Sunday, November 16, 2008

"NOTICE: Backpacks, carry-on items and other containers are subject to inspection."

So state the new Metro signs warning riders that police may randomly select them for a search of their property before they enter a station or board a bus [front page, Oct. 28]. The purpose of the program is, of course, to deter terrorist attacks.

So why would anyone complain about a program that, according to the Metro transit police, "offers our customers [an] additional layer of protection" against a presumed terrorist threat? After all, a similar program that began three years ago in New York was upheld when the U.S. Court of Appeals for the 2nd Circuit rejected an American Civil Liberties Union challenge. In concluding that the program passed the "special needs" test of the Fourth Amendment's protections against unreasonable searches and seizures, the court cited the testimony of a panel of experts, among them former White House counterterrorism adviser Richard Clarke.

The panel concluded that the program was a "reasonable method of deterring (and detecting) a terrorist bombing" on the subway because it "creates an incentive for terrorists to choose . . . an easier target." Notwithstanding the fact that a potential terrorist might simply decline a search request and enter a different station entrance, we could concede that the Metro transit police program might marginally reduce the likelihood of an attack on Metro. But the program will not reduce the terrorist threat as a whole. According to security specialist Bruce Schneier, the program is like squeezing a balloon.

"The threat is terrorism, and smart solutions reduce the threat overall. Dumb solutions move the threat around -- from the Metro to buses, from D.C. to another city -- and so on. But Metro officials have a different view; to them, the threat is terrorism on the Metro. If they institute this program and the terrorists go bomb something else, it's a win for them. But for all of us, it's a waste of money."

Despite the program's uncertain security benefits, its defenders are quick to note that subway and bus searches are an inevitable corollary of airport searches -- which the courts have upheld. But it's folly to extend the legitimacy of airport searches to public transportation -- and not just because it would be impossible for the system to function if every bus and subway rider had to be searched. It's folly because there appears to be no logical limit to where random searches can occur in a public space.

As innocent citizens become increasingly accustomed to police searches, politicians and police are empowered to further expand the number of places where we're all considered guilty until proven innocent. Given the open-ended permissiveness of the courts' previous opinions, what, other than the fear of public backlash, prevents the Metro police from announcing an expanded program allowing random searches of individuals entering a security perimeter of, say, 100 yards from a randomly selected Metro station? If you were to live or work within the "protection" of such a security zone, would you feel any safer?

So what does a freedom-loving Metro rider do when asked to submit to a random search in the capital of the free world? Choose to refuse.

-- Steven Silverman

Washington

The writer is executive director of the Flex Your Rights Foundation.