Are Subway Searches Really the Top of the Slippery Slope to Korematsu?

slippery_slope.gif

Dan’s “Rational Security” post and Jason’s provoking democratic searches response seem to me to have occupied part of the field of what I wanted to say here, which is that random suspicionless searches can be left to democratic controls without imperiling the entire constitutional order.

A bigger issue for Dan and privacy absolutists: not all anti-terror policies lead to Korematsu! Although I’m significantly more sympathetic to slippery slope arguments than I used to be, thanks to Volokh, I think Dan’s argument here is off-target. The differences between the internment cases, involving racially suspect classifications, and the searches here are evident. Most significantly, in a factual finding that commentators on this site appear to be ignoring, these really are random searches; the police aren’t permitted discretion to search any particular suspect class. Dan argues nonetheless that checking bags of subway entrants is a first step toward totalitarianism. I’d like to hear more about the mechanisms of this particular slippery slope. But until I do, my intuition is that a policy that burdens equally all residents is significantly less troubling than one that does not.

Dan also, I think, ignores my point that the court really didn’t defer to the government here, at least as deference is normally understood. Sure, the court is tougher on plaintiff’s witnesses, but that is because they didn’t have the relevant expertise. What is the court to do if the plaintiff doesn’t show up with the right folks, hire an independent security consultant? That isn’t how our system works.

I take Dan’s big point to be that this is an unwise policy. It (according to him) misallocates scarce dollars on a policy that will not have significant deterrent effects. I disagree that simply because the chance of search are low and terrorists might be able to evade the cordon we can conclude that there is no or low deterrence. But putting that aside, there is a space between what the Fourth Amendment permits and what smart police policy ought to be. (Thanks to my colleague Craig Green for reminding me of this). To conflate the two, i.e., to require the police to justify anti-terror searches as the least intrusive method necessary, or the most effective strategy policy possible, would simply be to substitute the anti-terror judgments of one group of elites (judges and scholars) for another (elected officials and police authorities). What is the normative argument for that result?

You may also like...

13 Responses

  1. mike says:

    I don’t think this policy burdens all residents equally. It burdens those who use the subway much more than those who don’t. This is obvious, but I don’t think it’s a trivial point.

  2. Dave Hoffman says:

    Mike: good point. My intuition is that subway users are less likely to be rich than non-subway users, but that even (for example) i-bankers and wall-street lawyers who live in the city take the subway at least once a day.

  3. Paul Gowder says:

    “these really are random searches”

    Who sez? According to the opinion, it works by the interval method (i.e. “every fifth passenger”), but have you ever ridden the NYC subway? It’s unrealistic to suggest that they can’t gravitate to “suspicious looking” passengers.

  4. JT says:

    I’d like to see some *actual evidence* that random searches deter suicide bombers, not just the a priori reasoning of a few lawyers. After all, the downside risk of getting caught isn’t so bad next to death. Especially if one can just detonate when the search looks imminent. On the other hand, the downside for someone who doesn’t want the police rifling through their documents/underwear/prescription med containers sticks.

    Scratch the above about evidence. I’d be happy not just with some actual evidence, but with a plausible tale of deterrence, rather than just hand-waving that “simply because the chance of search are low and terrorists might be able to evade the cordon we can conclude that there is no or low deterrence.” Is THAT the standard? We can’t prove that leaky system won’t marginally deter? I can’t think of a single deterrence mechanism that fails that test. How about sign saying “please don’t suicide bomb.” Sure, the average bomber might tend to ignore such pleas, but it doesn’t follow that it will provide no- or low- deterrence.

    Note that implying that this is about “privacy absolutism” is a canard. Privacy absolutism would demand that no one be searched, subjected to metal detectors, etc. _ever_. This is about requiring plausible justification for the searches.

  5. Dave Hoffman says:

    JT, if you look at my post on the Conglomerate (which Dan S. linked to earlier) you’ll find my behavioral argument for why deterrence might work. But, the court relied, rather, on testimony from anti-terror experts about risk aversion by terrorists to reach the conclusion that there would be a real deterrent effect for this policy. You can disagree about the conclusion, but it doesn’t seem *necessarily* wrong. I wasn’t in the courtroom, and I haven’t talked to the experts, and my intuition is that the judicial fact-finding/adversary process usually works pretty well.

    Paul, I don’t know the relevance, but when I lived in the City I took the subway regularly. Do you have evidence that the police are disregarding their own regulations and taking a prohibited sample of folks? Notably, the ACLU didn’t present any such evidence – and the sampling they did do was (according to the court) flawed. It seems like a pretty strong charge to make against a department that has worked hard to fix its relationship with minority communities.

  6. Paul Gowder says:

    Dave: I’m not talking about malice. I’m talking about human nature, the mounds of psychological evidence that shows that people have unconscious negative opinions about disfavored races, etc. It’s totally natural, when you’re picking “the fifth person” out of a massive disorganized crowd, to grab the person who looks funny.

  7. Subways, Searches, and Slippery Slopes

    The gloves are off. Dave Hoffman has lodged another challenge to my position, and I want to take a quick moment to defend myself. I believe that Dave mischaracterizes my arguments in a several places and exaggerates some of my…

  8. JT says:

    Dave,

    I see the story, but not the plausibility. What is the link between bombers’ risk averseness before the attack and deterrence at the point of attack? After all, they play on statistical likelihoods already – e.g., using several groups at once to increase odds of attacks occurring. Moreover, the strenuousness of the defense that these searches are truly random belies the claims about the perception that their ethnically targeted. Similarly, convincing folks that they are more common than they actually are both increases the privacy harms (innocent people fearing they’ll be searched) and fails to deter, so long as a bomber meticulous enough to plan the bombing goes and, you know, *actually looks* to see how often people get checked.

    I will admit, however, that would-be bombers may decide to carry bomb parts by cab. That doesn’t suffice to warrant random searches, even if it marginally deters those would-be bombers who have too little money to take cabs, though enough to take the train, and don’t want to walk.

  9. Safely anonymous says:

    Dave,

    You say that “random suspicionless searches can be left to democratic controls without imperiling the entire constitutional order.” But can they be performed without gutting the 4th ammendment? If so, could you explain how you reconcile the two? If not, which other ammendments should we be democratically giving up, and what limits do you suggest for the process?

  10. Subways, Searches, and Slippery Slopes

    The gloves are off. Dave Hoffman has lodged another challenge to my position, and I want to take a quick moment to defend myself. I believe that Dave mischaracterizes my arguments in several places and exaggerates some of my claims….

  11. Secondary Screenings on the Subways

    There’s a fine debate — ahh, hell, call it a mêlée — going on over at the malapropblog, Concurring Opinions. A recent decision upholding the legality of random searches of New York City subway passengers set off the infighting. Here’s…

  12. Dave Hoffman says:

    Paul, as I understand the mechanism for the search selection, it really is random – literally every fifth person at a particular location. I don’t disagree that unconscious bias could – a la Cryptonomicon – – prejudice the sample, but, again, I think the ACLU was pretty well incented to look for such bias, and didn’t present any evidence of it.

    JT: I think the low-deterrence story you tell is plausible. But so is a high-deterrence story. The plaintiffs had the opportunity to come forward with persuasive experts to tell your story, and didn’t succeed before the district court. It isn’t clear to me that I can add much to that result, except to say that I try to defer to factfinders in the adversary process when I have no external knowledge on the topic.

    Safely anonymous: Come out into the sunlight, where you, like me, can look foolish in front of the world, or at least a few hundred readers! I referred to the entire constitutional order because I was replying to the argument I thought Dan was making, to the effect that allowing searches here meant the end of the rule of law. On fourth amendment grounds, I tend to think there is a difference (a constitutional difference) between individualized searches and random community wide searches. That difference would rely on rules being applied to majority groups and minority groups equally, so as to push political actors to remedy overenforcement. Individual searches (or, more precisely, searches targeted at criminals) are unlikely to give rise to political backlash (to the contrary!). On first blush, then, I’m with Jason. But, it is a good question, and I don’t feel comfortable enough in my own expertise to give it the answer it deserves. Why not ask the same question of Jason, who writes more in this area?

  13. Subways, Searches, and Slippery Slopes

    The gloves are off. Dave Hoffman has lodged another challenge to my position, and I want to take a quick moment to defend myself. I believe that Dave mischaracterizes my arguments in several places and exaggerates some of my claims….