Saturday, October 16, 2004


"September 11, 2001 ... cannot be the day liberty perished":
Protesters win one on appeal

The School of the Americas at Fort Benning, Georgia, has been the elite training academy for Latin America's dictators, mass murderers and torturers—an education provided for them by the U.S. government. It has changed its name but not its ways. Now known as the Western Hemisphere Institute for Security Cooperation, this carefully guarded "school" has been the site of annual protests since 1990.

In 2002, police from Columbus, Georgia, using the threat of post-9/11 terrorism as a justification, decided to inspect the 15,000 or so protesters attending the event with a metal detector—one at a time. If any metal was detected, the police would then search the person and his/her belongings. Needless to say, the effect was chilling.

The School of the Americas Watch (SAW) and its founder, the Rev. Roy Bourgeois, sued in U.S. district court for a temporary restraining order and an injunction to stop the searches as violations of their First and Fourth Amendment rights.

The City of Columbus argued as justification for the searches that

... the Department of Homeland Security threat assessment level was “elevated,” indicating a “significant” risk of attack. Second, protestors in previous years had demonstrated a history of “lawlessness” because many of them engaged in frenzied dancing, did not immediately disburse at the end of the scheduled protest, and “formed a ‘global village’ from large debris.” In addition, some of them ignited a smoke bomb, and a few entered onto Fort Benning in a peaceful march to the SOA. Finally, SAW had invited several “affinity groups”—in particular, the Anarchists—to attend the protest that had allegedly instigated violence at other, unrelated protests such as the one that led to a riot in Seattle during a 1999 meeting of the World Trade Organization. [emphasis added]

The judge—perhaps fearing the possibility of more "frenzied dancing"—refused to issue an injunction, so SAW and Bourgeois took the matter on to the 11th Circuit Court of Appeals. While the case was under appeal, the 2003 protest was held and the police repeated the search procedure.

Yesterday the appellate court agreed with SAW that

the mass, suspicionless, warrantless magnetometer searches violate their Fourth Amendment right to be free of "unreasonable searches and seizures."

The court's decision dissects the city's argument that it needed "non-discriminatory, low-level magnetometer searches at large gatherings."—

This argument is troubling. While the threat of terrorism is omnipresent, we cannot use it as the basis for restricting the scope of the Fourth Amendment’s protections in any large gathering of people. In the absence of some reason to believe that international terrorists would target or infiltrate this protest, there is no basis for using September 11 as an excuse for searching the protestors.

Even putting aside the City’s ill-advised and groundless reference to September 11, its demand for the unbridled power to perform “magnetometer searches at [all] large gatherings” is untenable. The text of the Fourth Amendment contains no exception for large gatherings of people. It cannot be argued that the Framers simply failed to foresee the possibility of large protests of this character.

As SAW points out, under the City’s theory,

mass suspicion-less [sic] searches could be implemented for every person who attends any large event including: a high school graduation, a church picnic, a public concert in the park, an art festival, a Fourth of July parade, sporting events such as a marathon, and fund-raising events such as the annual breast cancer walk. And if the government began to pick and choose amongst [sic] these groups, viewpoint discrimination would likely result.

.... It is quite possible that both protestors and passersby would be safer if the City were permitted to engage in mass, warrantless, suspicionless searches. Indeed, it is quite possible that our nation would be safer if police were permitted to stop and search anyone they wanted, at any time, for no reason at all.... Nevertheless, the Fourth Amendment embodies a value judgment by the Framers that prevents us from gradually trading ever-increasing amounts of freedom and privacy for additional security. It establishes searches based on evidence—rather than potentially effective, broad, prophylactic dragnets—as the constitutional norm.

We also reject the notion that the Department of Homeland Security’s threat advisory level somehow justifies these searches.... Given that we have been on “yellow alert” for over two and a half years now, we cannot consider this a particularly exceptional condition that warrants curtailment of constitutional rights. We cannot simply suspend or restrict civil liberties until the War on Terror is over, because the War on Terror is unlikely ever to be truly over. September 11, 2001, already a day of immeasurable tragedy, cannot be the day liberty perished in this country. [emphasis added]

The court also took the city to task for its violations of the plaintiffs' First Amendment rights. It found that the city had violated those rights in five ways:

First, it is a burden on free speech and association imposed through the exercise of a government official’s unbridled discretion; restrictions on First Amendment rights may not be left to an executive agent’s uncabined judgment. Second, the searches were a form of prior restraint on speech and assembly; to participate in the protest, individuals had to receive the prior permission of officers manning the checkpoints. Third, the search policy was implemented based on the content of the protestors’ speech. Fourth, even assuming the searches were implemented exclusively for content-neutral reasons, they were impermissible because they did not constitute reasonable time, place, and manner limitations, which are the only permissible content-neutral burdens that may be placed upon free speech and association. Finally, even putting aside First Amendment analysis, the search policy constitutes an “unconstitutional condition;” protestors were required to surrender their Fourth Amendment rights ... in order to exercise their First Amendment rights.

The court noted that SAW had never conducted a violent demonstration and that

the magnetometer search policy has not been implemented for any other large gatherings the City has faced. In particular, sporting events—at which large crowds gather; where authorities have no way of knowing who is coming; at which “affinity groups” of various sorts are regularly in attendance; where “violent acts had in fact occurred....

The court found that the city was requiring the protesters to give up a right in order to exercise other rights—

This case presents an especially malignant unconstitutional condition because citizens are being required to surrender a constitutional right—freedom from unreasonable searches and seizures—not merely to receive a discretionary benefit but to exercise two other fundamental rights—freedom of speech and assembly.

The court granted a permanent injunction against the city of Columbus' search policy.

So if you should happen to be in the area of Fort Benning, Georgia on November 20-21, you may drop by to protest the barbarism without fear of search. Or so the theory goes.

Related links:
Roy L. Bourgeois v. Bobby Peters, Case #02-16886 [pdf]
School of the Americas Watch (SAW)

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