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Subway Shakedowns: Necessary Security or Unconstitutional Violation?

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New York City police are now conducting random searches of subway passengers in a program of stepped-up security following the London subway and bus blasts earlier this month. Civil liberties groups say the searches are unconstitutional and ineffective. We host a debate. [includes rush transcript]

Will random bag searches on public transportation make Americans safer? Following the July 7 bombings in London, New York increased police presence on the city’s vast subway system at a cost of 1.9 million dollars per week. And starting Friday, police began random searches of passenger bags at selected subway stations throughout the city. New Jersey transit police began searches on Monday. Police officials say that passengers going into the subway who wish not to be searched can choose not to ride the subway.

An editorial in Tuesday’s New York Times urged the city to continue the searches for an extended period. The editorial reads “Travelers have long since gotten used to extensive searches before they board airplanes, and they should be relieved to see security measures on the subways and commuter trains as well.”

But questions remain about the effectiveness of searches that cover only a small fraction of subway ridership. And civil liberties groups say the searches are unconstitutional under the 4th Amendment, which guards against unreasonable search and seizure. City officials say the mandate to deter terrorism represents a special need and justifies the practice.

Police authorities say they will not engage in racial profiling targeting Muslim, Arab and South Asian passengers because the searches are random. Yet that policy may be hard to enforce in practice. Eric Adams of 100 Blacks in Law Enforcement Who Care told the New York Times “You can say 'no profiling,' but when you have a police department that has a history of profiling, it is going to practice what it knows.”

In addition to the searches, frequent announcements in the subway and on buses urge riders to look out for suspicious behavior among other passengers, such as clenched fists, excessive sweating, or strong cologne — all considered indicators of a suicide bomber. One such tip off on a double-decker tourist bus led to the unwarranted arrest last weekend of several Sikh passengers visiting New York from England.

We’re joined by several people with differing perspectives on the legality and effectiveness of the new searches, which could extend to other major U.S. cities in the coming weeks.

  • Paul Brown, spokesperson for the New York Police Department
  • Fernando Ferrer, New York City mayoral candidate. He issued a statement in support of the subway searches.
  • Bill Goodman, attorney with the Center for Constitutional Rights.
  • Charles Peña, director of defense policy studies at the Cato Institute. He co-authored an editorial opposing the searches.

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This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: We’re joined now by people from different perspectives on the legality and effectiveness of the new searches which could extend to other major U.S. cities in the coming weeks. On the line with us, New York Police spokesperson, Paul Brown. In our New York studio, New York City mayoral candidate, Fernando Ferrer, who issued a statement in support of subway searches. Also in the New York studio, Bill Goodman joins us, an attorney with the Center of Constitutional Rights, and in our Washington studio, Charles Pena, Director of Defense Policy Studies at the CATO Institute. He co-authored an editorial opposing the searches. Let’s begin with Paul Brown on the phone from the Police Department. Tell us exactly what the scope of these searches is and what you are doing in the city subways.

PAUL BROWN: Well, beginning with the second bombing of the — second rash of bombings in the London subway system, the department moved to begin random searches throughout the system. By tomorrow we will have had inspection of packages, backpacks in all the stations in the city at one point or another. Admittedly, we cannot cover all of the stations all the time. And we are doing it in a way not to be predictable, but it certainly is not foolproof by any means. It’s just another measure to help disrupt any plans that may be in the works to attack our subway system. And also to provide some measure of protection.

JUAN GONZALEZ: Paul, what about the allegations of, for instance, Eric Adams, who says that the department’s history of profiling opens up the possibility this will continue again, no matter what you say?

PAUL BROWN: Well, as a supervisor, I mean he’s a captain, and it will be his responsibility, as well as others, to make certain that doesn’t happen. We have captains now being trained exactly in the laws that apply, and the sergeants and lieutenants under their command in the subways themselves, or at the entrances, rather, will be making certain that doesn’t happen. I think it was a gratuitous remark that is not — does not bear out in reality.

AMY GOODMAN: Bill Goodman of the Center for Constitutional Rights, your concerns? Your view, your stance on the subway searches?

BILL GOODMAN: Oh, it’s on several levels. The first is that I think the New York Police Department does have indeed, as Juan said, does have a history of racial profiling. We saw that with the street crime unit. And if Eric Adams, who as Mr. Brown points out, is a police officer who is on the job is worried about it, he probably knows very well what goes on on a very daily basis. So I do anticipate that despite the fact that they call it random, these are chaotic areas. They can pick out whoever they want and say, that person was the fifth or that person was the seventh. I expect you will see more Arabs, more South Asians, more Muslims targeted in these searches than others. So that’s one area of concern. Another area of concern is that these seem to me to be ineffective. It involves a massive intrusion of the Police Department in the daily lives of New Yorkers. And at the same time, as they say, you can voluntarily walk away from it. So if you can voluntarily walk away from it, what terrorist, what suicide bomber is going to say, 'Yes, sure, search my bag?'

AMY GOODMAN: But you can’t go back on the subway. You can leave and not get on the subway.

BILL GOODMAN: You can leave and then you can go — if you are a terrorist, you can go to the next stop. You can walk four or five blocks and go to the next stop. And if it really is random, you are going to get in, probably. And if you are stopped there, you can go on to the next one.

AMY GOODMAN: Mayoral candidate, Fernando Ferrer.

FERNANDO FERRER: Look, none of the alternatives are pleasant. However, when you balance that against — we have got to talk about balance here. When you balance that against the prospect of a major incident in the subways — I ride the subways, my family rides the subways, I talk to subway strap hangers every day — then you’ve got to take some action. Now by the way, we’ve got to look very carefully at what we’re talking about. Random searches is but one element of this. I think the far more important one is security on the subways that is consistent. We had a wake-up call about this before the London blast, a week before, when we were told that subway crime had spiked 15%. Second one is surveillance cameras, and people demand those stations to see to security on every platform and every corner and every nook and cranny of our sprawling subway system. With respect to random searches, that has to be done with Constitutional balance. It has to be random. It has to be fair. And it has to be done in a way that doesn’t shut off our system. In fact, the way we’re beginning to get it right on our airlines is an important indicator that it cannot always guarantee against a terrorist incident, but it can assist in bringing that down. It can assist in diverting that, and if that happens, if passengers don’t get hurt, if passengers don’t get killed, that’s an important thing for us to get involved in.

AMY GOODMAN: We have to go to break. When we come back, we’ll get response from Charles Pena of the CATO Institute in Washington D.C. Our guests: Fernando Ferrer, New York City mayoral candidate; Bill Goodman of the Center for Constitutional Rights. We also want to ask him about the government refusing to hand over videotape pictures of prisoners at Abu Ghraib. Also on the line with us, Paul Brown of the New York Police Department. Stay with us.


AMY GOODMAN: We continue the debate on subway searches. Yes, they’re in New York, could spread all over the country. Our guests are the New York City mayoral candidate, former Bronx Borough President, Fernando Ferrer. We are also joined in our New York studio by Bill Goodman of the Center for Constitutional Rights, Legal Director. Paul Brown is on the line with us, of the New York Police Department, and Charles Pena is in the Washington studio, of the Cato Institute. Juan?

JUAN GONZALEZ: Charles Pena, I’d like to go to you now. Your perspective on these new decisions by the New York Police Department.

CHARLES PENA: Well, unfortunately, I call this the Nike approach to Homeland Security, which is just do something, regardless of whether the something is going to be effective. And if these searches are truly random, then the odds of catching a would-be terrorist are next to zero when you have millions of people riding the subway every day. It’s like playing the lottery. In fact, the terrorist probably has a better chance of being successful than we have of catching them. I think it’s pretty telling, first, the British in the aftermath of the London bombings are not instituting random searches, because they realize that they’re not going to be effective. They realize they’re going to be disruptive. T.S.A. here in the United States has stopped doing random searches at airplane gates. Why? Because T.S.A. decided it was ineffective and actually a stupid idea, and those searches caught exactly how many terrorists? Zero. So, if you want some security on subways, and I’m not suggesting we don’t have any security, I think a better approach would be to put bomb sniffing dogs in subway stations maybe even have them patrol platforms. If the dog picks up a scent of what might be a bomb, then you have a reason to stop somebody, detain them, search their bag and question them. You have real probable cause. And you avoid any potential Fourth Amendment violations.

JUAN GONZALEZ: Paul Brown, your response that this is more public relations than actually effective crime fighting?

PAUL BROWN: Well, I think the Cato Institute needs to be a little more diligent in what they know about what we’re doing and what they don’t know. That statement shows a lot about what they don’t know. This is just one of many efforts that we have put in place to protect not only mass transit, but the city at large. We —- three-and-a-half years ago, the department established a counterterrorism bureau. We have over 1,000 police officers engaged every day in counterterrorism duties. Our intelligence decision defeated an attempt to bomb the Herald Square Station just last August. These are one -—

CHARLES PENA: That wasn’t a random search, though, was it, sir?

PAUL BROWN: No, it was not, but that’s not —

CHARLES PENA: Right. That’s my point. My point is — but my point is I agree that you are engaged in lots of good activities in New York. I just disagree that random searches falls into the category of an effective counterterrorism activity.

PAUL BROWN: But to claim — I mean, to make a parallel where everyone is screened going into an airport, and then say they don’t do random searches. I mean, the point is they’re stopping everybody before they get on a plane because they can do it. We can’t do that in New York. We add randomness to a lot of what we do to protect the city, for one thing to prevent the kind of — to defeat the kind of reconnaissance that we know that al-Qaeda engages in. In many of their attacks that they planned, including ones in the financial district in New York, they spent months watching and trying to measure exactly what we had in place. You could do the same thing now. Look at our heavily armed drills. You can look at the random searches in the subway. You can look at them for months and you will never discern a pattern. That’s helpful. It may not be foolproof, but it’s helpful. And I think the City of New York wants helpful things done in light of what appears to be a continuing attack on the mass transit systems in London.

JUAN GONZALEZ: Fernando Ferrer. You have given qualified support to this new initiative, but at the same time you’re critical of the Bloomberg administration’s approach to subway security. What would you, if you were elected mayor, do differently.

FERNANDO FERRER: Well, first of all, the M.T.A. still hasn’t spent $390 million of $590 million that was allocated by the state legislature to provide for the kind of security measures in subways that I have been talking about before and that people want and that would help enormously in deterring any possible acts of violence or terror in our subway system. That failure is costing us enormously today.

And let’s talk about something else, as well: the prospect of racial profiling. That is a concern to everybody who is watching this and watching this with great care. There is a law on racial profiling. In fact, it was a law that I had drafted in 2001 that was adopted by Councilman from East Harlem, Phil Reed, who got it passed into law. It’s a statement about where this city should be in terms of policing and avoiding racial profiling, keeping that very delicate balance with all of our Constitutional requirements. We have got to hold ourselves to that standard, and in a business that is inherently human, policing, we’ve got to understand that we got to be always vigilant against that kind of propensity. There is no doubt that there had been that history, and there is no doubt that a law applies today. There is no doubt that there’s the United States Constitution. Those things must be adhered to carefully and completely. And we all have an obligation notwithstanding our positions on subway security, to hold authorities’ feet to the fire on those things.

AMY GOODMAN: I wanted to read from, Juan, your paper, The New York Daily News, a piece out yesterday talking about M.T.A. investigators keeping a secret database of people stopped and questioned for filming or photographing bridges and tunnels, as part of the agency’s efforts to thwart terror. “The information is used to try to determine whether shutterbugs are simply putting together vacation slide shows or gathering intelligence to plot mayhem,” law enforcement sources said. In one instance, a man was questioned for filming the Verrazano Bridge, questioned and released. A few days later, authorities in another state stopped someone filming on a bridge and asked the Metropolitan Transportation Authority’s Inter-Agency Counterterrorism Task Force if it had information about the person. It turns out the other state’s shutterbug was using the same vehicle as the man who was stopped for filming on the Verrazano. The sources declined to elaborate on the investigation. One source noted, in general, if someone pops up twice filming a crossing, you start to develop a case. Charles Pena, Cato Institute, your response.

CHARLES PENA: Well, you know, we live in a different world, obviously, post-9/11, but you have to ask — you have to ask the fundamental question. Any security measure has got to be proven to be a effective, not make you feel better, make you feel like you’re more secure, but actually make you more secure. And we have got to be very careful about a lot of these measures that we have put in place. I go to New York fairly regularly. I see the pictures on — or the signs on — you know, that say “no photography.” I assume the “no photography” signs are there for security purposes. But, you know, is that really going to stop a would-be terrorist, and why — are you going to then detain and question tourists every time they’re taking pictures. Look, if we want to live in a completely safe and secure environment, there’s a solution. It’s called create a police state. In fact, if you look historically at the countries that have very low incidents of terrorism, they all tend to be police states and ruled by dictators. Nobody wants that here in the United States. Yes, we do have to try and find that balance, if you will, between security and our Constitutional rights, but I would argue that we should always be looking at our Constitutional rights because that’s what this country is about.

AMY GOODMAN: Well, let me ask Bill —

CHARLES PENA: Yes, we want to be safe. We want to be protected, but what our country is is not you, me and everyone else here as living beings, it’s also the Constitution and the fundamental principles upon which our society is based.

AMY GOODMAN: Well, speaking of the Constitution, Bill Goodman, the Center for Constitutional Rights, M.T.A. having this secret film file.

BILL GOODMAN: Well, look, I agree strongly with what Charles Pena just said. The First Amendment protects freedom of speech and freedom of expression, and there have been — there’s been case after case in which courts have held that photography is a form of expression. Therefore it has the really strong protection of the First Amendment of the United States Constitution. Police stopping someone who’s taking a photograph of the Verrazano Bridge is two or three steps away from the police stopping me taking a picture of my kids in Central Park. And this freedom is really disappearing under our noses as we watch it. We can see it going. We can see it evaporating. And as Charles Pena just said, if we’re not careful, if we are not vigilant, not only against terrorism, but against this tendency, we will end up living in a police state, and that would be just as great a tragedy. The elimination of Constitutional protections, just as great a tragedy as a terrorist attack in the subway, which is also a great tragedy.

JUAN GONZALEZ: But Bill, what do you say to those law enforcement people who are trying to protect the public or to the citizen who is in fear of the spread of terrorism? What do you tell them in terms of helping them cope with the new situation?

BILL GOODMAN: I think that there are sensible measures that can be taken. I do not think that random stops on a subway from which a terrorist can walk away if he chooses anyway, is the sensible measure to start with. I don’t think eliminating the ability to take photographs when anyone can go on out and take a picture of the Verrazano Bridge from somewhere in Staten Island is a sensible measure. But I think that the real way to stop terrorism is to take a look at the policies that are engendering terrorism in this country. Get out of Iraq to start with.

PAUL BROWN: Can I address a few points?

AMY GOODMAN: Paul Brown, Police Department.

PAUL BROWN: About using shows of force, which I think the representative from the Cato Institute was kind of denigrating as kind of, you know, just publicity. Iyman Faris, an al-Qaeda operative, before we knew he was in this country, came to the Brooklyn Bridge with plans to take it down. What he saw there were efforts we put into place, including a high-visibility presence, a harbor unit underneath the bridge. We had secured certain parts of the bridge that we thought were vulnerable. He famously wired back to his handlers that the weather was too hot, meaning that security on the Brooklyn Bridge was too tight for him to operate, and they abandoned that plot. In the subway platform in Queens approaching a tunnel under the East River, we saw two individuals taking photographs of the tracks, which is not your typical tourist activity. They turned out to be Iranian agents, agents of the Iranian state who were then returned personae non gratae to Iran. So, there’s real threats to New York. We have defeated a number of them since 9/11. And we are taking reasonable precautions to do that. To claim that we’re going after people taking pictures of their kids in Central Park, etc., is just a gross exaggeration and doesn’t show an accurate picture of the reasonable measures the Police Department is taking to protect New York.

AMY GOODMAN: Let me ask Fernando Ferrer. You say, yes, you are for searches if there is not racial profiling. But, the people who would be racial profiled, perhaps in the subway, might be the least able to lobby and let people know what is going on. I mean, you took a strong stance years ago, 1999, on the Amadou Diallo case. Street Crimes Unit. Racial profiling killed this man in a hail of 41 bullets. And, of course, that’s just a famous case. Your response?

FERNANDO FERRER: Look, I think it’s clear that racial profiling has to not only be avoided because it’s bad, because now in this city it’s against the law. We all have to conduct ourselves lawfully.

AMY GOODMAN: What do you mean it’s against the law?

FERNANDO FERRER: Oh, there’s a city law. There’s a local law against all profiling. I happen to know about it because I drafted the language. Councilman Phil Reed adopted that into legislation. It was passed in the City Council a couple of years ago.

AMY GOODMAN: That says what? Authorities can’t racially profile?

FERNANDO FERRER: That’s correct. Similar to Chicago’s law against racial profiling. By the way, the City of Chicago beat us to that. High officials of the Police Department, the Police Commissioner himself, came down to testify against this law at the City Council. And that’s bewildering to me. Why?

PAUL BROWN: Well, that’s because we already had the policy in place.

AMY GOODMAN: Paul Brown, police.

PAUL BROWN: The Police Commissioner, one of the first things that he did, I don’t know if you talked to —

FERNANDO FERRER: Excuse me, but let me finish what I was saying.

PAUL BROWN: Let me just say that the —

FERNANDO FERRER: If you just allow me to finish what I was saying, I would be delighted to hear the rebuttal. Policies or not, nothing beats a law.

AMY GOODMAN: Paul Brown.

PAUL BROWN: Well, my point is, one of the first acts the Police Commissioner did —- Police Commissioner Kelly, upon returning to New York, was to put in effect a bar on racial profiling in the Police Department and that is very important when -—

FERNANDO FERRER: Then there shouldn’t have been an objection to a law.

AMY GOODMAN: The Police Department opposed it?

PAUL BROWN: The Police Department had it in effect is what I’m saying.

BILL GOODMAN: I might say —

FERNANDO FERRER: And what I’m saying is that the Police Commissioner came to argue against the passage of the law.

BILL GOODMAN: The only reason there was a written policy against racial profiling is because the city was under the pressure of a lawsuit challenging racial profiling practices by the New York Police Department, in particular by the Street Crime Unit.

PAUL BROWN: That’s not the only reason. As a matter of fact, Commissioner Kelly had been U.S. Customs Commissioner, where he put into effect the same kind of bars against racial profiling, because of at least perceived abuses in the customs service.

AMY GOODMAN: But Paul Brown, if the Police Department, you are saying, had a policy anyway, why would they speak out, testify against passing a law?

PAUL BROWN: Well, I’m not — I’m not familiar with the whole legislative history and what your speaker is actually talking about. All I can tell you is it was in effect and it reflects the policy of this department.

JUAN GONZALEZ: But, obviously, Paul, the — while Commissioner Kelly may have had the policy, a future commissioner might just as well have changed the policy. The difference between a law and a policy is that the law then supersedes any commissioner that may hold that seat, no?

PAUL BROWN: I’ll let you reach your own conclusions.

AMY GOODMAN: Well, we’re going to leave it there, and I want to thank you all for being with us. Paul Brown of the Police Department; Charles Peña of the Cato Institute; Fernando Ferrer, New York City mayoral candidate; and Bill Goodman of the Center for Constitutional Rights. But before we go to break, Bill, I would like to ask you to stay with us just for a few minutes to tell us about the latest situation, the Pentagon refusing to cooperate with a judicial order to release photographs and videos taken by the military at Abu Ghraib in Iraq. In June, a federal judge ordered the Pentagon to hand over 87 photos and 4 videotapes to the ACLU and the Center for Constitutional Rights after the groups had filed a Freedom of Information Act request. Bush administration attorneys have said that the release of the photos will violate the Geneva Conventions by subjecting detainees to additional humiliation or embarrassment. The photos are expected to show widespread torture of Iraqi detainees and even incidents where Iraqis were raped or murdered inside the U.S.-run jail. Last year, the Pentagon Defense Secretary, Donald Rumsfeld, said there are other photos that depict incidents of physical violence towards prisoners, acts that can only be described as blatantly sadistic, cruel and inhumane. “It’s going to get a good deal more terrible, I’m afraid,” he said. So what’s the latest? Will you get these photographs?

BILL GOODMAN: We don’t know. The government has appealed, essentially, has asserted these — a variety of privileges, and is now refusing to turn them over; however, as you said, this is blatantly in contradiction to a judicial order that’s out there, and presumably, they should obey what the court has ordered. We expect that these will be turned over, that they will attempt to turn them over under seal, which means that we can’t turn them over to people like you and let the American public see what has really happened and, of course, this is what democracy is all about. People see what’s going on, and then they know what kinds of decisions they can make about their governments. They’re going to attempt to, as I said, release it under seal. We’re going to fight that, and I think that we ought to be able to win that, and when we do, we can all see what Secretary Rumsfeld has seen and has decided that it’s best for only his eyes only.

AMY GOODMAN: Have you gotten a bunch of photographs and videotape already?

BILL GOODMAN: Not yet. We’re expecting it any day.

AMY GOODMAN: Well, I want to thank you very much for being with us.

BILL GOODMAN: You’re welcome. Thank you.

AMY GOODMAN: Bill Goodman of the Center for Constitutional Rights.

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