August 11, 2006
Court Rules NY Police Can Search Bags at Subways
By Christine Kearney
NEW YORK (Reuters) - Random bag searches by New York police at subway stations are constitutional and an effective means of combating terrorism, a federal appeals court ruled on Friday.
"In light of the thwarted plots to bomb New York City's subway system, its continued desirability as a target, and the recent bombings of transportation systems in Madrid, Moscow, and London, the risk to public safety is substantial and real," the U.S. Second Circuit Court of Appeals said in its ruling.
The court disagreed with the New York Civil Liberties Union, which last year sued the city claiming that the random bag searches police have conducted since July 2005 bombings on the London underground rail system were unconstitutional and would not deter an attack on America's largest subway system.
The NYCLU had argued the searches were ineffective as police had too few checkpoints and invaded privacy rights. But the court said the testimony of three counterterrorism experts showed the value of the searches.
"The expert testimony established that terrorists seek predictable and vulnerable targets, and the program generates uncertainty that frustrates that goal, which in turn, deters and attack," the court said.
Among the experts who testified were Richard Clarke, a former White House counterterrorism chief, who said he believed most U.S. transit systems were "under protected."
The judges noted the importance of the experts' belief that the unpredictability of the searches "deters both a single-bomb attack and an attack consisting of multiple, synchronized bombings, such as those in London and Madrid."
While the court agreed the searches compromised riders' privacy, "the kind of search at issue here minimally intrudes upon that interest" because the random searches were limited to bags that could contain explosives and last only seconds.
The judges noted that New York's subway system had been a "prime target" in the past, including a 1997 plot to bomb Brooklyn's Atlantic Avenue subway station and 2004 plot to bomb the Herald Square subway station in Manhattan.
"Because this program authorizes police searches of all subway riders without any suspicion of wrongdoing, we continue to believe it raises fundamental constitutional questions," said New York Civil Liberties Union lawyer Chris Dunn.
New York City's law department noted the court's decision followed Thursday's news of a terrorist plot in Britain to detonate bombs on passenger planes traveling to the United States.
"The program -- whose constitutionality two federal courts have now recognized -- enhances the safety of millions of New York City subway riders," said Kate O'Brien Ahlers, spokeswoman for the city law department.