More years ago than I care to remember, I prosecuted some violent drug dealers. During the trial, we got some reliable information that their associates were transferring contraband to them in prison, and they were smuggling some of it into the courtroom. Federal marshals were rightly concerned that some items could be used as weapons.
We tailored a response to the circumstances. As any reasonable person would appreciate, that meant weighing the danger involved, the adequacy of various protective steps to counter the danger, the rights of people who would be affected, and the fact that our main concern was security — not collecting evidence in anticipation of bringing charges.
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I agreed that the indicted defendants should be subjected to daily strip searches upon leaving and returning to prison — including cavity searches, since body cavities are notorious repositories of makeshift weapons and narcotics. This was appropriate not only because of the threat involved but because of that threat coupled with significant facts about the people involved. The indicted defendants had violent histories that included threats to kill witnesses and an attempt to murder an undercover police officer. They were in custody despite not yet having been convicted, because a judge had denied bail based on evidence that they posed a danger to the community. We had now caught them with items they were not supposed to have in the courtroom.
People in prison are subject to highly intrusive searches; they have no expectation of privacy. To be sure, the government is given more latitude — relieved of the need to show probable cause for the search — because it is promoting safety, not trying to develop a prosecutable case. But what makes the search appropriate is the record of the people involved, not the abstract possibility of violence. A savage act is always possible. If that is all it took to justify gross infringements of liberty, such infringements would always and everywhere be justified. An intrusive search is reasonable, or not, based on what the people involved have done to prompt it, not simply because life is fraught with peril.
The remaining people coming to the courtroom each day presented circumstances very different from the defendants. There were the defendants’ family members and associates, other trial participants (jurors, court reporters, the judge, and the lawyers for each side), some members of the press, and spectators (ordinary people who would come by to watch trials).
The family members and associates were neither charged nor in custody, though some were suspected of collusion in the drug dealers’ activities. Like all members of the public, they had had to pass through cursory courthouse screening upon entering the building. This included the presentation of identification and passing through a magnetometer — which, while far from perfect in ferreting out weapons, does detect guns, knives, and other metal objects. So we opted against any further physical searches absent some new indication that one of these folks possessed an item that could be used as a weapon. Still, the marshals were instructed to watch them carefully in the courtroom and keep them physically separated from the defendants — if contact was sought for some reason, defense lawyers could ask the judge for permission and the judge could then work with the marshals to set the ground rules.
As for the remaining trial attendees, all of whom had also gone through the screening process, there was no reason for added concern. Of course the threat situation dictated that the marshals remain on their toes. But a pro can easily do that without hassling everyone in sight. And that’s exactly how these pros handled it: smoothly, realistically balancing the risk of something terrible being attempted against the huge unlikelihood of its being attempted by the vast majority of the people in the courtroom.
I am currently on a plane, having cleared security the old way (i.e. no scan, no patdown) at a smaller airport. Shortly I will be landing already inside security at the busiest airport in the world. So, even if the newer measures were reasonable or constitutional (which I do not think they are), I have completely bypassed them. And to everyone who is being hassled by those measures, you're not any safer as a result. The good news, of course, is that I am not a terrorist. The bad news I that this passes as official government policy.
It seems there are three viable options for airport security: invasive searches of every person, racial profiling, or behavioral profiling.
Of the three, I think behavioral profiling (combined with metal detectors and scanning baggage) is the optimal choice, and the example provided by Israel.
Mr. McCarthy's analogy is not entirely apt. If known terrorists were preparing to board a plane, they wouldn't be searched--they'd be stopped. Rather, the traveling public is more comparable to the spectators and relatives at those criminal trials.
I feel strongly that if conservatives got behind behavioral profiling and expressly reject racial profiling, they'd find this position supported by an overwhelming majority of Americans. But the more commentators who, like Mr. McCarthy, even hint at the racial/ethnic factor, the more the Left can fuss that it's just racism (a la Eugene Robinson yesterday).
What a cogent argument- the best I've heard so far! I think there is a disturbing tendency (on the right, for some reason) to take these intellectual and rational positions and turn them into emotional hand-wringing. I really am a libertarian because it is logical, much like McCarthy's excellent column.
What is happening "should" be prompting outrage and demonstrations in DC. Think about what is happening. We are being violated physically, mentally and emotionally by our government. Our children and elderly relatives are being abused by our own government. If Bush were doing this... Well you know the answer to that. I believe this incrementalism is destroying the peoples will and we are becoming a police state. I pray not, but I will not fly again. This is a travesty of justice. I dont remember which founder stated this but it is more true today than ever before- "When the people give up liberty for security they gain neither" --I paraphrase. Obama and his minions are anti their own people.
I just read a report on Fox entitled "We are Not Perverts". They are not perverts any more than the Kapos were perverts in the Nazi concentration camps. They are just doing their duty, right? Let me explain another kind of pervert. One who violates the laws of the land and searches without a warrant, usurps power and authority in ruthless manners, and assume all people to be guilty of terrorism. Because there are criminals walking down the streets with a concealed weapon does that mean that everyone needs to be strip searched so that no one can walk down the street with a concealed weapon. There is terrorism on the streets of American cities right now and yet we don't do anything about that. But put some one on an airport like a little old lady or my beautiful thirteen year old daughter and we have to examine their naked bodies or run our hands over their intimate parts. In the final analysis yes they are one of the most perverted group of people I have ever heard of.
FINALLY, a conservative who has not taken in stride this violation of our liberty to have our bodies free from search and exposure without reasonable cause. It has been sickening to read so many that have taken the groping and exposure of adults in stride, but absolutely obscene that they have also approved the same for children.
Our government is careening out of control; imposing upon our liberties and lording over our humiliation before the world while opening the vault wide in granting both liberty and every unearned dignity to non-citizens who make war against us.
I’m waiting for our friends on the left to explain why the public groping of an innocent person's genitals is a reasonable accommodation to keep us safe, but wire tapping suspected terrorists without a warrant is not. And while they’re at it, they should explain why intelligence officers are subject to criminal prosecution and imprisonment if they cause terrorists to feel humiliated or uncomfortable during interrogations, but the humiliation and discomfort of innocent air travelers is a major component of the Obama administration's national security policy.
It apparently hasn't occurred to the pro-gropers that if we had better intelligence-gathering methods, unencumbered by political correctness, we would know more about who and where the terrorists are and what they’re planning and innocent people wouldn’t have to be treated like terrorist suspects. And why isn’t the left as concerned about tax dollars being paid to Obama supporters to provide invasive body scanners many security experts claim do little more than metal detectors as it was about tax dollars that were paid to Haliburton, a Bush and Cheney favorite? It isn’t often that conservatives and the ACLU are on the same side of an issue, so when they are it’s time to take notice.
Thank you, Andy, for expressing it so well, though you could stand to reiterate it several times at the end of the story: Stop treating us like criminals! This is the real problem with the current security measures, and why so many people are shouting, "Profile, dang it!"
And the most infuriating thing is that Big Sis, Tax Cheat Timmy, assorted horribles from the administration and congress and senators are exempt from "enhanced" security techniques! They are the very ones that should have to go through them so they'll wake up to see how intrusive and ridiculous these sexual assaults actually are.
How long do you think this Fatherland Security would continue if Michelle Obama had to go through it every time she flew (commercial or not)?
I am going to slightly disagree on the subject of our national leaders being exempt from the searches. The reason they are exempt is because they are travelling with a security team - who is very likely to be armed.
My point would be that every passenger on that flight should also be exempt from more than cursory screening for the very same reason.
The extension of this argument is that if we had armed security (a point many people forget about El Al, while focusing on their airport-based profiling) on every flight, then all the passengers could be excluded from this invasive procedure.
"The threat to public safety from the terrorist use of aircraft is obviously great, but no greater than countless other scenarios." Actually, the threat is much MUCH less than countless other scenarios, including the drive to the airport. There's a greater chance that you will die in a lightning strike than a terrorist attack. We accept the very risky actions of driving, bathing, crossing the street and climbing a ladder without thinking twice.
"TSA chief John Pistole admits that he intentionally delayed notifying the public about the new procedures because he didn’t want to tip off the terrorists." That is total BS. He knew that if he announced the new procedures beforehand there would be a huge outcry and they might not be implemented, but if he just did it they would be MUCH harder to stop. As we're seeing now. Who wants to look "soft on terror" by rolling back "necessary security procedures"? Machiavellian government at its finest.
Of all the airports in the nation, I flew out of Washington Dulles on November 14 and lo and behold, no nudie scanners, just the regular magnetometers. If these machines were really so key to passenger safety and terrorism prevention, one would think that the major international airport of the nation's capital would have been the first priority. Or perhaps all the lawyers and diplomats in DC gave the TSA pause.
