gate to wholesale violations of the fundamental rights and liberties of a free society, shouldn't it be incumbent upon the city of New York (or any other city contemplating such a program) to show that such searches actually work? In fact, isn't the reasonableness of a program at least partially demonstrated by its effectiveness?
The NYPD doesn't have the manpower to conduct searches at every subway stop or to place baggage inspection stations at every entrance. The searches are primarily conducted during rush hour, and public address notices and signs notify passengers of the inspection station at that location. Passengers are also allowed to decline to be searched and simply walk away with no further action taken against them (they are not allowed to ride the train if they decline).
Alas, the NYC program, like our airport security, is reactive — it assumes behaviors by terrorists that are no longer demonstrated to be true. Any terrorist bent on murdering New Yorkers would certainly be willing to enter a subway station during off hours and spend a few hours hanging out until rush hour. And because they are given ample warning, if confronted, they are free to simply walk away, find another entrance or board another train.
The effect is that the NYPD is spending man-hours searching innocent people without cause. That seems not only ineffective, but unreasonable as well, and should be greeted with the vocal and passionate derision of every American.
The battle we are now engaged in is over which vision of the world will predominate in the coming century. One ideal aspires to equality and liberty. The other believes these ideals to be the root of immorality. Freedom or force? Choice or submission?
If in our effort to defeat the forces of tyranny and evil, we sacrifice the very ideals we have staked our lives on it will be a hollow victory indeed.
Joseph C. Phillips is an actor/ writer based in Los Angeles.