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Swayed by expert testimony that random police searches of bags and other containers were an effective deterrent to terrorism on subways, a federal judge last week refused to halt the police practice. “The risk of a terrorist bombing of New York City’s subway system is real and substantial,” Southern District of New York Judge Richard Berman noted in denying a request for a permanent injunction against the subway searches sought by the New York Civil Liberties Union. With the stakes so high, he wrote in MacWade v. Kelly, 05 Civ. 6921, the need for the search program easily outweighed what he termed a minimal intrusion into the privacy of straphangers. “Because the threat of terrorism is great and the consequences of unpreparedness may be catastrophic, it would seem foolish not to rely upon those qualified persons in the best position to know,” Berman wrote in a 41-page opinion. The decision, issued Friday within hours of closing arguments in the case, rested on the “special needs” exception to the warrant and probable cause requirements of the Fourth Amendment. Berman cited U.S. Supreme Court case law that allows as reasonable “blanket suspicionless searches” where the “risk to public safety is substantial and real.” New York’s Container Search Program, implemented after the July terror bombings of London’s subway, was constitutional under the special needs exception, Berman said. He described the need for counter-terrorism measures as “indisputable, pressing, on-going and evolving.” Before he issued the opinion, a handful of demonstrators outside the Thurgood Marshall U.S. Courthouse denounced the search program while other opponents inside the courtroom applauded as Christopher Dunn, an attorney for the New York Civil Liberties Union, challenged the city’s rationale. Dunn said the city had been unable to prove the efficacy of the searches and the program violated the Fourth Amendment’s prohibition on unreasonable searches and seizures. Since filing the suit in August, Dunn said the searches were so rare that they could not possibly be effective, especially given the fact that people whose bags are to be searched have the right to turn and walk away when stopped by police. During a hearing in October, Dunn said a survey of 5,500 turnstile entrances at the city’s 468 subway stations showed that only 34 searches were conducted between Aug. 25 and Sept. 16. But Berman said in his opinion that his review of sensitive, sealed data submitted by the city showed that the number of checkpoints the plaintiffs reported finding in their own survey “bears absolutely no relationship to (and substantially understates) the total number of Container Inspection searches conducted during that period.” Gail Donaghue, special counsel to the city’s Law Department, argued during the hearing that the searches work even though every container cannot be searched or every subway turnstile cannot be manned by police. The key, she said, was that the mere possibility of being searched can change the behavior of terrorists. “Terrorists are looking for certainty,” she said. “They have limited resources. An element of uncertainty changes the odds.” ‘PERSUASIVE’ TESTIMONY Berman agreed and, in his opinion, cited the testimony of NYPD Deputy Commissioner for Intelligence David Cohen and NYPD Deputy Commissioner for Counter-Terrorism Michael Sheehan, as well as a submission from former senior White House counter-terrorism expert Richard A. Clarke. “Commissioners Cohen and Sheehan testified persuasively that, because of the random nature of the Container Inspection Program, i.e. because when and where an inspection will occur is not revealed in advance, the Program adds uncertainty and unpredictability to the planning and implementation of a terrorist attack which, in turn, increases the risk of failure and helps to deter an attack,” he said. Berman said he also was persuaded by Sheehan’s opinion that the program had a helpful side effect. Sheehan said the program “reinforces the awareness of police officers, transit workers, and the public of the need to be alert. That alertness is an important component of a counter-terrorism program.” Under the special needs exception, judges are required to perform a fact-specific balancing of the intrusion against the legitimate government interests behind the searches. Here, Berman said, the government’s interest was “of the very highest order” and the program was “narrowly tailored and only minimally intrudes upon privacy interests.” Moreover, he said that the program did not violate one of the key provisos of the special needs exception — the searches were not being conducted to detect evidence of “ordinary criminal wrongdoing.” Dunn said he plans to appeal. “We continue to believe that this program is unconstitutional and we intend to appeal immediately,” he said. “This is the beginning of the case, not the end.” But Corporation Counsel Michael Cardozo, whose office litigated the case for the city, said Berman decided correctly. “The judge gave great attention to all the evidence and the applicable law, and reached the right decision for New York City,” said Cardozo. “This is a critical ruling that will help the NYPD continue to provide security in the transit system for all those who ride the subways.” “Common sense prevailed,” added Police Commissioner Raymond W. Kelly.

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