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Checkpoints, Warrantless Searches and Security Theater

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Checkpoints, Warrantless Searches and Security Theater

Less than three years after the 9/11 attacks struck American commercial aviation carriers, Al Qaeda-inspired terrorists targeted a different kind of transportation system— Madrid’s commuter rail network. Just over a year after that attack, terrorists struck the London bus and subway system. Fearing U.S. transit systems would be next, DHS officials responded by creating Visible Intermodal Prevention and Response (VIPR) teams, composed of Transportation Security Administration (TSA) and Federal Air Marshall (FAM) personnel, augmented by state or local law enforcement organizations. Touted as a means of deterring and preventing terrorism, the VIPR program has grown from a single team in 2004-05 to over 30-teams and an annual budget of over $100 million today. As the number and scope of VIPR operations have grown, so has the controversy surrounding their employment.

While VIPR teams began as extensions of security at major airports, TSA officials gradually began pushing VIPR operations beyond airports—to major transit systems in Washington, Houston, Boston, New York City, and most recently, Chicago. Multiple published reports over the past several years have documented warrantless baggage searches by VIPR teams on these transit systems. TSA officials claim that the judicially-created “special needs” exception to the Fourth Amendment provides them with the legal authority to conduct such searches. In 2011, a VIPR team took over the Amtrak station in Savannah, Georgia and conducted warrantless searches of detraining passengers. The same year in Tennessee, VIPR teams conducted warrantless searches of trucks at weigh stations.

Over the last decade, VIPR teams have conducted thousands of such searches (according to Congressional testimony by TSA officials) and uncovered no terrorists. Indeed, the November 2013 shooting at Los Angeles International Airport was a demonstration of how the alleged “deterrent” effect of random VIPR operations was no deterrent to a determined gunman. The same month, the Government Accountability Office published a report calling into question a key component of VIPR teams—Behavior Detection Officers and the validity of the operational concept underlying their use. The ACLU has declared the VIPR program “a direct assault on the Fourth Amendment”. In the 113th Congress, Rep. Scott Garrett (R-NJ) tried to kill the VIPR program altogether, regrettably without success—but it is very likely Garrett will make another attempt in 2015.

VIPR teams represent an expensive and ineffective counterterrorism tool whose tactics and practices are, in the view of privacy and civil liberties community, constitutionally abhorrent. However, VIPR is not the only DHS component engaged in attempted or actual warrantless searches of the travelling public.

“Papers, please”

Throughout the southwest United States and at selected points near the Canadian border, U.S. Customs and Border Protection operates a series of inland checkpoints on American highways, sometimes as much as 100 miles inside the United States. Most Americans who do not live in areas where the checkpoints are located are probably unaware that these inland CBP checkpoints have existed for decades, legitimized by an ill-considered Supreme Court decision in United States v. Martinez-Fuerte.

That case, which involved three separate incidents involving the transportation of illegal aliens into the United States, examined the question of whether the use of such checkpoints for warrantless seizures and visual inspection (read “searches”) violated the Fourth Amendment. Writing for the Court’s majority, Justice Powell asserted that given the huge problem of illegal immigration and CBP’s responsibility of to prevent it, under “the circumstances of these checkpoint stops, which do not involve searches, the Government or public interest in making such stops outweighs the constitutionally protected interest of the private citizen…In summary, we hold that stops for brief questioning routinely conducted at permanent checkpoints are consistent with the Fourth Amendment and need not be authorized by warrant.” The court’s reasoning seemed to be thus: Abiding by the traditional probable cause standard was too burdensome to the effort to stem illegal immigration.

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