Every morning when I leave my house in Burlington, Vermont I look to the left at the waters of Lake Champlain. For those of you unfamiliar with the geography of this region of the United States, Lake Champlain is a large lake that brings together the states of New York and Vermont, and the province of Quebec. In earlier times, when most freight and passenger transportation went by way of rail and water, this lake was an important part of the region’s interstate commerce. Since the advent of interstate trucking and air freight, however, most of the traffic on the lake is recreational except for the network of car and passenger ferries that take workers to and from their worksites most days of the year. The primary provider of this service is a private company known as Lake Champlain Transportation Company. This company runs three routes between New York and Vermont that carry around 200, 000 passengers a year. Approximately two-thirds of the passengers are on their way to and from work. The rest are tourists.
Since the events of 9-11, the subsequent passage of the repressive legislation known as the PATRIOT ACT, and the creation of the Department of Homeland Security (DHS), the ferry company has instituted a system of random vehicle and passenger searches. These searches include identification checks and vehicle trunk searches by various employees of Lake Champlain Ferries Co. According to the notification posted on the boats and dockside, the fact of boarding constitutes the passenger’s consent to a search and/or identification check. The searches are conducted under the auspices of the National Maritime Transportation Security Act (MTSA), which was enacted in 2002 and covers some 3.5 million square miles of ocean area and 95,000 miles of U.S. coastline, along with all inland waterways. Of course, the enforcement of this Act falls under the jurisdiction of the DHS and its director, Tom Ridge, and is administered by the U. S. Coast Guard.
Mike Cassidy is one of the 200,000 annual passengers of the ferry system. An attorney who works at the Plattsburgh, NY office of Prisoners’ Legal Services of New York, he recently filed a suit with another attorney-William Nelson-and Allen Gilbert, the executive director of ACLU-Vermont -that seeks to halt the searches and identification checks.
The suit, which was filed in the US District Court in Burlington, VT., calls for an injunction to halt the searches. According to Nelson, the so-called “screenings” are “searches, pure and simple” and “invade constitutionally protected privacy interests.” Furthermore, “they are unreasonable and unconstitutional under settled Fourth Amendment law.” The judicial complaint that the three attorneys filed emphasizes that, while there may be a need for enhanced security on the ferry lines because of the threat of terror attacks, these searches not only violate passengers’ constitutional rights, they provide no real protection from such attacks.
Like most other aspects of the post-911 security blanket thrown over the residents of the United States, although the directives are confidential. So, even though the Coast Guard guidelines are public, the actual directives remain unknown except to those who happen to possess whatever security clearance the DHS has decided is necessary to view them. It is these directives, known collectively as the Maritime Security Directives, under which the ferry company conducts these measures. The only thing known for certain about the directives is that the measures taken by various private transportation companies are up to their own discretion. In other words, searches are not mandatory. The guidelines issued by the Coast Guard contain the following instructions: “each vessel security plan must include a “screening,” defined as “a reasonable examination of persons, cargo, vehicles, or baggage for the protection of the vessel, its passengers and crew and an identity check of boarding passengers.” Indeed, as the complaint notes, not all passenger ferries need to implement these particular measures and some ferry systems (specifically the system that operates in the Puget Sound) have substituted alternative measures that do not involve searches or identity checks, but utilize dogs trained to sniff out explosives.
The plaintiff, Mike Cassidy, who besides his work defending indigent prisoners incarcerated in New York, also defended protestors arrested during the National Governor’s Association meetings in Vermont in 1995. These protestors, who blocked access to some meetings at the conference, were trying to stop the then-imminent execution of Mumia Abu Jamal-an execution order signed by then-Governor Tom Ridge of Pennsylvania. The charges against the defendants were dropped after Cassidy got the judge hearing the case to allow the use of the so-called necessity defense. For those who are unfamiliar with this defense, its essential argument is that people can break the law if the reason for the illegal act represents a greater threat than the lawbreaking. After the judge allowed this defense, the state dropped the charges, not wishing to risk a trial that might challenge the death penalty and perhaps even Mumia’s incarceration. Nelson practices law in the central Vermont town of Middlebury. The reader might be wondering why Cassidy doesn’t just use another route. Like many other passengers, his only alternative to this daily trip is a drive around the southern tip of the lake-a drive which would take at least two hours each way on a good day.
Much like other so-called security measures currently in place in the United States, these “screenings” provide no real protection from potential terror attacks and are mostly an inconvenience to the average traveler in the United States. In addition, and more importantly, they are an infringement on the very freedoms Washington’s over-hyped war on terror is supposedly being fought to protect. As for the identity checks, they provide no real data and are of questionable legality, since merely riding a passenger ferry is not reason enough to require somebody to prove their identity or residency. One could argue, as Cassidy does, that these searches are just another “part of the wider and distasteful campaign of promoting fear and suspicion in order to justify ever greater erosion of our civil liberties.” In an email to me, he also noted that “the rationale used here for these search practices can just as easily be translated and applied to any bridge, road, or shopping mall. In effect, this could fundamentally alter the landscape of 4th Amendment law and protections, which up to now have prohibited general suspicionless roadblocks and checkpoints (beyond DUI checks and immigration related matters). We’re on a dangerous trajectory here, and I’m hoping to nip it in the bud now, before it grows more accepted and entrenched and harder to fight later.”
RON JACOBS is author of The Way the Wind Blew: a history of the Weather Underground, which is just republished by Verso. Jacobs’ essay on Big Bill Broonzy is featured in CounterPunch’s new collection on music, art and sex, Serpents in the Garden. He can be reached at: rjacobs@zoo.uvm.edu