Traveling in today’s America is becoming more and more constrained. Every year, there are more checks, more searches, and more guards. If you go by car, ALPR systems will track you. If you go by plane, you and your belongings can be legally searched, groped, mocked, impounded or vandalized. If you stay in a motel, your information may be shared up front with law enforcement. And now, even the trains are getting on the act.
The aptly-named PapersPlease.org filed a Freedom of Information Act request last October asking how Amtrak handled sharing of information with the Department of Homeland Security. While Amtrak is regularly subsidized, it is legally a private company, and as such should not share information on passengers unless the police provide them with a valid, individualized probable-cause warrant. You know, that old Fourth Amendment thing?
No, what’s really got House Republicans in a lather about DHS is realizing that something “must-pass” like a DHS funding bill would be a great vehicle for a poison-pill amendment overturning the President’s executive actions on immigration. So they sent that bill up to the Senate, and Senate Republicans, needing five Democratic votes to push through a DHS funding bill, somehow can’t find any Democrats willing to commit electoral hara-kiri with their own base in order to please the Republicans’ base. Go figure!
As a result, in two weeks’ time the DHS will run out of money, and apologists for the security state are beginning to panic – but they’re having trouble getting their stories straight. Sen. Lindsey Graham (R-SC) warns us all, “We can’t go too far here because look what happened in Paris.” Sen. John McCain (R-AZ) fulminates, “We can’t shut down the DHS. Not with the threats the homeland is subjected to as a result of the rise of ISIS.” [Note: There is no threat to “the homeland” from ISIS.] For God’s sake, the TSA might run out of money! What an awful shame that would be!
The DHS is a failure. It was a bad idea to begin with, coming out of the incorrect notion that the 9/11 attacks could have been prevented by “joined-up intelligence.” It never made sense to yoke the Coast Guard, FEMA, and the customs/border/transportation security/immigration agencies awkwardly together. DHS has always been poorly managed. It just layers an extra frosting of highly remunerated officials on top of agencies that would do just as fine where they were before. So let’s take a closer look at what a sensible structure would look like.
Cambridge resident David House got a nasty shock back in December 2010, when on his way back from vacation in Mexico he landed in Chicago, and found himself in a Homeland Security interrogation room. What was House’s crime? Being involved with the Bradley Manning Support Network. He was generally sympathetic to Wikileaks’ efforts to publicize the war crimes revealed by the Bradley Manning leaks. Or, as the “lookout” alert put it, he was “wanted for questioning re leak of classified material.”
On Saturday, a new civil rights group called “Defend the 4th” conducted a successful protest against the TSA. Despite the bitter cold, over 200 people turned out, marching from various points on the MBTA system and congregating on Boston Common. People attending included folks from Anonymous, Occupy Boston, the Pirate Party, the Republicans, the Ron Paul folks, the Socialists and a most righteous quantity of press organizations. Congratulations to organizers Garret Kirkland, Tamarleigh Grenfell, Frank Capone, Petey Bouras, Elvis Rodriguez and Joshua Chance Scafidi.
I was impressed to see that even in the depth of winter, 150 people in the Boston area were willing to turn out to defend the Fourth Amendment. That’s the equivalent of 1,500 in the summer.
Why were we so upset about the TSA’s activities on the MBTA? Since 2006, the TSA has been conducting “random” bag searches on the MBTA, where they scrape bags for explosives. They are “random” because federal law requires suspicionless searches to be random in order to pass legal muster, but the TSA can (and has) selected, say, Dudley Square T station (in a mostly-black neighborhood) rather than Symphony station (in the tony South End), as their base of operations, and then “randomly” chosen one out of five travelers. If a traveler doesn’t consent to a search, they have to go to another station (or sometimes simply a different entrance to the same station). Oh, and the TSA doesn’t work shifts on the MBTA at weekends.
The TSA must think that terrorists are the dumbest people on Earth. It requires only a minimal amount of intelligence for an explosives-carrying terrorist to decide that this policy makes Sunday the best possible day for a terrorist attack.
What does this remind me of? Oh yes…
This is pure security theater. It’s designed to make the TSA look as if it’s doing something. Not coincidentally, it also extends the authority and reach of the TSA over our ordinary lives, and to justify expanded budgets. No evidence has ever been made public that any terrorist entity is targeting the MBTA. But even if there were such evidence, we have the right to travel freely around our country. The authorities, whether TSA or anyone else, must have probable cause before targeting any of us for a search. We’re not a country that does internal passports, random checkpoints, or asks citizens to show their papers without cause.
More specifically, the demonstrators’ constitutional concerns have at least some merit. In ten states (Idaho, Iowa, Michigan, Minnesota, Oregon, Rhode Island, Texas, Washington, Wisconsin, and Wyoming), sobriety checkpoints and therefore also these kinds of random bag checks are explicitly unconstitutional. In Massachusetts, the state Constitution’s Article XIV suggests strongly that random bag searches would also be unconstitutional here:
Art. XIV. Every subject has a right to be secure from all unreasonable searches and seizures of his person, his houses, his papers, and all his possessions. All warrants, therefore, are contrary to this right [cp. are unconstitutional], if the cause or foundation of them be not previously supported by oath or affirmation, and if the order in the warrant to a civil officer, to make search in suspected places, or to arrest one or more suspected persons, or to seize their property, be not accompanied with a special designation of the persons or objects of search, arrest, or seizure; and no warrant ought to be issued but in cases, and with the formalities, prescribed by the laws.
Got that? To be constitutional, a search “in suspected places” must “be accompanied with a special designation of the persons or objects of search”. Random bag checks don’t do this.
This should serve notice to the TSA. People are beginning to wake up to the TSA’s disrespect for long-established rights. There’s no evidence of a threat to the MBTA; there’s no evidence that random bag checks are effective; and the checks are of doubtful legality. Without some pushback, every agency will want a piece of the homeland security pie, till our every move in public becomes the object of surveillance by a newly and aggressively militarized police presence. We can afford a gentler and more civilized way of life.