The 14th Anniversary of 9/11 – Revisiting Mass Transit Suspicionless Counter-Terrorism Stop and Search
By CHHS Extern Fangzhou XIE
In the wake of the 9/11 attacks, the nation witnessed a burgeoning era of numerous counter-terrorism tactics. Over time, criticisms arose as to whether those precautionary measures truly serve to prevent terrorism, or are merely placebo to calm down unsettling public nerves, and at what cost? The United States (US) is not the only nation to face this crisis; other countries such as the United Kingdom (UK) also have a history of developing and applying counter-terrorism measures with limited success.
On September 2, 2015, CHHS invited Dr. Genevieve Lennon, a renowned UK legal scholar specializing in counter-terrorism law, to shed some light on the topic. The presentation focused on the divergence between UK and US law and policy pertaining to mass transit (excluding airports) suspicionless counter-terrorism stop and search, a precautious street policing tactic where “a specific location is categorized as ‘at risk’ and all persons within that location are presumed to constitute a risk until proven otherwise.” Dr. Lennon based her research on the UK Terrorism Act 2000 Section 44, which was later suspended on the grounds of human rights violations and amended by Section 47A, but still provides a rich reference on counter-terrorism measures and their effects.
Starting off with the legislative intent, Dr. Lennon concluded that to both countries, the overarching objective for counter-terrorism measures is deterrence, not intelligence gathering or detection. Indeed, to catch a terrorist red-handed by this means is pure luck, and may not depend on having specific counter terrorist polices in place. Consider, for example, several 9/11 hijackers were stopped for traffic violations before they boarded the aircrafts. A simple traffic stop, not counter-terrorism measures, may have caught the terrorists. Now that the objective is clear, the next question in line is whether a balance can be struck between effective terrorism deterrence and constitutional protection of individual rights?
Due to the lack of transparency of data in the US, Dr. Lennon wasn’t able to pinpoint the extent of racial profiling and privacy intrusion in the US when conducting such stop and searches. However, the UK data still may lend some reference as it shows minority populations are more likely to become targets of this so called suspicionless tactic. Also consider the recent news of the NYPD’s unjustified surveillance on local Muslim population. When the Terrorism Act 2000 was in effect, to minimize biased targeting, the UK police sometimes stopped and searched every fifth person regardless of ethnic background. But that raises an alternative evil, because terrorists can easily circumvent it. And even with a computer-generated stop and search ratio, one may still argue for the value of human observation of suspicious activities in some, if not all, cases.
As to the extent of intrusiveness, under the Terrorism Act 2000 the UK required mandatory stop and search of all baggage of those people selected while the US generally adopts a voluntary submission standard, and only towards baggage that is big enough to contain explosives. One thing worth discussing here is the potential abuse of power since this measure was conveniently without any suspicion or probable cause requirement. What is there to prevent the police from using counter-terrorism as a façade to catch other criminal activities? And if these searches yield to substantial evidence, should they be admissible in court hearings outside counter-terrorism causes?
Following the 14th anniversary of the 9/11 attacks, maybe it is time to reevaluate the necessity of those controversial tactics in the name of counter-terrorism. And even if the answer is affirmative, the question remains how can the world do better to regulate those operations? For example, how to avoid racial profiling of certain minority groups? How to minimize the extent of governmental intrusion upon personal privacy? And how to improve the transparency of the resulting data behind the scenes?