Homeland Insecurity: Checkpoints, Warrantless Searches and Security Theater

Since June 2013, the American public, press, and policy-makers have been debating the implications of Edward Snowdens disclosures of mass U.S. government surveillance programs, most established after the 9/11 attacks. Our reliance on modern communications technology and its connection with our basic constitutional rights of free speech and Fourth Amendment protections against warrantless seizures and searches is at the heart of that debate. But while that controversy has raged very publicly (even globally), another series of U.S. government search and seizure activities have only recently started to receive the scrutiny they deserve. And just as the over-reach by the NSA sparked what I have previously termed the digital resistance movement, these other searchesconducted by elements of the Department of Homeland Security (DHS)have sparked a more traditional form of citizen resistance.

Enter the VIPR

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 Madrids 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.

Warrantless searches and internal checkpoints are characteristics of totalitarian political systems.

While VIPR teams began as extensions of security at major airports, TSA officials gradually began pushing VIPR operations beyond airportsto 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 teamtook overthe Amtrak station in Savannah, Georgia and conducted warrantless searches of detraining passengers. The same year in Tennessee, VIPR teams conducted warrantless searches of trucks atweigh 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 areport calling into question a key component of VIPR teamsBehavior 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 113thCongress, Rep. Scott Garrett (R-NJ) tried tokill the VIPR programaltogether, regrettably without successbut 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 inUnited 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 Courts majority, Justice Powell asserted that given the huge problem of illegal immigration and CBPs 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 citizenIn 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 courts 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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Homeland Insecurity: Checkpoints, Warrantless Searches and Security Theater