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. The terrorists did not rely on poorly run passenger checkpoints. They appear to have used weapons permitted through screening under then existing regulations. Requiring all checked baggage to be x-rayed would also be constitutional. Whenever initial screening gives rise to suspicion, a more intrusive search of the person or luggage is likewise permissible.
Screening mechanisms, too, can be improved substantially without violating the Constitution. We could closely question passengers, as the Israeli airline El Al does, to help spot terrorists. Profiles not based on race or ethnicity are also permissible: Suspicious itineraries or behavior - anything that raises an articulable suspicion - can justify a search for weapons. Better-trained personnel can - and apparently will - be employed.
None of these tools requires singling out individuals because of ethnicity. The uniform application of such measures to all passengers will be more effective than their selective application. And, because the political process will be more responsive to any abuse, this will be less likely to result in unjustifiable invasions of privacy.
President Bush and Attorney General Ashcroft have both condemned bias against Arab and Muslim Americans. Airport racial profiling thus may not even be proposed. But new federal rules for airport security, likely to be classified, must be examined carefully by congressional oversight committees to ensure they are constitutional.
The Constitution does not provide for suspension of individual rights and liberties in war time. This is by design. In the few areas where the framers thought war required limiting rights, they were explicit: The Third Amendment right against quartering soldiers in one's house is limited "in time of war," and Article I permits the writ of habeas corpus to be suspended "in Cases of Rebellion or Invasion."
The Constitution instead is flexible, capable of reconciling the need for security with the protection of our rights in widely differing circumstances. We must be thoughtful and take care in this war to preserve freedom - so that the very provisions that protect it are not needlessly cast aside.
Peter J. Rubin is a professor of constitutional law at Georgetown University.