Subway Bag Searches are Constitutional but Stupid

The New York Civil Liberties Union, an affiliate of the American Civil Liberties Union, filed suit in court yesterday against the random bag searches recently undertaken on the New York City subway system. The group contends that the policy of having cops randomly search the parcels and purses of subway riders (those who refuse are denied entry to the system) is unconstitutional. They are wrong; the searches are within the confines of the Fourth and Fourteenth Amendments, but they are outside the bounds of strategic reason. Indeed, they enhance rather than dispel danger.

The suit alleges that the searches conducted by the police before one pays the fare at the turnstile violates the Fourth Amendment, which protects Americans from “unreasonable searches and seizures,” and the Fourteenth Amendment, which gives equal legal protection to all Americans. Given that London has been bombed once (and a failed attempt followed), that Moscow and Madrid have had their own subway bombings, and that New York City has been attacked by Al Qaeda (though not recently), it is difficult to argue that the searches are “unreasonable.”

An argument that holds some water is the argument that says such searches target certain ethnic groups – in this case people who look excessively Muslim. A Muslim who dresses in Armani is unlikely to be stopped, but one in traditional attire may well be. It is unlikely that old Irish or German ladies from Queens are going to be searched, the argument goes. Perhaps, but if enough non-Arab, non-Muslim-looking folk get their bags searched, and the police can provide statistics to back it up, this argument evaporates as well.

Where the policy really falls to the ground is in its strategic and tactical stupidity. It pre-supposes that the bomber will be deterred by the possibility of being stopped with a bomb in a backpack or shopping bag. Someone willing to die in a suicide attack cannot be deterred this way – indeed, they cannot be deterred at all, only pre-empted. A bag search outside the turnstile only serves to move the point of explosion from the train platform to the ticketing area.

Moreover, the police stand in full uniform in small groups at a plastic, mobile table to undertake the searches. On occasion, they are joined by a member or two of the military, also in uniform. In other words, a definite target is created under this policy to make the terrorist bomber’s job easier. Killing civilians is not as strategically useful as taking out a few members of the NYPD or National Guard. And this policy has concentrated those protectors of the city into easily targeted groups. They are better deployed elsewhere, engaged in other anti-terror activities. That doesn’t mean that the subways of Manhattan and the other boroughs are safe – just that homeland defense policy shouldn’t make it easier for the bad guys to kill the people engaged in homeland defense. Bag searches do just that.


© Copyright 2005 by The Kensington Review, J. Myhre, Editor. No part of this publication may be reproduced without written consent.
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