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Court Says Random NYC Subway Searches OK

A federal appeals court said Friday that random bag searches on New York subways are constitutional, agreeing with a lower court that the police tactic is an effective and minimally invasive way to help protect a prime terror target.

The 2nd U.S. Circuit Court of Appeals rejected a challenge to the searches by the New York Civil Liberties Union, saying U.S. District Judge Richard M. Berman properly concluded in December that the program was "reasonably effective."

Searches on the nation's largest subway system began after the deadly terrorist bombings in London's subways in July 2005. The NYCLU sued, arguing that they were an unprecedented intrusion on privacy that terrorists could easily evade.

The appeals court said Berman properly concluded that preventing a terrorist attack on the subway was important enough to subject subway riders to random searches.

The three-judge panel also noted police have thwarted plans for New York subway attacks at least twice in the last nine years, including a bomb plot in 1997 in Brooklyn and a 2004 plot to bomb the Herald Square subway station. It was "unsurprising and undisputed that terrorists view it as a prime target," the court said in its opinion.

"Common sense prevailed," Police Commissioner Ray Kelly said. "Once again, and at a fitting moment, the court upheld the constitutionality of the bag inspection program, one of our key strategies for deterring a subway attack."


Christopher Dunn, the NYCLU's associate legal director, said the group is considering an appeal.

"Because this program authorizes police searches of all subway riders without any suspicion of wrongdoing, we continue to believe it raises fundamental constitutional questions," he said.


The appeals court said counterterrorism experts and politically accountable officials had undertaken the delicate task of deciding how to use their resources to fight terrorism.

"We will not � and may not � second-guess the minutiae of their considered decisions," the appeals court wrote.


The three-judge panel said expert testimony had established that terrorists seek predictable and vulnerable targets and the subway search program "generates uncertainty that frustrates that goal, which, in turn, deters an attack."

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