On the first day of random searches in the New York City subway, Police Commissioner Raymond Kelly reported they “actually had people who came over and volunteered to have their bags checked.” The New York Times located one such person, a 35-year-old woman named Eve Holbrook, at a station in Brooklyn. Having a police officer paw through her belongings gives her “a sense of comfort,” she said. “I went up there of my own free will.”
I don’t pretend to understand Eve Holbrook’s motivation: Did she think she might have accidentally slipped a bomb into her briefcase that morning? But if letting police look in their bags makes people feel better, who am I to question it?
Anyway, that seems the general attitude on New York’s new search policy, which New Jersey has copied. Washington, Boston and San Francisco may soon follow suit. It’s hard to see it preventing a terrorist attack, but it makes people feel safer.
New York’s subway system provides nearly 5 million rides on the average weekday. The city is not releasing precise figures, but the Times reports police are searching “thousands” of bags daily. Even allowing that not every rider carries a bag, the chance any given bag will be selected for a search is minuscule.
“Anything we can do to introduce uncertainty will make it harder for the adversary to figure it out,” a Rand Corp. terrorism expert told the Times. No doubt that’s true, but in this case the added uncertainty is negligible.
In the very unlikely event a bomb-carrying terrorist is selected for a search, he can simply say no and exit the system with no questions asked. It has to be that way if the city is to argue in court the searches are voluntary (a dubious claim, given how important the subway is to the average New Yorker).
Upon leaving the subway, a terrorist unlucky enough to be picked for a bag check can try another station, hand his bag off to an accomplice, or detonate his bomb at a crowded ground site. It should not be hard to find one in New York City.
But if the illusion of security won’t fool the terrorists, at least it fools the public. “I see it also as giving some comfort to the riding public,” said Commissioner Kelly. “Reassuring the public is a legitimate objective,” said Rand’s terrorism expert. “You might say, dismissively, it’s just to make people feel better. But we shouldn’t dismiss it.”
I think we should. Here’s why: If any measure ostensibly to prevent terrorism is justified, regardless whether it actually does so, simply because some people believe it will prevent terrorism, we might as well forget our constitutional rights and start lining up behind Ms. Holbrook.
While we’re at it, Mr. Kelly has another suggestion on how we can make things easier for the police. “Ideally,” he told the Times, “people wouldn’t carry any backpacks or bulky packages on the transit system.” But even a bag-free subway would be vulnerable to explosives strapped to terrorists’ bodies. So ideally, people would wear no clothing on the transit system.
Compared to those ideas, it may seem a small thing to open your backpack, briefcase or purse for what will probably be a cursory examination by a bored police officer. And that is precisely the problem: We are getting used to the idea suspicionless searches of our belongings are no big deal.
As I read the relevant Supreme Court decisions, if the police said they would randomly search bags for drugs, unlicensed guns or other contraband, mentioning in passing they would, of course, arrest anyone they happened to find with a bomb, the searches would be unconstitutional. But since they’ve said they are randomly searching bags for bombs, mentioning in passing they will also arrest anyone found with drugs, an unlicensed gun or other contraband, the searches probably will be upheld.
In theory, courts should consider not only the purpose but the extent to searches they serve that purpose. In practice, judges are likely to be as deferential to the police as Ms. Holbrook.
Jacob Sullum is a nationally syndicated columnist.