So much for concurring opinions . . . I’ve been attacked by not only one co-blogger, but two. Earlier on, I posted a critique of the court’s decision upholding the NYC subway searching policy against a Fourth Amendment challenge.
Jason Mazzone argues that I’m ignoring a key benefit of the search policy:
The overriding goal of all of these efforts is prevention. The police are no longer charged simply with responding to crimes that have occurred. To succeed, they must stop terrorist attacks before they occur.
The City has taken the view, reasonable in my opinion, that prevention is aided by demonstrating on a regular basis the power of the City’s security forces. Such a demonstration combines awe with surprise.
First, I question whether such demonstrations of force are likely to deter the terrorists, who continually seek to infiltrate the hardest of targets rather than the unfortified ones. The terrorists focus a lot on airplanes, where the security is rather tight compared to many other tragets. So I wonder whether such demonstrations of force really deter terrorists. Perhaps the show of force gives people a sense of security, which, although illusory, is nevertheless comforting. But if this is the goal, should it be a legitimate government policy to create an illusion?
Jason’s argument reminds me of the armed military personnel patrolling airports after 9/11 with machine guns. The guns were unloaded, and the troops were there primarily as symbols of strength. All this cost money, money that wasn’t spent on addressing the real vulnerabilities of air travel. I guess the question is whether it is better to have rational security or symbolic security. My vote is for rational security.
I believe that terrorism is already receiving a disproportionate amount of resources. In an earlier post, I counted 2928 fatalities from terrorism on US soil (9/11, the first WTC bombing, the Oklahoma City bombing, the Unabomber, and the Olympic Park bombing). I then argued:
The total is 2928 fatalities. This has occurred over the past 15 years. That’s about 195 lives per year. Now, consider other risks. Flu deaths are estimated to be around 30,000 to 40,000 in a good year. Terrorism is nowhere near this danger level. Another 40,000 die in auto accidents each year. On the scale of things, dying from terrorism is a very tiny risk. . . .
Certainly, we should guard against terrorism, but rarely do discussions about the sacrifice of civil liberties explain the corresponding security benefit, why such a benefit could not be achieved in other ways, and why such a security measure is the best and most rational one to take.
What is troubling is that the government could reduce many risks we face if it expended more resources to address these risks. The government could do quite a lot to prevent flu deaths, such as subsidize more vaccines. . . . Instead, because terrorism is dramatic and gets lots of news coverage (like shark bites), it gets a disproportionate amount of attention. . . .
There are certainly grave risks from terrorism, and we should not ignore these risks. But we must prioritize risks. Even focusing on terrorism alone, we must recognize that not all terrorist risks are the same. . . . In my view, the most serious risks of terrorism include nuclear or biological weapons. . . .
The obvious effective way to combat nuclear terrorism seems to be preventing nuclear material from getting into the hands of terrorists. . . .
Therefore, perhaps we’re misapplying our resources. We should be working harder on tracking down loose nukes. If we want to protect the subways, perhaps more narrow means can be employed, such as the use of bomb sniffing dogs. But an expensive symbolic show of force that is highly invasive of people’s liberties strikes me as a very unwise use of our limited security resources.
Turning to Dave Hoffman, he argues that my critique of the court’s deference is misplaced because “the court deferred to the government’s experts because they were significantly better informed about the relevant risks than plaintiffs’ experts.” It may be the case that the plaintiffs’ experts weren’t as convincing as the government’s, but this is no excuse for deference, which is according the government’s side with a special presumption of correctness and being reluctant to question the government’s positions. In essence, when the court says it is deferring, it is saying that it is already beginning the case in a biased manner, not a neutral one. The court was highly skeptical of the plaintiffs’ experts but didn’t seem to employ the same degree of skepticism with regard to the government’s.
Dave also argues:
Dan’s second argument concerns the value of marginal deterrence of attacks on the subway. He wonders: “[i]s it a victory to stop a terrorist from bombing a subway car and killing 40 people so that the terrorist decides instead to blow up a building or mall killing thousands?” This is obviously a tough choice, on many levels, and it is cold blooded and unpleasant to contemplate. . . . But it is a decision I ultimately think ought to be left to democratic policy-makers in the sunlight of the public space, and not ill-informed judges in the quiet of the judicial chambers.
If such decisions are left solely to the other branches of government, then what’s the role of the courts in applying the Fourth Amendment? Is there much of a role left? The same kind of arguments have often been made in support of government policies. Consider the arguments made when the Supreme Court upheld the Japanese Internment in WWII in Korematsu v. United States, 323 U.S. 214 (1944):
[Korematsu] was excluded because we are at war with the Japanese Empire, because the properly consituted miliary authorities feared an invasion of our West Coast and felt constrained to take proper security measures . . . and finally, because Congress, reposing its confidence in this time of war in our military leaders–as inevitably it must–determined that they should have the power to do just this.
In Hirabayashi v. United States, 320 U.S. 81, 93 (1943), the Supreme Court stated: “[I]t is not for any court to sit in review of the wisdom of their action or substitute its judgment for theirs.”
Under Dave’s argument, the Fourth Amendment wouldn’t play much of a limiting role on what law enforcement officials can do. We should rely on the political process. If people don’t like it, then kick the policymakers out of office. But the issue I raised in connection with Jason’s arguments returns here — policymakers might easily adopt symbolic security measures that are invasive of civil liberties yet create the illusion of security. People might falsely think they’re more secure when they’re not. And there’s little check on policymakers here. Moreover, this argument assumes that any burden in civil liberties is equally distributed among all New Yorkers. I doubt this. And if civil liberty burdens are not equally distributed, then it’s possible for majorities to impose disproportionate burdens on minorities even with democratically-elected leaders.
I believe that such programs such as the NYC subway searches — ones that dispense with individualized suspicion — are particularly troublesome especially in light of our open way of life in this country. The very “show of force” that Jason extols has another impact he doesn’t mention — it is also a display of police power to all people. Totalitarian societies also would engage in such displays of power — as a way of programming the population for greater social control and acceptance of that way of life. Jason writes glowingly of “high-tech surveillance,” “city commando teams,” “roadblocks,” “heavy weaponry,” “[c]ity blocks . . . cordoned off,” and “helicopters buzzing overhead.” This description evokes Orwell’s Big Brother, not New York City.
THE CURRENT DEBATE
2. Hoffman, Deterrence and Subway Searches (Conglomerate) (response to Solove)
3. Solove, Terrorism, Deterrence, and Searching on the Subway (Balkinization) (reply to Hoffman)
POSTS ON TERRORISM, SECURITY, AND LIBERTIES
2. Solove, National Security, Terrorism, and the Bird Flu (PrawfsBlawg)
3. Solove, Terrorism, Deterrence, and Searching on the Subway (PrawfsBlawg)
4. Solove, National Security and a Potential Bird Flu Pandemic (PrawfsBlawg)
5. Solove, Security, Privacy, and Shark Bites (PrawfsBlawg)
Originally posted at Concurring Opinions
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This post was authored by Professor Daniel J. Solove, who through TeachPrivacy develops computer-based privacy training, data security training, HIPAA training, and many other forms of awareness training on privacy and security topics. Professor Solove also posts at his blog at LinkedIn. His blog has more than 1 million followers.