A SEARCH TOO FAR: FRISKING BUS PASSENGERS DESERVES A CHALLENGE

Even before the smoke clouds lifted, Americans knew that their lives would
never again be the same after Sept. 11, and that new security precautions
would likely infringe upon many of the freedoms that we have long taken for
granted. Yet many were also understandably reluctant to approve a wholesale
abandonment of our most treasured civil liberties - if for no other reason
than because of a stubborn refusal to let the terrorists win. It was clear
that Americans would have to assess each proposed security measure on a
case-by-case basis.

As it turns out, the case at hand now takes the form of a case before the
United States Supreme Court. The nine justices have been asked to determine
whether it is constitutionally permissible for law enforcement officers to
board commercial buses and search passengers and their luggage looking for
drugs or weapons.

A federal appeals court in Atlanta already has said that the answer is no -
that passengers are entitled to a reasonable expectation of privacy and
that any permission officers received could be said to have been given
under duress by a captive audience.

That set the stage for the showdown at the Supreme Court.

The case of the bus passenger pat-downs is no easy call. On the one hand,
it does not make much sense for government, law enforcement and commercial
airlines to take the steps they have to improve the safety of air travel if
we are not prepared to do the same sort of things with regard to other
modes of travel.

And yet, at the same time, the lower court was quite correct about bus
passengers amounting to a captive audience that could easily be coerced
into granting permission for a search.

Perhaps, in the end, the justices will split the baby and - while
permitting metal detectors and searches of passengers in bus terminals -
affirm the privacy right of passengers once on board.

If nothing else, the publicity given to the case might just inform people
of their right to deny consent.

Whatever the court ultimately decides, the case is a sample of the sort of
balancing acts that lie ahead for this generation of Americans, and perhaps
many more. Many of the decisions will be difficult.

But, then again, not one of our Founding Fathers ever promised that
preserving freedom would be easy.