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| November 7, 2001 | |||
Learning From the ACLU's Policy Against Airport Screenings
Is Liberty Lost During Emergencies? "[T]he ultimate strength of our constitutional guarantees lies in their unhesitating application in times of crisis and tranquility alike. If the provisions of the Constitution be not upheld when they pinch as well as when they comfort, they may as well be abandoned."
-- American Civil Liberties Union, 1973 In the spring of 1973, just at the time when the Federal Government had started requiring every airline passenger in America to go through a magnetometer before boarding a commercial airliner, the American Civil Liberties Union (ACLU) adopted an official policy that "oppose[d] the present and previous systems of airport searches because they violate the requirements of the Fourth Amendment." (1) The statement quoted at the top of this paper was a part of that ACLU policy.
Today the country is revisiting the urgent question of airport security. Two weeks ago, President George W. Bush signed an anti-terrorism bill that Congress had passed by large margins. Congress and the President are now working on an airport security bill, and on other measures to combat terrorism. Accordingly, this is a good time to think again about security and liberty, especially as those two coveted virtues line up at America's airports. It is also a good time to review one of the prescriptions of the American Civil Liberties Union, the country's second most powerful legal organization. (There still those who contend that the United States Department of Justice is more influential than the ACLU.)
Skyjackings From America's Airports. From 1930 through 1967, there were a total of nine attempted hijackings of American airliners (and fewer than half were successful), (2) but that enviable era ended in the late 1960s. In 1968, there were 16 attempted hijackings and 12 were successful. In 1969, there were 40 attempts and 33 successes, a record that still stands. (3) About one-half of all hijackers at that time wanted nothing more than to be flown to Cuba. (4) That era has ended, too.
The Federal Government's major efforts against hijacking began in 1968, but the current system of mandatory, universal screening was implemented in 1972 and 1973, (5) and, as the chart below shows, the number of hijackings then dropped sharply: In 1972 there were 26 domestic hijackings, but in 1973, the year the ACLU spoke, there were two.
Number of Aircraft Hijackings in the United States, 1970-2000 (6)
Year Number Year Number Year Number Year Number 1970 25 1980 21 1990 1 2000 0 1971 25 1981 7 1991 1 1972 26 1982 9 1992 0 1973 2 1983 17 1993 0 1974 3 1984 5 1994 0 1975 6 1985 4 1995 0 1976 2 1986 2 1996 0 1977 5 1987 3 1997 0 1978 7 1988 1 1998 0 1979 11 1989 1 1999 0 As the chart shows, by the end of the 20th Century, airplane hijackings in the United States had shriveled to nil (although the number of airline passengers had tripled since 1970 (7)).
Then came September 11, 2001.
On that one calamitous day, four civilian airliners were hijacked within minutes of each other and turned into guided bombs.
As the Nation struggles to respond effectively and proportionately to the horrors of that day (and its portents for the future), it is helpful to recall some of our earlier efforts to combat hijacking and terrorism - and the advice of the naysayers.
ACLU's Policy Against Airport Screenings. The ACLU policy was adopted in April, 1973, by its Board of Directors, which is the highest policy-making body of the ACLU. (8) In addition to the statement already quoted ("The ACLU opposes the present and previous systems of airport searches because they violate the requirements of the Fourth Amendment"), the official ACLU policy statement went on to say:
"Under the Fourth Amendment, persons or their possessions may not be searched unless the law enforcement official has probable cause to believe that the particular individual has committed or is committing a crime. In most situations, the Fourth Amendment also requires that search warrants be obtained in advance. Although the circumstance of an airport search may justify a departure from the warrant requirement, it does not justify ignoring the constitutional insistence on probable cause.
"The current practice of searching the persons and belongings of all individuals, simply because they wish to board an airplane, is completely inconsistent with these Fourth Amendment principles. . . .
"The reason given for ignoring the Fourth Amendment in the context of airport searches is that somehow the dangers posed by the threat of skyjacking are so unique that they justify the 'special,' 'emergency' measures being used. Though mindful of those dangers, it should be noted that the incidence of skyjacking decreased dramatically before the federal government required a search of all passengers and probably would have declined much further with the agreement with Cuba on the handling of skyjackers. Moreover, even at the peak of the wave of skyjacking attempts, the chance that an air passenger would be involved in a skyjacking was far more remote than the possibility tha[t] a person would be present during a bank robbery or would be the victim of a mugging. Regrettably, we live in dangerous times. If the danger posed in one situation is thought to justify unconstitutional, emergency measures, where can the line be drawn? Today it is airports, tomorrow it may be banks or city streets.
"Perhaps the most troublesome aspect of the airport search question is the readiness with which most people, civil libertarians included, have accepted and indeed welcomed such procedures. It reflects a disturbing tendency to accept any measures, such as routine searches in public places, which are supposedly devised to protect our safety. Such an atmosphere of acquiescence poses the gravest threat to all our civil liberties. The ACLU believes, as one judge has put it, that '. . . the ultimate strength of our constitutional guarantees lies in their unhesitating application in times of crisis and tranquility alike. If the provisions of the constitution be not upheld when they pinch as well as when they comfort they may as well be abandoned.'" (9)
One commentator was astounded that the ACLU could say that airport searches were only "supposedly" (as opposed to actually) devised to protect our safety, and that the "gravest threat to all our civil liberties" was the spirit of acquiescence that allows magnetometers at airports. (10) Others are struck by the ACLU's comparison of muggings and hijackings. It is true, of course, that a person is more likely to be mugged than hijacked, but that hardly allows for the two to be equated. When a bullet fired during a bank robbery pierces the skin of the bank building and causes it and all within to plunge 30,000 feet, we will pay somewhat more attention to arguments equating bank robberies and airplane hijackings. We are unaware, too, of any case in which a fully fueled bank was used as guided bomb to attack other targets. If four banks had been robbed simultaneously on September 11, would we now be at war?
The ACLU policy remained in place into the 1990s, (11) although by then the ACLU had gotten defensive about it. (12)
Courts Rejected ACLU's Position. For all of the ACLU's legal expertise, the courts simply never agreed with the ACLU's constitutional stance on airport screenings. The lower Federal courts have held repeatedly that airport screenings are neither a ruse nor a violation of the Fourth Amendment. (13) The U.S. Supreme Court has never addressed the question directly, presumably because it could discover no reason to disturb the uniform decisions of the lower courts. In 1997, however, the High Court did say that "where the risk to public safety is substantial and real, blanket suspicionless searches calibrated to the risk may rank as 'reasonable'- for example, searches now routine at airports and at entrances to courts and other official buildings." (14)
American People Reject ACLU's Position. With more than a billion airport screenings every year, the American people have joined the courts in rejecting the ACLU's claim that "acquiescence" to such screenings "poses the gravest threat to all our civil liberties." If the American people thought that totalitarianism began at the airport gate, they would have created a demand for a Libertarian Airlines (motto: "Make your flights without giving up your rights"). Instead, civil libertarians are passing through airport security with the rest of us. There are civil libertarians who are alive and grumbling today because they had to pass through a magnetometer before boarding an airliner. (15)
ACLU's Alarm. The final paragraph of the ACLU's policy statement was one of those ringing declarations of liberty that warn especially against surrendering our liberties during real or supposed emergencies. It is the warning that appears at the top of this paper. Such warnings are desirable and often useful, for a free people must be ever vigilant. But warnings can ring out unnecessarily or falsely, and freedom is not the only blessing that is threatened by our enemies.
The ACLU's ringing declaration was taken from Judge Walter R. Mansfield's concurring opinion in United States v. Bell. (16) Judge Mansfield, in turn, took one sentence from Justice Sutherland's dissent in the famous 1934 case of Home Building & Loan Association v. Blaisdell. (17) Unlike the Mansfield opinion, however, the ACLU neither cited Justice Sutherland nor put his words within their own quotation marks.
The ACLU's use of Justice Sutherland's warning is highly ironic. The ACLU repeated Sutherland's words, but surely it would not endorse Sutherland's genuine warning:
Justice Sutherland's dissent in Home Building & Loan Association v. Blaisdell was written in one of the more important "property rights" cases ever decided. (Leftist libertarians like to draw distinctions between "property rights" and "civil rights.") Justice Sutherland wrote to warn the Court and the country against abandoning the Contracts Clause of Article I, Section 10, clause 1 ("No State shall . . . pass any . . . Law impairing the Obligation of Contracts") even when the country was in a deep depression. The Court disagreed with Sutherland, five to four, and upheld a Minnesota law that provided that aggrieved debtors could - contrary to their contracts - delay foreclosure and forced sale of their homes during the economic emergency. Sutherland, for his part, could not understand how the Constitution could "mean one thing at one time and an entirely different thing at another time," (18) and he urged the Court to uphold the Constitution both when it "pinches" and well as when it "comforts."
In its true context, the ACLU would treat Justice Sutherland's 1934 warning the same way the country treated the ACLU's warning in 1973.
Can Liberty Be Lost in an Emergency? Liberty can, indeed, be lost in an emergency (and at any time), but not all warnings are true and wise. Some warnings should be heeded, some not.
In the years when the Federal Government started requiring passengers to be searched if they wanted to board an airplane, the ACLU warned us about the threat to our liberties. Should the country have given heed to its warning? If the country had taken the ACLU's advice, would we be more safe today? Would we be more free? Would there have been fewer tragedies through the years, or more? Would civil liberties have been enlarged, or compressed?
The American people and their governments took the constitutional and commonsense view that liberty is good, and it is even better if more American are around to enjoy it.
Liberty is a blessing, but ordered liberty is our inheritance and our hope.
ENDNOTES 1. 1976 POLICY GUIDE OF THE AMERICAN CIVIL LIBERTIES UNION at 234-35, Policy No. 260 (from Board minutes of April 14-15, 1973, and press release of May 4, 1973).
2. U.S. Department of Transportation, Federal Aviation Administration, Office of Civil Aviation Security, "Semiannual Report to Congress on the Effectiveness of the Civil Aviation Security Program" p. 19, Exhibit 1 (Jan. 1 - June 30, 1980).
3. Id.
4. Aviation Security and Aviation Safety, "Security in Aviation: Hijackings from 1960 - 2001," visited Oct. 3, 2001, at http://airtravel.about.com/library/security/blsecurityhijackiings.htm [sic].
5. The history of the Federal Government's efforts is well summarized in United States v. Davis, 482 F.2d 893 (9th Cir. 1973), a leading case.
6. Source: U.S. Department of Transportation, THE CHANGING FACE OF TRANSPORTATION, data for Figure 7-13 (1999?), found at http://199.79.179.77/transtu/cft/, supplemented with additional data from DoT for 1999 and 2000. The data include information for U.S. scheduled air carrier aircraft and not for general aviation. We have found discrepancies between the numbers reported in this table and numbers reported by the Department elsewhere.
7. Id. at Figure 2-16.
8. The Board of Directors is the ACLU's "ultimate policy-making body." 1976 POLICY GUIDE OF THE AMERICAN CIVIL LIBERTIES UNION, supra note 1, at page i.
9. 1976 POLICY GUIDE OF THE AMERICAN CIVIL LIBERTIES UNION, Policy No. 260, supra note 1.
10. "Does the Average Guy worry when he steps through an airport metal detector? Sure he does. He worries about business. He worries about the rising cost of season tickets. He worries about making his flight. He worries about his Walkman as it passes through the x-ray machine. And when the overhead buzzer goes off because he forgot to divest himself of his keys, and the young female attendant asks if he would please empty his pockets and pass through again, he worries if she thinks he's good looking.
"What he probably does not worry about is whether the metal detector search violates his civil liberties. And that is what petrifies the American Civil Liberties Union. The group states its fear in ACLU policy #270: 'Perhaps the most troublesome aspect of the airport search question is the readiness with which most people, civil libertarians included, have accepted and indeed welcomed such procedures. It reflects a disturbing tendency to accept any measures, such as routine searches in public places, which are supposedly devised to protect our safety. Such an atmosphere of acquiescence poses the gravest threat to all our civil liberties.'
"Supposedly devised? The gravest threat to all our civil liberties? The passion that the ACLU has historically marshalled to combat censorship and racial bigotry is now leading it to fight even the most benign safety measures. As we grope for what to do about hazards such as drunk driving and kids routinely toting pistols down school corridors, and as we seek to stem drug and alcohol abuse [among] the people who operate our trains and aircraft, the ACLU puts up its dukes as if it were mixing it up with Bull Connor.
"When talking about public safety, ACLU officials can sound like nothing so much as Chicago School economists drearily insisting that padded dashboards and pollution controls might save lives but can't be tolerated because they threaten free enterprise. Similarly, the ACLU can't see metal detectors as the modest act of a democratic government to thwart hijackings and murders. It insists on seeing each measure 'supposedly' meant to protect health and safety as another dangerous step toward fascism.
"What is dangerous is the ACLU's reading of the Constitution, specifically its interpretation of the Fourth Amendment's prohibition of 'unreasonable' searches and seizures. The ACLU has dismissed random searches, like those at the airport, as unconstitutional. But not all random searches are created equal. Surely, we have the common sense to recognize the difference between random searches with the rational aim of protecting public safety and searches with the irrational aim of persecuting minorities or minority opinion. There is also an important distinction between searches that employ outrageous techniques, like strip searches, and those that are 'minimally intrusive,' such as passing through a metal detector. And, finally, there's an important common sense distinction between searches so humiliating or terrifying that the innocent dread them and those that only the guilty fear. There are some fronts on which the ACLU wages noble constitutional struggles. The gate to the Eastern [Airlines] shuttle is not one of them." P. Glastris, ". . . One that should be the best, but isn't; the ACLU and the right to die in a train wreck," 20 Washington Monthly 27 (March 1988).
11. The policy seems to have been in effect in 1994 although the policy was renumbered in subsequent editions of the POLICY GUIDE. Wm. Donohue, TWILIGHT OF LIBERTY: THE LEGACY OF THE ACLU 273 at n.78 (1994) (Policy #270 on airport security "still official ACLU policy" in 1994 "though the Union rarely discusses this issue today"); F.L. Smith, ACLU: THE DEVIL'S ADVOCATE: THE SEDUCTION OF CIVIL LIBERTIES IN AMERICA 123 at n.14 (1996) (citing to Policy #270 of POLICY GUIDE (revised through Oct. 1992)). And see, Wm. Donohue, THE POLITICS OF THE AMERICAN CIVIL LIBERTIES UNION 263 at n. 240 (1985) (citing to the 1981 POLICY GUIDE and another policy statement, Policy #266). See also, footnote 10, supra. We do not know the current status of the 1973 policy, but see footnote 12, infra. We found no mention of the policy in Samuel Walker's sympathetic history, IN DEFENSE OF AMERICAN LIBERTIES: A HISTORY OF THE ACLU (1990).
12. In a lengthy letter to The New Republic written in 1988, the president and executive director of the ACLU wrote, "[I]n the last decade the ACLU has not challenged airport metal detectors in court or issued a single public statement opposing them." The letter went on to say that the ACLU's policy was in response to airport searches that were "highly discriminatory, singling out blacks or people with long hair for intrusive searches." "An Exchange on the ACLU," The New Republic 22 (Dec. 12, 1988). That explanation will not wash: It is true that the Federal Aviation Administration's original screening policy used "profiles" to help identify potential hijackers (which is not to say it was "discriminatory"), but the ACLU's policy which is quoted in this paper was passed in 1973 after the FAA had changed its policy. The ACLU policy of 1973 expressly said that the ACLU "opposes the present and previous systems of airport searches," and that the "current system of searching the persons and belongings of all individuals" violated the Fourth Amendment.
The letter was in response to a powerful criticism of what the author called the ACLU's "new agenda." Mark S. Campisano, "Card Games: The ACLU's Wrong Course," The New Republic 10 (Oct. 31, 1988). The paragraph that reported on the ACLU's airport policy said, "According to the ACLU, airport security checkpoints violate our right against unreasonable searches, and public school dress codes violate schoolchildren's right of self-expression. The ACLU urges repeal of all drug laws and laws against prostitution, and has objected to laws allowing the post office to stop delivering obscene materials upon customer request. The Union wants to remove the words 'Under God' from the Pledge of Allegiance. . . . The Union has said that Roman Catholic nuns should be barred from wearing their traditional habits when teaching in public schools. And when New York prohibited the use of children in depictions of sexual acts, the ACLU helped try to invalidate the law."
13. See, e.g., W.R. LaFave, SEARCH AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT §10.6 (3rd ed. 1996) (and 2001 pocket part); J.W. Hall, SEARCH AND SEIZURE chap. 32 (3rd ed. 2000); "Validity under Federal Constitution of preflight procedures used at airports to prevent hijacking of aircraft," 14 ALR Fed. 286.
14. Chandler v. Miller, 520 U.S. 305, 323 (1997) (citing to National Treasury Employees Union v. Von Raab, 489 U.S. 656, 674-676 & n. 3 (1989)).
15. "No one goes through security checkpoints for the pleasure of it. It's intrusive. It may force you to come into physical contact with perfect strangers. It delays your progress toward your destination. It's a bother. It's a nuisance. It's a pain in the neck. But most people put up with it without complaint because they understand that security screenings serve an important purpose: safeguarding us all from armed attack. At airports alone, over a billion screenings . . . are conducted each year. Although such screenings can be inconvenient, we all feel a good deal more secure knowing that our fellow airline passengers aren't carrying guns, knives and bombs. . . ." Klarfield v. United States, 962 F.2d 866, 867 (9th Cir. 1992) (Kozinski, J., dissenting from denial of rehearing en banc) (citation omitted).
16. "History reveals that the initial steps in the erosion of individual rights are usually excused on the basis of an 'emergency' or threat to the public. But the ultimate strength of our constitutional guarantees lies in their unhesitating application in times of crisis and tranquility alike. 'If the provisions of the Constitution be not upheld when they pinch as well as when they comfort, they may as well be abandoned.' Home Building & Loan Assn. v. Blaisdell, 290 U.S. 398, 483 (1934) (Sutherland, J., dissenting)." United States v. Bell, 464 F.2d 667, 676 (2d Cir. 1972) (Mansfield, J., concurring) (emphasis added; words in italic used in ACLU statement).
17. "I quite agree with the Court that whether the legislation under review is wise or unwise is a matter with which we have nothing to do. Whether it is likely to work well or work ill presents a question entirely irrelevant to the issue. The only legitimate inquiry we can make is whether it is constitutional. If it is not, its virtues, if it have any, cannot save it; if it is, its faults cannot be invoked to accomplish its destruction. If the provisions of the Constitution be not upheld when they pinch as well as when they comfort, they may as well be abandoned. Being unable to reach any other conclusion than that the Minnesota statute infringes the constitutional restriction under review, I have no choice but to say so." Home Building & Loan Assn. v. Blaisdell, 290 U.S. 398, 483 (1934) (Sutherland, J., dissenting) (emphasis added).
18. Id. at 449.
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