Taking Liberties: The War on Terror and the Erosion of American Democracy (15 page)

Negative reactions to this technology have spanned the political spectrum, with critics of the TSA screening program including, on the conservative end, Sarah Palin, former Republican Arkansas Governor Mike Huckabee, and Texas Governor Rick Perry
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and, on the other side of the aisle, consumer advocate Ralph Nader,
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and Democrat Representatives Sheila Jackson Lee (TX) and Bennie G. Thompson (MS).
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Although many individuals have expressed shock at the TSA’s program, many others have expressed shock that anyone would be unwilling to submit to having a single federal employee look at their image in a private setting. But although the TSA said that the scanned images would not be preserved, additional controversy was generated when it was discovered that the machines the agency ordered had the capacity to retain images, while other machines they might have purchased did not,
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and that federal agents actually admitted to having retained thousands of images from bodyscanners in
use at courthouses.
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The overall reaction of the general public has been difficult to gauge accurately. Poll numbers have been all over the map. A November 2010
Washington Post
/ABC News poll concluded that about two-thirds of respondents supported the scanners while only about half supported the pat downs.
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A Zogby International poll conducted just about the same time, on the other hand, showed that over 60 percent of likely voters opposed these measures and that 48 percent said they would avoid air travel and opt for another mode of transportation where feasible.
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Older polls, conducted while the technology was not yet in widespread use in the United States, tended to reflect a higher rate of approval.
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Some individuals demonstrated at airports to express their dissatisfaction, but a National Opt Out Day planned for the day before Thanksgiving in 2010 fizzled, as most people chose to proceed to their holiday destinations rather than protest. Representative Ron Paul introduced legislation he titled the American Traveler Dignity Act to reverse the TSA’s decisions.
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Of course, the Constitution is countermajoritarian, so whether or not intrusive screening procedures are constitutional does not depend on where majority sentiment lies. Lawsuits challenging the “virtual strip search” and “excessive groping” were filed by the Rutherford Institute on behalf of three individuals, including Chris Daniels, a frequent business traveler who was subjected to a highly intrusive search after initial screening revealed an abnormality in his genital area, the result of a childhood injury. When he decided to leave the airport and skip his planned trip rather than submit to groping he found humiliating, he was told that he was not free to leave and was required to submit to the enhanced pat down.
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The Electronic Privacy Information Center (EPIC) brought its own lawsuit against what it described as the “unlawful, invasive, and ineffective” “digital strip search.”
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Are Americans overly willing to tolerate highly invasive security measures even if they are not proven to be effective? The 9/11 Commission commented that “Americans’ love affair with [technology] leads them to also regard it as the solution” even if it is expensive and often fails.
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Bruce Schneier says that we are hardwired to react to specific stories, and so we focus on the details of the last incident and waste money adopting measures geared to that particular story, measures which future terrorists will find easy to evade by simply changing the details of their plan. The more successful security measures, he says, tend to be invisible—like keeping cockpits locked and arming pilots, and like encouraging passengers to fight back.
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The real security failure on Christmas Day, 2009, he says,
was in our reaction. Others agree that we need to stop assuaging our fear by reacting to the last threat and pay more attention to what actually works. “We’ve had nine years of just grafting security measures one on another,” says Bruce Hoffman, a terrorism expert at Georgetown University. “Maybe it’s time to step back, take a hard look and look for a new approach.”
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The Rights of Others

Intrusive as they are, the bodyscanners do treat everyone equally. Many Americans complained about the bodyscanner searches because they expected that they would be affected. Perhaps one reason Americans have not complained more loudly about the flawed watchlist system and other security screening measures is that we privately believe that any serious costs of this approach will be paid by someone else. Even with 20,000 names on the watchlist, the odds are that any individual American will not be seriously inconvenienced or stranded in a foreign country. Until the bodyscanners were introduced, for most of us airport security meant taking off our shoes and buying toiletries in small bottles. For Muslim-Americans, however, the stakes can mount far higher. Is it any coincidence that Erich Scherfen, Ayman Latif, Steve Washburn, and Rahinah Ibrahim, all of whom suffered extreme versions of airport problems, are all Muslims? Do Americans truly believe that Muslim-Americans are so inherently suspect that any rumor about their activities—like removing a seat from a car—should put them on the No Fly list? That stereotyping is the very kind of discrimination our country has had to work to overcome with wave after wave of hyphenated Americans.

Before 9/11, Americans had begun to reach consensus that racial profiling of African-Americans is both unconstitutional and ineffective law enforcement.
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Sardonic references to the “crime” of DWB—Driving While Black—permeated American culture. FWM—Flying While Muslim—is another version of noxious and misguided profiling. But after 9/11, even some respected scholars argued that profiling Arabs and Muslims is different.
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After all, hadn’t the 9/11 hijackers all been Arab and Muslim?

The math just doesn’t work that way. There are millions of Muslims in the United States, the overwhelmingly vast majority of whom have absolutely nothing to do with terrorism. Just as racial profiling proved to be bad law enforcement, singling out Muslims for special treatment at the airport, or in other venues, is a costly and ineffective way to identify terrorists.
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At the very least, because we have no empirical or theoretical basis for expecting profiling of Muslim passengers to make us safer, we should not be willing to tolerate the costs in terms of people’s rights
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and of our own descent into bias. Profiling can also prove counterproductive. Alienating Muslims who fly through American airports is not a good way to enlist the support of Muslim-American communities or to win over Muslims throughout the world. And profiling can quickly lead to “substitution.” Once it is obvious that Arab and Muslim men are being stopped, would-be terrorists will quickly adapt and recruit people who do not fit that profile.

When I have spoken about this issue to various audiences, people often bristle at the suggestion that they may be more willing to give up other people’s rights. But, sadly, this phenomenon is all too real,
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which is why we need the politically insulated courts as well as our elected leaders to play a role in watching the watchlists. We have been tolerating watch-list and security programs that compromise both due process and equal protection rights. And if most Americans are willing to tolerate a flawed program, no branch of government is likely to respond.

Issues about profiling and security are not limited to the airport. Between 2005, when New York City began its subway checkpoint program, and early 2009, Jangir Sultan, a thirty-two-year-old native New Yorker of Kashmiri descent who works as a hospital manager, was stopped by the New York Police Department and had his bag searched twenty-one times. At that point, his frustration and outrage at being repeatedly singled out boiled over and he decided to sue. A mathematical expert calculated that the odds of his being stopped that often had the searches actually been as random as they are advertised were 1 in 165 million. New York City offered to settle the case for $10,000, but Jangir said he would forego the money if the city would agree to monitor the program to prevent others from being profiled on the basis of their race or ethnicity. The city declined his offer.
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The New York City subway search program that humiliated and outraged Jangir Sultan is a good example of the trade-offs we make without really being able to know what we are getting and we are giving up. Under this program, the New York Police Department (NYPD) visits various subway stations from time to time, sets up tables, and asks some of the people coming into the station to open their backpacks or large bags for screening. The NYPD is supposed to use a preordained system to select the subjects of these searches in order to avoid racial profiling—like stopping and searching every tenth person, for example. People who do not want to
open their bags for inspection are not compelled to submit to the search. If they decline to be searched they will not be allowed to enter the subway, but they may leave without consequence—and, if they wish to do so, reenter the subway at a different time or at a different subway stop.

The Second Circuit Court of Appeals, which sits in New York, decided that, on balance, this program is “reasonable” within the meaning of the Fourth Amendment (which allows only “reasonable” searches and seizures) because the need to catch terrorists is so great and the cost to individual privacy of opening and rifling through a backpack is relatively minimal.
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But another factor in the Fourth Amendment balancing test says that a program like this is only reasonable if it is a “reasonably effective” way to catch terrorists. The evidence offered to the court on this issue was testimony from a witness the city described as an expert, who testified that terrorists would indeed be deterred by this surveillance program because terrorists desire certainty, and even the possibility of having to leave a particular subway station at a particular time injects a note of disruptive uncertainty into their plans. The court then simply deferred to this expert’s claim to know how terrorists’ minds operate, remarking that judges are not competent to evaluate such matters. The court did not itself determine that the program was likely to be effective, but only that a purported police expert—whom the judges just decided to trust—thought it might be. Other experts might well disagree. The 9/11 Commission and a panel of the National Academy of Sciences tell us that we do not have a large enough base of experience with terrorism to be able to predict how terrorists will act.
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Thus, we find ourselves either guessing or reenacting the last battle—having everyone take off their shoes because Richard Reid once hid a bomb in his shoe, for example. As Bruce Schneier says, “We defend against what the terrorists did last week.”
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Did the NYPD genuinely believe that this professed expert knew how terrorists think and what would disrupt a terrorist’s plans? Or did the NYPD simply want to do something to make New Yorkers feel safe in the subway (especially in light of recent subway and train bombing incidents in London and Madrid) and therefore set out to create the most credible program they could manage under the circumstances? The New York City subway search program does not seem like a very promising means of preventing terrorism. Only a tiny percentage of the five million people who ride the subway each day could conceivably be screened. Because searches are sporadic and because people can walk away, it does not seem highly likely that the program will actually catch any terrorists or foil
their plans—although as with any dragnet, this is always a possibility. It is impossible to say that this program will prevent terrorism; it is also impossible to say that it will not. We cannot measure events that do not take place, so on the benefit side of the balance, we have a question mark. On the cost side of the balance, there is minor inconvenience to many subway riders, with the prospect of far greater insult to people like Jangir Sultan. Also on the cost side of the balance, however, is another hole in the Fourth Amendment and another occasion on which a court simply deferred to the self-proclaimed experts—a potentially dangerous practice, as shown by the infamous
Korematsu
case, where the Supreme Court deferred to government experts who claimed that it was necessary to national security to exclude Japanese-Americans from their West Coast homes during World War II.
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Many New Yorkers say that they do understand rationally that it is unlikely that a terrorist would be singled out for a search, and that any unlucky would-be terrorist could simply turn around and take an explosive-laden backpack to the next subway station. But, they say, the subway search program makes them feel safer. Uniformed officers with a foldout table and printed signs are a symbol of security. Is the goal being served by this program actually to prevent terrorism or to prevent terror? The phrase “War on Terror” may be a very precise description of some of our post-9/11 strategies, which hold pacifiers to be a good substitute where we don’t have actual cures.

Another security program instituted in the New York City subways is the “See Something, Say Something” program. Posters urge subway riders to call the telephone number 1-888-NYC-SAFE if they observe something they find suspicious. After the program had been running for about a year, new posters crowed that the program was a success because 1,944 calls had been made to that telephone number during the previous year. The poster provided no information about whether or not any of the calls were fruitful in apprehending or deterring any terrorist plot. William Neuman, an enterprising
New York Times
reporter, decided to find out more. He learned that the hotline had actually received 13,473 calls during 2007, of which 644 (only 45 of which bore any relationship to the transit system) were deemed worthy of investigation. No one could tell him where the poster’s number of 1,944 calls had come from. Most calls had nothing to do with the program, or reported a variety of personal belongings left behind on the subway, none of which was dangerous. Eleven calls reported suspicious “counting” by Muslim men, who turned out to be counting
rosary-like prayer beads. No terrorists had been arrested as a result of the program, the cost of which was put at $3 million.
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It is notable that evaluation of this program was left to the
New York Times
rather than New York’s elected representatives or courts.