After Sept. 11, our nation has begun a tragically overdue
reassessment of airport security. Some argue that our security
needs will require us to abandon some of our most fundamental
rights and liberties. But we need not choose between constitutional
rights and airport security.
Undoubtedly, the balance between security and freedom will be
altered by the steps we must take. But the requirements of security
can be - as they always have been in our country - reconciled with
constitutional demands of liberty and equality that are at the core
of the American way of life.
On airport security, the constitutional touchstone must be the
command of the Equal Protection Clause that each person be treated
as an individual. Calls for ethnic profiling of Arabs and Arab
Americans at airports - while perhaps an understandable response -
echo those of an earlier time of war when, to our shame, we
abandoned this constitutional principle. During World War II, more
than 100,000 people were placed in internment camps because of
Japanese ancestry. In 1988, Congress apologized for this
"fundamental injustice." The 1944 Supreme Court case approving the
action, Korematsu v. United States, is one of the most shameful in
the Court's history.
The Constitution permits the government ample means to protect
security at airports. Airplanes can be fitted with inside-locking
steel cockpit doors. Air marshals can be used where their benefit
is thought to outweigh the risk of having firearms on board.
Airplane crews can be trained not to comply with hijackers, once
presumed to be seeking only hostages. At airports, access to secure
areas, runways, and parked aircraft can be severely restricted.
None of these changes raise constitutional concerns.
Passenger screening - the search of passengers and luggage - does
implicate the Fourth Amendment's prohibition on "unreasonable
searches and seizures." But passenger scrutiny can be strengthened
substantially without violating that provision.
While suspicionless searches are ordinarily forbidden, under the
constitutional rule of reasonableness applicable at airports,
passengers may be evenhandedly searched as intrusively as is
necessary to prevent the risk of hijacking.
The extension of the search for weapons on persons and in carry-
on luggage to include sharp objects is thus clearly constitutional.
Such searches might have prevented these hijackings. …