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Away From Home

Tuesday, August 09, 2005

On the ACLU

There's been some discussion lately over the NYCLU's (a division of the ACLU) lawsuit challenging the NYPD's policy of searching suspicious-looking passengers on the New York City subway. The criticism has particularly come, as you can imagine, from the right-wing, which claims that the NYCLU is helping terrorists and hurting Americans.

I contend that it's actually the other way around.

First let's consider the role of lawsuits in this country. Why do they even exist? Lawsuits exist to hold people accountable. If you break the law, you'll either be prosecuted (a criminal lawsuit) or sued (a civil lawsuit). The lawsuit itself is, in essence, a test. The plaintiff says the defendant broke a law; let's test the facts to see whether this is true. If it is, the courts hold the defendant accountable for the illegal act.

Two forces act to discourage meritless suits. The first is the high cost of suing somebody. Litigation is expensive, sometimes to a fault. This is particularly true if you really want to win -- the best attorneys in the country can charge $1000 an hour, or more. Most plaintiffs are not going to be willing to incur this cost simply to harass somebody.

The second force is what's known in the business as "Rule 11," which sanctions plaintiffs (and their attorneys) who file frivolous suits. Filing a suit which has no legal merit risks being fined, having to pay the defendant's attorney's fees, or even being held in contempt.

But back to the ACLU (as the parent organization of the NYCLU). Many people hate the ACLU. There's even an opposition movement. Why is this? Because the ACLU gets in the way, opponents say. By challenging religious displays, police searches, and the like, the ACLU is destroying society.

But their real problem isn't that the ACLU is challenging. Opponents' real beef is that the ACLU is winning.

As we have already seen, when a plaintiff wins a lawsuit, that means that the defendant broke the law. If all of the laws, displays, and regulations that the ACLU has challenged were legal, then they wouldn't have been struck down, would they?

Isn't it a fundamental truism that everyone, male and female, human and corporation, private and government, most adhere to the law?

This includes the NYPD. If the subway searches are legal, then they will be upheld, and the NYCLU will lose. If they are illegal, they will be struck down. How is this a bad thing?

So why are people so mad that the subway searches are being challenged? Obviously, because they're afraid that the NYCLU will win. They're afraid that the NYPD will no longer be allowed to break the law.

This is not a door that we as a society should enter. If we start letting the NYPD break the law, then don't we have to let every police department break the law? When the police no longer have legal bounds, you end up with what's called a "police state," or, more commonly, "fascism."

The ACLU and NYCLU simply ensure that the rule of law continues to reign supreme in this country.

If you don't like the law, change it. Don't pretend it doesn't exist.


  • First, we must stop pretending that the terrorists so far, by-and-large, have not been of the same ethnic origin. This will reasonably narrow down the search for potential perpetrators. But, it makes ALMOST as little sense to stop every Arab or North African in NYC today as it does to stop every 5th random person. Therefore, the profiling must be even more exact than race to be effective.

    Israel has been perfecting the art of profiling, and has successfully prevented El Al (national airline) hijackings since 1970. The profilers are trained to look for signs of suspicious behavior (body language), which provides effective clues of whom to question. Barring exceptional con artists, body language is a dead give away of suspicious behavior. In fact, police officers are trained to look for such clues when dealing with everyday criminals.

    The results: plenty of Arabs fly El Al, and yet enough people have been turned away to prevent terrorist attacks since 1970.

    So why not fly some Israelis to NYC to train New York’s finest on such tactics?

    By Anonymous Kira Zalan, at 8/09/2005 09:53:00 PM  

  • Why not fly in some Israelis? I have no idea. Perhaps their methods would be illegal here.

    I'm assuming arguendo that the subway searches are illegal (because if they weren't, then the NYCLU suit would be tossed, and there'd be nothing to worry about). If they're illegal and yet demanded by the population, the answer is not to just pretend that they're legal. The answer is to make them legal.

    Change the law, don't pretend it isn't there.

    By Blogger Scott, at 8/09/2005 10:23:00 PM  

  • If they're using race, then by gum, that needs to stop now. Racial profiling can be very effective at first, but once you start pulling every person with a mediterannean nose out of the crowd the terrorists will use plastic surgery. Also, letting cops detain people just because they think they look bad is just begging for abuse of power.

    This is America, Kira, not Israel. Act like it.

    By Blogger Logan C. Adams, at 8/09/2005 10:54:00 PM  

  • It's well known that many frivolous grievances have been taken seriously, and even been victorious in the courts. This is why we need tort reform. The way many people see it, either lawyers that get people cash awards for things like ironing their clothes while wearing them belong in jail, or the system needs reform. The same applies to over-zealous defenders of civil liberties. Some think there is something wrong in the minds of lawyers who attack what many agree are common-sense notions. This argument reasonably asserts that groups like the ACLU have already persuaded the courts to "change the constitutional rules," which is beyond their mandate or constitutional power.

    Outrageous liability lawsuits have hurt the community as a whole by driving up medical and legal costs. The potential cost for outrageous civil rights rulings will be counted in lives, not just dollars. When the U.S. is at war with, and under threat from a very real worldwide terrorist group, I doubt that earlier generations of Americans would have responded with the restraint shown by the current government.

    Thanks for commenting over at my blog. I hope this explains my position a little better.

    By Blogger Chris, at 8/10/2005 12:44:00 AM  

  • To Logan: There's a lot more than race in a profile. The whole package of identifying characteristics regarding suicide bombers should be applied when profiling, as well as alertness to nervous or suspicious behavior. This may take more training, but it should be done. More on this at my LEAVWORLD blog, which Scott has already commented on. (Thanks again)

    By Blogger Chris, at 8/10/2005 12:50:00 AM  

  • Chris: Frivolous to who? The suits must not have been frivolous to the courts, or they would have been dismissed and sanctioned.

    If a group files a "frivolous" suit and wins, it's not game over. If the NYCLU wins this "frivolous" suit, all that means is that given the current state of the law, the searches are illegal.

    So if you don't like it, change the law to make it legal. Don't destroy the rule of law by using some notion of "oh, well, I don't think this law counts anymore."

    And there have been numerous studies showing that high medical malpractice insurance rates are not actually due to the suits themselves, but to the insurance companies overextending themselves and losing big-time in the investment market. They have to recoup their money somewhere, and given that they have only one source of income, it has to come from there.

    By Blogger Scott, at 8/10/2005 08:28:00 AM  

  • Every time you see a tag on an appliance or car, or anything that is so ridiculous that you think "who would try that," It's because of a successful frivolous lawsuit. I believe I cited people ironing their clothes while wearing them. Look on your iron, and you will see a warning label about it. Some idiot did this, and then sued the iron manufacturer. This is why we need tort reform. Even more, we need to change the culture of the judiciary. The courts have wandered far from the principle of "personal responsibility," and I applied the same principle to ridiculous rulings that the ACLU has brought about through the courts. Some common sense, and a better understanding of our Constitution by the judiciary would help to change this absurd situation.

    By Blogger Chris, at 8/11/2005 02:31:00 AM  

  • I believe I cited people ironing their clothes while wearing them.

    Let's think for a moment about what the clothes-ironing case that you so readily refer to actually meant. In order for the court to rule against the manufacturer, the court necessarily found that a warning of "Do not iron clothes on body" would have prevented the injury, and that therefore the lack of a warning caused it. By attacking the ruling, Chris, you are saying that it's more important to not print 6 words than to keep a person safe.

    This is why we need tort reform.

    Do you say we need tort reform because the injured person won, or because they were able to sue in the first place?

    The courts have wandered far from the principle of "personal responsibility,"

    Why is it necessary for the legal system to adhere to this principle? Is this some fundamental canon of legal construction? Or is it just your personal ideal for the judicial system?

    a better understanding of our Constitution by the judiciary

    Ah, and according to you, which method of Constitutional interpretation is correct? What is your ideal school of thought?

    On a completely related note, is it proper to screen potential judges to make sure they subscribe to the "correct" school of thought? If so, doesn't this invite Congressional filibuster of nominees who some Senators personally disagree with? If not, how do you hold the judiciary accountable to this "correct" interpretation?

    By Blogger Scott, at 8/11/2005 08:24:00 AM  

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