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... One that should be the best, but isn't; the ACLU and the right to die in a train wreck.

. . . One That Should Be The Best, But Isn't

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 makinghis 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 attendent 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 the 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 eocnomists 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" meants to protect health and safety as another dangerous step towards fascism.

What is dangerous is the ACLU's reading of the Cosntitution, specifically its interpretation of the Fourth Amendment's prohibition of "unreasonable" searches and seizures. The ACLU has dismissed randmom 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 shuttle is not one of them.

This extremist reading of the Bill of Rights might be easy to dismiss if it were that of some small libertarian lobby with a walk-up office. But with 250,000 members, a budget of more than $15 million, and an important presence in Washington, the ACLU is one of the nation's most powerful lobbies. A crack staff of 70 attorneys, pro bono arrangements with the nation's top firms, a caseload that lets it brag of being "the largest private law firm in the country"--all this makes the ACLU a potent litigator. Only the Justice Department argues more cases before the Supreme Court.

But the Union's strength lies in more than numbers. The ACLU has a unique 68-year tradition in American political culture. This is the group that backed Clarence Darrow in the Scopes Monkey Trial, got James Joyce's Ulysses into American libraries, fought for the right of workers to strike and against laws that made interracial marriage a crime. So it's particularly sad, not to mention alarming, that on important issues of health and safety the ACLU is dead wrong.

Remember why those metal detectors were installed: the little matter of hijackings, or "skyjackings" as they were called in the late 1960s when the practice was discovered by mad gunmen and those interested in one-way flights to Havana. Because airport metal detector searches have worked and because, like Muzak, they've become a minor annoyance to which we don't pay much attention, we've almost forgotten the terror that brought them into being. In the 37 years before 1968, there were only seven hijackings. Over the next five years, hijackings (successful and attempted) averaged 27 a year.

James Bond

In 1973, the airlines began screening all passengers in major U.S. airports with metal detectors. Since then, the average number of annual hijackings and attempts has dropped to 7.4, a decrease that is even more dramatic when you consider that a high proportion of the hijacking attempts were in situations where metal detectors did not come into play. For instance, in the first six months of 1987, there were four attempted hijackings in the U.S., none of them successful. In one, a terrorist pulled a gun and grabbed a hostage at the ticket counter before he ever approached the metal detectors. Another involved a small plane in the Virgin Islands in which passengers were not required to be screened. The other two hijackers claimed to be armed but turned out to be bluffing. All totaled, airport security has nabbed 38,000 weapons, making 17,000 arrests and foiled, by the Federal Avaition Administration's count, some 117 potential hijackings since 1973. And who knows how many terrrorists or self-proclaimed Messiahs were deterred from trying in the first place? It doesn't take a forensics expert to realize that metal detectors work. (It should be noted that they would work even better if they were used on checked as well as carry-on luggage.)

Effectiveness isn't everything, of course. A knock on the door by police in the middle of the night would be an "effective" way to seize contraband. It would also terrify the innocent. But people have passed through metal detector systems at U.S. airports 8.5 billion times without rising up in protest. even the Association of Flight Attendants approves of the searches, not only for passengers but for its own members as well. And considering how well metal detectors have prevented hijackings (and perhaps as important, relieved Americans of that fear), it's no wonder that federal judges have ruled that all the precuations that go into these searches make them "minimally intrusive," "reasonable," and therefore constitutional. First of all, anyone can avoid them by electing not to fly. And, though many people don't know this, if the metal detector goes off, you can simply walk out of the airport the way you came in and it is illegal for security officers or police to detain you.

Why does the ACLU deem the devices that have saved lives "a grave threat" to civil liberties? Because they oppose on principle any safety measure where all passengers are searched, out of fear that it will lead to more oppressive measures. Yes, it's that old slippery slope. "The basis for it," says Alan Reitman, the Union's associate director and elder statesman, referring to the group's opposition, "is this dragnet nature of checking people who have not been charged when there's no indication that they are about to commit a crime. That weakens that Fourth Amendment protection."

The ACLU holds out as its standard searches that are based on "probable cause": targeting only those suspected of committing a crime. But judges recognize that this is a threshold that can be almost impossible to clear. Just as a practical matter, how can the TWA ground managers at O'Hare possibly have educated suspicions about the steady stream of anonymous faces flowing through the terminal. The same people who can't find your luggage would have to exhibit the combined talents of James Bond and the Amazing Kreskin. "Probable cause" searches have their own intrusiveness problems. Indeed, the ACLU opposed an earlier, targeted method of searching passengers who fit a hijacker's "behavorial profile." The Union claimed that authorities seemed to be singling out minorities and "persons with long hair."

No ones has yet devised a deterrent to hijackers that is as effective but less intrusive than metal detectors. That--and not some ominous softening of America's resolve to protect its civil liberties--is why the courts and the public aren't in a cold sweat. Metal detectors prevent hijackings and murder and easily pass the Fourth Amendment test that government searches and seizures must not be "unreasonable."

What does ACLU policy #270 say about the lives that would be lost wihtout the metal detectors? "Regrettably, we live in dangerous times."

The grenade

Thanks to the metal detectors we seem to have airplane hijacking under control, but other threats continue to mount. Consider what inner-city children face when they try to go to school. If they don't get knifed or shot by street gangs on the way, they risk buying it in math class. The percentage of students packing guns and other deadly weapons in school more than doubled between 1975 and 1986 in three out of the four American cities surveyed by Oliver Moles of the U.S. Department of Education. More than 27,000 youths between the ages of 12 and 15 were handgun victims in 1985, almost double the average number of the three previous years.

Among the most perilous places to be a school kid is Detroit. During the 1983-1984 school year, 325 weapons were seized inside the city's schools. The next year authorities reaped 456 weapons, while registering 70 felonious assaults against students and teachers in schools, on school grounds, or on the way to or from schools. The weapons involved in these incidents, according to The Detroit News, included "155 handguns, 222 knives, eight sawed-off shotguns, and one hand grenade, not to mention innumerable wrenches, ice picks, razors, and brass knuckles."

In late 1984, the Detroit school board took action. The board settled on a policy of surprise weapons "sweeps," a first-of-its-kind program of arms control. On certain mornings, with no advanced warning, school security personnel and Detroit police were to be posted at schools with hand-held and walk-through metal detectors.

Ever vigilant, the Michigan chapter of the ACLU sprang into action. During the spring and summer of 1985, the group's lawyers gathered evidence and found a willing plaintiff; by the time school resumed in the fall, the ACLU lawyers were in court, charging that the weapons searches were unconstitutional because they were administered without individualized suspicion.

That following December Federal District Judge Avern Cohn side-stepped the ACLU's challenge on a legal technicality but put a temporary halt to the sweeps, chastising school authorities for their sloppy methods, the police presence, and the surprise nature of the searches.

Rattled and embarrased, the school board had its lawyers draft new guidelines it hoped the judge would accept. Searches would no longer be random but targeted at schools where weapons had recently been found or gang violence was feared. The schools themselves, not the police, would administer the searches. Security personnel would be of both sexes. As with airport metal detectors, the point of the searches was not to catch criminals but to deter kids from bringing their weapons into school. Finally, the board promised no more surprises: students would be given advanced warning of any future searches. Satisfied, Judge Cohn allowed them to continue.

It wasn't a victory to savor. The board seemed to have painted istelf into a corner by promising not to conduct surprise searches--where's the deterrence if students know which days their schools will be searched? Then there was the ACLU. Not satisifed with all the qualifications, the Union remained opposed to any kind of random search. Fearing another 15 rounds in court with the ACLU if it resumed the searches, the board sat on its hands for over a year.

Then on April 16, 1987, a 14-year old student at Detroit's Murray-Wright High School got into an argument with an upperclassman named Chester Jackson. He followed Jackson out of school, into the parking lot, pulled a gun, and shot him in the face. The killing of Chester Jackson might have gone unnoticed had he not been the school's star football player. Dead high-school athletes inspire more fear in big city officials than do potholes. Their ghosts haunt the front pages, fueling citizen anger. within a month, the school board, under strong pressure from Coleman Young, the city's mayor, began using metal detectors again. The board addressed the "advanced warning" decree with the simple trick of posting signs saying that students are subject to weapons searches, without actually divulging on which days a specific school will be "swept." The Michigan ACLU has not ruled out the possibility of going back to court, says David Wineman, a member of the ACLU board.

Do these random sweeps work? Detroit authorities saythey do, claiming the searches are a convincing deterrent. In addition to discouraging tough kids from bringing guns, the school officials hope the sweeps will convince kids who carry weapons only for self-defense--a major source of problems--to leave their weapons at home (or at least outside). The Michigan ACLU claims that school authorities would confiscate more weapons if the money now spent on sweeps was devoted to searching only individuals suspected of carrying weapons. But is it reasonable to assume that schools have on their staffs the Sherlock Holmeses needed to know which kid to suspect?

The ACLU's position is not only tragic, but disingenuous. It is a strong believer in handgun control, a limitation on the rights of individual gun owners for the sake of the community. Is it so distasteful for Detroit authorities to take similar communitarian measures to keep weapons out of inner-city public schools?

Gin-soaked breath

Alcohol-related driving accidents kill 25,000 people in this country every year, almost half the number of casualties in the entire Vietnam war. They injure nearly another million. To stem the carnage, 30 states now allow local law enforcement departments to set up sobriety checkpoints, where drivers are stopped for an average of a minute and asked a few questions to determine if they've been drinking. A Transportation Department study found sobriety checkpoints cut alcohol-related accidents by 13 percent.

The ACLU wants these outrageous searches stopped. ACLU policy #217 is quite explicit: "Roadblocks where drivers are stopped for sobriety testing without probable cause violate Fourth Amendment principles."

Sure, sobriety checkpoints, like toll booths, are an inconvenience, but they have the added advantage of saving lives. Judges have found that the checkpoints meet the Fourth Amendment's test of reasonableness. The aim is to nab drivers with gin-soaked breath, not those with copies of Das Kapital or The Watchtower stashed in the glove compartment. And it is not as though drivers are getting a body cavity search every time they take a run to the mall. Consider the rules governing California's sobriety checkpoints, which have been approved by the state Supreme Court despite the ACLU's challenge. At a California checkpoint, cops are not allwoed to give you a citation for, say, a broken headlight or an expired inspection sticker. They can't even ask for your license unless they notice visible signs of drinking or drugs (or unless your .45 is on the dashboard). Police even have to publicize the date and in some cases the precise location of the checkpoint in newspapers and on TV and radio. (The Transportation Department study judged the checkpoints "highly effective in capturing public attention.") For those who might have missed the announcement, the rules even mandate date that police must post a lit sign far ahead announcing the presence of the roadblock so that motorists who don't wish to go through it can pull a U-turn and scram. (This gives you some sense of the state of intoxication of the 710 people arrested for drunk driving at California roadblocks in the winter of 1986.)

How do Californians feel about being crushed beneath this jackboot of oppression? At California Highway Patrol checkpoints, all drivers their given postage-paid survey cards to gauge their reaction. Of those who sent the cards back, 89.7 percent approved of the checkpoints. When random searches are done well, and for the right reasons, they don't inspire fear in the innocent.

As always, the ACLU argues over effectiveness. In its suit before the California Supreme Court, the Union suggested that, with the same resources and publicity given to checkpoints, the standard "probable cause" technique could save just as many lives. There's no data to prove this. But there are good reasons why courts have chosen to believe law enforcement officials who feel sobriety checkpoints are superior. It's not that easy for a cop to spot a drunk driver as the car speeds down the highway. Not all intoxicated drivers sway back and forth on the road like Keystone cops. Moreover, checkpoints provide an understandable deterrent that's missing from probable cause enforcement. Those of us who have, on occasion, rationalized driving after drinking know the tendency to promise oneself to "drive carefully" so as not to do damage or attract the attention of police. That rationalization doesn't hold up against checkpoints.

But then, arguing effectiveness is an act of hypocrisy for the ACLU. What would the Union say if those future studies demonstrate conclusively that checkpoints work better? "I think we'd still be opposed to them," replies Alan Schlosser, staff counsel with the ACLU of Northern California. Checkpoints, like airport metal detectors, are unacceptable, no matter how many lives they save. Regrettably, we live in dangerous times.

The engineer's joint

Awhile back, the Reagan administration, in its zeal to root out drugs, started testing the urine of federal employees, even those who push paper all day. Uncle Sam, it seemed, was becoming Big Brother and the ACLU rightly stepped in to fight. But even when it came to drug testing, the ACLU had an uncanny ability to stake out the most indefensible terrain.

The government has no pressing need to know about the drug habits of most of its work force. But is it fascism for the government to ensure that air traffic controllers, railroad engineers, and others who make the difference between life and death are unimpaired by drugs and alcohol? Too often they are stoned and drunk. Amtrak passengers, who take 20 million train trips a year, would be shocked to learn of the extent of the drinking problem in the railroad industry. A 1979 study found 23 percent of railroad operating employees were problem drinks and many of those got drunk on the job. Drug abuse it also a serious problem. According to the Federal Railroad Administration (FRA), between 1975 and 1984 there were 48 train accidents, causing 37 fatalities and 800 injuries, in which drugs or alcohol were "directly affecting" causes.

So in 1986 the Transportation Department ruled that railroads had to begin testing employees for drugs as a condition of employment, after an accident and when trained supervisors had "reasonable cause" to believe an employee was impaired by drugs or alcohol. One final precaution was rejected: random testing. Officials from the railroad unions and the FRA felt random testing wasn't necessary.

All those precautions, however, failed on January 4 of last year, when the brakeman and engineer of a three-engine Conrail train shared a joint of marijuana on duty. Both were veteran railmen in their thirties. Both had just come under the gaze of a supervisor trained to spot signs of drug and alcohol use. ("Reasonable cause testing is keyed to the ability of a supervisor to detect symptoms," says a FRA study of the accident that was to follow.) Despite several warning signals, the impaired engineer failed to slow his train, instead driving through an intersection and onto a track in Chase, Maryland, just ahead of an Amtrak passenger train traveling at 105 miles per hour. The collision of the Amtrak train into the back of the Conrail locomotive left 16 people dead and 174 injured.

This crash and other data led Congress and the Transportation Department to reconsider the drug testing program. Government labor union leaders still oppose random testing. But significantly, Senators Paul Sarbanes and Barbara Mikulski, liberal Democrats from Maryland, a state with both a huge constitutency of government employees and a lot of grieving family members of the train wreck victims, wound up supporting the random testing bill. So did the National Association of Rail Passengers, a public interest group.

The head of the FRA, John H. Riley, reversing himself, now favors random drug use testing. The reason: after a 24-month program of testing based on "reasonable cause," FRA studies show that 4 percent of all rail employees involved in accidents had recently used illicit drugs, and 1 percent had alcohol in their blood. "Although these numbers are relatively low," he said, "they represent a hard core of alcohol and drug users who have not been persuaded by prevention campaigns, have not been willing to take advantage of employee assistance programs, have avoided detection in scheduled testing conducted by the railroads, and have not been deterred by the reasonable cause testing program."

Drugs and alcohol threaten our skies and roads too. In 1986, the Insurance Institute for Highway Safety asked 300 truck drivers in Tennessee to be tested. Thirty percent (of the 88 percent who volunteered) tested positive for "drugs with potential for abuse"; 14 percent tested positive for marijuana, 11 percent for speed, 2 percent for cocaine. In 1983, Greyhound, during a strike, took applications from experienced bus drivers: 30 percent tested positive for marijuana. The airline industry is also plagued. While there have been no big commercial air carrier accidents attributable to drugs or alcohol, there are risks to the Americans who take 418 million plane trips each year. Tests of general aviation pilots killed in fatal accidents found alcohol a contributing factor 10.5 percent of the time. And an inspector general's report revealed that more than 10,000 FAA certified pilots had their automobile licenses suspended or revoked for driving while intoxicated during the previous seven years.

The whole notion of testing people for drugs--"lifestyle choices" as one ACLU lawyer puts it--drives the Union crazy. ACLU attorneys have been burning out word processors writing court briefs and motions to defend workers. Sometimes, the Union has been on the side of the angels, as in their suit on behalf of postal service job applicants rejected on the basis of drug urine tests. The postal service has many problems, but the occasional stone mailman misdelivering a letter is not one of them. More to the point, mail delivery is not a health or safety function. For the same reason, you have to like the ACLU for taking on the Tippecanoe County, indiana, schools system fo forcing its cheerleaders to submit urine samples. But last year it fell short of sainthood, filing an amicus brief supporting federal workers who were suing the Transportation Department over its planned random testing of safety-sensitive government employees, mostly in the FAA. The ACLU opposes a bill passed by the Senate that would extend random tests to key railroad workers, pilots, truckers, and bus drivers.

Here again, the ACLU plays the "effectiveness" game. It points to the high error rate for initial drug screening tests and sloppy lab work as reason enough to reject drug use testing. Yet the Senate bill mandates elaborate and reliable confirmation tests, done at federally certified labs, to determine if an initial screening was accurate. The Union also points to electronic devices that test worker dexterity as an alternative to urine testing--though they don't endorse the use of these devices, either. But what if--as is likely--urine tests, or a combination of urine and dexterity tests, proved better than dexterity tests alone in deterring drug and alcohol use and saying lives? "Under no circumstances would we approve of urinalysis," said ACLU special assistant Loren Siegel, "no matter what the occupation."

When it comes to public safety, judges have, for the most part, resisted the most extreme arguments of the ACLU. (Don't expect to read headlines declaring airport metal detectors unconstitutional.) But the ACLU has been effective at conning the courts, state legislatures, regulatory agencies, and law enforcement offices into some lousy policies. (Consider the ban on surprise searches and the shooting of Chester Jackson in Detroit.) On drug testing, for instance, courts have issued a wide range of rulings--everything from approving random testing for racehorse jockeys to rejecting testing rail employees even after they have been in an accident. Is this any way to protect the nation's welfare?

Because the ACLU's arguments have at least in part been heeded, many of the safety procedures we do have are less effective than they might be. The crucial element of surprise, for instance, has been taken out of many of these measures even though it would ensure more safety with no infringement on personal liberty. Those warning signs at sobriety checkpoints hand the drunken driver a splendid opportunity to take a U-turn and threaten motorists on another road. Similarly, it seems odd that someone who sets off the alarm of an airport metal detector is allowed to waltz out of the terminal without being so much as questioned by airport security guards, let alone deained by police. Anyone unglued enough to try to sneak a pistol through a metal detector might be likely to use it on his way out the door.

The real threat

The ACLU's line on civil liberties is more trustworthy in the area of the First Amendment. Threats to the rights of free speech and political association may not be as great now as they have been in the past. But they do exist and the ACLU is fighting the right battle when opposing them.

One example is the McCarran-Walter Act, an embarrassing legacy of the McCarthy era that permits the federal government to deny visas to foreigners wishing to visit the United States. The act goes far beyond sensibly restricting terrorits, drug dealers, and the like to include those said to be a threat because of their political beliefs and affiliations. Writers, artists, academics, politicians, and in one case a former NATO general--usually critics of U.S. policy--have been refused admission. (Those willing to persevere can usually get special permission to enter the country. But the bureaucratic hoops and indignities dissuade others from even trying.) This deprives U.S. citizens of potentially valuable ideas, viewpoints, and personal contacts, while, in the eyes of the world, America itself is made to look paranoid and hypocritical. Denying an entry visa to Canadian Farley Mowat, who wrote that subversive Disney movie, Never Cry Wolf, provoked him to write a book about the experience called My Discovery of America.

An even more damaging example is government surveillance of peaceful dissident political groups in the U.S. We may have thought we ended this practice in the seventies when Congress reined in the FBI for its COINTELPRO operation. During the operation, which began in the sixties, FBI agents created scret files on tens of thousands of law-abiding Americans while snooping and sometimes disrupting the activities of antiwar and black power groups. However, the FBI apparently is still at it, having conducted a secret investigation since 1981 of a group called the Committee in Solidarity with the People of El Salvador (CISPES). The FBI started files on hundreds of CISPES members in an attempt to document terrorist links, yet never saw fit to charge anyone with a crime. Dragging the "national security" net so widely presents a much greater danger than the one the FBI was ostensibly concerned about: it threatens to cool political debate on important issues facing the country.

The ACLU has condemned the FBI for its CISPES investigation. And it's an old and bitter opponent of McCarran-Walter, lending its organizational weight to current congressional efforts to change the law. This is the kind of work in which the ACLU makes its greatest contribution to America. By comparison, fighting things like sobriety checkpoints seems dangerously misguided. The Union would be wise to concentrate its energies on the real dangers. Significantly, it was not the ACLU but another civil liberties group, The Center for Constitutional Rights, which filed the Freedom of Information Act requests that broke the CISPES affair.

If the ACLU would focus on the real dangers, it would see that the safety measures it is opposing so fanatically pose absolutely no threat to our political or religious liberties. The purpose of these measures is not to discover whether we are Republicans, Democrats, or Communists, or Protestants, Jews, or Catholics, or in any way inhibit us in the excercise of our political and religious freedoms. Nor do these safety measures pose any threat to the innocent. The metal detectors, the school sweeps, the sobriety checkpoints, and drug and alcohol testing are all designed to deter or apprehend those guilty of carrying concealed weapons, or of drug or alcohol abuse, all of which could result in the killing or maiming of innocent people. These measures do not even put the innocent in fear, as would, say, police pounding on our door in the night. Only the guilty have anything to fear. What is wrong with having the guilty worry about what they are doing and perhaps change their behavior as a result? What is wrong with keeping them from harming the rest of us? What is wrong with the ACLU?
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Title Annotation:American Civil Liberties Union
Author:Glastris, Paul
Publication:Washington Monthly
Date:Mar 1, 1988
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